We will not compromise

What Viktor Orbán does and wants is incompatible with what the EU is and wants to be and is obliged to be by Article 2 TEU. Year in, year out we here on Verfassungsblog have been shouting this message, mostly to the wind so far, but lo and behold: It apparently took the recent LGBT law passed in Budapest to open the eyes of the Commission President and Member States to the character of the government in Hungary. At the EU summit, the heads of government from all over Western, Southern, Northern and a not insignificant part of Eastern Europe pounced on the freshly ex-EPP Fidesz leader Orbán with unprecedented passion and intensity. There was talk of red lines crossed. There was even talk of Article 50 TEU. Commission President Ursula von der Leyen called the law “a shame” and pledged in German, French, English, and Hungarian to use all her legal power to stop it: Ebben nincs kompromisszum. We will not compromise.

You can’t brand LGBT people as a danger to children by law and at the same time be committed to the EU’s fundamental values of “human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”. That seems so trivial that I hardly dare to write it down. What minimally interesting thing could I say about this? How can this even be controversial? How can anyone seriously and sincerely deny this?

How can this even be controversial? That is a question we seem to be facing more and more often. In the US, a clear majority of Republicans still believe that victory in the Presidential elections was snatched away from Donald Trump in a somehow illegal manner, without being in the least swayed by the fact that they could not and cannot present any reasons at all for this belief. Republican-nominated judges have dismissed their claims, Republican-appointed overseers have been unable to find any evidence – there is none. Meanwhile, seven months after the election and five after the storm of the Capitol, the Republicans are diligently and unapologetically working, for their part, to set in motion an election-rigging scheme of awe-inspiring dimensions in the states they control. The attempt by the razor-thin Democratic majority in Congress to prevent the worst by federal legislation failed this week because of a filibuster by the Republican minority in the Senate.

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Online-Veranstaltung – XXVI. Verfassungsrichtertreffen Lateinamerikas

Zurzeit findet noch bis zum 26. Juni das XXVI. Verfassungsrichtertreffen Lateinamerikas statt, organisiert vom Rechtsstaatsprogramm Lateinamerika der Konrad-Adenauer-Stiftung und dem Verfassungsgerichtshof Ecuador.

Neben den Verfassungsgerichten der Region nimmt auch der Interamerikanischen Gerichtshof für Menschenrechte und das Bundesverfassungsgericht teil, dieses Jahr u.a. mit einem Beitrag des Präsidenten Prof. Dr. Stephan Harbarth. Die Aufzeichnungen bzw. Zugang zu den noch anstehenden Panels finden Sie hier.

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An election is, to state the obvious, a matter of procedure. It’s about fixed rules and an open outcome, to count the votes of free and equal citizens and to determine who has the majority and thus the legitimacy to exercise power over and on behalf of all. It’s all about procedure. That’s the whole point. What else could it be?

A matter of reflection

I had the opportunity to meet with our old friend and supporter Mattias Kumm at the WZB this week, at last after a long pandemic break, and talk about the USA, among other things, where he spends half the year teaching at NYU. In our conversation, we came up with a hypothesis that appears pretty plausible to me: What if Republicans actually have a entirely different idea of what an election is about? What if their idea of correct and functional elections is not so much about adherence to procedural rules at all? What if they regard democratic collective self-determination rather as a kind of mirror in which “the people” reflect and  recognise and reassure themselves of their identity? What if that is what these normal, law-abiding, God-fearing American patriots actually expect from a democratic election most: to recognise in it their own normal, law-abiding, God-fearing patriotic likeness, as opposed to minorities, socialists, elites and foreigners?

If that is so, then there is indeed little point in calling the Republicans to account about how little evidence there is for Democrat election rigging in the past and how much there is for Republican election rigging in future. Procedure, for them, is all just technicalities and legal niceties, not what actually matters in a democratic election, which is the correct reflection of the people. From that correct reflection, or what they consider it to be, they read whether the election worked, and if it didn’t, then, regardless of procedure, the official winner of the election is a fake. Then the real President is Trump. Then storming the Capitol is just consequential.

Perhaps it has always been the case that a great many people care much less about procedure than we lawyers would like to believe. It’s just that it didn’t matter that much because it didn’t affect the result most of the time: The normal, law-abiding, God-fearing patriots were reliably in the majority anyway, and there were procedural rules in place to make sure it stayed that way, so procedurally by-and-large correct elections could usually be relied upon to reflect just what they were supposed to reflect. They were, after all, the normal folks, and the ab-normal minorities had a claim to tolerance at best, but certainly not to power. That was held by their likeness, Democrat or Republican, and the more certain they could be about that, the more fairness, bipartisanship and procedural openness of outcome they could safely afford.

That is no longer the case. Minorities don’t necessarily stay in the minority, if they ever were, and normal folks are having their normality and normativity disputed with increasing vigour and success. It has become possible, if not probable, that the procedural outcome and the mirror image fall apart. What, in that case, will people be faithful to? That’s not exactly obvious, is it?

If that is so, if this is about whether democratic legitimacy comes from correct procedure or from identitarian reflection – how can we trust that this dispute can be settled between political opponents within the framework of rule-based democratic procedures itself? It may have been a big mistake for the Democrats in the Senate not to abolish the filibuster when they could – as if the Republicans would flinch before doing the same to them if they were in their place. This is going to be a long, hard fight. It already has been for a while, actually. Not just in the US. Ebben nincs kompromisszum. We will not compromise.

This week on Verfassungsblog

The Hungarian LGBTQ law mentioned above is shaking up the European Union, but legally it is primarily a case for the European Convention on Human Rights. In 2017, the ECtHR condemned Russia for a very similar law.  SÉBASTIEN VAN DROOGHENBROECK, CECILIA RIZCALLAH, EMMANUELLE BRIBOSIA, OLIVIER DE SCHUTTER, ISABELLE RORIVE, JOGCHUM VRIELINK and many other Belgian constitutional, EU and international law professors call on the Belgian government in an open letter to take Hungary to court in Strasbourg.

The current European Football Championship is also being fought not only over non-political goals, but also over Hungary’s LGBTQ legislation, much to UEFA’s displeasure. Is the freedom of expression of athletes like Manuel Neuer with his captain’s armband in rainbow colours sufficiently protected against the sports federations? WOJCIECH LEWANDOWSKI examines this and the possibilities of improving protection.

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Is the ECJ, which is facing tough battles precisely in matters of judicial independence, itself compromised because of the way in which member states removed British Advocate General Eleanor Sharpston from office post-Brexit? The ECJ itself thinks decidedly not. DIMITRY KOCHENOV and GRAHAM BUTLER are at least as decidedly of the opposite opinion. SOPHIE BOHNERT criticises the court for not disclosing how it came to the conclusion that Sharpston’s mandate ended with Brexit. LORENZO GRADONI, on the other hand, thinks the ruling is wise and that the member states’ decision based on an old tradition is legitimate.

Speaking of Brexit: In the UK, the government is looking for ways out of the legal obligations it has itself entered into regarding Northern Ireland, and some are bringing up the possibility of “state civil disobedience” against the allegedly unjust agreements with the EU. OLIVER GARNER thinks this is an exceedingly bad idea.

Does anyone still remember Schengen? That border controls have actually been abolished among the member states? The ECJ recently heard oral arguments on the conditions under which this obligation may be suspended. POLA CEBULAK and MARTA MORVILLO explain the legal situation.

Chile has elected a Constituent Assembly to leave the Pinochet-era constitutional past behind it and put it on new feet in a way that are more in line with the country’s diversity. JORGE CONTESSE describes the opportunities and challenges that arise. RODRIGO KAUFMANN looks at the question of whether and to what extent the constitutional process itself must abide by existing rules.

In Brazil, the Advocate General takes the position that civilians (journalists) can also be brought before the military justice system if they criticise the military. ULISSES REIS and RAFAEL CABRAL comment on this latest step towards authoritarianism by the Bolsonaro government.

Under the EU’s Digital Services Act, member states will be able to certify arbitration tribunals to decide disputes over decisions made by online platforms. According to DANIEL HOLZNAGEL, this proposal violates existing EU law, especially since there are better alternatives to enforce user rights against platforms.

While the Legal Affairs Committee of the German Bundestag rejected the term “racist” in the Basic Law because it was too vague and there was a fear of an overbearing case law, the Interior Committee next door agreed to use this very term in the Citizenship Act as a ground for exclusion from naturalisation. For TARIK TABARRA, this episode of legal policy shows that Germany still has a considerable need for development in dealing with “race” and racism in law.

New transparency rules in the Bundestag should make MPs’ conflicts of interest more transparent, which can be significant for parliamentary work.  KRISTINA PETERS welcomes the regulation, but regrets the continued lack of an independent supervisory body.

After Covid protesters took the anti-republican imperial war flag to the steps of the German parliament, federal and state Ministers of the Interior intend to declare that flag an administrative offence. SAMIRA AKBARIAN sees this as a balancing conflict between public order as a symbolic order and a formally understood freedom of expression.

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