19 February 2024
Restoration of the Polish Constitutional Tribunal as Reading the Constitution Forward
The question of how to restore the fallen and degenerated body that once was the Polish Constitutional Tribunal is finally to make its way to the Parliament this week. The stakes are clear: If we get lost in legalese and accept half-baked solutions, it will taint all ambitions and legislative projects aimed at restoring the rule of law in Poland. To avoid this mistake, the “fake court” should be “zeroed out” and newly appointed. Continue reading >>
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16 February 2024
Polish Re-Democratisation as “Building Back Better”
Since the new Polish government took power, it has taken first steps to restore the rule of law. These have been quite different in nature, from the soft appeals to comply with the case law of the CJEU to more uncompromising and confrontational measures, like taking control of the public broadcasting TVP. It is clear that restoring a damaged liberal democracy requires a different mindset than fighting its demise. While the latter aims to strategically delay the anticipated undemocratic endeavours, the former must constructively rebuild. I call this ‘Building Back Better’, akin to the UN risk-reduction approach employed to avoid future disasters. Continue reading >>14 August 2022
Extinguishing the Court
The three quasi-judges in the Constitutional Tribunal and their participation in its adjudication are like a spoonful of tar in a barrel of honey: they contaminate the whole of the Tribunal. That is why the whole of the Constitutional Tribunal should be replaced in the event of a electoral victory of the democratic opposition in 2023. Continue reading >>10 May 2022
De-AKPification
Opinion polls by Turkey’s reputable polling firms consistently indicate that the governing AKP and its de facto coalition partner, the far-right nationalist MHP, are losing their popularity and heading to a potential defeat in the upcoming presidential and parliamentary elections of 2023. As an anti-AKP victory, or at least the real possibility thereof, draws near day by day, a vital question arises: how should opposition forces treat AKP operatives in the judiciary and bureaucracy? Is it possible to “de-AKPify” ex- or soon-to-be-ex-AKP operatives? Continue reading >>24 February 2022
Universalism and Particularism in Constitutional Drafting
How can democratic constitutional reformers overcome the obstacles put in place by authoritarian constitution-makers? What are the foundational values that could compete for the attention of the constitution drafters? This question is a new iteration of the same old problem of law, democracy, and disagreement. Continue reading >>
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30 December 2021
A Matter of Pragmatism rather than Principle
Taking into consideration that the backsliding of Turkish democracy during the last ten to fifteen years happened in a piecemeal and often erratic way, only partially based on constitutional amendments, the reverse process should also be possible by gradual legal and, eventually, constitutional changes. Political pragmatism, based on a clear commitment to basic democratic values and societal reconciliation, might be more important for the sustainable recovery of Turkish democracy than a radical constitutional restart. Continue reading >>
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27 December 2021
The Iron Cage of Veneration
From my perspective, the most fundamental question that Arato and Sajó are asking is precisely how committed lawyers and constitutionalists should be to particular political systems that do not, at least on the surface, offer any grounds for optimism that the next election will “vote the rascals out of office” and enable forward movement to achieving the grand aspirations of a liberal constitutional order. Paradoxically or not, one might have more hope about Hungary, Poland, Chile, Brazil, or other countries unafflicted by “veneration” of a constitutional system that, left unreformed, serves as an iron cage, a “clear and present danger” to the actual achievement of liberal constitutional aspirations. Continue reading >>
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23 December 2021
Why Throw a Constitution out of the Window Instead of Making it Work?
If the constitution-making and amending by Fidesz with their legally obtained two-thirds majority counted as illegitimate, constitutional revision with a simple majority cannot be acceptable. If the sudden redesign of institutions gave reason for serious concern eleven years ago, it cannot be welcomed now. Continue reading >>
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22 December 2021
Handle with Care
I will, in what follows, seek to answer the overarching question of this symposium, starting from a cautionary Romanian rule of law (RoL) reform tale. Other things being equal, its lessons may be extrapolated to the specific case of hopefully post-Orbánite Hungary. The specific context of Hungary presents, at least apparently, the Romanian problem in reverse, namely, the transition from an authoritarian nationalist regime to a pluralist, European, rule of law order. Continue reading >>
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21 December 2021