In the next six months, Romania will, at least symbolically, have the opportunity to be a leading voice that will highlight which policy goals should be prioritised for the European Union.

 

However, this ascension comes at a time when EU officials, human rights activists, and democracy advocates are calling the country out over its threats to the rule of law and fundamental rights.

Joining the ranks of other Visegrad countries (i.e. Hungary and Poland) that have seemingly tethered away democratic standards and values while threatening institutions such as the rule of law, Romania balances its symbolic position atop outcries that it is backsliding into authoritarian practices.

The current state of affairs

Tudorel Toader

European leaders have voiced their concerns over two matters. The first has been on the crackdown of anti-government protests. In connection, the second matter has been the issue of widescale corruption in Romania and the governments’ apparent retreat on such anti-corruption reforms.

The basis for this apprehension is certainly not unfounded. Just last month, Justice Minister Tudorel Toader announced that the government was preparing an emergency decree which would cancel past corruption convictions against politicians and other elites. Essentially, this would end existing investigations and curtail others. This would eventually allow corrupt officials to hold office (or continue to hold office), signaling that in a democracy, there are those who can rise above the rule of law.

Romanian citizens seem to agree with the EU leaders, with hundreds of thousands protesting similar concerns of corruption. Romania’s anti-corruption agency has done well in recent years, bringing to justice hundreds of officials, from mayors and prosecutors to members of parliament.

Not only does 60 percent of Romanians trust the anti-corruption agency, but it has also been cited by the European Commission as one of the five best in the European Union. Still, EU officials are quick to criticise Romania for not upholding the rule of law, recognising their democracy is in crisis or that more should be done to uphold democratic values.

But surely, if European leaders are voicing their unease, then it must follow that Romanian leaders are listening to such criticism and acting in congruence with it, correct? Unfortunately, this is not the case.

In response to the criticism, Romanian Prime Minister Viorica Dăncilă returned it right back: where is the outcry against corruption in Western Europe, she asked? Where is the concern over French riot police clashing with protestors from the Yellow Jacket movement? “It’s a double standard”, she says, “I didn’t see anyone come to the European Parliament and say ‘We want a resolution on France’”.

Viorica Dăncilă and Mateusz Morawiecki

The back-and-forth between Eastern and Western states is more of the same, yet does nothing to resolve the actual problems that affect citizens within these states. It reflects the current political dynamics of pinning good democratic, Western states who uphold the rule of law and democratic values, against the authoritarian “bad” states of the East who continue to backslide on their democratic commitments and breach the fundamental values underpinning the EU.

Do not follow “the bad Hungarian and Polish examples”, warns Guy Verhofstadt, leader of the liberal ALDE group in the European Parliament. If so, action will be taken to ensure that democracy is enforced.

Action has been taken, but the enforcement of democratic self-defense seems paradoxical. As the story would go, putting Romania back in its democratic place would seemingly require more censure proceedings from the EU, similar to the ones taken against Hungary and Poland.

But is this really the only route that Romania (and other Visegrad countries) have at its disposal to ensure democracy and its institutions are upheld and protected? Has Romania become incapable of defining what threatens its democracy and instill measures to ensure that it flourishes?

For some EU leaders, Romania has already lost its way. But there is something deeply problematic, from a democratic standpoint, at forcing one democratic state to act in accordance with values passed down on them from other democratic states.

Militant democracy has gone transnational

To say that states should uphold and protect democracy is seemingly unproblematic. No disagreement exists there. Where there is profound disagreement is on the question of what democracy needs to be protected against, and the proper mechanisms for democratic self-defense.

The general argument leveled against Hungary and Poland, for instance, is the following: democracy should be protected against actors whose goals seek to dismantle democratic values and institutions, such as the rule of law. EU officials can substantively point to those actors whose goals threaten a certain democratic way of life: Viktor Orbán in Hungary, and the Law and Justice Party in Poland, for instance. The mechanism at their disposal, it seems, are sanctions leveled against them on a supra-national level in the form of censure proceedings.

So, we can see that the threat is defined, and the mechanism is set in place. But we have to ask ourselves: where did this come about, and what does this mean for Romania? The overall tool that is used is the militant democracy principle. It is a constitutional instrument that was institutionalised to help combat actions that threaten the stability of the democratic order. If threats come from groups and organisations that use democratic norms, procedures, and institutions to affirm values and achieve goals that are incompatible with democracy, then democratic states are authorised to protect civil and political freedoms by preemptively restricting such activities.

This could come in the form of party bans, suspending free speech rights and association rights for extremists, and so on. In the Polish and Hungarian cases, it just so happens that this action is taken up by the EU, pointing to the current trend of militant democracy gone transnational.

Viktor Orbán and Jaroslaw Kaczyński

One problem with militant democracy – heightened by the transnational turn – is that it defends democracy by curtailing democratic freedoms and liberties from above.

So, you have EU officials from sovereign democratic states denying democratic freedoms and liberties of other sovereign democratic states and actors in order to defend democratic values.

It further heightens the paradoxical nature of democratic self-defense when other countries are now telling democratically-elected officials and citizens of another state not to act or govern in a certain way. However, the general sentiment for why militant democracy is important remains – protecting democratic institutions. And this is where the Romanian case failed, but also, why it is important to analyse.

The failure of domestic militant democracy 

The current trend in militant democracy seems to be that there is a failure on the domestic level to utilise such measures, and therefore, it has moved to the transnational level.

In addition, when militant democracy is used but its actions are misguided, it calls into question whether the institution should exist at all, given militant democracy’s illiberal turn. Democratic self-defense, in the first instance, should look inward. Any self-defense requires the state to define what is a threat to its democracy and to follow through on such commitments.

In the Romanian case, it is clear that corruption is a threat to democracy. But this does not require some super-imposition from the EU to act on such commitments, as it then calls into question the legitimacy of such action in the first place. Romanians themselves have been having this debate since its transition to democracy in the early ’90s.

One of the more important demands was lustration, a law that prevented and prohibited former Securitate members and communist nomenklatura from holding public office. Other post-communist countries passed similar lustration laws. This became a primarily important public goal, which failed several times in last-minute attempts, and we can see that the problem still exists today. The inability to act on such a major issue created a weakness in Romanian democratic institutions.

Romania’s inability to pass such laws could have been dealt with by utilising militant measures in the same way that other democracies did in the past. It could have banned certain public officials or political parties. This did not happen, and the after-effects are still seen today. The fight continues, but the idea that the EU will now use militant measures against Romania over the backsliding of democratic values seems to run contrary to the goal of why we use militant democracy in the first place. If corruption has been – and will continue to be – the determining factor for vibrant democratic institutions, then surely, it should be the target of the action.

In Romania, lessons can be drawn concerning the principle of militant democracy and why it has not been a viable option for democratic states who threaten the rule of law and democratic values. Too often, the focus of what is the target of democratic self-defense goes unnoticed. Secondly, a concerted effort should be made to listen to the ills of democratic dissenters to understand where the state has failed in its duty to protect citizens from an unlawful rule.

The interplay between principles and practice – its disconnect with and detriment to real democratic self-defense against legitimate threats – can be seen in the case study of Romania. Without assessing what the problem is, how it has been fought against, the tools used and the general sentiment regarding its legitimacy, it is problematic justifying the use of militant measures in the first place.

So, rather than disagreeing on whether or not Romania is backsliding into authoritarianism, it is better to actually tackle the issue firsthand, by defining the target and choosing the best possible mechanism for democratic self-defense.

But let us not punish a democratic state for failing to deal with this issue head-on in one sweeping moment. Do not discount decades of dealing with such a contentious issue, and the successes that came about. There are both virtues and vices here, and without a willingness to accept the full scale of this issue, it only creates more animosity between states and disregards the main issue that threatens democracy.

 

A political theorist whose work examines the rise of political extremism and illiberal politics in Central and Eastern Europe. He has a Ph.D. from Central European University where he researched how democratic states respond to the current populist crisis of pluralist democracy.


Central European Futures

Over the past several years, it has become ever more apparent that the post-Cold War era of democratic reform, socio-economic development and Western integration in Central Europe is coming to an end.

Visegrad Insight is published by the Res Publica Foundation. This special edition has been prepared in cooperation with the German-Marshall Fund of the U.S..

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