Justice

Bypassing Environmental Guarantees for Good: Constitutional Reform in Greece

The Greek constitution is a world-leading piece of legislation in terms of enshrining and enforcing environmental protection. Unsurprisingly, the key clauses have been under repeated assault from political establishments in recent decades. Now it appears that the constitutional reform being quietly ushered in by Greece’s Syriza-led government may be just as dangerous for the environment as anything proposed by the governments that came before them.

Back in 2000, the Office for Official Publications of the European Communities published a report in English titled The Law of Sustainable Development – General Principles. The report had been produced for the European Commission by Michael Decleris, then acting Vice-President of the Greek Supreme Administrative Court (also referred to as the Council of the State). With a foreword by Jacques Santer, acting President of the European Commission when it was commissioned, the book detailed the principles that guide the case law of the Greek Supreme Administrative Court on environmental issues.

This case law is Greece’s single most important contribution to environmental sustainability and, has been met with international acclaim. Based on both the 1992 Rio Conventionsand Article 24 of the Greek Constitution (stating that “protection of the natural and cultural environment is a duty of the State and a right of every person”), the Supreme Administrative Court environmental case law is firmly centred on the principle that sustainability is legally mandatory. As a result, the court elaborated a series of legal principles to make this mandate fully functional and enforceable in every case concerning legality of administrative acts, including ones technically issued as parliament-adopted statutes.

Checks, balances, and jealous politicians

The robustness of the environmental protections set out in the Greek Constitution was only made possible thanks to two further clauses that jointly guarantee a “diffuse” judicial review of the constitutionality of legal statutes. The first, Article 93, states that “the courts [including the Supreme Administrative Court] shall be bound not to apply unconstitutional statutes”. The second, Article 100, gives the competence of reviewing legislation’s constitutionality to the Greek Supreme Special Court (of greater authority than the Supreme Administrative Court) only in extremely rare case of conflicting judgments between the Supreme Administrative Court and one of the other two Greek Supreme Courts.

For about 25 years, the Supreme Administrative Court’s environmental case law has, in most cases, promoted much-needed sustainability, accountability, and the rule of law. Scores of Citizens’ Initiatives and environmental NGOs have filed appeals to the Supreme Administrative Court for their cases and, more often than not, they have won. Repeatedly stopping the notorious Acheloos river diversion project for violations of Greek and European law is one emblematic example. All these years, no serious objections about this sustainability case law have appeared in academic literature or discourse.

The only opposition came from special interests, accustomed to clientelistic favoritism and the idea that the rule of law just “hinders development”.[1] The Greek political class, who deeply detested accountability and thorough constitutional review of legislation they sponsored, called the Supreme Administrative Court’s case law absurd”, extreme”, and commented that it’s not part of the judges’ jobs to act as spatial planners”.[2]  In their view, elected officials are supposed to be the ultimate guardians of the constitution and courts should only rarely, and only in really extreme cases, have a say about such things as the constitutionality of new laws.

These views were common across the political spectrum – both among conservatives and socialists, ‘modernists’ and ‘populists’ – except for the Left and the Greens. This perspective explains why both constitutional revision projects of the last 20 years targeted Articles 24 and 100 for revision, and attempted to strip all courts (including the Supreme Administrative Court) of their constitutionality review competence to make it an exclusive power of a future ‘Constitutional Court’. This court would be made up of judges directly appointed by the government and the Parliament, and would therefore hopefully be more loyal to their views.

Both in the 1999-2001 constitutional reform process by Socialist Prime Minister Costas Simitis, and in the following one attempted by his conservative successor Costas Karamanlis, Articles 24 and 100 were effectively defended by broad campaigns of Greek civil society. These movements brought together citizens’ initiatives, environmental NGOs and the Greens, and were also supported by all parties of the Left including Syriza.

The 2006-2008 campaign against yet another attempted constitutional reform had a European dimension as well. Stavros Dimas, then acting European Commissioner for environment, published an article defending constitutional Article 24 in the Greek press on environmental protection, and openly opposing the efforts, orchestrated by his own conservative party, to revise it. Moreover, the Greek Greens had a written question tabled by Swedish Green Member of the European Parliament Carl Schlytter on their behalf. Current Greek European Commissioner Dimitris Avramopoulos played a role in the 2000-2001 campaign, supporting a resolution in defense of Article 24 as Athens mayor, but remained silent as a minister in the 2006-2008 revision.

Constitutional reform rears its ugly head

In early 2017 a new constitutional reform project was launched – this time by the current Syriza-Independent Greeks (ANEL) coalition government. The government has not yet unveiled its own official proposals about the constitutional articles to be revised. Nevertheless, an informal Expert Working Group was formed in late 2016 under deputy Foreign Minister Giorgos Katrougalos, a constitutional law academic himself. One more acting minister participated in the group, which also included four more members, all closely affiliated to either Syriza or ANEL. In March 2017, the group published a detailed report, whose views most likely reflect actual preliminary thoughts in inner government circles.

The experts’ report seems to have been very careful not to unnecessarily wake up Green memories from previous constitutional revision projects. Article 24 on environmental protection technically is left untouched. While no Constitutional Court seems to be proposed either, at least literally.

However, reform proposals for Article 100 about the Special Highest Court completely reverse this image. The currently diffused power regarding judicial constitutional review of laws, a conditio sine qua non for the production of environmental case law by the Supreme Administrative Court, is being completely removed. In its place, power will be transferred to, and concentrated exclusively in, a reformed Special Highest Court, which will become a de facto constitutional court with minimal independence and the highest possible loyalty to the political establishment. If passed, any possibly unconstitutional statute adopted by the parliament will be immune in all courts, including the Supreme Administrative Court. Courts will only be able to ask the Special Highest Court for a constitutional review, which will then be binding on all courts.

Such a reform will have multiple troubling effects. Current Supreme Administrative Court environmental case law will not be binding at all on the Special Highest Court, as the latter will be superior to any other court. Cut off from the interpretation and implementation principles of the Supreme Administrative Court environmental case law that now make it binding and enforceable, constitutional protection of the environment by Article 24 will be left ineffective and toothless. A similar constitutional statement in Article 22 declaring that “the State… shall care for the creation of conditions of employment for all citizens now sounds more like a bitter joke in a country with more than 20 per cent unemployment and almost 50 per cent youth unemployment.

A clear majority of the proposed judges in the new Special Highest Court will be directly (and unaccountably) selected by the political elite. Instead of the current system of a majority of them being drawn from all acting higher judges, one third of the new Special Highest Court judges will be hand-picked by the President of the Republic and a further one third by members of parliament (MPs) in a secret ballot. Only senior judges and law academics will be eligible, but neither checks and balances nor requirements for any kind of broader consensus are set out. For those familiar with Greek politics, it is obvious that the more loyal a candidate has been to the political establishment, the higher their chances of nomination.

Parliamentary legislative procedures in Greece have traditionally included controversial practices such as disguising administrative acts as parliament-adopted statutes, or the so-called ‘post-midnight amendments’. These refer to last-minute amendments tabled late at night and sponsored by a minister, which can be adopted by the parliament (and enacted into law) even with less than half a dozen MPs present. These kinds of highly opaque practices, somehow less frequent in the last few years, will be much more tempting if judicial constitutional review is reformed to be more ‘parliament-friendly’.

The main conservative opposition party New Democracy has also called for the revision of Articles 24 and 100. Right-wing ANEL, Syriza’s coalition partner in government, want to see Article 24 revised but make no explicit reference to Article 100. The pursuit of removing safeguards to sustainability and the rule of law seems to be a bipartisan objective.

Preparing a Green response

At this moment, constitutional reform issues are not considered ‘hot’ as the Greek government has neither tabled its official constitutional reform proposal nor has it put forth a timetable to do so. In this context, we must convincingly argue that targeting Article 100 for reform would revive the ‘Article 24 front’ and badly harm any government claim to be making a ‘progressive constitutional reform’. This strategy can be very persuasive while such intentions remain in an under-the-table-planning phase and can still be quietly abandoned without the government suffering a public political defeat.

Oikologoi Prasinoi, the Greek European Green Party member party, has already unanimously adopted a resolution clearly defending Article 100 and asking for it not to be reformed. The Ecological Network and major environmental NGOs such as Ornithologiki (Birdlife Greece) have also spoken out. A similar petition by citizens’ movements to the Greek government is now gathering steam.

Constitutional reform in EU Member States is technically a domestic issue, as long as the European aquis is not openly violated. Nevertheless, sustainability issues know no borders. European Greens can help by taking advantage of their contacts with high-ranking Greek government officials to present them with the green concerns about Article 100, and to warn them about how progressive European public opinion would respond to a possible attempt to have an internationally acclaimed sustainability tool reversed.

Both in Athens and Brussels, more and more people in power across party lines seem to secretly adopt a view that, instead of a universal right and obligation, sustainability should rather be a prize afforded through economic success. In this context, successfully defending Articles 24 and 100 for a third time will help stop a dangerous downwards spiral and shape a more sustainable future for Greece in the decades to come.

 

[1] Excerpts from parliament speeches, 14.9.2000, minutes of the 2000-1 Constitutional Revision Committee of the Greek Parliament (available only in Greek): Prokopis Pavlopoulos, currently acting President of Greece, then conservative MP: “the SUPREME ADMINISTRATIVE COURT case-low has been developed in a distorted way, often overtly intervening in competences constitutionally reserved for the legislative or executive power” (minutes, page 236)

[2] Ibid: Evangelos Venizelos, then socialist Chief Rapporteur for the Constitutional Revision, later president of PASOK party, 2012-2015: “the judge is not entitled to substitute the spatial  planner”  (minutes, page 232) and Konstantinos Mitsotakis, conservative ex-Prime Minister: “the SUPREME ADMINISTRATIVE COURT has come into absurdity”  (minutes, page 235)

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Bypassing Environmental Guarantees for Good: Constitutional Reform in Greece

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