07 December 2023
Beating a Dead Horse
With the view of potentially revising how the EU Council’s Annual Rule of Law, the Spanish Presidency of the Council had sent out a “questionnaire for the Member States on the evaluation of the Council’s annual rule of law dialogue. The provided answers will inform conclusions to be adopted following the General Affairs Council scheduled for 12 December 2023. Following the disclosure of the MS’ answers to this questionnaire, this post will discuss the added value of this discursive and secretive tool to address systemic threats to or violations of the rule of law. I argue that the answers reveal the dialogue to be an ultimately toothless and partially incoherent exercise that relies excessively on the good faith of its participants and lacks accountability by design. Continue reading >>
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06 December 2023
We Are Not Helpless
The current debate on how to restore the standards of a democratic state under the rule of law in Poland reminds me of the dilemma faced by King Rex, as described by Lon L. Fuller. Like the king constantly falling into a trap we equally seem to be trapped. We know what should be done and what compliance with the rule of law means, yet we try to convince each other that every conceivable way out is bad. So do we need to refrain from taking any action and look in frustration at the systematic deformation of mechanisms that have worked quite well in Poland for a quarter century and protected us from pathology and the abuse of law? Continue reading >>13 November 2023
A Second Term for “the World’s coolest Dictator”?
On October 26, Nayib Bukele, current President of the Republic of El Salvador, officially registered his candidacy for the presidency. This is in clear violation of El Salvador’s Constitution which prohibits the renewed, consecutive candidacy of a sitting president. In the "Western" media, Bukele has mostly made the news for establishing "mega-prisons" and conducting mass arrests under his watch. In this blogpost, I highlight the political moves that Bukele has made to legitimize his rule and methods, including his repeated extension of El Salvador’s state of emergency and his capture of the Constitutional Chamber. Together with his renewed candidacy, his rule has destroyed El Salvador’s adherence to its own constitutional framework. Continue reading >>
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26 October 2023
To Hell, on a White Horse
Slovakia voted on the final day of September 2023. The electoral rhetoric, results and subsequent coalition-building give grounds to expect illiberal constitutional changes. More attention is needed towards the Constitutional Court’s capacity to resist such illiberalization, as Slovakia may join Hungary in a revamped illiberal Visegrad alliance. Continue reading >>
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25 October 2023
The Mexican Standoff
In a historical march, tens of thousands of judicial staff, lawyers, and judges – including at least one justice of the Supreme Court – took to the streets of Mexico City on 22 October 2023. Chanting slogans such as ‘¡El Poder Judicial de la Federación no se toca!’ and ‘¡Somos los garantes de la Constitución!’ protesters rallied against the Mexican government’s plans to slash the federal judiciary’s (Poder Judicial de la Federación, PJF) funding. In this contribution, we analyse what this dispute is all about and explain why the government’s plans jeopardise the independence of the Mexican judiciary. In particular, we argue that the recent, seemingly innocent financial measures come at the cusp of an alarming authoritarian turn. Finally, we offer some tentative thoughts on what the endgame in this quickly escalating dispute might look like. Continue reading >>
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13 September 2023
Game of Chicken
Yesterday, on September 12th, the Israeli Supreme Court, sitting en banc, heard eight petitions challenging a hotly contested constitutional amendment. The Court has rarely sat en banc in the past, and this is the first time that it sits in a composition of fifteen justices, attesting to the importance that the Court attributes to this decision. The amendment modifies Basic Law: the Judiciary, which protects judicial independence, lays out the process of judicial selection for all the state courts and grants the Supreme Court the authority to supervise state action when the Court convenes in its capacity as a High Court of Justice. In this blog, I will explain each side’s arguments and the strategic considerations behind the Attorney General’s unprecedented move to push the Court to explicitly invalidate a constitutional amendment. I will show how both sides ultimately found themselves dragged into a game of chicken from which they could not back down. Continue reading >>
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08 September 2023
The False Hope of Israel’s Protestors
The Israel Supreme has become a major mobilizing source for the weekly mass protests against the reform that have been taking place in the last six months in many Israeli towns. Tens of thousands of liberals and conservatives rally around this institution, if not around anything else, confident that the Court is capable of preventing the government from irreversibly breaching the democratic walls. Unfortunately, this confidence is both unfounded and likely to sabotage the anti-reform movement. Given its past rulings and when keeping in mind the conservative nature of the institution of the Israeli judiciary, it is safe to say that the Israel Supreme Court will not be able to salvage the country from a democratic backsliding driven by a determined executive. Continue reading >>
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04 September 2023
Decolonising Criminal Law?
On August 11, the last day of the ongoing session of Parliament, the Indian Government tabled a notice that it wished to introduce three new bills on the Floor of the House for consideration. These were proposed statutes to replace the holy trinity of Indian criminal law: The Indian Penal Code of 1860, the Criminal Procedure Code of 1973, and the Indian Evidence Act of 1872, were to be replaced by the Bharatiya Nyaya Sanhita, the Bharatiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam respectively. Even though the reform was marketed as an attempt to break from the colonial origins of criminal law, it actually represents a resurgence of the colonial-style authoritarian approach, rather than an effort to build upon the relatively modest progress made half a century ago in advancing individual freedom and civil rights. Continue reading >>01 September 2023
Direct Democracy and Indirect Electoral Campaign
In a last-minute attempt to grow voter presence at the booths on the 15th of October, Poland’s ruling party announced it would be combining the upcoming parliamentary elections with a referendum vote on not one, but four issues. This provides the governing powers with an additional electoral campaign just for them – misnamed as the referendum – to draw public attention to the questions asked. After all, they were drafted by those seeking reelection and focus on matters most used in their political agenda. Continue reading >>24 August 2023
On the State of Academia in India
The Economics Department at India’s Ashoka University received an unexpected visit from the Federal Intelligence Bureau. The reason for this visit was a paper titled ‘Democratic Backsliding in the World’s Largest Democracy’ by Sabyasachi Das, an economist. In his research, Das meticulously examined 11 contested seats during India’s 2019 general elections and uncovered imbalanced outcomes that favored the ruling party, BJP. Das noted that ‘the results point to strategic and targeted electoral discrimination against Muslims, in the form of deletion of names from voter lists and suppression of their votes during election, in part facilitated by weak monitoring by election observers.’ The subsequent visit by the Federal Intelligence Bureau is just one among several incidents that highlight the precarious state of academic freedom in India. Continue reading >>
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