Constitutional courts and populists in power: between complicity and resistance
By Yomna Elrouby — MA Student at Sorbonne University
The ascendance to power of right-wing populist parties or movements is generally considered to constitute a challenge to liberal democratic institutions. However, the essence of populism — the claim to a monopoly over the representation of the general will of the people — means that some institutions, especially constitutional courts, are more likely than others to be in the line of sight of populist parties in government.
Indeed, the rationale behind constitutional courts is inherently incompatible with the discourse and praxis of populism, for two reasons. First, the populist understanding of the people is an exclusive one. As per Cas Mudde’s definition, for populists, society is divided into two antagonistic groups: the pure people on the one hand and corrupt elites on the other. Such a Manichean outlook puts the rights of political minorities — enshrined in the constitution — at stake, as they are rather perceived as a threat to the ‘legitimate’ populist exercise of power. Second, since populists reject liberal representative politics in favour of a rather cohesive majoritarian exercise of power, they resist curtailments to their political execution of the people’s will and question the legitimacy of institutions, namely constitutional courts, which protect these limitations, claiming they are anti-democratic.
In a constitutional democracy, the authority of the majority is limited by legal means, to ensure that the respect of individual and minorities’ rights is notably guaranteed by legal procedures and by the constitutional court. Populist governments consider the legitimacy of their political action as deriving solely and directly from the popular vote — where the ‘pure’ people express their common will. The corollary is that, since the people chose their representatives through democratic and free elections, there is no point in contesting the acts of such representatives before a court or to seek a higher level of legitimacy through an institution such as the constitutional court. In short, according to populist logic, the ‘pure’ people, whose will was expressed through elections, do not need an institution like constitutional courts since their representatives incarnate their popular will.
In sum, given the above, the rise to power of populists should represent a challenge to the constitutional democratic order. Constitutional courts, representing the guarantee to the rule of law and the supremacy of the constitution over the absolute majoritarian exercise of power, are indeed at the very core of this challenge.
The study presented here of the Hungarian and the Turkish cases — two right-wing governments with populist characteristics — in fact identifies cross-country patterns and strategies employed by populist regimes aimed towards the weakening of constitutional courts and their institutional independence. Indeed, from increasing the number of judges sitting in their constitutional courts, to throwing out some of the sitting judges or restricting the areas in which the court has jurisdiction to intervene and manipulating the rules governing the appointment of judges to the court, governments in both Hungary and Turkey did not miss an opportunity to weaken the institution.
For example, the Fidesz government in Hungary changed the nomination process of constitutional judges and restricted the Court’s jurisdiction over a number of matters, such as taxes. Furthermore, the precedents of the court were revoked and the number of judges sitting in Court was increased to 15, filling the new seven seats at the time with Fidesz loyalists. This was carried out through a number of constitutional amendments and the eventual adoption of a new constitution.
In Turkey, the government successfully overhauled, through the constitutional amendments of 2010, the number, mandate term, nomination and selection criteria of judges sitting at the constitutional court. Furthermore, the constitutional amendment following the failed coup in 2016 placed more power in the hand of the president, thus further weakening the court’s checks and balances.
In fact, these strategies were employed not only to weaken the institution, but also to ensure its loyalty in the short and long term. In these two countries, constitutional courts were transformed from liberal institutions primarily concerned with limiting the excesses of government into institutions which often act as rubber stamps of populist governments, legitimising their policies and actions. Case in point is the reinterpretation of the Turkish court’s own power to review emergency decrees following the coup attempt, ruling that these latter will no longer be subject to judicial review. Similarly in Hungary, the constitutional court came to Orban’s aid in the case of EU immigrants quota, dismissing Hungary’s obligations to the EU in favour of the government’s anti-immigration policies.
However, although systematic attempts towards the weakening of constitutional courts were evident in both Hungary and Turkey, nevertheless our research finds that constitutional courts remained an enduring source of dissent — even after the courts were weakened through one or a combination of several strategies mentioned above. In this respect, the Hungarian Court recently rejected a bid by Orban’s government challenging the supremacy of EU law. In Turkey, the court cancelled, on many incidents, measures restricting freedom of press and expression. This led Erdogan to publicly challenge the court and its legitimacy and to reject, in some cases, its decisions. Indeed, such incidents of dissent were unexpectedly often expressed by judges who were either named by populists in power or who were initially close to their political family.
Even if these incidents of dissent remain rare, they are nevertheless significant, for they represent a glimpse of possible enduring sources of resistance to right-wing populist excesses. However, these cases of dissent require further investigation regarding the context in which they occur and the factors that encourage them. Therefore, further studies on the link between constitutional courts under populist governments on the one hand and civil society and international and regional bodies, amongst others, should be carried out.By Yomna Elrouby — MA Student at Sorbonne University
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