The Dignity of the Outvoted

On his way to the EU summit in Granada this week, Viktor Orbán took the opportunity to speak his view of the agreement on the migration pact into half a dozen television microphones: As far as Hungary and Poland are concerned, says the prime minister, any compromise on migration policy will be out of the question from now on. Not just now, but in general and for the foreseeable future. Because legally, he continues, and then he thinks for a moment. How should he put this? Legally, he says, and then the right word comes to him: legally they are raped.

“Legally raped.”

Raped.

There is a moment, about 18 seconds into the video, when a thin little smirk of amusement appears on Orbán’s face. It’s not every day that you get to see a facial expression of such abysmal nastiness.

In Warsaw, on the day before the summit, Prime Minister Mateusz Morawiecki and President Andrzei Duda appeared together to announce a Polish “veto”. No such veto exists under European law, as two journalists duly pointed out. Which doesn’t matter one bit. “We will defend our position, and we will defend our borders,” says the president, against what is, in the words of the head of government, a “diktat from Brussels and Berlin”.

A lot can be said about and against the migration pact, but that is not the point here. Hungary and Poland were outvoted in the Council. The Council took a decision with the constitutionally required majority against the votes of Hungary and Poland. This is what Poland’s government calls a “diktat” against which they will “defend” themselves, and Hungary’s – hesitate, say it, grin – “rape”.

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There is indeed something that must never be subjected to the will of the majority in a democracy, which is, of course, human rights. This must never happen: that the majority agrees to subject the outvoted minority to inhumane treatment. That is the condition of the possibility of voting in the first place. If that is not guaranteed, why should anyone take the risk to be outvoted? Human rights are not something that the majority concedes to the minority out of the goodness of its heart, but a functional condition of majoritarian democracy itself. Without human rights, no majoritarian democracy can remain a democracy, because then it would be completely unrealistic to expect anyone to comply with the decision of a majority to which they do not belong. Except out of fear of violence. In which case you find yourself in an authoritarian state.

Europe, or so it seems, is indeed agreeing to subject the human dignity of migrants to the will of the majority right now. Europe is agreeing to distinguish the dignity of those who come to its borders from the dignity of those who live within them, subjecting those outside to a treatment which would be considered inhumane and forbidden with respect to those inside. Once this distinction is in the world, human dignity is worth nothing. The outside does not stay outside. On the inside, too, some are entitled to live here and some are not, and all that stands between the latter and their deportation is their human dignity. And if it is not human dignity from which the right of residence derives, but the other way round, then there is nothing to prevent the majority from shaping the right of residence according to their will. For example, to reverse the so-called “Great Replacement“, the alleged conspiracy of the global Soros elite to replace the majority of ordinary people with compliant minorities of gay transgender migrants. That is exactly what this reversal is and is supposed to be about: the majority agreeing to treat the minority in an inhumane way.

This is what the AfD wants to organise majorities for on the federal and state levels in Germany. The fact that they are so frighteningly successful at the moment has to do with this European understanding that is taking place right now. Anyone who denies this is deluding themselves.

Thuringia is one of the countries where they could possibly reach that goal next year. Gertrude Lübbe-Wolff, ex-constitutional judge and one of the brightest minds among the German Staatsrechtslehrer, has unearthed an almost forgotten constitutional norm that could actually promise a more effective defence against this lethal danger to democracy in Germany than the party ban that has been fruitlessly discussed back and forth all summer: it’s called Grundrechtsverwirkung. The forfeiture of fundamental rights.

According to Article 18 of the Basic Law, the fundamental right of freedom of expression is forfeited by anyone who “abuses it to fight against the liberal democratic basic order”. According to section 39 (2) BVerfGG, this can also amount to the deprivation of the right to vote and stand for election and the dissolution of legal persons. Unlike the ban on nationally active parties, this procedure can be initiated not only by the Bundestag and the federal government, but also by a state government.

There would be still time for this. Not sure for how long, though.

The week on Verfassungsblog…

… has been remarkably quiet for these troubled times.

That human rights of migrants are sacrificed in ever new “crises” for the need of supposed security is no news and nor are the complaints of “lefty lawyers” about how inhumane, ineffective and illegal it all is. This also applies to the EU migration pact, by which Viktor Orbán sees himself grinningly raped. ANJA BOSSOW exposes the fallacy underlying these policies and our growing tolerance for their illegality, namely that, in this race to the bottom, we ourselves have nothing to lose.

270 academics from asylum law and refugee research have signed the call by MAXIMILIAN PICHL, ULRIKE KRAUSE and NORA MARKARD for a human rights pact in refugee policy, and since then many hundreds more supporters. All “lefty lawyers”? In any case, they are all people who have been studying these matters for years.

The debate on an institutional reform of the EU is gaining momentum again. Recently, a twelve-member Franco-German group of experts presented proposals, including the establishment of a “mixed chamber” at the ECJ, consisting of ECJ judges and judges from the supreme courts of the member states who decide on questions of competence in the Union. The proposal was made by JOSEPH H.H. WEILER and DANIEL SARMIENTO, who warmly welcome this initiative.

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The fundamental right to freedom of assembly is under great pressure in many countries, including South Korea, where demonstrations at night will be banned in future. JOSEPHINA LEE argues that this is neither in line with the jurisprudence of the Constitutional Court nor with international law.

Do we need special rules for artificial intelligence and automated decision-making? RICHARD MACKENZIE-GRAY SCOTT and ELENA ABRUSCI are sceptical and recommend to put the rules already in place to better use instead.

In a little-noticed decision this summer, the US Supreme Court dramatically slashed the federal state’s ability to regulate the use of private property to protect the environment. NINA MENDELSON explains how the court did this and how the decision fits into the “interpretive gamesmanship to support an anti-regulatory agenda” strategy pursued by the conservative majority on the court.

The truck drivers’ strike at the Gräfenhausen motorway service station impressively demonstrated that the struggle for supply chains that conform to human rights is not only about production conditions in faraway countries, but also about working conditions in the middle of Europe. SONJA BUCKEL, ANNE ENGELHARDT, JUDITH KOPP, MAXIMILIAN PICHL, CHRISTIAN SCHEPA and CAROLINA VESTENA examine the role of law in this context.

In India, the Supreme Court has oral arguments on the abolition of constitutional special status for Jammu and Kashmir in 2019. KUSHAGR BAKSHI analyses the constitutional situation.

In Bosnia and Herzegovina, the European Court of Human Rights recently again ruled that the constitutional discrimination against people who do not belong to the Serb/Croat/Bosniak “constituent peoples” is contrary to human rights. BENJAMIN NURKIC and ADMIR ISANOVIC complain that the Court has thus only raised false hopes that the permanent political crisis in Bosnia and Herzegovina can be overcome from within.

That’s all for now. All the best to you, bon courage, and see you next week!

Max Steinbeis

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