15 March 2024
Brazilian Judges Regulate Elections … and AI
Brazil has new regulations on AI and election interference. Also, in Brazil, the judiciary oversees elections. As municipal elections are coming up, we face a quite unique situation of technological challenges, untested laws, and unusual institutional arrangements. Although innovative, these regulations are constrained in their effectiveness and indifference to broader regulatory debates concerning the regulation of AI, showcasing an uncomfortable relationship between judicial and legislative powers regarding digital policy in Brazil. Disregarding the complexity of AI, the regulations legitimise the expansion of the judicial branch's power to deal with digital threats to democracy while not fully engaging with how these threats materialise through the development and use of AI. Continue reading >>
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22 December 2023
Sri Lanka’s Economic Crisis Before the Supreme Court
On 14th November 2023, the Supreme Court of Sri Lanka issued a landmark decision holding several high-ranking executive officials responsible for the economic crisis of 2021-2022. This was widely regarded as the worst economic crisis the country had experienced post-independence; it manifested itself in a rapid depreciation of the currency, dramatic shortages of fuel which saw vehicles in mile-long queues at fueling stations, and rolling electricity cuts throughout the island. In mid-2022, two petitions were filed in the Supreme Court alleging that several officials named as respondents were responsible for this economic crisis. In this blogpost, I argue that the court’s decision has significant implications for the scope of the fundamental rights jurisdiction, and for the court’s potential role in future controversies. Continue reading >>
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22 August 2023
Not With a Bang But a Whimper
The European Union’s smallest Member State saw a significant decree delivered on primacy last month. Yet, even domestically, this bomb exploded in the middle of a desert; little to no noise came of it nationally or at the EU level. On the face of it, this is undoubtedly a major legal development – the first of its kind since Malta’s EU accession in 2004. The flawed interpretation offered by the Court says much about the fundamental importance of constitutional reform and is not, as such, a sign of institutional anti-EU sentiment… yet. However, as the main (and practically only) media report on the case concluded, what happens next is anyone’s guess. Constitutional reform in Malta must be put squarely back on the table before it’s too late. Continue reading >>14 June 2023
Taking Separation of Powers Seriously
In Turkey's recent election, 15 ministers from the Justice and Development Party, chaired by President Erdoğan, were nominated as parliamentary candidates and elected as MPs on 14 May. Since none of the presidential candidates won an overall majority, two leading candidates, Erdoğan and Kılıçdaroğlu competed in a runoff vote on 28 May, in which Erdoğan secured the victory. Thus, the new ministers were neither appointed nor took office until after the runoff vote. Throughout this process, the former ministers, including the 15 elected as MPs, preserved their executive posts and titles. Should the 15 Erdoğan government ministers have resigned to run for parliamentary candidacy? And is there a constitutional incompatibility between ministerial and MP titles? The law is not always clear on these questions. This lack of clarity, we argue, can have serious consequences for the balance of power in a newly established governmental system. 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 >>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