Rule-of-law decay is global phenomenon, say academics

Comparative law researcher at the Central European University Viktor Kazai told a DCU Brexit Institute webinar this morning (11 October) that the EU has failed to recognise the gravity of rule-of-law irregularities in certain member states.

Backsliders use procedural irregularities to push through changes that are contrary to EU law, Kazai said.

In his research, Kazai has identified 16 different types of procedural irregularities in Hungary – including lack of preliminary consultation with state institutions before introducing legislative proposals in parliament, despite the clear statutory obligation to do so.

“You have absolutely no idea what triggered the government, other than political motives,” he said, because there is a lack of impact assessment prior to legislative reforms.

It is also common in the Hungarian parliament for legislative reforms, clearly prepared by the government, to be introduced as private members’ bills.

Statutory requirements

This means that statutory requirements do not apply.

Amendments to the constitution are submitted in parliament by individual members, the researcher said.

The government will also often introduce a bill, let the opposition, media and scholars criticise it, then completely revise the original bill before the final vote.

The governing majority will also use accelerated procedures to pass legislation with a simple majority.

“There is no good justification for that,” Kazai said.

These procedural irregularities are as much a part of the logic of the illiberal Hungarian regime as substantive violations of the rule of law, and cannot be disregarded, Kazai said.

Fundamental rights

Researcher Neils Kirst of DCU described ‘democratic decay’ in Hungary through the changing composition of the judiciary, and attacks on fundamental rights.

But EU rule of law is substantial, and not merely procedural, and encompasses fundamental rights, Kirst said.

Hungary’s ruling Fidesz party introduced a new constitution in 2011, after a landslide victory in 2010, and since then has implemented a semi-autocratic agenda, Kirst said.

Similar changes in Poland since 2015 have undermined judicial independence, with a disciplinary chamber to punish judges who do not comply.

In December 2017, the European Commission triggered article 7 in relation to Polish judicial reforms, because they removed the separation of powers between the executive and the judiciary.

In September 2018, the European Parliament voted to trigger article 7 disciplinary procedures against Hungary for undermining democratic rules.

Soft law

Political ‘soft-law’ tools used in response have not yielded any results, in part due to unanimity requirements, Kirst said.

Kirst’s comparative research has shown that rule-of-law backsliding is a global phenomenon, but the principle of judicial protection and sincere cooperation between member states are core to current Court of Justice jurisprudence.

“Research matters, because it contributes to academic discourse on democratic decay, and the legal questions and challenges for the rule-of-law crisis in the EU,” he added.

And there are rule-of-law crises in similar federal legal systems with subordinated states, Kirst said, referring to the Texas abortion controversy.

DCU PhD researcher Beatrice Monsiunskai said that, in Latvia, there was pushback from right-wing parties against the EU, because accession did not lead to expected prosperity, but economic ruin and emigration.

Fear

“A real fear is emerging that the population in Latvia is falling, and [there is] a fear that their culture will disappear eventually.

“The National Alliance Party in Latvia is promoting birth rates and giving cash handouts to families with larger amounts of children,” she said.

“It has a lot to do with how these countries feel very proud to be Latvian or Lithuanian, and they sometimes feel spoken down to by the EU in various economic policies.”

Lawyer and political scientist Jennifer Pullicino Orlando said that, while some statements could be dismissed as empty rhetoric, there was a popular fatigue with neo-liberalism.

“What if we unpick that fatigue,” she asked.

Teodora Miljojkovic of the Central European University, Budapest (CEU), told the webinar that judicial councils have been used to curtail judicial independence.

The DCU Brexit Institute webinar, entitled ‘Differentiated Governance in the Post-Crises EU’, continues tomorrow (12 October).