Gábor Attila Tóth
Alexander von Humboldt Research Fellow, Humboldt University, Berlin
The annus mirabilis, the year 1989, proved that the spirit of liberty still lives in the hearts of East-Central European men and women. The autumn of that year was the historical turning point for the transformation from Soviet-type authoritarian regimes to democracy. The single- or dominant-party systems collapsed through a series of negotiations and compromises between the old regime and the democratic opposition. In Hungary, the substantively new Constitution was promulgated on 23 October 1989, on the thirty-third anniversary of the 1956 revolution, two weeks before the fall of the Berlin Wall. The 1989-born democracy can be characterized by the main institutions of constitutionalism: free and fair elections, representative government, a parliamentary system, an independent judiciary, ombudspersons to guard fundamental rights, and a Constitutional Court to review the laws for their constitutionality.
Although Hungary set up what looks like a path to a mature democracy, the country faced from the beginning serious legal and extra-legal difficulties. There were social and political tensions at work under the surface of the new legal system. Most importantly, the political left and right were involved in a cold civil war with each other, and could not cooperate in partnership under and for a shared constitution. They not only saw each other as competitors in the contest for an election victory but also as enemies who were detrimental to national existence and progress. A poor tradition of democratic political conventions, weakness of civil society, imperfections of public education, and other sociological factors all made the constitutional balance fragile. In other words, political reality threatened seriously the fulfillment of constitutional ideas.
In the 2010 parliamentary election, the then-opposition party Fidesz won a landslide majority of 68 per cent of the seats with 53 per cent of the votes. It was a majority sufficiently large to adopt a brand-new constitution called Fundamental Law. In line with the new constitutional framework the government enacted legislation affecting the independent judiciary; limiting the powers of the constitutional court; establishing a powerful media authority; transforming the Electoral Commission; narrowing public forum for free speech; removing legal rights of underprivileged churches etc. The government which imposed these radical changes remained popular and had been reelected with a similar majority in 2014. What’s more, recent opinion polls suggest that if an election were called today the government would be elected again.
On the face of it, what the people want, the people have. In other words, the new Hungarian legal system arguably represents an ‘illiberal’ or ‘winner-takes-all’ concept of democracy and rule of law. Many observers of the Hungarian transformation apply the term ‘illiberal democracy’ to Hungary because political power is based upon repetitive elections, but the power-holders systematically violate the freedoms of the people they represent. More than this, Hungarian Prime Minister Viktor Orbán has proudly announced his government’s break with liberal type of democracy. This is of course far from unprecedented. In reaction to unsettling constitutional developments allied with the decline of global freedom, a new school of thought has emerged to account for the fact that many such emerging regimes ostensibly behave as if they were democracies, but are majoritarian rather than consensual; populist instead of elitist; nationalist as opposed to cosmopolitan; or religious rather than secular. I think, however, that what we are experiencing is not democratic at all. The unrestrained decision-making in the name of the majority has set the country on a road to the ruin of democracy and this road leads to authoritarianism.
The most important new feature of authoritarianism is that, under a façade of constitutionalism, it claims to abide by democratic principles. The Hungarian government, feigns to be normal constitutional democracy, legitimizes itself through popular elections and referenda. Incumbents are elected leaders who adopt constitutions and laws that apparently correspond to legal systems in democratic countries. The constitutional rules and institutions are often not essentially different from those to be found in constitutional democracies. However, the Fundamental Law belongs to paper constitutions often characterized as ‘semantic camouflage’ or ‘façade constitutions’, designed to create systematic advantages for the incumbents.
Today many authoritarian systems constitutionally retain multiparty elections and provide scope for activities of opposition movements. Political rights include active and passive electoral rights by direct, secret ballot, based on universal and equal voting rights. What makes them distinctive is that the election is managed so as to deny opposition candidates a fair chance. Legal norms and practices ensure the dominance of the ruling party. The voting practice in the Hungarian constitutional system is hegemonic by nature, meaning that this system is deficient in many constituting elements of free, fair, and competitive elections required by both international human rights law and principles of constitutionalism. By virtue of this, the head of government may keep the process and outcome of the vote under strict control. An ODIHR (Organization for Security and Cooperation in Europe’s Office of Democratic Institutions and Human Rights) mission concluded that the 2014 parliamentary election was not fair and that the basic framework within which the election was run violated key OSCE guidelines. The governing party enjoyed an undue advantage because of partisan changes in election law, e.g., unequal suffrage, gerrymandering of electoral districts, a rise to the electoral threshold, restrictive campaign regulations, far-from-independent assessment of the election and biased media coverage that blurred the separation between political party and the State. In sum, the practice of voting is controlled by those in power, and rival political movements are severely constrained. As a result, citizens are not offered a free and fair choice among various competitors in elections.
Existing institutional checks within the constitutional system are also illusory. The Constitutional Court plays a legitimizing role instead of fulfilling its task as final guardians of fundamental rights. The constitutional ‘reform’ resulted in politically expedient modifications to anything from the personal composition (‘court packing’), competences, and institutional and financial independence of the constitutional court. (In a similar fashion, see the most recent transformation of the Polish Constitutional Tribunal.) Decisions of the constitutional justices, appointed according to the will of the authoritarian leader, contribute to the reinforcement of the system.
As a contemporary authoritarian constitution, the Fundamental Law formally declares liberty and equality rights for their citizens, but these are hardly legally enforceable. It constructs a constitutional catalogue of fundamental rights, ostensibly based upon the international standards arising from the European Convention of Human Rights and the EU Charter of Fundamental Rights and Freedoms. Yet the constitution in fact contains a number of sections in direct contradiction with international human rights law, typically, recognizing certain fundamental rights, but only to the extent that these rights serve the interests of the ruling political group. Good examples might well be that in line with the Fundamental Law, rules on public education, social and health-care and taxation may give preference to the ‘historical churches’ over other churches, and the churches may be given an advantage over other institutions (NGOs, foundations, associations); the Fundamental Law has been criticized since it does not treat same-sex couples as equals; family is defined by a provision under which only a man and a woman are allowed to marry; the right to asylum is granted only “if neither their country of origin nor another country provides protection” for the asylum-seeker. Moreover, the Venice Commission noted that several parts of the Fundamental Law on the citizens’ responsibilities and obligations seems to indicate a shift of emphasis from the obligations of the state toward the individual citizens to the obligations of the citizens toward the community.
The government tends to restrict freedom of speech by capturing media. The relative popularity of the ruling party derives from the global trend toward populist leaders who exploit popular anti-system and anti-establishment sentiments; but it is also the case that a significant section of the mass media is de facto captured, including de jure takeover of public media. In this way, the general public is subject to systematic manipulation by the government. The examples include a series of government-run poster campaigns and ‘national consultations’ designed to stir up public feeling against refugees.
Although criminal prosecution is still a tool for government, political opponents opt for a less blunt approach, opting to sue journalists and civil rights activists for defamation to silence dissent, rather than resorting to imprisonment, or blatant prohibitions or suppressions of journals, books, films, or websites. Since restrictions on free speech protect the members of the majority (citing, for example, the dignity of the nation, the country, or dominant ethnic or religious groups), instead of members of vulnerable social groups, such regulations constitute one aspect of an authoritarian approach.
Contemporary authoritarian governments do not necessarily prohibit civil society organizations, preferring instead to impose administrative burdens and found pro-government quasi-NGOs to oppose them. In Hungary, leaders of the opposition parties and social movements are frequently characterized as betraying their nation, or agents of external powers. Similarly, indirect racial or ethnic exclusions as well as repression of civil society are among the characteristics of the system. Although civil society organizations are not prohibited, following the legislation in Russia, Belarus, and Israel, the Parliament adopted a ‘foreign agent’ law; its primary aim being to curb cooperation between international and domestic NGOs. The government’s attempt to eradicate the highly respected and independent Central European University can be also seen as a feature of a rising authoritarian regime. Moreover, government-organized non-governmental organizations (GONGOs) have been set up and financed by the governing party in order to imitate civil society, promote authoritarian interests, and hamper the work of legitimate NGOs (See similar cases in Egypt, Russia, Syria, Turkey).
An important stepping stone to authoritarianism seems to be the ill-defined powers, including emergency powers, of the executive, the ‘guardian of the Constitution’. By invoking threats posed by terrorism, financial crisis or other imminent dangers, the head of the executive could successfully introduce arbitrary emergency measures. What is culminated in Hungary is primarily not a fear that alerts us to our vulnerability, but rather a rioting phobia. The real fear of the unknown, worry about change – cultural effects, crime rates, costs and so on – are manipulated by political leaders who exploit human fragility. In Hungary, the administration of nationalist ideology, the extended state of exception, and the government-run xenophobic billboard campaign are the symbolic and factual means of the manipulation.
Some would understand the Hungarian state of affairs as Rousseauian. In my view, neither volonté general, nor volonté de tous is helpful to justify the system under the Fundamental Law. To be sure, while the constitutional system in Hungary appears to be majority backed by the electorate through both popular votes and referendums, this electoral success is based on one-sided modifications to the constitution and electoral laws, mass manipulation, unfair elections, and fear of referendum initiated by groups of individuals.
I think that the political system in Hungary is closer to Carl Schmitt’s ideas on the distinction between friend and enemy; enforcement internal political homogeneity; the role of the executive, a ‘sovereign ruler’, who creates a new constitution in the name of the people, and is recognized as the ‘guardian of the Constitution’ as opposed to the constitutional court. These are justificatory ideas for an authoritarian legal system, which enforce obedience to the central authority at the expense of personal freedoms, rule of law, and other constitutional principles.