The Anatomy of Illiberal States: Where There is Society, I am the Law

(Versión en español)

“The new state that we are constructing in Hungary is an illiberal state, a non-liberal state”. In 2014, Viktor Orban proclaimed his mission to export illiberal democracy, as he welcomed the students of the Bálványos Free University summer camp. In the end of 2018, the Hungarian population welcomed Prime Minister Viktor Orban with cries of “Viktator” (Victor, dictator) in a wave of protests against the latest labour reform and the virulent attacks of the executive against the division of powers, civil liberties and human rights.

The academic Fareed Zakaria, who coined the term illiberal democracies in 1997, warned that these “gain legitimacy, and thus strength, from the fact that they are reasonably democratic”: they meet certain minimum conditions to not be openly considered autocracies – for example, the holding of elections and a fragile division of powers. These regimes are sustained, precisely by our blind confidence in this system of democratic counterweights to confront tyranny.

Nevertheless, the strength of this system of counterweights, in countries such as Hungary and Poland, is a chimera: precisely illiberal democracies erode the rule of law by covertly attacking each one of these democratic counterweights –political pluralism, civil society, free media and the legislative and judicial powers.

These are a few of the techniques employed by modern autocrats to subvert law and justice:

Phase I: Court-packing: the principle of loyalty above legality

The theory of lex naturalis or natural law asserts that “where there is society, there is law”. It is interesting how in illiberal states, their leaders have erected themselves upon the maxim of “where there is society, I am the law”.

One of the most persistent patterns that emerges in these illiberal states is the practice of court-packing. This consists of expanding the number of judges or magistrates in a court, then appointing members that are loyal to the party to these positions. Without openly violating the law, the scales of justice are thereby swung in favour of the executive. Turkey, Hungary and Poland have all followed this trail with different levels of creativity. The practice of court-packing is based on the principle of loyalty before legality.

The Brookings Institute has published data demonstrating how in Hungary, Victor Orban’s party, Fidesz, has appointed friendly officials in the offices of the Prosecutor-General, the Electoral Commission, the Fiscal Council and Constitutional Court, since coming to power in 2010,.

Phase II: Forcefully retire Judges and Magistrates

In an opposite, but equally poisonous example, the Polish executive launched an assault on its Supreme Court in 2017, which culminated in the forced retirement of all judges over the age of 65 in July 2018, in order to replace impartial judges with those loyal to the authorities. Despite the fact that the European Court of Justice has interceded blocking this legal reform, the Polish executive had already shielded itself by passing expedited legislation for the appointment of judges before the ruling of the ECJ arrived – using this temporal void to slip their faithful subjects into the seats.

Phase III: Subvert the legitimacy of International Courts and human rights NGOs

Illiberal leaders legitimize their erosions of the rule of law by demonizing international tribunals. Orban has fuelled conspiracy theories of forces that are allied to destroy the nation  by popularizing the term “external agents” to refer to George Soros, the Court of Justice of the European Union, and the European Court of Human Rights. This breeds in the alarming belief of their own electorates that the very system of the division of powers (created in the spirit of liberal constitutionalism) goes against national values. In an interview with the BBC, Hungarian Foreign Minister Péter Szijjártó said that “human rights go against Hungarian values“.

Orban’s party, Fidesz, has nourished – with great creativity (and state resources) – a variety of propaganda campaigns that attack human rights NGOs and the European Union. The information war is exacerbated in such a way that this week, when Orban’s party was suspended from its group in the European Parliament by the European People’s Party for its illiberal drift, official communiqués and the Hungarian national press said that Orban’s party had left the group voluntarily.

Phase IV: Evade the system of counterweights and the division of powers

When the judgment of the Court of Justice of the European Union arrived declaring the illegality of the Polish Supreme Court reform, the judges that the executive had forced to retire would no longer return to the courts. In a similar vein, the Brookings Institute asserts that Poland and Hungary deceive their own national courts by ignoring the rulings of their own Constitutional Courts or declaring them null.

Paradoxically, Hungary and Poland, having liberated themselves so explicitly from their post-Soviet yoke, use the same techniques from the Soviet manual to consolidate power whilst claiming to represent the nativist renaissance of national identity. The establishment of loyalty networks echoes the late Soviet institutional and judicial bureaucracy, rather than the modern bureaucracy and apolitical courts in of European liberal democracies.

We have the equivocal and idealistic notion that democracy and constitutional liberalism are interchangeable terms that come to mean the same thing.

This notion could not be further from the truth. The concept of democracy, as it is conceived by certain leaders, presupposes the minimum conditions of holding elections and a certain degree of civil and economic liberties. However, constitutional liberalism in this day guarantees the pursuit of tangible equality and effective implementation of Human Rights. As Fareed Zakaria reflects, “democracy without constitutional liberalism is not simply inadequate, but dangerous, bringing with it the erosion of liberty, the abuse of power, ethnic divisions, and even war”.

The anatomy of illiberal states reflects that it is imperative to bind the conditionality of the quality of democracy within the European Union. This democratic conditionality appears explicitly in the Copenhagen Criteria of the European Union, but the rise of modern autocracies reflects that the EU needs a greater sanctioning power against the undermining of the rule of law – which is undermining the very foundations of the European Union. The era of soft power has died and the EU needs a wall of contention to confront tyranny: linking the quality of democracy to the reception of structural funds of the European Union establishes an irrefutable condition, even for modern autocrats.