John Poulos and Jordan Jain
While all eyes seem to be fixated on Brexit, it is important to remember that the European Union is grappling with another crisis: the erosion of democracy, particularly in Poland and Hungary. In the wake of right-wing populist governments flouting democratic values, rule of law, and human rights, it is the responsibility of the EU to uphold democratic norms.
In Poland, the ruling Law and Justice (PiS) government has undercut the judiciary since taking over the Constitutional Tribunal in 2015. In July 2018, the Polish Parliament bypassed the constitution by passing a law that forced judges over 65 to retire unless they appealed directly to the President, who was granted sole discretion over the decision. This judiciary purge forced 27 of 72 Supreme Court justices out of their positions, and allowed the president to stack the courts with supporters of his policies. Additionally, the country faces weakening electoral laws, centralization of power, and strong PiS propaganda by state-owned media.
In Hungary, Prime Minister Viktor Orban and his Fidesz party have used their political power to transform the country into what he calls an “illiberal democracy.” From creating a parallel court system to cracking down on media outlets opposed to his regime, Orban continues to erode democratic principles in order to control public discourse. Meanwhile, his government has demonized NGOs and attacked academic freedom, quietly changing the rules to expel the George Soros-backed Central European University, an institution he considers disloyal.
In response to these unprecedented internal threats to EU democracy, European Parliament voted in favor of triggering a disciplinary process, known as Article 7, for the first time in EU history against Poland in December 2017 and then against Hungary in September 2018. Members of the European Parliament (MEPs) voiced concerns over Hungary and Poland breaching EU values of democracy, rule of law, and human rights. Yet punitive measures, such as suspending voting rights, require a unanimous vote from the European Council. This mechanism has failed, as Hungary and Poland have each pledged to veto any punitive measures against the other.
Article 7’s lack of effective enforcement measures leaves the EU in a precarious situation. While the EU must send a message to other member states that it will not ignore the abuse of liberal democracy, the EU cannot completely alienate countries like Poland and Hungary and should not risk a clash with populists that could escalate into a greater confrontation. Within the current system, a sensible measure would be to tie the disbursement of EU funds to member states’ commitment to uphold the rule of law. This move gives power to the European Commission, the executive arm of the EU, to suspend EU funds from member states if they do not adhere. This could be overturned only by a qualified majority in the European Council, breaking the deadlock of the aforementioned unanimous vote required for further sanctions. Alternatively, Germany and Belgium recently put forward a joint proposal which called for the creation of an annual rule of law peer review in all EU member states.
The EU can also choose to strengthen the Agency for Fundamental Rights (FRA), a board of non-political experts which already works to provide advice to member states on a range of issues. Currently, the FRA works to ensure human rights are upheld across the EU by setting minimum standards. As the FRA actively monitors and reports on rights violations, the agency should be able to present their findings as direct evidence of a country’s violation of democratic values and trigger an automatic probationary period for the perpetrating country.
In addition to the above recommendations for the EU, its member states should take individual action to support democracy. For example, member states should increase financial assistance to civil society organizations and independent media in areas where freedom of speech is under assault.
The challenges of illiberal democracy and populism are strong in Europe and abroad. While Hungary and Poland are certainly not the only illiberal democracies in the EU, they have continued to challenge the authority of the EU and its democratic principles. Their behavior requires action to be taken both by the EU as a whole and by individual member states in order to restore democratic norms and uphold the EU’s legitimacy.