by Petra Bárd and Laurent Pech

This blog provides an overview of the primary arguments of RECONNECT Working Paper 4: How to build and consolidate a partly free pseudo democracy by constitutional means in three steps: The ‘Hungarian model’.

At the first formal hearing organised for Hungary under Article 7(1) TEU, the Hungarian government accepted that “the Union’s values were founded on common constitutional traditions”. It did so by adding the following qualification: not all Member States are however expected “to follow exactly the same trajectory”. This post will summarise the main constitutional arguments raised by the Hungarian government in its information note before explaining why it should instead be considered a misinformation note. The post will end with a brief outline of the three main legal steps one may distinguish in light of the situation in Hungary when it comes to establishing and consolidating a partly free, pseudo democracy (for further analysis, see our RECONNECT working paper here).

Hungarian government’s position: All is for the best in the best of all possible constitutional worlds

When it comes to describing Hungary’s “trajectory”, the “information note” submitted to the Council as part of the ongoing Article 7 procedure paints an idyllic picture stressing that “the functioning of the Hungarian constitutional system does not raise issues which would be in conflict with the fundamental values of the European Union”. All would be for the best in the best of all possible worlds since Hungary now furthermore operates under a Fundamental Law which takes “into consideration all necessary EU and international principles”.

A number of specific claims are also made to counter the criticism of the European Parliament as regards in particular the constitution-making process in Hungary, which the Hungarian government characterised as consensual, inclusive, and reflective of a “public consultation” which is aiming to “establish a constitutional order in line with the common European democratic values and standards”.

The sustained criticism regarding “the endangerment of the separation of powers and the weakening of the national system of checks and balances” is in the eyes of the drafters of the “information note” entirely unfounded and would merely reflect political bias. All constitutional and legal changes, in addition to institutional “reforms” we have witnessed since 2010, in particular as regards the Constitutional Court of Hungary, are all perfectly fine. The competences of the latter, “as far as the system of checks and balances is concerned” would allegedly not even have “changed with the reform”.

At the end of the day, to follow the Hungarian government’s line of defence, the EU should back off because “the constitutional tradition of each Member State should be respected.”

The Hungarian government’s (mis)information note

The Hungarian government’s “information note” would be more accurately characterised as a “misinformation note”: it essentially attempts to rewrite (constitutional) history by omitting inconvenient facts or offering misleading accounts. (For only a brief summary of the issues with the Hungarian position, see this reaction paper published on 18 October 2019 by several NGOs working in the field).

As our RECONNECT working paper seeks to demonstrate, the illusion the information note aims to construct with regard to the state of the rule of law under the rule of Viktor Orbán, could not be further from the truth. Instead we can report of a severe, sustained and deliberate process of democratic and rule of law backsliding, which has resulted in the methodical transformation of the country into a partly free, pseudo democracy where the “constitutional pillars of liberal democracy” have been all but destroyed.

In order to facilitate and consolidate Hungary’s descent into authoritarianism, a combination of constitutional and legislative measures have been used. In a rush, a new constitution has been adopted, lacking either a broad consensus by the political parties, or ex post support and confirmation by the electorate in the form of a referendum. It has been passed without the requisite political, professional, scientific assessment or public debates, amidst procedural irregularities, against the ignorance of the majority and a firm opposition of those who cared. This text enabled the new regime to hide behind a veneer of formal legality and by making external intervention more difficult to justify while simultaneously leading to the emergence of “a new, hybrid type of regime, between the ideal of a full-fledged democracy and a totalitarian regime.”

The new constitution mirrors the Prime Minister’s infamous claim “our lawyers will fix it, and then goodbye”, which became a metaphor for describing the government’s deliberate misinterpretation of the rule of law as rule by law, with rule by law increasingly morphing into rule by men in practice. State representatives placed in top positions at other vital institutions had a similarly distorted understanding of the rule of law. Pál Schmitt, the President who was voted in by Fidesz promised at his parliamentary hearing that he would not be a hindrance to the zeal of law-making by the government, quite the opposite, he wanted to be its engine – “The last thing I want to be is a balance”. Indeed, he lived up to his promises: during his term (which was prematurely terminated after two years due to a plagiarism scandal) he did not refer a single bill to the Hungarian Constitutional Court for ex ante review, but signed all of them into law, which led to his nickname “the ballpoint pen of the nation”.

But just this week László Kövér, Speaker of the Hungarian Parliament explained his ars poetica when it comes to the system of checks and balances:

I don’t know what you learned about it, but it is bullshit, forget it, it has nothing to do either with the rule of law or democracy […] the problem is that some really mean that a government, which came into being as a result of a democratic expression of the will of the people, needs to be limited.” In the same talk he also formulated his harsh stance regarding constitutional courts in general: “In many countries, there is no constitutional court at all, one could say that there are no constitutional courts in old democracies. […] The distrust of the elite is reflected [in the institution of constitutional courts]: should the silly people vote house-painters and other carpet-baggers into the majority, there should be someone who says: ‘la-la’.

Well, the Hungarian Constitutional Court is not anymore capable of saying “la-la” in a series of cases of great importance from academic freedom to the criminalisation of homelessness, but instead has become little more than a rubber stamp to government policies, another Potemkin institution legitimising any state policy and otherwise unconstitutional action. And in the situations where the ruling party faced internal or external resistance, not only was the constitution subject to tactical amendment, but also the captured and packed constitutional court came to its rescue when necessary.

Three Steps to Partly Free Pseudo Democracy

With Orbán’s autocratic constitutional revolution in mind, our RECONNECT working paper distinguishes between three main legal steps when it comes to establishing and consolidating a partly free, pseudo democracy in a country where a democratic regime based on the rule of law was previously said to be consolidated:

Rewrite the constitution to make it ‘autocracy-compatible’;

Organise a legislative blitzkrieg, allegedly in the name of implementing the new constitutional order, so as to conceal a process of capture (or dismantlement) of all national checks and balances;

Make a strategic use (when necessary) of the constitution and/or the (captured) constitutional court to further consolidate and/or defend the new autocratic constitutional order.

It is to be hoped that the lessons one may draw from Hungary’s descent into authoritarianism under Orbán may help designing more resilient systems so as to prevent further countries from experiencing a similar deliberate process of democratic decay and rule of law backsliding.

Click below to download the Working Paper.