17 November 2017

New Challenges Facing Democracy and the Rule of Law

"... the idea of rule of law in democracy has been filled with an ideologically informed content, and the organs of so-called participatory democracy and even oligarchic powers increasingly misappropriate the right to define its elements, thereby influencing political decision-making, public administration and the courts. Perhaps the most essential question we face today is whether politics and governments can shore up enough strength to defend and preserve their freedom of political action and the original substance of classic constitutional concepts, on the community level as well as within the nation state."

Most national constitutions affirm and enshrine the principle of popular sovereignty. The classic tenet states that political power is derived from the people, and is exercised by the national Parliament and government created by the people through free elections. The question I wish to address here is to what extent this ideal is being upheld in the 21st century. Can the citizens of any given country still feel that the principle of popular sovereignty is vindicated in practice? Is this ideal not replaced by the perception that the hands of the national legislature and government are tied by external circumstances to an extent that interferes with the power to perform acts of self-determination? Just what kind of elbow room is available to institutions elected by the people today? What are the limits to the manoeuvring space still enjoyed by a European nation state that happens to be a member of the European Union? What is the nature of present relationships between society, the country, the state, and its legal system? A few decades ago, in 1963, de Gaulle was still in the position to say to his Minister of Justice, “France comes first and foremost, followed by the State, and then, finally, Law, to the extent it permits safeguarding the main interests of the first two.” (Il y a d’abord la France, il y a ensuite l’État et enfin, dans la mesure où il est possible de préserver les intérêts majeurs des deux premiers, il y a le droit.”)

Europe has changed a great deal since de Gaulle, so that the general’s wisdom may seem difficult to interpret nowadays. What kind of European censure should be expected by a leading politician in Hungary today who affirms a commitment to his country’s precedence above and beyond all other considerations? The dictates of political correctness today demand the subject of any discourse to be confined to Europe, European values, and European solidarity, while the sheer voicing of sovereign interests on the part of a member state seems to border on selfishness in the eyes of many. In what degree can we talk about the due representation of national interests in a country’s political agenda when we live in a space of discourse delimited by the framework of a system organised around the values of globalisation, in accordance with consolidated European interests?

For the past 10 years, I have held a variety of public offices while keeping my chair at the university. I had the opportunity to serve as judge of the Hungarian Constitutional Court for over three years, as ambassador to Paris for four years, and currently as Minister of Justice. These positions, encompassing a wide range of functions, have afforded me a broad outlook and an intimate insight into the workings of European and national politics, and the relations between politics and law. It was wonderful to gain first-hand experience of the nature of European debates and the often diverse mindsets regarding core values and institutions. I have learnt to appreciate the possibility of favouring very different approaches, each legitimate in its own right, to the same contested issue, be it about the destiny of Europe, democracy, the rule of law, fundamental rights or values. It is a brief overview of these debates that I will attempt in what follows.

As a staunch believer in European unity myself, I often come across a widening chasm between European and nation-level institutions, and between European institutions and the citizens at large. The emphasis no longer seems to be placed on cooperation so much as on the issue of who is dominating whom. As befits the prevailing technocratic-elitist mindset, European institutions like to cite pan- European interests when confronting the member states with a fait accompli. Alternatively, a handful of powerful member states seem to arrogate to themselves the right to define the future course of European integration. Hence the conflict about who is really in charge of the European Union. The question is far from trivial for the European citizen today. Who is the repository of real power? Where is the control headquarters overseeing Europe? This is a confusing issue, which ultimately leads – among other undesirable results – to alienating European citizens, who feel increasingly jaded in their helplessness to influence the events. They witness the emergence of a European empire in which the complex network of institutions and agencies virtually prevents the transparency of decision- making processes, where decisions are reviewed and hammered through by an elite without sufficient popular legitimation, in a process that remains utterly obscure except to the select few. Indeed, national parliaments and governments are themselves often left in the dark as to their own allotted scope of sovereign action. Consequently, the ideal of popular sovereignty as enshrined in their respective constitutions becomes pure fiction for a large segment of the population.

Europe is at a crossroads as we speak. Either we choose to promote a more uniform European federation by means of unceasingly withdrawing and trivialising national powers, or the member states claim closer adherence to the principle of subsidiarity in an effort to build a Europe based on the cooperation of nation states. As a citizen of Hungary and Europe, I have been, and will remain, of the latter conviction. Each country has its own history, identity, language, culture and geographical specificity – a complex of factors that define its own national interests. Europe has grown strong, and can only remain strong, by virtue of this diversity and the mutual respect for it. A European community based on treaties and cooperation among member states is better suited than centralisation to guarantee the democratic exercise of power. The leverage of the institutions of the European Council, composed of the heads of state and government of member states, seems to be waning. In contrast, the Commission no longer contents itself with watching over the treaties as originally intended by the member states, but pretends to the role of a pan-European government by usurping political functions.

Meanwhile, the legitimation of European institutions is indirect at best. Today, the only European body deriving its legitimacy directly from the people is the European Parliament, and even that legitimacy is rather weak. As the Constitutional Court of Karlsruhe has pointed out in its resolution concerning the Treaty of Lisbon, the European Parliament does not possess the powers normally accrued to a genuine legislative body, nor are the structure and operation of European political parties compatible with the logic of majority representation that characterises parliaments in general. In comparison, the European Commission has become a super- administrative power, a veritable oligarch, without any meaningful democratic legitimation. The institutions of European integration exercise enormously excessive power over the nation states. This European superpower is being eyed with suspicion by the population of “old” and “new” members alike. While few dispute the need for European integration, many disagree with the method of implementation. The obvious case in point is Brexit, but one might also cite the 2005 referenda in the Netherlands and France on the constitutional treaties of Europe. And let us not forget that, when the people of Ireland once voted “no” on the ratification of a European treaty, the Irish government decided to hold another referendum on the same issue, saying that “the people must have made a mistake”. Indeed, governments insisting on calling a referendum in any matter concerning the European Union these days frequently invite being labelled “populist” with amazing facility.

Popular sovereignty, a principle enshrined in the constitutions of member states, cannot and should not be robbed of its meaning. I stand by what I affirmed in 2010, then in the capacity of Constitutional Judge: “By vesting community (i.e. Union-wide) bodies with some of the powers innate to their own sovereignty, member states did not effectively relinquish the essence of their independence, self-determination or their freedom to decide upon the foundations of their own system of government. On the contrary, the member states retained full discretion over their own constitutional principles, which form an indispensable condition for preserving statehood and constitutional identity.” I believe that what I said back then bears special relevance to the situation today.

The issue of national and constitutional identity must be regarded as a fundamental one in a world shifting toward globalisation and integration. Article 4 (2) of the Treaty of the European Union declares that “the Union shall respect the equality of Member States before the Treaties”, and that the constitutional courts of European countries shall define constitutional identity as a check against European integration. This is precisely what was accomplished by the Constitutional Courts of several countries, including Germany, Italy, Poland, the Czech Republic, Hungary, as well as by the Constitutional Council of France, among others. In recent years, several excellent studies have been published treating the subject of constitutional identity. Distinguished authors have marshalled arguments pro and contra the need of recognising it. In the 21st century, as national constitutional law becomes increasingly “international”, the appreciation of nation-specific constitutional identity seems to me more vital than ever. Precisely what fields can we claim as our own, and ours alone? What can we give up without losing our identity as a nation? In East Central Europe, particularly in the Visegrád Countries, the affirmation of constitutional identity has been expressed in a stronger voice than in some of the countries further west. History in our region has been more turbulent than in most. More often than not, we suffered under foreign influence or downright occupation. The few times we were able to effectively represent our own interests have always been the exception to the rule. Sovereignty may be a notion distinct from both national identity and constitutional identity, but these concepts are intertwined as well as intimately linked to a singular country and nation. And any vision of universality must respect these connections.

Apart from popular sovereignty and constitutional identity, the focus of the debate these days is on the true meaning of democracy and the rule of law. Each of these two notions carries both political and legal meanings. National constitutions frequently invoke the ideals of democracy and the rule of law. But what do these notions really mean? Why is the substance behind them disputed so ardently? Democracy and the rule of law presuppose each other; neither can exist without the other. The principles of free elections, pluralism, the division of powers, the defence of the constitution, checks on public administration, the independence of justice and the judiciary, the freedom of the media, and the safeguarding of fundamental rights all form inseparable parts of democracy and the rule of law. There is no constitution in Europe that does not explicitly spell out these principles.

Whence is the controversy about democracy and the rule of law then? Well, the debate is fundamentally ideological in nature. In Europe today, we witness the clash between individualism and a mindset prioritising community interests and the public good. The so-called liberal approach views society as being an amalgam of free individuals, whose interests are second to none. This philosophy stresses the importance of the individual, relegating the state and public interest to the back burner. From the liberal point of view, concepts like nation, family, marriage, social cohesion and national identity no longer make much sense; they have been superseded, and their meaning has changed. The mission of the state, the liberals claim, is to enact laws and regulations to ensure the enforcement of individual interests. Consequently, the task of the judge lies in giving free rein to individual rights, while the powers of the state should be limited to the narrowest possible interpretation in this regard. In short, the state is not conceived as the guardian so much as a threat to the exercise of these rights. Liberals perceive the individual as being entitled to everything – as an omniscient being without boundaries to face. The individual should be capable of scrutinising the state at any moment and in any manner he or she sees fit, without limitations or being constrained by virtually any amount of secrecy. The individual is not obliged to take care of himself or herself or to take advice or guidance from the state as to what is right and what is wrong. In other words, the state should not presume to educate the individual. Yet the international NGOs subscribing to this very notion take it upon themselves, as their chief task, to perform this educational function in that they seek to steer thought into channels they happen to deem salutary. This is the cornerstone of the political correctness familiar from the mass media today.

The adoption of Hungary’s Fundamental Law, in 2011, triggered a controversy across Europe. It was analysed by the European Commission, the European Parliament and the Venice Commission, among others. True enough, Hungary’s Fundamental Law diverges widely from the trends dictated by the aforementioned liberal ideals. From affirming the nation-sustaining power of Christianity to the definition of marriage, it goes against the grain of current thinking in Europe in many ways. The Fundamental Law of Hungary articulates values and emphasises the importance of a society based on work, in which individual rights are juxtaposed to individual responsibility. The role of the state is to enforce public interest while protecting both individuals and their communities. The Fundamental Law invokes a number of values previously recognised and upheld by the country’s Constitutional Court. Yet these values, by virtue of being enshrined in the Constitution, have now acquired greater significance due to what must be considered as an unusually bold act of legislation. This is precisely why the Fundamental Law has elicited fierce criticism from many corners for bucking the trend of value-neutral constitutions.

Indeed, the debate around Hungary’s Fundamental Law raises a number of very fresh questions. Is a constituent power entitled to adopt a constitution flouting the prevailing norm of neutrality? Well, for starters, there can be no question about the legitimacy of the Fundamental Law as a whole, although various international fora have questioned several of its provisions on grounds of form or substance. Why do we talk about a unified Hungarian nation? Why did we define the concept of marriage? Why did we abolish actio popularis in regulating the powers of the Constitutional Court? Why are the members of the Media Authority elected by Parliament? These are just some of the questions that prompted many constitutional jurists to voice their opinions on the constitutional process in general, or specific parts of Hungary’s new constitution in particular.

For instance, the Venice Commission has made several useful, even invaluable comments. However, a body of the European Council composed of preeminent scholars of constitutional law, the Venice Commission has presumed to a political and ideological function, expressing concern and urging member states to amend their constitutions in the name of protecting democracy and the rule of law. Increasingly, instead of simply scrutinising the relevant constitutional texts, the Venice Commission ventures to assess the given political context as a basis for articulating its position. And, as we know, any assessment of political context is inevitably burdened by ideology. This had certain legitimacy in the 1990s as the countries of the Eastern Bloc re-embarked on the path of democracy. These days, however, the application of ideological considerations tends to engender double standards, which may in turn result in reports of rather questionable merit. The same provision that is regarded as laudable or at least acceptable in one country is decried as evil in another. No founding member of the Union, as a long-established democracy, has ever had problems with the rules of electing members to its constitutional court or media authority. The same rules, if adopted by a country in Eastern or Central Europe, can serve in the given political context as an excuse for objection and even charges of being incompatible with the rule of law. Swayed by a political perspective, constitutional experts – or constitutional engineers, if you will – arrogate the power of judgement, defining the notions of democracy and the rule of law on a case-by-case basis, ultimately compiling these divergent definitions to establish so-called European standards. Subsequently, the positions of, say, the Venice Commission are treated by the institutions of the European Union as evidence against the culprit country, in extreme cases even used as justification for threatening or actually bringing against it a disciplinary process for rule of law violations.

Europe, democracy, the rule of lawdilemmas old and new. Experience shows that we cannot speak about Europe, democracy or the rule of law as long as manipulative, ideologically biased, oligarchic powers remain free to dictate at will – in the name of political correctness, but in a peremptory manner, without even a pretence of meaningful dialogue based on equality – what direction Europe should take, what democracy consists of, and what makes the rule of law what it is. The bodies of participatory democracy must certainly play a role, but what really matters is their legitimation by the constituents. This is why it is so crucially important to restore the genuine original meaning and substance of classic notions of constitutional law such as popular sovereignty, democracy and the rule of law. Furthermore, the independence of justice, the protection of the constitution, and the existence of constitutional safeguards form indispensable pillars of the rule of law, as does the constitutional dialogue between various bodies of government. As a concept, democracy is inseparable from that of the rule of law. Both presuppose a tight relationship between the state and the people, in that the former serves and protects the latter. We should take to heart the words of Jean-Marc Sauvé, vice president of the French Council of State: “In France, the state serves as the pedestal on which the nation evolved; the state gives framework to the nation.” This thought is valid not only for France; others may well see the issue in the same light.

Recent developments in constitutional law have created a gap between daily reality and classic constitutional notions as we used to know them. However, we cannot talk about a clash between anachronistic, dispensable doctrines and new ideals lauded as the only truth. It is simply that the idea of the rule of law in democracy has been filled with an ideologically informed content, and the organs of so-called participatory democracy and even oligarchic powers increasingly misappropriate the right to define its elements, thereby influencing political decision-making, public administration and the courts.

Perhaps the most essential question we face today is whether politics and governments can shore up enough strength to defend and preserve their freedom of political action and the original substance of classic constitutional concepts, on the community level as well as within the nation state.

Translation by Péter Balikó Lengyel






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