On the 21st of last January, that is the day after Mr Trump’s inauguration, a meeting, very important symbolically, took place in the German city of Koblenz. Situated at the confluence of the Rhine with the Moselle, Koblenz’s most significant monument is huge statue of Emperor William I on horseback; king of Prussia, the latter was the first Kaizer of unified Germany. Europe’s most prominent rightwing politicians, including Marine Le Pen, her Dutch counterpart Geert Wilders and Matteo Salvini, the leader of the Italian Lega Nord, were invited by Frauke Petry, the chairwoman of the Alternative for Germany party, to what was soon named European counter-summit.
“We are the start of a patriotic spring in Europe”, said Mr Wilders, while Ms Le Pen referred to Donald Trump’s victory and to the Brexit with the following words: “In 2016, the Anglo-Saxon world woke-up. In 2017 I am sure it will be the year of the Continental peoples’ rising up”. At some moment, as reported, the crowd turned on the attending journalists and shouted “Lügenpresse” (“lying press”), a term first used by the Nazis in the 1920s as a means of vilifying independent newspapers.
The above leaders are still far from entering the government of their respective countries. Nevertheless, with almost 25% of the votes at the opinion polls, Marine Le Pen is expected to reach the second round of the forthcoming French presidential election, while Geert Wilders’ party should is expected to come first in the Netherlands’ next March general election. As for the German Alternative party, it is expected to enter for the first time the Bundestag next September; it will be the first extreme right wing party to do so after WW2. In other words, these are no longer marginal movements.
Invigorated by Mr Trump’s election, the participants to the Koblenz gathering share the same ambition: beyond dissolving the European Union, they attack Europe’s constitutional values. However, they do not do so in a straightforward way, as their counterparts so often did in Europe’s 20th century, but by using a more subtle wording, which capitalizes on public disenchantment with Brussels and anger at the influx of thousands of refugees and at the terrorist attacks of the last couple of years.
Which are the main targets of these covered attacks against what until recently was considered to be the unquestionable constitutional acquis of Western Europe? They address both pillars of that acquis, that is parliamentary government on the one hand and human rights on the other.
Let me start with the attacks against parliamentary government. They usually take the form of sharp criticism against the “elites”, whether these are the “bankers”, the “rich” and more often the “Brussels bureaucrats”. Most of the time, though, these attacks comprise political elites as well, i.e. MPs, Ministers and party leaders. The best recent example an attack of such type is the following extract from Mr Trump’s inaugural address:
Politicians prospered, but the jobs left and the factories closed. The establishment protected itself, but not the citizens of our country. Their victories have not been your victories; their trimphs have not been your triumphs; and while they celebrated in our nation’s capital, there was little to celebrate for struggling families all across our land.
In other words, until now, laws were voted in Washington and decisions were taken not to the benefit of the people but in the interest of the happy few. “Today’s ceremony”, went on the new American president,
has a very special meaning, because today we are not merely transferring power from one administration to another or from one party to another, but we are transferring power from Washington D.C. and giving it back to you, the people.
This crude flattery of the people is behind the glorification of referendums as the only means proper to ensure the direct and hence genuine expression of the people’s will. Ιn a recent interview, Marine Le Pen has announced the holding of two of them, a little after her advent to power if she is elected at French presidency. On the other side of the political spectrum, Alexis Tsipras, the Greek prime minister, enumerated last July no less than four different types of referedums that he wanted to introduce in the country’s constitution; because, as he explained, in democracies, decisions must be taken by the people and not by technocrats.
Let me be clear at this point: the referendum, in that line of thought, is not perceived as “the people’s veto” –in the sense given to the term by A.V. Dicey, more than 100 years ago, that is as a means to revoke an unpopular or outdated act of Parliament- but as a process either to initiate or to approve new legislation. In that way, referendums, combined with executive legislation, are supposed not only to complement but if possible substitute the ordinary legislative process in Parliament.
I do not intend to enumerate here the pros and cons of referendums as a means to legislate. Technically, in our days, the questions that may be answered with a simple “yes” or a simple “no” are rather rare. On the other hand, as Bagehot put it as early as in 1872, the problem lies on who is apt to raise each time the “good issues” as opposed to the “bad” ones and ask thereafter the people to answer the right questions. And demagogues are inclined to ask the questions that best fit them, which are, most of the time, the wrong questions
In my opinion, the most important and insurmountable quality of representative government does not lie in its technical advantages. In the digital era, communication problems and the people’s participation from home to open debates may easily be faced through the use of the Internet; it lies in the moral superiority of representation, that is in the fact that it is the only system of government which enhances responsible debate and public deliberation in the way Jürgen Habermas uses word. Debate in Parliament indeed, with the physical presence of the participants and face to face exchange of arguments cannot indeed be substituted by any other means of discussion or communication. Because, as an emblematic conservative, Edmund Burke has put it long ago, in his famous speech to the electors of Bristol, and he was right,
“government and legislation are matters of reason and judgment and not of inclination”,
nor, would I add, of impulse, to which most of us are inclined to yield, under the pressure of passions and the facts of everyday life.
In other words, in spite of new technologies in the field of learning and communication, my profound belief is that parliamentary government is the only form of government that may ensure that the right questions are put on the public forum and that the answers to these questions are debated in a descent and responsible way, in a way that favors consensus and nuances and not dogmatic choices, between black and white. By systematically attacking professional politicians for ignoring the people’s will, the supporters of the “patriotic revolution” are in fact attacking that kind of debate. In doing so, however, they are attacking democracy itself. Because, as shown by the age of the extremes in the previous century, democracy is either representative, deliberative and prone to compromise, or there is no democracy at all.
I come now to the second pillar of modern democracy which is human rights and their respect through the rule of law. Τhe participants of the Koblenz gathering do not openly stand against them; they refuse though their universality and put forward the need for their selective enforcement.
As far as universality is concerned, its call into question is best illustrated through the current refugee crisis. Refusal to admit that the mass influx of refugees raises above all human rights issues is not just a matter of indifference; it is in my opinion a sign of disregard toward the values for which stands the European constitutional acquis.
Let me open here a brief parenthesis on the current refugee crisis, seen from a Greek angle. Until the so-called Balkan route was closed in March 2016, more than 1 million refugees have transited from Greece seeking asylum in Western and Northern Europe. Since then, more than 55,000 refugees, mainly from Syria, Afganistan and Pakistan, have been trapped in Greece; most of them have applied for asylum. Newcomers are kept mainly in the eastern islands of Lesbos, Chios and Samos, while overcrowding and subhuman conditions have led this current winter to a number of deaths. There are reports that the authorities have started transferring individuals with specific needs on the mainland under the “Emergency-One-Off-Assistance Scheme”, but that does not solve the problem, since the numbers of those involved are still very huge.
With more than 2000 inhabited and non-inhabited islands and a coastline of more than 13,500 kms, Greece stands by far at the top of the relevant EU list, above the UK, Italy, mainland France and Spain. It is obvious therefore that, in the long run, the problem cannot be solved by a single country on its own but only at a European if not at an international level.
I do not intend to enter into the details of the 2016 EU-Turkey agreement, whose aim was to address the mass influx of migrants and asylum seekers travelling across the Aegean from the Turkish coast to the Greek islands. In a context of rising populism in Western Europe, the objective of that agreement was to prevent unchecked arrivals into the European Union by allowing Greece to return to Turkey “all new irregular migrants”, while, in exchange, EU member States would accept resettlement of Syrian refugees trapped in Turkey and in Greece. My purpose is to raise instead the issue of the reform of refugee law, which is highly needed under the present circumstances.
No doubt, the dramatic events we are actually going through do not favor dispassionate approaches. Still the debate should open. The first step would be to recognize that the 1951 Geneva Refugee Convention is no longer apt to face new realities. This is due to the fact that that historic Convention focuses on individual asylum seekers in the cold war era and not on situations of refugee mass influx, such as the ones we arer experiencing today. Some believe that such phenomena should be faced through the construction of cement walls or the installation of barbed wires all along state borders. I leave aside the immoral aspect of that approach which, apart president Trump, is actually shared by some European leaders as well, such as Victor Orban in Hungary and Lech Kacziński in Poland; the latter actually refuse to accept for resettlement of relatively small numbers of refugees that correspond to the population of their countries, under the terms of the EU-Turkey agreement.
I profoundly believe that measures of that kind do not solve the problem; they simply postpone its solution causing more and more innocent deaths. I also believe however that neither the “open borders” approach is an appropriate even less a realistic solution, at least as things stand. Under no circumstances a state, any state, may be obliged in my view to accept for permanent establishment an unlimited number of refugees. Save extreme situations such as genocide or a devastating war, and, save genocide and a devastating war, victims may not, in my opinion, claim the existence of a right to resettle and start a new life in a safe country. Between the two extremes, nevertheless, there exist intermediate solutions:
The option of “safe zones”, at first, as shown by the French precedent on the eve of WW2. I remind you that after the fall of Barcelona, in January 1939, the Daladier coalition government proposed to Franco, the Spanish dictator, that a “neutral zone” is established at the border of France and Spain. Franco refused and the plan failed. It was only then that France opened its borders and received in less than a month almost half a million refugees. Such “zones” could play a humanitarian role in similar situations of population mass displacements, should all stakeholders agree.
At any event a new category has been developing, that of provisional asylum seekers, not for a specific country but for a wider geographic area. Should that be the case, the country of first refuge should ensure the basics: (a) safety and security, (b) shelter, (c) food, (d) religious worship, and (e) education. Who should share the financial burden?
A truly European response should therefore be foreseen. It should aim to the granting of European protection and, subsequently of a European Asylum. Mere coordination between member states is not sufficient for this purpose. As suggested by many, there should be set an EU institution, a European Asylum Agency, competent for tracing and enforcing collectively the obligations that actually fall under the responsibility of individual member states (see Guy S. Goodwin-Gill, IJRL, vol.28/2016, p.686).
The outcome of national elections in Europe, in the next few months, and more specifically the scores that the Koblenz speakers shall obtain thereof will show if there is any chance that a responsible debate is held on the above issues .
I now return to the attacks, covered attacks most of the time, against human rights, which aim at the restriction of their protection. The privileged target of their new enemies is multiculturalism and openness in the name of national purity. The question, in my view, is not devotion to old time behaviors and habits (which, by all means, may be legitimate) but the monolithic perception of the nation as the unique spiritual reference, capable of ensuring that people of different ethnic origins will live together in peace and share a common future within a single state. In other words, the critics of European constitutional values the favor an ethnic as opposed to a civic perception of the nation, in a philosophy based on national aims and traditions rather than on the constitution. The latter is perceived as a mere means destined to serve the nation and not as a set of values that stand for themselves.
Closely linked to the denial of the universality of human rights, that ethnic approach, is having serious repercussions on their protection both at the international and at the national level: at the former, it emphasizes on the concept of margin of appreciation, that is the discretion recognized to member states for the regulation of issues which should normally be considered as being an integral part of the hard core of rights proclaimed by international instruments, such as the European Convention.
That stance is best illustrated in the jurisprudence of the European Court of Strasbourg first on religious freedom –and I have in mind the final judgment rendered by the Court in the Lautsi case- and second on private life under Article 8 of the Eurοpean Convention. It should be said that this particular approach is actually openly favored in particular by judges coming from former communist Eastern European member states; they attempt to justify and perpetuate discriminatory attitudes national specificities in the treatment not only of religious but also of sexual minorities, to the detriment of equal protection and respect. No need to say how devastating are the effects of that approach on the process of building a common European perception of the rule of law.
Let me open, at this point, another short parenthesis on a topic which is not directly linked with the subject of this lecture but is very closely connected with it, that is proportionality. The basic tool for admitting national specificities in that kind of litigation while saving the appearances of a common European background is the thoughtless enforcement of the principle of proportionality in almost all cases brought before the European Court of Human Rights. Originating from the jurisprudence of the German Constitutional Court that concept also reflects a long lasting paternalistic percerption of human rights and their enforcement, dating from the Bismarckian era; it is actually widely recognized by the courts throughout continental Europe as the proper method for adjudicating hard cases, where two or more rights purportedly oppose each other. The widely acclaimed advantage of proportionality lies in that it allows judges to adapt strict rules and hard concepts to the specificities of factual situations, in what one would call a flexible enforcement of the law. No one can deny the civility of that endeavor, especially from a utilitarian standpoint. On the contrary, the disadvantage of that practice lies in that it is often used as a means to avoid an articulate debate on the substance of the protected rights. For sure, everybody agrees that there are indeed some rights, such the prohibition of torture, that may not be restricted under any circumstances and for whatever reason. However, most of the time, the facts in real life are more complex. To what extent the privacy of a a clamorous politician should prevail over the freedom of the press, in a case involving disclosure of the politician’s his hidden life? Is proportionality the proper method for adjudicating such cases, or is it a matter that should be settled at the level of principle? To conclude, while allowing a more supple application of legal rules, proportionality leads often to situations whereby the letter of the law is set aside in very subjective and hence unconvincing ways. In my opinion, that mode of enforcing the law enhances restrictions of the rights involved in the name, at best with the prevailing public feeling and, at worse, with the ruling majority’s perception of public interest. It goes without saying that, at the end of the day, the new enemies of human rights would be rather satisfied with that development.
I am now reaching the last part of my lecture, which is devoted to the attacks addressed by the new enemies of democracy and the rule of law against a very particular target, the judges, who are deemed more than anybody else to protect them. Front page tabloid titles such as “The enemies of the people”, coupled with huge photos of the attacked judges on the eve of an important hearing are not just a matter of free criticism; they amount to an open threat. It is even worse when the chief of the executive of a democratic country qualifies a judgment he dislikes as “ridiculous” and the judge who rendered it “a so-called judge”.
Allow me at this point a short retrospection, from a very continental perspective, of the role of judges in adjudicating politically sensitive issues.
At the aftermath of WW2, two major changes occurred in the constitutional framework of continental European nations: first, the proclamation and inclusion into their national constitutions of bills of rights inspired by the French Declaration of 1789 and the first ten amendments of the American Constitution. And, second, the establishment of Constitutional Courts, with power to settle the relevant disputes and impose the respect of the protected rights in practice.
At this point, it is important to have in mind that, until WW2, contrary to what was the case in the UK and America, the proclamation of rights in continental Europe was more of symbolic than of a binding character. That was due to numerous factors, the most important of which was the widespread distrust toward judges. In France, in particular, under the ancient régime, judges had become notorious for their servility toward the nobility and the monarchs. Not surprisingly, as early as 1790, the French Revolution adopted a Statute (which, by the way, is still formally in force) explicitly forbidding judges from reviewing not only executive action but also legislative acts.
Although it was closely linked to this French originality, the above distrust toward the judiciary spread all over continental Europe; judges were not seen as independent actors but rather as civil servants who were expected to act, as put by an American authority on the civil law tradition, John Henry Merryman, as “mere engineers of a machine designed by the legislator”. In that context, as explicitly proclaimed by the French Declaration of 1789, acts of Parliament were considered as reflecting the people’s will; as such, once they were adopted, they were considered as almost sacred and no one, could touch them.
In light of the above, the well known opposition of the American Supreme Court to labor market regulation at the beginning of the 20th century was perceived in Europe as an extravagance. In a book that subsequently became famous, Edouard Lambert, a French professor of Civil Law, fustigated the gouvernment des juges as an intolerable anomaly. And Hans Kelsen, the famous Austrian legal philosopher who had invented in 1920 the first Constitutional Court in his homeland, vehemently opposed the consitutionalisation of the bill of rights. Should that be the case, he said, judges will necessarily abandon the domain of law and get involved into politics; that is not their role, he concluded.
After the nazi defeat, the discovery of concentration camps and the revelation of the holocaust, such reserves could no longer obstruct the proclamation of human rights: bills of rights could not but be constitutionalized. Moreover, the failure of national Parliaments to avert the rise of fascism and Nazism imposed the creation of special courts with power not only to enforce protected rights but also to efficiently review the constitutionality of acts of Parliament which violated them. This role, though, was not assigned to ordinary judges, who continued to be regarded with condescension, but to Constitutional Courts, whose members, according to the kelsenian model, were not supposed to be career judges but personalities with political and not necessarily legal background, whose nomination was to be confirmed by Parliament, by decision taken preferably with qualified majority. Thus, it was hoped that they would have the legitimacy to adjudicate “hard” cases, i.e cases very sensitive both politically and morally.
In that way, next to Parliament and the Executive, Constitutional Courts claimed for the first time in the Continent to play a political role. Although initially that role was supposed to be limited within the realm of the Bill of Rights, it soon became evident that the respective domains of constitutional judges and legislators could not be clearly traced in advance. In line with the Supreme Court of Washington, European Constitutional Courts got more and more involved into the decision making process in the name not only of the Constitution, but also of the general principles the latter was supposed to contain.
To sum up, throughout continental Europe, there is a growing feeling that in times of peace, the last word belongs more and more to judges. This is for sure the case in the domain of human rights, where judges are now unanimously considered as guardians of the Constitution and of the rule of law. That role precisely is actually openly contested in Eastern Europe. Mr Trump’s recent criticism of the judiciary in the United States is very likely to invigorate that trend in the Western Part of the Old Continent as well.
I now reach my concluding remarks. They have to do with thiw lecture’s implied question, which is the following: do the participants to the Koblenz gathering share a common approach of legal and in particular of constitutional phenomena?
May I remind you that, in the past, the traditional enemies of democracy and human rights, on both sides of the political spectrum, denied the law any self-existence. For Carl Schmitt and the other supporters of the 3rd Reich in the legal community, the grundnorm, the fundamental norm was to be found in the Führerprinzip, i.e. in the will of the leader, whatever that would be; because the Führer was supposed to embody and express the people’s will. For Lenin, likewise, the state and the law reflected nothing more and nothing less than the will of the ruling class. With the advent of communism and the suppression of class conflict, the law would disappear; it wound “languish”, in Lenin’s term. Because it would lose its reason to exist; as he claimed in his well known book State and Revolution, under communism, the law’s unique raison d’ être would be the regulation of technical matters, such as the traffic in big cities. In other words, for both the one and the other overt enemies of open society in the 20th century, the law lacked any autonomy; it was a mere tool used by the rulers and the ruling class, whichever that would be, to impose their will in a covered way; it was a means to conceal crude violence and to transform potestas to auctoritas.
For sure, the new enemies of democracy and of the rule of law do not go as far as that. They claim that they will abide with the Constitution and with the rule of law; they do not hide though their intention to amend the Constitution of their respective countries once they come to power. And that for the purpose of adapting them to their views and to their ideology. Marine Le Pen, for instance, in a recent interview, said that if she is elected she will hold a referendum in which the French people will be invited to approve a constitutional amendment introducing the so-called priorité nationale, and prohibiting any form of communautarianism (Le Monde, 3.2.2017). In the same direction, the other Koblenz leaders have said that they intend to respect the existing constitutional order; they reserve though their right to amend it if they are elected.
Are the existing signs sufficient to anticipate the kind of regime the new critics of democracy will attempt to impose if they come to power? Would that regime be an open dictatorship of the kind Europe has experienced in the 20th century or a sort of authoritarian democracy of the kind Latin American countries have so often gone through in the 1960s and 1970s.
I personally tend to believe that the second of the above options is more likely to be the case. An open dictatorship is in my opinion improbable in today’s Europe not so much because such options are strange to the ideology of the participants to the Koblenz gathering , but because the current economic crisis, at least for the time being, is not so devastating and widespread as to shake the foundations of parliamentary democracy. After all, in spite of the similarities that exist and which are sometimes striking, the context is in our days different from the one which prevailed in Europe in the 1920s and 1930s.
Throughout Europe and America, the word most often used to characterize the movement led by the speakers of the Koblenz meeting and their American counterpart is populism. The term, nevertheless, is in my opinion too vague, because it encompasses under the same heading situations so different as Marine Le Pen’s anti-european positions and Alexis Tsipras’ diatribes against the Brussels’ bureaucrats, or Donald Trump’s attacks against globalization and Victor Orban’s or Vladimir Putin’s criticism against neoliberalism. Therefore, the concept’s analytical value is small. At the same time, I am not at all convinced by the distinction between “good” and “bad” populism recently put forward by Thomas Piketty, the well known French author of the famous book Capital in the 20th century, who suggests that the difference between the two lies only in their attitude, positive or negative, they adopt toward immigration.
Based on the contrary on the preceding analysis, I would instead be tempted to say that the form of regime the above leaders have in mind is characterized by the following common features:
First, the pre-eminence of the referendum as a means of expression of the people’s will, to the detriment of Parliament and of the regular legislative process. In their mind, more and more issues will be regulated through executive orders or through wide and vague legislative habilitations, to be granted to the executive in the name of the people’s will, as the latter was expressed “genuinely” and without intermediaries, through successive referendums.
Second, the executive’s accountability will be more and more before the people at large, through the use in particular of the new social media and not in an organized and institutional way before Parliament; it will be measured through opinion polls and not through more institutionalized methods.
Third, checks and balances will lose much of their previous effectiveness. The judiciary in particular will suffer from this trend, since there will be a systematic denial of the judges jurisdiction to decide on issues that are not strictly limited private matters and common criminality.
Finally, human rights will be officially denied to non-nationals, while for the citizens their protection will be substantially restricted in the name of either the prevailing public feeling or of public interest as defined each time by the Government.
Which is then the right word to qualify these trends?
Illiberal democracies, would be one option. Fareed Zakaria, the well-known Washington Post columnist has invented the expression, to characterize regimes where elections take place, but citizens are cut-off from the decision making process, because of the lack of civil liberties.
A second option would be post-truth democracies, where, according to a widely accepted definition, “debate is framed largely by appeals to emotions”, and “disconnected from the details of policy” and from the real facts. That however would be an excellent definition for a political science textbook; not, at least in my opinion, for a constitutional analysis.
I would rather opt for the term authoritarian democracy, which has the following advantage: democracy is there, since elections are held, but the people’s will is rigged; at the same time, human rights are not effectively protected since the independence of the judiciary is regularly menaced if not abolished.
Whatever word or definition should we agree upon, the fact remains that unless we get ready, as legal scholars and above all as citizens, to efficiently oppose these trends, the next years if not the next months may reserve us painful surprises.
*Lecture given at the Institute of Advanced Legal Studies in London, on 10 February 2017, at a meeting organized by the Britain in Europe think tank and the Law School of Brunel University, London; the meeting was chaired by professor Alexandra Xanthaki of Brunel Law School.