Illiberalism in some CEE states

Against the background of our research on illiberal constitutionalism, and the emerging literature on illiberalism as a phenomenon and based on the recent formal and informal constitutional changes and related jurisprudence mainly in Hungary and Poland, this paper argues that one of the characteristics of illiberalization, which potentially could lead to illiberal constitutionalism in an EU Member State, is that it does not start with a ready-to-use blueprint. This design needs time to be developed, through abusive (illiberal) practices, which at a certain point is not only a practice anymore but ends up with a formal or informal illiberal constitution. Beyond the already detected features of illiberal constitutionalism, another critical characteristic of the emerging illiberal constitutional design and illiberal ideational content of the illiberalism is that the pre-illiberal remodeling applied (more) liberal approach to human rights and nationalism has been reinterpreted.

The dynamics of a political project in Slovenia is the reverse of what we see in the currently backsliding CEE countries. Rather than seeking a profound change in the society, the defence of the status quo, under the guise of stability, predictability and order, is the main policy. It is combined with the subtle reproduction of this elite through the monopolized education system and the all-encompassing welfare state. The latter, instead of alleviating the socio-economic hardship, has instead been used to benefit the existing kleptocratic allies and to recruit new ones. In a nearly complete isolation from international media and/or institutional attention, all this has taken place and resulted in the institutionally undernourished system of the rule of law and democratic governance, which has been marked by an implosion of the political space, incessant populism and growing political radicalization in favour of illiberal democracy.

Slovakia is often omitted from studies of illiberalism in Central Europe, which tend to discuss Hungary and Poland and sometimes consider Slovakia as a consolidated democracy with no illiberal tendencies. To address this gap, we investigate whether illiberalism is present in the Slovak Constitution and its interpretation. By studying the Constitution with its twenty amendments, and the case-law of the Constitutional Court, we identify several illiberal features: those that excessively restrict fundamental rights (e.g. the definition of marriage, and the limits on minority rights), those that facilitate the power of unconstrained majority will (e.g. the support towards unbound constitution-making power via referenda) and those that restrict space for deliberation (e.g. accelerated process of constitutional change or the dominance of party lists in general elections). We conclude by discussing how these features might be explained by elites’ (pragmatic or ideological) preferences.

Recent developments around the world reveal the double-edged capacity of constitutional concepts and the possibility of their abuse leading to illiberalism. Many scholars see a bad faith or abusive intention of the ruling actors as the defining element of illiberal engagement with constitutional law. Yet, bad faith is an elusive concept, hard to detect persuasively since it is an internal category focusing on the ruler‘s state of mind. I argue that comparative constitutional studies lack a practicable methodology of detecting bad faith intent. Accordingly, I propose shifting the focus from intent to effects of the legal measures in question. For that purpose, I introduce the test of foreseeable effects which is designed for early detection of illiberal measures potentially leading to democratic decay. I explain the stages of the test and demonstrate them on examples from Central and Eastern Europe.