Poland and Hungary Versus Rule of Law and EU Funds [PODCAST]

European Liberal Forum

In this episode of the Liberal Europe Podcast, Leszek Jażdżewski (Fundacja Liberté!) welcomes Gabor Halmai, Professor and the Chair of Comparative Constitutional Law and the Director of Graduate Studies at the Law Department at the European University Institute. They talk about the rule of law, EU funds, and the socio-political situation in Poland and Hungary.

Leszek Jażdżewski: Do Hungary and Poland fulfill the conditions of the European Union?

Gábor Halmai
Gábor Halmai

Gabor Halmai: The short answer is: certainly not. In Hungary, ever since 2010, when the first term as the prime minister started for Viktor Orban, with a two-third majority; and in Poland, since 2015, Article 2 of the European Treaty, which regulates the most important values of the EU, are systematically violated by these two states. They do it in different ways and to a various extent, but they certainly do not comply with the rule of law requirement. In the case of Hungary, I would go even a little bit further and say that this state is no longer a democracy.

In my view, democracy means having elections with uncertain results. Meanwhile, the April parliamentary election in Hungary has shown that the result was very much certain. Viktor Orban’s Fidesz party could not be possibly defeated by the united opposition. This does not mean that the opposition did not make any mistakes in their electoral campaign, but rather that the playing field has been so uneven since 2014, that there are no more democratic elections in Hungary.

The situation in Poland is different in this regard. There still seems to be a possibility for the opposition to win the election both parliamentary and presidential.

These are some very strong words indeed. Can we draw a line between when we should start treating these states as non-democratic? What kind of system can we now observe in Hungary – is it competitive autocracy or autocratic legalism? I know that you are not in favor of the term ‘illiberal democracy,’ can you explain why?

I do not think that these labels matter that much. Let me start by saying that ‘illiberal democracy,’ a term coined and used by Viktor Orban since the very beginning in his infamous speech in the summer of 2014, aims to disguise the system as still a ‘democracy’, but an illiberal one. In my view, not going into too much of a scientific detail, we should look into Jurgen Habermas’ definition of ‘democracy,’ as a system fulfilling the rule of law and fundamental rights’ protection. In this respect, the countries that do not comply with the minimum fundamental rights guarantees (as in the case of Hungary) or certain elements of the rule of law cannot be considered ‘democracies.’

Not to mention the Hungarian election system, which – since the early 2010s and the first victory of the Fidesz party in the then democratic election process – is rigged. It is not only unfair, but also does not provide the possibility for the opposition parties to win. This is still a kind of competitive autocratic system, but to be clear, there is no such chance in Hungary for any other party to win anymore with Fidesz.

In Poland, the situation is different. The ‘democratic backsliding’ started about five years later. The ruling party has been pretty much using the playbook created by Viktor Orban – starting with dismantling the judicial review by the Constitutional Court, packing the Constitutional Court with own people, and slowing down ordinary courts with numerous laws enacted by the ruling majority. This means that Poland also lacks the main guarantees of the rule of law – one of which is, certainly, independent judiciary.

Therefore, the two countries are very similar – both the constitutional and ordinary courts are packed. The main players in the judiciary are appointed exclusively by the government.

In the Illiberalism in East-Central Europe, published a year ago, you described the illiberal ideologs, including Ryszard Legutko in Poland and András Lánczi, a Hungarian Orban-propagandist. Could you elaborate on the anti-liberal arguments – promoted especially by PM Orban, but also pro-Kaczynski ideologs – challenging the concept of liberal democracy? For instance, Viktor Orban states that it is incompatible with ‘democracy’ as such and compares it to communism. Why did liberalism become so fragile in CEE?

When we consider Viktor Orban’s 2014 speech, in which he described the Hungarian regime as an ‘illiberal’ one, his main argument was that his regime was not focusing on individual rights, but rather the rights of a community. In other words, he tried to differentiate between the former and the rights of certain groups. However, in a liberal setting, both of these are the key components of a liberal democracy.

A liberal democracy cannot exist without the guarantees of fundamental rights – both individual and those of groups. Nor can democracy as such. Fortunately, in Western Europe, illiberals are still in the opposition – as the 2022 French presidential election has shown. Still, they enjoy significant support.

On the other hand, the backsliding of liberalism in the region (especially in the eastern and central Europe, but also in other parts of the world) is tied to beginnings of the democratic transition in 1989-1990. Back then, Poland and Hungary were the frontrunners of these processes. One of the promises of this time was changing an autocratic system into the market economy governed by the rule of law with guaranteed fundamental rights.

Moreover, the living standard was supposed to improve to match the Western European one. In the case of Hungary, it was to catch up with the neighboring Austria – a country that already since the 1980s became a point of comparison, as the Hungarians were able to travel to Austria and see the differences with their own eyes. And this promise of ‘catching-up’ to the West was clearly not fulfilled. This has caused disappointment – not only in terms of the economic development or lack thereof, but also the liberal democratic institutional setting of the newly introduced democratic systems.

In other words, after forty years of authoritarian rule in Hungary, Poland, and other countries in the region, newly created institutions (like the constitutional courts) were, of course, of certain importance to ordinary people, but the living standard mattered even more. Their disappointment led to disillusionment with the liberal democracy.

We have to understand that in the region, with the exception of the Czech Republic, most states had very limited democratic traditions before the communist times. Therefore, the backsliding of liberal democracy in CEE, stemming from individuals who use populist rhetoric to promote anti-liberal arguments against the liberal democratic system in general, became successful. In the case of Poland, there are some slight differences – the Law and Justice government is also introducing very popular social reforms and measures (for instance, the PLN 500+ for every child).

PM Orban is not doing that in Hungary. The only thing that he does in this regard is the so-called ‘work-based economy,’ which provides a minimum living standard for individuals who may, otherwise, be unemployed – a very minimal level of social care. Still, the Hungarian system seems to be very attractive for many voters – as evidenced by the April election.

Populist arguments are appealing in a state or a region where democratic culture or traditions were not really well-established. Furthermore, in terms of the Hungarian election this spring, the war in Ukraine had certainly contributed to Fidesz gaining once again a two-third majority. Viktor Orban used his populist rhetoric and kept referring to the safety of the people and security and claiming there is no need to give any signs of solidarity – not even to condemn the Russian aggression. This narrative proved successful. This was not the case in Poland, which has shown enormous solidarity with the Ukrainians. Therefore, simply put, populist rhetoric – when used in a very weak democratic political culture – can make a huge difference.

It seems rather surprising that these anti-liberal movements emerged so late in the region, considering how weak the new democracies were after 1989. In the transition period, one of the reasons why they managed to introduce market capitalism and liberal democracy was, perhaps – as indicated by Stephen Holmes and Ivan Krastev, – ‘the age of imitation.’ A strong tendency to create democracies – which were present in the Western world – but without ‘nations’ on which these institutions and traditions were to be based. Is this, indeed, one of the reasons for the weakening of CEE democracies? Is it tied to the weakening of liberal ideas in the West as well? It seems that with time, the eastern societies have become less eager to emulate the Western solutions. Has this period of mimicking the West ended?

Frankly speaking, I am not a big fan of this theory of imitation, put forward by my friends, as the ultimate reason for the democratic backsliding. On the one hand, I do not think that there have been no alternatives to the liberal democratic turn we observed back in the day in the region. There were several political forces that advocated different positions – among these, very strong former communist parties which transformed into social-democratic parties, which promoted more socially democratic solutions than liberal ones. There were even some third-way approaches proposed by minority players in 1989-90.

The main point, in my view, is that I cannot really imagine other feasible alternatives for that period of time but to introduce some kind of a democratic system. This was not imitation. If it was to be considered as such, we could also say that, after the World War II and in the 1970s, Germany, Spain, and Portugal also imitated liberal constitutional democracy, because they also used the same system – yet, without the challenges faced by the eastern European states. It is, therefore, not the system itself that is the reason for the democratic backsliding.

Certainly, the way in which liberal democracy was introduced has contributed to its backsliding. Namely, the emphasis was put very much on the institutional setting of the system – introducing the new constitutional court, ombudsman, and other elements. At the same time, there was no constitutional and political culture that is necessary for such changes to be effective. As a result, an institutional skeleton for a liberal democracy was created, but there were very few cultural and behavioral elements among the people.

The way the system was introduced utilized a legal approach. Some colleagues of mine described it as a ‘legal constitutionalism,’ without any use of participatory elements. People were not really asked about how a liberal democracy should be introduced, what mechanisms within this framework would work, what role should citizens play in the process of making this system be a successful project.

Even more importantly – and, here, let us come back to the economic aspect – the fact how liberal democracy was introduced, almost immediately together with the neoliberal economic policy, disappointed many people. They enjoyed a certain kind of social security toward the end of the communist reign (in the 1970s and 1980s). There was no unemployment, there was a minimal level of job security for almost everyone. This disappeared with the introduction of market economy and a lack of social democratic measures. There was no longer any guarantee of social security. In my view, this is the main reason why we are now witnessing the democratic backsliding in the CEE region – and not so much the copying of the Western liberal democratic institutions.

What strategy should liberals in Hungary and Poland adopt to effectively address the phenomenon of anti-democratic sentiments? What should the UE institutions and other Member States do? Conservatives often claim that liberals should try to blend in and stay away from such topics as the LGBTQI+ rights or further European integration, instead being more understanding of anti-liberal ideologies in order to be successful. At the same time, many European politicians seem to shy away from taking any definitive action. The issue seems much more political than legal in its nature.

The failure of the European Union to enforce European values in these two countries stems from the fact that these issues were not foreseen at the stage of the accession procedures in the early 2000s. Nobody predicted that there will be EU states that will be simply unwilling to comply with certain basic values of liberal democracy – the rule of law, fundamental rights, minority rights, among others. Needless to say, other states (like Romania or Bulgaria) also at times struggle with complying to the EU guiding principles. This was not foreseen – the entire design of the European Union to oversee the compliance with these values, it was not an important part of the EU structure.

In 2010, after the first two-third majority obtained by Viktor Orban’s Fidesz party, the joint liberal democratic EU values became endangered in this country, which resulted in a great shock of the European community. The EU was not prepared to use the tools that it has at its disposal – infringement procedures for non-compliant member states, or Article 7. More importantly, as regards the EU’s behavior toward this democratic backsliding, the political aspects are often more important than the legal ones.

It turned out that the problem with the oversight is not so much about the lack of a legal toolkit, but rather the lack of political willingness on the part of the European Union in general, and particular individual member states. Some of the larger member states were very much politically and economically tied to these trouble-making states. For instance, in the case of Hungary, the influence of the German car industry in Hungary made Germany (including the chancellorship pf Angela Merkel) almost unwilling to take a stand the illiberal politics of Viktor Orban.

There was a prolonged fight within the European People’s Party, when at the time the German leadership (including Manfred Weber) were reluctant to sanction a seemingly and openly anti-liberal member of the EPP group. It took many years to conclude that they should severely sanction the Hungarian member party.

So, indeed, there has been political unwillingness of the EU regarding Hungary and Poland. The latter is a much larger country, which is why the European Union cannot easily afford to take very strict measures against a government that also does not comply with EU values – mainly for political reasons.

If we take a look at the last few years, when the European Union seemed more willing to stand up for conditionality against these member states, it is most likely due to certain new political and economic considerations. Brexit and its economic consequences played an important role in this process, as the EU realized that ‘old member states’ cannot afford to send huge amounts of EU money – collected from the taxpayers of other member states – to feed illiberal democracies. They can no longer feed not the Hungarian government and its illiberal policies, as well as literally Viktor Orban himself and his whole family, his cronies, and oligarchs.

The new efforts to use the economic conditionality, put forward in 2021 and later, are a sign of the realization that there should be no more of wasting EU money for a state that is not willing to comply with not only the values entrenched in Article 2 of the treaties (rule of law, democracy etc.) and has a completely corrupt political and economic system which abuses these funds. This development is certainly very welcome. We shall see how far it will go. This would also solve the problem of whether old EU member states should command the new member states how to interpret EU values. It is all about the EU’s economic and financial interests. So, if there is a corrupt system (as is the case in Hungary), then the EU money is wasted.

Moreover, with a corrupt system come rule of law violations. If there is no independent judiciary in a country – be it either in Hungary or Poland – then the EU funds cannot be used effectively and properly, because if the EU economic partners do not have independent judges, then it is no longer the economic independence that is at stake, but also the very essence of the rule of law. In other words, these new measures against corruption are aimed at protecting the financial and economic interests of the European Union, and thus the core values that shall be protected.

One can only hope that the EU will stand up to the strongmen who break basic values. Not being true to one’s values – as was the case of the European Union until not so long ago, – one has to eventually pay the price. Here, the price is having two European governments supporting one another that go against these basic values. It seems that without commitment to solving the problem that we are facing on the part of both, the EU institutions and individual member states (including societies and political elites), we will not be able to remedy the situation.

To learn more about the topic, read Gabor Halmai’s “Anti-Constitutional Populism” (2022).

Browse through other publications written by Professor Halmai.                     

The podcast was recorded on May 10, 2022.

This podcast is produced by the European Liberal Forum in collaboration with Movimento Liberal Social and Fundacja Liberté!, with the financial support of the European Parliament. Neither the European Parliament nor the European Liberal Forum are responsible for the content or for any use that be made of it.

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