Viktor Zoltán Kazai (CEU)
On 27 January 2022 I had the honor to participate in a panel discussion on “Eastern European Perspectives on the Rule of Law Crisis and Constitutional Change” organized in the framework of the BRIDGE Network’s 8th conference. I started my presentation by saying that the European Union had proved unable to slow down, let alone reverse the rule of law decline in Hungary, and the domestic constitutional organs could not be realistically expected to exercise any meaningful control over the ruling majority due to their lack of independence, autonomy and professional integrity. Therefore, I came to the conclusion that the friends of the rule of law could only hope for a radical political change generated by the 2022 national elections. And many Hungarian intellectuals believed in that scenario. There was a very lively debate about the constitutional means and potential consequences of a regime change brought about by the opposition’s potential victory.
However, the radical change did not happen. Or at least nothing indicates the contrary: the alliance of the democratic opposition parties (United for Hungary) suffered a major defeat, and Fidesz was voted into power for the fourth time in a row with a two-thirds constitutional majority again. Of course, the situation is more complicated than the results suggest. The ODIHR decided to send a full-scale observation mission to Hungary that observed in its interim report and preliminary conclusions: “parliamentary elections […] were well administered and professionally managed but marred by the absence of a level playing field.” Many shortcomings of the electoral process, such as the lack of transparency and insufficient oversight of campaign finances, the bias and lack of balance in monitored news coverage and the absence of debates between major contestants, the lack of a clear distinction between the state and the ruling party, the way many election disputes were handled by election commissions and courts etc. benefited the governing coalition and put the opposition parties in a very disadvantageous position.
It was arguably the least fair parliamentary election organized after the fall of the socialist one-party system in ‘89/90. But that does not change the fact that the turnout was 69,54%, and 53% of the electorate chose Fidesz. So, despite the very disproportionate character of the electoral system, the ruling coalition was backed by an absolute majority of the voters.
What are the opposition’s prospects in this situation? Well, nothing good. As I will discuss in the remaining part of this article, the usual means of exercising control over the ruling majority in a constitutional democracy are either useless or practically non-existent. Therefore, unless the opposition parties have more or less clear and innovative ideas about how to put new wine in old bottles, they should radically change their political strategy and seriously consider boycotting the work of the National Assembly as a symbolic denial of the political system’s legitimacy.
In any standard parliamentary system, the decision-making process is usually dominated by the government and the ruling majority. Nevertheless, certain rules are supposed to guarantee that even the opposition parties have a say in making some of the most important political decisions. In the Hungarian system this aim is expressed (although imperfectly) by the constitutional requirement that the enactment of cardinal laws (regulating the organs of the state and some fundamental rights), the amendments to the Fundamental Law, and the selection of the highest public law officials, must be approved by a two-thirds majority of the MPs.
However, ever since its entry into office in 2010 Fidesz has relied on its qualified parliamentary majority to adopt even the most significant legislative and constitutional reforms and to place its own appointees at the top of the state organs alone without any meaningful cross-aisle cooperation. Parliamentary legislation has completely lost its democratic value and has become nothing but a somewhat ceremonial enactment of the government’s will in statutory form. Even when its qualified majority eroded due to unsuccessful by-elections between 2015 and 2018, Fidesz chose to use procedural tricks to enact some of its bills instead of offering a compromise to the opposition parties. Only some members of the Constitutional Court were elected together with the Politics Can Be Different (LMP) opposition party. And whenever the opposition MPs resort to symbolic means of parliamentary communication to express their disagreement and draw some media attention to a particularly controversial measure, the Speaker imposes a huge financial penalty on them – even though we know since the Karácsony v. Hungary judgment that this practice is incompatible with the ECHR. Not even a desperate attempt to obstruct the work of the National Assembly could convince Fidesz to adopt a more opposition-friendly behavior before the parliamentary work gets too hostile. In the next parliamentary term, the ruling coalition will be able to imitate a compromise-seeking style of decision-making if needed without making any real concessions, because the Fidesz-affiliated far-right party, Our Home (Mi Hazánk) managed to overcome the 5% electoral threshold and will thus send 7 representatives to the National Assembly.
The legislative function of the National Assembly, and thus the role of the opposition, is further decreased by the fact that a state of emergency has been in force almost uninterrupted since the beginning of the pandemic in March 2020. The government has used its extraordinary legislative power to regulate many important legislative matters which are completely unrelated to the pandemic in government decrees. The current state of emergency is set to expire on 1 June 2022, but nothing prevents the ruling majority from extending the deadline of the authorization again and continuing to rule by decree.
What is more, in the previous parliamentary term Fidesz started outsourcing the National Assembly’s decision-making authority to non-parliamentary entities. An especially visible sign of this trend was the so-called “privatization” of state universities, i.e. the delegation of the rights of control to asset management foundations established by the state and filled with government appointees, such as cabinet members and Fidesz-affiliated intellectuals and businessmen. This tendency is expected to continue, leaving the parliament with only indirect means of control over the state-funded universities.
Besides the legislative process and the selection of public officials, parliamentary control over the executive is the other area where the opposition has a significant constitutional role, at least in theory. However, this role can only be fulfilled if the opposition parties can exercise their rights effectively and the revealed information actually reaches the electorate through independent media platforms. In reality, the ruling majority and all the state organs captured by Fidesz can easily prevent the effective exercise of parliamentary control by blocking the work of committees (e.g. by not showing up at hearings initiated by the opposition, as it is illustrated very well by the recent Pegasus spyware scandal), by giving meaningless replies to questions and interpellations without any negative consequences, and by providing worthless information to freedom of information requests. In addition, the media operates in an extremely distorted environment, so a large number of Hungarian people never hear about the government’s wrongdoings.
The head of state can be a potential ally of the opposition in a democracy, who may exert some pressure on the ruling majority. In Hungary, the president of the republic could in theory perform such a task by using their political veto to send back an adopted piece legislation to the National Assembly for further deliberation or challenging the law in a preliminary constitutional review process. However, in 2010 the parliament broke with the tradition of choosing well-respected intellectuals as head of state and started sending party politicians to the presidential palace: Pál Schmitt, János Áder and Katalin Novák were all prominent members of Fidesz before their entry into office. Therefore, it is not surprising that in the last 12 years the presidents have refrained from causing any real difficulty to the ruling coalition and this attitude will most probably continue in the next four years.
Challenging the constitutionality of controversial legislative measures is also a standard element of the opposition’s toolbox in a parliamentary democracy. The Hungarian opposition parties have used this legal avenue relatively often: in the last 10 years they have submitted 42 petitions to contest laws which raised very serious constitutional concerns. However, a study published in 2020 found that the Constitutional Court decided these cases relatively slowly (if ever), and, what is more important, invalidated only two legislative provisions on the request of the opposition – and even these judgments were delivered back in 2014 and 2015. The result is of course not surprising if we take into consideration that the Constitutional Court is politically captured since the majority of its members were nominated and elected exclusively by Fidesz MPs.
The opposition parties might also use their legal experts to prepare court cases and use strategic litigation as a form of indirect legal control over the government and the public administration. This used to be a promising way to achieve some success, because the judiciary had largely kept its integrity despite the continuous governmental efforts to undermine its independence. However, since the 2019 judicial reform package and the election of the new chief justice handpicked by Fidesz, the Supreme Court shows clear signs of political bias. Even the ODIHR preliminary conclusions on the 2022 elections is full of Supreme Court judgements favoring the ruling coalition and going against international standards. And in those cases in which the court’s decision may violate the interests of Fidesz, the Constitutional Court stands ready to invalidate the judgment in a constitutional complaint procedure which was converted from a fundamental rights protection mechanism into a tool reinforcing the government’s interests.
Political resistance at local level could also be another way to counterbalance the central government. Indeed, in the 2019 local elections the opposition parties achieved significant success not only in Budapest, but also in other big cities. However, shortly after 2010, the Fidesz-KDNP government introduced significant changes to the system of local government. As a result, the constitutional protection, the competences and the financial autonomy of municipalities, and consequently their ability to act as a counterbalance to the power of the central government has been greatly reduced. What is more, the Covid-19 pandemic and the state of emergency provided additional opportunities for the government to further reduce the power of local governments and to adopt “punitive measures” against opposition-led municipalities.
“Hungary is going forward, not backwards.” That was the main message of the government’s “communication” (or rather electoral) campaign before the parliamentary election. But what is the way forward for the opposition under the present circumstances? It seems that the legally regulated tools to check the governing majority have been rendered useless or practically non-existent by the ruling coalition itself in the past 12 years. In this situation the opposition has basically two choices. First, it must reinvent itself and find radically new means of communication with the electorate in this Fidesz-controlled media environment in order to strengthen the popular control over the government: it has to establish direct and permanent contact with the population. Secondly, the opposition parties should also seriously consider refusing to sit in the National Assembly because their participation in this mockery only legitimizes the system without offering any realistic chance to exert meaningful pressure on the ruling coalition. I believe that these two options are mutually reinforcing.
Viktor Zoltán Kazai is a team member of the BRIDGE Network. He is a Doctoral candidate at the Legal Studies Department of CEU. He works on the constitutional role of legislative assemblies in upholding constitutionalism and the rule of law. He participated in several research projects and authored numerous reports on topics closely related to the law of the European Union. He has been teaching courses in public law and human rights for several semesters at both graduate and undergraduate levels.
The views expressed in this blog reflect the position of the author and not necessarily that of the BRIDGE Network Blog.