Chapter 2: Current trends of democracy in Europe

“Democracy needs constant investment; it has never been achieved fully" - Roy Virah-Sawmy, Civitates


Democracy, as shows the quote, is more than just a term for describing how to organize a society, it also presents itself as an ideal for a better life, an utopia that we as a society must always strive towards. In years past there has been a perception that as Heather Grabbe put it, democracy was seen as unavoidable, and it marked the ultimate culmination of a process that all nations seek. Yet the past years have sadly proven this assumption to be misguided, countries that were previously held up as role models for successful democratic transition, have now been branded as so called ‘autocratizers’. The world has trended further away from democracy embracing more authoritarian governance, prompting institutes such as Freedom House to reference 2020 with the title ‘dropping the democratic façade. Research institutes such as Freedom House and Varieties of Democracy have raised the alarm concerning the democratic backsliding of these countries. Especially European Countries such as Hungary and Poland, that were earlier held up as examples for how to transition to a democratic society. Yet this trend of democratic backsliding has not been taking place in the traditional way we picture misuse of power. Within the EU, there has been no secret police enforcing draconian laws or a president ruling by decree, merely paying lip service to the idea of free and fair elections. This was illustrated most pointedly stated by Head of International IDEA's Europe Programme Sam van der:

“It is driven by populists who use the instruments of democracy, winning elections, having control over parliament, even using the constitution as it is to hollow out democratic institutions" In Hungary, the ruling party of Fidez have been able to seize greater control over society by introducing legislation that on the surface appears to prevent unwanted foreign interference in the country’s democratic system by creating new oversight commissions for media companies and for judicial appointments, yet removes the ability of either to act as effective checks on the government’s power and influence. Poland too has showcased prominently the risks of one party gaining too much power. They managed to leverage their election wins to issue judicial reforms that allowed for partisan control over the appointment and dismissal of judges. 2020 in particular helped to illustrate how European politicians have taken advantage of a crisis in order to leverage greater control over society. Covid has demonstrated how crises allow for state of emergencies and executive orders that put the guardrails of democracy to the test. We have seen how checks and balances in the form of judicial oversight and parliamentary inquires, such as Czech judges declaring the state of emergency in the country illegal, being pushed to the limit. The crisis has exasperated an existing trend and has allowed would-be authoritarians to seize greater control of key institutions under the cover of public safety. This phenomenon of democratic backsliding is not exclusive to countries such as those that are already famous for their democratic deficits. The Covid-19 epidemic has allowed for a decline in democracy in countries within western Europe, particularly Portugal and France. The Economist’s Democracy Index downgraded the two countries from their previous status of ‘full democracy’ to ‘flawed democracy’. This helps to illustrate the rule of law and the rights of individuals are at risk even in countries with respectively strong democratic institutions and traditions. This demonstrates that the modern threats to democracy are more nuanced than what may be initially thought. The epidemic has given governments a mandate to limit the freedoms of citizens, the task for us as civil society organizations is in how we are to approach these new challenges, how do we help to find a that concerns and threats to balance between public health and fundamental values that ultimately does not weaken our rights? This requires a new approach reflective of these changing and new dichotomies. This part will reflect on these threats towards democracies. Through contributions from our partners, we hope to show you not only the threats Europe faces to the fundamentals of our democracies, but also how we as civil society can turn the page. Only by realizing the true scale of the issues we face; can we collectively stand up against them. The contributions in this report will help to highlight the need for us as collective democratic societies to never falter in our efforts to promote democracy, if there is one lesson that has been gleaned from the past decade, it is that democracy must never be taken for granted so that we may never lose it.

"This phenomenon of democratic backsliding is not exclusive to countries such as those that are already famous for their democratic deficits"


METHODS OF SHRINKING CIVIC SPACE AND ITS CONSEQUENCES

- Actions undertaken as part of the democratic backsliding in Hungary and Poland

By Regitze Helene Rohlfing. PhD Fellow at Centre for European Politics (Department of Political Science) & iCourts (Faculty of Law), University of Copenhagen


Hungary and Poland have come to represent a depressive democratic trend. The Fidez government of Hungary and the Law & Justice government of Poland - countries who were both granted EU membership in 2004 based on their democratic reform efforts - have in the last 5-10 years actively taken a U-turn on democracy. This is increasingly referred to as democratic backsliding. Backsliding is affecting a country’s democracy on different levels but a growing concern is the consequences it has on civil society – the network of organisations and movements distinct from government and the private sector – and the civic space, which is shrinking with an alarming degree and speed. The civic space is the operational space where civil society works on shared values, interest and purposes to hold the state accountable, participate in politics, shape public debate and express needs and opinions.


In the following, I will outline the government’s employed methods that are causing the civic space to shrink. I describe the methods in a broader framework of democratic backsliding and discuss how the methods have not just led to a smaller space available but also to a change in the values and organisations occupying the space.


Democratic backsliding as a term has been increasingly used in the last couple of years.

It frames a trend of democratically elected governments using the constitutional and legal framework to dismantle the very same democratic system that put them in power. This is a global trend, but Hungary and Poland stand out in a European context. Backsliding is marked by an incremental process specifically targeting the ‘liberal element’ of democracy, in effect stripping it down to ‘nothing but elections’. In Hungary and Poland, the governments have especially targeted the judiciary and the part of civil society, which is promoting human rights and democracy, working for transparency and accountability and /or grounded on values opposite to the government. I call this the government-critical parts of civil society. With serious attacks on the judiciary and civil society, democracy is in risk of being hollowed out. In a liberal democracy, the judicial systems work as a check-and-balance against the executives and is in place to ensure people’s right, while civil society serves as a watchdog and a sphere where people can entertain those rights. While the judiciary is of paramount importance for the backsliding discussion, the focus is here on civil society, as it at times seems forgotten in the discussion. The backsliding has led to a limitation on civil society’s capacity to function and perform, meaning that the operational space for civil society is severely limited, in effect making it increasingly difficult for civil society to act against the backsliding actions of the governments. But how are the governments shrinking the operational space of civil society?


Methods of shrinking civic space vary and are highly context dependent, but it is possible to group them in two overall categories; formal and informal. Where formal methods are of legal, bureaucratic and regulatory form, informal methods take the form of more discursive means and a ‘chilling’ of certain freedoms incl. freedom of speech, association and peaceful assembly. Chilling of rights happens when coercion or threat of coercion, such as harassments or threat of lawsuits, cause individuals and organisations to hesitate in their exercise of rights for fear of repercussion. Where amended or new repressive laws are easily visible, it can be more difficult to detect informal methods, as they for instance targets individuals and thus requires these individuals to be vocal about it. For an overview of the methods, see table 1. In Hungary and Poland, civil society has experienced both formal and informal methods.


Table 1: Formal and informal methods of shrinking civic space. The methods are executed by the government or government-loyal actors, such as the media or GONGOs and PANGOs. The methods have different degrees of effect on the civic space dependent on the context and how they are employed.

Since 2012, funding in Hungary, from the National Cooperation Fund, has been allocated increasingly selectively, limiting funding to the government-critical parts of civil society. New laws, such as Act V of 2013 on the Civil Code and Act CLXXV of 2011 on the Right of Association, Non-profit Status and the Operation and Funding of Civil Society Organisations, have further created bureaucratic hurdles on e.g. registration procedures and the bar to claim ‘public benefit status’. Where these laws might seem to apply broadly to all of civil society, a new law from 2017 - The Law on the Transparency of Organizations Supported from Abroad - and the Anti-NGO bill from 2018 are concretely stigmatising the government-critical parts of civil society by introducing further bureaucratic obstacles and criminalizing organisations assisting refugees. This includes the introduction of a punitive tax of 25 pct. on funds received by organisations working on such matters. In addition, since 2013 the government-critical parts of civil society have increasingly witnessed smear campaigns and harassment, including unlawful surveillance and police raids. It is also argued that organisation such as the Civil Összefogás Fórum and Alapjogokért Központ have been. purposefully established to counter the work and narratives of the government-critical parts of civil society.


In Poland, increasing bureaucratic hurdles have been implemented since 2015 in order to exclude the government-critical parts of civil society from the process of drafting laws and from general cooperation with policy-makers. The 2016 dissolvement of The Council for Counteracting Racial Discrimination, Xenophobia and Related Intolerance and The Human Rights Protection Team has concretely limited organisations’ work on these matters. Funding possibilities for the government-critical parts of civil society have also been limited due to changes in the process of distributing funds. Further deterioration of funding has been put in place with the introduction of anti-terrorism and anti-money laundering regulations in 2017.


In addition, with the creation of the funding-distributing National Freedom Institute, it has become possible for state authorities to sweep powers over organisations. Since 2016, there has also been an increased criminalisation of anti-government protests and the 2017 amendment to the Law on Assemblies effectively placed a ban on counter-demonstrations and made it possible to give preference to demonstrations organised by state or religious institutions. It is further feared that the 2018 amendment to the law on the National Remembrance Institute will be used against organisations who are voicing critical opinions about the government.


"With serious attacks on the judiciary and civil society, democracy is in risk of being hollowed out."

Like in Hungary, the government-critical parts of civil society has increasingly experienced harassment, unlawful surveillance and raids of offices as well as physical violence targeting individual members. Lastly, smear campaigns, such as the 2016 October smear campaign, have also increasingly attacked the government-critical parts of civil society. The outlined methods show that the governments are actively engaged in a shrinking strategy targeted the government-critical parts of civil society. Figure 1 further shows how the methods employed through the years in combination have caused the civic space to shrink, as indicated by Coppedge et.al’s degrees of repression. The consequences of this will be discussed in the following.

As figure 1 shows, Hungary and Poland has gone from almost no repression to increasing repression of the civic space in the last 10 years.

This is a consequence of the methods outlined in the previous section. But the civic space has not just become more scarce, it has also changed in character. As discussed, most of the actions undertaken by the governments aim at the government-critical parts of civil society. As a result, many organisations working against the governments and/or on human rights, democracy and transparency issues have met fierce opposition, in some instances resulting in organisations ceasing to operate entirely. In addition, the governments’ funding and support of government-friendly organisations, so-called GONGOs or PANGOs, means that an increasingly bigger proportion of the Hungarian and Polish civil space is occupied by organisations loyal to the values of the governments. In consequence, the civic space is moving from representing traditional pro-democratic and right-based norms to more conservative and illiberal values.


This changed political topography has two overall effects. Firstly, by packing the civic space with GONGOs and PANGOs, the governments can make it appear like there is still a vibrant civil society at play, which can help thwarting off critique from e.g. the EU. Secondly, with the limited space available to the government-critical parts of civil society, there are few left to challenge the governments’ attacks on democracy. This is in many ways also the aim of shrinking the civic space. By getting rid of critical watchdogs and replacing them with loyal supports, it becomes possible for the governments to further dismantle the democracy. A shrinking civic space is therefore not just a consequence of democratic backsliding but is also enabling further backsliding. This is why it is important to extend support to the targeted parts of the Hungarian and Polish civil society.



THREATENED INTELLECTUALS AND THE CONSEQUENCES OF SHRINKING CIVIC SPACE

- Challenges and recommendations