Populism, liberal democracy, and the rule
of law in Central and Eastern Europe
Bojan Bugaric
Faculty of Law, University of Ljubljana, Poljanski nasip 2, 1000 Ljubljana, Slovenia
Available online 21 April 2008
Abstract
Populism is on the rise in Central and Eastern Europe (CEE). Persistent attacks on legal institutions
of liberal democracy represent the most troubling aspect of the rising populism in CEE.
The democracies in CEE are not about to collapse because of the rise of populism, yet the populist
challenge to liberal democracy has to be taken seriously. While there has been significant
progress in the development of ‘electoral democracy’ in the region, constitutional liberalism
and the rule of law still remain weak. Only strong, independent, and professional legal institutions
and respect for the rule of law can bring further consolidation of democracy in the region.
Ó 2008 Published by Elsevier Ltd on behalf of The Regents of the University of California.
Keywords: Populism; Liberal democracy; Rule of law; Electoral democracy; Legal institutions; Constitutional
liberalism
‘‘The first essential step on the road to total domination is to kill the juridical
person in man’’. (Arendt, 1968: 447).
Populism is on the rise in Central and Eastern Europe (CEE). Persistent attacks on
the legal institutions of liberal democracy represent the most troubling aspect of the
rising populism in CEE. While there has been much discussion of the different political
aspects of populism and its likely causes and consequences, there is surprisingly
little attention paid to populist disdain for the legal institutions of liberal democracy.
Communist and Post-Communist Studies 41 (2008) 191e203
Available online at www.sciencedirect.com
www.elsevier.com/locate/postcomstud
0967-067X/$ - see front matter Ó 2008 Published by Elsevier Ltd on behalf of The Regents of the University
of California.
doi:10.1016/j.postcomstud.2008.03.006
While democracy and liberalism are two strands of liberal democracy that are often
in tension, it is also true that in modern liberal democracies liberal ideals and democratic
procedures are interwoven and mutually supportive: democracy needs constitutional
liberalism to function well (Plattner, 1998). In other words, a strong and
independent judiciary, independent media, a politically neutral and professional civil
service, and independent anti-corruption commissions are crucial for further development
of democracy in the region. And yet, as argued by Tismaneanu (2007: 37),
‘‘political reform in all these post-communist societies has not gone far enough in
strengthening counter-majoritarian institutions that would diminish the threat of
new authoritarian experiments catering to powerful egalitarian-populist sentiments’’.
The key question is how serious a threat the populist attack on liberal democracy
poses for the stability and development of democracy in the region. Democracies in
CEE are not about to collapse because of the rise of populism. Nevertheless, the populist
challenge to liberal democracy has to be taken seriously. While there has been
major progress in the development of ‘electoral democracy’ in the region, constitutional
liberalism and rule of law still remain weak. It is of utmost importance that
CEE countries further reform and strengthen their legal institutions. Only strong, independent,
and professional legal institutions and respect for the rule of law can
bring further consolidation of democracy in the region.
Populism is an ideology or political movement that ‘‘considers society to be ultimately
separated into two homogeneous and antagonistic groups, ‘the pure people’
versus ‘the corrupt elite’, and which argues that politics should be an expression of
the volonte generale of the people’’ (Mudde, 2004: 543). Populism seeks to speak in
the name of the common people. Its distinctive arguments include an absolute prioritization
of plebiscitary democracy and a strong emphasis on anti-elitism. Populism
is hostile to elites, but at the same time it is vague and moralistic and as such easily
instrumentalized by almost any type of ideology, both left and right. An anti-corruption
policy as a ‘moral quest’ lies at the very forefront of its agenda. No less important
are its ‘organic’ conception of the people (‘nation’) and its disdain of the formal
‘intermediary’ institutions of liberal democracy.
As the Freedom House Study, Nations in Transit, 2007, indicates, populism and
anti-liberal trends have swept Central and Eastern Europe. Governments, political
parties, and political movements from Poland, Slovakia, Hungary, Romania, Bulgaria
and Slovenia to the Baltic states have declared that they represent the true voice
of the common people against the corrupt elites. Populist governments and parties
distrust all the traditional institutions of liberal democracy that stand between
them and the wishes of the people. Governments attack and publicly challenge
any verdict of the constitutional courts they do not like. Their disrespect and contempt
is not limited to courts and judges only. They have not hesitated in curtailing
the independence of mass media and the professionalism of civil service by replacing
the existing civil servants and journalists with unqualified but loyal newcomers. Government
distrust of liberal institutions is often accompanied by attacks on the
constitutionally-granted rights and freedoms of ethnic minorities, Roma communities,
homosexuals and all ‘other’ groups in society which fall outside the organic,
ethno-related and culturally conservative concept of the nation. Hate speech is
192 B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
becoming the lingua franca of the region. The region is characterized by a particularly
exclusive and violent form of xenophobic nationalism. All this is happening in the
heart of Europe, in member states of the European Union which, in Article 6 of
its Treaty, declares that it represents a family of countries founded on the principles
of liberty, democracy, respect for human rights and fundamental freedoms.
After the fall of the Berlin Wall and the collapse of communist regimes, many
CEE countries successfully managed a ‘return to Europe’. Three years ago, in
2004, they became fully-fledged member states of the European Union. For many
observers, the ‘return to Europe’ signaled the ultimate victory of democracy and
rule of law over the legacy of totalitarianism in these countries. As Jan Zielonka
(2006: 43) argues in his Europe as Empire, the new member states may not look exactly
like the old ones, but they nonetheless belong to the same broad category of
democratic and liberal states and societies.
In contrast to this optimistic view, history is not over and the rising populism in
CEE represents the principal challenge to liberal democracy. In one of the first essays
describing the rise of populism in CEE, Jacques Rupnik (2006) correctly pointed out
that populism is not anti-democratic. On the contrary, while it defends a ‘pure’, ‘direct’,
‘free’ democracy, it is against liberalism, that is, it opposes the rule of law,
which it perceives together with other institutions of liberal democracy as often ‘preventing’
the true voices of the people that express their deepest hopes and fears from
being heard directly, in their ‘purest’ form.
The aim of this article is to analyze how the current challenges posed by rising
populism are likely to affect further development of rule of law and constitutional
democracy in Central and Eastern Europe.
The constitutional courts of Hungary, Poland, Slovakia, Slovenia and Bulgaria
emerged over a relatively short period of time as one of the most influential forms
of political institution in the region. Their power to review the constitutionality of
statutes challenged the almost absolute supremacy the legislatures previously enjoyed
(Schwartz, 2000). It is no surprise then that populist governments soon identified
constitutional courts as one of the key ‘obstacles’ impeding the implementation
of their programs.
When the Polish Constitutional Tribunal in May 2007 invalidated several key sections
of the lustration law, the Prime Minister, Jaroslaw Kaczynski, unhappy with
the ruling, threatened the judges with the possibility of charges if they acted ‘improperly’
in their ruling. The lustration law (Michnik, 2007) has become a centerpiece of
the right-wing Polish government’s witch-hunt against the uklad: a network of the
old Communist nomenclature, new business elites, political liberals, secret police informers,
and Russians, who alldaccording to the brothers Kaczynskidcontrol and
govern Polish society against the true interests and moral principles of the Polish
people. The lustration law required all journalists, politicians, lawyers, judges, school
principals born before 1972 to file an affidavit within two months stating whether
they had collaborated with the former Communist secret service. The court declared
several of its key provisions unconstitutional, violating various rights and freedoms
enshrined in the Polish Constitution. Before the Tribunal reached judgment, the government
attempted to discredit two of its judges claiming they were secret service
193B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
agents themselves. The Kaczynskis have attacked and publicly challenged any verdict
of the Tribunal they have not liked.
In Slovenia almost 20,000 people, one percent of the population, consisting
mainly of ‘non-Slovenes’, were unlawfully ‘erased’ from the register of permanent
residents because they failed to apply or obtain Slovene citizenship when Slovenia
in 1991 became a new independent state. As a consequence, they became ‘stateless’
people and many of them lost their jobs, health insurance, driving licenses, and passports,
and some were even deported from the country. They were physically present,
but legally they did not exist. The Slovene Constitutional Court ruled on two occasions,
in 1999 and 2003, that critical provisions of the Aliens Act, which regulated
the legal status of those who did not acquire Slovene citizenship, were unconstitutional
(Freedom House, 2007). Despite the two repeated rulings, the current center-right
government openly defies the decision of the Court. The Prime Minister,
Janez Jansa, president of the strongest party in the ruling coalition, SDS, did not hesitate
to attack the legitimacy of the court.
The Hungarian Constitutional Court, the most powerful court in the world
during the 1990s, as Kim Lane Scheppele (2003: 227) argued, ‘‘fell off the political
map altogether’’. After their nine-year terms ended, none of the old, activist, judges
were reappointed. Instead, the new government decided to appoint a whole new
court. The jurisprudence of the new court is more formalist and more deferential
to the majority in power. The court has decided few cases with political importance
so far.
The Slovak Constitutional Court, also one of the success stories of the 1990s, although
with a much weaker reputation in the fields of human rights and national
minorities, is currently under significant political pressure from Prime Minister Robert
Fico’s populist coalition. Three vacancies on the Court are expected to be filled
with politically loyal candidates. Furthermore, the Court’s work was limited
throughout 2006 because of its incomplete makeup. Also disappointing was the
Court’s decision on positive discrimination in 2005, where the Court declared any
positive discrimination to be unconstitutional (Dimitrova and Rhinard, 2005). The
primary aim of the law was to give special protection to the Roma minority in
Slovakia.
Needless to say, the role of courts in democratic society is always problematic.
Aggressive judicial activism inevitably raises the issue of counter-majoritarianism
and democratic accountability of independent institutions like courts. Tushnet’s
(2005) recent proposal to limit judicial review has reopened a theoretically important
debate in contemporary political theory. Tushnet’s work (Tushnet, 1999), dissecting
the role of the seemingly too powerful American judiciary, is always an important
reminder to those who uncritically endorse the power of ‘the least dangerous
branch’.
Nevertheless, the very different political context in Central and Eastern Europe
requires a different approach to the role of courts in society. As Sadurski (2001)
has argued, what is needed is a fact-sensitive theory of judicial review. And the facts
are very instructive here. The region has a weak or sometimes non-existent tradition
of protection of human rights, particularly the rights of minorities. Almost the entire
194 B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
region has a strong history of ethnic nationalism aimed at suppression rather than
accommodation of ethnic minorities, Roma, homosexuals, and Jews. As Ivan Berend
(2007) argues, nationalism in CEE has a particularly violent and exclusive nature
compared to nationalism in the West. The region has been devastated by many
horrors, wars, and other forms of violence: it has an exceptionally cruel and bloody
history. Central and Eastern Europe needs liberal democracy to tame such horrible
and violent excesses. Majoritarian rule therefore needs limitations which are, in liberal
democracy, imposed by independent political institutions and constitutionally
codified rights and freedoms. This is not to glorify the role of such institutions,
but only to stress their importance in the political reality of Central and Eastern
Europe.
The populist disdain and contempt for liberal institutions is not limited to constitutional
courts and judges. Equally troubling is their attitude toward a professional
civil service, independent mass media, and independent anti-corruption
commissions.
The politicization of civil service in Poland, Hungary, Slovenia, and Slovakia has
reached a critical point, leading Adam Michnik (2007) to declare the Polish civil service
corrupt. The Polish, Hungarian and Slovene government amended their civil
service laws to allow more political appointments in the civil service. In Poland,
the entire civil service is now under the direct control of the prime minister’s office,
special civil service examinations are being abolished so that politically loyal but unqualified
newcomers can replace existing civil servants (Davies, 2007; Seleny, 2007).
The Polish government replaced hundreds of board members of state enterprises
with their friends and cronies. In Slovenia, politicization reaches downwards toward
non-managerial ranks in the civil service. The joke has it that even a chauffer at the
ministry needs party approval. Hungary amended its civil service law to allow appointment
of 350 political civil servants, a corps of experts under the control of
the prime minister who owe their loyalty to him (Meyer-Sahling, 2006). Examples
of this spiraling process of continuous politicization can also be found in Slovakia
and Czech Republic.
The independence of the mass media, particularly of public radio and television,
has been curtailed by changes in media legislation, changes in personnel, and pressure
to control the content of what was broadcast and published. The governments
in Poland and Slovenia amended media laws so as to allow more direct political control
of media regulatory bodies. The new law in Poland made possible a massive
purge of journalists whose careers began during the Communist period (Michnik,
2007). Top management in public radio and TV was replaced by the journalists loyal
to right-wing governments in both countries. The governments went even further
and directly interfered by censoring particular news which criticized or ridiculed
the president or prime minister in both countries. Robert Fico, Prime Minister of
Slovakia, made a direct call to Slovak Television instructing their journalists how
to report a foreign visit he was making. Severe political pressure on Slovak Television
led to several top editors resigning. A vigorous campaign against journalists
who are, according to Fico, ‘‘undermining trust in the government’’, has culminated
in the drafting of a new media law. Its two basic ‘innovations’ are more direct
195B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
political control of the media regulator, and a new right of refutation that gives the
government the right to respond to all allegedly non-objective articles. If enacted, the
new law could easily turn the principle of editorial independence into an empty
phrase. It is particularly instructive that the Party of European Socialists which, in
an unprecedented decision, suspended Fico’s party (Smer-SD) membership in the alliance
of socialist parties in European Parliament for forming a coalition with a far
right party (Slota’s Slovak National Party), announced in their decision on whether
Smer-SD should remain suspended, that Fico’s attitude toward the media may influence
the PES decision on the subject (The Slovak Spectator, 2007). Party suspension
remains postponed indefinitely.
The Slovene and Slovak governments mounted a systematic campaign to abolish
the independent Commission for Prevention of Corruption in Slovenia, and the special
court and Office of the Special Attorney, set up to fight corruption in Slovakia,
just as they had became effective tools in combating corruption in both countries.
Paradoxically, while the rhetoric of both governments elevates the fight against corruption
to the top of their agenda, their campaign against independent commissions
show their discomfort with politically independent institutions.
Xenophobic nationalism in Central and Eastern Europe has, like a dangerous virus,
spread throughout the region. Its primary attributes are its tribal nature, which
links the nation with ethno-culture and kinship. Whereas in the West the state created
the nation, in CEE the nation had to create the state. The nation had to emerge
as a separate entity from other nations, which contributes to its exclusiveness. As
a consequence, the rights and freedoms of national minorities, Roma, homosexuals
and Jews, are often under attack.
Jan Slota and his Slovak Nationalist Party, a partner in the ruling Slovak coalition,
is probably the most extreme example of this development. Slota, an ultra-nationalist
and right-wing politician, leads the campaign of racist hate speech directed
against Hungarian and Roma minorities in Slovakia. In his outbursts of hatred and
xenophobia, he proposed sending a leader of the Hungarian minority to Mars ‘‘without
a return ticket.’’ He does not hide his sympathies for Father Tiso, a controversial
leader in the clerico-fascist Slovak government during the Second World War, who
helped to send more than 70,000 Jews to the Nazi concentration camps (Shepherd,
2006).
In Slovenia, the aforementioned ‘erased’ non-Slovenian citizens represent the
most troubling example of the violation of rights of minorities. The Slovene government
also ‘reinvented’ the doctrine of separate but equal. Roma children were
separated from other pupils and put in a separate class. According to the education
minister, this strategy should enhance their learning abilities. In another case,
after a violent riot, organized by their neighbors, a Roma family was moved by
the police from their house to another town. The minister of the Interior, confident
of his success, promised the exultant neighbors that the Roma family would
never return. After the Slovene Human Rights Ombudsman raised the issue with
the Council of Europe’s Human Rights Commissioner, the government accused
the Ombudsman of ‘‘denigrating the country’s name’’ and asking him to resign
(Wood, 2006).
196 B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
In Hungary, Victor Orban, the leader of the opposition FIDESZ party, unhappy
with electoral defeat, is engaged in an extra-parliamentary political struggle against
the ruling coalition of socialists (MSZP) and left-liberal alliance of free democrats
(SZDSZ). While there is no excuse for Prime Minister Gyurcsany’s politics of lies,
this hardly justifies the FIDESZ flirtation with the Hungarian far right parties and
movements which heavily borrow from neo-fascist and anti-Semitic ideology. The
Hungarian Guard, a paramilitary group wearing uniforms resembling Nazi
stormtroopers, was recently established in Budapest (Spiegel, 2007).
Lech Kaczynski, at that time still a mayor of Warsaw, banned an ‘equality parade’
for gays and lesbians, invoking his politics of restoring the ‘moral order’. Again
in Poland, Ewa Sowinska, a spokesperson for children’s rights, was about to investigate
whether the BBC show Teletubbies promotes a homosexual lifestyle. After being
widely ridiculed even from her own political camp, she announced that ‘‘a
leading sexologist’’ maintained that Tinky Winky has no negative effects on a child’s
psychology (BBC News, 2007). Vodin Siderov, leader of a far right movement ATTAKA
and a presidential candidate in Bulgaria, told the public that he hates Turks,
Gypsies and Jews (Rupnik, 2006). Gigi Becali, leader of the Romanian New Generation
Party, announced that if he wins the presidential elections in 2009 he will force
homosexuals into special ghettos (Evenimentul Zilei, 2007). Anti-Roma hate speech
is also present in the Czech Republic, which seemed so far to be largely immune to
the populist virus (Eurozine, 2007).
While certain examples of attacks on liberal institutions do not result in actual
curtailment of basic rights and freedoms, many cases do. Furthermore, there is an
intimate link between the strong liberal institutions and protection of those rights:
when liberal legal institutions are constantly attacked and disrespected, that seriously
undermines their capacity to protect human rights. As we have seen in the
case of constitutional courts and anti-corruption commissions, the attacks and the
politicization of appointment procedures have seriously weakened the independence
and vigor of those institutions.
Only three years after their triumphant ‘return to Europe’ in 2004, CEE countries
are confronted with the rise of populism and anti-liberal politics. The legal institutions
of liberal democracy in CEE differ from their West European counterparts.1
Under the facade of seemingly harmonized legal rules, transposed from various
EU directives and regulations, several cracks have appeared that expose the fragility
and uncertainty of development of legal institutions of liberal democracy in CEE.
This discrepancy between the form and the substance of liberal democracy in this
part of the world should not come as a surprise. Ivan Berend (1998), a leading historian
of the region, has argued that CEE is home to a continuing pattern of ‘‘forms
without substance’’, pointing to a series of unsuccessful attempts to emulate Western
European democratic institutions, often resulting in legal forms devoid of real
1
Another important element of liberal constitutionalism, separation of church and state, is formally recognized
in most of CEE constitutions. However, the implementation of these constitutional principles
leads to different national practices which are often in conflict with more established traditions of state
and church separation in West Europe (Kuhelj, 2007).
197B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
substance. All those who expected that a decade of ‘EU accession’ for CEE legal regimes
would lead to an irreversible break with the totalitarian past were simply
na€ıve. They forgot that institutions of liberal democracy cannot be created overnight.
It is not only that developing liberal democracy requires more time, it also depends
on continuous support and endorsement of the people. In his Dark Continent,
Mark Mazower (1998) shows that the liberal democracy was not universally accepted
as the normal and natural form of government in 20th century Europe,
and that fascism and Nazism were not simply aberrant deviations in otherwise steady
growth of democracy in Europe but deeply rooted and accepted ideologies able to
compete with liberalism and socialism for political dominance in European political
landscape at the time.
It is often argued that the rise of populism is not something peculiar to CEE. According
to this argument, it is equally present in Western Europe and elsewhere
around the world, which is to suggest that CEE is not that different from West Europe
(Seleny, 2007). The weakness of this argument is that it overlooks the fragility
of newly established liberal institutions in CEE. The old member states can cope
more successfully with different attacks on liberal institutions because their courts,
media, human rights, and ombudsman have a longer and more developed tradition
of independence and professionalism. On the other hand, if such institutions are
weak and underdeveloped, as in CEE, then there is always a potential danger of drift
to populism and ‘illiberal democracy’. One should not forget that a market economy
and its political and legal institutions had to be built from scratch in CEE. Because
such institutions and mechanisms had never worked in the area, Central and East
European countries faced a formidable task. Since we are dealing with the biggest
enlargement of the EU ever, this aspect becomes even more pertinent. Many have
expressed skepticism about the administrative capacity of the new member states
to actually implement the EU acquis, and have stated that there are huge differences
in the ability of the older and the newer member states implement it. While the formal
effects of transposing European norms and standards in CEE have been more
immediate, they have led to a ‘shallower’ institutionalization of European principles
and ideas.
The reformers in CEE were under a strong pressure to quickly adopt adequate institutions
in order to satisfy various conditionality requirements. The desire of reformers
to create institutions that ‘look’ European has had an important
legitimizing effect during the accession negotiations. The rhetoric of a ‘return to Europe’
was an important political and ideological device used by the CEE elites during
the enlargement process. Whether the return to Europe helped to create robust and
well-working institutions, much needed for the CEE’s nascent democracies, or
whether instead it led to ‘Potemkin harmonization’ resulting in formal structures designed
to please the EU, but with little impact on actual domestic outcomes, is one of
the key issues at the moment. Several observers have raised skeptical voices when it
comes to the quality and sustainability of liberal institutions established during the
accession period. Whether the rule of law and the principles of liberal democracy in
CEE are comparable to those in Western Europe is an open question. To what extent
198 B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
citizens of those countries have internalized the principles of liberalism is yet to be
seen.
While I agree with Seleny (2007) that democracy in these countries depends on
strong and independent media, judiciary and other liberal institutions, I am concerned
that the recent populist backlash against the very same institutions comes
at a moment when CEE countries would need further reforms aimed at strengthening
those institutions. With no or weak political consensus, it is very difficult to initiate
such reforms As the case of constitutional courts shows, even the most
developed liberal institution in the region is not secure. The appointment of new
judges turned the Hungarian court from one of the strongest courts in the world
into a relatively weak institution. The Slovenian and Slovak courts face a similar
danger. Furthermore, when it comes to protection of rights and freedoms, many
of these courts have yet to establish their reputation as the ultimate safeguards of
constitutional rights. There are simply too many cases of violations of basic rights
and freedoms, particularly of the weakest minorities, that do not receive judicial
protection.
In the absence of a genuine political consensus on how to proceed with civil service
reform, the political parties in the region are locked in a spiral of continuous
politicization of the civil service, where each newly-elected government suspends
or radically modifies the administrative reforms of its predecessor. In such a climate
of heightened political distrust among the key political actors, it is nearly impossible
to agree and even more difficult to implement any serious administrative reform. Administrative
reforms in developed democracies are usually piecemeal and take several
decades to develop. They require the strong support of all major political forces.
Why then should one expect the CEE countries to design or even implement administrative
reforms in just a few years?
Similarly, it is difficult to expect a vigorous anti-corruption campaign when specialized
anti-corruption commissions are established only to placate the EU, not
to fight the corruption.2
After the Law and Justice coalition of the Kaczynskis recently lost the elections in
Poland, some were quick to announce that their loss could ‘‘mark the beginning of
the end of populism in central Europe’’ (Tupy, 2007). While it is true that the liberal
Civil Platform of Donald Tusk promises a shift in general political orientation toward
what he calls ‘‘consensus government’’, much less certain is how the Tusk government
is going to contribute to any reversal of the populist attack on liberal
democracy. In one of the first post-election reactions, Wagsty and Cienski (2007)
argued that ‘‘Civic Platform would be acting no differently from previous incoming
Polish governments, which all removed hundreds of political appointees after taking
power’’. We should also not forget that Tusk strongly supported the Lustration Law
of the outgoing government. While deregulation and reducing the size of the state,
2
In an interview, Loskutovs, a chief of the anti-corruption bureau in Latvia, admits that ‘‘Latvia’s goal
was not to fight corruptiondit was to get into the EU and NATO. Creating an anti-corruption authority,
he added, was part of the checklist’’ (International Herald Tribune, 2007). Slovenia and Slovakia are also
about to abolish their special anti-corruption authorities.
199B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
one of the Tusk’s principal policy directions, can help reduce corruption in certain
instances, it is na€ıve to believe that more deregulation could solve the problem of
corruption. In the absence of appropriate regulatory institutions, deregulation
may often increase, not decrease, opportunities for corruption.
While the recent Polish elections on the one hand demonstrate that democracy in
this country is not in danger, on the other hand they also remind us that the problem
of liberal democracy in the region cannot be solved only by replacing one government
with another. The reasons for the lack of respect for liberal democracy go
much deeper. The rise of populism has only brought to the surface more forceful tendencies
shared by the majority of political parties in the region. In other words, even
though the populist attack on the rule of law differs in its intensity from the politics
of previous governments, it would be wrong to attribute anti-liberal instincts only to
the populist governments and movements. The same instincts have been shared, in
different forms, by other political parties as well.
What CEE countries need is to find a common language and political culture hospitable
to the presence of strong institutions of liberal democracy. Reforming liberal
institutions is not possible amidst the climate of political distrust and polarization in
those countries. Additionally, civil society has to be strengthened and more involved
in the process of further reforms of liberal institutions. During the enlargement, due
to the speed and conditionality of the reforms, there was little time for the involvement
of various groups and forms of civil society. Now that they are full members of
the EU, the new member states should have more time for their own domesticallydriven
reforms. Many liberal institutions created during the enlargement need
additional reforms. It is time now for real democratic deliberation and experimentation,
which could usher in much needed institutional reforms in the region. Only
a climate of strong political consensus and the broader involvement of civil society
can help bring about much needed further reforms of liberal democracies in the
region.
As Anna Seleny (2007) argues, the CEE democracies are not about to collapse.
However, when courts’ decisions are not respected, when some of the basic human
rights are not protected, and when many institutions of liberal democracy lack the
required political independence and professionalism, then liberal democracy is under
threat. Whether we call it threat or collapse is only of semantic importance. What
matters for liberal democracy is that constitutional liberalism enjoys the same prestige
and importance as ‘electoral democracy’. Only when both elements of liberal democracy
work together can we speak about mature and consolidated liberal
democracies.
A vital further factor is the existence of the EU which, according to many authors,
makes the danger of rising populism less dramatic. However, there is no EU acquis
or formal rules on this issue, apart from Article 6 of the EU Treaty, regulating liberal
institutions in the member states. Despite the absence of the acquis regulating courts,
the rights of minorities, and the civil service, the EU created certain criteria which
were used to measure the adequacy of institutional reforms in the CEE countries
during the accession period.
200 B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
The first crucial step in this direction was the Copenhagen Summit in June 1993
leading to the so-called Copenhagen criteria which included the stability of institutions
guaranteeing democracy, the rule of law, human rights and respect for, and
protection of, minorities (Vachudova, 2005: 96). When CEE states became full members,
they could no longer be subject to the Copenhagen criteria. The EU therefore
lost an important mechanism for monitoring and controlling the development of democracy
and liberal institutions in CEE. That the Copenhagen criteria would not be
available after 2004 was clear to the Commission in Brussels. However, only three
years after the enlargement there were few who anticipated such a dramatic reversal
of events leading to the rise of populism, attacks on liberal institutions and violation
of rights of ethnic minorities. If it turns out that CEE are not able to respond adequately
to the rise of populism, then the key question is whether the EU has any
other adequate mechanisms at its disposal to influence or prevent such
developments.
Due to the current political identity crises caused by the rejection of the EU Constitution,
it is highly unlikely that the EU would resort to an extra-legal strategy as
used against Austria in 2000, when the racist Freedom Party joined the Austrian
government. Even less likely is the EU’s resort to Article 7 of the EU Treaty which
allows a Member State’s rights to be suspended if it is found to be responsible for
serious and persistent breaches of the rights declared in Article 6. Both the EU
and the Council of Europe offer additional judicial protection for violation of fundamental
rights and freedoms. The European Court of Human Rights recently ruled
in D.H. and others vs. the Czech Republic (ECHR, 2007) that segregating Roma students
into special schools is a form of unlawful discrimination that violates fundamental
human rights. The decision represents a major step forward in Europe’s
fight against racial discrimination. The Court’s ruling could mean that the integrated
education of Roma children will be enforced throughout the European Union.
Liberalism and democracy coexist in contemporary liberal democracies. That
there is a tensiondsome would call it contradictiondbetween the two has always
been a matter of debate among modern political thinkers. Carl Schmitt (1994), a leading
German legal thinker of his time, argued that their incompatibility leads to the
inescapable contradiction between liberal individualism and democratic homogeneity
resulting in the crisis of parliamentary democracy. The only true democracy for
Schmitt was direct, plebiscitary democracy based on the homogeneity of the nation.
The nation is a collective political entity competing in the field of the political with its
political opponent, the enemy. The only real safeguard of such democracy was
a leader, a Fuhrer. There was no place for liberal institutions in Schmitt’s concept
of democracy. Later, Schmitt became the crown jurist of the Third Reich.
Hans Kelsen (1930e1931), a leading Austrian jurist, criticized Schmitt and argued
that only independent constitutional court could protect democracy from its vices.
Austria followed Kelsen’s advice and established the first Constitutional Court in
Europe. Kelsen was one of its founding justices. However, after the Anschluss in
1938, the Court was shut down and Kelsen, himself of a Jewish origin, had to emigrate.
Schmitt’s concept triumphed in the Europe of that time. After the Second
World War, Europe seemed to follow Kelsen: a majority of European states
201B. Bugaric / Communist and Post-Communist Studies 41 (2008) 191e203
established constitutional courts, primarily as a reaction against the collapse of democracies
before and during the Second World War. Echoing this new development,
Norberto Bobbio (1990) in his Liberalism and Democracy argues that democracy and
liberalism are friends and that liberalism represents a necessary condition for the
proper development of democracy.
The rise of populism in CEE is reminiscent of dramatic events in Europe’s most
horrible century. Even if it is true that CEE democracies are not about to collapse
and even if we add that there is also the existence of the EU which makes the danger
of rising populism less dramatic, there are still reasons to be worried about the populist
attack on liberal democracy.
We can only hope that Europeans have truly learned the lessons of their violent
and bloody history and that we are far from seeing history repeating itself. Yet given
the precarious nature of democracy in twentieth century Europe, it certainly calls for
a healthy dose of providence.
Acknowledgments
This is for my parents, Milan and Zmagica. For helpful comments and suggestions
I thank Mitchell Orenstein and Alenka Kuhelj.
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