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Hungary: Democracy distorted?

Law Report—ABC RN
Originally broadcast Tuesday 11 March 2014

Damien Carrick: I'm Damien Carrick ... Hello welcome to The Law Report, in a week that has seen all eyes glued to the cascading events in Ukraine and Russia. But, within the boundaries of the European Union, there's another insidious dilemma. A number of member states are tampering with the basic EU-wide laws which protect their citizens. Hungary, which next month heads to the polls, is one country which has really set off alarm bells. Since the ruling Fidesz party of Prime Minister Viktor Orbán gained power back in 2010. The country's Constitution has been dramatically revamped. Some of these changes have broken European law while others, although strictly legal, challenge the fundamental principles of European unity. Michael Shirrefs reports from Brussels.

Kim Scheppele: The difficulty the EU is dealing with is that it was always imagined as a gentlemen's club where, if you got in, if you were allowed in, it meant you were the right sort of country. And they had this feeling that right sorts of countries would never run into the kinds of problems the EU is now facing with Hungary.

There are lots of little changes which taken together result in a major change and that is that Hungary cannot any longer be regarded as liberal democracy.

Rui Tavares: We were very naive about progress towards democracy. Everybody thought at the time that this was a one-way road. Our view of the world back then was very binary—you had either dictatorships or democracies. Now, in the new century, we know that you have many things in between—what sometimes we call majoritarian regimes such as Putin's Russia and others. The closest example in the EU would be Mr Orbán's Hungary. They are not dictatorships as the ones that we knew from Indonesia's Suharto or whatever, but they also do not give enough room for the opposition, civil society. You know, they are not up to the standards that we wished.

Michael Shirrefs: When the current rightwing government of Viktor Orbán gained an almost unprecedented two-thirds majority in Hungary in 2010 a legal door opened giving Prime Minister Orbán unfettered powers to adjust the country's law books. Now, no one has questioned the need for Hungary to undergo a constitutional revamp, but the problem is the scale and the direction of these changes. Hungarians have certainly suffered under the global economic crisis, with Hungary having to endure some of the harshest austerity measures in Europe. So, it's understandable that many Hungarian people feel angry. But observers say that Viktor Orbán has played on this anger and that his government is engaged in a clever game, using and manipulating Europe's own laws to accumulate power and, in the process, dramatically curtail the freedom of the media and of the judiciary. But just as worrying is the loss of protection for minorities and a concurrent rise in sympathy for anti-Semitic and anti-Roma groups like the far right Jobbik party.

News Archive Mix: [News report 1] It's a scene reminiscent of the 1930s—a European city and a thousand torch-wielding fascists parading past the homes of an ethnic minority. But this is modern Hungary, in a Roma neighbourhood [fades] ... [New report 2] this is a village in northern Hungary from which hundreds of mostly women and children have been evacuated this weekend. The reason? The village has been chosen by extreme rightwing vigilante groups s the location for a three day paramilitary training exercise. The Hungarian prime minister's office says the emergency evacuation story is a lie and the 276 women and children are on a Red Cross organized vacation police.

Shirrefs: And so it's a question, not just for Europe, are we about to repeat history? And if so, what can be done?

President of the European Parliament - Martin Schultz [translation]: [Audio from a sitting of the European Parliament] We move now to the debate on the Tavares report 'On The Situation of Fundamental Rights, Standards and Practices in Hungary'. And I welcome on this occasion, as a participant in our debate, the Prime Minister of Hungary, Viktor Orbán. Welcome to you Mr Orbán. Mr Rui Tavares now has the floor over to you.

Tavares: Thank you Mr. President. Because I know that Hungarian citizens usually listen to these debates, I will start with some words in Hungarian. The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These words my friends, dear President, Prime Minister, are the words in our Article 2 of the Treaty on the European Union. These words are not a bureaucratic invention. These words are not an imposition. These words are the choice of our member states. Hungary in particular, not only signed these words, Hungary wrote this words with other member states. So, the question for our debate here today is, do we take these words seriously or not? In the European Parliament we think ... [fades out]

Shirrefs: This is Rui Tavares addressing European Parliament last July in Strasbourg. Mr Tavares is a Portuguese member of the European Parliament and he's the author of the report that the parliament was about to debate, in very feisty terms, titled 'Situation of Fundamental Rights, Standards and Practices in Hungary'. Now, despite the dry title, the report is a clear, unambiguous and quite damning rebuke of the practices of Viktor Orbán's government. And so I'm standing outside the European Parliament headquarters in Brussels. I'm heading to Mr Tavares' office.

Tavares: I think that what has happened in Hungary in the last years is a lesson in what can happen to democracy anywhere in the world. First you had a collapse of trust in the government before Viktor Orbán's government. Hungary went to the polls and Mr Orbán's party had a 50 percent share of the vote. But with the electoral system that Hungary had in place, that awarded him two thirds of the members of parliament. With two thirds of the members of parliament, this majority could change the Constitution any time, which they did. They changed, twelve times, the old Constitution. Then they drafted a new one completely, apparently per description of a colleague of mine in the European Parliament, Mr József Szájer, a big chunk of this new Constitution was written on his iPad. So, it was a creation of the ruling party itself, which is called a Fidesz party. The opposition did not participate in the drafting of the new Constitution, and after this Constitution came into force, which was January of 2012, the Constitution has already been changed five times. So, even the new Constitution that was completely the work of the party in power, had to be changed already five times. Partly, it's because they have been so detailed in the Constitution they wanted to constitutionalise most of what was their own political platform.

Shirrefs: So, these are changes along ideological lines yes very clearly ideological lines?

Tavares: Well, as I said the opposition almost didn't participate in this procedure, as it has not been participating in the law-making procedure at large, because, not only the Constitution has been changed, but hundreds of new laws have been approved and implemented already.

Scheppele: My name is Kim Scheppele. I'm a professor at Princeton University. Over my career I've alternated between being a sociologist and a law professor and I bring both kinds of knowledge to bear on the Hungarian case. I moved to Budapest in the 1990s because Hungary was a country which had the most powerful court in the world at the time and the transition in Hungary was very largely managed by the Constitutional Court which ruled on almost every issue in the transition. So, I tend to look at Hungarian society through the prism of constitutional law and when this government came to power in 2010 they started playing with the Constitution and that was my area. So, I have been hounding them, more or less, ever since and trying to follow what they've been doing, trying to expose what they've been doing. Because essentially what they've done in the last three years is to undo a functioning constitutional order and to turn it into a kind of nightmare inversion of what it had been. The one thing that Orbán is absolutely right about is that there were lots of aspects of Hungarian society that were very, very much in need of reform. I think everyone agreed on that. But he is very clever. And what he's done is engage in a kind of dual use technology for every fix of a problem. So for example the school system ... complete mess. They had decentralized it, every village and every district in the city had its own curriculum its own schools. If you were a parent and you move from one district to another, your kid was totally lost in the new school system. So, it was really clear that something had to be done. But what they did was they centralized all the schools nationally. They then had every single principal reapply for their jobs. It turns out they then put in place mostly party loyalists as school principals and now they've introduced this curriculum that's kind of an echo from the 1930s, of all these nationalist, sort of, coded, anti-Semitic, anti-Roma writers. And now you've got this nightmare school system right. So, was there a need for reform? Absolutely. But what did they do with the reform? They empowered themselves and their own agenda. And you can multiply that over every institution they've touched.

Tavares: Other than the Constitution and the legal framework, also there were many appointments of key people in the administration, including, for instance, the Supreme Court, the Supreme Court's name has been changed, which formally makes it into a new Constitution which has allowed the majority to curtail the mandate of the previous president of the Supreme Court. They implemented a new provision on the experience that the head of the Supreme Court should have. And because this man had come from the European Court of Human Rights he was not eligible for the new Supreme Court renamed Kuria. And now there is a new Supreme Court with a new president. The same has happened with the media authority, that was a new media authority that has extensive powers over the media, with the ombudsman. Then all these appointments are for nine years. And if in the end of the nine years there is not a two thirds majority to appoint the new person, the person that was appointed now stays. Which means that theoretically some of these people can say for up to 18 years or even more. Also, an important point that I think, in a sense, is the keystone of all this edifice, is the new national security law, whereby top civil servants, meaning someone that works in a ministry, the diplomatic service, agencies of the state, can be wiretapped for two periods of up to a month. Those are not continuous. So, it's two months in the year that can be February and September for instance, but of course you will never know. The Secret Service can access content of private communication, not only the metadata, but what's written inside e-mails, what's said during telephone calls. And this extends also to family members. So, people will say is this to wiretap the opposition or anything? No, it seems that it is mostly directed at the appointees that the Government has appointed itself, because these people have been given very long mandates. And of course being national security, is something that is outside of the realm of European Union jurisdiction.

Shirrefs: As Rui Tavares says, many of the statutory roles in Hungary have been either abolished or reconfigured to fit the overall agenda of the government. Environmental lawyer Sándor Fülöp was for four years the Ombudsman for future generations. It's a position that no longer exists.

Sándor Fülöp: It was more or less eradicated in the 2011 Constitution of Hungary. A very weak position substituted that. But it's more or less an advisory position, rather than having independent decision-making. So, after this change in the Constitution, I decided to resign from this position before my six year term expired.

Shirrefs: Well, the other aspect that has really attracted criticism not just for Hungary, but for Romania and other countries, but particularly in light of these constitutional changes, have been what is seen to be a weakening of some important protections for minorities in Hungary.

Fülöp: Actually, two ombudsperson position opposition advocate the new Constitution and the other ... one was the environmental and the other one was the minority protection. And no one, no one in the political science and no one among the thinking people in Hungary understood how, why. You know, Hungary has so many Hungarians in the neighboring countries. My understanding and many people I talk to, our understanding was that our vested interest to show the best possible gestures to our own, very small minorities within Hungary, in order to be able to claim the same outside our borders. But instead, this. I think the minority protection provisions of the new Constitution should have been much stronger.

Shirrefs: Environmental lawyer and former Hungarian Ombudsman for Future Generations, Sándor Fülöp. You're listening to the Law Report on RN, I'm Michael Shirrefs, and we're looking at the legal, political and social shifts in Hungary in recent years, that have alarmed so many people. Dr Pàl Dunay is a Hungarian-born, Geneva-based lawyer and teacher, specialising in international security matters. He's written that the actions of Viktor Orbán's government, as much as being about shoring up power at home, is also part of a wider challenge to the idea of European shared values and to the moral and legal authority of the institutions that bind the European Union.

Pàl Dunay: Viktor Orbán and his regime is challenging the system with very many little details in the legal system. So, it's very interesting to see how it evolves. You don't see a turning point and that makes, of course, life very difficult for the European Union to challenge the Hungarian Constitution or the constitutional system as such. Because there are little bits and pieces—the media law, the law on elections, the law on giving excessive authority to a body which is supervising, quotation marks, supervising the courts and so on and so forth. So, there are lots of little changes which, taken together, result in a major change. And that is that Hungary cannot, any longer, be regarded as liberal democracy.

Scheppele: Well, I think, first of all, people who have known Viktor Orbán for a long time, and I've known him for 20 years, so I knowm him personally, I've watched him work. He's someone who started politics as a libertarian and then became a kind of center-right, more right wing nationalist. And everybody thinks he changed his mind about things, but actually it's the same ... he's been doing the same thing all these years. He hates anyone to control him. So, that came out as libertarianism in the early 90s and now it's coming out as a 'I want to control everybody else. so that nobody controls me'.

Shirrefs: And is it also a case of 'I don't want Brussels telling me what to do'?

Scheppele: He doesn't want Brussels telling him what to do, but he doesn't want anyone telling him what to do. So, in domestic politics, he has refused to bring his government under the control of any other institution which is why he's attacked the Constitutional Court. And in fact every time the Constitutional Court rules against this government, they amend the Constitution to just put the law that was overruled directly into the Constitution. So, it's a kind of sign that he just won't accept any kind of constraints on his power. So, when he got this two thirds majority it turned out to be a bit of a Constitutional mistake. So, those of us who work on Constitutional law are always worried about these kinds of design defects that aren't apparent until they happen. And in the Hungarian case, they were very worried, when they drafted the election law in 1990, that there would be a million small parties and no stable government. So, they designed this highly disproportionate election law, which means that you can turn relatively small ... well, you can turn a plurality into a majority government. So, Fidesz, at the time of the 2010 election, had about 40 per cent public approval. And then, because of relatively low voter turnout, they got a 53 percent share of the party list vote. And then the election law gave them 68 percent of the seats in the parliament. So, when he runs around saying he has two thirds, it's literally true if you count the parliamentary mandates, but he's never had anything close to two thirds support. So, that was one designed effect, and that interacted badly with another design defect which was that anything in the Constitution could be changed by a single two thirds vote. So, you combine those two things and suddenly he was given the keys to the castle. And so, he could do anything and so he has.

Shirrefs: It's like booby-trapping the castle?

Scheppele: Yeah exactly. It's a system of legal booby-traps right. So, he's a lawyer. His whole inner circle are lawyers. The party started when all these guys met in law school. So, they did everything legally, there was never an illegal moment. And yet, what they've built is this system that really makes it very difficult for power to rotate ever again in Hungary. You just don't see how it's going to happen within the system.

Shirrefs: But for all full legal and institutional trickery, one thing that really sends a cold chill across Europe and beyond is the rise in racism. Hungary isn't alone. All of Europe is seeing violence and hostility directed at Europe's Roma people and against the influx of refugees from Africa and elsewhere, but Hungary does seem to be leading the way in the rise of quite vocal anti-Semitismm, with Jews being largely blamed for Europe's recession.

News Archive Mix: [News Report 3] And anti-Jewish protest in Hungary. Jobbik, which protested on Saturday, is the third largest political party in Hungary and is an openly hostile to Jews. Many here had hoped that the prime minister would directly criticize the far right group ... [News Report 4] Jobbik is openly anti-Jewish and accuses Israeli businessmen of buying up property in the country, wholescale. Leader Gabor Vona claims Hungary is being 'subjugated to Zionism.' ... [Fades].

Shirrefs: Prime Minister Orbán does publicly condemn anti-Semitism, but he stops short of condemning the far-right party that promulgates these views.

Scheppele: He's been blaming the banks. And by the way, when you blame the banks, the way he does it is with this coded, 'and you all know who the bankers are. They're the Jews right'. He doesn't say it, but it's all this rhetoric that everyone knows exactly what this means. So the banks are a very convenient target for whipping up nationalism. The whole discussion about banks and finance in Hungary has this undertone that everybody knows. Now, there's never a quotable moment, right. I mean Orbán would never say, but everyone talks in code about this and a lot of the animus about banks has been sustained, not only because of the financial crisis, I mean people are mad at banks everywhere in the world right now, even without the anti-Semitic overlay. But in Hungary it's got this additional motivation. One of the ways you can see that actually is that there is a far right party called Jobbik and Yobbik's first plank in its platform in the last election was a national bank for Hungary. And you think, what's a far right party doing wanting a national bank for Hungary? Well, it turns out they wanted a state-owned bank that would not be run by Jews. Right? And so this is what Orbán picks up ... in fact your Jobbik had a 10 plank platform and Orbán has done all 10 things. So, this gap between ... a lot of times Orbán says to Europe 'you know, be lucky you have me, you could have them'. But actually, he is doing the same program that Jobbik actually wanted, and in Hungary it's very clear that he is playing under the table with the far-right rather than actually opposing them. So, he opposes them in English, he plays with them in Hungarian. The other thing that happens, and this is a little more controversial because I don't think we've got all the smoking gun evidence yet but it's pretty clear for example, whenever there opposition demonstrations, there are masked hooligans around the edges of these demonstrations that beat people up. A number of outspoken commentators against the government have been beaten up, sometimes in broad daylight in central Budapest, in areas that have lots of CCTV cameras. And then when they report this to the police, the police can't find any evidence. There are cases of these right wing paramilitaries, affiliated with Jobbik, that have gone into Roma villages and have threatened Roma, sometimes for days on end, and the police don't show up. So, one of the things this government is doing is aggressively not policing. So, that's what leads a lot of people in the political opposition to think that Orbán is under the scenes kind of playing with this kind of thuggish violence around the edge of Hungarian politics and some of that is really borrowing a page from the playbook of this far-right party. By the way, I keep calling Jobbik a far-right party, I used to call them neo-fascist, but there was a historian that called Jobbik a neo-fascist party, and they were taken to court in a libel action, and the libel action succeeded. So, you're not allowed to call them a neo-fascist party anymore unless you want to risk a civil lawsuit with some substantial fines.

Shirrefs: No one doubts that action is needed to curb the trend of change in Hungary. But the problem for the European Union is that to move in any direction requires consensus from all 28 member states, and on ideologically divisive issues, this can be a lot like trying to herd cats. So, I'm now on my way to a building called Berlaymont. It's the EU's headquarters in Brussels. I have an appointment with Pia Ahrenkilde Hansen.

Pia Ahrenkilde Hansen: I'm the spokeswoman for the European Commission, which is the executive body of the European Union, and also the initiating body, and the guardian of the treaties which is actually our sort of ... the Constitution of the European Union if you like.

Shirrefs: Were the changes, that the Obama government made to the Constitution, clearly in breach of European law or European treaties, or were they just testing the spirit of the treaties?

Ahrenkilde Hansen: Well, there were different situations. I mean, we had clear breaches of EU law, but we also had more fundamental democratic principles being questioned, for instance with regard to elections, with regard to the judicial powers. So, there is a whole issue there of what the EU can do when some of these values are being put into question.

Shirrefs: The EU is very reluctant to sanction a member state. But I'm wondering whether there is a shift in European thinking, from individual member states, that is requiring a stronger response, partly in anticipation of it spreading further, that whether really there is a challenge to the authority of Brussels?

Ahrenkilde Hansen: Well, I think there certainly is an issue of whether we need, between this various sort of treaty-bound nuclear option that we have to to really question and suspend the rights of certain member states who don't play by the rules, but that is a very complex and and major procedure, you know it's also a very dramatic step ... whether in between that step and then our normal legal means of ensuring compliance with the rules through the so-called infringement procedures, we don't need something a little bit more systemic, but which is not as dramatic and major as Article 7 in our treaty, that precisely stipulates that we can, you know, sanction member states or suspend their rights as it were, if they breach consistently our rules. So, that is what we're looking at now.

Tavares: In order for a country to be a candidate and then to accede to the European Union, this country has to have high standards and democratic practices, rule of law etc. What makes no sense is for us to be so demanding for an applicant country, and then after the country accedes, say 'okay, you're now a member of the club, you know, you can do whatever you want'. The fact that we did not create mechanisms to focus on this kind of problem, is because we were, as was everybody I think in the 90s mostly, we were very naive about progress towards democracy. Everybody thought at the time that this was a one way road. You had either dictatorships or democracies, and when you went from one pole to the other, then you were of democracy and you stayed a democracy. Now, in the new century we know that you have many things in between, what sometimes we call majoritarian regimes, such as Putin's Russia and others. The closest example in the EU would be Mr Orbán's Hungary. And these majoritarian regimes are partly democratic or formally democratic, partly, you know, more authoritarian. They are not dictatorships as the ones that we knew from Indonesia's Suharto or whatever. But they also do not give enough room for the opposition civil society. You know, they are not up to the standards that we wished. It's not that you're going back to dictatorship, but democracy is receding in many places.

Shirrefs: Are you worried?

Tavares: Well, it worries me a lot. I come from a country that was a dictatorship until '74 I was born in the dictatorship, although two years before the revolution. And the point of joining the EU was to not be abandoned anymore in a dictatorship, while the rest of Western Europe at the time was enjoying democratic freedoms. But if it goes on this way you just have to kind of follow the trend with your mind, and then you start to worry with what can be down the road in five years or even 10 years from now. And, of course, you know saying that these things don't happen in Europe, which is sometimes a reaction, it is just fooling yourself. Because Europe is actually where these things happen. They haven't been happening in a while, but they have happened in the past. So, there is nothing except taking very seriously what is happening. But other than that there is nothing stopping it from happening again.

Carrick: Rui Tavares, member of the European Parliament ending that report from Radio National's Michael Shirrefs. For extended interviews and more information, do head to our website at abc.net.au/rn. And of course you can also leave us a comment and read transcripts of the program. That's it for the Law Report, audio engineer this week was Mark Vear and program producer is Anita Barraud. I'm Damien Carrick thanks for your company.