Professor Dr. Susana Sanz Caballero participates in a popular science podcast entitled “The Thousand Faces of Populism”, in which she answers the question of whether the judiciary is capable of curbing populism.
Susana Sanz has been invited by Dr. Paulina Astroza Suárez, Professor at the University of Concepción (Chile) and founder of the European Studies Program of that university, to participate in a podcast of scientific dissemination that is part of the academic production of the EU Jean Monnet project directed by Dr. Astroza and entitled: “Impact, risks and opportunities of populism in Latin America and Europe”.
Dr. Astroza has led this initiative together with the University of Concepción, and has also counted with the participation of the Albert Hirschman Democracy Centre, Graduate Institute based in Geneva, Switzerland.
The podcast, which integrates a total of 6 episodes in which different academic experts debate and answer questions and unknowns about populism, something about which, as the podcast program itself states “so much is talked about and yet so little is understood”, is available for free through the Spotify, App Store or Amazon Music applications, among others.
Dr. Sanz has participated in the fourth episode entitled “Can justice stop populism?” and it focuses on the great adversary of populist governments: the judiciary. In it, the Professor analyzes issues related to populist discourse and the institutions of check and balances as representatives of the status quo, resolving the great enigma of whether justice can indeed stop populism or whether, on the contrary, judges can also act as populists. In short, is the judiciary really part of the problem or part of the solution?
Susana Sanz answers this and other questions related to the influence that the presence of populism in political power has on the very concept of the rule of law, the role of the European Union in safeguarding the rule of law, as well as the mechanisms available to the EU to halt the decline of democracy and whether they are efficient enough.
The following are some relevant excerpts from the interview in which Dr. Sanz answers these questions.
Q: What does the presence of populism in the political system mean for the rule of law? What happens when this movement comes to power?
A: For them the only thing that matters is the application of majority rule. They are the ones who defend the people, they are the only ones legitimized to defend the people; they end up destroying all the systems of checks and balances that give us legal security and matter in the rule of law; among them: a free press, national institutions of human rights, etc. In addition, they harass NGOs, the media… any organism or entity that overshadows what they believe they are defending, in this case, the people, through their clearly mistaken opinion.
In this sense, Dr. Sanz states that the statements of Viktor Orbán, Prime Minister of Hungary, are a clear example of what the activation of populist discourses in the EU entails; not only are they activated, but they also manage to do so successfully. The Professor states, “We want to further elaborate on the institutional brakes that can eventually be applied to populism. Specifically, the EU has resorted to mechanisms to try to contain and even penalize authoritarian tendencies in countries such as Hungary or Poland: subjecting the release of European funds to compliance with the clause requiring the beneficiary country to meet certain standards of the rule of law is an example of the measures that have been put in place to contain the crisis of values and the threat to the rule of law that the EU is currently facing.”
Q: What is the role that the EU fulfills or tries to fulfill?
A: We have a political mechanism that leads to absolute melancholy, which is Article 7 of the TEU on sanctions, since it requires the application of unanimity to sanction a Member State. There is a false solidarity between Poland and Hungary that makes each of them veto the application of sanctions against the other. Who is giving the “do de pecho” at this time is a European institution that is the CJEU in cases that come to him; whether preliminary rulings, appeals for failure to comply and even actions for annulment. It is judicially sanctioning breaches of the rule of law, explaining and clarifying what the rule of law is and what is required of EU Member States. In this respect, the EU justice system is doing a commendable job. With the problem that a Court can only have a reactive function, i.e. it cannot act in a preventive or generalized way or through a mechanism. What it does is simply to respond to the demands presented to it.
Another way that has been used for four years now is a preventive mechanism that the European Commission has put in place, which is the Rule of Law report, in which every year it portrays the situation of the Rule of Law in the different member countries of the Union, analyzing one by one what breaches there are of the Rule of Law.
At the moment, the EU is refraining from granting European funds that some Member States deserve because of their non-compliance with the rules of the rule of law as well as the values of Article 2 TEU.
Q: Are these mechanisms available to the EU sufficient?
A: There are some mechanisms that are more efficient than others. The most inefficient is undoubtedly the political mechanism of Article 7 TEU, which is making it impossible to sanction the non-compliant Member States, since unanimity is needed to activate it. Only a future reform of the Treaties in which this could be changed and some kind of majority would be required to sanction a State would be useful, but at the moment there is no consensus for such a change in the Treaties.
The mechanism that is being most effective at the moment is the conditionality mechanism, the transfer of European funds to the States to the fact that they comply with the rules of the Rule of Law, that is to say, to punish economically the countries that do not comply with the Rule of Law. But this does not seem to me to be the best solution in the long term, since it condemns some Member States to a lack of development, which could lead to a revolt among the population and citizens.
Q: What about the non-institutional mechanisms activated by parliamentary groups?
A: There are other mechanisms of lesser relevance that are being implemented and are having their effects, such as, for example, expelling from the European Parliament populist political parties that are attacking the principles of the rule of law when they reach government. I even believe that we should go further and not allow these parties to join any political group so that they lose any type of subsidy or action capacity, including speaking time in the European Parliament.
Finally, Prof. Sanz answers the great question of whether justice is really capable of stopping populism.
She answers this question at two levels: at the level of national justice and European justice. Susana Sanz believes that, as long as the judges maintain their independence and as long as the populists have not touched the judges, they will have the capacity to react. “The problem is,” says Dr. Sanz, “that the populists know that the main ‘bête noire’ they have to face when they come to power is the judiciary, the judges. Once they have them tamed, they can do whatever they want with the rest of the agencies and with the rest of the check and balances institutions.”
Answering this question from the point of view of European justice, the Professor reiterates that both the EU Court of Justice and the European Court of Human Rights are doing an incredible job, albeit in a reactive way.
On what it means that both Courts are playing a “reactive” role, Dr. Sanz explains that “In the cases that reach them, they are pronouncing and condemning the States that do not comply with the rule of law. They are even giving us a pedagogical lesson on what the rule of law is.”
