Illiberal Constitutionalism in Poland and Hungary

The Deterioration of Democracy, Misuse of Human Rights and Abuse of the Rule of Law

Tímea Drinóczi, Agnieszka Bień-Kacała

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000428766
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This book theorizes illiberal constitutionalism by interrogation of the Rule of Law, democratic deterioration, and the misuse of the language and relativization of human rights protection, and its widespread emotional and value-oriented effect on the population.

The work consists of seven Parts. Part I outlines the volume's ambitions and provides an introduction. Part II discusses the theoretical framework and clarifies the terminology adopted in the book. Part III provides an in-depth insight into the constitutional identity of Poles and Hungarians and argues that an unbalanced constitutional identity has been moulded throughout Polish and Hungarian history in which emotional traits of collective victimhood and collective narcissism, and a longing for a charismatic leader have been evident. Part IV focuses on the emergence of illiberal constitutionalism, and, based on both quantitative and qualitative analyses, argues that illiberal constitutionalism is neither modern authoritarianism nor authoritarian constitutionalism. This Part contextualizes the issue by putting the deterioration of the Rule of Law into a European perspective. Part V explores the legal nature of illiberal legality when it is at odds and in compliance with the European Rule of Law, illiberal democracy, focusing on electoral democracy and legislative processes, and illiberalization of human rights. Part VI investigates whether there is a clear pattern in the methods of remodeling, or distancing from constitutional democracy, how it started, consolidated, and how its results are maintained. The final Part presents the author's conclusions and looks to the future.

The book will be an invaluable resource for scholars, academics and policy-makers interested in Constitutional Law and Politics.

V Limits

Constraints in constitutional design and identity

10.4324/9781003175353-5

Mainly due to the factors mentioned in the preceding Parts of this book, we find constraints on constitutional design and identity – more precisely, on the Hungarian and Polish versions of the European Rule of Law, democracy, and human rights protection – where they incorporate EU law and international human rights law. We propose to refer to these national versions as constituting “illiberal legality”, “illiberal democracy”, and “illiberalization of human rights protection”, as these terms help us to express the results of the abuse of the Rule of Law, deterioration of democracy, and misuse of human rights.

I Illiberal legality

1 The term

Voters in both Hungary and Poland care little about the realisation, implementation, and especially the value content of the Rule of Law, which is unfortunate. As the Venice Commission noted, “The Rule of Law can only flourish in a country whose inhabitants feel collectively responsible for the implementation of the concept, making it an integral part of their own legal, political and social culture.”¹ Collective responsibility can hardly be nurtured when the Rule of Law is surrounded by nationalistic and political interpretations. It takes the term out of context, especially when this narrative claims that the Rule of Law is a fluid, mainly political concept, itself ill-fitted or inadequate for use as an objective measure in an official legal procedure (such as Article 7 TEU). It disregards the co-existence of two considerations, and thus misguides the debate: even though legal procedures can politically be assessed, criticized, or even praised, they still stay in the realm of the law informed by legal approaches, guarantees, processes, and legal arguments. The official legal Rule of Law procedures reflect a legal design and content, and draw on the need for cooperation, dialogue, mutual understanding and comparison; and like many other aspects of the law, they are pervaded by political considerations. The error thus is that when legal arguments are rebutted based on exclusively political and populist arguments, and at the same time, the legal context is simply disregarded.

1 Rule of Law Checklist adopted by the Venice Commission at its 106th Plenary Session (Venice, 11–12 March 2016).

This context is provided by the fact that Hungary and Poland are Member States of the EU, a community whose fundamental and commonly shared values, that is, the Rule of Law, democracy, and human rights, amongst others, form a part of legal instruments, such as the TEU and national constitutions. The enforcement of the legal provisions is the task of the legally established bodies of the national and supranational community. At the same time, all of the above, and the success of the enforcement activity, can later be used for political assessments that are made by political bodies through a legal process that can and shall be designed to make a political decision on the membership of the community. Membership of a community is always a political decision that, in a community that follows the principles of the Rule of Law, should be supported and guided by legal rules and processes. This decision may be based on an assessment of how a member observes a common value when trust in that member is tilted. In the EU, Member States are trusted to follow the shared values and commonly agreed principles and rules.²

In the Member States, people trust their politicians and state institutions to follow the legally binding rules, including the national constitution, EU law, and international obligations. In the huge pool of political ideologies, people are free to choose; politicians and parties are free to pursue different political visions in so far as the end result fits the actual and current state of the European project. It seems, however, that in Hungary and Poland, the political atmosphere is different from that in the other Member States, as the majority of the people still trust in illiberal and populist politicians, even if they have seen the results of their political and party activities.

As opposed to the term “European Rule of Law”, we propose to call the Hungarian and Polish version “illiberal legality”, which is not only partially different from the European Rule of Law but which, paradoxically, forms its perverted version and, as such, is thus similar to it. It has two twin sides too, that is, a European side and a domestic one. Within the context of illiberal constitutionalism, this term can best express the partial hollowed-out character of the concept of the European Rule of Law, and express how it features in the Hungarian and Polish constitutional systems.

Illiberal legality is a nationalistic and overpoliticised conceptualisation of the European Rule of Law, which, in the political narrative, is used to protect the sovereignty of the state that is under attack by external factors, such as supranational and international (legal) communities, and social and economic challenges. Politicisation of the term “European Rule of Law” detaches it from its legally binding nature and takes it out of context, which serves the purposes of illiberal populism. The detaching exercise from and the nationalistic redesign of the European Rule of Law are always opportunistic: depending on whether it is in the interests of the populist leader, the European Rule of Law is either respected or ignored to a certain extent. Illiberal legality does not respect the basic tenets of constitutionalism but, due to membership of the EU (and other international organizations), it is legally – and politically – forced to recognize some constraints over its exercise of public power. It is the logical consequence and a necessary component of a constitutional remodelling designed and performed by a populist and authoritarian leader who is leading the country in an authoritarian direction within the framework of the EU. Therefore, illiberal legality is the antithesis of the European Rule of Law, in terms of values, the role of a constitution, and the components of the European Rule of Law. Illiberal legality retains formal legality, which is part of each thin concept of the Rule of Law and extends to the application and enforcement of the enforceable EU law. This effect is viewed as a weak internal (supranational) constraint on the domestic powers.

2 Opinion of the Court (Full Court) of 18 December 2014 in Case 2/13, ECLI:EU:C:2014:2454, para 168; Case C-619/18, Commission v Poland, ECLI:EU:C:2019:53.

2 Legal features of illiberal legality

Illiberal legality emphasizes the instrumental and opportunistic use of the law in both legislation and the application and adjudication of the law. It simply views and uses the law as a tool of political power (rule by law) to achieve its mission at any cost, without understanding the ideal that no one is above the law, that is, the constitution-amending and legislative power and constitutional review competences cannot be abused to the advantage of a selected group of people. Thus, it can also be argued that neither equality (non-discrimination), nor the prevention of abuse (misuse) of power, or the other elements of the benchmark of the Checklist are realized in Hungary and Poland to a sufficient extent. Each segment of the Rule of Law is compromised, and the failure to adhere to the requirements of the European Rule of Law is systematic, politically induced and supported, and widespread in those legal systems. This does not mean, however, that the European Rule of Law is not observed as a legal norm to a certain extent. Rather, it features the opportunistic approach of illiberal constitutionalism towards this concept. The practice of the implementation and everyday application of EU law is, amongst other things, appreciated as a constraint on domestic public power.

2.1 At odds with the European Rule of Law

Nevertheless, it is a well-known fact that in recent years, there have been many accusations concerning both Hungary and Poland because of their non-compliance with the Rule of Law.

Many international organizations, such as the UN Special Rapporteur and Venice Commission, have expressed their concerns, shared their opinions, and formulated recommendations. These, however, being soft law instruments, did not resolve the problem. The illiberal state apparently does not take soft law measures seriously, nor does it pay much attention to hard(er) law measures, highly political in nature as they are, such as the EU mechanisms to safeguard European law and values, and the results of court proceedings. Even after launching “the nuclear option” against Poland and Hungary (2017, 2018), the legal and political landscape has not evinced any change.³ It is already certain that no other measures, such as infringement procedures, could produce the expected effect in every case.

The reason for the intransigence of illiberal populist states is simple: the actors speak different languages. European and international institutions expect a constructive dialogue to be conducted in an impartial, evidence-based, and cooperative manner. But communicating with populist politicians through dialogue cannot be successful given the very nature of populism – neither consensus-seeking nor compromise, which should result from a dialogue, exists in the populist agenda.⁴ There is no space for consideration of the opinions of others, because that would require the illiberal populist leaders to accept legal and constitutional constraints and put themselves in a non-national context in which each actor has its own political, legal, and moral duties and responsibilities. A “normative commitment to constraints on public power”, as put by Tushnet when describing a different legal setting (authoritarian constitutionalism), does not feature in Poland and Hungary in the same way as elsewhere.⁵ It is enough to think of the unconstitutional constitutional amendments of 2010 and in 2013 (the Fourth Amendment of the FL) in Hungary, and of the continuous breach of the Polish Constitution by informal constitutional changes. Legal arguments are rebuffed by populist slogans, and, considering the populist parties’ continuous electoral victories at the national level, this “game” seems to please the voters. On the other hand, due to their membership o...