My country, Hungary, was once an island of stability and solid constitutionalism in its region. Long awaited liberal democracy came in 1989-90 in a transition which some call “a constitutional revolution.” The transition, instead of leaders, no matter how charismatic they might be, created a multi-party parliamentary democracy with separation of powers, freedom of the press, due process, and a balanced system of constitutional institutions. The change was dramatic enough to be called a revolution. Yet, it was brought about by a process of rational negotiations resulting in the 1989 amendment of the constitution, which, in 1990, made the first free elections possible. The transition was made complete by several important acts that, according to the new constitution, parliament had to pass by a two-thirds majority, meaning the government had to strike compromises with the opposition, and by a similarly important series of decisions by the constitutional court. Although it has long been part of the right-wing folklore to despise the 1989 constitution because formally it was only an amended version of the old Communist one, over the last two decades both its letter and spirit were largely respected by all major political players. And now, after twenty years, my country hits the headlines not because it is taking over the rotating presidency of the European Union, but because of moves by the new ruling party, after its landslide victory in last year’s elections, that endanger essential elements of our constitutional framework.
In reference to that some have recently called my country “an ugly little state,” others depicted Hungary as a second Belarus and Prime Minister Orbán as a hairy barbarian kicking in the door of the consilium in Brussels. I do not find such comments very helpful. I strongly oppose the current government, but I am nonetheless offended by such remarks. Putting international pressure on the government may help, but only if it is based on points that are well-informed, objective, and fair. Hungary is not a dictatorship, and Orbán is no monster. What he and his insignificant yes-men (and very few women), who occupy more than two-thirds of the seats in parliament, threatens the foundations on which our republic was built twenty years ago. My purpose here is no more than to give a very brief overview of the significant changes that have taken place so far.
Since the election of April 2010, an enormous number of bills has been passed by parliament. Only a small minority of them was proposed by the government, the majority came from MPs belonging to the ruling party. The aim is to thus avoid the procedures prescribed in the Freedom of Information Act and related legislation, applicable to legislative proposals made by the government, which aim to secure the adequacy and transparency of the drafting process and to give societal groups affected by it a say.
On several occasions, unconstitutional drafts were accompanied by proposals to amend the constitution. As Fidesz-KDNP has a two-thirds majority, the constitution was in fact amended a number of times in order to prevent annulment by the constitutional court. One striking example was the case of retroactive legislation. Retroactively, as of January 1, 2010, a tax of up to 98 per cent was introduced on compensations for the loss of employment, if the persons dismissed had been public sector employees and the compensations were deemed to be “indecent.” The constitutional court annulled this law. In response, the ruling majority restricted the authority of the court in cases affecting the budget and central taxes. In addition, a constitutional amendment was passed allowing the taxation of income stemming from public funds retroactively for up to five years. Subsequently, the law on the special tax was re-introduced in parliament and passed once more. After this, the rules governing the nomination of judges to the constitutional court were changed by a further amendment. So far, the judges had been nominated by a committee in which all parliamentary parties were represented by one member. The new procedure is that they will be nominated by a committee whose composition reflects the size of parliamentary groups. This means that as long as Fidesz-KDNP holds two-thirds of the seats in parliament, they will have two-thirds of the votes on the nominating committee.
Besides amending the constitution, at times on a weekly basis, the governing majority is also busy preparing a new one, which they intend to adopt within a few months. There was no substantial discussion about whether a new constitution is necessary, and the haste in which the new rulers want to accomplish this is hard to understand. After the constitutional court was penalised for annulling retroactive taxation, the opposition parties refused to participate in the preparatory process. Therefore, rather than being a set of fundamental rules upon which all parties agree, as it was the case in 1989, the new constitution will be the work solely of the governing coalition, or, to be more precise, as the KDNP (the Christian Democrats) is a dead party only nominally kept alive by Fidesz, it will be a constitution crafted by one party alone.
In a system in which the government is appointed by parliament, the legislative and executive branches are deeply intertwined. A huge burden is placed on the remaining institutions to oversee and limit that power. Over the last two decades, the constitutional court had proved the most effective control institution. Yet, similarly important are the powers vested in the president and the independence of the judiciary.
Pál Schmitt, our current president, is a former vice chairman of Orbán’s party. As the president is elected by the parliament, it may not seem unusual that a prominent politician of the ruling party is voted in. Yet, taking into account that the president’s authority was designed to be primarily moral and that he wielded relatively limited legal powers, there had been a tacit agreement that he or she should preferably be a person of high esteem, independent of politics, someone who can rise above partisan politics. Mr. Schmitt shows no inclination to be independent. One of the few means to influence legislation at the president’s disposal is that, before signing a bill passed by parliament into law, he or she has the right to send it back to parliament for reconsideration, or to the constitutional court for review. Both these tools were frequently used by László Sólyom, our previous president. Schmitt, however, at his hearing in parliament prior to his election, stated that he did not want to be “an obstacle to legislation.” Indeed, he is not. He even had the link “Motions for Constitutional Review” removed from the website of the presidency.
As far as the independence of the judiciary is concerned, it is noteworthy that a sub-committee of the parliament’s Committee for Human Rights has been formed to investigate, for the last two parliamentary terms (during which Fidesz-KDNP was in opposition), violations of rights, and that this sub-committee summons judges who, before it, have to justify decisions made during that period. The committee focuses mainly on decisions about pre-trial detention, especially in such cases where the persons affected were anti-government protesters. I think, in its present form, the practice of pre-trial detention in our country is outrageous, and that was probably the case in many or most of the cases the sub-committee is investigating; the practice has to be changed. Yet, I do not see how any committee of parliament can assume the authority to review individual judicial decisions, as this is obviously in violation of the separation of powers.
It is also worth mentioning that the period for which the chief public prosecutor is elected has been extended from six years to nine, and that a former member of Fidesz has been elected to the post – the same person who had been elected in 2000, when, for the first time, Fidesz had the chance to elect its own candidate.
The freedom of the press is as indispensable for a democracy as is the separation of powers and the independence the institutions that provide the checks and balances. It is the new media laws that have received the most attention abroad, though the government often accuses its international critics of ignorance about the actual contents of the regulations. I think I best give an outline of some of the elements of the new regulations that I consider problematic, with exact references to the articles of the acts concerned.
The new regulation consists of three elements: an amendment to the constitution; Act 185 of 2010 on Media Services and Mass Media; and Act 104 of 2010 on the Freedom of the Press and Fundamental Rules of Media Content. All three were put forward by individual MPs rather than by the government.
The scope of the regulations encompasses radio, television, printed and on-line press, including commercial blogs, i.e. blogs that generate income from advertising. They go well beyond present regulations – print and the internet were so far practically free from content regulation. Their pervasiveness is underlined by the requirement that all media content providers will have to register with the new Media Authority, including providers of print media products and online content (Article 41 of Act 185/2010). The ambition of the new regulations seems to be no less than to put nearly all means of social communication under control.
Unfortunately, content regulation includes vague and overly general norms. For example, Article 4 of Act 104/2010 states that the exercise of the freedom of the press may not “violate public morals.” Article 17 (2) rules that “media content may not offend...persons,...any majority, as well as any church” (quotes from the official translation).
They also include provisions that most media will be unable to comply with. Article 13 of the same act states that “all media content providers shall provide authentic, rapid and accurate information on local, national and EU affairs and on any event that bears relevance to the citizens of the Republic of Hungary and members of the Hungarian nation.” Given that, at the beginning of the law, the meaning of the term “media content provider” is defined in the broadest possible way, this requirement is simply impossible to meet for most who fall within its scope.
As the OSCE’s report on the new regulations put it very aptly, these are “traps content providers cannot avoid falling into, giving an opportunity for the authorities to penalise them for it.” The Media Council may impose fines, and, as long as the standards are vague or impossible to comply with, the council may fine virtually any provider any time it wants. The fines, as specified in Article 187 of Act 185/2010, are so substantial that they may easily lead to the closure of printed and online newspapers, radio and TV stations, especially when imposed repeatedly. In theory, this is a tool to silence any media the council does not like.
The problem with the council is that it consists of Fidesz nominees only. Its five members have been elected by parliament for nine years, following a proposal made by an ad hoc committee (with the exception of the council’s president, who was nominated by the prime minister). In the committee, the parties were represented according to their seats in parliament. Fidesz decided they wanted all seats – and therefore got them. Beforehand, similar content regulations applied only to radio and television broadcasters, and compliance was overseen by a body in which the government and the opposition had an equal number of delegates.
Maybe the council will never use the sanctions intentionally for political censorship. Even then though, the mere threat of grave penalties potentially imposed on a largely arbitrary basis by a body strongly affiliated with the government may induce self-censorship, something that has a long tradition in Hungary.
In addition, Article 155 of Act 185/2010 provides that, when seeking to prove that regulations having been violated, the authorities may search the premises of media content providers and “inspect, examine and make duplicates and extracts of any and all media containing data, document and deeds—even if containing secrets protected by law—related to the media service provision, publication of a media product or broadcasting.”
According to Article 6 (3) of Act 104/2010 a court or an authority (without further specifying which) may also oblige media content providers and their employees to reveal the identities of their sources even on grounds so vaguely defined as the interest of protect “public order”.
These are just some of the worrisome details of the new legislation. Yet, the new order already has enthusiastic supporters among the newly appointed leaders of public service media, including the CEO of the national news agency, who recently explained in an interview: “A journalist in public service should not be the government’s enemy and should not question the power of the freely elected cabinet. One cannot accept an appointment and then turn against those who you were appointed by.” Well, what can I say?
I still do not know how to evaluate these developments. I do not want to play them down, but I am quite sure that prime minister Orbán is not trying to build a dictatorship. He was among those who took personal risks to help bring down our last dictatorship, and surely, he is not interested in establishing another one. For one thing, I do not think he would want the new constitution to be very different from the current one, at least as far as the structure of power is concerned. In comparison with other European countries, the 1989 constitution created a very strong position for the prime minister – and I am sure Orbán is happy with that.
I expect the changes to be mainly symbolic – strong references to Christianity, the Holy Crown, and other things that are important to Orbán’s audience will be added to the preamble. And that will be it. Although I am sure Orbán honestly abhors the far right, he has to compete with it. Being a leader who made important national, Christian, and traditionalist references part of the constitution will help him to push them to the margins of the political scene for some time to come. I do not think he would want to eliminate the limits and controls placed on the executive power once and for all. Rather, I guess, his thinking is that these are not so very important as long as he is in power. Grabbing the supposedly independent institutions by handing them to his cronies – for nine years in a number of cases – means to secure political space in which to manoeuvre. And it is a policy for the time when he and his party will be in opposition once more, because then these institutions will put the brakes on the power of a government of a different colour. I am also sure that does not want this to happen at the next elections, and in order to achieve this he is ready to play rough. Playing rough includes taking over vital positions in the media. In the last twenty years, the political right in Hungary has always felt that it had to fight an uphill struggle as far as the media was concerned. Here, Orbán wants to achieve a breakthrough, one I think he considers to have long-term strategic significance.
However, even if Orbán’s motives are open to scrutiny and there are no dictatorial ambitions, his actions have caused great damage. An understanding of the norms of a fair and balanced constitutional system, trust in them, and a commitment to defend them if necessary are very hard to develop in a political culture that does not look back on a long democratic tradition; it is easily destroyed. Many of the norms we believed to be set in stone, which were respected by nearly all significant players are now vanishing into thin air. This damages the moral foundations of our democracy, and such damage will be very difficult to repair. It would be important to understand how this happened, how such politic can enjoy the wide support of the public – but this question is beyond the scope of the present article.
Peter Rauschenberger (Ecopolis Foundation) is co-founder of the Green Party LMP („Lehet Más a Politika“).