Viktor Orbán’s illiberal state uses democracy and the rule of law as decors of a system which contains no real limitation to the exercise of power. In order to assess the situation of the rule of law in such systems, we must examine the effective functioning of institutions in place, writes Anna Donáth.
Anna Donáth is a Hungarian MEP with Renew Europe group.
With the conditionality mechanism at the center of EU budget negotiations, rule of law remains high on the agenda this autumn. This provides Viktor Orbán a splendid opportunity to promote his illiberal narrative and argue that there is nothing special to see in Hungary when it comes to the rule of law.
If supporters of European values are to beat Orbán in this game, it is essential that they understand the nature of his power. If they keep approaching fundamentally political questions in quantitative and formalistic ways, he might muddy the waters just enough to succeed. In order to make real progress, we must focus on the true nature of illiberal systems.
Orbán’s system is a carefully calibrated hybrid regime that is soft by design. It uses democracy and rule of law as decors, making the system look democratic on the surface. The tension between form and substance makes it difficult to grasp the system’s true nature which is both anti-democratic and at odds with the rule of law.
An anti-democratic system
At the heart of democracy lies the idea that power is distributed across many actors who mutually exercise control over each other. Democracy nurtures debate as the fundamental tool with which one convinces society, coalition partners or colleagues in a parliamentary group.
However, this principle of pluralistic decision-making is fundamentally at odds with Orbán’s conception of power. In Hungary, both the institutional environment and society as a whole are shaped until they match the political will of one person.
To achieve this, the system does not abolish the pillars of democracy, it deprives them of substance. Elections, for instance, are still held but political competition is severely distorted.
Orbán took advantage of the flaws of the previous electoral system and achieved a constitutional majority which he used to tailor the system to his needs.
Crucial issues concerning the electoral system include gerrymandering as well as the double standards governing the votes of Hungarians living abroad. But the distortion of political competition does not end here.
The politically captured Court of Auditors harasses political opponents and the government’s permanent campaign financed by public funds represents an astronomical advantage for Fidesz.
Furthermore, one of the most perverse effects of Orbán’s system is the degradation of the public sphere. Via the capture of the majority of the country’s media and its concentration into a monolithic entity, the system isolates a significant part of the population from real facts and information.
Some media outlets have been acquired and shut down (Népszabadság), others have been transformed into vehement vehicles of government propaganda (Origo), while Klubrádió, the last independent radio on public affairs, currently faces losing its frequency.
The unchecked government propaganda thrives on hatred and suspicion by building on people’s darkest instincts. Such a riled up society cannot be the basis for peaceful, democratic coexistence.
A system at odds with the rule of law
In modern states, the rule of law guarantees the limitation of powers and ensures that political power can only be exercised in accordance with constitutional rules. In Hungary, however, the rules of the game are shaped to fit the government’s political will.
The Constitution, which was adopted by Fidesz without any meaningful deliberative process, has been amended eight times because every time Orbán’s power clashes with it, it is always the Constitution that must back down.
As a result, any fundamental principle declared by the Constitution is valid as long as it does not run counter to governmental interests.
The institutional system protecting the rule of law has also become an empty shell: on paper, Hungary still has a Constitutional Court but in reality, it is inconceivable that this body comprising only judges nominated by Fidesz would decide against Fidesz interests in any politically sensitive matter.
Further constitutional bodies are also either under attack (such as courts) or have already been clearly placed at the service of the ruling power. Just to name a few: the Prosecution Service, the Court of Auditors, the National Bank are all run by ex-Fidesz politicians.
As a result, law has become a mere instrument in the exercise of power. If one looks at the actual effectiveness of checks and balances, it will be revealed that there is no real limit to the exercise of power in Hungary.
Substance over form
Critiques sticking to the formal side of things not only provide ammunition to the defenders of the system, like Judit Varga Minister of Justice, who point to the existing institutions in place, but also divert attention from measures further eroding democracy.
For instance, in a country where the Parliament has long ceased to play a deliberative function and act as a counterpower, it is quite meaningless to fear that a state of emergency authorizes the government to rule by decree.
Yet, this was the focal point of many critical voices against the Hungarian Authorization Act this spring. This discussion diverted the attention from more complex processes such as the cut of funding of political parties or the crackdown on local authorities after the government’s poor performance at the local elections.
Such maneuvers are much more difficult to grasp using classical, formal concepts. In substance, however, it is clear that these moves served one purpose only: to erode fair competition and to cement the ruling party’s power.
To make real progress, we must revert to a close examination of the system’s true nature. This will require us to preserve a comprehensive approach and point out how the undermining of certain counterpowers can weaken the reliability of others.
Discussions must focus on the effective exercise of power and not on the formal existence of checks and balances that, in fact, have long been rendered ineffective.
Only then will we be able to gain a view that genuinely reflects the illiberal systems of Europe, and progress towards a common vision on the core elements underpinning peaceful coexistence in our societies: democracy and the rule of law.