20 November 2024
Taming the Brazilian Supreme Court
The recent Proposal for Constitutional Amendment No. 28/2024 weakens constitutional review by allowing Congress to suspend certain decisions of the Supreme Federal Court. This article identifies several exaggerated and premature criticisms present in the public debate. Additionally, it explores how models of weak judicial review, successfully integrated by numerous established democracies, may foster constitutional dialogues and collaboration, potentially reducing counter-majoritarian frictions and enhancing democratic principles. Continue reading >>
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20 June 2024
The Emir Giveth, the Emir Taketh Away
Kuwait, a democratic outlier in a hopelessly authoritarian Gulf, is facing a constitutional crisis under its new Emir who is intolerant to his country’s never-ending political gridlocks. Over the next four years, expect a constitutional overhaul. Instead of emulating the Kais Saied model, which would scrap the entire democratic experiment, the new constitution should address the key flaws in a six-decade-old political system that has been plagued by persistent stalemates between the government and parliament. Continue reading >>
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28 November 2023
Prize and Premiership
Since the beginning of November, Italy has been discussing a constitutional reform that aims to radically change the Italian governmental system. The bill provides that the Prime Minister (more correctly: the President of the Council of Ministers) is elected by universal suffrage in a popular vote concurrent with the Chamber of Deputies and Senate elections. This move is often referred to in journalism as ‘Premiership’ (Premierato). n this post, I would like to focus less on the characteristics of the alleged ‘Premiership’ and more on the attempt to incorporate detailed electoral rules into the constitution. First, a brief history of the ‘majority prize’ will help the reader to better understand the context in which this reform was born. This will be followed by a critique of the proposal to enshrine the ‘majority prize’ in the constitution. I argue that, as currently drafted, the reform bill risks leading to an unconstitutional constitutional amendment. Continue reading >>16 November 2023
Is France Desacralizing its Constitution?
From 2002 to the present day, hundreds of constitutional bills have been proposed by delegates in Parliament, with forty of them being introduced within a year following the renewal of the Assemblée Nationale after the 2022 legislative elections. Each bill contains unique and far-reaching provisions. The proposals illustrate a shift within secondary constituent power, which no longer perceives the Constitution as a sacred text, the supreme standard of the French legal order, but as a wish list, and as an object of political communication subject to trivial media considerations. Continue reading >>
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16 November 2023
Paving the Way to Autocracy?
On November 3, 2023, the Italian Council of Ministers approved a Bill to amend the Constitution, encapsulating what Giorgia Meloni’s Cabinet advertises as a measure to enhance executive stability and streamline policy implementation for medium to long-term objectives. The real goal appears to be cementing the Prime Minister’s grip on power after general elections, as evidenced by the intention to enshrine the majority bonus in the Constitution. Yet, from a constitutional law perspective, the majority bonus raises a fundamental issue related to how the Italian Constitutional Court interprets the eternity clause in the Constitution. Continue reading >>
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15 November 2023
Between Recalibration and Distortion
In its current form, the project to change the form of government that the Italian government headed by Ms Giorgia Meloni is preparing to present to the Senate seems difficult to accept. The project claims to address the issue of unstable and short-term cabinets in Italy (65 in 75 years, one every 12 months from 1948 through 1994 when a new electoral law was applied; still one every 21 months thereafter). Unfortunately, it is both poorly drafted and contains contradictions that make it not only impracticable but of dubious functionality with respect to the very objectives it proposes to achieve. However, as it has been decades since the problem the draft says it wants to tackle has been acknowledged, I shall assume its proponents' good intentions and suugest how the text could be improved. Below I briefly describe the project, trace its distant and recent origins, indicate what it is lacking and how it should be changed. Continue reading >>
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13 October 2023
Reviving a Corpse
The political co-optation of the Constitutional Tribunal has eliminated its role in Poland’s checks and balances. The judges, although associated with the ruling party, are conflicted and some of them refuse to rule, the number of proceedings has fallen dramatically, and the Tribunal's authority has all but disappeared. It is not enough now to pick it up, shake it off, straighten it out, and put it back to where it was in 2015. Instead, if the opposition wins the election, it must rebuild an institution that is both an effective constitutional player, capable of checking the government and a trustworthy and reliable avenue for Polish citizens to assert their constitutional complaints. Continue reading >>
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26 May 2023
Finding a Constitutional Equilibrium
The beginnings of Georgian constitutionalism go back substantially to the first years of Georgia's first democratic republic (1918-1921). On 26 May 1918, Georgia declared itself independent from Russia, establishing a democratic republic and its first constitution in 1921. Arguably, it had recognized, collected and mixed the best possible practice of constitutional doctrines of the time. Although the current 1995 constitution bases its legitimacy on the first constitution, it was only through the constitutional reform of 2017-2018 that it was modernized to return to the achievements of the first Constitution of 1921. Continue reading >>
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17 March 2023
Separating Substance from Procedure: How to Address the Israeli Constitutional Crisis
Many proposals to resolve the current Israeli constitutional crisis have been recently advanced. Yet, most of them are arguably unlikely to bring about a compromise. This is so not because their content cannot be accepted by the parties involved, but because they do not address the substantive concerns of the parties. Israel's constitutional crisis results from the fact that the parties to the conflict shape their proposals concerning the decision-making process in a way that is conducive to their short-term substantive interests. Any proposed solution must therefore separate substantive questions from procedural and institutional ones. Continue reading >>
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19 January 2023
The Populist Constitutional Revolution in Israel
Israel’s Minister of Justice has published memorandums outlining the (first) major steps in the constitutional overhaul planned by Netanyahu’s new government – an overhaul at the epicenter of the rise of constitutional populism in Israel. The paradoxes of Israeli constitutional law make it vulnerable to such a populist attack, which occurs within a specific ethno-national context involving ongoing military occupation. Continue reading >>
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