WP6 Political Leadership, National Politics, and Transboundary Crisis Management Deliverable D6.2 Backsliding in area of constitutional safeguards and independent institutions, corruption control, and general equality and minorities Authors: Nick Sitter, Agnes Batory, Andrea Krizsan and Violetta Zentai Central European University Delivery date: 10 April 2017 This project has received funding from the European Union's Horizon 2020 research and innovation programme under grant agreement No 649484 Voice, Exit or Disloyalty: Democratic backsliding and the Rule of Law in Poland and Hungary Nick Sitter The notion that political developments in EU member states might threaten the integrity of the organization is as old as the EU – or rather EEC – itself. European integration was in no small part an effort by the original six member states to impose some restrictions on their own freedom of action in the aftermath of three decades of war and international crises. Pooling sovereignty would help Germany, Italy, France and the three Ben-Ne-Lux states achieve peace and prosperity, and safeguard democracy. Two of them were recent dictatorships. Enlargement in the 1970s, 1980s and 1990s brought in both long-established democracies and the recently authoritarian Greece, Spain and Portugal. Despite one or two tense moments, such as the attempted coup d’état in Spain in 1981, all three new democracies consolidated rapidly. The EU is often accredited with playing an important part in this. After the collapse of the Berlin Wall, the prospect of enlargement to a dozen or more formerly communist dictatorship prompted new questions about how to ensure that these ex-authoritarian regimes could take their place in the EU’s liberal democratic legal and normative system. The immediate result was the Copenhagen Criteria, laid down in the June 1993 European Council meeting in the Danish capital, which were designed to ensure that new member states were liberal democracies, respected human rights, had a functioning market economy and were capable of implementing the Acquis Communautaire. Combined with the obligation that all member states must be members of the Council of Europe, and a lengthy transition process, these rules should ensure that no new member state reversed its commitment to liberal democracy, free markets and the rule of law. A quarter of a century later, backsliding has become a commonly accepted term both in journalism and in academia to describe reversals in transitions to liberal democracy. More to the point, elements of democratic backsliding have been documented in a variety of member states, old and new, across a series of themes. The first policy paper in TransCrisis Work Package 6 analysed patterns of backsliding across the EU since the 2008 financial crisis, across three broad domains: the rule of law, corruption and corruption Moreover, Viktor Orbán’s Fidesz government had the 2/3 majority in parliament necessary unilaterally to change the constitution. It soon used this to centralize political power, and draw up a new tailor-made electoral system. The OSCE report on the 2014 elections concluded that: “The main governing party enjoyed an undue advantage because of restrictive campaign regulations, biased media coverage and campaign activities that blurred the separation between political party and the State”.3 Five years later the Polish government enjoyed less formal power, but lost no time to emulate its Hungarian role model. Both governments have been on the receiving end of substantial criticism from the EU, the Council of Europe and a range of member states, as well as non-EU states from Norway to the USA. And some of the language has been so severe as to be highly unusual among western allies. After the Hungarian prime minister set out his vision of an ‘illiberal state’ in a speech in 2014, Newsweek memorably labelled Viktor Orbán ’Hungary’s Mussolini’.4 The first section of the paper elaborates on the definition of backsliding in the field of the rule of law, and the most important issues related to assessing backsliding in Poland and Hungary. The second section runs thought the substantial points on which the two governments have been charged with backsliding in terms of what they set out to do and the limits to the independence of the judiciary, media, independent agencies and civil society that have arisen from new laws and policies. This section also explores the causes of backsliding in Poland and Hungary, and concludes that this has more to do with domestic party politics than with the financial crisis. The third section turns to the EU’s reaction to backsliding in Poland and Hungary. Backsliding with respect to the rule of law is a potential cause of transnational crisis because it undermines the laws and/or norms on which the EU is based. Several actors have pointed this out, but there are important differences between the Hungarian and Polish cases in three respects: First, although Hungary’s Fidesz and Poland’s Law and Justice Party (PiS) share an ideology that is identical in many important respects, the former is a member of the European People’s Party and the latter is not. Second, in 2010 the Hungarian issues could be interpreted as a one-off problem, the result of Hungary’s electoral system and a social democrat government worn out after eight years in office. Parties on the European centre-right could dismiss Victor Orbán’s posturing as hype rather than 3 OSCE Office for Democratic Institutions and Human Rights, “Hungary: Parliamentary Elections 6 April 2014”, OSCE/ODIHR Limited Election Observation Mission Final Report, Warsaw, 11 July 2014, p.3. 4 Hungarian Prime Minister’s Office, “Prime Minister Viktor Orbán’s Speech at the 25th Bálványos Summer Free University and Student Camp”, 26 July 2014; Newsweek, “’Hungary’s Mussolini’' vows to make the EU member an ‘illiberal state’”, 20 July 2014 substance. By the time PiS took over in Poland five years later, the Hungarian case was more serious, and backsliding began to look like a pattern in the EU. Once (Slovakia in the 1990s) could be an accident, twice (Hungary in 2010) a coincidence, but by 2015 three time was – to borrow Ian Fleming’s phrase – “enemy action”. Third, Poland is too big a state to be ignored quietly. In addition, geopolitics and history meant that no Polish government could hint – as Orbán did – that too harsh a response from the EU might drive the country into the open arms of Vladimir Putin. Hence the focus on backsliding and the EU’s reaction to this in terms of EU crisis management, including analysis of the core elements in crisis management in the TransCrisis project: detection, sense-making, decision-making, coordination, meaning-making, communication and accountability. Part 1 - Backsliding and the Rule of Law in the EU The rule of law is a fundamental building block of liberal democracy: the rule of the majority within legal and constitutional limits and constraints. All EU member states are committed to constitutional safeguards of democracy as a prerequisite for membership. If leaders of national governments in the EU invoke a crisis (be it the financial crisis, refugee crisis or the threat of terrorism) to limit the power of the courts, restrict media freedom, reduce the power of independent regulators or harass civil society, this may become a matter of democratic backsliding. If it breaches primary or secondary EU law, this can be defined as hard backsliding, whereas it is primarily a matter of a breach of EU norms (or EU laws that are not about democracy and the rule of law) then it can be defined as soft backsliding.5 Defining backsliding in the context of the rule of law is relatively unproblematic given the clear commitments to the rule of law that are laid down in the EU treaties, EU legislation, the requirements of membership of the Council of Europe and the Copenhagen Criteria. The Copenhagen Criteria for EU membership, Article 2 of the Treaty on European Union and the Treaty’s preamble state these norms clearly and precisely, and provisions to act against a member states that violate these rules and norms is set out in Article 7. In 2014 – in response to the European Parliament’s request that "Member States be regularly assessed on their continued compliance with the fundamental values of the Union and the requirement of democracy and the rule of 5 Nick Sitter, Agnes Batory, Joanna Kostka, Andrea Krizsan and Violetta Zentai, Mapping Backsliding in the European Union, p.9-10. law” and Justice and Home Affairs Council’s emphasis that "respecting the rule of law is a prerequisite for the protection of fundamental rights" and call for the Commission "to take forward the debate in line with the Treaties on the possible need for and shape of a collaborative and systematic method to tackle these issues" – the Commission set out “new framework to ensure an effective and coherent protection of the rule of law in all Member States”.6 This has become known simply as the Rule of Law Framework. • The Copenhagen Criteria require that the candidate country much achieve, among other things, stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.7 • In the Treaty Preamble, the signatories of the EU Treaty confirm “their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law.”8 • Article 2 of the Treaty on European Union states that: “The Union is founded on the values of respect for human dignity, freedom,