Against Illiberal Democracies
BSSB.BE http://4liberty.eu 26.06.2015
Recent developments in Hungary and Romania have prompted a question that once would have been considered fanciful at best: could there be a dictatorship inside the European Union? In both countries there have been attempts at what I would term ‘constitutional capture’: leaders have sought to gain control of the political system as a whole, weaken checks and balances, and often – but not necessarily – cap the process with actually writing a new constitution. So far, constitutional capture has not really happened in Romania. But in Hungary the project seems to be succeeding.
The Hungarian ruling Fidesz party has diminished the power of the constitutional court (the major check on governments in a unicameral political system in a highly centralized country with a largely ceremonial office of president). It has also created a ‘Fidesz state’ (as Martin Schulz, President of the European Parliament once put it) by staffing offices with loyalists and securing their positions for exceptionally long periods.
So far, EU officials and politicians concerned about developments in Hungary and Romania have referred almost exclusively to the rule of law as the object under threat. One unintended consequence of this framing of the challenge is that national governments can keep claiming democracy for themselves, or even openly advocate a model of ‘illiberal democracy’ against supposed mainstream European liberal democracy.
In other words, such a conceptual division between liberalism and democracy suggests a picture according to which the EU tries to safeguard liberalism, whereas national governments, by contrast, assert proper democracy. But that picture is misleading. One can make this claim without having to argue that democracy and the rule of law are really identical or always fit together seamlessly.
A political system with regular elections, but limits on media freedom, on election campaigning, and on autonomous activity by civil society, is not on the road to being an illiberal democracy; it is on the road to not being a democracy at all. After all, even on the most minimalist understanding of what constitutes democracy, election outcomes need to reflect the informed, well-reflected preferences of voters.
Without freedom of speech, freedom of assembly, etc. voters are severely disadvantaged in forming a judgment of political actors standing for election. Put differently: it’s a conceptual mistake to say that democracy means elections, and liberalism signifies rights and the rule of law. For one thing, democracy must mean the right to vote; less obviously, it has to come with a range of political rights and freedoms that enables the formation of political judgment.
What Exactly is the Challenge?
Deciding whether a country is in danger of constitutional capture or damaging democracy in other ways requires complex legal and political judgment. The challenge, then, is to identify (or, for that matter, create) what one might call an agent of credible legal-political judgment, one who is capable of determining whether a country is systematically departing from the European Union’s normative acquis.
This task is different both from assessing compliance with EU law and from ascertaining belief in values (whatever the latter might mean concretely anyway: a Committee on UnEuropean Beliefs and Activities in the European Parliament?). Technical-legal judgment of rule compliance in and of itself is insufficient; and philosophical consensus about values is simply not the issue (all governments continue to profess faith in democracy and the rule of law).
But it’s also not just a matter of fundamental rights violations: these can be very serious, of course, but not all attacks on democracy immediately have to result in rights violations (which, at least in theory, can be dealt with by the ECtHR, even if that process takes time). Nor should one be fixated on the problem of corruption: again, this can clearly be very serious (and often is one result of constitutional capture) – but is in principle different from attacks on democracy, and, it is a challenge for which the Union has at least some effective instruments at its disposal.
In short, then, one is dealing with systemic, mostly constitutional challenges which will require some understanding of context, some sense of proportion, and, not least, some meaningful capacity for comparison of what is actually happening within different political systems. A simple check-list, as so often used in the EU accession process (‘Do the judiciary’s offices have computers? Check!’), will not do; somebody needs to see and understand the whole picture and also the particular sequencing of the creation – and possibly the dismantling – of a liberal-democratic system.
As Dimitry Kochenov has shown, we cannot simply take the Copenhagen criteria of the shelf and pretend, on the basis of the experience with accession processes, that ‘protection of liberal-democratic values’ ultimately equals compliance with the acquis. These criteria were never sufficiently defined and they were often inconsistently applied.
What Should the EU Do?
What follows from framing the problem this way? First of all, it seems to me that Article 7 ought to be left in place – but it also ought to be extended. There might arise situations where democracy is not just slowly undermined or partially dismantled – but where the entire edifice of democratic institutions is blown up or comes crashing down, so to speak (think of a military coup).
However, in such an extreme case, the Union ought actually to have the option of expelling a Member State completely. Under the Lisbon Treaty, states may decide to leave voluntarily – but there is no legal mechanism for actually removing a country from the Union. True, these all might seem remote scenarios. But especially those who insist on the symbolic value of something like Article 7 – by which they might actually mean something not just symbolic, namely its importance as a form of deterrence – ought to be sympathetic to including the option of complete removal.
This does not answer the question of who a consistent and credible agent of political judgment could be. ‘The European Commission’ might still seem the most plausible answer – especially in light of the fact that the Commission is acquiring new powers in supervising and potentially changing the budgets of Eurozone Member States.
But many – possibly all — proposals to increase the legitimacy of the Commission (seen as a necessary complement to such newly acquired authority) contain the suggestion essentially to politicize the Commission: ideas to elect the President directly or to make the Commissioners into a kind of politically uniform cabinet government all would render the body more partisan – on purpose. And such partisanship makes the Commission much less credible as an agent of impartial legal-political judgment.
My suggestion, then, is to create an entirely new institution which could credibly act as a guardian of Europe’s acquis normatif. I suggest a ‘Copenhagen Commission’ (as a reminder of the ‘Copenhagen criteria’, flawed as they might have been), analogous to the Venice Commission – a body, in other words, with a mandate to offer comprehensive and consistent political judgments.
At first sight, it might seem most plausible that such a body should be legally constituted as an agency. The difficulty here is one that many political science studies of EU agencies have confirmed: agencies tend to be tightly controlled or even outright captured by Member States.
This would be even more of a danger if a new body were to be set up outside the existing treaties, by intergovernmental agreement – but, in theory, this would be an option, too. A mere advisory body or high-level working group within existing EU structures would also be a possibility, as long as the determinations of that body were actually to be binding for the EU Commission.
Authors: JAN-WERNER MULLER AND ILLIBERAL DEMOCRACIES
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