The rise and rise of national populism
A global resurgence of populism and nationalism has galvanised support for leaders with policies inimical to the rule of law. Global Insight assesses the risks and how they can be countered.
Whether it’s the climate emergency, migration, the rising threat to freedom of expression or the ongoing disruption wrought by Brexit, when it comes to the major issues facing the world today, populist movements are more influential than ever. This influence was so significant in 2016 that Time Magazine listed ‘The Populists’ – including the UK’s Nigel Farage and France’s Marine Le Pen – in its annual Person of the Year contender list, a nod to Europe’s ‘populist revolt’. President-elect Trump was Person of the Year, and since then we’ve seen Jair Bolsonaro elected President in Brazil, as well as India’s Narendra Modi and Indonesia’s Joko Widodo securing second terms.
What’s particularly perturbing is the tendency for the populists to introduce legislation that infringes human rights and restricts the independence of the media, the judiciary and democratic institutions – all fundamental pillars of the rule of law. This tendency has coincided with a rise in a particular strand of nationalism that denounces international cooperation. It also tends to espouse xenophobic and intolerant ideas and, on occasion, actively endorses violence.
Suffice to say that, as the populists have enjoyed greater electoral success worldwide, the rule of law has come increasingly under threat. ‘Witness the prorogation of Parliament in the UK as the most recent and glaring example,’ says Carmen Pombo, Co-Chair of the IBA Rule of Law Forum. However, as Pombo notes, the threats to the rule of law are often varied and complex: ‘Populist movements are directly undermining the key tenets of the rule of law: equality, dignity and equal worth – beyond equality before the law or procedural equality – and thought, conscience and association rights – beyond access to independent courts to adjudicate claims of violations post factum.’
Stoking fear, threatening values
Nils Muižnieks was Commissioner for Human Rights at the Council of Europe from 2012 to 2018. ‘A number of new players have had electoral breakthroughs in the last few years,’ he says. ‘That has to do with the confluence of several things: the migration policy crisis and the panic that it sowed in many European countries, which coincided with a spike in terrorist attacks and growing fear of Muslims. Muslims then became the primary “other” for national populists.’
It is the rise in this more nationalist, nativist and socially conservative type of populism that arguably poses the greatest risk to human rights and the rule of law. ‘It tends to hone in on this one issue, migration, which is most divisive in Europe and most corrosive of human rights,’ says Muižnieks. This has, he says, led to an abject failure in some countries, like Hungary, to deal with it ‘in a humanitarian or human rights-compliant kind of way’.
Under the leadership of Prime Minister Viktor Orbán, in 2015 Hungary became the first European country to build a fence to force migrants back from its border with Serbia. The governing Fidesz party has also introduced a raft of anti-immigration laws, effectively rejecting the obligations imposed on all EU Member States to help alleviate the migrant crisis.
Populists typically gain public support by using minority groups, such as migrants, as scapegoats for society’s wider ills. Hassiba Hadj Sahraoui, a humanitarian affairs adviser to Médecins Sans Frontières, says this has given many governments carte blanche to flout the rule of law altogether. ‘It starts maybe with legislation against migrants, refugees or asylum seekers, but then it targets the independence of the judiciary,’ she says. ‘Everything is linked, so let’s not think that it’s just about addressing the migrants, it’s about the checks and balances that we have in every country. It’s also about much more fundamental values and attachment to the rule of law.’
Witness the prorogation of Parliament in the UK as the most recent and glaring example. Populist movements are directly undermining the key tenets of the rule of law
Co-Chair, IBA Rule of Law Forum
Hungary’s government has introduced a series of other controversial pieces of legislation, including measures to eradicate media freedoms. Restrictions have also been placed on funding for non-governmental organisations (NGOs) and academic institutions in the country. This forced the closure of the Open Society Foundations in 2018 and the Central European University had no choice but to relocate its US degree programme to Vienna from September 2019. ‘What you have in Hungary is tarring NGOs as foreign agents – it’s very similar to what’s going on in Russia,’ says Muižnieks, alluding to Russia’s infamous 2012 law that required foreign-funded NGOs to register as foreign agents.
The independence of Hungary’s judiciary has been increasingly undermined and the government proposed creating a parallel court system that would be overseen by the justice minister. Poland has followed a similarly troubling trajectory under the ruling Law and Justice party (PiS). Since 2015, the Polish government has also assumed direct oversight of state prosecutors as well as the judicial body that nominates and disciplines judges. In 2018, as part of a wider overhaul of the judiciary, the government passed a law that effectively forced 40 per cent of the country’s Supreme Court judges into early retirement.
These developments in both countries raise considerable concerns, says Justice Richard Goldstone, Honorary President of the IBA’s Human Rights Institute. ‘An independent judiciary is fundamental to the operation of the rule of law,’ he says. ‘It is for this reason that judges have been under attack by most populist governments. These attacks and the steps taken to weaken the independence of their judges fundamentally breach the obligations of both countries under the applicable rules governing Member States of the EU.’
There’s been mounting pressure on the EU to respond to the backsliding on the rule of law in countries under its watch. In late 2017, the European Commission invoked Article 7 of the 2009 Treaty of Lisbon against Poland over concerns it was eroding judicial independence – marking the first time the disciplinary procedure had been used against any EU Member State. The procedure was invoked again in 2018 against Hungary. In theory, both countries are at risk of losing their voting rights. In practice, though, this may be a hollow threat: it requires the unanimous support of every other Member State.
What you have in Hungary is tarring NGOs as foreign agents – it’s very similar to what’s going on in Russia
Commissioner for Human Rights, Council of Europe, 2012–2018
In May 2019, the European Commission warned it would also trigger the procedure against Romania following concerns surrounding its government’s proposed judicial reforms and its continued failure to tackle corruption. Such steps were ‘long overdue,’ admitted Dunja Mijatovic, the current Council of Europe Commissioner for Human Rights, in a September blogpost on the Council of Europe website. ‘We should be stronger, more resolute and more vocal in defending the rule of law and the independence of the judiciary,’ she said.
There are concerns that any perceived reticence to take Poland and Hungary to task earlier may already have damaged the EU’s reputation for upholding the rule of law on the world stage. ‘This issue of the challenge of the rule of law within Europe is now an open secret,’ says Susi Dennison, Director of the European Power programme at the European Council on Foreign Relations (ECFR). ‘That’s very difficult for Europe to deal with if it wants to continue to play this international role as a defender of the liberal order at the United Nations and elsewhere and push for political reform through its trade tools.’
This perception wasn’t helped in September when incoming European Commission President Ursula Von der Leyen proposed Hungarian Justice Minister László Trócsányi – one of the primary architects behind many of Hungary’s anti-democratic reforms – as the Commission’s new enlargement commissioner.
Practically everything Bolsonaro says is against the rule of law, but the reality is completely different to what he says and what he represents
Horacio Bernardes Neto
There was strong speculation populist parties would triumph in the 23 May European Parliamentary elections. The gains weren’t as substantial as many feared, but the results echoed survey work carried out by the ECFR between January and April, which found that three-quarters of voters across 14 EU countries believe the political system is broken – at either the national or European level. ‘What is driving people’s votes isn’t party identity or left or right politics anymore, but rather that because of this deep sense of frustration that the political system is broken, people are much more promiscuous, if you like, in their support of political parties and much more willing to give extreme or new parties a go,’ says Dennison.
Ramesh Vaidyanathan is Managing Partner of Advaya Legal in Mumbai and Treasurer of the IBA Asia Pacific Regional Forum. ‘While these are indeed challenging times for the continent,’ he says, ‘I feel that the nationalist far-right is not going to succeed in breaking up the EU any time soon. The results of the recent elections for the European Parliament appear to support this view.’
Polarised societies, exclusionary rhetoric
Of course, populism, nationalism and the questions these movements raise for the rule of law are far from being unique to Europe. ‘Populist leaders, including Donald Trump, are often effective at detecting and channelling legitimate public grievances,’ says Michael Camilleri, Director of the Rule of Law Program at Inter-American Dialogue, a think tank in Washington, DC. ‘In the US, these grievances related to questions of economic displacement, but also to questions of identity. The challenge to the rule of law emerges when populists use their platforms to stoke resentment of the other, sometimes on racial or ethnic lines, or exploit public frustration with governing elites to erode institutions and concentrate power.’
In the US, this has played out most overtly in the efforts by the Trump administration to impose a ban on Muslims travelling to the US, curb the ability of migrants to claim asylum and enforce the longest federal government shutdown ever in a failed bid to force Congress to back funding the construction of a wall on the US–Mexico border.
It starts with legislation against migrants but then it targets the independence of the judiciary. Everything is linked… It’s about fundamental values and attachment to the rule of law
Hassiba Hadj Sahraoui
Humanitarian affairs adviser, Médecins Sans Frontières
Such moves have met considerable legal opposition at state level, requiring the courts to step in many times. Camilleri says judicial progress in this area suggests the rule of law is still in force. ‘The early versions of the Muslim travel ban and the separation of migrant children from their parents were struck down by the courts, and the administration’s modifications to asylum procedures are also under challenge,’ he says. ‘In this sense, the rule of law is working, however slowly and imperfectly. Perhaps the gravest risk, as we saw recently in El Paso, is that exclusionary rhetoric emboldens racists and incites lethal violence against minority communities, for whom justice will come too late (see box: The resurgence of white nationalism).
As in the US, popular support for India’s Prime Minister Modi and Bharatiya Janata Party (BJP) remains deeply divided. ‘What Modi’s supporters describe as an end to minority appeasement and a shift from identity-based politics to development-oriented politics, his detractors would call Hindu majoritarianism,’ says Vaidyanathan. ‘There have been media reports of mob lynching by cow vigilantes, cancellation of licences of certain NGOs that have been receiving foreign donations, closure of illegal slaughterhouses and aggressive trolling of detractors on social media.’
India’s Foreign Contribution (Regulation) Act (FRCA) was amended in 2010 and placed restrictions on NGOs receiving foreign funding. Since 2014, the BJP-led National Democratic Alliance has cancelled around 20,000 NGOs’ licences for allegedly violating provisions of the FRCA in a move that has been widely condemned by UN rights experts.
As with other countries, the government crackdown on NGOs in India points to a worrying trend affecting wider civil society. ‘Outside of the government, these are the actors that can put checks on the government and call them to account,’ says Muižnieks. ‘In Poland, it was women’s rights NGOs that were on the front line, feeling pressure after the big Black Protest of women marching against the retrogression on women’s rights. Then there were inspections of women’s rights NGOs.’
Vaidyanathan fears that recently passed amendments to India’s 2005 Right to Information Act could pose a similar threat to the rule of law. ‘This Act is one of the most powerful laws of independent India that empowers citizens to question governmental action and inaction by providing him or her access to information,’ he says. ‘By virtue of a recent amendment, the tenure of service and salary of the information commissioners appointed under the law is sought to be controlled by the central government. It is feared that this may undermine the impartiality of the information commissioners.’
The resurgence of white nationalism
El Paso, Christchurch and Utøya island near Oslo. Three locations in very different parts of the world, but they all have one thing in common: deadly attacks motivated by white conspiracy theories that together have claimed the lives of more than 175 people since 2011.
Nils Muižnieks is a former Commissioner for Human Rights at the Council of Europe and former Chairman of the European Commission against Racism and Intolerance. Although white nationalism is not a new phenomenon, he says resurgent populism and nationalism has given rise to extremist rhetoric that has catapulted what were perhaps previously marginal xenophobic and racist views into the mainstream. ‘The destruction of taboos by populists is scary because the language sends signals to everybody about what is and isn’t socially acceptable and then people act on it,’ he says.
Muižnieks says this was most striking in the run-up to and the aftermath of the Brexit referendum in June 2016, when Labour MP Jo Cox was shot and stabbed to death by a white supremacist. ‘There was a huge spike in hate crimes because of the rhetoric of the UK Independence Party and others targeting migrants. To me, you can draw a clear link between the rhetoric, hate crimes and the incidents that took place afterwards.’
The swift measures taken by New Zealand Prime Minister Jacinda Ardern in the wake of the Christchurch attack that killed 51 people in March 2019 received worldwide acclaim. It took less than a month for the government to pass a gun law banning military-style semi-automatic weapons. This proactive approach contrasted sharply with the lacklustre response of the Trump administration to recent shootings in El Paso and Pittsburgh in the US, which together killed 33 people between them.
Michael Camilleri, Director of the Rule of Law Program at Inter-American Dialogue in Washington, DC, says the government’s reluctance to face up to the white nationalist threat is complex. ‘For various reasons, including the continuing shadow of the 11 September 2001 terrorist attacks, the US has perhaps been slower to address the growing threat of white nationalism than it should have been,’ he says. ‘It certainly does not help when the President responds to a neo-Nazi march by claiming there were “very fine people on both sides”, as Trump did in 2017.’
The ease of access to military-style firearms has certainly helped the spread of this type extremism on US soil, where white supremacists have been responsible for three times as many attacks as Islamic terrorists since 9/11. ‘While the vast majority of Americans favour sensible gun legislation, the powerful National Rifle Association lobby has long used its influence to prevent such legislation from advancing,’ says Camilleri. ‘If the past is any indication, that will not change even in the face of recent mass shootings in Dayton and El Paso.’
Marek Svoboda is Programme Director at the Central and Eastern European Law Initiative (CEELI) Institute in Prague. He believes the attacks in New Zealand, the UK, the US and elsewhere point to the broader trend that extremists are capitalising on populist and nationalist rhetoric in a bid to legitimise their violent tendencies. ‘White extremist groups are a pathological fringe of a broader phenomenon, where large parts of the population began to feel excluded, rightly or wrongly, from having a voice in shaping the direction of their countries, which gave rise to populists of all possible hues,’ he says. ‘In my view it is here, in this widespread growing gap between large groups of population, that the cause for unsavoury political trends from populism all the way to violent extremisms originates. This is where the main focus should be.’
There is also growing disquiet from Modi’s critics that the government is increasingly infringing the human rights of India’s Muslim population in pursuit of a Hindu nationalist agenda. In August, the government abolished the special status of the disputed region of Jammu and Kashmir and implemented the National Register of Citizens in the northeastern state of Assam. These moves garnered worldwide attention after effectively rendering millions of Muslims stateless and allegations of human rights violations, including arbitrary detentions and deportations, continue to surface.
‘India provides a good example of religious populism where the majority-led Hindu government of Prime Minister Modi effectively usurps the rights of the minority Muslim citizens,’ says Goldstone. ‘It is the interests of minorities and the marginalised that require a robust rule of law and independent courts. If Indian judges come to the protection of the minority, they too may well be attacked and undermined by the government.’
Can rule of law prevail?
There are signs that the rule of law is making incremental but significant gains. In Poland, the government was forced to backtrack and suspend legislation that lowered judges’ retirement age in the wake of international pressure and a European Court of Justice ruling that it was unlawful. In May, Orbán abruptly scrapped plans to set up a controversial parallel administrative court system. For some, this is a temporary concession to ensure Fidesz curries favour with the centre-right European People’s Party. But it also ensures that the independence of Hungary’s judiciary remains partially intact, for now at least.
In July, European Commission First Vice-President Frans Timmermans announced new measures – including annual reporting and enhancing the EU Justice Scoreboard – to strengthen its ‘toolbox, to promote, protect and enforce the rule of law’. Its arsenal may be limited, but Vaidyanathan believes these and the motion backed by the European Parliament earlier this year to link EU funding for Member States to rule of law compliance could be vital to keeping dissenting countries in line. ‘The proposal to annually vet nations on their adherence to the rule of law is indeed a step in the right direction,’ he says. ‘I feel it is more critical than ever to tie EU funding to the rule of law, a measure that could hit hard some delinquent countries that have been net beneficiaries of the European largesse.’
In Brazil, Bolsonaro has stoked repeated concerns among human rights and civil society groups over his inflammatory rhetoric on migration, LGBT and women’s rights, gun control and climate change. However, Horacio Bernardes Neto, IBA President and a senior partner at Brazilian firm Motta Fernandes Advogados, says so far the administration has not lived up to his bluster. ‘Practically everything that Bolsonaro says is against the rule of law, but the reality is completely different to what he says and what he represents,’ says Bernardes Neto. ‘He has said so many things about minorities, about the Amazon and so on, but none of that has had any concrete effect yet.’
Indeed, there are already indications that Brazil’s judiciary is working hard to resist Bolsonaro’s more extreme tendencies. In June, eight out of 11 justices on the country’s Supreme Court voted in favour of making homophobia a criminal act. ‘The Supreme Court declared that homophobia is comparable to racism in terms of being a crime,’ says Bernardes Neto. ‘They are now voting on this law to prevent the abuse of authority. This is an advancement.’
Populism and nationalism are both witnessing a resurgence across Latin America, but Camilleri believes the strength of Brazil’s institutions stand the country in good stead to resist any challenges to the rule of law throughout Bolsonaro’s tenure. ‘President Bolsonaro’s positions on issues such as equality, human rights, police violence and environmental protection raise clear rule of law concerns,’ he says. ‘In contrast to some of its neighbours, however, Brazil has fairly strong institutions. Their capacity to safeguard the rule of law will be tested under this administration.’
Ruth Green is Multimedia Journalist at the IBA and can be contacted at email@example.com