More than justices, protagonists of the political debate? The Brazilian electoral governance model under scrutiny

The judicialization of megapolitics in Brazil is the result of the extensive constitutionalization of important rules of political competition and the adoption of electoral governance model that attributes to Judiciary the rule making, application and adjudication of Electoral Law. Thus, the institutional consortium between the Superior Electoral Court and the Federal Supreme Court plays an important role in maintaining the minimum conditions of the democratic-representative arrangement. Recently, the electoral process has been questioned by its “failures” and “unreliability”, with the possibility of non-acceptance of the electoral result being raised. In a system in which constitutional amendments are constantly invoked and seen as an important variable in the political debate, our research explores how the Brazilian Judiciary will arbitrate the 2022 elections, but will also have its institutional format, functions and prerogatives discussed by the actors in dispute.

Electoral abusivism in Italy. Selected aspects of the issue

The paper proposal aims to analyze the abuses related to the election law for the Italian parliament after 1993, which occurred at all levels of the law – creation, application, interpretation, operation, and observance. The number and size of law abuses or circumvents concerning the Italian parliamentary electoral law in the last 30 years mean that we can talk about a new phenomenon, the so-called electoral abusivism. This very phenomenon contributes to frequent changes to the parliamentary electoral system and, consequently, to the instability of the law. The article uses mainly legal-dogmatic and comparative legal methods

What can be done against political parties that attack the Brazilian Constitution?

The banning of political parties that threaten constitutional values is one of the remedies prescribed by the militant democracy. Albeit its effectiveness remains controversial, this weapon may still have a value in times of democratic erosion. The Brazilian constitution does not entail, at least explicitly, the banning because of such reason, but its Article 17 does establish that the extinction of parties shall safeguard sovereignty, democracy, party pluralism and fundamental rights. Since they are a fundamental element of democracy in Brazil, monopolizing candidacy and receiving public funding, their autonomy cannot be taken as absolute. Drawing from the restraints placed onto parties by the military regime and the concerns that influenced the democratic constitution, if a party aims to undermine the constitution, there is no constitutional obstacle to Judiciary to ban it from the political arena.

States of Emergency and Competing Claims of Constitutional Erosion: Canada, COVID-19 Measures, and Narratives of the “Freedom” Convoy

In early 2022, Canada instituted COVID measures, including a vaccination requirement for truckers crossing the U.S. Border. Competing narratives immediately emerged. Some argued that the measures were necessary to control the pandemic. Others argued that the measures were an overreach. A “trucker” convoy, claiming to be seeking “freedom,” occupied Ottawa for 3 weeks and also blockaded several Border crossings. The Prime Minister made the controversial decision to declare a national emergency, which lasted for almost 2 weeks and ended the blockades, but added another layer of competing narratives to this fraught situation.

A common thread through these narratives is a claim that constitutional protections have eroded, although views vary widely as to the mechanism of this claimed erosion. This paper aims to deconstruct some of these more generalized narratives about the convoy to argue that, while much can be critiqued in this situation, it did not suggest constitutional erosion.

Constitutionalism, Populism and Agamben’s State of Exception

Populism and its effort to supplant constitutionalism in modern democracies is on the increase. This study therefore examines the relationship between populism and constitutionalism by adopting Agamben’s State of Exception theory. In this theory, a legal system has two diametrically opposed elements which are norm and anomie in a pull-and-push relationship. Where norm pushes out anomie, a state of utopia has occurred. On the other hand, where anomie completely obliterates norm, a state of annihilation has occurred. Therefore, this study argues that a legal system contains both constitutionalism and populism in a diametrically opposed, push-and-pull relationship. Where constitutionalism pushes out populism, a state of democratic utopia has occurred. Where populism completely obliterates constitutionalism, a state of annihilation has occurred.

Court-Packing and Democratic Backsliding: A Necessary Relationship? (online participation)

This paper distinguishes two types of court-packing based on their effects on constitutional democracy. A first type occurs when politicians manipulate the composition of courts in order to implement public policies. This has a negative effect on judicial independence without producing regime change. A second type occurs when politicians alter the composition of the courts in order to dismantle democracy. I explain the different effects of these two types of court-packing by comparing two Latin American cases. In Argentina, Carlos Menem (1989-1999) packed the Supreme Court in order to implement neoliberal economic reforms. In contrast, Hugo Chávez (1999-2013) in Venezuela packed the Supreme Court in order to have loyal justices to assist the executive in undermining of liberal democracy. The evidence I gathered comes from elite interviews, judicial rulings, newspapers, reports by international organizations, memoirs, and works by constitutional law scholars.