The Failed Attraction: Why Europe has failed to induce former communist countries to adopt the liberal constitutional model

Nicos C. Alivizatos, Emeritus professor of law, University of Athens

In a lecture he gave in 1992 at the American Enterprise Institute, the prestigious Washington based conservative think- tank, Samuel Huntington, a prominent political scientist and Harvard professor, argued that, after the end of the Cold War, future wars would be fought not between countries but between cultures, between civilizations; he was thus reacting to the well-known book titled The End of History, by a former student of his and since then another celebrity in the field of international relations, Francis Fukuyama. Huntington further developed his thesis in 1993 in an article published in Foreign Affairs titled “The Clash of Civilization”, and in 1996 in a widely commented book with the same title.

For Huntington, the clash of civilizations represented a new phase in the world’s history, with religious divisions playing an important role. In the past, he argued, wars were mainly about struggles between monarchs, nations and ideologies. That would no longer be the case since, from now on, non-Western civilizations and in particular Islam are going to claim their own role in shaping the world.

At the time, Huntington’s approach was sharply criticized by many, including Edward Said, who rightly accused Huntington for neglecting the dynamics of interdependence and interaction between cultures and who went as far as to qualify his theory as the “Clash of Ignorance”. Ι myself was among those in Greece who criticized his approach: from a constitutional standpoint, I found odd Greece’s assimilation to Russia and the other Balkan countries which Huntington had classified as “Orthodox”, that is as belonging to a group of countries which, by all means, were not real democracies neither did they respect human rights and the rule of law. Huntington’s theory was soon forgotten; realities proved much more complex to be explained by his classifications.

That being said, you may reasonably ask me why do I refer to Huntington’s theory in lieu of another introduction to today’s lecture. The answer is simple: while preparing my speech, I was really surprised to find that Huntington had classified Ukraine at the fringe of the Western and the Orthodox civilization; it is in his view a “cleft country”, divided between its Catholic dominated West and its Orthodox dominated East. And in his view, a split between the two –a split by the way he himself wished it were peaceful- was about to happen, sooner or later.

After Russia’s invasion of Ukraine and in view of the ongoing war, one may therefore plausibly ask if Huntington’s predictions were correct. And if the failed attraction of Russia and several other former communist countries to European constitutionalism is owed, at the end of the day, to civilizational rather than economic or political factors. My answer to these questions is no and I will try to explain why.

 

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With the exception of Rumania, the fall of communism in Eastern Europe and subsequently in Russia was smooth and peaceful. Since then historians have saluted the velvet transition, the third wave of the democratization process, as it was often called, and most authors welcomed central and eastern European countries back to where they allegedly belonged.

For almost twenty years, all of these countries adopted the free market model and neoliberal ideas and policies. Hayek’s theories were virtually unchallenged and dominated the course of the political and economic reforms in the region.

To that state of affairs put an end the 2008 financial crisis and the Eurozone crisis which followed immediately afterwards. Impressive economic growth of 4 to 5 per cent per year was succeeded by decline throughout the region and some countries suffered dramatic drops in gross domestic product. What is more, from one day to the next, the influx of credits stopped. Not surprisingly, in almost all central and eastern European countries the shift from neoliberal policies to State centered economics was immensely facilitated by the same countries’ communist past. Statist models of development based on the nationalization of banks and other industries, punitive treatment of foreign investments and economic protectionism were common features; not surprisingly, at the political and institutional level, they led to changes in the same direction.

After the fall of communism, with the assistance of European and American experts, all central and eastern European countries adopted western type constitutions which, as a general rule, followed the French Fifth Republic model: with the exception of Russia, which, under Yeltsin, opted from the very beginning for a presidentialist form of government , they all sought to establish parliamentary Republics with heads of State elected directly by the people, proportional representation for the election of their Parliaments, separation of powers, independent judiciaries on the carrier judge continental European archetype and constitutional courts based on the Austrian-German kelsenian model, whose members were to be elected with a widest possible consensus; Not surprisingly, all central and eastern European constitutions proclaimed all basic human rights, with special attention to the protection of minorities and to social rights.

The philosophy behind that constitutional model is in my opinion easy to understand: having lived for more than forty years under regimes where all powers were concentrated in the hands of the communist elite if not of a single leader, all former communist countries –with the notable exception of Russia- opted for a model of parliamentary democracy with many centers of power. The latter were thus created, for the purpose of freely competing in a way that would prevent the advent of a single actor or, to use the term invented by a George Tsebelis, a professor at the University of Michigan, in order to preclude once and for all the supremacy of a unique veto-player. In that way. it was hoped that the nightmare of a highly centralized one-party regime which would resemble to the communist model, would be barred forever.

Let me clarify, at this point, that the formal adoption of the western constitutional model by central and eastern European countries was not owed exclusively to the ideological attraction it exercised after the fall of the Berlin wall. Since 1992, article 49 of the treaty of the European Union referred explicitly to the rule of law and raised it as an eligibility criterion for EU membership, according to the Copenhagen criteria laid down by the Council of Europe, which were subsequently systematized and complemented by the Venice Commission. To remind you of the words used at the time by the European Commission, “adherence to the rule of law is a prerequisite for upholding all rights and obligations deriving from the treaties and from international law”. In other words, compliance with the fundamental principles of constitutional democracy and of the rule of law was a fundamental requirement for access into the EU, which at the time was seen as the promised land for collective happiness and as a shelter against potential enemies or nostalgic supporters of the past.

 

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The first signs of the change of that state of affairs goes back to the amendment of the Russian Constitution in 2008: Mr Putin could from then on be elected for a third and even a fourth term in the Russian presidency. In 2011, Hungary was the last former communist country to adopt an entirely new Constitution. It was voted by Fidesz, since then the country’s ruling party, which had won a supermajority in the previous year’s general election. Since then, Viktor Orban, the party’s leader and prime minister has expressly declared that the Hungarian Fundamental Law is not a liberal Constitution:

We have abandoned liberal methods and principles of organizing society as well as the liberal way to look at the world, he said in 2014. Today, the stars of international analyses are Singapore, China, India, Turkey [and] Russia […] We are […] parting ways with Western European dogmas, making ourselves independent from them.

He then referred to George Soros’ Open Society and other international organizations exercising influence on Hungarian public life, and continued:

It is vital […] that if we would like to reorganize our nation-state instead of it being a liberal state, that we should make it clear, that those are not civilians (citizens?] […] opposing us, but political activists attempting to promote foreign interests […]

In more recent speeches, Orban defined his democracy as Christian, which as such was “illiberal”:

There is an alternative to liberal democracy, he said; it is called Christian democracy […]. Let us confidently declare that Christian democracy is not liberal. Liberal democracy is liberal, while Christian democracy is, by definition, not liberal: it is, if you like illiberal.

Later on, when asked what was the precise meaning of the term “illiberal state”, the Hungarian Prime Minister responded as follows:

We are Christian democrats and we are differing nowadays in three aspects from the liberals. The first one is the conviction that family is based on one man and one woman. We believe that this needs to be protected, which the liberals deny. Secondly, while the cultural life of every country is diverse, a Leitculture, a cultural tradition is present everywhere. In Hungary this is Christian culture. […] Liberals refuse this concept. The third aspect is that liberal democrats are everywhere pro-immigration while we are against immigration. So, whether one admits it or not: Christian democrats are illiberals by definition.

In Poland, after winning a parliamentary majority in the 2015 general election, the Law and Justice party joined Hungary on the path to illiberal democracy. It soon identified the country’s Constitutional Tribunal as the main obstacle to its plans. In the words of a Polish constitutional scholar, Wojciech Sadurski, from the beginning of the 1990s, that Tribunal was perceived as the most poweful counter-force to what Tocqueville had qualified as the potential tyranny of the majority, i.e. the democratically elected majority, which carrier judges did not dare to oppose. According to Jaroslaw Kaczyński, the leader of the ruling party who has been defining since then its strategy, the Constitutional Court ought to be reformed to ensure that there are no legal blocks on government policies aimed at creating a fairer economy.

Court-packing, that is the increase of the number of constitutional justices was the first step toward the annihilation of the Tribunal. The second were a series of laws aiming to curtail the Court’s independence. Among them the provisions that rulings declaring laws unconstitutional should be approved by a two-thirds majority. Finally, another law provided that cases will have to wait in the docket for at least six months before they can be decided.

In 2016, the Polish Constitutional Tribunal unexpectedly reacted declaring many of these provisions to be unconstitutional. In response, the Government declared that it would not enforce that judgment and refused to publish it in the Official Gazette. Its stance was condemned not only by the Venice Commission but also by the European Court of Justice, whose finding was that an utter violation of the rule of law had occurred.

Hungary’s reaction to the 2015 immigration crisis signaled the culmination of its anti-European course: along with Slovakia and with the support of Poland, the Orban Government refused to accept the relocation of third-country nationals. It thus openly violated the European Council Decisions of September 2015 which established provisional measures for the implementation of the Geneva Convention and the relocation quotas.

Let me now summarize the basic tenets of the illiberal strategy and practice, as enshrined by the practice of the above countries in the last fifteen years:

Firstly, the glorification of national sovereignty which means priority of national Constitutions over EU and International law. In a series of cases which have been brought, as you well know, to them, the Courts of Luxemburg and Strasbourg, have been seeking to preserve the primacy of European law in a very hostile context. Not surprisingly, in 2020, that is less than two years before the invasion of Ukraine by the Russian army, the Russian people approved through a contested referendum a constitutional amendment providing that judgments rendered by international Courts were to be enforced in Russia only to the extent that they did not contradict Russian constitutional values. Because, as claimed by Vladimir Putin himself in January 2020, sovereignty must be unconditional […]. Requirements of international law and treaties […] can be valid on the Russian territory only to the point that they do not restrict the rights and freedoms of our people and do not contradict our Constitution.

Coupled with the idealization of national traditions and values, that primacy of national constitutions goes obviously against the unification project and undermines the acquis communautaire.

As a second tenet of the illiberal wave I would name the overt hostility toward checks and balances and, in particular, toward the judiciary. That hostility goes along with the reinforcement of the executive. Russia and Belarus -which, to be accurate, have always been reluctant toward parliamentary government- provide that their actual presidents may legislate on their own in the fields of foreign policy and national security and that they will have life immunity for crimes committed not only during their term in office but also after the end of their official duties, whenever that occurs.

Control of the media is the third tenet of illiberal regimes. While openly restricting the freedom of expression through systematic persecution of journalists opposing their policies, illiberal governments seek to control radio and TV stations, either directly, through the appointment of devoted friends as managers of State owned media, or indirectly through the allocation of state advertising to friendly outlets, through bank loans and through mergers and acquisitions favoring government supporters.

Last but not least, I would mention the attacks against the élites and the crude flattery of the people through the glorification of referendums as the only means proper to ensure the direct and hence genuine expression of the people’s will. Let me be clear at this point: the referendum, in that line of thought, is not perceived as “the people’s veto” that is as a means to revoke unpopular or outdated acts of Parliament- as is the case in Italy, but as a process either to initiate or to approve new legislation and constitutional amendments. In that way, referendums, combined with executive legislation, are supposed not only to complement but if possible substitute the ordinary legislative process in Parliament.

 

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After that painful constitutional tour d’ horizon, I am now reaching the last part of my lecture in which I will try to explain why the above happened.

Let me at first mention the most obvious reason of the shift of central and eastern European countries toward illiberalism: with the exception of Czechoslovakia which, under Mazaryk and Benes, has had a functioning Republic throughout the interwar years, none of these countries had been a real parliamentary democracy before the second world war. Before their passage to communism, free elections and a multiparty Parliaments were unknown not only in the Soviet Union but in the other former popular Republics as well which, sooner or later, in the 1920s and 30s had all yielded to populist dictators or monarchs. To put it bluntly, due to the vicissitudes of history and to the feeble propagation of the enlightenment in that part of Europe in the 18th and in the 19th centuries, parliamentary democracy did not prosper after the dissolution of the empires and the access of the their various components to independence. Therefore, in my opinion, with one exception, that is the region of central Europe which Milan Kundera, the well-known writer, has described as “a kidnapped part of the West […] which had fallen under Russian domination”, the communist era was not a temporary diversion from a historical process of democratization, but the culmination of an authoritarian trajectory that almost all central and eastern European countries had experienced.

Having said that, transition to democracy after the fall of communism was not a mere political change but a cultural shock. Combined with the collapse of state welfare mechanisms and the prevalence of neoliberal methods in market economics and along with, to say the least, the wide-range corruption which marked the privatization of huge industries and the advent of a cohort of economic oligarchs, the passage to liberal democracy was often painful. In brief, while the adoption of the western constitutional model was an undeniable success, it was a partial success, since it went too fast, at a pace which did not favor its taking deeper roots. As rightly observed by Bojan Bugarić, a Slovene professor of law, those who expected that a decade of “EU accession” would lead to an irreversible break with the totalitarian past were simply naïve. They forgot that institutions of liberal democracy cannot be created overnight. Developing liberal democracy requires not only a longer time frame, but also continuous support by the citizens.

I now reach to the second set of reasons that led to the illiberal shift in central and eastern Europe and, in particular, in Hungary and Poland. I am referring to the interpretation proposed by Anne Applebaum, the well known American historian and journalist, in her personal testimony titled The Twilight of Democracy (2020).

Applebaum’s starting point was the following:

Today is not 1937. Nevertheless, a parallel transformation is taking place in my own time, both among the thinkers, writers, journalists and political activists in Poland, a country where I have lived for three decades, as well as in the rest of the societies we have come to call the West. Everywhere, this transformation is taking place without the excuse of an economic crisis of the kind Europe and North America suffered in the 1920s and 1930s. The recession of 2008-2009 was deep but –at least until the cornovirus pandemic- growth has returned. The refugee crisis of 2015-2016 was a shock, but it has abated […]

Referring in particular to Poland and Hungary, Applebaum uses an interesting concept, that of the “Medium-size Lies”, which helps understanding why and how demagogues win. George Soros, the Hungarian Jewish bilionnaire who is supposedly plotting to destroy Hungary through the deliberate importation of thousands of immigrants, has been Viktor Orban’s scapegoat and the target of an official government campaign which helped his party, Fidesz, winning consecutive elections. As for Kaczynski, his own scapegoat was the Smolensk conspiracy theory. As you may recall, in April 2010, the Polish President’s plane crushed before landing in Smolensk, near Katyn, the place where Stalin had slaughtered more than 21,000 Polish officers, in 1940. It happened that the President who died was Jaroslaw Kaczynski’s twin brother. Although nothing supporting the conspiracy theory was ever proved, a whole myth was built around that accident, aiming at calumniating and slandering the liberal élites and all those who opposed the Law and Justice party.

In both cases, the conspiracy theory was built on grains of truth. Soros had indeed once suggested that Europe might make a humanitarian gesture and admit more Syrians. In Poland, there was a belief that the president’s plane was brought down by a secret plot, aiming to assassinate, beyond the chief of State, more than a hundred military leaders, diplomats and politicians who were on board.

In relation to Britain and to the Brexit campaign, Applebaum observes that before “Medium-size Lies” were systematically used by the “Leave” campaign, the EU had become a kind of fixation for nostalgic conservatives. For some of them, Europe had become the “embodiment of everything else that had gone wrong, the explanation for the toothlessness of the ruling class, the mediocrity of British culture, the ugliness of modern capitalism and the general lack of national vigor”. Medium, large and extra-large lies were also used by Donald Trump in his 2016 electoral campaign; for him “globalization” was the cause of all wrongs and played a similar role with the role played by the EU in the “Leave” campaign in Britain.

As you have noticed, Appelbaum’s approach is exploring the reasons of the failure of central and eastern European countries to build strong and open constitutional democracies beyond the borders of the countries concerned. In that sense, her contribution is important, because it raises an issue we often avoid: the responsibilities of the West.

In a review of Applebaum’s book in the New York Review of Books, an American author, Jackson Lears, observed that by 2016, “liberal democracy”, “once bright with promise, had dulled into a neoliberal politics that was neither liberal nor democratic”. The reason for that, he added, was the inflight marriage of Silicon Valley and Wall Street in the cockpit of globalization.

I would not go as far as to say that we have been witnessing a similar marriage in Western Europe. As opposed to America and as shown since then by the successful facing of the Covid-19 pandemic, the welfare State broadly survives in our continent and participation to the political process remains higher than in the USA. Still, if one compares the mood of our times with the spirit that prevailed in Western Europe after the Liberation, in 1945, at a time wher the Mouvement Européen was expanding and the Council of Europe was created to face totalitarianism, one cannot be optimistic. Free elections, freedom of speech, parliamentary government and the rule of law are considered, by the younger generation, as if they were self evident if not natural phenomena, that do not need neither revival nor renewal. Placing today’s realities in their historical perspective so that our children and grand-children realize what exactly Europe went through in the long twentieth century, is in my opinion the first step for changing that mentality. The fact that in the history of humanity, never in the past, such a large segment of society has lived in freedom and dignity as in Europe since 1989, while enjoying to such an extent both the intellectual and the material achievements of civilization is an accomplishment Europe should be proud of.

The second step should be, in my opinion, a well prepared plan to adapt our means and methods to the realities of the digitalized world of our era. I have in mind, in particular, the need to reinvent European constitutionalism, through a set of reforms to political institutions and processes that would involve political and cultural actors as well as civil society.

Let me just enumerate some of them, all inspired by a study entitled “Our Common Purpose”, prepared in 2020 by an ad hoc Commission of the American Academy of Arts and Sciences. Unfortunately to this day, these proposals are been debated exclusively in academic circles; they should in my opinion gain wider audiences:

Firstly, give people more choices about where and when they vote, with the adoption of legislation that supports the implementation of as many as possible vote centers and early voting. This proposal aims at reducing abstention rates; it is inspired by the measures taken for the 2020 American presidential election in view of the constraints poses by the pandemic. Nothing prevents the introduction of similar measures in normal times as well.

Secondly, introduce multiple voting. Instead of choosing only one party or one candidate, voters would choose their preferred party and candidate and then rank their second choice, their third choice and so on. After votes are tallied, the least popular candidate is removed and that candidate’s supporters’ votes are allocated to their second choices. The process continues until a single candidate receives a majority of support. As argued by George Tsebelis, the principal promoter of that proposal in the United States, the logic behind that electoral system, actually practiced among others in Malta and Australia, is that because second and third choices matter, candidates have an incentive to speak to a broader group of voters. The result is obvious: the extremes are reduced, moderate candidates and campaigns are privileged and confidence among voters that their votes are not being wasted is increased.

Thirdly, promote regulation of election contributions and spending to eliminate undue influence of money and to protect free speech. That regulation should go along with the adoption of strong campaign-finance disclosure laws.

Fourthly, enhance active participation of citizens to political institutions and processes worthy of participation. In that direction there should be adopted technologies that encourage widespread participation by citizens in official public hearings and meetings at local and national levels. Parallel to these methods mechanisms should be introduced to enable members of Parliament to interact directly and regularly with a random sample of their constituents in an informed exchange each time about specific policy areas.

 

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I will close my speech with an incident that occurred in Dallas, Texas, last August. Viktor Orban was invited to address a meeting organized by a right-wing group, the Conservative Political Action. “We must take back the institutions in Washington D.C. and Brussels”, he said. “We must co-ordinate the movement of our troops, because we face the same challenge”. “You have two years to get ready”, he added, in an apparent reference to the next US presidential election. “We face”, he concluded, “a clash of civilizations”. As reported, that phrase drew an enthusiastic applause.

I am not at all sure that the Hungarian leader was aware of Huntington’s classifications when he made that reference. What is obvious, though, is that “the clash of civilizations” fit very well his strategy, according to which there exists within the West an alternative perception of democracy and of the rule of law, whose fundamental characteristics are exclusiveness, the lack of tolerance and the absence of checks and balances. What I tried to show in my lecture is that this is a false assumption. Mr Orban’ illiberal democracy is nothing less than a denial of democracy, whose popularity both in East and West is not owed to the alleged deficiencies of the Western constitutional model, but to very specific causes, which are closely related to the present circumstances

Allow me to close with an optimistic conclusion. In spite of the war in Ukraine and the other alarming signs for the future of democracy and for the rule of law in Europe, I believe that it is not too late to start a well organized and structured campaign not merely for defending the acquis of our constitutional civilization but also for reviving our rules and practices. For this purpose, sanctions to those who break standing rules are necessary; however, they do not suffice. What is further needed is vigilance, audacity and imagination from all of us.

 

Venice, October 19, 2022

UNIVERSITÀ CA’FOSCARI, VENEZIA

Centro Studi Giuridici

 

 

 

 

 

 

 

 

 

 

 

 

 

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