Populist constitutionalism and constitutional interpretation – instruments and limits

Not all populist systems arc illiberal democracies, and not all liberal democracies arc free of populism. Populist emphasis on popular sovereignty and democracy even includes a commitment to voting and plebiscitarían rights. Indeed, the engagement of populists with constitutional interpretation often has a fundamental rights background, either because they want to be more restrictive with regard to certain rights, related, for example, to the media, private life or asylum, or because they even want to extend some of them, e.g. with regard to rights relating to direct democracy.

Remarkably, the most direct instrument to influence constitutional interpretation, namely the entrenchment of an interpretive rule in the respective constitution, has so far been used only in the case of Hungary. In Turkey, the original interpretation rule embedded in Art 174, ‘No provision of the Constitution shall be construed or interpreted as rendering unconstitutional the Reform Laws ... which aim to raise Turkish society above the level of contemporary civilization and to safeguard the secular character of the Republic’, as well as the liberal principles mentioned in the preamble as guidelines of interpretation, arc still in force despite the constitutional amendment of 2017.

Another, more indirect instrument used by populist systems in the context of constitutional interpretation concerns the change of the organizational and procedural rules relating to (constitutional or other) courts, such as experienced, e.g., in the recent Polish, Hungarian and Turkish cases. They, inter alia, include: the early retirement of judges; to increase the number of judges; to appoint new judges (and chief justices) in accordance with the government’s political wishes as well as to enact new political appointment procedures and terms of office; to curtail the staff and finances of courts; to bind certain judgments to qualified majorities in judges’ commissions which will be difficult to be reached; to establish certain time limits for courts to decide cases; to establish new courts and channels of instances in which some courts are eclipsed and others not; to use even emergency powers for

implementing these measures.[1] While these measures cannot directly influence constitutional interpretation, the desired result, namely that judges interpret the constitution due to the government’s wishes, may be exactly the same.

The use of these instruments, however, will be difficult for a government if they require a constitutional amendment. All written constitutions include rules on constitutional amendments which regularly stipulate a qualified quorum and majority', but in many cases also additional elements, such as a referendum, parliamentary elections, approval by constituent states (in federal systems), repeated approval by parliament (parliamentary chambers), etc. Populist governments may or may not meet these requirements, cither because they do not have a constitutional majority' in Parliament or one of its chambers or in the constituent states, or because a referendum will not turn out in accordance with their wishes. The aforementioned constitutional reform in Hungary, however, encountered no legal obstacles because the government commanded a constitutional majority' in the Parliament. The Turkish constitutional reform of 2017, too, could be enacted after a successfill, if controversial referendum. Provided that constitutions are at all amendable, the constitutional lawmaker, at any rate, proves to be the strongest - and always political (populist or not) - power. Inasmuch as the bodies of which the constitutional lawmaker is composed (primarily an elected parliament, but perhaps also an elected head of state that signs the bill or other elected bodies

An ‘Instrument of Government’ or ‘Instrument of Courts’? 57 that participate in die lawmaking process) represent the people, democracy indeed prevails over all other constitutional principles,[2] without any need even to invoke pre-constitutional concepts such as popular sovereignty or the constituent power of the people. The ‘will of the people’, as represented by the constitutional lawmaker, legitimizes any kind of constitutional amendment including those that overturn existing constitutional interpretation.

However, perhaps not even the formal hurdles of a constitutional amendment will prevent populist governments (and neither perhaps other governments with respect to their respective aims) from enacting legislation that has direct or indirect impact on constitutional interpretation. In many countries, rules on the interpretation of laws (including the constitution) are entrenched in ordinary or organic laws. Organizational issues, too, such as the appointment or retirement of judges, arc not always regulated by constitutions but delegated to subconstitutional legislation, as the Polish case shows most recently; even more so, procedural rules, e.g. on required majorities of judges when they pass a judgment, are hardly ever entrenched in the constitution itself. Even though constitutional silence on the respective issues does not necessarily imply that ordinary or organic laws may regulate these issues in a constitutionally unlimited way, it will nevertheless be much easier to enact such legislation than a constitutional amendment. An ordinary or organic law on constitutional interpretation may be constitutional or not; but it will need a (constitutional) court to, if at all, decide on this question.

But there arc also cases where even a constitutional amendment might be challenged and repealed by the constitutional court afterwards. This presupposes a two-layered constitutional structure that enables a court to scrutinize and repeal ‘ordinary’ constitutional law because a constitutional principle, such as, e.g., the rule of law or fundamental rights, was violated. Even though many constitutions do not expressly provide such a structure, constitutional courts around the world, from the Indian Supreme Court to the Slovak Constitutional Court, increasingly practice a ‘basic structure

doctrine’ according to which constitutional amendments might be found unconstitutional and thus repealed either because certain constitutional amendments are absolutely prohibited due to an explicit or - which may be arguable in case of unrestricted amendment rules - implicit ‘eternity clause’ or because an entrenched qualified constitutional amendment procedure did not take place.[3]

However, even if, for whatever reason, a national court does not oppose populist measures, an inter- or supranational court, such as the ECtHR or the ECJ, may - this has been shown most recently in the Polish case, where the ECJ found the early compulsory retirement of Polish judges to be contrary to EU law. The ECJ moreover ordered Poland to immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber of the Supreme Court with regard to disciplinary cases concerning judges. But also national courts themselves may find refuge in inter- or supranational law, e.g. by interpreting fundamental rights consistently with inter- or supranational law. In vertical context, courts may thus support each other and prove themselves to be beyond the reach of national populist governments - at least as long as these governments arc inclined to heed the judgments of courts at all.

  • [1] On these possibilities, as actually exercised in populist systems, such as Hungary, Poland or Turkey, Müller (n 4); Konrad Lachmayer, ‘Counter-Developments to Global Constitutionalism’ in Martin Belov (ed.), Global Constitutionalism and Its Challenges to Westphalian Constitutional Law (Hart Publishing 2018) 81,98; Emilio Peluso Neder Meyer and Thomas da Rosa de Bustamante, ‘The Chief Justice of the Brazilian Supreme Court’ (Blog of the International Journal of Constitutional Law, 24 August 2019) www.iconnect-blog.com/2019/08/thc-chief-justice-of-the-brazilian-supremc-court-institutional-and-constitutional-self-destruction accessed 15 October 2019; Bertil Emrah Oder, ‘Populism and the Turkish Constitutional Court’ (Verfassungsblog, 2 May 2017) verfassungsblog. de/populism-and-the-turkish-constitutional-court-the-game-broker-the-populist-and-the-popular accessed 15 October, 2019; Bojan Bugaric, ‘Central Europe’s Descent into Autocracy’ (2019) 17 International Journal of Constitutional Law 597, 602-608; Castillo-Ortiz (n 36) 49. On general contents of populist constitutional amendments see Alterio (n 5) 278-279. 2 Alterio (n 5) 277-278. Constitutional instrumentalism - as supposedly expressed by the frequency of amendments (Blokker, ‘Populism’ [n 3] 545-548) - is, moreover, no exclusive characteristic of populist systems, but mainly depends on the amendability rules. The Austrian Federal Constitutional Act, e.g., has been amended 129 times since its re-enactment in 1945, due to its flexible amendment rule (Art 44 B-VG), but not tor specifically populist, even though sometimes controversial purposes. See also Xenophon Contiades and Alkmene Fotiadou, ‘Amendment-Metrics: The Good, the Bad and the Frequently Amended Constitution’ in Richard Albert, Xenophon Contiades, and Alkmene Fotiadou (eds.), The Foundations and Traditions of Constitutional Amendment (Hart Publishing 2017) 219. 3 Anna Gamper, ‘Hierarchiefragen der Verfassungsänderung’ in Clemens Jabloner and others (eds.), Scharfsinn im Recht (Jan Sramek Verlag 2019) 161, 166-169. 4 Bugaric (n 38) 605; Castillo-Ortiz (n 36) 56-57. 5 Oder (n 38).
  • [2] Similarly, Howse (n 1) 646. 2 On these concepts and their relationship, see Corrias (n 4) 14-21. The question here, however, is not whether populists seek to legitimize extra-constitutional action on a preconstitutional ‘will of the people’ (such as shown, e.g., by the controversial establishment of the Venezuelan Constituent Assembly in 2017), but how they instrumentalize enacted constitutions. 3 The leading case was Kesavananda Bharati SC 23.03.2973, (1973) 4 SCC 225; see also Richard Albert, ‘Amending Constitutional Amendment Rules’ (2015) 13 International Journal of Constitutional Law 655, 669-670. 4 Constitutional Court of the Slovak Republic Judgment (Nalez) of 30 January 2019, PL. US 21/2014-96; Marek Dornin, ‘A Part of the Constitution Is Unconstitutional, the Slovak Constitutional Court Has Ruled’ (IACL-AIDC Blog 6 February 2019) blog-iacl-aidc.org/2019-posts/2019/2/5/a-part-of-the-constitution-is-unconstitutional-the-slovak-constitutional-court-has-ruled accessed 15 October 2019; Simon Drugda, ‘Slovak Constitutional Court Strikes Down a Constitutional Amendment’ (Blog of the International Journal of Constitutional Law, 25 April 2019) www.iconnectblog. com/2019/04/slovak-constitutional-court-strikes-down-a-constitutional-amendment-but-the-amendment-remains-valid accessed 15 October 2019.
  • [3] See also Tamar Hostovsky Brandes, ‘International Law in Domestic Courts in an Era of Populism’ (2019) 17 International Journal of Constitutional Law 576, 589-590; Joel Colón-Ríos, ‘Introduction: The Forms and Limits of Constitutional Amendments’ (2015) 13 International Journal of Constitutional Law 567, 568; (2019) European Journal of Law Reform. 2 ECJ Judgment of 24 June 2019 (Grand Chamber), European Commission i> Republic of Poland, C-619/18; ECJ Judgment of 5 November 2019 (Grand Chamber), European Commission >> Republic of Poland, C-192/18. 3 ECJ Order of 8 April 2020, European Commission i> Republic of Poland, Order of the Court in Case C-791/19 R. 4 Hostovsky Brandes (n 47) 576, 576 ff; Alter (n 7) 262-264 and 268-269. 5 Arato (n 37); Walker (n 4) 520; Bugaric (n 38) 605; Castillo-Ortiz (n 36). 6 See also David Prendergast, ‘The Judicial Role in Protecting Democracy from Populism’ (2019) 20 German Law Journal 245.
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