2. ONE-PARTY STATE REPLACING THE RULE OF LAW
From law to tyranny
The foundations of the ‘National Cooperation System’
In Hungary, one of the key objectives of the transition after 1989 was the creation of a transparent democracy that served the common good. The structures and norms of the democratic states cooperating within the European Union offered the model; the introduction of a European legal system and institutions added the means. By contrast, three decades later, Hungary is at the vanguard of the demolition of democracy. 15 years after EU accession, a single interest group controls all leavers at the pinnacle of power. In the process of making itself impossible to remove, the ‘National Cooperation System’ of Fidesz has violated a series of fundamental constitutional requirements. Hungary today is no longer a constitutional democracy and no longer a state based on the rule of law.
Fidesz, with its exclusive hold on power, has systematically dismantled the institutions of the rule of law, with steps which are interconnected, like cogwheels. In the regime that Viktor Orbán terms ‘illiberal democracy’, the division of power and the checks and balances providing oversight on state institutions barely operate, or do not operate at all. This dismantling of the rule of law was the implementation of the strategy declared at the party faithful picnic of Fidesz at the village of Kötcse in 2009, namely that a “central political force” would come into being with a single large governing party, characterised by politics built around the permanent governing of this party. On the 10th anniversary of the announcement of this programme, Hungary is no longer a democratic republic, but a ‘party-state’.
The Fundamental Law, which replaced Hungary’s former Constitution in 2011, was passed in parliament solely with government votes. Neither was the preparation of the Fundamental Law legitimate. Drawn up exclusively by party insiders, it failed to satisfy the requirements of constitutional legitimacy: transparency, accountability or multi-party democratic procedure. The initiator of the legislation did not discuss it in any meaningful way either with the political parties or with representatives of Hungarian society. For this reason, the Fundamental Law is formally illegitimate, and its contents are neither in harmony with the requirements of the rule of law nor with the mentality and values of Hungarian society as a whole. The ‘National Credo’ that acts as its preamble is based on a one-sided ideology and cites fabricated ‘historical traditions’.
From 2014, the new Fundamental Law reduced the number of members of the Hungarian Parliament to little more than half of what it had been. This change served as a means for the prime minister and party leader to keep government party deputies on a short leash, as their candidacies, as well as their future careers depend on him personally. As a result, parliament, instead of overseeing executive power, has become an uncritical voting machine for the government. In addition, parliament’s new rules of procedure have further weakened its role in possessing – and its ability to keep a check on – executive power. The principle of the division of power was also severely impaired. Opposition deputies have no chance to exert any real influence on decisions, including on the selection or appointment of the leaders of institutions theoretically independent of government.
The removal of democratic controls
The President of the Republic should in principle have the opportunity to send all laws passed by parliament that present any causes for concern to the Constitutional Court for considered deliberation. Since 2010, however, the president has been picked by the prime minister (and party leader) from his Fidesz party cadres, and then obligingly approved by parliament. The current President of the Republic, in office since 2012 and now in his second term, has made use of his right to constitutional oversight on a mere two occasions. This means the head of state demonstrably fails to fulfil his function to exert constitutional discretion over the legislative branch of power.
Furthermore, all the present members of the Hungarian Constitutional Court were appointed by the current government, so it is only on the rarest of occasions that the Court dares to oppose the government’s will. The competences of the Constitutional Court have also been reduced since issues relating to the budget, taxation, duties, welfare contributions and customs have been removed from its scope; moreover, it cannot investigate the contents of measures altering the Fundamental Law. This law, referred to at the time as being “as hard as granite”, has already been amended seven times.
It is only the courts that have attempted to resist this encroaching political power, but both the post of Chief Prosecutor and the President of the National Office for the Judiciary are filled with Fidesz party cadres and with very lengthy mandates not typical of democracies. The latest attack on the independence of the judicial system is the creation of ‘public administration courts’ that undertake judicial investigations on matters sensitive to the regime – demonstrations, strikes, and the publication of data on elections or affairs of public interest – with rulings from judges directly appointed by the Minister of Justice.
In the space of a few weeks following the parliamentary elections in 2010, the new Fidesz government comprehensively replaced the leadership of the state administration, right down to the level of middle management, along with all the leading posts in state-owned enterprises. Civil servants working in the central public administration were renamed “government officers”, thereby indicating that from now on they would serve not the community, but the interests of the government. In the selection criteria for filling even medium-level positions in public administration, political loyalty now comes before professional expertise.
The occupation by political power of the institutions that exert democratic oversight has also taken place in the economic sphere: the President of the State Audit Office, the President of the Fiscal Council, the Governor of the Hungarian National Bank and his deputies, the members of the Monetary Council, the President of the Economic Competition Authority and his deputies, as well as the President of the Public Procurement Authority are, without exception, cadres of the government party.
Curbing civic liberties
From 2010, Fidesz has not only occupied the entirety of the system of state institutions; it has also used a series of laws to curtail fundamental rights and freedoms. It has limited the right to strike, decreased the authority of trade unions, and tightened the conditions for establishing churches, holding referendums, and on the right of assembly, as well as weakened the ombudsman system.
Freedom of the press and access to information are basic constitutional rights; the media represents the most important means of upholding them. The building of absolute power in Hungary began in 2010 with the occupation of the media. The Media Council and the National Media and Info-communications Authority came under one-sided political influence as their composition was changed by filling them with Fidesz loyalists. Thanks to the Media Council’s monopoly position, the media market became one-sided, and the independence of the media has all but vanished. The vast majority of media outlets (some 500 national and local press and media products) have been concentrated into a consortium that is under clear government influence. This means that the majority of the Hungarian population only have access to the information published by public (in fact government-controlled) radio, television and newspapers. It is through these channels that the population is manipulated using fake news and lies (for example, massive campaigns against ‘Brussels’, George Soros, and a distorted picture of the migration issue), a situation that is only exacerbated by the government propaganda billboards filling every corner of the country. It is impossible to provide any counterbalance to all this, as politicians from opposition parties do not have any access to the programmes or material of the ‘public service’, i.e. state-controlled media, and they are frequently blocked from using privately owned billboards.
To maintain power over the long term, it is vital for the regime that the next generation does not become thinking, self-aware citizens keen to make use of their democratic rights, but rather it should be made up of servile subjects with limited knowledge and homogeneous thinking. To serve this goal, the regime has sought to curb educational freedom. To this end, it has centralised the education system, nationalised the market for school textbooks (thereby abolishing the variety and free choice of such books), and reduced the school leaving age from 18 to 16.
The Fidesz government’s attack on the autonomous institutions of higher education and academic research is similarly a great loss to Hungary and has led to a decline in its international prestige. The government justified its system of ‘chancellors’ installed in every university with an appeal to reasons of financial efficiency, but in reality this solution has provided an opportunity to use financial techniques to limit university autonomy. The government’s treatment of the private Central European University (CEU) is particularly destructive, because there is no rational reason behind its rendering the University’s operations in Budapest impossible. This affair has already brought about a painful damage to Hungarian academic life. In a similarly shocking move, the government has removed the research institutes of the Hungarian Academy of Sciences from the Academy. The only explanation for this is to control research and the researchers. What links these various cases to each other is that they are all directed at the institutions that used to be independent of the political regime and not under the direct influence of the government.
The regime uses all means at its disposal to restrict any chance of change being achieved through democratic elections. The new election law disposed of the previous two-round election system, removing the opportunity for opposition parties to make alliances between rounds. The new law makes it possible for the governing party alliance to attain a supermajority of two-thirds of seats in parliament with the support of only a minority of voters. One means to achieve this was gerrymandering: the unilateral reorganisation of electoral constituencies so that there would be fewer districts with likely opposition majorities. The Orbán government also changed the nationality law, inviting ethnic Hungarians in neighbouring states and further afield to apply for citizenship in a process that itself attracted allegations of corruption. It also gave these new citizens the right to vote, by mail, via a procedure that provides ample opportunity for abuse as it is impossible to guarantee that the ballot is genuine. Yet Hungarian citizens with a permanent address in Hungary but who reside abroad (mostly working in the west) may only vote by appearing in person at one of the Hungarian diplomatic missions abroad, an obligation that in many cases involves considerable time and expense.
Then there is the issue of party campaign finance, which has never been resolved satisfactorily, even though its transparency is a prerequisite for fair elections. The State Audit Office exploits this situation, only finding objections to be made during the investigation of opposition parties: it retracts sizeable financial support from these parties, or imposes fines on them, typically before the campaign period, even though this is beyond the scope of its authority. What is more, there is no process of legal appeal against the Audit Office’s decisions.
By contrast, Fidesz makes use of money from the state budget to spend many times what it would legally be allowed to allocate to campaigns. It (mis)uses the ‘public service’ media – which have become mouthpieces for the government and which receive record levels of state funding – as well as so-called ‘government information campaigns’ to get its message across. Such blatantly unfair techniques are unlike anything known in the democratic world, yet neither the State Audit Office nor the National Election Office have seen fit to raise any objections. In addition to this massive financial advantage, the government parties are assisted by the conditions in the press, media and billboard markets, giving the campaign messages of the government parties an overwhelming advantage in reaching voters, most especially outside the capital. As the OSCE observers noted, since 2010 parliamentary elections in Hungary have been “free, but not fair”. By such means, the Orbán regime has placed huge, essentially insurmountable obstacles in the way of changing the government by means of democratic elections.