Haza és Haladás Alapítvány

A debate about life after Viktor Orbán (April-June, 2011)

It was in April 2011 that I began a new folder labeled “Viktor Orbán–After.” The very first item in that folder was an opinion piece written by Mátyás Eörsi, former SZDSZ member of parliament and the leader of the Alliance of Liberals and Democrats for Europe Group in the Parliamentary Assembly of the Council of Europe (PACE).

His article, entitled “2014,” appeared in Magyar Narancs. Even at that point it was pretty clear to everybody engaged in politics that a Fidesz defeat could be achieved only by a joint effort of the democratic parties and that the next government would most likely be a coalition. Eörsi envisaged a coalition of MSZP, LMP, and perhaps some civic organizations. We mustn’t forget that at this point Ferenc Gyurcsány hadn’t yet broken with MSZP and the rebels of LMP were still supporting András Schiffer’s strategy.

Eörsi outlined the impossible situation in which the new prime would find himself given that all the key appointed positions would already be filled with Fidesz supporters. This new prime minister might offer Viktor Orbán a deal: Fidesz would support minor changes in the constitution in exchange for keeping the symbolism and the conservative nature of the constitution. In addition, the new head of the government would promise not to prosecute former politicians.  But, in Eörsi’s opinion, it was unlikely that either Orbán or his successor would agree to such a deal because, among other things, Fidesz’s men could easily obstruct the work of the government. For instance, if the Budgetary Council’s Fidesz apparatchiks were to use stall tactics so there was no budget by March 31, the president could dissolve parliament. It would not be in the interest of Fidesz, Eörsi argued, to make a deal. But then what?

Eörsi’s answer was that any kind of dealmaking with Fidesz would not only be a waste of time but also in the long run would work against the new government by allowing the opposition to become stronger with the passage of time. Instead, immediately after taking office the new prime minister ought to suggest holding a referendum on the constitution. Fidesz would argue that the constitution itself precludes the possibility of any change by referendum. But the prime minister could insist that the will of the people supersedes the constitution. In brief, Eörsi suggested a not entirely legal way of solving the problem. I may add here that Eörsi wasn’t the only one struggling with this problem. Several people, including József Debreczeni and László Lengyel, published articles in which they suggested similar schemes to get around the iron grip of the Fidesz-built political system.

The Hungarian Constitution, deluxe edition

The Hungarian Constitution, deluxe edition

Viktor Szigetvári, who at this point was the head honcho in Gordon Bajnai’s “Haza és Haladás Alapítvány” (Homeland and Progress Foundation), immediately answered Eörsi in an op/ed entitled “There is no emergency exit: Can the constitution be subverted by illegal means?” In Szigetvári’s opinion the Orbán constitution is legitimate and legal and the new government cannot use illegal means to repudiate it. Eörsi’s solution, he maintained, is “undemocratic.” The only solution is to get a two-thirds majority in parliament. Of course, we must keep in mind that the parliamentary discussion of the electoral law hadn’t yet taken place. Szigetvári admitted that there was a possibility that Fidesz would come up with an electoral law that would make a two-thirds majority an impossibility. But even then, he would rather opt for “a long period of government crises, political standoff, and everything that goes with it” than use unconstitutional means to remedy the political impasse.

According to Szigetvári, Eörsi’s solution was not only legally unacceptable. It was also a misguided solution in political terms as well because it would retard the opposition forces’ ultimate goal: a two-thirds majority. Moreover, it would preserve the old political elite, meaning the MSZP-SZDSZ coalition, which Szigetvári thought unfit to introduce the changes necessary for a new era in the history of Hungarian democracy.

A few days later Csaba Tordai, a legal scholar and a board member of “Haza és Haladás,” went even further than Szigetvári, who objected only to Eörsi’s legal trick. Tordai basically claimed that there is nothing terribly wrong with Orbán’s constitution. As he wrote, “one can live with this document.” In an earlier article Tordai had found the codification of the constitution very poor, but basically he felt that there was no burning need to change it. After all, the constitution by and large followed the structure of the 1989-90 constitution.  The preamble, he argued, is not that important because “nothing follows from it.” Again, one must keep in mind that at that point the details of the cardinal laws were still unknown. Tordai swept aside the role that the Budgetary Council could play that might lead to the dissolution of parliament. As for the Fidesz apparatchiks in key positions, “a half competent government should be able to defend itself from them.” He was also optimistic about the independence of the judges although about the time his article appeared the forcible removal of judges age 62 and over was announced and András Baka, chief justice, expressed his worry about the independence of the Hungarian judiciary.

László Majtényi, former ombudsman and today the head of the Károly Eötvös Institute, a legal think tank, more or less sided with Tordai and Szigetvári and rejected Eörsi’s proposition. A new government must negotiate with Fidesz. That’s the only possible way. Eörsi answered in Élet és Irodalom (June 22, 2011), an answer that highlights the difference between a practicing politician and constitutional lawyers. Eörsi thinks with the head of a politician. Naturally, he wrote, one must investigate the possibilities of negotiations, but he would like to see just one occasion when Viktor Orbán actually tried to achieve consensus. Even after the defeat in 2002 he came back more combative than ever. There are some people who think that Fidesz might force Orbán to resign after a lost election. But Eörsi called those people who believe in Orbán’s fall “dreamers.” The chance of an agreement with Viktor Orbán, who will most likely try to remain in his post as head of Fidesz, is close to zero.

The suggestions of the people in “Haza és Haladás” and the Eötvös Institute are all well and good, he wrote, but a future prime minister would throw them into the wastepaper basket because he would know that their ideas cannot be translated to everyday politics. Eörsi agreed with Zoltán Fleck and Ferenc L. Lendvai that the new constitution is illegitimate. And therefore, he expressed less compunction about a referendum on the constitution, especially because he saw no other solution. (I might add here that Kim Scheppele was of like mind when she talked about the “unconstitutional constitution.”)

These articles were the first to probe what steps a new government could take under the circumstances. Let’s keep in mind that this discussion took place two years ago. Since then the situation has become far worse.

Negotiations between Hungarian democratic parties and civic organizations began

On December 27, 2012 we learned that the democratic opposition parties and organizations at the behest of MSZP will begin negotiations on January 2 with a view toward creating a common platform. Their first task will be forming a joint declaration of their commitment to “the rule of law, constitutionality and democracy.”

MSZP apparently arrived at the negotiations “well prepared,” claimed Tamás Harangozó, a relatively new face in the party. Lately Harangozó has been in the news as one of the victims of László Kövér’s ire, which prompted the speaker to announce that “the gentlemen to my left should be grateful to be able to sit in this chamber at all.” Later Kövér was forced to apologize. Demokratikus Koalícó’s delegation, comprised of Dezső Avarkeszi, Judit Csiha, and Anna Buzás, a university student, is led by Csaba Molnár, one of the deputy chairmen of the party.

By yesterday, it became clear that representatives of MSZP, MSZDP (Magyar Szociáldemokrata Párt), DK and Együtt 2014 (which by now everybody calls E14) will be at today’s meeting. If all goes well, the negotiations will continue until the parties are ready to nominate candidates for each of the electoral districts, most likely sometime late fall of this year. Viktor Szigetvári, vice chairman of Haza és Haladás Alapítvány established by Gordon Bajnai, will be one of the negotiators of E14. Szigetvári opened the gate to other organizations that might like to join over and above those eight that were initially asked to participate. But already by yesterday we knew that LMP and 4K! would not be at the negotiating table.

Apparently 4K! would participate in the current negotiations only if there were a prior understanding according to which after a victorious election the elected parliament would declare itself to be a constitutional convention. Once the new constitution was adopted, the government would resign and new elections would be held.

Another party that refuses to work with the others is LMP. As András Schiffer confidently predicted this morning on ATV’s Start, LMP will be able to win the elections against Fidesz on its own. All those people involved in the negotiations are politicians of the past who are responsible for the present state of affairs and therefore he refuses to cooperate with them. During his conversation with the reporter he showed himself to be altogether inflexible. LMP, he declared, is true to its original political declaration. It doesn’t matter that circumstances have changed; his party will refuse to change its position. Such inflexibility is a sure sign of a bad politician.

Unity / Wikimedia Commons

Unity / Wikimedia Commons

When it comes to members of the delegations there is an interesting development: Péter Bárándy, minister of justice in the Medgyessy government,  is heading the E14 delegation dealing with constitutional issues while his son Gergely Bárándy, as MSZP’s legal expert, will represent MSZP’s point of view.

The negotiations began today with a discussion about the rule of law. More specifically, how a new democratic government can handle the situation Fidesz has created in the last two and a half years. After all, a new government can legally change the recently erected far from democratic structure only if it musters a two-thirds majority. I’m sure it will not be an easy topic to agree on. I think that not all people will agree with Viktor Szigetvári (Haza és Haladás) who is adamant on the subject. There are others who see legal loopholes that might circumvent the fairly unlikely occurrence of acquiring such a large electoral majority. Others, I am sure, will argue that the Fidesz political appointees planted for very long tenures could for all intents and purposes paralyze the work of the new government if they remain in their posts. E14 is obviously well prepared for such arguments and came to the negotiating table with a seven-page document. The restoration of the rule of law in the opinion of the E14 leaders is not an end in itself but a beginning.

E14 is also adamant that a new constitution cannot be a document supported by only one half of the population. “Formal legitimacy” is not enough. “Lasting and respected government by all can be created only if it is supported by a significant portion of civil society.” In brief, E14 believes that convincing a large part of the present Fidesz supporters is a must. The legal experts helping E14 are theoretically right in this regard, but looking at it from the perspective of practical politics I find it hard to believe that in a year and a half there will be a real change of heart among the absolutely devoted followers of Viktor Orbán.

There are some specific steps that should be taken immediately after the elections: to put an end to the practice of retroactive laws, to abolish the Media Council, to end parliament’s jurisdiction over the functioning of the churches, and to rewrite the electoral law, including the practice of registration that at the moment is still in the hands of the Constitutional Court. E14 would also restore the powers of local governments, but it wouldn’t abolish the newly established “járás” system. However, the government offices established within that system would be put under the jurisdiction of local governments within the “járás.” Naturally E14 would work toward the elimination of corruption by making party and campaign finances transparent. It also insists on making the documents relating to the Rákosi and Kádár regime’s internal security agencies and their agents publicly available.

According to Origo E14 arrived at the negotiations with an alternative plan for a new constitution. It was apparently Péter Bárándy’s job to outline a constitution that is in line with a modern democratic state. If, however, the opposition isn’t able to come up with a two-thirds majority E14 also has plans for “a more modest constitutional correction” that would include the restoration of the Constitutional Court’s former competence  before the Orbán government’s restrictions on it. In addition, they would greatly reduce the number of cardinal laws, i.e. laws that need a two-thirds majority to alter.

After three hours, the word was that the representatives of all the groups agreed on all points. But naturally the devil is in the details. Next week MSZP would like to move on to economic matters, but E14 already indicated that first its representatives would like to close the discussion on the rule of law and the constitution.

In any case, from the few descriptions of the negotiations I read the beginnings sound very promising.