WEBINAR 8: HUNGARY & POLAND - The Year 2020: Lessons Learned from the Hungarian and Polish Management of the COVID-19 Crisis and Beyond

Tímea DRINÓCZI & Agnieszka BIEŃ-KACAŁA

23 November 2020

Hungary and Poland no longer embrace liberal constitutionalism and liberal democracy. The populist autocrat leaders of both states, while keeping all the benefits, push the limits of substantive constitutional democracy and that stemming from membership of the European Union (EU) and the Council of Europe (CoE). “Pushing the limits” is a political and legal game, comprising a cynical approach to criticism and the combination or different variations of backing off: taking one step back, followed by two steps forward, in advancing the illiberal system; adopting cosmetic changes; reaching the same result from a different angle; planning on wearing down critical voices from different institutions, rendering them unable to keep pace with some minor but important and no less questionable changes.

As a result, when these institutions have finally been able to reflect on these changes, many years have already passed and/or political aims been achieved. It has been no different in 2020, even as new possibilities have opened. This year, in the context of “pushing the limits”, nothing has changed, but the deterioration has worsened, even if neither Poland nor Hungary has reached the point of descending into full authoritarianism. It is so, even if, at the beginning of the COVID crisis, many, with good reason, worried about that happening. It is precisely this persistence in the “pushing the limits game” that shows the stability of illiberal constitutionalism.

In this post, we briefly review the most remarkable examples emerging before and during 2020 that can best characterize the mechanism of “pushing the limits” and best illustrate the cynicism, and the individual and combined effects of the above-mentioned components of this “game”.

Pushing the Limits before 2020

One might recall the controversies surrounding, e.g., the Fourth Amendment to the Fundamental Law (FL), as the most prominent Hungarian example of an abusive and thus, doctrinally speaking, unconstitutional constitutional amendment (which, eg, constitutionalised rules that were already declared unconstitutional by the Constitutional Court). After concerns had been raised by the Venice Commission, the government introduced the Fifth Amendment, making some slightly more than cosmetic changes (e.g., on religious freedom and churches), and repealed the criticized constitutional provisions (e.g., on the judiciary). The fight against migration and the defence of “Christian Europe” were not only the focal point of populist rhetoric, but also appeared in the law.

In 2015, Hungary opposed the European Council Decision on the relocation of third-country nationals, from Italy and Greece, based on a predetermined scheme, which required the states where refugee applicants are relocated to examine the application for international protection. It resulted in a decision from the Court of Justice of the European Union (CJEU), which upheld the validity of the Council Decision, leading to the government’s proposing an amendment that became the Seventh Amendment to the FL (2018). This introduced the notion of Hungarian ‘constitutional identity’, which can be used to prevent the implementation of any future European legislation the ruling political power dislikes. On the other hand, other aspects of the migration policy, in the light of the initiated infringement procedure, have been corrected, for example regarding the translation of documents. The European Court of Human Rights (ECtHR) condemned Hungary for its treatment of refugees, e.g., for misinterpreting what a safe third country means (2019). The Hungarian Minister of Justice opined that this judgment favored the government’s position, making its border control legitimate. Therefore, no actions should be criticized, including the inadequacy and controversies emerging concerning the detention centers.

As the Polish Constitution has remained formally unchanged, the ruling Law and Justice party (PiS in the Polish acronym) has used legislative reforms on the judiciary and individual pieces of legislation for remodelling. Disciplinary procedures have been initiated against judges because of their decisions. Criticism by scholars regarding changes to the criminal law have been deemed “false statements” or “lies”, and the authorities have announced charges against such scholars. These proceedings have since been called off due to popular discontent, but not the civil and criminal defamation cases against Professor Sadurski. The infamous Polish defamation law, which created a criminal offense for stating that the Polish nation or state was in any way responsible for Nazi crimes, was in effect for only four months. The Sejm dropped the penal part of this Act due to international criticism. It was never applied.

The Polish and Hungarian judicial reforms seem to be a never-ending saga, featuring all the components of the “game”. In both states, many of the components of the heavily criticised reforms were put forward under the guise of advancements, such as fighting against corruption in Poland or addressing social issues in both countries (e.g. retirement age), implementing constitutional changes (Hungary), or reforming the structure of the judiciary (Poland). But in reality, more usually than not they have compromised judicial independence. Political power has, generally, stubbornly insisted on these reforms until their political cost has become too great. This is what happened with the highly criticized Hungarian administrative judiciary, which first was postponed then given up. Sometimes, a different angle is taken to reach the same political goal. For instance, the de facto situation generated by early retirement in Hungary (namely, that judges were removed from their positions) has not substantially changed after the decision of the CJEU and the subsequent legislation of the Hungarian government (judges were reinstated to different positions much later).

The Polish government reacted slightly differently to the decision of the CJEU (2018). The response to the interim decision was the urgent adoption of another law on the Supreme Court that partially reversed the effects of the reform as far as the retirement rules were concerned. Nevertheless, it affected neither the composition nor the power of the National Council of Judges. The situation has been aggravated in 2020, mainly due to the CJEU’s decision on the preliminary ruling question about the independence of the Polish judiciary (2019): 2020 left the Supreme Court divided on whether to comply with this decision. The political sphere, quite worryingly, keeps pushing the reform, and, for that, they have received support from the Constitutional Tribunal, which itself has been brought under greater political control.

Pushing the Limits in 2020

COVID meant new possibilities for pushing the limits. It was feared that the Hungarian constitutional state of emergency would not be terminated and that the government would seize even more power and misuse it. The constitutional emergency was, however, terminated and replaced with a less stringent, statute-based emergency, as a result of which the criticized governmental decrees were withdrawn. The new statute-based emergency, which can last for six months and can be extended, is declared and terminated by the government. The regulating Act lays down the subject matters for which governmental decrees may be issued. Even if it limits the room for manoeuvre, the Parliament is still not involved in decision-making on the emergency; not even a theoretical possibility for oversight is granted. Nevertheless, since 2010, due to the constitutional majority of the government within Parliament, talking about any meaningful practice of oversight is futile; besides, the government has a record of not ending statute-based emergencies. The advent of autumn has shown that the government does not intend to introduce more severe restrictions, mainly because of the economic implications.

In Poland, even before COVID-19 hit the country, it was announced that the presidential election was to be held, due to constitutional regulation, in May 2020. After March 2020, when the emergency was introduced, and with scheduled presidential elections looming, the governing majority wanted to elect a president as soon as possible, trying to create a favourable environment for President Andrzej Duda to stay in office. According to Jarosław Kaczyński, successful crisis management depended upon Duda’s winning this election. The government introduced restrictions because of the pandemic, but the constitutionality of some of them, such as the total ban on assemblies, could rightfully be doubted. Besides, it made the electoral campaign purely illusory, which also violated electoral rights.

Legislative drafts pushing the election amidst the crisis also raised the issue of unconstitutionality, and eventually they were dropped. We might recall the discriminatory proposal on remote voting (by post) for those in quarantine and aged above 60 – who are predominantly PiS voters. Another draft law, issued just a few days before the original election day, proposed an all-postal vote, which raised concerns about the secrecy of voting and the possible exclusion of those living abroad. A constitutional amendment that proposed to increase the mandate of the current President by an additional two years was also put forward. At this point, Poland was very close to crossing the border into authoritarianism, but the governing majority, based on political agreement within the coalition, eventually postponed the election. Finally, the presidential election was held in June and July 2020, in accordance with another newly passed statute, which, taking the circumstances of the pandemic into consideration, proved to be much closer to the constitutional rules and international standards.

During the constitutional emergency in Hungary, a new crime on spreading “false information” during an emergency was constructed (March 2020). The media reported cases of the arrest of social media users who created and shared “false news”. Some of them have been charged, others released as the prosecutor’s office concluded that no criminal offense had been committed. Concerns were raised, rightfully, about the potential effect of the new provision on the freedom of speech and media. The case was referred to the packed Constitutional Court, which did not embarrass the legislative power by annulling the new crime. By setting a constitutional requirement for the application and interpretation of this crime, however, it changed the content of the original provision of the Criminal Code. The result, in practice, is the complete opposite of what the law-maker intended. There is no sign of this decision’s being addressed at a political level.

In April 2020, the CJEU found Hungary and Poland, and the Czech Republic, in violation of EU law because they refused to comply with the temporary mechanism for the relocation of applicants for international protection. The legal responses are still to be seen, but the Hungarian constitutional law has already been “immunized against migrants” by the constitutional identity clause. The CJEU delivered other, unsurprising decisions as well. In March, it ruled that it is not compatible with the EU law if an asylum request is declared inadmissible because the applicant arrives in Hungary via a country that is incorrectly listed as a safe third country. In May, it stated that the transit zones in certain cases mean an unlawful deprivation of liberty. The government declared that it would close the transit zones, which is a kind of “compliance” with the ruling, which did not demand it. On the other hand, the method of initiating an asylum procedure was changed, which raises new concerns in connection to the very essence of asylum. Now, without valid documents issued by the Hungarian authority, asylum seekers cannot enter into Hungary but have to submit “a letter of intent” at the Embassy abroad. The Embassy will transfer this letter of intent to the immigration authority, which will examine it and conduct an online interview with the applicant, who is requested to present himself or herself at the premises of the Embassy.  

In Poland, the binding nature of the (interim) decisions of the CJEU has been challenged, even more seriously than pre-2020, not only in political communications but in legal procedures as well. In the case Commission v Poland on the disciplinary procedure against judges and the lack of impartiality of the disciplinary chamber, an interim measure was issued (April 2020) ordering the suspension of the operation of the disciplinary chamber of the Supreme Court in this regard.  The packed disciplinary chamber has referred a question of law to the Constitutional Tribunal about the conformity of the EU Treaty with the Constitution, on the ground that the EU does not have the power to decide on matters concerning the domestic judicial system. The packed disciplinary chamber is still operating. Right now, there seem to be two options: if the usual patterns are followed, Poland will be pushing the envelope until the CJEU delivers its final decision and will then back off; or the Polish government will continue its judicial reform with a favourable decision of the Constitutional Tribunal and push the country towards authoritarianism even faster.

Concluding Remarks

The “pushing the limits game” thus indicates the stability of illiberal constitutionalism and indicates the weakening influence of the EU and Coe. We have also observed a paradox: even though the system does not exclude improvement (but makes it quite unlikely), it rather features accelerated deterioration towards authoritarianism, which is, however, slowed down by the “pushing the limits” game discussed above.

Tímea Drinóczi is a Professor of constitutional law at the Faculty of Law, University of Pécs, Hungary. She served as a Professor at the Kenyatta University School of Law, Nairobi, Kenya, and will be a Visiting Professor at the Federal University of Minas Gerais School of Law, Brazil,  in the coming academic years. She conducts researches in constitutional changes, constitutional identity and legislative studies, and provide expertise to the OSCE ODIHR. Her new, co-edited book on the rule of law, common values and illiberal constitutionalism has just been published by Routledge.

Agnieszka Bień-Kacała is an Associate Professor of constitutional law at the Faculty of Law and Administration, Nicolaus Copernicus University in Toruń, Poland. She conducts researches in liberal and illiberal constitutionalism, constitutional changes, and provide expertise to the Marshal of the Polish Senate. Her new, co-edited book on the rule of law, common values and illiberal constitutionalism has just been published by Routledge.