Author: Emi Baruch
At the beginning of the month, three separate bills were voted on, with which the National Assembly took over the functions of the president for appointing the heads of the State Agency for National Security (SANS), the State Agency for Intelligence (DAR) and the State Agency for Technical Operations (DATO). Was the principle of balance in the separation of powers violated? How does this balance function and why is it important?
Ekaterina Mihaylova: The separation of powers in this case has not been violated. Because the role of the president in parliamentary government is not to be in the legislative, executive and judicial branches, but to be outside the three branches. To play a balancing function, having contact with each of them. The presidential institution is something like a substitute for the monarch in monarchies, but with some rather symbolic functions.
It is no coincidence that the constitution itself, and hence our legislation, gives such powers to the president of the republic under parliamentary rule - to balance between the different powers.
But let's distinguish the weight of the individual bills. One was in connection with the provision of cars for the secretaries and employees of the presidency by the national security service, the others were related to powers for how the heads of the special services, which deal with a very specific activity, are appointed.
On the issue of cars, I find it even offensive that the parliament is dealing with such a topic and, frankly, I do not see why the national security service would be charged with such duties. This special protection and care should be for very few people in the state - the president, the speaker of parliament, the prime minister... And if the lives of other people are at risk, there are other mechanisms that the state guarantees.
In Bulgaria, who doesn't ride and be protected by NSO employees? This thing must be stopped once and for all, because the topic periodically erupts and is used in the political debate. And we saw that it was used here too. A ridiculous demonstration was made by all sides - they took them, and then they will return them to him in another form, and he left in his wife's car... like in some comic film.
However, the issue of special services is serious. Although it is not at the constitutional level, the legislator has foreseen this binding mechanism of shared responsibility - i.e., the decision should not be made by only one institution, political decisions should not be imposed by force, a balance should be sought. To look for a person who does not serve one or another political agenda.
In 2013, as a result of a political decision by the government, Delyan Peevski was appointed head of the National Security Agency. This led to the most massive protests in modern Bulgaria.
Ekaterina Mihaylova: This was a decision through legal norms. And precisely because there was a reaction, disagreement with this purely political decision, the legislator then made the relevant bound competence for these positions - albeit only at the legal level. To look for a person who is not so clearly politically expressed, a person in whom various institutions see sufficient professional qualities, stability, integrity... because the character traits of a certain individual are also important when they occupy such an important position for the state.
In my opinion, it was a mistake for the parliament to change the law in order to push through its own person. Yes, it is true that there was once a refusal from the president. Neither the majority nor the government liked this. However, the way out of the crisis should not have been sought in a forceful solution through law, but through dialogue and balance. No matter how complicated their relationship is, in the end these are men and women who hold government positions and there is no room for liking and loving. When it comes to the state, you have to find a solution. The adoption of these laws is an obvious mistake on the part of the ruling party.
How is the political neutrality of these structures protected?
Ekaterina Mihaylova: The answer is difficult, because it is located halfway between the law on the one hand and political culture, goodwill and responsibility on the other. Because - I will say it again - it is about the state, not about someone's convenience. Many times we have to look for solutions between the texts, i.e. to feel the spirit... The ultimate measure, when neither the spirit nor the text of the law is respected, is to go to the Constitutional Court and to the possible repeal of certain texts. In the Constitution itself, we have quite a few texts that should guarantee the functioning of the rule of law - i.e. that these structures are politically neutral. It is not just the separation of powers. A constitutional decision in the governance of the state requires much more. But first of all, responsible behavior towards the legal order, towards morality, towards people's rights is required.
Recently, I was giving my students an example, comparing the American and Bulgarian constitutions. The American one begins with the words "We the People". And the Bulgarian one "We the deputies". The spirit is also there and suggests a different type of government…
You talk about the moral priorities of the individuals we elect and who guide us. But there is no mechanism for controlling this moral compass.
Ekaterina Mihaylova: There is no way there could be. There is even a decision of the Constitutional Court in this direction. The specific case concerned the election of a constitutional judge in the early years of democracy. The requirements are that he must have high professional and moral qualities. And the question was put to the Constitutional Court - does this person, appointed by decree of the president, have these moral and professional qualities. The Constitutional Court said that it cannot assess them, which is the case. This is the job of the body that makes these decisions. And in this sense, the procedures for electing such individuals are not without purpose. There are already rules for some of them. The non-governmental sector played a very serious role. The Bulgarian Institute for Legal Initiatives still monitors every procedure that is carried out - how it reaches a certain person. And from there we can judge how impartially this is done and how politically imposed it is. Although sometimes the procedures are carried out in such a formal manner that the criteria set out in the Constitution or the law are not observed.
Again, we are referring to the fact that the people who make such decisions are important, so that they are not turned into an insult and a mockery in the way they are applied.
From the years when you were in parliament until today, public trust in those who make decisions has dropped dramatically. With the exception of a dozen or twenty deputies, the rest are in the National Assembly as figureheads. And if in 2013 people reacted violently to what was happening, now they are indifferent. Is it just fatigue?
Ekaterina Mihaylova: The problem here is not legal, although it is based on legal norms. The fact is that people have become distant from politics. Whether because they are disgusted, or because they have other interests and this has ceased to be a topic for them, or because they live better economically and this is somewhere behind on their agenda. I work with young people and I see this process in them too. There are, of course, those who are excited and interested, but they are not the majority, and it cannot be said that the motives are predominantly altruistic. For some of them, this is simply a step towards career development.
If we look through the legal prism, it seems increasingly urgent to me (but I am afraid that it will have the opposite effect if a calm, reasonable moment is not chosen) to carefully rethink the entire way in which our political system functions. I am referring to the law on parties and the election laws… The distancing of parties, the ambiguity of who we elect is also hidden in the purely legal mechanisms that we offer to people. The majoritarian electoral system is very risky, because there the bought vote can strongly dominate. We should introduce more serious elements that would limit corrupt practices. When we throw a bunch of people in front of them to choose from, they don't even manage to understand who these people are.
Where should we start - from the election law, from the law on political parties.…
Ekaterina Mihaylova: In my opinion, they should not be viewed in isolation. And here I simply give the example of France, although recently things have not been very good there either... When a very serious crisis in parliamentary government occurred in their country, an analysis began, a conversation to find a way out, in which politicians, scientists, experts, researchers participated. They looked at things comprehensively - the form of government - i.e. the Constitutional order, plus the electoral system. It should not be done piecemeal. It should not be done like we do in our country - we decide something, then change it and act on the principle of trial and error. The complexity of this matter is that there is no guarantee. But this should happen in a calm atmosphere, to consider the risks of one or another decision and then to reach a result, but not piecemeal. In order to encourage people to vote, we need to offer them a mechanism that will allow the emergence of personalities who can motivate them.
The next elections are presidential, if there are no early elections. What dangers do they hide?
Ekaterina Mihaylova: These elections are very important. They are decisive because almost always in our recent history, presidential elections have set a new political model, i.e. they have changed political trends, they have changed political sentiments. No matter how much it is said that the president is deprived of powers, this is not exactly the case. The power of the Bulgarian president does not come from powers. His power comes from the direct vote. Which is not typical of parliamentary government. Therefore, in scientific circles, it is accepted that this is either a semi-presidential form of government or a hybrid parliamentary government.
With the latest change in the Constitution, the president's powers were also taken away. But all the time it was forgotten that no matter what was done, he would continue to be a strong player, just like the previous ones. They were not sidekicks, although some pretended to be. At some points, they had to take their functions more seriously. Let's remember the events of 1997. When the others collapse, the president appears as a reserve player. He becomes something like a temporary absolute king. At such moments, whoever we have elected to this position begins to live in another world. That is why the elections that lie ahead of us are very important. Will they change certain trends in political life, or will they preserve the status quo? At the moment, we see that the president is mainly playing the opposition - will this status quo be preserved? Or will an opportunity for a new model of behavior be created. This will depend on the person. Because this institution is quite personal. She concentrates power personally.
And personally influences the geopolitical orientation of the country.
Ekaterina Mihaylova: That's right. The president is a strong spokesperson. He doesn't need to have institutionally defined powers, it's enough to stand in front of the cameras. I really hope that the person we elect will maintain Bulgaria's direction towards the European and Atlantic values and belonging of the country. And not hesitantly, but categorically, with firm convictions.
What interests your students? What excites them?
Ekaterina Mihaylova: They ask about the mechanisms. They are excited about the electoral system, about the right to vote. They have a hard time understanding the topic of restricting voting rights. But they are interested. And if they have good examples, maybe we can give them hope. I'm trying to do this - to give them some hope, to suggest to them that changes are about to happen in their hands, the future governance of the state is in their hands and they need to know how it functions and try to do it the right way. Another generation is growing up. And it's not just about politics, which is wonderful.