by Paul Lendvai
The ambitious undertaking of consolidating Fidesz, immediately and irrevocably, as the sole ruling factor of power in Hungary succeeded not least because of a fortunate coincidence. The presidency of Lászlo Sólyom officially came to an end in June 2010, just two months after the election. As the head of state is elected by parliament, Orbán had, thanks to his two-thirds majority, a completely free hand in the choice of his successor. Sólyom, following a senseless quarrel within Gyurcsány’s coalition government, had been elected president in 2005 with the support of Fidesz and was, by all accounts, willing to serve a further five-year term in office. Orbán, however, quite correctly perceived him to be an unpredictable factor, because he was independent-minded.6 What was needed at such a decisive moment, when the new course was being set, was not merely a distinguished personality occasionally independent yet well disposed towards Fidesz, but a man of predictable obedience, an acquiescent political lightweight. Orbán found an almost ideal accomplice in a two-time Olympic fencing champion. Pál Schmitt had faithfully served the communist system as a high-ranking sports functionary and Fidesz equally reliably since 2003, most recently as speaker of parliament after the 2010 election victory.
The Hungarian head of state has only limited powers, but one with a strong personality could in a crisis situation obstruct the will of the prime minister. This was something the country had already experienced once, during the 1993 media war between Prime Minister József Antall and President Árpád Göncz over the appointment of the head of the public service TV and radio. But, essentially, the president can only delay parliament’s decision-making processes by refusing to sign a bill and sending it back for revision. He can also have enacted laws reviewed by the constitutional court. Parliament has the possibility of overriding any veto and reaffirming its original resolution through a second vote. In any case, during Schmitt’s two years in office, this of course did not happen. The new president had made it clear in his first speech that he would neither control nor put any brake on parliament, but rather he would complement it. He did not want to be a hindrance but a motor of the government. In this spirit, Schmitt, who dismissed the entire legal staff of the president’s office, signed without hesitation every bill placed before him, including the internationally highly controversial law establishing a national media authority with unprecedented oversight.
The truly seamless cooperation between Schmitt and Orbán was, however, abruptly interrupted in the spring of 2012 when HVG, a weekly magazine, revealed that the president had plagiarised almost completely (in 197 of 215 pages) his doctoral thesis from a study made by a Bulgarian sports academic about ‘The Olympic Games of the New Era’. After some initial hesitation, Orbán had to sacrifice his willing helper after the Semmelweis University in Budapest stripped Schmitt of his doctorate. He quickly found a compliant successor in János Áder, a crony of many years, who had ‘emigrated’ to Brussels in 2009 as an MEP.7 He was elected president in May 2012. In stark contrast to Schmitt, Áder has, despite, or perhaps because of, his thirty-year friendship with Orbán refused several times to sign certain heavily criticised bills. However, the significance of these occasional signals of independence should not be exaggerated. He did not, for instance, despite international criticism and the public warnings of his predecessor László Sólyom, veto the controversial fourth amendment of the ‘Fundamental Law of Hungary’, the new constitution that had been adopted barely a year previously. On the contrary, he signed it into law, thereby hamstringing the Constitutional Court, on 14 March 2013.
The nomination of a political lightweight such as Schmitt as head of state had served as the prelude to an unprecedented wave of personnel changes on all levels. From the public audit office to the financial supervision commission, the monetary and budgetary councils, from army generals to police chiefs, from the state lottery to the state railways, from disaster control to horseracing, from the social insurance institutions to the central statistical office, posts were given to Fidesz loyalists; in many cases top officials resigned of their own accord, jumping before they were pushed. A new law allowed the government to gratuitously fire civil servants at any time.
From the very beginning the leadership concentrated its efforts on setting the parliamentary voting mechanism in motion in order to prepare its frontal assault on the old constitution, the constitutional court and the independent judiciary. For that an accelerated system of legislation was necessary. In the nineteen months after the government entered office the constitution, usually following proposals tabled by individual MPs, was frequently amended using fast-track procedures without any debate; in this way twenty-six reforms were passed, in twelve constitutional amendments. Barely a month after the new parliament had assembled, arguably the most important amendment was agreed by the two-thirds majority, following a proposal made by an MP after a debate lasting a mere three days: the safeguard clause requiring preparation of a new constitution to be approved by four-fifths of MPs was abolished. Zsuzsa Kerekes, a constitutional expert, pertinently observed that:
With this amendment the path to the liquidation of the republican constitution and the rule of law has been left wide open. There no longer exist any blocks to the use of different tactics for the restructuring of independent institutions such as the constitutional court, the public audit office, the National Bank, the legal system, the system of an ombudsman and the autonomous administrative units of government.8
Kerekes demonstrated how the rules of parliamentary procedure as amended on 1 January 2012 have enabled the adoption of urgent emergency legislation requiring no debate, through the abolition of the threshold clause requiring a four-fifths majority. With this measure, it is now possible in peacetime to rush a bill through parliament in less than forty-eight hours and to publish the adopted text as a ‘law’ in the official Gazette.
On Sunday, 28 April 2013, two MPs put forward an amendment to the law on freedom of information, which had replaced the earlier data protection law. The next day they proposed that it be considered by urgent decision, leaving only three hours for supplementary proposals; the final vote would be held the following day. The parliamentary constitutional committee decided on Monday morning, after twelve minutes of deliberation, to refer the proposal to the plenum. About two hours later, in the plenary session, the government majority accepted the initiative for urgent consideration and the MPs had 180 minutes to put forward amendments. The constitutional committee, still in session in the evening, then rejected within five minutes all the opposition amendments, and at 21.04 the bill went to the plenum for a full debate. This lasted a mere sixty-four minutes. After a short overnight break, early on Tuesday morning—less than forty-eight hours after the amendment had been tabled—the bill was passed into law by the government majority.
As the bill had been put forward by a single MP, there was no expert consultation, no discussion within civil society and also no administrative coordination. The latter would have been especially important as the amendment concerned a law regulating constitutional basic laws. Kerekes has also revealed that of the 1,026 laws enacted between 2010 and May 2015, 303 (37 per cent) were tabled by individual MPs, and not the government; in the case of constitutional amendments, the figure is even more startling: nine out twelve (75 per cent) passed between May 2010 and November 2011. All these new laws and amendments were fast-tracked through parliament without any genuine debate or scrutiny.
Within the space of two-and-a-half years, the two-thirds majority applied this urgent procedure twenty-six times. After the May 2014 election victory the two-thirds majority extended the regulations for extraordinary legislation. Henceforth, not six but ten laws could be boxed through in one session. In the following eighteen months, no fewer than eighteen laws were passed by means of such a fast-track procedure, seven through motions tabled by individual MPs.
On 1 January 2012 the new constitution, the Fundamental Law of Hungary, had come into force. The former president, Lászlo Sólyom, spoke of the inst
rumentalisation of the constitution in the service of day-to-day objectives. Orbán had all laws essential to the consolidation of Fidesz’s power enacted as constitutional laws via his voting machine in parliament. Known as cardinal acts, these form the basis for the concentration of power in his government, as they can only be altered in the future by a two-thirds majority. They also ensure that, even in the unlikely event of the opposition parties ever achieving a majority in parliament, the key positions in the state will still, for nine years dating from the appointment, be occupied by Orbán’s compliant cronies, who could, if necessary, form a Fidesz shadow government. For this reason we must now examine potentially the most important institutional and personnel consequence of the ‘new land conquest’ in the fields of justice, the media, the economy and the administration.
11
THE END OF THE SEPARATION OF POWERS
With the ‘successful revolution at the ballot box’ in 2010, Viktor Orbán proclaimed not only a new government programme but also both a system change and a new historical era. Though during the election campaign a year earlier not a single word had been uttered about any constitutional reform plans, he proudly announced in February 2011 the drafting of a new constitution to be called the ‘Fundamental Law of Hungary’. Within two months, on 18 April 2011, this new constitution had been adopted in a fast-track procedure with the votes of the governing party. It entered into force on 1 January 2012. The Fundamental Law was rushed through parliament in nine days, without any previous national debate, any political or legal discussion, and of course without a plebiscite. In place of a popular consultation, a parliamentary debate or a referendum, questionnaires with completely irrelevant questions were sent to all 8 million Hungarians eligible to vote.1 The sole purpose of this ‘national consultation’ was to serve (and not for the first time) as an expensive alibi action, one sharply criticised and ridiculed by all well-known Hungarian and international constitutional lawyers.2
The preamble of the ‘Easter constitution’, with its ‘national confession’ and the concept of the Holy Crown of Hungary, was intended to enshrine the completion of the change. A new interpretation of history was codified once and for all, the ethnic understanding of the nation was pronounced in the constitution and a central role was assigned to Christianity. Under the Fundamental Law, the Crown of St Stephen stands as a bearer of Hungarian sovereignty and is a holy symbol, the slandering of which is punishable by law. The historical revisionism of the preamble gave rise in the Holocaust memorial year of 2014 to passionate disputes and an international scandal about the monument to the 1944–5 German occupation.3 Fidesz was consciously rewriting Hungarian history. According to the new interpretation, the country was not free but occupied for the entire period from March 1944 to the first free elections in 1990.
The preamble declares: ‘We date the restoration of our country’s self-determination, lost on the nineteenth day of March 1944, from the second day of May 1990, when the first freely elected organ of popular representation was formed. We shall consider this date to be the beginning of our country’s new democracy and constitutional order’. Though German troops did march into the country on 19 March 1944, the fact remains that Regent Miklós Horthy remained nominally in power. He named and dismissed prime ministers and, even after his failed attempt to surrender to the Soviets and his resignation, appointed a fascist government under the Arrow Cross leader Ferenc Szálasi. Moreover, the Fidesz version of history denies the great responsibility of the whole state apparatus in the deportation and murder of 560,000 Hungarian Jews.4 A number of generously endowed pseudo-academic institutions have been founded since 2010. These are re-interpreting the history of the Horthy era in terms congenial to Fidesz, in particular with regard to the discrimination and persecution of the Hungarian Jews before the Germans occupied the country.
Despite the grandiloquent phrasing about the meaning and importance of the Fundamental Law, parliament made no fewer than five significant amendments to the new constitution in the following two-and-a-half years, as well as passing a series of cardinal acts. Ignoring the international criticism (which will be considered below), the Orbán regime acted without any scruple and, as always, at lightning speed to tamper with and undermine the troublesome brake of the constitutional court and the institutions of the rule of law. The weak and divided opposition was now irrelevant. The main target of the massive Fidesz campaign to conquer and, should there be any resistance, to destroy the central authorities of the separation of powers was now the constitutional court, which since 1989 had time after time acted independently towards whichever government was in power.
Within weeks of his election victory, Orbán began to take action. First, the selection procedure for the justices of the constitutional court was altered. In the past an all-party parliamentary committee had proposed candidates who were then accepted or rejected in a parliamentary vote. Now their appointment became a decision of parliament, with its huge Fidesz majority. The governing faction nominated a candidate who was then submitted to a parliamentary vote. In order to achieve a pro-government majority on the court bench as quickly as possible, the prime minister increased the number of justices from eleven to fifteen. As one position was already vacant, the ruling party was able immediately to appoint five new justices, all men close to Fidesz. Their period of office was raised from nine to twelve years. Orbán’s very first choice of constitutional judge in July 2010 caused considerable surprise. This was István Stumpf, a political scientist who had known the new prime minister closely since their student days and who had served as his minister of state between 1998 and 2002. He had no experience of legal practice. In the years that followed, other former Fidesz ministers and MPs, as well as lawyers who had not exactly had a glittering career but who were politically reliable, were advanced to the benches of the constitutional court. Previously, the judges themselves had voted for the president of the constitutional court; a new regulation passed this duty to the parliamentary majority. We shall see later how, even with these personnel changes, the jurisdiction of the constitutional court was radically restricted.
Beyond the constitutional court, staffing decisions were made immediately after the 2010 election—again, at breakneck speed—in order to bring the judiciary, the civil service, the media and the financial sector under Fidesz control. With the aid of its two-thirds parliamentary majority, the government decided on the compulsory retirement of all judges and prosecutors who had reached the age of sixty-two (as of 2012), thereby reducing their retirement age by eight years. This measure, implemented without any public debate, affected 274 judges. A new regulation formally abolished the Supreme Court and renamed it the Kuria. This was done to ease first the removal of András Baka, the Court’s independent president, and then his replacement by a pro-Fidesz justice at the head of the new body. After his ejection from office, Baka challenged this arbitrary act and won his case in the European Court of Human Rights in Strasbourg. He received financial compensation but the decision was not reversed.
Outrage at home and abroad was provoked by the liquidation of the administrative autonomy of the courts and the creation of the National Judiciary Office, which was also anchored in the new constitution. In addition, Tünde Handó was named its president, with wide-ranging powers in the appointment of judges and the hearing of cases, in courts determined by her. The period in office of the chief justice, chosen by two-thirds majority, is now nine years. Handó, a friend of Orbán and his family for more than thirty years since their days at the Bibó College, will remain in office until 2020. She is also the wife of József Szájer, a Fidesz founder and MEP. That he is said to have written the text of the new constitution on the train from Brussels to Strasbourg on his iPad lends a certain piquancy to the promotion of his wife, something unimaginable in a state under the rule of law.
The new retirement age of sixty-two, however, was only applicable to judges, not other civil servants. Symbolic of Orbán’s total dominance over his parl
iamentary majority is the fact that in stark contrast to the compulsory early retirement of judges, a special amendment to the retirement law was passed at the end of 2010 enabling the appointment of Orbán’s then seventy-two-year-old financial adviser, György Szapáry, as the Hungarian ambassador to Washington.5 Known as the Lex Szapáry, this was in line with a series of other arbitrary measures instigated by the prime minister, which have led to repeated conflicts with the constitutional court, the European Court of Justice and the Venice Commission of the Council of Europe (the European Commission for Democracy through Law).
A few examples illustrate how casually the Orbán regime has dealt with statutory provisions, and yet also how the constitutional court, despite pressure, has on occasion demonstrated its independence. The court declared unconstitutional a law, unique to Hungary, regulating its civil servants, whereby employees in public service could be fired without reason or notice and their severance pay taxed at 98 per cent, backdated five years. Before this, the judges had overruled sections of the controversial media law, which was pilloried by all significant international media (such as Reporters without Borders, the International Press Institute, the OSCE Representation on Freedom of the Media) as an unconstitutional restriction on press freedom. One of potentially the most important decisions of the post-2010 constitutional court has been the annulment of several paragraphs of the electoral law reform, which would have obliged eligible voters to register at a particular time prior to the election. Those citizens who did not have themselves registered would have immediately lost their right to vote on the most crucial constitutional amendments for four years.
In a study completed at the end of 2012, Jan-Werner Müller, a political scientist at Princeton University, identified the political strategy pursued by Fidesz as being aimed at: