By Bogdan Dima | Bucharest
The present article is built on two core assumptions.

The first is that populism refers to a specific understanding of political power which tends to be similar across liberal democracies around the world. If we reduce this concept to its essence, it reveals an anti-pluralist political ideology favouring the concentration of political power in the hands of a political leader or political party which wins free elections, be they presidential or parliamentary.

The second is that on a very general note, the systems of government refer to the conceptualisation of the relationship between executives and legislatures (see the studies by Ginsburg, Cheibub, Elkins).

Thus, if populism deals with a specific understanding of political power, a system of government deals with the institutional design of political power.

Populism and autocratic legalism

Over the past decade, the consolidation of democracy all around Europe has been put on hold, or in some cases even backslid. Recent major events1 have forced the expansion of repressed political parties have won seats in parliaments, participated in parliamentary and governmental coalitions, or achieved absolute victory in general and/or presidential elections. Even the mainstream parties of the moderate centre-left or centre-right have pushed forward more radical political agendas, influenced by the spectre of populism which haunts the democratic world today.

Many recent studies about populism describe what appear to be its common features, document its history and predict its future (see selective bibliography at the end of the article). In the context of this broader literature, I will use the term ‘populism’ to describe a political phenomenon specific to current modern representative democracy which, among other features, strongly champions popular sovereignty and majority rule, but opposes minority rights and pluralism.

As Mudde and Kaltwasser put it, populist leaders are not at odds with democracy itself, rather with liberal democracy, especially with its specific feature of pluralism. Their main ideological argument is based on splitting society into two antagonistic groups: on one hand, the ‘pure people’ represented exclusively by the populist leaders, and on the other, the ‘corrupt elite’ against whom they struggle. This so-called ideology of populism inevitably generates specific anti-pluralist constitutional and legal reforms. The aim of these reforms is the elimination or curtailment of control mechanisms inherent to any classical constitutional liberal democracy, such as independence of the judiciary, guarantees and protection mechanisms for fundamental human rights and liberties, independence and powers of constitutional tribunals, the role and autonomy of independent regulatory agencies, the role of the parliamentary opposition, etc.

One major consequence of the populists’ constitutional and legal reforms is called autocratic legalism. Scheppele argues that autocratic legalism appears when electoral mandates plus constitutional and legal change are used in the service of an illiberal agenda.

Populist leaders are not at odds with democracy itself, rather with liberal democracy, especially with its specific feature of pluralism.

Basically, populist leaders become legalistic autocrats, seeking to use their democratic mandates to launch constitutional and legal reforms that remove the checks on executive power and parliamentary majorities, and limit possible challenges to their rule. Thus they undermine the very essence of liberal constitutionalism, which was always to prevent the tyranny of the majority.

The present analysis focuses on certain countries in Central and Eastern Europe, offering some general examples of what the constitutional and legal reforms by populists in power from Hungary, Poland and Turkey look like.

Populists’ favourite first victims are constitutional justice and the judiciary power. For example, populists in power limit the prerogatives of the constitutional courts, and change the appointment procedures and selection criteria for constitutional judges in order to diminish the role and the independence of these fundamental institutions (Hungary and Poland).

An operational definition of illiberalism

Illiberalism is most evident in the way that the governing party – backed by real or imagined popular “majorities” – claims that it does not need to share the political space with those with whom they disagree. Illiberals have all of the answers and are eager to impose them on all. They de-legitimate the political opposition, capture all political institutions and do not recognize either expertise or the independence of the transparency and checking institutions (first, the judiciary – but also the media, civil sector organizations, election commissions, media regulators and so on).

In short, they aim for a mono-vocal political environment in which only their own views are heard or matter. They hate pluralism; they hate those who disagree with them. They want a univocal politics with room only for their own voices to echo back to them as “consent” of the governed. Illiberals target the system of checks and balances because that is the political technology through which the voices of others have to be heard. They are not interested in listening to these voices so they close down the institutional spaces of pluralism.

Kim Lane Scheppele, Professor of Sociology and International Affairs Princeton University, interview by Octavian Manea published in Revista 22, November 2017

Populists in power tend to adopt legislation changing the appointment and dismissal procedures for judges on the Supreme Courts (and even the lower courts) in order to eliminate unwanted magistrates from the judiciary systems (Poland, Turkey). Also, populists in power tend to limit the prerogatives and to change the composition of the Judiciary Councils, which are essential institutions for disciplinary action against magistrates and for the independent management of magistrates’ careers (Poland).

If populists win elections in a European Union country, they tend to promote a nationalistic and sovereign discourse in relation to EU institutions. They fight fiercely against European rules and ECJ decisions when these are not compatible with their political views (Poland, Hungary). They are always ready to beat the drum about their national interests being violated by European unelected bureaucrats (see the discourses of Orbán or Nigel Farage).

Populists in power tend to change the electoral laws in order to favour their re-election, thus limiting the opposition’s chances of fair electoral success (Hungary, Turkey).

Lastly, populists in power promote provisions regulating stronger control over civil society and curtailing freedom of speech, freedom of conscience, freedom of assembly, limiting rights for different minorities, e.g. for LGBT or ethnic minorities (Hungary, Turkey).

A full-scale investigation of the content of the constitutional and legal reforms undertaken by populists in power from Hungary, Poland, Turkey and other countries might reveal a wide range of‘ creative’ solutions to limit or even eliminate institutional checks on executive power and parliamentary majorities.

But what systems of government might make it more difficult for populists to impose their anti- liberal reforms?

Systems of government and the consolidation of democracy

Until the mid-twentieth century, the traditional taxonomy of systems of government was
based on a dyad of presidentialism (of which the USA was the ideal model) as opposed to parliamentarism (with Great Britain and post-war Germany being the ideal models, the former for constitutional monarchies, the latter for constitutional republics).

Presidentialism means a system of government where there is a rigid separation of powers between the executive and the legislative branches of government, with a popularly- elected president who is also the leader of the cabinet, and a popularly-elected Parliament. The cabinet is politically accountable to the President and not to the Parliament.

Parliamentarism means a system of government where there is cooperation between the executive and legislative branches of government. The chief of state is not popularly elected (he/she is a hereditary monarch, or a president elected by the legislature); and the cabinet, led by a prime minister, is politically accountable only to the parliamentary majority resulting from parliamentary elections. The prime minister and the cabinet also need a vote of confidence from the parliament in order to exercise the executive mandate.

Starting with the works of the French political scholar Maurice Duverger, a third type of systems of government (semi-presidentialism) was launched in academic debate around
the 1980s (France’s Fifth Republic being the ideal model of semi-presidentialism). However, comparative studies on semi- presidentialism exploded after 1990s, mainly because many former Communist countries in Central and Eastern Europe as well as Asia opted for this specific system of government after the collapse of the Communist regimes. According to one well-established definition, semi-presidentialism means a system of government where the constitution includes both a popularly-elected president and a prime minister & cabinet accountable to the parliament (see Elgie).

If democracy is consolidated and the values of liberal consti- tutionalism are deeply rooted in society and protected by an independent judiciary, even a populist leader who wins pre- sidential elections cannot over- pass the constitutional checks on his decision-making power.

Many books, articles and studies have tried to define and better categorise these three main systems of government, as well as to understand which one is more conducive to stability and the consolidation of democracy. Even though there is no full agreement among scholars, there is a general tendency among classical political theorists to consider parliamentary systems of government more prone to sustain and consolidate democracy in the long run (see the works of Linz, Sartori and Lijphart).

When dealing with semi-presidential systems of government, some authors consider that the premier-presidential sub-type2 of semi- presidentialism is better equipped than the president-parliament sub-type3 of semi- presidentialism to sustain and consolidate democracy (see Shugart and Carrey).

In addition, despite the notable exception of France’s Fifth Republic, a directly elected president with strong formal and informal powers is not the best choice for constitutional designers in countries facing democratisation processes. Semi-presidentialism tends to work when presidents are not too powerful, and when there is an efficient balance of powers between the president and the prime minister (see Elgie, Sedelius).

Regardless of the multitude of comparative and country-related studies on systems of government, there is no clear proof that any given system of government can of itself fully guarantee the preservation of liberal democracy and its consolidation. The collapse of the Weimar Republic is the classical example of how a democratic system of government broke down and turned into the most gruesome totalitarian regime in recent history.

The study of institutional designs (systems of government) accounts for a small piece of the never-ending puzzle that might at some point show us exactly why some democracies thrive and others die. Thus, one should always keep in mind that institutional design is only one among a multitude of other variables which influence political outcomes and the structures of social behaviour.

The resilience of systems of government against populist politics & policies

Political scientists usually ask which system of government or sub-type of a specific system of government is more conducive to democratic consolidation. In this context we should reframe the question, taking into consideration the new populist politics and policies facing liberal democracies. The question becomes rather: which system of government and which sub- type of a specific system of government is more resilient to populist policies tending towards the introduction of autocratic legalism?

We are not focused on finding out which features of which system of government are more effective for the advancement of democracy in terms of stability of the government, consensus building or the efficiency of political intra-executive and executive-legislative decision-making.
Our interest lies in observing those specific features of a system of government which hinder (or at least delay) the adoption and implementation of populists’ constitutional and legal reforms aiming at eliminating or limiting the institutional checks on executive power and parliamentary majorities.

The first assumption is that parliamentary systems of government tend to concentrate executive power in the hands of a prime minister who is usually the leader of the parliamentary majority, hence the mutual political dependence between the parliamentary majority and the executive. To populists, this specific institutional design fits them like a glove. Once populists have won the general elections, the whole political decision-making mechanism of the state is at their disposal. If the general elections are won with a qualified majority by a populist party, the incentive to change the constitution in order to fit the needs of the populists becomes greater (the case of Orbán and Fidesz in Hungary is quite relevant).

The second assumption is that presidential systems of government are also quite vulnerable. Since the writings of Juan Linz onwards, it has become clear that one major disadvantage of presidential systems is the possibility that outsiders might win presidential elections and exercise full executive power without constraints. However, if democracy is consolidated and the values of liberal constitutionalism are deeply rooted in society and protected by an independent judiciary, even a populist leader who wins presidential elections cannot overpass the constitutional checks on his decision-making power. This is the case in the United States where the flamboyant and ever-unpredictable Donald Trump succeeded in winning presidential elections, but he has not succeeded in implementing all his reforms and ideas, due to the US’s complex and unique constitutional system of checks and balances, and its specific two-party system.

Of course, a less democratic country with a presidential system of government, with a long authoritarian past, a strong president and a weak party system can easily be hijacked by populist political forces. Thus, the election of a powerful populist president might bring along changes in the parliamentary majority followed by populist constitutional and legal reforms enhancing autocratic leadership (the cases of Fujimori in Peru and Chavez in Venezuela were iconic).

It seems easier for populist leaders and political parties to hijack liberal democracy in countries with parliamentary and strongly presidentialised systems of government, because these systems of government favour the concentration of power by design.

Turkey under Erdoğan is also a relevant case concerning the rapid breakdown of liberal democracy under populist rule. I shall not enter into debates on the specific case of Turkey’s democratic adventure in the course of the twentieth century. A populist leader winning elections has changed the system of government, and imposed an excessively presidentialised system of government with few to zero checks on the executive power and the parliamentary majority. If the presidential elections are held at the same time as the parliamentary elections, it is even easier for the populist presidential candidate to influence the parliamentary elections in favour of his/her supporting political party or electoral alliance.

The third major assumption is that a balanced semi-presidential system of government, with separate elections for the president and the parliament, seems more resilient to contemporary populists’ politics and policies than parliamentary or presidential systems of government.

Of course, if the popularly elected president represents the same populist political party which also won a strong parliamentary majority, reforms limiting institutional checks on executive power and parliamentary majority of Poland is straightforward. However, even in such a situation, the dual popular legitimacy of the president and the parliament will eventually generate different clashes for supremacy within the main political populist framework. Because the president is popularly elected and stands in a more direct relation with the people than the prime minister, who is always dependent on the political support of the parliamentary majority, difference of opinions on sensitive topics will eventually appear. The dual executive structure of semi-presidentialism requires constant political negotiations between the political factions of the political majority. In the end, there are always two relatively strong leaders of the executive. This institutionally in- built power split within the executive branch of government is a fundamental guarantee that some sort of mutual control will develop within the majoritarian political force controlling the parliamentary majority, the government and the presidency. As an example, even though Poland’s President Andrzej Duda was supported in the 2015 presidential elections by the Law and Justice Party, and he supports the politics of this party, in 2018 he vetoed two laws that formed a key part of Law and Justice’s controversial attempt to reform the judiciary, a political move that provoked fury among
the party’s leaders.

Moreover, if we consider the case of Romania, the mandate of the President was extended from four to five years (due to a constitutional amendment in 2003), thus eliminating the practice of holding parliamentary elections on the same day as the first round of presidential elections. This decision induced long periods of cohabitation, with presidents usually opposing the parliamentary majority either by sending the adopted laws to be re-examined, or asking the Constitutional Court to judge the constitutionality of laws before being promulgated. For example, President Iohannis used these prerogatives extensively in 2018 (e.g. more than 40 constitutionality complaints against the laws adopted by Parliament were sent by the President to the Constitutional Court). Thus, one of the most important disadvantages of semi-presidentialism (the possibility of inducing cohabitation) becomes one of the strongest weapons against the populists’ urge to concentrate political powers and to eliminate or limit institutional control mechanisms.

Indeed, if the presidential elections are won by the same populist political forces which won the parliamentary elections, the chances of imposing legal and even constitutional reforms promoting autocratic legalism will surely rise. However, as I have stated above, one can expect political debates, conflicts and negotiations between political factions within the winning political majority. These constant processes of negotiation guarantee that no single leader or institution can concentrate all political power in their hands, thus allowing future splits and re-arrangements within the political spectrum.

Lastly, in a parliamentarised semi-presidentialism, due to the fact that the president has symbolic formal prerogatives, the executive power is concentrated in the hands of the prime minister, who is supported by and accountable to the parliamentary majority. Cohabitation periods are not as conflictual as they are in balanced semi-presidential systems of government, mainly because the presidents do not have relevant powers to effectively block the decisions taken by the parliamentary majority supporting the government. Even the intra-executive negotiations between a president and a prime minister representing the same political party are not as relevant for parliamentary semi-presidential systems of government as they are for balanced semi-presidential systems. The main reason for this is that the president has no relevant formal powers, and the whole political system is trained to revolve around the decisions of the prime minister as the leader of the parliamentary majority. Thus, even with an actively opposing president, the chances of populist leaders winning parliamentary elections to eliminate or limit institutional control mechanisms through constitutional and legal reforms seem higher in parliamentary semi-presidential systems of government than in a balanced semi-presidential system of government.

Conclusions

In the first decade of the twenty-first century, unprecedented economic, political, cultural, military and security challenges have profoundly affected the ecosystem of liberal democracy around the world, and offered a favourable context for democratic backsliding in Central and Eastern Europe too.

In countries where populists have won elections, constitutional and legal reforms have been undertaken with the aim of eliminating or curtailing the very essence of liberal constitutionalism, meaning the institutional checks on the exercise of political power.

Despite various comparative studies on the relationship between systems of government and the consolidation of democracy, the institutional design cannot by itself guarantee the preservation of liberal democracy and the stability of a specific democratic regime. At the most, when comparing institutional designs, it seems that a specific system of government or a specific sub-type of a system of government tend to be more conducive to democracy than others.

However, when asking what system of government is better equipped to resist against populists’ politics and policies of autocratic legalism, the answers are quite surprising if one takes into consideration the experiences of countries from Central and Eastern Europe.

It seems easier for populist leaders and political parties to hijack liberal democracy in countries with parliamentary and strongly presidentialised systems of government, because these systems of government favour the concentration of power by design.

A balanced semi-presidential system of government with differentiated mandates for president and parliament, thus capable of inducing cohabitation and intra-executive conflicts, seems more resilient in the long run to populists’ reforms aiming at the curtailment or elimination of institutional checks on political power.

Future in-depth research agenda should test all these assumptions using a fully operationalised methodology that clarifies problems such as criteria for selecting countries, the time period under analysis, the content of the constitutional and legal reforms of the populist leaders and political movements in power, scoring the formal and informal powers of the presidents, establishing other variables for analysis such as the duration of the presidential mandate, the electoral formula used for parliamentary elections, the type of party system, the nature of the parliamentary political parties, etc.

Populists like power and they like to exercise that power without constraints. Therefore, at least from the point of view of institutional theory, one can argue that the more complex the constitutional and legal design of checks on executive power and political majority is, the more difficult it is for populists winning elections to impose constitutional and legal reforms degrading liberal constitutionalism. Yet, as reality in some countries has already showed us, it is not impossible, especially when the populist leader of the executive is also supported by a strong parliamentary majority.

Until then, it is clear that populist ideology acts like an enticing drug for economically challenged, politically manipulated, militarily scared and culturally uncertain democratic societies in our times.

In those countries where populists in power have succeeded in pushing forward their constitutional and legal reforms, liberal democracy itself is at risk. One way to defend it is to protect by all means those institutional guarantees against the tyranny of the majority, as has always been the case when democracy was under fire.

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BOGDAN DIMA has taught Administrative Law at the Faculty of Law, University of Bucharest, since 2011. Bogdan has worked on sensitive issues dealing with constitutional politics,
legislative policies, political and electoral strategies.