This Week on Verfassungsblog…
In what is probably our longest long read ever, MATHIAS HONG argues in favour of using the instruments of militant democracy against those state chapters of the German AfD party that are most probably unconstitutional. Part I is dedicated to the forfeiture of fundamental rights under Art. 18 of the Basic Law and explains why the prominent party functionaries of radical state chapters meet the requirements. Part II takes a closer look at the requirements of the party’s radical state chapters and highlights the role of constitutional law scholars who interpret the term “people” in the Basic Law in an ethnic-exclusionary sense. The concluding Part III explains why allegiance to the constitution entails an obligation to file applications for forfeiture and party bans. It also requires public officials – and constitutional law scholars in particular – to take a stronger stance against the threats to liberal democracy.
Speaking of threats to liberal democracy: KONRAD DUDEN argues that the German Federal Constitutional Court should be better protected. In addition to constitutionalisation, he brings procedural protection into play, as exists in France or Spain in the form of organic laws.
That Germany is not a unique case in Europe is also emphasised by HANNAH BECK and MARIE MÜLLER-ELMAU in their response to Friedhelm Hufen’s article in the FAZ. The two research assistants in the Thuringia project criticise Hufen for missing the point of the debate, namely that authoritarian populists in Poland, Hungary, Italy and Turkey are not restructuring liberal democracy against the constitution, but with it.
NILS KOHLMEIER and ANDREAS GUTMANN assess the sustainability chapter in the EU’s new association and free trade agreement with the Mercosur states as lacking in participation rights and the protection of indigenous groups. Their analysis also takes a critical look at the prevailing concept of sustainability and lithium mining as the dark side of the so-called ‘European Green Deal’.
In Switzerland, the Federal Council started formal negotiations with the EU to conclude a Framework Agreement 2.0, introducing modified monitoring and novel judicial mechanisms. CARL BAUDENBACHER critically sees the attempt as a triple B approach: in substance, it consists of unsuccessful bricolage, the foundations were laid by bullshit, and bustle is supposedly of the essence.
There was much puzzling and wrangling over what would ultimately be included in the EU’s Artificial Intelligence Act. Some things were toned down, but many good ideas remained. PAUL FRIEDL and GUSTAVO GIL GASIOLA provide a comprehensive and critical overview of the three main areas covered by the now (almost) final version of the AI Act: High Risk Systems, General Purpose AIs, and the newly established governance system.
In France, the government promulgated and published the new French Immigration Act, a day after the Conseil Constitutionelle declared a whopping 35 articles unconstitutional on procedural grounds. It thereby constitutes the most repressive adopted Act since 1945 and heightens a migration restrictive dynamic, argues MARIE-LAURE BASILIEN-GAINCHE.
Earlier in January, the Advocate General delivered his opinions in two infringement proceedings against the Czech Republic and Poland. NORA VISSERS highlights the potential these proceedings bear to allow the Court to clarify the core of the EU value of democracy which has so far remained largely unexplored.
Following allegations that several members of its Palestinian area staff participated in the October 7th atrocities, UNRWA preemptively dismissed them. This was politically necessary, given that 17 donor states have suspended their contributions, posing an existential threat to UNRWA, the largest provider of humanitarian assistance in Gaza. However, as OMAR YOUSEF SHEHABI explains, it also demonstrates the sui generis and subordinated nature of UNRWA’s Palestinian area staff which has the same obligations but not the same rights as other UN staff.
When social workers refuse to testify in criminal proceedings, they usually have to pay a fine. However, they also face criminal prosecution under Sections 258 and 13 StGB. KEREM DYKAST shows why this practice violates the ne bis in idem principle and Art. 14 para. 7 of the ICCPR.
ALICE BERTRAM calls on the German government to recognise the signs of the times. It should finally implement the EU directive, which offers a ten-day entitlement to paternity leave. Moreover, she argues that the Basic Law guarantees a “subsistence minimum for time”.
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Verfassungsblog Debate: The Russian Constitution at 30
The Russian Constitution has just turned 30 years old. But do law, constitution, and courts still play a role in a deeply authoritarian and aggressive regime? What has gone wrong in the history of Russian constitutionalism? These questions are not only of domestic relevance: For Soviet dissident and Nobel Peace Prize laureate Andrei Sakharov, peace went hand in hand with human rights and progress. A new blog debate, in collaboration with the German Sakharov Society, is seeking answers and sheds light on the legal tools of Russian authoritarianism. In the first three debate contributions, VLADIMIR GEL’MAN shows how the 1993 constitutional crisis paved the way for violence, while CAROLINE VON GALL contemplates the regime adaptation of Russia’s judicial elites, and MARIANNA MURAVYEVA discusses the role of women’s rights in the Russian constitution and reality.
Verfassungsblog Debate: Ruling without the Power to Govern – Authoritarian Populism and Parliamentary Obstruction
PAUL GLAUBEN continues the second week of the online debate by analysing parliamentary control rights in terms of their suitability for obstruction. MATTHIAS LUKAN outlines the Austrian experience with parliamentary obstruction and analyses more and less successful attempts to curb it. From a polit