6. The Rule of Law in Troubled Waters: Narrating Rights, Democracy and Challenges

In the Czech parliamentary debates analysed, statements related to rights were quite common. Many of them were fairly general, without any specific message, or they were routine references to the Charter of Fundamental Rights and Freedoms, which, alongside the constitution, is an integral part of the Czech constitutional order. In-depth statements on rights were often interventions by the same MPs, particularly legal experts from the respective parties. As such, they did not qualify as narratives, defined in our analysis as similar arguments made by different speakers.⁶ As a result, we identified only a few narratives on rights in the context of the rule of law, especially when compared with narratives related to other topics. These were two diverging ones related to transitional justice (during the first wave of rule of law legislation), a one-sided one on European human rights standards (second wave), followed at some distance by an overlapping one on legal protection of rights (third wave). Overall, this suggests that conflicts over rights and the rule of law have decreased over the course of time (Table 6.10).

On the one hand, representatives of the Communist Party (either as part of the so-called Left Bloc or later independently) used with particular intensity the narrative that laws that establish special procedures for punishing acts committed under the previous regime are illegitimate restrictions on citizens’ rights. More precisely, they signalled that they perceived the bills aimed at dealing with an undemocratic past as an abuse of the law for political purposes and as unjustified because the constitution granted equal rights to all.

Mr Vik proposed a ban on the activities of KSČM, with the stipulation that its members cannot be elected to representative bodies for a certain period of time. (…) Mr Vik apparently did not sufficiently take into account not only Article 20 of the Charter of Fundamental Rights and Freedoms, but especially Article 19 of the constitution of the Czech Republic, which clearly speaks about who has passive electoral rights. (Dalibor Matulka, LB, opposition, 9.7.1993, LP 1, Session 11)

On the other hand, representatives of other parties across the political spectrum, including the left-wing ČSSD, denied this view, stating, as the following quotations show, that in 1993 decommunisation had not yet occurred, that the Charter of Fundamental Rights and Freedoms was “too democratic” (Mazalová), or arguing with reference to the precedent of the Nuremberg Trials that the punishment of action under the previous regime was justified (Řezníček).

In my opinion, the Charter of Fundamental Rights and Freedoms is too democratic. It defends the rights of those who violate it, but unfortunately does not protect the rights of those who abide by it. (Gerta Mazalová, HSD-SMS, opposition, 9.7.1993, LP 1, Session 11)

(O)pponents of this bill are also operating, among other things, with the legitimacy of the former regime. I want to remind you that the Nuremberg Trials faced a similar dilemma. However, it decided in the interest of basic human rights. As an example, despite the defenders of Nazism arguing that it was a legitimate enforcement of the laws of the Third Reich, such as the enforcement of the Nuremberg anti-Jewish laws, the Nuremberg court did not recognise this in the interest of humanity and could not recognise it either. To the argument that the attack was not directly against the NSDAP, but against the crimes, I remind you that one of the final consequences of Nuremberg was also total denazification. Unfortunately, decommunisation has not yet occurred in our country. (Miroslav Řezníček, ČSSD, opposition, 9.7.1993, LP 1, Session 11)

When this debate occurred, the Czechoslovak constitutional court had already ruled upon a petition of left-wing opposition parties that the principal part of the lustration provisions were constitutional.⁷ Moreover, supporters of the lustration legislation pointed out that “positively lustrated” persons could prolong proceedings and thus cause “discrimination against the majority”.

Opponents of the lustration law who advocated for a procedure supposedly in line with the principles of the rule of law (…) subtly omitted the crucial need for prompt decision-making (…). It would have allowed those labelled ‘positively lustrated’ to prolong proceedings and indefinitely delay the final decision by exploiting appellate mechanisms, which otherwise genuinely ensure the respect of the presumption of innocence. Discrimination against the majority would thus be prolonged until it would reliably be too late for everything. (Jan Klas, ODS, government, 20.5.1997, LP 2, Session 11)

In the second wave of rule of law legislation, the frontiers between the two positions continued to exist. However, as the following quotations show, some MPs already acknowledged the complexity of punishing past actions. The ČSSD even changed its stance, pointing out that extending specific measures for more than ten years after the fall of the non-democratic regime was unjustifiable (Jičínský). It assumed that the other parties also used the extended measures to discredit left-wing ideas in general in order to gain an advantage in political competition.

I consider the original decision of the legislators to be correct despite all the problematic aspects I mentioned. Positive vetting does not limit anyone’s human rights and personal freedoms. Therefore, it remains to reiterate that the right to hold certain positions in state bodies and organisations is not a right of every citizen. It is a privilege that the state can provide to only certain individuals according to its own criteria. Simply put, there is no entitlement to a position. (Vlasta Parkanová, KDU-ČSL, opposition, 26.3.1999, LP 3, Session 10)

The purpose of extending the lustration law is different. It is a political-ideological intention, serving certain goals, creating a certain atmosphere in society. I want to go back to October 1991 when the original version of the law was being approved. At that time, there was an atmosphere of certain fear in the Federal Assembly. Perhaps that also led to the law being subsequently passed by a narrow majority. Today, we don’t have to fear in that regard. Personally, I’m not afraid, even if this law is extended, that anything substantial will change in society. However, it is a bad sign for me because it signals that we want to continue with a certain division of society based on principles that are contrary to the values of the rule of law and the Charter of Fundamental Rights and Freedoms. (Zdeněk Jičínský, ČSSD, government, 24.5.2000, LP 3, Session 25)

Communist MPs also usually invoked constitutional guarantees and Czechia’s international commitments regarding citizens’ rights protection when there were repeated attempts to prohibit or restrict the use of symbols of the communist movement or its ideology.

According to the constitution and international conventions, the efforts of those who seek to ban the ideals of socialist thinking and convictions do not hold up. They do not hold up according to the standards of the rule of law, nor do ideologically motivated and politically directed amendments to criminal laws on genocide and violence. (Miroslav Grebeníček, KSČM, opposition, 10.3.2006, LP 4, Session 54)

In the first wave, MPs—predominantly representatives of left-wing parties such as ČSSD and KSČM, both in opposition then—generally referred to broader international human rights standards or documents⁸ to support their position, sometimes with more specific references to UN human rights instruments.

I believe that we have approved the government’s programme statement here, the first point of which was that we want to be a democratic state governed by the rule of law and, therefore, we will adhere to the current constitution and all international human rights documents, including the equality of all citizens. (Vladimír Řezáč, LB, opposition, 17.6.1993, LP 1, Session 10)

In the second wave, the statements were more elaborated and regionally focused, with references to the European framework, particularly to documents of the Council of Europe and to the authority of the European Court of Human Rights. In the debates analysed, mainly left-wing parties explicitly acknowledged the relevance of European institutions for protecting citizens’ rights. Therefore, we classify these statements as a one-sided narrative. By acceding to the Council of Europe in 1993, Czechia also accepted the jurisdiction of the ECtHR. The authority of the Court became accepted as a matter of fact and as an expansion of the ability of citizens to defend their rights. Thus, references to ECtHR judgments became used as equal to constitutional guarantees of rights protection.

I just want to point out that (…) according to the judgment of the European Court of Human Rights, mere compliance with domestic law, meaning the laws of that state, is not sufficient. This law must also meet certain quality standards, as required by the principles of the rule of law stated in the preamble of the European Convention on Human Rights. (Vojtěch Filip, KSČM, opposition, 19.9.2000, LP 3, Session 27)

Let us realise that this is a fundamental change associated with our position in Europe, where not only are the decisions of non-Czech supra-national European courts binding for our courts, as we already have in the Charter of Rights and Freedoms, but this law creates practical opportunities for those who have become involved in a dispute or whose case has been assessed differently by our constitutional court and the European Court of Human Rights, to assert their rights according to the decisions of European courts. (Stanislav Křeček, ČSSD, government, 16.5.2003, LP 4, Session 16)

Legal protection of rights. During the third wave of rule of law legislation, when referring to rights in the context of the rule of law, Czech parliamentarians increasingly used the narrative that the right to an effective remedy and fair trial is fundamental to the rule of law. Those who used this narrative emphasised the crucial role of the right to judicial protection and a fair trial in the legal system. Representatives from multiple parties, in government and in opposition, used it on various occasions, including when debating legislative changes related to the procedural provisions of the justice sector, such as an attempt to restrict the right to judicial review of a decision to reject an asylum application.

If the Czech Republic is to be called a rule of law state, I understand that it will prioritise the rights of its citizens, but a certain legal framework should be maintained for all citizens. For me, the impossibility of judicial review by administrative courts is a boundary that cannot be crossed. (Zuzka Bebarová Rujbrová, KSČM, opposition, 7.4.2017, LP 7, Session 56)

Most frequently, however, the narrative was used during discussions on judicial proceedings involving politicians or politically sensitive issues in the judiciary (see quotation of Pospíšil below). When Prime Minister Andrej Babiš faced criminal prosecution, opposition MPs argued that he should resign to open the way for his right to a fair trial (see quotation of Výborný). Since the number of this type of debate was significantly higher during the third wave of rule of law legislation, this narrative was predominantly used in that wave.

Under Czech law, European law and the European legal tradition, every citizen has the right to a remedy in their private law case. Everyone can appeal, and even if we may have the worst opinion of the individual, disagree with them, morally condemn them, or hold them in contempt, we should not deny them this right. (Jiří Pospíšil, ODS, government, Minister of Justice, 13.6.2008, LP 5, Session 33)

In the end, it is also about your rights and freedoms, Prime Minister, because you also have the right to a fair trial, whether it concerns your criminal prosecution or the legitimacy of subsidy allocations. And you will not have a fair trial as long as you remain in both of those seats – the seat of the prime minister and the seat of the accused, the seat of the prime minister and the seat of the entrepreneur. It will be better for you too when you vacate the first of those seats. (Marek Výborný, KDU-ČSL, opposition, 26.6.2019, LP 8, Session 32)

Hungarian parliamentarians frequently mentioned rights, but since this topic was not always a matter of prominent concern in relation to the rule of law, we did not identify many narratives. Overall, the discourse on rights became increasingly divided. Statements referring to human, citizen and fundamental rights in general received most attention. Narratives falling into this category were most intensively used during the first wave of rule of law legislation. In this period, which was characterised by a widely shared pro-rights climate, parliamentarians also debated the rights of ethnic minorities and there was not much rhetorical disagreement but overlapping narratives. During the third wave of rule of law legislation, MPs continued to underscore the relevance of rights. However, the discourse in parliament was now characterised by two diverging narratives on the respect for/restriction of certain rights at the national level and the violation/protection of rights and values enshrined at the EU and the international level (Table 6.11).

General remarks on fundamental, human or civil rights. While during all three waves of rule of law legislation speakers made various general remarks on human, civil and fundamental rights in the parliamentary speeches examined, we only identified one overlapping narrative, which was primarily used in the early 1990s. In this period, marked by the transformation of the political system, parliamentarians often acknowledged that the state must guarantee the rights and liberties of the citizens, including the rights of minorities and the right to self-government. MPs across the party spectrum, regardless of their position in government or opposition, acknowledged the relevance of individual freedoms in a general sense, with no significant differences of opinion. The respect for these freedoms was conceived as a departure from the communist model under the previous regime.⁹ Speakers highlighted the importance and the need to define the relationship between state and society, for example when debating the proposal for a parliamentary resolution on the regulatory principles of the constitution of the Republic of Hungary.

(T)he constitution expresses the relationship between state and society, and the management of this relationship is a fundamental political and philosophical question of every constitution. According to the regulatory principles put forward, the Republic of Hungary is an independent, democratic state governed by the rule of law. The content of these indicators must be precisely defined in the normative text. The social nature of the state and of the social order must be expressed in the formulation of fundamental constitutional principles and objectives and human rights. (Tamás Isépy, KDNP, opposition, 22.5.1996, LP 35, Session 178)

Statements referred to rights protecting the individual from the state, such as the right to property, the right to freedom of information and the right to self-government.¹⁰ When addressing these issues, MPs often referred en passant and without further clarification to European states or provisions.

This, then, is the alpha and omega of the idea of self-government as a right to freedom and as an organisational operating principle for the exercise of power. It is the only guarantee of the full application of the idea of self-government, which is in the nature of the rule of law. (Ferenc Wekler, SZDSZ, opposition, 2.7.1990, LP 34, Session 18)

The concept of the Independent Smallholders’ Party stated that, in accordance with the practice of European states, the ownership of land should be returned to our citizens. This means that the state monopoly on agricultural land, which was established during the state party period, will be abolished and a significant part of national property will be transferred to Hungarian citizens. (István Prepeliczay, FKgP, government, 4.3.1991, LP 34, Session 83)

During the second wave of rule of law legislation (1998–2010), when MPs mentioned rights in the context of the rule of law, they focused on rights that protect the individual against the state, such as the right to property, freedom of expression, access to justice, the right to protection of personal data and the right of access to data of public interest. In this period, we did not identify any narratives. The same was true for the third wave of legislation, when mainly the governing Fidesz and the green LMP and MSZP from the opposition generally stressed the relevance of basic human rights, as well as those rights enshrined in the Fundamental Law and rights that protect the individual from the authorities. Their statements showed that they were divided as to whether they are respected in practice.

Individual and collective rights. Minority rights and the right to national and ethnic identity were also discussed, but less often than other issues. In our selected documents, the issue of minority rights was addressed with regard to ethnic minorities.¹¹ This was done most frequently around 1992, when the Minority Rights Law was debated in parliament. In a pro-rights climate,¹² the parliamentary parties agreed in principle that minorities and nationalities living on the territory of Hungary should be granted certain rights. MPs emphasised that the right to national and ethnic identity is part of universal human rights.

(T)he bill on nationality and minority rights before us is indeed a generous attempt to settle the issue by declaring that the right to national and ethnic identity is part of universal human rights, that the specific individual and community rights of national and ethnic minorities are fundamental rights of citizenship, and that these rights are not a gift of the majority and not a privilege of the minority, and that their source is not the numerical proportion of national and ethnic minorities, but the right to be different, based on respect for individual freedom and the peace of society. (Sándor Kávássy, FKgP, government, 29.9.1992, LP 34, Session 229)

The Roma need such a law, or more precisely, a law that legally regulates the situation of nationalities and ethnic groups. After all, the right to national and ethnic identity is a fundamental human right, which applies to individuals and communities alike, and which ensures a harmonious relationship between individual freedom, individual sovereignty and the organisation of the nation as a genuine community. (Tamás Péli, MSZP, opposition, 29.9.1992, LP 34, Session 229)

The individual rights of minorities are universal human rights, which are created at birth. A minority individual becomes a holder of community rights when he consciously accepts membership of an ethnic group. At the same time, however, a community right is created where and when the criteria are present and developed which simultaneously bind a group of people together as a community and separate it from large groups in society on the basis of these criteria which apply only to this group. The emphasis is on the emergence of community rights. (János Varga, MDF, government, 29.9.1992, LP 34, Session 229)

Disregard/restriction of rights. Statements about restrictions and the disregard of certain rights were typically found in a small number of cases debated in the selected documents. In the first and second waves of rule of law legislation, very few cases of no or inadequate guarantees of certain rights were highlighted by MPs.¹³ In the third wave, however, two diverging narratives emerged.

The opposition parties (mainly Jobbik, LMP and MSZP) established the narrative that the ruling parties restricted certain rights and that some fundamental rights were at risk. In the beginning of that wave, shortly after the change in government, some parties in parliament were still critical of the previous MSZP-SZDSZ government (see Sect. 6.3.2).

(T)he Hungarian Socialist Party (…) has destroyed the country, (…) has trampled liberties underfoot, (…) has run a system where the rule of law has been abolished, where manually controlled decisions are made in the courts, where dozens of patriots have been and are still being imprisoned, and as a representative of such a party, you talk about how you miss the presence of the word freedom in a political statement, after an election in which your party, my dear Ildikó Lendvai, was destroyed (…). (Tamás Gaudi-Nagy, Jobbik, opposition, 17.5.2010, LP 39, Session 2)

However, soon the focus of criticism for rights violations was on the new ruling parties. As the first of the following quotation shows, LMP accused them of having “eliminated social rights”, abolishing the “social state of law”¹⁴ and violating the right of defence in criminal prosecution.¹⁵ It warned against the erosion of environmental, property and information rights through retrospective review by the constitutional court, emphasising its impact on the rule of law (Schiffer). Jobbik criticised a tightening and violating of the right of assembly (Gaudi-Nagy),¹⁶ while MSZP stressed a general erosion of individual rights and harmful measures against the rule of law (Lamperth).

To sum up: the right to the environment, i.e. the constitutional prohibition to reduce the level of nature protection, the prohibition of discrimination and the principle of equal rights, the right to property and the freedom of information are the pillars of fundamental rights, the removal of which from the ex-post control of the constitutional court is inadmissible even in the case of the Budget Act and tax laws, and leads to a serious breakdown of the rule of law. (András Schiffer, LMP, opposition, 16.11.2010, LP 39, Session 47)

(T)he rule of law test is being disproportionately and unnecessarily narrowed, and indeed the rules on civic activity have been narrowed and tightened. We believe that it violates the rules of the right of association. (Tamás Gaudi-Nagy, Jobbik, opposition, 14.11.2011, LP 39, Session 133)

The dismantling of the democratic institutions has not taken place all at once, but in a continuous process, in several stages and from several directions. First, there were significant restrictions on individual fundamental rights. In the area of restrictions on fundamental rights, there have been significant steps backwards, both in terms of civil and political rights, which protect the individual against state power, and in terms of economic, social and cultural rights, which the state protects. In addition to restrictions on fundamental rights, the legal and political system of checks and balances has also been severely hit, with measures that have severely undermined the rule of law. (Mónika Lamperth, MSZP, opposition, 14.11.2011, LP 39, Session 133)

During the Covid-19 pandemic, when the special legal regulation during the pandemic was debated, MSZP pointed out that, as 30 years before, there was a need for a “fight for freedom, the rule of law and democracy”.

(E)veryone, especially Fidesz, should be working to protect people, to protect human lives, to distribute protective equipment, to ensure the livelihoods of the masses who are losing their jobs. It is sad that, 30 years after the change of regime, we must once again fight for freedoms, the rule of law and democracy, because the republic that we have now is only a republic in form, a formal republic, which is in fact an authoritarian system that we must abolish. (Bertalan Tóth, MSZP, opposition, 27.4.2020, LP 41, Session 122)

Speakers from the ruling party rejected such criticism, creating their own, diverging narrative. On many occasions, they stressed that the Fundamental Law guarantees democratic rights and that, despite different political positions, there is no threat to the rule of law and democracy in Hungary, meaning that the rights are fully respected.

Hungary is able to prevent discrimination of gender and race in any situation. It is able to protect state property. It is able to assert freedom in all areas of life. The Hungarian constitution seeks to set in stone the right of citizens to work, to a healthy environment, and is able to formulate a system of public responsibility. (Mónika Rónaszékiné Keresztes, Fidesz, government, 22.2.2011, LP 39, Session 69)

There is no threat to the rule of law and democracy in Hungary, and everyone is guaranteed freedom of expression and freedom of speech. This fundamental law continues to guarantee all the democratic rights that we have enjoyed over the past two decades, extends fundamental rights and enables everyone to identify with the framework within which the nation operates, based on the Hungarian nation’s past, and to exercise democratic freedoms within the framework of the rule of law institutions. (Gergely Gulyás, Fidesz, government, 18.4.2011, LP 39, Session 84)

(A)fter the present establishment of the administrative courts, (…) an individual, citizen, civil organisation or other legal entity, who is inevitably in a weaker position vis-à-vis such bodies of power and is in a certain sense vulnerable, will not in future have a remedy against an act of the administration, i.e. of local or central power, within this system of state organisation, not within the administration, but will be able to appeal directly to an independent court. This is a radical change and the best possible thing in terms of the protection of human and civil rights. (Csaba Hende, Fidesz, government, 1.4.2019, LP 41, Session 64)

Also in the third wave, opposition parties referred more frequently than before to the EU to substantiate their criticism of the government for restricting rights. While in the decade before, reference to EU values had mostly been rather general and did not add up to a concrete narrative, MPs now underlined that the ruling parties also violated rights and fundamental values as enshrined by the EU and human rights institutions. As the following quotations show, speakers argued that the Hungarian government’s measures to “destroy” democracy (including democratic rights) and dismantle the rule of law caused the EU to respond (Szávay), that violating the rights of citizens and the rule of law would “generate further conflicts and further struggles with the organisations and the majority of the European Union” (Arató), and that the restriction of democratic rights by the governing parties have led to calls for human rights organisations and the EU to “defend the Hungarian people” (Tóth).¹⁷

It is not Poland that is being attacked, (…) but the Polish government’s behaviour, which is destroying democracy in the same way as you do, that is being criticised by the European Union, and immigration has nothing to do with it (…). (T)he European Union did not attack Hungary then, as you have been so keen to say so often, but it was your measures that were dismantling the rule of law that the European Union attacked. (István Szávay, Jobbik, opposition, 19.2.2018, LP 40, Session 269)

(D)efending the rights of citizens against the state or even large corporations guarantees the rule of law, which is crucial for the economy. It is also clear, for example, from the most recent example of Poland that the rule of law is one of the most clearly defended common fundamental values of the Union, and it is therefore quite clear that its violation will generate further conflicts and further struggles with the organisations and the majority of the European Union. (Gergely Arató, DK, opposition, 28.6.2018, LP 41, Session 14)

These signals cannot be taken lightly, as the democratic establishment of the state, or lack thereof, affects all areas of our lives. When a human rights organisation or the European Union speaks out against the violation of the Hungarian rule of law, the curtailment of local government rights or the lack of democratic rights, they are in fact trying to defend the Hungarian people, the rights of the Hungarian people, against the authorities. (Bertalan Tóth, MSZP, opposition, 27.4.2020, LP 41, Session 122)

The governing parties, by contrast, expressed that they did not see a contradiction between the national constitution and EU treaties in terms of respect for human and democratic rights. Speakers argued that these rights, as also guaranteed by the Fundamental Law, were not challenged by the ruling majority and that the criticism from the EU for dismantling rights was based on “political reasons”.

It is worth recalling the ominous EU fundamental values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, as set out in Article 2 of the EU Treaty. These fundamental values are also common to the Fundamental Law, and no one in Europe or in Hungary challenges them in their original, undistorted form. I am convinced that the proceedings under Article 7 were conducted for political reasons in the European Union, which is unacceptable to us and to the Poles. (Richárd Hörcsik, Fidesz, government, 19.2.2018, LP 40, Session 269)

During the transition phase, the support for individual rights, including the adoption of international and European treaties containing such rights, was particularly high and shared across parties. However, many statements with reference to human and citizens’ rights were very general, and the consent was shallow. This became apparent when parliamentarians debated more specific aspects such as transitional justice and the right to abortion—a matter at issue particularly during the second wave. As our sources reveal, the conflicts related to these issues were based on an ideological divide between conservative and right-wing parties and other parties. At the same time, we found that it was particularly the parties in opposition that linked their criticism of the government with references to the need to protect rights. The conflicts culminated after 2015 when in one-sided narratives the opposition parties accused PiS of restricting rights (Table 6.12).

During the first wave, representatives of all factions referred to the need for enshrining, respecting and protecting rights, making them enforceable before courts. This was interpreted as a major achievement in contrast to the former communist system. In short, and as exemplified by the following statements, parliamentarians used the narrative that the state must guarantee the rights and liberties of the citizens.

The proposed law affirms the natural rights to which every human being is entitled. In our understanding, the three main principles of dignity, equality before the law and freedom are principles that are universally recognised and accepted as the basis of the legal order in a democratic state. We agree with unquestionable, indisputable decisions that regulate the state–citizen relationship, decisions that can be enforced through the courts. These are precisely the guarantees that a constitutional law must contain: fundamental civil rights and freedoms, political rights and a basic minimum of social rights. (Stefan Szańkowski, PL, government, 21.1.1993, LP 1, Session 35)¹⁸

(A) constitution is needed in order to provide boundaries for the activities of the state, so that it does not stand above the citizens, and therefore to give people the certainty of existence as citizens precisely, who have rights and enjoy protected freedoms. (Hanna Suchocka, UW, opposition, 22.9.1994, LP 2, National Assembly Session 1)

The second matter, which is very close to me personally and on which I also want to comment, concerns civil rights and freedoms, which in any constitution are the most essential, most important and most closely observed element. When we talk about rights and freedoms, we should also remember that before 1989, they were somehow snatched away from the communist, totalitarian authorities. (…) The realisation of civil rights and freedoms must be ensured in the constitution. (Wojciech Borowik, UP, opposition, 23.9.1994, LP 2, National Assembly Session 1)

Often MPs expressed the general need to implement and realise certain rights in practice, referring to preconditions in the judiciary or to the behaviour of state institutions.

(I)t is not enough for civil liberties to be proclaimed and decreed, they must be organised by a balance of powers and the organisation of the market economy, which simply detracts from the field of activity of the state and gives credibility to such provisions. The ratification of this convention becomes credible only where it is accompanied by the construction of certain architectural foundations of a free society in the form of parliamentary democracy and a market economy. (Janusz Lewandowski, KLD, opposition, 22.5,1992, LP 1, Session 15)

While MPs from various political groups generally raised the need to establish a legal, political and judicial system, aligned with international and European standards, that would enable citizens to assert their acquired rights in a timely and effective manner, most statements in our sources stemmed from left and liberal factions. They also emphasised more than other parties the need to protect sexual, religious, national and other minorities. During the first wave of rule of law legislation, for example, they argued for the protection of individual rights, including those of perpetrators (Lewandowski), demanded anti-discrimination measures (Borowik) and declined privileges for certain religious associations (Jaskierna).

When creating legislation, we must adopt a new axiology, corresponding to a democratic state under the rule of law, one in which the law serves to protect a system of such fundamental values as the protection of human dignity and rights (of both the victim and the perpetrator), the protection of goods serving the human being and his or her development. (Marek Lewandowski, SdRP, government, 1.9.1994, LP 2, Session 28)

The guiding principle constituting the system of civil rights and freedoms is equality before the law. There can be no exceptions to this principle. The constitution of the Republic of Poland should be so unequivocal that there cannot even be the suspicion that any discrimination is possible in Poland. We share the concern of citizens with disabilities, supporters of different religions or minorities, including sexual minorities, for their equal place in society. Difference cannot be a reason for discrimination or unequal treatment. Rights and freedoms established by the will of the majority must not undermine the rights of minorities. We also extend this principle to the protection of vulnerable groups for economic or social reasons. (Wojciech Borowik, UP, opposition, 23.9.1994, LP 2, National Assembly Session 1)

We say that no church or religious association can be privileged by any law or international agreement. (…) Equality, tolerance, freedom to believe and not to believe are important. We believe that this is the standard of a democratic state under the rule of law (…). (Jerzy Jaskiernia, SdRP, government, 23.9.1994, LP 2, National Assembly Session 1)

Also when discussing the state of ethnic and religious minorities, left and liberal parties argued that the majority does not have complete freedom but must respect the rights of minorities. Other parties generally agreed to establish minority rights; however, there were certain concerns about the implementation (and the scope) of rights.¹⁹

The formation of majorities and minorities is (…) inevitable, not least as a result of democratic election procedures. These procedures give the majority the right to decide. However, it does not follow that complete freedom can reign here. It must be clearly stated and enshrined in the constitution that the will of the majority must not undermine the rights of the minority. This applies, in particular, to the rights of national and ethnic minorities. (Stanisław Rogowski, UP, opposition, 23.9.1994, LP 2, National Assembly Session 1)

This pattern did not change during the second wave of rule of law legislation when, for example, during the debate on a law on minorities mainly the SLD advocated positive discrimination of minority groups in terms of language, culture and religion.

The work on the draft law on national and ethnic minorities has been going on for 12 years. It has to be said honestly that this does not speak well of the Polish state, of our Chamber, which, although it is not grappling with the ethnic conflicts that so bloodily marked the decline of the twentieth century, is not able to fully guarantee its citizens the fundamental rights enshrined in the constitution. (…) I have heard from, as they described themselves, Polish patriots, that a special law for minorities is an unnecessary privilege that harms the Polish nation. (…) Minorities, by their very nature, are vulnerable to discrimination in their daily lives. Therefore, a democratic state under the rule of law must provide them with certain facilities. This so-called positive discrimination in no way harms other citizens. On the contrary, it testifies to the strength of spirit and tolerance of the national majority, the strength of democracy and the high level of the state under the rule of law. (Jerzy Szteliga, SLD, government, 15.2.2002, LP 4, Session 13)

Despite general rhetorical agreement, the debates about rights became more contentious during the second wave of legislation. Government MPs justified their bills by underlining that the respect of human and civil rights would be guaranteed while the opposition raised doubts. For example, the first PiS government declared its bill on the Central Anti-Corruption Bureau as a measure to establish equal rights for all citizens (Gosiewski), while the opposition argued that the bill would in contrast restrict constitutional rights and civil liberties (Kalisz).

As Law and Justice parliamentarians, we are aware that this is a special moment in the history of the High Chamber, as we are beginning work on a bill that will lead to a breakthrough in the fight against corruption crime. Corruption is a phenomenon that poses one of the greatest threats to the functioning of state institutions and is a denial of the constitutional principle of equality of all citizens before the law, as well as free and fair competition in economic activity. (Przemysław Edgar Gosiewski, PiS, government, 16.2.2006, LP 5, Session 10)

The draft of this law violates the constitution of the Republic in many places. First of all, attention should be drawn to the limitations of constitutional rights and civil liberties, such as personal inviolability – Article 41 of the constitution, such as the freedom and protection of the secrecy of communication – Article 49 of the constitution, such as the inviolability of the dwelling – Article 50 of the constitution. (…) This is a violation of basic constitutional benchmarks. (Ryszard Kalisz, SLD, opposition, 16.2.2006, LP 5, Session 10)

A similar pattern of general rhetorical agreement on the relevance of rights but criticism from the opposition of the real status of rights remained after a change of government, when the ruling parties pointed, for example, to the particular importance of protecting property rights (Tusk, PO) and re-establishing civil rights (Kalinowski, PSL), while the PiS, now in opposition, supported Ombudswoman Irena Lipowicz for criticising shortcomings of the protection of rights in Poland (Lipiec).

Along with the right to life and liberty, the right to property is one of the fundamental human rights and underpins the legal, economic and social order. Property is a condition for civil liberty and sustainability. We shall therefore endeavour to ensure that ownership at the individual level becomes widespread among our citizens, and the state will act in such a way – and I dedicate this to my government with particular determination – that it guarantees the effective and best possible protection of the private property of our citizens. (Donald Tusk, PO, government, Prime Minister, 23.11.2007, LP 6, Session 2)

Poland is a state under the rule of law, strong in the activity of its citizens. We are glad, Mr Prime Minister, that the period of undermining the independence of the judiciary and violating civil rights, especially the principle of the presumption of innocence, has come to an end (…) and we are also glad that those actions will be stopped which, while retaining a semblance of legality, lead to the appropriation of the state. (Jarosław Kalinowski, PSL, government, 23.11.2007, LP 6, Session 2)

I would like to say a lot more about matters of protecting human and civil rights in our difficult Polish reality. (…) I would like, from this place, to thank you, Professor, for your determination when it comes to acting on behalf of human rights, and also for the comments you have made today to all institutions responsible for human rights, including the legislature and the executive, which is not surprising. I make no secret of the fact that I am appalled that the Presidium of the Sejm is denying her the right to a meeting. She is in fact our envoy in the important mission of fighting for human rights. (Krzysztof Lipiec, PiS, opposition, 25.6.2014, LP 7, Session 70)

Post-1989 transformation. Although all parties agreed on the need to protect the individual under the rule of law, opinions diverged in discussions about concrete issues, particularly transitional justice. MPs in the Sejm repeatedly discussed whether and how people who had held positions of responsibility in the communist system should be held accountable for this action under the new regime, for example by restricting certain rights after 1989. This conflict was mirrored in diverging narratives used, especially during the first and second waves of rule of law legislation. Foremost left-wing, but also liberal parties argued that lustration must fully respect the individual rights of those subject to lustration and condemned a collective-guilt approach. Conservative and right-wing parties pointed out that collective security and justice must be protected and emphasised the collective right ‘to know’.

In participating in the work of the committee and the subcommittee, I have had the opportunity to become acquainted with a variety of points of view and the motivation behind the assessments. (…) I was only concerned about those cases in which, through the prism of individual events, there was a tendency towards an extreme, degenerate collective evaluation and collective punishment. (…) (W)hat I would like to emphasise most is the need for the new legislation to be framed and drafted in such a way that the protection of the citizen, his rights and freedoms comes first, followed by the protection of the interests of the state as a whole. After all, these relations were too clearly reversed in the past. (Józef Oleksy, SdRP, Contract Sejm, 6.4.1990, LP X, Session 25)

I also get the impression that the minister of justice does not have sufficient arguments to a certain group of prosecutors whom he does not want to re-employ in these positions. Collective responsibility must not be used, otherwise it will be the first step to rename the ministry the ministry of injustice. (Marek Boral, elected via PZPR,²⁰ party group LD/KP, Contract Sejm, 22.3.1990, LP X, Session 24)

We fully support the vetting project that has emerged from the vetting committee. And I have these thoughts: today, when we talk about lustration, it is impossible not to mention the events that took place almost five years ago in the same chamber, that is, the lustration resolution of the first-term Sejm and its implementation. For it is difficult to find in a democratic state under the rule of law a more flagrant example of disregard for the law. The very fact that a decision of this magnitude, concerning the uncovering of secret material of special importance as well as elementary human rights, did not have the status of a law and was introduced into the agenda on the fly, as it were, and adopted by surprise, was evidence of irresponsibility. The manner in which this resolution was implemented confirmed to excess all the fears of its opponents. (Jan Lityński, UW, opposition, 6.3.1997, LP 2, Session 102)

A relevant issue was whether lustration laws violate the rule of law principle of non-retroactivity. Conservative representatives argued that this is not an absolute principle.

It is alleged that it violates the principle of non-retroactivity. This principle, although not explicitly enshrined, is derived from the essence of the state under the rule of law. But exceptions to this principle are known and these exceptions are particularly justified in situations of political breakthroughs. This is precisely the situation we are facing. I would like to draw attention to the fact that this peculiar “verification” is to take place with the appropriate application of the regulations of disciplinary proceedings, regulations which provide far-reaching guarantees for the protection of judges’ rights, and which are further strengthened by the fact that the composition of the disciplinary court is to be increased to five members. (Teresa Liszcz, PC, government, 6.3.1992, LP 1, Session 10)

During the second wave of legislation (when the post-Solidarność AWS governed), mostly the opposition left and liberal MPs, such as Kurczuk, criticised the lustration law with regards to violation of rights, while MPs from the conservative and right-wing government, such as Ujazdowski, referred to the protection of rights during lustration and to the ultimate goal of bringing justice and security to the state. They demanded open access to files of the former Security Service (SB).

Unacceptable is the situation resulting from the wording of the provision of Article 27(2)(2)(b) of the Act, which introduces the possibility of resuming proceedings concluded by a final ruling to the detriment of a person vetted, which grossly deviates from the standards of a state under the rule of law (…). The final, substantive determination of the case and the termination of proceedings against a particular person must create guarantees for that person that he cannot be held responsible in the future for an act for which he has already been tried once. Thus, I emphasise these words: there must not be a state of permanent uncertainty for the person being vetted as to the consequences under Article 30 of the Act, and thus his freedom must not be unconstitutionally restricted. (Grzegorz Kurczuk, SdRP, opposition. 3.3.1999, LP 3, Session 45)

It is appropriate to reiterate once again the position of AWS. Lustration is a condition for the security of the state, a condition for the openness of public life and respect for the citizen’s right to information on the biographies of persons performing public functions. (Kazimierz Michał Ujazdowski, elected via AWS, government, 3.3.1999, LP 3, Session 45)

The conflict continued when a new lustration law was debated in parliament in 2006 under a PiS majority. The positions were only slightly adapted. PiS emphasised that the lustration served the public’s right to transparency with regard to persons in public functions (Mularczyk) while the left parties warned of an inquisition (Kalisz).

The proposed law implements the principles enshrined in Article 2 of the constitution of the Republic of Poland, which states that the Republic of Poland is a democratic state under the rule of law, realising the principles of social justice by ensuring transparency in public life, and in particular by providing information on persons who perform public functions, in accordance with the principle set out in Article 61(1) of the constitution of the Republic of Poland. (Arkadiusz Mularczyk, PiS, government, 9.3.2006, LP 5, Session 12)²¹

So the Democratic Left Alliance is in favour of continuing lustration, but let it be judicial lustration. And we agree with the postulate that if there is such a great need to extend the scope of vetting to other groups of people, let vetting courts be established in each voivodship, because the one in Warsaw would not be able to handle it. Only any determination of guilt – the determination of guilt in vetting proceedings – must be on an adversarial basis and on the basis of a court verdict. We cannot leave that out, otherwise we are dealing with an inquisition. Perhaps an inquisition is dear to some people here, but an inquisition must not be allowed here in a democratic state under the rule of law. (Ryszard Kalisz, SLD, opposition, 9.3.2006, LP 5, Session 12)

Individual and collective rights. While conservative parties generally supported the broad need to establish and protect rights, they occasionally put more rhetorical emphasis on the common good, arguing that “there are no individual rights without the rights of the family and without the rights of the nation”.²² This tendency strengthened during the second wave of legislation, after the adoption of the constitution in 1997. In that time, conservative and rightist forces made intensive use of the narrative that the common good, collective security and (Christian) values need to be protected. This became apparent, for example, when debating the right to abortion, which the left and liberal parties demanded as an absolute constitutional right (Banach), while conservative parties emphasised the right to life of the unborn child, citing a constitutional court ruling (Liszcz).

The right to life is not an absolute right and therefore an overriding right, not coming into conflict with other rights, including another right to life. If this were the case, it would be impossible to kill in war, which is allowed under both the old and the new constitution, not only in defence of life, but of another constitutional value such as individual and collective freedom. In the light of this conflict of goods, the Polish constitutional court has not at all invoked and analysed a woman’s constitutional right to human dignity, understood as the impossibility of demanding from a woman such sacrifices and offerings that would clearly exceed the ordinary measure of the duties of motherhood. (Jolanta Banach, SdRP, opposition, 17.12.1997, LP 3, Session 6)

The ruling in question on this issue brings pride of place to the Polish court and emphatically demonstrates the importance of this institution in a democratic state under the rule of law. (…) The provisions abolishing the prohibition of any action against the conceived child, except for those aimed at protecting its or its mother’s life, and legitimate prenatal examinations, and abolishing the punishability of acts involving bodily harm to the conceived child or causing a disorder of its health threatening its life, were also deemed unconstitutional. (…) In addition to this – or perhaps it should be said: before the provisions containing specific legal solutions detrimental to the protection of life and other goods of the unborn human being – the court declared unconstitutional the amended Article 1 of the Anti-abortion Act, reducing the protection of the conceived child, i.e. according to its wording: the protection of life in the prenatal stage, to the limits set by the ordinary legislator. (Teresa Liszcz, PC, government, 17.12.1997, LP 3, Session 6)

In this conflict, conservative parties argued that human life was directly protected by the rule of law.

I am thinking here of a very important principle – the protection of human life precisely on the basis of the rule of law and the dignity of respect for the human person. (Tadeusz Cymański, elected via AWS, joined PiS parliamentary group, opposition, 24.7.2001, LP 3, Session 114)

If the content of a state under the rule of law is a set of fundamental directives introduced by the essence of democratically constituted law and guaranteeing a minimum of its justice, then the first such directive must be respect in a state under the rule of law for the value without which all legal subjectivity is excluded, namely human life from its beginnings, from its inception. It is worth recalling this fundamental ruling for the existence of the rule of just law in Poland. (Kazimierz Michał Ujazdowski, PiS, opposition, 5.7.2002, LP 4, Session 25)

Also in a debate about a law on national and ethnic minorities, the League of Polish Families questioned if “the fact that the electoral committees of national minorities do not have to exceed the 5 per cent support threshold in elections to the Sejm” would not be enough privileging of minorities and that further measures might be incompatible with the constitutional principle of equality.²³

International and European level. International and European treaties were mostly invoked in the 1990s, especially when discussing the ratification of rights charters. Generally, the parties expressed their agreement that international and European institutions are relevant to protecting the rights of citizens. There was a common perception, however, stressed most frequently by left and liberal MPs as well as by parliamentarians of the German minority, that the adoption of international standards into national law would complete the Polish legal system. They highlighted the importance of ratifying the European Convention on Human Rights,²⁴ which was interpreted as “supplementing our internal, imperfect system of protecting the rights of human beings living in Poland, becoming its next, extremely important link, greatly strengthening the legal positions of citizens in various legal relations, including with the state”.²⁵

During the second wave of rule of law legislation, MPs across party lines cited along with the constitution the Declaration on Human Rights, the International Covenant on Civil Rights,²⁶ other international treaties and later the EU framework to support their own arguments concerning specific issues debated in parliaments. On such occasions, they declared compliance with these norms as obligatory to guarantee the protection of rights.

The obligation of legal protection of life is also statuated by international legal acts binding on Poland, in particular: the 1966 International Covenant on Civil and Political Rights (primarily in Article 6) and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (primarily in Article 2), as well as the 1991 International Convention on the Rights of the Child. (Teresa Liszcz, PC, government, 17.12.1997, LP 3, Session 6)

In this context, I would like to ask you [the ombudsperson] whether you see the fact that Poland is bound by the European Convention on Human Rights, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment and other conventions ratified by Poland? Because from some of the speeches, including in this discussion, it could appear that Poland had no international obligations here. So it was only a matter of our whim, what kind of conditions of serving a sentence in Poland we create. (Jerzy Jaskiernia, SLD, opposition, 24.7.2001, LP 3, Session 114)

Left-wing parties, especially when in opposition, hinted at the citizens’ right to turn to the ECtHR and the relevance of the ECJ in the event that Poland fails to fulfil its international obligations (Rydzoń) and emphasised the need to reach “European standards” in the country (Pawłowski).

In the opinions of the representatives of the Bureau of Studies and Experts, concerning the drafts of Self-Defence and League of Polish Families, under the heading: conclusions, we read: “However, if the adoption of the project in the implementation of the new provisions were to result in a serious and persistent violation of the principles of liberty, democracy and respect for human rights and fundamental freedoms and the state under the rule of law in the future, including in particular such rights as the right to privacy, the right to an effective remedy and the right of access to an impartial court, this could lead to political action by the European Union institutions in the nature of political sanctions.” (Stanisław Rydzoń, SLD, opposition, 9.3.2006, LP 5, Session 12)

Equal treatment of citizens irrespective of gender, race, ethnic origin, nationality, religion, belief, worldview, disability, age or sexual orientation still falls short of European standards in our country. The adoption of the bill on the implementation of certain provisions of the European Union in the field of equal treatment will bring us closer to these standards, at least from the legal side. In the mental and cultural sphere, it will be a process that will be prolonged in time, spread over years and perhaps even generations. (Sylwester Pawłowski, SLD, opposition, 28.10.2010, LP 6, Session 77)

Early on, but only occasionally in our sources, conservative and right-wing parties criticised other parties for “going to Strasbourg and Brussels” to circumvent parliamentary majorities in Poland, for example in a debate on the adoption of the European Convention on Human Rights in 1992 (Jurek). At times, they were also critical of the Western antidiscrimination approach (Paluch) and accused the European Parliament of “interfering in the rights of sovereign states”.²⁷

I will say frankly that I am not surprised by anything in this speech, not even by the fact that, when there has been a lack of other fraternal help, threats are already being made to Poland and the Poles, that some people, perhaps including those sitting in this Chamber, are going to turn to Strasbourg and Brussels for fraternal help (applause) against Poland and the Poles, against laws and legislation sovereignly made by the Polish parliament, in accordance with the law, in accordance with our sense of justice, against the Poles quite simply. This does not surprise us. (Marek Jurek, ZChN, government, 22.5.1992, LP 1, Session 15)

I do, however, have some concerns relating to my conviction that the legal system of some EU member states contains provisions that are regarded there as a tool for combating discrimination against minorities, the operation of which in our system, in our reality, should not necessarily be considered desirable. In relation to this, I would like to ask the following question: will it be possible, on the basis of the institution of the European arrest warrant, to surrender to the courts of other EU countries people who in Poland speak out against the legalisation of same-sex marriages or in defence of the family, which, in the light of the legal provisions of other EU countries, may be considered a manifestation of homophobia, discrimination against minorities etc.? (Anna Paluch, PiS, government, 21.6.2006, LP 5, Session 20)

During the third wave, the international and European level was also mentioned, but the focus was on national (rights) violations in general due to the judicial reforms under the PiS government.

During the first two waves, representatives across parties agreed that the right to an effective remedy and fair trial is fundamental in the rule of law. In the early and mid-1990s, MPs voiced this narrative in various debates on the judiciary, constitutional laws and other issues in a declaratory way. The necessity of (establishing) functioning and just courts was highlighted by MPs from both government and opposition.

We believe that the above-discussed proposals for changes in the government’s submission should be supported, sharing the view that they serve the legitimate aim of strengthening the efficiency of the judiciary, preventing the recently visible organisational inertia and improvement of the implementation of the fundamental tasks of the justice system and the judiciary – ensuring real, equal right to court for all citizens. (Piotr Wójcik, PC, government, 6.3.1992, LP 1, Session 10)

The need for universal access to an administrative court is of course an institutional guarantor of a democratic state under the rule of law, but on the other hand it should be borne in mind that complaints to an administrative court are not infrequently an expression of mere petulance. One has to use the proverbial ‘golden mean’ to reconcile beautiful ideas with the mundane reality of life. (Aleksander Bentkowski, PSL, government, 7.4.1994, LP 2, Session 17)

This law we are talking about today is the first law that is supposed to implement the assumptions on which the new constitution was based. It is supposed to implement those constitutional institutions that the constitution creates or introduces into the political system of our state. I think it is very good that we begin the process of implementing the constitution in the life of our state with a law that essentially constitutes the basic guarantee of creating a state under the rule of law or strengthening a state under the rule of law, and not in some abstract way, but from the point of view of changing the status of the citizen in the state. (Jerzy Ciemniewski, UW, opposition, 6.6.1997, LP 2, Session 108)

During the second wave of legislation, mainly opposition MPs referred to legal protection, mostly when criticising the perceived non-functioning of courts, or during the PiS-led government from 2005 until 2007 with regards to the lustration process and anti-corruption measures. However, politicians from all parties appreciated the work of the constitutional court in protecting citizens’ rights when discussing the court president’s reports to the Sejm and when the court’s decisions supported their own position.²⁸

Thank you very much on behalf of the Law and Justice Parliamentary Club for the information presented on the work of the constitutional court in 2014. It is a detailed, comprehensive document that tells how important matters were dealt with by the constitutional court. It is a document that confirms that the role of the Constitutional Tribunal in the Polish legal system, in maintaining civil liberties and rights, is truly difficult to overestimate. In its rulings, in its judgments, the Constitutional Tribunal has often indicated to the Sejm, the Senate and the president of the Republic of Poland the courses of action that should be taken to ensure that the system of civil rights and freedoms is not only maintained, but expanded. At the same time, it has often indicated to citizens and institutions that are entitled to raise questions, to submit applications to the Constitutional Tribunal, that there are no absolute freedoms, that these freedoms must sometimes be restricted in the name of the common good, in the name of preserving other freedoms. (Wojciech Szarama, PiS, opposition, 10.7.2015, LP 7, Session 96)

I would like to thank you for this further year of work for the protection of our citizens, the protection of their rights and freedoms, as well as the protection of the democratic system in the state, in the Republic of Poland (…). (Stanisław Chmielewski, PO, government, 10.7.2015, LP 7, Session 96)

The rhetoric changed after the 2015 elections. From then on, mostly opposition MPs referred to legal protection in their general criticism of the ruling majority’s reforms, stating that the amendments and laws affecting the judiciary, especially to the constitutional court, would undermine its independence and would ultimately result in a system that fails to protect citizens’ and fundamental rights.

One of the greatest values is democracy, i.e. the rule of the majority, but with respect for the rights of the minority. The guarantor of this is the constitution, and the guarantor of the observance of the constitution in lawmaking is the constitutional court – the construction of the constitutional court is designed in such a way that none of the political options has a guaranteed majority in it and can legislate against its principles. Poles are to have the right to feel secure that their democratic rights and freedoms are not threatened. (Katarzyna Lubnauer, N, opposition, 19.11.2015, LP 8, Session 1)

The introduction of the above changes will mean that Poland will definitely cease to be a democratic state under the rule of law. If there is a lack of independent courts, nothing will stand in the way of future restrictions on the rights and freedoms of citizens as enshrined in the constitution without having a sufficient majority. (Kinga Gajewska, PO, opposition, 22.11.2017, LP 8, Session 52)²⁹

Disregard of rights. The disregard or restriction of (all kinds of) rights was mentioned in all three waves of rule of law legislation. In the 1990s, MPs frequently deplored a lack of rights protection as inherited from the previous communist regime. Following the adoption of the constitution in 1997, MPs criticised non-compliance with existing legislation, constitutional principles and international or European standards, especially in debates on the reports of the ombudspersons and president of the constitutional court. Furthermore, during the first PiS-led government in 2005–2007, bills were criticised by the opposition as violating human and civil rights. After 2015, when PiS re-entered government, opposition parties frequently argued that the ruling majority’s legislation restricts civil rights. This narrative was particularly prominent in debates on the reforms of the constitutional court (Rosa), public prosecution (Budka), the judiciary, and other legislation such as the criminal code (Ueberhan).

(Y)ou are not hitting the judges, you are not hitting the opposition, you are hitting ordinary citizens with this amendment. And this situation is unfortunately a bit like Orwell’s Animal Farm. At the beginning everyone was equal, later everyone was equal, but some were more equal. We all know how this book ends. (Monika Rosa, N, opposition, 17.12.2015, LP 8, Session 5)

You are squandering constitutional values. It is the sickness of history that not so long ago you were able to insult the constitution, and now suddenly you are talking about Article 2, about the principle of a democratic state under the rule of law, while at the same time you are preparing the tools of a total state, a state in which politicians will implement criminal policy with practically no accountability. We want to discuss improving the security of citizens, we want to discuss improving the functioning of the judiciary in the broadest sense, but there will be no consent to violating basic human rights under the guise of such laws, to politicise the prosecutor’s office from the bottom up, to dissolve appeal prosecutors’ offices in the name of political revenge and to carry out such a purge in the prosecutor’s office, as prosecutors are clearly saying, just because there could be prosecutors there who do not want to act politically. (Borys Budka, PO, opposition, 13.1.2016, LP 8, Session 8)

The amendments to the criminal code, which are ostensibly intended to comply with an EU directive, are formulated in such a way that they have nothing to do with the directive, and may restrict human rights, even freedom of expression, freedom of assembly, the right to family life, the dissemination of information for scientific, academic or reporting purposes. The draft violates the rights of detainees, restricts the right to court of the less well-off, disregards the existing fundamental rules of procedure. These changes have nothing to do with the fight against terrorism and the implementation of the Directive. (Katarzyna Ueberhan, Wiosna, opposition, 26.2.2021, LP 9, Session 26)

PiS occasionally referred to legal protection to justify certain reforms, arguing that the bills or amendments would not infringe any legal right protection system.³⁰

In the parliamentary debates analysed, Romanian MPs did not engage in deeper discussions about rights. They in general expressed their agreement on the relevance of guaranteeing rights, a narrative which was mainly used during the first wave of rule of law legislation. However, for some specific issues, parties presented competing stances and we identified diverging and one-sided narratives. During the first wave of rule of law legislation, parties used diverging narratives concerning the individual and collective rights for ethnic minorities. During the second and third waves, two one-sided narratives were employed with particular intensity, one concerning rights violations by an anti-corruption public prosecution agency, the other regarding the role of European institutions for protecting rights (Table 6.13).

General remarks on fundamental, human or civil rights. Romanian MPs from all parties frequently stressed the importance of human, basic and citizens’ rights (whether framed as human rights according to international declarations or fundamental rights enshrined in the constitution) as major achievements in post-communist times. On such occasions, these rights were routinely enumerated together with democracy and the rule of law. Such statements were made, for example by UDMR’s Geza Domokos (see quotation below), above all in the first wave of rule of law legislation, when the constitution of 1991 and its amendment in 2003 as well as major legislation on the judiciary were adopted. On an abstract and declarative level, MPs used the narrative that the state must guarantee the rights and liberties of the citizens. The rapporteur of the draft constitution, FSN-affiliated Ioan Muraru, for example, framed the Romanian constitution as indebted to several national and international declarations that shared common values. Protecting them was declared an important duty of all branches of government.

The ideals of the December 1989 Revolution must find expression in the fundamental law. Hopes for freedom and for the assurance and respect of fundamental human rights and freedoms must be unequivocally enshrined in the new constitution (…). (Geza Domokos, UDMR, opposition, 13.2.1991, AC, LP 1)

All these declarations, covenants and charters affirm the undeniable truth that all human beings are born free, equal in dignity and rights, and that among these rights are life, liberty and the pursuit of happiness. (…) (B)y these regulations it is solemnly declared to be the highest aspiration of the people and the aim of every society organised as a state to proclaim, preserve and protect the natural liberties and rights of man. (Ioan Muraru, FSN, government, 12.3.1991, AC, LP 1)

When the Law for the Organisation of the Judiciary was debated in 1991, the MP Ioan Ban (PNL) pointed to the possibility that public prosecution could infringe citizens’ rights but, in the end, he was content with the legislative regulations:

These are very serious measures which touch upon human rights and that is why someone must watch over the work of this category of magistrates. (…) But, due to the fact that citizens can be exposed to certain abuses, to the violation of human rights, it is absolutely necessary and, we consider, very advanced and progressive this form of legislation that the government has presented. (Ioan Ban, PNL, opposition, 28.5.1991, CD, LP 1)

In the debate on the constitutional amendments in 2003, the rapporteur enumerated the fundamental rights of the citizens, and MP Mircea Ionescu-Quintus (PD) stressed the newly constitutionalised ones:

On the positive side, new fundamental rights and freedoms, such as equal opportunities for women and men, the guarantee of economic freedom and free initiative, access to culture, the right to a fair trial and the right to a healthy environment, are included in the constitutional provisions. (Mircea Ionescu-Quintus, PNL, opposition, 25.8.2003, S, LP 4)

The ‘Romanian’ parties stressed that the rights of ethnically non-Romanian citizens are protected individually, just as those of ethnic Romanians. This was cited by Ion Raţiu (PNŢ) and Valeriu Stoica (PNL) as being in line with the original idea of the rule of law as a liberal concept. Stoica interpreted the protection of the individual as resulting in the protection of entire minority groups. Collective rights were therefore not necessary. Furthermore, the mainstream parties argued that collective rights for ethnic minorities were inadmissible, since they would constitute a discrimination of ethnically Romanian citizens, as Deleanu put it.

(I)n drafting the constitution we must never forget that the purpose of a constitution is the rule of law, the idea for which the state was created is the defence of the individual, not of the collectivity, and the very defence of the collectivity that results from it is nothing other than the defence of each individual. (Ion Raţiu, PNŢ, opposition, 13.2.1991, AC, LP 1)

Proclaiming that the state is based on the unity of the Romanian people, the common and indivisible homeland of its citizens, without any discrimination, it also recognises and guarantees the expression of the identity of ethnic minorities in all areas of economic, political, cultural, religious, legal and social life. The right to identity goes far beyond the simple principle of equality. Naturally, such a right, with its broad significance and profound implications, must not be turned into a privilege. Anachronistic by definition with the very democratic substance of society. (Ioan Deleanu, FSN, government, 13.2.1991, AC)

(F)or us the defence of minority rights is a principle from which we never deviate. I have justified why: in the long-standing liberal tradition, the defence of minority rights means, first and foremost, the defence of individual rights and, by that, the defence of group identities. (Valeriu Stoica, PNL, opposition, 26.6.2003, CD, LP 4)

The more nationalist parties like PUNR or PRM also supported this view; their main priority was the integrity of Romania as a nation state, as Ioan Gavra (PUNR) made clear. Therefore, on later occasions, Damian Brudaşca (PRM) pointed to the fact that the Romanian constitution spoke of “citizens of ethnic minorities” and not of “communities of ethnic minorities”.

I believe that those who raise the issue of respect for human rights in Romania are living or reliving a certain pre-war political romanticism. (…) (W)hen we are drafting a new constitution for Romania that we want to be democratic, we are guided by the indestructible nature of the Romanian unitary national state. This word ‘national’ probably bothers some people. But we need it because, over the years, we have experienced many moments of hardship because others have attacked our national identity; secondly, it is a question of respecting and affirming a certain national consciousness. (…) (T)he other populations and ethnic groups living in Romania represent only 8% (…). (Ioan Gavra, PUNR, supporting government, 13.02.1991, AC, LP 1)

(B)y adopting this ordinance we may be setting an extremely dangerous precedent. In the text of this law, we are talking about property that belonged to the “community of national minorities in Romania”. It should be pointed out that the Romanian Constitution speaks of “citizens belonging to national minorities”, not “communities of national minorities”. So we are preparing to return things to entities that are not recognised by the Romanian Constitution. (Damian Brudaşca, PRM, opposition, 11.5.2001, CD, LP 3)

In contrast, MPs from UDMR and other minority representatives argued—particularly during the first wave of legislation—that individual rights were simply not enough for practically implementing the constitutional right of minority groups to preserve their cultural cohesion and identity. As they stressed, language and culture are inherently collective systems, and institutions such as schools that teach in minority languages could not be organised on the basis of individual rights. On a broader scale, minority MPs demanded the allegedly outdated denomination of Romania as a nation state be exchanged for some other solution that would reflect the county’s multi-ethnic composition and would be more in line with “European values”, as Andrei Echim from the Minority Group suggested, or with “the new realities of today’s Europe”, as Geza Domokos (UDMR) proposed.

Our conviction is that, in relation to the imperative of Romania’s integration into European values, the residues of the totalitarian-Ceauşescu mentality in national matters are incompatible with the rules of law already established and with the legal conscience of the democratic world in the field of human rights and the rights of national minorities. (Andrei Echim, National Minority Group, opposition, 13.2.1991, AC, LP 1)

(I)s it not a contradiction to state on the one hand that the Romanian state is national and on the other hand that the state recognises and guarantees the right to preserve, develop and express the identity of all ethnic minorities? (…) (W)e are not calling for the establishment of a multinational state with all that would follow from this. We believe that the essential elements of our state are sovereignty, unity and indivisibility. They fully cover the notion of the modern Romanian state with openness to the new realities of today’s Europe, of the contemporary world. (Geza Domokos, UDMR, opposition, 13.2.1991, AC, LP 1)

They also called for more specific minority rights, e.g. the right to have a translator provided in court for being able to use the right to court as provided in the constitution.

Romanian citizens belonging to ethnic minorities (…) know the Romanian language, perhaps not to the same degree of perfection that Romanian citizens of Romanian nationality know, but they know the Romanian language, but they have difficulty expressing themselves in court, given the fact that it is a very specific language, even for a Romanian (…). They know Romanian, but they want to exercise a fundamental right provided for in the constitution. (Attila Varga, UDMR, opposition, 26.6.2003, CD, LP 4)

Disregard/restriction of rights. In the second wave of rule of law legislation from 2004, a one-sided narrative emerged and was frequently used, suggesting that under the guise of President Traian Băsescu and Minister of Justice Monica Macovei the public prosecution violated citizens’ rights, like the presumption of innocence and the secrecy of telephone conversations. Băsescu and Macovei engaged actively in fighting corruption and had established the National Anti-Corruption Directorate (DNA) as a specialised anti-corruption body (Sects. 3.2 and 3.3). Representatives from the social-democratic PSD and the liberal ALDE were most often accused of and prosecuted for acts of corruption and abuse of public office. It was mainly MPs from these parties who voiced the narrative, for example when they started their first attempt to oust Băsescu from office in 2007.

The President of Romania was at least complicit in the violation of Article 28 of the constitution, regarding the secrecy of correspondence, according to which “The secrecy of letters, telegrams, other postal items, telephone conversations and other legal means of communication is inviolable”. (…) This is a violation of the fundamental rights of citizens, enshrined in the constitution, of the provisions of Article 28 of the constitution on the secrecy of telephone conversations, by reference also to the laws on the organisation of intelligence services. (Titus Corlăţean, PSD, opposition, 28.2.2007, CD+S, LP 5)

On the occasion of the debate on the Law on the Code of Criminal Procedure in 2010, the MP András-Levente Máté (UDMR) raised the spectre of a surveillance state.

If the prosecutor already wants to pursue certain data transfers, human rights may already be automatically violated. When he wants to find out whom I have spoken to, not what I have spoken about, just whom I have spoken to, or even when he wants to check my email address, whom I have communicated with, that already violates human rights. All the prosecutor has to do is go and ask for a court order. Because otherwise, we get to the point where everyone can be prosecuted, whether they are suspected of something or not. (András-Levente Máté, UDMR, government, 22.6.2010, CD, LP 6)

Although the narrative was most frequently used during the second wave of legislation, MPs continued to voice it later. Even much later, when the PSD-led government tried to roll back some of the anti-corruption measures, MPs like Steluţa-Gustica Cătăniciu (PSD), ALDE’s Călin Popescu-Tăriceanu or Márton Árpád—whose UDMR was in different constellations, sometimes supporting PSD- and sometimes PNL-led governments—recalled the alleged violations of fundamental rights by the DNA.

At the time to which you refer, a judge, and not any kind of judge, but the President of the High Court of Cassation and Justice, declared himself to be DNA’s trusted partner, and Romania was condemned by the ECtHR. The rule of law was seized by the structures of force, and the idea of fundamental rights was perverted into that of the fight against corruption. (Steluţa-Gustica Cătăniciu, PSD, government, 12.9.2017, CD, LP 8)

Well, I call upon the old PNL MPs, if they are still sensitive and concerned about defending the rights and freedoms of the individual. I remind you that the rule of law is not based on repressive institutions and their unlimited reinforcement, it is the rule of law that is capable of defending first and foremost the rights and freedoms of citizens and the democratic order. Perhaps this appeal of mine has the gift of waking you up, even if belatedly. (Călin Popescu-Tăriceanu, ALDE, government, 29.9.2015, CD+S, LP 7)

A country where the goodwill of prosecutors reigns, who, hand in hand with certain segments of the secret services, destroy human lives, who terrorise the entire state administration, even the parliament or judge members of the CSM, without answering for their actions. A country in which human rights being only a luxury are not respected at all. A country where anyone can be listened to and recorded almost permanently, without any hindrance, with the invocation of national security. Thus, people who are inconvenient to these structures are prosecuted on other grounds, using parts of the truncated recordings, without being allowed to hear the whole recording, on the grounds of protecting national security. A country in which the presumption of innocence and the presumption of the illicit nature of the acquisition of wealth remain dead letters of the Constitution. (Márton Árpád, UDMR, opposition, 12.9.2017, CD, LP 8)

International and European level. The overarching narrative on the meaning of the Romanian Revolution was that it aimed at returning to European and to historical Romanian values at the same time. MPs of all parties and across time interpreted the membership in European organisations as a ‘natural step’ that corresponded to their own values, enumerating also human rights and freedom.

This is because the values of the Union are respect for human dignity, freedom, democracy and the rule of law, values shared by the member states in a society characterised by pluralism, non-discrimination, tolerance, justice and solidarity, the Union offering its citizens an area of freedom, security and justice. (Ştefan Glăvan, PC, opposition, 17.5.2005, CD+S, LP 5)

However, MPs, mainly from opposition parties, often used European bodies’ criticism of certain problems in Romania as an argument to support their own positions in parliament. On such occasions, they often accused the ruling parties or the president of paying only lip service to European norms and treaties. They invoked the Copenhagen criteria, the Council of Europe, the European Court of Human Rights, opinions or reports of the EU Commission, the European Parliament and Council, as well as GRECO, the Venice Commission or the Cooperation and Verification Mechanism. Parliamentarians also indirectly threatened sanctions from these institutions, e.g. defeats at the ECtHR.

I hope we will not face a new safeguard clause, although this could always be considered by those monitoring Romania. However, the state is involved in cases before the European Court of Human Rights, where Romania is in the unfortunate lead in losing cases. (Vasile Puşcaş, PSD, opposition, 9.10.2007, CD, LP 5)

The narrative that European institutions are relevant to protect the rights of citizens was mainly used during the third wave of rule of law legislation. Especially from 2017 to 2019, when the two chambers of the Romanian parliament debated the criminal code and the fight against corruption, parliamentarians like the very active Ioan Cupşa (PNL) often lumped the European bodies and recommendations together. Together with other opposition MPs like Ion Stelian (USR) he presented positions of European institutions regarding rights as guidelines for Romanian policy and violations of them as harming Romania’s interests. The parliamentary discourse reflected that different groups of actors (including judges’ organisations) engaged intensively in the third wave of rule of law legislation to mobilise statements by various European actors (Sect. 3.4).

How do you protect Romania’s interests, considering that the European Commission, the European Parliament, the Council and the Venice Commission, all together, as Romania’s legitimate international partners, advise us – and I will read it to you. I will read to you what these international partners advise Romania on the criminal code and the code of criminal procedure: Freezing the entry into force of the amendments to the criminal code and the code of criminal procedure; Reopening the process of revising the criminal code and the criminal procedure code, taking full account of the need to ensure compatibility with EU law and international anti-corruption instruments, as well as the recommendations made in the CVM and the opinion of the Venice Commission. (Ioan Cupşa, PNL, opposition, 24.4.2019, CD, LP 8)³¹

We remind you of the public positions adopted by GRECO, the Venice Commission, the European Parliament and the European Commission – through the CVM Report and the Resolution adopted on 13 November 2018 – public positions that show the conclusions of these international bodies of which Romania is a member, conclusions that are generally valid, that it is not appropriate to set up the Criminal Investigation Section and we are recommended not to set it up. (Ioan Cupşa, PNL, opposition, 5.3.2019, CD, LP 8)

It is important to say that at no point is it asking for the limitation periods for criminal liability to be reduced. It is important to say that neither the Court nor the European Union is calling for the decriminalisation of offences such as negligence in the performance of duties, such as aggravated abuse in the performance of duties, with gain for oneself or for another, or with the causing of damage and particularly serious consequences. (Ion Stelian, USR, opposition, 24.4.2019, CD, LP 8)

In Slovakia, as in the other parliaments, rights were rarely invoked as a stand-alone topic in the rule of law debates. Instead, they were usually related to various other issues, and statements about rights often did not constitute narratives in the way we defined them. This was also because the statements related to rights were often made by the same individuals, which—while reinforcing the impression that the topic was an issue of particular interest—made it challenging to identify narratives. Most often, MPs referred to rights to justify their own position when speaking about problems and challenges to the rule of law. Irrespective of their party affiliation, they routinely accused those in the government of restricting rights, thus cementing a public discourse of misconduct. Consequently, the narrative claiming that governments disregard rights was the most frequently used narrative on rights. It was employed over time, with particular intensity during the first and third waves of rule of law legislation. Other narratives were related to the judicial and extrajudicial protection of rights. They were used either by individual parties (one-sided) or by opposing camps (diverging narrative) (Table 6.14).

Disregard/restriction of rights. The thematic emphasis on fundamental human and civil rights in the parliamentary debates analysed mostly revolved around calls for their respect and protection or allegations of their restriction. References to the disregard or restriction of rights appeared across legislative periods in connection with various other issues. Typically, and particularly during the first and third waves of rule of law legislation, opposition parties criticised the governing majorities, using the narrative that the ruling parties restrict(ed) certain rights and that some fundamental rights are at risk. Rhetorically, this criticism was often harsh, with accusations of authoritarian or totalitarian tendencies.

In the mid-1990s, such statements targeted HZDS, whose legislation, e.g. amendments of the criminal code, was presented as a violation of human rights (see the quote by Rózsa) or constitutional citizens’ rights (Benčík).

My constituents are outraged by the adoption of the amendment to the criminal code, because they see it as part of a set of laws aimed at concentrating power, strengthening the position of the executive, restricting fundamental human rights, and instead of democratic changes, creating an authoritarian style of governance. (Ernő Rózsa, Spolužitie-Együttélés, opposition, 29.3.1996, LP 1, Session 14)

(B)oth texts of both amendments are (…) also a threat that jeopardises constitutionally guaranteed political rights, such as freedom of speech, freedom of association, assembly and others. (Michal Benčík, SDĽ, opposition, 11.2.1997, LP 1, Session 24)

Later, after a change in government, HZDS complained about violations of the individual rights of its leader and former prime minister Vladimír Mečiar, after police forced him to testify, which he had refused to do and locked himself in his villa in Trenčianske Teplice.

(I)f we are to evaluate the police intervention at the family home of Vladimír Mečiar in Trenčianske Teplice, we must unequivocally state a gross and unjustifiable violation of fundamental human rights and freedoms of the individuals residing there. (Jozef Kalman, HZDS, opposition, 27.4.2000, LP 2, Session 30)

During the third wave of rule of law legislation, several protest parties that entered parliament pointed to an alleged general threat to individual rights by increasing the powers of the state (Hraško) or curtailing fundamental human rights and freedoms during the Covid pandemic, for instance (Kotleba).

This amendment to the constitution, as I mentioned, is a return to totalitarianism. And I’ll share one thought here, which isn’t my own: the more rights for the state, meaning the police, the intelligence service, judges, the fewer rights and freedoms for citizens. (Igor Hraško, OĽaNO, opposition, 2.12.2015, LP 6, Session 58)

You are taking steps that, when we put them together into a coherent mosaic, cannot be called anything other than steps that clearly (…) lead to the curtailment of basic fundamental human rights and freedoms in Slovakia, which introduce almost totalitarian practices in some areas, and which with such elements and choices which we face today also question the remnants of citizens’ trust in the rule of law that they still have. (Marian Kotleba, ĽsNS, opposition, 5.2.2021, LP 8, Session 23)

Occasionally, representatives of the governing majority also used the narrative when criticising previous governments. For example, HZDS accused a predecessor cabinet of secretly violating property rights (Hofbauer) and an MP from Most-Híd invoked the perceived disregard for the fundamental rights and freedoms in the 1990s (Kresák). The usage pattern of this narrative indicates that it was an overlapping narrative.

Respect for the rule of law has been violated elsewhere – by cabinet decisions regarding national assets under such circumstances that neither the founding ministries nor even the ministries that should have known about it, nor even the Ministry of Administration and Privatisation itself, were aware of it. That there has been an encroachment on property rights in this way and that it is an unprecedented act. Ladies and gentlemen, it is unprecedented when a government which did not obtain a mandate through elections and even lost it in elections decides to continue to dispose of the national wealth of the state, essentially in a conspiratorial and cabinet-like manner. (Roman Hofbauer, HZDS, government, 22.12.1994, LP 1, Session 14)

We are facing a truly significant decision today, a decision that can allow us, after 19 years since the issuance of the aforementioned decisions contradicting democratic and legal principles, to finally deal not only with the decisions themselves but also with the period of exercising state power marked by not only gross abuse but, most importantly, the disregard for the fundamental rights and freedoms of the citizens of the Slovak Republic. (Peter Kresák, Most-Híd, government, 5.4.2017, LP 7, Session 14)

Legal protection. In the parliamentary debates analysed the topic of rights protection appeared quite frequently but without significant depth. Most often, there were general and unspecified mentions of rights protection in the rule of law. However, since the second wave of rule of law legislation, a one-sided narrative emerged that the right to an effective remedy and fair trial is fundamental to the rule of law. As the following quotations demonstrate, representatives of the opposition party HZDS, in government in the previous period, frequently used it in the context of investigation or prosecution of its prominent figures, such as the former minister of interior or the director of intelligence services, for alleged abuse of power while in public office (Kalman). The right to an effective remedy was also invoked during parliamentary debates on the increase in court fees, which the opposition rejected as an illegitimate obstacle to accessible justice (Cuper). When pointing to the relevance of the mentioned rights, HZDS speakers often referred to the national constitution.

In accordance with the documents mentioned, human beings have become the highest social value, which is why there is a special system of legal protection of fundamental rights and freedoms in the constitution, in the form of judicial and other legal protection. It is based on the principle that the right to judicial protection is the foundation of the rule of law. The constitution of the Slovak Republic also, in the second section titled ‘Basic Human Rights and Freedoms’, in Article 21, enshrines the inviolability of the home. It unequivocally states that the home is inviolable and cannot be entered without the consent of the person residing therein. (Jozef Kalman, HZDS, opposition, 27.4.2000, LP 2, Session 30)

Yes, it can be agreed with those who argue that the right to a fair trial is one of the fundamental and elementary rights that apply in a rule of law. Therefore, if we are to be a democratic state governed by the rule of law, as Article 1 of this constitution states, this state has an obligation to facilitate, not hinder, citizens’ access to justice. (Ján Cuper, HZDS, opposition, 6.12.2005, LP 3, Session 52)

Connected with the emphasis on individual rights, HZDS also stressed the relevance of an independent judiciary for protecting citizens’ rights in a system governed by the rule of law.

In a rule of law state, the independent judiciary holds a special and extraordinary position, serving as the highest authority in deciding on the rights and obligations of citizens. (Tibor Cabaj, HZDS, opposition, 19.1.2000, LP 2, Session 26)³²

In the third wave of rule of law legislation from 2006 onwards, members of the Smer party (when in opposition) also highlighted the right to judicial protection as a fundamental right related to the rule of law, although the intensity of use was lower. Since HZDS (which lost parliamentary representation in 2010) and Smer belonged to the same political camp, the narrative can be understood as one-sided. Similarly to HZDS, Smer was accused of ignoring or even profiting from the existing state of the judiciary, while allegations of nepotism, misconduct and corruption in law enforcement institutions became a critical issue of the rule of law in the country. Smer representatives, in turn, considered repeated attempts by liberal-conservative governments to reform the judiciary to be an attempt to interfere in judicial independence. Their argumentation emphasised citizens’ right to a fair judicial process, which cannot be guaranteed if judges were not protected from external influences, especially the political ones.³³

It is important to realise (…) that judicial immunity is not a privilege of judges; it is the right of citizens to a fair judicial process, to a lawful judge, and to ensure that the judge is not intimidated by political or other state power. (Martin Glváč, Smer, opposition, 9.9.2010, LP 5, Session 5)

(J)udicial immunity is a special privilege considered one of the fundamental safeguards of judicial independence. This, again, relates to the separation of powers, where the executive branch should not interfere with the judicial branch. It fundamentally violates the personal guarantees of a judge’s independence and the independence of the judiciary as a whole, ultimately impacting a citizen’s right to an independent judicial process. (Boris Susko, Smer, opposition, 21.10.2020, LP 8, Session 16)

Along with courts, extrajudicial ways of protecting individual rights were mentioned. During the second wave of rule of law legislation, in 2001, the institution of the ombudsperson was introduced as part of a constitutional amendment. A diverging narrative emerged on this issue. The parties of the then-governing broad coalition of pro-European parties, including conservatives, liberals and socialists, argued that the ombudsperson is a relevant institution for the protection of rights. They considered it to be an essential and indispensable element of rights protection. This position was underlined by the official title of the institution, the ‘Public Defender of Fundamental Rights and Freedoms’.

The basic rights and freedoms of a modern society are institutionally secured through a system of judicial and extrajudicial protection. Judicial protection has two components: protection through general courts and through the constitutional court. (…) Extrajudicial protection of fundamental rights and freedoms is provided by state administrative bodies and, alongside them, by other state authorities. The institution of the ombudsman holds an important place among them, which the current constitution did not establish. Compliance with basic rights and freedoms in the Slovak Republic is not flawless enough to justify the absence of an ombudsman’s office. (Miklós Fehér, SMK, government, 6.2.2001, LP 2, Session 45)

Another highly debated part of the proposed constitutional amendment is the establishment of the Public Defender of Fundamental Rights and Freedoms (…). During the discussion, opinions were voiced suggesting that it is the creation of an office as a quiet, peaceful place for deserving retirees. However, experiences in developed European countries suggest otherwise, indicating that it is a proven institution for the protection of the rights and freedoms of individuals and legal entities in cases where public authorities are inactive or fail to act. I am familiar with the situation in public administration, and I do not believe that after the election of the chief ombudsman, it will be a quiet place. (Viliam Sopko, SDĽ, government, 14.2.2001, LP 2, Session 45)

Opposition parties at that time (particularly HZDS) found that the ombudsperson was unnecessary, since existing institutions are more effective at protecting individual rights. They regarded the general prosecutor’s office as the principal institution for rights protection, which would act with a higher degree of professionalism and liability than the ombudsperson.³⁴

The prosecutor’s office is a body responsible for safeguarding legality. It protects the rights and legally protected interests of individuals, legal entities as well as the state. The attorney general and other prosecutors must be individuals with legal education and legal practice. Therefore, it cannot happen, as rumoured, that some sidelined politicians or representatives of a particular ethnicity would be appointed to the ombudsman’s office. The ombudsman bears no liability for the performance of his function, neither disciplinary nor criminal, of course, unless he commits an offence under the criminal code. The attorney general is responsible for everything within the scope of his function until he can be dismissed from office. (Ivan Gašparovič, HZDS, opposition, 7.2.2001, LP 2, Session 45)

These differing views persisted, with liberal-conservative parties continuing to support the ombudsperson’s office and appreciating its work, for example during the presentation of annual reports in parliament,³⁵ while other parties largely ignored it.

Individual and collective rights. As mentioned previously, another conflict in Slovakia was related to rights of ethnic and national minorities. Disputes over the scope and form of guaranteeing their rights were strongly present during the discussion of the draft constitution in 1992 (the first wave of rule of law legislation) and subsequently in 1999 (the second wave) after the party representing the Hungarian minority, the SMK, became part of the government. Although we did not find a sufficient number of statements in debates related to the rule of law to qualify it as a narrative, given the importance of minority issues in Slovak politics and their potential for conflict, reflected in clearly diverging positions between partisan blocs, we report some observations below. In both periods, the nationalist-populist parties HZDS and SNS argued that the rights of members of national minorities are protected as individual rights of all citizens. In their view, it was neither necessary nor desirable to create a higher standard for a selected group of citizens since, in a state governed by the rule of law, the principle of equality was of utmost importance. As the following quotations illustrate, these parties expressed this position during the constitution-making process while in government (Mečiar, Hrnko), and later while in opposition (Malíková).

The constitution has a tremendous significance internally as well. (…) When we talk about this right of national self-determination, we simultaneously say that it primarily has validity externally, but internally, in building society and the state, we want to consistently pursue the path of applying the civic principle. Ethnic nationalism is not characteristic of us, but neither is nor will be minority and ethnic group nationalism. Equality of citizens, equality of rights, equality of duties. (Vladimír Mečiar, HZDS, government, Prime Minister, 1.9.1992, LP X, Session 5)

We welcome the fact that in the second chapter, basic rights and freedoms of citizens are formulated based on constitutional equality and equal rights of all citizens (…). (W)e cannot accept the term ‘majority nation’ because in this Slovak Republic, there is only one nation; other citizens of the Slovak Republic belong to various nationalities. (Anton Hrnko, SNS, government, 1.9.1992, LP X, Session 5)

(T)he Slovak National Party cannot agree to have the rights of national minorities, i.e. collective rights, supersede individual rights, which are guaranteed by every legal and democratic state, and which you, the governing coalition, also sanctified in the government’s programme declaration. (Anna Malíková, SNS, opposition, 2.7.1999, LP 2, Session 17)

Representatives of the Hungarian minority countered by arguing that a dominant position of the majority does not result in equality but supremacy. Collective rights for ethnic minorities, by contrast, would ensure them broad freedom. In their view, protecting the collective rights of national minorities was a European standard entirely in line with the principles of the rule of law.³⁶

A nation fighting for its sovereignty is simultaneously unable to take into account that on the territory where it constitutes the majority, it does not fully respect the rights of minorities. This path leads to supremacy rather than equality. As long as the majority decides what minorities need, members of the minority will remain second-class citizens. (…) In a democratic rule of law, an integration policy is applied parallel to pluralistic policy, aiming to create unity among different groups in society by ensuring them broad freedom in addressing their own affairs, while also providing specific regulations to preserve their own identity. (Árpád Duka-Zólyomi, Spolužitie-Együttélés, opposition, 1.9.1992, LP X, Session 5)

In the analysed debates in the Czech parliament, the relationship between the rule of law and democracy was rarely discussed explicitly. MPs expressed their respective point of view mostly implicitly. For example, throughout the periods studied they frequently used the phrase ‘democratic rule of law’ or ‘democratic state governed by the rule of law’, the term corresponding to Article 1 (1) of the Czech constitution (see Sect. 5.1.1), which was often referred to in debates surrounding rule of law issues. The Czech MPs’ particular emphasis on the protection of the individual and citizen vis-à-vis the state when speaking about the purpose of the rule of law was also in line with the liberal version of a democratic rule of law. However, they rarely made substantive reference to the precise sense of the words.

In general, MPs acknowledged that the rule of law constrains democratic majorities. Parliamentarians, predominantly from the opposition, often cited this assumption when criticising the actions of the current ruling majorities, accusing them of ignoring the rules of the game and misusing their majority. Over time, all relevant parties expressed the same view, but we found most statements with this content during the third wave of rule of law legislation.

There is a steamrolling taking place in this chamber even in cases where it is not necessary, and if there is no consensus, it is not even sought. (…) It is unacceptable for any law (…) to be voted on during a break in the session of the parliamentary party group. In a rule of law and a stable parliamentary democracy, it simply must not happen that elected representatives are denied their legal rights and parliamentary customs, clearly defined by rules. (Miroslav Petráň, VV, opposition, 17.1.2013, LP 6, Session 50)

Are we under the rule of law, and do we want to respect the agreements that were made? Or are we not under the rule of law, and like Bolsheviks, we bend these agreements? (…) It seems that the majority in this chamber does not want to respect the rule of law, even considers declaratory judgments to be a crime, does not respect agreements, and wants to bend them in a Bolshevik way. Of course, you have the right to do so if you have the majority. But that does not mean that we will live in a better country. (Miroslav Kalousek, TOP09, opposition, 23.12019, LP 8, Session 26)

(W)e are here today to defend the rule of law. To defend the equality of citizens before the law. To defend the principles of the rule of law against conflicts of interest with the prime minister. We often hear words that when someone wins the elections, they have the right to govern. Yes, they have the right to govern, but not to govern the law. (…) Simply put, the law is not subject to a vote. The law either applies or it does not. (Marek Výborný, KDU-ČSL, opposition, 26.6.2019, LP 8, Session 32)

Given the low number of explicit statements about the relationship between the rule of law and democracy, it is challenging to identify temporal trends or more precise narratives. Nevertheless, it is possible to identify some broad lines of argumentation. One argument asserted that while democracy is based on the rule of the majority, in a state governed by the rule of law, this majority must respect the rights of minorities, whether they be ethnic, social or political minorities (including the parliamentary opposition).

The foundations of an independent Czech state are being laid, with a complete disregard for the rights of the lands of Moravia and Silesia. A state that aims to be called rule of law cannot trample on the rights of a portion of its inhabitants. (Gerta Mazalová, HSD-SMS, opposition, 16.12.1992, LP 1, Session X)

An attribute of a constitutional state is the constitutional directive, according to which political decisions stem from the will of the majority expressed through free voting. However, the decision-making of the majority must respect the protection of minorities. (Vojtěch Filip, KSČM, opposition, 11.2.1998, LP 2, Session 20)

Another argument pointed to the limits set by the rule of law institutions (the constitution or decisions of the constitutional court) to powers of the government branches and policy-making. The legislative power, the president and others would need to respect these limits that are laid down in the national constitution or the Charter of Fundamental Rights.

(A)ccording to the constitution and the Charter of Fundamental Rights and Freedoms, we are a parliamentary republic, a democratic state governed by the rule of law with a social dimension. The Charter of Fundamental Rights and Freedoms gives our democratic state a social character. In this regard, these fundamental constitutional categories are superior to the programmatic demands of political parties and stand above them. The political demands of parliamentary parties must be applied within the framework of a democratic state under the rule of law, as formulated not only by the constitution but also by the Charter of Fundamental Rights and Freedoms. (Zdeněk Jičínský, ČSSD, opposition, 19.1.2007, LP 5, Session 9)

(T)he democratic rule of law, which is based on the separation of powers, is based on the fact that we have individual constitutional and statutory bodies that have divided powers, there is a system of checks and balances and these bodies and their powers and control are balanced against each other. It is not possible for anybody, any one of them, it does not have to be the president of the Republic, to arbitrarily say that he rejects his position in the constitutional and legal system and wants to have other powers. (Jiří Pospíšil, non-affiliated, elected for ODS, opposition, 13.2.2014, LP 7, Session 6)

A third argument underscored the inviolability of basic rule of law principles as enshrined in the constitution or the Charter of Fundamental Rights, such as the independence of the judiciary or legality (the competence to decide based on legal empowerment), even against the will of a legitimate democratic majority in parliament, the government, or decisions taken by a referendum.

This legislative proposal is based on a simple premise that through a referendum, the people directly exercise state power, according to Article 2, Paragraph 2 of the constitution and Article 21, Paragraph 1 of the Charter of Fundamental Rights and Freedoms. We understand that referendums can decide on fundamental matters of domestic or foreign state policy, as well as other important issues of public interest. We also comprehend that referendums cannot concern constitutionally guaranteed fundamental rights and freedoms, taxes, levies or other financial obligations to public budgets and the state budget, the exercise of judicial power, the appointment of individuals to functions, and their removal from functions, except for the president of the Republic, and changes to the essential elements of the democratic state governed by the rule of law. (Stanislav Grospič, KSČM, opposition, 26.6.2018, LP 8, Session 16)

(I)t doesn’t work in a rule of law and a democratic system that whoever is in power can decide on everything, including justice. It simply doesn’t work that way. And if you have that feeling, please, for the sake of our future, get rid of it as soon as possible because it is truly dangerous for the development of this country. You have the power for it, but you won’t gain law and justice on your side with that. (Jan Farský, STAN, opposition, 23.1.2019, LP 8, Session 26)

Another argument emphasised the necessity of applying the principle of accountability at the individual level, stating that even executive politicians relying on an electoral majority are accountable for their actions in terms of responsibility to the public and to the oversight mechanisms of other branches of power.

Parliament has a supervisory role; MPs are supposed to scrutinise the government, and ministers must endure criticism. It means that part of the job of a minister, a government member, a prime minister or a finance minister is to endure criticism from MPs, senators and all other citizens, and to be able to handle that criticism in a manner befitting a democratic state governed by the rule of law. (Bohuslav Sobotka, ČSSD, government, Prime Minister, 18.6.2015, LP 7, Session 29)

(S)ince in a democratic republic, in a rule of law, the dictatorship of the majority does not decide, but it is the rule of law according to the laws, and that’s what we’re talking about here today – that there are laws and rights that apply to everyone, and even the president, whose office grants significant powers and full responsibility for the performance of the office, should not be completely exempt from all actions but should be responsible to the constitution and the laws, just as he is accountable to his voters, as it has been said here. (Vojtěch Pikal, Pirates, opposition, 26.9.2019, LP 8, Session 34)

Not in every case did MPs automatically agree that the rule of law should restrict the majority, for example in a parliamentary debate related to the so-called television crisis at the turn of 2000 and 2001. During this period, employees rebelled against the duly appointed director of public television, arguing that his appointment by the council, whose members were elected by the parliamentary majority, aimed to subject the public broadcaster to the political parties. The rebels were supported by President Václav Havel and part of the parliamentary opposition, claiming a distinction between legality and legitimacy, between the letter and the spirit of the law. Representatives of the parties in the ‘opposition agreement’,³⁷ ČSSD and ODS, argued that in a democracy, there can never be a disconnection between legality and legitimacy, as legality is based on legitimately elected power. They considered protesting against decisions through illegal means, such as the disobedience of public television employees towards its management (occupation of buildings and broadcasting facilities, leading to dual broadcasting of the official editorial office and the rebellious one), to be illegitimate.

The dispute surrounding Czech television is not a fight for freedom of speech or the independence of this public institution. It is a dispute about the extent to which the principles of parliamentary democracy and the rule of law are truly ingrained in our society. It is a dispute about how capable and willing we are to respect democratic choice and the representative mandate that arises from such a choice. It is a dispute about how capable and willing we are to respect laws, even if we may not be entirely convinced of their perfection. It is a dispute about whether these fundamental values can be questioned at any time, whenever it suits someone’s agenda. (Ivan Langer, ODS, opposition tolerating minority government, 5.1.2001, LP 3, Session 30)

We have a provision in the constitution stating that the Czech Republic is a democratic state governed by the rule of law. In this sense, all authorities of this country, with constitutional status, are elected and formed in accordance with constitutional rules. From this perspective, in my opinion, it is not possible nor right to juxtapose legality and legitimacy and proclaim that, for example, the dismissals of television members [sic] were legal or the uprising of television members was legitimate, but not legal. I believe that such a dichotomy cannot be conducted in a democratic state under the rule of law (…). The highest criterion of democracy in this country is the election, and the bodies arising from elections are bearers of democratic legitimacy. (Zdeněk Jičínský, ČSSD, government, 5.1.2001, LP 3, Session 30)

Also during the Covid-19 pandemic, a latent conflict between the principle of majority voting and the rule of law with its emphasis on legality and other elements was mentioned. In this case, representatives from the opposition warned against the exploitation of emergency rules by the political majority at the expense of the rule of law.

(E)ven though there’s a state of emergency and the threat to lives and health persists, some rule of law should still apply. I assume that the rule of law should be understandable, predictable and subject to review. The same must apply to government regulations (…). Unfortunately, it doesn’t seem this way. It looks like all these regulations are issued based on some random decisions, some whims, some polls, or some letters and wishes. Maybe this is the pinnacle of democracy – governing based on polls and letters, but the rule of law suffers as a result. People’s trust in the state, trust that things happen according to some presumed plan, is eroded. (Vojtěch Pikal, Pirates, opposition, 18.4.2020, LP 8, Session 47)

As in Czechia, MPs in Hungary often named the country a ‘democratic state under the rule of law’ or argued that it should stay a democratic state under the rule of law, implying that democracy and the rule of law are linked and have to be respected. The rhetoric mirrored the formulation used in the constitution. In Article 2 of the old 1949 Hungarian Constitution, which was revised in 1989/90, the parliament declared Hungary to be an independent, democratic state governed by the rule of law, with supreme power vested in the people. These provisions were also present in the 2011 Fundamental Law (Article B).

In general, the analysis of our selected documents suggests that Hungarian MPs only occasionally discussed the relationship between the rule of law and democracy in detail. When such discussions did occur, politicians generally argued that the rule of law constrains democratic majorities.³⁸ Such a view was most frequently expressed during the first and third waves of rule of law legislation. When arguing in this way, MPs most often emphasised the separation of powers. This corresponded with the narrative that a main purpose of the rule of law is to limit power (Sect. 5.1.2) and that the separation of powers is a key element of the rule of law (Sect. 5.2.2). While in the early 1990s MPs also highlighted local democratic government and thus the vertical separation of powers as relevant for constraining power, the horizontal separation of power, particularly the role of an independent judiciary, was emphasised more during the third wave of legislation. After 2010, various parliamentary debates referred to rights entrenched in the constitution or fundamental law, the inviolability of certain norms and the role of judicial oversight (Table 6.16).

In the early and mid-1990s, representatives of all parties argued that the separation of powers is relevant. MPs perceived the separation of powers as a logic inherent in both democracy and the rule of law. The narrative was used that independent authorities are vital for protecting democratic principles and safeguarding civil rights. The statements were informed by the lessons learned from the pre-1990 political system. Politicians praised institutions that all work independently of each other, with a focus on institutions legitimised by elections, including parliament, the ombudsperson, local authorities and an independent judiciary. The respective discourse was described in Sects. 5.1.2 and 5.2.2.

The other is the ideal of the rule of law, of a liberal, democratic state, where the separation of powers means that the state also operates and performs its function within a framework: the law. (Géza Laborczi, SZDSZ, opposition, 16.11.1993, LP 34, Session 343)

During the second wave of rule of law legislation, there was no major debate around the relationship between the rule of law and democracy while parties generally continued to support the constitutional principles.

In 2010, when Fidesz-KDNP won a two-thirds parliamentary majority, other parties still believed in the power-restraining effect of institutions.

I believe that what distinguishes a totalitarian system, a party-state system, from a democratic constitutional state is that in a democratic constitutional state, you cannot only have a two-thirds majority, but also a one hundred per cent majority, but the difference between the two is that in a democratic constitutional state, even if a party alliance wins 90 or 100 per cent, it does not have unlimited power. Its power is still limited by different legal principles, different independent institutions, different procedural guarantees. (András Schiffer, LMP, opposition, 5.7.2010, LP 39, Session 21)

Shortly after, when it became visible that the governing parties used their qualified majority to change the constitutional framework to reshape the political and judicial institutions (Sects. 3.2 and 3.3), the discourse changed. The narrative was established and used with high intensity that undermining the separation of powers and filling positions in formally independent institutions with one’s own people means undermining the democratic rule of law.

The big question in Hungary, and in all parliamentary democracies, is what protects us from the arbitrary power of the legislature, and what protects us in Hungary today from the arbitrary power of the two-thirds [majority]. (András Schiffer, LMP, opposition, 14.11.2011, LP 39, Session 133)

The opposition forces paid growing attention to counter-majoritarian institutions, e.g. an independent judiciary, an independent constitutional court or the European Commission to protect the rights of those not represented by Fidesz-KDNP. Rhetorically, however, the governing parties agreed that the independence of the judiciary was inherently constitutional and inviolable.

Any kind of openness in terms of norm control, based on professional grounds, is important and necessary. Another important rule under the bill is the requirement to be bound by a motion. This means that the regulation raises to the level of Fundamental Law that the constitutional court may only examine a provision of the law that is not the subject of a motion if it is closely connected in content to the rule under review. The constitutional rule of law is based on respect for individual freedom and dignity and the protection of the fundamental values of democracy. The administration of justice is a guarantee of fundamental freedoms and other rights. (Márta Mátrai, Fidesz, government, 11.3.2013, LP 39, Session 259)

As the following quotes show, Fidesz and KDNP asserted that the separation of powers, which must be respected, was in place, that democratic freedoms were accessible to all citizens and, furthermore, that they were being expanded (Gulyás, Kozma).³⁹ They also argued that the fact that there was parliamentary deliberation on contested legislation contradicted the opposition’s criticism, which suggested that democracy and the rule of law were abolished in Hungary (Szakács).

This constitution also contains a choice between rule of law institutions and rule of law solutions. My only request is that the choice between the rule of law issues should not be turned into a democracy-avoidance choice. There is no threat to the rule of law and democracy in Hungary, and everyone is guaranteed freedom of expression and freedom of speech. This fundamental law continues to guarantee all the democratic rights that we have enjoyed over the past two decades, extends fundamental rights and enables everyone to identify with the framework within which the nation operates, based on the Hungarian nation’s past, and to exercise democratic freedoms within the framework of the rule of law institutions. (Gergely Gulyás, Fidesz, government, 18.4.2011, LP 39, Session 84)

This is important from the point of view of the lessons learned from the past 20 years, precisely because the constitutional court can interpret the Fundamental Law in response to the requests referred to in Paragraph 1 and in other cases where legal certainty is threatened, because the most important aspect of the Hungarian state and the operation of state bodies in accordance with the law, and the observance and enforcement of the principle of constitutionality, is that legal certainty is threatened in certain cases by the non-interpretation or inadequate interpretation of the Fundamental Law. (Péter Kozma, Fidesz, government, 14.11.2011, LP 39, Session 133)

It has also been said in recent years that democracy has disappeared in Hungary, and that there are no institutions and institutional systems based on the rule of law which, as it were, reflect the various legal and other interests, ethical and moral interests arising from the principle of the separation of powers. I also think that the fact that the fourth amendment to the Fundamental Law is now before parliament proves that this argument does not stand either. After all, the constitutional court has issued a ruling within the framework of the legislation and the constitution. Parliament has accepted this as binding on itself, and the government and the organisations whose job it was to do so have tabled the amendment before us, which we hope will be adopted in a way that addresses the concerns of the constitutional court. (Imre Szakács, Fidesz, government, 11.3.2013, LP 39, Session 259)

In contrast, opposition MPs (mainly from MSZP, Jobbik, LMP and DK) criticised that the separation of powers, as a fundamental element of a democratic state, was being violated by the government, e.g. by curtailing the constitutional court. They contended that the Fidesz-KDNP reforms, including new provisions related to the administrative courts, did not align with the principles of the rule of law and the democratic legal evolution initiated in the 1990s, and that the freedoms outlined in the Fundamental Law were subject to restrictions.

MSZP criticised that the new Fundamental Law drafted by Fidesz-KDNP in 2011 severely restricted the principle of the separation of powers (Bárándy). Jobbik stressed that extensive interference in the judiciary, especially in the appointment of judges, would be a violation of the principles of classical democracy, the separation of powers and the independence of the judiciary, and therefore could not be justified or accepted (Gyüre). LMP argued that the constitutional court is an important institution in a democratic state governed by the rule of law because it protects citizens from the arbitrariness of the elected majority, a function that it could not fulfil in Hungary (Schiffer).

The constitutional court has to take its decisions on the basis of a Fundamental Law that severely restricts people’s social rights, the principle of the separation of powers, human rights, the right to property, and that overturns and abolishes guarantee rights that have existed for decades, but otherwise, I believe that this list could go on. (Gergely Bárándy, MSZP, opposition, 14.11.2011, LP 39, Session 133)

In many cases it can be respected that a two-thirds majority or a parliamentary majority should have the right to determine who, in the executive or here and there, in the exercise of the power of appointment, should appoint the people they want to work with. But when you look at the principles of classical democracy and the separation of powers and the independence of judges, I would say that to interfere to this extent in the judiciary, well, what can I say, it already justifies, it could justify, that it is already an interference in the independence of judges. So there is no way of agreeing with this either. (Csaba Gyüre, Jobbik, opposition, 12.2.2013, LP 39, Session 252)

Even after the amendment of the Fundamental Law and last year’s Constitutional Court Act, there was still a possibility that the constitutional court would not be completely deprived of its rights, or more precisely, that the constitutional court as an institution of the rule of law would be emptied of its functions. The bill before us completely airbrushes out the constitutional court, making it almost superfluous. It is precisely the function of a brake and counterweight that the constitutional court has lost, for which it has played an indispensable role over the last twenty years. (András Schiffer, LMP, opposition, 13.11.2011, LP 39, Session 133)

These statements were not developed on a purely theoretical basis but were always expressed in relation to concrete measures planned and realised by the ruling majority. At times, they were more nuanced, and the parliamentarians did not always argue that the rule of law should restrict elected majorities. For example, as early as 1996 FKgP proposed to strengthen the parliament’s position vis-à-vis the court by suggesting that the president of the constitutional court, just like constitutional judges, should be elected by the national parliament and not by other (constitutional) judges (Torgyán). DK argued in 2018 that rule of law violations would also be a source of conflict between the parliamentary majority in Hungary and an EU majority (Arató).

In our view, in a constitutional state, there should be no question of parliament not having this right in the future. The constitutional court would become independent of all institutions of public power and the balance of power would be upset if we were to decide definitively on this issue by having the president of the constitutional court elected by a body of constitutional judges. (…) (T)his power of the National Assembly cannot be taken away, and this power of the National Assembly cannot be called into question, just as it cannot be called into question in a constitutional state that this requires a two-thirds majority in the parliament. (József Torgyán, FKgP, opposition, 2.4.1996, LP 35, Session 163)

The Democratic Coalition believes that democracy is based on the rule of law and independent judiciary. In comparison, defending the rights of citizens against the state or even large corporations guarantees the rule of law, which is crucial for the economy. It is also clear (…) that the rule of law is one of the most clearly defended common fundamental values of the Union, and it is therefore quite clear that its violation will generate further conflicts and further struggles with the organisations and the majority of the European Union. (Gergely Arató, DK, opposition, 28.6.2018, LP 41, Session 14)

Several MPs emphasised that the separation of powers should also contain provisions for a balance of power (Nyikos). In this view, while the limitation of power as the logic of the rule of law can be organised in different ways, the democratic type of the rule of law is a system of separation of powers plus checks and balances (Kocsis-Cake).

I quote the sentence in Paragraph 2 of the basic provisions, because I think it is very important: “Hungary is an independent democratic constitutional state based on the principle of the separation of powers.” I think that, at first reading, there is nothing wrong with this sentence; everyone can take it on board. However, it did leave me with a certain sense of inadequacy, because, after all, in every state, in every form of government, there is a division of power of some kind; there is a division of power in dictatorships too, and so I think that this sentence would be more complete, clearer and more forward-looking if it were to be supplemented by a sentence whose essence is that it is also based on the principle of the balance of powers, alongside the division of power. (László Nyikos, Jobbik, opposition, 22.2.2011, LP 39, Session 69)

But they are all former Fidesz founders who went to the Bibó College as law students. I am sure that is not what they learned at Bibó College. They probably started their studies by immersing themselves in constitutional law, immersing themselves in Montesquieu and learning about the separation of powers. Separation of powers is an institutionalised barrier to the abuse of power, arguably the basis of the democratic rule of law. These branches must also be separated in terms of institutional and personal powers. The legislature limits the judiciary and the executive by law, the executive limits the legislature, perhaps by dissolving parliament, by the right to call new elections, and the judiciary controls the constitutionality of legislation and, through it, the legislators. This is the foundation of democracy. You have often referred in recent days to the fact that the municipal elections prove that democracy exists here, because the opposition parties have won some large cities. (Olivio Kocsis-Cake, PM, opposition, 19.11.2019, LP 41, Session 94)

In sum, despite a general rhetorical overlap that the rule of law potentially restricts governing majorities through certain guiding principles, government and opposition forces argued differently on the state of affairs in Hungary during the third wave of legislation, when Fidesz-KDNP’s large majority allowed them to de facto neutralise the system of checks and balances.

Members of the Sejm generally supported the position that democracy and the rule of law must be respected. Throughout the periods studied, we found no explicit opposition to establishing the democratic rule of law, even from those who were accused of undermining these principles. When citing the term ‘democratic state under the rule of law’, many representatives referred to the constitution, which enshrined both concepts.

(W)e see the need to supplement the existing “small constitution” with a law today that sets “limits on the will of the majority exercised by public authorities”. The Republic of Poland must be a democratic rule of law state, as we have advocated and continue to advocate for. (Stefan Szańkowski, PSL-PL, government, 21.1.1993, LP 1, Session 35)

Another stage of strengthening the Polish democratic state under the rule of law has been initiated through the implementation of constitutional institutions, or at least such obligation has been imposed on the government by its provisions. (Marek Mazurkiewicz, SdRP, opposition, 8.1.1998, LP 3, Session 8)

The constitution of the Republic of Poland, the common good, and the principles of a democratic state under rule of law should decisively prevail over party interests in this case. (Wojciech Szarama, PiS, opposition, 10.7.2015, LP 7, Session 96)

Although all parties supported the democratic rule of law in general, they did not express this in form of an explicit narrative in our selected documents. Most statements dealt with specific aspects of realising the democratic rule of law (assuming that this project was supported) or started from the fact that the democratic rule of law was established by the constitution and focused on commenting on particular problems. In such debates, a liberal rhetoric was visible for most parties when they emphasised the need to constrain elected majorities by binding them to the constitution, establishing a system of checks and balances etc. However, conservative and right-wing parties used the liberal rhetoric less frequently, and after 2015 the PiS government disregarded liberal principles like the separation of powers.

Statements addressing the relationship between the rule of law and democracy were found mainly for the first and third waves of rule of law legislation. Although the discourse changed over time, the general pattern was that members of governing parties emphasised the importance of balancing democratic legitimacy with the rule of law. They regarded the rule of law as a key framework for democratic decision-making processes that should not compromise democratic principles. In contrast, opposition parties tended to emphasise the need to constrain elected majorities, e.g. by adherence to legal principles, judicial review and generally the separation of powers. However, the emphasis of constraints did not imply respect for electoral choices. Also, the statements covered various subjects, forming only a few narratives (Table 6.17).

During the first wave of legislation, especially in the early years of transition, MPs used the narratives that independent authorities, mainly the judiciary and Constitutional Tribunal, are vital for protecting democratic principles and safeguarding civil rights. During the general debates on the constitution and the future political system of Poland, politicians underlined the relevance of a democratic state with elected bodies and at the same time considered checks and balances as a necessity in the post-1989 state system. Despite rhetorical agreement, the concrete opinions on the shape of the new regime and the relationship between the concepts of the rule of law and democracy differed, with no discernible relevance of party affiliation and affiliation to government or opposition.

I believe that three general principles should be adopted when drafting the constitution: the system of government of the Republic of Poland is republican; the Republic of Poland is a democratic state under the rule of law; and the sovereign in the Polish state is the nation. The nation, as sovereign, exercises power through its representatives, elected to the Sejm in democratic elections based on strict principles. There is a tripartite division of power: legislative power, which belongs to the parliament, executive power, which belongs to the government, and judicial power. In local matters, public authority is exercised by the local government, which has a separate legal personality, and the treasury is not liable for the liabilities of the local government, and vice versa. (Marian Michalski, PSL, government, 23.9.1994, LP 2, National Assembly Session 1)

As the first principle of a state under the rule of law, sovereignty must be mentioned, meaning the supremacy of the nation. From this principle, it follows that the subject of power is the entirety of citizens, while the representatives elected by them are merely holders of offices constituting the organs of power. The sovereign possesses the right to create authorities within the framework of the state, which is achieved by a democratic and freedom-based electoral system. It also has the competence to control the organs of power through electoral acts and, among other things, through holding them accountable through parliamentary and constitutional means. The principle of separation of powers plays an important role in realising the principle of sovereignty. The principle of constitutionalism recognises that all key organs of the state are defined in the fundamental law of the state, in the constitution that regulates their powers, structures and rules of operation. (…) (T)he constitution occupies the supreme place in the system of law (…) (Tadeusz Jacek Zieliński, UW, opposition, 23.9.1994, LP 2, National Assembly Session 1)

During the transitional debates, MPs emphasised the importance of the rule of law as a check on the power of the majority, which can be interpreted as a response to the legal arbitrariness and subjugation of the law to politics during the communist era. They emphasised that adherence to legal principles and the protection of individual rights and freedoms were of paramount importance and take precedence over mere majority decisions. Jerzy Pietkiewicz, a member of the Solidarność activists faction OKP, argued for a strong review of government action (in the cited debate on domestic security forces). Janusz Korwin-Mikke, a liberal-conservative politician from the small UPR, even advocated for a “nomocracy” to protect individual rights against the tyranny of the majority.

If we want to call ourselves a state under the rule of law, we must accept this. It cannot be that the special services conduct their activities according to their own discretion, so to speak. Someone from the government must take responsibility for this political decision on wiretapping and the use of special measures. I think the attorney general is the right person here. (Jerzy Pietkiewicz, elected via Komitet Obywatelski ‘Solidarność’, parliamentary group OKP, government, 6.4.1990, LP X, Session 25)

Although the constitution indeed states that the Sejm is the supreme authority, it does not change the fact that for us, the judiciary is the most important authority. The character of society, the sense of law, and thus the norms of all our behaviours depend on the quality of the judiciary. That is why we strongly advocate for nomocracy, or the rule of law, rather than democracy. (…) The people want to have laws that would guarantee and protect them also against the tyranny of the majority, against sudden changes in the majority. The rule of law, not the rule of people, is needed in Poland. (Janusz Korwin-Mikke, UPR, opposition, 6.3.1992, LP 1, Session 10)

Many representatives of opposition parties emphasised the judiciary’s autonomy and its role in limiting the powers of the executive and legislative branches. In cases where its autonomy was linked with problems in the functioning of the system, at least from the perspective of ruling parties, this was “the price that has to be paid for the rule of law to be strengthened in Poland”, as Jacek Kurczewski, a representative from the liberal KLD, argued. Stanław Rogowski from the left-wing UP demanded strong judicial control as a check to the state and its administration.

I must recall the idea of a Supreme Judicial Council, which I myself eventually co-founded from the national judicial council. We adopted this idea, in a sense we recycled it from Italy (…) and it is indeed dangerous to have solutions that would limit it. I think there are a lot of practical considerations that make there inconveniences to the functioning of self-government, as is usually the case, but it is in this area, I think, that we cannot afford to adapt to these very practical needs. This insufficient influence of the minister of justice on the selection of the judiciary, this certain organisational malaise that is being talked about here, is the price that has to be paid for the rule of law to be strengthened in Poland. (Jacek Kurczewski, KLD, opposition, 6.3.1992, LP 1, Session 10)

In a democratic state under the rule of law, judicial control of the effects of the functioning of bodies exercising administrative functions is a logical fulfilment, both precisely as regards administration and the actions of other judicial bodies. (Stanisław Rogowski, UP, opposition, 7.4.1994, LP 2, Session 17)

Members of governing parties⁴⁰ tended to emphasise the need to strike a balance between democratic legitimacy and the rule of law by providing the executive with the competence to exercise power while remaining subject to judicial review (Lipowicz), by binding all authorities’ action to the constitution and laws made by the elected parliament (Iwiński) or by defending the principle of the state under the rule of law while implementing the electoral commitments accepted by society (Kwaśniewski). Also, as a result of rulings by the constitutional court, which referred to specific rights and norms derived from this principle, they highlighted the significance of all state institutions in maintaining the new system. Especially during the constitutional debates, the notion of a ‘democratic state under the rule of law’ began to find its place in parliamentary debates as a concept that was also gradually given more legally defined content.

An extremely important element in the contemporary understanding of the separation of powers is the appropriate position of the executive branch in relation to the legislative and judicial branches. It should provide the executive branch with sufficient powers to efficiently and flexibly administer and determine administrative policy. The president, government and prime minister should have real opportunities to implement their policies while remaining under parliamentary control, and the regulations issued by them should remain subject to judicial review. (Irena Lipowicz, UD, government, 2.4.1992, LP 1, Session 12)

The democratic state under the rule of law is the principle of principles that underpins the entire constitutional construction and determines a number of specific solutions. A state under the rule of law is a state governed by law, which stands above the state; and the rule of law means that the system of state organs operates in a strictly legal manner. This must result not from a specific statement, but from the entirety of the provisions of the Fundamental Law. (Tadeusz Iwiński, SdRP, government, 23.9.1994, LP 2, National Assembly Session 1)

We do not want anyone to understand that the only sense of democracy, the only sense of politics, is legal procedures. In our view, the sense of democracy is to defend the principle of the state under the rule of law, and the sense of politics is to implement the electoral commitments accepted by society and to convince society of the necessary actions that are taken on its behalf, on behalf of society. (Aleksander Kwaśniewski, SdRP, government, 4.2.1995, LP 2, Session 42)

In the second wave of rule of law legislation between 1997 and 2015, different majorities were in government. While we found no narrative used in this wave, opposition members touched on issues of the rule of law and democracy when criticising the government for misbehaviour. For instance, Ratajczak from LPR stressed the obligation of the parliamentary majority (at that time the left-wing SLD was the strongest party) to adhere to constitutional principles, reflecting broader opposition narratives centred on accountability and transparency in government. Gronkiewicz-Waltz from the liberal PO, for example, emphasised the need for checks and balances within the democratic framework, particularly to be protected against perceived biases within judicial proceedings under the new PiS-led government. When PO was the strongest party in parliament, forming the government, Szarama from the conservative PiS underlined the need to prevent political attempts to influence the composition of the constitutional court.

From the constitutional principle of the state under the rule of law arises the obligation for the legislature to adhere to the principles of correctness in legislation, which is linked to the principles of legal certainty and security, as well as the protection of trust in the state and the law. (Elżbieta Ratajczak, LPR, opposition, 27.7.2005, LP 4, Session 108)

In a free economy and democracy, the government cannot do everything because the government and parliament are also limited by the constitution. There is a separation of powers. There is still the judiciary. And there is an unwritten rule that if there is any appearance of bias, such a person must be excluded from any panel that adjudicates. (Hanna Gronkiewicz-Waltz, PO, opposition, 10.3.2006, LP 5, Session 12)

I hope that these high standards regarding the selection of judges of the Constitutional Tribunal will be upheld in this term, and that proposals put forward by some, aimed at ensuring that the composition of the Constitutional Tribunal is determined in such a way that certain views have a majority, will be rejected. (Wojciech Szarama, PiS, opposition, 10.7.2015, LP 7, Session 96)

When in government, UW politicians cited judicial independence as a relevant democratic principle (Suchocka) and the separation of powers as vital for the rule of law (Ostrowski). In our material we did not find any statements about the need for institutional checks of the legislative by PiS politicians while in government. PO presented reforms aimed at the depoliticisation of the prosecutor’s office after the end of the PiS-led government as essential for strengthening the rule of law and the restoration of societal trust in democratic governance (Pahl).

(O)ne of the fundamental criteria for recognising a state system as democratic is the existence of an independent and impartial judiciary in its structure and practice, whose jurisdiction covers all cases requiring judicial resolution according to the criteria most fully expressed by the European Community in the European Convention on Human Rights. (Hanna Suchocka, UW, government, Minister of Justice, 3.3.2000, LP 3, Session 72)

The principle of the separation of powers should therefore be seen as a component of the concept of the state under the rule of law, a criterion and guarantee of the democratic nature of the state system, through which the provisions of the constitution can be interpreted, especially regarding disputes over competence. (Ryszard Ostrowski, UW, government, 3.3.2000, LP 3, Session 72)

The main intention behind the changes to the prosecutor’s office law was primarily the depoliticisation of the prosecutor’s office. The situations we witnessed, namely the instrumental treatment of the prosecutor’s office (…) led to the sense of the rule of law in society requiring the creation of mechanisms of control, functioning or operation of the judiciary that would guarantee certainty, provide guarantees of strong foundations of the state under the rule of law, a lawful state, which would ensure a societal sense of justice. (Witold Pahl, PO, government, 14.4.2011, LP 6, Session 90)

From 2015 to 2021 almost exclusively opposition MPs referred to the rule of law and democracy in our selected sources. After the 2015 elections, when PiS formed the first one-party cabinet since 1989, the opposition accused it of abusing its power, arguing that the rule of law is about constraining the power of elected majorities. Various MPs from the liberal parties, most prominently PO and Nowoczesna,⁴¹ invoked the term ‘democratic state under the rule of law’ when voicing concerns about PiS’s policies to undermine the separation of powers and manipulate key institutions, such as the Constitutional Tribunal, the prosecution service, the National Council of the Judiciary (NCJ) and the judiciary in general. These measures resulted, in their view, in insufficient protection against the dominance of the majority (Budka). Opposition parliamentarians referred in particular to the principle of a democratic state under the rule of law when expressing concerns about perceived threats to judicial independence, arguing that the role of the judiciary is particularly crucial in a situation when one party has an absolute majority,⁴² or when criticising the politicisation of key institutions and attempts to undermine constitutional safeguards. The prevailing narrative during this period was that undermining the separation of powers and filling positions in formally independent institutions with one’s own people means undermining the democratic rule of law.

The greatest harm (…) you have done is how you treated the pillar of a democratic state under the rule of law (applause), the foundation – the principle of separation of powers. (…) You’re pouring gasoline onto something that is already the last safeguard, protecting citizens from the unchecked appetite of the majority for basic rights and freedoms (applause). (…) Night-time voting in the Sejm will not overshadow what you are doing with the Constitutional Tribunal. You insult the president sitting here, you insult everyone who dares to have a different opinion than Law and Justice. (…) There will never be consent in this chamber for personal antipathy, for disrespect for the constitution by your leader to be the basis for demolishing the democratic state under the rule of law. (Borys Budka, PO, opposition, 17.12.2015, LP 8, Session 5)⁴³

From the principle of a democratic state under the rule of law stems the impartiality of public officials, yet you have appropriated the Constitutional Tribunal, you have appropriated the civil service, today you are appropriating the prosecutor’s office, and to avoid talking about it, you have appropriated the media and, moreover, you claim that you are doing all of this for the good and safety of citizens. (Izabela Leszczyna, PO, opposition, 13.1.2016, LP 8, Session 8)

(I)n every normal democratic country, it’s the courts that control parties and politicians. In the PiS-led state, it’s the parties and politicians who want to get their hands on the courts. But we will do everything within the law to make it difficult, and in the future, we will do everything to rebuild the independence of the judiciary and punish those responsible for the attack on the courts. (Kamila Gasiuk-Pihowicz, N, opposition, 5.4.2017, LP 8, Session 39)⁴⁴

As mentioned, PiS did not actively use its own narrative on the rule of law and democracy, and the relationship between the two concepts. Regarding the prosecution service, however, Piotrowicz (who became a constitutional judge in 2019) outlined the need for executive control in order to guarantee the sense of security and social justice of judicial decisions, and Wójcik accused the opposition of “hysteria” regarding its criticism.

Of course, there is one exception: the courts are to be independent, the judges are to be independent, but not the prosecutors, not the prosecutors. It is the state under the constitution, the Council of Ministers that is responsible for security. The public prosecutor’s office is the only instrument in the hands of the executive through which it is possible to influence the shape of judicial decisions, the shape of jurisprudence that fosters a sense of social justice. After all, Article 2 of the constitution states: Poland is a democratic state under the rule of law which implements the principles of social justice. (Stanisław Piotrowicz, PiS, government, 13.1.2016, LP 8, Session 8)

In 1989 there were discussions on the occasion of the round table about how the prosecutor’s office should be shaped, what the political model should be. And it was then that the democratic opposition said that the prosecutor’s office should be linked to the executive. That is why in 1990 completely new regulations were introduced, which lasted for 20 years, until you changed them. Unfortunately, you changed them under the influence of a kind of hysteria, breaking certain principles, because Poland has excellent traditions from the inter-war period. (…) In the inter-war period there were no problems with this, after 1990 – there were none, but in 2009 for the state suddenly there was a problem and suddenly it was necessary to separate these functions that led to pathologies. (Michał Wójcik, PiS, government, 13.1.2016, LP 8, Session 8)

The discourse in the Romanian parliament differed from the other countries in that restrictions to elected majorities were at times evaluated somewhat more critically, even though all parties generally expressed their support for the idea of the rule of law. All parties generally underlined the relevance of the rule of law, often to confirm the constitutionality of their own policies and to accuse political opponents of violating the constitution.

As in the other parliaments, speakers expressed that democracy and the rule of law are formally established, linked and have to be respected. This mirrors the Romanian constitution, where the rule of law is explicitly embedded in an overall framework of different principles that must be considered.⁴⁵ Similarly, as in the other parliaments, MPs in Romania, when speaking about the relation between democracy and the rule of law, most often did so in a superficial way. They simply enumerated them as two achievements of the Revolution of 1989, of Romania’s return to European standards and to the EU. Only very rarely did MPs engage in a discussion of the actual relation between the majority principle of democracy and the rule of law. If they addressed this issue at all, then they sometimes did so by evoking key elements of the rule of law like separation of powers, but much more often by evoking institutions like the parliament or the presidency. Therefore, there is but little indication of more pronounced narratives being shared by all MPs across parties and periods. However, after 2014 and especially in times of cohabitation, representatives from opposition parties were critical of the government’s majoritarian understanding of democracy.

We found more statements than in other parliaments arguing that the rule of law serves elected majorities, although a clear majority stressed that the rule of law constrains elected majorities. The perspective that the rule of law serves the elected majority emphasised the relevance of elections in democracy. It was, for example, voiced in the early 1990s during the discussions of the constituent assembly for the constitution of 1991 by Ioan Deleanu, a law professor representing the FSN (later PDSR, and ultimately PSD).

Under the condition of a comfortable majority of a party in parliament, that party designates – by means of the vocation of parliament – the executive branch, and when the head of the executive branch, the head of state, belongs to the same party – at least up to the moment of appointment – you must be convinced that it is not safe to speak of a separation of powers, because the political legitimacy of these branches of state activity is one and only one: the party that has acquired victory in the elections. (Ioan Deleanu, FSN, government, 27.3.1991, AC, LP 1)

The separation of powers was not explicitly mentioned as a principle in the 1991 constitution until an amendment in 2003, and in the 1990s, the legitimacy produced by democratic elections was particularly valued. However, different branches of government were established, including the president as a mediator.

Different from the moment of constitution-making, the parliamentary majorities as well as the power relations between the president and the governments reflecting those majorities became fragile and dynamic (Sect. 3.1). Government formation as well as governmental work were characterised by a multitude of configurations of shared exercise of power—including the toleration of a minority cabinet, formal coalitions between two or more parties, and ultimately cohabitation with a president and a government with differing political affiliations. The importance of the separation of powers as an instrument to constrain the elected majority was emphasised by members of the opposition.⁴⁶

The idea that elected majorities are placed at the centre of a democratic system under the rule of law was also present in statements during the presidency of Traian Băsescu (2004–2014), criticising him for ignoring the competences of the elected parliament (see Sects. 5.1.4, 5.2.4 and 6.3.4). Ion Stat (PSD) used particularly strong language, calling Băsescu a “president-dictator”:

The president-dictator attacked the Romanian justice system only because the magistrates judge according to the laws of this country. By setting himself up as a supreme judge above the constitution, Traian Băsescu is simply asking the magistrates to stop judging according to the spirit of the law. In so doing, he has once again trampled underfoot the fundamental institution of the state called upon to establish the truth and to dispense justice only in the name of the law. (Ion Stan, PSD, opposition, 15.11.2011, CD, LP 6)

The argument was also used during the presidency of Klaus Iohannis (2014–). MPs like Călin Popescu-Tăriceanu (ALDE) affirmed “the political supremacy of parliament over the other public institutions, as the supreme forum of democracy” and qualified “as unconstitutional and unacceptable” certain judgments by the president, the Superior Council of Magistracy or public prosecution agencies against activities of the government.

Therefore, the Romanian parliament qualifies as unconstitutional and unacceptable the judgments that either the President of Romania, the Superior Council of Magistracy or representatives of the public prosecution make against some decisions and activities of the government. Such actions illegally and abusively usurp the exclusive right of parliament to hold the government accountable for its activities in the various forms provided for by law and by the regulations of the chambers. (…) We reaffirm the political supremacy of parliament over the other public institutions, as the supreme forum of democracy, the only forum representing the views of all citizens, because here we also have the parties forming the governing arch and the opposition. So all the citizens of Romania are represented. (Călin Popescu-Tăriceanu, ALDE, government, 8.3.2017, CD+S, LP 8)

Overall, however, the narrative prevailed that the rule of law constrains bodies that enjoy legitimation through democratic elections, such as the chambers of parliament. As mentioned, this relation was not exclusively seen in a positive light. This became visible, for example, when in the early 1990s the law on the constitutional court was intensively debated. Dan Lăzărescu (PNL) problematised the superiority of the constitutional court over all other institutions.

But it’s above parliament too, that’s the big problem. It is the only institution, even the president of the Republic is not above the control of parliament, but this court, as it has been conceived, is above parliament and escapes the control of parliament, that is to say it escapes the control of the elected representatives of the nation. (Dan Lăzărescu, PNL, opposition, 23.3.1992, CD, LP 1)

In contrast, Marian Enache (FSN) highlighted “the real democratic character” of the constitutional court.⁴⁷ Vasile Gionea (PNŢCD) emphasised that the elected parliament established the rules which the court could only interpret, and that parliament could overrule certain decisions by the constitutional court by a two-thirds majority in both chambers.

The constitutional text, as well as the provision in our law, namely that when the constitutional court declares before it that a law or certain texts in a law are unconstitutional, of course the court’s reasoned decision goes back to parliament, which will examine and decide: either it is constitutional, or it is unconstitutional, and parliament has the possibility, with two thirds of the votes, to decide that a law is still constitutional. And then the decision of the constitutional court is null and void. So, the supreme power of lawmaking in the country is vested in parliament, and the constitutional court not only cannot decide against parliament, but more than that, it cannot pronounce laws null and void. (Vasile Gionea, PNŢCD, opposition, 23.3.1992, CD, LP 1)

The provision in Article 145/1 of the Romanian constitution of 1991 which permitted the parliament to overrule certain decisions of the constitutional court was abolished by the constitutional amendment of 2003 (Enache 2012, p. 169 ff.). This strengthened the role of the court vis-à-vis ruling majorities. Since around 2010, MPs from PD insisted on the constitutional restraints of the majority principle. At that point in time, the coalition that had earned President Băsescu his presidency in 2004 had long fallen apart, and he faced an assertive government coalition between PSD and PNL (taken together as USL). Dan-Cristian Popescu (PD/PD-L) accused this coalition of a “dictatorship of the majority”, and Marian Andreea Paul (PD/PD-L) compared the state created by the USL coalition to a predator.

We cannot, by invoking the representative mandate, granted to us by the trust of the electorate with the right to vote, defy the fundamental principles of the rule of law, the first of which is that no one is above the law. (…) A week has passed since a majority of Romania’s MPs irresponsibly defied the rule of law in this parliament. The rule of law is the guarantee of the primacy of laws and citizens’ rights in the face of any abuse of power against the citizen, but also of the dictatorship of the majority. (Dan-Cristian Popescu, PD/PD-L, opposition, 17.12.2013. CD, LP 7).

USL creates the predatory state. Since coming to power, USL has been trying to protect its parliamentarians from justice. I remind you that this year USL has tried twice to build a super-immunity for parliamentarians, by amending the statute of parliamentarians. But each time, PD-L challenged the changes at the constitutional court. (…) What USL is doing is a disgrace that risks to take us off the map of democratic states in Europe. (Marian Andreea Paul, PD/PD-L, opposition, 17.12.2013, CD, LP 7).

The narrative that a PSD-led government would display a majoritarian understanding of democracy and ignore the constitutional constraints resurfaced again in 2016, when President Klaus Iohannis was forced into a cohabitation with a victorious PSD. Now, MPs from PNL (again in opposition) were accusing PSD of abusing parliamentary majorities for shielding their corrupt colleagues from prosecution.

But today’s kleptocrats have forgotten to take into account the fact that Romanians have had enough time in 27 years to experience the taste of freedom and living in a state governed by the rule of law. Because the parallel state, which the Dragnea–Tăriceanu gang preaches, is everything but the rule of law. The generations born after 1989 are coming of age today. They are people who have learned freedom and lived in accordance with Western values, and they can no longer be manipulated or led by propaganda. These are the Romanians we see protesting in the public squares of our cities or in the diaspora, who have taken up civic resistance against today’s rulers. (Dumitru Oprea, PNL, opposition, 6.12.2017, CD, LP 8)

The most principled reasoning about constitutional restraints of parliamentary majorities, however, was voiced by the new USR, as Vlad Alexandrescu elaborated:

To speak of political supremacy, of any institution, authority or organisation, is not only constitutionally inaccurate but democratically dangerous. (…) In a constitutional democracy, there is no quest for supremacy, but governing with respect for pluralism. Romania is a constitutional democracy based on the rule of law, where government action is and must be limited and controlled, in accordance with the principle of the separation and balance of powers. (…) The USR Parliamentary Group firmly rejects the attempt to use this draft declaration to rank the legitimacy of state institutions or authorities. Such formulations betray a rudimentary understanding of the idea of legitimacy in a state governed by the rule of law, implying that legitimacy is enjoyed only or primarily by those elected by vote. (Vlad Alexandrescu, USR, opposition, 8.3.2017, CD+S, LP 8)

As in the other parliaments, MPs in Slovakia generally agreed on the relevance of both the rule of law and democracy but did not often explicitly discuss the relationship between the two concepts. They frequently employed the phrase ‘democratic state under the rule of law’ also enshrined in Article 1 of the Slovak constitution, which states: “The Slovak Republic is a sovereign, democratic state governed by the rule of law.” The phrase was used affirmatively, while criticism was related mainly to deficiencies in practice.

MPs did not always differentiate strictly between the rule of law and democracy, making it challenging to distillate concrete lines of argument concerning their relationship. The separation of powers was, for example, sometimes treated as a characteristic of the rule of law (Duka-Zólyomi), sometimes also of democracy or the rule of law (Kaník). Moreover, speakers raised doubts about the functioning of the distinct pillars of state power, including the independence of the judiciary (Kaník).

The basic premise of the existence of the rule of law is the balance of the separation of state power between the executive, legislative and judicial branches. The constitution must strictly ensure this division of power to prevent a certain centralisation of power (…). (Árpád Duka-Zólyomi, Spolužitie-Együttélés, opposition, 1.9.1992, LP X, Session 5)

Democracy is when there is a system with several institutions that mutually control each other, preventing any injustice from occurring through the domination of the majority. Because the majority can always have a tendency towards injustice when succumbing to the seduction of its power. (…) (T)his is precisely why there are institutions of democracy, liberal democracy, with multiple pillars of power. The president should stand above them, should be independent. But we also need a prosecution that is independent of political party games and struggles; we need a judiciary that makes decisions and does not postpone them, a judiciary that is independent and respects the law, and is not above the law. We lack all of this today. Therefore, Slovakia is not governed by the rule of law today. It has enormous defects in terms of what we could consider a rule of law. (Ľudovít Kaník, SDKÚ-DS, opposition, 12.3.2013, LP 6, Session 15)

Others treated the rule of law as an attribute of democracy.

We all, at least in our declarations, have the ambition to build a democratic society, whose fundamental attribute is the rule of law. The rule of law means respect for the constitution, respect for the law. (Ján Danko, HZDS, opposition, 18.1.2000, LP 2, Session 26)

A rule of law without a democratic state cannot exist, and vice versa as well. They are two sides of the same coin that are inseparable. Underneath this, however, is one pillar, legality. (Mojmír Mamojka, Smer, opposition, 6.8.2010, LP 5, Session 3)

More detailed and event- or problem-driven statements were made occasionally, meaning that actors reacted in their speeches to specific events or problems. Over time, we found statements referring to the idea that the rule of law and the constitution constrain elected majorities. Since around 2005, however, this position became controversial to some extent, with some MPs arguing that the sovereign, i.e. the people represented by the qualified parliamentary majority, can define the constitutional setting even against the will of other branches of government, which implies the de facto ability to overrule certain decisions by the constitutional court.

In the overwhelming majority of cases, statements that the rule of law constrains elected majorities were made by parliamentarians while in opposition, regardless of their party affiliation, often when criticising the government majority’s alleged overstepping of boundaries of the rule of law. The core of the argument can be traced to general references to the separation of powers or constitutionality as elements of the rule of law, and to the emphasis on the necessity of protecting rights, which makes the relationship between state power and society special in the rule of law. MPs mentioned the relevance of the constitutional court in controlling the government, for example (Hrnko). Alternatively, they argued that the ruling majority’s proposals must be in line with the constitution (Jurinová).

I am also pleased that the government considers a democratic rule of law as its permanent and fundamental goal. Despite various statements from leading figures, especially HZDS, the government will support a parliamentary democracy system where the executive power stems from the parliament. However, from this perspective, I am less understanding of the government’s resistance to acknowledging, for example, the binding nature and unquestionability of decisions of the constitutional court. (Anton Hrnko, DÚ, opposition, 19.1.1995, LP 1, Session 4)

(E)ven the National Council of the Slovak Republic is bound by this law in its activities and must respect the conditions stipulated therein. Conduct contrary to the law in such cases is not only a violation of the principle of legality but, in the case of a legislative body, also contrary to the principle of constitutionality. In such a case, it can be assumed that some of the fundamental principles on which the rule of law is built may be violated. (Erika Jurinová, OĽaNO, opposition, 6.8.2012, LP 6, Session 6)

As already mentioned, since the mid-2000s, a dispute has emerged over the parliament’s ability to override constitutional court decisions by a constitutional amendment or a specific constitutional law adopted by a qualified majority. The initial impetus for these debates was the decision of the constitutional court in 1999, which annulled Prime Minister Dzurinda’s decision to revoke amnesties granted by his predecessor Mečiar. Although subsequent debates did not specifically address the power of the constitutional majority to override the constitutional court’s decisions, this argument occasionally surfaced during repeated attempts to repeal the amnesties through special constitutional laws. After the constitutional court, citing the principle of judicial independence, had annulled the constitutional amendment from 2014, which, among other things, had introduced property and security checks for judges, the rhetoric became more nuanced and diverging. In this dispute, representatives primarily from the parties of the conservative-liberal bloc (KDH, SaS, OĽaNO) argued that in a democratic system, no authority should stand above the democratically elected parliamentary three-fifth majority, which, in the Slovak context, is authorised to adopt and potentially change the constitution and define the arrangements of the rule of law.

In a state governed by the rule of law, it is possible to revoke a decision of the constitutional court only through a constitutional amendment or the approval of a constitutional law. In this case, it certainly does not involve an interference of the legislative power into the judicial power because, in the mentioned case, the revocation of the court’s decision does not come from the legislature but from the constitutional legislator. (Pavol Minárik, KDH, government, 18.5.2005, LP 3, Session 42)⁴⁸

(U)nlike the constitutional court, the National Council can write the constitution, can approve constitutional laws. I don’t understand why the constitutional court should decide on the constitutionality of the constitution. Can you explain that to me? And your argument is because the National Council cannot do everything. Are you telling me that the constitutional court can decide that a constitutionally approved law by the National Council is unconstitutional? (Jana Cigániková, SaS, opposition, 28.3.2017, LP 7, Session 14)⁴⁹

Taking the highest competences that the constitutional majority in parliament has in a state governed by the rule of law and handing them over to the constitutional court, where, let’s say, political nominees sit, is playing with fire. If the constitutional court permanently blocks the decision of the constitutional majority in parliament in this way, people will not forget it. Because a state governed by the rule of law is a state where justice must prevail, and the state must be able to create a way in which justice can be applied in the country. If we cannot do that, a sense of resistance to our democracy will only grow in people, and extremist forces will strengthen in Slovakia. (Marek Krajčí, OĽaNO, opposition, 30.3.2017, LP 7, Session 14)

In response to the situation where the constitutional court declared a specific constitutional law incompatible with the constitution of the Slovak Republic, an amendment to the constitution was eventually adopted in 2020 (Law 422/2020 Coll.), explicitly prohibiting the constitutional court from testing the constitutionality of constitutional laws.

The opponents in this conflict were MPs from several parties, most vocally HZDS and Smer, who claimed that the so-called material core of the constitution requires special protection, even against the will of the constitution-maker. Thus, they argued that not even the qualified constitutional majority was authorised to deal with fundamental aspects of the rule of law according to its own will.

Breaking the constitution is unacceptable under the rule of law. There is no breaking of the decision of the constitutional court; the decision simply states that something is inconsistent with the constitution. In a rule of law state, it is inappropriate to include in a constitutional law something that is inconsistent with the constitution. (Katarína Tóthová, HZDS, government, 18.6.2009, LP 4, Session 39)

Anyone in this chamber suggesting that anything can be done with 90 votes or implying it by some subtext, in my opinion, is not acting wisely if they are advocates of liberal democracy. The idea that there are things that cannot be decided by a [simple] parliamentary majority is one of the fundamental achievements of modernity, the concept of the rule of law, and liberal democracy. We should not question it, not even in the name of abolishing brutalities such as Mečiar’s amnesties. (Miroslav Beblavý, independent, elected for Sieť, opposition, 28.3.2017, LP 7, Session 14)

I am aware that members of the National Council are elected in direct general elections and are representatives of citizens, and therefore, ultimately, they could even abolish the constitutional court. However, in a democratic society in the European Union, this is probably inconceivable, and even the constitution-maker within certain international rules, our commitments, our membership in the European Union, cannot decide completely arbitrarily as they wish. Therefore, as the last border safeguard against arbitrary decisions of the legislative and constitutional assembly, there is the constitutional court (…). (Boris Susko, Smer, opposition, 4.12.2020, LP 8, Session 18)

In the late 2010s, in a conflictive political context, parliamentarians, mostly from opposition parties, referred more directly to the rule of law and democracy, warning that democracy can be risky without the rule of law (Baránik)⁵⁰ and that MPs of the governing parties have to oversee the executive (Pellegrini).

We have a prosecution that is just the legal protection of this mafia-led state, and the police, of course, we all know what kind we have (…). So, we don’t have any rule of law. We have democracy. We can choose someone who, through all sorts of populist moves and speeches, gets into power, or perhaps through lies (…). That’s the kind of democracy we have, but we don’t have a rule of law. Our courts don’t provide real judicial protection, our prosecution acts only in the interest of the government clique, and our police is simply the physical protection of this mafia state. (Alojz Baránik, SaS, opposition, 9.2.2017, LP 7, Session 12)

Is this democracy? Is this really a rule of law? It is entirely clear that despite a strong and dangerous constitutional majority, the members of the governing coalition are in the service of the government of the Slovak Republic and are unable to fulfil their constitutional duties towards it. (Peter Pellegrini, Hlas, opposition, 3.2.2021, LP 8, Session 23)

By far the most widespread references to challenges to the rule of law throughout the periods studied fall into the category of ‘Rule-stretching or violation/non-compliance’, forming two overlapping, but distinct, narratives. References to challenges related to the politicisation and restriction of the public prosecution and law enforcement and to the lack of trust were also frequent, with narratives mainly used during the third wave of rule of law legislation. Criticism of the role of the constitutional court followed at a distance (Table 6.26).⁵⁴

Rule stretching and violation or non-compliance. When elaborating on challenges to the rule of law in the examined parliamentary debates, members of the Czech parliament most frequently mentioned problems of rule-stretching and violation or non-compliance. Such statements appeared throughout the entire analysis period, and speakers addressed various specific issues. Nevertheless, we identified two narratives.

The first was used by representatives of all parties regardless of their status (in government or in opposition). Parliamentarians regularly stated (with no period of particularly high intensity) that proposed laws would violate the constitution or the Charter of Fundamental Rights and Freedoms. The rule of law as a concept was usually not explicitly mentioned in these statements.

The entire first half of the bill is not a proposal for a legal norm but a means of political and ideological struggle, a means that does not respect the constitutional order of the Czech Republic and is in gross contradiction with numerous provisions of the new constitution of the Czech Republic and the Charter of Fundamental Rights and Freedoms, which is part of the constitutional order according to Article 3 and Article 112, Paragraph 1, of the constitution of the Czech Republic. (Vladimír Řezáč, LB, opposition, 9.7.1993, LP 1, Session 11)⁵⁵

And as I’ve already mentioned, such regulation is indeed in conflict with the principles of the rule of law, where criminal responsibility is an individual matter, and the state must prove to the citizen that they have committed an offence. (…) I would like to point out that even the general principle of the presumption of innocence, in my opinion, would be violated by such regulation. (Jiří Pospíšil, ODS, opposition, 25.3.2004, LP 4, Session 30)

(F)rom the perspective of the basic legal principles of the rule of law, this law is unacceptable. It creates inequality among the recipients of the legal norm, distinguishing between ordinary citizens, small business owners and large business owners. That is simply unacceptable. (Jan Chvojka, ČSSD, government, Minister for Human Rights, Equal Opportunities and Legislation, 8.9.2017, LP 7, Session 60)

In later periods, MPs also increasingly highlighted inconsistencies of legislative proposals with existing case law of the constitutional court.⁵⁶ Some speakers stated that if the legislative proposal got adopted, they would appeal to the constitutional court to review the constitutionality of the contested law.⁵⁷

The second narrative related to rule-stretching, violation or non-compliance was employed by representatives from all parties when in opposition. They criticised that the executive exceeds its powers, acting arbitrarily, undemocratically and against the principles of the rule of law. Politicians used this narrative to criticise the actions of the government or the president of the Republic. As visible in the wording of the quotations below, such statements were more abstract and general than the first mentioned narrative, and they often referred directly to the concept of the rule of law. MPs emphasised that the rule of law is undermined by arbitrary conduct even when it was not against any particular law. This narrative was most prominently used during the first and third waves of rule of law legislation.

If we claim that we are building a rule of law, then primarily, through our actions, we are building it, by insisting that the law is respected. If we allow as guardians of legality in this country a man who himself violates the law, then we do not have a clear conscience ourselves and do not respect the main principle for which we are here, we do not respect the principles that the population of this country embraced after November, that we will finally live in a rule of law. (Jozef Wagner, ČSSD, opposition, 17.6.1993, LP 1, Session 10)

The government of Václav Klaus, using its party majority in parliament, refused parliamentary oversight and, even at the end of its term, did not dare to appear before the representatives with its final account. Such behaviour is incompatible with a democratic rule of law. (Miroslav Grebeníček, KSČM, opposition, 24.7.1996, LP 2, Session 3)

During the third wave of rule of law legislation, the narrative was still used intensively when MPs (almost exclusively representatives from opposition parties) wanted to point to the general conduct of top-level decision makers. In such cases, they referred to abstract principles that go beyond everyday politics, especially the equality before the law. The opposition, for instance, criticised the large-scale amnesty granted by President Václav Klaus in 2013 and endorsed by the government (Sobotka) or the fact that Andrej Babiš, one of the wealthiest businessmen in the country benefiting from state subsidies, who also faced criminal charges, was appointed minister of finance and later prime minister (Výborný).

The prime minister countersigned the amnesty, and therefore the entire government of the Czech Republic bears responsibility for the form of this shameful act. I believe it is not possible to label this responsibility of the government as purely formal. (…) If this form of amnesty, as approved by the president and the government, is indeed a disgrace, if this form of amnesty is something that undermines the trust of a large part of the public in the rule of law, in the principles of equality before the law, if this form of amnesty raises justified suspicions that it was tailored to a few chosen individuals to save them from ongoing criminal proceedings, then I believe that the Chamber of Deputies has no choice but to make this amnesty a subject of a vote of no confidence in the government of Petr Nečas. (Bohuslav Sobotka, ČSSD, opposition, 17.1.2013, LP 6, Session 50)

In a functioning rule of law, it’s not possible for a person facing criminal charges to become the prime minister. This happened in our country. In any case, we could have spared ourselves the questions and suspicions that equality before the law does not apply here if someone else from ANO were the prime minister. (…) In a functioning rule of law, it’s also not possible for someone who, as the prime minister, has a significant influence on the allocation of public funds, to have a financial interest in these subsidies. (…) It’s sad that the government couldn’t address this clear conflict of interest involving its leader, and it took a preliminary audit by the European Commission to say that it’s not acceptable and that the rules must apply, even if it involves the prime minister. (Marek Výborný, KDU-ČSL, opposition, 26.6.2019, LP 8, Session 32)⁵⁸

Politicisation. MPs were also critical of the alleged politicisation/restriction of the judiciary or public prosecution and law enforcement. Statements that fell under this category touched on diverse topics, but most often, politicians argued that the executive is interfering with the police and public prosecution to halt criminal proceedings. This narrative was mainly used during the third wave of rule of law legislation in connection with specific cases involving government members. Politicians across party lines raised this criticism, but only when in opposition. Speakers drew attention to the fact that the police and public prosecution are subordinate to the executive (the Ministry of Justice or the Ministry of the Interior). They accused the government of actively trying to stop or discourage the investigation or prosecution of its members in specific cases. Such cases involved, for instance, the investigation of Deputy Prime Minister Jiří Čunek for alleged bribery (Rath), of the former minister of defence for violation of public procurement rules when purchasing fighter aircraft (Sobotka), or the prosecution of Prime Minister Andrej Babiš for alleged fraud during his previous business activities (Farský).

If you were in my position, and our government did what you did with the public prosecutor’s office and the specific cases, you might thunder even louder than I am here, because you would say it’s a violation of the rule of law, that it’s an unacceptable intrusion of politics into the public prosecutor’s office, that it’s an abuse of political power to sweep cases under the rug. It’s just like that! We both know it’s like that. And we both know that it wasn’t right and that it didn’t benefit the supreme public prosecutor’s office. (David Rath, ČSSD, opposition, 13.3.2008, LP 5, Session 28)

(I)n the midst of an ongoing criminal investigation, a government minister, who is incidentally in a conflict of interest because he was a member of the government that approved the purchase of CASA aircraft, recommended the resignation of the police authority conducting the investigation and even the supervisory prosecutor, all in a live broadcast! I ask: what else could be qualified as influencing criminal proceedings than statements of this kind? (Bohuslav Sobotka, ČSSD, opposition, 18.7.2012, LP 6, Session 45)⁵⁹

And I hope that such a situation will not be repeated too often here in the chamber. Situations where for 59 days, the chamber is blocked by manoeuvring to avoid justice, hiding behind various cases, attacking prosecutors, attacking the police, attacking the courts, undermining their credibility, and even discrediting OLAF when its report arrives. The damage done by attacking democratic institutions and the foundations of the rule of law is much greater than the 50 million related to Čapí hnízdo. (Jan Farský, STAN, opposition, 19.1.2018, LP 8, Session 6)

MPs who criticised the politicisation of the judiciary and the prosecution often pointed out that the mere possibility of a conflict of interest undermined the rule of law.

We may have encountered here possibly the most serious case – I repeat – of an organised group that has the ability, method and capability to influence a political case, and now it depends on what we do about it. I appeal to you: if the government is to have a function and authority, it cannot turn a blind eye to this. If you do, I’m not saying this out of animosity, but you bear responsibility for what you did not do in front of the public. For pushing this country a bit further towards a situation where the law does not apply equally to everyone because if something like this is happening, it is a scandal in a state governed by the rule of law. (Lubomír Zaorálek, ČSSD, opposition, 13.6.2008, LP 5, Session 33)

By the fact that the person under criminal prosecution is the prime minister, the entire government is embroiled in this monstrous conflict of interest. And if there are reasonable suspicions that they are also obstructing the investigation, undermining justice, then the fundamental principles of the rule of law and the public’s trust in justice are indeed at risk. (Miroslav Kalousek, TOP09, opposition, 23.11.2018, LP 8, Session 23)

And these (…) are significant reasons why Andrej Babiš cannot be the prime minister. Not only because he has personal problems and a conflict of interest, but also because he doesn’t even pretend to remain neutral when dealing with these matters as the prime minister. He’s leaving his defence to lawyers and will defend himself before the relevant authorities, refraining from commenting to avoid raising suspicions that he’s abusing his highly influential position at the top of the executive branch. No, he’s doing the exact opposite. From the position of the prime minister, he’s waging an open campaign against Czech law enforcement agencies. (Petr Fiala, ODS, opposition, 26.6.2019, LP 8, Session 32)

Lack of trust. In the parliamentary debates analysed, public trust in the functioning of the rule of law was usually mentioned in connection with criticism of the government’s actions. It was generally part of the lines of argument used to accuse representatives of the executive of attempting to influence the administration of justice. Especially during the third wave of rule of law legislation, MPs used the narrative that due to the executive’s action and rhetoric towards the judiciary and law enforcement authorities, citizens had lost trust in the rule of law. Again, this criticism was raised by representatives of various parties, especially ČSSD and ODS, mainly when in opposition. From their perspective, the scandalous misuse of power by top-level politicians, such as President Klaus with his above-mentioned amnesty (Hašek) or Prime Minister Babiš (Vrecionová), significantly contributed to undermining public trust in the rule of law.⁶⁰

The amnesty made it clear to the public: those at the top can do whatever they want. What does that mean? Is it only okay to steal when you steal on a large scale? You have denied equality of people before the law. Your action brought privileges to the rich who, thanks to their lawyers, dragged out their trials for over eight years. You have denied one of the main reasons for the existence of the state. You have become allies of one group of citizens against the majority. You are not just undermining trust in the state; you are undermining people’s trust in democracy. With your actions, you have become the most important supporters of extremists of all kinds. With your actions, you have launched an attack on the rule of law. (Michal Hašek, ČSSD, opposition, 17.1.2013, LP 6, Session 50)

When it comes to the criminal investigation for subsidy fraud and even this delaying tactic alone should be a reason for the prime minister to resign. How can citizens trust the police and the courts when there are doubts surrounding the prime minister himself? How can the prime minister be a role model for the citizens of the country when he is suspected of subsidy fraud and obstructing an investigation? How can we expect citizens to respect the rule of law when the prime minister himself is not setting an example? (Veronika Vrecionová, ODS, opposition, 23.11.2018, LP 8, Session 23)⁶¹

Especially the investigation and subsequent criminal prosecution of Prime Minister Andrej Babiš was depicted as having “a devastating impact on the atmosphere in society and trust in law and justice”.⁶² Even if he was eventually acquitted, people would not believe “that his performance as prime minister did not contribute to resolving his personal issue”.⁶³ Another opposition MP argued that since a criminally prosecuted person became prime minister, “a person who, through the ministry of the interior, indirectly controls the police, and through the ministry of justice, controls the prosecutors, trust in justice has been endangered and weakened”.⁶⁴

Constitutional court. Since the second wave of rule of law legislation, the constitutional court was repeatedly criticised, mainly by the representatives of leftist parties (KSČM and ČSSD), both while in government and while in opposition. They used the narrative that the constitutional court is too activist, thus undermining the separation of powers that must be protected. In the parliamentary debates analysed they argued that the constitutional court had harmfully exceeded its limits within the system of the separation of powers. Some speakers called for a reform of the powers of the constitutional court.

The constitutional court’s authority to exercise ‘negative lawmaking power’ is rightly criticised. However, the constitutional court effectively engages in ‘positive lawmaking’ as well, through arbitrary interpretations of legal norms in the form of ‘constitutionally correct interpretation’. (Marie Rusová, KSČM, opposition, 16.5.2003, LP 4, Session 16)

At this moment, with its decision, the constitutional court has placed the Czech Republic outside the constitution. It has entered the political scene as a player and wishes to fulfil the role of a legislator. Such a position in a democratic state governed by the rule of law also requires bearing the corresponding responsibility. At the same time, it is appropriate to consider the mutual relationships of all constitutional bodies of the state and their organisation. First and foremost, it is time to open a professional and political discussion about the future constitutional status of the constitutional court itself and the role it is supposed to play. (Jiří Paroubek, ČSSD, opposition, 8.9.2009, LP 5, Session 60)

MPs criticised certain rulings of the constitutional court and warned against a “tendency we are experiencing, where judges are becoming some sort of special class in this country, separated from what is part of the entire state system”, which was allegedly reinforced by some decisions of the constitutional court.⁶⁵ Another social democratic MP deplored the “very unfortunate stance of the constitutional court”, which “declared that when parliament refuses to act, the courts must act”.⁶⁶ In 2019, an ANO representative also expressed her reluctance to activate the constitutional court to impeach President Miloš Zeman.

I am against filing a constitutional complaint, and the main reason is that we would be entrusting the constitutional court with a competence that belongs solely to us as sovereigns, the legislative body, and we would violate the principle of the separation of powers. (Helena Válková, ANO, government, 26.9.2019, LP 8, Session 34)

In our selected documents, when members of the Hungarian parliament mentioned challenges to the rule of law, they mostly addressed problems that fell into the category ‘Rule-stretching or violation/non-compliance’. At a far distance followed the three categories ‘Politicisation/restriction of the judiciary and public prosecution’ and ‘Politicisation/restriction of the administration or independent institutions’—their main argument can be summarised as the centralising of power—as well as ‘Post-1989 transformation’ (the latter mainly constituted by statements concerning a lack of lustration), with narratives falling into these categories being used equally frequently. By far the most statements about challenges to the rule of law were made during the third wave of rule of law legislation, i.e. the period when Fidesz-KDNP governed with a two-thirds majority in parliament, except for 2015–2018 (Table 6.27).⁶⁷

Rule-stretching or violation/non-compliance. Narratives related to this category of challenges to the rule of law have appeared in many areas of the parliamentary debate over the past 30 years. In the first wave of rule of law legislation, Hungarian parliamentarians, when in opposition, criticised alleged deficiencies regarding the principle of legal certainty, which was interpreted as a relevant purpose and key element of the rule of law (see Sects. 5.1.2 and 5.2.2). Across party lines, MPs drew attention to the many amendments to the law, even key legislation, adopted by acting government majorities. In their eyes, frequent legal amendments undermined the principle of legal certainty as a key element of the rule of law.

We cannot support a campaign-style constitutional amendment that goes beyond the legitimate grounds of governability and is tabled as a matter of urgency. We are of the opinion that amending the constitution for the umpteenth time in such a short space of time to such an extent, and back and forth, is unnecessary and even harmful, because it weakens hopes in the functioning of the rule of law. And without stable basic constitutional provisions, the rule of law and legal certainty are an illusion. (Csaba Hámor, MSZP, opposition, 9.5.1990, LP 34, Session 3)

(I)f this practice continues to prevail in this House, that any bill can be touched at any time under the heading of incoherence, it will mean the death of the constitutional rule of law. (Tamás Sepsey, MDF, opposition, 14.10.1997, LP 35, Session 309)⁶⁸

Under the first Orbán government (1998–2002), opposition parties, mainly left-wing MPs who had been voted out of office, established the narrative that the ruling majority violates rule of law principles (constitutionality, separation of powers etc.). MPs accused Fidesz, FKgP and MDF of stretching and exploiting rules to their own advantage. In our selected documents, the parliamentary majority was criticised for prematurely shortening the terms of office of incumbent mayors and local representatives, which was interpreted as undermining legal certainty. They also argued that the Fidesz government had created a patronage system that benefited people close to power (mainly family and friends (Kovács)), abolished the system of reconciliation of interests, the party neutrality of public media, the supervisory role of parliament and ignored the law (Avarkeszi), prevented the establishment of committees of inquiry and curtailed opposition rights, inter alia (Fodor).

The leadership of Fidesz sees governance not as a service but as an opportunity to impose its will on society, to build a clientele and to put them in an advantageous position. This effort necessarily entails questioning certain constitutional principles, ignoring or arbitrarily interpreting laws, democratic institutions and the rule of law, and breaking the conventions of the first two parliamentary terms of government after the change of regime. (László Kovács, MSZP, opposition, 18.10.2001, LP 36, Session 233)

So far, not a single word has been uttered from the governing party about the rule of law and the state of democracy. This is probably no coincidence, since this government has abolished the system of reconciliation of interests, social supervision of social security, the party neutrality of public media and the supervisory role of parliament, and it is ignoring the constitution, the laws and the rules of procedure. (Dezső Avarkeszi, MSZP, opposition, 18.10.2001, LP 36, Session 233)

We remember that one of the first stages in the process of attacking the rule of law was the restriction of the functioning of parliament, the introduction of the three-week parliamentary session; we remember how the establishment of committees of inquiry was prevented; we remember how opposition rights were curtailed. We also remember how the independence of the judiciary was attacked and how it was tried to influence the judiciary through methods of budget and financial support, withholding, not giving; on the other hand, we also remember how the prosecution service has been put in such a position in this country that it is now seen by many citizens as an instrument of political influence. (Gábor Fodor, SZDSZ, opposition, 25.5.2002, LP 37, Session 4)

For the period after the first Fidesz government, we found fewer statements in parliament referring to issues of rule-stretching. The Fidesz-KDNP landslide victory in the 2010 parliamentary elections was mainly based on their public call for credibility and accountability of politics (Sects. 3.1 and 3.2). This criticism was directed against the previous government led by MSZP. LMP, a party newly elected to parliament, stated in 2010 that the public had lost confidence in the parliamentary system because of police violence (in 2006)⁶⁹ and alleged corruption and clientelist networks under the former ruling parties; it also criticised oligarchic tendencies and expected a new kind of politics.

(W)e are aware that the new government that is now taking office (…) and your constitutional majority, not only have the task of carrying out the maintenance work that the parliamentary elite of the past twenty years has failed to do, but also cannot conceal the fact that a moral crisis has developed in Hungary in recent years that will certainly give the new parliament a lesson in how to regain the credibility of politics, and restore the credibility of Hungarian parliamentarianism. We also agree that the Hungarian rule of law has been seriously challenged in recent years, and I am thinking here of the violations committed by the police in recent years, and I am thinking of how corruption has become rampant in Hungary. But when I refer to this, it is not enough to demand accountability and to promise accountability, we need to work together and put proposals on the table of the House, and we did this today when we tabled our campaign finance bill, on how to institutionally curb the rule of oligarchs of all colours, whether at national or local level. (András Schiffer, LMP, opposition, 17.5.2010, LP 39, Session 2)

When the new Fidesz-KDNP government quickly passed a new Fundamental Law in 2011, amended it several times and adopted other reforms in the following years, narratives on rule-breaking and non-compliance rapidly re-emerged and expanded. Opposition MPs argued that Fidesz, through various amendments to the law, established a new system for centralising and retaining political power, e.g. by violating media freedom, strengthening the executive at the expense of the legislature, limiting opposition rights, infringing on the independence of the judiciary, adopting personalised and retroactive laws and establishing a patronage system.

The issue was raised by the opposition for example during the debate on the new Fundamental Law in 2011 and in debates on ‘cardinal laws’, i.e. key legislation which is passed and can only be amended by a two-thirds majority. MPs criticised frequent amendments of the law (Lamperth, Fodor)—an already established narrative—but also various other alleged deficiencies with high intensity. The statements often combined criticism of rule violations with other aspects, so that we cannot clearly separate distinct narratives on the violation of diverse rules, as the quotes below demonstrate. The statements included criticism of unconstitutional, retroactive and biased legislation in favour of the personal interests of Fidesz-KDNP (Lamperth), excluding the opposition from debating legislation and depriving it of other rights (Lamperth, Novák). Opposition MPs also accused the government more generally of dismantling the system of checks and balances to concentrate power in the executive.

I am thinking of the frequent and undebated amendments to the constitution and laws, unconstitutional legislation such as retroactive legislation or regulation in the field of civil service, and then the dismantling of the institutions that protect the rule of law, including the constitutional court (…) or legislation influenced by individual interests, where a two-thirds majority has made a law because of someone’s personal interest or concern: lex Borkai, lex Szapáry, lex Szász Károly, lex Koltay, and the list goes on. All these have caused serious damage to the legal system as a whole, which is difficult to repair. In order to achieve total concentration of power, the State Audit Office, the public prosecutor’s office, the public media have already been seized, and a person has been elected president of the Republic who, by virtue of his personality and background, cannot be expected to oppose the prime minister, even if the interests of the country dictate it. (Mónika Lamperth, MSZP, opposition, 14.11.2011, LP 39, Session 133)

Just as they have abolished the four-fifths passage,⁷⁰ they have now abolished the remaining opposition right in the rules of procedure, and we do not even have the opportunity to speak. So, while my fellow Members were arguing for the quality of legislation, I was trying to argue for the basic freedom of expression, how equal opportunities were curtailed by shortening the election campaign period, how opposition parties were curtailed in the media, and finally how our opportunities to speak are now being curtailed in parliament, too, obviously on the most sensitive issues. (Előd Novák, Jobbik, opposition, 20.12.2011, LP 39, Session 157)

Well, this political fear is not, in my opinion, a sufficient reason for a bill to be presented to us in violation of the rule of law, first of all, because there is not enough time for the political parties to consult and discuss with the necessary civil society organisations and others what their views are on this, there is no time for that. On the other hand, it is also contrary to the rule of law that they want to force through a bill against the objections of the opposition, against the essentially unanimous “no” of the opposition parties. (Gábor Fodor, independent, opposition, 2.6.2014, LP 40, Session 6)

Three times during the period of investigation, Fidesz-KDNP won a qualified majority in parliamentary elections. Because of the various far-reaching reforms adopted by this majority, the opposition parties no longer saw a level playing field. The electoral success of the governing parties was in their view largely due to the governing parties’ restructuring of the whole system, including their influence on media coverage to the detriment of the opposition and the limitation of opportunities to scrutinise government actions in an independent court. The narrative was that Viktor Orbán “has subjected everything to a single objective, namely the retention of political power”, and has “built his own system” (Balczó). It was employed across opposition parties, including those that had also been critical of the previous governments, such as Jobbik. The opposition parties have consistently pointed to personalised legislation and the dismantling of the separation of powers by law (including an independent judiciary and opposition rights in parliament), limited media freedom and the building of a patronage system that benefits people close to the prime minister.

You have made the institution of the referendum partly impossible and partly empty. This has eroded the rule of law in the same way as the dismantling of genuine checks and balances. This is no wonder, of course, since even your minister of justice is baffled by the concept of the rule of law. (Tímea Szabó, PM, opposition, 19.10.2021, LP 41, Session 217)

In 2010, another opportunity to turn things around came along: with a two-thirds majority in parliament, Viktor Orbán had the chance to set the country on a new upward trajectory, and to consistently lead it as a statesman. That is not the path Viktor Orbán has chosen. He has subjected everything to a single objective, namely the retention of political power, and he has so far succeeded in achieving this as an outstanding political juggler, building his own system, only it is Hungarian society that has to pay a high price for this. In order to retain power, Viktor Orbán has gradually suppressed the rule of law and built up his own chain of vassals, which he maintains by luring away EU funds with impunity on the one hand, and by keeping him under existential threat on the other. (Zoltán Balczó, Jobbik, opposition, 27.4.2020, LP 41, Session 122)

Politicisation/restriction of the judiciary and public prosecution. For the post-1989 transformation period, when the legal order was being established, we did not find any statements in the parliamentary debates analysed about a politicisation or restriction of the judiciary. This finding is highly relevant because the constitutional court under its first president László Sólyom—often described as an activist constitutional judge—played an important role in this process. It was not until after the parliamentary elections in 2010 that concerns about such tendencies were raised time and again. From then on, also another narrative emerged that Fidesz seeks to politicise the judiciary, the constitutional court and the prosecution service. It was linked to the criticism of a general stretching of rules described above. Opposition MPs from DK, Jobbik, LMP, MSZP and PM expressed their concern about the independence of the judiciary and the erosion of the rule of law. The debates focused on several issues, including the strengthening of the public prosecutor’s office at the expense of the courts (Dorosz) as well as legal changes to the powers and composition of the constitutional court, which would have implications for future governments—even in the event of a change of government (Lamperth).

(T)he government has continuously strengthened the prosecution service at the expense of the courts, the defence and the rest of the judiciary. At the end of this process, as this proposal also shows, the country will end up with a muscularised super-prosecution service that will not correct the defects that already exist in the prosecution service, but will only exacerbate them. The prosecution service is the least transparent and therefore the least controllable of all public actors and institutions (…). (Dávid Dorosz, LMP, opposition, 14.11.2011, LP 39, Session 133)

In a modern democracy, the second most important principle after the principle of the separation of powers is that there should be an authoritative, independent body which ensures that the spirit of the constitution is upheld. The main check on political power is the constitutional court. No wonder, then, that Viktor Orbán has made the abolition of the separation of powers and the constitutional court his top priorities. That is why Fidesz is reshaping the constitutional court so that it does not prevent them from exercising power, but if other parties were to come to government – and yes, let us be optimistic about other parties coming to government – it could paralyse the legislature, and if it can, let us be under no illusion, it will want to paralyse it. (Mónika Lamperth, MSZP, opposition, 14.11.2011, LP 39, Session 133)

Opposition parties also criticised restrictions on the autonomy of judges and constitutional judges, on the independence of courts and on the functioning of the National Council of the Judiciary. Legal reforms tailor-made to the interests of the governing majority included the lowering of the retirement age of judges (originally planned also for constitutional judges), which drove many senior judges out of their posts. The problem was that a two-thirds majority was sufficient for the appointment of judges and constitutional judges, so that Fidesz-KDNP did not have to compromise with the opposition on appointments, as was previously the case. As the opposition pointed out, this meant that people loyal to the government or the party were appointed (Sect. 3.2).

In the second half of the 2010s, when administrative courts were established, opposition parties objected to the concentration of power in the Ministry of Justice and the procedure for appointing judges at these courts, which they saw as a means to further politicise and restrict the judiciary. In addition, critics argued that the appointment to various key positions of individuals whose independence from party politics was questionable could jeopardise the independence of the judiciary and thus the rule of law itself.

(Y)ou wanted to create autonomous administrative courts in a way, within a regulatory framework, that would have made it possible, in practice, to put your party soldiers in these courts. A maximum of half of the people who would have been judges in these new courts, a maximum of half, so maybe only 20% or 10%, would have been judges (…). In other words, your tried and tested people from the administration would have been shunted into these courts. (Gergely Bárándy, MSZP, opposition, 21.2.2017, LP 40, Session 200)

Contrary to the title of the law, we are not amending the law on administrative courts, but the law on Fidesz courts. (…). (I)f there has been a legal dispute between citizens and the state in Hungary up to now, it has been settled by independent courts, including judges specialising in public administration, who have decided on these cases. From now on, if a citizen has a problem with the police, the tax authorities, the electoral authorities or any other state body, he will no longer have to deal with the independent courts, but with the Fidesz party state. (Bence Tordai, PM, opposition, 20.3.2019, LP 41, Session 62)

(T)he separation of powers, an ancient democratic principle, has been seriously violated in this law. It is when the executive acquires influence, and decisive influence, over the judiciary, and can practically control it. What you have shown over the past nine years is that the policy of the Fidesz-KDNP governments has been nothing other than to ensure that everything in Hungary where there is power is controlled and that the government’s position clearly prevails. What Viktor Orbán determines must happen at all levels. (Csaba Gyüre, Jobbik, opposition, 19.11.2019, LP 41, Session 94)

The governing parties Fidesz and KDNP saw no restrictions or politicisation of the judiciary⁷¹ and rejected all criticism as unfair and politically motivated. It was, in their view, unjustified to say, for example, “that the minister’s administrative function with regard to the administrative courts is, so to speak, of the devil’s own making, when at the time of the 1990 regime change and for the eight years that followed, the entire judicial organisation, i.e. the entire civil and the entire criminal courts, were all operating as a ministerial administrative model”.⁷²

Politicisation/restriction of the administration or independent institutions. Opposition parties in the Hungarian parliament, including Fidesz, were sensitive to possible political influence on the public administration in the first wave of rule of law legislation.⁷³ When Fidesz, FKgP and MDF formed a government (1998–2002), opposition MPs criticised alleged restrictions of the public television and radio. Members of the former governing parties, now in opposition, described them as an instrument of government propaganda and attacks on opposition parties (Kovács, Fodor). They also criticised the unequal treatment of the local administration depending on party affiliation (Fodor).

The first two terms of government saw the separation of politics and administration, in line with the rule of law, and the emergence of a neutral civil service. Over the past three and a half years, this process has been reversed, with the government increasingly subordinating civil servants and making them subservient to party political interests. Political loyalty has become more important than professionalism in the succession process. The way in which the government has brought public service television and radio under its control is contrary to democracy and the rule of law. These stations, run with taxpayers’ money, have become a mouthpiece for government propaganda for success, rather than a source of impartial information for the electorate. Opposition opinions are rarely voiced, and opposition parties that are genuinely opposed to government policy are also subjected to undignified attacks by some public service media presenters. (László Kovács, MSZP, opposition, 18.10.2001, LP 36, Session 233)

We also remember what happened in the field of the media, ladies and gentlemen: an open attack on media freedom, which we had to restore just a few days ago, and for which Europe also issued a warning to Hungary. And we also remember how local governments were attacked, how the independence of local governments was attacked, how they tried to keep local governments on a leash, and how they created a model where there were good local governments and there were bad local governments. The good municipalities were, of course, those run by politicians in the outgoing government. (Gábor Fodor, SZDSZ, opposition, 25.5.2002, LP 37, Session 4)

Already in 2010, opposition parties frequently mentioned restrictions on independent media and the reshaping of media relations, organised through legal changes.⁷⁴ Fidesz-KDNP legalised, in their view, a non-objective operation of public media, restrictions on media freedom and the reorganisation of media relations, for example through the creation of the National Media and Infocommunications Authority. The opposition parties also questioned the political independence of persons appointed to key positions in various sectors; their entrenchment with long terms of office was seen as contrary to the rule of law. This was the case with the National Media and Communications Authority, the president of the Republic, the president of the State Audit Office, the president of the National Authority for Data Protection and Freedom of Information, various professional chambers and the Commissioner for Fundamental Rights, among others.⁷⁵

We have seen the decisions that have been taken in public about who will be appointed to head independent state institutions. We have seen that when the President of the Republic, János Áder, who is the former leader of Fidesz, was elected, he was supposed to embody the unity of the nation. And then we saw when the head of the State Audit Office was elected, former Fidesz MP László Domokos, who was here yesterday, almost embracing the entire Fidesz parliamentary group. It seems that they are not even giving in to appearances any more. Then we can see the constitutional court, with former Fidesz MPs and former Fidesz ministers sitting on it, and we can also see the decisions pointing in the same direction. And we can also see the attorney general, who is a former Fidesz candidate, and we can see his decisions. (Olivio Kocsis-Cake, PM, opposition, 19.11.2019, LP 41, Session 94)

Post-1989 transformation. In addition to the transformation of the political and economic system, one of the dominant themes of the parliamentary discourse in the post-transition period has been the need to address the wrongs committed under the previous regime and to bring accountability and (economic) compensation to the victims, and the governing parties introduced respective bills. Such measures, which were sometimes explicitly linked to the principle of the rule of law, included the renewal of personnel in certain sectors⁷⁶ and the restitution of illegally deprived property to the former owners.⁷⁷ While members of the first freely elected parliament agreed at the rhetorical level that it was necessary to investigate former crimes and to establish the rule of law in Hungary, the opposition, for various reasons, was not satisfied with the contents of lustration measures. Some parties found that they were not far-reaching enough.

I am convinced that the new Hungarian parliament has a paramount duty to compensate those who have suffered oppression, who have suffered damage to their physical existence or who have suffered damage to their freedom. I am convinced that a state governed by the rule of law, which is what we believe and want to believe Hungary is, must do everything in its power to ensure that, within this framework of the rule of law, it takes responsibility and names the guilty parties. (Péter Hack, SZDSZ, opposition, 8.12.1992, LP 34, Session 254)

Fidesz is also guided by the rule of law in this area. We firmly believe that everyone has the right to know the sins of the past, and that the state has a duty to do everything in its power to ensure that citizens can exercise this right. Revealing the past also means discovering the identity of the perpetrators of those crimes and making this public in an appropriate manner. (Gábor Fodor, Fidesz, opposition, 8.12.1992, LP 34, Session 254)

MSZP argued that historical justice cannot be achieved by (criminal) law, referencing in this point to a constitutional court judgement.

I must add, however, that anyone who in 1992 sees criminal law as the appropriate and adequate instrument of historical justice is not on the right track, and I must emphasise and warn against this because it should be borne in mind that the decision of the constitutional court of 3 March 1992 made it very clear to everyone that this is a very difficult path: to find historical justice through the instrument of criminal law and to remain within the requirements of the rule of law, on the ground of the rule of law. (Pál Vastagh, MSZP, opposition, 8.12.1992, LP 34, Session 254)

After the constitutional court had struck down a broader definition of target groups for lustration measures in 1993 (see Sect. 3.3), the parliament passed a law at the end of its term in 1994 that only affected a certain group without strict sanctions. In 2000, László Csúcs (FKgP, opposition) deplored “a lack of public self-cleaning” with a “half-hearted” law that he did not see fully enforced. He criticised that “perpetrators of crimes against the nation” did not have to “apologise to the victims, ultimately to the Hungarian people, for the fact that their actions have destroyed hundreds of thousands of human lives and have continually trampled the elementary norms of the rule of law underfoot”. He furthermore argued that “without purity in public life, without moral renewal in our society, we are jeopardising the meaning of the change of system, without a more humane life”.⁷⁸ In 2002, Péter Bárándy, a member of the then ruling MSZP, argued that the screening method had not lived up to expectations because the public was still “haunted by the secrets of the former state security services”. However, the process of coming to terms with the past should not, in his words, “turn into a witch-hunt”, since there was “a huge difference between an agent and an agent”. A government bill replaced the screening process with a “fact-finding process, which only establishes whether or not the public figure in question can be linked to the state security files that are handled in a uniform manner” and made the files themselves accessible to the public in an archive.⁷⁹

After the 2010 parliamentary elections, the narrative re-emerged in parliamentary debates, with MPs arguing that crimes committed under the previous regime must be investigated and lustration be strengthened. Jobbik and LMP, which had since entered parliament, criticised shortcomings of the lustration policy since 1989 and stated that the lustration had been too weak, and the target group defined too narrowly. They introduced several bills, including a bill on agents and collaborators of the state socialist security services. However, the governing parties Fidesz-KDNP did not vote for it, and some opposition parties interpreted it as a block to regime change and the rule of law. In 2011, on the initiative of Fidesz, a law on the criminalisation and exclusion of the statute of limitations for crimes against humanity and the prosecution of certain crimes committed under the communist dictatorship was adopted. The bill was criticised by some, but also supported by other opposition MPs, although they argued that its adoption was not a complete solution to the lack of lustration.

We also have disagreements on the sub-targets. Accountability is right when we think of corruption, when we think of police misconduct, when we think of abuses of the secret services. But in a state governed by the rule of law, accountability is not promised in return for social, economic and societal collapse, and this has political consequences. And if accountability is promised, it would perhaps be a good idea in this context to remember the twenty-year debt to the political elite, the public disclosure of files, and the disclosure of the secrets of the dictatorship before the regime change. (András Schiffer, LMP, opposition, 25.5.2010, LP 39, Session 6)

At the time, the Antall government fulfilled its historic mission of laying the formal foundations of democracy and the rule of law. However, for the citizens of Hungary, the last thirty years have not brought the prosperity and security that we all longed for. There has been a failure, to this day, to hold to account those who ran the one-party communist system, including full public disclosure of the files of the agents. There has been a failure to compensate those who have been deprived of their wealth and freedom, even though Hungarian citizens – and we from Jobbik know this on a Christian social basis – believed then and still believe in a social market economy and in European values such as the rule of law and solidarity with the fallen based on Christian values. (Koloman Brenner, Jobbik, opposition, 27.4.2020, LP 41, Session 122)

In all three waves of rule of law legislation studied, members of the Polish Sejm voiced challenges to the rule of law. Compared to the other countries, the number of such statements was much higher and we identified several narratives used with high intensity. Most of them referred to the functioning of the judiciary or prosecution in the sense of ineffective institutions (Table 6.28). At a distance followed statements related to our categories ‘Politicisation/restriction of the judiciary and public prosecution’ and ‘Rule-stretching and violation/non-compliance’. Allegations of rule violation and non-compliance were primarily made during the second and third waves of rule of law legislation. Post-1989 transformation issues were also frequently cited as challenges to the rule of law, but mainly during the first and second waves. As in other countries, statements often referred to several topics and categories at the same time.⁸⁰

Functioning of the judiciary, public prosecution and law enforcement. In the early and mid-1990s, MPs often described a well-functioning judiciary and prosecution service as well as a trustworthy police force as prerequisites for the establishment of a democratic state under the rule of law. Particularly against the background of widespread corruption and illegal economic behaviour during the uncertain transition period, the need for more effective prosecution of crimes became apparent. The narrative was established and used across parties that the judiciary lacks resources and competences to act effectively. This was interpreted as hindering the establishment or consolidation of a state under the rule of law. Parliamentarians criticised slow court proceedings and ineffective crime prosecution, citing as reasons understaffing, underfunding, poor equipment and a lack of professionalism, but also bad legislation. They highlighted that in a democratic state under the rule of law, legislation serves to protect human dignity and rights of all people, including perpetrators.⁸¹ In discussions on how to adequately define practical conditions for an effective judiciary and prosecution service, MPs developed their views on the necessary elements of the rule of law (Sect. 5.2.3).

In addition to the judges who have proved to be dishonest, we have a certain group of judges who are simply incompetent. I know these cases from my personal experience as a lay judge in court. The court records show examples of gross incompetence, violations of the law when judges rule. And this should also be grounds for dismissal of a judge. (Teresa Liszcz, PC, government, 6.3.1992, LP 1, Session 10)

I think that if you often have to wait for months for a court date, there are unfilled judges’ posts in many courts, constant shortages, and on top of that there are more and more new cases coming (to the courts), the collapse of the whole structure is already easy to predict. In this situation, I think it is urgent to reform the entire justice system. Work on it must start today, I want to say, from the foundations to the roof. Otherwise, we will not have a good justice system, which is something quite fundamental to the functioning of the state under the rule of law. (Andrzej Gaberle, UD, opposition, 7.4.1994, LP 2, Session 17)

The problems around ineffective institutions were also still frequently raised during the second wave of rule of law legislation. MPs mentioned a “crisis of the application of law” with a “non-functionality of Polish courts”, as in the quotation below. The practical difficulties of lengthy court proceedings which limit access to the courts as a fundamental principle of a democratic state under the rule of law were often discussed in the context of constitutional principles and adapting to international and European standards and conventions.

Firstly, there is a crisis of law in Poland, and certainly a crisis of the application of law. (…) It concerns above all the right to a court. This right to a court is declared in the constitution, it is also the subject of the Constitutional Tribunal’s jurisprudence. However, in practice, the non-functionality of the Polish judiciary puts a big question mark over the realisation of the right to court. (…) (O)ne of the sources of the crisis in the Polish judiciary is the excessive corporate privileges of judges, confirmed by the constitution. This is the identification on the part of the European Union of one of the main causes of the crisis in the application of law in Poland. (Kazimierz Michał Ujazdowski, PiS, opposition, 5.7.2002, LP 4, Session 25)

Representatives of all parties agreed on the need for a well-functioning administration in the judiciary. However, positions on how to achieve this differed. MPs mostly from the right-wing post-Solidarity spectrum which governed in this period argued that this requires a stronger administrative structure and executive involvement for higher accountability. A reform of the judiciary should “create a balance between the competences of the executive and the self-government of judges”, with “a minister of justice who is accountable to parliament for the efficiency of the courts (…) and to the citizens for the enforcement of the law”.⁸² Centre and left-wing parliamentarians and opposition parties, by contrast, often expressed concerns about a possible political influence of the executive. This would violate the constitution, which emphasises the principle of separation of powers.⁸³

The inefficiency of the prosecution office was also criticised since the early 1990s across parties. In 2010, when a PO-PSL coalition separated the positions of the minister of justice and the prosecutor general with the aim of enhancing the autonomy of the prosecution office from the executive and political parties, PiS and other opponents argued for the incorporation of the prosecutor’s office into executive structures for greater efficiency and accountability, as practised in other European states. Their narrative was that a lack of accountability in the judiciary and public prosecution is harmful for their functioning. Using a competing narrative, PO argued that the dependence of the public prosecution on the executive is harmful for their functioning.

The combining of the functions of minister of justice and prosecutor general by politicians has proven that the prosecutor’s office can become a place for party politics rather than fighting crime. (Applause) The rash of pathologies involved violated fundamental civil rights and freedoms. (…) We want the public prosecutor’s office to fulfil its role as a politically neutral public prosecutor. (…) The separation of the functions of the minister of justice from that of the prosecutor general will be the culmination of the process of repairing the justice system, not the beginning. (Donald Tusk, PO, government, Prime Minister, 23.11.2007, LP 6, Session 2)

The diverging narratives were still used during the third wave of rule of law legislation, when the 2015 election winner PiS initiated the reintegration of the offices of the public prosecutor general and the minister of justice. PiS promised to take responsibility vis-à-vis the people for crime prosecution and “to put an end to this fiction that no one is responsible for state security”.⁸⁴ Critics argued that this would “undermine the democratic state under the rule of law” and “not ensure the effectiveness of the prosecution work of this body, but only a mass replacement of personnel with those politically loyal to Law and Justice”.⁸⁵ While the first position resulted in policy measures, the second was more frequently voiced in parliamentary debates.

(W)e are ending an experiment on the Polish prosecutor’s office, an unsuccessful experiment, an experiment which was initiated by the 2009 amendment. (…) (T)he proposal to separate the office of the prosecutor general from that of the minister of justice was a huge, fundamental, one might say, mistake. (…) It was President Lech Kaczyński who said that there would be pathologies in which politicians would refer any scandal or affair to an independent prosecutor’s office, saying: it’s not us, it’s them, they are independent. And now I recall the words of Prime Minister Ewa Kopacz, who on the occasion of successive scandals said: it’s not us, go to the prosecutors, they are independent. (Michał Wójcik, PiS, government, 13.1.2016, LP 8, Session 8)

Politicisation. Many statements of Sejm members since the early 1990s fell into our category ‘Politicisation/restriction of the judiciary and public prosecution’. In the transition phase, restoring and strengthening the independence and authority of the judiciary was commonly regarded as a prerequisite for building a state under the rule of law. Politicians across the party spectrum used the narrative that there was a lack of judicial independence inherited from the old regime that needed to be addressed. This lack was considered to result from both material (salary, equipment of courts) and legal conditions (non-removability, tenure). To establish judicial independence, MPs supported the principle of non-removability—as agreed in 1989 by the Round Table—and independent administrative structures as well as sufficient material conditions.⁸⁶ Similar arguments were made for an independent prosecuting body, which was regarded as an integral aspect of a democratic state under the rule of law.⁸⁷ Conservative parties emphasised also the lack of internal independence of parts of the judiciary. They argued that “a large group of judges who have betrayed the principle of independence”, either in the previous regime or through their involvement in post-1989 economic scandals, should not be protected by non-removability.⁸⁸

Particularly representatives from the centre-right (post-Solidarity) and later the conservative-right (PiS) camp were dissatisfied with the lustration procedures in the judicial sector during the transition period. They believed that unqualified and corrupt judges could maintain their positions. During the second and third waves of rule of law legislation, they often employed the narrative that there was a lack of impartiality in the judiciary (‘corrupt judges’). According to their rhetoric, some judges used their status and judicial language to be immune and even to “manipulate a legal norm” (Łyżwińska). The constitutional court was criticised for making political decisions (Mularczyk). MPs used the argument of internal judicial independence to justify certain interventions in the self-governing structure of the judiciary or other interferences, e.g. during a debate in 2000 on the organisation of the common court system,⁸⁹ when lowering the retirement age of judges in the common courts by a new law in 2017 or when reforming the composition of the National Council of Judiciary, which selects judges, in 2018.

Cases of peculiar manipulation of a legal norm under the guise of one interpretation and then another are encountered in practice very often. (…) Of course we still have appellate review, it’s just that there are dozens of ways the system doesn’t work for that too. (…) Today, in such civil cases, hardly any ordinary citizen understands what is going on during the trial and what the court is talking about, and how they are supposed to argue their case is completely unknown. (Wanda Łyżwińska, SRP, opposition, 27.7.2005, LP 4, Session 108)

The role of the Constitutional Tribunal is to rule on the constitutionality of laws. Practice in recent years, both under President Rzepliński and previous presidents, has shown that the Constitutional Tribunal has often become embroiled in political disputes. This often had to do with the scheduling of hearings prior to the entry into force of the law, for example, or often, in my opinion and in the opinion of experts, with the manipulation or juggling of the composition of Constitutional Tribunal judges so that the verdict is as it should be. Very often it was known in advance what the verdict would be. There were many such cases. Let me remind you of the issue of vetting or the law on open pension funds, and many, many other cases. In cases where the Constitutional Tribunal was supposed to uphold the constitution, it often turned out that it upheld the party interests of the majority that had been in power for eight years. (Arkadiusz Mularczyk, PiS, government, 17.12.2015, LP 8, Session 5)

Today, after 27 years, we are working on a project which, in line with the demands of the Law and Justice programme, provides for an extraordinary complaint. Today, ladies and gentlemen, we can say: at last we will be able to look at this independence, impartiality and infallibility of judges, and at last there will be an opportunity to look at the injustice in judgments, in decisions, which we have to deal with in the Members’ offices. Finally, it will be possible to help all these people. (Waldemar Buda, PiS, government, 22.11.2017, LP 8, Session 52)

During the third wave of rule of law legislation, in which the PiS majority in parliament adopted far-reaching reforms of the judiciary and the prosecution service, opposition parties frequently used the narrative that the ruling majority seeks to politicise the judiciary and constitutional court. More specifically, they raised strong concerns about interference in judicial administration, the selection of judges and court presidents, the composition of the constitutional court, issues related to judges’ self-government, tenure and retirement age and the alleged politicisation of the public prosecution service (especially the involvement of the minister of justice). They framed these actions as undermining the separation of powers and checks and balances, ultimately threatening the rule of law. Constitutional provisions were often cited to support their arguments. Although the previous government (PO-PSL) had also been criticised by several MPs for having interfered in the formation of the constitutional court, the criticism was not as intense as that directed against the PiS reforms.⁹⁰

It is also a solution that contradicts Article 180 of the constitution, which explicitly states that judges are not removable from their positions. This is precisely the guarantee of their independence and you are striking at this guarantee. Extinguishing the terms of office of judges also violates the principle of the tripartite division of power, because at this point the legislature will be able to interfere so strongly with the judiciary that it will remove the judges currently in office. Furthermore, the expiration of the term of office of all current tribunal judges will also violate the principle of lex retro non agit. According to this principle, a law should have no legal effect on facts that arose before the date of its entry into force. (Kamila Gasiuk-Pihowicz, Nowoczesna, opposition, 10.2.2016, LP 8, Session 11)

This project was prepared by the Iustitia Polish Judges Association and is proof that the thesis promoted very often recently by representatives of the government, by representatives of the parliamentary majority, that the judiciary does not want changes, that it is some kind of caste that defends itself against changes, that defends its status quo, is wrong. The minister even used the phrase ‘judicialocracy’. I think, Mr Minister, that even if one assumes that we are dealing with what you called a ‘judicialocracy’, you want to replace this judicialocracy with a ‘pisocracy’, and this should absolutely not be allowed in this House either. (Krzysztof Paszyk, PSL, opposition, 5.4.2017, LP 8, Session 39)

My question to the minister: why do you want to carry out another attack on democracy in Poland, after the attack on the Constitutional Tribunal and the prosecutor’s office, by interfering in the principles of the tripartite division of power and the independence of the judiciary, in spite of these negative opinions, including those of international organisations? (Paweł Bańkowski, PO, opposition, 5.4.2017, LP 8, Session 39)

Similar to the debates on a possible politicisation of the judiciary, the politicisation of the prosecution service has been a matter of growing concern. During the early 1990s, when the office of the prosecutor general was linked with the position of minister of justice, not many MPs raised doubts in the chosen model.⁹¹ The issue received more attention from 2007 on, when the PO-PSL government planned to separate the prosecutor’s office from the executive (the law realising this came into force in 2010). Especially MPs of PO (and to a lesser degree left parties) justified this with the need to depoliticise the prosecutor’s office. They argued that combining the two functions has served its political aims.⁹² It would be “detrimental to the democratic state under the rule of law” since the prosecutor’s office “has been used to achieve exclusively partisan goals” in recent years (i.e. under the PiS government), with “an everyday occurrence” that promotions have been given to prosecutors who have pursued cases along party lines, “while prosecutors who have acted in accordance with the prosecutor’s ethos have often been subject to disciplinary action or transferred to smaller units”.⁹³

PiS MPs, in contrast, spread a completely different interpretation of the developments, arguing that the ‘depoliticisation’ was in fact a measure used by PO and PSL to control the prosecution service.⁹⁴

The government coalition, under the slogan of depoliticising the prosecutor’s office, amended the law on the prosecutor’s office more than a year ago, subjecting it to unilateral political influence from those currently governing the state. The rank of the prosecutor’s office was downgraded, and it ceased to be the supreme authority and became one of many central public authorities. The president of the Council of Ministers, to whom the prosecutor general is obliged to submit an annual report on its activities, has become the sole body to control the work of the prosecution service. There is no such obligation in relation to the Sejm and the Senate. The drafters of the law on the NCP have exploited this loophole in the system of control over the prosecutor’s office to politicise it even further and actually subordinate its operation to the will of politicians from the Platform and the PSL. (Marzena Dorota Wróbel, PiS, opposition, 14.4.2011, LP 6, Session 90)

When PiS adopted a counter-reform in 2016, justified with the aim of achieving more efficiency and accountability, two camps with diverging narratives competed, with the narrative of a lack of impartiality in the judiciary on the one side, and the narrative that the PiS majority interferes in the prosecution service on the other. The latter was used by the opposition—mainly PO, Nowoczesna and PSL—arguing that PiS politicises the prosecution service. Their rhetoric was in a dramatic tone, with many references to European standards, to other European countries and to the impact on the protection of citizens’ rights and to the imbalance of powers and infringement of the separation of powers.

(W)hat you want to do is, first of all, to politicise the prosecution service, which is against the Bordeaux Declaration, which is against the Rome Charter, that is, the whole acquis of the European prosecution service, which says that the prosecution service should be independent, first and foremost, from the executive, because a member of the government cannot give instructions to prosecutors, and that is what the current instrument you want to introduce amounts to. There are 6,000 independent prosecutors and one politician who will have full hold over them, full power over all 6,000 prosecutors regardless of their position and responsibilities. This is the worst of it all. (Robert Kropiwnicki, PO, opposition, 13.1.2016, LP 8, Session 8)

Firstly, the law introduces a solution that is unknown at the moment anywhere in Europe (…). Indeed, in the countries you mentioned, there is a subordination of the attorney general to the minister of justice, but there is no combination of these functions. However, the minister of justice is an active politician, and combining these functions means that the prosecutor’s office is politicised and closely dependent on the government – today’s Law and Justice government, but also every subsequent one. Attention is drawn in this context to the provisions of Article 50 of the Act Introducing the Law on the Public Prosecutor’s Office, under which the terms of office of district and regional prosecutors expire. This will result in the possibility of personnel changes in all relevant positions in the prosecution service. (Mirosław Pampuch, Nowoczesna, opposition, 13.1.2016, LP 8, Session 8)

Rule-stretching or violation/non-compliance. Complaints about rule violation or non-compliance have been widespread in the Polish Sejm throughout the time since 1990. Statements covered a wide range of events, aspects and developments. Opposition MPs often accused parliamentary majorities, governments and state officials affiliated with the ruling party of exploiting the law for power consolidation and political purposes. Violations of the rule of law, including checks and balances and the separation of powers, were frequently cited as leading to infringements of constitutionally guaranteed civil and human rights. Ruling party members mentioned such concerns but used them as a partial justification for the political and judicial reforms addressing problems inherited from previous administrations and governments. This pattern of rhetoric was already established in the 1990s.⁹⁵ Compared to the high frequency of statements criticising rule violation/non-compliance or intentions to make them possible, there were relatively few narratives used across situations and MPs. Mainly during the second wave of rule of law legislation, when a post-Solidarność coalition governed, MPs argued with high intensity that a lack of stable, transparent and constitutional law(making) undermines the rule of law.

These systemic changes also mean rebuilding, after the cataclysm of communism, the authority of all democratic institutions which perform public service from public funds. It is about rebuilding the authority of government. I am saying – and the words of previous speakers have also made it very clear – that today this authority is shaken. It is also undermined as a result of the abuse of power and the exploitation of privileges derived from power. (Jacek Rybicki, elected via AWS, government, 8.1.1998, LP 3, Session 8)

Article 17(3) allows the CBA⁹⁶ to initiate operational control without the court’s consent. Here it is not even necessary to ask the question, but does this not create a ground for obvious abuse and violation of the fundamentals and principles of the constitution? Article 19 in para. 1 and 3 gives CBA officers the right to commit crimes. Is the state under the rule of law supposed to be about stimulating crime? (Applause) It is possible that some forms of provocation may be used, but the opacity of Article 21 opens a window into the sources of corruption within the CBA itself. (Jarosław Wałęsa, PO, opposition, 16.2.2006, LP 5, Session 10)

MPs across party lines also complained about deficiencies in Polish law and the legislative process, particularly in the early 2000s. Such criticisms included poor legislation, frequent amendments to the same law, a lack of transparency of the law for the public and shortcomings in the lawmaking procedures.

I would like to emphasise that the weaknesses of our law, the inadequacies in the functioning of the legislative bodies, are a burden that affects all the terms of our parliament and other bodies adopting and propagating the law. (…) It is already possible to speak of a peculiar disease of legislation in our country and all the information of the ombudsman repeat the charges against the legislators which are identical in their nature. (Tadeusz Jacek Zieliński, UW, opposition, 14.7.2000, LP 3, Session 82)

(W)e agree with the conclusions that the ombudsman draws at the end of his 17 points, with his criticism of the reality of the state of the rule of law, lawmaking and law enforcement, criticism formulated out of concern for the state of the law. We also share his doubts and concern about how far Poland still falls short of the standards of a stable state under the rule of law, where the law is transparent, understandable to every citizen, and respected by everyone, from the criminal to the minister, and everyone wants the law to be a true instrument of social stability, the common good and good mutual coexistence. (Józef Oleksy, SLD, opposition, 24.7.2001, LP 3, Session 114)

(W)e unfortunately have a practice in this parliament of destroying constitutional principles of lawmaking. These constitutional principles of lawmaking have been violated in at least two cases: in the case of the vetting law, or rather the anti-vetting law (…) – fortunately, the constitutional court pointed out the unconstitutional manner in which this law was passed – and in the case of the manner in which the electoral model was changed (…), in this case the Constitutional Tribunal (…) defends the high rank of the Upper House, which cannot be a chamber commissioned by the ruling party, cannot be a chamber whose activity is evidenced by the fact that it bails out the Democratic Left Alliance when it loses in the Sejm. (Kazimierz Michał Ujazdowski, PiS, opposition, 5.7.2002, LP 4, Session 25)

A recurring concern, mainly voiced by MPs when sitting on the opposition benches, was the failure of the legislature to implement the judgments of the constitutional court in time or at all (Kłopotek). This was partly described as a problem caused by the government (Widacki).

How can we expect a citizen to respect the law if we, the legislators, we, the government – I am thinking of the Sejm, the government – do not respect the judgments of the Constitutional Tribunal? We say all the time, we emphasise – although I don’t think we quite believe that this is the case – that we are a state under the rule of law. Far from it, if we ourselves do not respect this law. (Eugeniusz Kłopotek, PSL, opposition, 27.7.2005, LP 4, Session 108)

However, we are concerned that many judgments of the Constitutional Tribunal have not been implemented, as the necessary legislative changes resulting from these judgments have not been made. These delays are primarily the responsibility of the government and specific ministries. (Jan Widacki, (elected via Partia Demokratyczna, parliamentary group Lewica i Demokraci, opposition, 30.5.2008, LP 6, Session 16)

Already during the first PiS-led government in 2005–2007, and even more so from autumn 2015 onwards, the opposition parties strongly attacked the PiS government for its judicial reforms and other legislation, using the narrative that the PiS majority violates rule of law principles. Such criticism explicitly referred to rule violations, including the undermining of the separation of powers, retroactive laws, abuse of power, the instrumental use of constitutional amendments to settle certain political disputes, attempts to change the constitution through an inadequate procedure, by reinterpreting some laws and trying to interpret laws⁹⁷ and violations of civil rights and freedoms.⁹⁸

In a state under the rule of law, it is not permissible to amend the constitution for the sole purpose of settling a current political dispute, as this would amount to treating the Fundamental Law instrumentally. (Krzysztof Paszyk, PSL, opposition, 10.2.2016, LP 8, Session 11)

Your hastily written laws are as great a threat to civil liberties and the rule of law in Poland as the actions of al-Qaeda are to peace in the Middle East. In terms of standards of legal protection, you are pushing our state under the rule of law out of the heart of democratic Europe into the jaws of the eastern leviathan. (Hanna Gill-Piątek, PL2050, opposition, 26.2.2021, LP 9, Session 26)

The opposition parties also strongly criticised rushed and inadequate legislative procedures for significant legal drafts, the absence of critical legal opinions and the perceived politicisation of the legislative process, which they saw as compromising its integrity for the benefit of specific political parties.

Once again, we are being offered fast-track procedures. Once again, we could not wait for the opinion of the National Judicial Council, which has a provision in the Act on the national judicial council for the possibility of giving an opinion on such laws. We received the opinion of the Supreme Court today, already during the session of the Sejm. The lack of opinions from such important bodies means that you do not really take into account anyone’s legal opinions. (…) Everything will soon be tailored to the needs of the parliamentary majority. (Katarzyna Lubnauer, Nowoczesna, opposition, 17.12.2015, LP 8, Session 5)

MPs from the government side accused PO of previous breaches of rules when in government⁹⁹ and used this to justify reforms to rectify “predecessors’ mistakes”, albeit to a lesser extent compared to the opposition’s statements.

Post-1989 transformation. Most discussions on the transformation and its impact on the rule of law date back to 1990–1997, covering the establishment of key institutions under a new democratic system. This includes debates on the vetting of state authorities, the judiciary (especially judges who began their careers in the Polish People’s Republic) and the prosecution service, and the lustration law adopted in 1997. In that period, a narrative was frequently used across parties that there would be a lack of law-abiding, trustworthy state institutions and of a stable legal system hindering the prompt establishment of a state under the rule of law. Against the backdrop of the post-1989 insecurities in the state apparatus, frequent political struggles within the parliament and with the president, short-lived coalitions as well as economic scandals and problems arising from the transition to a free market, there was a widespread conviction that these “pathologies” arose also because of a systemic lack of morality within society as a whole and that new institutions were urgently needed.

I wanted to talk about the causes of this wave of corruption and scandals that we have, which did not begin now or two years ago, but at the end of the 1980s. The causes persist all the time and have not changed. The first is an unstable law that is inconsistent, that comes from different eras, not to say different regimes, a law that is not equal for all entities, including all economic entities. (Józef Orzeł, PC, government, 13.2.1992, LP 1, Session 8)

(T)he left-wing parties of the current and previous parliamentary term had already pointed out the harmful phenomena emerging during and alongside the processes of political transformation; today, other political groups also see the threat of these phenomena, and on this point we are in agreement. In such situations, however, we must always answer the question: where do mismanagement, scandals and corruption come from? Is it just loopholes in the law? We must also remember that they are born out of the poor state of general morale, and in business and the economy in particular. (Józef Oleksy, SdRP, opposition, 13.2.1992, LP 1, Session 8)

(N)o one doubts the need for a state civil service as soon as possible. [It] (…) is an indispensable element of a democratic state, ensuring stability in the work of the state administration under conditions of changing governments and balance of power in parliament. It is supposed to ensure the isolation of the mechanisms of the state’s functioning from political pressures, and in our Polish conditions this is to become a guarantee of an irreversible break with the model of the so-called crony republic so well-known from the past and, unfortunately, also from the present. (Piotr Czarnecki, UP, opposition, 26.4.1995, LP 2, Session 48)

MPs also addressed the speed at which problematic situations change as a challenge to establishing effective institutions (Grzyb). They also agreed on the need to adopt a new constitution for ensuring the rule of law and to stabilise politics (Łuczak).

Phenomena that were marginal or non-existent at the time when the police laws were drawn up, but which are now prime threats, not only disrupting order and security, but also, sadly, undermining the state, have grown up. (Andrzej Grzyb, PSL, government, 1.9.1994, LP 2, Session 28)

By adopting a new constitution we want to confirm the new reality, strengthen democracy, but also, perhaps for a large part of society, an even more important matter – the creation of the necessary framework for strengthening the rule of law. Disputes at the highest levels of government, for example over electoral law, the questionable powers of the president, the unclear scope of the relationship between the government and the Sejm, the legislative hold-ups between the Sejm and the Senate, are just the most glaring examples. (Aleksander Łuczak, PSL, government, 10.10.1991, LP X, Session 77)

Despite the rhetoric overlap, parties held different positions on how the state institutions should be shaped to prevent phenomena such as corruption and clientelism without creating new problems.¹⁰⁰ They also failed to agree on a new constitution until 1997 because of party fragmentation, disputes over ideological issues and key features of the system (such as the position/power of the parliament and the governmental system) and—as a result of both—unstable governments.

In contrast to the general rhetoric overlap with regard to the lack of reliable and effective institutions, MPs were more divided in terms of ‘decommunisation’. Mainly in the first and second waves of rule of law legislation, conservatives—particularly PC and ZChN, from 1996 on part of the post-Solidarity coalition AWS,¹⁰¹ but also the Confederation of Independent Poland (KPN) and others—used the narrative that a lack of decommunisation was hindering the establishment of a just state. This narrative was most prominently related to the judiciary. The parties contested the ‘thick line’ policy, a Round Table talks compromise. Part of this agreement was that the judges remained in office and were assessed by their position towards the new state. This policy was justified with the need for trained personnel and with the argument, used mainly by leftist MPs (including the SdRP—Social Democracy of the Republic of Poland—the successor party of the Polish United Workers Party), that strong lustration would contradict principles of the rule of law, e.g. the prohibition of retroactivity.¹⁰² Its supporters stressed that judges must be irremovable, thereby protecting their independence under the new system. They also emphasised that the problems around “disposable, unworthy judges” cannot be satisfactorily resolved by means of a legal standard.¹⁰³

Those who opposed this policy sought justice for people harmed by the previous regime. They criticised insufficient lustration or vetting, which was presented as damaging the rule of law.

In 1989, we abandoned the vetting of judges as the only group of public officials. (…) We stabilised all judges with the 1989 reform by introducing the almost absolute principle of non-removal. This is a very important guarantee of independence. But we extended this guarantee to everyone, including those who in the past had very blatantly disregarded the principle of independence. The attempt to introduce Article 591 is an attempt to rectify this serious political mistake. (Teresa Liszcz, PC, government, 6.3.1992, LP 1, Session 10)

These proposals are the result of the political situation created, inter alia, by the pursuit of the policy of the thick line (…). (T)he Polish judiciary (…) is largely made up of judges who are still judges under the old system of the communist regime, a system of judges who are largely corrupt, not economically, but certainly morally. (Maciej Srebro, ZChN, government, 6.3.1992, LP 1, Session 10)

In this view, the lack of lustration resulted from the socialist influence still relevant in the transition period and “disposable” judges/prosecutors “who have convicted unfairly, unjustly in various trials” (Mazurkiewicz). Leaving the courts out of vetting was seen as perpetuating the communist legacy of party dependence. Exceptions to non-retroactivity of the law were justified in political breakthroughs.¹⁰⁴

Until now, there is a belief in society that the only people who can get away with ignorance of the law are lawyers. This is a belief that has been instilled for many, many years. This infamous reputation has been fostered by a whole host of, but unfortunately disposable, judges, disposable prosecutors, who have been guided not by the law, but precisely by the directives of the authorities. In many cities, there is a problem of judges who have convicted unfairly, unjustly in various trials; of prosecutors who have participated in such trials and, contrary to appearances, this is not a marginal problem that can be ignored. The very existence of people who, by their actions, by their behaviour, have simply harmed the justice system by handing down such and not other sentences, demoralises society, people know this, they are familiar with such examples. (…) Conducting vetting is a must. (Andrzej Tadeusz Mazurkiewicz, KPN, opposition, 6.3.1992, LP 1, Session 10)

The narrative continued to be used later due to the constitutional court’s rejection of the lustration resolution in 1992 and political scandals involving state holders in the former communist secret service. From the late 1990s until the mid-2000s, especially when PiS was in power from 2005 to 2007, PiS and LPR parliamentarians pushed for changes due to perceived lustration delays, while SLD members again raised constitutional concerns.

We are talking about the ruling of the constitutional court, which in its essential content confirmed the constitutionality of the lustration law. Thus, in its essence, this ruling represents a victory for the rule of law over the political line of those – and this includes the president of the Republic, and a group of MPs associated primarily with the Democratic Left Alliance – who wanted to use the constitution against the lustration law. Before the constitutional court, this attempt was thwarted. (Kazimierz Michał Ujazdowski, elected via AWS, government, 3.3.1999, LP 3, Session 45)

(T)he cleansing of administration, the cleansing of local government, the cleansing of state institutions, the cleansing of many professions of people collaborating with the communist security apparatus is a condition for the rebirth of the Polish state elite. A normal, honest Poland cannot be built without this. We, in presenting this project, are creating the foundations of democracy. (Stanisław Pięta, PiS, government, 9.3.2006, LP 5, Session 12)

In that period, especially right-wing conservative politicians linked the policy of the ‘thick line’ also with corruption and lacking impartiality (‘corrupt judges’, see above). During the first PiS-led government (2005–2007) and its programme for a ‘moral renewal of power’ in the form of establishing a Fourth Republic, the fight against corruption, including corrupt judges, was used to justify various political measures, including the establishment of the anti-corruption agency and a new lustration law.

In Poland, corruption is inextricably linked to another phenomenon, namely post-communism, i.e. a system of social relations in which people originating from the communist nomenklatura and the secret services have largely dominated the Polish economy, the banking system and the state apparatus. In many cases, the model for the distribution of wealth was not based on the law or on the principles of elementary justice, but was based on personal arrangements in which the behaviour of many people in power was determined by the desire to achieve material or personal gain, rather than to achieve the public good. (Przemysław Edgar Gosiewski, PiS, government, 16.2.2006, LP 5, Session 10)

After 2015, during the second and third PiS governments, the narrative was used frequently, while the perceived lack of political independence and impartiality of the judiciary was more often raised as a concern (see above).

The most widespread narratives on challenges to the rule of law in the Romanian parliament fell into the category ‘Politicisation of the judiciary and public prosecution’, which ranked first by a wide margin. ‘Corruption/clientelism’ and ‘Rule-stretching or violation/non-compliance’ followed at a distance (Table 6.29). ‘Functioning of the judiciary, public prosecution and law enforcement’ was also frequently mentioned as a challenge. An alleged ‘Lack of trust’ was deplored mainly during the second wave of rule of law legislation. Many statements referred to different kinds of challenges, together forming a more complex story of problems; in such cases, we assigned them to the category that received most attention by the speakers.¹⁰⁵ The most intensive debates on challenges to the rule of law were identified in the documents of the second wave of rule of law legislation, dating from 2004 to 2014. Five narratives were used with high intensity in that time. One-sided narratives on challenges to the rule of law have not been typical for Romania. With only one key narrative found in our documents dating from the first period and two for the third, the debates seem to be less controversial in most of the periods under study. However, in practice, the politicians frequently accused each other of violating the rule of law.

Politicisation or restriction of the judiciary and public prosecution. Allegations of a politicisation of the judiciary and public prosecution were made by MPs throughout the three waves, and rhetorically the parties agreed that this was an important problem, with many statements using the same narratives about the kind of problems in this field. In the early 1990s, when the constitution, the Law on the Constitutional Court and other laws on the judicial system’s bodies and institutions were debated in parliament, concerns regarding a possible politicisation of the judiciary and public prosecution were voiced on a general, conceptual level, but they did not raise an intense debate. For instance, the opposition MP Támas Csiha (UDMR) in the debate of the Law on the Organisation of the Judiciary stated:

Provision para. 1 is in flagrant contradiction with the principle of separation of powers. The possibility of control by the Ministry of Justice obviously leads to the subordination of the judge, who is irremovable, to the administrative power, which from election to election may change its political colour, but in any case has such a colour. (Támas Csiha, UDMR, opposition, 24.6.1992, S, LP 1)

Parliamentary debates grew in intensity and became more concrete with piecemeal judicial reforms in the aftermath of the first change of government in 1996. In the period before and immediately after EU accession between 2004 and 2007, when President Băsescu and the minister of justice institutionally strengthened the fight against corruption in politics and the judiciary, there was a peak in the criticism of a politicised judiciary and public prosecution.

After that time, representatives from all parties frequently stressed that the lack of institutional independence of the judiciary and public prosecution can be exploited by the government or the president to fight political opponents. According to many MPs, the Superior Council of the Magistracy represented the judiciary as such, and its insufficient autonomy from politics was argued to be the root cause of the at times tense relation between the judiciary and the political branches of government. The opposition MP Viorel-Gheorghe Coifan (PNL), for example, criticised the PSD government reforms of the judiciary under Adrian Năstase:

The new draft laws on judicial organisation and the statute of magistrates further demonstrate the PSD’s desire to maintain its influence and control over the judiciary. Although the Superior Council of Magistrates is, according to the constitution, the guarantor of the independence of the judiciary, the budget of the judiciary remains at the discretion of the minister of justice, a politician and member of the government. There can be no independence of the judiciary without real budgetary autonomy. (Viorel-Gheorgher Coifan, PNL, opposition, 15.3.2004, CD, LP 4)

After the election in late 2004, the now opposition PSD represented by Ioan Chelaru attacked the newly appointed Minister of Justice, Monica Macovei, for discrediting the Superior Council of the Magistracy even more:

The Superior Council of Magistracy is being reduced to a decorative institution at the head of the judiciary. Through continuous public discrediting, spearheaded by the minister, it is intended to turn it into an instrument acting on political orders. The council’s debates are proving almost useless, politics is trampling it underfoot, has almost subjugated it, and the proposed new legislative changes practically finalise this, and the constitutional phrase that “the Superior Council of Magistracy is the guarantor of the independence of justice” has long since been eliminated by the minister’s public treatment of the council’s members. (Ioan Chelaru, PSD, opposition, 12.12.2005, S, LP 5).

When in 2021, after the two largest parties, PSD and PNL, who had bitterly fought each other for thirty years, had formed a grand coalition, the MP Beniamin Todosiu from the opposition party USR read some of the government’s actions as an intimidation of the judiciary:

The action looks more and more like an attack on justice, orchestrated from the political arena, and aimed at intimidating magistrates involved in the fight against corruption. Basically, this action looks like a warning to judges across the country who do not want to comply with the plans of the monstrous PNL-PSD coalition under the patronage of President Klaus Iohannis. (Beniamin Todosiu, USR, opposition, 15.12.2021, CD, LP 9)

The context of such criticism was the institutional arrangement (following the French model and returning to the interwar Romanian pattern) in the constitution of 1991 and the laws regulating the judiciary, according to which both components of the Superior Council of the Magistracy—judges and prosecutors—were partially and to a different degree under the command of the minister of justice. Though the Superior Council of the Magistracy was stipulated a self-governing and representative body of the judiciary, it was dependent on financial allocations from the minister of justice. While the judges were not subject to the minister of justice, their autonomy was hampered indirectly by the government as well.

The limited institutional autonomy of the public prosecutor has also been a matter of concern. When the opposition PNŢCD demanded in 1991 the removal of the minister of justice from the helm of the public prosecution,¹⁰⁶ the postcommunist parties and the majority of MPs from the so-called historic parties (like PNL and PNŢCD) rejected this.¹⁰⁷ According to the constitution, the office of public prosecution was regulating the judiciary directly subordinated to the minister of justice, and was therefore in an ambiguous position between the political and the judicial branches of government. The minister of justice had several instruments at hand to exert influence on the leadership of the office of public prosecution, on the career trajectories within the office, and ultimately on which cases are to be prosecuted and which are not. Opposition MP Cornel Ştirbeţ (PD), for example, stressed:

(A)ccording to the constitution, he works under the authority of the minister of justice, and according to the Law on the Organisation of the Judiciary, he can give a written order to any prosecutor in Romania, through the prosecutor general, to begin criminal proceedings in a given case. This is not independence, this is not impartiality, in the sense of the European Court of Human Rights. We believe that we should have first, I repeat, reformed the judicial system as a whole, and the public prosecutor’s office in particular, and then come up with a law on the National Anti-Corruption Prosecutor’s Office that would provide us with procedural guarantees that this institution will not be (…) a kind of political police, but will be an institution that corresponds to the rigours and rules of the rule of law. (Cornel Ştirbeţ, PD, opposition, 3.6.2002, CD, LP 4)

During the second wave of rule of law legislation, after several governments from both the postcommunist and the liberal and pro-European camp had passed laws on the judiciary, another narrative was widespread, namely that those in power are de facto misusing public prosecution and other law enforcement authorities to criminalise political opponents. MPs from PSD and ALDE criticised that the public prosecutor’s office was being used by the minister of justice to criminalise political opponents under the pretext of fighting corruption. As Traian Băsescu had run for presidency mainly on an anti-corruption ticket, the opposition perceived the new minister of justice, Monica Macovei, as his tool and both his and her actions as a politically motivated overreach. Macovei significantly strengthened or founded specialised institutions for public prosecution for fighting high-level corruption more effectively, such as the Directorate for the Investigation of Organised Crime and Terrorism (Direcția de Investigare a Infracțiunilor de Criminalitate Organizată și Terorism (DIICOT)) and the National Anti-Corruption Directorate (Direcția Națională Anticorupție (DNA)) (Sects. 3.2 and 3.3). This was done partly in response to EU pressure for further reforms in the judiciary.

These institutions as well as Băsescu’s practice of personal interference in the judiciary by attending high-level meetings of the DNA and the Superior Council of the Magistracy came under heavy criticism. Politicians particularly from PSD, but also from ALDE, repeatedly criticised President Băsescu for furthering personal interests while prosecuting his political opponents for political reasons.

Traian Băsescu has disregarded or blatantly violated the provisions of the constitution, when his personal or political interests required it, allowing himself gross interference in the act of justice. President Traian Băsescu’s latest interference at the DNA meeting, when Mr Traian Băsescu, probably upset at the parliamentary action to suspend him from office, asked the prosecutors to reopen the criminal prosecution files involving representatives or close associates of the opposition (…). The seriousness of this interference, which is unimaginable in any state governed by the rule of law, is demonstrated by the promptness of the reopening of one of these cases (…). (Titus Corlăţean, PSD, opposition, 28.2.2007, CD+S, LP 5)

According to the statement of President Traian Băsescu, the instigator of the constitutional inquisition, who said that “never has the justice system of any EU state done as much harm to the country for which it works as the Romanian justice system has done”, we cannot help but be horrified by the idea that he is the one who swore allegiance to the Romanian people and now betrays them with unparalleled cynicism. (Dumitru Chiriţă, PSD, opposition, 15.6.2011, CD, LP 6)

The measures taken by the government and the president were described in harsh terms, as an “attack on the judiciary”, as attempts to “intimidate”, “undermine”, “confiscate” and to “sub-ordinate the judiciary” with the ultimate effect of creating a “police” or “party state”. Specific attempts to install or reverse some reforms were being called after the respective day as “the Black Tuesday” of the Romanian judiciary.

However, what is becoming clear every day is that we live in a police state, a state in which justice is made a political weapon, a state in which people are divided into two categories: those who are on the side of those who control the prosecutors and those on whom the prosecutors have to work. (Gavrilă Vasilescu, PC, opposition, 26.8.2008, S, LP 5)

Despite abundant criticism of an institutionalised leverage of the minister of justice and the president on the judiciary and the public prosecution, no structural reform has been undertaken. This might have contributed to the fact that the narrative was still present in the third wave (but less used than during the second one).¹⁰⁸ Between 2015 and 2018, some of the corruption fighting methods were denounced as anti-constitutional.

In Romania, under the pretext of fighting corruption, a welcome action that must be pursued with full respect for the law and constitutional guarantees, a non-transparent institutional cartel known as the ‘SRI-DNA twin’ was set up, outside the constitution and in order to violate the independence of justice. (Călin-Popescu Tăriceanu, ALDE, opposition, 17.11.2015, CD+S, LP 7)

In that time, a PSD-led government was trying to walk back some of the reforms. In 2018, when a PSD-led government attempted to restrict the powers of the DNA, Stelian-Cristian Ion, MP from the liberal and pro-European party USR, accused it of a politicisation of the public prosecution.

To suggest that there is a need for greater control by the minister of justice over the prosecution services as a means of ensuring the accountability of the prosecutor to the public reveals exactly your intentions to politicise the prosecution services. Also, the allegation that our prosecutors’ offices, the DNA in particular, have absolute powers, similar to prosecutors’ offices in the Soviet system, and that prosecutors’ requests are almost automatically admitted by judges, is false. Moreover, at a later point, you complain precisely about the high number of acquittals. How does the automatic admission of all the requests of DNA prosecutors by judges reconcile with the “numerous acquittals in recent times” which you invoke? (Stelian-Cristian Ion, USR, opposition, 30.10.2018, CD, LP 8)

Corruption/clientelism. Corruption and clientelism were also an often-addressed theme in parliament. The CDR coalition that won the 1996 elections and even more so the party Alliance for Justice and Truth that won the 2004 elections together with Traian Băsescu ran on an anti-corruption platform. In the aftermath of such political changes, an increasing number of corruption allegations were made in parliament when the new governments adopted anti-corruption laws and founded or strengthened corresponding institutions. MPs across parties identified high corruption and clientelism as culturally deeply embedded social practices of violating the rule of law. But also MPs of majority factions referred to the issue and mentioned criticism of corruption and warnings from the EU that Romania must fulfil its membership obligations.¹⁰⁹

Referring to the generally overlapping perspective that corruption and patronage are challenging the rule of law, the National Anti-Corruption Prosecutor’s Office (the precursor of the DNA that was mentioned above) was founded in 2002. Then PSD MP Ionel Olteanu defined its task, speaking for the majority coalition:

We need a specialised body, we need, more precisely, the anti-corruption fight that we have been proclaiming for years (…). Public opinion is more decisive than the statements we make. Citizens see and probably feel in their own pockets that corruption is at unacceptable levels for a constitutional state. (Ionel Olteanu, PSD, government, 3.6.2002, CD, LP 4)

At the same time, other parties argued that the fight against corruption was used by the ruling majority as a tool or pretext to criminalise and ostracise opponents. This became a very popular claim and was already covered by the narrative in the politicisation category described above. MPs also identified a politicised judiciary as the main facilitating instrument of high corruption and clientelism. Thus, the overlapping perspective that corruption is a problem did not imply agreement on the adequate policy solutions for the challenge.

Particularly during the third wave of rule of law legislation, MPs across party lines used the narrative that corruption and patronage are commonplace in politics, which undermines the principle of equality before the law.¹¹⁰ Such statements were made in 2013 and from 2015 to 2018, when leading PSD and ALDE politicians such as Adrian Năstase, Victor Ponta, Călin Popescu-Tăriceanu and Liviu Dragnea were accused of facilitating high-level corruption, being corrupt themselves, and trying to roll back some of the anti-corruption legislation. Over time ministers, MPs and politicians at central and regional levels from all political parties who held office were accused, indicted and convicted of corruption. Politicians tried to prevent investigations. This included the ‘Black Tuesday of the judiciary’ when Victor Dragnea’s PSD attempted (but failed) to lower the threshold for corruption in order to keep him out of jail. Other MPs saw this as proof that their allegations of corruption were true.

Last week we experienced the regrettable ‘Black Tuesday’ of the Romanian legislature in the last quarter of a century. The USL [PNL+PSD] has managed to destroy the last shred of credibility of the parliament, by amending the criminal code, which does nothing but protect its corrupt from deserved punishment. The USL has proposed several legislative proposals for adoption without a transparent debate, in violation of procedural rules, in total secrecy. (…) With the amendments to the criminal code, parliamentarians, the president of the country and the liberal professions, including notaries and lawyers, have been removed from the category of public officials. They can therefore no longer be investigated for corruption offences. (…) The new amendments to the criminal code support bribery and abuse of office. In short, any mayor will be able to award contracts financed by public money or European funds to his own relatives. This is how the USL knows how to be fair to the people it represents. This is how we will end up being led, at all levels, by a USL-ist mafia gang. (Marian Andreea Paul, PD, opposition, 17.12.2013, CD, LP 7)

Rule-stretching and violation/non-compliance. MPs also often mentioned challenges to the rule of law which fell into this category. However, their content was diverse, with less than half of the statements in our material forming narratives. During the second wave of legislation,¹¹¹ the narrative was most frequently used that public authorities exceed their powers through their actions or deliberate inaction, disrupting the system of checks and balances. Whenever they were in opposition, representatives from all parties argued that those in power have created a mere façade of a state under the rule of law, and the norms and regulations laid down in the constitution and law remain dead letters. These allegations were directed against all persons and groups that represented and formed the institutions of the state: the president of the country, the government and its ministers, the parliament and the public prosecution office.

In more concrete terms, MPs criticised the president for overstepping his prerogatives to the effect that he was not acting as a mediator between the branches of government, but rather as a partisan actor. Two attempts were made to remove Traian Băsescu from office. His critics argued that he was trying to be a dictator, who wanted to change Romania into a police state, where public prosecution and law enforcement reign supreme.

In these two years, we have witnessed, from the one who swore to respect the constitution, repeated violations of his prerogatives, of the president’s role as mediator between the powers of the state, in order to ensure the proper functioning of public authorities, abuses and serious violations of the constitution, acts of defiance and denigration of the fundamental institutions of the state. (Titus Corlăţean, PSD, opposition, 28.2.2007, CD+S, LP 5)

All governments were accused of an inflationary use of ordinances, thereby depriving the parliament of its legislative role (Ştirbeţ). In addition, every government in all three waves of rule of law legislation had to face at least one motion of no confidence in parliament, which has become a standard political tool of the opposition. MPs criticised that reforms of the judiciary by governments do not aim at structural changes and that those in power use their influence on the judiciary, especially on the public prosecution, to serve their personal and party interests. When in government, they used the same instruments for reversing the alleged misdeeds of the past government. Evidently, the narrative was entangled with the narrative on politicisation and corruption/clientelism, forming a more complex story of guilt.

While the constitutional court has established that emergency ordinances can intervene in the field of organic laws, it has expressly ruled that they can only intervene (…) in exceptional situations. Let me ask myself, at least, if not you or the government, how an exceptional situation can be envisaged when an emergency ordinance is intended to enter into force six months after publication in the Official Gazette. What kind of exceptional situation is that? Probably, if this is how the Năstase government understands the regime of emergency ordinances and exceptional situations, we can expect emergency ordinances to be issued that will enter into force in 2004, in order to ensure continuity of PSD power. This is a defiance, I repeat, unheard of in our constitutional practice. (Cornel Ştirbeţ, PD, opposition, 3.6.2002, CD, LP 4)

Vasile Puşcaş, a frontbencher from the opposition PSD party, likewise accused the Tăriceanu government of abusing its executive powers, for example by issuing ordinances, and of sidelining the parliament:

After six months of government of the Orange Quad, we can see that the principle of the separation of powers in the state, proclaimed by the leaders of the D.A. Alliance, has completely disappeared. Parliamentary debate has been almost completely eliminated. The executive prefers emergency procedures and political accountability, and the judiciary is increasingly stripped of its powers. (Vasile Puşcaş, PSD, opposition, 21.6.2005, CD, LP 5)

Functioning of the judiciary. MPs also mentioned problems with the functioning of the judiciary. During the first wave of rule of law legislation, a narrative was used (with high intensity) across parties that the judiciary lacks the resources and competences to act effectively. This narrative was linked with the interpretation that governments have not done enough to provide the judiciary with the financial, material and institutional capacities and competences necessary for its independence. This allegation was voiced strongly by Gheorghe Gorun, a member of the small Liberal Party 93, early in 1996.

The project, this bill, tries to remove what the whole responsible Romanian society recognises, namely that magistrates’ salaries are humiliating, that they are not able, nor could they be, to ensure the material protection of those who work in this very important component of the rule of law. The draft law on the salaries and other rights of the staff of the judicial authorities, as substantially improved by the committee of the Chamber of Deputies, aims to ensure conditions for the normal performance of the act of justice in Romania. Among these conditions, I would highlight: increasing the prestige of magistrates; preventing migration from the judicial authority to other neighbouring areas; ensuring the material independence of magistrates and avoiding acts of corruption; correlating magistrates’ salaries with the complexity and social responsibility that magistrates have in the rule of law. (Gheorghe Gorun, Partidul Liberal 93, opposition, 14.3.1996, CD, LP 2)

The context of such statements was that in the early 1990s, court cases in all areas of law (especially civil and criminal) were mushrooming because both market transactions and illegal social behaviour became more widespread. Judges, prosecutors and the supporting staff could not manage the rising caseload. At the same time, salaries in the emerging field of private business and in the to-be privatised state and public economic sector was far more attractive than in the magistratura. This situation caused a serious outflow of jurists from the magistratura towards other professional fields.

When the long-time government party PSD was in opposition in 2005, its MPs—such as senator Cristian Diaconescu in this case—accused the Tăriceanu government in a debate at the occasion of a motion of no confidence of having failed in continuing PSD policies that had aimed at the well-functioning of the judiciary:

But what has the government done for the citizen who, as a person subject to justice, faces so many difficulties? Where are the implementing measures provided for in the safeguard clause on exorbitant fee reductions for the enforcement of judgments? Improving access to justice? Extension of free legal aid? Substantial investment in improving the working conditions of magistrates, which are also conditions for public access to justice? All these we have identified, we have assumed in the negotiation process with the European Union and we have started to implement them. Where are the draft laws to simplify and speed up the justice process? What about the IT system? What about social inclusion? Nowhere, I will answer. Nothing has been done on all the major themes of justice reform, apart from updating a strategy that the PSD government had been working on most anyway. (Cristian Diaconescu, PSD, opposition, 22.6.2005, CD+S, LP 5)

Later, MPs argued that the governments had engaged in superficiality or “window dressing” both for foreign and domestic consumption. In this view, they had paid only lip service to the requirements of an effective judiciary that provided for easy and affordable access to the law and that spoke justice in due time. For example, in 2007 MP Vasile Puşcaş, then in opposition with the PSD but who had been the Romanian chief negotiator with the EU in the accession period, looked back on the immediate post-accession period and criticised:

One issue that has recently returned to the public agenda in a way that we would not have wished for in the post-accession environment is the situation in the judiciary. The institutional conflicts in this area are a demonstration of the superficiality with which the authorities have managed to reconcile legal practices and institutional relations in this area with the minimum requirements of a European state governed by the rule of law. Unfortunately, it does not take much applied knowledge to see the failure of the authorities in the management of judicial institutions, and this failure calls into question the very manner in which we have managed to implement the practices and norms of the rule of law. (Vasile Puşcaş, PSD, opposition, 9.10.2007, CD, LP 5)

Lack of trust. Romanian parliamentarians also often deplored a lack of confidence of citizens in the state, resulting from misbehaviour of politicians. In the second wave of rule of law legislation, such statements were made with higher intensity, complementing the story about a façade state under the rule of law. MPs across parties stated that it was due to the failure of the political class to build and stabilise a functioning and independent judiciary that Romanian citizens had lost confidence in the rule of law. In this perspective, the citizens were fully aware of the particularly high number of government members and MPs, but also judges and prosecutors who had been indicted and convicted for a range of high-level corruption offences. They interpreted this as proof of how rotten the Romanian system was. This rhetoric was triggered by the negative assessments of the state of the rule of law in the country (particularly a high level of corruption) by the EU, which slowed down a full and fast integration of Romania into the EU.

It is difficult to know whether, at the end of these confused disputes, citizens will be left with the idea that a minister tried to dismiss a prosecutor whose incompetence was demonstrated by an independent report and took revenge by initiating a criminal investigation, or that the same official tried to protect certain economic interests by removing an inconvenient prosecutor. We cannot judge at this point what will result from the inflation of criminal cases involving several members of the government. The end of the dispute will be lost in the diffuse echo of mutual accusations, as has happened with all the major investigations launched after 2004. The public conscience will be left with the natural conclusion that we do not have credible and effective legal institutions capable of administering justice for all and ensuring their independence from the other two branches of government. Any sociological research will show that presumptions such as that the law protects only the rich and that any means are preferable to avoid recourse to the courts are certainties for large sections of society. (Vasile Puşcaş, PSD, opposition, 9.10.2007, CD, LP 5)

The assessment of the community forums coincides to a large extent with that of Romanian citizens, who, in recent years, have placed their hopes more in the decisions of the community courts than in the decisions of the national courts. The European Commission’s interim report on justice says that “the situation on the ground gives cause for concern” and points out that “in key areas, such as the fight against high-level corruption, convincing results have not yet been demonstrated”. At the same time, the Commission stresses that the Romanian government’s action plan lacks consistency and has a number of shortcomings. (Călin Potor, PNL, opposition, 24.5.2011, CD, LP 6)

In Slovakia, the most prominent narratives on challenges to the rule of law in our selected parliamentary debates were related to our categories of ‘Rule-stretching or violation/non-compliance’ and ‘Politicisation (or restriction) of the public prosecutor, law enforcement and the judiciary’. At a distance followed narratives falling into categories of ‘Lack of trust’ in the practice of the rule of law and ‘Functioning of the judiciary and public prosecution’. Corruption and clientelism were also often mentioned as a challenge to the rule of law. Table 6.30 provides an overview of the main narratives and the periods in which they were used with particular intensity. Many of them were employed by only some parties, others were diverging, creating potential for conflicts around the rule of law. In addition, overlapping narratives addressed severe problems such as the perceived erosion of the separation of powers, which parliamentarians agreed was a crucial element of the rule of law (see Sect. 5.2.5). Many of the mentioned issues appear to have structural causes. Over time, old and new parties promised to solve these problems, but their suggested solutions were contested by others, especially during the third wave of rule of law legislation.

The first one was rather general. MPs argued that public authorities, including the government, the president and the parliament, exceed their powers through their actions and deliberate inaction, disrupting the system of checks and balances. This narrative has been used throughout the periods studied by all relevant parties. Primarily representatives of opposition parties highlighted such practices by the government. However, at certain moments, also government politicians criticised the actions of previous cabinets led by parties currently in opposition or the conduct of the head of state. Parliamentarians suggested that the public commitment of political powerholders to the principles of the rule of law was merely a façade that did not correspond to reality. Disregarding the principle of the separation of powers was said to undermine the very foundations of the rule of law.

Regrettably, I must state that the relevant articles of the constitution of the Slovak Republic merely declare civil rights, but do not provide any guarantees for their implementation, and in everyday life, their fundamental rights are not upheld. (Ernő Rózsa, Spolužitie-Együttélés, opposition, 22.4.1993, LP X, Session 18)

(I)f the constitutional court tells us, “Parliament, you are violating the constitution of the Slovak Republic, you are passing laws that are in conflict,” we’re looking for ways to clip the wings of that constitutional court so it can’t tell us the same thing a second time. This conflicts with the principles of building and dividing power in any rule of law. (Vladimír Mečiar, HZDS, government, 4.3.2010, LP 4, Session 49)

(W)hat honestly frightened me was when a politician starts talking about who they’ll throw behind bars, who they’ll confiscate assets from, and how they’ll confront, clean the mess. In those moments, one must immediately be alert, because in a proper rule of law, they have no authority over any of that. (Dušan Jarjabek, Smer, opposition, 23.7.2020, LP 8, Session 10)

When mentioning this problem, MPs referred to specific issues relevant at a certain time. They criticised, for example, that the president of the Supreme Court was removed without adequate justification,¹¹² that President Ivan Gašparovič did not respect the constitutional limits of his powers and served the interests of the governing party,¹¹³ and that the parliamentary majority did not elect candidates to the constitutional court.¹¹⁴ In general, MPs frequently criticised the alleged lack of law enforcement. The speakers urged the government or its representatives to meet their commitments and not only advocate the rule of law rhetorically.

It is not enough to just proclaim adherence to the principles of the rule of law and the enhancement of constitutionalism and legal foundations of the state, but it is crucial to respect the constitution and valid laws. (Michal Benčík, SDĽ, opposition, 19.1.1995, LP 1, Session 4)

It is fully necessary to agree that in a state governed by the rule of law, it is not about enacting laws, but about their application. The Slovak Republic has been repeatedly alerted to the weak enforcement of the law. (Katarína Tóthová, HZDS, opposition, 6.12.2005, LP 3, Session 52)

(O)ne of the main problems in our country is the low enforceability of the law. The fact that criminal acts happen in front of the public eye, everyone sees it, and nothing happens – the police can’t keep up, the prosecution doesn’t press charges, the courts don’t judge. (Ondrej Dostál, SaS, opposition, 28.3.2017, LP 7, Session 14)

Disregard for the rulings of the constitutional court was also criticised by various speakers. At times, even representatives from the government and the opposition accused each other of this in the same debate, as the following quotes from Fehér and Prokeš show.

The same members of parliament who were criticising me four years ago while they were sitting on the opposition benches now, merely by moving a bit further down the rows and becoming members of the ruling party, suddenly don’t seem to acknowledge that the constitution is being violated. They refuse to accept the decision of the constitutional court. (…) The best constitutional lawyers from the ruling coalition are advising us to not accept the resolution, to not respect the decision of the constitutional court. What constitutional court? We are the parliament, we have the majority, and we do as we please. (…) This is undermining the rule of law, gentlemen. (Ján Danko, HZDS, opposition, 18.1.2000, LP 2, Session 26)

A paradox of the current constitutional situation could be described as the fact that even decisions of a state authority with an exclusive right to protect constitutionality can remain without legal effects. Many times, we have witnessed and sadly watched decisions of the constitutional court being disregarded. (Miklós Fehér, SMK, government, 6.2.2001, LP 2, Session 45)

Mr Prime Minister, how can we believe that you want Slovakia to be a state governed by the rule of law when you are not at all concerned about the violation of laws by members of your own cabinet? For example, by not respecting the decisions of the constitutional court. You mentioned the democratic opposition. Mr Prime Minister, it is here, but you are silencing it. (Jozef Prokeš, SNS, opposition, 7.2.2001, LP 2, Session 45)

During the third wave of rule of law legislation, while in opposition, MPs of all relevant parties accused the parliamentary majority of abusing and misusing extraordinary ‘fast-track’ legislative procedures. Practically all governments used them, but opposition MPs pointed to restrictions on their rights as elected representatives of the people and to the failure of parliament to effectively check and balance the executive. Referring to the separation of powers as a fundamental principle of the rule of law, the speakers claimed that the laws adopted by expedited procedures are unconstitutional.¹¹⁵

The Czech constitutional court expressed an opinion several years ago that not only a law whose content is contrary to the constitution is unconstitutional, but also a law for which the legal procedure was not followed during its approval. A procedure to which the constitution refers as the only possible one. If, therefore, the demand for the stability, persuasiveness and necessity of legal acts, on which the rule of law and the lives of citizens also depend, comes to the forefront in the legislative process, such acts and the attainment of the necessary authority of legislative bodies cannot be achieved other than by respecting the rules and principles of legislative activity that the Chamber of Deputies, as a significant bearer of this power, has established by law itself. (Erika Jurinová, OĽaNO, opposition, 6.8.2012, LP 6, Session 6)

The parliament, which should be capable of controlling, managing and holding the government accountable, has become its obedient servant and is incapable of safeguarding the increasingly extensive distortions of our rule of law. The government is sending laws to the parliament in a fast-track legislative process as if on a conveyor belt, even though when in opposition, it vehemently criticised this practice. (Peter Pellegrini, Hlas, opposition, 3.2.2021, LP 8, Session 23)

The second narrative related to the stretching and violation of rules was more targeted and mainly used during the third wave of rule of law legislation. MPs argued that proposed laws violate the constitution or the fundamental principles of the rule of law, namely the principle of non-retroactivity. However, not all parties interpreted the prohibition of retroactive action as an absolute principle.¹¹⁶

First, if the constitution of the Slovak Republic states in Article 1 that the Slovak Republic is a rule of law, then any attempt at direct or indirect retroactivity eradicates the concept of a rule of law. By adopting this retroactivity, we enter contradiction with whether we are still a rule of law. (Vladimír Mečiar, HZDS, government, 4.3.2010, LP 4, Session 49)

Based on the conclusions and legal opinions expressed by the constitutional court of the Slovak Republic, it can be stated that the proposed legal regulation is retroactive, as it establishes effects in the past. The question of retroactivity, where we intend to take away someone’s already acquired rights through legal regulation to make it apply retroactively, is a clear issue even for second-year law students, which is why I am surprised by the stance of a law associate professor. This is not permissible in the rule of law. (Andrej Kolesík, Smer, opposition, 1.2.2011, LP 5, Session 12)

Politicisation/restriction of the judiciary and the public prosecution. Narratives falling into this category were highly controversial. Allegations of a politicisation or restriction of the public prosecution and law enforcement bodies were present in all legislative periods, although with different focuses and increasing intensity over time. After the removal of Prime Minister Vladimír Mečiar and his party HZDS from power in 1998, several prominent figures from the former ruling group were prosecuted, including former Interior Minister Gustáv Krajči and the head of the intelligence service Ivan Lexa, both MPs. This situation triggered the narrative that those in power are misusing the public prosecution and other law enforcement authorities to criminalise political opponents, used by the HZDS parliamentarians.¹¹⁷

So, these are the reasons (…) why investigators want me to be in pre-trial custody. They don’t want it themselves. They received the order to do so. And they received the order in a way that is well known. Again, publicly known. This public order was issued by the minister of the interior to his direct subordinates about a month ago. (Ivan Lexa, HZDS, opposition, 14.4.1999, LP 2, Session 12)

It is interesting that the government coalition and the government opposition talk about parliamentary immunity quite differently. This also proves that parliamentary immunity was probably primarily devised to protect opposition members of parliament. Not to mention that in a state like the one we currently live in, which lacks the attributes of a rule of law, where there is police arbitrariness and investigators persecute people, this becomes doubly important. (Ivan Hudec, HZDS, opposition, 14.2.2001, LP 2, Session 45)

The goal of creating a special prosecutor to prosecute constitutional officials and serious criminal activity is not to achieve greater independence of the special prosecutor. On the contrary, (…) this prosecutor should be under the control of the government, and that he should be appointed on its proposal. When KDH failed to obtain even the last third position necessary for full control of the judiciary, the position of the attorney general, efforts are being made to create a new position that could be filled by their own person. This will lead to unrestricted surveillance, wiretapping and imprisonment of political opponents, specifically targeted by police officers, prosecutors and judges. (Gustáv Krajči, HZDS, opposition, 27.6.2003, LP 3, Session 13)

As indicated in the latter quote, in that period, representatives from HZDS and Smer (founded in 1999), the leading parties of Vladimír Mečiar’s and the later Fico governments, also criticised repeated efforts by liberal-conservative governments to bring about changes in the judiciary through profound legislative reforms. The line of argument was the same as for public prosecution. The main goal of the measures was said to be the subordination of the judiciary to the executive or political power, which was unacceptable in the rule of law due to the essential principle of judicial independence.¹¹⁸

(I)f a member of the government starts calling for the reorganisation of the judiciary simply because he is not satisfied with how judges are applying the law according to his own views, then something is not right here. (Katarína Tóthová, HZDS, 30.8.1999, LP 2, Session 17)

(T)he minister’s intention is to once again subordinate the courts of the Slovak Republic under his own ministerial power. And here, for twelve years, we have been striving for the opposite tendency, to make the courts of the Slovak Republic independent judicial institutions that will govern themselves, as is common in democratic states governed by the rule of law. (Ján Cuper, HZDS, opposition, 9.12.2004, LP 3, Session 33)

This narrative gradually developed, and since the third wave of rule of law legislation, diverging narratives around that issue were established, one arguing that significant parts of the judiciary and prosecution serve particular interests, including political ones, the other arguing that under the guise of modernising reforms, the government attempts to gain control over the judiciary and prosecution.

Users of the first narrative, liberal-conservative parties, regardless of their current role in the government or opposition, argued that Robert Fico’s first government (2006–2010) handed over the judiciary to Mečiar’s HZDS, the junior partner in the coalition, which, through its influence on the justice system, supposedly sought to ensure impunity for its breaches of law while in power in the 1990s.¹¹⁹ Thus, Fico’s party Smer was seen as co-responsible for the critical situation in the judiciary, which was described as having partly degenerated into a tool to immunise the misbehaviour of politicians and their close allies from all shades of business.

Who introduced such a level of politicisation into the judiciary as we have never seen before? I regret to say, it was the Smer party, it was Robert Fico, who allowed Mečiar to take over the Ministry of Justice. (…) I must ask, where were all the defenders of judicial independence when the network that now controls the judiciary was being created, a network of questionable individuals who now wield power over the judiciary, and whom you probably need today as you are trying to protect them? (Lucia Žitňanská, SDKÚ-DS, government, Minister of Justice, 1.2.2011, LP 5, Session 12)¹²⁰

Slovak politicians (…) couldn’t resist the temptation to influence the composition, both personnel and the rules, by which the judiciary is supposed to decide independently. Rules that actually allow influencing the selection and composition of the judiciary personnel. So, this constant interference with the independence of the judiciary, and on the other hand, we tell people here that we are in a state governed by the rule of law. No, we’re not. Politicians are selling them only the illusion of a rule of law, but with our steps and this constant interference, we are undermining the rule of law, tearing down the foundations of the rule of law. (Igor Matovič, OĽaNO, opposition, 30.4.2013, LP 6, Session 18)

Critics stressed that many officials in the judiciary did not operate in the public interest, thus undermining the principles of impartiality and judicial independence and the system of checks and balances. This was described as a systemic threat that called for a personnel change and a comprehensive institutional reform.

Unfortunately, among other things, we are also witnessing various corruption cases and connections between judges and politicians and mafias, even though judges should be representatives of law and justice without political and other interventions in their decision-making activities. (Petra Hajšelová, Sme Rodina, government, 28.4.2020, LP 8, Session 6)

(T)here is no country in the world where thirteen judges have been arrested at once, all of them connected to the former government. There is no country where the judiciary has such a reputation as in Slovakia. Therefore, all these measures mentioned in this section of the government’s programme statement need to be interpreted in light of the fact that we are under great pressure to really do something, that this is not just about some Potemkin villages, but truly something where we will expect results. (Alojz Baránik, SaS, government, 29.4.2020, LP 8, Session 6)

Since 2012, liberal-conservative MPs (opposition parties to the governments of Robert Fico) also claimed that the prosecutor general was too independent. In consequence, the institution would not always act in the public interest. Given the fact that the independence of the prosecutor general was guaranteed by the constitution, the speakers argued that this constitutional provision leads to a lack of accountability of the current holder of the office.

And if the general prosecutor’s office were not under the control of the party centre, these might come to light, someone might have to face investigation and court proceedings. That’s why there’s such a battle over the legal character of this state. That’s why there’s a fight over how the prosecutor’s office will be staffed, and that’s why it’s important that the president has lent himself as an agent protecting the interests of one political party, which is trying to defend the law and the right for it to be upheld. And in doing so, it distorts the rule of law and violates the constitution. (Ľudovít Kaník, SDKÚ-DS, opposition, 12.3.2013, LP 6, Session 15)

(I)f the government really had an interest in addressing the position of the prosecution, today, (…) it could even gain support for constitutional changes from the ranks of the opposition. (…) As far as I know, changes to the prosecution were also in the programmes or were being considered by MOST, SNS and SIEŤ. So, let’s say that it’s Prime Minister Robert Fico who’s blocking it, but let’s not pretend that we don’t have the votes. There are enough votes here for many things! Tell the truth, that you don’t want those votes. That you don’t want to change the prosecution because you’re satisfied with the current state. (Daniel Lipšic, OĽaNO, opposition, 26.4.2016, LP 7, Session 2)

So, we need to bring the prosecutor’s office to a state where it is accountable to someone. We cannot have the current situation, where the constitutional court has ruled that nobody has any authority over the prosecutor’s office and that it’s up to them how they carry out their duties. This is something we will have to deal with (…). (Alojz Baránik, SaS, government, 29.4.2020, LP 8, Session 6)

National-populist parties, particularly Smer, rejected legislative reforms and other measures as a mere guise for the efforts of the ruling parties to subject the judiciary to their influence, thus undermining the system of checks and balances.

I have been closely following the steps taken by the Ministry of Justice in this area – steps aimed at gradually taking control of the judicial council and the Supreme Court. (…) (Y)ou are looking for different ways and methods through the amendment of laws and regulations, which are meant to control the Supreme Court and seriously harm the independent pillar of the judiciary in Slovakia. (Dušan Čaplovič, Smer, opposition, 19.10.2010, LP 5, Session 7)

You’ve described a hundred articles about how you will form the judicial council, who will be there and who can, who cannot. Furthermore, of course, you will nominate non-judges there, which is very dangerous in the case of the judicial council, and then you write, after all that complicated, democratic, independent process, you write that you can dismiss them at any time and for any reason. So don’t even write that before, just write this provision directly to make it clear. (Robert Fico, Smer, opposition, 21.10.2020, LP 8, Session 16)

The same allegation was made concerning the prosecutor’s office. The criticism was persistent; statements regarding recurring legislative reforms after government changes did not differ much across time.

(T)hrough the amendment of the Prosecutor’s Office Act and other related laws, you are not pursuing any legitimate goal. The cause of this circus is solely and exclusively your inability to choose your candidate for the prosecutor general in the National Council. Any other reason is fabricated and serves solely to mask the true nature of the matter – the power takeover and politicisation of the prosecutor’s office. The amendment of the Prosecutor’s Office Act (…) amounts to the violation of the constitution and its principles as the principles of the rule of law. (Martin Glváč, Smer, opposition, 22.3.2011, LP 5, Session 16)

(A)s formulated, the possibility of dismissing the prosecutor general and the expansion of this to the Special Prosecutor is simply nothing but a way to control the judiciary and the prosecutor general. And yet, they were all talking about how one must not interfere with investigations, must not interfere with entities involved in criminal proceedings. This is clear evidence that the rule of law is just a bubble created in the government’s programme statement, about which I will continue to speak. (Juraj Blanár, Smer, opposition, 23.7.2020, LP 8, Session 10)

Two assumptions were made with high intensity, mainly during the third wave of rule of law legislation, forming two distinct narratives. The first was used across party lines, the second only by some parties.

The first was that due to public officials’ arbitrary behaviour and omissions, citizens have lost confidence in the rule of law. According to this narrative, public officials, through their arbitrary actions and deliberate inaction, were responsible for undermining confidence in the rule of law, as the public assumed that it was impossible to obtain justice through the mechanisms of the rule of law under these circumstances. Consequently, the public might disrespect the rules, taking justice into their own hands or supporting extreme parties in elections. This narrative was mainly used from parliamentarians while in opposition.

The landfill case in Pezinok¹²¹ (…) has become synonymous with how a functioning state based on the rule of law should not operate. It is one of those cases that erode the trust of citizens in the rule of law, in the system of state authorities and justice, and in the belief that justice can be achieved in this country. (Lucia Žitňanská, SDKÚ-DS, opposition, 6.2.2009, LP 4, Session 32)

(I)n February of this year, the European Commission evaluated the entire Union in terms of the fight against corruption. (…) I mention this because Slovakia performed very poorly in this evaluation, below the average of the European Union, with the harshest criticism directed towards Slovak courts, the prosecutor’s office and the police among the institutions analysed. Those who have the most responsibility in ensuring that laws apply to everyone and that the fight against corruption is effective fared poorly in this evaluation. Something needs to be done, and this is the legacy of recent years or even the past decade. This is closely related to public opinion, which is highly dissatisfied and lacks trust in these institutions, alongside politics and many state bodies. But in this case, it concerns the fundamental principle I mentioned earlier, that the rule of law should guarantee justice and legality for the citizens. (Ján Figeľ, KDH, opposition, 15.5.2014, LP 6, Session 35)

This is not about gambling with the law, as Smer has been trying to claim for years. This is about gambling with people’s trust in basic justice, which the rule of law is supposed to guarantee. (…) Because a rule of law is a state in which justice must prevail, and the state must be able to create a way in which justice can be applied. If we fail to do so, the feeling of resistance towards our democracy will only grow in people, and extremist forces will gain strength in Slovakia. In despair, people will seek desperate solutions. (Marek Krajčí, OĽaNO, opposition, 30.3.2017, LP 7, Session 14)

The second narrative used mainly during the third wave of rule of law legislation was that due to low effectiveness and cases of corruption in the judiciary, the trust in the rule of law was undermined. MPs representing this perspective—primarily from SDKÚ-DS and parties opposing Mečiar’s (in the first wave of rule of law legislation) and Fico’s governments—pointed explicitly to the slowness of judicial decision-making, which later was accompanied by references to corruption within the judiciary. MPs called for measures to overcome the lack of accountability in the judiciary. The narrative was also used as a supporting argument for implementing judicial reform once these parties entered government. Therefore, it was used by the same parties both in opposition and in government.¹²²

We probably agree – and I mean now both the coalition and the opposition – that the current state of the judiciary in the Slovak Republic is truly alarming. We all know that the process of its recovery since the fall of communism has been complicated. Not all steps, even well-intentioned ones, have yielded the expected results. However, colleagues, for us to reach a point where most of the society, up to 70%, perceives the third pillar of democracy and, above all, its independence as merely independence from law and justice, it is the most serious memento and message that those who elected us to office can send us. (Milan Hort, SDKÚ-DS, opposition, 15.10.2009, LP 4, Session 41)

The issue of justice and the need for judicial reform has recently been widely discussed. Breakthrough decisions and changes in laws have also been made. I believe that it is necessary and that the state of the judiciary is alarming. I would like to reiterate that the judiciary, or its negative state, is considered by citizens as the second most pressing problem in Slovakia, with less than 30% of people trusting it. It is truly remarkable, and I don’t know if there is any other country with such a situation. (Ľudovít Kaník, SDKÚ-DS, opposition, 4.7.2014, LP 6, Session 36)

We have reached a situation where we have 15 judges in custody, and others who are accused and prosecuted while remaining free. We have reached a situation where judges in Slovakia have the lowest trust within the entire European Union. This has been a long-standing issue, not a phenomenon of a few days or months. (Juraj Šeliga, Za ľudí, government, 21.10.2020, LP 8, Session 16)

The issue that court proceedings are excessively long, which harms the rights of citizens, was raised across electoral periods and by representatives of a broad spectrum of political parties, both from the opposition and governing parties. MPs used it with particular intensity during the third wave of rule of law legislation. In a more general sense, this issue was related to the state’s failure to ensure the enforceability of the law and accessible justice (Fronc, Hajšelová). Some speakers linked the shortcomings to the significant increase in caseload since 1989 without a substantial increase in human and financial resources; others highlighted that various governments could not solve the problem (Mečiar).

I am aware that within the judiciary, everything is constantly shielded under the guise of judicial independence, but the number of cases, the ways in which many legal disputes are handled, the dragging on, and the records that we seem to be setting, probably Olympic ones, because legal disputes over seemingly simple matters, such as paying alimony, can go on for 16 or more years. These are the courts that are essentially depriving citizens, ordinary citizens, of their property. (Martin Fronc, KDH, opposition, 4.9.2008, LP 4, Session 26)

Judges, with the same number ranging from 1,100 to 1,200, have received tens of thousands of additional cases. And now, what do we do about it? My government tried to address this issue, but we couldn’t find the right solution. We searched for solutions. Your two governments tried to address it and couldn’t solve it. Fico’s government is addressing it. We managed to shorten the processing deadlines to five years, but even five years is a lot. (Vladimír Mečiar, HZDS, government, 15.10.2009, LP 4, Session 41)

Courts must work faster, more efficiently and transparently, primarily for the benefit of citizens. Without a doubt, the length of judicial proceedings is one of the most crucial criteria for the functioning of the courts from a citizen’s perspective, as it is said that justice delayed is justice denied. (Petra Hajšelová, Sme Rodina, government, 28.4.2020, LP 8, Session 6)

Some MPs (mainly liberal-conservatives) also argued that due to the absence of genuine judicial reform after the regime change and later developments, the judiciary had become a closed system. While maintaining the pretext of judicial independence, this system would resist any change and fall under the control of individuals who began to use it for their own interests. This would damage its internal functioning but also its effectiveness and credibility in the eyes of the public. The judiciary was described as having become “a stagnant state that clones itself (…). Competent experts in this system have only a small chance of entering it because judicial positions are usually predetermined for the right people.”¹²³

The problem is that over twenty years, all sectors underwent a certain transformation and cleansing. This did not happen in the judiciary. It did not happen because we all protected the independence of judges. However, endlessly protecting something that is also filled with a lot of bad is not sustainable. (Martin Fronc, KDH, opposition, 25.3.2014, LP 6, Session 33)

It is no secret that cliques have formed within the courts, and one of the reasons for the prolonged court proceedings was the fact that judges were appointed without meeting the necessary qualifications and personal criteria but had political backing. (Petra Hajšelová, Sme Rodina, government, 28.4.2020, LP 8, Session 6)

The problem has always been and still is that the judiciary is the only area of social life where there is a well-organised state power, well-equipped with knowledge, to oppose any changes. (…) This is the only area where we have incorporated a strong opponent who doesn’t want any change, who wants things to continue as they are today. And this is a fundamental issue. (…) If we’re talking about the fact that all public officials should be held accountable for their actions, why shouldn’t judges do the same? After all, they identify themselves as a state power. Therefore, they should be held accountable just like a minister or a ministry official. (Alojz Baránik, SaS, government, 29.4.2020, LP 8, Session 6)

Corruption/clientelism. The issue of corruption as a challenge to the rule of law was present in the parliamentary debates analysed across legislative periods.¹²⁴ It was addressed already during the HZDS-led government of Vladimír Mečiar in the 1990s, whose representatives, while in opposition, criticised the new government’s anti-corruption measures as ineffective, selectively repressive, and as window dressing for foreign audiences.¹²⁵ Generally, corruption and clientelism were not discussed as isolated problems; instead, the statements often focused on politicisation and restriction of the judiciary as prominent challenges and, therefore, were described above as part of the respective narratives. However, after the change in government in 2006 and in the following years of the third wave of rule of law legislation, the debates on corruption became more appealing, and the arguments formed a narrative that in Slovakia, the prosecution and judiciary are part of a system of corruption that reaches into the highest echelons of politics. This argument served as a ground for judicial reforms that a liberal-conservative government strived to implement after 2010, as it was mainly used by these parties.

Let’s be honest, one of the problems of today’s judiciary is the suspected, perhaps hard-to-prove, corruption and influence within the judiciary. (…) Yes, I believe that if we want to change the perception of the judiciary, we must also acknowledge these uncomfortable matters. (Lucia Žitňanská, SDKÚ-DS, government, Minister of Justice, 8.12.2010, LP 5, Session 9)

Several huge corruption-related scandals, including the ‘Gorilla case’ (2011/2012) and the murder of investigative journalist Ján Kuciak and his fiancée (2018), led to the mass mobilisation of the public and the rise of an anti-corruption discourse adopted by many liberal-conservative parties. Such cases also contributed to the emergence of new political parties in parliament. The alleged involvement of law enforcement and judicial authorities in corruption schemes was addressed as a burning issue of the rule of law, regardless of the alteration of governments.¹²⁶

Slovakia is waiting for the rule of law, waiting for an end to political corruption in the highest positions (…). (Ján Budaj, OĽaNO, opposition, 26.4.2016, LP 7, Session 2)

We now have a 30-year experience with democracy, of which 25 years have been as an independent Slovak Republic. (…) What we have seen over these 25 years, especially during tough times, is that the police are truly politically controlled. Even sensitive investigations have been halted (…). These things don’t just happen under governments like Smer’s, but even under better governments, a true rule of law, where “let the chips fall where they may” applies, has not been established in Slovakia. We have had too many scandals, too much corruption, and too much abuse of power to say that the problem lies solely with the Smer government. The problem is the high level of corruption in society as a whole, and (…) the high level of oligarchisation in our economy and politics. (Miroslav Beblavý, Spolu, opposition, 17.10.2018, LP 7, Session 35)

Several parliamentarians explicitly referred to the ‘oligarchisation’ of Slovak politics and society while criticising alleged close relations between some big business players, politicians and law enforcement authorities.¹²⁷

The cause of this situation is, on the one hand, the lack of the rule of law, and on the other hand, conversely, the existence of various groups and cliques parasitising on the state and its activities. Unfortunately, until now, this state of lawlessness and the situation where not even the biggest oligarchs, but also others, were milking the state, did not seem to bother the ruling coalition at least. It’s only now that they’ve encountered a specific problem where a particular group or groups are causing trouble and dissatisfaction. (Jozef Rajtár, SaS, opposition, 11.5.2017, LP 7, Session 17)

After the change in government in 2020, MPs continued to point to the systemic character of corruption in Slovakia when discussing new attempts to push forward anti-corruption measures and reforms of the public prosecution and judiciary.

If we want to live in a true rule of law, and not just talk about it, the law and the state should be represented by the best. Today, the prosecutor’s office is a closed system. The new prosecutors can be sons, daughters, nieces, nephews, cousins, not the best, but the closest. (Gábor Grendel, OĽaNO, government, 4.6.2020, LP 8, Session 8)¹²⁸

This constitutional law has the potential to deal once and for all with the judicial mafia in Slovakia. What we have learned over the past three years (…) shows us that there was a corrupt system controlled by Jankovská, Kočner in connection with the Smer party and the former government. They corrupted the courts, blackmailed judges, and influenced the acceptance and promotion of verdicts that suited them. (Juraj Šeliga, Za Ľudí, government, 21.10.2020, LP 8, Session 16).