Доповідь в.о. Голови Конституційного Суду України Сергія Головатого „Конституційні уроки з минулого та з майбутнього“ на Міжнародній конференції, м. Вільнюс, 25.10.2022

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 Constitutional Lessons from the Past and from the Future

 

Introductory Remarks at the Conference “From the National Constitution to Transnational Constitutionalism”
Vilnius, Lithuania, 25 October 2022

by
Serhiy Holovaty,
Acting Chief Justice, Constitutional Court of Ukraine,
Member of the Venice Commission on behalf of Ukraine

 

1. The Fall of the Berlin Wall in 1989 marked the liberation of Central and Eastern Europe from almost half a century of totalitarian Soviet rule.  

2. Since then, almost all the countries of Central and Eastern Europe (with Belarus the only exception) have become the members of the Council of Europe, adhering to its foundational values – democracy, human rights, and the rule of law – as an obligation under Article 3 of the CE Statute.  Thus, all the so-called “new democracies” agreed to abide by Council of Europe standards and undertook to remedy shortcomings in their constitutional, political and legal orders as part of the membership package.[1]

3. In addition, more than half of the so-called “new democracies” at a later stage also joined the European Union, which shares the same foundational values. For 20 years after the fall of Communism there was a strong belief that a basic level of democracy, human rights and the rule of law in these countries had been achieved and that the break with the totalitarian past was irreversible.[2]  There were grounds to believe also that the difference between the so-called “core Western democracies” (from which the Rule of Law originated) and the EU’s newest members regarding the “stability of institutions guaranteeing democracy, human rights and the rule of law” (the so-called “Copenhagen criteria”) had been erased or at least reduced to a minimum.   

4. However, as practice shows, since 2000, some Central and Eastern Europe countries have experienced a deterioration of democratic rule and Rule of Law backsliding, breaching the foundational values of both the CoE and the EU. Despite declarations that democracy and the Rule of Law are recognized as the only legitimate basis of government, both with respect to citizens and other states, signs of authoritarianism have begun to reappear as authoritarians pretend to be democrats.

5. Scholars in the field of public law and political science struggle to understand the nature of the evolving threats to a wide range of democratic systems. Many terms have been used to hide contemporary authoritarianism masked as constitutional democracy. This presents a kind of “conceptual bazaar” involving: abusive constitutionalism, autocratic legalism, populist constitutionalism, bad faith constitutionalism, de-constitutionalism, constitutional retrogression, constitutional capture, constitutional rot, constitutional decay, democratic deconsolidation, democratic backsliding, democratic erosion, democratic recession, authoritarianisation, authoritarian backsliding, etc.[3]

6. We are talking about a kind of a contemporary authoritarianism that is characterized as a “sui generis system between constitutional democracy and dictatorship”[4]. This sort of system essentially represents a pretended democracy but, certainly not a genuine one.

7. The lesson to be learned is that over the past twenty years we have witnessed a decline of constitutional democracy across the whole of Europe, covering even the European Union, the area where it was least expected. However, when talking about the EU, we are talking not about the whole region, but only about the developments of “definite decline” of the constitutional democracy occurring most acutely in some Central and Eastern European States[5]. Indeed, the Rule of Law was established de jure in all the Central and East European Countries. However, in some of them the efficiency of the Rule of Law in practice was notably limited “due to institutional and policy limitations and wide-spread conundrums relating to the separation of powers, weak institutions and corruption”[6] thus questioning the matter itself whether law can rule indeed.

8. Under these circumstances, the Judiciary and the Constitutional Courts in these countries have had to find their own institutional independence while under threat from the governing party in political institutions, which has led to antagonism between them.

9. The crisis of constitutional democracy is especially worrying in two EU member-states, namely in Hungary[7] and Poland[8], where the rise of abusive constitutionalism struck the domestic judiciaries particularly hard and led to a course of systemic undermining of the Rule of Law.[9] Whereas in the 1990s both Hungary and Poland were regarded as examples of successful democratic transformations, the situation today has changed. Indeed, the experience of these two countries should serve as warning about the fragility of institutions of liberal democracy transforms and the ease with which they can be transformed into illiberal ones.   

10. In this context, we observe how political governing majorities in several “new democracies” of Central and Eastern Europe during the last two decades have attempted to exert influence over the functioning of constitutional institutions. Legislative and executive authorities have tried to bring them in line with political objectives, as well as to make them subservient or even to block their work[10], including, inter alia:

  • an attempt to actually abolish a Constitutional Court[11];
  • the ‘tactic’ of budget reduction for the CC[12];
  • non-appointment of CC judges[13];  
  • packing the CC[14];
  • dismissal of CC judges[15];   
  • non-implementation of the judgments[16];
  • irregular appointment/election of a duplicate CC judge (‘doubler’/’understudy’)[17].

These and some other methods[18] had the effect of undermining the independence of the constitutional courts to the extent that they could not perform their constitutional role as the guardian of democracy, the rule of law and human rights.

11. But if we speak in general, then it is unlikely that we will not be right in saying that Realpolitik has proven that tools and mechanisms, existing within the CE or even EU and aiming to secure the respect of the obligations under the both Organizations’ constitutive acts, appeared to be ineffective. And this is also the lesson.

12. The CE and EU have employed various tools and instruments to try to secure the respect of the obligations by these states under both organizations’ constitutive acts, with varying degrees of success. This situation, however, goes to the core issue of the values and principles that bind EU Member States. It leads us to continue searching for answers to a number of existential questions: Whereas democracy, human rights and the rule of law are the values upon which the Council of Europe and the European Union are based, and these values constitute common constitutional tradition of a united Europe, do the ways of living of all European peoples support democracy and the rule of law? Are there certain ways of living of certain peoples in Europe that do not support democracy and the rule of law? Is it the surge of populism that has put the rule of law and liberal democracy under great stress and danger? Are there differences between East and West still preserved in a united Europe? If so, what lessons can be drawn regarding the demands imposed on candidates by the EU in future enlargement rounds?   

13. These are some of my reflections on the lessons from the past that do matter for the future. However, I propose the consideration of another issue: can history draw lessons from the future?

14. I mean lessons from a future that is still being written. A future where Putin’s unprovoked invasion of not only Ukraine (e.g., the war of Russia against Ukraine in which he is determined to fight to the last Ukrainian), but of European democracy in general, ends in Moscow’s defeat. When Ukraine wins, one of the powerful lessons will be:  

“Bystanders will realize that democracy is not weak but provides the legitimacy, solidarity, and steadfastness necessary for victory […]. The world will also see that the United States, its European allies, and their democratic partners will sacrifice to help an embattled democracy defend itself and to reaffirm the most vital principle of international order, that territorial aggression will not stand. Finally, it will demonstrate the disastrous incompetence and miscalculation of Putin’s authoritarian state and thus illustrate a larger lesson: when leaders are not constrained by checks and balances and alternative flows of information, they are prone to ruinous blunders”.[19].

15. Yet another lesson tells us now about the danger and cost of democracies doing business with autocrats and dictators. About the fault of Western democracies that did not react in a timely, accurate and effective manner to a whole series of aggressions committed by Russia in the past. It’s not only about the annexation of Crimea and the occupation of part of Ukraine’s territory in the east in 2014. It is also about an even earlier Russian aggression against Georgia, even earlier Russian interventions into Syria, Venezuela, etc. As a result, we are living in a world in which international institutions turned out to be ill-equipped or unwilling to maintain democracy, human rights, the rule of law, peace, and security, that are their raison d’être

16. Among such institutions, first, there are the United Nations and the Council of Europe, both of which were founded under the slogan “Never Again”. However, it did happen again! That is why, more than ever since the time when the UN and the CoE were founded, the words of Winston Churchill – one of the Founding Fathers of the Council of Europe – are relevant. 76 years ago, at the University of Zürich on September 19, 1946, he said:

The League [of Nations] did not fail because of its principles or conceptions. It failed because those principles were deserted by those states which brought it into being, because the governments of those states feared to face the facts and act while time remained. This disaster must not be repeated”.[20]

17. The disaster has repeated itself. And it continues. Primarily because Ukraine was attacked by Russia, a Eurasia’s most expansionist and aggressive autocracy, to stop its inexorable thirty-year independent European democratic trajectory. Today’s Russia is a terrorist tyranny, aptly expressed as “rushism” - a specific modern form of fascism rooted in Bolshevik totalitarianism. Ukrainian resistance to rushism is a confirmation of the fidelity of the Ukrainian nation to the principles of democracy and its future. Prof. Timothy Snyder of Yale University has justly said that “Ukraine Holds the Future” and that “this war is about establishing principles for the twenty-first century”. That “it is about policies of mass death and about meaning of life in politics.” That “it is about the possibility of a democratic future”.[21]

18. Russian fascism has posed a challenge to all humanity. We live in times of a global struggle between two political systems - democracy and autocracy. As Joseph Borrell more precisely stated at the EU Annual Conference 2022, “there is a fight between the democratic systems and the authoritarian systems. But authoritarianism is, unhappily, developing a lot. <…> There is an authoritarian trend. Sometimes, they are still wearing the democracy suit, but they are no longer democracies”[22].

19. Thus, if democracy and the rule of law are global values, the struggle for a future world in which they predominate should be accordingly global as well. And that struggle begins here - in Europe.

 

October 25, 2022


[1] See A. Drzemczewski, “The Council of Europe and the Rule of Law” in: Human Rights Law Journal (2017, Vol. 37, No. 1-6), p. 181.

[2] See Adams, M. & Jansw, R. Rule of Law Decay: Terminology, Causes, Methods, Markers and Remedies. Hague J Rule Law (2019) 11:1. Source URL: https://doi.org/10.1007/s40803-019-00090-6

[3] See Daly, T.G. Democratic Decay: Conceptualising and Emerging Research Field. Hague J Rule Law (2019) 11:9. Source URL: https://doi.org/10.1007/s40803-019-00086-2

[4] See Gábor Attila Tóth. Constitutional Markers of Authoritarianism. Hague J Rule Law (2019) 11:37. Source URL: https://doi.org/10.1007/s40803-018-0081-6

[5] See Letnar Cernic, J. & Avbelj, M. Hague J Rule of Law (2018) 10: 1, p. 2. Source URL: https://doi.org/10.1007/s40803-018-0072-7

[6] Letnar Cernic, J. Impact of the European Court of Human Rights on the Rule of Law in Central and Eastern Europe. Source URL: https://doi.org/10.1007/s40803-018-0074-5

[7] See Renata Uitz (Professor, Chair of the Comparative Constitutional Law Program at Central European University). Academic freedom in an illiberal democracy: From the rule of law through the rule by law to rule by man. Source URL: https://outlook.live.com/AQMkADAwATE0YjcwLWMzOTEtMjNiZC0wMAItMDAKAEYAAAOc01yw3l%2BsRlhzzXCCXpJpBwBVV6BP... 

[8] See Markowski, R. Creating Authoritarian Clientelism: Poland After 2015. Hague J Rule of Law (2019) 11: 111. Source URL: https://doi.org/10.1007/s40803-018-0082-5; Report on the State of the Rule of Law in Poland in 2018. Warsaw, 31st January 2019. (Polish Bar Council, National Bar of Attorneys-at-Law); Jan van Zyl Smit. ‘After Poland’s attempted purge of ‘Communist-era’ judges, do we need new international standards for post-authoritarian countries reforming their judiciary’ IACL-AIDC Blog (25 January 2019); Halyna Coynash. Poland’s right-wing government poised to seize more control of the judiciary than Yanukovych achieved in Ukraine.  Source URL: https://khpg.org/en/index.php?id=1511921954.

[9] Bucholc, M. Commemorative Lawmaking: Memory Frames of the Democratic Backsliding in Poland After 2015. Hague J Rule of Law (2019) 11: 89. Source URL: https://doi.org/10.1007/s40803-018-0080-7   

[10] As an example: “After the electoral victories of 2015, PiS transformed the CT from an effective, counter-majoritarian device to scrutinize laws for their unconstitutionality, into a powerless institution <…>. <…> the Tribunal became a defender and protector of the legislative majority. <…> the CT as a mechanism of constitutional review has ceased to exist: a reliable aide of the government and parliament majority has been born”. See Sadurski, W. Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler. Hague J Rule of Law (2019) 11: 63. Source URL: https://doi.org/10.1007/s40803-018-0078-1

[11] The case of Georgia in 2002. See A. Drzemczewski, footnote 23 in Op. cit.

[12] The case of Bosnia and Herzegovina in 2004. See Venice Commission press release “Budget of the Constitutional Court – a determining factor of its independence”, 29 September 2004. Source URL: Source URL: http://www.venice.coe.int/webforms/events/default.aspx?id=17

[13] The case of Ukraine in 2005 (the Verkhovna Rada has refused to accept the oath of 11 judges of the Constitutional Court elected/appointed by the Judiciary and the President, which led to a constitutional crisis whereby the CCU §§became inoperative for one year and a half). See CDL-AD (2006) 016, §§ 19,21.

[14] The case of Hungary in 2012 (the 2012 constitutional amendment has led to increase of the membership of the CC from 11 to 15 members resulting in packing the Court “with judges supportive of the governing majority’s agenda”). See Hungary’s Government has taken control of the Constitutional Court, 25 March 2015, available at Source URL: Source URL: https://www.helsinki.hu/en/hungarys-government-has-taken-control-of-the-constitutional-court/

[15] The case of Moldova in 2013 (the Parliament was asked, by a “displeased” governmental majority, to enact a law, by a simple majority for the dismissal of a judge who no longer had the “trust” of Parliament; two readings of the text were pushed through Parliament in one day; the VC President intervened to bring this procedure to an abrupt halt; the President of Moldova did not enact the law and the CC itself later found the law to be unconstitutional). See A. Drzemczewski, Op. cit., p. 182.

[16] The case of Poland in 2016 (the Government refused to publish the Judgments of the Constitutional Tribunal in the Official Journal). See CDL-AD (2016) 001, § 43; CDL-AD (2016) 026, §§ 74-101.  

[17] The case of Poland where a judge was appointed in December 2015 to an already filled judicial post. See Case of Xero Flor w Polsce sp. Z o.o. v. Poland (Application no. 4907/18). Judgment of 7 May 2021 (Final).

[18] For details with regard to some other methods See A. Drzemczewski, Op. cit., p. 182.

[19] See Larry Diamond. All Democracy Is Global. Why America Can’t Shrink From the Fight for Freedom. In Foreign Affairs. September/October 2022. Source URL: https://www.foreignaffairs.com/unites-states/aa-democracy-global-america-cant-shrink-fight-freedom-larry-diamond

[20] Winston Churchill, speech delivered at the University of Zurich, 19 September 1946. Source URL: https://www.cvce.eu/obj/address_given_by_winston_churchill_zurich_19_september_1946-en-7dc5a4cc-4453-4c2a-b130-b534b7d76ebd.html

[21] See Timothy Snyder. Ukraine Holds the Future. The War between Democracy and Nihilism. In Foreign Affairs. September/October 2022. Source URL: https://www.foregnaffairs.com/ukraine-war-democracy-nihilism-timothy-snyder

[22] EU Ambassadors Annual Conference 2022: Opening speech by High Representative Joseph Borrell. 10.102022. Brussels. Source URL: https://www.eeas.europa.eu/eeas/eu-ambassadors-annual-conference-2022-opening-speech-high-representative-jpseph-borrell_en

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