Halmai: Is Hungary no longer an electoral democracy?

April 28, 2015


The following article was published by Hungarian legal expert and constitutional scholar Gábor Halmai on the 4th anniversary of the adoption of Hungary’s Fundamental Law.

It’s been four years since the Hungarian parliament adopted the Fundamental Law. The Fundamental Law invalidated Hungary’s previous 1949 constitution which had been comprehensively modified in 1989-1990 to conform to the rule of law.

The manner in which the Fundamental Law was created bypassed the necessary political, professional, and societal consultations otherwise required by the earlier constitution and parliamentary rules, and it was adopted solely with the consent of the ruling party.  All this (and more) calls its legitimacy into question.

The Fundamental Law came into effect on January 1st, 2012, despite the lack of any consultation with Hungary’s opposition parties and representatives of civil society. The Hungarian parliament adopted pivotal legislation, the so-called cardinal laws for the new constitution and the Transitional Provisions to the Fundamental Law after only a few days of “debates” about the draft laws submitted mostly by individual MPs.

The Transitional Provisions Law, which according to the definition of the law comprised part of the constitution, in many cases expanded the constitution, further modifying the Fundamental Law despite the Fundamental Law explicitly stating that the Transitional Provisions may only address technical issues arising during the transition period.

The Transitional Provisions were then struck down by the Constitutional Court (which at the time wasn’t comprised entirely of Fidesz-KDNP justices). In response, the Hungarian parliament adopted the Fourth Amendment to the Fundamental Law in the Spring of 2013.

The Fourth Amendment inserted numerous unconstitutional provisions straight into the Fundamental Law, making the preposterous provisions which had been struck down by the Constitutional Court now “constitutional”.

The Fourth Amendment further curtailed the powers of the Constitutional Court and the independence of Hungary’s judiciary. It restricted rights guaranteed by the previous constitution and introduced restrictions on the practice of press freedoms.

The Fundamental Law, its modifications, and cardinal laws radically changed Hungary’s constitutional institutions, weakening guarantees on checks and balances. Ultimately, the Fundamental Law crippled the enjoyment of basic rights.

Furthermore, the Fundamental Law’s preamble, referred to as the National Avowal, does not address all persons with Hungarian citizenship under Hungary’s jurisdiction, instead, it explicitly addresses ethnic Hungarian as the nation’s subjects, to be characterized as a Christian community and also provides Hungarian citizenship for those not residing within the borders of Hungary.

The Fundamental Law breaks from what is characteristic of rule of law constitutions, which provide protections against abuses of the state power and guarantee protections for the enjoyment of basic rights. Instead, it explicitly intrudes the government’s authority into the private sector not in an unbiased manner, but in a manner that is based on a so-called Christian conservative ideology. The Fundamental Law defines preferences for the lifestyle that members of society should exhibit in the form of duties of the people towards the community.

The manner in which the Fundamental Law is arranged (as has been pointed out by both the European Union and the Council of Europe) presents serious worries concerning the condition of liberal constitutionalism in Hungary, and also calls into question whether Hungary meets the European institutions requirements pertaining to the rule of law. But, as [Prime Minister] Viktor Orbán pointed out in an interview on Kossuth Rádió in July 2013, one year before his infamous Tusnádfűrdő speech, the Fundamental Law is precisely what its critics say it is. “In Europe the trend is that everyone wants a liberal constitution, but this isn’t a liberal constitution,” Orbán boasted.

In light of the changes made to Hungary’s electoral laws leading up to last year’s national and municipal elections (which were done in the interest of again securing a two-thirds qualified majority victory), the question is no longer simply whether Hungary has liberal constitutionalism, in other words whether Hungary’s constitution conforms to what is expected of constitutional democracies. The question Hungary now faces is whether its form of government even meets the formal criteria to be called an electoral democracy.

In 2014 the electoral system was unfairly changed again to ensure that an unproportional one-round election would again secure the ruling party a supermajority in parliament. As the ruling party’s popularity continues to decline, such tactics won’t be enough to help them in the 2018 elections.

Any further modifications to the Fundamental Law would require the help of partners to secure the necessary two-thirds vote in parliament. Jobbik continued to be of assistance to Fidesz after Fidesz lost its supermajority following the Veszprém by-election earlier this year. Jobbik’s recent win in the Tapolca by-election shows that Jobbik may be much more than a partner to Fidesz after 2018. Jobbik will emerge as a serious political opponent to Fidesz.

Jobbik’s success in the Tapolca by-election could have been avoided by the two-round election system which existed prior to the 2013 changes. Could Hungary’s democratic opposition have partnered up with the lesser evil to protect against Jobbik’s victory? If so, what kind of conditions could they have bargained for concerning changes to the constitution?

I would suggest that, in addition to restoring the fair voting system, Hungary’s democratic opposition parties could demand an independent judiciary and Constitutional Court, as well as institutional guarantees concerning the independence of the country’s media regulatory agency and free registration of churches as a requirement of religious freedoms.

If Hungary’s democratic opposition, thanks to a miracle, would be somehow capable of obtaining a majority in parliament in 2018 (it would be impossible for them to obtain a supermajority), they could begin working on laying the groundwork for a wider societal and professional consultation in preparation of a new constitution. In addition to protecting fundamental rights and placing institutional guarantees on the separation of powers, the process of consulting with society would help rethink and address many of the issues concerning questions of identity faced by Hungary’s political community.

In return for its support of this new constitution the renewed post-Orbán Fidesz would be really involved in the process of creating the new document, which must be approved by referendum. Finally, it would be in the interest of Fidesz as an opposition party to have a system of checks and balances, which would protect them against the same abuse of power they currently practice.