Unbounding the Hungarian Executive and Cementing Illiberal Christian Identity Politics
Amid European confrontation over rule of law conditionality on EU funds, Orban’s Hungarian government is proposing constitutional and legal reforms that will unbound the executive, limit transparency and public accountability, and further illiberal Christian identity politics. Combined with reforms to the electoral law, these constitutional changes are likely to reinforce the ruling party’s dominance and cement the irreversibility of the illiberal turn – writes Professor Renáta Uitz.
On 10 November 2020, the Hungarian government unexpectedly tabled before Parliament a constitutional amendment to the Fundamental Law, which if successful would become the ninth amendment. Despite the pandemic claiming a hundred lives a day, the Hungarian Parliament is in session and the Government keeps it occupied with bills, including a proposed amendment to the election law that would change the requirements for electoral cooperation (joint lists). Parliament held a plenary debate on the constitutional amendment and the modifications of the election law on 18 November. Some opposition parties simply mocked and ridiculed the amendments. Prominent civil society actors criticized the proposed constitutional and legislative changes. The Council of Europe also criticized the proposed amendment for its ‘far reaching adverse effects on human rights’. Considering the dominance of the ruling party in Parliament, the amendments are expected to pass.
The ninth amendment includes two sets of rules: a comprehensive overhaul of the constitutional framework on emergency powers -- to enter into force on1 July 2023, and a set of rules on diverse issues of public concern that have become contentious in recent times -- to enter into force with immediate effect. The overhaul of emergency powers seeks to consolidate powers in the hands of the executive, while weakening external constraints. Some of the other rules seek to make public spending even less transparent, while others reinforce government favoured illiberal Christian identity politics. The amendment seeks to reduce constraints on governmental powers, undermines constitutional accountability and expresses disapproval of difference in society.
Emergency powers revisited: Rooting power in simplicity
The Hungarian Fundamental Law has a colorful range of emergency powers (called ‘special legal order’), that received special attention in the spring of 2020 when the COVID-19 pandemic induced Prime Minister Orbán to seek unfettered decree powers from Parliament.
The ninth amendment plans to consolidate the modalities of special legal order into state of war, state of emergency and state of danger, putting the government in charge of managing such exigencies. This means that the amendment removes the current requirement to establish a Defense Council – composed of the Government, the President of the Republic, the Speaker of Parliament, leaders of parliamentary factions and the chief of defense (as an observer) -- to manage a state of war. It also removes the power of the president of the republic from managing states of emergency, although the president remains the commander in chief.
Under the proposed amendment, states of war and emergency would be declared by Parliament, by 2/3 majority, while a state of danger would be declared by the Government. Parliament can extend a state of emergency, while the government can extend a state of danger based on parliamentary authorization to this effect. Although Parliament is expected to be fully operational during these extreme situations, in case Parliament is unable to fulfill its duties, the President of the Republic can decide in its place - Parliament appoints with a 2/3 majority the President for a five-year term.
The proposed amendment merely requiring the Government to keep Parliament informed about these special measures.
In addition to extending the potential duration of exceptional legal measures issued by the Government during the special legal orders (which include the suspension of acts of parliament), the ninth amendment introduces limited oversight merely requiring the Government to keep Parliament informed about these special measures.
Notably, in the current context, the 2/3 parliamentary majority requirement is hardly a serious constraint: since 2010 Viktor Orban’s Government has managed to secure this majority due to distortions to the election system following constitutional manoeuvres that commenced in 2010. In the last elections in 2018, the ruling conservative-Christan coalition received 49% of the popular vote and a 2/3 majority in Parliament, at 70% turnout, with 2.8 million votes of almost 10 million citizens. Beyond the systematic distortions, the OSCE’s report at the time found that ‘the elections were efficiently administered and offered voters a wide range of political choices. ... [T]he main governing party enjoyed an undue advantage because of a pervasive overlap between state and ruling party resources, biased media coverage and opaque campaign financing regulations’. The proposed changes to the electoral law could further strengthen the ruling party’s dominance.
The ninth amendment opens up the possibility of declaring states of emergency in response to attempts to disturb the constitutional order (and not just for attempts to overthrow it) and also in response to grave and illegal (but not armed) mass actions that threaten lives or property. Although protests in Hungary are not known to turn violent, in 2011 police and fire and rescue personnel demonstrated against the alteration of the age of retirement with opening fire hydrants and throwing smoke bombs. In late 2018, several anti-government demonstrators were taken to police custody for using colorful smoke bombs, devices that are sold as party toys. The nineth amendment suggests that after the 2022 elections, dissenters have to be rather careful when taking to streets in large numbers, if they do not wish to trigger the Government’s streamlined emergency powers.
Against transparency: Shielding public spending and ensuring executive control
The ninth amendment includes two provisions that seek to shield government spending from public scrutiny. One clause defines ‘public monies’ as ‘state income, expense or claim (due)’. According to official reasons to the bill, the aim of the provision is to harmonize the interpretation of public monies across the board. The rule is meant to inspire public authorities and especially courts to construe access to information requests inquiring into public spending narrowly. Lack of access to information is likely to induce further lack of transparency of public spending, fostering corruption and oligarchic relations.
Another provision creates a constitutional basis for a sui generis legal status of ‘public asset management foundation performing public tasks.’ Formally, the aim of asset management foundations (essentially a trust) is to enable the public and private endowment of public services. Since their inception, such foundations (created by statute on a case by case basis) were used in higher education and the cultural sector to install government friendly leadership, via packing boards of trustees. In the public university sphere, the new boards were authorized to appoint university rectors against the will of the university’s self-governing Senate. Students at the University of Theater and Film Arts staged a protest against their newly appointed rector for weeks. The ninth amendment provides a constitutional shield to such foundations, in a new step of asserting government control over academic freedom, further reducing the transparency of public spending.
Illiberal Christian identity politics: symbols that hurt
The Hungarian government is intensifying its crusade against what it calls ‘gender ideology’ (using a popular Polish terminology). It uses the usual tools, such as demonizing LGBTQI rights, refusing to ratify the Istanbul Convention on violence against women or signing the Geneva Consensus Declaration on the protection of the family and opposing access to abortion.
It is in this spirit that the nineth amendment reinforces the heterosexual definition of marriage, and confirms explicitly that ‘the mother is female, the father is male’. This amendment was directly triggered by news reports on the wedding of a couple, where both spouses wore wedding gowns. This marriage was the unintended consequence of a legal change earlier this year that put an end to the official recognition of gender transitions. When the ban entered into force, one of the spouses was stuck with male documents, despite her wish to be recognized as female, so the couple could get married to the chagrin of the regime.
The nineth amendment also makes it the duty of the state to ensure the education of children according to their biological sex at birth, in line with the values of Hungarian constitutional identity and Christian values. This new state obligation will reinforce the clause that recognizes the rights of parents to bring up their children according to the values of their choosing (Article XVI(2)).
Consequences -- or the lack thereof
As before, the constitutional amendment process is not open to public participation. To the extent the ninth amendment is a unilateral governmental response to public protests and dissent, it is the perfect illustration of illiberal public discourse: the government used the press to seek intelligence on dissent and used its powers of constitutional amendment to silence such dissent in the future.
Although the new state obligation on the upbringing of children clearly violates fundamental human rights, it is highly unlikely that Hungary will face serious pressure from the EU to retract. At the time of writing, Hungary and Poland are threatening to veto the EU’s seven-year budget (complete with COVID-19 recovery funds), if the Union were to impose a budgetary conditionality on member states to respect the rule of law in exchange for EU funding. If lessons of a decade of dialogue about respect for the EU’s founding values are any indication, it is highly unlikely that EU institutions will be able to thwart the veto threat and demand a reversal on the nineth amendment.
As such, the ninth amendment is expected to perpetuate the powers of the incumbent political majority. It is yet another pioneering achievement in illiberal constitutional engineering.
Renáta Uitz is professor of comparative constitutional law at Central European University, Budapest.