Illiberal Developments, Anti-Democratic Backlash
In his earlier writings (Pap 2014, 2015c), this author has demonstrated how the new constitution, titled the Fundamental Law of Hungary (passed in April 2011), has, along with adjacent legislation, set forth several normatively formulated value preferences that can be defined as illiberal in the sense that they either suggest the denial or at least the disregard of individual autonomy and liberty or project a paternalistic conception of society. It has been argued at length that the constitution is not based on individual autonomy or individual liberty, and that the idea of a person is unequivocally and openly based on a paternalistic conception of society and particular values. The new constitution’s indications of personhood and of the ideal typical, thus preferred members of the political community were formed to reflect an image of ethnically Hungarian individuals who belong to the middle class, who are employed and active in the labor market, are practicing Christians, or at least belong to a denomination that is recognized by the state, are married heterosexuals living with their spouses, and who are sexually monogamous and naturally fertile. At most, the recognition of individual dignity is conditional on belonging to a community based on the features described earlier, while the dignity of communities - including that of the ethnic majority community - is protected (in ways unknown in liberal democracies) by civil and criminal law, and even against various minorities (be it ethnic, ideological or lifestyle minorities) if need be.
Analysts (Blokker 2013; Toth 2012; Chronowski 2012; Majtenyi 2012), domestic and international human rights monitors, democracy-watchdogs, and other stakeholder organizations have widely documented the FIDESZ- government’s process of restructuring the constitutional landscape in Hungary. Based on the so-called Tavares-report prepared by the European Parliament in 2013, which pointed to a clear weakening of the systems of checks and balances required by the rule of law and the democratic principle of the separation of powers, several shortcomings can be identified. The new constitution was adopted on the basis of a bill submitted from an only 35 daylong debate and exclusively by the votes of members of the governing coalition. The Budget Council, a nonparliamentary body with limited democratic legitimacy, has been granted the power to veto the adoption of the state budget, which allows for the president to dissolve the parliament. The new constitution identifies 26 subject matters that need to have cardinal laws, which require a two- thirds majority. Many of these issues, such as specific aspects of family law and the tax and pension systems, habitually fall under the ordinary decision-making powers of a legislature. In the 18 months following the adoption of the new constitution, parliament enacted 49 cardinal laws without adequate consultation with opposition parties and civil society. A 2012 Act on the National Assembly vested the speaker of the Parliament with extensive discretionary powers to limit MPs’ free expression, including severe fines applied even for displaying the EU-flag. Severe measures to weaken the competences of the Constitutional Court (a highly esteemed powerful guardian of the post-transition constitutionalism) have been introduced, such as the elimination of actio popularis procedures for ex post review, powers to review all budget-related legislation, and a repealing all of Court decisions made before 1 January 2012 (when the new Constitution entered into force) so that precedents of the Court are not allowed to be invoked in new cases based on the new Constitution. Additionally, the number of justices has been raised from 11 to 15, and the requirement to try to reach a consensus within parliament regarding their election was eliminated. By now, most of the judges are government loyalists, several having been appointed directly from their positions as members of parliament. In an attempt to weaken the independence of the judiciary, the 6-year-long mandate of the former president of the Supreme Court was prematurely ended after 2 years and the mandatory retirement age for judges was reduced from 70 to 62 years of age, a move that practically removed all of the courts’ presidents.
A new, powerful administrative organ for the judiciary titled the National Judicial Office was created with powers to transfer cases from one court to another. The body is presided by the wife of one of the constitution’s drafters - who is also a Fidesz member of the European Parliament and a longtime friend of the Prime Minister. A new Act on Churches was passed, making recognition conditional on the prior approval by a two- thirds majority in parliament. Subsequently, 300 registered churches lost their legal status. A restrictive media law was passed, creating a new Media and Telecommunication Authority with overbroad regulatory and sanctioning powers and enabling political influence on public service media. Electoral reforms introduced a remarkable form of gerrymandering that disproportionately favor the governing parties, and the government took political control over the Election Commission.
Most legislation was introduced to parliament as individual members’ bills. These introductions avoided any detailed debate, consultation, impact assessment, and traditional venues for negotiation with the civil sector. Laws have often been amended substantially after the parliamentary debate through the use of a special measure aimed at eliminating technical and incoherent provisions. And several pieces of legislation were specifically tailored to accommodate particular acts of favoritism, such as lowering age requirements for ambassadors to enable the appointment of a government loyalist, or changing incompatibility regulations to enable former military service members to run for elected office. Nominally independent institutions have been staffed by government loyalists elected by a two-thirds majority. In many cases, these positions involve 9-year terms with options for tenure and automatically prolonged mandates if successors are not elected. According to Freedom House (2015), by 2014 all major independent institutions were headed by partisan or personal loyalists. A single Office of the Commissioner for Fundamental Rights was created that replaced four formerly independent ombuds institutions. The portfolio of the former Ombudsperson for Data Protection and Freedom of Information was transformed into a quasi-governmental office. Universities were brought under governmental control (Bugaric 2014), and the previously ideologically neutral local government schools were taken over by churches in high numbers, with many settlements only offering faith-based schools. Homelessness and extreme poverty were criminalized. Government rhetoric became hostile toward non-governmental organizations and targeted tax raids have been staged (Amnesty International 2016). The Fundamental Law also sets out that the right to freedom of speech may not be exercised with the aim of violating the dignity of the Hungarian nation or of any national, ethnic, racial, or religious community. Civic and criminal sanctions may ensue speech that is offending, shocking, or disturbing to others, especially to public officials or public figures (Amnesty International 2016). In 2013, the Law on Freedom of Information was amended to allow restricting full access to data concerning governmental institutions.
The right to property has also suffered serious setbacks due to private pension funds being terminated in 2010, and almost all assets (worth 10 billion EUR) were transferred to the state-run pension system. Also, a special 98% tax on certain revenues was introduced retroactively as of 1 January 2010, thus creating a tax obligation for the period preceding the law’s promulgation, which also was in breach of the ban on retroactive legislation.1 Reforms have been extremely swift: in its first 20 months in office, the government pushed through 365 laws, including 12 amendments to the old constitution that together changed more than 50 individual constitutional provisions (Halmai and Scheppele 2012, p. 7). The Fundamental Law, entering into force on 1 January 2012, has already been amended 5 times in 3 years, changing one- fourth of its text (Helsinki Committee 2014).