Introduction: illiberal tendencies in law-making

Abstract

ABSTRACT The ongoing autocratisation processes in the last couple of years have led us to ask the question of how legislation is actually made in a political and legal environment in which illiberal and populist governments govern and systematically disregard the Rule of Law, democracy and relativize human rights protection. Our goal was not to investigate illiberalism as a whole, but, instead, examine the interrelationship between illiberal tendencies in government and the law-making process. Do illiberal states show evidence of a particular type of law-making process? Or do certain types of law-making process make it easier to have illiberal tendencies in government? This special issue collects the most prominent examples from Poland, Hungary, Turkey, Brazil, Italy, and Indonesia, and even if it is difficult to draw firm and over-arching conclusions from the different states surveyed in this issue, it is possible to tentatively identify some common themes. Firstly, some states reveal a strong reliance on pure majoritarian principle, the instrumental use of legislation, the increased use of accelerated legislative processes and omnibus legislation, disregard of compromised procedural and semi-procedural constitutional review of legislation. Secondly, there is the reduction of the importance of the citizen in the legislative process. Thirdly, illiberal projects are easier to implement in a parliamentary system than in a presidential system. Fourthly, the independence of the judiciary from the ruling party can be compromised where constitutional or supreme courts are “packed” by the executive with judges who can be seen to favour that ruling party.