2 August, 2024 | Wojciech Burek, Rita Hornok, Natasza Styczyńska
Rule of law backsliding during the pandemic – the cases of Hungary and Poland
The Covid-19 pandemic posed a novel and unprecedented stress test for liberal democracies already grappling with substantial disruptions, in addition to pressure on constitutionalism. Some of the restrictions commonly introduced to prevent the spread of the Coronavirus raised serious legal questions even in democratic states with high levels of compliance with the rule of law and human rights standards. In this context, the political and legal situation in Hungary and Poland was unique, as both countries had shown democratic backsliding and autocratising tendencies before the pandemic, and their governments used the COVID-19 pandemic instrumentally from the beginning.
The REGROUP research paper “Rule of law backsliding during the pandemic – the cases of Hungary and Poland” explores how the pandemic-related emergency contributed to further rule of law backsliding in Hungary and Poland, by focusing on two emblematic issues: restrictions on access to information in Hungary, and the organisation of the presidential elections in Poland. Both examples have a few common denominators, i.e. the politicisation of the decision (or lack thereof) to introduce a state of emergency, lack of respect for state institutions, as well as the lack of response to critical voices coming from both the country and international institutions (EU institutions, Council of Europe, UN).
Pandemic Power Grabs: Rule of Law Challenges in Hungary and Poland
In Hungary, the parliament adopted the Enabling Act, which was utilised to introduce a “state of danger” and later a new “state of medical emergency”, allowing rule by decree powers to the government. While the act was following procedural requirements, it substantially reconfigured the original constitutional framework, leading to the removal of fundamental safeguards.
During the pandemic, the Fidesz government and related media attacked the opposition and independent media, who were continuously portrayed as hindering defence measures against the pandemic. Communication about the pandemic and respective decisions were not transparent. The government did not respond to independent media enquiries, nor did it engage in dialogue with civil society organisations. Moreover, it made access to public data more difficult, including data not related to the pandemic.
After the pandemic, while European countries returned to normal legal orders, in Hungary the special legal order (now due to the war in Ukraine) remained, and the country found itself in a state of permanent crisis. Governing by decrees became the default and erased any meaningful role for the parliament and the opposition.
On the other hand, Poland did not introduce a state of emergency during the pandemic. The government raised two arguments for its decision: the lack of a real need for a state of emergency, given the effectiveness of the government’s actions, and its reluctance to unduly restrict rights and freedoms. However, the opposition considered the non-introduction of a state of emergency as a politically motivated move to hold and secure the upcoming presidential election.
The political and legal events surrounding this election can be divided into two phases: 1) the (eventually abandoned) attempt to organise the presidential elections on their constitutional date; 2) the holding of the elections on an unconstitutional date. Serious doubts have been raised regarding the legislative process concerning the planned presidential elections, including chaotic last-minute changes, lack of justification for the new proposals, and instrumental treatment of the parliament. On the voters’ side, the situation not only brought about an obvious state of uncertainty due to the succession of changes in the organisation of the elections, but the proposed solutions were contrary to the principles of electoral law. Restrictions in place due to the pandemic, such as the ban of assembly, also had an impact on, among others, the right to protest (while religious meetings were exempt from the ban).
Due to pre-pandemic changes, the Constitutional Tribunal ceased to perform a control function, becoming an instrument in the hands of the executive power. This was paired with the biased, one-sided coverage of the electoral campaign in the public media, taken over by and subordinated to the government. Such circumstances favoured the incumbent president, hailing from the ruling party, who was seeking (and eventually, gained) re-election.
COVID-19 as a pretext to weaken democracy
The cases investigated demonstrate that the success of illiberal policies depends on how much the liberal democratic system was weakened before the COVID-19 pandemic. Protection of public health became a convenient argument for changing the political system, limiting civil liberties (especially the right to information or assembly) and the independence of the media. The implementation of these restrictions would not have been possible were it not for the earlier erosion of the democratic system. The independence of at least part of the state institutions, functioning civil society, independent media, and the pressure of transnational organisations can influence the speed and scope of illiberal reforms even in times of emergency.
This article highlights some of the findings in the REGROUP paper “Rule of law backsliding during the pandemic – the cases of Hungary and Poland”.
