Enforcement of Constitutional Court rulings

Constitutional courts can and do usually uphold democracy and civil rights against a head of state, as now superficially in the case of Turkey and its internet censorship.*
Autocratic minds know how to cope with this, of course.

One method is to rig the constitutional court by replacing or adding members with reliable partisans.

Another method is to do the same with the executive branch and media, so a ruling can be ignored or be implemented only superficially.

It's worrisome how few if any countries have implemented a countermeasure to this countermeasure. It's rarely within the powers of the court to call for special elections so the people have a chance to get rid of the autocrats. It's as far as I know unheard of that a constitutional court can assume command of police or other armed personnel of the state to enforce a ruling.

The problem is thus that the current dominant design for constitutional courts only works up to the point when the offenders are willing and capable to resist its authority. And this authority is usually only a moral one.

This defines a threshold between democracy and autocracy in my opinion. It's an autocracy once politicians have neutralised the restraining power of the judicial branch. Up to this point it's still a struggle to defend democracy, whereas afterwards it's a struggle to restore democracy.

I believe we should pay more attention to this threshold and build up more defences of democracy  to stop a move towards autocracy prior to the tipping point of a neutralised constitutional court.


*: The ruling allows 30 days for implementation, which basically allows the government to keep the censorship in place till the elections. The court is thus not really serious about it.


  1. OK, so a "freedom" article occasionally appears on the "Defence and Freedom" blog, but it appears you're refering to the law and the political system as an entity that plays by the book it itself writes.

    It could be that you're hopelessly idealistic or caught into a self-refering logic. But, given your quality of judgement on other matters, intellectual dishonesty is much more probable.

    To provide context before I go on : here ( http://defense-and-freedom.blogspot.fr/2014/03/actio-et-reactio.html ) I mentionned and detailed some gritty (and of course antidemocratic) aspects of "coloured revolutions" , to which you replied :

    "The dirty practices in such wars are relevant on a lower level and not particularly interesting to me"

    The topic was not brought up again afterwards.

    It's a joke that when an elected government has just been overthrown by the kind of « lower level » events that are « not particularly interesting » to you, you choose to write about threats of a constitutional nature (for which we still have to find some historical relevance, BTW).

    I would have expected a person dedicated to « Defense and Freedom » to analyse the events, means, goals in full. Yet this didn't happen, and calls to do this were dismissed as irrelevant.

    But I understand you are serving in the German Army, and so you are probably bound by a certain number of obligations, also of a political nature. Your superiors and assorted internal spooks are also probably reading your blog, so you may not say all you want. Maybe this blog is the current form of « academic publications » and helps you add credentials for your career.

    So, for the need of a job (perfectly understandable), or for a career or because of the nature of the job (obedience), you don't adress the obvious, violent overthrow of a somewhat democratic regime and the subsequent loss of freedom for the population. So much for « defense and freedom ».

    ( I mean, many of these guys are genuinely and openly nazis ! It doesn't get any clearer than that, does it ? )

    So yeah, I realise this doesn't leave you many honest options open (you can still find this « not particularly interesting » all you want, for what it matters)

    The one gripe I do have, though, is that by keeping silent on the nature of what happened in Kiev, especially when you took the position to be the one who would resist them, you're actually helping the opposite side of « freedom ».

    I'm sure many, many people « looked the other way » in similar circumstances all throughout history, especially in Europe and especially against these groups.

    I don't blame most of them, it takes uncommon courage to risk career, reputation or even life for that. But those who keep acting as if nothing happened, and still use the big words, well, I'm sure you know what to think of them.

    1. I did clearly write "wars" in what you quoted, and the events you focus on (domestic power struggle and change of government in the Ukraine) are clearly not a "war".

      It's my position on these events that much comment should be withheld until we've got the benefit of hindsight and more comprehensive information. I did comment little on the recent events for this reason; written history is huge and provides enough material to draw lessons from. This blog is not focused on recent events because of my proclivity to use the rich history of mankind.

      BTW, I am not serving in the German Army, I did serve in the Luftwaffe - and I would never have mentioned it ever if anglophone people hadn't a strange emphasis on whether someone is a 'vet' or not.

      And the quote "so a ruling can be ignored" clearly is not part of a blog post that is "refering to the law and the political system as an entity that plays by the book it itself writes".

  2. > domestic power struggle and change of government in the Ukraine) are clearly not a "war".

    Very interesting. Why then bother about a constitutional court, like you're doing in the original post here ? It's not a war either.

    The thing is, you know this, and yet you write it down. Perhaps this is where intellectual dishonesty stops and BS begins.

    Regarding "the benefit of hindsight and more comprehensive information" it is intellectual dishonesty just the same.

    First, there is pretty good coverage of who those who seized power in Ukraine are. You're just trying to look the other way.

    Second, as coloured revolutions are conspirative by nature, we will never have all the information, as with many things in history. What we already have is more than enough to found an analysis on.

    Third, you're the first to point out inadequate strategic thinking and the bureaucratic inertia that leads to defeat. Yet you adopt this posture without a qualm if it can get you out of a bad place.

    If we were in February 1940 I would expect you to use whatever scraps of information we have to analyse the Winter War, because major fighting was going to be imminent and it would not look like WW1. (The same goes for Poland, but it doesn't have the potential for such words as "not particularly interesting" and such.)

    To be fair, I don't expect you to answer honestly to any of this. I think you are too intelligent to be just self-delusional when you're posturing about "freedom" (like in this OP) all the time. Having calculated you've been cornered, you have decided to "look the other way" to save face, and this exactly when you lose it.

    1. Your political opposition to the revolution there seems to bias your perception.
      I wrote about the constitutional court thing because of 'freedom', but whether some fascists contribute to a revolution of not is not the same, nor am I obliged to be interested in or write about everything related to 'freedom'.

      Besides, this blog is not meant to report news or to draw a comprehensive image of the world; it's just a channel to get some points out.
      I've got nothing specific to say about the Ukrainian fascists, just as I don't write much about the Hungarian government, and never wrote about the illegitimate power of organised crime et cetera. It's my choice, and the appropriate word is "incompleteness", not "dishonesty".

  3. It looks that everything has been said, and we won't go much further in either direction, although it begins to get genuinely comical, in a Monty Python way : "Say, what the way you're talking about Nazis when they bash the head of their opponents... Don't you realise how BIASED it is ?"

    To tie up loose end, yes by all means, make articles on the blunderbuss in the 17th century and what it meant for freedom, for all I care. Don't talk about Nazis seizing power ("revolution") or anything impolite ("dirty", oooh)

    That said, I am very happy to be in my position. I won't say you're stupid or naive, and I don't think you are. You know pretty damn well you are dishonest, because you have to be, in whatever organisation you're working for.

    In search of an equivalent, the easiest comparison that came to my mind was of Vichy civil servants. They knew they had to tell blatant lies, but what choice did they have, on a personal level ?

    I didn't harm most of them, in 1944 they simply switched sides, many has tremendous careers after the war. One of them, Mitterrand, even became president (and representing a left-wing party, no less !)

    It may be that all those who work in administrations and large organisations live in some kind of Vichy situation, or state of mind, after all.

    For instance I can't imagine any engineer working for Microsoft being genuinely enthusiastic about Bing, but he can't really say anything about it. Either he resigns, he shuts up about it (the "silent" collaborator) or he collaborates actively and glorifies it.

    Regarding Nazis seizing power in Ukraine, perhaps you ended up glorifying it ("revolution" ! "you're biaised" !), because you're one of the silent types that I cornered into protesting the purity of your views (i.e. having to take the ugly side your organisation is working with).

    In any way I cannot conceive you being honest about it, and this is why I appreaciate my much more confortable position, where I don't have to bow down to this kind of pressure all the time.

    Of course, we might end up all having to raise our arms and praise our local "revolution" some day, but if it was a concern on this blog it would have been mentionned already.

    1. You guess way too much about me (and too wrong).

      Besides, Swoboda having the ministry of ecology and the ministry of agrarian policy is not widely believed to enable them to dominate country or to rig its next elections.

      It's distant (and non-allied) enough that I'm interested more in seeing how this turns out over time, and not so much in writing about it.

  4. I don't think constitutional courts are really the saviours of democracy you paint them out to be. As amply demonstrated by the american experience in later years, they can be explicitly anti-democratic if their members get dominated by one extreme of the partisan scale.

    I'm not sure about the rules in germany, but in the USA they are very much like a sort of royalty; sit for life and certainly rule as it pleases them (just see the ruling about Voting Rights Act of 1965). Or look at Thailand where the courts ruled the latest election invalid since not everyone could vote on election day because explicitly anti-democratic forces closed some polling stations (there where elections at those places later). This ruling was celebrated by the anti-democratic forces.

    The simple truth is that the overall task of defending democracy cannot be left to some specialised organ of the state; in a democracy the collective will of the people is supposed to be the guiding principle, and delegating the protection of this principle to a court distances the people from the ruling power.

    I have much more interest in ideas that give citizen collectives more direct agency over the actions of the state, it is by interfacing the people with the power more tightly that democracy is best defended.

    1. A constitutional court is linking between the constitution and the state. Loyalty and conviction are linking the constitution with the people.

      It's dangerous if one link fails, even if this doesn't necessarily mean total failure.

      And courts consist of mere mortals, so they're fallible. I personally believe that the German federal constitutional court is much too supportive of the state and not ferocious enough in its defence of the basic law.
      Article 87a(2) and Kosovo, for example.

    2. A constitution serves as a formalisation of the nations moral code at some point in time, its purpose is to give overall structure to the interactions between the people and the state.

      But the link between the people and the state is not the constitution, it is primarily the culture of the nation that links the citizens to the state and keep them loyal.

      In this picture of the nation the constitutional court serves well when citizens and state are mostly in agreement (some few individuals could be badly treated despite this). But if there is significant conflict among the citizens or between many citizens and the state the constitutional court will simply serve one side or the other, depending on who got in most of their guys.

      In summary, a constitutional court is a good thing to have. But don't act like giving it superpowers will prevent the state from being corrupt. The only thing keeping a state honest is the honest people within it.

    3. Culture can be changed with salami tactics over time. It takes discrete points, safeties, to ring the alarm when this happens in the wrong direction.

      Our constitutional court failed to do its job in '99 when the salami slicing of 'out of area missions' had reached the point of attacking a country. It did so not because of culture, but because ruling differently would de facto have declared half of our top politicians to be criminals.
      The constitutional court safety and its workings are obviously in need of improvement.