21 February 2024

Autocratic (Il)legalism

The Hungarian Example

It is a common myth that since the Fidesz-KDNP coalition has almost always had a two-thirds parliamentary majority since 2010, the Orbán-government could pass its illiberal legislative reforms in a legally correct manner. In reality, however, many laws that constitute the pillars of Orbán’s illiberal regime were enacted in violation of the procedural requirements of the rule of law. The European rule of law mechanisms have detected some of the deficiencies of the regulation and practice of parliamentary law-making but their concerns have remained largely unaddressed by the Hungarian Government. The European Commission’s country visit to Hungary (happening between 19 and 23 February) provides an excellent opportunity to remind the EU bodies of their responsibility to enforce all requirements of the rule of law without compromise.

The (Mis)conception of Autocratic Legalism

According to Scheppele autocratic legalism is when “autocrats push their illiberal measures with electoral backing and use constitutional or legal methods to accomplish their aims”. It is true that modern autocrats, such as Hungarian PM Viktor Orbán, use legal tools to implement their illiberal political agenda. In other words, they govern by law and not by force.

The problem is that rule by law is very often confused with the fulfillment of the formal requirements of constitutionalism. According to this interpretation democratic constitutionalism is characterized by a strong commitment to substantive values, and since autocrats aim to undermine these values by using seemingly lawful tools, compliance with the formal requirements of law-making is portrayed as a value-neutral (or even valueless) exercise of state authority.

This conceptualization of autocratic legalism is problematic for two reasons. Firstly, it sets the formal and the substantive requirements of constitutionalism against each other even though they are complementary. Secondly, it creates the wrong impression that autocrats respect the formal requirements of constitutionalism when, in actuality, they do not.

Formal and Substantive Requirements of Constitutionalism

Democratic constitutionalism sets not only substantive but also formal and procedural requirements to the production and application of legal norms. At least this how the rule of law principle is interpreted in the European legal space. The Venice Commission’s Rule of Law Checklist provides that the process of enacting laws must be “transparent, accountable, inclusive and democratic”. Similarly, according to the European Commission’s definition: “the rule of law includes, among others, principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws…”.

Compliance with these formal requirements of law-making is necessary for the enforcement of the substantive values of constitutionalism for at least two reasons. Firstly, substantive values set out in constitutions and supranational legal instruments need to be implemented and can only by limited by law, usually parliamentary law, the validity of which depends on the fulfillment of certain procedural requirements. Even in human rights cases courts regularly scrutinize the validity of laws restricting fundamental rights. If a law regulating a substantive value is not adopted in a legally correct manner, it is invalid and per definition violates the substantive value.

Secondly, substantive and formal requirements of constitutionalism ultimately serve the same aim: the prevention of the arbitrary exercise of state authority. The formal requirements of law-making are not simple technicalities. Many procedural rules prescribing for example the parliament’s exclusive legislative competence, preliminary public consultations, impact assessments, the minimum requirements of genuine parliamentary debate, the participatory rights of the opposition, qualified majority requirements and so on are based on constitutional principles, such as the separation of powers, democracy, and the rule of law. This realization is very important because as Waldron puts it: the principles behind the procedural rules “offer an account of why holding ourselves and others to the requirements of the legislative rulebooks should be regarded as something more than mindless proceduralism”.

If we accept that procedural rules are value-based, we can easily understand that the manipulation and the violation of the regulation of parliamentary law-making, which I call procedural irregularities, are (indirect) infringements of the principles of constitutionalism. This is why I define unconstitutional irregularity as “an action committed in the context of the legislative procedure by the competent actors that violates the requirements of parliamentary law-making derived from constitutionalism.”

In sum, the formal requirements of constitutionalism should not be treated as having secondary importance, if any. If the formal requirements of law-making had no significance to constitutionalism at all, even legal norms issued by a benevolent liberal dictator could pass the test of constitutionalism which would be absurd. It must be clearly stated that democratic constitutionalism is seriously defective in those countries where either its formal or substantive requirements are disrespected.

Non-compliance with the Formal Requirements of Law-Making

Autocrats often manipulate and even infringe the rules of law-making to push their political agenda. Drinóczi and Cormacain observe that “[t]he emergence of populism, illiberalism and democratic decay around the world, has affected the quality of legislation, its democratic, inclusive and transparent nature in the last decade.” Similarly, the European Commission repeatedly emphasizes in its rule of law reports that certain procedural defects of parliamentary law-making are common features of the European rule of law crisis, such as the frequent use of accelerated procedures without adequate justification, the rule by emergency ordinances, the exclusion of social partners and the opposition from decision-making, and the lack of adequate preparation of bills.

Of course, compliance with the rules of the legislative process is often sacrificed at the altar of party politics even in reasonably well-functioning constitutional democracies. Take as an example the recent French pension reform which was adopted through an abusive application of the notorious Article 49-3 of the Constitution. This Article forces representatives to choose between outvoting the Government and tacitly approving a controversial bill without a single vote being cast (!). Such and similar procedural irregularities are problematic because they infringe the principles of constitutionalism behind the regulation of law-making.

However, the manipulation and the violation of the rules of parliamentary law-making is worse when applied by authoritarian leaders on a regular basis. These authoritarian practices, as I call them, are patterns of procedural irregularities that aim at or result in the monopolization and the unlimited exercise of power by the ruling political force(s). In other words, autocrats resort to the manipulation and the violation of procedural rules because they are afraid that they would not be able to enact their illiberal measures if they respected the procedural requirements of constitutionalism. The whole point of a “transparent, accountable, inclusive and democratic” legislative process is to limit the arbitrary exercise of legislative power by the ruling party/parties and enable the opposition together with extra-parliamentary stakeholders to have a say in the will-formation of the parliament.

Parliamentary Law-Making under the Orbán-Government

After the entry into office of the Fidesz-KDNP coalition led by PM Orbán in 2010 the quality of parliamentary law-making immediately started to deteriorate. Despite the governing parties’ large margin of manoeuvre in the National Assembly due to their two-thirds constitutional majority, the Government was determined to put in place its illiberal legislative measures as quickly as possible without any compromise. This “instrumentalization of parliamentary legislation” manifested itself in an increasing number of serious irregularities of the legislative process and the silencing of the opposition.

This phenomenon caught the attention of the Council of Europe and the European Union as well. The Venice Commission, the European Commission, the European Parliament and the Council repeatedly noted several negative trends, such as the unjustified use of accelerated legislative procedures, the growing number of omnibus laws, the lack of preliminary consultations and impacts assessments, and the absence of meaningful cooperation with the opposition MPs. What is more, these criticisms were voiced with regard to the enactment of laws that were later recognized as the pillars of PM Orbán’s illiberal regime, for example the new Fundamental Law and subsequent constitutional amendments, the acts on the legal status and remuneration of judges, and on the organization and administration of courts, the reforms of the electoral system, several laws targeting religious organizations, NGOs, higher education institutions, and legislative measures weakening the protection of fundamental rights.

Lack of Significant Progress

Despite these criticisms voiced by the various European actors, the quality of parliamentary law-making has not improved. In their joint contribution to the European Commission’s 2024 Rule of Law report Hungarian civil society organizations minutely documented the major defects of the process for preparing and enacting laws in 2023. The transparency and inclusiveness of the legislative process remained a source of concern. Draft laws were frequently not published for public consultation, and even when they were, ministries almost never provided a longer consultation period than the statutory minimum of eight days, irrespective of the length and complexity of the draft law. Legislative proposals obviously prepared by the Government were regularly introduced in the parliament as private members’ bills to avoid public consultations altogether. The use of accelerated procedures without adequate justification also continued. The Government kept its excessive emergency regulatory powers, and it used its mandate to issue a large number of emergency decrees in an abusive manner.

These procedural irregularities tainted the adoption of several important legislative measures, including the Twelfth Amendment to the Fundamental Law, the act restricting the powers of the Hungarian Medical Chamber, the act on the transposition of the EU’s Whistleblower Directive, the act authorizing the extension of the state of danger, the amendment to the electoral system, and the so-called national Sovereignty Defense Act. Even the Judicial Reform Act (!) that was crucial for the Government to gain access to the frozen EU funds was enacted in a defective legislative process despite the fact that the Council of the EU expressly required meaningful public consultation regarding bills seeking to implement the super milestones, as pointed out in a previous article by Farkas and Kádár.

What Can Be Done?

The most obvious remedy to the procedural irregularities of parliamentary law-making is of course constitutional review. Apex courts in many jurisdictions regularly exercise judicial review of parliamentary law-making. The most prominent examples of such courts with a significant amount of jurisprudence include, among others, Czechia, France, Germany, Hungary, Israel, South Africa, Spain. Even the European Court of Human Rights checks whether the interference with the applicant’s right was “prescribed by law” and increasingly often (although not very consistently) whether the quality of national parliamentary law-making was satisfactory. Some of these courts set (relatively) high standards to parliament and even go beyond the text of the constitution, others do not. Unfortunately, apart from a few invalidations, the Hungarian Constitutional Court has proven rather permissive in the enforcement of the constitutional requirements of law-making. So, the systemic defects of the legislative process in Hungary are very unlikely to be remedied by domestic legal forums.

The lack of adequate domestic remedies enhances the role of the EU’s rule of law mechanisms in guaranteeing the compliance of parliamentary law-making with the requirements of constitutionalism. The experience of recent years has shown that raising concerns about how laws are being enacted and formulating recommendations are not enough because the Hungarian Government simply disregards the evaluation of the EU bodies. The infringement of the procedural requirements of the rule of law must have actual negative consequences. Two solutions seem to be available to this end. Firstly, the regulation and the practice of parliamentary law-making should be closely monitored in the future and the release of EU funds should be made conditional upon the enactment of the necessary legislative reforms in a transparent, accountable, democratic and pluralistic legislative procedure. Secondly, as Petra Bárd and I argued in a previous article, the Commission should initiate infringement proceedings against Member States for the violation of the procedural requirements of the rule of law when they implement EU law.

SUGGESTED CITATION  Kazai, Viktor Z.: Autocratic (Il)legalism: The Hungarian Example, VerfBlog, 2024/2/21, https://verfassungsblog.de/autocratic-illegalism/, DOI: 10.59704/6ee16db4bf46fcb3.

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