Hungary’s Road to Authoritarianism – Through the Demise of a Liberal Democracy and Free Judiciary

Source: Foreign Affairs
Source: Foreign Affairs
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INTRODUCTION

Over the past decade, through the aftermath of the 2008/09 financial crisis, the 2015 refugee crisis, and the following increase in right-wing extremist politics, Hungary has taken on the role of a European Union member state in democratic decline. With the election of a new Prime Minister in 2010 and his quick turnaround in changing the constitution, democratic institutions and values have been suffocating. Authoritarianism is on the rise, judicial independence diminished, and fundamental European values such as freedom of speech, assembly, and expression have lost their importance in this Eastern European nation.

This paper will explore the transformation of Hungary over the last decade. More specifically, it will talk about the changes Prime Minister Viktor Orban and his Fidesz party have made to the rule of law, public institutions, liberal democracy, and other inherent European laws and fundamental values. The body of this paper will show that it is necessary for the European Union to limit the spread of de-democratization within Hungary, as well as to other countries following suit. The European Union must hold Hungary’s administration accountable for violating core European values and stop Hungary from heading down a dangerous road previously seen in the 1930s in Germany.

BACKGROUND

Slusaruius defines the concept of corruption as “a complex social economic phenomenon commonly found in all governments of the world, threatening democracy and the market economy, the supremacy of justice and social equity.”[1] This phenomenon is becoming more apparent through modernization of press, social media, and increased general knowledge of history, democratic rights, and accountability. Part of the lingering phenomenon is that “the practice of corruption offers immediate benefits to the corrupt ones and endangers the welfare of the population in the long run, undermining the trust of the society in the public authorities and the efficiency of the functioning of the democratic institutions of a rule of law”[2] This is the general concept and foundation of corruption, whether it is government corruption, private, or economic corruption. The practice benefits the corrupt to the detriment of the rest of society, with long-term consequences to democracy and public trust in institutions and the rule of law.

In general, poor countries tend to have a higher degree of corruption than rich ones, where northern Europe is considered the least corrupt region world-wide. Contrary to this general rule, there have been important corruption cases reported in countries such as the US, France, the UK, and Germany,[3] countries usually not suffering from significant government corruption; and now increasingly Hungary too. Countries considered immune from this phenomenon, such as the Netherlands and Finland, are increasingly concerned how the rise in corruption in these regions will affect actions in conflict with moral norms.[4] Especially within the European Union, the group of countries in Europe making up this “least corrupt” region in the world, there have been grave threats to the moderate levels of corruption averaged over the past few decades.

Based on Transparency International, Hungary’s Corruption Perception Index is 70 out of 180. The Corruption Perception Index ranks countries based on how corrupt their public sector is perceived to be and ranks them relative to the other countries in the index. It also gives each country a specific score. A country score indicates the perceived level of public sector corruption on a scale from 0 to 100 – highly corrupt to very clean. Hungary scores a 44 out of 100.[5] The score of 44 means that Hungary is more corrupt, as measured, than Senegal, Montenegro, Oman, Saudi Arabia, Rwanda, and Malaysia, to name a few.[6] The Corruption Perception Index analysis mentions that “most post-communist EU member states are struggling to address corruption effectively. Several countries, including Hungary… have taken steps to undermine judicial independence, which weakens their ability to prosecute cases of high-level corruption,”[7] thereby shooting themselves in the foot, so-to-say.

The European Research Centre for Anti-Corruption and State-Building ranks Hungary’s Public Integrity Index as decreasing at 7.36, and with that, ranking 37th out of 117 countries overall measured. The component that is far below world average, is judicial independence in Hungary, at 82nd out of 117 total, and 28th out of 31 in the regional comparison.[8] The judicial independence was at its lowest ever in 2019,[9] with 2020 statistics not out yet. While the Corruption Perception Index might attribute that to the post-Soviet restructuring struggles, it should not be possible, under the umbrella of the European Union, to allow corruption measures to decrease judicial independence to such an extent.

One of the necessary important requirements in the fight against corruption is the constitutional right, under which a person has the right to access any information, where public access cannot be restricted, and transparency is promoted.[10] Such access to information and the public participation in decision-making are considered two of the most important elements of a democratic government,[11] which Hungary seems to have lost. This is one of the problems the European Union must address, in order to help restore judicial independence and public trust in democratic institutions within Hungary, so that the country won’t fall into complete autocracy, and more importantly won’t stay in that state and pull other nations down with it.

CORRUPTION IN THE PUBLIC GOVERNMENTAL SPHERE

The 2010 parliamentary election in Hungary, which elected Fidesz leader Viktor Orban Prime Minister, was the start of drastic changes in Hungary’s political system. In the next six years, Hungary “deteriorated from the perfect score on political rights and civil liberties to the threshold of a partially free country.”[12] Since Orban’s election, Hungary has sunk to the lowest level of freedom of the 28 European Union member states, (written when UK was still in the EU) where the characterization of the political regime ranges from a hybrid regime (mix of democratic and authoritarian elements) or populist democracy on the optimistic end, to a semi-dictatorship or semi-authoritarianism on the pessimistic end.[13] This development happened with the world, and especially the European Union watching. Despite valid distractions, such as the 2015 refugee crisis, which distracted the hard-hit European member states, this extent of democratic deterioration should not have been possible.

The GAN Business Anti-Corruption Portal, in its Hungary Corruption Report from 2017, has noted that “Corruption in Hungary presents a significant risk to business.” Additionally, despite there being a sound criminal code in Hungary, which forbids bribery in the public and private sector, its enforcement is lacking. Without enforcement, and holding those accountable, who commit such acts, the laws themselves are not worth much, and likely to be overlooked by those committing bribery. Furthermore, within the anti-corruption laws, there is no distinction between bribes and facilitation payments which makes gifts and hospitality illegal in some instances.[14] It is safe to say there needs to be a serious overhaul of corruption laws in Hungary, which is very unlikely to happen though, under the changed constitution and authoritarian-leaning new laws published under Orban.

As part of the growing governmental corruption, freedom of association and freedom of opinion, information, and press have severely decreased in Hungary since 2010. Additionally, the government campaign against human rights groups and watchdog non-governmental organizations, since 2013 has led to police investigations into such civil society groups the following years. This caused many such organization to leave Hungary, thereby steadily decreasing their insight and seat at the table in Hungary’s civil liberties and foregoing the use of checks and balances on the administration by the general public. With these decreases in freedom of information and press, Hungary has had the worst level of press freedoms among EU states.[15]

In 2014, Orban showed his enthusiasm for illiberalism, stating that Hungary’s European Union membership does not preclude him from building an illiberal new state based on national foundations, characterizing China, Russia, and Turkey as states to be celebrated or even emulated.[16] And with that proclaiming the way in which Hungary is politically headed, away from liberal democracy, as expected by the European Union, and towards an autocratic-leaning state or dictatorship.

CORRUPTION IN THE JUDICIARY

In 2017, GAN Business Anti-Corruption Portal measured a moderate to high risk of corruption in the country’s judicial system, noting that bribes for favorable outcomes sometimes occur. The rule of law and the judiciary have been significantly weakened, since Orban took power in Hungary.[17] The background of such decline in judicial independence is due to the new constitution Orban passed. Because amending the constitution or even adopting a new one, requires only a two-thirds parliamentary majority in Hungary, the Orban regime quickly did so, when gaining such constitutional majority in the parliament. While at first changing the existing constitution, they then replaced it all together with their own in 2011, which went into force in 2012. The new constitution supports authoritarian tendencies, so that the need for parliamentary debate is minimized.[18]

Publicly, the appointment of politically influential Orban-loyalists to the Constitutional Court has also raised concerns, and led to the sharp decline in trust in the independence of the judiciary among businesses. Generally, since the constitutional change in 2011 and the following change in the judicial system, civil court procedures have become lengthy and frustrating to businesses, who now increasingly prefer mediation to court proceedings.[19]

Following the new constitution, and its shift towards a more authoritarian political culture, the Constitutional Court of Hungary has been stripped of many of its powers, thereby going against the inherent European values of an independent judiciary, and checks and balances between the different branches of the government. Furthermore, the new constitution authorized the undoing of previous rulings against the Orban regime, as jurisprudence on the old constitution was no longer valid, including, allowing the change of outcomes ex-post facto, based on the new constitution.[20]

An additional 2013 constitutional amendment demonstrates how Orban’s regime disvalues judicial independence. “The amendments whittled down the powers of the Constitutional Court by limiting the body’s ability to reject future amendments to procedural, rather than substantive grounds – granting Fidesz a free hand to pass all kinds of self-serving measures. They also barred the court from referring in future cases to the decisions it had made before Hungary’s new constitution came into effect in 2012.”[21] This law tremendously aids Orban in not being tied up in previous corruption trials, or having to deal with mistakes his administration had made in the past, under the former constitution. By this measure, there are no legal precedence cases that a court could look back on for guidance.

With this significant change, the Constitutional Court is no longer an effective check on the government. It’s as though the Constitutional Court gave a blank check to the government for policy making,[22] who now has free range to pass laws that are in the administration’s favor, discriminatory against political and societal opposition, as well as the core European and post-World War II values of liberal democracies, thereby clearly increasing inter-governmental, as well as public corruption in the country. In addition to the changed constitution, in the first four years of Orban’s reign, 857 laws were passed, 365 of those in the first 20 months alone. This includes 49 cardinal laws.[23]

Subsequently, many key governmental positions, including judgeships, have been filled with Fidesz loyalists for terms of nine to twelve years, which is unusually long for Hungary. The intention is for them to survive through multiple parliamentary elections, so that they can enact crucial veto powers if necessary, and Fidesz is protected from future regimes.[24] The problem this poses is that the fundamental system of democracy – free and fair elections with a peaceful transition of government – is no longer applicable, because there will be no transition in government, if institutions created and long-term appointees remain loyal to Fidesz and maintain holding decision-making roles.

Since Orban gained power in Hungary in 2010, his party has been representing the rejection of European Union liberalism core values, such as judicial independence, protection of minority rights, and the rule of law.[25] Orban has acted on these rejected values, to make clear, Hungary is no longer abiding by the European core values, while leading his country into an autocracy without a functioning judiciary.

THE CURRENT TRAJECTORY

This year, in addition to the non-functioning judiciary, the Hungarian parliament has stripped itself from its power, by giving Prime Minister Orban the power to rule by decree, without any temporal limitations.[26] Orban used the COVID-19 crisis to dismantle what was left of Hungarian democracy. His emergency act is broad but targeting. From March 2020 on, whatever the administration views as a false report, criticism, or hoax, can be punished by five years in prison. For COVID times, this includes pointing out someone forgot to put on a face mask in public.[27] This decree was passed by Orban without any parliamentary consensus, as the majority in parliament, the Fidesz and follower parties, have voted to hand over their power to the Prime Minister.

Whereas in other EU member states, the civil rights of the people have been temporarily limited as well, due to the global pandemic, their parliaments are still functioning, and there is a definite time limit to the heightened rule by the head of government.[28]

The emergency act that Orban passed in March 2020, under the pretense of fighting COVID-19, gives the Prime Minister power to rule the country by decree, and has severe autocratic nuances. This “Corona-Act”, as the administration calls it, is cynically, yet seriously, being called “Enabling Act” by the Hungarian opposition, as well as by other, western, European Union member states.[29]

The term “Enabling Act” is taken from the historical 1933 Enabling Act, which the German Reichstag passed in 1933 that enabled Adolf Hitler to assume dictatorial powers.[30] The majority of the Reichstag, the German Parliament at the time, voted in favor of the Enabling Act, which “enabled Hitler’s government to issue decrees independently of the Reichstag and presidency.”[31] The chronology and force between Hitler’s enabling act and Orban’s enabling act are very similar. In 1933, “[i]t gave Hitler a base from which to carry out the first steps of his National Socialist revolution,”[32] which the European Union, and the world community shall undoubtedly not let happen in Hungary’s case.

Journalists and opposition politicians in Hungary have been exceedingly worried and fearful with the road Hungary is currently going down. One Hungarian journalist stated that the parallels between the 1933 enabling act and Orban’s, frighten the opposition, claiming that a true democratic party would never agree to it. She also hinted towards the static decline in democracy and the state of emergency Orban put in place during the 2015 refugee crisis, which has yet to end, despite there being no new refugees in Hungary in 2020.[33] The fear is valid, as the 2015 state of emergency was never ended, and the current enabling act or COVID-19 emergency act has no temporal limit either.

Because no time limit was set on the enabling act, and with that Orban’s authoritarian regime, the only way to end it would be through two-thirds majority, which is currently only possible for the Fidesz. With no elections or referendums being held during declared emergency situations, the ending of the enabling act is in complete control of Prime Minister Orban.[34] Since the opposition parties denied the emergency/enabling act shortly before it passed, they are now, under the “no government criticism rule”, guilty of treason and can be incarcerated for up to eight years.[35] This severe twist in status-quo has the opposition validly worried, especially with a non-functioning judiciary, and attorneys and judges also not being allowed to criticize Orban’s government. It is a literal catch 22, which leaves civil servants as well as believers in values like freedom of speech, press, and expression, as well as independent judiciary and liberal democratic institutions, at a loss in this administration.

PROPOSED SOLUTIONS

Since he won his supermajority in 2018, Orban has “transformed the country into a political greenhouse for an odd kind of soft autocracy, combining crony capitalism and far-right rhetoric with a single-party political culture.”[36] Where once Hungary was praised by watchdog groups as a leading post-Soviet democracy, lies now a country in sharp and worrisome democratic decline.[37] Threatening the European Union based on its values, the common rule of law all member states need to abide, as well as the goal of maintaining a liberal democratic union with common aspirations.

Over the last decade, “the EU dithered as Hungary descended from liberal democracy to electoral autocracy under Prime Minister Viktor Orban.”[38] The European Union’s ineffective response to Orban’s deterioration of judicial independence and liberal democracy has convinced other right-leaning European countries, such as Poland, that they could get away with the same thing.[39] Posing a clear signal to the European leadership, that something must be done, before Hungary starts pulling down other countries with it. Orban argues that “Europe’s postwar liberal consensus is now at an end”, winning over Poland’s leadership to follow down the autocratic road. Praising leaders like Putin and Erdogan, and being the first Western leader to endorse President Trump in 2016,[40] he has gone considerably against the European leadership consensus. This should not stand without punishment of Hungarian leadership on behalf of the European Union.

Because of Hungary’s decided choice to go against what the rest of the European Union is practicing, namely liberal democracy, by implementing the emergency act following COVID-19, the European Union is threatening Prime Minister Orban with an EU-constitutional challenge. The European Commission President, Ursula von der Leyen, stated that generally, it is acceptable for EU members to pass emergency acts during times such as the COVID crisis, but such emergency acts must still abide by democratic standards, which in Hungary, it doesn’t.[41] While limiting certain rights of assembly or delaying elections is not the typical practice of this Union or the countries within it, it has been done in order to protect society from the pandemic. Other EU-politicians have criticized that too many administrations, including Hungary and Poland, have abused the current crisis under the pretense of fighting the pandemic, to gain unlimited authoritarian power within their respective countries,[42] which again, should be alarming to European leadership and urge them to do something about it.

Currently, the European Parliament has proceedings against Hungary, on the basis of the rule of law being at risk in the country. In September 2018, the European Parliament demanded that the European Council “act to prevent Hungarian authorities from breaching the EU’s founding values,”[43] which, in 2020, it undoubtedly has. The problem with Article 7 proceedings is, that in order to implement grave consequences for Hungary, all other EU member states must agree – and because Poland, who is going down a similar road as Hungary, will take Hungary’s side, the proceedings will fail.[44]

The seeming last resort is the European Court of Justice. The Court could still act without complete member state majority, but needs to be invoked by the Commission to do so. This could lead to sanctions and violation fees at the least.[45] The Court can hold that Hungary is violating TEU Article 7 and Article 2. “Article 7 TEU aims at ensuring that all EU countries respect the common values of the EU, including the rule of law.”[46] The preventive mechanism noted in Article 7, which allows the Council to give the member state of concern a warning before the “serious breach” actually materializes, can only be advanced in the case of a “clear risk of a serious breach”[47] of the common values of the European Union set forth in Article 2. Arguably, this is the case, as Hungary is at serious risk of serious breach.

Furthermore, the sanctioning mechanism of Article 7, which allows the Council to suspend certain rights, including the right of that country to vote on the council, can only be implemented in case of a “serious and persistent breach by a Member State”[48] of the values set out in Article 2. The difference between the two is that for the sanctioning mechanism, the “serious breach” must have persisted for a period of time.[49] Again, Hungary is not only at risk of breaching, but arguably has been breaching Article 2 for several years, in pursuit of Orban’s authoritarian leadership.

Article 2 TEU states “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”[50]

Certainly, Hungary has violated these values. It has not only been at risk of violating, but has verifiably violated the values for a period of time. The rule of law has been continuously attacked through constitutional amendments as well as a new constitution, stripping courts of legal mechanisms and the ability to provide checks and balances as a free and democratic judiciary. Democracy has arguably ended, when Orban passed the enabling act. It was the first step for Adolf Hitler in 1933 to rule by decree and grow this into a full-blown dictatorship – and it cannot happen again. The European Union shall no longer look away or categorize this as emergency-permitting limitations of democracy. Viktor Orban is heading towards a dictatorship in Hungary, and despite him probably not starting a World War, or atrocious acts against humanity such as the holocaust, the European Leadership must come together and stop him.

CONCLUSION

Since Viktor Orban became Prime Minister of Hungary in 2010, the country’s democracy has declined, and now almost diminished. While at first amending the constitution to enable the government to be more corrupt, Orban then changed the entire constitution, making the rule of law an irrelevant and unhelpful public mechanism of the past. In March 2020 Orban passed an emergency act, or enabling act, which gives him the ability to rule by decree, thereby taking all powers from the legislature as well. Through corruption, and a strategy seen previously in Europe almost 80 years ago, Orban has stripped powers from the judiciary and the legislature, putting him on track for an honest dictatorship. If the European Union does not act, and act quickly, Viktor Orban will succeed in continuing this authoritarian leadership in Hungary as well as allow the spread to other countries.

  1. Gabriela C. Slusariuk, Corruption and Transparency in Public Administration, 18(2) Annals of the University of Petrosani, Economics 185, 185 (2018).
  2. Id.
  3. Id. at 186
  4. Id.
  5. Transparency International: Hungary, https://www.transparency.org/country/HUN# (last visited May 9, 2020).
  6. Corruption Perceptions Index 2019, Transparency International 1, (2020).
  7. Id. at 22.
  8. Index of Public Integrity: Hungary 2019, https://integrity-index.org/country-profile/?id=HUN (last visited May 9, 2020).
  9. Hungary, European Research Centre for Anti-Corruption and State Building, https://www.againstcorruption.eu/country/Hungary/ (last visited May 9, 2020).
  10. Slusariuk, supra note 1 at 190.
  11. Id.
  12. Matthijs Bogaards, De-Democratization in Hungary: diffusely defective democracy, Routledge, 1481, 1481-2 (Jun. 25, 2018).
  13. Id. at 1482.
  14. Hungary Corruption Report, GAN Business Anti-Corruption Portal, https://www.ganintegrity.com/portal/country-profiles/hungary/ (last visited May 9, 2020).
  15. Bogaards, supra note 12 at 1486.
  16. Claire Greenstein & Brandon Tensley, Hungary, Sixty Years After the Revolution, Foreign Affairs (Sep. 1, 2016).
  17. Hungary Corruption Report, supra note 14.
  18. Bogaards, supra note 12 at 1488.
  19. Hungary Corruption Report, supra note 14.
  20. Id.
  21. Claire Greenstein & Brandon Tensley, supra note 16.
  22. Id.
  23. Bogaards, supra note 12 at 1491.
  24. Id. at 1489.
  25. Claire Greenstein & Brandon Tensley, supra note 16.
  26. Helga Schmidt, Ungarn ohne Rechtsstaat, Tagesschau (Mar. 31, 2020) (translated from German).
  27. Id.
  28. Id.
  29. Keno Verseck, Orbans “Ermaechtigungsgesetz“ spaltet EU – Sanktionen haetten Folgen fuer ganze Region“ Focus Online (Apr. 4, 2020) (translated from German).
  30. Britannica: Enabling Act, https://www.britannica.com/topic/Enabling-Act (last visited May 9, 2020)
  31. Id.
  32. Id.
  33. Madeleine Janssen, Wir bezeichnen das Gesetz als Ermaechtigungsgesetz, T-Online Politik (Mar 30, 2020) (translated from German).
  34. Id.
  35. Id.
  36. Patrick Kingsley, As West Fears the Risk of Autocrats, Hungary Shows What’s Possible, New York Times (Feb. 10, 2018).
  37. Id.
  38. R. Daniel Kelemen, The Assault on Poland’s Judiciary, Foreign Affairs (Jul. 26, 2017).
  39. Id.
  40. Kingsley, supra note 36.
  41. Schmidt, supra note 26.
  42. Id.
  43. European Parliament, Hungary and Poland: Parliament to assess progress of Article 7 proceedings, Plenary Session 20200106BRI69601 (Jan. 2020).
  44. Janssen, supra note 33.
  45. Id.
  46. Promoting and safeguarding the EUs values, EUR-Lex, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al33500 (last visited May 9, 2020).
  47. Id.
  48. Id.
  49. Id.
  50. Treaty of the European Union, Article 2, C202/17 (2016).