Constitutional Identity and Illiberalism

Constitutional Identity and Illiberalism

The concept of “constitutional identity” is not one of the most publicly recognizable legal concepts, but it has become one of the core concepts used by several constitutional courts in Europe and beyond. It has been used usually to argue for a larger degree of jurisdictional and interpretative autonomy when discussing issues which involve international law or European or international guidelines of good practice.

There is no universally agreed definition of what “constitutional identity” is or what it entails, making it an essentially contested concept, but there are several major legal understandings adopted by some European constitutional courts and major scholars. Law scholars have conceived constitutional identity from simply an ideational structure that derives from the basic institutional characteristics of the political regime it regulates (e.g. presidential or parliamentary system) up to a structure that is based on a relation between the fundamental act and national culture, religion, or ideologies (Rosenfeld 2012, 1).  The easiest way to understand the concept is by linking it to “national identity” and what that entails, as being part of a specific polity, a political community. It is a set of beliefs, values, and intersubjective meanings that define who we are and what makes us different from foreign constitutional regimes. But we should not confound the notions of constitutional and national identity, as they remain distinct. A nation, as an “imagined community”, to use Benedict Anderson’s phrase, does not need a constitution to exist, nor does its national identity require an institutionalized “state” to appear and evolve, even if historically this was one of the two models of nation-building. Central European nations like the Czechs, Slovaks, Romanians or the Balkan nations were constructed by elites in the absence of a national state. Of course, this is not the case for France, Germany, Italy or the United States. Constitutional identity is based on historical experiences that define a particular constitutional regime, establishing a difference from foreign regimes and dialectically co-constituting a national legal and constitutional tradition, which is in a constant evolution (Faraguna 2017). Constitutional identities, as any identity, defines interests and subsequently enable or constrains different paths of action.

While “constitutional identity” is essential to any constitutional polity, defining a legal tradition that enables a coherent and historically-conscious legal system, it may also be a hindrance in the process of overcoming pre-modern or illiberal practices. This is especially a problem in newer democracies, which do not have a long historical memory of rule of law nor a very solid liberal tradition. For polities in transition to full liberal regimes, constitutional identity may be instrumentalized in order to reject international recommendations or models of good practice. By appealing to a sovereignist constitutional identity, national courts justify their refusal to acquiesce to international jurisprudence, European law or recommendations from regional or international bodies, like the Venice Commission. European regulations, international recommendations are seen as valid and applicable as long as they do not contravene the constitutional identity of the state and to its tradition. But if the constitutional identity and its legal tradition have been defined and are deeply influenced by pre-democratic and particularist thinking, then these are becoming hindrances towards building true liberal democratic states defined by the rule of law.  Therefore, while essential in forging a strong and coherent legal system, constitutional identities may very well hinder progress for transitional countries. This is why I would argue that the constitutional identities of EU member states should never supersede EU law when from these results a lower level of protection than the one offered by European law.

Russia and Hungary

The most eloquent cases are maybe the ones of Russia and Hungary. In the case of Hungary, the Constitutional Court has made use at large of the concept of constitutional identity in order to justify Viktor Orban’s illiberal turn, in the last years. Starting in 2016, the Hungarian Constitutional Court adopted an ethnonational constitutional identity interpretation that facilitated Orban’s illiberal political project in Hungary, especially in regards to spatial and temporal of EU law and norms. In its December 2016 decision regarding the EU’s refugee relocation scheme, the Court argued that the Hungarian constitutional identity overrides the EU rules, which are considered to have primacy over national law, and international human rights treaties (e.g. the UN 1951 Refugee Convention), allowing the Hungarian government to refuse the acceptance of refugees. This created the conditions for the government to use the sovereignist constitutional identity to reject European and international criticisms regarding the rule of law and institutional changes performed by Orban’s party in the country. It was used in 2017 to reject domestic and international critique on the increased politicisation of the judiciary and other autonomous state institutions and in 2018 the Court used it to end the constitutional review on Lex CEU and Fidesz’s law labeling foreign-funded NGOs as foreign agents.

In the case of the Russian Federation, the Constitutional Court instrumentalized the concept of “constitutional identity” in order to defy the European Court of Human Rights jurisprudence. By declaring itself as the “protector of national constitutional identity”, the Court redefined its relationship with the ECtHR and the European Convention on Human Rights by refusing the primacy of ECHR and ECtHR’s jurisprudence when it comes in opposition not only to the provision of the Russian constitution but also to “national values” or the “constitutional identity” of Russia. This shows the ideological turn that took place in Moscow after the start of the conflict in Ukraine and the emerging conflict with the West and comes as a surprise, considering that the Russian Constitution postulates the primacy of international human rights law over national law when the international law is more favorable. In Markin v Russia, the Russian Constitutional Court used constitutional identity in order to assert a sovereignist position, to reject the universalist legal philosophy of the Strasbourg court and to emphasize the importance of a statist interpretation that takes into account the domestic cultural, moral, and historical peculiarities of Russia. In effect, the Russian Constitutional Court used the concept of “constitutional identity” to limit the application of European human rights law in Russia and to assert a more statist and conservative legal philosophy which I doubt is as liberal and inclusive as the European one.

Constitutional Pluralism and Constitutional Identity

While constitutional pluralism represents a desirable characteristic of the European and international law regime, the potential drawbacks epitomized by the use of constitutional identity narrative by transitional courts, in their endeavor to protect a statist and sovereignist conception of human rights law, may very well come to haunt us. Uniformity and a European constitutional identity that will limit the possibilities for the states to establish lower guarantees when it comes to human rights and rule of law frameworks may represent a more useful and genuinely expressive way of protecting a liberal international law order. This does not mean that we should eliminate state autonomy or to take away the margin of appreciation that national courts enjoy, but we should make sure that arguments based on ideas like “constitutional identity” can be used only to enhance human rights and to defend the rule of law, rejecting its use when it implies the adoption of a lower standard of review and protection.

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