—Tímea Drinóczi, Visiting Professor, Federal University of Minas Gerais, Brazil; Professor at the University of Pécs.
In the last couple of years, formerly well-respected liberal constitutional courts have been transformed into illiberal constitutional courts. We should learn lessons from Poland and Hungary, especially in Europe.
Illiberal constitutional courts intentionally undermine the democratic minimum core but only indirectly – they attack the ethos of liberal democratic constitutionalism. They are already more interested in maintaining the illiberal order, in which they believe – mainly because they have already been packed. Illiberal constitutional courts could be detected, beyond their composition, if we also study the procedures, which tend to be abusively initiated or discretionally invented and reinvented, and the content of their decisions whose quality of reasoning starts to become low, and which shows a pattern of serving either one or two masters. We should not be misguided by their initial or occasional pretense of being the defender of fundamental rights or engaging in a meaningful dialogue with other courts. Instead, we should be alarmed by the first signs of changes, starting with their packing and use of abusive judicial review. Otherwise, the abusiveness of their constitutional review, from the perspective of the ethos of liberal constitutionalism, will become the norm and the standard of the illiberal regime, and we will be facing, most probably unpreventable, the dangers illiberal constitutional courts mean.
Pay attention to the changes concerning the procedure
In Poland, opposition and civil society has started to avoid submitting petitions to the Constitutional Tribunal (CT) because they perceive it as not impartial and independent. However, many petitions come from the parliamentarians having affiliations to PiS – as happened in the abortion case and the one concerning the ombudsman’s mandate.
The Hungarian Constitutional Court (CC) rather comes up with “new ways” of proceeding with a case. In 2018, it started to suspend politically sensitive cases, such as that of the Central European University and Act on foreign-funded NGOs, claiming that it must wait until the case is decided before the CJEU. It argues that it wants to improve its procedure and create a better dialogue with the CJEU. However, it was not its position earlier in, e.g., the cases of the retirement of judges (2012) – when the need for dialogue also existed. Moreover, the CC did not suspend its procedure but upheld the constitutionality of the Stop Soros law, even though it was before the CJEU at that time.
Pay attention to the changes concerning the content of the judgments – informal constitutional changes by interpretation
The CT fosters illiberal informal constitutional changes through interpretation. Think about the judiciary reform and the relationship between the EU and Poland. On 14 July 2021, the CT refashioned the previous constitutional dynamic between the EU law and domestic law: it ruled that an interim measure of the CJEU was contrary to the Constitution 1997. After 2015, the CT has not only legitimized abusive informal constitutional amendments of the legislative and executive power, but proactively prepared a legal environment for reforms, thus worked jointly with PiS to stabilize their new regime.
The Hungarian government has a constitutional majority in the parliament; it does not need to informally change the constitution when they can do it formally. One informal constitutional amendment happened, though, when Fidesz lost the constitutional majority for a short time. The CC helped them out by inventing the term constitutional identity, which could be used against EU actions, such as the then actual concern about the “migrant quotas”, and can be further abused against, e.g., the LGBTQI community.
Pay attention to the possible pretenses
A constitutional court serves two masters when it keeps the appearance of being a constitutional court respecting individual rights and commitments stemming from the EU and international human rights obligations, but, at the same time, it delivers deferential decisions that never annul laws deemed dear to the government. A tool for that is setting constitutional requirements, which is, in the majority of the cases, meaningless.
The construction of the constitutional identity of Hungary by the CC (2016), in that particular historical and political moment, was an abusive understanding of national sovereignty in the context of European integration. Yet, the CC argued that the constitutional dialogue is vital in the relationship between the EU and Hungary.
In the decision on the false statements during emergencies, the CC held that the restriction of freedom of speech during emergencies is constitutional (being loyal to the government’s illiberal vision). Nevertheless, it set a constitutional requirement making the actual implementation of the criminal provision impossible (serving the liberal vision of individual rights).
Pay attention to the first signs of disregarding previously important values
When a constitutional court serves only one “master”, it shows a complete disregard of maintaining even this above “façade”. It occurs in the Polish understanding of their national sovereignty vis-a-vis EU law, originating in CT decisions in 2020 and apparently culminating in rulings against the supremacy of the EU law and vis-a-vis international human rights obligations. The CT can even be the deciding authority in socially important and divisive matters instead of the legislative power, which happened in the abortion case.
Pay attention to the substandard quality of the reasoning
When assessing the constitutionality of the privatization of a Hungarian university, the CC does not use the constitution, but the legal environment created, allegedly, based on the constitution as a benchmark (and sets a meaningless constitutional requirement). In the mentioned case of the freedom of speech and the restriction of Freedom of Information during an emergency, the CC did not make any effort to interpret the provisions of the constitution on the limitation of fundamental rights during the emergency. It did not explain the relationship between these rules and the constitution’s general limitation clause, neither it wondered about the function of a particular fundamental right. When deciding on the abortion case, the CT did not balance between rights involved but completely disregarded the rights of the woman.
Why should we be alarmed?
Illiberal constitutional courts have actively contributed to building and illiberal informal constitution in Poland vis-à-vis the Constitution and entrenching a more and more illiberal content of the Fundamental Law in Hungary by, e.g., allowing controversial constitutional amendments. They maintain illiberal constitutionalism while pushing the system towards authoritarianism by the following techniques: the packed courts filled with loyalists help out the legislative and executive power (frustrating democratic processes); disregarding human rights obligations, including those related to judicial independence, by using and abusing the narrative of national sovereignty in Poland and constitutional identity argument in Hungary.
As both Hungary and Poland are the members states of the EU and the CoE, they pose a danger to the common European values, peaceful co-existence, and mutual trust that should exist in a value community. An even more concerning danger is that these decisions not only encapsulate and entrench illiberal vision and attitude towards human rights, but could be capable of ignite a political, and not only a “legal”, exit from the EU. The most problematic issue is that the constitutionality of every future reform step initiated by new, democratic, and not-illiberal governments will be assessed by these courts.
Suggested Citation: Tímea Drinóczi, How we can detect illiberal constitutional courts and why we should be alarmed – Hungarian and Polish examples, Int’l J. Const. L. Blog, July 21, 2021, http://www.iconnectblog.com/2021/07/how-we-can-detect-illiberal-constitutional-courts-and-why-we-should-be-alarmed—hungarian-and-polish-examples/