Crisis of Democracy 2: How to Get Rid of the Government without Bloodshed
Crisis of Democracy 2: How to Get Rid of the Government without Bloodshed
For a social order to work, there must be broad agreement among all citizens. Agreement means that the common order is the order desired by the majority of citizens. But what unites the people of the state today? Can an increasingly heterogeneous and fragmented society develop a 'common will' - at least in its majority? What should this common will be based on, what should it refer to? This phenomenon binds us in Europe today in a strange and disturbing way: do we (still) consider ourselves as part of our states?
The value of citizenship
I recently discussed the crisis of participation here, using the example of universal suffrage. Participation in elections - and thus the selection of political leaders - is the simplest and most egalitarian form of participation in the representative system. It is, with few exceptions, linked to citizenship. But what does citizenship mean in an age of freedom of establishment and free movement of labour, in an age of large-scale migration? In the EU states, an increasing number of people reside permanently within the borders of a national territory, but cannot vote there because they are not citizens of that country. As a result, the number of people who are unable or unwilling to participate in elections is increasing. The question of whether (and to what extent) citizens with a migrant background are also responsible for the decline in voter turnout is the subject of ongoing research. In 2017, a study funded by the German federal government found that in the 2013 federal elections, the turnout of migrants was about 15 percentage points lower than that of people without a migration background [1]. In the 2017 federal elections, this difference was 20 percentage points [2].
In many EU countries, the participation crisis is reflected in the fact that the instrument of the right to vote is reaching fewer and fewer inhabitants of the state concerned. From the point of view of democratic politics, this is not the only deficit, but an essential one. If we refer to the idea of popular sovereignty inherent in democracy - according to the general conception - this sovereignty must apply to all powers of the state. There must be mechanisms for the sovereign to intervene at all levels. The fact that our so-called democratic systems fail miserably in this respect has been impressively demonstrated recently. In Switzerland, which is often held up as an example of democracy, the Council of States must now decide whether or not to have a constitutional court. During the Corona crisis, it became clear that citizens could not sufficiently defend themselves against infringements of their fundamental rights [3].
Removal or dismissal by the people
This does not change the fact that those who initiated and enforced the infringements of fundamental rights usually get away with them. I take up this idea today to address one of the greatest deficits of democratic politics: We have too few mechanisms, usually complicated and acting only indirectly, to remove those who run the state. Sir Karl Popper put it this way on this central question of democracy: "It is therefore wrong to focus on the question (as has been done from Plato to Marx and many times thereafter): Who should rule? The people (the rabble) or the best few? The (good) workers or the (bad) capitalists? The majority or the minority? The party of the left or the party of the right or a party in the centre? For in my opinion, it does not matter who governs, as long as you can get rid of the government without bloodshed."[4]
So why should the citizen of a state vote if he cannot remove those who govern?
Neither you nor I elected the President of the Commission. But given the scope of the decisions she takes, a mechanism for removal from office by the sovereign of the EU is urgently needed! It should be remembered that Mrs von der Leyen has still not revealed essential details of the contract negotiations with Pfizer.[5]
Neither you nor I elected the judges of our states, especially those of the supreme courts. Neither you nor I have the possibility to dismiss these judges, even if they take questionable decisions on extremely sensitive fundamental rights issues! Let us recall that the French Constitutional Council has declared the measures of the health booklet to be in conformity with the Constitution.[6]
Neither you nor I have the possibility to dismiss members of our legislatures or members of governments, even if it is proven that they act to enrich themselves or harm the people! In Germany, the public prosecutor's office has opened an investigation into the purchase of protective masks by former Health Minister Jens Spahn (540 million euros), which allegedly led to dubious commissions.[7]
Actio polularis against political decisions
If we continue to conceive of democracy as a 'citizens' democracy', a pluralist, power-sharing democracy based on the rule of law, then these deficits must be eliminated. Many models are conceivable in this respect, for example to give the sovereign the possibility to restart non-functioning courts or to exercise effective control over constitutional institutions. The Corona crisis, for example, has shown that there is an urgent need to provide for the possibility of popular action (actio popularis). Like a popular initiative, a number of people should be able to bring a popular action against representatives of the state or its executive bodies. This is the case even if these persons are not injured in their own rights by the act under attack, but are in some way acting for others or for the community, but without having received a mandate to do so. Every citizen should be able to take legal action against political and ideological decisions - if the right emanates from the people and if the fundamental element of a democracy is the rule of law.
If we continue to conceive of democracy as a 'citizens' democracy', a pluralist, power-sharing democracy based on the rule of law, then these deficits must be eliminated. Many models are conceivable in this respect, for example to give the sovereign the possibility to restart non-functioning courts or to exercise effective control over constitutional institutions. The Corona crisis, for example, has shown that there is an urgent need to provide for the possibility of popular action (actio popularis). Like a popular initiative, a number of people should be able to bring a popular action against representatives of the state or its executive bodies. This is the case even if these persons are not injured in their own rights by the act under attack, but are in some way acting for others or for the community, but without having received a mandate to do so. Every citizen should be able to take legal action against political and ideological decisions - if the right emanates from the people and if the fundamental element of a democracy is the rule of law.
European law limits the right to take legal action against acts of the European institutions to those who are directly and individually affected by those acts. In France, the Council of State has for many years reaffirmed its opposition to the actio popularis. In Germany, popular action is only permitted in exceptional cases. For example, in the special form of collective action, in which recognised specialist associations for nature conservation and other areas are entitled to take legal action. An interesting exception is the Free State of Bavaria, where any Bavarian legislation can be submitted to the Bavarian Constitutional Court on the grounds that a constitutionally guaranteed fundamental right is being violated unconstitutionally.
Similarly, I think it should be possible for a number of citizens to impose controls on elected politicians or their actions. The result should be accessible to all, with a binding mechanism to apply criminal sanctions in case of serious offences.
Imagine if we had a mechanism whereby governments and executive bodies that make use of the special rights in the Constitution must then resign and cannot stand for re-election?
Because of the state of emergency declared in France after the November 2015 attacks [8], Macron would have already left the political scene some time ago. And after the "pandemic state of emergency" in almost all EU countries, there would be hardly any stone left on the political edifice.
P.S.: We should urgently think about these and similar mechanisms, about a new and different form of democracy. The main thing is not to leave the field completely to the technostructure. It is all too quick and unscrupulous to take control of societies. We will also discuss this topic in future articles.
This analysis was first published in: Le Courrier des Stratèges on July 4th, 2022
---
[4] Karl R. Popper: Zur Theorie der Demokratie, Essay, veröffentlicht in Der Spiegel am 3.8.1987 (https://www.spiegel.de/spiegel/print/d-13523345.html)
[8]https://www.vie-publique.fr/questions-reponses/269427-etat-durgence-et-autres-regimes-dexception-art...