—Tom Gerald Daly, Associate Director, Edinburgh Centre for Constitutional Law
2016 thus far has been marked by democratic backsliding and constitutional crises worldwide: European Commission ‘rule of law’ investigations into Polish laws on the Constitutional Tribunal and media;[1] Turkish President Erdoğan’s insistence that he will not comply with decisions of the Constitutional Court or the European Court of Human Rights,[2] combined with accelerated plans for a problematic new constitution;[3] talk of an ‘implosion’ of South Africa’s democratic institutions;[4] a disturbing crackdown on dissent in India;[5] pro-democracy rallies in Brazil against a perceived political coup d’état through impeachment of President Rousseff;[6] and warnings that democracy in the Maldives is on a ‘negative trajectory’.[7]
These crises form just part of a global ‘democratic recession’[8] that has appeared to gather pace in the past decade, from Hungary and Romania, to Venezuela and Botswana. This blog post seeks to present a brief initial mapping of the current state of thinking and institutional development in this area, and to make the case that systematic analysis is sorely needed if we are to make sense of this democratic recession, its impact on the evolution of public law, and the adequacy of the public law response to democratic backsliding.
Three questions are central:
1. What is new about contemporary democratic breakdowns and constitutional crises?
Democratic breakdown and constitutional crisis is hardly a new phenomenon: we can point to examples in inter-war Europe, Greece in 1967, or Africa and Latin America in the 1960s and 1970s. Nor is the attempt to dress up undemocratic governance as constitutional democracy: we saw, for instance, the instrumental fidelity to a distorted form of constitutional law in apartheid South Africa and military-era Brazil.[9]
What is new about many more recent instances of democratic decay, as David Landau has observed, is the level of sophistication in the use of constitutional law and language to erode the democratic order.[10] The Hungarian experience has become the prime example,[11] but we can now point to similar developments taking place in Poland and Turkey and, farther afield, the problematic ‘new constitutionalism’[12] of Andean states which has, in hindsight, often proved to be a cover for the concentration of power in the executive.[13] Political actors in these states do not claim to reject constitutional democracy, but rather, the liberal, judicialised, cosmopolitan, internationalised model of constitutional democracy that has developed since 1945.[14]
This is all taking place in an environment where Western-style liberal democracy and constitutionalism have become tarnished currencies: arguments are increasingly made for younger democracies outside the West to construct their own models, with talk of (re)‘imagining democracy’[15] and a ‘constitutionalism of the Global South’.[16] The result is that it can be difficult to separate good faith experimentation and divergence from Western models of constitutional democracy from bad faith plans to gut democratic rule.
2. How have public law mechanisms evolved to address the democratic recession?
The democratic recession has prompted various institutional mutations in public law. In the EU, we have moved from the entirely political measures used to address Jörg Haider’s Freedom Party entering the Austrian government in 1999, to Article 7 of the Lisbon Treaty of 2007, which permits monitoring and sanctions in cases of a serious breach by a Member State of core democratic and rule of law values in Article 2 TEU.[17] A further framework for ‘pre-Article 7’ rule of law monitoring was established by the European Commission in 2014.[18] At the Council of Europe level we find the increasingly central action of the Venice Commission[19] in assessing the propriety of constitutional reforms. A recent edited collection by Armin von Bogdandy and Pál Sonnevend details the development of these different mechanisms to address systemic deficiencies in Hungary and Romania.[20]
However, this is merely one chapter of a story that has deep historical roots and a much wider geographical context, which has yet to be fully recounted. As we know, the fear of democratic breakdown has been central to the evolution of public law since 1945, with a distinctive ‘never again’ court-centric constitutionalism at the national level, and the establishment of ‘post-national’ frameworks and courts at the regional level–the European Court of Human Rights in particular envisaged as a ‘canary in the mineshaft’ for reversions to authoritarianism.[21] After initial judicial innovations (e.g. the ‘militant democracy’ and ‘basic structure’ doctrines developed by the German and Indian courts to combat authoritarian forces), in the 1990s we saw the Inter-American Commission on Human Rights attempting to address democratic decay in ‘real time’ in Fujimori’s Peru. The Peruvian travails led to the adoption of an Inter-American Democratic Charter by the Organization of American States (OAS) in 2001, [22] which in turn inspired the adoption of a similar charter by the African Union (AU) in 2007.[23] Forms of global and transregional monitoring also exist. Since the mid-1990s the Commonwealth Ministerial Action Group (CMAG) has recommended action to address infringements of the Harare Declaration on the core political values of the Commonwealth (including democracy and rights protection)[24]–as seen in the current Maldivian crisis.[25] The Venice Commission also has the potential, through expansion of its membership, to take on a global role in addressing democratic backsliding; see, for example, its ‘rule of law checklist’ published last month.[26]
Four observations might be made here. First, the hallmark of the ‘new’ public law worldwide appears to be a transition from the reliance on both constitutional and regional human rights courts as the primary bulwarks against democratic decay to a new reality where diplomatic, political and quasi-judicial mechanisms are at the fore, pushing courts into a secondary (though still important) role. Second, it is not entirely clear whether the new institutional configurations represent an extension of public law or the sidelining of public law. Third, these new configurations have developed, and are operating, in an ad hoc, uncoordinated, isolated fashion, with little attempt thus far to map the similarities, linkages and differences in approach across different regions and systems. Fourth, are question marks concerning the effectiveness of these measures: intensive attention to Hungary has done little to stem its continued slide toward authoritarianism, for instance.
3. What are our existing conceptual and theoretical frameworks for understanding this new reality, and are they adequate?
The public law response to the democratic recession has been not only institutional, but conceptual. Public lawyers have added to the central frameworks of ‘democratic breakdown’[27] and ‘constitutional crisis’[28] in recent years through a flurry of conceptual development. David Landau has coined the term ‘abusive constitutionalism’ to refer to the hollowing out of democratic governance by constitutional means.[29] An expanding literature deals with ‘unconstitutional constitutional amendments’, which are in conflict with eternity clauses and judicial basic structure doctrines.[30] Catherine Dupré’s recent embrace of the notion of an ‘unconstitutional constitution’ (inspired by the Hungarian experience) seems the logical terminus of this line of conceptual evolution.[31] Outside academia, the Venice Commission uses the concept of ‘constitutional justice’[32] to assess whether constitutional reforms fit on the spectrum of ‘normal’ constitutional democratic practice (as discerned by the Commission). We need to reflect on whether these concepts together are adequate for understanding the complex reality of the contemporary democratic recession, and whether we have a workable typology for the various types of democratic decay unfolding around us.
Finally, we need to reflect on how the ‘new’ public law fits within our existing theoretical frameworks, not least Anne-Marie Slaughter’s theories on the true nature of contemporary global governance[33] and evolving debates concerning the democratic legitimacy of judicial review and international law interventions in young democracies.[34] In assessing central questions, such as whether democratic decay justifies more intensive public law interventions (or quasi-legal interventions), we need to revisit scholarship at the heart of contemporary public law, including Carl Schmitt’s theories of the relationship between democracy, political economy and ‘constitutional failure’,[35] as well as calls for monism by Kelsen and Scelle in the early twentieth century, which were motivated partly by the wish to shore up shaky pre-war democracies by enhancing the power of international law to achieve the ends of constitutional law.[36]
An ambitious research agenda
This is, of course, a highly ambitious research agenda seeking to address a range of interrelated empirical, conceptual and theoretical questions against a broad historical and geographical canvas. However, systematic analysis is necessary if we are to begin to get to grips with the nature of the ‘new reality’ of public law and its capacity to address democratic decay worldwide.
Suggested Citation: Tom Gerald Daly, The Democratic Recession and the “New” Public Law: Toward Systematic Analysis, Int’l J. Const. L. Blog, Apr. 22, 2016, at: http://www.iconnectblog.com/2016/04/the-democratic-recession-and-the-new-public-law-toward-systematic-analysis
[1] ‘Rule of law in Poland: Commission starts dialogue’, 13 January 2016. http://ec.europa.eu/news/2016/01/20160113_en.htm.
[2] ‘Erdoğan says he ‘does not respect, will not obey’ top court ruling on arrested journalists’, Hurriyet Daily News, 28 February 2016. http://www.hurriyetdailynews.com/erdogan-says-he-does-not-respect-will-not-obey-top-court-ruling-on-arrested-journalists.aspx?PageID=238&NID=95784&NewsCatID=339. M Akyol, ‘The rage against the Constitutional Court’, Hurriyet Daily News, 12 March 2016. http://www.hurriyetdailynews.com/the-rage-against-the-constitutional-court.aspx?pageID=449&nID=96345&NewsCatID=411.
[3] ‘Turkish gov’t to speed up process for new constitution’, Hurriyet Daily News, 27 March 2016. http://www.hurriyetdailynews.com/govt-to-speed-up-process-for-new-constitution-with-presidential-system-pm.aspx?pageID=238&nid=96950&NewsCatID=338. See also S Demirtaş, ‘New Turkish constitution to redefine powers of constitutional court and judiciary’, ConstitutionNet, 29 March 2016. http://www.constitutionnet.org/news/new-turkish-constitution-redefine-powers-constitutional-court-and-judiciary.
[4] B Cibane, ‘SONA2015 and our Constitutional crisis: What happens when the fox guards the henhouse?’, Daily Maverick, 17 February 2015. http://www.dailymaverick.co.za/opinionista/2015-02-17-sona2015-and-our-constitutional-crisis-what-happens-when-the-fox-guards-the-henhouse/#.VwI5evl97IU.
[5] Editorial, ‘India’s Crackdown on Dissent’, New York Times, 22 February 2016. http://www.nytimes.com/2016/02/23/opinion/indias-crackdown-on-dissent.html.
[6] J Watts and B Douglas, ‘‘We won’t accept a coup’: groups unite to save beleaguered Dilma Rousseff’, The Guardian, 3 April 2016. http://www.theguardian.com/world/2016/apr/03/brazil-beleaguered-rousseff-anthems-protests-fill-streets-impeachment.
[7] A Naish, ‘Maldives democracy on ‘negative trajectory,’ warns top US diplomat, Maldives Independent, March 31 2016. http://maldivesindependent.com/politics/maldives-democracy-on-negative-trajectory-warns-us-assistant-secretary-of-state-123158
[8] L Diamond, ‘Facing Up to the Democratic Recession’ (2015) 26(1) Journal of Democracy 141.
[9] See e.g. See MJ Osiel, ‘Dialogue with Dictators: Judicial Resistance in Argentina and Brazil’ (1995) 20 Law and Social Inquiry 481, 528.
[10] D Landau, ‘Abusive Constitutionalism’ 47 UC Davis Law Review 189 (2013).
[11] See chs 1-4, 11 and 14 in A von Bogdandy and P Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Bloomsbury Publishing, 2015).
[12] A Schilling-Vacaflor and D Nolte (eds), New Constitutionalism in Latin America: Promises and Practices (Ashgate, 2012).
[13] R Uprimny, ‘The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges’ 89 Texas Law Review 1587 (2010-2011).
[14] See P Blokker, New Democracies in Crisis?: A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (Routledge, 2013). See also a telling interview last year with the Hungarian justice minister: G Gotev Trócsányi: ‘There are different interpretations of democracy’, EurActiv, 1 April 2015. http://www.euractiv.com/section/europe-s-east/interview/trocsanyi-there-are-different-interpretations-of-democracy/. See also Uprimny (n 13).
[15] See CK Lamont, J van der Harst and F Gaenssmantel (eds), Non-Western Encounters with Democratization: Imagining Democracy after the Arab Spring (Ashgate, 2015).
[16] D Bonilla Maldonado (ed), Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia (CUP, 2013).
[17] ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’.
[18] See European Commission press release, ‘European Commission presents a framework to safeguard the rule of law in the European Union’, Strasbourg, 11 March 2014. http://europa.eu/rapid/press-release_IP-14-237_en.htm.
[19] Formally known as the Commission for Democracy through Law.
[20] A von Bogdandy and P Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Bloomsbury Publishing, 2015).
[21] E Bates, The Evolution of the European Convention on Human Rights. From its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press, 2010) 8.
[22] By 2013, the Charter had been invoked nine times since its enactment: against coups in Venezuela (2002-2004) and Honduras (2009-2010); and preventively against states such as Nicaragua, Ecuador and Bolivia. H de Zela Martínez, ‘The Organization of American States and its Quest for Democracy in the Americas’ (2013) 8 Yale Journal of International Affairs 23, 31.
[23] The African Charter on Democracy, Elections and Governance.
[24] See e.g. A Banerji, ‘The Commonwealth of Nations: A Force for Democracy in the 21st Century?’ (2008) 77(399) The Round Table 813.
[25] See more at: http://thecommonwealth.org/history-of-the-commonwealth/commonwealth-ministerial-action-group-cmag-established#sthash.1WWqLzmi.dpuf.
[26] Venice Commission members now include non-European states such as Brazil, Chile, Mexico, Morocco, South Korea and Tunisia. Most recently, in mid-March 2016, the Commission adopted a comprehensive ‘Rule of Law Checklist’, which might be likened to a form of soft-law global ‘democratic charter’. Study No. 711/2013, ‘Rule of Law Checklist’ CDL-AD(2016)007, 18 March 2016. http://www.biicl.org/documents/897_vc_rol_checklist_-_cdl-ad2016007-e.pdf?showdocument=1.
[27] A recent analysis is found in S Mainwaring and A Pérez-Liñán, ‘Democratic Breakdown and Survival’ (2013) 24(2) Journal of Democracy 123.
[28] See e.g. J Colón-Ríos, ‘New Zealand’s Constitutional Crisis’ (2011) 24(3) New Zealand Universities Law Review 448. Some refer to ‘constitutional breakdown’: See e.g. F Lehoucq, ‘Bolivia’s Constitutional Breakdown’ (2008) 19(4) Journal of Democracy 110.
[29] Landau (n 10).
[30] See e.g. PJ Yap, ‘The conundrum of unconstitutional constitutional amendments’ (2015) 4(1) Global Constitutionalism 114.
[31] C Dupré, ‘The Unconstitutional Constitution: A Timely Concept’ in Bogdandy and Sonnevend (eds) (n 20).
[32] See http://www.venice.coe.int/webforms/documents/?topic=12&year=all. This approach has much in common with other conceptions of ‘constitutional justice’: see e.g. TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2003).
[33] A-M Slaughter, A New World Order (Princeton University Press, 2004).
[34] Regarding courts alone, see S Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge University Press, 2015); R Gargarella, ‘In Search of a Democratic Justice – What Courts Should Not Do: Argentina, 1983-2002’ in S Gloppen, R Gargerella and E Skaar (eds), Democratization and the Judiciary: The Accountability Function of Courts in New Democracies (Routledge, 2004); Bonilla Maldonado (ed), Constitutionalism of the Global South (n 16); K Lane Scheppele, ‘Democracy by Judiciary (Or Why Courts Can Sometimes Be More Democratic than Parliaments)’ in W Sadurski, M Krygier and A Czarnota (eds), Rethinking the Rule of Law in Post-Communist Europe: Past Legacies, Institutional Innovations, and Constitutional Discourses (Central European University Press, 2005); and S Gardbaum, ‘Are Strong Constitutional Courts Always a Good Thing for New Democracies?’ (2015) 53 Columbia Journal of Transnational Law 285.
[35] See E Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Duke University Press, 2004).
[36] See e.g. J Nijman & A Nollkaemper, ‘Introduction’ in Nijman & Nollkaemper (eds), New Perspectives on the Divide between National and International Law (OUP, 2007) 9.
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