Restoring Constitutionalism II – Regional Perspectives

Many of these issues and controversies discussed in the debate on “Restoring Constitutionalism“ arise after “democratic backsliding has taken place“ and when the Constitution already includes “entrenched authoritarian enclaves“. Taking this context into consideration, I will examine a more basic issue, namely the validity of law in a democratic society.

After what is now almost a two-decade long rule by the governing party, there are strong indications that a strong reshuffling in Turkish politics is in the works. Support for President Erdogan and his party is declining. I argue, firstly, that it is a combination of factors that has led to this moment of changing fortunes in Turkish politics – a combination that sheds light on what tactics may successfully be employed by opposition forces who wish to put an end to autocracies. Secondly, I claim that constitutional restoration in Turkey does not require formal constitutional change.

The case of Russia teaches us how dangerous extra-constitutional constitution making can be – and that it should always be just a last resort. No substantive institutional changes should be made outside of the constitutional bounds. Otherwise, there will always be the danger that breaking the rule of law will continue even after constitutional change has taken place. This is precisely what Russian intellectuals and jurists, who supported Yeltsin in 1993, learned under the rule of Vladimir Putin. We should try to avoid repeating their mistakes.

The 2022 elections have turned the debate on restoring constitutionalism in Hungary from an immediate tactical discussion to a longer term strategic one. It is clear that constitutional reform is not a platform campaigns can be fought on and elections won – it could at best be a complimentary program to a larger narrative and set of policies. Beyond this, it also appears whether it likes it or not, the opposition will have to act within the confines of the existing constitutional system (and within whatever the new constitutional majority decides to make of it in the coming years). The paper starts from the proposition that in order to develop a longer-term strategy, we first need to distinguish between macro-level concerns of constitutional design and micro-level issues of everyday practices within institutions, two levels of analysis that is often conflated in previous discussions and academic literature. The paper argues that in the coming years, the fight for constitutionalism will most likely be about preserving what is left of it through tactics like strategic litigation by NGOs in Hungarian and EU courts as well as the ECHR, instead of grand theorising of sweeping plans about constitutional reform.