Presentation by Erik Uszkiewicz at the conference “Illiberal democracies – what can the European Union do in case a member state regularly and systematically breaches European values and regulations?” on 24 April 2015.
Following the elections in spring 2010, the newly formed Orbán government attained a two-thirds supermajority in the Hungarian legislature. This majority – which also conferred a constitutionmaking power on Fidesz – enabled the governing party to engage in a full-scale and systematic transformation of the entire Hungarian legal and institutional framework. At the time, one could only suspect what soon become everyday reality and practice: The Orbán government began dismantling the institutions underlying the democratic rule of law and the system of checks and balances, discrediting and ignoring fundamental rights. The goal of this writing is to briefly present – by focussing its analysis on two particular issues – those anomalies and distortions in legislation and the application of the law which have resulted in institutionally entrenched and systemic violations of principles, rights and freedoms guaranteed by the European Union.
One of the most characteristic features underlying the operations of constitutional democratic systems is that neither branch of government wields exclusive powers, and that the mutual responsibility of these branches to act as checks on each other guarantees that fundamental rights will prevail and prevents certain institutions from wielding excessive powers. In addition to the classic branches of government, there are further independent institutions which help ensure that all aspirations to control exclusive powers are held in check, and that the rights and freedoms of citizens continue to prevail. During the past five years under the Orbán government, these institutions have basically undergone two major changes:
- for one, legislation was used to "rein in" these institutions. In some cases, this resulted in the wholesale abolition of the entire organisation and their replacement by new institutions, while in other instances the statutory framework regulating the given institution was completely rewritten.
- new leaders and members were appointed to lead these organisations, and the new executives and board members are all government loyalists, which thus allows for direct and immediate control over these institutions.
Already early into the term of the Orbán government, the Constitutional Court had on several occasions declared certain new statutes unconstitutional on the basis of the previous Hungarian Constitution, which was effective before 1 January 2012. In response, Parliament amended the Constitution on 12 occasions, based on proposals submitted by the government or government party MPs, incorporating provisions that the Court had struck down as unconstitutional into the Constitution, thereby ensuring that the august body would not have another opportunity to review the norm. Subsequently, in 2011, Parliament adopted the new Fundamental Law of Hungary. Due to many controversial provisions, the Fundamental Law failed to achieve a full social consensus in terms of being regarded as the foundation of the legal system. In the meanwhile, Fidesz has selected the candidates to replace retiring Constitutional Court judges from among its own loyal clientele, ensuring that future legislation would be adopted smoothly. The term of office of the new judges was also expanded at the same time, thereby cementing their positions on the court.
Following regime transition, Hungary joined the ranks of those countries where the institution of independent ombudspersons was established, which functioned in an exemplary fashion. Thus, for example, an independent data protection commissioner ensured that information rights would continue to prevail. This institution was abolished by the government and replaced with a government agency/authority, whose executive was known to belong to pro-government circles. The previous data protection commissioner was let go even before his term expired. In light of the above, the European Court of Justice condemned the government in 2014, arguing that the independent protection of rights implies that the person in charge of this protection be allowed to finish his/her term of office. Though the ECJ made out a violation of EU law, it did not restore the previous data protection commissioner to his office, and it allowed the newly created institution to go on with its operations.
One of the last nails in the coffin of the constitutional state based on the rule of law is a breach of judicial impartiality and independent law enforcement. The president of the highest judicial body in the ordinary judicial system, previously known as the Supreme Court, was also removed from office before his term expired, and, in reference to archaic traditions, the institution was renamed Curia. In May 2014, the incumbent president of the Supreme Court at the time, András Baka, prevailed in his legal action against Hungary before the European Court of Human Rights. The ECHR held that the government's actions had violated rights enshrined in the European Convention on Human Rights.5 Another key problem was that the governing majority also changed the rules on the mandatory retirement age for judges, which lead to a European Court of Justice decision sanctioning the government.6 Despite these decisions, the new institutional structure ultimately prevailed in this area as well, and a majority of judges who were forced into retirement did not return to the bench.
One of the most prominent scandals this year is the so-called "brokergate", the criminal proceedings concerning which are still pending. This particular case, along with some previous criminal proceedings, allow for the conclusion that the prosecution authorities are also incapable of discharging their responsibilities independently and impartially. Prosecutor General Péter Polt, who is in charge of the strongly hierarchical Prosecutor's Office, is often seen together with the prime minister and other leading politicians at public events. The close friendship between the prosecutor general and the prime minister is common knowledge in large parts of the public.
Elections and the far-right breakthrough
As the first four years of the second Orbán government drew to a close in 2014, once again elections were held in Hungary. In their analysis of this event, the OSCE's ODIHR office wrote that the Hungarian elections were "free but not fair”. The playing field was tilted to favour the right: Several factors favoured Fidesz, including redrawn district boundaries, the rules concerning campaign financing, the occupation by the government of a large portion of media outlets, and the practically incomprehensible system of winner's compensation in elections, which pads the results of the strongest party. Of all the conditions that distort democratic electoral competition, the author would like to highlight one in particular. As part of the Fourth Amendment of the Fundamental Law, the governing party mandated that campaign advertising by political parties may only be disseminated in public service media, under equal conditions for all parties competing in the election. In response to domestic and international protests, the relevant provisions were changed by the Fifth Amendment of the Fundamental Law, which allowed for political advertisements to be disseminated by commercial media – with equal conditions for all competitors and only for free. Given that commercial media obtain a major portion of their revenues from selling their advertising time/space, there were obviously no commercial media that offered the parties that competed in the elections the opportunity to advertise with them. This is a good illustration of the Orbán government's political practice: It wishes to enact extremely restrictive measures, but once it faces intense protests it "relaxes" its original plans and chooses a "softer" solution. Yet as the example above shows, even though the regulatory solution chosen may be different, its actual impact is the same. The rules are still restrictive and suppress liberty. A fully accurate picture of the Hungarian elections also needs to point out, however, that the opposition parties – despite all difficulties or maybe exactly as a result thereof – proved incapable of offering a real alternative to the masses of voters who were disillusioned with politics. The opposition parties, dragged down by lacking vitality and internal tensions, were caught up in a situation where they were compelled to enter into an alliance with one another before the election. On the whole, the combination of these factors led to another two-thirds victory for Fidesz. Yet the Orbán government did not get to hold on to this majority for long. In two by-elections held in rural towns, in February and April, respectively, Fidesz lost its supermajority in Parliament. At the same time, the surge of the Hungarian far-right is disconcerting. There is no space to go into detail about the reasons underlying the expansion of the right-wing radical party, Jobbik, but it needs to be emphasised that the success of this extremely racist, euro-sceptic and radical party is a frightening development. In all probability, Fidesz has also felt the heat from the surge in Jobbik's popularity, and the governing party seeks to forestall Jobbik's further expansion through a policy of "outrighting the far-right", for the time being primarily in the form of government communication. The prime minister's comments against immigrants, the banal and extremely discriminatory national consultation launched on the subject of immigration, or the suggestion to bring back the death penalty, have stirred up public opinion not only in Hungary but at the European level as well. President of the European Commission Jean-Claude Juncker and numerous other European politicians have expressed their concerns and called for these issues to be resolved as quickly as possible.
Situations and cases that involve a neglect of European values are often called everyday human rights violations. It would be near impossible to take stock of and classify all these violations in the areas of public education, the nationalisation of private pensions, the assault on autonomy in higher education, the criminalisation of homelessness and the growing vulnerability of other marginalised groups. In the meanwhile, the feeling of euphoria is increasingly waning. This sentiment was still vibrant after the 2010 elections, which followed on the heels of eight years of left-liberal malgovernance, but has now faded along with the hope that the conservative right-wing government will remedy the country's woes. Perceptions of corruption are also on the rise. Once the ill-placed sentiment that "I, too, could be among the beneficiaries" dissipated, it has lead to growing perceptions of corruption. There are no more lands, tobacco shops, exclusively state-owned assets and concessions to be reallocated; these sources have gone dry, and in an act which marks a serious interference with the autonomy of higher education, the last sanctuary remaining, the chancellery positions at universities, are now being awarded to persons close to the governing party. As perceptions of corruption are on the rise, satisfaction with the government and political support for Fidesz are gradually declining. A growing number of people accurately realise the deep social, economic and moral crisis the country is in.
It is worth emphasising briefly that the process of explaining to wide swathes of society why the mass of complex economic/social/legal/political changes that rapidly followed regime transition were necessary, or to help render the importance of these changes intelligible to them, has failed comprehensively. The democratic institutions made many mistakes in the two decades prior to the Orbán government's entry into office, which is an important factor in itself. An even greater one is the lack of self-reflection and the ability to learn, as is the absence of accountability. It would only be a slight exaggeration to say that Hungary is a country where misdeeds have no consequences. There is no social justice, poverty is rampant, and no government has taken any effective measures to ensure the equality of minority groups. Little wonder, then, that in the affected milieus market economy, democracy/the rule of law and the European Union have become enemies rather than things to aspire to. They have practically become curse words. The responsibilities of the parties that refer to themselves as democratic parties for these developments is that they failed to properly debate these issues in public, did not offer proper alternatives and practically considered these problems as isolated phenomena. In the meanwhile Jobbik, with its own radical, extreme, exclusionary and demagogic communication has proved capable of luring many – especially youths – into its own camp.
In the decade after regime transition, the NGO sector in Hungary began to develop significantly, including volunteer groups organising village festivities, various associations that offer miscellaneous leisure activities, all the way to a panoply of organisations fighting for social welfare and justice, as well as professional NGOs.
It took the scandal surrounding the consortium of NGOs entrusted with managing the Norway NGO Fund for the Hungarian civil sector – or rather some emblematic organisations engaged in standing up for human rights, the rule of law, minority rights, or anti-corruption – to rethink their activities and turn towards a more activist approach also involving other types of activities. In the meanwhile, the government's campaign to discredit NGOs that are not aligned with the ruling parties is in full swing. This campaign has two objectives: to undermine the credibility of the affected NGOs and to destroy their financial viability, which is already tenuous due to their lack of resources. Those who take a critical stance towards the government are often labelled "traitors", "Soros lackeys" or "foreign agents", with the goal of suggesting that they only serve alien interests.
The funding of Hungarian NGOs is in a tragic state. One of the striking aspects of institutionalised corruption under Orbán is that faux civil organisations – generally regarded as government friendly –, as well as other organisations that have somehow managed to cultivate friendly ties with the government, can count on budget subsidies. In the meanwhile, critical voices are engaged in a bitter struggle – often against one another – for every diminishing funding. An odd aspect of this situation is that international donor organisations engaged in the realm of promoting democracy, the rule of law or the protection of human rights classify Hungary as a developed democracy – also because of its EU membership – therefore automatically excluding it from the range of countries that may receive funding. It would be necessary to review such funding policies. What is needed is not for Hungary to enjoy a privileged position when such grant programmes are published or applications are reviewed; but Hungarian civil organisations and projects should have the opportunity to compete for such funds. It is probably not even necessary to go into detail about how NGOs seek to turn their basic activities into "projects" to attain funding for them.
In the interest of securing alternative sources of funding, their dependence on individual donor organisations, or to simply diversify their income, a major proportion of Hungarian NGOs has launched a variety of programmes. Starting with the 1% of income taxes that citizens can allocate to support NGOs, and the organisation of miscellaneous crowdfunding events and campaigns, NGOs engage in a variety of methods to increase their funding. However, these imply a risk that citizens offering support will increasingly see themselves as "clients" – as has been reported by some NGOs – and that they will expect these organisations to confirm and support their opinions, and to correspondingly exclude potentially conflicting viewpoints from the work of the affected organisations. This could serve to increasingly push the way these organisations operate towards the extremes, and to further consolidate the vast polarisation of Hungarian social life, the mentality of staunchly opposed camps and the inability to communicate across the political divide.
It was obvious to many that Viktor Orbán held the media responsible for the failure of his re- election bid after his first term in government ended in 2002. His party almost immediately began to build a pro-Fidesz media empire. One of the iconic figures of pro-Fidesz circles (even though he almost never appeared in public), the entrepreneur Lajos Simicska, was a loyal ally in this process.
It is thus hardly surprising that following the election of the new Orbán government in 2010, the majority immediately began working on new media laws; two new laws were adopted and became effective with stunning speed. The 2010 media laws and the institutional framework they establish are symbols of an era and also key instruments – though obviously not the only instruments – in the political consolidation of this era. The new media authority, for example, goes to significant lengths to serve Fidesz's media policy objectives. Today we can state: As a result of the distorted public sphere, the media cannot perform its functions in terms of shaping public opinion, and it bears no minor measure of responsibility for the emergence of a society that is unable to communicate.
An interesting aspect of this development is that almost all legislative work with an impact on media freedom was followed by intense protests. One of the largest civil movements of this period, the initially independent Milla, which today is mostly moribund, was also created to protest the media laws and other government action aimed at curtailing free speech.
The most important reasons underlying the distorted structure of the public sphere:
a state media rather than a public service media: in a uniquely Hungarian situation, public media are excessively financed, their organisation and decision-making mechanisms lack transparency, and their operations are propagandistic; they are practically turned into government mouthpieces the media has become the playground of oligarchs (in the radio market, for example, tender practices were used to turn a major portion of frequencies over to pro-government oligarchs, and numerous previously popular radio were compelled to cease operations); political and economic pressure (a particularly striking examples was the removal of the editor- in-chief of a major Hungarian newsportal, origo.hu – which is owned by a company that is a subsidiary of a German corporation – after he published an investigative piece on the prices of official foreign trips of an influential cabinet member; the comprehensive structural politicisation of the media system concentrated state advertising spending and the manipulation of the advertising market the placement of government loyalists into all relevant positions involving media oversight, and the distribution of scopes of competencies and authorities in a way which ensures that they are all filled by reliable party soldiers.
The government's modus operandi is also illustrated by the series of events involving RTL Klub in 2014. Already during the election period in spring 2014, the largest commercial television channel began to strike a critical tone towards the government. A growing slice of its work was devoted to investigative reporting and took on an edge that was unfavourable from the government's perspective. In response, the government introduced an unequivocally discriminative media tax which mostly hurt RLK Klub (it was the only media outlet required to pay the highest tax rate and it also had to pay a major portion of the entire tax revenue). Finally, in the war of pull and tug that broke out between RTL and the government, the latter finally had to relent, a major factor in which was fear of the outcome of proceedings that the European Commission was expected to launch.
Viktor Orbán has repeatedly talked about a policy of "eastern opening", about his "freedom struggle" against Brussels, the end of the West and deepening economic, political and cultural ties with Russia. The idea of the internet tax, which is unprecedented in Europe, also meshes with this rhetoric. The goal was to introduce a completely unviable, gigabyte-based tax that would have deepened the digital divide and would have caused competitive disadvantage for the Hungarian economy, cutting off many from the possibility of using the internet. An unprecedented wave of protests was launched in response, tens of thousands of people took to the streets in Budapest. Photos of protesters holding up mobile phone were shown throughout the world, and the protests were covered by all relevant international media outlets. Youths were energised to previously unseen degrees and they uniformly said no to distancing Hungary from the West, to disregarding EU values and to pro-Russian and pro-Putin policies. The protests soon took up other issues as well, with the organisers and speakers highlighting the desire for a just, diverse and inclusive society based on solidarity.
The future of illiberal democracy
Lest anyone have doubts that there is a deliberate political strategy at work to establish an illiberal democracy in Hungary, Viktor Orbán himself made this clear for everyone at his notorious speech in Tusnádfürdő. The speech carried an unequivocal message: Orbán wants to leave everything behind that embodies the West in Hungary, and seeks to bring the country closer to states such as Turkey, Russia and Singapore. In Hungary today the divide is not between right-wingers and left- wingers, not between Fidesz supporters and MSZP supporters, but rather between democrats and anti-democrats. For the country as a whole, the question whether the democrats will be able to continue their activities and achieve results in this worrying situation is a key issue. The fate of a country rests on their shoulders.