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Forum Paper Title: How Patriotic Can the
Opposition Be? The Role of the Minority Party During National Crises (full text )*
Abstract of Forum Paper:
The American legislative respond to the 9/11 tragedy - better
known as the Patriot Act - was characterized by an interesting phenomenon: it
passed by a very large majority in the US House of Representatives and by a
nearly unanimous vote in the Senate. Similarly overwhelming support was
manifested in other democracies, too, which enacted legislation or otherwise
handled a national crisis. Not only has the majority party voted for these laws
and governmental plans, but also the minority party or the "opposition 1" has supported them.
This phenomenon of opposition loyalty raises a question: How
patriotic can the opposition be? Why have a minority party in the first place,
if it can be loyal to the majority and fail to object in such crucial matters
as national security and foreign relations? On the other hand, it seems obvious
that an opposition need not always oppose, but rather has discretion to choose
its strategies and the issues on which it will disagree. Furthermore, we do
expect that in some circumstances, political disputes will be put aside in
favor of other crucial interests. There is an inherent tension, therefore, in
the concept of political opposition.
The question of opposition loyalty in times of crises is, thus, a
good case study for a larger inquiry into the constitutional status of the
opposition. Indeed, opposition research is not very developed even in political
science, as the focus is usually aimed at the electoral winners and power
holders rather then those who came in second-place. Jurisprudence on this topic
is even rarer, as the internal functioning of the legislature is often
perceived as a political matter which is not subject to legal regulation.
Americans are even more reluctant to broach the issue, as it is often argued
that "There is no opposition in the United States". It seems, however, that the
constitutional status of the opposition is an unavoidable issue. Some countries
grant the opposition rights and duties in their laws and constitutions. Others
regulate the status of the opposition in their parliamentary manual or customs.
Constitutional courts, mainly in Europe, are sometimes asked to rule on the
rights and duties of opposition parties. Against this background, I will
present the paper draft on the role of the opposition in times of
crises.
The main aims of the paper presented are to explore the
justifications, functions, limitations and characteristics of oppositions,
while applying these to the special circumstances of national crises. Tackling
the problem of party loyalty during national crises will be used as a basis for
the larger issue of framing the constitutional status of the opposition. More
specifically, the paper addresses the following issues:
First, I will elaborate on the concept of opposition, the
historical development of the concept and the theoretical justifications for
its existence. Second, I will explore the different types of oppositions, while
taking into account the characteristics of parliamentary regimes versus
presidential regimes. The argument in this context would be that opposition
exists not only in parliamentary regimes but also in the American type of
presidential regime. Third, having understood the functions, types and
justifications for oppositions, I will ask, what are the limits on oppositional
activity? I will refer to three possible limitations on oppositions - the duty
to respect democracy, the constructiveness of the opposition and its
responsibility. Fourth, I will focus on the problem of opposition loyalty and
analyze the reasons for such loyalty and its outcomes, especially in times of
crises.
Fifth, I will present my main argument regarding opposition
loyalty, especially in times of crises. I will claim that the opposition has a
duty to oppose unconstitutional violations by the majority. In other words,
even if we have a reasonable expectation that oppositions will be loyal to the
majority, there are times, especially during national crises, when this loyalty
cannot overcome the basic obligation of the opposition to respect the rule of
law and the constitution. Therefore, if the majority proposes a law which is
allegedly unconstitutional, the opposition has a duty to oppose it. This
argument is based on theoretical as well as practical reasons. Hence, because
of the special role of the opposition in democracy, and because of the
tendency, in times of crises, for judicial review to be ineffective and for
minority views not to be well-represented politically, the opposition has a
constitutional duty to oppose unconstitutional acts of the majority.
1. For reasons elaborated in the paper, I am using
the term opposition or minority party only in the context of internal
legislature's interaction, i.e. the opposition as manifested within the
legislature itself by the minority party. I do not analyze other types of
extra-parliamentary opposition movements and activities.
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