It’s not only about the rule of law: Poland and Hungary in the EU [Podcast and Interview]

The EU rule of law framework is not the best way to check compliance with the EU’s basic values, says Gábor Halmai, Professor and Chair of Comparative Constitutional Law, and Director of Graduate Studies at the Law Department of the European University Institute, who, in a conversation with RevDem’s assistant editor Teodora Miljojković, also talks about the differences between Poland and Hungary.

Teodora Miljojković: The topic has been discussed extensively, and yet it seems there is the constant need for re-assessing and re-evaluating what is happening on the ground. I would like to start with some particularities that might have not yet received appropriate attention either by media or academics. The last five years in Poland have been particularly worrisome because of the judiciary reforms and the attacks against judges who disobey the regime. The  series of attacks against judicial independence had already started in Hungary in 2011 – with the dismissal of judge Baka and the subsequent reform to reduce the retirement age for judges – and has culminated in the recent change of the eligibility criteria for the chief justice of the Supreme Court. What do you think of these developments and how would you describe the situation in Hungary in comparison to Poland? And do you think that these recent developments have received sufficient attention from the EU?

Gábor Halmai: If you would allow me, I would like to start with the concept of democratic backsliding. Frankly, I do not like the term. First, the word “backsliding” has a semantic problem, for it does not indicate who is doing the action – it simply looks like a development from point A to point B, which is problematic when it is based on the assumption that Eastern European countries had already achieved a form of liberal democracy from which they are now sliding back. 

Frankly, full consolidation of democratic values and practices has never occurred in those countries.

Hungary and Poland can certainly be compared along a spectrum of a number of similarities, but they remain two separate countries. When it comes to judicial independence, we see that Hungary and Poland are different, and the entire process started much earlier in Hungary: if one takes into consideration the Hungarian constitutional court, the process of dismantling the independence of the judiciary started even before the adoption of the new Hungarian constitution. In early 2010, right after the election, Fidesz used their two-third majority to change the nomination and election procedures for the constitutional court’s judges. They immediately elected two new judges, who were very loyal to the party, which did not even fulfill the then-in-force rules for judicial appointments. The second step was to go after the ordinary judiciary, by imposing early retirement for judges – which, by the way, was recently implemented by the Polish government too. 

In other words, in 2011 Fidesz wanted to get rid of the entire old-guard leadership, and they did so very effectively: 72 judges have been replaced due to this measure – most of them being presidents of lower courts as well as supreme court members. Even though the European Commission started an infringement procedure – and in 2021 the European Court of Justice, in Commission v. Hungary, ruled that the measure violated the Directive on “age discrimination” – the result was a very bad compromise: instead of emphasising the issues with judicial independence overall, the EU institutions pointed out the single issue with age discrimination. It is true that the Hungarian government was forced to make some concessions, such as raising the retirement age from 62 to 65, but almost 300 justices had already been replaced – and none of them was reinstated to his/her position. At the end of the day, the Hungarian government’s goal was achieved.

In sum, here we see one of the main differences between Poland and Hungary. While the latter makes minor concessions, which do not change the substantial state of affairs, the former seems to be very combative in its reforms and openly opposes EU institutions’ requests. Although the situation in Hungary is as serious as in Poland – and the ordinary judiciary is also captured – there are some courageous judges still pursuing freedom in spite of the serious threats they receive for resorting to the ECJ. 

Perhaps we can add that the situation in Hungary is even more serious due to the fact that the saga goes on without the same attention it draws in Poland, where criticism is everywhere. In fact, the minor concessions made by the Hungarian government somehow convey a fake message: the government is willing to abide by the EU’s rules. However, in Hungary, we know that it is not only judicial independence that is under attack, for NGOs and the media are also victims of the same treatment. Recently, we had the chance to speak with Adam Bodnar, who is the Polish Ombudsman for citizen rights –  do you think that the Commissioner for fundamental rights in Hungary is in jeopardy too?

First of all, let me state my support and admiration for my old friend Adam Bodnar, who is courageously continuing his job in spite of the rule of law backsliding. This, again, proves my point that the Hungarian government started from the very beginning with a large program for dismantling many monitoring institutions and checks on governmental power. The program started with a new constitution that abolished the system of various ombudspersons – and substituted it with one single institution – and established one administrative body for overseeing data protection and freedom of information, which is partly dependent on the government.

The Hungarian government has often responded to criticisms and reproval from the EU by compensating the individuals who used to hold the dismissed positions, such as in the case of judge Baka mentioned earlier. 

However, such practices do not really solve the problem of freedom and independence of the institutions under attack. 

For instance, the new commissioner who has been kept as the only ombudsperson – elected easily by the government with a two-third majority – is today totally loyal to the government, and has never raised any relevant issue with regard to the government’s measures that impinge on fundamental rights. Interestingly, when the change occurred in 2011, the incumbent ombudsperson still had some time left on his term and was left in office because he was considered close to Fidesz’ position. Surprisingly, the guy, who is professor of political science at ELTE university, raised issues concerning some of the measures adopted by the government at that time, including challenging the so-called “transitional procedures” of the fundamental law. Therefore, Fidesz decided not to renew the professor’s mandate.

It is very important to talk about these events. When we look at Hungary and Poland from the outside, it seems that they both have traditionally liberal institutions, and yet reality tells us a different story. On paper nothing seems to be wrong, and this argument is actually used by the two countries to defend themselves against criticism: the two countries emphasize their respect of the rule of law principle. As you have worked on constitutional identity, do you think this principle can become part of the constitutional identity argument? Do you think that either Hungary or Poland could constitutionalize their own understanding of the rule of law through constitutional law jurisprudence?

The phenomenon called “autocratic legalism” is used by both governments but in different fashions: in Poland there is still a more-or-less fully-fledged liberal democratic constitution, that has been in place since 1997, which the Polish government has been unable to change because it has lacked the required majority. On the other hand, Hungary started to change the constitution since the very beginning of the transition back to an authoritarian system. This latter strategy translates into a wall against criticism from the EU, for it appears that Hungary keeps complying with its constitution. In 2014, Viktor Orban even declared that Hungary did not have a liberal constitution anymore, for that had been substituted by an illiberal one.  Complying with such a constitution is not hard and, above all, it does not mean that you apply the rule of law.

In Poland, the government always has to violate the constitution. 

The entire judicial reform is anti-constitutional in its content and scope. This is a big difference from the situation in Hungary, where the constitutional court is allowed to use a rhetorical argument about compliance with the constitution and constitutional identity. If you look at the decisions from the constitutional court, especially the one from 2016 after the refugee crisis had started and Hungary refused to comply with the relocation plan, the  rulings applied the fancy argument of constitutional identity while, in fact, the court was delivering a political decision: the argument is that Hungary does not want to welcome refugees because it is a Christian country – by the way, less than the Polish nation – and migrants are alien to the national culture. The same logic applies with the rule of law issue: 

When the EU reproved Hungary’s departure from the rule of law, the foreign minister replied that the country does not really understand the concept of rule of law, despite the principle being fleshed out by many sources.

By the way, I believe that the rule of law is not the best criterion to check compliance with 

Article 2 of the Treaty on European Union (TEU), for there are many aspects according to which we should not consider Hungary a democracy anymore. For instance, there have not been free and fair elections in Hungary since 2014. Since Orban came into power in 2010, the government has changed the constitution nine times with a two-third majority. This is not a democratic state anymore, let alone one that is compliant with the rule of law.

It is very interesting that you mention that the rule of law framework may not be the best choice to respond against the recent developments in Hungary. In your opinion, why did the EU choose that criterion? Why did it not go after democracy via different instruments? What could be at stake if Article 2 TEU were analyzed through the democracy requirement?

My conviction is that in Hungary there is no democracy, but there is no rule of law either. 

Therefore, it is not absolutely wrong to care about the latter. Maybe the EU could have chosen a broader category for compliance with the ideal of democracy. However, it is worth recalling that Hungary was not the first country to be disciplined by the EU according to the rule of law framework, for Poland was pursued earlier. This is the field of politics: why not Hungary, which went much further than the Polish government? I cannot help but think of political reasons: for instance, Fidesz’s membership in the EPP, or the stake of the German automotive industry in Hungary’s production. Also, the EU has applied the procedure from Article 7 TEU against both Hungary and Poland, and yet it appears that nothing has happened. What are the results of that procedure? Just nothing.

Even in the case of the newly established financial rule of law conditionality mechanism, set up last year to allocate funds for recovering from the pandemic, Poland and Hungary have gained enough trust and a few years will pass before the final ruling of the European Court of Justice comes. 

It was not the EU which triggered the dismantling of the rule of law and other democratic safeguards in these two countries, but the EU is certainly complicit in keeping that process alive and ongoing.

We have seen that the EU’s efforts are always late, to say the least. If we disregard temporarily the EU as an actor which could help in restoring democracy, we are left with the general democratic process. Indeed, we have seen that it is possible to depart from populist rule – as shown by the example of the United States. Do you believe such changes may occur also in Hungary and Poland as a result of the next elections? Is any change possible without changing the rules first?

Let me start by addressing the comparison with the U.S. To begin with, I do not believe that the phenomena in Poland and Hungary can be described as populism, while the Trump government certainly can. In the U.S., moreover, there were some threats to the mechanism of checks and balances, but the overall system remained fundamentally democratic. Unfortunately, the situation is not that rosy in Poland and Hungary, where we witness a narrative which is not populist in its intimate meaning of relying on the people and any form of direct democracy. 

Beyond that, a major difference between the three countries (U.S., Hungary and Poland) is civil society. This seems to be still very strong in Poland, as confirmed by recent protests against the decision almost to ban abortion. It is possible that Fidesz will lose the next elections in spite of the cons deriving from the current electoral law and the de facto absence of free and fair elections. If the opposition unites, which is likely to happen according to the latest signs, Fidesz may be trumped. 

Unfortunately, the Hungarian government is already implementing many rules which will give it extended power even in the case of an electoral debacle. 

An example of such guarantee is the privatization of all the state assets, such as universities and major economic players, which are being given to oligarchs loyal to Fidesz. In other words, crucial sectors in the economy and education will soon be captured and there will be no possibility for the new government to reverse the situation with a simple majority: a change of the constitution would be needed. This is not a legitimate government, and we have no legitimate constitution anymore.

Collaboration: Giancarlo Grignaschi, Robert Nemeth, Oliver Garner, Michał Matlak

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