It comes from a manifesto proclaimed by the Hungarian PM during the opening session of the current legislature. The manifesto is the founding document of the “Regime of National Cooperation,” a regime which constitutes a break not only with respect to the postwar decades of “occupation and dictatorship,” but also with respect to the political order which emerged from the political pacts together are commonly known as the bloodless transformation to liberal democracy. Those political pacts, according to Orbán, „ instead of bringing freedom brought helplessness, instead of independence brought indebtedness, instead of prosperity brought poverty, instead of hope and brotherhood brought a deep psychological, political and economic crisis.” In contrast, national cooperation should be build without compromises around such values as “work, home, family, health, and law and order.” Everyone, “regardless of age, sex, religion, political views, regardless of where they live” are invited to the the task of erecting these “pillars of a common future.”
The Fidesz MPs hailed the manifesto in a separate bill and the government insisted on putting it in a visible place in all public offices in the form of a poster which lacks only the effigy of its author. Alas, the conservative-revolutionary masquerade was followed by actions. And it is from the new Hungarian constitution, in force since January 1, 2012, that one can properly judge what the new regime is really about.
The new Fundamental Law begins with a preamble called “The National Avowal of Faith” which shall be the interpretative basis for the future rulings of the Constitutional Court. It declares that henceforth the Hungarian civic identity shall be funded on the values of nationality, religion and family, “loyalty, faith and love.” It emphasizes the special role of Christianity in the national survival (confirmed additionally by one of the recent legal acts which reject recognition ex officio of many non-Christian creeds). It defines the constitution in a religious fashion as a “covenant” of the Hungarians of past, present and future generations. The family, as understood by the Constitution, is an union of between man and woman.
The National Avowal of Faith also includes many references to history, which repeat some of Orbán’s theses from the above mentioned manifesto. It proclaims that “after the moral defeats of the twentieth century, our need for spiritual and intellectual renewal is paramount” and the concomitant necessity of re-establishment of Hungary’s reputation. Interestingly the nation, according to the preamble, did not take any part in shaping its own postwar history. All responsibility for the moral crisis is due to the totalitarian regimes: between 1944 an 1990 Hungary was “occupied” first by the Nazis and than by the Communists and “no statutory limitation applies to the inhuman crimes committed against the Hungarian nation” by the occupiers. While the ex-dissident architects of the post-1989 republic are this time spared condemnation, it’s paramount to mention that the most recent constitutional amendment defines the Hungarian Socialist Party, MSZP, as the legal inheritor of the communist crimes. It is not certain what legal consequences follow for the faith of this mayor oppositional force.
While the preamble rejects the legal continuity with the 1949 constitution, it declares to draw its inspiration from the so called “Historical Constitution” – a medieval doctrine on which the Hungarian juridical order was based for most of its pre- World War II history, and according to which the country’s sovereign was neither the people nor the king, but a metaphysical being, the St. Stephen’s Crown itself. This is how Miklos Horthy, an admiral without a fleet, could have become a regent without a king. It also served to lay claims to the territory lost by Hungary in the Treaty of Trianon in 1920.
The National Avowal of Faith is an expression of a rather controversial moral views and historically inaccurate opinions of a certain part of the Hungarian political elite, but certainly cannot be said to resemble a legal framework for a modern pluralistic society that Hungary is. Doesn’t it follow from the preamble that in terms of faith and gender, some citizens are more equal than others, in defiance of the Charter of Fundamental Rights of the European Union which the previous government subscribed to?
After 1989 Hungary revised in depth the 1949 constitution (so that the only article left was “the capital of Hungary is Budapest”), but fell short of legally abolishing it as such. Does the rejection of continuity with the Communist constitution mean cancellation of the “invisible constitution” of the post-1989 republic, that is, all the rulings of the Constitutional Court?
And who actually rules Hungary: a people or a crown? And if the crown, on what territory? The latter question gains in political weight as the new constitution contains a possibility of granting voting rights to the Hungarian leaving outside the borders, an act which would enlarge Fidesz constituency, but would not do any good to the already tense relations between Hungary, Slovakia and Rumania.
Nevertheless, it is not the National Avowal of Faith, but the main body of the new constitution that contains the articles crucial for making a judgment about the nature of the new regime.
First, the constitution proclaims what the Regime of National Cooperation is not, changing the name of the country from “Hungarian Republic” to just “Hungary.” More importantly, it dramatically reduces the authority of the Constitutional Court in what concerns all budgetary issues, as well as grants to the government full liberty in appointing its members. Furthermore many of the most controversial new provisions will be possible to amend only when possessing a qualified majority of two thirds (the so called cardinal acts). In addition, the term of office of the institutions entrusted with the role of maintaining checks and balances, but now controlled by Fidesz, will now last for more than twice the electoral cycle. In order to be able to change the head of the Supreme Court, whose tenure was not bound to end anytime soon, the constitution renames it as “Curia.” Finally, the new Fundamental Law sets up the Economic Council, an institution whose independence is being contested between Orbán’s government, in dire need of a new credit-line, on the one hand, and on the other the IMF and the EU. No less importantly, the Economic Council is empowered to reject the budget voted by the parliament, which in turn gives the president (also close to Fidesz) a possibility to dissolve it.
In the last analysis, it seems clear that the Regime of National Cooperation takes departure not only from the procedures of liberal democracy, but also its spirit. Democratic legitimacy, electoral algebra apart, is related to deliberation and the more it can stand to or assimilate independent critique, the stronger it is. Furthermore, modern democracy is a regime where – in the words of Claude Lefort – “the place of power remains empty” and thus is incompatible with lawmaking that empowers one part of the political establishment to occupy it indefinitely.
In contrast, in Orbán’s Hungary, not only the oppositional parties, but also the voice of the independent public opinion and the civil society organizations was excluded from the constitutional lawmaking. The new regime supposes even more than a curtailment of the independence of all the institutions responsible of maintaining the checks and balances, now subordinated to the ruling party’s proxies. Fidesz will be able to control these institutions for more than twice the electoral cycle, that is, even after its potential removal from government. Incidentally, this last task has been made more difficult by recent changes in the electoral law, which gives Fidesz a great advantage in the next elections over its opponents. All this amounts in practice to a governance along the lines of the principle of après nous, le déluge. And due to the cardinal acts, even after the levee containing the popular anger brakes, all the harm to the constitutional fabric will be immensely difficult to repair.
Can one speak of a dictatorship? No, things are even worse. In principle, despite Orbán’s authoritarian style of governance, the constitutional guarantees of a democratic way of changing the government still persist. Nevertheless, even if Orbán goes, his departure can result in something worse than a dictatorship: a state of non-governability, a political impasse. Thus, paradoxically and by way of unintended consequences, the tendency of the Regime of National Cooperation towards concentrating all power in a few hands, can lead to a sort of bizarre anarchy from above.
In the new constitution, one article at least is undoubtedly democratic. It reads: “No one’s activities may be directed at the acquisition or exercise of power by violent means, or at its exclusive possession. It shall be the right and obligation of all to resist such activities by lawful means.” Even though Hungary is no longer a republic, the republican right to civil disobedience remains a right for all those who “do not like the system.” Under this clarion call around 70 000 citizens rallied in Budapest last October 23. On January 2, 2012, when the Fidesz elite was celebrating the coming of the new order inside the Opera House, outside, the Andrassy boulevard was flooded with protesters. That its numbers are said to have reached 100 000 means that in the era of the global civic awakening, the Hungarian society shall not get cowed gently into cooperation by Orbán’s design.