04 Feb, 2020

What if political leadership doesn't protect the rule of law?

This op-ed is written by Sophie in 't Veld MEP (D66, the Netherlands).

What to do if a country’s political leadership does not protect the rule of law, but is rather the main threat to it?

Two mature democracies are struggling with this question, in very similar ways. Both the United States and the European Union are confronted with democratically elected government leaders that violate laws and take a sledgehammer to constitutional principles. Whether it is President Trump in the US, or the Polish and Hungarian governments in Europe; they believe their democratic mandate puts them above the law. They rule by the law, using and twisting laws in order to promote their partisan and private interests. As they blatantly violate the US constitution or the EU Treaties, the democratic rule of law suffers. Both the US congress and the heads of EU member states should recognize they have a democratic duty to put a check on this behavior. If not, our democratic rule of law is in crisis.

Mechanisms designed to remove or suspend from power a rogue government leader are in place. In Europe, the Article 7 procedure is roughly analogous to the impeachment clause of the US constitution. It removes the voting rights of a country in the powerful European Council. A suspension from that important decision-making table in Europe is a harsh sanction, and the European Parliament and the European Commission have invoked it in the cases of Hungary and Poland respectively.

The decision now lies in the hand of the aforementioned Council, in the same way that the US Senate has taken over the impeachment procedure from the House of Representatives. These bodies however, will only act if a number of politicians are willing to “break ranks”. This applies to members of the Republican Party, but also to European government leaders towards their fellow members of the European Council. Very few have been willing to go further than stern words. Punishing one of their own, in order to protect the rule of law, has proven to be a bridge too far. Most strikingly in the upcoming failure of the US Senate to impeach Trump. Acquittal seems almost like a formality now, even while many Republicans are fully aware and convinced he is guilty of impeachable offenses. It is the ultimate proof of the weakness of the system. Europe looks more resilient with its independent judiciary, but rather than addressing the rule of law crisis, European government leaders hope the problem will somehow solve itself, effectively outsourcing the hot potato to the judiciary. The problem will not go away and the time to recognize that fact is now.

With liberal democracy in retreat worldwide, the world should pay more attention to what is going on behind the walls of one of its democratic bastions. The EU’s inner workings do not make for good political drama on television, but its current rule of law crisis bears strong similarities to what is happening in the United States. The European Union is a young and unfinished entity. Its current form consolidated as recently as 2009, with the Lisbon Treaty, the first new Treaty adopted by a re-united European continent.

The Union has since shown its strengths and its weaknesses, and it can still be shaped, moulded, and fine-tuned. Unlike the US Presidential system, power in the EU is not centralized, and the EU representative bodies are more pluralist and flexible than the bipartisan trenches of the US system. Europe should make good use of these advantages, and set up a robust constitutional arrangement with sufficient safeguards. For without the rule of law, democracy is just the law of the ruler. Europe can do better than that.

Populist authoritarian forces are unlikely to disappear any time soon. Trump may well be re-elected, Orbán has been in power for over a decade, the Polish government was just re-elected, and thanks to the antiquated UK election system, Johnson is holding on to power with a minority of the votes. So on both sides of the Atlantic we need to bolster the democratic rule of law against attacks from the very people who have taken a solemn vow to defend it. Europe has a good chance of achieving that, if only our elected officials step up to the plate – to use an American saying.

Follow Sophie in 't Veld MEP on Twitter.

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