Lessons from the Turkish, Hungarian, and Polish Experiences
In a 1997 essay for Foreign Affairs, journalist and political scientist Fareed Zakaria coined a term that would haunt liberal democracy to this day. Titled “The Rise of Illiberal Democracy,” it aimed at a concise and necessary explanation of the dilemma facing jurists and political scientists since the Berlin Wall’s concrete gave way to the tide of history (1). Analyzing the world around him, post-communist states beset with endemic corruption, kleptocracy, and authoritarianism abounded. Sure, they had new constitutions, but none held a candle to liberal democracy. With this knowledge, Zakaria concluded: “Western liberal democracy might prove to be not the final destination on the democratic road, but just one of the many possible exits.” (2)
In 2023, it seems prophetic. Now, liberal democracy’s cousin, “illiberal democracy” seems to rear its head all over the globe, many of its advocates even proudly claiming it as their own. In a 2015 speech, Hungarian Premier Viktor Orban, affirmed his “abandonment [of] liberal methods and principles of organizing society, as well as the liberal way to look at the world”; that “a large governing party will emerge in the center of the political stage [that] will be able to formulate national policy, not through constant debates, but through a natural representation of interests.”(3) He remained democratic, he claimed. After all, elections are regularly held in Hungary. However, his democracy was proudly illiberal.
In constitutional law and political science, illiberal democracy has a fairly specific definition. If liberal democratic constitutionalism is to be defined by three hallmark traits, “(I) The separation of powers, with real checks on the exercise of power and, thus, securing the real independence of the judiciary; (II) Recognition of certain minimum rights of the individuals, who can seek protection from the courts in case of encroachment; (III) Fair, periodic and competitive elections,”(4) illiberal democratic government aims to counter them.
Where liberal democratic constitutionalism preserves separation of powers, illiberal democracy’s form of government disregards it. Where liberal democracies profess belief in minimum rights protected by an independent judiciary, illiberal democracies subordinate them to political will. And where liberal democratic constitutionalism stands for fair and competitive elections, illiberal democracies seek to stack the cards in the government’s favor.(5)
In J.O. Frosini’s terms (6), illiberal democracy’s form of state, albeit somewhat democratic, emphasizes the state’s authority on civil society and the individual. Its form of government(7), meanwhile, openly disregards checks and balances in favor of unrestricted majoritarianism. True, illiberal democracies give governing majorities more power, but they cannot be considered democracy’s enhanced form. They are designed for a small demographic majority to gain disproportionate electoral power through an anointed, personalized interlocutor(8) without having to build a policy consensus with his opponents, consequently making their ability to resist harder. The following legal analysis of illiberal democracy in three paradigmatic countries (Turkey, Hungary, and Poland) aims to use Frosini’s definition of liberal constitutionalism to prove that this, far from being an enhanced democracy more responsive to the will of the majority, is potentially authoritarian and undermines the principles of contestation which is crucial in identifying a functioning democracy.
In any illiberal democracy, the principle of separation of powers and checks and balances are constantly in danger. According to jurist Giammaria Milani in a 2019 article for the Fondazione Magna Carta, illiberal democracies are created, more often than not, by charismatic politicians appealing to a unique ability, almost Fuhrerprinzip, to understand the plight of their people(9). This, according to Milani, inevitably results in a reduction in the power of the legislature to formulate policy and exercise political sovereignty, with “the Parliament deprived of its representative function, while the Executive would assume a position of absolute primacy within the system of government.”(10) Examples abound of this phenomenon. In Turkey, where President Recep Tayyip Erdogan is considered an illiberal democrat par excellence, rhetoric condemning separation of powers is commonplace and explicit, in 2012 even lamenting that “the obstacle we (his government) face is this thing called separation of powers.”(11) At the time, his power remained limited due to Turkey’s parliamentary system, but after a 2017 referendum on transitioning to presidentialism passed narrowly(12), new powers were given “to the president, including the right to issue decrees, propose the national budget, appoint cabinet ministers and high-level bureaucrats without a confidence vote from parliament, and appoint more than half the members of the high courts.”(13) Effectively, Erdogan could now rule by decree.(14) Similar changes are to be seen under Hungary’s Viktor Orban, who after the institution of a new constitution driven by his government in 2011, ensured that the new Basic Law of Hungary guarantees his parliamentary majority and creates “a general weakening of Parliament, affected by a series of more or less incisive changes in its composition, functions and internal organization.” (15) Poland is similarly illiberal, although less personalist, with “a series of ordinary statutes, parliamentary resolutions and practices adopted since 2015 breaching or forcing the meaning of the country’s Constitution, thus threatening in particular the system of constitutional guarantees.”(16) These legislative changes have allowed Poland’s parliament explicit control over much of the judicial system and any previously impartial checks on the government’s actions, backed up by the ruling party’s (“Law and Justice,” or PiS) uncontested parliamentary majority. This effectively strips the Polish opposition of any method of holding the government accountable or ensuring that it maintains a legitimate constitutional mandate. Such dangerous concentration of power risks personalizing government and reducing the independence and impartiality of neutral state institutions, creating a “constitution of power”(17) and lessening the control of citizens and certain branches of government over the ruler.
With regards to Frosini’s second quality of liberal constitutionalism, the recognition of minimum rights and an independent judiciary has been particularly under attack in such countries as well. Following the 2017 Constitutional Referendum, for example, Erdogan “has gradually entrenched its own political hegemony, extending partisan control over the judiciary and the bureaucracy, arresting journalists and intimidating dissenters in the press and academia, [and] threatening businesses with retaliation if they fund opposition parties.”(18) With presidential control over a previously independent judiciary established in full force, an assault on the Turkish people’s civil liberties could begin, further eroding government accountability or the degree of contestation in elections. As expected, Orban’s new Hungarian Constitution seriously limited the role of an independent judiciary, reducing the opposition’s “influence on the selection of the Constitutional judges. Indeed, the parliamentary commission in charge of drawing the list of candidates is now composed proportionally to the representation of the political forces in the Assembly (art. 24), thus enabling a supermajority to “capture” the Court.”(19) Such heavy handed policies have had devastating consequences for the Hungarian government’s accountability to its people and institutional norms, resulting in egregious rates of corruption and embezzlement documented in detail by the European Research Center for Anti-Corruption and State-Building in 2013.(20) However, it is in Poland where the most breathtaking European perversion of judicial independence is taking place. Law and Justice, the country’s ruling party, has been very clearly aiming at complete subordination of the judiciary to its Parliament, the Sejm.(21) It has engaged in shameless court packing in 2017(22), and new legislation “gives the justice minister the discretion to appoint, dismiss, and “discipline” presidents of ordinary courts. The reforms bring the National Council of the Judiciary, a formerly self-governing body, under full control of the parliament. A new law forces nearly 40 percent of the Supreme Court’s judges into early retirement and creates a retroactive mechanism for “extraordinary review” of final judgments.”(23) This has resulted in a serious ability to limit the opposition’s avenues of appeal and drastically eroded the country’s human rights situation, effectively politicizing courts and ensuring that political opponents cannot find solace in the judiciary, undermining Frosini’s second definition of liberal constitutionalism.
Ultimately, with separation of powers as well as judicial independence flaunted, the avenues for combating electoral freedom and contestation are open to the illiberal leaders of Turkey, Hungary, and Poland. This is where democratic erosion truly begins to be felt, as democracy’s defining features are usurped by unfair institutional advantages. Following an alleged coup in 2016, Turkey’s Erdogan instituted a state of emergency which limited the ability of opposition parties to campaign fairly in the country’s 2018 constitution and engaged in widespread media censorship.(24) Furthermore, allegations of potential ballot stuffing in Eastern Turkey went uninvestigated and unquestioned, the judiciary impotent and unable to restrain government power.(25) Similar phenomena are present in Poland, where PiS obtains a decisive electoral advantage through its domination of the press and direct control of the Electoral Commission, which was made subordinate to Parliament, as now a majority of its members are appointed by bodies directly controlled by the ruling party.(26) Orban’s Hungarian policies closely mirror those of his Polish counterparts, with his Fidesz party now similarly in control of Electoral Commission appointments and management.(27) This has been accompanied by a concerted effort to restrict independent media and the ability of opposition narratives to gain traction in civil society, with even internet taxation proposed.(28) With such conflicts of interest and institutional advantages, the ability for elections to truly feature free and fair levels of contestation is grossly undermined, thus guaranteeing government longevity and virtual impunity.
However, many analysts argue that none of these features make illiberal democracies inherently undemocratic (29), merely that they effectively empower a majority to act in the real interests of the people. After all, PiS, Orban, and Erdogan were all elected and obtained decisive majorities. This is true, but it is not majoritarianism per se which refutes illiberal democracy as its liberal cousin’s enhanced form. After all, many liberal democracies such as the United Kingdom currently operate with majoritarian governments. It is, rather, the fact that in illiberal democracies, governing majorities believe that their mandate allows them to tamper with liberal constitutionalism itself, radically altering the forms of state and government. In Turkey, Hungary, and Poland, illiberal governments have tirelessly worked to undermine all three of Frosini’s aspects of liberal constitutionalism. (30) Those guarantees, regarding any concentration of power with suspicion, served to decentralize government power and preserve the strict separation between state power and civil society which are the hallmarks of the liberal form of state. (31) Be they on the limitation of presidential power, judicial independence, or electoral integrity, they all ensure that the method of choosing government features high levels of contestation, something which notable political scientists like Adam Przeworski view as crucial to democratic governance. (32)
Without liberal constitutional counterweights to power concentration, contestation and governmental accountability are under threat. As laws are increasingly formulated to clearly advantage one party and governments lose accountability, the day may come when illiberal democracies rule without pretense of democracy at all. Thus, illiberal democracy can be emphatically refuted as an enhanced form of democratic government, more responsive to the will of the majority. Rather, it uses a majority to tighten its grip on state institutions, which soon are where its real strength lies. As it solidifies its power, the possibility of authoritarianism looms ever larger, even 26 years after Zakaria’s prophetic article.