19 December 2024
At Risk of Capture?
On December 21st, the mandates of three judges of the Italian Constitutional Court will expire, creating a total of 4 vacancies. While Parliament is responsible for filling the seats, political parties are far from reaching an agreement on who should get appointed. The majority’s strategic obstruction of the appointment process in combination with Meloni’s assertions that it is up to her political majority to “deal the cards” for these elections raise the specter of the Court’s politicization. While the Italian legal system has several safeguards to preserve the impartiality and effectiveness of its Constitutional Court, these do not immunizes it against practices that could slowly and almost imperceptibly undermine its independence. Continue reading >>
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08 January 2024
One-sidedly Staffed Courts
In Poland, the new parliamentary majority elected on October 15 is confronted not only with a president brought into office by the PiS party but also with a constitutional court made up exclusively of judges elected under the aegis of PiS. Any effort to restore the rule of law in the Polish judiciary is likely to meet resistance from these veto players. The difficulties to be expected for the new majority in dealing with the rule of law deficiencies that have piled up in the Polish justice system, and especially in the Polish Constitutional Tribunal since 2010 (on these difficulties here, pp. 227 ff., and here) draw attention to an underlying problem to be witnessed not only in Poland, and not only in other countries where democracy and the rule of law have deteriorated or never existed: the problem of courts, and in particular constitutional courts, with a blatant lack of political balance in their composition. Continue reading >>
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12 October 2023
Judicial Transitology
The rule of law crisis in Poland consists of several elements – undermining the independence of courts, politicization of disciplinary proceedings against judges, and lack of legal certainty. None of them, however, raises so many doubts and concerns as the status of judges appointed or promoted upon the request of the politically captured National Council of Judiciary (NCJ). In this blog post, we analyse the diverse composition of the group of judges appointed or promoted upon the motion of the NCJ from 2018. We also discuss the relevant jurisprudence of national and international courts and the current state of debate concerning this problem and possible solutions. Continue reading >>
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27 January 2023
The Indian Supreme Court Collegium Picking its Battle
In an unprecedented move, the collegium of the Supreme Court of India on the 17th and 18th of January, 2023, passed resolutions calling out the executive’s delay in the judicial appointments of five advocates by publicly countering the government’s objections against their appointment. In this piece, I discuss how the Supreme Court collegium has confronted the discriminatory treatment of persons who openly identify as a part of the LGBTQIA+ community in the process of judicial appointments by standing up to the executive’s bullying. The piece also looks into how the collegium has confronted the union government’s attempt to suppress dissent among advocates and why these resolutions are highly consequential. Continue reading >>25 January 2023
War over Israel’s Judicial Independence
The new Israeli government wasted no time in initiating an all-out attack on the independence of the judiciary. It is promoting in full speed two parallel proposals to reform the judiciary in the hope that at least one of them, or a hybrid of both will be codified. The government claims that its proposed judicial reform will promote a more democratic and representative judiciary. Yet, a careful analysis of its proposed reform suggests that the government intends to fully politicize the judiciary. It will change the process of appointment to the Judicial Selection Committee, placing control in the hands of the government. Simultaneously, it will neutralize the ability of the opposition in the Knesset and the professional elites (the Justices and the Bar Association) to protect judicial independence from governmental takeover. Continue reading >>
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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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13 May 2022
Drifting Case-law on Judicial Independence
In a preliminary ruling of 29 March 2022, in case C-132/20 Getin Noble Bank, the CJEU answered questions on judicial independence of judges appointed under an undemocratic regime and of judges appointed before 2018 in an allegedly flawed process. Taking a highly formalistic approach, the Court seeks to preserve judicial dialogue between itself and the national judges – at the expense of the rule of law and judicial independence. Continue reading >>
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23 April 2021
To Trust is to Choose
Countries where state institutions are perceived as corrupt all share a similar dilemma: Why should citizens trust a candidate for public office who was selected by a state body which citizens simply don’t trust? In light of this dilemma, Ukraine came up with an innovative mechanism: Giving international experts a decisive role in selecting candidates for public office. Continue reading >>21 April 2021
Repubblika: Anything new under the Maltese Sun?
By now, the rule of law and the principle of judicial independence are a continuous presence in the ECJ’s case law. Most often, these cases concerned the situation in Poland or Hungary. The case of Repubblika, for a change, concerned Malta. In Repubblika, the Court has added Article 49 TEU to the list of EU law provisions that are invoked in the fight against rule of law backsliding. Continue reading >>
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