Restoring Constitutionalism
An open letter
New York and Budapest, November 11, 2021
Dear Friends and Colleagues
How to restore constitutionalism and the rule of law is a somewhat neglected problem among constitutionalists. Constitutional restoration poses a challenging question where the constitutional system has entrenched „authoritarian enclaves,” i. e. binding institutional solutions that make it practically impossible to restore a rule of law based democracy. In Chile it has taken almost 25 years to eliminate the bionic appointments to offices as well as the binomial electoral system that made it nearly impossible to change the constitutional structure unless its beneficiaries were to agree. The Turkish Constitution protected those generals who were responsible for the 1980 coup and its bloody aftermath (Provisional Article 15, repealed in 2010). The irremovability of judges is often the obstacle of the reform that would enable judicial independence and the enforcement of the rule of law.
Currently, thanks to forthcoming elections, some countries where “democratic backsliding” has taken place, may have the opportunity to restore the rule of law. This is the case in Hungary where, there is indeed a chance of an electoral victory of the combined opposition next spring. Assuming the possibility if not the certainty of such an outcome, there is now a professional debate in Hungary concerning the possible replacement of the FIDESZ-enacted Basic Law which entails a number of entrenched rules that enable the perpetuation of incumbent power even if FIDESZ were in opposition in Parliament. The Basic Law contains a set of procedures and long-term office incumbencies that would make it very difficult for a newly elected government of the opposition to govern. There is little chance that the opposition will win a qualified two-third majority to amend the constitution and enact “cardinal laws” to change those which guarantee the continuation of the institutional and economic power of the current regime.
The Basic Law was enacted legally in the formal sense, i. e. in conformity with the applicable rules, although the main parameters of democratic consultation, participation and ratification, previously practiced or mandated in Hungary, were systematically neglected. The resulting question is this: how to govern democratically the day after the elections where the former opposition obtains the majority but where there is no way to amend the power-perpetuating-rules within the frame of formal legality? Is a democratic community bound to follow constitutional rules of dubious democratic nature? Or can these be replaced in violation of legality, for example in an extra-parliamentary democratic process? If so, under what conditions?
We would like to ask you for your help regarding the formulation of alternatives between these two extremes of legality and paralysis, possibly involving an element of illegality, but compensating for this by dramatic increase of democratic legitimacy.
The problem is one that transcends Hungary. We hope that with or without reference to Hungary, or having in mind other scenarios of entrenched authoritarianism, a debate on this specific problem of unconstitutional amendment and legislation can take place on these pages. Here are few questions we consider relevant for this common exercise.
- If a constitution is demonstrably incompatible, in part and even as a whole, or simply in view of its social and political consequences, with the principles of the rule of law, should it be rapidly replaced or radically amended? How to determine such incompatibility?
- Round tables, where political parties convened in an informal setting were often used in transitions to democracy. Is such negotiated process adequate and defensible from the perspective of constitutional and democratic theory?
- Many democratic constitutions all over the world were created under procedures that did not correspond to the formal amendment requirements in place. Is such disrespect of formal rule-making (constitution-making) appropriate in the absence of a collapse of the state or a revolution, if the previous regime is corrupt and based its existence on a violation of the rule of law? What should be the procedural and substantive minimum in case such process is considered legitimate even if illegal?
- Given that popular sovereignty and the constituent power of the people are recognized as primary concerns in democratic constitutional theory, what kind of popular participation would legitimize extra-constitutional constitution-making? Is approval in referenda of a constitutional project a necessity in such a case? Is the optimal realization of principles of popular sovereignty in the process of constitution-making a remedy to the violation of previous formal rules of amendment or replacement?
- Do you agree or disagree that a generally accepted component of a democratically legitimate form of constitution-making is a freely elected drafting assembly, constituent assembly or convention or even a regular parliament designated for that purpose as long as elected according to a fair and inclusive electoral system, even of these forms are not called upon constitution-making by the constitution in force? What are the reasons for one or another solution? What local considerations are to be taken into account? How to enable public discussion and participation?
- What are the substantive requirements applicable to the legal system during the process of constitution-making? Is the old constitution to be applied in this interim period? In its totality or at least in terms of fundamental rights (assuming that these are protected in the constitution in force)? If so, how to guarantee such protection (for example by relying on existing institutions like courts)?
- What to do (in light of constitutional theory) if a consensual process of constitution making relying on all important actors turns out to be impossible?
As already indicated, we very much welcome comments on these points, whether affirmative or negative, critical or supportive. Contributions will be collected and published in a blog symposium here on Verfassungsblog. Please send your contribution (2000 words maximum) until 8 December 2021 to info@verfassungsblog.de.
Sincerely Yours
Andrew Arato
Hirshon Professor in Political and Social Theory
The New School
András Sajó
University Professor, CEU
In cooperation with:
This is a vital discussion given that liberal democracy is being overwhelmed by autocracy and the creeping march to dictatorship in many former democratic socieities.
I am starting to delve into what I call “oppositional sovereignty” that those in formerly liberal democratic societies can assert their oppositional sovereignty against the autocrats by seeking to obtain legitimacy first outside the country by requesting status or rights claiming actions in international bodies such as the treaty bodies of the UN human rights system and in regional courts and commissions. Ultimately, those having clear proof of such oppositional sovereignty could argue for status as a legitimate government in exile. I am asserting in a presentation that I will be making at Oxford University that this situation could be one that is at play in Myanmar. Hope this helps in this crucial discussion. Professor Errol Mendes
What is missing from the considerations of Prof. Andre Arato (an unforgettable great teacher, whose seminar with Jean Cohen and Michel Rosenfeld, at the New School and Cardozo, on comparative constitutionalism I attended in 2007) and Prof Sajó are these issues:
– for what political reasons did FIDESZ (and I am no fan of that party) win a majority that allowed it to unilaterally alter the basic law in a procedurally correct manner? If this happened once, how would you prevent this in any new constitutional set up to happen again, even if FIDESZ would lose the election this time? FIDESZ Could win next tome, right? Answer is: you cannot prevent it, as long as your new constitutional set up contains formal rules to make changes that require certain majorities. Even if you put in certain eternal clauses as under the German constitution, you probably could not put in rules that would prevent a future supermajority of FIDESZ or anone else that was legally elected to change everything back to what it was before.
– they write that their desired changes could be “possibly involving an element of illegality, but compensating for this by dramatic increase of democratic legitimacy.” – how nice. If you say that this is a legitimate argument, anyone can make it, even FIDESZ. Or not? Anyway: What is going to stop them to make this argument next time they win an election, but not with the sufficient supermajority for making a new constitution, but with a majority that they think is democratically legitimate, to introduce their new Constitution in an unconstitutional manner “ possibly involving an element of illegality, but compensating for this by dramatic increase of democratic legitimacy.” – My fear is here that you are giving more ammunition to the opposing side that you would like to admit.
In a normal democracy Fidesz would no longer exist. The corruption of its senior (and not so senior) leadership is so thorough (it’s almost unimaginable to Western observers) that all but a handful of its more well-known politicians would avoid prison. One of the most important methods of the control of the state is the control of the prosecution which as a first line of defense refuses to investigate or prosecute 99% of the corruption cases (though there are a few token cases). So in a normal world the loss of popularity (and loss of access to circa EUR 750m which is being spent directly on propaganda in a country of 9.8m per annum/ and has been for year and years now) would simply result in the implosion of the party.