Fair election? Not a chance

I think it’s time to talk again about the forthcoming election. Or, to be more precise, about the possibility that the current laws and rules and regulations will preclude a fair election. Senator John McCain might talk about international monitoring and Viktor Orbán might gladly agree: no observers will ever find anything wrong in and around the voting stations. The government prepared everything way ahead of time to ensure an almost certain victory for Fidesz. This election, as things now stand, cannot be fair.

One can start with the redrawing of the boundaries of the electoral districts which made sure that earlier socialist strongholds were diluted with areas that vote overwhelmingly for Fidesz. The new electoral system favors the monolithic, highly centralized Fidesz as opposed to the smaller parties of divergent political views that were forced to cooperate in order to have a chance. Then there is the generous government support for any candidate who collects a few hundred signatures to run in the next election. At last count there are 45 such parties already registered with the National Election Committee. Admittedly, these phony parties will take away only a few hundred votes, but in districts where the election is close between Fidesz and Összefogás (Unity) they may help the governing party.

And let’s not forget about the “foreign” vote, especially from Transylvania and Serbia. These new citizens can easily cast their ballots even by mail while the half a million Hungarian citizens by birth who are living abroad cannot do the same. The former are mostly Fidesz supporters while the recent emigrants are a more varied lot politically. Perhaps even the majority  of emigrants would vote against the current government because of their experiences at home which prompted them to leave. And let’s not forget about the Roma population which the government is planning to disenfranchise by urging them to register as members of a minority, an option that would allow them to vote only for the Országos Cigány Önkormányzat (National Gypsy Self-government), an arm of Fidesz.

But this list is nothing in comparison to some of the amendments and local ordinances that seem to be issued every time one turns around. From the start, campaigning was severely limited. For example, commercial television stations couldn’t  show political ads and on the public television stations they were greatly restricted. After pressure from the European Union, the Orbán government “generously” changed the rules: commercial stations could air ads but couldn’t charge for them. The European Union was satisfied. This is one of those occasions when one understands Victoria Nuland’s sentiments. How could they ever agree to this “compromise”? I don’t think that it will come as a great surprise that the commercial stations are not exactly rushing to offer their services. Why should they? Not only would they receive nothing for airing these ads but they would incur the wrath of a vengeful Fidesz.

Then came more restrictions on advertising on streets. In previous years smaller posters carrying the pictures and slogans of candidates could be affixed to electric poles, but now that practice is forbidden. Candidates can still put up huge billboards but again the number of surfaces has been greatly reduced, especially in Budapest where the Fidesz-dominated leadership approved a new ordinance regulating the posting of ads. Even if the opposition parties have the money they will have difficulty making themselves visible. As someone jokingly said, perhaps Összefogás (Unity) will put up posters in apartment staircases because the government and the Budapest city council haven’t yet thought about making them off limits.

And now comes the really clever move. While “political parties” find that their opportunities to advertise their program and their candidates are severely restricted, none of the restrictions apply to “civic organizations.” In reality, we should really talk about only one such organization: CÖF (Civil Összefogás Fóruma). Earlier I wrote about CÖF, an organization that came into prominence about a year ago when the first Peace March took place. The organization of these peace marches must have cost an incredible amount of money, which CÖF cannot account for. It is almost 100% certain that CÖF, through some intermediary, receives its entire budget of millions if not billions from the government. Civic organizations can advertise anywhere at any time. Even before the official election campaign begins, when theoretically at least no campaigning is permitted. In the last few months CÖF has launched two large campaigns. First, against Gordon Bajnai and Ferenc Gyurcsány and, second, against Unity. They put up huge display ads everywhere, including the sides of city buses. Their latest move is campaign literature mailed to every Hungarian household (4 million) in which CÖF tells the voters why the “Gyurcsány coalition” shouldn’t have a second chance.

CÖF is certainly not short of funds

CÖF is certainly not short of funds

The final straw in this series of discriminatory practices was the news yesterday that the government’s slogan “Magyarország jobban teljesít” (Hungary is performing better), with which they plastered the whole country, from here on will be the slogan of Fidesz. The Hungarian government generously allowed the governing party to use its own campaign slogan. Actually, by today the story changed somewhat. According to the latest information, the Fidesz parliamentary delegation paid 200,000 forints (650 euros) for the right to use the slogan in an agreement with the Prime Minister’s Office signed in August 2013. In October the Prime Minister’s Office made a similar deal with Fidesz as a party, but the party didn’t have to pay anything. “Unity” is planning to go to court over this arrangement.

All in all, Fidesz will not have to pay much for its election campaign this year. The taxpayers will foot the bill for CÖF as well as for the slogan by which the Orbán government advertised its own fantastic accomplishments. The slogan, logo, and poster cost the taxpayers 150 million. This figure doesn’t include the fees the government paid for placing the self-congratulatory ad in newspapers and on Internet sites.

So, this is the situation at the moment. The reader can decide how fair an election we can expect on April 6.

Attila Mesterházy and Gordon Bajnai on the campaign trail

I noted yesterday that the election campaign has begun. I should have added that Fidesz has been campaigning from the very moment its government took office in May 2010. With election comes what Hungarians call “the spreading of the goodies,” at least temporarily making the electorate happy so they will support the government at the next election. This practice, which cuts across parties, has been largely responsible for Hungary’s chronic indebtedness and its large budgets deficits. Very often this largesse was financed with borrowed money.

Prime Minister Viktor Orbán swore that it would never happen under his watch that Hungary would borrow money to pay for social benefits. In fact, he was so serious about national indebtedness, which he considers the source of all the ills of the Hungarian economy, that it was written into the constitution that “the Central Budget … will have to ensure that the level of the state debt does not exceed half of the value of the gross domestic product of the previous calendar year.” Right now the national debt is larger than ever and only yesterday the government announced that Hungary had submitted a registration statement to the SEC for the issuance of up to $5 billion in debt securities. This will be the second such bond issue in US dollars this year. I wonder what Viktor Orbán will do if his government is unable to fulfill its constitutional duty with respect to the level of the national debt? It’s not that I fear for Orbán’s political well-being. This government is very inventive, so I’m sure they would come up with something to avoid the resignation of the government.

While the government has the means to distribute money and other perks, the opposition must be satisfied with promises. As has happened in Hungary time and again, these promises turn out to be empty. The 2010 promises of Fidesz, including one million new jobs in ten years, couldn’t be fulfilled. In fact, it was just announced that fewer people have jobs today than a year ago. The Balatonőszöd speech was partly about putting an end to this practice and stop deceiving the electorate. For a while the opposition parties seemed to have paid heed and refrained from falling back on their bad habits. Their politicians kept emphasizing the difficult economic situation and the long road ahead. But as the election gets closer they seem unable to resist the temptation.

So, let’s see who is promising what. MSZP held a huge meeting in Miskolc, a town that was once an MSZP stronghold. The crowd responded enthusiastically when Attila Mesterházy announced that if the MSZP, hand in hand with Együtt 2014-PM, wins the election “the winners will be the children, the youth, the women, the employees, the small- and medium size entrepreneurs, and the pensioners.” In brief, everybody.

Fair enough. Almost everybody would indeed win if Fidesz were sent back into opposition. But what specifically did Mesterházy promise? From September 2014 on students will receive a free education at Hungarian colleges and universities. A year ago the socialists were talking only about a tuition-free first year, after which tuition would be charged based on academic achievement and social needs. But now, it seems, there is no qualification. We know from past experience that the Hungarian budget cannot possibly afford the luxury of totally free higher education.

The socialists also plan to create a situation in which at least one person in each family is employed with a decent salary. I assume that he does not consider the current salary of workers employed in public works projects, which is not enough to keep body and soul together, decent. According to Mesterházy, the desired level of employment can be achieved by abandoning “this idiotic economic policy.”

He promised more money for education and promised to build gyms instead of football stadiums. They will spend more money on healthcare. Unemployment insurance, which was truncated by the Orbán government, will once again be available for nine months. The socialists will make sure that public transportation for people over the age of 65 will be “truly” free. Mesterházy admitted that to achieve all these things one must have robust economic development, but he added that “yes, we will achieve this too.” MSZP wants to modify the across-the-board lowering of utility prices, which currently threatens the industry with bankruptcy. The socialists suggest lowering prices only for those in need. MSZP would also change the tax system and get rid of the flat tax, which has done a lot of damage to the economy.

As you can see, there are plenty of expensive promises here. The healthcare system is in ruins, and it seems that the same is true of education. Even with higher taxation on the “rich,” as Mesterházy called those whose incomes are above average, healthcare and education cannot be salvaged. As currently configured, healthcare is a bottomless pit. Throwing more money into it is no remedy. It’s time for some fresh thinking.



Együtt 2014-PM also began its campaign, and it looks as if the party is concentrating, at least for the time being, on the under-35 generation. The party’s slogan is “Come home, stay home!” According to E14, the flight of young Hungarians is “one of the most serious problems today.” If they win the election they will open offices in each embassy and consulate where they would offer jobs in Hungary for those currently abroad. They would also assist those Hungarians who just finished their studies abroad and would like to return to Hungary. In addition, he promised that “he would guarantee a job or training that would lead to a decent job for all those under the age of 30 who hadn’t had a job in the last six months.”

Bajnai offered up a few numbers. He would spend at least 1% of the GDP on higher education and would again open the doors of colleges and universities to anyone who has the ability. Bajnai also promised 250,000 new jobs in four years. Well, that number is more modest than Orbán’s one million in ten years, but as we know governments cannot create jobs.

It’s not clear whether people actually believe these promises or whether, after all the unfulfilled and unfulfillable promises, they are jaded. Hungarians say they don’t believe politicians, but perhaps their belief is selective. Perhaps they believe promises from which they themselves will benefit and disregard the rest. Perhaps they believe some of the promises of their favorite candidate and none of the promises of the other candidates. Who knows? I doubt they would be honest with pollsters.

At any event, it’s tough to campaign with the message that people should prepare themselves for more lean years when opponents are promising a host of goodies in a “rising tide” economy. People want hope and change and a “yes we can” attitude.  (And a few more forints in their pockets one way or another.)  Disappointment that the government hasn’t delivered sets in only later.  Just ask Barack Obama.

What does the Demokratikus Koalíció stand for?

On September 3, I wrote about an opinion piece by Tamás Bauer, vice-chairman of the Demokratikus Koalíció. Its title was “Electoral mathematics: The Demokratikus Koalíció’s position.” Bauer argued for DK’s right, based on its numerical support, to receive at least 8 or 9 electoral districts. He added that DK’s positions on many issues differ from those of both MSZP and Együtt2014-PM and therefore it deserves a parliamentary caucus.

At the end of that post I indicated that I would like to return to DK’s political program because relatively few people are familiar with it. I had to postpone that piece due to DK’s very prompt answer to MSZP. On the next day, September 4, I posted an article entitled “The current state of the Hungarian opposition: Negotiations between MSZP and DK.”

Over the last few days it has become obvious to me that Ferenc Gyurcsány has already begun his election campaign.  Zsolt Gréczy’s appointment as DK spokesman signaled the beginning of the campaign, which was then followed by several personal appearances by Ferenc Gyurcsány where he began to outline his program. Surely, the amusing video on being a tour guide in Felcsút, “the capital of Orbanistan,” was part of this campaign. So, it’s time to talk about the party program of the Demokratikus Koalíció, especially since only yesterday Attila Mesterházy answered Ferenc Gyurcsány’s letter to him. I elaborated on that letter in my September 4 post.

You may remember that one of the sticking points between the two parties was whether DK is ready to have “an electoral alliance” as opposed to “a political alliance.” Gyurcsány in his letter to Mesterházy made light of the difference between the two, but as far as the socialists are concerned this is an important distinction. Yesterday Attila Mesterházy made that crystal clear in his answer to  Gyurcsány which he posted on his own webpage. According to him, a “political alliance” means the complete subordination of individual parties’ political creeds to the agreed upon policies.  In plain language, DK “will have to agree not to represent its own political ideas during the campaign.”

Since DK’s program thus became one of the central issues in the negotiations it is time to see in what way DK’s vision of the future differs from that of MSZP and Együtt 2014-PM. Here I’m relying on Tamás Bauer’s list of the main differences.

(1) An MSZP and Együtt 2014-PM alliance following an electoral victory will only amend the new constitution and the cardinal laws that are based on this new constitution. The Demokratikus Koalíció, on the other hand, holds that the new constitution is illegitimate because it was enacted without the participation of the opposition. Therefore, according to DK, the new constitution must be repealed and the constitution of the Republic must take its place.

(2) MSZP-E14 by and large accepts the policy of Viktor Orbán on national matters and would allow people living outside of the borders to vote in national elections. The Demokratikus Koalíció rejects this new law and would put an end to these new citizens’ voting rights.

(3) MSZP-E14 does not seem to concern itself with the relation of church and state or the Orbán government’s law on churches. DK would restore the religious neutrality of the state and would initiate a re-examination of the agreement that was concluded between Hungary and the Vatican or, if the Church does not agree to such a re-examination, DK would abrogate the agreement altogether.

(4) MSZP-E14 talks in generalities about the re-establishment of predictable economic conditions and policies that would be investment friendly but it doesn’t dare to reject such populist moves as a decrease in utility prices or the nationalization of companies. Only DK is ready to openly reject all these.

(5) MSZP-E14 accepts the tax credits that depend on the number of children and therefore supports an unjust system. DK, on the other hand, wants to put an end to this system and to introduce a system that treats all children alike.

(6) Együtt2014-PM opposes the concentration of land that is necessary for the creation of  a modern and effective agriculture. The policy of small landholdings was the brainchild of the Smallholders Party, which was largely responsible for the collapse of Hungarian agriculture after the change of regime. MSZP is against foreign investment in Hungarian agriculture. The Demokratikus Koalíció intends to liberalize the agricultural market. DK thinks that agricultural cooperatives should be able to purchase the land they currently cultivate. It also maintains that foreign capital should be able to come into Hungary in order to make Hungarian agriculture competitive again.

(7) The attitude of MSZP and Együtt 2014-PM toward the conflicts between the European Union and the Orbán government is ambiguous, while the Demokratikus Koalíció unequivocally takes the side of the institutions of the Union against the Orbán government.

These are the points that Tamás Bauer mentions. But as the Gyurcsány campaign unfolds more and more differences will be visible. For example, only yesterday Gyurcsány talked about his ideas to abolish the compulsory retirement age and to financially encourage people to demand higher wages in order to maximize their pensions after retirement. During this talk in Nyíregyháza Gyurcsány made no secret of the fact that his party is working on its election program.

So, it seems to me that the Gyurcsány campaign has already begun. Maybe I’m wrong and Gyurcsány will give up all his ideas and will line up behind MSZP-E14, but somehow I doubt it. Even if he tried, he couldn’t. Temperamentally he is not suited for it.

Meanwhile, an interesting but naturally not representative voting has been taking place in Magyar Narancs. Readers of the publication are asked to vote for party and for leader of the list. DK leads (52%) over Együtt 2014 (29%) and Gyurcsány (54%) over Bajnai (32%). Of course, this vote in no way reflects reality. What it does tell us is that the majority of readers of Magyar Narancs are DK supporters. Something that surprised me. If I had had to guess, I would have picked Együtt2014.

As for Ferenc Gyurcsány’s visit to Felcsút, I wrote about it a couple of days ago. The video is now out. This morning I decided to take a look at it because from Zsolt Gréczy’s description on ATV’s Egyenes beszéd the whole scene of Fidesz cameras following them everywhere sounded hilarious . At that time the video had been viewed by about 5,000 people. Right now the number of visitors is over 53,000.

Clips from The Godfather are juxtaposed with scenes from Felcsút. The video ends with the wedding of Vito Corleone’s daughter. While Gyurcsány is narrating the enrichment of the Orbán family, two people, one of whom is the Fidesz regional secretary and the other perhaps the cameraman of the Puskás Academy, follow him everywhere and record his every move and word. Definitely worth seven minutes of your time.

Since I am no fortune teller I have no idea what will happen. A couple of things, though, I’m pretty sure of. DK will never agree to drop Gyurcsány as their party leader. And Mesterházy indicated that this might be one of the MSZP demands for an agreement. Or at least that Gyurcsány not be DK’s top candidate, or possibly any candidate. Otherwise why would he have asked: “Are those media predictions that the Demokratikus Koalíció plans to nominate the chairman of the party, Ferenc Gyurcsány, for the second slot on the list true?”

At first reading I didn’t notice this linguistic oddity. The letter is addressed to “Dear Mr. Party Chairman, dear Feri” and continues in the second-person singular: “te.” Now that I returned to the sentence in order to translate it, suddenly I noticed that Mesterházy switched from “te,” which in a personal letter would have been normal, to “Ferenc Gyurcsány” in a letter addressed to Ferenc Gyurcsány.

What will the final result be? I have no idea. Let’s put it this way, it’s much easier to predict the outcome of Hungarian soccer matches than the outcome of opposition politics.

Another Friday morning “non-threat” from Viktor Orbán

According to some analysts, Viktor Orbán’s latest Friday morning interview was perhaps one of the most revealing and most frightening. On such occasions the prime minister sometimes unwittingly reveals facts about himself and the country that would perhaps best remain hidden.

I already mentioned his inappropriate quip about the unwelcome German tanks in 1944. He went on to make a “non-threatening” remark about those who do not embrace Fidesz. In connection with the clearly fraudulent tobacconist shop concessions, he said: “I am a mild-mannered person, so I am not saying this to threaten anyone, but if we wanted to enforce political considerations in such a tender, there would not be a single left-wing winner.” As Erik D’Amato wrote on,  “if Viktor Orbán wanted to he could crush you like an ant, but he won’t, because he’s chill.”


Threat /

Orbán again beat the drum about his government’s accomplishments, starting with the country’s fantastic economic achievement that by now “the whole world recognizes.” Please, anyone who’s heard such praise, stand up! I also learned from this interview that Hungary’s economic growth was respectable in 2011 but then came a “second wave of economic crisis in Europe” that caused all the trouble in Hungary. Thus, the Hungarian government’s unorthodox policies had nothing to do with the recession that followed two years of small economic growth.

Orbán actually boasted about his illegal seizure of private pension accounts from millions of citizens when he described how “we reorganized the system of pensions and took away the money from the financial markets,  taxed the banks, forced the multinationals to pay taxes.” He admitted that he could do all that because of his party’s super majority. The truth? The pensions were taken away from the people and not the markets. Both the banks and the multinationals had paid taxes before; what he and his right hand, György Matolcsy, did was to levy crippling additional taxes on them.

The untrue statements didn’t end here. Orbán claimed that the European Union wants to force the Hungarian government to “take away from ordinary people … lower pensions … lower social welfare, decrease child support.” Orbán categorically stated that he will never satisfy such demands from the European Union because they amount  to an austerity program, a concept whose very mention is forbidden by Fidesz.  But the fact is that every time the chips were down Orbán gave in to the demands of the European Union concerning the budget deficit. Except the Orbán government refuses to use the word “austerity” (megszorítás). All sorts of other words are substituted for the austerity packages that followed each other in rapid succession throughout 2011 and 2012. One of these synonyms is “zárolás” (sequestration, freezing of funds), which according to Orbán “doesn’t take money away from people.” So, if the Ministry of Human Resources must spend less on education or healthcare it does not affect, according the economic wizardry of the Hungarian prime minister, the well being of the country’s citizens.

It is also clear that Orbán is unwilling to begin serious structural reforms. If Hungarians don’t like to hear about austerity they are equally leery about “reforms.” Their experience in the past has been that reform means a diminishment of their income or their access to social welfare benefits. Instead, Orbán is ready to contemplate such suggestions as spending less on government bureaucracy, further raising taxes on banks and the multinationals, and even increasing the transaction tax rate “if the European Union insists on a lower deficit.”

And finally, a few words about Viktor Orbán’s attitude toward his own role as prime minister of the country. Ever since 2002  Orbán has often repeated that “the nation cannot be the opposition.” He equates his own political side with the nation. Those who have a different set of political views are outside of the nation. At the end of the interview this interpretation of his own role became clear: he considers himself the prime minister of those who are Fidesz supporters.

I already mentioned this gentle soul’s words about his limitless power to grant tobacconist licenses based on political considerations. Orbán explained further: “I would like to make it perfectly clear that I will never turn my back on our supporters. Why is it wrong if entrepreneurs who share our values and otherwise fulfill the requirements win these tenders?… To turn our backs on our own voters, our followers (hiveink), our supporters just because we politicians will receive less criticism  this way, that I will never accept. We have to endure these criticisms because if our followers cannot count on us, who can?”

It’s no wonder that last night Ágnes Vadai (DK) in an interview on Egyenes beszéd kept referring to Viktor Orbán as “the man who calls himself Hungary’s prime minister.”

Greed might be the undoing of Viktor Orbán and his regime

Today I’m going to look at two corruption cases that might have serious consequences for the Fidesz empire in Hungary. The first is the “seizure” of the profitable retail tobacco market and its redistribution among friends and families of Fidesz politicians. It seems that the government may have gone too far here; there are signs of internal party opposition. We know only about small fry at the moment, but that doesn’t mean that dissatisfaction isn’t present in the highest circles of the Fidesz leadership.

The other scandal is not new at all. For years Közgép, a company owned by Lajos Simicska, a childhood friend of Viktor Orbán, has won practically all government projects financed by European Union subsidies. But it came to light only now that Brussels suspended payments on two very important “operative programs,” one dealing with the environment and energy and the other with transportation.

First, the response of  two party faithfuls to the tobacco shop scandal. On April 26 HVG received a letter from a Fidesz city council member in which he said that in his town the Fidesz members of the council decided who would get the tobacco concessions. At that point the informer didn’t want to reveal his identity, but two days later he was ready to give an interview, name and all. It is a long interview from which I will quote the key sentences.

Ákos Hadházy is a veterinarian in Szekszárd, the county seat of Tolna. He considers himself to be a conservative, but “this tobacconist shop-affair broke something in [him].” The Fidesz members of the council looked at all the applicants and suggested who should get favorable treatment.” Mostly friends and relatives. Hadházy struggled with his conscience. He felt that the way the selection was made was wrong, but at the same time he realized that “many would consider revealing his doubts a betrayal” of his party. Finally he decided that although “perhaps in the short run the party might lose a few percentage points, in the long run these revelations might actually be good for this party.”

In his opinion “the 2010 landslide victory was a fantastic opportunity, but at the same time such a large victory is harmful for a party.” A well functioning opposition is “a basic necessity…. If there is no opposition, sooner or later [the party leadership] will be unable to control [its] own decisions. There will be no reaction when [they] make wrong decisions.” Unfortunately this is what happened in Fidesz’s case.

Hadházy even went further and announced that the problem is that there is no opposition within the party either. The members of parliament are no more than voting machines because after 2014 there will be fewer seats available and naturally everybody would like to keep his job. “One can’t expect negative opinions from them…. If there are no debates within a party … then there are only two possibilities: either [the party] does something fantastically well or something is not right.” Most often decisions are unanimous. Ordinary party members are not consulted. Maybe once a year there is a meeting of the local party members, but that’s all.

corruption2Fidesz is indeed a very disciplined party, but he thinks they “went too far.” Such discipline was fine when Fidesz was in opposition. Then “the para-military structure was acceptable, but when in power the party should have moved in a more democratic direction.” Hadházy believes–I think wrongly–that Fidesz has fantastic “intellectual capital” but doesn’t try to use this capacity and doesn’t listen to them. “This in the long run is a suicidal strategy because the members of the intelligentsia  are the ones who can influence public opinion.”

As far as he is concerned there are two possibilities: the party will not take kindly to his going public and then his political career will be over. If, on the other hand, he is spared he “will be very glad to know that Fidesz is full of real democrats, even if this is not always evident given how decisions are made now.”

The other rebel is András Stumpf of the pro-government Heti Válasz.  Don’t think that András Stumpf is a “soft” Fidesz supporter. He is no Bálint Ablonczy, another reporter for the same weekly, who is a moderate right-winger. Stumpf is pretty hard-core. He aggressively defends the government at every opportunity–for instance, when he appears on ATV’s Start. Even in this critical article he expresses his belief that Sándor Laborc of the Office of National Security hired Tamás Portik to spy on the opposition, meaning Fidesz. Yet it seems that the tobacconist concessions and the amendment to the Freedom of Information Act were too much for him. Not even he believes that the quickly amended piece of legislation has nothing to do with the concessions and the government’s attempt to hide the truth from the public. In Stumpf’s opinion, the amendment is most likely unconstitutional and what the government is doing is “frightening.” If they have nothing to hide, make the documents public.

Moving on to the withheld EU payments, a new internet website,, published an article entitled “Secret war between Budapest and Brussels” on April 30. According to the article, last summer the European Union suspended payment for cohesion fund projects. The apparent reason was that Brussels discovered that there is discrimination against foreign engineers. Only engineers who belong to the Hungarian Society of Engineers can be hired.

With due respect to the journalist of, I can’t believe that this is the real reason for the suspension of billions of euros. Instead, I recall that about a year ago Ferenc Gyurcsány’s Demokratikus Koalíció turned to the European Anti-Fraud Office (OLAF) to call attention to the fact that Közgép, Simicska’s company, had received an incredible number of government contracts, all financed by the European Union. The suspicion is that Közgép through Lajos Simicska is actually owned by Fidesz. Or at least a substantial percentage of  its profits ends up in party coffers. I remember that sometime during the summer of 2012 OLAF’s investigators took possession of Közgép’s computers. I suspect that the suspension of funds has more to do with Fidesz government corruption than with discrimination against foreign engineers.

By now opposition politicians are openly accusing Közgép of being a front for Fidesz. Gábor Scheiring (PM) said that “the essence of Lajos Simicska’s firm … is financing Fidesz from its profits.” Gyurcsány considers “Lajos Simicska  the most notorious and most influential person in Fidesz and the business establishment built around it.” László Varju, the party director of DK, in one of his press conferences talked about the need to investigate the possible “role of [Közgép] in the financing of the government party.” If it could be proven that Közgép and Simicska are just a front for Fidesz, Orbán might find himself and his party a lot poorer.

The tobacco concessions and their aftermath: Further restrictions on transparency

The tobacco concessions scandal is growing. By now there is even a Google Earth map of the country with a guide to all those places where Fidesz politicians, their close relatives, or known sympathizers received permission to open tobacconist shops. That there were political grounds for these awards is not speculation. János Lázár and Antal Rogán explained to the local Fidesz politicians on what basis the concessions should be awarded. Apparently, anyone with either MSZP or Jobbik ties was out of luck.

When the government first announced the so-called competition for concessions, applicants had to draw up their business plans assuming a 4-5% profit margin. Not exactly a potential goldmine. Yet there were a great number of people who seemed to be interested in this business opportunity. Among them were several who applied for concessions for several stores. The suspicion is that the insiders most likely knew that the government would do something to sweeten the deal. And indeed, after the winners were announced an amendment was tacked on to the bill that suggests a profit margin of at least 10%. A day later Viktor Orbán talked about the desirability of a 12% profit margin. If the amendment is approved, the price of cigarettes will go up.

In one of my earlier posts I mentioned that between the two world wars these concessions were normally given to war widows. This was also the case after World War II. Naturally, even then one had to have “connections” in higher places. Endre Aczél, one of the best journalists of the older generation, recalls that his mother was lucky to be granted one of these concessions in 1948 but only because she was the childhood friend of Júlia Földi, better known as Mrs. László Rajk. As we know, Rajk, after being accused of all sorts of treasonous activities, was executed on October 15, 1949. In 1950 someone discovered that a Rajk-protege still had a tobacconist shop, and she was summarily booted out. But at least, as Aczél says in the article, his mother was a war widow. Fidesz rulers don’t even worry about the stated aims of the legislation. They feel they can do anything. And they are right. They can.

However, now that everybody is up in arms and the media will undoubtedly demand information on the details of the concessions, the government decided in a great hurry to amend a law on data privacy. Here is a quick report from Budapest:

The amendment prevents the FOA (Freedom of Information Act Provisions on Data Privacy) from applying to material that is reviewed by the state audit office and the government accountability office.  The reasoning behind the law is that government agencies are already overburdened and fulfilling data requests would be too strenuous. The amendment also states that if another law already regulates the right to information and to accessing, reviewing or copying the documents then the data privacy law does not apply. [The law seems to] exempt some requests from judicial review by the courts.  Furthermore, the law requests that entities that use public money to provide information to the public. However, the amendment now requires that people turn to the body with legal oversight over the entity with complaints if a data request is rejected. The problem here is that in some cases the legal oversight is practiced by courts specializing in business litigation, which are not equipped to judge matters pertaining to FOA.

For one reason or another this tobacco concession business must be very important to Fidesz and Viktor Orbán himself. But I wonder whether the party and the government might be paying too high a political price for material gain. The number of smokers in Hungary is among the highest in Europe. The statistics I checked mentioned 38% in the population as a whole. That is being translated by others as close to 50% of the adult population. The sharply reduced opportunities to buy cigarettes will inconvenience this large group of people who might not care much about democracy and the constitution but will be mighty upset when in the middle of the night they will not be able to buy a pack of cigarettes at the next gas station. And what about those 1,400 small hamlets where most likely there will be no permanent tobacconist shop? And let’s say that the price of cigarettes also goes up as a result of making the sale of tobacco products a state monopoly. All in all, I suspect that Fidesz will lose voters as a result of this move.

Although the Hungarian government inquired in Brussels about the reaction of the European Union to the concession scheme, I consider it possible that, after seeing that currently functioning tobacconists are being deprived of their livelihood, the lawyers of the Union might not find the concession scheme as innocent as it looked a couple of years ago.

It is also possible that the way Fidesz as a party got involved with awarding the concessions might be unconstitutional. I wouldn’t be at all surprised if Máté Szabó, the ombudsman, turned to the Constitutional Court.

In addition, there are signs of possible cracks in Fidesz’s armor. At least one rebel raised his naive voice about the state of the party. He even went so far as to question the benefits of unlimited power. We will see what happens to the good veterinarian who is worried about his party. In the past he would have been dropped immediately, but today he may be left alone. Perhaps Viktor Orbán will decide that chastising him would only add oil to the fire.

Hungary’s “national tobacco shops.” Who are the happy recipients of the concessions?

In February 2012 I wrote a post on “Fidesz, the tobacco monopoly, and the tobacco industry’s lobby.” That was when the Hungarian parliament voted to make tobacco a state monopoly. Since then there have been several amendments to the bill, which originally stipulated that the newly established National Tobacco Shops could sell only tobacco products. The changes were necessary because it soon became evident that, since the profit margin on tobacco products is thin, the people who successfully bid to open such a store couldn’t make a living solely from selling cigarettes. Bit by bit other products were added to the list: alcoholic and non-alcoholic beverages, energy drinks, lottery tickets, and newspapers. But even with the added product lines there were not too many takers, especially in smaller villages.

According to the law one tobacco shop is supposed to serve 2,000 inhabitants. Currently around 40,000 stores sell cigarettes, but because of the above restriction there will only be about 7,000 stores where people can buy tobacco products. Last February I wrote that when I first heard about this scheme “I envisaged 7,000 pro-Fidesz Hungarians as the lucky recipients of these concessions.” Well, not quite. Second-tier party members and their families will be able to establish a number of stores in areas where the financial benefits of the concessions are more or less guaranteed. Meanwhile, in 1,400 smaller communities there were no applicants. Come July, there might not be a single tobacco shop in places like Herend (pop. 520).

by ur1336 / Flickr

by ur1336 / Flickr

The original justification for the establishment of these tobacco shops was that they would assist large families, would give young mothers just returning from maternity leave some extra income, and would provide a living for some of the otherwise unemployed. The final list of recipients tells a very different story.

Doctors who are supposed to tell people about the deadly results of smoking are eagerly participating in this new business opportunity. On paper one person can have only five stores, but there are many cases in which members of the same family applied for and won concessions. In Esztergom, out of the possible sixteen tobacco shops, ten went to one family, judging from the family name that is not exactly common, Sóron. Ádám Sóron received four, Tibor Sóron one, Mrs. Tibor György Sóron five! For the time being we don’t know what the connection is between Fidesz and the Sórons, but I think it is only a question of time before all will be clear.

Another alleged reason for establishing these tobacco shops was the government’s desire to decrease the number of smokers in Hungary. The bill that was passed last year stipulates that no tobacco product can be sold to a customer as long as there is an underage (18 years) child  in the shop. (Let’s not go into how stupid that idea is!) But then, what do I read? The nineteen-year-old Bence Hídvégi, son of the Fidesz mayor of Fonyód, received permission to operate three tobacco shops, two in Fonyód and one in Balatonfegyves. One day his presence in a tobacco shop would have brought business to a screeching halt; the next day he can run the show.

And while we are on the topic of teenage smoking and the number of retailers, it seems that there is no direct correlation between the two. Austria is a prime example. The highest number of teenage smokers in all of Europe can be found there, and the owners of Austria’s 8,000 tobacco shops are the leading lobbyists against any kind of anti-smoking legislation. Moreover, Austria’s overall standing in Europe as far as tobacco consumption is concerned doesn’t support the notion that fewer tobacco shops will result in lower figures. In Hungary the percentage of smokers in the population as a whole is 38%;  in Austria, 34%. Not a huge difference. Moreover, in both countries the numbers are growing.

The real reason for making tobacco a state monopoly was to help domestic tobacco companies. János Lázár, who came up with the idea of national tobacco shops, relied heavily on the “advice” of Continental Zrt. Continental has only about a 10-15% share of the very large tobacco market. The legislation was most likely written with a view to giving an advantage to Continental and discriminating against foreign companies like Philip Morris, British American Tobacco, and Imperial Tobacco. With tobacco as a state monopoly the Hungarian state could decide which products it would stock, and presumably the price of these products, in the tobacco shops.

The Orbán government used Austria as its model, but the Austrian model was flawed–not only in terms of public policy but also with respect to the state monopoly issue. Austria had its own troubles when European Union requirements changed in 1998 and Austria was forced to partially privatize Austria Tabak, the state monopoly that had dominated the Austrian tobacco industry until then. Something quite similar could befall Hungary.

And what has happened to the owners of Hungary’s private tobacco specialty shops? I read about a place, “Ági trafik” in Budakalász, whose owner has had his shop since 1972. His grandfather’s tobacco shop was nationalized in 1950, but twenty-two years later he began anew. He has a sister who is paralyzed. Now he is ruined. He put in an application but didn’t receive a concession. According to some estimates, practically all of the private tobacco shop owners were dispossessed. One owner was approached by two different men who asked him to rent his shop to them. You can imagine how he feels.

Fidesz managed to kill two birds with one stone. They are helping the Hungarian-owned Continental Zrt. carve out a larger share of a lucrative market and, by setting up tobacco shops as state concessions, they are spreading government largess among their followers. Multinational companies and Hungarian private enterprise will once again suffer; Orbán will further extend his economic reach.

Testimony of Sylvana Habdank-Kołaczkowska, Freedom House

Testimony of Sylvana Habdank-Kołaczkowska

Director for Nations in Transit, Freedom House

before the

U.S. Helsinki Commission

Senator Cardin and Congressman Smith, thank you for this opportunity to appear before the commission and discuss recent developments affecting civil society in Hungary. The topic is one of pressing importance, not only for democracy in Europe, but for the fate of similar young democracies around the world.

Freedom House’s annual Nations in Transit report, which focuses specifically on democratic governance in the postcommunist world, and our global surveys Freedom in the World and Freedom of the Press have all drawn attention to the vulnerabilities and potential threats to democracy created by legislative changes affecting Hungary’s media sector, data protection authority, and judicial system. We remain deeply concerned by the restructuring and restaffing of Hungarian public institutions in a way that appears to decrease their independence from the political leadership. The ongoing use of Fidesz’s parliamentary supermajority to insert these and a surprising array of other legislative changes into Hungary’s two-year-old constitution is also extremely troubling, particularly because some of the measures had already been struck down by the Constitutional Court.

I was asked to comment specifically on recent Hungarian media regulation and the law on churches, which I will do briefly now.

Changes introduced in 2010 consolidated media regulation under the supervision of a single entity, the National Media and Infocommunications Authority, whose members are elected by a two-thirds majority in parliament. A subordinate body, the five-person Media Council, is responsible for content regulation. Both the Media Authority and the Media Council currently consist entirely of Fidesz nominees, and they are headed by a single official who has the authority to nominate the executive directors of all public media. The head of the Media Authority and Media Council is appointed by the president for a nine-year term. This year, the government responded to criticism of the appointment process by introducing term limits and minimum background qualifications, but those will only take effect when the current officeholder’s term expires, six years from now.

The particular issues of concern to us are the broad scope of regulatory control and content requirements (for example, the definition of “balanced” reporting) and the lack of safeguards for the independence of the Media Authority and Media Council.

Under the revised version of the so-called Hungarian Media Law, the Media Council is officially responsible for interpreting and enforcing numerous vaguely worded provisions affecting all print, broadcast, and online media, including service providers and publishers. The council can fine the media for “inciting hatred” against individuals, nations, communities, or minorities. It can initiate a regulatory procedure in response to “unbalanced” reporting in broadcast media. If found to be in violation of the law, radio and television stations with a market share of 15 percent or higher may receive fines proportional to their “level of influence.” These fines must then be paid before an appeals process can be initiated. Under the Media Law, the Media Authority can also suspend the right to broadcast.

The Media Council is also responsible for evaluating bids for broadcast frequencies. Freedom House applauds the council’s recent decision to grant a license to the opposition-oriented talk radio station Klubrádió for its main frequency, in line with a recent court ruling. However, we regret that it took nearly two years and four court decisions for the council to reverse its original decision, during which time the radio station operated under temporary, 60-day licenses and struggled to attract advertisers. The episode has cast a shadow on public perceptions of the Media Council, even among those who were previously prepared to believe that a one-party council could function as a politically neutral body.

In 2011, the Hungarian National News Agency, MTI, became the official source for all public media news content. The government-funded agency publishes nearly all of its news and photos online for free, and allows media service providers to download and republish them. News services that rely on paid subscriptions cannot compete with MTI, and the incentive to practice “copy-and-paste journalism” is high, particularly among smaller outlets with limited resources. The accuracy and objectivity of MTI’s reporting has come under criticism since the Orbán government came to power in 2010. Under the Media Law, the funding for all public media is centralized under one body, the Media Service Support and Asset Management Fund, supervised by the Media Council.

Hungary’s Constitutional Court has attempted to push back against some of the more problematic legal changes introduced since 2010. At the end of 2011, it annulled several pieces of legislation affecting the media. For example, it excluded print and online media from the scope of the sanctioning powers of the Media Authority; revoked the media authority’s right to demand data from media service providers; deleted a provision limiting the confidentiality of journalists’ sources; and eliminated the position of media commissioner, an appointee of the Media Authority president with the power to initiate proceedings that do not involve violations of the law but can nevertheless be enforced by fines and sanctions. These revisions, most of which were confirmed by the parliament in May 2012, represent only a small fraction of those recommended by the Council of Europe. Moreover, they may not even prove permanent, given the government’s recent habit of ignoring or overruling Constitutional Court decisions by inserting voided legislation into the constitution.

This seems likely to be the fate of the law on churches, which the court struck down last month, but which has already made a reappearance in a proposed constitutional amendment that is currently under consideration. The law essentially strips all but 32 religious groups of their legal status and accompanying financial and tax privileges. The over 300 other previously recognized groups are allowed to apply for official recognition by the parliament, which must approve them with a two-thirds majority.

It should be noted that the previous regulations were quite liberal, with associated financial benefits fueling an often opportunistic proliferation of religious groups over the last two decades. However, the new law has the potential to deprive numerous well-established and legitimate congregations of their official status and privileges. More fundamentally, the law represents another instance in which the parliamentary supermajority has given itself new power over independent civil society activity. The fact that the parliament will have the right to decide what is and is not a legitimate religious organization is without precedent in postcommunist Hungary.

Many of the areas targeted for reform by the Orbán government, including public media, health care, the education system, and even electoral legislation, were in need of reform long before the April 2010 elections brought Fidesz to power. No government until now has felt emboldened or compelled to address so many of these problem areas simultaneously. However, speed and volume in lawmaking cannot come at the expense of quality, which only broad consultation and proper judicial review can ensure. Nor should reforms create hierarchical structures whose top tier, again and again, is the dominant party in parliament. Voters can still change the ruling party through elections, providing some opportunity for corrective measures, but the ubiquitous two-thirds majority thresholds in recent legislation make it extremely difficult for any future government to tamper with the legacy of the current administration.

Ongoing economic crisis and political frustration in Europe are likely to yield other governments that feel empowered to reject international advice, make sweeping changes that entrench their influence, and weaken checks and balances, damaging democratic development for many years to come. But such behavior can be deterred if early examples like the situation in Hungary are resolved in a positive manner.

The threats to democracy that Freedom House has observed in Hungary are troubling in their own right, but they are particularly disturbing in the sense that the United States has come to rely on the countries of Central Europe to help propel democratization further east, and indeed in the rest of the world. The idea that these partners could themselves require closer monitoring and encouragement bodes ill for the more difficult cases in Eastern Europe and the Caucasus. It is therefore essential that the United States and its European counterparts closely coordinate their efforts to address backsliding in countries like Hungary and support them on their way back to a democratic path.

Thank you.

Testimony of H. David Baer, Texan Lutheran University, for the Record

Testimony Concerning the Condition of Religious Freedom in Hungary, submitted to the U.S. Commission on Security and Cooperation in Europe (the Helsinki Commission) by H. David Baer, Texas Lutheran University, March 18, 2013

Changes in Hungary’s religion law, 2011-2013


In July 2011, Hungary’s Parliament passed Act C of 2011 “on the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities.”  Act C of 2011 was a cardinal law, requiring a 2/3 parliamentary vote to be passed or amended.  However, the law was passed through a highly irregular parliamentary procedure inappropriate for legislation on such a fundamental matter as religious freedom.  An initial bill was brought to the floor by a representative of the Christian Democratic People’s Party (KDNP), a coalition party in the ruling government, but two hours before the final vote, a member of Fidesz, János Lázár, proposed an amendment from the floor that changed the bill in its entirety.  Lázár’s surprise version of the bill was debated on the floor for two hours and passed by Parliament.

On December 19, 2011, the Constitutional Court struck down Act C on the basis of a narrow objection to the irregular procedure by which the law was passed.  Three days later, on December 22, a new religion bill essentially identical to Act C was submitted to Parliament’s Committee on Constitutional, Legislative and Judicial Matters (Alkotmányügyi, igazságügyi és ügyrendi bizottság).  The Constitutional Committee discussed the bill from 9:09 to 9:53 a.m. and then forwarded it to Parliament, where debate was taken up and closed the very same day.  Although representatives in Parliament had less than 24 hours to consider the contents of the bill and propose amendments, it was passed as Act CCVI of 2011 and went into effect January 1, 2012.

Act CCVI of 2011 introduced an elaborate registration procedure for legal recognition of churches.  The Act stipulates that religious groups seeking legal recognition must conform to numerous criteria, almost all of which are problematic.  Some criteria presuppose a substantive definition of religion that is biased toward Christianity.  For example, groups seeking legal recognition need to have “a confession of faith and rites containing the essence of its teaching.”  Although this criterion may be appropriate for what are called “orthodox” religions, that is, religions like Christianity which emphasize confessional and official teaching, it is hardly appropriate for what are called “orthoprax” religions, that is, religions like Judaism and Buddhism which emphasize religious practices but do not produce authoritative confessions. Other criteria are excessively burdensome.  For example, groups seeking legal recognition need to have been “operating internationally for at least 100 years or in an organised manner as an association in Hungary for at least 20 years.”  Some criteria are sweepingly vague.  For example, the activities of a religious group seeking registration cannot be contrary to the Hungarian constitution – a constitution, one might add, that has already been substantially amended four times in a single year.

According to the Act, legal recognition to churches is granted only by a 2/3 vote of Parliament.  However, even in cases where a religious group meets all of the criteria enumerated in the law, Parliament is not required to grant that religious group legal recognition.  Tamás Lukács, chair of the parliamentary Committee on Human Rights, Minority, Civic and Religious Affairs (Emberi jogi, kisebbségi és vallásügyi bizottság), has stated repeatedly that religious groups do not have a right to be legally recognized as a church or religious community, but that legal recognition is a matter of political discretion.  In Lukács’s view the state is free to refuse recognition to religious groups even in cases where they meet all the criteria enunciated in law.  Importantly, the Committee on Human Rights which Lukács chairs has been responsible for determining whether applications by religious groups for legal recognition are forwarded to Parliament.  Thus Lukács’s views on these matters are of consequence.

When Act CCVI of 2011 was first passed, Parliament recognized only 14 churches/religious communities, all of which were either Christian or Jewish.  In February 2012, perhaps in response to international pressure, Parliament recognized an additional 13 groups, including Muslims, Buddhists, and smaller Christian groups, thereby raising the number of recognized churches to 27. (Numerous reports have listed the number of accepted churches as 32.  However, Act CCVI of 2011 and its “annex” list a total of 27 churches.  Five Buddhist communities merged and were recognized collectively as one church in the law.  If one incorrectly adds those five Buddhist groups separately to the list of 27 accepted churches, one gets 32).  Act CCVI of 2011 also stripped all religious groups not recognized by Parliament of legal standing, forcing them to apply for recognition as civil associations.

Criticisms of Hungary’s religion law

In March 2012, the European Commission for Democracy Through Law (Venice Commission) issued an opinion on Act CCVI of 2011.  Although the Commission raised questions about many aspects of the law, its most severe criticism was directed against the procedure by which Parliament determined legal recognition.  According to the Venice Commission:

the recognition or de-recognition of a religious community (organization) remains fully in the hands of Parliament, which inevitably tends to be more or less based on political considerations.  Not only because Parliament as such is hardly able to perform detailed studies related to the interpretation of the definitions contained in the Act, but also because this procedure does not offer sufficient guarantees for a neutral and impartial application of the Act. . . .Motives of the decisions of the Hungarian Parliament are not public and not grounded.  The recognition is taken by a Parliamentary Committee in the form of a law (in case of a positive decision) or a resolution (in case of a negative decision).  This cannot be viewed as complying with the standards of due process of law. (Opinion 664/2012 par. 76-77).

In fact, as Tamás Lukács pointed out in the Hungarian media, since church recognition is a matter of political discretion, members of Parliament are not even required to offer reasons related to the criteria enumerated in the law for refusing recognition to a religious group.

That members of Parliament do not feel constrained by the criteria set forth in Act CCVI of 2011 was made clear in a meeting of the Committee on Human Rights, Minority, Civic and Religious Affairs held on November 27, 2012.  The Committee considered and rejected an application for recognition by a Christian group named Lectorium Rosicrucianum.  The publicly available minutes from this meeting indicate clearly that members of the Committee did not make their evaluations on the basis of the criteria enunciated in Act CCVI of 2011.  Mária Wittner, a member of Fidesz, reasoned against legal recognition on the following grounds:

There was a time when we were considered pagans; yet we weren’t pagans – we believed in one God. Then came the Reformation, the Reformed Church, then the Lutheran, and churches have multiplied, even though there is only one God. Well, even though I don’t believe that this association will be able to attract many members in Hungary, I still believe that sects should not be considered churches. I don’t know for what purpose or whether it is to reach worldwide hegemony, but I see that the tendency today, even in religion, is to divide and conquer! We have Christianity here, we have a Catholic Church, which is more than two thousand years old and has existed in Hungary for a thousand years, and we have a reformed Church as a result of the Reformation, but what I was most struck by is that 187 churches have been registered in this country since 1990. Gentlemen! There is only one God! One God! (EMB/147-1/2012, page 11).

The inappropriate character of this reasoning will be apparent to everyone.  The point to emphasize, however, is that Act CCVI of 2011 allowed reasoning of this sort to be the basis for determining whether or not a religious group received legal recognition.

The troubling features of Act CCVI of 2011 led Hungary’s ombudsman to file a petition with the Constitutional Court, and numerous deregistered religious groups also filed petitions.  On February 26, 2013, in a substantial and carefully reasoned decision, Hungary’s Constitutional Court struck down as unconstitutional numerous provisions within Act CCVI of 2011.  Article 7 of Hungary’s new constitution guarantees religious freedom.  Article 15 guarantees equality under the law.  Articles 24 and 29 guarantee each citizen the rights of due process and legal redress.  Thus a religious association of Hungarian citizens has an equal right to apply for recognition as a church by means of a procedure that follows due process and ensures the right of legal redress.  The provisions for recognition set forth in Act CCVI of 2011 failed to do this.  Thus the Court struck down those parts of the Act in which Parliament had determined legal recognition of religious groups.

Fidesz’s response to this, as to other decisions of the high court, has been to amend the constitution.  The controversial fourth amendment, passed on March 11, grants Parliament the authority to determine which religious groups are recognized as churches by changing the text of article 7 on religious freedom.  The provision of Act CCVI of 2011 most severely criticized by the Venice Commission has now been written into the Hungarian constitution.  Reconciling Parliament’s power to bestow legal recognition with the rights of due process and legal redress will be a challenge.  Furthermore, article 7 allows Parliament to decide not only the content of the law concerning religious freedom, but also its application in individual cases.  Such a provision would appear in tension with the separation of powers principle enshrined in article C of Hungary’s constitution.

Impact of Hungary’s religion law on unrecognized religious groups

In addition to undermining principles of constitutionalism, Act CCVI of 2011 has had a significant impact on religious groups not legally recognized by Parliament.  As a consequence of the Act numerous religious communities that had been legally recognized as churches prior to 2011 were stripped of their status.  Indeed, Act CCVI of 2011 completely replaced the legal regime that had governed religious freedom in Hungary since 1990.  Thus far not much attention has been directed toward assessing the impact of deregistration on those groups.  The Venice Commission opinion focused on the registration procedure itself, as did the ruling of the Constitution Court.  But in the meantime deregistered religious communities have been forced to adapt to a new legal context in which they are denied what most Americans would consider basic aspects of the right of religious freedom.

Over the past six months I have been working to assess the impact of Act CCVI of 2011 on Hungary’s unrecognized religious communities.  Using public records and resources available on the internet, I have attempted to compile a comprehensive list of Hungary’s unrecognized religious communities.  I also visited Hungary in summer 2012 and interviewed numerous representatives of deregistered churches.  Additionally, I recently completed a survey of deregistered religious communities that seeks to measure objective indicators of religious discrimination.

Estimates concerning the number of deregistered churches vary.  The Hungarian government claims there were well over 300 registered churches in Hungary prior to 2011, but has never explained how it arrived at this estimate.  I have been able to identify 122 deregistered churches thus far, some of which ceased operating on their own prior to 2011.  I believe this list to be accurate and close to complete.  I estimate that somewhere between 160 and 180 independent churches/religious communities were operating in Hungary prior to passage of Act CCVI of 2011, and that the Act deprived approximately 130 religious communities of legal recognition.  I have been able to establish contact with 106 unrecognized religious groups, whom I invited to participate in my discrimination survey.  Forty-nine groups responded to my inquiry and 43 agreed to participate, which translates to a participation rate of 40%.   I closed the survey only two weeks ago and have not yet run a complete statistical analysis of the data.  I wish to emphasize, therefore, that the statistical information provided below is provisional.

Initial analysis suggests that while almost all religious groups report some level of discrimination, the amount of discrimination varies significantly, with a little over half of the participants reporting what I would call significant discrimination.  After Act CCVI was passed, deregistered churches were told they must apply for recognition as civil associations.  Failure to apply for status as a civil association, or failure to meet the deadline for applying as such, would result in total liquidation of the community’s assets, that is, appropriation of the community’s property by the state.  The overwhelming majority of religious groups surveyed indicate that they have been recognized as civil associations.  However, I was able to identify two instances were courts ordered the liquidation of a community and a few additional instances were a final decision has yet to be rendered.  Even so, a surprising number of those surveyed, almost 15%, report that some of their property was liquidated after deregistration.  Others report, again about 15%, that leases they held on rental property were terminated.  Among those surveyed, 16% indicated they were forced to shut down schools as a consequence of being deregistered; 30% indicated they were forced to close down charitable organizations; 40% indicated they were forced to abandon additional ministries (other than education and charity work).

Unlike legally recognized churches, religious groups classified as civil associations do not enjoy complete internal autonomy.  Civil associations must have a specific administrative structure.  For example, they must have a presidency and all members must have the right to vote on decisions made by the association.  In many cases, although not all, these administrative requirements violate the religious conscience of believers.  Among deregistered religious groups participating in my survey, 17% refused to apply for civil association status, and many of them reported in written comments that their refusal to apply was based on reasons of conscience.  These groups now live under the fear of court ordered liquidation.  Among deregistered religious groups that did apply for recognition as a civil association, 36% reported that they had been required to change their organizational structure.  Additionally, a high number of respondents, 30%, reported that their clergy had been prevented from visiting patients in the hospital; 27% reported that they were prevented from visiting persons in prison.  A small but noticeable number of respondents, a little over 10%, reported that they had been forced to change their religious confession, their official teaching, or worship services in order to be recognized as a civil association.  Also, unrecognized religious groups are not permitted to have the word church in their official name.  Among those groups applying for recognition as a civil association, 60% reported that they had been forced to change their name.

Reasons offered for the new law by the Hungarian government

 When Parliament first passed Act CCVI of 2011, the Hungarian government claimed the new law was necessary in order to correct abuses made possible by the previous religion law.  In the Hungarian media, representatives of the government frequently spoke of “business churches,” an imprecise and polemical term.  The claim was that non-religious organizations were registering themselves as churches in order to receive tax exemptions and state subsidies.  However, no impact studies were conducted, so neither the extent of abuse nor the effectiveness of the remedy could be evaluated.  The only evidence of abuse offered by the government was the claim that more than 300 churches were operating in Hungary.  This number, the government believed, was clearly excessive and indirect evidence of the existence of “business churches.”  As already indicated, I believe the 300+ estimate is too high.  I would also add that in the course of my research I have been able to identify only two cases where I suspect organizations registered as churches under pretext.  The most notable of these involves the mayor of Érpatak, a man named Mihály Orosz who is a member of the right-wing political party Jobbik.  Mr. Orosz was affiliated with, or the founder of, at least four different groups registered as churches under the old law.

Even if there were significant abuse under the old law, having Parliament bestow legal recognition on religious groups hardly seems an effective remedy.  In fact, the possibility of remedy existed under the old legal regime, something pointed out by the Constitutional Court in its February 2013 ruling.  According to the Court, under the old law a state prosecutor had a right to request information and investigate a church suspected of illegal activity.  An organization engaged in running a business but seeking registration as a church could thus be prevented from registering, or if already registered, prosecuted for violations of the law.  According to the Constitutional Court, under the old law state prosecutors initiated legal proceedings against registered churches on a number of occasions.


When attempting to interpret the behavior of a political regime whose decision-making process is not transparent, political scientists often attempt to infer intentions from effects.  That is, instead of taking the public pronouncements of the regime at face value, political scientists examine the effects of the regime’s actions to determine its true intentions.  Viktor Orbán’s government is not transparent.  Cardinal laws addressing basic human rights and constitutional amendments addressing the rule of law are introduced in Parliament and approved in a matter of hours.  Even after fundamental laws have been passed, they are amended immediately whenever the Constitutional Court renders a decision not to the government’s liking.  I therefore submit that the best way to understand Viktor Orbán is to look not at what he says, but at what he does.

If we look at what the Orbán government has done in respect to religious freedom, infering intentions from effects, it becomes difficult to believe that the intention behind Act CCVI of 2011 was to eliminate legal abuses occuring under the old law.  First, the Orbán government never made an attempt to assess the extent and nature of the alleged abuse.  Second, legal remedy against abuse was already available.  Third, the negative impacts on religious freedom caused by Act CCVI of 2011 were far greater than any legal abuses the Act putatively sought to correct.  If the aim of the government had been to eliminate abuse, much simpler and less destructive solutions were available.  Addressing the problem of “business churches” certainly did not require modifying the constitution in a way that allows Parliament to bestow legal recognition.

A more plausible explanation for Act CCVI of 2011 is that the Orbán government is seeking to hinder the activities of religious groups it dislikes, perhaps because it views those groups as “sects,” perhaps because the leaders of some of those groups have criticized the government, or perhaps because the membership of many of those groups is Roma.  Whatever the Orbán government says, its actions indicate that it holds the right of religious freedom in low regard.

Kim Lane Scheppele’s Testimony at the Helsinki Commission Hearing on Hungary: Full text


U.S. Commission on Security and Cooperation in Europe

Hearing on “The Trajectory of Democracy – Why Hungary Matters”

Capitol Visitor Center, Room SVC 210 (Senate Side)

March 19, 2013 at 3 pm

Kim Lane Scheppele

Laurance S. Rockefeller Professor of Sociology and International Affairs

Director, Program in Law and Public Affairs

Princeton University

I am honored to testify before you today.   My name is Kim Lane Scheppele, and I am the Rockefeller Professor of Sociology and International Affairs, as well as the Director of the Program in Law and Public Affairs, at Princeton University.    I am also a Faculty Fellow at the University of Pennsylvania Law School.

Nearly twenty years ago, the US National Science Foundation gave me a grant to move to Hungary to study the Hungarian Constitutional Court, then the most impressive of the new courts in Eastern Europe.    I planned to go for one year but stayed for four, working as a researcher at the Constitutional Court and serving as an expert advisor to the constitutional drafting committee of the Hungarian Parliament in 1995-1996, a position I occupied with the assistance of a second NSF grant.   I am grateful to the NSF for having funded my research on Hungary, which documented how the new Hungarian constitution of 1989 put down roots and grew to support a vibrant Hungarian constitutional democracy.    I have followed Hungarian constitutional developments closely ever since.

I am here today because the current Hungarian government has felled the tree of democratic constitutionalism that Hungary planted in 1989.

Since its election in 2010, the Fidesz government has created a constitutional frenzy.  It won two-thirds of the seats in the Parliament in a system where a single two-thirds vote is enough to change the constitution.   Twelve times in its first year in office, it amended the constitution it inherited.  Those amendments removed most of the institutional checks that could have stopped what the government did next – which was to install a new constitution.   The new Fidesz constitution was drafted in secret, presented to the Parliament with only one month for debate, passed by the votes of only the Fidesz parliamentary bloc, and signed by a President that Fidesz had named.  Neither the opposition parties nor civil society organizations nor the general public had any influence in the constitutional process.   There was no popular ratification.    The Fidesz constitution went into effect on January 1, 2012.

While the government claims it was given a mandate to make major changes, the general Hungarian public thinks otherwise.  During the election campaign in 2010, Fidesz never said it would change the whole constitutional system.   Once the Fidesz governing program became clear after the party came to power, the popularity of Fidesz has plummeted, even more so after the government undertook to replace the constitution.


Figure 1:  Political Party Popularity in Hungary 2008-2013

Source:  Ipsos/

After the April 2010 election, Fidesz’s popularity has steadily dropped.  But none of the other parties – the MSzP (Socialists), Jobbik (far-right party), LMP (Politics Can be Different, a liberal/green/youth party) or the new liberal electoral coalition Egyutt 2014 (Together 2014) – is any more popular.  Surveys show that 50% or more of Hungarian voters say that there is no political party that they support.

Even though the government pushed through a one-party constitution without support from any other political fraction, except its own party-list partner the Christian Democrats, this didn’t stop the constitutional juggernaut.  The government has amended its new constitution four times in 15 months.  Each time, the government has done so with the votes of only its own political bloc, rejecting all proposals from the political opposition or from civil society groups.   The current Hungarian constitution remains a one-party constitution.

Just last week, the Fidesz government passed a 15-page amendment to the new 45-page constitution.  László Sólyom, the conservative former president of both the Constitutional Court and the Republic of Hungary, said in a public statement last week that the “Fourth Amendment” removes the last traces of separation of powers from the Hungarian constitutional system.   Under the constitution as amended, no institution has the legal right to check many of the key powers of the one-party government.

The Fourth Amendment nullifies more than 20 years of rights-protecting case law of the Hungarian Constitutional Court that had been developed before the new constitution went into effect.  This leaves a giant gap where firm legal protection of basic rights once stood.  The Fourth Amendment specifically overturns nearly all of the decisions that the Constitutional Court made in the last year striking down controversial new laws the Fidesz government had passed.  The Fourth Amendment removes the Court’s power to evaluate on substantive grounds any new constitutional amendments, a move which allows the government to escape review by inserting any controversial new proposal directly into the constitution.  The Fourth Amendment entrenches political control of the judiciary and gives the government new tools to prevent the opposition from coming to power.  The Fourth Amendment reverses many of the concessions Hungary made last year when the European Union, the Council of Europe and the US State Department criticized fundamental aspects of that constitution.

Under cover of constitutional reform, the Fidesz government has given itself absolute power.  It now has discretion to do virtually anything it wants, even if civil society, the general public, and all other political parties are opposed.

How could Hungary have fallen so far so fast from the family of stable constitutional democracies?  The answer lies in the Achilles’ heel of the old constitutional system: a disproportionate election law combined with an easy constitutional amendment rule.

Hungary’s 1990 election law gave disproportionate numbers of seats to the winner of an election, a feature that was designed to help plurality parties form stable governments.  When Fidesz got 53% of the vote in the 2010 election, the election law converted this victory into 68% of the seats in the Parliament.   While Fidesz won this vote in a joint party list with the Christian Democrats (the KDNP), the Christian Democrats barely have an independent existence apart from Fidesz and its members vote in a bloc with Fidesz on every issue.


Figure 2: Composition of the Hungarian Parliament 2010

Source:  Hungarian National Election Commission


The Fidesz/KDNP joint party list (orange) received 52.7% of the vote, 263 of the seats and 68.1% of the Parliament.  MSzP (Socialists) (red) received 19.3% of the vote, 59 of the seats and 15.3% of the Parliament. Jobbik (far-right party) (dark green) received 16.6% of the vote, 47 of the seats and 12.2% of the Parliament and LMP (Politics Can be Different) (light green) received 7.7% of the vote, 16 of the seats and 4.1% of the Parliament.  There was one independent MP. 

Armed with its two-thirds supermajority, the Fidesz government has been able to make use of the old constitution’s amendment rule, dating to the communist constitution of 1949, which permitted the constitution to be changed with a single two-thirds vote of the Parliament.   This “magic two-thirds” has enabled Fidesz to make all of its constitutional changes in a formally legal manner.     Only one barrier remained:  In 1995, under a prior two-thirds government, the old constitution was amended to require a four-fifths vote of the Parliament before any new constitutional drafting process could begin.  One month into its term, Fidesz used its two-thirds vote to amend the constitution to remove the four-fifths requirement.

Many of the laws, including the constitution itself, many of the constitutional amendments and most of the cardinal laws, were introduced through the parliamentary procedure of a “private member’s bill,” which bypasses the stage of public consultation required of all government bills.   That, combined with the fact that the Parliament instituted a new rule through which a two-thirds vote could cut off parliamentary debate on any topic, has meant that most of these new laws have received very little public discussion.   It has not been uncommon for a constitutional amendment go from first proposal to final enactment in just a few weeks.

Taken over three years, the constitutional changes are complicated, detailed, and spread out across a new constitution, four major constitutional amendments, dozens of “cardinal” (super-majority) laws, and thousands of pages of ordinary laws that were all passed in a giant legislative blur, sometimes in the middle of the night.  I strongly suspect that most Hungarians do not understand the details of this new constitutional system.  Even Hungarian lawyers are not able to keep up with the total revolution in the law.  In what follows, I will try to explain how the new system of Hungarian government is structured, current as of March 15, 2013, taking all of this new law into account.

The primary source for my testimony is the Magyar Közlöny, the official gazette of the Hungarian government that publishes all of the laws.  From my perch in the United States, I cannot say how the laws are being carried out.  But I can say how the laws are structured and what they do and do not permit.  I will call this whole new legal structure the “Fidesz constitution” even though not everything is in the single constitutional text or its amendments.   Many elements of the system I describe are in two-thirds “cardinal” laws that are almost as entrenched as the constitution itself, which is why I don’t make the fine distinctions here except where they are crucial for understanding how the system works.  I am happy to provide detailed legal citations for all of the claims I make below if you are interested in checking more precisely what I say or precisely where in the law each of these statements can find support.

Others who are providing testimony for this hearing will address other crucial issues raised by the current Hungarian government’s actions over the last three years.  They will address the fate of civil liberties, the difficult situation for many churches in Hungary and the growing and increasingly virulent strains of anti-Semitism and anti-Roma agitation that have occurred alongside this constitutional revolution.

My remit at this hearing today is to talk about something altogether more boring, but no less important:  the system of divided and checked powers necessary for a government to remain both constitutional and democratic.   History tells us that a government that has no limits on what it can do and that concentrates all powers in a single party will soon cease to be either constitutional or democratic.

The importance of checked and limited powers was an insight very familiar to the American constitutional framers.  The Philadelphia Convention did not even include a bill of rights in the US Constitution because the framers believed that the most effective protection for rights was a government that was limited by law.   While American history has taught us that a bill of rights matters – and the ratification process of the US Constitution insisted on including one – we have also learned much from Princeton graduate James Madison, who wrote in Federalist #47:  “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

By James Madison’s definition, Hungary is on the verge of tyranny.

In what follows, I will show that the Fidesz political party has gathered all of the powers of the Hungarian government into its own hands, without checks from any other political quarter and without any limits on what it can do.

We should start with the basics:   Hungary has a unicameral parliamentary system of government.  A unicameral Parliament has no upper house to check what the lower house does, no “Senate” to complicate life for the “House of Representatives” and vice versa.   A parliamentary system means that the most powerful executive, the prime minister, is elected by the Parliament rather than directly by the people.  As a result, the prime minister in Hungary is virtually guaranteed a majority for all of his legislative initiatives because that legislative majority put him into his job.   Not surprisingly, the legislative-executive cooperation guaranteed in Hungary’s unicameral parliamentary system dates back to the communist constitution of 1949.  (From the mid-19th to the mid-20th centuries, Hungary had a bicameral parliament.)

In 1989, however, major constitutional changes in Hungary added a number of checks to this basic framework.  A Constitutional Court was created as the primary watchdog on the majoritarian dangers of a unicameral parliamentary system.  Unlike a Supreme Court which is the highest court of appeal in the legal system (something we are familiar with in the United States), a Constitutional Court is the only court that is allowed to hear and decide constitutional questions – and it does nothing else besides rule on constitutional matters.   Because the Hungarian Constitutional Court conducts the primary oversight in a system that has little formal separation of legislative and executive power, it is even more important than the Supreme Court in the American separation-of-powers system.

Given such weighty responsibility in the 1989 constitutional design, the Constitutional Court was made highly accessible to the new democratic public in Hungary.  Literally, anyone could ask the Constitutional Court to review a law for constitutionality using a so-called actio popularis petition.   As a result, virtually every law was challenged.  From the time it opened in January 1990, the active Constitutional Court kept each new government under constitutional constraint regardless of the political leanings of the government.  Opinion polls showed that the Constitutional Court was consistently the most highly respected political institution in Hungary.

The procedure for electing judges to the Constitutional Court before 2010 prevented the Court from being captured by any one political fraction.   Because each judicial nominee to the Constitutional Court had to first be approved by a majority of parliamentary parties before then being elected to the Court by a two-thirds vote of the Parliament, the Court always had a balance of different political views represented on the bench.

Other changes that were made to the constitutional system in 1989 provided more checks on Hungary’s unicameral parliamentary government.  Revamped parliamentary procedure required extensive consultation with both civil society and opposition parties before government bills could be put to a vote.   Important issues of constitutional concern required a two-thirds vote of the Parliament.   As we have seen, however, the private member’s bill procedure allowed the consultation stage for legislation to be bypassed and the two-thirds laws could cease to be a real check on power when the government had two-thirds of the parliamentary seats, something the disproportionate election law made quite likely.

Four ombudsmen added after 1989 to the system of rights protection.  Other independent institutions – the central bank, state audit office, prosecutor general’s office, national election commission and media board – provided both expertise and additional checkpoints.  For example, both the national election commission and the media board were structured to ensure representation from across the political spectrum.   An independent self-governing judiciary ensured that the laws were fairly applied.

There were so many different checks instituted after 1989 on the power of the prime minister and his parliamentary majority that the post-1989 constitutional system worked reliably to ensure that the operation of majoritarian political power didn’t ride roughshod over democratic guarantees and constitutional limitations.

By contrast with this robust system of complementary powers, the new “Fidesz constitution” removes virtually all of the checks added to the prior communist constitution after 1989.  I will detail the major reversals here.

Under the Fidesz constitution, the Constitutional Court’s power and independence have been compromised in multiple ways.   The system for electing constitutional judges was changed so that now a single two-thirds vote of the Parliament is sufficient to put a judge on the Court, abolishing the multiparty agreement that was once necessary for nomination.  The Fidesz constitution also expanded the number of judges on the Court from 11 to 15, giving the governing party four more judges to name immediately.

Between changing the process for electing judges and expanding the number of judges to be elected, Fidesz government has been able to select nine of the 15 judges on the Court in its first three years in office.   The Fidesz parliamentary bloc, voting in unison as it always does, put these judges onto the Court without multiparty support, though a few of the new judges were able to garner some votes from the far-right Jobbik party.  The new constitutional judges have almost always voted for the Fidesz government position in each case.  Some of the new judges have just voted for the government’s position without even giving reasons.

Even if the Court is in Fidesz-friendly hands, however, a powerful Court might still be dangerous to a government that shuns checks on its freedom of action.  This may explain why the jurisdiction of the Court has been cut. The Court no longer has the power to review laws based on “actio popularis” petitions, which are petitions that anyone can file.  Now, the only individuals who can challenge laws must show that they have been concretely injured by the application of a potentially unconstitutional law and that they have exhausted their remedies in the ordinary courts.  If the Constitutional Court can only hear cases that have concrete victims, it is hard for the Court to rule on matters pertaining to separation of powers and the structure of democratic institutions.  Individuals rarely get “standing” to challenge a law that creates a new system for judicial appointments or a law that gives a government agency the power to issue decrees without parliamentary oversight, both laws that have been passed since Fidesz came to power.  Some elements of “abstract review” remain with the Constitutional Court, but these, too, have been restricted.

Abstract review allows the Court to hear challenges to laws without a concrete dispute before it.  With the exception of the Parliamentary Commissioner for Human Rights (who will himself be replaced by Fidesz parliamentary majority later this year), the constitution gives the power to challenge laws abstractly only to particular offices that are currently occupied by people affiliated with Fidesz.  One might guess that Fidesz appointees do not have a strong incentive to limit the power of their own government.   While one-quarter of the Parliament is also given the power to challenge a law at the Constitutional Court, the one-third of the seats in the current Parliament that are not held by the governing party are divided between parties of the center-left and a party of the far right, who would have to agree on a challenge, something that is not very likely.   As a result, many laws have been effectively insulated from constitutional challenge by the way that abstract review power has been designed.

Even with the limitations on access to the Constitutional Court that were built into the Fidesz constitution, the system of judicial review in Hungary may seem broader than the system we have in the United States.  Therefore, the dangers of the new system in Hungary may not be apparent to an American eye.  Limiting the power to initiate judicial review only to those who have been directly injured and only to officials who owe their jobs to this government limits the ability of the Court to reach constitutional violations that it used to be able to reach.  The US Supreme Court cannot reach all constitutional violations either, but the United States has a bicameral Congress, a separately elected president, a vigilant and active civil society, and federalism, which adds state governments and state courts as additional checks on the power of temporary majorities.  Hungary has none of those checking institutions and so relies on the Constitutional Court to carry more weight in the constitutional system.   Making it difficult for this Court to reach all constitutional violations creates blind spots in which unconstrained political discretion can override constitutional values.

In addition to limiting access to the Court, the Fidesz constitution restricts the jurisdiction of the Court in other ways as well.  The Court may no longer review any law that deals with taxes or budgets when those laws are passed at a time when the national debt is more than 50% of GDP.  Under the Fourth Amendment passed last week, the Court will never have the power to review budget and tax laws that were passed under these circumstances.  As a result, if a tax law passed this year infringes an individual’s constitutionally guaranteed property rights or if such a tax is applied selectively to particular minority groups, there is nothing that the Constitutional Court can do – in perpetuity.   This opens up a space for the government to violate many personal rights without any constitutional oversight.

The Fourth Amendment has also banned the Court from reviewing constitutional amendments for substantive conflicts with constitutional principles.   As a result, if the constitution promises freedom of religion but a constitutional amendment requires a two-thirds parliamentary vote before a church is officially recognized (a provision that was added to the constitution with the Fourth Amendment), the Court can do nothing about this.  Or if the constitution says anyone may freely express her opinion but an amendment says that no one may defame the Hungarian nation (a provision that was also added to the constitution with the Fourth Amendment), there is nothing the Court can do.   These examples show that the government can now directly amend the constitution any time it thinks the Constitutional Court might strike down some policy that the government wants to enact regardless of how much these new amendments violate principles that have been guaranteed elsewhere in the constitution. In fact, the Fourth Amendment already puts back into the constitution laws that the Constitutional Court has already struck down as unconstitutional once before under the new constitution.

To make matters worse, the Fourth Amendment also nullifies all decisions made by the Constitutional Court before the new constitution took effect.   At one level, this makes sense:  old constitution, old decisions/new constitution, new decisions.   But the Constitutional Court had already worked out a sensible new rule for the constitutional transition by deciding that in those cases where the language of the old and new constitutions was substantially the same, the opinions of the prior Court would still be valid and could still be applied.  Otherwise, where the new constitution was substantially different from the old one, the previous decisions would no longer be used.  Constitutional rights are key provisions that are the same in the old and new constitutions – which means that, practically speaking, the Fourth Amendment annuls primarily the cases that defined and protected constitutional rights.    With those decisions gone, no one can say for certain whether Hungarian law protects free speech, freedom of religion, equality of all Hungarians before the law, property rights, and virtually every other right in precisely the way that everyone in Hungary had come to take for granted.

What other checks on Fidesz’s untrammeled power have now been removed in the Fidesz constitution?  The independence of the ordinary judicial system has taken a big hit.   In 2011, the Fidesz government suddenly lowered the judicial retirement age from 70 to 62, thus removing the most senior 10% of the judiciary, including 20% of the Supreme Court judges and more than half of the appeals court presidents.    Both the Hungarian Constitutional Court and the European Court of Justice found that the sudden change in the judicial retirement age was illegal.

The government’s first reaction was to defy both courts’ judgments, before finally agreeing at the end of 2012 to reinstate fired judges who wanted to return to their jobs.   In the meantime, however, all of the court leadership positions were filled with new judges, so the old judges who wanted to be reinstated were returned to much less important positions.  Through this move, the government was able to replace much of the top leadership of the judiciary in a single year.   One court leader who could not have been replaced in this manner (because he was too young) was the then-President of the Supreme Court, András Baka.  He was removed from office when the new constitution went into effect because of a new requirement, effectively immediately, that judges must have five years of judicial experience in Hungary before being named to the Supreme Court (newly renamed the Curia).  President Baka’s 16 years of experience as a judge on the European Court of Human Rights did not count.

How were the new judges named?  The new president of the Supreme Court/Curia was elected by a two-thirds vote of the Fidesz Parliament.   Beyond that, a new institution was created to oversee the appointment of all other judges as well as the administration of the judiciary: the National Judicial Office.  This office replaced a system of judicial self-government.  The president of the NJO, elected by two-thirds of the Parliament, has the power to hire, fire, promote, demote and discipline all judges in the system without any substantive oversight from any other institution.  The national President has to countersign in cases where a judge is appointed for the first time in the system, but it is not clear he could refuse to do so.   The new leadership of the ordinary courts has thus been replaced by judges who owe their careers to an official elected by the “magic two-thirds” of the Fidesz Parliament.

The Council of Europe’s Commission on Democracy through Law (the Venice Commission) sharply criticized the extraordinary powers of and general lack of legal standards governing the president of the National Judicial Office.  The US State Department has also raised questions about the independence of the judiciary under this system.   In a concession to criticism, the Fidesz government agreed to limit the powers of the president of the NJO in legislation passed in summer 2012.  But with the Fourth Amendment to the Constitution, those concessions are clawed back.  The constitution now entrenches the National Judicial Office (NJO), whose president has the constitutional power to “manage the central administrative affairs of the courts,” a set of responsibilities in which the judges merely “participate.”   None of the constraints that the Fidesz government agreed to under international pressure – requiring a significant role for the judges in their own self-government, establishing legal standards for the president of the NJO to use in managing the judiciary, and no longer allowing the president of the NJO to stay in office until her successor is elected – are in the constitution itself.    In fact, the concessions that the Fidesz government made to Hungary’s international critics may be unconstitutional now that the Fourth Amendment gives the sole power to manage the courts without these constraints to the president of the National Judicial Office.

In another move that has attracted universal criticism, the Fidesz government gave the president of the National Judicial Office the power to take any case in the entire court system and move it to a court different from the one to which normal procedure would assign it.   So, for example, if a political corruption case against members of the main opposition party would normally be assigned to the trial-level court in Pest, the president of the National Judicial Office can move the case to Kecskemét.   In fact, this is not a hypothetical; that very example has already happened.   The rationale given for this extraordinary power to move cases is that the courts are overcrowded and case resolution can be speeded up by moving cases to less crowded courts.

But this rationale is belied by the facts:   From public sources, I have been keeping track of the movement of these cases in the first year that the president of the NJO has had this power.   She has moved only a few dozen cases away from courts that have thousands of backlogged cases.  And she has moved the cases not to the least crowded courts in the countryside but to other courts that also have backlogs.   She has moved some of the most high-profile political cases in which the political opposition has a stake, leading the opposition to charge the government with picking the judges particularly in cases that have strong political overtones.  While my statistics cannot reveal the motivation of the government, they can show that the government is not moving a substantial enough number of cases to make a difference in waiting times and it is not moving cases from the most to the least crowded courts.   I am happy to make the data available upon request.

With the Fourth Amendment passed last week, the power of the president of the NJO to move any case to any court in the country is entrenched in the constitution itself.  And the constitution does not include the legal constraints that Hungary agreed to under pressure.  Giving power to the president of the NJO to select which court handles individual cases outside the rules of ordinary legal procedure is for many – myself included – the end of the rule of law in Hungary.

The Constitutional Court and the ordinary judiciary have suffered a severe blow under the Fidesz constitution.  Other independent institutions have fared no better.

The ombudsman system, which once comprised four independent ombudsmen with independent jurisdictions, has now been folded into one office with a much smaller staff.  The former data protection ombudsman was fired and the office has been absorbed directly into the government, something that has generated an infringement action launched by the European Commission against Hungary at the European Court of Justice because EU law requires an independent data privacy officer.

As of two weeks ago, the central bank has a new governor, who moved to that job from being minister of the economy.  He used his ministerial power to unilaterally change the rules for the central bank.  Without the need for parliamentary approval or Court review, then, György Matolcsy, as the Fidesz economics minister, gave the office of György Matolcsy, the new central bank governor, dramatically increased powers just before he moved from one job to the next.  The charter of the central bank, as it turns out, is not even a statute passed by Parliament but a document that either the bank itself or the minister of the economy can change at will.

The new media council has a chair appointed directly by the prime minister and a membership that consists exclusively of members elected by the Fidesz parliamentary two-thirds, both for nine-year terms.   The media council has draconian powers to levy bankrupting fines based on a review of the content of both public and private media, including broadcast, print and internet media. A Constitutional Court decision freed the print media from some of these constraints, but the Fidesz government could now easily amend the constitution to bring the print media back under control and the Constitutional Court could say nothing further about it.

The election commission has been revamped and now consists exclusively of members who have been elected by the Fidesz parliamentary two-thirds majority, all for terms of nine years.   While each party with a national list in the next election (scheduled for April 2014) will have a temporary member on the commission during the campaign, opposition parties will be easily outvoted by the Fidesz majority.

The legal framework for the 2014 election is still in flux.  The Fidesz parliamentary two-thirds has already enacted two election laws over vociferous protest from opposition parties, creating an even more disproportionate system than the one it replaced.  One law gerrymanders the districts for the next election in such a way that it will be very difficult for the opposition to win.  The law even fixes the exact boundaries of election districts in a cardinal law that requires a two-thirds vote of the Parliament to change.  This law also eliminates the second round of voting for single-member districts so that someone without majority support in a district can enter Parliament, which was not previously the case.

The government passed a second cardinal law on elections that instituted a system of voter registration, even though the country has conducted more than 20 years of elections with an excellent “civil list” that has never produced any complaints of irregularity.  The Constitutional Court struck down voter registration as unconstitutional, and for now the governing party seems to have given up on this idea.  But with its parliamentary two-thirds vote, the government has the power to override the Constitutional Court by simply adding voter registration to the constitution.  The government may also change other important features of the election system right up until the election takes place.   In fact, at the moment, the election framework is presently incomplete.  Among other things, no rules have yet been devised for making and verifying voter lists for ethnic Hungarians in the neighboring states who have recently become eligible for citizenship as the result of constitutional changes.

The Fourth Amendment added new electoral rules just last week.   The amendment created a constitutional ban on political advertising during the election campaign in any venue other than in the public broadcast media, which is controlled by the all-Fidesz media board.  Moreover, only parties with national party lists can advertise at all in the national media, which might exclude smaller and newer parties.   These restrictions had been previously declared unconstitutional by the Constitutional Court, so the government amended the constitution to override that decision.  And since these provisions are now in the constitution itself, the Constitutional Court cannot review them again.

But suppose that, despite all of the obstacles that the current governing party has put in the way of the political opposition, an opposition coalition manages to win the next election.   The Fidesz constitution has created a trap that can be snapped in just such a case.    The constitution creates a national budget council with the power to veto any future budget that adds to the national debt, which any foreseeable budget will do. The members of the budget council have been chosen by the Fidesz two-thirds majority for terms of 6 or 12 years and can be replaced only if two-thirds of the parliament can agree on their successors when their terms are over.   Not only does this mean that, for three elections cycles out, any future government must follow a budgetary course agreed on by a council where all of the members were elected by the Fidesz government, but this budget council has even more power than that.

The constitution requires the Parliament to pass a budget by March 31 of each year. If the Parliament fails to do so, the president of the country can dissolve the Parliament and call new elections. When this provision is put together with the powers of the budgetary council, the constraints on any future government are clear.  If a new non-Fidesz government passes a budget that adds to the debt, that budget can be vetoed by the all-Fidesz budgetary council at any time, including on the eve of the budget deadline given in the constitution.  The parliament would then miss the deadline and the president (also named by Fidesz and serving through 2017) could call new elections. And this process can be repeated until an acceptable government is voted back into power.

The Fidesz government may have created this unfortunate interaction of constitutional provisions inadvertently in an earnest attempt to create a binding mechanism to achieve budget discipline.    But it would be easy for the Fidesz government to achieve fiscal discipline without creating this anti-democratic trap.   The Fidesz government could amend the constitution to require that the budget council veto the budget by a deadline that would give the Parliament time to pass a new budget before the president gains the power to dissolve it.  I have personally suggested this to high-level members of Fidesz, but an amendment to this effect has so far not appeared.

There is more that could be said about the new Fidesz constitution.  I have only mentioned what I take to be the biggest obstacles posed to constitutionalism and democracy by this new constitutional framework.

What can be done about the Fidesz consolidation of power by the United States, the US Helsinki Commission, and by the Organization for Security and Cooperation in Europe?

First, of course, Hungarian democracy must be created and maintained by Hungarians themselves.    But a democratic public must be an educated public and Hungarians themselves need to learn what has happened to their own constitution over the last three years.  Most have no idea, and not because they couldn’t or wouldn’t understand.

The government celebrated its new constitution with great fanfare.  They set up “constitutional tables” at every town hall where people could sign up to receive their very own copy of the constitution.  Last June, the government presented to every secondary school graduate a coffee-table book with the words of the new constitution illustrated with historic and specially commissioned paintings.  But much of what I have mentioned above is not contained in the text that government has distributed.   Many of the most worrisome provisions that I have highlighted here are in the constitutional amendments made since that time or in the cardinal laws that can only be accessed through reading the immensely difficult legalese of the Magyar Közlöny.  These laws are posted online only in PDF form, not searchable unless one goes through each individual daily issue separately.

Hungary’s friends, including the United States, could assist financially with a program to educate citizens, lawyers and judges in Hungary about the new constitutional framework in Hungary.   A public education campaign about the new constitutional structure – conducted by Hungarian constitutional experts from the government, from the opposition and from academia – may assist in giving Hungarians better information about their new constitutional system.   Such a campaign would be especially effective if it could be conducted through the broadcast media in Hungary, though since the government functionally controls the broadcast media through its Media Council, some monitoring system would have to be put in place to ensure that both the government and opposition voices are heard.  Having read thousands of petitions that ordinary Hungarians sent to the Constitutional Court in the 1990s, I am confident that Hungarians themselves will rise to the defense of both democracy and constitutionalism once they see the dangers of a flawed constitutional design.

Second, the Hungarian government vociferously claims that it is still a democracy because political parties may freely organize for the parliamentary elections next year.   But its critics are concerned that the government presently controls the media landscape, has enacted a number of legal provisions that disadvantage opposition parties, and continues to change the electoral rules.  In fact, nothing prohibits the government from changing important elements of the electoral framework at the last minute.   With the election only one year away, it is important to get the rules of the game fixed – fairly – as soon as possible.

The OSCE has expertise in monitoring elections to ensure that they are free and fair.   The OSCE should insist that the electoral rules be settled far enough ahead of the election so that all who want to contest the election have a reasonable amount of time to organize themselves accordingly.

Enough questions have been raised about the willingness of the current Hungarian government to recognize the political opposition that the OSCE/ODIHR should also fully monitor the 2014 Hungarian parliamentary elections.    This should include not just election-day or long-term monitoring missions. The comprehensively changed new constitutional framework warrants an early Needs Assessment Mission from OSCE/ODIHR, one that can fully review the effects of all the new provisions.  It should focus on the ability of political parties to organize and to get their message out, access to the media, and the fairness of the basic election framework including the creation of electoral districts and the compatibility of both the content and timing of the new electoral rules with the principles of free and fair elections.

Third, the US government should press the Hungarian government to live up to its international commitments to democracy, constitutionalism, the rule of law and robust rights protection.  The US should be vigilant in monitoring backsliding from the high level of constitutional democratic protections that Hungary had achieved after 1989 and the US should cooperate with the Venice Commission, the Council of Europe Parliamentary Assembly Monitoring Committee, and the European Union (for example, the LIBE Committee of the European Parliament), all of which have ongoing monitoring processes in place.

But the US government should also be aware that, under pressure, the Fidesz government has in the past promised minor changes to its comprehensive framework and then has discarded those changes when the pressure lifted.  Moreover, the changes that the Fidesz government has previously offered to make do not really address the key problems of the system.   The Fidesz constitutional framework is a highly redundant system that must be understood as a whole.  Each individual legal rule cannot be evaluated by itself because one must understand the function of that rule in the larger system.  Changing a number of small features of this constitutional order may not in fact address the most serious problem – which is the concentration of political power in the hands of one party.  In deciding whether the Hungarian government has been responsive to international and domestic criticism, Hungary’s allies need to examine whether proposed changes really alter the way this complex and integrated system works as a whole.

The US should resist entering the battle of competing checklists of constitutional features.  The Hungarian government often insists that some other European country has the same individual rule that its friends criticize.  Perhaps we should remember Frankenstein’s monster, who was stitched together from perfectly normal bits of other once-living things, but who was, nonetheless, a monster.  No other constitutional democracy in the world, let alone in Europe, has the combination of constitutional features that Hungary now has.  In evaluating Hungary for its compliance with international standards, its international friends must look at the whole constitutional system and not just at individual pieces as it assesses whether Hungary still belongs to the family of constitutional democracies.  

Finally, Hungary is a small country in Europe.  It may be hard to see why the United States should spend any of its political capital to address what former Secretary of State Hillary Clinton called Hungary’s backsliding from constitutional democracy.   There are two main reasons why the US should care, apart from the fact that it is painful to see any country retreat from democracy and one should always be concerned about the people adversely affected.

Hungary is a partner with the US not only in the OSCE, but also in NATO.   OSCE commits its member states to the protection of human rights as defined under the Helsinki Final Act of 1975, and long experience shows that human rights receive their best protection from the maintenance of a constitutional and democratic government, both of which are now in doubt in Hungary.   The NATO Charter creates a union of states “determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law.”   But these commitments are also being challenged by the concentration of power in Hungary under its new constitutional framework.    Both the OSCE and NATO commit its member states to good behavior and good government, which these organizations should be able to monitor.

In addition, other countries in Hungary’s neighborhood are looking with great interest at what Hungary is doing.  They can see that the European Union, the Council of Europe, the OSCE, NATO and the United States have limited influence and ability to induce a national government to change its domestic laws.   Hungary’s neighbors understand that Hungary is getting away with consolidating all political power in the hands of one party, and many find that enticing.  Troubling recent developments in Romania, Bulgaria and Slovenia show that the Hungarian problem of overly concentrated power could spread if the US and its European allies don’t stand up for their values in the Hungarian case.    The US should therefore treat constitutional problems in Hungary with a sense of urgency, both because of the speed with which this system is being locked in and because of the likelihood that the Hungarian constitutional disease could spread around the neighborhood.

In closing then, I strongly urge the United States, the US Helsinki Commission and the OSCE to take Hungary seriously, engage with the Hungarian government on matters of constitutional reform, and work toward ensuring that the channels of democratic participation remain open in Hungary so that the Hungarian people retain the capacity to determine the sort of government under which they will live.  The legal changes I have described today pose a real danger to fundamental democratic and constitutional values, and Hungary’s friends need to sound the alarm.