The 2018 constitutional coup of Sri Lanka: the role of the judiciary and the constitutional culture

Sri Lanka, throughout its political history, oscillated between dark periods of democratic abuse and its attempts to regain a more balanced constitutional culture. In October 2018, Sri Lanka was plunged into an unprecedented constitutional crisis when the President attempted to remove the Prime Minister and then moved to prematurely dissolve parliament. This reversal of democratic gains and the legality of the executive action were brought before the final arbiter: the judiciary. The paper focuses on the role of the judiciary in particular and the resilient constitutional culture at large. It argues that the 2015 democratic transition and the constitutional reform that followed, empowered judicial independence and produced a democratic, rights-based constitutional culture that reinvigorated Sri Lanka’s core commitments to democracy and the rule of law.

On Brexit and Secession(s)

The present paper aims at understanding the complex relationship between Brexit and secession by focusing on three aspects. First, it compares Article 50 TEU with constitutional provisions that allow for secession. Second, it explains the constitutional framework concerning the possible independence of Scotland and reunification of Ireland. Third, it discusses why a solution to the ‘Irish border’ conundrum that would entail a much closer relationship of this region with the EU than the rest of the UK should be seen as a pragmatic solution that protects the fragile balance struck by the Good Friday Agreement rather than as an annexation of Northern Ireland to the EU. As such, the chapter is a testament to the intertwined nature of the European constitutional landscape and the compound EU polity even in an area such as the one that deals with the withdrawal of a State from an international organisation; an area where States are supposed to possess almost unfettered autonomy.

A Century of Constitution-Making Processes in Latin America: An Inclusiveness-Based Comparative Analysis (1917-2016)

Our research project surveys all the constitution-making processes that took place in Latin America from 1917 to 2016 in order to determine their level of inclusiveness. A novel aspect of this study is that it distinguishes between two types of inclusiveness, procedural and effective, and therefore, it provides a more in-depth assessment of the degree of inclusiveness during the constitution-making processes. We found that although most constitution-making processes can be described as procedurally inclusive, only few of them met minimal democratic conditions; consequently, most constitution-making processes could not be described as effectively inclusive. On the other hand, we also identified a relationship between higher procedural inclusiveness and higher democratic conditions. Finally, both procedural inclusiveness and democratic conditions have gradually risen through the years, particularly in the last decades.

Turkey’s Switch to Presidential System: Presidentialism à la Turca or Latin-American style of presidentialism?

This article focuses on the switch from parliamentary to presidential system in Turkey. The 2017 constitutional amendments were introduced after a failed coup d’état and were approved by a referendum, held under a state of emergency. Its supporters have argued that it is a uniquely designed government system while its critics have argued that the transformation would produce a “Latin American-style” or “executive” presidential system. This study, disregards systemic features that are presumably characteristics of parliamentary and presidential systems and examine the recently introduced system in terms of executive-legislative relations. The study achieves two goals. First, it investigates how the executive-legislative relations changed as a result of constitutional changes. Second, it examines to what extent the presidential style in Turkey is similar to what Cheibub et. al. (2011) define as Latin American breed of presidentialism defined by strong executive lawmaking power.

From legal certainty to legal resilience? New paradigms of legal transition in contemporary risk society

Social acceleration significantly impacted on law in terms of social needs and demand of new regulation. In particular, it plays a double interaction in the realm of constitutional law: it affects, on the one hand, the traditional concepts of legal certainty and legality since it demands new attitudes about the nature and sources of law. On the other, it requires to come to terms with the evolving temporality of lawmaking which has become a new topic in constitutional law i. e. a modern form of normativity to be defined and regulated. We are witnessing indeed the spread of legal theories (the “flexible droit” à la Carbonnier or the “democratic experimentalism” à la Sabel&Simon) aimed to design a different institutional framework capable of dealing with the requirements of a high-speed and risk society.
Are these new paradigms in full compliance with the rule of law meant as a constitutional principle?
The paper tackles the question.

Partitioning Kosovo: Moral and Practical Grounds for Redrawing State Borders

Recently, proposals for revising the border between Kosovo and Serbia have been floated. Major outside actors have consistently opposed territorial revision. They fear contagion to Bosnia and Macedonia, worry about violence, and oppose drawing borders on an ethnic basis.
These objections are reflexive, but how real are they? This paper examines an alternative narrative about territorial revision: that it might enable normalization of relations between Serbia and Kosovo and more efficient internal governance within Kosovo, without jeopardizing Serb enclaves in the south.
Above all, the dominant view is disengaged from the demographic underpinnings of the crisis. The legal and moral basis for NATO’s 1999 intervention and Kosovars’ own independence points to the plausibility of viewing territorial revision not as a problem, but a solution. It is precisely by engaging with how borders and identity are related that the lines of this crisis are most likely to be resolved.