Illiberal constitutionalism – a remodelled constitutionalism

by Tímea Drinóczi, Professor, University of Pécs, Faculty of Law, Hungary

 

This short note argues that the term illiberal constitutionalism shall be used when describing the constitutional system of a particular state in the process of backsliding from the state of constitutional democracy towards an authoritarian regime.[1] The main argument of those who oppose this term is that constitutionalism cannot be anything else but liberal. Neither Hungary nor Poland can nurture constitutionalism anymore because there are no effective constraints on public power.

 

  1. … is equivalent with neither (modern) authoritarianism and authoritarian constitutionalism

Ginsburg and Huq describe pure authoritarian regimes as countries in which there is a complete absence of effective political competition and power cannot be lost in elections.[2] Tóth contrasts authoritarian constitutional systems with illiberal democracies and liberal autocracies. He lists five defining elements of authoritarianism (ruler, façade constitution, hegemonic voting practices, shortfall of institutional check, and restricted individual and collective rights),[3] which partly coincide with the description of Puddington. Puddington defines modern authoritarianism as a system mimicking to be something else (especially less authoritarian) and warns that the modern authoritarian system sometimes reverts to the methods applied by their former counterparts.[4] Both of them seem to include Hungary and Poland under the label of (modern) authoritarianism.

Despite these classifications, and even though Hungary has recently been labeled as partly free by the Freedom House, the democratic degeneration of the system has not reached the extent of that of Turkey or Russia, the two countries commonly mentioned together. It is understood by Frankenberg who views authoritarianism as a wide range of autocratic practices that add up to regimes of governance and describes Hungary’s regime, the Orbanism, as a ‘temptation of authoritarianism’.[5] Along this line, quantitatively, neither Hungary nor Poland is in as bad shape as Turkey or Russia but, admittedly, they are doing worse than their European counterparts. Having a look at the WJP Rule of Law Index, we can detect some distinctive differences between them, on the one hand, and Russia and Turkey, on the other hand.

According to the WJP Rule of Law indexes (Table 1),[6] the overall score of Hungary and Poland has been decreasing from 2015,[7] but never reaches a score which is below 0.5, while that of Russia and Turkey have stably stayed within the range of 0.42 and 0.47. The overall score for Hungary is firmly decreasing from 0.58 to 0.53, while for Poland it is the same but within the range of 0.72 (2015) and 0.66 (2019). Steady decrease can be seen in the case of Hungary and Poland, while Russia is scoring around 0.4 and reaches 0.45 in 2019. Turkey produced a backsliding from 0.37 (2015) to 0.32 (2019). In the region, Hungary, with its score changes from 0.49 (2015) to 0.41 (2019), was ranked 23 out of 24 for three years (2015-2018) and fall back to the last position in 2019. It is to be noted that it scored 0.63 in 2012-2013. Poland fell back 0.2 points since 2015: in that year, it scored 0.77 and reached 0.58 by 2019. Simultaneously, its regional rank dropped from the 15th to the 18th place.

 

Table 1 WJP Rule of Law Index Summary table

  2015 2016 2017–2018 2019
Overall score Constraints Overall score Constraints Overall score Constraints Overall score Constraints
Hungary 0.58 0.49 0.57 0.46 0.55 0.44 0.53 0.41
Poland 0.71 0.77 0.71 0.68 0.67 0.61 0.66 0.58
Russia 0.47 0.39 0.45 0.4 0.47 0.39 0.47 0.45
Turkey 0.46 0.37 0.43 0.32 0.42 0.3 0.42 0.32
Singapore 0.81 0.76 0.82 0.75 0.8 0.7 0.8 0.69

The rating ranges from 0 (weaker adherence to the Rule of Law) to 1 (stronger adherence to the Rule of Law)

Source: author based on the website of the WJP

 

On the other hand, Singapore, which features authoritarian constitutionalism, obviously performs better than Hungary at the WJP Rule of Law Indexes; but, according to the EIU Democracy Index and the reports of Freedom House (Table 2), it does not do the same in other fields. The reason is that in authoritarian constitutionalism, liberal freedoms are protected at an intermediate level, elections are reasonably free and fair, and there is a normative commitment to constraints on public power. Against this background, Mark Tushnet speculates that the ‘normative commitment to constraints on public power’, which he extracted from the ‘description of how constitutionalism operates in Singapore, might be a truly distinguishing characteristic of authoritarian constitutionalism’.[8] This claim is supported by the WJP Rule of Law Index as well: Singapore overall score is around 0.8, and it scores in the subcategory of constraints on government power between around 0.7 (with a range of 0.77 and 0.69), which makes it a better performer than Hungary (Table 1). If we have a look at the other indexes, measuring democracy and human rights, on the other hand, Hungary and Poland still performs better. According to the EIU Democracy Index (2006-2016), which designates countries as full democracies if they score between 8 and 10, Hungary and Poland are flawed democracies, Turkey has been a hybrid state, while Russia transformed from hybrid to authoritarian (2011), and Singapore has gradually upgraded from hybrid to flawed democracy (2014) In the measurement of Freedom House, Hungary and Poland score 70 and 84 respectively, while the aggregate scores of the other countries are: 20 (Russia), 31 (Turkey), 51 (Singapore); Hungary and Singapore is labeled as partly free, Poland is free, and the other two states are not considered to be free states.[9]

 

Table 2 Indexes – Summary table

  EIU Democracy Index Freedom House

2019

  2006–2016
(from–to)
Aggregate score
(…/100)
Political rights
1–7
(1=most Free,
7=least Free)
Civil liberties
1–7
(1=most Free,
7=least Free)

Freedom rating
1–7
(1=most Free,
7=least Free)
Hungary 7.53–6.72 70 3 3 3
Poland 7.3–6.83 84 2 2 2
Russia 5.02–3.24 28 7 6 6,5
Turkey 5.7–5.04 41 5 6 5,5
Singapore 5.89–6.38 85 4 4 4

Source: author

 

Qualitatively, Hungary and Poland accommodated (liberal) constitutionalism for a while, unlike for instance Singapore or Venezuela – other countries with which they are usually mentioned together.

Without going into details about how the party system looks like (e.g., in Singapore and Russia), how elections are manipulated not only by regulatory means (Russia and Turkey), how free speech is infringed by harassment and bringing criminal charges based on bogus allegations, and using violence (Singapore, Russia and Turkey),[10] it seems to be evident that there is not only a quantitative but a qualitative difference between Hungary and Poland, on the one hand, and Russia, Turkey, and even Singapore, on the other hand. Nevertheless, it is also true that the Singaporean type of ‘normative commitment to constraints on public power’ is, to a certain extent, missing in both Hungary and Poland.

Nevertheless, there is a weak but tacitly existing constitutional constraint on the public power, which is the EU law, even though it has partly failed: its value defense mechanisms have not worked so far. The mere existence of EU law and its admittedly flawed implementation at the legislative level but the everyday application by adjudication bodies may have influenced and kept away the illiberal politicians from leading their countries into authoritarianism even faster. Illiberal constitutionalism must respect, to the desirable extent, the EU law, which apparently functions as an internal and implied constraint. This type of constraint only exists within the EU. Thus, it follows that the new system in Hungary and Poland could be labeled neither (modern) authoritarian regime nor authoritarian constitutionalism.

 

  1. … or populist constitutionalism

Populist constitutionalism[11] is not considered to be a legal concept but mainly a sociological phenomenon. So as such, it is a sociological characteristic of the constitutional system, and it forms the sociological basis for either an illiberal or an authoritarian regime. Populism is a political program, movement, ideology or worldview, or a governing style. It is also viewed as a form of extreme majoritarianism, being democratic but not liberal democratic, a critique of elites and a claim to be the sole, authentic representative of a single, homogenous, authentic people. It could lead to authoritarianism.[12]

It just follows that ‘populist constitutionalism’ instead of describing a distinct form of constitutionalism, indicates a ‘populist approach to constitutionalism’ and constitutions.[13] The ideology and the governing style of the leader are in the core of ‘populist constitutionalism’ – this makes it a more sociological than a legal phenomenon. The populist attitude of rulers is a tool to gain popular support for them to govern and achieve their, either ‘bad’ or ‘good’, policy goals. Nevertheless, they still need to peacefully and with the support of the people transform the system through legal measures, such as by adopting a new constitution, and by introducing, e.g., retrograde abusive amendments and unconstitutional legislation, just as it happened in Poland and Hungary. It leads us to the investigation of other terms, such as abusive constitutionalism, abusive legalism, and autocratic legalism.

 

  1. …nor other adjectives of constitutionalism

Abusive constitutionalism cannot be regarded as a separate type of constitutionalism for two reasons. First, it simply means the use of mechanisms of constitutional change to erode the democratic order[14] and seems to be contrary to ‘the orthodox view of constitutionalism’ which, besides being a complex of liberal ideology and practice, requires effective constraints on public power.[15] Second, abusive constitutionalism is, among others, about the successful use of unconstitutional constitutional amendments – the constitution thus does not bear any constraint on the public power. If it is combined with a populist leader, the term ‘populist constitutionalism’ can also be criticized on this very account.

Both abusive legalism and autocratic legalism, similarly to abusive constitutionalism, refer to the use of law by autocratic leaders in a particular constitutional system. Abusive legalism features Singapore and Hong Kong where the ordinary law is used in a way that seems to be consistent with the formal and procedural aspects of the rule of law to frustrate the rule of law and consolidate power.[16] Autocratic legalism in Venezuela embodies the use, abuse and non-use of the law in service of the executive.[17] It is also used to describe how consolidated democracies are transforming into ‘autocratic constitutionalism’.[18]

All of these terms and their conceptualization offer a valuable contribution to the description of how illiberal constitutionalism or degradation to an authoritarian system (Venezuela) has been achieved, but say little what the created systems are about.

 

  1. … but …

Hungary and Poland stand out among states in democratic decay and are noticeably different from existing authoritarian regimes. This does not mean that no increasing authoritarian tendencies can be observed in both countries. What is argued here is that Hungary and Poland are not there yet, mainly because they are still members of the EU which, notwithstanding its failures, imposes particular political albeit rather weak legal constraints on the Hungarian and Polish political leaderships.[19]

 

[1] T Drinóczi and A Bień-Kacała, ‘Illiberal constitutionalism – the case of Hungary and Poland’, German Law Journal (2019, forthcoming)

[2] T Ginsburg and AZ Huq, How to save constitutional democracy? (The University of Chicago Press, Chicago and London, 2018) 22-23.

[3] GA Tóth, ‘Authoritarianism’, Max Planck Encyclopedia of Comparative Constitutional Law, February 2017. G Halmai, ’Populism, authoritarianism, and constitutionalism’, 20 German Law Journal (2019); GA Tóth, ’’Illiberal rule of law? Changing features of Hungarian constitutionalism’, In M Adams et al., eds, Constitutionalism and the Rule of Law (Cambridge, 2017).

[4] A Puddington, ‘Breaking down democracy: global strategies, and methods of modern authoritarians’, https://freedomhouse.org/sites/default/files/June2017_FH_Report_Breaking_Down_Democracy.pdf June 2017.

[5] G Frankenberg , ‘Authoritarian constitutionalism: coming to terms with modernity’s nightmares’, in H Alviar and G Frankenberg, eds, Authoritarian constitutionalism (Edward Elgar 2019) 3, 18-24, 36.

[6] See directly at https://worldjusticeproject.org/our-work.

[7] I have chosen 2015 as a baseline because the reports are more comparable from 2015 despite the fact that they include more and more countries to be measured: it increased from 102 (2015) to 126 (2019) while in the years of 2016-2018 the number of the studied countries was 113.

[8] M Tushnet, ‘Authoritarian constitutionalism’, Harvard Public Law Working Papers No 13-47 (2013) 72.

[9] https://freedomhouse.org/report/countries-world-freedom-2019

[10] https://freedomhouse.org/report/freedom-world/2019/singapore, https://freedomhouse.org/report/freedom-world/2019/turkey, https://freedomhouse.org/report/freedom-world/2019/russia

[11] See e.g., JW Müller, ‘Populism and constitutionalism’, in C Rovira Kaltwasser, et al, eds, The Oxford Handbook on Populism (Oxford 2017); P Blokker, ‘Populist Constitutionalism, Popular Engagement, and Constitutional Resistance’, https://reconnect-europe.eu/blog/blokker-populist-constitutionalism/, 7 February 2019.

[12] https://www.democratic-decay.org/index, entries: populism, authoritarianism.

[13] See e.g., Blokker, above, Müller, above. D Landau, ‘Populist constitutions’, 85 The University of Chicago Law Review (2018) 521.

[14] Landau, Abusive constitutionalism, above; T Drinóczi, ’Constitutional politics in contemporary Hungary’, 1 ICL Journal (2016) 63-98.

[15] https://plato.stanford.edu/archives/spr2018/entries/constitutionalism/; https://www.britannica.com/topic/constitutionalism

[16] A Cheung, ‘”For my enemies, the law”: abusive legalism’, Candidacy paper, JSD Program, NYU School of Law, 15 January 2018.

[17] J Corrales, ‘The authoritarian resurgence: autocratic legalism in Venezuela’, 26 Journal of Democracy (2015) 38-43.

[18] KL Scheppele, ‘Autocratic legalism’, 85 The University of Chicago Law Review (2018).

[19] T Drinóczi, ‘The European Rule of Law and illiberal legality in illiberal constitutionalism: the case of Hungary’, MTA LWP 2019/16, https://jog.tk.mta.hu/uploads/files/2019_16_Drinoczi.pdf

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