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Ruzha Smilova: Illiberal Constitutionalism? The Turn against ‘Genders’ in Bulgarian Constitutional Discourse

3. May 14:00 - 16:00

Constitutional courts played an important role in building and consolidating democratic institutions in post-communist states in Central and Eastern Europe during the transition period. This established them as effective and respected guardians of the Constitution against encroachments of parliamentary majorities in these trying times. Some of the constitutional courts also played a role of potent vehicles for the human-rights-enhancing liberal revolution in the region, extending the scope of rights and their protection. In the post-accession period, a reverse trend is observed: rather than further strengthening the human rights and civil liberties protection, some courts have taken an illiberal turn and have transformed themselves into potent vehicles for extending the power of aggressive majorities to limit the rights of individuals and unpopular minorities. Such courts now play the role of champions of illiberalism – which seems to be taking over the region of CEE, but is also spreading to well-established democracies beyond it as well. This makes the case of ‘illiberal constitutionalism’ all the more important to study.

The trend towards “illiberal constitutionalism’ is demonstrated in this presentation by an analysis of the political and social context, as well as the conceptual and ideological innovation in the landmark 2018 decision of the Bulgarian Constitutional court, which declared Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) in violation of Bulgaria’s Constitution. This decision signals a radical turn in the Court’s human rights jurisprudence away from human rights protection. It thus illustrates a major problem with constitutionalism in the region during its post-accession “democratic backsliding” – the failure of constitutional courts to resist the pressures of populist assault on the institutions of constitutional democracy.

Ruža Smilova teaches contemporary political philosophy and history of political ideas at the Department of Political Science, University of Sofia. Smilova is also the program director for political research at the Center for Liberal Strategies. Her last publication “The Ideological Turn in Bulgarian Constitutional Discourse. The Rise Against ‘Genders’”, has been published in Critical Essays on Human Rights Criticism (ed. Sajo and Uitz, 2020). Research on this presentation is supported by the European Commission, within the framework of H2020  Project “Populism and Civic Engagement” (For more details on the project’s goals and research outcomes, see http://popandce.eu/).


3. May
14:00 - 16:00