Notes for an Illiberal Regime: the "Hungarian Patient"

Eszter Nagy
Secretary General of UEF-Hungary, Member of the UEF Federal Committee

This May brought not only Mother’s Day in Hungary, but also the latest report of Freedom House, which downgraded even further the status of democracy in Hungary, from now on this former eminent democratic country has become a hybrid regime, a category shared with

the Ukraine, Serbia, and Montenegro, among others.[i] How could we get to this point in the past 10 years? What makes this question even more puzzling is the fact that Hungary has gone through this process of democratic backsliding while being a full-fledged EU-member state all the way.

The Covid-19 pandemic is abused by the Orbán-government for further tightening the grip on the country. Instead of regarding the people’s interest, the main priority for Orbán is to win the political battle against the opposition mayor of Budapest. Health care workers do not get the necessary amount of protective equipment, severe patients are kicked out of hospitals from one day to another to free more than half of the existing hospital beds, soldiers are sent to hospitals and bigger companies to control stocks and management.[ii] People do not get accurate information; hospital directors are even forbidden to provide any data to journalists. And disobedience entails immediate layoff.

Going back to Mother’s day, as a special “gift” amidst the crisis-management, the Parliament has rejected the ratification of the Istanbul Convention on preventing and combating violence against women and domestic violence backing a government declaration that the measure promotes “destructive gender ideologies” and “illegal migration”.[iii] This latter has been the favourite propaganda topic of the Hungarian government since the 2015 migration crisis. Even today, whoever dares to criticize the moves of Orbán will be immediately accused of supporting migration.

Hungary today is a peculiar place, an EU-member state, with an autocrat in power since 2010 currently under the – seemingly inefficient – article 7 procedure. In my paper I intend to provide an overview of the current situation aggravated by the Covid-19 crisis, and its ‘historical’ background. I would like to underline that in this article it is only possible to show the tip of the iceberg; its scope does not allow to enumerate all problematic fields. Thus, my goal is to provide you an insider perspective to increase transparency in the assessment of the situation.

I grew up in the last years of socialism, I still have personal memories of that system, of the restricted travelling opportunities, shortage economy, censorship, one-party state system, etc. Nowadays I have a déjà vu feeling, 30 years after the fall of communism. Only this time, we have no external power suppressing and imposing on us its weird political system. It is home-made illiberalism, a new Hungaricum.

After the enthusiasm and optimism at the system change, the liberalization and democratization process of the 90s it has been a turn of 180 degrees and moving backwards. It is painful to see what is happening nowadays, after all what we had hoped for and have even achieved previously. Now, we belong to the EU, the most advanced integration based on the values of democracy and rule of law, while the Orbán-government is leading the country away from these basic values, suppressing the media and cementing its position in power in every possible way.

I used to work for the Hungarian Ministry of Foreign Affairs, and I was lucky to be a diplomat in a period leading up to the EU-accession and during the first years of EU-membership, when there was still an internal political consensus about the main focus of Hungarian diplomacy. Then Hungary tried indeed to catch up to its European partners in every field and was considered a trustworthy partner, one of the most advanced from the former Eastern bloc. By now it has completely changed. I feel outraged and ashamed of what has happened in the past 10 years in my country. In September 2018, the European Parliament demanded that the Council act to prevent the Hungarian authorities from breaching the EU’s founding values. MEPs were chiefly concerned about judicial independence, freedom of expression, corruption, rights of minorities, and the situation of migrants and refugees.[iv] Democratic backsliding has happened in Hungary to the extent to be rated as hybrid regime by Freedom House in its report released early May 2020. It is the first time ever that an EU-member state is becoming a hybrid regime.

The whole process started in 2010 with Orbán’s party Fidesz winning a supermajority at the general elections providing him free way to change any legislation, an opportunity that he has been exploiting to the most ever since. The systematic construction of “Orbanistan” has immediately started with the introduction of a new Media law that was heavily criticized within Hungary and on the European level, as well. Nevertheless, it was not changed, and this biased legislation has been affecting the media landscape in Hungary ever since.

The second important step was introducing a new constitution, the Fundamental Law entering into force January 1, 2012, which was compiled by Fidesz without any consultation with other parties, civil organizations, or the society in general. It has weakened the system of checks and balances, has radically reduced the number of deputies from 386 to 200, and it has widened the political community by extending the voting right to the Hungarians living outside Hungary. There were public demonstrations against it, international criticism, but all these were not taken into consideration by the ruling party.

The third important legislation introduced by Fidesz was the new Election law that has completed the basic framework for enduring illiberalism in Hungary. Interestingly it was voted on December 23, 2011, one day before Christmas eve. It contained reshaping of election districts that meant gerrymandering favouring the governing party. The previously two rounds of elections have been reduced to one single round that proved to be a huge hurdle impeding successful political competition for the fragmented opposition. Coalition talks that usually took place between the two rounds were not possible anymore. And to put the cherry on the cake, the winner of the elections became even more favoured by the new rule for allocation of fragment votes. As a result, Fidesz could win all general elections ever since, and what is even more severe each time reaching the 2/3 majority; in 2014 with 43,5% and in 2018 with 47,4% of the party list votes.

The constitutional majority makes it easy to change whatever legislation that the ruling party desires. Orbán – a lawyer by formation – has turned the Parliament into a “law-factory”. In 2012, altogether 225 laws were voted by the Parliament that meant a new yearly record since the system change. This also means that there are no consultations with the concerned parties, representative groups, or experts in general. There is a central “will” that can implement and codify his ideas from one day to another. That is how ‘rule OF law’ is turned into ‘rule BY law’.

The corona crisis has just opened another opportunity for rule by law. The Authorization Act of April 3, 2020 related to the Covid-19 pandemic has even further tightened media freedom by creating a penal code category for distributing “fake news” with the possibility of up to 5 years imprisonment. “In light of the fact that the government side considers all actual news uncovered by independent media as fake news, there is a real danger here that the new regulation will not be used to sanction those who actually produce or disseminate fake news, but to effectively make independent journalism impossible.”[v]

This Act does not only concern the freedom of expression, but it is also a unique example allowing the Government to introduce significant restrictions, practically without any time limit, without any debate in the Parliament, and without any guarantee for the swift and effective constitutional review.

“The Authorization Act (Act XII of 2020 on the Containment of the Coronavirus) does not include adequate guarantees and allows the Government to make use of the state of danger and violate fundamental rights or further restrict the possibilities of the opposition in the Parliament. The open-ended mandate granted by it is a dangerous weapon in the hands of the Government that systematically dismantled the system of checks and balances in Hungary in the past decade, and it provides yet another opportunity for the Government to override the constitutional limitations on its powers.”[vi]

The return of the political police in Hungary?

Amidst the corona crisis, there is no possibility for crowded demonstration in the streets. So, an opposition member of parliament initiated weekly demonstrations in April against the government with honking cars at the roundabout just below the castle, where the new office of the prime minister is now located. The second time policemen were also gathering there asking for documents and fining those who sounded the horn. On April 24, a 64-year-old man was arrested by the Hungarian police for a government critical Facebook post.[vii]

We do not now at present how far this Act is going to be utilised by the government. What we know for sure based on our experiences so far that Orbán has no scruples when it comes to exploiting opportunities to his own benefit. We saw it happening with the issue of migration, the ousting of the Central European University from Budapest, or in general watching Orbán’s peacock dance in diplomacy.

There have been numerous warning signs on the European level, the Tavares report in 2013 followed by the Sargentini report in 2018 that was even approved by a supermajority of the European Parliament. It finally triggered the launching of the Article 7 procedure the so-called “nuclear option” by the increasingly obvious failure of which the EU is to become rather a toothless lion.

In the meantime, Hungary’s more and more authoritarian style leader has received and continues to receive enormous financial support in theory to ensure convergence, but in practice rather helping to further cement Orbán’s power position in Hungary.

In 2019 Hungary finished on the top of the list of OLAF (the EU's anti-fraud agency) in the number of investigations, OLAF concluding four-fifths of the Hungarian cases with recommendations made to the national authorities.[viii] And that is where the circle closes. The Hungarian chief prosecutor, Péter Polt being an old-time Fidesz-member will not prosecute those cases. Even when he started a process, like in the ‘Elios’ case, related to Orbán’s son-in-law, it was closed after 3 weeks, as the Prosecutor’s Office did not find any problem with the case. What is also troubling concerning OLAF’s investigations is that if they are not turning into legal procedures, all this information cannot be made public. Even MEPs cannot access this data, so an important part of the work done by the EU’s anti-fraud institution will not have any real consequences, and the public will not even get information about these cases.

The message should be clear also for the European People’s Party. Orbán does not understand red lines. He will go until he hits the wall. He is not the kind of politician who will consolidate or with whom it would be possible to negotiate or make an agreement. One cannot negotiate with a virus, either. Unfortunately, the European Union was not prepared for this attitude. It has no walls or real red lines, only in wording. Looking at the success and the durability of Orbán without any real sanctions, we can also see that the EU is still puzzled about him.

The real danger for the EU is that Orbán reveals its fundamental weakness in tackling this problem that will be visible for the other member states, just like for its less benevolent outside partners. This inability of the EU will erode on one hand trust and cooperation inside, on the other hand credibility and its role as a global player outside.

We – Hungarian federalist-minded democrats – are very much aware of the fact that the European Union cannot solve our internal political problems from the outside, as it is not a suppressing empire like Orbán likes to depict the EU. Nevertheless, we would very much appreciate if the EU would at least not support the maintenance and the further strengthening of the Orbán-regime. Currently the EU funds – due to their government-centred distribution – are mostly favouring the further enrichment of the Fidesz-close oligarchs and strengthening of Orbán’s power. It would be the responsibility of EU institutions to provide transparency and accountability of the use of this financial support.

The idea of linking the entitlement rights for EU subvention to the rule of law conditionality is a positive development if feasible in the next EU-budget. Another solution could be a move into the direction of reducing the role of the governments in the distribution especially in case of serious recurring breaches of basic EU values that would imply a better application of the principle of subsidiarity, as well.

It is difficult enough to change the political situation in Hungary internally due to the biased circumstances described in broad lines in this article, thus we would very much appreciate if the EU would not make it even harder for us.

The “Hungarian patient” is on intensive care. But the ventilator of the EU-funds in our case is helping our special corona virus, the authoritarian regime of Viktor Orbán instead of the recovery and the convergence of the country.

[i] https://freedomhouse.org/sites/default/files/2020-04/05062020_FH_NIT2020_vfinal.pdf

[ii] https://insighthungary.444.hu/2020/04/16/thousands-of-patients-relocated-or-sent-home-following-government-order-to-vacate-hospital-beds

[iii] https://www.theguardian.com/world/2020/may/05/hungarys-parliament-blocks-domestic-violence-treaty

[iv] https://www.europarl.europa.eu/news/en/press-room/20200109IPR69907/rule-of-law-in-poland-and-hungary-has-worsened

[v] https://mertek.eu/en/2020/03/24/the-end-of-days-for-independent-media-in-hungary/

[vi] https://www.helsinki.hu/en/background-note-on-the-consequences-of-the-authorization-act/

[vii] https://insighthungary.444.hu/2020/05/12/he-criticized-the-government-on-facebook-and-was-taken-from-his-home-by-police-at-dawn

[viii] https://index.hu/english/2019/09/03/hungary_at_the_top_of_olaf_fraud_statistics/