Restoring the Rule of Law in Hungary. An Overview of the Possible Scenarios (original) (raw)
Related papers
Hungarian Constitutional Reform. The Fundamental Law in Hungary's Democratic Framework
The constitutional changes involving Hungary have followed, in the country’s history and more prominently from 1956, a common fil rouge in their development. We do not face, in point of fact, a nation going through a political or constitutional revolution; and yet, the Magyar constitutional ground has changed to a remarkable extent three times between the end of the Second World War and now. These gradual transformations have been described as “revolutions under the rule of law”, in order to underline the exceptionally systematic use of the existent legislative tools in order to enact a factual transition. In 2010, in the middle of an economic and financial crisis by which, for various reasons, Hungary was strongly hit, Fidesz party (Young Democrats’ Alliance-Hungarian Civic Union), guided by Viktor Orbàn, who had been one of the young leaders in the ‘treated revolution’ from communism, won the parliamentary elections, gaining, together with its ally, KDNP (Christian Democratic People’s Party), a two-thirds supermajority of the MPs and relegating the oppositions – the socialist party, MSZP, and the extreme right party Jobbik in primis – to an inedited irrelevance. As soon as Prime Minister Orbàn announced his will to approve a new Fundamental Law, many criticisms were raised by some of the most authoritative voices on the national and international political and constitutional context. The main concern focused on the method adopted by reformers, whose supermajority allowed to exclude minority parties from the process of constitutional reform, without formally spoiling the legal bindingness of the reformed Fundamental Law. And yet, the announcement was followed by a Proclamation of the Parliament, which stated that “after 46 years of occupation, and 20 confused years of transition, Hungary has regained the right and power of self-determination [...]. In spring 2010, the Hungarian nation gathered its strength once again, and brought about a successful revolution in the polling booth. Parliament declares that it recognizes and will respect this constitutional revolution. [...] Parliament declares that in April’s election a new social contract was born. [...] The pillars of our common future will be work, home, family, health and order”1. When, in 2011, the National Assembly eventually approved the new Constitution, the merit appeared to be at least as ambiguous as the method. A lower protection of human rights, a reform of justice and constitutional justice which delegates to the government an increased number of designations with a decrease in judges’ autonomy, a symbolic but impressive refusal of the former Constitution: a further analysis of the new Fundamental Law and its five Amendments – occurred between 2012 and 2013 -, which this paper aims at providing, reveals how de facto a less inclusive mentality drove the last years’ change.
Hungarian constitutional developments and measures to protect the rule of law in Europe
DPCE online, 2019
L'evoluzione costituzionale ungherese e le misure di protezione della rule of law in Europa-The essay analyses the constitutional developments in Hungary since 2010 comparing them with those occurring in Poland in the last 4 years. The comparison highlights both similarities and differences in the current constitutional 'involution' of the two countries considering especially the impact on the constitution and the role played by constitutional courts. Constitutional regressions are considered in the overall framework of EU democratic conditionality and the measures to deal with the rule of law crisis.
The Crisis of the Rule of Law, Democracy and Fundamental Rights in Hungary (Paper I
The Crisis of the Rule of Law, Democracy and Fundamental Rights in Hungary, 2022
The EU is harboring a Member State which, through a method of abusive constitutionalism, is not a constitutional democracy anymore. Systemic violations of the Rule of Law are part of its governance, to the detriment of democracy and the well-being of its citizens. Crucially, this Member State could not join the EU, was it to apply today. This reality has dire consequences not only for the well-being of Hungarian citizens, but also for the entire European project. Accordingly, reinforcing existing constitutional principles within the EU, as well as formulating new ones, is paramount: i.e. to be able to respond effectively to Rule of Law violations and improve EU's enforcement.
The Rule of Law, democracy, and human rights in Hungary
2020
This chapter provides an overview of the constitutional developments that have taken place in Hungary over the last 30 years. To understand the background, it starts with a short history of Hungarian constitutional law, including the democratic transition in 1989-1990, and then describes the transition of 2010-2012. The chapter primarily focuses on the current state of the Hungarian constitutional system, which is analysed in the light of the essential constitutional values that represent the basis of Western constitutional states (the Rule of Law, democracy, and fundamental rights). Finally, the last part of the chapter concentrates on the social and cultural context and sets out the actual practices and narratives behind the formal rules of the constitutional system. 4.2. A short history of Hungarian constitutional law Until the mid-20th century, Hungary did not have a constitutional charter but instead had a so-called historical constitution which, similarly to the traditional English constitution, consisted of doctrines and several important (substantively important but formally ordinary) statutes. The frst attempt to create a written constitution was made during the short period of the Hungarian Soviet Republic after World War I, but it did not infuence subsequent constitution-making processes. After World War II, the foundations of a new democratic and republican regime were regulated in Act I of 1946 on the Form of the State of Hungary, the provisions of which also reappeared in later constitutional texts. However, this was not a proper constitutional charter, but only the settlement of a few staterelated matters at the level of an ordinary statute, and the constitutional system was soon changed by a Soviet-type socialist dictatorship.
The New Hungarian Constitution: Legal Critiques from Europe
Review of Central and East European Law, 2017
Hungarian constitutional and legislative reforms have been in the spotlight since Hungary’s adoption of a new Fundamental Law, which entered into force on the first day of 2012. Europe’s two leading international organizations (the Council of Europe and the European Union) already issued an opinion about it the year before its entry into force, and they continued to closely follow Hungarian constitutional developments during ensuing years. The new Fundamental Law was followed by a series of new ‘cardinal laws’ and many controversial reforms. This article presents and discusses the opinions delivered by the Venice Commission, the European Court of Human Rights, and the eu institutions on these reforms and the different types of arguments on which they relied. This article also aims to present the interaction between the Hungarian government and Europe’s two leading organizations concerning the new constitutional setting of Hungary, focusing on the legal arguments in each case.
TRANSITION TO RULE OF LAW: On the Democratic Transformation in Hungary
1995
After the methodologically well-founded and scholarly well-developed legal scholarship broke down on the European Continent in the early midcentury-for it was unprepared to face, and unable to give any fairly justifiable response to, the challenge of the temptations the rise of new authoritarianisms and totalitarianisms (sprung up, first, from the attempts at implementing the tempting idea of Bolshevism and, later on, captivating parts of the world by the threats of Fascism and National Socialism) had offered-theoretical renewal followed all over the world, especially in Europe. This was the age of the rebirth of natural law, in the place of (rather than supplementing) the lawyer's traditional world concept, that is, legal positivism, rooted in the very foundation of the cultures of both Civil Law and Common Law. Nevertheless, when the predominantly moral shock of World War II was over, the pressure of reconsideration became soon shadowed. Starting by the late '50s, however, a growing interest has arisen to substitute former patterns of methodology to historico-comparative investigation, sociological inquiry, anthropological foundation, as well as logico-linguistic analysis. Innovative trends of thought in legal theory have led to the foundation of a series of new disciplines and contributed to a genuine theoretical renewal. In the final account, it was a breakthrough and a success. Nowadays, nevertheless, one can only encounter a growing dissatisfaction, accompanied by the well-felt need for reorientation. The causes, as well as its context are largely a function of underlying domestic conditions, namely, socio-historical settings, political biases, intellectual traditions, and the store of instruments (ideologies, institutions, skills and techniques) the arrangement in question has ever developed for both serving everyday routine and coping with new expectations. As to Hungary and the whole region in Central and Eastern Europe, one of the main characteristics of the imposed regime of 'actually existing Originally drafted in 1989 for the 'Preface' to the proceedings of the Finnish-Hungarian Symposium of the International Association for Philosophy of Law and Social Philosophy, Finnish and Hungarian Papers on Legal Theory, which was then thought to be co-edited with Aulis Aarnio as a Beiheft of Rechtstheorie (Berlin: Duncker & Humblot). * Revised version of the intervention at the conference held near to Prague at Stirin in December 1991 on "The Vitality of Central and Eastern Europe after the Eclipse", organized by the Institute for European and International Studies, Luxembourg. 1 Cf. Csaba Varga Jogi elméletek jogi kultúrák Kritikák, ismertetések a jogfilozófia és az összehasonlító jog köréből (Theories and cultures of law: surveys and reviews in legal philosophy and comparative law) (Budapest: Loránd Eötvös University Faculty of Law Project on Comparative Legal Cultures 1994), pp. 269 and 297 (Jogfilozófiák].
From the 'Rule of Law Revolution' to The Constitutional Counter-Revolution in Hungary
2015
After more than 20 years, and after the enactment of the new Hungarian Constitution on April 18, 2011, the paper tries to look at the core of the democratisation process and evaluate the role that the constitution and the constitution-making processes played in Hungary. To achieve this aim the paper discusses A) the characteristics of the Hungarian transition to democracy B) the constitution as the instrument of system change C) the constitutional counter-revolution in 2010-2011, and D) the status of consolidation after twenty years of transition.
The new authoritarian regimes effectively cloak themselves in their constitutional-looking clichés. These not only serve to legitimize dictatorial rule, for a time, but also obscure paths forward to rebuild democracy and the rule of law. Hungary is currently a model state for the relativization of the rule of law, using it as a political tool of obfuscation. With a view to the 2022 elections, there is a serious contradiction in Hungarian public opinion: For one, there seems to be a consensus that a change of government will not be enough, and that Hungary needs some kind of regime change, the abolition of the NER ("System of National Cooperation" is the ideological self-designation of the regime, see Kovács & Trencsényi (eds.), Brave New Hungary. Mapping the "System of National Cooperation"). For another, there is no consensus on what a small parliamentary majority (not two-thirds!) should do with the Basic Law. There should be a regime change, but the Basic Law should not be touched-this will not work. Currently, the logic that a parliamentary majority makes the constitution with the seats won after the election rules. Even bona fide 'regime changers' identify constitution-making with parliamentary decision-making. Even with a two-thirds majority, it is worth abandoning this logic. The alternative becomes clear if we look at the current context, from which constraints arise: In any case, it is necessary to get rid of the present constitution. Neverending story? At the moment, even with the persistence of a democratic opposition coalition, it is doubtful that the Fidesz regime will end as a result of elections. Firstly, because of the disproportionality of the electoral system, the monolithic political composition of the electoral decision-making bodies and the presumed bias of the Curia (High Court of Hungary). Secondly, because the propagandistic mode of the government media system (partly public service media, partly owned by allies) is inherently a serious handicap to non-pro-government arguments and reality. These are only two facets-one could go on and on about what makes the fairness of elections illusory. For now, let us concentrate on the other type of endlessness! The regime has deliberately set itself up to reduce political elections to an irrelevant moment, so that it need not fear losing power even if it loses the elections. This is the ultimate denial of democracy: total disregard for the will of the electorate. A democratic coalition government of the future,