Systematic backsliding of the Rule of Law in Hungary: Rule by Law

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 following article outlines how the systematic backsliding of the Rule of Law in Hungary, orchestrated by Orbán and the Fidesz party, has chipped away at EU values, endangering citizens’ rights, autonomies and freedoms, turning Hungary into a hybrid regime based on Rule by Law up to Rule without Law – rather than Rule of Law.

Interested to know more? Join us in Brussels on 19 April for the launch of a series of research papers on this topic[1], and an in-depth discussion. Find out more here: Event Invitation | Rule of Law Backsliding in Hungary | Press Club Brussels (nhc.nl)

Election system in Hungary: Rule by Law

One of the main ways in which the ruling party has managed to achieve this is through the changes it has introduced to the election system in Hungary. Shortly after the Fidesz party secured a majority in the 2010 parliamentary elections, party leader and prime minister Orbán passed a new Constitution implementing sweeping reforms. This constitution has been amended several times since, with each addition creating further obstacles to opposition and cementing Fidesz’s stronghold on power.

One particular mechanism introduced by Orbán’s new constitution is unique to Hungary: the fractional vote, or ‘winner compensation’. Voters cast two votes in national elections, calculated separately: one for party representatives in the voters’ individual constituency, and one for a political party on a national list. Previously, only the number of votes for candidates who did not succeed in their constituency would be added to the aggregate votes for that candidate’s party in the national list. Following the change, a proportion of the winning candidate’s votes – the margin of victory minus one vote – would also be added to their party’s aggregate, ensuring that party’s success in the national list calculation.

Parliamentary control in Hungary

The new constitution also introduced an electoral reform package designed to curtail the power of opposition parties in future elections. By reducing the number of parliamentary seats from 386 to 199 and redrawing the map of electoral districts (gerrymandering), Orbán increased the likelihood of Fidesz retaining its parliamentary seats.

Motions heard by the parliament are decided via qualified majority voting, which requires a two-thirds majority in favour. This, in itself, is not unusual. However, in the present scenario, where one party manages to acquire two-thirds of parliamentary seats, the potential for sweeping reforms and great changes to the Hungarian constitution is immense. Through this loophole, Fidesz has nominated and elected their chosen officials to several roles, including:

• the President of the Republic;
• the Commissioner for Fundamental Rights;
• the Attorney General;
• the President of the State Audit Office;
• multiple heads of the judiciary, including the Constitutional Court;
• members of the Media Council; and,
• some members of the Monetary Council

One essential principle in parliamentary law is the concept of the free mandate: should a Member of Parliament feel that the motion proposed by their party not represent the interests of their own electorate, they may vote contrary to their party – or even ‘cross the aisle’ by changing parties entirely – without losing their mandate. In 2012, this principle was undermined by a constitutional amendment that prevented the Socialist Party MPs from leaving and forming a new group that was not already represented in parliament from a prior election’s mandate. This freedom was further blocked by new rules in 2019, which prohibit an MP from joining another party during their mandate. Through this measure, Fidesz prevents opposition members from forming strategic alliances, and ‘breakaway’ members are left without any representational power, or can be forced to vote contrary to their own – and their electorate’s own – interests.

The judiciary in Hungary

Constitutional Court

The creation of the Constitutional Court in 1990 was a landmark symbol of a post-Communist Hungary and became one of the most important safeguards of the rule of law, and constitutional rights. Twenty years later, Fidesz used their parliamentary majority to overhaul the composition and the scope of the Constitutional Court beyond recognition.

Composition

The Constitutional Court had eleven members, nominated by a designated parliamentary committee composed of a single representative member of each political party in parliament, and elected by a two-third majority vote. The President of the Court was elected by the members of the Constitutional Court.

After the 2010 elections, Fidesz implemented amendments to the existing constitution that would remove the cap on the number of party members that could sit on the parliamentary committee. Now committee members were proportional to the size of their own parties, eliminating any potential for opposition.

Fidesz also expanded the number of Court justices to fifteen, meaning the number of judges specifically appointed by Fidesz became the majority by 2013. An additional change to the constitution in 2012 lengthened the tenure of the Court’s justices from nine years to twelve, extending the party’s control of the Court far beyond the four-year parliamentary cycle.

Scope

Shortly after the Constitutional Court passed a negative judgment against an economic and financial act in 2010, Fidesz tabled and passed a constitutional amendment limiting the Court’s scope and ability to hear cases. The Court is now only able to hear complaints regarding budgetary, financial, or tax issues if they directly affect:

• the right to life and human dignity;
• the protection of personal data;
• freedom of thought, conscience and religion; or,
• the rights related to Hungarian citizenship

Once again leveraging their supermajority, the newly created Constitution included a ‘Special Legal Order’ chapter, which included specific justifications under which the government could declare a ‘state of emergency’. These included:

• state of national crisis – typically used in a state of war
• state of emergency – general armed actions undermining law and order, or a coup
• state of danger – natural or industrial disaster
• emergency response to terrorism

The ‘emergency response to terrorism’ was invoked in 2015 in response to the European migrant crisis. This particular ‘state of emergency’ has been renewed in six-month intervals ever since, drawing widespread criticism of its appropriateness and remit. In its judgment of December 2020, the Court of Justice of the European Union found Hungary to be in breach of EU asylum directives, and the Commission has requested the Court in November 2021 to impose financial sanctions in light of Hungary’s failure to amend its policy.

Follow us from more in-depth analysis on the systemic backsliding of the Rule of Law in Hungary. Join us in Brussels on 19 April for the launch of a series of research papers on this topic[1], and an in-depth discussion. Find out more here: Event Invitation | Rule of Law Backsliding in Hungary | Press Club Brussels (nhc.nl)

[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