Democratic Decline in Hungary

Law and Society in an Illiberal Democracy

András L. Pap

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351684675
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book shows the rise and morphology of a self-identified `illiberal democracy', the first 21st century illiberal political regime arising in the European Union. Since 2010, Viktor Orbán's governments in Hungary have convincingly offered an anti-modernist and anti-cosmopolitan/anti-European Unionist rhetoric, discourse and constitutional identity to challenge neo-liberal democracy. The Hungarian case provides unique observation points for students of transitology, especially those who are interested in states which are to abandon pathways of liberal democracy.

The author demonstrates how illiberalism is present both in `how' and `what' is being done: the style, format and procedure of legislation; as well as the substance: the dismantling of institutional rule of law guarantees and the weakening of checks and balances. The book also discusses the ideological commitments and constitutionally framed and cemented value preferences, and a reconstituted and re-conceptualized relationship between the state and its citizens, which is not evidently supported by Hungarians' value system and life-style choices.

Part I
Chronology and explanations

What happened in Hungary in 2010–2012

1 Democratic U-turn, the chronology of building an illiberal democracy

This chapter will show how the illiberal turn was orchestrated in Hungary. Instead of aiming to provide a structured, full picture, or a comprehensive description of what has happened in the past six years in Hungary, this chapter’s assessment is limited to the first two years of Prime Minister Orbán’s government, which began in 2010. The goal is not only to outline the process but also to show the substance of illiberalism: institutionalizing the tyranny of the majority; a clientelist decision-making regime that defies rule-of-law principles; dismantling core institutional guarantees for government control; passing laws that curtail individual liberties and do not meet international standards for human rights and constitutionalism and lack appropriate prior public debate and deliberation; and adopting an ideologically biased constitution that cements the above-described developments and initiatives.

The starting point of this chapter is the 2010 Spring elections, where a coalition of the Fidesz Party and the Christian Democratic Party, two self-identified right wing, conservative parties led by Fidesz-president Viktor Orbán, received the support of 41.5 percent of all people entitled to vote and 53.1 percent of the actual votes cast, which translated to 68 percent of the mandates in Parliament (Kornai, 2015, p. 12), giving the winners a two-thirds majority¹ that allowed them to amend the constitution and organic laws. These laws were defined and enumerated by the constitution. Orbán’s victory did not come as a surprise. In September 2006, Hungarian state radio broadcasted a secret recording of a speech given by Socialist Prime Minister Ferenc Gyurcsány at a closed-door meeting with fellow Socialist MPs following their 2006 election victory. On the tape, in quite profane language, Gyurcsány admitted that the government “fucked it up and lied for the last year-and-a-half, two years,” and that they’ve “done nothing for four years.” The speech set off a scandal, triggered riots and continuous demonstrations initiated and supported by right-wing opposition parties and led to a long and steady decline in popular support for the Socialist Party, which had received 48 percent of the vote in the 2006 parliamentary elections but sank to the mid-teens by the next (IRI, n.d.). Fidesz’s popularity was steadily increasing, yet the 2010 campaign did not mention either the adoption of a new constitution or transformative changes in the political and constitutional structure.

As we will see, developments in Hungarian political life have triggered significant political, academic and media attention in the past years. Numerous political decisions were made by various fora and organs of the Council of Europe, the European Union, the UN and international NGOs like Amnesty International, Freedom House and Transparency International, and even judgements from the EU’s European Court of Justice and the Council of Europe’s European Court of Human Rights.

Instead of collecting and systematically reviewing documents condemning, or even documenting the entire process of how illiberal democracy evolved in Hungary in the past six years, this chapter will provide an overview of only the first two formative and highly intensive years’ political and constitutional developments. This is not to suggest or imply that the process ended by 2012, as Viktor Orbán’s regime continues to solidify, proliferate and flourish week by week – and this obviously involves both political and legal measures. The new constitution adopted in 2011 was, for example, amended for the sixth time in June 2016. This book, however, is limited to outlining developments in 2010–2012, approximately two years, by when architectural sketches of the new regime are finalized, and residents have already moved and settled in. In order to put these developments into an international perspective, let me highlight some (subjectively chosen) events that took place in these months. The chosen news items are used to contextualize the Hungarian developments, by roughly sketching what was happening in the world at the time in politics, society and culture.

In 2010, the FIFA World Cup takes place in South Africa, with Spain championing. China launches its second moon probe, Chang’e 2. The earthquake in Haiti kills 230,000 people and destroys most of the capital Port-au-Prince. Ethiopian Airlines Flight 409 crashes into the Mediterranean Sea shortly after take-off from Beirut Rafic Hariri International Airport, killing all 90 people on board. An explosion in the Icelandic Eyjafjallajokull volcano results in a volcanic ash plume over northern and central Europe, halting air travel for several days, causing the cancellation of several thousand flights and disrupting the travel plans of millions of people. A stampede in the entrance tunnel of the “Love Parade” techno music festival in Duisburg, Germany, kills 21 and injures over 500. Pope Benedict XVI expresses limited support for condom use to prevent AIDS. WikiLeaks begins disclosing a cache of over 250,000 private cables written by U.S. diplomats. Its founder, Julian Assange, is arrested in England on a Swedish warrant for sexual assault. The longest solar eclipse of the third millennium occurs. Apple debuts the iPad, its first tablet computer – a device category between a smartphone and laptop computer. In Thailand, peaceful protests disintegrate into violence. British Prime Minister Gordon Brown resigns and is succeeded by the Conservative David Cameron. The Irish government requests a $100 billion bailout package from the European Union and IMF to help save its flailing economy. The eurozone and the International Monetary Fund agree to a €110 billion bailout package for Greece in exchange for sharp austerity measures. Polish President Lech Kaczyński dies in a plane crash. The U.S. Department of Health and Human Services, Centers for Disease Control and Prevention removed HIV infection from its list of communicable diseases of public health significance. Conan O’Brian screens the Tonight Show’s last episode. An explosion on a BP oil drilling rig off the coast of Louisiana kills 11 people, injures 17 and leaks 5 million barrels of oil into the Gulf Coast, making it the world’s largest oil spill. In Citizens United v. FEC, the U.S. Supreme Court rules that the government cannot restrict the spending of corporations for political campaigns. President Obama announces, and later in the year signs into law, Obamacare, the massive health-care reform bill. Supreme Court Justice John Paul Stevens announces retirement after serving on the court for 35 years. Solicitor General Elena Kagan becomes his successor, the fourth woman to ever hold this position and the third female member of the current bench. Arizona Governor Jan Brewer signs a new immigration bill into law, designed to identify and deport illegal immigrants, which several federal courts find unconstitutional. In McDonald v. Chicago, the U.S. Supreme Court rules that the right to bear arms applies to local and state gun control laws. Congress approves a financial regulation bill, increasing the number of companies that will be regulated by government oversight, a panel watching for risks in the financial system and a consumer protection agency. Goldman Sachs agrees to a $550 million settlement with the federal government after being accused of misleading investors during the subprime mortgage crisis and housing market collapse. A federal judge strikes down the voter-approved gay marriage ban in California, calling the law unconstitutional. President Obama announces the end of Operation Iraqi Freedom with a withdrawal of combat troops. A federal judge orders the government to stop the enforcement of the “Don’t Ask, Don’t Tell Law,” which forbids gays and lesbians from openly serving in the U.S. military. Senate approves respective legislation, which the President signs. Tom Delay, the former House Majority Leader from Texas, is convicted of money laundering involving corporate campaign contributions. Movies Toy Story 3 and Harry Potter and the Deathly Hallows Part 1 are released. Sixteen-year-old Justin Bieber receives four American Music Awards. After 25 seasons and more than 5,000 episodes, “The Oprah Winfrey Show” airs its last original episode.

In 2011, a reactor at the Fukushima Daiichi Nuclear Power Plant explodes. “Game of Thrones,” based on the fantasy novels by George R. R. Martin premieres on HBO. Fidel Castro resigns from the Communist Party of Cuba’s central committee after 45 years of holding the title. Apple CEO Steve Jobs resigns and in a few months, dies. CERN scientists announce their discovery of neutrinos breaking the speed of light. Spaceport America – the world’s first purpose-built commercial spaceport – is opened, offering suborbital spaceflights to the paying public. The Arab Spring movement begins in Tunisia when demonstrators take to the streets to protest chronic unemployment and police brutality. After 23 years of authoritarian rule, President Ben Ali flees the country. Similar protests break out in Egypt, President Hosni Mubarak announces resignation and hands power of the country over to the military. Kate Middleton marries Prince William in a lavish royal wedding at Westminster Abbey in London. U.S. troops and CIA operatives shoot and kill Osama bin Laden in Abbottabad, Pakistan. Fatah and Hamas, rival Palestinian parties, sign a reconciliation accord. Dominique Strauss-Kahn, head of the International Monetary Fund, is arrested for sexually assaulting a maid at a Manhattan hotel. Former Bosnian Serb general Ratko Mladic, who was responsible for the massacre of over 8,000 Muslims at Srebrenica in 1995, is found and arrested in Lazarevo, a farming town north of Belgrade, Serbia. After more than 50 years of struggle, South Sudan declares independence and becomes Africa’s 54th state. News of the World, a British newspaper owned by Rupert Murdoch, closes after several allegations of having hacked into voicemail accounts. Norway is hit with consecutive terrorist attacks: a bomb explodes in Oslo’s government quarter and Anders Breivik, a gunman disguised as a policeman, opens fire at a camp for young political activists on the island of Utoya, killing 68. Award-winning Amy Winehouse is found dead in her apartment in London. King Abdullah of Saudi Arabia grants women the right to vote and run for office in future elections. Libya’s interim government announces that Colonel Muammar el-Qaddafi has been killed by rebel troops. Silvio Berlusconi steps down as prime minister of Italy. International and local monitors condemn parliamentary elections in Russia as fraudulent. Kenya, Ethiopia, Djibouti, Somalia and parts of South Sudan have been rocked by the worst drought there in 60 years. Surgeons in Sweden carry out the world’s first synthetic organ transplant, a major breakthrough in regenerative medicine. In October 2011, the global population reaches 7 billion. China’s Three Gorges Dam, the largest power plant ever built, is fully operational. Arizona Representative Gabrielle Giffords is among 17 shot by a gunman. The Obama Administration determines that the Defense of Marriage Act is unconstitutional. New York passes a law to allow the same-sex marriage. For the first time in history, the US has its credit rating lowered from AAA to AA+ by credit agency Standard & Poor’s, removing it from its list of risk-free borrowers. Hurricane Irene kills 44 people in 13 American states. Evacuations are ordered for about 2.3 million people. Damage is estimated at $7 billion. Occupy Wall Street, an organized protest against corporate greed, social inequality and the disproportion between the rich and poor in New York’s financial district, expands to other cities across the US. The movie Twilight Saga: Breaking Dawn Part 1, the songs “Born This Way” by Lady Gaga and “Under the Mistletoe” by Justin Bieber are released. Books The Hunger Games by Suzanne Collins and The Girl with the Dragon Tattoo by Stieg Larsson are published.

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1. Meanwhile in Hungary: An illiberal democracy in the making

This chapter will provide an overview of the process of redesigning the constitutional landscape in Hungary. As it will be shown, illiberalism is present both in “how” and “what” is being done: just as much the style, format and procedure of legislation as its substance. The adoption of the new constitution is an important part of the process and can even be seen as a landmark, but in many cases, it only cemented earlier achievements and innovations of a legislative juggernaut. Let us follow the process of the illiberal U-turn!

2. The legislative juggernaut

As Kornai (2015, p. 24) points out, between 2010 and 2014, altogether 859 laws were passed: nearly twice as many (399 more) as during Orbán’s first government between 1998 and 2002 and almost 150 percent (274 laws) more than in the 2006–2010 cycle. The first set of criticism pertains to the style and quality of the legislative process. Orbán’s supermajority basically eliminated Parliament from the political process as an autonomous instrument for democratic deliberation and a tool to control government. As will be discussed in the next chapter, “illiberal democracies” rely on the democratic legitimacy of unleashed political power to institutionalize illiberal legislation. This is what happened in Hungary as well. Reforms, enacted by parliamentary legislation, have been extremely swift: in its first 20 months in office, the government pushed through 365 laws. This included 49 cardinal laws, which require a two-thirds majority, but there was no adequate consultation with opposition parties and civil society. In this time, 12 amendments were made to the (old) constitution that together changed more than 50 individual constitutional provisions (Halmai and Scheppele, 2012, p. 7). Most legislation was introduced to Parliament as individual members’ bills. Since the government is formally not involved in these bills, these do not require a detailed debate, consultation, impact assessment and traditional venues for negotiation with the civil sector.

As Scheppele points out, in the first few transformative months, very few government-sponsored laws were introduced to Parliament. Ten out of twelve (!) constitutional amendments and even the new constitution were private members’ bills which, originally inteded as being tools for the parliamentary minority, became instruments to entrench the government’s super-majority:

U...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Democratic Decline in Hungary
• Comparative Constitutional Change
• Dedication
• Table of Contents
• Acknowledgments
• Introduction
• PART I: Chronology and explanations: what happened in Hungary in 2010–2012
• PART II: The microfabric of the Hungarian illiberal democracy
• Index