Liberal constitutionalism - between individual and collective interests

Abstract

Can a democracy work without liberalism? Or in other words, is the concept of governing and being governed in turns sustainable without respecting individual rights? Or is a democracy doomed to be hijacked by authoritarian rulers, if not backed by robust mechanisms of individual rights protection, by a rule of law and as system, in which – as James Madison wanted – an ambition is made to counteract ambition and the abuses of government are controlled? A standard answer of the so-called ‘Western’ constitutionalism is still a clear ‘no’. The present volume offers study material on countries and historical situations, in which this clear ‘no’ faces challenges. It traces trajectories of democracy’s development as it embraced and rejected liberal ideas. The contribution by Timea Drinoczi and Agnieszka Bien-Kacała does it with respect to Hungary and Poland, while the contribution by Tomasz Milej focuses on Kenya and Tanzania. But before embarking on the developments in particular countries, Wojciech Włoch takes the reader through the contemporary thought on the relationship between democracy and liberalism. He argues from the philosophical perspective that the liberal ideal of equal rights of individuals enables a democracy to thrive and prosper. Tomasz Milej takes up this point showing on the examples of Kenya and Tanzania how the attempts to base a democratic regime on illiberal pillars eventually lead to a collapse of the same. In this vein, Timea Drinoczi and Agnieszka Bien-Kacała make a strong case against theorising violations of constitutional stipulations and disenfranchisement of judiciaries as some new concepts of democracy or political constitutionalism as opposed to the legal one; one of the terms they prefer to describe the departure from the liberal democracy is abusive constitutionalism. Various examples for this type of regime from Hungarian practice are provided by Fabio Ratto Trabucco, who discusses the legal means employed by the Hungarian government to take over the judiciary by replacing judges with new ones under a new politicised appointment procedure. In so doing, the author also discusses the interaction of the Hungarian government with external actors, such as Venice Commission and various organs of the European Union. On such a dialogue focuses Faith Kabata documenting a poor record of Kenya in implementing of the UN monitoring bodies recommendations and even obstructionism by the state executive organs regarding civil and political rights. Her study shows that these rights were best implemented when individuals took their cases to the courts and that the biggest obstacle to the implementation was a lack of social and political internalisation of certain human rights provisions. Aren’t those internalisation deficits the same ones that derailed the liberal democracy – at least temporarily – in Hungary and Poland? One could look from this perspective at the failure of the direct democracy instruments to enhance people’s participation in public matters, as discussed by Zbigniew Witkowski and Maciej Serowaniec in the Polish context. Those more general accounts are supplemented by three case studies on a sensitive area of clash between the collective and individual interest. The contributions by Lóránt Csink and Réka Török, by István Sabjanics and by Václav Stehlík examine the relationship between the national security concerns and the individual freedoms. Quite interestingly, Stehlík’s research shows that the readjustment away from the individual movement rights towards the protection of national security concerns has also found its way into the case law of the Court of Justice if the European Union.