Journal of Civil & Legal Sciences
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In 1992 the American political scientist Francis Fukuyama predicted the global triumph of democracy. The reason for his optimistic assessment lay in the collapse of the Soviet Union 1990/1991 and the transition of Central and Eastern European states from authoritarian regimes to democratic legal states [1].

This development can be described as the fourth wave of democratization. Huntington [2], the American philosopher, recorded the third wave in April 1974, when the dictatorship was overthrown in Portugal with the fall of Salazar. This marked the beginning of the democratization of southern Europe, which included Portugal, Greece (1974) and Spain (1975). But not only in southern Europe, but also in Latin America in particular, the yoke of the (military) dictatorship was shaken off and in the 1980s at least electoral democracies which were based on free and fair elections were established in Peru (1980), Bolivia and Honduras (1982), Argentina (1983), Nicaragua and El Salvador (1984), Brazil, Uruguay and Guatemala (1985), Panama and Paraguay (1988), and at the beginning of the 1990s also in Chile [3].

For some years, however, an autocratic counter-wave has broken its course, which also encompasses Europe and leads to authoritarianism in countries like Poland and Hungary, which have already been regarded as established democracies. In these countries democracy has come under pressure because the government parties massively erode the division of powers, the rule of law and the freedom of the press. The process of the dismantling of democracy is still ongoing. Particularly affected is Turkey, which has for years slipped into an authoritarian regime under the leadership of Recep Tayyip Erdoğan. South America has also not been spared, as the current situation in Venezuela shows, where Nicolas Maduro, who is both head of state and prime minister, has disempowered the freely-elected parliament and, with the help of a new constitution, wants to further expand his power.

The demolition of democracy and the advance of authoritarianism are illustrated by figures. The American non-governmental organization Freedom House, which has been examining freedom and democracy in the world since 1973, comes to the following conclusion in its “Freedom in the World” annual report 2017 [4]:

1. Loss of freedom in 67 countries and an improvement only in 36 countries. This means that for the eleventh year in a row, the loss of political freedoms worldwide has been greater than the gains since 2006. Therefore, a worldwide decline in democracy can be observed;

2. Of the 195 countries studied, 87 (45 percent) are free, 59 (30 percent) are partly free and 49 (25 percent) are not free, which is a worsening against the previous years.

In Poland, the party law and justice (PiS), which was successful in the parliamentary elections of October 2015, has set itself the goal of transforming the country’s politics, economy, culture and society according to its national conservative worldview. Shortly after the new government under Prime Minister Beata Szydło took place, who is the marionette of PiS-leader Jaroslaw Kaczyński, the public media and parts of the newspaper market were restructured in order to bring them on a course of government and thus to prevent public criticism of the government policy. Additionally, important positions in state institutions were occupied with PiS followers. All these measures were accompanied by social welfare benefits, such as the increase in child benefits and the reduction of the retirement age.

In the middle of 2016 the law on the constitutional court was amended and the composition of the court was decisively changed. The court`s chairman and his deputies were dismissed, and a PiS confidant was appointed as chairman. The election of five constitutional judges appointed by the predecessor parliament was canceled. The reform of the constitutional court was, however, only the beginning of a complete transformation of the judicial system, at the end of which the independence of the judiciary and thus of the division of powers will certainly be abolished. On July 2017, the parliament (Sejm and Senate) passed three laws with the aim of bringing the courts under the control of the government.

Surprisingly, at the end of July 2017, President Andrzej Duda, so far a loyal follower of the PiS policy, put a veto against two of the laws in accordance with article 122 of the constitution. He announced that he would exercise his legislative right and will introduce a separate bill and submit it to parliament. Whether Duda is now using his constitutional powers to prevent the dismantling of the rule of law and the abolition of the division of power in Poland, remains open at this time. It may be that his step is merely a move to pacify public opinion in Poland and the international criticism (especially the EU).

In Hungary stable and functioning democratic institutions had been set up after 1990: a multi-party system, government responsibility towards the parliament, independence of the courts and a plural media landscape. In free and fair elections the power changed between the political parties.

After the Socialists had won the elections in 2002 and 2006, the national conservative Fidesz party of Viktor Orbán succeeded in winning a two-thirds majority. Taking advantage of these circumstances, Orbán, elected Prime Minister, set out to expand his power base and that of his party successively: By adopting a new constitution, limiting the rights of the constitutional court, cutting the budgetary law of Parliament, setting up a National Judicial Council, which could interfere in the independence of the courts, establishing a media control council, exercising stronger political influence on the National Bank and passing a new electoral law, which should reduce the chances of smaller parties in elections. In addition, loyal party supporters of Fidesz were also accommodated throughout the state apparatus, especially in public media [5].

In 2014, the Fidesz party won 45 per cent of voters in parliamentary elections, with which Orbán could feel confirmed in its authoritarian turn. He continued unhindered, his right-wing nationalist policy that weakens the constitutional state and restricts fundamental rights, such as freedom of the press, which is why the EU has repeatedly launched infringement proceedings against Hungary. But Orbán, unlike Kaczyński in Poland, has a flexibility that allows him to make concessions to the EU from time to time in order to avoid sanctions. This is a rather creepy and softening process of autocratization in Hungary, which is less ideologically subdued than in Poland and is more likely to serve the power of Orbán and his party.

In Turkey, democratic reforms began in 1999 after the country had received the candidate status for accession to the EU. Parts of the constitution were rewritten; a lot of articles of the many laws were revised with the aim of fulfilling the “Copenhagen criteria” (guaranteeing of democracy, the rule of law and respect for human and minority rights) required for the accession of a state to the EU. Recep Tayyip Erdoğan, who served as Prime Minister from 2003 to 2014, played a central part in the political and economic reforms of the country. However, after the accession negotiations began in October 2005, further reforms were delayed and instead Erdogan became more and more authoritarian, concentrating more and more on expanding his power.

In 2014, Erdoğan won the presidential elections. Although his powers as head of state were weak according to the constitution, Erdoğan, as chairman of the AKP (Party for Justice and Development) remained the driving force. While Prime Minister Ahmet Davutoğlu carried out Erdoğan’s policy, the latter sought to expand the competencies of the president in order to be able to govern not only in fact, but also in a constitutionally legitimate manner. A thrust for his plans was the failed coup of July 15, 2016, when forces inside the military were trying to overthrow him. With the argument that the country needed political stability, Erdoğan pushed his plan to transform Turkey from a parliamentary into a presidential government system, so that the head of the state, as e.g. in the USA and France, also receives governmental powers. In January 2017, the Turkish Parliament voted in favor of the constitutional amendment, while in April, 51.4 percent of the electorate voted for the introduction of a presidential system, with clear indications of electoral manipulation.

By changing the constitution, the head of state, which is at the same time prime minister receives considerable powers which go beyond those of the American president. International constitutional experts from the Venice Commission of the Council of Europe have pointed out in a report that Turkey is becoming a “one-person regime”. For, unlike the USA, the new Turkish government system would not have counterweights and checks and thus the principle of the division of powers would be at risk. The danger that an authoritarian presidential system is developing is due to the following powers of the president:

1. The sole exercise of executive power and sole authority to appoint and dismiss ministers and senior officials;

2. The right to dissolve Parliament;

3. Enactment of decrees of law without the consent of Parliament;

4. Possibility of being a member or even a leader of a party, with which he can make party politics a guideline for his government policy;

5. Appointment of six of the 13 members in the Council of Judges and prosecutors, as well as 12 of the 15 constitutional judges, leading to a weakening of the independence of the judiciary.

Turkish democracy, however, would be in danger, not only by the presidential regime; it is also, and above all, the massive dismantling of the rule of law and the arrival of state-organized arbitrariness since the coup attempt. Within a year, more than 150,000 civil servants, the judiciary, the police and the military were released or suspended. About 50,000 people were arrested, including many journalists. This cleansing action was justified with the alleged involvement of the accused in the failed coup attempt and their suspected contacts with the forbidden Gülen movement.

Erdoğan is driven by the desire for unbridled and constant power. There is still a limited degree of political participation, and also an opposition. But the latter is suppressed by their leaders being arrested or elections manipulated, as in the referendum on constitutional change. In the context of the current still exceptional state of affairs, where government-critical journalists are put under suspicion of terror and arrested, torture is brought to prison, media are brought under state control, and elements of a totalitarian regime are recognizable even at least temporarily.

In summary, it is noteworthy that political change in Poland, Hungary and Turkey was based on a parliamentary majority won in democratic elections. Under the influence of this majority the legislature and the judiciary are systematically weakened in favor of the executive. In this “tyranny of the majority”, Alexis de Tocqueville in his work “On Democracy in America” (1835), saw the seed of the destruction of democracy.

The opposition and/or critics are, as in Turkey, branded as national enemies or even as terrorists and many are arrested; freedom of the press is restricted or almost completely abolished, or, as in the case of Hungary, brought on the government line; the deputies of the majority party are waving the legislative proposals of the executive in the parliament, even if they themselves curtail themselves in their rights. In Poland, the judiciary is placed under the control of the government, the opposition being denounced as a traitor.

The dismantling of democracy in Poland, Hungary and Turkey shows finally: The fact that the worldwide triumph of democracy is unstoppable, as predicted by Francis Fukuyama, proved to be a fallacy.