Systematic backsliding of the Rule of Law in Hungary explored through academic research

Follow our page for more in-depth analysis of the papers, as well as information on and from the official launch at Press Club Brussels on 19 April 2022

Viktor Orbán, the longest-serving current leader of an EU Member State, has presided over a sharp decline in democratic freedoms over the course of his tenure. Through a series of constitutional and legislative reforms pushed through parliament by his party’s enduring supermajority, Hungary has experienced a level of democratic backsliding so far unseen in the European Union. The country has taken considerable steps backwards from the political and fundamental freedoms they had guaranteed, as part of the Copenhagen criteria required to join the European Union. Following the most recent election victory by Viktor Orban’s ruling Fidesz party – it is safe to say that the clash between the European Union and Hungary is here to stay.

Ten years after the Fifth Enlargement of the EU, that took place in 2004 and which Hungary was part of, the European Commission launched the Rule of Law Framework, in an attempt to stop the slide into illiberal democracy seen in Poland and Hungary. Attempts to invoke Article 7 of the Treaty on the European Union, which would allow the EU to suspend certain membership rights of Member States in breach of their obligations, failed without unanimity on the Council. The recent ruling from the European Court of Justice greenlit the use of a compliance mechanism in the form of the EU budget conditionality: certain earmarked funds can be withheld from Member States who do not comply with Rule of Law values. But will this be enough to reverse the trend of backsliding, and what (more) can the EU do?

To explore these and other questions pertinent to the state of the Hungarian democracy, as well as the democratic quality and legitimacy of the entire European project, the NHC launched a project in July 2020 with the aim of creating a network of academics with expertise in constitutional and EU law to produce scholarly contributions which, coupled with increased public awareness of these issues, would shed light on the tactics applied by their governments.

These academics – Petra Bárd, Nóra Chronowski, Zoltán Fleck, Anita Koncsik, Ágnes Kovács, Zsolt Körtvélyesi, Gábor Mészáros, and Péter Sólyom – are now launching a series of seven academic papers, presenting an in-depth mapping of the methods and tactics used in the systemic backsliding of the rule of law in Hungary, and the effects on the European project as a whole [1].

Background to backsliding on Rule of Law in Hungary

Checks and balances

It is worth nothing that all of Orbán’s reforms, by the letter of law as already established or later introduced, are technically legal. This was only possible through the abuse of the party’s majority position in parliament and the exploitation of an implied ‘good faith’ principle that elected officials act only as prescribed, instead of using their position to entirely reshape the administration.

The principle of checks and balances hinges upon the ability of the state to self-regulate. Where the state has separated its governing power into three branches – the legislative parliament, the executive leader, and the judicial courts – checks and balances operate by granting each branch the power to limit or check the other branches from becoming too powerful.

The principle

Taking, for example, the ability to create legislation, the checks and balances work as follows:

• The legislative parliament has the power to propose and pass bills into law through the approval of a simple majority of parliament members. The executive leader has the power to veto bills – but parliament can override this veto with a supermajority vote (typically two-thirds), which is difficult to achieve without bipartisan support.
• The executive leader can make executive agreements that do not require parliamentary approval – but the judiciary has the power to assess the legality of these executive agreements, and overturn them.
• The judiciary has the power to decide how laws should be interpreted and how they should be implemented – but the parliament defines what the judiciary is allowed pass judgments on, and gives consent on who sits on the judiciary.

In theory, democratically-elected politicians (members of parliament) will work in good faith to achieve some level of consensus across political party lines. There is an expectation that, even in the event of a party holding an absolute majority (50%+1) or cooperation agreements between parties in parliament, all viewpoints will be debated and considered – particularly as party members may not necessarily agree with their party’s present proposition, and vote in opposition.

The pitfall

It is entirely possible in most democratic systems for a political party to achieve a supermajority (as above, two-thirds) in parliament. This is extremely uncommon, considering the logistics of representation in each voting region and the range of political preferences in a population. However, a political supermajority in parliament has the potential to bypass the traditional boundaries set by the system of checks and balances by leveraging their voting numbers to pass their own bills and appoint members of the judiciary without opposition.

This is what we have seen in Hungary, as Orbán’s party Fidesz (in alliance with KDNP, generally considered a satellite party of Fidesz) won a landslide victory in 2010 following large-scale dissatisfaction and protests against the incumbent MSZP government. Orbán has also made use of this supermajority to change certain elements of the constitution and other regulations to further reinforce his wide reach of power, which are explored in greater detail in these papers.

Follow our page for more in-depth analysis of the papers, as well as information on and from the official launch at Press Club Brussels on 19 April 2022 .

[1] Please note that the NHC has supported the academics to make this research possible and has provided a platform to launch their findings, while in no way intervening in the selection of topics, substance, nor conclusions drawn from the studies.

List of papers:

Paper I: P. Bárd, N. Chronowski, Z. Fleck (2022) The Crisis of the Rule of Law, Democracy and Fundamental Rights in Hungary

Paper II: P. Bárd, A. Koncsik, Z. Körtvélyesi (2022) Tactics Against Criticism of Autocratization. The Hungarian Government and the EU’s Prolonged Toleration

Paper III: P. Bárd, N. Chronowski, Z. Fleck (2022) Inventing Constitutional Identity in Hungary

Paper IV: N. Chronowski, Á. Kovács, Z. Körtvélyesi, G. Mészáros (2022) The Constitutional Court

Paper V: P. Bárd, N. Chronowski, Z. Fleck, Á. Kovács, Z. Körtvélyesi, G. Mészáros (2022) Is the EU toothless? An assessment of the Rule of Law enforcement toolkit

Paper VI: Pending

Paper VII: Z. Fleck, Á. Kovács, Z. Körtvélyesi, G. Mészáros, G. Polyák, P. Sólyom (2022) The Changes Undermining the Functioning of a Constitutional Democracy