About a month ago the Greek government – headed by Prime Minister Kyriakos Mitsotakis and his New Democracy party – admitted to wiretapping the mobile phone of opposition leader Nikos Androulakis. In a subsequent press conference, the PM insisted that he was unaware of the bugging and described the move as ‘legal but wrong.’
To be sure, this espionage affair cannot be made transparent easily as it relates to secret service activities. Still, it is not an isolated case but only the latest in a long back-and-forth pitting the government against opposition parties and other critics. The former, advocating for their vision of a born-again Greece, while the latter cries out against liberal-democratic backsliding under the guise of technocracy.
A fierce public debate has emerged around the problematic concept of ‘legal but wrong.’ And rightly so, as the European Union is not solely founded on procedural democratic norms detailing the functioning of democratic institutions, but on a substantive definition stating what democracy stands for. European liberal democracy, as laid out in Article 2 of the Lisbon Treaty, rests on values of “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.”
The inclusion of normative values in the Treaty of the European Union renders it impossible to holistically evaluate government actions from a strictly procedural perspective. Within the realm of legality governments have ample space for what lawyer David E. Landau has termed ‘abusive constitutionalism’. This is a practice in which leaders use legal constitution-making procedures to enact amendments with provisions discrepant from the liberal understanding of constitutionalism.
Abusive constitutionalism has three main characteristics as identified by Mark Tushnet. Firstly, it is conducted using existing legal mechanisms, meaning it is lawful as a matter of positive domestic constitutional law. Secondly, it is abusive insofar as it makes it harder for the opposition to replace the standing government through ordinary political means. Thirdly, abusive amendments place substantive policies the opposition or other critics might seek to advance out of constitutional bounds.
This form of ‘legal but wrong’ law-making is evident in Greece’s Article 191; a recent amendment to the criminal code that allows up to five-year prison sentences for the dissemination of false reports “capable of causing concern or fear to the public or undermining public confidence in the national economy, the country’s defense capacity or public health.”
Amendment of the criminal code and the adoption of Article 191 were conducted legally by the New Democracy parliamentarian majority. However, critics have come out against the provision as limiting free speech and media freedom. The provision provides neither a definition of “fake news,” nor a standard procedure to be used on a case-by-case basis. The decision of what is true and what is false has been passed to regulators and prosecutors, rendering Article 191 a political weapon to be potentially wielded against journalists, opposition politicians, or members of civil society critical of the government’s policies.
It is abusive because it renders ordinary political behaviour by an opposition party – questioning the sitting government’s competence – less accessible and even punishable. While it does not place specific policies out of constitutional bounds, it intimidates critics into not discussing them in the public domain, lest they “cause concern or fear to the public” and end up in prison. This is already happening with the handling of the refugee crisis, a topic that very seldom makes it to Greek headlines, airwaves, or TV screens.
Unfortunately for voters, there are few ways to combat against liberal-democratic backsliding other than to vote against the sitting administration. The vote, after all, is a blunt weapon. This issue each voter must decide for himself. But on a grander scale, we can hope that the European Union will step in and, as it has already done with other violators of democratic liberalism, remind Greece of her obligation to respect free speech and media freedom.