Constitutional Capture in and around the Contested Neighborhood

This article is part of the TRAFO series “Trajectories of Change”

By Žilvinas Švedkauskas

As rightly noted by Anna Hofmann in the introduction to this TRAFO series, the boundary between Europe and its neighborhood has historically been and remains highly ambiguous, though little questioned. In addition, scholars of area studies and policymakers have been “dividing” the neighborhood, narrowing their respective research questions and policy problems into “eastern-” and “southern-”, country-, and region-specific issues. Though compartmentalization simplifies research and policymaking, I believe it turns our attention away from gradual changes occurring on both sides of the contested European border. Let us consider the contemporary script of autocratization, which I aim to explore in my doctoral dissertation.

Today it is widely acknowledged that after the third wave of democratization a reverse wave of autocratization is sweeping the globe. Anna Lührmann and Staffan Lindberg (2019) suggest conceptualizing autocratization as a continuous move away from democracy, which starts with democratic recession or backsliding. A second stage on this continuum is democratic breakdown, marked by a sudden transition from democracy to autocracy. The final stage is authoritarian consolidation, indicating gradual removal of remaining democratic attributes. Thus, as an overarching process, autocratization should be detectable across regime types and in the grey zone between democracies and autocracies.

Another recent development relevant for my inquiry is that contemporary autocratization is less violent. Whereas foreign invasions, military coups, and autogolpes – occurring when the chief executive comes to power by legal means but then suddenly abolishes key democratic institutions – were widespread in the 20th century, today we see a global decline in the use of these violent tactics (Powell and Thyne 2011; Meng 2020). Following Nancy Bermeo (2016), I think that less violent forms of autocratization have posed a real challenge for academics and policymakers, since slow and incremental changes in gradually autocratizing regimes, led by the government rather than against the government remained somewhat unnoticed and little systematically analyzed until the mid-2010s. Then the wake-up call of Brexit, Trump, and the electoral success of populist parties in some European countries went off.

„Demokratie-Wagen“: In May 2017, this carnival float by Jacques Tilly was in Prague to protest against right-wing populism. Afterwards it was circulating in many cities in Poland. © Jacques Tilly/Hojabr Riahi.

Back to the contested European borderline. To the surprise of many, autocratization is detectable not only to the south and the east of it, but also to the west. To use the words of Tasha Schedler and Oliver Schlumberger, authoritarian tendencies have made inroads into places, where “modernization theorists would have predicted democracy to be most robust…in reasonably established democra­cies that tend towards the ‘centers’, not the ‘periphery’, of the global system, where the political system sup­posedly is also embedded in a civic culture dominated by democratic values” (Schedler and Schlumberger 2020: 14).

Sitting before a map of Europe and its neighboring countries, I chose Egypt, Turkey, Hungary, and Poland for further empirical investigation. These cases cover the aforementioned theoretical continuum of autocratization. My supposition is that analyzing these cases under a comparative framework would inform our understanding of shared challenges for democracy and interdependencies on both sides of the border. In doing so, my project aims to challenge the artificial analytical divide, usually employed when analyzing political transformations in a European neighborhood separately from the ones taking place in Europe.

Looking southwards, in the aftermath of the Arab Spring, a military regime headed by general Abdel Fattah al-Sisi has been successful in consolidating its authoritarian rule over Egypt, the most populous country of the European neighborhood. In addition to widespread arrests of activists and a general clamp down on civil society, the Egyptian regime has been able to overcome and marginalize the traditionally independent judiciary (Moustafa 2007) by strengthening a shadow system of military courts and harassing individual judges (El-Ghobashy 2016; Amnesty 2017). In 2019, the regime pushed through constitutional amendments enabling al-Sisi to stay in power until at least 2030.

Although experts on Turkey disagree on the exact turning point in the breakdown (as well as, in fact, the existence) of its fragile democracy – epitomized by attempts to join the European Union in the early 2000s – it is obvious that the Turkish turn to authoritarianism accelerated in 2016 with a failed coup attempt, followed by the imposition of a national state of emergency. With the rule of law suspended and troublesome members of parliament and the constitutional court detained, President Recep Tayyip Erdoğan and the Justice and Development Party (AKP) were able to push through their own “Turkish-style presidentialism”, approved in a contested referendum in April 2017 (Bâli 2018). This cleared the way for Erdoğan to remain in office nearly indefinitely and disproportionately augmented his executive powers.

Turning to look westwards, Hungarian and Polish cases exhibit signs of autocratization in a democratic recession form. Authoritarian tendencies in Hungary materialized through constitutional amendments enacted in early 2010s. Prime Minister Victor Orbán and the Fidesz party attacked the separation of powers by weakening the constitutional court and the legislature – halving the size of the latter – and gerrymandering electoral districts to their advantage (Tavares 2012; Buzogány 2017). The constitutional order a la Fidesz enabled further backsliding, illustrated by changes in the compulsory retirement of judges, prosecutors, and notaries, and government assaults against the independence of universities, the Academy of Sciences, and the forced relocation of the Central European University to Vienna.

Similarly, the Law and Justice Party (PiS), driven from the back seat by Jarosław Kaczyński, has put Poland on a non-democratic trajectory. Though no substantial constitutional reforms have been introduced under PiS as of yet, the government has demonstrated clear attempts to pack the Constitutional Tribunal with its loyalists by lowering the retirement age for judges (Scheider 2020). A recent ruling of the Tribunal deemed abortions of malformed fetuses unconstitutional (almost totally banning abortions in the country). Coupled with the telling silence of the judiciary on the establishment of “LGBT ideology-free zones” throughout the country, this vividly illustrates that manipulating the judiciary supports the nationalist-conservative project of the Polish ruling party.

Theorizing the political transformations in the making of modern Europe, Trevor-Roper (1968) wrote that “various countries of Europe seemed merely the separate theaters upon which the same great tragedy was being simultaneously, though in different languages and with local variations, played out.” In a somewhat similar take, after an initial engagement with Egyptian, Turkish, Hungarian, and Polish empirics, I believe that there are good reasons to assume that in certain parts of Europe and its neighborhood the same script of autocratization is playing out. The overarching theme here is autocratization through constitutional change, whether it concerns constitutional referenda, amendments, or independence of the judiciary or individual judges. I believe that compartmentalizing these processes into separate ‘European’ and ‘neighborhood’ boxes would simply be counterproductive.

In her short provocative essay, Gila Stopler (2017) defines similar processes as constitutional capture: “a systematic and intentional weakening of the checks and balances entrenched in the constitutional system, in order to strengthen the existing regime and impede the possibility of a genuine change of government. Intentional and incremental steps are taken…to subordinate all the democratic watchdogs, both those internal to the system and those external to it.” This definition suggested by Stopler provides a good starting point for further analysis.

In my dissertation, with a view to answering the overarching question of how autocratic leaders deconstruct existing constraints, I start from their points of entry to power. From the literature on path dependence we learn that starting positions matter, and thus I aim to identify existing constitutional checks and balances, which had to irritate al-Sisi, Erdoğan, Orbán, Kaczyński, and their partners in crime from the very beginning. I look for checks and balances that constrain de facto, not only de jure. After identifying the targets, I turn to strategies and trace which actors, resources, and scenarios were involved. In doing this, I look to come up with a catalog of mechanisms of how constitutional capture works at different stages of autocratization. Comparing these mechanisms, we learn more about how constitutional change is intertwined with contemporary autocratization. Moreover, we are able to better speculate about ’ future moves and draw feasible counterstrategies for employing international leverage to prevent ‘the same tragedy’ of constitutional capture from playing out on both sides of the contested European border.


Bibliography

Amnesty International. New legislation threatens judicial independence in Egypt. Apr. 27, 2017.

Bâli, A. Turkey’s Constitutional CoupMiddle East Report 288 (Fall 2018).

Bermeo, N. (2016). On democratic backslidingJournal of Democracy, 27(1), 5-19.

Buzogány, A. (2017). Illiberal democracy in Hungary: authoritarian diffusion or domestic causation? Democratization24(7), 1307-1325.

El-Ghobashy, M. (2016). Dissidence and deference among Egyptian judges. Middle East Report, (279), 12-19. <https://merip.org/2016/09/dissidence-and-deference-among-egyptian-judges/>

Meng, A. (2020). Constraining Dictatorship: From Personalized Rule to Institutionalized Regimes. Cambridge University Press.

Moustafa, T. (2007). The struggle for constitutional power: law, politics, and economic development in Egypt. Cambridge University Press.

Lührmann, A., & Lindberg, S. I. (2019). A third wave of autocratization is here: what is new about it? Democratization26(7), 1095-1113.

Powell, J. M., & Thyne, C. L. (2011). Global instances of coups from 1950 to 2010: A new datasetJournal of Peace Research48(2), 249-259.

Schneider, L. (2020). Responses by the CJEU to the European Crisis of Democracy and the Rule of Law.

Schlumberger, O. & Schedler, T. (2020). Authoritarianisms and authoritarianization. In D. Berg-Schlosser, B. Badie & L. Morlino The SAGE handbook of political science(Vol. 3, pp. 712-729).

Stopler, G. Constitutional Capture in Israel. Int’l J. Const. L. Blog, Aug. 21, 2017.

Tavares, R. (2012). Draft Report on the situation of human rights: standards and practices in HungaryEuropean Parliament, Committee on Civil Liberties, Justice and Home Affairs2130.

Trevor-Roper, H. R. (1968). The European Witch-craze of the Sixteenth and Seventeenth Centuries: And Other Essays (Vol. 1416). Harper & Row.


Photo: ZEIT-Stiftung/David Ausserhofer

Žilvinas Švedkauskas is a PhD candidate at Eberhard-Karls-Universität Tübingen and a Bucerius Fellow of the “Trajectories of Change” programme at ZEIT-Stiftung Ebelin und Gerd Bucerius, specializing in comparative politics and autocratization. His primary research focus lies in constitutional change, digital transformation, and mechanisms of co-optation in the Middle East, Africa, and the post-Soviet space. Žilvinas Švedkauskas holds a joint MA degree in Comparative & Middle East Politics from Tübingen University and the American University in Cairo. He also writes, provides commentaries for Lithuanian media, and consults NGOs on questions of civic and global education.


Citation: Žilvinas Švedkauskas, Constitutional Capture in and around the Contested Neighborhood, in: TRAFO – Blog for Transregional Research, 15.12.2020, https://trafo.hypotheses.org/25957.


Further articles in the “Trajectories of Change” series on TRAFO:

Anna Hofmann, Trajectories of Change: New Research Projects on the European Neighbourhood, 15 December 2020.


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