Near Misses: Avoiding Constitutional Retrogression

There has been a good deal of attention to constitutional backsliding and erosion in many democracies around the work, including established democracies like the United States, Israel and Japan. Several newer democracies have failed completely. Understanding the processes by which backsliding occurs also draws our attention to cases in which it does not. What explains near-misses: countries that seemed to be losing constitutional democracy but saved themselves? This paper identifies several such cases and explains their trajectories.

Constitutional Capture and “Illiberal Democracy”: The Case of Poland

In my paper I intend to use the Polish case study to reflect upon the relationship between populism and democracy. A widespread view that populism is a democratic response to liberal excesses will be the main target of my criticism. I will argue that, at least as far as constitutional capture in Poland is concerned, “populist democracy” is an oxymoron: some anti-democratic tendencies (such as anti-egalitarianism, exclusionary character, anti-representativeness and anti-pluralism) built into populism, Polish style, are inherent to populism rather than being merely contingent and marginal. I will also show, again using post-2015 Poland as a case study, how the assaults upon typically liberal checks and balances are intrinsically connected to erosion of certain political rights which are essential to democracy: not just its liberal variety, but democracy tout court.

India’s Third Constitutional Retrogression

The current retrogressive phase marks the 3rd substantial challenge the Indian Constitution has faced. The first arose in the 1970s, when Indira Gandhi’s government used the Emergency powers under the Constitution to suspend fundamental rights and sought to entrench its powers through an Amendment. The second threat came in the late 1990s, when Vajpayee’s government set up a constitutional review commission, whose primary goal was to water down parliamentary democracy.

The current challenge to the Constitution is subtler than the two previous attempts. It is characterized by a callous disregard for long-established customs and conventions of constitutional propriety, even as the government (just about) stays on the right side of law. To be sure, the law has been pushed to its limits too. But extra-legal constraints—enforced by a sense of decency, decorum and shame—are being disregarded at an unprecedented scale and frequency in order to entrench executive power.

Democratic Backsliding in Israel

Recently Israeli democracy, once considered strong and stable ,is backsliding. I'll claim that Israel is especially susceptible to democratic backsliding because its constitutional order is a semi-liberal constitutional order. Israel’s continued occupation of the Occupied Territories, aspects of its treatment of its Arab citizens and aspects of its religion state relations combine to make it a semi-liberal state. While Israel has been maneuvering between its liberal and non-liberal characteristics throughout its existence, in the last few years, a coalition government comprised of right wing parties that seek to entrench the non-liberal characteristics has come to power. This, along with the embroilment of the Prime Minister in corruption investigations, has led to government attacks on Israel’s watchdog institutions and civil society. Populism and nationalism are used to generate support for the expansion of Israel’s non liberal characteristics at the expense of liberal ones.