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Shaky Foundations

The rise of authoritarianism in the new EU countries has its seeds in their weak judiciaries.
by Martin Ehl 31 July 2012

What took place in Slovakia and Romania last week could not have served as a greater contrast of current developments in the post-communist countries of the European Union. Slovak lawmakers unanimously canceled their immunity from criminal prosecution. Romanian politicians, on the other hand, attempted to deepen the division of society, and before the 29 July referendum on the impeachment of the president decided to smear one another as much as possible. 

Former Prime Minister Vladimir Meciar’s Slovakia appeared in the 1990s in a study by Fareed Zakaria as an example of an “illiberal democracy,” meaning a country straddling the border between freedom and dictatorship. Although I am not naïve about the intentions of Slovakia’s current prime minister, Robert Fico, and the sponsor-shareholders of his Smer party, this ideological bedfellow of Romanian Prime Minister Victor Ponta behaves toward his country much more responsibly. It almost seems as if Ponta had someone translate Marian Lesko’s once-famous book, Meciar and Meciarism, about creating an authoritarian regime wrapped in a democratic shell. 

Before Ponta began with the controversial changes in parliament, the judiciary, and many state institutions, Hungary had played the role of pariah among the European Union countries from Slovakia to Romania. Hungarian Prime Minister Viktor Orban had somehow forgotten the Copenhagen criteria, which the post-communist states had to fulfill in the 1990s before they could even submit an application to join the EU. 

Among the policy criteria are institutional stability, democracy, and a legal state. And it’s precisely the status of the judiciary that has been a key weakness of post-communism. The poor state of the judiciary is a main reason why one of my Romanian acquaintances, a journalist and sociologist, has characterized the current situation in Romania as "the struggle of two mafia gangs over territory, which is unfortunately the Romanian state."

 

This fight began when the judicial system finally found the resolve this spring to pursue corruption cases against some of the big political fish, including former Prime Minister Adrian Nastase, Ponta’s political mentor. Then institutional instability followed, when the new Ponta government sought to amend part of the constitution and limit the powers of the Constitutional Court. In Romania, the strength of both camps is balanced. In Hungary, the situation – thanks to the two-thirds majority in parliament that Orban’s Fidesz party holds – is stable to the extreme. 

 

Most weakened is the rule of law. I’m not fooling myself about the state of the Slovak judicial system – Stefan Harabin, a remnant of that pure form of Meciarism, shared in its development as the longtime chairman of the Supreme Court and justice minister in Fico’s first government – but Hungary and Romania have taken things further. Orban wants to control the judiciary by establishing a new supervisory body and purging judges, something packaged as early retirement. 

The Romanian justice system dared to break old taboos and try for corruption even high-ranking politicians. Moreover, as a study by the nongovernmental Romanian Academic Society concludes, politicians of both camps have bent the constitution to the point where, in the event of a crisis like the current one, a clear constitutional solution does not exist – regardless of the outcome of the impeachment referendum.

Ponta has maneuvered himself into a situation where he must not only answer to the voters and party bosses – barons – but also to Brussels, which has a whip in Romania in the form of the technical-sounding Cooperation and Verification Mechanism. The CVM is essentially a legal instrument that allows the EU to keep a close watch on Romania, to judge whether it implements reforms well (in the field of justice and home affairs), and to punish the country as necessary. As early as mid-July, with Ponta in place for barely two months, the European Commission said in its regular assessment that the government effort to limit the powers of the Constitutional Court and the appointment of its own people to head various government institutions were contrary to democratic standards and were undermining the independence of the judiciary. In other words, Romania has been violating even pre-accession EU rules. 

The European Commission used financial pressure on Hungary by holding back the distribution of some funds. Orban reluctantly modified some of the government’s controversial moves. Besides money, Brussels has other leverage to use against the Romanians: entry into the Schengen zone, whose citizens enjoy free movement without border checks. For the ordinary person, being shut out is no abstract threat, but something concrete, which, for example, can complicate traveling for work to the rest of Europe during this economic crisis.

The crisis in Romania and the role of the legal state in that crisis – and the weakness of the judicial system in other post-communist countries, including the Czech Republic – show the shakiness of the pillars on which the entire political transformation from socialism to liberal democracy really stands. 

Martin Ehl is the foreign editor of the Czech daily Hospodarske noviny, where this column originally appeared. He tweets at @MartinCZV4EU.

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