When the Appointed Overrules the Elected: an Overview of the Decline of Democracy within the European Union.

Towards the end of 2012, the Constitutional Court of Slovenia issued a decision in regard to a referendum meant to consult the population on the establishment of a so-called “bad bank”. The bad bank was to be a state-owned institution meant to take over bad loans made by private banks and basically use public funds to bail out the banks which awarded credits that could not be repaid. In addition, another piece of legislation was to create a another body controlled by the government in order to prepare public companies for rapid privatization.[1] The establishment of such a system would mean that public funds will be used to bail out banks that awarded under-performing loans which can not be recovered. The legislation was challenged by the parliamentary opposition as well as trade unions, which managed to force a referendum on the matter, asking the people of Slovenia to directly state their opinion. In an effort to have the popular vote blocked, the government sent the issue to the Constitutional Court of Slovenia which decided that, while holding a referendum on the matter is constitutional, the result of it, and particularly a rejection of the said laws, would leave constitutional values unprotected, basically making the referendum void. [2] According to the Court, constitutional values such as the efficient functioning of the state and the right to free economic initiative would be jeopardized by the popular vote rejecting the aforementioned legislation.[3] Such a decision essentially placed the state apparatus and well-being of the financial institutions above the sovereignty of the people, creating a precedent in which a small panel of appointed clerks can, in fact, cancel or override a popular vote.

This was not the only instance of 2012 when an exceedingly small group of politically appointed clerks overturned a popular vote. In July 2012, the Constitutional Court of Romania decided that a referendum to impeach Romania’s president was invalid due to low turnout, in spite of an overwhelming vote in favor of the impeachment. Basically, the Court decided that a turnout of 46% was insufficient to validate a referendum (a 50% turnout was required) in spite of the fact that over 80% of voters were in favor of the impeachment and thus another 4% of voters turning out would have made absolutely no difference in the result. This ridiculous display of authoritarianism by a court shows just how much an unchecked institution can damage a democratic process as fundamental as a popular vote. In fact, over a period of several years, the pivotal issue which the European Union focused on when it came to new member states was the independence of the judiciary branch. Such pressure led to a situation in which the courts, which are made up of appointed or career judges, become almost untouchable and unchecked, leading to a degradation of the “checks and balances” system indispensable to a true democracy. Such an attitude of the European Union in general and the European Commission in particular can be seen in the Commission’s report on progress in Romania under the Mechanism of Co-operation and Verification, published in late January 2013. The report speaks of the Constitutional Court as being the guarantor of the supremacy of the Constitution, showing a somewhat naive and misinformed point of view, since the image of the Constitutional Court of Romania has suffered a crippling blow in the summer of 2012 when they issued the highly unpopular decision to override the vote of over 8 million citizens. [4] Moreover, the Commission speaks of intimidation by means of media campaigns conducted against the justice system and anti-corruption institutions and goes as far as to suggest a legal framework that would regulate the press (a “code of conduct”) and force the media to refrain from “undermining” magistrates.[5] This has caused outrage among supporters of fundamental human rights since it would clearly violate the right to free speech and the freedom of the press. The Commission, however, did not seem to consider the impact such a code would have on the said rights, showing that the dominant mentality among its members is an authoritarian one, not unlike far-right ideologies. The report makes further suggestions that would see politically appointed bodies having the ability to override the elected institutions and virtually cancel the vote of the people. It speaks of ministers and senior officials (all of which are members of Parliament, therefore directly elected by the people) who did not resign as a result of pending investigations of corruption or as a result of a negative report against them made by the National Integrity Agency (NIA). The NIA, however, is no more than a panel of (politically) appointed individuals which act as a consultative body and have no power to issue verdicts (that is reserved for the justice courts alone). However the Commission suggests that elected officials should resign or be removed from office on mere suspicion or due to a negative, legally non-binding report, issued by a politically appointed panel, suggesting that fundamental legal principles (e.g. due process and the presumption of innocence) be breached.

These aren’t the first examples of European Institutions (and the Commission in particular) pressuring member states to either disregard or downright block popular votes. In 2008 Ireland rejected the Lisbon Treaty by referendum but, under intense pressure from the EU, it conducted a new referendum on the same issue the following year, returning a favorable result. As recent as 2011, the Greek prime-minister, George Papandreou, wanted to hold a national referendum on whether Greece should accept the conditions imposed by the European Union, International Monetary Fund and European Central Bank for the country’s bailout. Under intense international pressure, the prime-minister canceled the referendum before it took place.

The European Parliament seems to have taken an interest in what has been labeled as the increasing deficit of democracy, particularly the deficit which results from further centralization of the economic decisions which is to be implemented with the Single Supervisory Mechanism. This mechanism will be under the direct control of the European Central Bank, another institution made up of appointed rather than elected individuals and thus lacking any form of accountability to the people of the EU. [6] However, for the time being, the Parliament seems to lack the strength or the will to take active measures in order to restore the power of the democratically accountable institutions.

Overall, the general behavior of the European Commission and other European Institutions appears to be that of an authoritarian body of appointed bureaucrats who run and hide whenever the idea of popular vote is put forward and are known to apply pressure in order to cancel such votes or overturn their result. Such a mentality is in clear breach of the sovereignty of member states of the EU and can have grave consequences for the future of the union should a change not occur in this general attitude. The more Brussels acts like an imperial metropolis which seems to subjugate the constituent countries of the Union, the more will Euro-skepticism be on the rise. Simply put, should the EU start to resemble a 19^th century multinational empire, it will most certainly meet with the fate those empires shared, which was complete dissolution.

Author:

Bogdan Cristea, M.A. International Studies

bogdan.cristea@workmail.com