Once the Backsliding Sets In: The Effect on the Rule of Law, Separation of Powers and Judicial Independence in Hungary and Poland and the Role of the EU

The crisis of the rule of law, especially pertaining to the independence of the judiciary as well as the separation of powers, has been recently observed in Hungary and Poland, two EU member states. In both states, a similar mechanism of legal amendments to the constitutional framework and the structure of the judiciary has been applied. The effect of such institutional changes in both states results in a backsliding effect to undermine the independence and proper functioning of non-majoritarian institutions based on the rule of law. This has created an intricate and complex interaction between the governments of Poland and Hungary and various EU institutions. The stakes could not be higher for these states and the EU in general as the regress is particularly poignant on structural and systemic level of the judiciary and the constitutional order. The regional and international response to the erosion of the rule of law in member states of the EU and the Council of Europe is focused on a comparative case study of Central and Eastern Europe with emphasis on Hungary and Poland. The crux of the project centers on how populist-leaning, strongly majoritarian governments affect the separation of powers of liberal democratic constitutional orders. The theoretical framework to evaluate the alleged eroding effect on the rule of law is based on legal scholarship of Lon Fuller and Tom Bingham. It includes an analysis to what degree theory meets reality as reflected in various internationally and regionally accepted standards. The roles of regional and supranational institutions such as the Council of Europe, the European Court of Human Rights and the EU are analyzed and applied to the recent development in Hungary and Poland with special focus on the function of Article 7 TEU proceedings and role of the Commission, the Council and the European Parliament. As Article 7 TEU may offer practical limitations as regards its process and enforcement outcome, the project also examines recent suggested mechanisms of response by the EU institutions such as the Commission’s position for a push to introduce a mechanism to cut EU funds to member states undermining the core values of the EU, including the rule of law, in the upcoming 2021-2027 EU budget framework. The focus is on Hungary and Poland as at the onset of their EU membership both states aspired that the rule of law to be the foundation of their constitutional systems. However, there has been a clearly observable process of backsliding as regards the rule of law standards influenced by super-majoritarianist, reductivist, populist-influenced perception of democracy post-2011. The paper attempts to examine what EU institutions can do as regards the backsliding effect on the rule of law in Hungary and Poland as well as the implications for the EU as a standard setter in the rule of law principles in the international legal order.