EU needs to rethink how it nurtures democracy

This year began with a report from US-based watchdog Freedom House claiming that democracy was facing its most serious crisis in decades. Seventy-one countries had suffered net declines in political rights and civil liberties during 2017, which saw the 12th consecutive annual decline in global freedom.

In Europe, the dismantling of the independence of the Hungarian and Polish judiciaries should be dominating out attention. It constitutes a clear attack on the foundations of democratic life. As we watch this re-engineering of constitutional democracy, we are also witnessing the partial unravelling of one of the most ambitious projects for the export of democracy in world history: the European Union accession process has few if any parallels in terms of its scale, the number of states affected and its depth and scope.

Hungary and Poland boast of “illiberal democracy”, while nonetheless still reaping in full the benefits of EU membership. Of particular concern is the way in which these countries are deforming the definition of democracy. According to illiberal democracy’s European spokesman-in-chief, Hungarian prime minister Viktor Orbán, democracy is distinct from the “liberal methods and principles of organizing a society”.

These methods and principles that Orban considers discardable were at the core of the accession process that led to the 2004 enlargement of the EU, with 10 new member states being admitted. Exporting democracy via the painstaking, technocratic transfer of the body of EU laws and principles that forms the EU acquis to candidate states was an extraordinary undertaking. This wasn’t the American model of promoting democracy abroad using aid and diplomacy. Rather, this was a transposition of democracy via deep legal integration with western European law, in order to strengthen, and even fundamentally transform, the constitutional and legal systems of the new member states.

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Western-style rule of law

The EU’s accession process – dull, bureaucratic, but nonetheless revolutionary – took years and involved the integration of a vast body of EU law into the legal systems of the formerly communist regimes, advancing both the principles and mechanics of democracy and the rule of law. In exchange for these extensive reforms came the much-coveted membership of the EU. But western-style rule of law was the price.

Pluralism, a cornerstone of western democracy, appears to be one of the principles illiberal democracy wishes to discard, and it is not only under threat in Hungary and Poland. Populism and Euroscepticism are to be found in both eastern and western Europe. We are only beginning to understand the underlying causes of the Brexit vote, and the rise of the far right elsewhere. What is evident, however, is that exporting democracy through a narrow rights-based approach to pluralism and rule of law values has its political limits in old and new member states alike.

There is a temptation to label any discomforting electoral outcome as a “crisis of democracy”. However, election results can often be an expression of other underlying dysfunctions in societies, touching on issues of sovereignty, the economy or national identity. Populist victories of the right or left, achieved via lawful electoral processes, can thus reflect democracy in action.

That the successful candidates are objectionable does not on its own a ‘crisis’ make. Democratic crisis lies rather in the dismantling of the fundamental structures of democracy, as is currently under way in Poland and Hungary, with measures being taken to corrode the independence of the judiciary and reconfigure the checks and balances that constrain the abuse of power. The impending relocation of the Central European University from Budapest to a new campus-in-exile in Vienna is another striking example of how civil society space is dwindling, and its voice stifled.

Benefit programme

The rise of “illiberal democracies” should compel us to think more about how we have nurtured democracy within our own jurisdictions. Coverage of the Law and Justice Party (PiS) in Poland often suggests that the sole reason for the government’s popularity is raging xenophobia and reactionary voters. The 2016 introduction by the PiS of a benefit programme, designed to eliminate extreme child poverty in Poland, is rarely given much attention. While the impact of the programme is still being assessed, initial simulations suggest a 76 per cent reduction in extreme child poverty. Such policies could easily generate electoral support in many corners of Europe, where, as the EU Fundamental Rights Agency reported this month, one in four children under 18 are at risk of poverty or social exclusion. In some member states, such as Romania, the figure is as high as one in two.

The social and economic ecosystem within which the democratic constitutional framework operates matters for its future health, and maybe even for its future survival. Our focus on pluralism and democracy might be more compelling to voters if poverty and inequality were addressed with the same vigour as civil and political rights.

Rosemary Byrne is associate professor of international law at Trinity College Dublin