Systematic backsliding of the Rule of Law in Hungary – Overview of the scholarly papers
The EU is harboring a Member State which does not comply with the preconditions for a constitutional democracy anymore. Ignoring this reality has dire consequences for not only the fundamental rights of Hungarian citizens, but also all European citizens alike.
In a series of academic papers (click here), leading Hungarian legal scholars Petra Bárd, Nóra Chronowski, Zoltán Fleck, Anita Koncsik, Zsolt Körtvélyesi, Ágnes Kovács, Gábor Mészáros, and Péter Sólyom, describe the process that led to the abusive constitutional state in which Hungary currently finds itself.*
Since 2010 the government is systematically obtaining control of fundamental democratic institutions, specifically the parliament, the Constitutional court, the judiciary and other state organs that are supposed to provide a check on the executive. In the process the Hungarian government and its loyalists hijack the political and judicial dialogue in the EU to legitimize democratic backsliding. In the series of academic papers, these developments are carefully described, while exposing the tactics and strategies used by the Hungarian government to legitimize their actions. To introduce each of the topics, a brief overview of the themes discussed in the papers is provided below. Interested to know more about what constitutes the Rule of law? click here
Legitimizing rhetoric, abusive dialogue and fake compliance
First of all, the papers expose how the governing supermajority is abusing formal legal means to consolidate its political power. This method of abusive constitutionalism systematically weakens, annihilates and captures internal checks on power.
The Hungarian Government is using different tactics to justify their actions, trying to put up façades of obeying European law, while substantively disobeying it. Scholars and decision makers are falling prey to these practices, keeping critics at bay through cosmetic gestures and legal changes. On top of this, the Government is creating a constant sense of crisis to shift the attention away from their malpractices.
The invention of a new constitutional identity also plays an important role in the ruling party’s narrative. Through a practice of “autocratic culturalism’’ the universality of common European values are denied in the ruling party’s and framed as “imperialism”. This rhetorical strategy includes the use of polarization tactics by the government, leading to the “enemification” of the EU, liberal democracy, and the rule of law.
The government is defending its anti-democratic actions to the European audience through misusing comparative law arguments to distort the original debate. By hijacking political and legal dialogue on the European level the government tries to delay and hamper effective EU actions. The main lesson here is that dialogue – whether constitutional, political or judicial – is only abused by the Hungarian government to gain more time to complete national constitutional capture.
Find out more in the papers from:
- Bárd, N. Chronowski, Z. Fleck (2022) The Crisis of the Rule of Law, Democracy and Fundamental Rights in Hungary
- Bárd, A. Koncsik, Z. Körtvélyesi (2022) Tactics Against Criticism of Autocratization. The Hungarian Government and the EU’s Prolonged Toleration
- Bárd, N. Chronowski, Z. Fleck (2022) Inventing Constitutional Identity in Hungary
Capture of the Parliament, Constitutional Court, the Judiciary and other State organs
Next to exposing the arguments the Hungarian Government is using, the papers also describe in detail how the government is gradually capturing those institutions that play a central role in maintaining the functioning of a democracy: the judiciary and the parliament. The government argues that due to the super majority it holds in parliament, it has the democratic support among Hungarians and democratic legitimacy. In reality serious parliamentary democratic shortcomings exist. The reformed electoral system created by the Fidesz government in 2012 disproportionally benefits the party that wins the elections and democratic practice of parliament is hollowed out.
The Constitutional court is a Constitutional court in name only. Between 2010-2013 the Constitutional court failed to be an adequate check on the ruling party as it was caught in a process of constitutional weakening and take-over by the ruling party. In addition, the entire judiciary is a target. The mandate of the President of the Supreme Court was terminated prematurely and the leadership of the Supreme Court was ultimately packed with tried loyalists. A new centralized model of court administration was introduced that allowed the selection of court leaders loyal to the Government.
Find out more in the papers from:
- Chronowski, Á. Kovács, Z. Körtvélyesi, G. Mészáros (2022) The Constitutional Court
- 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
- Fleck, Á. Kovács, Z. Körtvélyesi, G. Mészáros, G. Polyák, P. Sólyom (2022) The Changes Undermining the Functioning of a Constitutional Democracy
Declining democratic space; Control of the Media, Academia and Civil Society at large
Lastly, the papers describe how democratic space, room for criticism and political dialogue in Hungary are severely diminished. The Fidesz government consolidates its political power and maintains control of public space by (indirect) control mechanisms in the media, academia and civil society at large. Every third journalist admits to having withheld or distorted information in order to avoid negative consequences. This is captured in the chilling effect in which journalists and media companies are discouraged of publishing meaningful criticism that could potentially harm the regime.
Similarly, the Hungarian academia is subject to intrusions. Clear examples are the lack of financing of certain disciplines such as gender studies, privatizing universities in hands of loyalists, restructuring funding, and censorship. Also in academia next to these direct cases of intimidation, the chilling effect leads to self-censorship as academics are demoralized and discouraged to publish or voice regime critical content.
Civil society at large is being suffocated, be it restrictive laws on NGOs or the creation of GONGO’s (government friendly NGO’s) that amplify the government’s narrative. Free flow of information and genuine dialogue is hampered.
Find our more in the papers from:
- 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
- Fleck, Á. Kovács, Z. Körtvélyesi, G. Mészáros, G. Polyák, P. Sólyom (2022) The Changes Undermining the Functioning of a Constitutional Democracy
EU-action
Finally, the papers stress that these issues described are not just a threat for democracy in Hungary, but puts the democratic quality and legitimacy of the entire European project at risk. Therefore, the Union has to counter the attacks on the rule of law in Hungary, not only to ensure the survival of the Hungarian democracy, but also, for the sheer defense of the EU as a whole with its core values of universal human rights and liberal democracy. To that end, an EU approach that seeks to effectively enforce the rule of law needs to take the following into account:
- Call rule of law problems by their names.
- Regular scrutiny, applied equally to all Member States. As many sources as possible should feed into an EU conducted assessment which has to be EU law specific. The burden of proof should be shifted. Where contradictory information is revealed, the Member State should provide an explanation of the discrepancies which is cautiously
- Offer a contextual picture of rule of law compliance and violations in the Member States, not mere assessments of individual elements which might (unjustifiably) pass rule of law scrutiny.
- Speedy enforcement is essential. Sanctions and other legal consequences matter, suspend EU legal instruments which are (merely) based on the assumption that all Member States follow the rule of law and protect fundamental rights by an independent judiciary in their country.
Find out more in papers from:
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.
