Can Europe Make It?

Borisov’s proposed Grand National Assembly and Bulgarian democratic prospects

Democracy is under threat in Bulgaria and the EU only undermines its own authority by failing to make it clear that it will not tolerate this.

Mihail Evans
8 September 2020
Anti-government protest in Sofia, Bulgaria, 20 July 2020.
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Hristo Vladev/PA. All rights reserved.

A raid on the offices of the Bulgarian president and the arrest of two of his employees in July proved to be the straw that broke the camel’s back. Compared with neighbouring Romania, Bulgarians have been more reluctant to take to the streets in recent years with the last major protests being in 2013. However, this act and the events that preceded it has resulted in on-going demonstrations in the centre of Sofia that are currently in their ninth week.

Hristo Ivanov, a former justice minister in Borisov’s second government now turned vocal critic can, in particular, be credited with successfully mobilising the widespread dissatisfaction that had long been simmering. The protestors are demanding the resignation of the government of Boyko Borisov, his third and the only one so far not to end prematurely, and the appointment by President Rumen Radev of a caretaker government to oversee early elections. In addition, they call for the departure of General Prosecutor Ivan Geshev, as well as reforms to address longstanding failures regarding the rule of law.

After the ruse of a cabinet reshuffle failed to assuage his opponents, on August 14 prime minister Boyko Borisov proposed calling a Grand National Assembly and reforming the constitution for the first time since 1991. In particular, he suggested reducing the number of Members of Parliament from 240 to 120, in addition to a number of other amendments, including the troubling removal of the preamble of the current Constitution which states that the supreme principle governing Bulgaria is human rights and the dignity and security of its citizens. Journalists have been quick to deride the grammar and spelling mistakes riddling Borisov’s proposed draft and errors in the description of Bulgaria’s coat of arms.

The 1879 Turnovo Constitution, which established Bulgaria as a state on its succession from the Ottoman Empire, specified that the country would be governed by a National Assembly and that any extensive constitutional changes must be made by a Grand National Assembly. Since 1991 the former has consisted of 240 representatives and the latter of 400 representatives. It is the latter that Borisov now proposes to call for the first time. Among his proposals, it might be noted, is the future abandoning of the distinction between an ordinary and a grand national assembly, thus allowing any national assembly in the future to enact a new Constitution and radically change the political system. This together with the proposal to remove the preamble’s reference to rights can only raise serious questions about the fate of democracy in a Bulgaria left at the mercy of Borisov.

The idea of holding a Grand National Assembly comes completely out of the blue as rule of law rather than constitutional issues have been overwhelmingly dominant in recent political debate. It might initially seem surprising that the office of the prosecutor general looms so large over the nation’s politics. In Bulgaria, the problem is not, as in judicial changes in Hungary or Poland, the weakening of an initially satisfactory institution but rather the failure to ever significantly reform an institution that was established in 1947 at the height of Stalinism. The high level of legitimacy enjoyed by the socialist regime meant that the new constitution established in 1991 was not as radical a departure as elsewhere in the eastern bloc.

Bulgaria’s Prosecutor General

As the system is currently constituted there are simply no checks and balances that can rein in the conduct of the Bulgarian Prosecutor General, a position which is largely in the political gift of the government. The holder of this office has effective command of the entire judicial system and can stop any investigation, including a hypothetical one against himself. This has resulted in conduct that reached a nadir in a shocking series of events which saw a senior prosecutor murdered after making strongly worded criticisms of the then Prosecutor General. This appalling episode has never been satisfactory cleared up by investigators or the legal system. The family of the murdered man took a case, Kolevi v Bulgaria, to the European Court of Human Rights whose ruling was that Bulgaria must engage in extensive reforms of the prosecutors office.

Over a period of more than a decade, largely coinciding with the governments of Borisov, it has failed to do so. As a result, as Radosveta Vassileva, a fellow at University College, London’s Faculty of Law argues: “Bulgaria is permanently torn by scandals regarding non-random distribution of case files, abuses of judges and prosecutors who resist political orders, purposeful destruction of evidence by authorities etc.”. In recent years Bulgaria has been repeatedly convicted of violations of Article 6 of the European Convention on Human Rights for failing to ensure the rights of the accused. The Specialised Court for Organised Crime, a parallel system of courts ostensibly established to combat corruption have failed to convict a single politician (in contrast to Romania where dozens have been imprisoned, including the leader of the ruling Social Democrat Party last year) but have been accused by legal scholars of failing to provide fair trials. In addition, there are also problems with the Supreme Judicial Council which is responsible for all personnel decisions regarding magistrates. It has a preponderance of members that are politically appointed and fails to operate as a self-regulating judicial body.

Turning a blind eye

Under the conditions of EU membership Bulgaria is subject to a Cooperation and Verification Mechanism (CVM). Juncker’s Commission has either been incredibly naive or wilfully blind in issuing a series of reports which accept government flannel at face value and which have failed to probe the situation with anything approaching thoroughness. One might suspect that, as in the case of Orban in Hungary, the party management needs of the European Peoples Party, of which Borisov’s GERB party is a member, have trumped the democratic functioning of member states. The 2018 CVM report preposterously declared three of the six benchmarks, on judicial independence, legal framework and organized crime, closed. Européens pour la Démocratie et les Libertés were among a number of bodies that protested that the conclusions of the 2018 report were not credible. It is no secret that the judicial system is not independent in Bulgaria. Speaking of the leader of the MRF, the party which attracts its support mostly from the country’s Turkish minority and which is often a kingmaker in parliament, in an interview in 2014, Borisov was frank in his admiration: ‘Dogan was the first to realise that if he had a media empire and control over the judiciary he could rule’.

‘Dogan was the first to realise that if he had a media empire and control over the judiciary he could rule’.

Anti-government protest in Sofia, Bulgaria, 20 July 2020.
Anti-government protest in Sofia, Bulgaria, 20 July 2020. | Jodi Hilton/PA. All rights reserved.

A Grand National Assembly can only be convoked by the initiative of the President or half the membership of an ordinary National Assembly. But this must be ratified by two thirds of the members of the sole parliamentary house, a figure that looks out of Borisov’s reach. His coalition partners, the United Patriots an alliance of nationalist parties, have rejected the prime minister's proposal and say they seek only constitutional amendments to make voting compulsory, to restore military service and to ban same-sex unions.

The latter two are populist proposals which might well be approved and probably have the backing of the electorate. Compulsory voting is a measure beloved of politicians everywhere and is in operation in Belgium, Australia and elsewhere but was abandoned by the Netherlands in 1970. Ostensibly it has a certain democratic logic but is in danger of being a sticking plaster which disguises the extent to which voters are alienated from politics. Ironically, some studies argue that it tends to result in moderation, to the discomfit of populist politicians, such as the very ones now proposing this measure in Bulgaria.

The manifold problems the country faces are not obviously crying out for a new constitution in order to address them. Establishing an independent judiciary and prosecutors office could be achieved by normal legislative efforts with a modicum of executive will. There are also a number of simple changes in the way votes are conducted that could help promote democratic involvement and representativeness. More Bulgarians are working abroad than in Bulgaria yet Borisov has been resisting the introduction of any form of voting that was not in-person for many years. In the absence of electronic or postal voting, on election day long queues of voters form outside Bulgarian embassies abroad. Studies elsewhere have shown that making voting less inconvenient and time consuming increases turnout.

Scrapping MP’s

Borrisov’s key proposal of halving the number of members of parliament is an obvious populist ploy. Politicians, the too simple wisdom has it, are the problem – doing little but claiming big salaries and expenses – so less of them is clearly the solution. Ironically, reducing MP numbers is also a bit of political trickery that is often popular with those in the executive who tire of troublesome backbenchers. In 2011 David Cameron shamefully sought to cut the British House of Commons from 650 to 600 members, a proposal only finally abandoned by Boris Johnson in March this year. The cost of MPs is a perennial gripe in many quarters. But while a parliamentarian certainly earns more than a policeman or a nurse, the functions they perform are invaluable for democracy, in both financial and more intangible terms. The British proposal would have saved a meagre £12m, paperclip money when considered in the context of the cost of government as a whole.

The key problem with any reduction in numbers is that it shrinks the number of members who are independent of the government. These are precisely those politicians who are most likely to question the actions of the executive and to call it to account. It might be thought the main function of a parliamentarian is to vote on legislation but, in any well functioning modern democracy, it is to scrutinise not just legislative proposals but the operation of government more generally. In the British system the various select committees arguably perform a more important function than the better known ones whose stage is the floor of the house. In Bulgaria, since Borisov’s acquisition of power over a decade ago, there has been an active attempt on the part of government to prevent real scrutiny of legislation and a failure to make the sorts of calls for evidence that are routine in functioning democracies.

Since as far back as a 1909 British study, it has been common to suggest that the cube root of a nation’s population is a good rough indication of what the size of its legislature should be. In Bulgaria’s case this would be approximately 190, fifty lower than the current size but fifty more than Borisov’s proposal. Fancy mathematical models aside, in reality there is a wide degree of variation in the sizes of well functioning parliamentary houses. The membership of the Swedish Riksdag, whose democratic effectiveness noone questions, at 349 for roughly ten million people, is considerably larger than Bulgaria’s Narodno Subranie.

A second house

The need for better scrutiny of the executive means that there are strong arguments not for cutting the numbers of Bulgarian MPs but for re-establishing a second house of parliament. Under the Turnovo Constiution Bulgaria had a bicameral parliament but the Provincial Assembly was abolished with the advent of Communism and not restored after 1989. It is true that a second house of parliament is not a sine qua non of democracy, although there is an observed trend globally in recent years from unicameralism toward bicameralism. Scholars frequently observe that those countries that have the latter system often do much better in representing regional interests, although it obviously depends how the second chamber is elected or appointed. In Europe many local authorities are given an important role, and seventeen nations on the continent that have a second house offer a number of different models for Bulgarian to draw on. Given that it is widely accepted that the country’s rural areas are in crisis, with economic and cultural dynamism being sucked into Sofia and a couple of other provincial centres, this would be a prime reason for returning to bicameralism.

The relationship between the country and its vast emigrant population is also a particular problem for Bulgaria. One way to address this would be for a second house to follow the model of the French Senate and to contain a number of representatives of Bulgarians living abroad. Aside from the particular representation of provincial and expat interests, what the Bulgarian legislature desperately needs is more scrutiny of both the legislation and the executive. Again, studies suggest that second houses often do this better than a unicameral system. The fierce inquisitors of the US Senate are well known from dramas and documentaries but even the most humdrum members of a second house can add considerably to the effective operation of democracy by calling the executive to account on a daily basis and through examining legislation closely.

Media and NGO’s

The effectiveness of any democracy depends, of course, not just on its parliamentarians. The extent to which the latter are subjected to scrutiny by the media, NGOs and even civil servants in the course of rigorously probing executive proposals, is crucial to the functioning of democracy. In recent years the Bulgarian media has increasingly fallen captive to owners with vested interests who have repeatedly silenced investigative reporting. One of the country’s most famous journalists is a taxi driver, unable to find employment anywhere in the sector. EU funds are misused by government to promote its own agenda and the state broadcaster, BNT, is now run by a director who is widely regarded as unqualified for the job and a government stooge.

One of the country’s most famous journalists is a taxi driver, unable to find employment anywhere in the sector.

The NGO sector has contracted markedly since EU accession as donor funds from abroad have dried up in mistaken expectation that the country would quickly shift to self-sufficiency, an entirely unrealistic expectation given how much Bulgaria lags behind economically. There is an urgent need for greater support from the state and for a creative program of EU funding targeted specifically at the situation in the country. In the longer term, citizens should be educated as to the positive role they can have in change and to discourage the current practice of focusing all expectations on the state.

Culture and citizenship

What happens next in Bulgaria largely depends, as it should, on its citizens. All the signs are that protestors will not be fobbed off this time, as they have been in the past. That said, Borisov’s base has not deserted him. The constitutional changes he proposes are a blatant manipulation in order to remain in power. Rule of law reforms are what is mostly obviously needed as well as much work to entrench democracy scrutiny in Bulgaria society. If constitutional reforms were to be undertaken what would be needed to improve democratic functioning is more parliamentarians not less. Simple steps like electronic and postal voting could potentially improve democratic involvement. But a functioning democracy is not simply about parliament and there remains a vast task ahead to create the sort of political culture that is taken for granted in the older core EU states.

Having said this, in the UK, the aggressive line of Dominic Cummings and other intimates of the prime minister against senior civil servants perceived to be resistant to government policy is seen as a shocking new development. In Bulgaria, since long before Borisov came on the scene, the entire civil service has been massively politicised. Routinely, a new government will engage in sweeping changes in personnel with previously senior management reduced to entry level positions. Problems with the politicisation of the judiciary are constantly talked about as we have seen. But until a culture of civil service impartiality is developed, with an established and respected career structure, democracy cannot develop in the country as it has elsewhere in Europe.

The US Embassy in Sofia has signalled its support for the protests. The EU is notoriously keen not to be seen to take sides in the politics of member states. But there must be clear limits to this policy of non-interference when the functioning of democracy is at stake.

Manfred Weber, the EPP's lead candidate last year for the European Commission President who for too long cosied up to Hungary’s Orban, was quick to issue a statement of support for Borisov. The European Parliament as an institution has not been so complaisant. Together with Prosecutor General Geshev, Borisov was asked to give evidence to a closed session of the Democracy, Rule of Law and Fundamental Rights Monitoring Group of the European Parliament on 28 August. He sent instead the deputy prime minister who replied to questions about tackling corruption with the enumeration of successes in the prevention of smuggling, an old GERB trick that a compliant Bulgarian media has too long allowed to go unquestioned.

That a robust discussion ensued shows that European parliamentarians are not to be easily put off. What is signally lacking at the moment is the European Commission taking a firm and public stand. Democracy is under threat in Bulgaria and the EU is only undermining its own authority if it fails to make it clear that it will not tolerate this.

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