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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17 January 2023
A Possible Regime Change in Israel
Israel is rapidly undergoing a regime change/constitutional revolution - Hungary style - as reflected by various draft bills placed on the Knesset’s agenda during the past days, accompanied by a grand plan of reform presented by the Minister of Justice on January 4th. The new Israeli government only took office a few weeks ago, but these plans, evidently, were prepared carefully over several years. If successful, Israel may fully lose its democracy. Continue reading >>18 November 2022
The Tangible and Imminent Threat to Israel’s Judicial Independence
A fierce debate is raging these days about the democratic implications of the Israeli 2022 elections to the twenty-fifth Knesset (legislature). Yet, those who read the platform of the Religious Zionist Party—as expressed in the program "Law and Justice-Reform of the Judicial System," signed by the members of the Knesset, Bezalel Smotrich and Simcha Rothman—cannot ignore the real and imminent danger to Israel’s judicial independence. The top item on their agenda, published during their election campaign, is changing the judicial appointment process. Continue reading >>
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11 November 2022
#DefendingTheDefenders – Episode 1: Poland
We Need to Talk About the Rule of Law is back for a second season that focuses on the impact of rule of law erosions on attorneys. In the first episode, we talk to MIKOŁAJ PIETRZAK. He is an attorney and the Dean of the Warsaw Bar Association, which is the oldest professional legal association in Poland and the administrative association of attorneys in Warsaw. Continue reading >>
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17 October 2022
Rechtsfiguren als politische Waffen
Der US Supreme Court wird von vielen nicht mehr als ein (und sei es politisiertes) Gericht angesehen, sondern als ein durch und durch politischer Akteur, dessen Agenda darin besteht, das Programm der Republikanischen Partei auf gerichtlichem und das heißt: gegenmajoritärem Wege durchzusetzen. An dieser polarisierten Grundwahrnehmung dürfte sich auch in der am 3. Oktober eröffneten neuen Sitzungsperiode nichts ändern. Im Gegenteil. Es stehen erneut Entscheidungen von großer politischer Tragweite an. Unter anderem wird das Gericht in Moore v. Harper – „the most important case for American democracy in the almost two and a half centuries since America’s founding“ – über die Anerkennung der independent state legislature theory zu entscheiden haben. Continue reading >>27 September 2022
Eroding Indonesian Local Democracy
Under the administration of President Joko Widodo (Jokowi), Indonesia undergoes a period of democratic decay and constitutional demise. In a recent example, there will be at least 170 interim regional heads leading their regions without any constitutional democratic legitimacy until the next General Elections in 2024, if the current malpractice by the Ministry of Home Affairs remains unchanged. Like the climate crisis, democratic backsliding is not some future grim prospect, but has already arrived and is well-underway. Continue reading >>
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07 April 2022
The Blame for Defeat and the Morality of Politics
The increased support of Fidesz by the majority of voters, who casted votes on 3 April despite Orbán’s immoral stance towards Putin’s war, and also these voters’ little appreciation of freedom and almost none for limiting power, raises the question whether, besides the autocrat, the opposition, and the elite, we cannot blame also the ‘people’ for the opposition’s defeat and Fidesz’s victory. Continue reading >>17 November 2021
Restoring Constitutionalism
How to restore constitutionalism and the rule of law is a somewhat neglected problem among constitutionalists. Thanks to forthcoming elections, some countries like Hungary where “democratic backsliding” has taken place, may have the opportunity to restore the rule of law. Is a democratic community bound to follow constitutional rules of dubious democratic nature? Or can these be replaced in violation of legality, for example in an extra-parliamentary democratic process? If so, under what conditions? We call on constitutionalists to provide answers to these questions and formulate alternatives between the two extremes of legality and paralysis, possibly involving an element of illegality, but compensating for this by dramatic increase of democratic legitimacy. Continue reading >>06 October 2021
Towards Institutional Guarantees for Democratic Rotation
In a recent Advisory Opinion the Inter-American Court of Human Rights established that indefinite presidential re-elections constitute a violation of Inter-American human rights standards. In doing so it sets substantive limits to states regarding the design of their political and electoral systems. This is a far reaching and bold move. Continue reading >>
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10 May 2021
The ECtHR Steps into the Ring
For the last two years, the fight for safeguarding the principle of the rule of law in Poland has been dominated by the ECJ’s case law. During this, the Strasbourg Court has mostly been sitting in the bleachers. Yet, with its Xero Flor judgment of 7 May, it strapped on its gloves and stepped into the ring. It concluded that the Polish Constitutional Tribunal, in its current composition, cannot be seen as a tribunal established by law. The decision will undoubtedly have major political and legal consequences. Continue reading >>
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