Preventing the return of Europe's authoritarian right
So now it’s Poland. For the last five years Hungary’s prime minister Viktor Orban has dismantled democratic checks and balances and declared the end of the liberal aspect of liberal democracy.
The other EU member states and Brussels huffed and puffed, but did not want to take any serious action against the erosion of democracy.
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Understandably there was little appetite for another EU crisis, but it was the moment to nip the idea of illiberal democracy in the bud before it spreads. That moment has passed.
Being rammed through parliament in no time, the attack of Poland’s Law and Justice party on the country’s Constitutional Court and media bears the hallmarks of an Orban manoeuvre, but it is even more breath-taking, coming within weeks of being elected with 38 percent of votes.
The ideology of Orban’s Fidesz party and the Polish Law and Justice party are sometimes described as a rebellion of a majority which feels marginalised. While this may be their self-perception, it’s not how these parties behave.
There are many models of democracy and there is nothing wrong with a party that promotes re-calibrating the balance of power somewhat towards majority decision-making, for example by introducing referendums, or by reducing the scope of a Constitutional Court.
But such delicate shifts should come after consultation rather than being made overnight and they should not result in one branch of power being completely undermined.
Orban paints an image of himself as a man of the people, who is not hiding behind laws and bureaucracy, ready to make tough decisions. Yet, he is not relying on the power of persuasion.
He has barricaded his ideology behind a pliant constitutional court, tamed media and a new constitution which he never dared put to a referendum. The OSCE’s election observers had serious concerns about the level playing field in Hungary’s elections.
At heart, these new right-wing parties are not the robust pro-people forces they claim to be. They are afraid of the people and skew the system to make sure their positions become immune to democratic challenge.
In short, they look much like the old authoritarian right.
After the Second World War the right wing in Europe broke its link with authoritarian rule, paving the way for stable democratic pluralism in Europe. Hungary’s Fidesz and the Polish Law and Justice party are now re-establishing the link.
Socially conservative positions are no problem for democracies. EU member states ruled by conservative parties have adopted all kinds of conservative policies, but they do not try to lock down the pluralistic process.
Many in Europe hope that Poles will withstand the onslaught on their democratic order and solve the problem at home. This would indeed be the best outcome, but given how the Law and Justice party steamrolls state institutions, only a massive social mobilisation could stop it. Will enough Poles conclude that while they wanted a new government, they do not want to end democracy?
In the EU a democracy problem in one member state is a democracy problem for all, because member states have votes in legislating for the whole Union. Democratic shortcomings in one member state contaminate the entire system, which is built on the premise of including only functioning democracies.
This is why the main remedy to an erosion of democracy in a member state is the suspension of voting rights of that member state in the EU Council according to article 7 of the EU Treaty.
Despite clear language in the EU Treaty on human rights and democracy, in the case of Hungary the European Commission did not make an overall assessment and instead focused on limited issues where it had a more specific legal basis.
When Fidesz got rid of judges by lowering the retirement age, the commission approached this as a matter of age discrimination, rather than an attack on the independence of the judiciary.
Under pressure for its limited response to the developments in Hungary, the commission then adopted a “rule of law framework,” essentially a dialogue with a member state to find out if it is willing to change course sufficiently to avoid the article 7 process. Until today it has not used the framework.
Poland’s Law and Justice party, in its outright refusal to accept a judgment of the country’s highest court and its transparent attempt to paralyse it, has provided a smoking gun that proves that domestic rule of law does not work any more.
The rule of law framework should therefore be applied to Poland and it should have already been used for Hungary.
The commission will discuss this on 13 January.
It should decide to launch these procedures now and deserves the support of the other EU member states.
Europe cannot look the other way when authoritarian rule is raising its head in a member state.
When joining the EU, states made a clear choice for pluralistic democracy. They should not be allowed to go back on that obligation.
Michael Meyer-Resende is the director of Democracy Reporting International, a Berlin-based NGO (@Meyer_Resende). This is his personal opinion