The democratic world is looking to Israel with growing concern because it is doing what has been observed in other countries around the world for years. The Supreme Court should be deposed. Benjamin Netanyahu’s government wants to break the capstone out of the system of separation of powers.
She pursues her plans quite openly, because she is not satisfied with taking the selection of judges into her own hands and impeding the work of the court with a high decision-making quorum. According to the “reform,” parliament should be able to overrule the Supreme Court in the event of a conflict. The simple message is that the majority society should be made stronger and the country more “democratic”.
This reflects the dangerous drift of a populism that is putting constitutional jurisdiction under pressure in many places. Democracy is equated with a – often only alleged – will of the people. Constitutional courts are marginalized or, more often, brought into line. Their central role in the democratic system – as a defender of minority rights and as a guarantor of the political rules of the game – is ignored or denied. The former constitutional judge Monika Hermanns recently stated soberly in her farewell speech: “Democracy and the rule of law are also being juxtaposed in Europe.”
The courts become tools of the government
And this despite the fact that European institutions are opposing this with increasing determination: the EU Commission has just announced a lawsuit against Poland in order to force its constitutional court to recognize applicable EU law. A court that is no longer independent, but an “extended arm of the PiS government,” as Katarina Barley, Vice President of the European Parliament, recently put it.
This also applies in Hungary. The constitutional court held out for three years after the election victory of Viktor Orbán’s Fidesz party, and then Orbán nominated enough judges who were loyal to the line. Since then, writes constitutional law professor Gábor Halmai in the online portal constitution blog, the court is a firm bet for the government, be it in the dispute over European refugee policy in 2016 or three years later in the proceedings over the criminalization of non-governmental organizations. Only when the government demanded that the Constitutional Court refuse to comply with a ruling by the European Court of Justice (ECJ) on the pushbacks of refugees did the judges refuse. That was 2021 – a single, flat no.
It crunches elsewhere too. The EU Commission’s rule of law report urges countries such as Cyprus, Latvia and Slovakia to guarantee the independence of their courts. The Romanian Constitutional Court has been warned several times by the ECJ to enforce the primacy of EU law. It is now just a political tool, said Romania’s ex-Justice Minister Stelian Ion recently in the FAZ.
Constitutional courts are not only at risk in autocracies
But you don’t just have to look to Eastern Europe. In Spain, the Supreme Judicial Council, and with it the constitutional court it has to fill, have been the objects of a cynical power game for years in the heart of democratic Europe. With its blocking minority, the conservative opposition of the Partido Popular (PP) blocked its replacement and thus a subsequent nomination of constitutional judges – in order to retain as many judges loyal to the PP as possible, also as a bastion against ongoing investigations into various financial scandals. Only a few months ago, the Judicial Council gave in and nominated new judges.
The case shows that constitutional courts are not only at risk in the world’s autocracies. The US Supreme Court is so politicized by the sometimes brutal fights for judicial positions that its authority, which is based on independence and impartiality, is endangered. And the Austrian constitutional court was exposed to heavy attacks in the time of Chancellor Sebastian Kurz.
However, under the pressure of autocratic rule, a court can collapse within a short time, as has been observed in Turkey. The Constitutional Court there once played a central role in defending republican values. With the confirmation of the headscarf ban at Turkish universities in 2008, it resolutely opposed the line of Prime Minister Recep Tayyip Erdoğan. But after 2010, the ruling AKP managed to fill the court, which had been expanded in numbers, with partisans.
The constitutional law professor Bertil Emrah Oder, who teaches in Istanbul, does not draw a completely negative balance. Occasionally, the court defended the fundamental rights of journalists and scientists, for example. “The legal behavior of the court is still not completely controllable,” she writes in the constitution blog. But the court is in line with the government’s important proceedings against dissidents. It supported the arbitrary sentences against businessman Osman Kavala, undeterred by the interventions of the European Court of Human Rights.
Can constitutional courts withstand populist pressure? In Brazil, the Supreme Court fought an almost epic battle with former President Jair Bolsonaro. Bolsonaro lacked the majority for a constitutional amendment that could have disempowered the Court. All the more violently he attacked the court rhetorically – which of course stayed the course. The court repeatedly defended, for example, academic freedom, the participation rights of civil society and the protection of the indigenous population.
Above all, however, the court initiated investigations into anti-democratic actions and the systematic dissemination of false news – including against the President himself and his sons. The dispute escalated on Independence Day in September 2021. Bolsonaro asked the court to stop the investigation, otherwise it would be forced to do “what we would rather not do”.
The court survived the dark phase. Had Bolsonaro won the election, he might have brought the court in line with new judges after all. Shortly after the change of office, Bolsonaro’s supporters struck: on January 8, they stormed the congress, seat of government and court in Brasília. Significant property damage was reported. But the institution survived.