The Constitution Unit held an event in May, at which three expert panellists discussed the rise of democratic backsliding internationally and considered key domestic and international interventions which might help to combat this trend. In the first of a two-part series, Sophie Andrews-McCarroll summarises the discussion from the main portion of the event. A separate blog, covering the Q&A section of the event, will be published on 16 June.

Discussions about the health of democracy internationally are occurring more and more frequently, amid worrying reports of a global decline in democratic standards. These concerns relate to the problem of increasingly prolific democratic backsliding – a process by which a legitimately elected leader challenges democratic norms and institutions, and deliberately begins to dismantle checks and balances on the executive.

To discuss these challenges, and to examine possible solutions, the Constitution Unit convened a panel discussion on combatting democratic backsliding, held on 23 May 2023. This event was chaired by Meg Russell, who was joined by experts Dr Seema Shah (Head of the Democracy Assessment Unit at the International Institute for Democracy and Electoral Assistance); Ken Godfrey (Executive Director of the European Partnership for Democracy); and Professor Kim Lane Scheppele, (Laurance S Rockefeller Professor of Sociology and International Affairs, Princeton University).

The below is a summary of the speakers’ opening remarks. There will subsequently be another blog detailing the subsequent panel discussion and audience questions.

Seema Shah

Dr Shah opened the session by addressing the concept of democratic backsliding. A number of problems have arisen in defining the term. ‘Backsliding’ has been used, and is still widely used by practitioners today, to discuss a variety of general declines in democratic health – but these definitions can present challenges for those collecting data to measure the concept. International IDEA has defined backsliding as significant declines over a five-year period in checks on government; in credible elections; and in civil liberties. Academics and practitioners do not necessarily use these same categories. What has been most useful is the consensus that backsliding commonly refers to the purposeful dismantling of democratic building blocks from within by democratically elected leaders.

The focus on institutions in the backsliding debate often leaves out an important measure, Dr Shah stressed: that of access to institutions. She proposed that the definition of backsliding should be expanded to not only the performance of institutions, but the equality of access to those institutions.

Furthermore, she suggested that evoking the term ‘backsliding’ can be problematic in its implicit assumption that democracy is a linear process. This assumption suggests that an undesirable situation can be resolved by reverting to a more enlightened political state. But to define solutions, we should consider why a ‘backsliding’ democracy has shifted to its current state of being. Understanding the broader context and processes by which a backsliding democracy has changed could lead to different, or bespoke, sets of interventions or solutions.

Dr Shah encouraged the adoption of a broader definition of checks and balancing mechanisms. Classically defined, checks and balances describe the way in which power is distributed between the different branches of government. Dr Shah suggested that balancing mechanisms should also refer to how people maintain control of decision making in a democracy. This includes ensuring that the voices, priorities and needs of citizens are expressed, heard and acted upon by decision makers. This focus should include not only traditional actors, but also electoral management bodies, national human rights institutions, civil society, ombudsmen, trade unions and community groups.

Dr Shah concluded by pointing to some evidence for hope. In Mexico a recent surge of popular protest in support of the electoral management body prompted the government to water down the bill that it had originally tabled to weaken the body’s independence. While the newer version remains controversial, protests continue and the bill was recently struck down by the courts as being unconstitutional in light of the manner of its passage through parliament. Similarly, in South Africa, a recent ruling by the courts has judged legislation that sought to ban candidates independent of any political party from running for office to be unconstitutional.

In these examples, while traditional checks and balances are not always sufficient to keep autocratic-leaning governments in check, democracies fall back on the courts, fourth sector institutions and ‘people power’ to keep power in check and fairly distributed.

Ken Godfrey

Dr Godfrey leads the European Partnership for Democracy, a network of organisations involved in democracy support globally. The network has been noticing the phenomenon of ‘autocratisation’ for a number of years, and in particular, a trend towards the centralisation of power in democracies around the world.

Dr Godfrey suggested that there has been a change in the accepted norms of behaviour, on the part of politicians generally, but leaders more specifically. This global trend impacts the cost-benefit analysis made by leaders when assessing possible actions. An aspiring autocrat might feel more emboldened to lock up a political rival or to create a fabricated case against them ahead of elections as this behaviour becomes more prominent and more frequent.

On the basis of research conducted with the European Partnership for Democracy, Dr Godfrey highlighted three areas where there has been success in undermining autocratisation:

1. There have been many examples of would-be autocrats losing in elections in recent times, from Donald Trump in the US to Jair Bolsonaro in Brazil. There are unfortunately also examples of leaders who lose elections but remain in power, for example in Zimbabwe, or Venezuela.
2. There have been successes in the opposition building political alliances to remove aspiring autocrats. As well as at the supranational level, this might include alliances at the domestic level, for example cooperation between opposition parties to remove an incumbent via the formation of electoral alliances. There are instances of success and failure in deploying this strategy: in Hungary, the opposition coalition didn’t succeed at the national level, nor in Turkey most recently. However, at the local and city level in both of these countries, there have been successes: electoral coalitions in Budapest and Ankara worked well, and there are examples of such successes in India at the local and provincial level and similarly in Malaysia.
3. While not a silver bullet, there have been many recent instances in which organised protest has been successful in combatting moves to undermine democracy. Israel is a recent example of a country in which protests about judicial reforms were successful in pressuring the government to roll back on its plans. There are also examples in Poland in 2021, South Korea in 2016, and Malawi in 2019.

Professor Kim Lane Scheppele

Professor Kim Lane Scheppele addressed the legality of  backsliding, focusing on the EU context as illustrative of ‘a battle of laws’. Law has dominated as the mechanism by which both Hungary and Poland have consolidated autocracy, and law has been the main way through which the EU and Council of Europe have responded.

When the Orbán government came to power in Hungary, it began by passing thousands of pages of laws which had been drafted before Orbán came into office, in contracts divided up through different law firms. These laws were pushed through parliament with minimal scrutiny. This included a new constitution, and a series of so-called ‘cardinal laws’, which require a two-thirds vote to amend.

The European Commission knew exactly what was going on, noted Professor Scheppele. But high-level officials feared the consequences if they started to be seen to interfere with the internal constitutional structure of a member state in the lead up to the Brexit vote in the UK. Professor Scheppele highlighted other crucial complications: every step Hungary took was technically legal. The Orbán government adopted the bad practices of good states. For example, when it adopted disproportionate electoral districts, it pointed to Germany as an example. When it privatised the country’s universities, the government said it was borrowing the privatisation model of Finland. As such, the Commission was hamstrung for the first 10 years or so.

However, when the current Polish government was elected, it lacked the constitutional majority to make the changes it wished. As such, many of its actions were illegal under Polish law and, in these circumstances, the European Commission felt emboldened to act. The Commission initiated a variety of infringement procedures, but ultimately was limited in its ability to react when Poland stopped cooperating.

These two instances illustrate the difficulty in dealing with autocratic states from an EU perspective, Professor Scheppele highlighted. If individual autocratic actions are technically legal and the European Commission’s ability to file infringement depends on some measure of illegality under EU law – and EU law is limited in its reach – what can be done?

Both Poland and Hungary are heavily reliant on EU funding. Following sustained pressure, the European Commission has finally been successful in starting to restrict funds. It has put in place several different mechanisms to cut funds for member states not following the rule of law. The combination of these funding reforms has culminated in Hungary losing out on €28 billion worth of funds (€110 billion for Poland) until appropriate reforms are made.

Time will tell whether these financial sanctions will be effective.

This is a very brief summary of the main points made during the event, which is available in both video and podcast formats. A summary of the Q&A portion of the event will be published on 16 June.

If you are interested in the topics discussed in this post, then the Unit recommends that you attend its annual conference, entitled The Future of the Constitution, which is due to take place on 28 and 29 June. The conference is free to access, open to all, and will include panel discussions on numerous topics, including the state of constitutional standards in the UK. Chaired by Professor Meg Russell, Director of the Unit, the standards panel will include Lord (David) Anderson of Ipswich, Dr Hannah White and Jeremy Wright KC MP.

About the author

Sophie Andrews-McCarroll is Impact Research Fellow at the Constitution Unit.