Wednesday, April 27, 2005

The ongoing loss of power of national parliaments

In a way, the history of modern democracy since the eighteenth century is the tale of the instant rise and the progressive fall of Parliaments. At the beginning, elected chambers invested with legislative powers seemed to be a perfect way to guarantee popular sovereignty. Towards the end of the nineteenth century came the first disillusions as Parliaments failed to represent the working class and therefore started losing their original legitimacy. The first half of the twentieth century was however a period of hope as reforms were going to be passed in order to restore the faith in representative democracy. Among the many projects produced during this period, the system of proportional representation appeared as the reform with the most potential for fixing what was by then perceived as a strictly bourgeois regime. But as socialist parties were able to become parliamentary forces, other problems appeared: better representation came along with governmental instability and consecutive weakness of the executive which led, in turn, to the failure of the democratic State to defend itself properly against internal and foreign aggressions. After the Second World War the conclusion was drawn that elected Parliaments in continental Europe had not been barriers to fascism and Nazism. All hope was seemingly abandoned as Parliaments had failed to protect fundamental rights and even democracy itself. It was thus decided that they would not be improved from the inside but assigned a much more modest place inside the constitution, that they would be controlled by other institutions. In Italy for example, the Parliament is controlled from the bottom, by the people through the referendum, and from the top, by the constitutional court. In France, the Parliament is essentially controlled from the side, by an extremely powerful government. In Europe, during the second half of the twentieth century, the rise of constitutional justice, the enforcement of the European Convention on Human Rights and the progressive development of the European communities and latter Union constantly diminished the power of national Parliaments.

A recent decision of the French constitutional council illustrates the crisis of modern Parliaments. Amidst great social conflict, which had caused the fall of the previous minister of education, a law on the future of school was adopted in March. As students continued their weeks-long strike, the constitutional council (the French constitutional judge) was asked to control the law’s conformity with the constitution. This law contained the following provision:

The objective of school is the success of all its students. Given the diversity among the students, school must recognise and promote all forms of intelligence to allow them to put forward their talents. Scholarly education, under the authority of the teachers and with the support of the parents, allows every student to accomplish the work and the efforts required by the development of his abilities, intellectual as well as manual, artistic and sportive. It contributes to the preparation of his personal and professional path.

The constitutional council found these provisions to be deprived of any normative meaning and therefore declared them contrary to art. 6 of the 1789 French Declaration of Human Rights according to which the law is the expression of general will. The constitutional judge decided that as such, laws should have normative meaning. In other words these provisions are not striked down because they create rules contrary to the constitution but because they don’t create rules at all. This decision is a metaphor of the sad state Parliaments are in: deprived of much of its power by the national social and economical context, the European constraints, and the world context, the Parliament ceases to create rules and starts to wish, like a lost child, for things to become better. What is more depressing: that a Parliament would be condemned to such inaction or that a bunch of judges would feel free to tell the MPs that they are not paid to make wishes? If the Parliament can be told to stop wishing then it really isn’t sovereign any more. Of course we didn’t need this decision to come to that conclusion; all it does is that it illustrates the fact that national parliaments continue losing power on all sides. It seems to me that inside national states we are out of ideas as if we had tried every thing and that every thing failed. The EU Constitution doesn’t bring anything new either (the Parliament will be controled from the bottom, the top and the side). If it is adopted, the EU Parliament will be typical of the weak Parliaments in the national models. That can be a motive for satisfaction, as nothing really changes, or one of disappointment, as… nothing really changes.

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