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 this second blog detailing the event, Sophie Andrews-McCarroll summarises the questions put to the panel during the event and the answers that they gave.
The first blog on this event detailed the speaker presentations. This included a discussion of recent trends and developments in democracies internationally, definitions of key terms under consideration – and some examples of strategies which have been successful in countering ‘backsliding’ tendencies.
The below is a summary of some key points raised in the question and answer session.
1. What would an effective relationship between domestic actors and international actors in combatting democratic backsliding look like? What are the most effective international interventions? And how can domestic and international actors collaborate?
Seema Shah
International bodies require legitimacy at a domestic level, both among leaders and the population, in order to be effective. This legitimacy is often lacking.
Some regional and human rights courts have had some successes in reaching progressive pro-democracy judgments. The sticking point generally lies in the enforcement of these rulings – even where they are supported by domestic governments and courts, they are frequently not implemented.
Ken Godfrey
There is a role for international organisations, but the most effective interventions (i.e. elections, opposition coalitions and protest), are domestic actions and should not be pushed from the outside. One example of an effective international intervention can be seen in Georgia earlier this year. The government attempted to enact a foreign agent law, leading to significant domestic protest. The EU and its member states made statements outlining the negative impact the bill would have on Georgia’s EU accession candidate status. This intervention combined with the protests and domestic mobilisation definitely had an impact on the situation in the country. These are the kinds of interventions that the international community can usefully make.
Kim Lane Scheppele
The EU can have great symbolic importance in certain countries, which can give it a certain influence. Currently, the countries which score the highest on support for the EU in Eurobarometer polls are Hungary and Poland. So there is a certain shaming effect when an EU official makes a negative comment about the actions of a Hungarian or Polish government.
Regional human rights courts are developing a large jurisprudence on judicial independence in rulings that say that the individual right to a free trial can only be guaranteed by an independent judiciary. Here, courts are creating a line of authority which makes structural guarantees a necessary component of securing individual rights. Any newly democratic government could use these standards to bring their country back in line again. The bigger problem is how to oust backsliding governments.
2. What can we do to mobilise and educate legislators to combat the problem of democratic backsliding?
Seema Shah
Our latest data shows that an effective parliament is one of the data points that is decreasing almost across all regions in the world. The power of parliaments to exercise oversight is waning. In many cases this means that there is an increased reliance on the courts and on civil society to perform the oversight and scrutiny function which should lie with parliaments. How do we correct this? We have to find a way to communicate to legislators that it is in their interests to take this more seriously.
Kim Lane Scheppele
Very often democratic backsliding begins with dysfunctional parties. Either a party is too divided to function, or it suffers from excessive top-down party discipline. For example, Hungarian Prime Minister Viktor Orbán personally interviewed every candidate that ran on his party ticket and insisted on holding in his desk a letter of resignation from each of them. So if MPs broke with the party line, he would have the power to immediately oust them. This interfered with the ability of any person sitting for his party to act as an independent member of parliament. Effective, healthy democracy happens somewhere in between intra-party chaos and excessive party discipline.
Secondly, legislators are put there by election rules. The global community relies on election observation missions to determine whether an election is free and fair, which has led to the assumption that elections are stolen on election day. But in these types of systems the rules themselves can be rigged in advance – whether through gerrymandering, voter registration rules, or through the type of ID required at the polls. It can be the legal structure that determines whether elections are free and fair.
Ken Godfrey
Based on what can be observed from outside, parliaments often are not effective institutions in combatting backsliding. We shouldn’t forget that many parliaments are not as powerful as under the Westminster model, so may be more limited in holding the executive branch to account. There are, however, some encouraging counterexamples: in Kenya a number of years ago for instance, the government tried to push through restrictions to civil society which were ultimately blocked by the parliament. So this is a route worthy of further exploration.
3. Rather than democratic backsliding, are we really talking about a shift from liberal democracy to authoritarian democracy which promises to champion the ‘will of the people’ against ‘anti-democratic elites’? How do we rebuild public support for democracies that are liberal, pluralist and bound by law against regimes that are themselves using the language of democracy?
Ken Godfrey
This is a tricky question and there is no easy answer. Orbán, for example, is comfortable with calling himself an illiberal democrat and he successfully uses democratic language to support his cause. The language of democracy has been very successfully employed among those who are in fact undermining democracy. And those same actors may be successful at the ballot box. This is also why it is important to defeat them in the democratic arena, despite the fact that it may be an unfair or rigged system – in order to demonstrate that they are anti-democratic. This sounds strange but it is often the tactic used by opposition forces.
Kim Lane Scheppele
In almost all declining democracies, the institutions are set up to look like the moving parts of a democracy but they don’t function as the institutions of democracy should. For example, in declining democracies there may be a government monopoly on the media, restrictions on the civil sector and on the ability of political parties to operate.
In many countries, including the US and UK, surveys show strong popular support for independent courts and free and fair elections – and then the population votes for leaders who don’t support those institutions. This is because the people are putting democracy second to something else – we need to think about what these other factors are.
4. Definitions of backsliding have generally focused on state institutions, rights, and access to those institutions and rights. Should these definitions be broadened to also include practices and norms or values among the population?
Seema Shah
The World Values Survey in 2021 reported that a majority of respondents no longer rated democracy as terribly important. Support for values such as strong leaders is growing, in some places significantly. Why is this? What is democracy not delivering that makes people willing to cast it aside? There is no easy answer to this question, but it is clear that further examination is needed on the part of experts and practitioners so that we don’t miss the boat on saving the legitimacy of the democratic model.
5. What are the bottom-up approaches that could support democratic renewal?
Seema Shah
The solution will not come from top-down institutions alone; there does need to be popular demand to compel officials to act in order to stay in office. This might need to be via a combination of top-down and bottom-up approaches, and there should be communication between these types of actors. One example of a successful bottom-up approach is the farmers’ protests in India. These protests continued for a year and succeeded: the Modi government backed down on the bill that threatened farmers’ minimum prices.
Kim Lane Scheppele
There is a model for defunding of backsliding states currently under consideration at the EU level, which would involve channelling EU funds through cities or non-government affiliated civil society organisations in backsliding countries, for example to support the pluralisation of the political space in these countries. There are often liberal enclaves in cities, with groups and organisations who support constitutional democracy. This approach sounds top-down – but it would be top-down funding to empower bottom-up responses.
6. What is the role of the legal profession in resisting backsliding?
Kim Lane Scheppele
The engineers of backsliding are very often lawyers. This is the case in Hungary, Turkey, and Poland. For example, when Erdoğan switched from a parliamentary to a presidential system in Turkey, this extension of his term of office could only have been thought of by lawyers.
As lawyers are the architects of these systems they need to be called out by other lawyers who, by virtue of their training, may see things coming earlier than the average person. Lawyers can be a really important early warning system.
This raises important questions about legal education. Lawyers have responsibility for the maintenance of the constitutional system, and this should be integrated into legal education.
7. What should we all be doing to halt backsliding or forestall backsliding in our own countries?
Ken Godfrey
The mobilisation of voters is becoming a more important issue around the world in democracies; this is even true in instances where the electoral competition may not be fair. We have seen successes at the ballot box, so you need to get people out and voting especially because autocratic governments can weaponise voter turnout in their favour.
Seema Shah
Join organisations in your community doing things that you think are important. Having a say at the most local level is very powerful and will be more important in the future. Quantitative researchers don’t yet have very good measures of deep local democracy, but some people are starting to look at this area in more depth because it is clear that much of the action happens at the local level.
Having the right laws on the books is crucial, but it is not nearly enough. For example, the data shows that in almost every country that holds elections, inclusive suffrage appears to be very high. However, this does not appear to match the lived experience of many people in their access to the ballot box. And so in our evaluation of democracy, we also need to examine the everyday experience of people.
This is a very brief summary of the main points made during the Q&A portion of the event. A summary of the presentation portion of the event was published on 15 June. The full event is available free of charge in both video and podcast formats.
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 via Zoom 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.
Featured image by UK Prime Minister (CC BY-NC-ND 2.0).