Hungarian constitutional developments and measures to protect the rule of law in Europe : a comparative approach

Although events in Poland have overshadowed concerns about constitutional degeneration in Hungary, and even if the situation seems to be ambiguously suspended both for Hungary and the EU, it is worth reflecting on this topic, considering at the same time the European tools aimed at defending democratic values and a broader comparative overview of the region. The case of Hungary is now pretty embarrassing for constitutional law scholars. We no longer speak, with limited exceptions, about this subject, except in terms of comparison with Poland (or vice versa). The European Union seems much more concerned with the latter country, even if the European Parliament from time to time—without success— calls on the Commission to embark on the road of the rule of law mechanism against Hungary. The ‘constitutional revolution’ of the right-wing government has not yet been fully accomplished, despite the spoils system being applied with scientific rigour (some authors speak about ‘purges’). Further developments are expected, in fact, with reference to migration issues (with a special constitutional amendment on that point (we wait for the next step after the failure of the first attempt on November 8, 2016) and consequently in the relationship between European and national law, with important effects on the debate on the limitation of national sovereignty. All this still does not cause severe reactions on the part of the European institutions. Their official attitude will have a negative impact on their credibility in defending the constitutional values of the new member states after their admission into the EU, making negotiations for the acceptance of additional members less credible and questioning the whole system of democratic conditionality. In addition, we are seeing discordant behaviours of the Commission, the Council and the European Parliament and the application of double standards in relation to countries that have similarly undermined important democratic values, such as the separation of powers and the independence of the judiciary. The fact that the European Commission said it was satisfied with Hungary’s reaction following the two judgments of the European Court of Justice which had more relevance to the rule of law (about the early retirement of judges and the removal from office of the ombudsman for data protection) shows how the concept of the rule of law at European level becomes strongly attested on formal terms. A wide gap thus emerges, namely the lack of a systemic view of the rule of law situation in a given country. Another important limitation is that within the parameters of the democratic ‘certification’, no particular attention is paid to the dynamics of the form of government and of the party system. In fact, in both Hungary and Poland, the settlement of a hyper-majority government system has sacrificed institutional balances in the name of governability. Added to this are the limits of post-socialist constitutional engineering, which is demonstrating all its danger. Much has been written about the quick Hungarian constitutional development during the 2010–2014 parliamentary term. Less explored are the subsequent steps, started in the next legislature (ongoing since 2014). This is due to several factors.The transformations that took place in the FIDESZ second parliamentary term are more subtle and less visible and are linked to specific issues; furthermore, in February 2015 FIDESZ lost its two-thirds majority in parliament and this is already causing problems (see the replacement of constitutional judge vacancies and of the president of the court), and the occupation of the main institutions by representatives of FIDESZ has been completed. The current constitutional developments which are most likely to come into conflict with the principle of the rule of law concern the state of emergency (the 2016 VI constitutional amendment) and anti-immigration policies (the 2015 anti-migrant legislative package and the recently proposed constitutional amendment to introduce barriers to the limitation of national sovereignty). However, as mentioned, the commentators do not pay particular attention to how the transformation of the system of government (a growing presidentialisation of the executive, a progressive weakening of parliament, the systematic use of the spoils system) and the deprivation of power of the Constitutional Court, have tightened the system (see also the National Electoral Commission and the Kuria admissibility of the referendum question). The absence of manifest and continued conflicts such as those occurring in Poland since November 2015—not only between the government and the constitutional tribunal, but generally between the government-parliamentary majority and almost all of the judiciary (a so called ‘parallel legal system’)—does not mean that the situation is peaceful but, on the contrary, that democratic control instruments have been very weakened. The same 2014 parliamentary elections took place, according to OSCE, in a not exactly fair manner (see also the 2011 electoral reform, gerrymandering, etc.). In this way, the political super-majority has—often in an underhanded manner—changed the rules of the democratic game, seemingly favouring European demands. In this regard, the story of the European Court judgment on the early retirement of judges is symptomatic: although formally respected, it is in fact without substantive consequences (the judges were not reinstated in service and they almost all agreed compensation). The main elements of my analysis, which must necessarily include political and constitutional assessments, are: the ‘rule of law mechanisms’ in a plural dimension; the failure of these mechanisms and of the entire system of European democratic conditionality; and the cultural and constitutional framework of the new EU member states, including some defects in their constitutional engineering (especially the constitutional rigidity, the role of constitutional courts and the hyper-majority government).