‘Public Law, Opposition, and Loyalty in a Time of Distrust‘

In 2018 Croatia ratified the Istanbul Convention. This soon provoked opposition in some conservative parts of society, which organized a referendum initiative to formally denounce the Convention. However, the initiative failed, because both the Government and the Parliament claimed that the legally required number of voters‘ signatures to trigger a referendum was not collected. The Constitutional Court, in a rather self-restrained manner, agreed. All this merely provoked even more dissatisfaction with governmental policy and the matter is far from closed. This case has great comparative potential, and this paper will argue that current grassroots movements, and not just elected governments, should also be seriously perceived as possible promotors of modern populist threats - that the use of valid constitutional procedures of direct democracy by such movements may actually disguise their genuine disloyalty to common European values - and that the solution to this new form of threat lies in a carefully designed system of separation between direct- and representative-democracy institutions. 

Nowadays, several States face the increasing phenomenon of ‘abusive constitutionalism‘, that is, quoting David Landau, ‘the use of the mechanisms of constitutional change—constitutional amendment and constitutional replacement—to undermine democracy‘. Whether minority parties in legislative bodies are able to use democracy-protecting mechanisms again this threat has recently become a central question, including in some EU Member States. Therefore, the paper aims to reflect on the possibility that a constructive and responsible opposition may be able to make democratic constitutionalism resistant to erosion from within. In order to analyse this possibility, the paper presents solutions offered by the Italian Constitution (and recent Italian political events and history) which may prove effective against the threat of abusive constitutionalism.

Loyalty is priceless, but it can only be expected when there is mutual trust and can only be demanded if it is truly reciprocated. How can anyone trust a player who claims to have the self-given power to change the rules of the game? Is it sensible for the democratic opposition to demonstrate loyalty to a government which lacks commitment to core democratic values? And what exactly does—or should—political loyalty mean in times of populism? The paper will explore how demands for political loyalty can be used and abused in European populist regimes, notably Poland and Hungary, serving purposes such as: (1) enhancing the legitimacy of unlawfully co-opted state institutions, (2) discouraging the political opposition from asking EU and CoE bodies to provide advice and engage in conflict resolution, and ultimately (3) silencing the government‘s critics by appealing to reduce political polarisation, thus providing cover for further actions.

Constitutional pluralism, long derided in some quarters as incompatible with the rule of law for reasons of legal theory, is now argued to be incompatible with the rule of law because of its use or abuse by the Polish and Hungarian governments in their clashes with EU norms and institutions. This paper argues that this criticism is ill-founded, and is far too quick to portray opposition to the CJEU‘s heterodox account of the relationship between EU law and national law as disloyalty both to the claimed values of the Union and to the very concept of European integration. Instead, we must develop a concept of ‘loyal opposition‘ within Union law and politics: a discourse more accepting of deviation from certain aspects of the received account of European constitutionalism, while resolutely opposed to the normalisation of authoritarianism in Europe.

How do legal practitioners talk about constitutional crises, including ones where issues of public trust and public and elite loyalty are in play? This paper aims at analysing competing narratives about the rule of law crisis in Poland. It is based on empirical research—interviews with current and former judges and assistants of the Constitutional Tribunal - it further employs an analysis of the discourse produced by these actors in their public and scholarly interventions. The paper attempts to analyse the underlying ideological assumptions of diverse constitutional narratives, and how they operate in the public and academic sphere.

According to the famous quotation from Montesquieu, ‘power must stop power‘. The theory of the separation of powers remains the prevailing instrument for the taming and rationalisation of power across the globe. Recently, the Venice Commission has emphasised a possible corollary of the principle of the separation of powers, which it has labelled as ‘loyal cooperation between public authorities‘. From a mere expressive description of a desirable state of relations between public authorities within a state, the formula of loyal cooperation has been ennobled so as to reach the level of a yardstick for a democratic state governed by the rule of law. From the Venice Commission, the formula has been taken up by constitutional courts and transfigured into a constitutional standard in judicial review. This paper will endeavour to explain the misuses enabled by loyal cooperation in the case law of the Constitutional Court of Romania and to identify possible ways to correct such deviations.