The crust of democracy is based on political and judicial freedom, respect of minority rights, and freedom of the press. However, when the government fails to achieve responsiveness to people’s need, rights and effective maintenance of law and order, then democracy is still in view but not a reality in the state. This is the case of Hungary. A Modern European state which rebuilds itself after post-communist Europe and was championed as the success story of democracy is now slipping into the clutch of authoritarianism.
Hungary’s Prime Minister Viktor Orban ever since coming into power in 2010 has continuously undermined judicial independence, rights of migrants, academic and media freedoms. Some have termed this practice as ‘soft fascism: a political system that aims to eradicate dissent and seize control of every major aspect of a country’s political and social life, without needing to resort to hard measures like banning elections and building up a police state’. (Beauchamp, 2018).
The European Union fears Hungary’s model of soft fascism would be imported to other democratic countries where leaders want to consolidate their power. Initially, repression seen in the Hungarian society was very subtle to undertake any significant steps against it. For example, in 2017 Hungary suddenly lowered the retirement age of judges and removed from office the most senior ten per cent of the judiciary, including a lot of court presidents, and members of the Supreme Court. This led to the undermining of the judicial independence and consequently weakening other checks and balances with its constitutional reforms. Since then the situation in Hungary has deteriorated to the extent that democracy is merely a farce showcase to the international community to avoid scrutiny of European Union.
Taking this situation into consideration, the European Parliament voted on 13th September 2018 to impose sanctions on Hungary for disregarding norms of democracy like silencing independent media, replacing critical judges of the Supreme Court and suppressing civil rights. Theoretically, through this vote EU could impose sanctions on Hungary and even suspend its voting rights. But for this nuclear option to be used, all member states must unanimously agree. This is unlikely to occur because Poland is currently facing the same action, and Poland and Hungary have vowed to support each other. This has put EU in a conundrum; it cannot allow the standards of democracy to be deteriorated among EU member states and any action against the concerned member state would cause further friction within the union.
Member states have the right to govern their own national policies, but it should be within the guidelines provided by the EU. The Treaty on the European Union sets out the conditions (Article 49) and values (Article 6(2)) to which any country wishing to become an EU member must conform. These criteria include constitutional democracy, the stability of institutions guaranteeing democracy; the rule of law; human rights; and respect for, and protection, of minorities. However, there was a lack of follow up by EU to ensure that member states are following these criteria. This discrepancy between EU accession conditions and membership obligation made it easier for backsliding member states not to comply with EU values and ideas.
In March 2014, the Rule of Law Framework was adopted to counter Article 7.1 of the Treaty on the European Union which requires unanimous decision to breach a member state. This would serve as an early warning tool enabling the European Commission to engage in a structured dialogue with the Member States in view of addressing the situations of systemic threat to the rule of law. Rule of Law Framework would be used to find solutions before the enforcing existing legal mechanisms set out in Article 7.
The Framework process is designed as a three steps procedure. First, the Commission makes an assessment of the situation in the member country, collecting information and evaluating whether there is a systemic threat to the rule of law. Second, if a systemic threat is found to exist, the Commission makes recommendations to the member country about how to resolve the issue. Third, the Commission monitors the response and follow-up of the member country to the Commission’s recommendations.
It was used for the first time in January 2016 when the European Commission initiated a structured dialogue with the Polish Government about Polish legislation affecting the powers and composition of the constitutional tribunal and the management of state TV and radio broadcasters. This was a significant breach of the core values of the European Union which rests on democratic principles. Despite serious words by the commission to the Polish Government, the Polish Government dismissed the European Commission’s demands by saying that the changes implemented by Warsaw are "in line with European standards" and that it has created "the right conditions for a normal functioning" of the Constitutional Tribunal. These moves seriously undermine the legitimacy of European Commission, exposing the flaws of the rule of law framework. It is unclear whether there would be any legal implications if the demands made by the European Commission are not met. Such ambiguity in the conceptual design has made it easier for member states like Poland and Hungary not to adhere to the demands of EU.
Hungary has accused EU of infringing its national sovereignty and creating institutions that violate Hungary's sovereignty as guaranteed in the treaty on the European Union. Even though there are no provisions in EU to expel any member states, it cannot allow states like Hungary and Poland to function within the union who maintain the facade of democratic processes. It would not only undermine the legitimacy of the union but also this model of soft fascism could be imported to other states. However, there is a fine line. It has to tread carefully. It cannot be portrayed as a violator of national sovereignty, ‘the greater suppressing, the lesser’ as this would create anti-EU tendencies within member states. Also, EU doesn't want another Brexit. As Commission President Juncker in his State of the Union 2017 speech said: “Now is the time to build a more united, stronger and more democratic Europe for 2025.” (Halmai, 2018)
Beauchamp, Z. (2018). It happened there: how democracy died in Hungary. Vox Media.
Halmai, G. (2018). The possibility and desirability of economic sanction: the rule of law conditionality requirements against illiberal. Department of Law Working Papers, 20.
Sam-Okere, J. (2015). Democracy in Nigeria and India: A Comparative Analysis of Challenges to Contemporary Democratic Government. Singaporean Journal of Business Economics, and Management Studies, 9.
Image credit: euobserver
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