Editor’s Note: This piece is part of Just Security’s Assessing Emergency Powers During #COVID-19 series, which aims to highlight legal and civil society voices from across the globe, assessing the specific legal consequences of declared and de facto emergencies. Previous contributions have covered Italy, Hungary, Brazil, Poland, the United Kingdom, Nigeria, Mexico (see here), and Colombia.
The COVID-19 pandemic poses the greatest challenge for governance institutions and political leaders in recent history. A common response to this challenge, even amongst the world’s liberal democracies, has been an increase of executive authority in order to expedite effective responses to this crisis. For many of the European Union’s member states, this is simply a temporary measure for extraordinary times. Unfortunately, this cannot be said for all of them.
In the same way that this pandemic has presented a nearly unprecedented challenge for democratic governance, it has also exacerbated the fissures within the EU, the world’s supposed bastion of liberal democratic values. Hungarian Prime Minister Viktor Orbán was recently granted incredibly broad executive powers through a law passed by the Hungarian parliament.
In addition to allowing Orbán to rule by decree, this law also allows for the delay of any future elections until the crisis is over and imposes a draconian five-year prison sentence for anyone promoting a narrative about the pandemic that conflicts with the government’s. Perhaps the most distressing aspect of all is that this law will be in place for an indefinite period of time, leaving it up to Orbán’s discretion as to when (or if) he should relinquish his new powers.
This, of course, is the latest in a litany of instances where Orbán’s government has pushed to transform Hungary into a “captured” state. Ever since his political party, Fidesz, swept Hungary’s parliamentary elections in 2010, Orbán has made himself the epicenter of a vast and corrupt patronage network in which he has consolidated control over the country’s major political, economic, and media institutions. The exploitation of the COVID-19 crisis to expand his own power appears to be the capstone to these efforts.
While not having received as much attention, Polish President Andrzej Duda and his Law and Justice Party (PiS) are also in the process of exploiting this public health crisis for their own anti-democratic ends. With less than two weeks to go until Poland’s presidential election, PiS has refused calls to delay the election and instead is promoting an electoral reform law that will have citizens vote by mail-in ballots.
While ostensibly a sound alternative to in-person voting, this law would be implemented in such a way that grants two electoral advantages to Duda: It would increase the voter turnout for elderly voters who comprise PiS’ core constituency while simultaneously potentially disenfranchising Polish citizens who live abroad. This latter group tends to be younger and/or well-educated, two demographics that are not electorally friendly toward PiS.
Like Fidesz in Hungary, PiS has sought to remake Polish political society in its own image since gaining an outright majority in the Sejm (lower house of parliament) in 2015 by dismantling the country’s democratic institutions and undermining the rule of law. The judiciary in particular has been a target of the Polish government as it remains the last major bulwark of democracy in the country.
One of the most salient examples of this phenomenon is the recently passed “muzzle law,” which makes it illegal for judges to openly criticize the government’s judicial appointments and reforms. Part of the fallout of this law’s passage has been the Polish Minister of Justice questioning the legitimacy of Poland’s Supreme Court when it ruled against PiS’ attempts to make blatantly partisan judicial appointments. Replacing the country’s non-partisan judges with its own sycophants has arguably been the linchpin of PiS’ authoritarian program thus far.
The Hungarian and Polish governments’ exploitation of the COVID-19 pandemic for their own ends poses a significant challenge for the EU with consequences that will be present long after the virus subsides. The EU should model its response to this governance challenge after best practice for combatting the pandemic: In the same way that someone who is infected with the virus should be physically quarantined, the EU should quarantine its autocratic member states, both politically and financially.
Earlier this month, members from 13 European political parties who are all members of the European People’s Party (EPP) wrote a letter calling for the expulsion of Fidesz from their center-right bloc. This letter was instigated by Orbán’s power grab amidst the pandemic and stated that the law’s measures were a “clear violation of the founding principles of liberal democracy and European values.” This is hardly the first time that the EPP has clashed with the Orbán regime, but is rather the latest in a long series of disputes over rule of law issues.
The EPP should take Orbán’s latest attempt at usurping Hungary’s democratic institutions as the last straw, heed the advice of over a dozen of its member parties, and expel his party from the bloc. For too long, the EPP has provided Orbán with a veneer of legitimacy in exchange for Fidesz’s votes in the European Parliament. This arrangement, however, has gravely damaged the EPP’s, and by extension the EU’s, credibility as a defender of democratic values.
A common excuse given by members of the EPP for their acquiescence to Orbán’s autocratic behavior is that if they do not placate him, then he will withdraw Fidesz from the EPP and join a Eurosceptic bloc such as the European Conservatives and Reformists (ECR), of which PiS is already a member. However, even if this came to pass, it would be better for the EPP to lose some votes in the European Parliament than for Orbán to be able to continue to associate himself with legitimate democrats.
In addition to this political isolation, the EU could threaten the Hungarian and Polish regimes’ financial interests in an effort to influence their anti-democratic behavior. Orbán is notorious for his use of EU funds to prop up allies within his patronage network and buy support for his regime. In a similar vein, Poland is heavily reliant on EU structural and investment funds, having received 86 billion euros in the 2014-2020 financial period, more than any other EU member state.
There are already those within the EU that believe that the Union’s funds should be tied to greater conditionality on rule of law matters, such as Vera Jourova, the European Commission Vice President for Values and Transparency. Such a scheme could be conducted through the European Public Prosecutor’s Office (EPPO), which was established in 2017 for the purpose of investigating corrupt uses of EU funds. There is good reason to believe that this idea is also politically feasible, as both France and Germany have expressed that they no longer want to pay into a system that is exploited by those who do not abide by EU values.
While the COVID-19 pandemic is being rightfully treated as primarily a public health crisis, its impacts on democratic governance and the rule of law should not be ignored. In the same way that it is every person’s responsibility to work to prevent the spread of the virus, so it is every liberal democratic government’s responsibility to work to prevent the spread of autocracy.
Image: Hungary’s Prime Minister Viktor Orban leaves following a meeting during the second day of a special European Council summit in Brussels on February 21, 2020 held to discuss the next long-term budget of the EU. Photo by Aris Oikonomou/AFP via Getty Images