In the December 11 issue of The New York Times the Nobel Prize winning economist Paul Krugman, one of the regular columnists of the paper’s op/ed page, wrote an article entitled “Depression and Democracy.” Paul Krugman is Professor of Economics and International Affairs at Princeton University’s Woodrow Wilson School.
In about half of his article Professor Krugman spoke in general about economic hard times and their connections to the rise of right-wing populism. He referred to a recent survey that documented “a sharp drop in public support for democracy in the ‘new E.U.’ countries, the nations that joined the European Union after the fall of the Berlin Wall.” In this connection he singled out Hungary as one nation where “democratic institutions are being undermined as we speak.” He mentioned Jobbik as “a nightmare out of the 1930″s but, he added, “the immediate threat comes from Fidesz, the governing center-right party.”
Not surprisingly the Hungarian media immediately latched onto this remarkable article and discovered that some of the information on Hungary came from Paul Krugman’s colleague at Princeton, Kim Lane Scheppele, Laurence S. Rockefeller Professor of Public Affairs and the director of Princeton’s Law and Public Affairs Program. Professor Scheppele knows Hungary intimately. In fact, she lived in Hungary for a number of years between 1994 and 2004. Her field is comparative constitutional law and therefore she has been closely following the Orbán government’s speedy enactment of a new constitution.Professor Krugman pointed to “the overlapping measures” that are being introduced in Hungary to “suppress opposition.” He specifically mentioned the new election law that will give undue advantage to Fidesz, the judicial independence that is being compromised, and a state-run media that have been converted into party organs. “Taken together, all this amounts to the re-establishment of authoritarian rule, under a paper-thin veneer of democracy, in the heart of Europe.” According to Professor Krugman “the European Union missed the chance to head off the power grab at the start.” He warned the European Union “to rethink their failing economic policies. If they don’t, there will be more backsliding on democracy–and the breakup of the euro may be the least of their worries.”
Kim Lane Scheppele
Since Paul Krugman’s article was extensively summarized in Népszabadság and translated verbatim in Galamus several Hungarian newspapers asked for an interview with Kim Scheppele. Here is the text of the interview that was conducted by László Szőcs, a reporter of Népszabadság. It will soon appear in Hungarian translation.
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1. You are referred to in Paul Krugman’s NYT Op-Ed piece, which made you famous here in Hungary, as someone who “has been following the Hungarian situation closely.” In what capacity have you been doing so?
My academic specialty is international constitutional law. And for nearly 20 years now, I have studied the constitutional law of Hungary. Since the constant amendments to the Hungarian constitution started after the last election, I have been reviewing thousands of pages of legal documents to understand what is happening in Hungary for my academic research.
2. You focus on Constitutional Law in your research. At a Stanford University round table last October you were highly critical of the Orbán government and the Fidesz parliamentary majority, arguing that “they fundamentally changed the ground rules of the political order.” What do you mean by that and why do you believe that such a step – or, a long series of steps – is dangerous to democracy?
Writing a new constitution is a fundamental change of the ground rules of a political order. In a democracy, this should not be done with the votes of only one political faction, no matter how large. A new constitution should be written only with a broad consensus.
The first danger signal in the Hungarian process came when the new government changed the provision of the old constitution that required a four-fifths parliamentary vote on the rules of a new constitution-making process. The government used its two-thirds majority to amend the constitution so that it needed only its own two-thirds majority to determine both the procedure and the content of a brand new constitution.
From there, the government began disabling the independent voices that could interfere with its plan to rewrite the constitution. The new media laws threatened the independence of journalists by subjecting them to the unclear standard of political “balance.” This standard is monitored by a media board that is itself not balanced, as it contains only nominees of the governing party. Changes both in the manner of appointing constitutional judges and in the Constitutional Court’s jurisdiction meant that it is nearly impossible for the Court to play its important role of keeping the government within the boundaries of the constitution. The extensive use of private members’ bills in the parliament not only for ordinary legislation but even for constitutional amendments has made it difficult for the public as well as for the parliamentary opposition to see what the government is doing because private members bills allow the government to bypass normal parliamentary procedure and enact laws more quickly. A constitutional democracy requires a robust press, constitutional checks on the exercise of power and transparent processes for enacting laws. Hungary no longer has a well-informed and robust constitutional democracy, even if it maintains the outward appearances of democracy.
3. “Checks and balances” – or the lack of them – are often mentioned when discussing Hungary’s recent developments. Back in June Secretary Clinton urged the Hungarians to be vigilant in preserving their democratic institutions by providing the necessary checks and balances such as an independent judiciary, a free press and governmental transparency. But one can ask the question whether it would be rational for power (any power, for that matter) to show self-restraint? Why should they do so?
One can certainly understand why a political party that has won a supermajority wants to use all of the power that it has. But while it is technically legal for the government to do what it has done, their extreme use of the two-thirds power has violated the spirit as well as written provisions of the Hungarian constitution that has been in place for the last two decades.
Self-limiting power has been one of the important constitutional and democratic principles of Hungarian constitutional law since the beginning of the Hungarian transition in 1989. The Round Table itself involved a broad agreement across the Hungarian political spectrum to the comprehensive constitutional changes in 1989. The “Paktum” (Pact) between the major electoral victor and the major opposition party in 1990 produced another set of constitutional modifications through a multi-party agreement. The first time Hungary got a two-thirds government in 1994, the government limited its own power by adding the four-fifths rule to the constitution so that changing the constitution was out of its own reach. This earlier two-thirds government then started a constitutional-drafting process with the rule that five of the six parliamentary parties at the time had to agree on any individual change before it could be added to the constitution. For a government to come into power now with a two-thirds majority and then to change everything with no participation from the opposition parties is a serious change of an important Hungarian constitutional principle.
4. US Ambassador to Budapest Eleni Tsakopoulos Kounalakis argues (in her otherwise critical op-ed) in Heti Válasz (http://hungary.usembassy.gov/kounalakis12082011.html) that “Hungary is a democracy, and it is ultimately up to the Hungarian people to decide the direction of their country.” With more heated rhetoric on the other hand, Professor Charles Gati opines in the NYT that “with no checks and balances left in the new basic law, Hungary is no longer a Western-style democracy. It is an illiberal or managed democracy in the sense that all important decisions are made by Orbán.” How do you comment? Are we witnessing a fundamental retreat from liberal practices?
Democracy and “checks and balances” are not the same thing. But they are constitutional principles that support each other. Democracy means that government is accountable to the people. But elections are only the beginning of a democratic government. Checks on power ensure that government remains accountable. As James Madison, a key author of the American constitution, said, “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.” When government refuses to share power or to have its own exercise of power checked by independent bodies, it is a sign of serious trouble.
Perhaps most disturbing is the current government’s assault on judicial independence. The new law on the judiciary, combined with the strategic lowering of the retirement age for judges, means that virtually all of the court presidents in the country can be replaced in a single move. The structure of the new National Judicial Office allows one person – the head of that body, appointed by this government for a nine-year term – to select all of the judges in the country without serious participation of the rest of the judiciary or, for that matter, any other independent body. This reduction in the independence of judges has been accompanied by “packing” the Constitutional Court with judges approved only by the government over the objections of the opposition and then limiting the jurisdiction of and access to the Court so that it can no longer regularly review what the parliament is doing. Under the proposed transitional provisions to the constitution, the public prosecutor, now appointed by this government for 9 years, will be able to choose which court to take any case to, which means that he can select the most sympathetic judges for his prosecutions. In addition, the new head of the National Judicial Office will also be able to assign cases to any judge in the country.
These are huge changes in the Hungarian constitutional order and they cast serious doubt on whether Hungary is still a constitutional democracy.
5. “Most constitutions are created against predictable problems”, you told the Stanford audience. Do you believe that Hungary’s new constitution will pave the way to give Fidesz an unfair advantage to keep them in power? Do you believe that the next general elections (scheduled for 2014) will or might be compromised because of the constitutional changes?
We don’t yet know the entire legal infrastructure that will be present for the next election, so it is too early to say for certain. In particular, the cardinal law on political parties has not yet been released.
But the new rules enacted in 2010 for the Electoral Commission mean that the only people who sit on that commission are affiliated with this government. The opposition no longer has any representation in this key body. And there may be a new law on the Electoral Commission yet to come.
The new electoral districts are constructed to be highly sympathetic to the current government, so that, according to an expert study, if the 2002 and 2006 elections were held again based on these districts, Fidesz would have won elections that they lost under the old system. The new media laws and the new media board make it difficult for journalists to report on political matters without looking over their shoulders for dangers.
The proposed Transitional Amendments to the new constitution make the Socialist Party the “legal successor” to the MSzMP, which is branded a criminal organization. And then these constitutional amendments extend the statute of limitations so that cases against the communist party and its members may be reopened. Any fines that are awarded in these cases may be then charged to the Socialists, which may be an effective manner for the government to bankrupt its key opponent. In this climate, it will be challenging for Hungary to mount a free and fair election.
6. Do you agree with Krugman that “a proposed election law creates gerrymandered districts designed to make it almost impossible for other parties to form a government”? Gerrymandering is hardly an Orbán invention. Wikipedia says the term was used for the first time in 1812 in the Boston Gazette and exactly 200 years later a Boston metro area Congressman, Barney Frank will not seek reelection due to the fact that his district is being gerrymandered…
It’s true that the United States gave the name to the practice of gerrymandering. And in many governments, the winning majorities are tempted to redraw the lines of districts to keep themselves in power. That’s normal politics.
The electoral districts specified in the proposed election law in Hungary, however, are very different from normal gerrymandering for two reasons.
First, the new electoral districts are defined in precise detail, down to the last village, in the election law itself. Because the shape of each district is embedded in a cardinal law, no boundary of any of these districts can be altered without getting a two-thirds vote of the parliament to make the change. So the districts drawn by the current governing party to give itself the most obvious advantage will not be changeable by any other foreseeable government. That is not true anywhere else I know.
Second, in most constitutional democracies, there are some limits on how far a governing party can tilt the next election in its favor. Those limits are set by law and reviewable by some other independent body – an electoral commission or a court. In the United States, for example, the party that is disadvantaged by electoral boundary changes can challenge the district boundaries in court so that some neutral observer can see if the process of creating electoral districts was fair. In the Hungarian system, there is no independent body that reviews the governing party’s line-drawing. No court, no independent body and no other power can limit what the governing party says the districts are. Since the law specifies the district boundaries without giving key principles that are to be used in evaluating whether the districts are fairly drawn, there is not even a legal basis for review of the districts that have been laid out in the election law. I don’t know of any constitutional democracy where there is no independent review of the process of setting election districts.
7. What does the theory of democracy tell us about how to save the people from the people? As Tsakopoulos Kounalakis observes, “Prime Minister Orbán and his government were elected through a free and fair election with an overwhelming majority.” Also, the Fidesz candidate, the local mayor, easily won the latest by-election in an upscale Budapest district, with more votes than all of his opponents combined. If democracy is compromised indeed in Hungary, isn’t it a paradox that the demos, i. e. the people don’t resist? Rather, they assist to their eventual disenfranchisement?
Democracy is more than elections. It requires elections – but it also requires more. People must know what they are voting for. During the election campaign in 2010, Fidesz did not run on a platform that promised to change the constitution. In fact, the first time the electorate heard that the constitution might be completely replaced was after the election was over. Even now, I do not believe that most Hungarians realize what has happened. If it takes a law professor like me months of close reading to figure out how the new constitution works, after 20 years of experience analyzing Hungarian law, how can the average person without such a legal background understand?
The process of changing the whole constitutional foundation of the country took only a month from the time that the constitutional draft was proposed until it was finally voted on. This provided little opportunity for public education. The government has never clearly explained what these constitutional changes actually are. The government has never given the Hungarian public the chance to ratify these changes through a referendum. The thirty-two cardinal laws that will shape the basic structure of the most important constitutional institutions – from the constitutional court and the judiciary, to elections and parties, to the office of the president, the public prosecutor and the state audit office, local governments, the central bank and more – are being raced as we speak through the parliament without time for public debate. Often there is no public copy of the final version of the law that is being voted on before the actual vote in parliament so no one outside the parliament can even see what the law is that their representatives are enacting. One wonders whether the parliamentarians themselves really understand what they are approving because of the huge volume of legislation they are enacting each day. Changing a whole legal structure so fundamentally, so fast and with so little public input is not how a democratic system is supposed to work.
8. An “Anti-Putin” front, including extremists and liberals, protested last Saturday in downtown Moscow against alleged election fraud and the monolithic power of the Putin/Medvedev establishment. We do not have anything like that here in Hungary. In fact, an LMP MP was ridiculed for proposing a wide Anti-Fidesz front from Jobbik to MSZP. Is it appropriate to collaborate with the enemies of democracy to save democracy?
Hungary has a very difficult political landscape, where the Fidesz government is flanked on the left by the Socialists and on the right by Jobbik. These parties are not natural allies so it has been impossible for them to work together. Moreover, Jobbik is such an extreme rightist party that it was excluded from the bloc of right-wing parties in the European parliament, making it difficult for anyone to work with them. It is hard for the political opposition to be effective in countering the current government because it is not united.
That said the party that has majority support in Hungary these days is the “Undecided” party. Some new political parties might be able to mobilize discontent with the current government to oppose it effectively. But whether a new party can be created and appeal to this undecided majority depends on what the new election framework looks like by that time.
9. Even if the majority of the people remain silent, “a number of credible voices are raising questions,” as the US Ambassador observes. Intellectuals do feel responsibility to make their voices heard. However, they are often referred to in circles close to the government as either superficial or politically biased observers or both. Do you regard yourself as such?
The foreign voices raising questions about the new constitutional order of Hungary are experts who don’t have any personal connections to the polarized domestic politics in Hungary. The Venice Commission on Democracy through Law which examined the new constitution for its compliance with international principles said that the new constitution “put the principle of democracy itself . . . at risk.” The European Parliament, in a resolution on 5 July 2011, noted that “the Constitution has been widely criticised by national, European and international NGOs and organisations, the Venice Commission and representatives of Member States’ governments, and was adopted exclusively with the votes of the MPs from the governing parties, so that no political or social consensus was achieved.” Most of the independent experts I know who have made themselves aware of developments in Hungary are very concerned. None of us are close to the government or affiliated with the opposition parties – or even involved in Hungarian party politics at all.
10.Let’s play a public opinion survey for a minute. Which of the following statements do you agree with the most? A. “Those who raise concerns in regard to the current state of Hungarian democracy (especially from the United States) do not serve US foreign policy interests either intentionally or unintentionally.” B. “Those who raise concerns in regard to the current state of Hungarian democracy (especially from the United States) do serve US foreign policy interests but they do so unintentionally.” C. “Those who raise concerns in regard to the current state of Hungarian democracy (especially from the United States) do serve US foreign policy interests and they do so intentionally.”
Academic experts who raise concerns with regard to Hungarian democracy speak for no one but themselves. I am certainly not speaking for the US government. As someone who lived in Hungary for a long time, I care deeply about Hungary’s future as a constitutional democracy. And Hungary’s constitutional democracy is at risk.