Problems, challenges and opportunities




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Box 3.1: General principles of democracy


The Council’s Statute

(Statute of the Council of Europe (1949) ETS No. 001)


Democracy as a fundamental component of European life is enshrined in the Council’s statute, which both commits member states to general democratic principles and establishes an operational structure based upon the institutions of democracy among member states. Its opening statements emphasise that democracy is based upon:


individual freedom, political liberty and the rule of law.


These principles are constantly reaffirmed in the Council’s acquis and form the basis of every instrument that follows.


Operationally, the Statute creates a Committee of Ministers as the executive decision-making organ of the Council (the Foreign Minister of each member state) and a Consultative Assembly (the Parliamentary Assembly) as the deliberative organ (with members appointed from the elected parliaments of each state). This structure builds on the democratic structures that are anticipated in each member state and encourages a form of democratic practice based upon a separation of powers.


The European Convention on Human Rights

(Convention for the Protection of Human Rights and Fundamental Freedoms (1950) ETS No. 005; and First Protocol to the Convention (1952) ETS No. 009)


The European Convention on Human Rights sets out a number of fundamental rights and freedoms: right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination. It also establishes an international enforcement machinery, the European Court of Human Rights in Strasbourg, to rule on individual petitions and to give advisory opinions concerning the interpretation of the Convention and protocols.


All of the Convention’s rights might be considered necessary in a modern democracy. However, some are particularly pertinent to the working of democracy:


  • Article 9: the right to freedom of thought, conscience and religion;




  • Article 10: the right to freedom of expression;




  • Article 11: the right to freedom of association;




  • Article 3 of Protocol No. 1: the right to free elections.



Democracy is not a coherent or stable set of principles that can be easily realised, especially not in a cross-national analysis. Indeed, it is one of the truisms of political theory that democracy is an essentially contested concept.47 While there are a range of principles that are frequently offered,48 their precise combination and the relative importance of different values is often open to interpretation. Indeed, in some respects, abstract principles are less meaningful than the context in which they are elaborated. The abstract principles of democracy are elaborated by the particular institutional forms that make democracy work. The institutional embodiment of different principles and their practice in various contexts gives them meaning. The enactment of democracy49 at different trans-national, national and sub-national levels not only gives meaning to such principles but also highlights their relative significance to democratic practice. For example, while the principle of political equality may appear to be fundamental to most theories of democracy, many institutions of democracy undermine the possibility of it being realised, often because they are addressing structural inequalities in society. If positive measures are directed specifically at marginalised groups, they have the dichotomous effect of both redressing existing inequalities and, potentially, creating new inequalities. Furthermore, democracy must be seen as a dynamic set of principles in which the relative importance of potentially competing values changes over time in response to both internal challenges to its concepts and external influences. To understand the underlying principles of European democracy it is necessary to analyse the process of change to which European democracies are continually being subjected.


The Council of Europe’s approach to democracy is based upon an assumption that there is a shared understanding of the principles and values that constitute democracy. A significant proportion of conventions and charters begin by recognising the common heritage that is shared by all member states. This common heritage includes the core principles elaborated in the Council’s statute, in which all members reaffirm their “devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy”.50 These principles are central to everything that the Council undertakes, whether it is in relation to individual human rights or in relation to improving democratic institutions. Being at such an abstract level, however, they leave wide scope for interpretation.


Europe’s common heritage is a recurring theme that reflects a wide engagement with the philosophical and historical development of democracy across different nation states. As Loughlin51 recognises, this common heritage includes such concepts as a belief in the “exalted role of the individual”, the institutional separation of powers, the Rousseau-inspired belief in the existence of a “general will”, and the notion of citizenship and the rights and responsibilities that go with it. In effect, the common heritage is one of liberal democracy, even if its values are institutionalised in different ways in different countries. The common heritage may provide a guide to what to expect from European democracy but it does not anticipate either a common starting point or a consensus around the future development of democracy.


This section goes beyond the vague and ambiguous assertions of a European common heritage to explore five key principles that inform the Council of Europe’s approach to democracy in general and the assertion of democratic standards in particular. While derived from democratic theory these principles are not necessarily consistent with those normally advanced within that discipline. Instead, they are the principles that populate the various texts of the Council and which feature prominently in the debates and arguments advanced in its various publications. While not all of them are articulated as being fundamental principles, we argue here that they are the most recurrent and distinctive features of the Council’s activities. Collectively, therefore, they offer a potential definition of democracy from the Council of Europe’s own documents.


These five principles are set out below, partly to give greater emphasis to them as the defining features of European democracy as promoted by the Council, and partly to allow an analysis of democratic development and enactment across Europe. Democratic principles can only be understood in institutional contexts. Consequently, it is necessary not only to set out the principles and the documents in which they are expressed but also to consider the ways in which these principles are enacted through particular institutional forms.


Parliamentary democracy


Box 3.2: The primacy of parliamentary democracy


The European Convention on Human RightsFirst Protocol

(ETS No. 009)


Article 3 of the First Protocol establishes the right to free elections in all member states that underpins a parliamentary structure of democracy:


The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.


This article establishes, in law, the principle that Parliament is the voice of the people.


Parliamentary Assembly Resolution 800 (1983) on the principles of democracy


This resolution highlights the main features of an effective representative system of democracy:


  • free and secret elections to Parliament, enjoying universal suffrage;




  • public engagement and consultation beyond the ballot box;




  • division of power across institutions, including some form of decentralisation where appropriate;




  • a plurality of responsive and representative political parties;




  • legal standards and the rule of law as the basis of all political and administrative activity.


Other resolutions that have a bearing on the implementation of these principles include:


Parliamentary Assembly Resolution 980 (1992) on citizens’ participation in politics;


Parliamentary Assembly Resolution 1121(1997) on instruments of citizen participation in representative democracy;


Parliamentary Assembly Resolution 1154 (1998) on the democratic functioning of national parliaments;


Parliamentary Assembly Resolution 1353 (2003) on the future of democracy: strengthening democratic institutions.


Probably the most fundamental feature of the Council of Europe is its enduring commitment to representative democracy as the defining principle from which all other democratic characteristics follow. This principle is embodied in the Council’s own statute,52 which established two principal organs at its heart: a Committee of Ministers composed of the foreign ministers (or their representatives) of each member state; and a Consultative Assembly (renamed the Parliamentary Assembly in 1994) comprising elected representatives from the member states’ parliaments. While the statute does not make any explicit reference to the need for parliamentary democracy as the basis for membership of its organisation, it contains a number of implicit requirements for representative practices. Indeed, much of its democratic standards are about ensuring adequate and appropriate representation in elected assemblies.


The primacy of representative democracy has been reaffirmed a number of times by the Parliamentary Assembly. Its 1983 resolution on the principles of democracy argues:


Free elections, with secret ballot and universal suffrage, at reasonable intervals, to parliaments, enjoying a large measure of sovereignty and composed of representatives of political parties with freedom to organise and express themselves, remain the irreplaceable core of democratic political life.53


The Council often equates representative democracy with an emphasis upon parliamentary democracy. This link is evident in the quote offered above but is even more apparent in the Parliamentary Assembly’s assertion of the importance of parliamentary democracy. Several times, the Assembly has felt it necessary to give renewed emphasis to the primary importance of parliaments as the cornerstone of democracy, especially in a perceived context of democratic atrophy and parliamentary shortcomings across Europe. A 1992 resolution observed:


Denunciation of the shortcomings of parliamentary democracies does not call into question attachment to the representative system considered to be “the best and only one acceptable” … only parliamentarians in their legislative capacity represent general interest.54


The importance of parliaments representing the general will and being able to strike the balance between competing citizen interests was further articulated in a 1997 resolution:


The harmonisation of mostly contradictory and conflicting needs of citizens or groups of citizens, dictated by the general interest, can be achieved only through parliamentary deliberations.55


A 1998 resolution reaffirmed its commitment to parliamentary democracy and set out its justification:


Parliament is the expression of the will of the people and the public interest. To fulfil this role, it performs functions which form the core of European parliamentarianism: it makes the law, establishes the rules of positive law, and sets the legal rules which govern our society; through a number of procedures, it acts as a watchdog as regards the executive and, by virtue of this power, the government must command the confidence of the Chamber elected by universal suffrage.56


In other words, parliaments enshrine the Council’s commitment to political liberty and the rule of law. More recently, in its resolution on the future of democracy in Europe, the Assembly has also pointed out that:


Parliamentary democracy is one of the values that are the basis of, and reason for, the Council of Europe’s work towards greater European unity. By reaffirming their devotion to the ideals and values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law – principles which form the basis of all genuine democracy – all member states have committed themselves under the Statute of the Council of Europe to guaranteeing free and pluralist Parliamentary democracy.57


In many respects it is not surprising that the Parliamentary Assembly should want to reinforce the role of parliaments as residing at the very heart of democracy. After all, the Assembly is, itself, composed of parliamentarians from the forty-five member states. However, the defence and justification for parliaments as the embodiment of representative democracy and the arbiters of the general will lies not only in the positions of past or existing members of the Assembly, but also in the wider role that parliaments play in democracy. As well as acting as a check on the power of the executive, the Assembly also offers the argument that in an effective democracy, parliaments should be the primary focus for political debate. This argument has been particularly expressed in relation to a concern that parliamentary debate is now shaped by media interests and has been greatly weakened as a result.58 Even worse, a concern exists that parliaments could “lose to the media their role as a focus for debating and determining questions of national interest”.59 This role of parliaments as a focus for national debate offers a convincing justification for their continued primacy in modern democracy.


The continuous reaffirmation of this primacy, however, poses a number of challenges for the democratic future of Europe and the role of the Council in making democratic institutions work. From the assertion of parliamentary democracy follows a number of significant practices that are fundamental to the understanding of how democracy should work. These practices include the operationalisation of the concept of political equality through universal suffrage, the implementation of rigorous and effective electoral law, the institutionalisation of parliamentary practices, the delivery of governmental transparency and the application of wider legal frameworks to prevent corruption. Such practices, however, do not necessarily fit comfortably with many of the contemporary challenges facing democracy or, indeed, many of the democratic initiatives and priorities being pursed by member states or the organs of the Council.


The emphasis upon greater citizen participation beyond voting in periodic elections is one example of the discordant relationship between the defence of parliamentary democracy and the development of new democratic instruments. Support for greater citizen participation in the affairs of the government, either as individuals (for example, through referendums)60 or as collective bodies (for example in the form of NGOs)61 is premised on an assumption that such engagement will redress current citizen disaffection with institutionalised politics and enhance engagement with the formal democratic process of elections.62 Furthermore, it is a popular and widely supported measure not only within the Council but also across individual member states. As will be argued below, much of the Council’s discussion around greater participation focuses upon the development of civil society and the strengthening of participation as a democratic end in itself: a move towards a model of what has become known as “strong democracy”.63 However, the concomitant defence of parliamentary democracy being offered by the Assembly and other organs of the Council is focused much more upon the “realist” model of democracy espoused by Joseph Schumpeter and others, which recognises parliaments as the centre of democracy and calls for a division of labour between elected politicians and the citizens they serve. In Schumpeter’s words:


The voters outside of parliament must respect the division of labour between themselves and the politicians they elect. … they must understand that, once they have elected an individual, political action is his business and not theirs. This means that they must refrain from instructing him about what he is to do … attempts at restricting the freedom of action of members of parliament – the practice of bombarding them with letters and telegrams for instance – ought to come under the same ban.64


The various attempts that the Assembly has made to defend parliaments as the focal point of political debate in societies65 or to restore citizen confidence in traditional institutions that support parliamentary democracy66 implicitly accept this division of labour. The Venice Commission’s concern with such issues as parliamentary immunity is a similar expression of this division.67 Consequently, the Council is caught between two fundamentally opposing beliefs that are linked to potentially contradictory models of democracy. On the one hand, there is a desire to defend parliaments as the home of representative democracy and to protect their primacy as the centre of political debate and deliberation. On the other hand, in the face of declining parliamentary legitimacy across Europe, there is a desire to find new modes of political engagement, new political spaces and new spheres of political deliberation. While the aim might be to defend representative democracy and its institutional home – parliament – the consequence could be to further undermine the legitimacy of the very institutions that such measures are seeking to protect.


We are not arguing here that the Assembly is wrong to place parliamentary democracy at the centre of its activities. Neither is it wrong to seek greater engagement of citizens in the working of democracy nor to foster more inclusive forms of participation. However, it is important that attention is drawn to the potential contradictions in these two models. The enactment of democracy requires a commitment to particular processes and institutions and the Council must consciously address the direction in which it wants to take democracy in Europe.


Representation


It follows from the Council’s emphasis upon parliamentary democracy that it also attaches great importance to the different mechanisms that ensure effective representation: in other words, those institutions that deliver representative democracy and which give political legitimacy to parliaments. There are several features of the Council’s activities that are relevant here. First, there is the Council’s ongoing concern with supporting the work of political parties under its wider commitment to “pluralist parliamentary democracy”.68 These concerns include an increasing interest in securing adequate state funding for political parties. Second, there are the Council’s activities in setting election standards, especially for adoption by new democracies but also in ensuring high standards of electoral practice among older democracies. Finally, the Council has supported a range of electoral innovations, including standards and practice around e-voting. These innovations have the potential to change and develop the nature of representative democracy across Europe. At the same time, however, they raise questions over whether new forms of representative practice are responding to social and political change in member countries or simply reacting to it.


The role of political parties in sustaining representative democracy is well established. A plurality of political parties is often seen as the basis of representative democracy and the only way in which modern democracy can work effectively:


Political parties are the main actors in the political process. … [they] aggregate demands into coherent policy packages – a process that gives voters a choice in elections. Political parties form governments and act as opposition in legislatures. … [they] are the major actors in representative democratic systems when it comes to solving societal problems.69


In accepting this principle, the Council has become increasingly concerned with the potential for corruption in political parties. In particular, there is concern across different organs of the Council that the increasing cost of election campaigns has led to too great a dependence upon private funding for political parties and a concomitant loss of confidence among citizens in the behaviour of those parties. The 2001 recommendation of the Parliamentary Assembly on the funding of political parties expressed this concern succinctly:


Citizens are showing growing concern with regard to corruption linked to political parties’ gradual loss of independence and the occurrence of improper influence on political decisions through financial means. The Assembly, stressing that political parties are an essential element of pluralistic democracies, is seriously preoccupied by this situation … In order to maintain and increase the confidence of citizens in their political systems, Council of Europe member states must adopt rules governing the financing of political parties and electoral campaigns.70


Their concern is backed up by a Venice Commission report which observes that although “the issue of political party funding is a relatively recent phenomenon”71 it is causing considerable concern across many countries. Interestingly, the research for their report recognises problems in both transition countries and long established democracies. Their proposals are supported by the Assembly’s 2001 recommendation, which seeks to establish a European-wide framework for ensuring a balance of party political funding between the state and private donations. It also establishes the principle of a ceiling on the level of funding that any one individual or organisation should be able to give to a political party. Subsequently, the Committee of Ministers has also reinforced this message through a 2003 recommendation.72 The problem of the financial transparency of political parties is also an issue at the sub-national level.73


This focus and activity in the area of party political funding is interesting not only for the problems and solutions it identifies but also because it highlights the Council’s concern with effective representation. As the intermediaries between citizens and the state the political parties are the primary focus for political activity. Reduced confidence in the activities of political parties, therefore, will reflect also upon the legitimacy of elected parliaments. Political parties are fundamental to the electoral process.


The Council places great emphasis upon the electoral process as the starting point for democratic representation. This principle is enshrined in the First Protocol added to the Convention for the Protection of Human Rights and Fundamental Freedoms, which requires all contracting parties “to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”.74 The right to free elections and the exercise of high electoral standards to ensure that this right is realised by all citizens, have been vigorously promoted by the Council through a number of routes. As well as publishing electoral standards75 the Council also supports a process of election observers to ensure that elections are free and fair. These observation and monitoring processes have a high international profile, as was demonstrated by the Council’s activities in the 2003 Georgian elections.

As well as promoting generally high standards of electoral practice, the Council has been particularly concerned to protect the principle of universal suffrage. Various adopted texts have been concerned with the disenfranchisement of particular social and ethnic groups because of failings in the electoral practices of particular countries.

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