21 December 2022
On the Nexus between Separation of Powers and Judicial Power
This exercise in comparative constitutional law shows how, paradoxically, positioning a country on either side of the spectrum of separation of powers structures may lead to similar curtailment of the judiciary’s power, though courts in the two opposing regimes may use very different, and even opposing, judicial doctrines to reach similar non-interventionalist results. Moreover, though scholars typically study these common law judicial doctrines independently of one another, they are all a manifestation of how strong or weak the separation of powers in a given country is. Ultimately, the judicial branch may supplement, but not supplant, the democratically elected political branches, irrespective of the separation of powers in the country in question
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05 July 2022
The Italian Surname Saga
On May 31, 2022, the Italian Constitutional Court (ICC) finally rendered its much-awaited decision (ICC, decision no. 131/2022) about domestic legislation on surname attribution. The judgment deserves closer attention for two main reasons. Next to fostering gender equality, it also exemplifies the new role of the ICC within the Italian constitutional order. Continue reading >>
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28 March 2022
How Emmanuel Macron’s Quest for Efficiency Undermines French Democracy
Emmanuel Macron presented his program for the next presidential election on Thursday, March 17. He plans to relaunch his major reform of the institutions to make them work more efficiently and reaffirmed his desire to have a “strong executive power”, that is, a President who is not encumbered by too many counterweights. This concern for efficiency is a clear sign of impatience with the democratic process. By letting the executive power decide alone, the whole balance of powers could be affected. Continue reading >>30 June 2021
Neglected Actors at the Conference on the Future of Europe
Judges are prominent actors with a significant impact on European integration. Yet, no references to them appear in the Joint Declaration on the Conference on the Future of Europe. This corresponds to a view, unsustainable in the age of extensive access to information, that judges sit in ivory towers and speak exclusively through their decisions that other actors then explain to the broader public. Continue reading >>
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13 May 2020
Kill the Chickens to Scare the Monkeys
As the Chinese saying goes, killing the chickens to scare the monkeys, China’s courts were quick to set examples of people who committed offences in relation to the country’s response to Covid-19 in order to deter potential offenders. However, the punishments of ordinary offenders and responsible officials highlight China’s constitutional setting – the dominance of the Communist Party in state affairs, and the political role of courts in times of national emergency. This is consistent with China’s self-proclamation – the centrality of the Communist Party’s leadership and the division of functions among state organs without separation of powers. Under such a setting, ordinary people and officials are subject to different rules and have different fates. Continue reading >>08 April 2020
Constitutional Crisis in Israel: Coronavirus, Interbranch Conflict, and Dynamic Judicial Review
The Covid-19 pandemic hit Israel in fragile political and constitutional times. After three consecutive national elections and during unprecedented and continuous constitutional crisis, it has deepened an interbranch conflict that has led to the High Court of Justice (HCJ) taking part, in real time, in a dynamic judicial review. The HCJ not only facilitated the functioning of the parliament but also expedited its oversight on the government’s use of emergency powers. Continue reading >>
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15 October 2019
‘Ze-Gate’: Excepting Accountability
On September 24, the democrats in the House of Representatives announced a formal impeachment inquiry of President Trump for allegedly having pressured Ukrainian President Zelenskiy during a call to probe Joe Biden, former US Vice-President and Trump’s political rival. The content of the conversation raises questions about the integrity of Ukraine’s President. Impeaching Zelenskiy, however, is not a viable option as Ukraine’s constitution sets a practically unattainable threshold for impeachment. Continue reading >>
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11 October 2019
Miller/Cherry 2 Goes to Kashmir
There are certain principles which emerge from Miller/Cherry 2 which are meaningful for cases involving judicial review of executive powers. The application of these principles, especially in cases where the line between the executive and legislature is thin (resulting in what Bagehot described as the ‘fusion of powers’), can guide comparative lawyers to hitherto underexplored areas of administrative law accountability of the executive to legislative bodies. Continue reading >>
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01 October 2019
The Rule of Law, not the Rule of Politics
On 24 September 2019, just two weeks after Parliament had been controversially prorogued by Prime Minister, Boris Johnson, the UK Supreme Court handed down a unanimous judgment holding that such prorogation was ‘unlawful, null, and of no effect’. Parliament was not and had never been prorogued. But this is not likely to be the end of such questioning of the fundamentals of the constitution and – in particular – the limits of executive power. Continue reading >>
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26 September 2019