There is no quick fix to rebuild Hungarian democracy, says opposition constitutional adviser

There is no quick fix to rebuild Hungarian democracy, says opposition constitutional adviser
Hungary has suffered 12 years of democratic decline, argues Fleck, and is now a one-party autocracy.
By bne IntelliNews March 28, 2022

Over the 12 years that Prime Minister Viktor Orban’s Fidesz party has monopolised power, Hungary has moved from a democracy to a ‘hybrid regime’ and now to a one-party autocracy, Zoltan Fleck, professor of law and sociology at Budapest’s Eötvös Loránd University, told bneIntellinews in an interview.

Fleck chairs the united opposition’s constitutional working group, which has been giving prime minister candidate Peter Marki-Zay advice on how to dismantle Fidesz’ autocratic system if it wins this weekend’s election.  

He says Hungary now needs more than just a change of government; it needs a complex overhaul of the system comparable to the regime change after the end of communism in 1989. This will require replacing Fidesz’ one-party constitution (the so-called Basic Law) with a new one created through public participation.

But there is no way out of the crisis of Hungarian democracy now without some small violations of formal rule of law norms, he says.

The Orban regime is one of those new autocracies that maintain institutions resembling the formal rule of law but whose actual functioning is contrary to all of its principles, Fleck writes in a new book entitled After Orban, which hit the bookshelves last week. The subtitle of the book is “The death of the rule of law and the possibilities of reviving it”, which sums up the key challenge facing Hungary after 12 years of democratic decline.

After three supermajority victories, there is no longer a public institution that limits the executive, he argues. Fleck has compiled a long list of democratic deficits: a constitutional court filled with loyalists, its authority curtailed; judicial leaders removed from the highest courts and administrative positions; an ombudsman system emptied of all significance; media pluralism seriously restricted; academic and university freedom curtailed; and NGOs stigmatised.

The country’s democratic slide has been highlighted in a number of international reports. Elections cannot be considered fair as the playing field is heavily tilted in favour of the government, with its tight grip on the media, according to the OSCE’s report on the 2018 elections. Hungary also scored the lowest ranking in the EU World Justice Project’s Rule of Law Index in 2021. In the sub-index measuring the constraints on government powers, the country scored worse than Haiti, Myanmar and Uganda, and only came ahead of Serbia, Russia and Belarus in Europe.

Abuse of power

One of the biggest problems facing the opposition if it wins the election is that many Fidesz laws and institutions require a two-thirds majority to change, a level of support it is very unlikely to achieve given the way that the government has stacked the odds in its favour.

Fleck says that the government has abused its powers by steadily and significantly expanding the number of legislative items requiring a two-thirds majority, with the so-called cardinal acts.

Originally, the requirement of a two-thirds majority for key changes was put in place after 1990 to prevent the return of communist dictatorship. Since 2010, Orban has used his supermajority to expand the use of cardinal acts, entrenching all his political changes to prevent the opposition from reversing them.  

"The freedom of expression can be curtailed by a simple majority, but the positions of politically appointed members of the Media Council are protected by a two-thirds majority", Fleck said, referring to the Fidesz-led body that has withdrawn broadcasting rights and shut down critical media.

There are now more than 270 cardinal acts, which severely limit the room for manoeuvre of the new government to pursue its own political and economic agenda if it takes power.

Fidesz has also amended the constitution nine times to suit its day-to-day political interests. The regime has used these amendments to cement its new authoritarian structure, making democratic government change impossible, according to Fleck. 

Fleck and his team have drawn up a number of proposals for the opposition parties on how to tackle the problem of restoring the rule of law, which will surely be the most daunting task of any new democratic government, besides addressing the economic slowdown, surging inflation, and putting public finances back into order.

With chances of the opposition gaining a two-thirds supermajority slim, the six-party alliance would have to govern with a simple majority and will be unable to overturn the cardinal laws. But unless it breaks the continuity of public law, there will be no democratic governance, Fleck argues.

The new parliament will therefore be forced to change some provisions of the Basic Law and a number of cardinal laws that require a two-thirds majority even though it is likely to lack that majority.

Creating popular legitimacy

He argues that there is a great political danger that they would then be accused of violating the rule of law by Fidesz, invoking the formal rules it has created. Fidesz could even appeal to Brussels to preserve its own version of the rule of law.

"Paradoxically, there is no way out of the crisis of Hungarian democracy without the slightest possible violation of formal rule of law norms" Fleck says.

Therefore it is essential that an incoming government creates strong European and domestic legitimacy by starting to draft a new democratic constitution based on people's participation.

There is consensus among the six parties of the opposition that Hungary needs to replace the one-party constitution which reflects the views of less than half of the population with a new one, and the first chapter of its election programme is devoted to this issue.

When asked about the length of the procedure, Fleck says that the new government must proceed swiftly after taking power, as it will be a long and arduous task involving the participation of the public. It would be ideal to complete the process before the cabinet’s mandate ends and then put it up for a referendum before parliament approves it.

In this transition phase, European values and constitutional principles must prevail, while making public law fit for democratic governance, he says.

The opposition hopes that Brussels will understand that to rebuild Hungarian democracy and European values it will have to breach the rule of law of Orban’s authoritarian constitution.

It is putting Europe front and centre of its campaign. Recently it has shifted to a higher gear in the campaign, with a clear message: Europe over Putin. The new narrative is that after dismantling the rule of law in Hungary, Orban has little chance of securing EU funds.

"I believe that after 12 years it has become entirely clear for European decision-makers that Orban has established his illiberal regime using EU funds and if he is re-elected it is unlikely to continue to enjoy these benefits," Fleck says.

Political logic would then dictate that if the opposition prevails, Brussels would open up the coffers to finance the turnaround.

The opposition hopes the Russian invasion of Ukraine has demonstrated to voters and to Brussels how seriously Hungary has become adrift from the European mainstream.

Orban was isolated before the war and that has become even more pronounced since the Russian aggression in Ukraine because of his opposition to strong sanctions and his refusal to send military aid to Kyiv. He is now a thorn in the EU’s side for not just over the rule-of-law issues, but because of the way he weakens European security, says Fleck.