Constitutional Exceptionalism in Kashmir

The move of India’s President to abrogate Article 370 has been subject to much academic debate and discourse along the doctrinaire lines and limits of traditional constitutional law. Since the Declaration was passed, however, in a state of exception, the consequent legal vacuum necessitates an analysis in light of both political facts and public law.

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Between Legislative Defiance and Legal Security

In Portugal, a recent decision of the Constitutional Court rejected another legislative attempt to implement a successful system of surrogacy. For the first time in its 26-year history, the Court faced legislative defiance of its previous case law, but asserted its role as the ultimate interpreter of the Constitution with arguments of “legal security” which provided the formal ground to escape the conflict between branches.

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Abusive Constitutional Lip Service

Amid Turkey’s heated agenda of constitutional politics during the past few years one issue seems to have received little to no attention: President Erdogan’s repeated call for reinstating the death penalty. Can Erdogan reinstate the death penalty? No, simply because he doesn’t have enough political support. But that isn’t the point. The point is how Erdogan uses the (unfulfillable) constitutional promise to reinstate the death penalty to consolidate his base.

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‘Ze-Gate’: Excepting Accountability

On September 24, the democrats in the House of Representatives announced a formal impeachment inquiry of President Trump for allegedly having pressured Ukrainian President Zelenskiy during a call to probe Joe Biden, former US Vice-President and Trump’s political rival. The content of the conversation raises questions about the integrity of Ukraine’s President. Impeaching Zelenskiy, however, is not a viable option as Ukraine’s constitution sets a practically unattainable threshold for impeachment.

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A Judicial Path to Nowhere?

On 25 September 2019, the Constitutional Court of Latvia opened a case on the constitutionality of several provisions regarding pre-school education for minorities. The complainants are not likely to succeed with their appeal, though, as the Constitutional Court has so far used the country’s Soviet history as well as Latvia’s cultural identity as arguments to uphold the restriction of minority rights.

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Did Turkey’s Recent Emergency Decrees Derogate from the Absolute Rights?

Following a coup attempt by a small group in the Turkish Armed Forces in 2016, the Turkish Government declared a state of emergency for three months. Although it observed procedural rules laid down by national and international law on declaring a state of emergency, the Government’s use of the emergency powers contradicts non-derogable rights laid down in the Turkish Constitution, the ICCPR and the ECHR.

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“Constitutional Paternalism” and the Inability to Legislate

On 25 September 2019, the Italian Constitutional Court (ICC) has made clear that assisted suicide is not punishable under specific conditions. The judgment came one year after the ICC had ordered the Italian Parliament to legislate on the matter – which it did not do. The entire story is indicative of the inability of Parliaments to respond to social demands as well as the current trend of high courts to act as shepherds of parliaments rather than as guardians of the constitution.

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Undemocratic but Formally Lawful: The Suspension of the Polish Parliament

While the attention of many constitutional law scholars has been on the UK Government’s decision to prorogue Parliament and first judicial responses, the Polish Sejm’s plenary sitting has been unexpectedly suspended and postponed until after the general elections of 13 October 2019. The decision has a precedential nature. For the first time since the Polish Constitution entered into force, the ‘old’ Sejm is sitting while the ‘new’ Sejm will be waiting for an opening. Although this decision is formally compliant with the Polish Constitution, it is nonetheless undemocratic and raises some serious questions about the motivation behind this move.

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Pseudo-Legal Justice

On the morning of his thirtieth birthday, Josef K., a member of the Council of the Anti-corruption Agency of Montenegro, was dismissed of his duties, by the very same body that appointed him: the Parliament of Montenegro. This could be the first sentence of a novel written by Franz Kafka if he was with us today. While Kafka’s Josef K. was arrested and left to roam free through a court building to find a courtroom in which his destiny would be determined, Josef K. in this story is in a similarly peculiar situation: He does not know which court in Montenegro he should appeal to and present his grievances. This Kafkaesque reality is the result of a questionable interpretation of the law by Montenegro’s Supreme Court – just another piece in the demise of the country’s rule of law.

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