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Newsletter Issue 7  |  August 2019
This newsletter is published by the Constitution Transformation Network (ConTransNet) based at Melbourne Law School. We are a network of expert scholars sharing our latest research and experiences regarding the development of constitution-making processes, content and implementation.
"Addressing climate change by harnessing sub-national governments"

In less than a month, the 51st session of the Intergovernmental Panel on Climate Change will be held in Monaco, from 20 to 23 September. On 23 September, UN Secretary General Guterres will also host the 2019 Climate Action Summit in New York. As countries come together to discuss options for more effectively tackling climate change, it is becoming increasingly clear that action requires the involvement of all levels of government. The UN Secretary General has already specifically observed that “We need clear moves not only by national Governments but also by other actors such as subnational governments, businesses and investors”.

As with most internationally driven projects, early action on climate change focused on national governments working together collectively to agree global benchmarks and strategies. However, over the last decade, climate change action increasingly has run into ideological difficulties at the national level, making it more difficult for many countries to develop nationwide climate change policies and programmes. This blog post reflects on the increasingly active involvement of sub-national governments in driving climate change action.

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In August, ConTransNet launched a new research report on "Constitutional Implementation for Sustainable Peace". The research and report was funded by the Folke Bernadotte Academy. This report develops a new analytical framework for understanding the connections between Peace Agreements and Constitutions in support of sustainable peace, and tests it using an initial case study of Bougainville.

 
Dr Dinesha Samararatne published an analysis of the Chunnakam Power Plant Case, where the Sri Lankan Supreme Court recognised the right to be "free from unlawful, arbitrary or unreasonable executive or administrative acts or omissions which cause or permit the causing of pollution or degradation of the environment". The judgement has been welcomed by environmental activists locally and globally.
 
Anna Dziedzic wrote an article for the Lowy Interpreter arguing that Pacific courts need more women judges. Her research shows that women are underrepresented on Pacific courts, and that women judges challenge gender stereotypes and make an important contribution to the development of the law. 
 

Will Partlett produced an I-CON blogpost on "Why Political Pluralism is Not Enough: Moldova’s Constitutional Crisis". He examined a series of Moldovan Constitutional Court decisions, the first of which blocked the creation of a new coalition government and the replacement of the sitting president, and the second of which saw the same same Court annulled its own decisions. All six judges then resigned. Will's analysis suggests that underlying problems of judicial weakness and weaponization of the judiciary by political interests are a more fundamental problem: A failure of law and judicial institutions to operate independently from ordinary politics.  

 

Will Partlett published an article on "Criminal Law and Cooperative Federalism" in the most recent edition of the American Criminal Law Review. He argued that cooperative federalism presents new—and largely unexplored—constitutional problems. In particular, unlike the civil regulatory context, cooperation threatens the constitutional rights of individual criminal defendants by allowing executives to circumvent local juries, judges, and laws.

 
Tom Daly was one of four experts selected by Carnegie Europe to provide responses to a new article by Lührmann and Lindberg on 'The Third Wave of Autocratization', which explores whether the world is truly witnessing a global rollback of democratic freedoms. The collection of responses was published in June 2019 and can be found here.
Seminar: "Climate Change Advocacy in Federal Systems"

On 5 June 2019, Ms Jayani Nadarajalingam, CTN Co-Convenor, facilitated a session titled “Be the change: running for office” as part of The Climate Reality Project’s Leadership Corps in Brisbane. Amongst other issues, Jayanni spoke about Australia’s multi-level government structure and how it could be strategically utilised to undertake climate related action.
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Seminar: "The Future of Australian Law Reform - Constitutional and Immigration Issues"
On 18 June, the Australian Law Reform Commission (ALRC) and Melbourne Law School co-hosted a panel discussion on the future of legal and constitutional reform in Australia. The discussion progressed the ALRC’s new project, which is seeking public input to assist in identifying areas of Australian law that may benefit from reform. ConTransNet Co-Convenor,  Cheryl Saunders, participated as a panel speaker exploring aspects of constitutional law that are ripe for future reform.

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Seminars: "Annual Conference of the International Society of Public Law"
From 1-3 July, ConTrans Net Co-Convenor Tom Daly attended the annual conference of the International Society of Public Law (ICON-S), with the theme 'Public Law in Times of Change?'. He spoke and chaired a number of panels on the deterioration and health of democratic governance worldwide, including: 'Corruption's Corrupting of Liberal Democracy', 'Courts Against or in Favour of Democratic Decay?', 'The State of Constitutional Democracy: Directions', and a panel on Wojciech Sadurski's landmark new book on Poland's Constitutional Breakdown.

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Knowledge Exchages: Myanmar and Philippines
Over recent months, Cheryl Saunders has had valuable practical experience with the issues raised by constitutional transformation in a range of states in the Asia and Pacific region. In August she was in Myanmar for workshops on constitutions and international law, and emergency powers in federal systems. In July she was in Manila and Mindanao in the Philippines, to discuss federal constitution building. In June, she participated in a seminar in PNG on options for Bougainville in the wake of the November referendum.
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Seminar: "Update on the constitution-building process in Palestine"
On 30 July, Dr Sanaa Alsarghali, a Kathleen Fitzpatrick Visiting Fellow who has been collaborating with ConTransNet during her fellowship, was invited by the Palestinian Delegation in Canberra to deliver a lecture at Parliament House on the constitution-building process in Palestine. To an audience of Federal MPs, Senators, diplomats and staff, Dr Alsarghali outlined the role and importance of constitutional principles as Palestine navigates a course towards statehood and democracy.
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Seminar: "Gendering the 'Legal Complex' - Women in Sri Lanka's Legal Profession"
In June 2019, Dr Dinesha Samararatne gave a presentation on "Gendering ‘the Legal Complex’: Women in Sri Lanka’s Legal Profession" at the Women in Asia Conference.  Dinesha presented her paper as part of a "Women in Law" panel, which explored questions regarding women’s inclusion, visibility and contribution in the judiciary and in the legal profession.
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Seminar: "Cities in Federal Theory Workshop 2019"

From 20-21 June 2019, Dr. Erika Arban organised the "Cities in Federal Theory Workshop" at Melbourne Law School. The workshop aimed to gather scholars from around the world to engage in a broad discussion about the role and place of cities in federalism, including investigating whether metropolitan areas in federal and quasi-federal systems have the potential to become the new strategic level of governance to accommodate diverse communities. Members of the ConTransNet team actively participated in the Workshop as presenters and commentators
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Seminar: "South Africa to Sri Lanka: Prospects of Travel for 'Transformative Constitutionalism'"
From 3-4 July, Dr Dinesha Samararatne, Co-Convenor of ConTransNet, participated in the Public Law in Four Jurisdictions Conference, hosted by the University of Witwatersrand. The conference provides an opportunity to discuss developments in public law in the four jurisdictions and more broadly. Dinesha presented a paper examining use of South Africa’ experience in constitution-making in the 1990s during the recent attempt at constitution-making in Sri Lanka over the last few years.
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Seminar: "Interface between consti-tutional and international public law'"
On 26 August, ConTransNet convened a small seminar bringing together constitutional law and international public law experts at Melbourne Law School (MLS) to initiate the first in a series of conversations on where, how and with what consequences the perspectives of international law and (comparative) constitutional law overlap. The seminar sought to explore whether there should and can be a “meeting of the minds” between international lawyers and domestic constitutional lawyers, and if so, in relation to what issues or areas of work.
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Seminar: "The future of electoral democracy in India and Australia"

On 20 August, CTN Co-Convenor Tom Daly, as Assistant Director of the Melbourne School of Government, attended a forum in India which brought together election officials, scholars, and policymakers to discuss 'The Future of Electoral Democracy in India and Australia'. The event was co-hosted by the MOSG, the Australia India Instiute and Trivedi Centre for Political Data.
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