Many thanks to The Budapest Beacon for permitting me to republish this interview.
One of Hungary’s most distinguished scholars of constitutional law, Gábor Halmai is the director of the Institute for Political and International Studies at Eötvös Lóránd University, Budapest, as well as director of the Hungarian Human Rights Information and Documentation Center. He has published extensively in English, German and Hungarian on problems related to human rights, judicial review, freedom of expression and freedom of association. Former chief counselor to the president of the Hungarian Constitutional Court, László Sólyom (later President of the Republic of Hungary), Halmai has served as vice-chair of the Hungarian National Election Commission. He received his PhD from Eötvös Lóránd University and is currently a visiting research scholar at Princeton University.
(Note: We apologize to Dr. Halmai for technical problems experienced during the filming of this interview. When transcribing this interview, we took the liberty of rewording a few of Dr. Halmai’s statements for the sake of clarity, taking care not to change their meaning. We have also highlighted key terms and expressions used by Dr. Halmai for easy reference. -ed.)
As an expert on constitutional matters, what is happening in Hungary?
Ironically, Prime Minister Orbán himself characterized the development very accurately by saying in a speech this last summer that Hungary is not any more a liberal democracy but an illiberal democracy. He even proudly claimed that the pursuit of the Hungarian government is not having a liberal democracy. He named as leading examples for the Hungarian government Russia, China, Singapore, even Turkey, countries which certainly are not fulfilling those ideals which are principles of the European Union of which Hungary has been a member state since 2004. So the paradox in that kind of self-definition by the government of Hungary not being any more a liberal state is a kind of proof that Hungary does not fulfil any more the requirement of a member state in the European Union, which is based on the values of rule of law, democracy, protection of fundamental rights, including minority rights, including religious minority rights . . .
Sounds to me like you’re suggesting that if Hungary were to apply for EU membership now it wouldn’t meet the Copenhagen criteria.
Certainly not. And this is actually one of the troubles of the European Union now: How can the European Union actually protect fundamental values of the EU within a member state if the member state is not willing to comply? Seemingly liberal democracy is not the only path for emerging democracies. It’s very hard to influence, for instance, Egypt to turn into a liberal democracy. But a member state of the European Union and a member state of NATO is a different issue.
What is a liberal democracy? What does that mean?
Liberal democracy certainly has many definitions and many requirements. As a constitutional scholar, let me define liberal democracy as a constitutional democracy, which is certainly a kind of Western approach of democracy. But we are living in the Western world, at least here in the US and we in the European Union. So two major elements have to be mentioned. One is rule of law, which means, on the one hand, that one kind of separation of power or at least checks and balances, if not the US approach of separation of power, some type of checks and balances has to be provided in liberal democracies. The other major element is guaranteed fundamental rights in a way that they are not only prescribed in the constitution (which was also given in the 1949 constitution. Almost all the rights which we have now in our constitution were provided in the text of the Stalinist constitution, but no one took it seriously that those rights are guaranteed). In a rule of law state, institutional guarantees have to be in place: an independent judiciary, in the case of the new member states, new democracies, even an independent constitutional court, certainly some independence of the president in a democratic institutional setting. And probably some more special institution like the ombudspersons in the new democracies.
So these are very important elements which are less and less provided in Hungary. And the other element I wanted to mention beside these two major components of rule of law, is a kind ofaccountability of the government, meaning a democratic selection procedure, which means mainly a democratic election system. Unfortunately, in the last years we not only lack those mentioned checks and balances and guaranteed fundamental rights, for example, freedom of the media, freedom of religion, but we also lack a democratic election system. So even though the governing party, Fidesz, won the parliamentary election in April with a two-thirds majority, this two-thirds majority was due to some substantial changes, and, I would argue, not democratically enacted changes of the election law. The two-thirds is certainly a result of several anti-constitutional new elements of the parliamentary election system. Everyone knows that giving the right to vote to those living outside the country and not resident was decisive to getting the two-thirds majority for the governing party. Also, I can mention, without going into details, the very strange and unique system of giving advantage to the winner by an approach that is really unique in the world: the compensation for the winner.
And it’s not only the parliamentary election system but very recently the municipal elections were, I would say, fraud, because the changes they made to the system were made just four months before the election, which is, in itself, a violation of any kind of legal security or legal certainty, which is a part of the rule of law. Not to speak of the fact that they created the system in order to get a secured majority in the Budapest council, abolishing entirely the direct election of the council members. So, according to the new system those council members were not elected by the citizens of Budapest. They were just delegated according to the new system, and these delegates are mostly Fidesz candidates.
So these are elements in a constitutional system–lack of separation of power, lack of guaranteed rights, lack of democratic elections–which makes a country an illiberal democracy with very strong elements of an autocratic system.
And it’s not only on the constitutional level. If you see the orientation of this government. I mentioned already the speech of Prime Minister Orbán, what are the model countries. Certainly not only non-liberal democracies, but as potential political or economic partners—Russia, China—which are seemingly crucial to the Hungarian government as a kind of balance against the EU and, in economic terms, the IMF, which makes a conditional kind of contribution to the Hungarian economy. Those countries–Russia, China–won’t make rule of law or other democratic conditions for their contribution to the Hungarian economy. But they will certainly make political conditions, which makes Hungary really different from the original member state of a value community, namely the European Union or NATO.
When the system change happened, that was the beginning of what many believe was a difficult transition. What does this latest transition do to the rule of law in a country?
This new constitutional system, and not only the constitution itself, which is not even called a constitution, it’s called the Basic Law, and not even the “Republic of Hungary” which was the case in 1989 when Hungary finally dropped the “People’s Republic” and turned into a real republic. In 2011, with the new Fundamental Law, Hungary dropped from its name “The Republic”. This is a very symbolic change, dropping the republican ideal as well, not only the name. Hungary became a kind of illiberal democracy. But what worries me even more than this change, which is worrisome enough for a constitutional scholar who is really committed to constitutional democracy, is that the people themselves over the last five years did not seem to care about these changes.
Prime Minister Orbán claimed that some revolutionary events happened during the election in 2010, which was a kind of “revolution of the ballot box”. Certainly something happened. And it is not only what I as a constitutional scholar characterize as “backsliding” of constitutional democracy, but certainly, and I have to admit, an acceptance by the population, or at least a significant part of the population, even if it’s not even the majority of the population, because you know in April altogether 26 or 27 percent of the entire Hungarian population voted for the governing party. But still that meant a two-thirds majority of the seats in the Hungarian parliament due to the disproportionate election system, and so on. But still they were the decisive political actor in that election, and they can claim that they are in charge of that country. So, they can certainly argue that the Hungarian voters approved that change of the constitutional system.
So what is wrong? It seems to be a democratically chosen new way in Hungary, not being a liberal democracy any more. This is a very complicated issue and I do not want to give a very simple answer, because I do not know the very reasons. I’m here partly to find out what may have happened in Hungary.
One of the reasons (although I do not fully share this view) is that the change in 1989-90 was very much a kind of elite change in the system of government. The new comprehensively amended constitution in 1989 was a result of some revolution by an elite, both an intellectual elite and a legal elite. Some scholars even characterize this kind of development as a “legalistic constitutionalism” led by those people who were part of the negotiations with the previous Communist Party, the democratic opposition and the conservative-liberal opposition forces and, on the other hand, the Constitutional Court itself, which, from the beginning of its establishment, very much imposed this new liberal democratic constitutional system. So this might be one of the elements.
I try to understand why the people were so dissatisfied with this kind of liberal democracy. Because probably they were not involved in that change. The kind of civil participation in the constitutional making process in 1989 and 1990 and even later on in the 1990s was probably not enough to be a part of a constitutional thinking and building up a constitutional culture for the people.
In 2010 when the Orbán government came and said, “okay, get rid of this liberal democracy” – they did not admit at that time that they were doing that, but as I said just recently the prime minister openly admitted that this was the very aim of the new revolutionary changes — probably for the people it wasn’t that interesting what kind of constitutional system Hungary has.
This is a very interesting point. I don’t think it’s been talked about enough. This transition into a liberal democracy – I don’t want to use the term “illegitimate” – but the parties involved in crafting that change, that was not a bottom-up approach, it was a top-down approach, and there was a level of detachment that may have influenced the public’s semse of being involved.
There were some illegitimate elements in that process in the very beginning. For instance, the so-called roundtable discussions between the Communist Party and the opposition movements,none of them were elected. They reached the compromise about the democratic transition, and the very result of that compromise was a comprehensive amendment to the constitution. The decision was made that this will not even be a new constitution voted by a democratically elected parliament. This was an amendment to the previous Stalinist 1949 constitution which was voted by the Communist parliament. So the decision was made in October or November of 1989 with a totally illegitimate parliament. That is why Viktor Orbán from 2010, but also beforehand in his first governmental term, he always argues “come on, we’ve got a Stalinist constitution!”. So the title of the constitution is still the 1949 constitution and in 1989 it was only an amendment to it.
He knew, of course, because he is a lawyer and an educated guy, that all the major substantive elements of the Stalinist constitution were changed in 1989. But formally speaking, it was the same constitution. So he had a very easy time arguing in 2010 “okay, get rid of this communist constitution”.
Of course, if someone wants to substantively argue “come on, this was the constitution on the basis of which Hungary was admitted to the European Union, according to the Copenhagen criteria”. So everyone knew in Europe this cannot possibly be a dictatorial or Stalinist constitution. But for the majority of the population, this could have been a very convincing argument. “We have to get rid of this old stuff and make a real revolution and a real transition.” This is his terminology: “There was no transition in 1989-90. This is the transition”.
Is there anything that is defining of the Fidesz constitution, that work as a whole?
I’ve already tried to list all the elements of this kind of illiberal parts of the constitutional system which is, again, not only the fundamental law itself, but together with those so-called cardinal laws and amendments to the constitution as an entire system. So this is lacking the major crucial checks and balances and the guarantees of fundamental rights. Let me mention only two fundamental rights which are actually very much limited since the new constitutional system came into force.
One is the freedom of expression and media freedom, with all the institutional system in place where the government actually occupies all the media and all the review of the media. They can check all of the public and commercial media through the system they introduced.
The other element is the lack of religious freedom. If you consider that Fidesz managed to de-register more than 200 churches which were registered originally from the start, from the 1990 religion law with a new system which allows the parliament with a two-thirds majority to decide who is a legitimate church, and who can be the partner of the state as a church, with all of the rights of being a church, and all of the advantages: having state supports, state subsidies, having schools or having other social institutions.
These are really major changes in the system of fundamental rights. There is a very importantnationalist approach in that new constitutional system. Let’s start with the basics. Who is the subject of the new constitution? If you read the preamble of the new constitution, it says all Hungarians irrespective of their citizenship, or irrespective of their residence, which has two implications: One, that this is a kind of ethnic concept of the nation. So Hungarians are those who feel themselves as Hungarians. The negative implication of that is that all those who do not feel themselves as Hungarians despite being Hungarian citizens are not considered as subject of the constitution.
Of course, there is nothing in the text which indicates that they are treated differently. But if you interpret what does it mean being a subject of the constitution not being Hungarian, then it means Roma people in Hungary who identify themselves as Roma and not Hungarians, or Jewish people who happen to identify themselves as Jewish and not Hungarian do not belong to this notion of ethnic nation.
There are representatives of nationalities in parliament. For me as an American I didn’t really understand the reasoning behind that. Can you explain that to me?
From the very beginning of the democratic transition in 1989-90, there was a demand for national minorities can be a real part of the nation. How they can represent themselves in the democratic decision-making process. And there were different kinds of suggestions, which all failed, as to how to involve ethnic national minorities within Hungary. I won’t characterize this kind of attempt to involve ethnic minorities as a ridiculous one. Certainly, the final solution was not satisfactory for any of those ethnic minorities because they failed to reach the threshold for being represented in the parliament.
What is more worrying for me is the overemphasis of the Hungarian nation in the constitution, in the law of citizenship. Ethnic Hungarians not even willing to reside in Hungary or move to Hungary were provided Hungarian citizenship, mostly in the neighboring countries, who lost their Hungarian citizenship due to the Trianon treaty, with the very suspicious aim of being involved in the Hungarian parliamentary election. They were also provided voting rights and, as I mentioned, this was decisive in the general election.
So this is also a kind of very troublesome characteristic of the new constitution. Another one is certainly the emphasis on Christianity and the Christian heritage in the constitution, which, as a historical argument, is totally legitimate. The question comes what does it mean Hungary being “historically a Christian country” when it comes to the interpretation of religions rights, for religious minorities, for instance. As you may know, according to the text of the Fundamental Law, these kinds of provisions in the preamble are also the basis for interpretation by the Constitutional Court.
This was an issue with the church law. There was a very interesting legislative process behind this. The church law was passed. It was changed very quickly right before it was voted on. Then it was passed quickly by the two-thirds (majority). And then the Constitutional Court strikes it down. How does a law that is deemed unconstitutional become constitutional in Hungary?
Unfortunately, it happened not only with the church law but with a lot of other laws. It became a kind of custom in the last four or five years that those decisions of the Constitutional Court—I’m talking about the Constitutional Court before 2013, a more or less independent Constitutional Court between 2010 and 2013—certainly struck down a lot of laws which were enacted by the new majority of the parliament. And the new governmental majority just introduced a practice which is really not a characteristic of a rule of law country. They changed the constitution when any of the laws were struck down by the Constitutional Court, just to overrule Constitutional Court decisions. They put new provisions into the constitution saying this will be the new constitutional rule. The infamous fourth amendment says the Constitutional Court cannot review any constitutional amendment.
That would suggest that any legislative process, even the highest judicial levels, is completely subject to a very political agenda.
I would even argue that this is the loss of constitutionality. In that moment when a constitutional rule can be overruled just because the Constitutional Court has struck down an unconstitutional law, and the constitution making majority, which is the government majority due to the very unfortunate and disproportionate election system, can just change the constitution. This means there is no division between constitutional laws and political laws. All the laws are political, in that respect. Whatever the government intends to do to follow their political aims is subject to a constitutional amendment.
There are no checks and balances in this process.
And there are no divisions between constitutional and statutory law.
What is the difference between them?
Statutory laws, which, in all rule of law countries, are subject to a legislative majority decision, are subject to a constitutional review, the basis of which is the constitution. If the legislature can change the very foundation of the review, the constitution itself, then there is no distinction between those statutes and the constitution, because the same rule applies for the statutory legislative procedure and the constitution making procedure. In that respect, unfortunately, Hungary reached that situation where there is no more constitution as a higher law, higher to any other statutes in the country which should be subject of a review by a constitutional court. Not to speak about the fact that this constitutional court is not an independent body any more.
It seems to me that one of the dangers that a country would face when it reaches this point is that legislation can be enacted arbitrarily. There is no precedent that would prevent any legislation from being enacted.
They also abolished all of the previous case-law of the Constitutional Court enacted before the new constitution came into force, which is the case even when the new constitution has the same wording as the previous one had. If the Constitutional Court ruled something in the mid-1990s, according to the constitutional rule which is still part of the new constitution, this decision is null and void.
Where do we stand now? There is no independence in the Constitutional Court. Previous case law is out the window.
That means the Constitutional Court became a political institution serving entirely the will of the government. And if you study all the decisions made by the Constitutional Court, let’s say since April 2013 (I will explain why this date is crucial) these are all political decisions, at least those decisions which are politically relevant and crucial for the government to win. The 2013 date is important because Fidesz started abolishing checks and balances in the very early stages of 2010. Already in May they changed the system of the nomination and election of the Constitutional Court judges. Previously the case was that the nomination of a Constitutional Court judge needed a consensus in the parliament.
What does that mean, “consensus”?
The governing parties needed some kind of approval by at least part of the opposition parties. So there was a nominating committee which consisted of both governing and opposition parties. And for the nomination to be valid it needed a majority of all the parties, governing and opposition parties. The new rule Fidesz introduced in May 2010 meant that the government alone, without any consent from opposition parties, can nominate Constitutional Court judges. And from 2010 until 2013 all eight, which means the majority, of the Constitutional Court judges were nominated and elected exclusively by the governing party, which means without consensus of opposition parties.
Since that time over the last year or so, twelve of the fifteen judges have already been elected without consensus.
But I’m sure all of these Constitutional Court judges are known for their knowledge of the law.
Unfortunately, not. They started in 2010 with two nominees who did not fulfill even the legal requirement of being a Constitutional Court judge.
So would that mean that their nomination by the governing party was purely politically motivated?
Purely political. For instance, one of the justices was previously head of the first Orbán’s government’s cabinet. Judge Stumpf was nominated despite not being a professor or being a doctor of sciences, which was the legal requirement in the law. And his nomination went through the two-thirds majority of the government because the government party had that majority. And new appointments and nominations are following that rule that not even legal requirements are important, not to speak about the political affiliation of those justices.
Are the nominees brought before a committee and then grilled by members of the committee about decisions they’ve made or positions they’ve assumed on certain legal issues?
It’s very interesting. The latest hearing before that nomination committee was a secret meeting. It was not accessible to the public. They had a secret meeting. The reason given by the government was that the privacy rights of those candidates had to be protected. Seemingly for the past twenty-five years these privacy rights in a hearing were not important. Of course there is no rule about the protection of privacy rights of a public official who is running for a public position. So these nominations are just pure political selections of those loyal to the government.
If this process had to happen now, what would be necessary in order for Hungary to get back on the path to becoming a liberal democracy?
Certainly that kind of procedure which happened in 1989-1990 would not be advisable. Probably an involvement of the public in understanding what a constitutional democracy is about. Explaining to them what the advantages to being a constitutional democracy are, despite the fact that this also meant being a member state of the European Union, or the Council of Europe, or any other communities. Showing them what is at stake to being a constitutional democracy as opposed to the slippery slope of first being an illiberal democracy, as is probably the case of Hungary, or even later being an autocracy like Putin’s Russia or China, just for the sake of some advantages, mostly for the political elite, I’m not an expert in economic issues but I’m afraid the crucial issue here is when the people will understand what a constitutional democracy means for their well-being. If the Hungarian population will understand that, probably we can start again establishing a constitutional democracy.