Opinion Piece by Irina von Wiese
Now, rather than after the end of the Covid-19 crisis, is the time for pro-democratic parties to act. Paralysed by the scale of the current threat, we are tempted to stick our heads in the sand and focus on survival. This is exactly what others are hoping for. They are seizing the moment, building on today’s fear to instil tomorrow’s obedience. If we don’t take care, much of the damage done to basic rights, democracy and the rule of law will be irreversible.
As in all times of uncertainty and fear, approval ratings across the world are up for political leaders of all stripes. National and international coordination of relief requires leadership, and power to provide such leadership resides, mostly, with national governments. Opposition politicians and activists are told to shut up and support such efforts, and ‘state of emergency’ rules are enacted to overcome the slowness of democratic decision making.
Authoritarian leaders have moved quickly, using this opportunity to dismantle the last remnants of democracy. Within days of the outbreak of the pandemic, Hungarian PM Victor Orban outmanoeuvred the parliamentary opposition and enacted a law which makes the State of Emergency (declared earlier) indefinite and gives him powers to rule by decree. Having done its duty, Parliament was promptly suspended and all elections postponed until after the state of emergency – in other words, indefinitely.
The Chance Orban had been Waiting For
Over the course of the last ten years, Hungary has morphed from a (reasonably) liberal democracy into an authoritarian regime where history textbooks are re-written, disinformation spread to discredit opposition politicians and where infringements on press freedom crept from intimidation to unabashed threats. Ultra-nationalist and racist imagery and language vilify migrants and refugees, and paid thugs target critics. One of my former MEP-colleagues, a young opposition politician from Budapest, told me her boyfriend was mugged at regular intervals – always two days after she had tweeted something critical of Orban. Last year’s local elections produced a glimmer of hope, with ruling party Fidesz losing Budapest and some major cities in an increasingly polarised society. Young urban elites, it seemed, were finally waking up.
And then an unexpected turn of events presented Orban with his long awaited opportunity. The Covid-19 pandemic has provided the perfect cover to complete his work and silence the opposition for good. Within weeks of the outbreak, Hungary has turned into a fully fledged dictatorship in law as well as spirit.
Poland is not far behind. True to its name, the governing Law and Justice party started by dismantling Poland’s independent judiciary. This cleared the way for a more subtle crackdown on non-conformists. LGBT+ groups and members of minority religions became free-for-all targets in a society that was not, before the current regime, exceptionally bigoted, or racist. PM Mateusz Marowiecki’s government made effective use of technology to plant seeds of hatred, including some disturbing anti-Semitic ‘deep fakes’. In June last year, it enacted a law which makes it a crime to ascribe any responsibility for Nazi-era atrocities committed on Polish soil, to Poland.
So far, the firing of some overtly critical health workers aside, Poland has resisted the temptation to step up de-democratisation during the pandemic. But its previous deployment of manipulative technology indicates that here, as in other places, geo-tagging and data mining to curb the spread of a virus could be extended, seamlessly, to stifle the dissemination of subversive ideas.
Because these two countries back each other in the EU Council, each vetoing measures against the other, nothing much has happened to halt this process. Paralysed by its own statutes, the EU has stood by and watched.
Article 7 of the Treaty of the European Union allows for the suspension of rights (but not of membership itself) for Member States who persistently breach the EU’s founding values, such as democracy and the rule of law. A qualified majority in the Council suffices to set the process in motion, but after various warnings, a unanimous vote (excluding the Member State in question) is required to determine that the breach is still occurring (I.e. ‘persistent’). Only after this determination can rights be suspended.
Proceedings against Hungary were instigated by the European Parliament as long ago as June 2015, but despite various votes confirming and extending the scope of the proceedings, nothing but verbal warnings ensued.
Similarly, Poland become subject of Article 7 proceedings in 2017 – accused, rightly, of removing the separation of powers between the executive and the judiciary. Any sanctions against Poland were vetoed by Hungary.
As for the European Parliament, which does have a majority voting system and a large pro-democratic majority, it has not even managed to suspend Fidesz representatives (although legally, there are good arguments that it could). Although the first choice of Hungarian Commissioner was successfully blocked over a legal issue, the second choice – a soft spoken career diplomat, still very much toeing the official Fidesz line – was approved. Hungary, a Member State gone rogue, retains the right to appoint a Commissioner, and there are only so many times the Parliament can say No. In fact,
both Hungary and Poland retain all membership rights, including substantial EU financial support.
While conciliatory measures are difficult, punitive ones are largely unfeasible. Permanent expulsion is impossible. There is simply no mechanism in any of the EU Treaties to kick out a Member State.
After almost 5 years, Orban and Morawiecki concluded that that they can continue to act with impunity.
‘Now is not the time’, liberal leaders say, ‘we will deal with it later’.
This is particularly true where Liberal and Liberal Democrat parties are in opposition. Crises are not a good time for opposition. Critical voices are drowned out by fear; common sense is buried under blanket justifications for blanket policies. ‘We need to pull together to defeat this virus’ – if you don’t, you are ignored at best, ostracised and blamed for disaster, at worst.
But, as the Hungarian example shows, later might well be too late. Failure to act now may result in irreversible damage.
Democracy and the rule of law are fundamental principles of the European Union, enshrined in Article 2 of the 1957 Treaty. Where they are abolished, gradually or suddenly, the EU needs to have powers to expel Member States like any other club. The fact that it doesn’t is not only a structural flaw in its architecture, but a testament to the naive optimism of its founders. Economic interdependence and increasing legal integration, it was thought, would prevent any Member State from playing foul. Aspiring members undergo rigorous scrutiny, but no-one foresaw the possibility that an existing, fully vetted and approved member could go rogue.
Over the ensuing decades, the EU expanded, but its integration was never completed. Reluctant to hand over too much power, Member States retained the right of veto in the Council – a right to veto practically everything, including the safeguarding of the Union itself. Just as Orban outmanoeuvred the Hungarian Parliament, the EU outmanoeuvred itself.
Like no other shock to the system, the Covid-19 crisis has crystallised these issues. With his autocratic coup d’etat, Orban has finally forced EU leaders to take a position. Acting together, they could expel Hungary and deprive Poland, for the duration of the Article 7 proceedings, of its vote in the Council. It is legally tricky, but politically feasible and even if not strictly speaking compliant with the letter of the Treaty, the much better option if the aim is to uphold its spirit. The alternative is to emerge from the clouds of the pandemic with the EU damaged, toothless, and permanently discredited.
And to set a dangerous precedent for the rest of the world. Would-be dictators elsewhere are watching closely to see what EU Member States get away with. Authoritarian leaders are rolling out emergency legislation with sweeping rights to control freedom of movement, personal data and access to vital services. Basic human rights are suspended in the name of ‘saving lives’, without much public or parliamentary scrutiny, and often without time limits. This, rather than the virus itself, could prove to be the bigger killer.
Liberal Democracies are under attack in many parts of the world. In Europe, it is crunch time. The pandemic will pass, but the loss of basic human rights for many will not. Liberal Democrat values
are based on freedom, democracy and the rule of law, and it for us to speak up, and act, when they are under threat.
Irina von Wiese was a Liberal Democrat Member of the European Parliament (MEP) for London between 2019 and the United Kingdom’s withdrawal from the EU. She is a candidate for the London Assembly elections in 2021.