Protecting the Constitution
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What started over ten years ago in Hungary is now being copied all over the world: Democratic rule of law, actually a facilitator of diversity of opinion and fruitful debate among the different, is being reforged into a tool of authoritarian power preservation and thus, without any open breach of the constitution, de facto abolished. The latest and most blatant example of this is Israel: the right-wing ruling coalition is about to enact a series of constitutional and legal amendments aimed at virtually ensuring that its constitutional compliance will no longer be reviewed by any court and that minority and human rights no longer stand in the way of its power. We have reported on this several times here (e.g. here, here, here, and here), and extensive material in English on what exactly is planned and what consequences will be can be found here.
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In Hungary and Poland, the government got away with its egregious constitutional policies mostly because it is difficult to interest the public in these matters. There was no lack of alarm calls from the legal community, not least here on Verfassungsblog. But they have often had a hard time generating resonance in their own country and among the general population.
Could this be different in Israel now? There, an unprecedented mobilisation of legal scholars is taking place right now to educate the Israeli population about what these laws that are about to be passed in the Knesset actually entail. I think it is extremely impressive what is happening there.
I called Tamar Hostovsky-Brandes today to find out more.
MS: Tamar, what is it that you and your colleagues are doing right now?
THB: We have a Whatsapp group in which public law scholars from all over Israel exchange views on current issues. It was founded a few years ago when the discussion began in Israeli politics about whether the rulings of the Supreme Court could be overruled by parliamentary decision. Now this is for real! Most people don’t understand these constitutional matters. It’s so legal, so abstract. They ask: What does this have to do with my life? But when they actually feel what it has to do with their lives, then it’s too late. Then there’s nothing you can do anymore. Then the framework in which one can defend oneself against the violation of one’s rights is no longer there. That is the reason why the government is pushing ahead with these constitutional reforms in the first place. But that message doesn’t get through to the public on its own. So my colleague Shelly Aviv Yeini decided one day to invite people via her social media accounts to her home, to come and have it explained to them. She expected maybe 20 people. But there was an overwhelming response. She held one talk at her apartment, and then another one at a cafe nearby. A bunch of us decided to offer similar talks, and requests kept coming in.
MS: And this is now spreading all over the country?
THB: Yes. All over the country. We go everywhere. Some are on the road three or four times a week, with their own car, at their own expense. We go to schools, to hi-tech companies, to retirement homes, to community centres, to private houses. Wherever 20 people get together, we go. There is a Google form where people can book us. The demand is growing. Over 130 such meetings have been documented, the total number is probably higher.
MS: Who is participating in this?
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THB: There are over 50 of us now, mainly academics from all sorts of law schools, but also from the legal profession. It’s a pretty amazing community. We don’t always share the same opinion, for example on the evaluation of the expansive Supreme Court jurisprudence. But this is about the basics. Democracy itself is at stake. We have been working day and night for two months to fight this revolution, without any credits, without any pay – very unusual in academia! But the vast majority of public law professors in Israel believe that what is happening is extremely dangerous. We have definitely left the ivory tower.
MS: Are there signs that the government is turning against the universities?
THB: Not yet. That will probably come in the second phase. There are statements here and there. For example, permanent tenure is being questioned, which directly affects university professors. This is in the air, but there are no concrete measures yet. The focus is on the changes to the constitution. Everything else is on hold. First, change the rules, and then, when the instruments to fight back are no longer there, everything else will come.
MS: What would that be?
THB: One can only speculate. What I personally worry about is the political participation of Arab parties, freedom of expression, civil society organisations and human rights in the occupied territories. None of this is official, but there are already statements in this direction.
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Would this be a good time to do the donation? You can always return and continue reading, you know.
But of course, you may also first read on about …
the week on Verfassungsblog
…, which has been summarised by PAULA SCHMIETA:
Are the judicial reform plans proposed by Israel’s government the Israeli January 6th? JOSEPH H.H. WEILER warns of a “tyranny of the majority” and that the government’s proposal might be even more perilous than a mob storming parliament.
CHRISTIAN TIETJE examines the question of whether it would be possible to expropriate Russian assets in order to finance the reconstruction of Ukraine. According to Tietje, this would – due to considerable limits imposed by the rule of law – not be feasible so easily. Although he finds such demands understandable, he invites us to stay calm and protect rule-of-law standards.
AHMED ELLABOUDY provides insight into substantive restrictions of property rights by anti-terrorism laws in Egypt. He points to several structural problems, such as the vagueness of some definitions or extremely fragile procedural protections, which are in correlation with the rise of “the preventive state” – a state accusing also political activists and civil society organizations of terrorism.
FRIEDERIKE GRISCHEK explains why declaring the Iranian Revolutionary Guards a terrorist group is a trickier business for the EU than one may think. That depends on who qualifies as a “competent authority” to declare groups to be terrorist organisations.
RODRIGO KAUFMANN looks at the second attempt at drafting a new Chilean constitution. According to Kaufmann, a salient feature of this new process is the legal expertise found therein. He reminds us that legal expertise is not apolitical. On the contrary, the new process holds the potential for a virtuous interplay between expertise and politics.
Can a company refuse to conclude or renew a contract with a self-employed person because the person is homosexual? No, says the ECJ. LENKA KŘIČKOVÁ & IVA FELLEROVÁ PALKOVSKÁ see this judgment on the anti-discrimination directive as a game-changer, but also a hydra: whilst solving one problem two new issues arise.
MERIJN CHAMON notes an increased use of Article 122 TFEU, especially in measures aiming at the health and energy crises. But beyond crisis response, these measures pursue economic policy in a secondary fashion too. Two of these measures are currently being challenged before the ECJ. Is Article 122 TFEU the right legal basis for these measures, given their aim and content?
PETER MEIßNER analyses the status quo of the possible extradition of Catalan politicians, currently in Belgium. After the initial rejection of the extradition, the Spanish Tribunal Supremo has now won a preliminary ruling before the ECJ. The next move of the Belgian judiciary can be awaited with excitement.
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Looking ahead to the EU Parliament’s elections in 2024, ALBERTO ALEMANNO examines the EU institutional and political response to Qatargate. Despite of the disillusioning responses, he thinks that Qatargate might still offer both: an unmissable pedagogical opportunity to encourage voters to cast their ballots – and political momentum for reform.
On the occasion of the Council of Europe summit in Reykjavik, ALICE DONALD & PHILIP LEACH reflect on the challenges the Council of Europe is facing: The climate emergency, Russia’s invasion of Ukraine, the implementation of ECHR judgments…
Berlin’s Friedrichstraße, after an interlude of 60 days, is once again car-free. CHARLOTTE HEPPNER examines the chances of success of the opposed initiative “Rettet die Friedrichstraße” and concludes: Law does not protect against change. Ultimately, political decisions like these will be decided at the ballot box and not in court.
ALEXANDER HOBUSCH puts last week’s Federal Constitutional Court ruling on party funding in context. He criticises the fact that the Federal Constitutional Court’s reasoning unnecessarily departs from already existing lines of argument and hopes that no Pandora’s box will be opened.
On the occasion of the 10th anniversary of the far-right AfD party, ANNA-SOPHIE HEINZE comments on its legacy so far. She suggests that the party has changed German politics – albeit marginally compared to other international far-right groups. Nonetheless, Heinze finds that the political cordon sanitaire against the AfD is crumbling – that alone could be reason for the AfD to celebrate.
Finally, our blog debate Comparative Legal Perspectives on Abortion continues with contributions by ALBA RUIBAL, DANIELA ANTONOVSKA, LUCÍA BERRO PIZZAROSSA, SILJA BÁRA ÓMARSDÓTTIR and JULA HUGHES, JESSI TAYLOR & CHRISTINE HUGHES.
That’s it for this time. All the best to you and see you next week! And of course, at the risk of being obnoxious: please don’t forget to donate!
Max Steinbeis
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