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Conference Report: Popular Will, Electoral Democracy and the Courts

Matteo De Nes, Postdoctoral Fellow in Constitutional Law, University of Padua, Italy, and Tania Pagotto, Doctoral Fellow, Department of Ethics, Law and Politics, Max Planck Institute for the Study of Religious and Ethnic Diversity, Göttingen; PhD Candidate in Law, Market and Person, Ca’ Foscari University of Venice, Italy

How far have the fundamental principles of constitutionalism been endangered by the current and global wave of the so-called “populism”? Is there a potential risk to the traditional balance between popular will, representative institutions and the judicial review of legislation? What are the main factors that affect the relationships between peoples, courts and democratic processes? These questions were at the core of a challenging symposium held at the School of Law of the University of Padua on November 16 and 17, 2017, convened by Prof. Andrea Pin, Prof. Erik Longo and Prof. Oran Doyle, which gathered scholars from Australia, Hungary, Ireland, Italy, Romania, and the United Kingdom. Taking a comparative and theoretical approach, the Symposium was aimed at exploring the fundamentals and limitations of contemporary constitutional democracies, also in connection with supranational legal orders.

Professor Rosalind Dixon delivered the keynote address. She explored the main topics related to the populist phenomenon in a comparative perspective and provided the symposium with the intellectual framework of three crucial questions. 1) What is an appropriate definition of populism, since it manifests itself in different ways; 2) What is the role of constitutional law in facing populism; 3) What are the possible constitutional solutions to this issue. Dixon also identified four issues as strictly related to the populist wave: namely the problem of fake news, migration flows, the increase of inequalities and the role of transnational institutions.

Professor Gabor Halmai analyzed the recent deviations from the shared principles of constitutionalism within the Hungarian and Polish constitutional frameworks. Specifically, he stressed the alarming concerns arising from the new Constitution of Hungary and the constant violation of Poland’s 1997 liberal democratic Constitution that have given birth to a “populist, illiberal constitutionalism.” After discussing the theoretical relationship between populism and constitutionalism, Halmai described the fate of judicial review in Hungary and Poland after this democratic backsliding, and the potential consequences for the constitutional protection of fundamental rights.

In turn, Professor Erik Longo focused on the European Citizens’ Initiative (ECI), a democratic instrument adopted within the EU legal framework in 2012. With the aim of helping the democratization of the EU, the ECI allows people to submit proposals to amend legal acts of the EU. Longo identified and suggested some adjustments for three critical aspects of this mechanism, which raise theoretical as well as practical concerns. Namely, 1) the ECI is a form of electronic participation that does not fit easily with representative democracy; 2) the EU Commission retains considerable discretion in deciding the admissibility of a ECI request; 3) the EU Commission’s discretionary powers coexist with the EU judges’ role as watchdogs of the democratic nature of ECI. Longo finally suggested potential amendments of the ECI legal provisions, in order to make them more incisive and consistent with its purposes.

Professor Oran Doyle addressed the role of the people in democratic constitutions. Drawing on the difference between the concepts of constituent power and constituted power, as developed, with distinctive nuances, by Sieyés, Schmidtt, Colòn-Riòs and Roznai, he carved out the essence and limits of the notion of democratic authority. He took the amending process of the Irish Constitution, with particular emphasis to the abortion debate, as a template, in order to emphasize the role of  the people as a constitutional actor within the constitutional order.

Professor David Prendergast, then, joined the Symposium’s debate inquiring into the democratic justifiability of the judicial review of democratic processes. Taking Jeremy Waldron, John Hart Ely and Dimitrios Kyritsis as his main references, Prendergast proposed a modification Kyritsis’s separation of powers defence of constitutional review. He argued, on the one hand, that the constitutional review of political processes is a necessity. On the other, constitutional review itself should address the need to correct or prevent a problem when some difficulties arise from the democratic processes.

In conclusion, Professor Andrea Pin addressed the supranational European legal landscape; challenged the basic idea that its institutions lack democratic legitimation; and suggested that the European Court of Human Rights and the Court of Justice of the European Union embrace controversial doctrines that undervalue popular will and democracy. As the main drivers of European integration, the two Courts develop the list of rights that they are supposed to patrol incrementally, in a way that does not draw a bright line between the role of the judiciary and the role of elected institutions.

This Symposium fostered an intense discussion among the participants scholars, fitting into the broader debate on the current democracies’ state of health. It certainly added pieces to a complex mosaic, shedding some lights on the relationships between popular will, electoral democracy and the role of the judiciary. All of the presented papers are expected to be published in a special issue of a law journal during 2018.

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Published on March 2, 2018
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