Zoltán Fleck (Eötvös Loránd University)
The author is a speaker at the upcoming 8th BRIDGE Network Conference on The Rule of Law Crisis and the Future of EU Governance, on January 27-28. It is hosted by Central European University’s Democracy Institute and will be live online via Zoom. Please register here.
The dismantling of the Orbán regime is only possible if the democratic opposition, after winning the the elections in April, despite the rules in favor of Fidesz, uses its legislative and governance opportunities and responsibilities in a conscious and principled way.
A strong and clear program of restoring the rule of law is needed and should be published before the election. Electoral victory requires a (short) program that is concrete and clearly worded, and that is communicated publicly and continuously. It is also necessary and possible to speak clearly and decisively about complex issues of public law and power. Only clear and open speech is effective against a regime based on lies.
The integrity of this program would be ensured by the fact that it aims at restoring the democratic rule of law and is guided by constitutional principles. To achieve this goal, the significance of legislative objects requiring a qualified (two-thirds) majority and the fact that they currently protect the status of the institutions occupied by Fidesz, rather than fundamental rights, must be faced up to. The political intent and the functioning of the formally constitutional institutions violate the substantive requirements of the rule of law and are not consistent with the democratic exercise of power.
Nobody can govern Hungary except Orbán and his party. This end result was the original intent of the 2011 Fundamental Law and its amendments.
While the legislative acts that can be implemented by a simple majority may seem many in quantity, since 2010 the ruling party has systematically reshaped the most important aspects of the public law without which the restoration of the rule of law and democracy is not possible. By administrative regulation of the institutions and ensuring the loyalty of public servants, the retention of effective political power has become independent of the outcome of elections. Both the weight and the nature of the two-thirds legislative subject matter are relevant.
The new parliament will seek to secure the status of fundamental rights and to restore the institutions for the enforcement of constitutional principles and the limits of governmental power.
The political intentions of Fidesz after a losing election will be realized by institutions protected by a two-thirds majority (autocratic enclosures). These politically occupied institutions have nothing to do with the rule of law principles and rights. Appointing officials of independent bodies on the basis of political loyalty is in itself a violation of the rule of law and makes the separation of powers impossible. It has now become clear that the institutions in place are not fulfilling their constitutional functions. This can be demonstrated for each institution. And the future democratic legislature should do this.
Recognizing the real essence of the Orbán regime (how it works) is the basis for any change. This analysis starts from two basic theses. First, Hungary is currently not a rule of law state. The limits of executive power are not functioning, the separation of powers has been eliminated by various means, the personal will of the prime minister is not hampered in any way, and the law plays a subordinate role. Constitutional institutions are formally in place, but they are mere implementers of autocratic will, a means of window-dressing. Fidesz’s government has systematically shaped the public law system in such a way that even in the case of a possible lost election, it will not lose effective power. This systemic destruction of the rule of law was carried out within a legal framework, by means of abusing the law, with complete disregard for the principles of the rule of law. If the democratic opposition, despite the serious inequality of the electoral system, wins the April elections, it does not have sufficient room for manoeuvre to fully restore democratic institutions, parliamentarianism and the rule of law. Therefore, the reconstruction of the rule of law necessarily downsizes this unconstitutional legal framework based on a lie.
On the other hand, this way of exercising power is characterized by the private acquisition of public powers (communications, energy-nuclear industry, concession sectors). As a result, the loss of parliamentary elections would significantly affect Fidesz’s power, but would not deprive it of the power it actually possesses in a number of respects. Electoral victory would be a chance, but far from a final outcome. Moreover, if the opposition is careless, the masters of privatized public institutions and public assets will be able to invoke the fundamental values of the market economy, above all the sanctity of private property, legal certainty, the importance of competition and autonomy.
Therefore, after winning the elections, the new parliamentary majority will not only have to successfully take the necessary steps in public law, but will also have to consider how to achieve the abolition or neutralisation of the power centres linked to the former autocratic power in a state governed by the rule of law. As long as the majority of shares in strategic sectors are held by stooges loyal to Fidesz, no meaningful change can be expected.
The question of who is the president of the republic is crucial, but equally important is the question of who holds the economic-political positions that determine GDP trends. These are key players and often their real names are not even known. The crucial question is therefore whether this ‘shadow power’, or more precisely, actual power, which is outside the control of public law, can be eroded by a simple majority and without formal legislative intervention (political deals and actions). What can, should and must be done is to ensure that the authoritarian enclaves do not cry wolf and declare states of emergency instead of transferring power. It is therefore necessary to be aware of the complex agenda of public law tasks and the need for political decisions outside public law and their interrelationship. Winning elections is a necessary but not a sufficient condition for the creation of a democratic Hungary under the rule of law. Moreover, the transformation of public law alone will not lead to the stabilisation of democracy. Excessive enthusiasm for the design of public law can be mitigated by a deeper knowledge of how power actually works.
The two-thirds regulatory subjects (including constitutional provisions) could create obstacles to a simple majority government if the future opposition and its allies sitting in constitutional positions will be uncooperative for various political reasons. The aim is to restore democracy and the rule of law and to ensure the functioning of democratic institutions (parliamentarism, judicial independence). An overview of the two-thirds legislative constraints on the restoration of the rule of law, including in particular the re-institutionalisation of the limits on power and the removal of fundamental rights violations, the implementation of the government’s program and, more generally, the exercise of popular sovereignty and democratic political accountability, highlights the illusion that there are ‘sufficient room for manoeuvre’ provided by simple majority amendments and the rule of law enforcement of existing legislation.
It should also be borne in mind that the qualified majority requirement originally intended as a guarantee, normally requires a qualified majority to amend the fundamental rights and the basic institutions of constitutionality. The original guarantee of a two-thirds legislature was turned on its head by Fidesz in 2011. In order to maintain its power, the two-thirds rule does not apply to the rights listed in the catalogue of fundamental rights, but as a rule only institutions are protected by qualified majority (e.g. the law on freedom of religion is not two-thirds, but church regulation is, the law on freedom of information is not two-thirds, but the NAIH is, etc.).
Democratic opposition planning to restore democratic institutions and the rule of law must take some fundamental decisions in this regard, after weighing up the alternatives. Such basic questions include:
- What are the public law framework and limits that will determine the room for manoeuvre of the future government majority? What are these limits in terms of the procedural order required for decision-making?
- Where are the procedural obstacles to the fulfilment of the substantive requirements of constitutionality, which are the sine qua non of the rule of law? Where does ‘two-thirds’ pose a real operational problem in the transition?
- What options are there for resolving the public law conflicts identified in the previous points, or are there any at all? On this basis, what options and institutional solutions should be developed before the elections?
- Which legislative changes should be made before and after the adoption of a new democratic Constitution? This decision will require consultation with various policy working groups. A key consideration for a program of this scale and complexity is the timeframe: which elements need to be implemented and in what order?
Hungary’s membership of the European Union provides an opportunity to restore the rule of law, because its Treaty obligations provide a legal basis for doing so. The violation of the rule of law has been continuously denounced by the EU institutions with varying degrees of determination, and significant decisions have been taken regarding Hungarian violations. The Orbán government was reluctant to comply with these, and did little that would have been contrary to its own interests in power. The new democratic parliament and government’s commitment to fulfilling its European legal obligations is important not just for the sake of political alliances and goodwill, but primarily because of the opportunities offered by legal procedures. If Hungary’s government does nothing other than implement its obligations as a member of the EU, it has already taken significant steps towards restoring the rule of law. However, even this cannot be done without organisational changes requiring qualified majority voting. But European law is still above the national legal system.
Hungary’s new democratic government intends to restore the rule of law in the light of its obligations as a member of the European Union. During the Orbán regime, Hungary was in clear conflict with EU law on a number of points reflecting fundamental European values. The restoration of the rule of law requires intensive use of the documents and decisions of the European institutions (European Parliament, European Commission, Venice Commission, CJEU) relating to Hungary, their legal arguments and objections. Hungary wants to respect its treaty obligations and remedy the violations already established. European law takes precedence over Hungarian law even under the current Constitutional Court. The rulings of the European Court of Justice and the European Court of Human Rights can provide interpretative guidance for the proper interpretation of the legal obligations of Member States. There is no doubt that such legal harmonization would work to reactivate the substantive rule of law principles and criteria and provide a strong justification for the rule of law intentions. Two-thirds rules that conflict with European law cannot be applied. Judicial independence is a key element of the European rule of law criteria. The Orbán regime has systematically undermined the independence of the judiciary: the decisions that have been taken to establish this are illegitimate. The independence of the judiciary must be restored. A similar process can be followed for some other elements of the rule of law institutions. All of these would mean a restoration of the limits on the exercise of power, so the new parliament cannot be accused of removing constitutional checks and balances. The correct interpretation is that there are currently no such brakes: there are merely political brakes that do not perform their constitutional functions.
Considerable European legal support for the restoration of the rule of law is possible.
Without going into a detailed analysis, it is obvious that European law is infringed, inter alia, in cases of irregular use of European funds (corruption), restrictions on the freedom of the press (dependence of the Media Council, selective nature of public advertising), legislative procedures that are contrary to the principle of separation of powers, the function of trusts to serve private interests, and inadequate investigative activity. The new democratic government must do its best to demonstrate its commitment to European rule of law values and procedures.
Zoltán Fleck is a Professor of Law and Sociology at the Eötvös Loránd University (ELTE) of Budapest.
The author is a speaker at the upcoming 8th BRIDGE Network Conference on The Rule of Law Crisis and the Future of EU Governance, on January 27-28. It is hosted by Central European University’s Democracy Institute and will be live online via Zoom. Please register here.
The views expressed in this blog reflect the position of the author and not necessarily that of the BRIDGE Network Blog.
Photo Credit: European Union, 2021
