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.
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.