The starting point of most histories of the European project is post-WWII, with the Schuman declaration and the establishment of the European Steel and Coal Community. Indeed, one of the main justifications for the continuity of this project — now as the European Union — is to avert the horrors of inter-European war. One could say that the European project is commonly presented by Europeans, and by almost everyone around the world with an interest in the matter, as the result of the war, and of WWII particularly. This presentation will explore how an approach to the genetic narratives of the European project that goes deeper into the past and closer into the reading of the EU’s founding documents can provide stronger foundations to the current fight against the threat that illiberal regimes such as the ones in Hungary and Poland currently pose to the credibility and even the survival of the EU and its promise.
The history might have stopped for Polish Constitutional Court in 2015-2016. After 30 years of building an impressive resume as one of the most influential and successful European constitutional courts and living proof of “the rule of law in action”, the Court has fallen under the relentless attack of the rightwing populist government and succumbed to it. The paper moves beyond hitherto dominant perspective of “here and now” and lawyers’ fixation on the boat, and instead focus more on the journey and important lessons the journey might teach us and enhance the understanding of “our boats”. Polish case (“a boat”) is much more than just an isolated example of yet another government going rogue. There is an important European dimension to what has transpired in Poland over the last 20 months. To understand what and why had happened in Poland, one has to take a longer view and revisit not only the 2004 Accession, but also the 1989 constitutional moment.
In this contribution to the panel, I will describe the specific characteristics of Polish populist dismantling of constitutional checks and balances typical of liberal constitutionalism: the cumulative and comprehensive nature of assaults upon checks and balances and upon political rights; the factor of emulation (mainly, of the Hungarian example); statutory “amendments” of the Constitution; the maintenance of formal institutions untouched while eroding them of democratic content; association with a fundamental drop of civility of public discourse. I will demonstrate how all these factors, combined, have produced a powerful challenge to liberal constitutionalism, and at the end I will reflect upon the resources (if any) in Polish constitutional and legal system to reduce the nefarious effects of the populist assault. I will also explain why the notion of “unconstitutional populist backsliding” is the most accurate characterization of Polish developments since 2015.
My paper will look at the current attack on constitutionalism in Israeli through the lens of the discussion on constitutional populism in Europe and elsewhere. It will argue that the Israeli case cannot be analyzed out of the context of the Israeli occupation of the Occupied Palestinian Territory, an undemocratic situation typified by dispossession of the Palestinian population. Even if the High Court of Justice’s intervention in matters regarding the occupation are few and far between, they are enough to make the court seem as an obstacle to what – in the current nationalist mood – are perceived by many as legitimate (for nationalist purposes) and even required (for security) Israeli actions. I will argue that the attack on constitutional democracy in Israel is done against a background where the long term occupation already undermined democracy and consider the implications of this specific context.
Brazil is a useful case-study in the use, and limits, of the term ‘populism’, and the different ways in which the ‘p’ word is said to influence or threaten liberal democratic constitutionalism. Over a decade of what was often termed left-wing populist governance, under Presidents Lula and Dilma, is viewed in some quarters as having produced not only a revenge of the élites in the “abusive impeachment” of Dilma Rousseff, but also a wider right-wing populism whose Trump-like figurehead, Jair Bolsonaro. Populism as a term does have some utility in the attempt to capture the growing strength of a particular technology of political messaging and governance in Brazil and to compare these developments with so-called populist constitutionalism elsewhere. However, the Brazilian context also highlights the dangers associated with the populism tag, and whether the term ‘populist constitutionalism’ can work as anything more than a broad rubric.