[This post originally appeared on the Guardian website and is reproduced here with kind permission and thanks.]
Despite stern warnings from Brussels, the Hungarian government is set to vote today on what is already the fourth amendment to a new constitution which only came into force last year. Both the European Union and the Council of Europe have called for at least a careful reconsideration of some of the changes envisaged by rightwing prime minister Viktor Orbán, which overturn constitutional court rulings and curb judicial power. The European Commission’s president, José Manuel Barroso, has even hinted that they contravene EU law.
But it seems too little too late: not for the first time, Orbán is making political capital out of defying Brussels over the very founding principles of EU membership. It is time for the EU to rethink its approach to member state governments undermining the rule of law. Rather than only occasionally paying attention and having no credible sanctions to hand, the EU should create a proper democracy watchdog – separate from the commission – and rethink its legal toolkit.
The latest amendment to the Hungarian constitution includes laws that were invalidated by the country’s constitutional court – it has been widely criticised as an assault on democratic rights and liberties and a boost to Orbán’s executive power. His latest move is surprising, not least because after a number of previous clashes with both the EU and the European court of human rights in Strasbourg, the Hungarian government appeared to have become more conciliatory. Only recently the secretary general of the Council of Europe lauded the country for having changed its initially deeply illiberal media laws. Outside bodies, it seems, are only paying intermittent attention to what really happens inside European countries.
They also seem to be unaware that governments, once they have come under attack, try to learn how to outfox their critics. Romanian prime minister Victor Ponta, for instance, was told in no uncertain terms by Barroso last summer to stop fiddling with laws governing the impeachment of the country’s president, who happens to be Ponta’s major political opponent. Ponta seems to have learned from his neighbour to the west: rather than change single laws for blatantly partisan purposes, it is much more elegant to pass a new constitution that entrenches partisan preferences, in the way Orbán did in Hungary.
The EU should create an institution systematically to monitor democracy and the rule of law in all member states. As of now, Europe suffers from a kind of political attention deficit disorder: there is no European public sphere where the media would consistently report on developments in the smaller member states in particular; it is partly a matter of chance what individual commissioners get interested in; and the eurozone crisis is still consuming huge amounts of political capital and makes it tricky for a country like Germany to be seen as berating other governments not just on finances but also on the rule of law.
The watchdog might be called the Copenhagen Commission (a detailed proposal can be found here), as a reminder of the “Copenhagen criteria” which countries have to fulfil in order to start the accession process for the EU: democracy, the rule of law and the protection of human rights. Unlike a court, such an institution would not only deal with individual rights violations but also assess the political situation in a country more comprehensively (and it should really cover all countries – not single out some right away, because we complacently think that only those uncouth eastern Europeans ever have problems).
To be sure, the Copenhagen Commission should not be empowered to engage in constitutional micro-management, but only to trigger an alarm when a government starts having a track record of systematically undermining the rule of law – as is now the case with Hungary. If a government remains defiant, the EU commission should cut European funds; and if that does not get the message across, member states can decide to suspend a country’s voting rights in the European council – a possibility that already exists in EU law, but that is widely considered, in Barroso’s words, a “nuclear option”. Put simply: European elites consider it unusable.
But why not use the commission itself as the democracy watchdog, as four foreign ministers in a letter to Barroso suggested last week; why on earth another bureaucracy (with probably an incomprehensible acronym)? It is likely that the commission will become more politicised – and not by accident, but by design. Proposals to address the eurozone crisis routinely include ideas to elect its president directly or find other ways to make the political colours of the commission correspond visibly to the outcome of elections to the European parliament. All these might or might not be effective ways of increasing the EU’s legitimacy – but they make it less likely that the commission can act as an impartial guardian of European values.
Not just dyed-in-the-wool eurosceptics will complain that this gives the EU far too much power – but the complaint overlooks that Brussels is already acquiring new powers of oversight and intervention in national budgetary matters. These powers are likely here to stay. Should Brussels then just care about whether the numbers add up and turn a blind eye to political values such as liberty and democracy?
Europe needs to think the unthinkable in one other respect: a member state’s right to exit was trumpeted as a great achievement of the Lisbon treaty. But there is no corresponding right to expel. In theory, a military dictatorship could remain in the EU; presumably, it just could not vote in the European council. A coherent European order would either include a much stronger mandate for Brussels to intervene within member states or, if that is deemed politically undesirable, a right to force a country out. Hopefully that very spectre will make wayward governments think twice.