A Faustian Pact? Selling the Rule of Law in South East Europe

The third of the SEESOX Hilary Term core seminars, on 8 February 2017, on the rise of illiberalism in South East Europe looked at Rule of Law and how it can be promoted in the region.  Speakers were Kalypso Nicolaidis (St Antony’s), Damir Banović (University of Sarajevo) and Mehmet Karli (St Antony’s), with Francis Cheneval (University of Zurich) in the Chair.

Kalypso Nicolaidis gave a general introduction to the promotion of Rule of Law. She characterised it as defined by its absence; we only recognise it when we lose it.  It is more than a legal technicality – it is about people’s lives. The EU’s 2007 enlargement had led to the entrenchment of the RoL problems in Romania, with later backsliding in Hungary, Poland and perhaps others Member States. The EU faces a challenge in dealing with this, and its failure to do so undermines the EU’s original contract – a “cathedral of limitations” where the basis for mutual trust and recognition is  the implicit recognition of EU Member State capacity to make and implement laws.

But the dilemma of RoL is that the EU tends to proceed through a means-based, institutions-focused approach, while RoL can only be consolidated if it is outcomes-based and citizen-focused. And the EU is ill-placed to promote RoL, since itself, it  falls outside a normal legal order consistent with definitions of RoL. For Kalypso, the remedy must lie at the level of the individual, through a bottom-up approach, rather than a top-down one led from the EU’s centre.

Damir Banović looked at the experience of RoL promotion in the post-conflict, divided and transitional society that is Bosnia and Herzegovina.  He stressed the role of the socialist legacy in giving prominence to the collective, as opposed to the individual interest, while at the same time discouraging individuals from using the freedom offered by the system. Transition, in a post-conflict period, was still under way after 26 years, while ethno-nationalism, alongside a lack of trust in state institutions, was on the rise.  The Dayton governance model created permanent conflict among political elites and, while formally democratic, lacked the necessary underpinnings provided by an established political and legal culture. Citizens’ political behaviour was characterised by general apathy; in general, there is a gulf between what is written in the law and what actually happens, further undermining public trust.

Bosnia faces a series of challenges: building the state – the battlesbetween centralisation and decentralisation; law enforcement and implementation, notably the decisions of the Constitutional Court; and addressing the conflict between European standards, law and practices, and pre-existing national norms, customs and practices.

Mehmet Karli looked at what he described as “the sad story of Rule of Law in Turkey”. RoL was an oxymoron in today’s Turkey, with more than 50,000 in prison after the coup, most on the basis of little real evidence, and more than 130,000 state employees sacked.  Private sector assets worth $10M had been confiscated with no final court decision. 4,000 judges and prosecutors had been sacked, with a chilling effect on their former colleagues; 12 MPs were in prison and Parliament was effectively side-lined due to excessive use of emergency powers in manner inconsistent with the provisions of the Constitution. There was a process of “deconstitutionalisation” in Turkey, where concepts of RoL simply didn’t  apply, and which the forthcoming referendum on the Constitution would consolidate and accelerate.

While the transformational power of the EU had been short-lived – from 1999 to 2007, it had led to intensive political reform across the board.  But this had not achieved the desired outcome because it was too legalistic, focused on means, not ends; reality never matched the reforms on paper. Furthermore, the judiciary never managed to transcend its subservience to the defence of the state; independence of mind cannot be legislated. Power structures adapted in support of vested interests, in a winner take all culture, but failed to limit majoritarianism. 

The Commission, in its annual reports, had highlighted these problems, but insufficiently; had it insisted more when at the height of its leverage, we might not be where we are now. An example was the electoral threshold, where the EU had not pushed to reduce this, allowing a concentration of power in the hands of AKP.  No doubt the EU had its reasons, but…

In the Q & A, a number of issues were elaborated on:

Citizens’ protests: those in Turkey were disorganised and lacked funds, while the majority of the population gained benefits from the current system. AKP nonetheless faced growing alienation in the future  – inevitable with one-man rule – once  victims became the majority. Protests in Bosnia in 2014 had transcended ethnic boundaries, but the political elites had spun them as ethnic and they ultimately failed to achieve change. Only in Romania had they had some – shirt-lived – effects; and the idea had been put forward  of outside mediation when domestic society couldn’t provide it. .

The role of the EU: perhaps we were asking too much of the EU? Its  means-based approach was certainly a problem however. Would it better to look at “joint Copenhagen criteria Commissions” so as to focus more on outcomes?

Costs of the absence of RoL: these were not the same for all groups in society and, for many, corruption facilitated the achievement of results; thus a large segment of society got what it wanted in the absence of true RoL. However, in many instances, they simply didn’t know that true RoL made a positive difference. It took a long time to establish a RoL culture – centuries in the U.K. – the answer was education, using all available tools.

All in all, a wide-ranging review of the challenges of implementing RoL in SE Europe, setting a broad agenda for future analysis.

Jonathan Scheele, St Antony's College, Oxford

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