Articles for tag: Demokratieabbau, Knesset, Oberster Gerichtshof (Israel), Verhältnismäßigkeit

The Folly of the Israeli Government in Restricting Reasonableness

On Monday, July 24, the Israeli legislature passed a constitutional amendment that would constrain the courts’ ability to use the reasonableness doctrine. The reasonableness doctrine is a common law doctrine developed by the Israeli courts to review executive decisions. Without the reasonableness doctrine, Israel is more conflicted than ever, and vulnerable to the spread of the scourge of corruption. The government shot itself in the foot both domestically and internationally.

26. Juli 2023

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An Unreasonable Amendment

Amidst massive protests taking place in Jerusalem and throughout the country, on July 24th the Knesset (Israeli parliament) passed  Amendment Number 3 to Basic Law: The Judiciary, curtailing the power of Israel’s Supreme Court. The amendment determines that no court, including the Supreme Court seating as the High Court of Justice, may engage with and/or pass judgment on the reasonableness of any “decision” of the government, the prime minister, or any minister; nor may a court give an order on the said matter. The coalition government’s choice to go ahead with the legislation notwithstanding the internal and external pressures may now only deepen the multi-layered crisis the country has been in since January.

24. Juli 2023

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Did Israel Lose its Sanity?

Israel is in the midst of an acute struggle over its constitutional identity. We are witnessing a government adamant about revolutionizing Israel’s constitution (“Basic Laws”), which may typically be amended by a simple majority of the legislature and is thus prey to the whims of an extreme government. The most recent move on the government’s agenda, passing a constitutional amendment that would severely restrict the reasonableness doctrine, would bring Israel closer to the brink of constitutional chaos. In this blog, I explain the theoretical arguments in favor and against the proposal and lay out the implications, should this proposal go through, given the government’s true, concerning motivations that are already evident on the grounds.

12. Juli 2023

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Restoring the Rule of Law By Breaching It

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The judicial reform recently passed by the Hungarian Parliament ostensibly seeks to restore the independence of the judiciary and the rule of law in Hungary. Crucially, it is also a vital step for the government to gain access to the 27 billion in frozen EU funds. While some might think that the EU’s strategy has been successful, a closer look shows that while the reform has the potential of improving judicial independence, the procedure leading to its adoption shows that there is no real commitment to restore the rule of law. In particular, throughout the law-making process the government consistently flouted the principle of legality, including the requirement of transparent, accountable, democratic and pluralistic law-making.

10. Juli 2023

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SLAPPs, Daphne’s Law, and the Future of Journalism

Media freedom has many dimensions. Whereas the EMFA deals directly with media oversight bodies and the likes, the proposed anti-SLAPP (strategic lawsuits against public participation) directive weighs into a more niche but crucially important topic: the silencing of journalists through bogus litigation. Such bogus litigation - or SLAPPS - does not intend to „win” cases but to slowly but steadily dry out journalists financially, emotionally, and socially. Currently, the Council of the European Union and the European Union Parliament are working on their proposals of the directive. It is crucial that the Commission’s proposal will not be watered down.

15. Juni 2023

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EMFA and its Uphill Battle for Media Freedom and Democracy in the EU

The European Media Freedom Act, primarily designed to safeguard the EU media market, can also serve as an important tool in preserving the rule of law in member states such as Hungary and Poland, that have experienced an alarming assault on media freedom and pluralism in the past decade. This contribution critically evaluates the potential of the proposed European Media Freedom Act (EMFA) for addressing the ongoing issues in media freedom in Poland and Hungary.

14. Juni 2023

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Without Enforcement, the EMFA is Dead Letter

Besides important substantive provisions, the EMFA proposal contains various mechanisms concerning the role of national regulatory authorities, the newly established European Board for Media Services (Board) and the Commission. However, this blogpost argues that the proposed tools fail to effectively improve the already available enforcement mechanisms in EU law. We offer three recommendations to improve enforcement of media law and policy in the EU, while remaining within the boundaries of the competences as established by the EU Treaties.

13. Juni 2023

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The Key to Ensure Media Pluralism in the EU? A Unified Framework

Media freedom is one of the necessary conditions for democracies to function. Yet media freedom is currently not guaranteed in all European Union countries. The European Media Freedom Act proposed by the European Commission in 2022 aims to protect and foster media pluralism across the EU block and, while some changes would need to be made to strengthen the proposal’s efficacy, monitoring on the ground shows that a common European framework is indeed needed. While there are already several harmonisation measures that revolve around media – such as the Audiovisual Media Services Directive (AVMSD) – this is the first text that clearly and specifically addresses the media market in and of itself, which marks a paradigm shift in EU media regulation.

12. Juni 2023

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An Inconvenient Constraint

On 1 July 2024, Hungary is set to take over the Presidency of the Council of Ministers. The European Parliament and the Meijers Committee issued reports questioning whether Hungary should be blocked from doing that. These proposals raise questions of political feasibility, however, especially as one may doubt if a Hungarian Council Presidency can do much practical damage to the EU. In addition, they also raise questions of legal feasibility. A logical prerequisite for preventing Hungary from holding the Presidency as long as it breaches the rule of law is that doing so is consistent with the EU’s own rule of law. I doubt it is.

7. Juni 2023

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Boiling the Frog

In the wake of Turkey's recent presidential elections, previous blogposts objected to characterizing authoritarian regimes such as Turkey, Hungary and India as ‘competitive’ solely by virtue of regular elections, which are formally free but fundamentally unfair. However, this blogpost argues that the prior ones missed the main problem in Turkey: The playing field in Turkey is not only “massively tilted in favor of Erdogan” now; it has always been tilted in favor of the majority – long before Erdoğan. This blogpost discusses the slow death of Turkish electoral competitiveness. First, I describe the politico-legal context that enabled Erdogan’s rise. Second, I contrast the developments in Turkey regarding election competitiveness to European legal standards and strikingly late political demands.

2. Juni 2023

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