HVG launched a series of opinion pieces on “what to do” if the united opposition wins the 2022 national election. I know that most of my readers would not be impressed with such a hypothetical question when they are confronted every day with the determination of the individual small parties to hold on to their independence and when serious political mistakes are made, such as we recently witnessed on the part of Ákos Hadházy in connection with the Borsod by-election. Personal antagonisms are unavoidable, but their public display doesn’t encourage trust in the electability and competence of these mostly untried politicians.
Yet, as the municipal elections proved, a victory by the anti-Fidesz forces is a live possibility even today. And given the government’s inept handling of both the COVID-19 pandemic and its economic consequences, political discontent is widespread. Therefore, it is incumbent upon opposition politicians to think not just about how they are going to take on the Fidesz political machinery at the election but also what they will do afterwards, if they win.
The series began with an article by Gábor Tóka, professor of political science at Central European University, titled “Does the opposition possess a silver bullet?” He concludes that the opposition doesn’t have what it takes and that, although Fidesz will not achieve another two-thirds majority, it will win the election. His forecast is based on the findings of recent opinion polls. He does not expect any major change in the political landscape in favor of the opposition forces between now and April 2022 because “neither the passage of time nor a change in the economic situation” is enough to alter the present political balance.”
This pessimistic prognosis didn’t discourage other authors, who opted to engage in the “what if” debate. Zoltán Fleck, a professor of law and head of the department of sociology of law at ELTE’s law school, explored the limited legal possibilities after a victory, which don’t provide a free legal hand for the restoration of the rule of law. István Elek, a founding member of Magyar Demokrata Fórum (MDF) and an MDF and later Fidesz member of parliament, wrote a long essay about how the rule of law can be restored after the opposition wins the election with a simple majority
Fleck’s article, “Who are the real enemies of the rule of law,” addressed the problem first. During the summer, Fleck gave a short interview to Hírklikk in which he said that “most likely after a 2022 opposition victory, we will have to abandon the pure application of the rule of law. But this was always the case after a regime change, after great revolutions.” This statement was the basis of an ugly attack by Tamás Pilhál of Pesti Srácok. He and his Fidesz employers cast themselves in this article as the defenders of the rule of law, that is, of those laws on the books which the Fidesz government, with its two-thirds majority, sometimes illegally enacted.
If the opposition wins, says Fleck, “the work of the new parliament will be made impossible … by the formally independent justices of the Constitutional Court, the Chief Prosecutor, the head of the State Audit Office, the chairman of the National Bank.” Fidesz “consciously drove the country into a situation in which the liquidation of the rule of law can be continued indefinitely, citing mere legal forms.” This is what must be avoided by “stepping out from the mendacious formalism.” That’s why a certain legal flexibility is needed.
István Elek, on the other hand, criticizes Fleck’s train of thought by pointing out a contradiction in his reasoning. “On the one hand, he suggests the temporary termination of the pure application of the rule of law and, on the other, he finds it self-evident that the Orbán regime eradicated the rule of law and therefore we no longer live in a democracy.” What kind of temporary termination of the rule of law are we talking about in that case, he asks. Elek’s position is that “because this present regime is no longer a country of the rule of law and even the parliamentary decision-making isn’t legitimate, it would be pointless to distinguish between the values and principles of the rule of law and their formalities.” As far as Elek is concerned, the new political formation, even after a victory, “will not be in a position, regardless of the size of its majority, to render legal decisions. That can be done only once the rule of law is restored.”
Members of the Constitutional Court in 2010. Since then, Orbán has packed the court, which now has 15 members.
Elek’s starting point is the Fidesz Basic Law of 2011, which included a statement from the earlier constitution that “no person’s activity shall be aimed at the forcible acquisition, exercise or exclusive possession of power. Every person shall be entitled and obliged to act against such attempts in a lawful way.” The new parliament must determine the date on when “the stealthy coup” by Fidesz was launched, which Elek designates as the fourth amendment of the 2011 constitution on March 25, 2013. It was at that point that “parliament voted that, from here on, the Constitutional Court no longer has the right to investigate the constitutionality of the Basic Law and that, from there on, it could only have the right to scrutinize the law on the basis of procedural requirements.” All laws enacted after May 24, 2013, when this amendment came into force, should be annulled by a simple majority vote of parliament.
This would be an elegant way of dealing with the problem. Elek is not a legal scholar, but a somewhat similar solution was offered by Imre Vörös, a member of the Constitutional Court between 1990 and 1998, in an article that appeared in March 2012. Vörös was interviewed by György Bolgár about the Elek article, and my impression was that he finds Elek’s solution legally sound.
Interesting post as to the dilemmas the opposition faces. Perhaps, Istvan Deak’s “The Lawful Revolution, Louis (Lajos) Kossuth and the Hungarians 1848-1849” is relevant.This imperfect and perhaps “incorrect” analogy at least suggests what might happen if “reform” is thwarted by the packed regime court, let alone the unlawful so called regime “laws.” While I support a peaceful transfer of power from the regime, let alone a return to the rule of law, we -of course- can not assume that a transfer and/or return to rule of law will be 100% peaceful as our publisher and many readers- no doubt- already know.
On the other hand, as an aging and retired mental health therapist, I claim no special skills regarding how his regime will end. That is why I welcomed the article today, let alone the contributions of the readers of “Hungarian Spectrum”. Most of all, I am grateful for Professor Balogh’s optimism and analysis, let alone her translation of some major opinions of serious scholars etc. living in Hungary. Hopefully, the post today will be the start of still other opinions, especially regarding the issue at hand, the defeat of this regime.
Orban’s inauguration on May 29, 2010.
“I swear that I will be loyal to the Hungarian Republic.”
“I will uphold the Constitution”
Proof:
at 3:10
https://www.youtube.com/watch?v=PQ-4R26VBXE
April 25, 2011:
Orban & his party abolish the Constitution, and Hungary is no longer a republic.
THEREFORE:
Any law, decree, etc that Orban & his party have enacted, amended, etc since April 24, 2011 are illegal acts of usurpers of power.
This includes the new & unfair election laws, rules since April 24, 2011.
Therefore the results of the 2014, 2018, 2022 general elections are null and void.
The new Parliament hereby reconstitutes itself as a Constitutional Assembly. The Constitutional Assembly promulgates among others
Agreed 100%… Furthermore, after these actions the Fidesz lost all legitimacy for governing and fabricating ‘laws’ and decrees. However, no autocratic regime, let alone a fascist one can be removed by using democratic means only. Those thugs who stole the country only understand brute force, and once the opposition has the chance they should turn Orban’s own methods against them…
Off topic, but relevant to “Spectrum” post of 2 days ago i.e. the tragic decision regarding repeal of Polish womens’ rights to termination of severely impaired fetus. I just saw photos of protest in Warsaw against the regime supporting that repeal. Professor Balogh was prescient in suggesting that the Polish regime may have crossed a huge red line for many Poles. Protest tonight in Warsaw may have been the largest since Solidarity days.
That regime like the Hungarian regime can not resist sinking to new lows until finally the populations of both Poland and Hungary say enough and turn these regimes out.
According to Chicago’s Polish language TV station yesterday (Polvision which has 1 million viewers in the metro area) President Andrzej Duda is “ready to work on a solution to the current conflict over abortion law to calm down social unrest and take into account women’s health and rights,” the station is closed captioned in English. The story indicated that women who have taken Chorionic Villus Sampling (CVS) tests or Amniocentesis with results indicating trisomy 18, and trisomy 13 chromosome abnormalities were the topic of potential legislation. Babies with trisomy 18 or trisomy 13 are very severely affected with birth defects and mental retardation and the majority do not survive past one year of age. These tests also detect Down syndrome and from this story it appeared the legislation would not allow abortion in those situations. The report indicated that last year in Poland 435 abortions were performed where tests indicated the presence of chromosome abnormalities indicating Down Syndrome. The 1993 law allowing the abortion of the unborn with disabilities accounted for 98% of all abortions carried out in Poland. According to this Polvison report 1,074 of the abortions in Poland last year involved those with identified chromosome abnormalities. The data for… Read more »
Thanks István. Of course, as you know, the Polish government or for that matter, the US government will not at present provide long term supports for children with Down Syndrome. Both governments should do so.
Regarding the meaning of “severe fetal abnormalities”, Down Syndrome is increasingly not included in such a category.
Nevertheless, the choice to carry to full term should still be an individual one, not dictated by government. Not being a scientist, but familiar with the scientific method, I don’t regard television as a sufficient resource for determining what % of fetal abortions are those with Down Syndrome in either Poland or the US.
My understanding is there are about 50,000 Polish nationals living in Chicago, making it what is said to be the largest single concentration of Poles citizens outside Poland. Some with Green cards and some effectively dual nationals I guess. There are also undocumented Poles here working in the cash economy. One of my best friends is a Polish Chicagoan and according to him the community here is overwhelmingly in support of PiS. I assume local Polish TV here reflects that sentiment too. Since I do not read Polish I have no way of searching for Polish media reports relating to statistics on abortions in Poland in 2019, to get a more accurate understanding of the issues. Eva did not provide any data on the number or types of abortions in Poland under the exemption that was overturned by the court. It is clear the Polish Catholic Church would like to end the exemption for abortions of disabled unborn babies. That is an ancient position of the Catholic Church and not just in Poland. What is called most often “infanticide” was a widespread practice throughout human history that was mainly used to dispose of unwanted children and potentially burdensome infants. Its… Read more »
I would be cautious about the television station because if it is the official public television station then it is just a mouthpiece of the government. Just like in Hungary,
https://foreignpolicy.com/2019/11/25/poland-public-television-law-and-justice-pis-mouthpiece/
One more thing. they perform about 1,200 abortions a year because of impaired fetuses. I have read about 80,000 to 200,000 abortions abroad and who knows how many are done by quacks at home.
Also, let me express my profound disgust with a church with such medieval ideology and practices.
Why for goodness sake do you try to relate abortion to religion, belonging to some tribe, being dependent of Christianity or other irrelevant stuff. You write it is more complicated than we normal people can understand. In my opinion abortion should be a choice a woman, and only the woman can make free of pressure from religious people life-long conservatives, and other bigots, and indeed their partners. I have three children with my ex wife, and we are happy with all of them. With our first child there were some tests necessary to exclude a handicap that would have had serious implements on his and our lives. Thank goodness the suspected problem was excluded. Before the tests we tried to analyze what consequences any result would have to decide for or against an abortion. We decided on beforehand that we would decide for abortion if the suspected handicap would be confirmed. The reason for this decision was not to avoid any suffering for the child, but that we did not want to spend the rest of our lives with sorrowing about the future of this child, who would never be able to get an independent person. We had seen enough… Read more »
Istvan, sorry but this is a typical example of the catholic perversity!
So infanticides were forbidden (but still practiced of course), but wars which killed millions of people were ok and outright torturing and killing of heretics and witches at the stake was fun for the catholical clergy – almost as much fun as practicing their pedophile ideas …
I’ve written about this before:
When that young catholic priest said about withes ” yes, their bodies were destroyed but their souls were saved” in a discussion we all wanted to strangle him – 80 years ago.
This is a complicated problem, sure, but the problem is that the opposition is weak, fundamentally weak. These intellectuals declare that the Orban system is a profoundly corrupt, autocratic regime which set up 100 different hurdles for the opposition. This is true, no question. But then when the opposition may win a very slim majority (unlikely, I agree with Tóka, but it may, just may, happen) then – according to Elek, Vörös etc. – this slim majority would have to respect (A) the results of the rigged election (in which under fair circumstances the opposition would achieve much-much better results); and (B) the rules of the autocratic system which were enacted (including the extra-legal conditions such as partizan fideszniks in the prosecution, Constitutional Court etc.) exactly to prevent the non-Fidesz political forces from ever establishing a democratic system. This just doesn’t make any sense. Why do the opposition want to respect the autocratic system rules and conditions (unlimited funds for Fidesz, propaganda machinery working for years to have a lock on the minds of voters, rural power structures forcing fostered workers to vote for Fidesz etc. etc.)?? It’s really mind boggling. Of course it’s not enough to win (at least… Read more »
Hear, hear ! except for the “approval seeking” bit,
As others have written it would take a kind of revolution which makes all the crazy Fidesz laws (A new law every day keeps sanity away …) irrelevant/obsolete.
Can this happen?
What is the chance of some Fideszniks having kept a minimum of sanity and honesty so they’d help the Hungarian people against their power- and money-hungry honchos?
How far does the regime have to go before something happens?
Leaving the EU might help but I don’t think that Fidesz wants to get cut off the sources of money.
“Legal Complexities surrounding the Restoration of the Rule of Law in Hungary”
Today’s title is daunting indeed. As we can be assured by Marty, the criminal Orban regime has attempted to support itself with “legality” at every turn. The depressing prospect is therefore if the regime loses power how the new government can repel the onslaught of Fidesz’s shyster lawyers who will fight tooth and nail to oppose the dismemberment of the criminal system carefully crafted since 2010.
It is earnestly to be hoped that the “opposition” already has people charged with planning how this should be done by means of rendering the Orban/Fidesz governing construct illegal from the very beginning.
OT but… A New Hungarian Achievement!
Yesterday’s Euronews reported that The Speaker of the Hungarian Parliament had achieved a new level of Anti-democratic Idiocy by levying a fine of Euro 12,000 (4.4 Million Forint) against a Jobbik MP Peter Jakab for attempting to present Prime Minister Orban with a sack of potatoes in Parliament. (Mr Orban had merely been following the new/old Fidesz vote-winning method of bribery by recently rewarding voters with potatoes in a critical election.)
In this simple gesture Laszlo Kover has won my nomination for the coveted “ASSHOLE-OF-THE-YEAR Award which will make him eligible to compete at year’s end for the title of EUROPEAN ASSHOLE-OF-THE-YEAR.
With his showing to date it looks as if Laci has a good chance of carrying off for Hungary this coveted title. Well done, Speaker Kover!
In German we would say:
That’s an insult to the a**holes even!
I just hope that the picture of this will go around the world – as my wife said Hungarians easily win the price for crazyness.
At least they make everybody outside laugh, thanks!
Bimbi
Unfortunately it’s much worse, asshole-of-the-year sounds almost like trivialization – this is a hard act of suppression by a fascist regime.
Let’s not forget that the regime kills all opposition proposals at committee levels (closed sessions) denying them any opportunity to (publicly) debate those in parliament, which as a practice is surely illegal as several other abuses of procedure made routine.
So much for “legal”.
Are women represented in the higher layers of Hungarian judiciary at all??
If so – how many women are judges in the highest courts (Kuria and Constitutional)?
Well, they have Mrs. Magyar to tell them how to behave.
To be or not to be …
… to be, Imre Vörös and István Elek believe one can turn back the rule of law s clock with a simple majority. How do we have to imagine that? Does the opposition come to parliament and introduce a law. Köver will certainly get angry and turn off the microphone. Or they can vote him out of office beforehand or send him into retirement. I mean Fidesz will certainly not stand by and let everything happen.
… not to be, the opposition is not winning the majority. Orbán will have a heart attack or a stroke and the nasty János Lázár or even worse one will sit in Orbán’s boss’s chair.
No reason to even worry about issues like this. The opposition will never win an election in Hungary – ever. Orban has unlimited funds and power. Only a complete decapitation strike will bring on change.
Mike
Right, if nothing changes.
However panta rhei and changes ARE happening, simple e.g. Orbàn may get a stroke, etc.
“Never” is unknown in history.
OT a little bit older 1. Oktober 2020 sorry Budapest’s mayor Gergely Karácsony warns that sanctions could play into the hands of the Fidesz government. Instead, Brussels should distribute EU funds directly to the municipalities. … The Vice-President of the Commission, Jourová, who was sharply attacked by Orbán, had said in Brussels on Wednesday that one had been “naive in the past” with regard to the protection of the rule of law in the member states, and that one must now exert more pressure. However, Karácsony warns against measures that would affect Hungary as a whole: “What the EU should avoid are sanctions against the country. That would give the impression of punishing the population. Because that is exactly Orbán’s trick: to tell the citizens that the EU is an enemy of the entire nation, an enemy of Hungary. Brussels should distribute the EU funds directly to the municipalities, bypassing the government Rather, government policy as such must be sanctioned. “Therefore, we suggest that if EU funding is cut because of violations of the rule of law, it should instead be diverted and paid to the municipalities. This would benefit the citizens, but the government could no longer finance its… Read more »
@Don Kichote, 11:43 am
“Brussels should distribute EU funds directly to the municipalities”
Mr Karacsony would say that (understandably) wouldn’t he? The central government would go into paroxysms of outrage if that happened I can not believe that such a decision would be approved by the other heads of states. However, Hungarians have to understand that they will have to suffer a bit if this “cockerel on a dung-heap” situation in Hungary is to be resolved (and which the Hungarian electorate was seduced into approving), so maybe we should all have six months or a year without being propped up by the EU. Maybe then Fidesz would start to feel the heat. (High time!)
If Hungary doesn’t get any more financial support for one year, Orbán’s planned economy will crash. When I look at the Forint we are falling in slow motion.
The devaluation of the Forint is just great for Orbán. His economical understanding is limited to export and this benefits of the weak Forint. And since he convinced those with possessions to invest in Forint based state bonds also these are losing value heavily. The bill is paid by those who suffer from the inflation connected to the devaluation, but since when does Orbán care about the financial existence of Hungarians that don’t belong to his royal court?
The cronies will suffer hard if no EU money arrives anymore. It is difficult to say whether they will further sustain the regime if they lost their benefits. We, the ordinary tax payers will be hit as well, don’t forget that any punishment by the EU may be used to tax us more – this is one of our “fundamental values”….
It is impossible to govern this country democratically with institutions opposing democracy. To oppose democracy FIDESZ has designed a system that can and will block every single decision that is not initiated by Orbán – already today. I can’t imagine that Orbán will voted out of office, this is what the “electoral system” is created for and Orbán can create up to 2.5 million votes from beyond the borders (in 2018 more than 96 % for FIDESZ), while in 2018 only about 200 000 votes were counted from there (they were just enough to get over the 2/3 of the MPs). But if…. The FIDESZ Hydra needs to be headed. It is a criminal organisation and needs to be handled with an approach that fits to this fact. Removing Polt can’t be done for many years, except he is removed out of office for having committed crimes in office. Thwarting punishment is such a crime he should be accused of and he could spend years in prison for it. With an incorruptible attorney general the way is open to prosecute the entire mafia and declaring FIDESZ a criminal organisation. The house of cards collapes. Of course we need to return… Read more »
“Removing Polt can’t be done for many years, except he is removed out of office for having committed crimes in office. Thwarting punishment is such a crime he should be accused of and he could spend years in prison for it.”
True, but who prosecutes the Chief Prosecutor? Maybe the notional new government should join the EU prosecution scheme and ask them to investigate Polt immediately?
Any prosecutor can halt legally an investigation conducted against himself. How the prosecution offices are organised internally is not highly regulated and the department of justice will be able to adjust for creating an office for organised governmental crime, manned by experienced prosecutors that kept away from acting as the regime wanted, don’t forget that especially from the legal services Orbán gets rulings he is pretty upset about, so enough prosecutors for this job can be found. There is no need in changing penal law, existing law is perfectly clear. Sure, to get everything done will require a long and intensive commitment, but if that work is not done the rule of FIDESZ will survive for decenia and will hinder the rule of law.
I see, thanks. So legally it would be possible but whoever did this job would need some courage too, as those people who Polt has been protecting would no doubt try to pull some strings, maybe behind the scenes, and give the new prosecutor(s) every opportunity to drop the investigation…?
Panta
Polt can be suspended when an investigation is launched, ie. immediately and removed when charged.
Theoretically* a new chief prosecutor (* elected with 2/3 majority) can order investigation and prosecute of course. Simple majority Parliament can use the special parliamentary supervisor of the prosecution office, a scam introduced by Fid, to impose control over the independent Tax Office, see A.Tallai (aka pigface) State Secretary for …and Taxation.
Extremely interesting topic, which will be a crucial crossroads if, a very big if, the opposition won an election. The opposition will have to muster the political will, resources and skills to carry out a revolution, to cut out the cancer of the Orbàn mafia from the body of the state. Imo I.Elek is right one cannot play by the regime’s rules set to perpetuate its power. E.g. what if the law said that every vote for Fid will count for two since they are defending the future of the nation? Or that “Fid is the nation” and “the nation cannot be in opposition” (both have been stated by Orbàn)? Actually the appointments of Polt, Matolcsy, Domokos etc. at the head of independent institutions were illegal since those were active Fid politicians who also served the goals of the party in these positions. They can all be at least fired on the basis of Art. 2 of the basic law, if not prosecuted for other crimes. The Fid practice of creating fictional basis in legal processes by parliament vote can be used. (Fid voted that evidence submitted by the police re the 2006 riots were false, the courts had to… Read more »
Can the opposition win in 2022? At this point, they lack a coherent strategy for accomplishing this feat, so I am rather doubtful that they will be able to pull it off. If they manage to beat the odds, they are going to have to take swift action resembling the storming of the Bastille. I could go on for hours, and I do not have hours right now, but Orban will still have the power to torpedo their broad coalition. He will still control vast swathes of the economy, the judiciary, loyalists in the police, the military (including TEK), several major cities, and the overwhelming majority of small towns and villages. Then, there is that little line in the Alaptorveny that gives the Budget Committee, composed of three Fidesz loyalists, the right to dissolve the new government if they can determine that the new government’s budget will raise Hungary’s debt level. (Hint: They can.) Under current political and legal realities, an opposition victory would immediately plunge Hungary into a constitutional crisis. Chaos would erupt. The opposition needs to first come up with a strategy for electoral victory, then a strategy for dealing with the melee that is sure to follow.… Read more »
The apparent opposition between ‘Formalist’ and ‘Substantive’ conceptions of the Rule of Law here is illusory. The Hungarian legal scholars are conducting their debate with inadequate attention to the EU context. The intertwined principles of “Precedence” and “Direct Effect” of both EU law and ECJ judgements over Domestic Law can potentially be used to cut this Gordian knot. The ECJ has recently asserted the the supremacy of EU law over not only national statute law but also the national constitutional law of member states *where an issue arising from the ECFR* (European Charter of Funamdental Rights) is at stake. The ECJ has also sucseffuly asserted its own power to rule on such points. See this article in Verfassungsblog https://verfassungsblog.de/towards-a-european-court-of-fundamental-rights/ So, if a new Hungarian government were to co-ordinate with the European Commission over the use of an infringement procedure before the ECJ (Hungary cannot launch infringement proceedings against itself!) the effect of ‘entrecnhed’ legal provisions can be nullified in the event that a plausible link to ECFR principles can be shown. Hungary’s Rule of Law situation can thus be repairedd in a way which delivers substantively just results while respecting formal legality and avoiding the (dangerous) resort tos concept of… Read more »