Band 15, Heft 2

The question of how to understand and conceptualize inter-institutional interaction between courts and legislatures, particularly in the context of constitutional challenges, has drawn considerable attention over the years. This question is of special importance to the apprehension of constitutional dialogue as simultaneously describing and shaping constitutional interaction. This article focuses on the descriptive aspects of the constitutional dialogue and through them proposes a reconceptualization of constitutional dialogue, which is not based on the mere existence of legislative responses or the number thereof, or on the existence of different structural constitutional mechanisms. Instead, this reconceptualization is based on the de facto use in constitutional practices during the routine constitutional examination process, by the judiciary and political branches altogether. The article introduces a breadth-and-depth approach, which observes many constitutional decisions and legislative responses and uses them to analyze the nature of courts-legislatures dynamics. These insights are derived not only from the mere existence of a ruling or a statute, but also from the content and design of the institutional outcome thereof. The conclusions drawn using this approach are comprehensive, providing insight into the constitutional and dialogic interaction between courts and legislatures in each constitutional system, as well as identifying trends and changes as they occur. The article also offers an application of this approach to Israeli jurisprudence, illuminating the depth and complexity of this interaction, and enabling us to recognize it as a constitutional system with strong dialogic characteristics.

2020 marked the 14th consecutive year of democratic decline in the world, and South Asia has been no exception to this global phenomenon. This paper focuses on one particularly egregious onslaught on democracy in India. In August 2019, the Indian government stripped the former state of Jammu and Kashmir of its special status under the Constitution of India, and reorganized its territory into two union territories. The government’s use of its regional emergency powers provided the legal basis for operationalizing these changes. Their use in this manner raises the question of the proper scope of these powers, independently of whether the proclamation of the regional emergency was constitutionally valid. What, if any, are the substantive limitations that constrain the center’s exercise of regional emergency powers? This paper offers a partial response to this question. It relies on the basic structure doctrine to theorize a substantive limitation on their exercise and situates this limitation in the wider legal and historical landscape on regional emergency powers. Articulating it as the ‘Federalism Constraint’, the paper argues that, even when a validly proclaimed regional emergency is in force in a state, the center cannot exercise its regional emergency powers to effect a permanent change to the detriment of the state, as doing so would damage federalism, a basic feature of the Constitution. On this basis, the paper argues that the recent changes to the status of the former state of Jammu and Kashmir are unconstitutional.

The multiple COVID-19 vaccines developed over the past months are typically thought of as the only means to meet the challenges posed by the current pandemic. Still, public opinion on vaccines is heavily divided. And, of course, discussions about compulsory vaccination, oftentimes based on fundamental rights arguments, tend to become heated. This note This note builds on the arguments developed in the author’s master thesis Anja Krasser, ‘Die grundrechtliche Zulässigkeit einer Impfpflicht in Österreich’ (Universität Graz 2019) which have previously been summarized in Anja Krasser, ‘Zur grundrechtlichen Zulässigkeit einer Impfpflicht’ (2020) 2020/206 RdM 136. analyses the issues at hand based on the case law of the European Court of Human Rights (ECtHR).