The call from Andrew Arato and Andras Sajó starts an important and timely debate. It is indeed a thorny question in which cases a formal breach of constitutional norms is the only way to restore constitutionalism.
Yet the call leads constitutional law, legal theory, and political science into perilous territory. For this discussion is not a disembedded theoretical exercise, but a practical one which cannot be led in the abstract. What can be done, and indeed, what shall be done, depends on the particular circumstances. What was viable outside the EU, in Georgia or the Ukraine, might not be inside it. What could be a feasible strategy in Poland, might not be practicable in Hungary. There is no universal method, no common path to follow.
Options and viable routes of (re-)strengthening democracy and the rule of law depend on a variety of internal factors, including the constitutional architecture, institutional practices, the logic of the political regime, and political mobilization, as well as external ones.
In the following, I will address the question only with regard to the Hungarian context. Specifically, I will respond to a plan which now appears to have been accepted by the opposition prime ministerial candidate and at least one major opposition party. The proposal, promoted by law professors (among them a former Constitutional Court judge) and two former ministers of justice, and supported by others, starts from the thesis that any opposition government would be completely unable to govern due to a large number of constitutional constraints introduced with the aim to perpetuate the current government’s power, even from opposition. Thus the only option available is to invalidate parts of the constitution with a simple majority at the inaugural session of the new parliament. This simple majority would, then, with a single vote, remove the Prosecutor General, the Fiscal Council as well as the complete Constitutional Court from office. It would also remove all articles on the so-called cardinal laws (legislation that requires a two third majority to pass) to eliminate this institution. According to the proponents of the plan, all this would be formally constitutional because these constraints, taken together, amount to “exclusively acquiring and possessing power”, against which all Hungarians have the ius resistendi (Art C, Section 2 Fundamental Law). This calculated break with the current constitution will then lead to the adoption of a new constitution (about this process there is disagreement among those who otherwise share this diagnosis).
I will make three broader claims. First, I will argue, that while the potential opposition government’s legislative power will indeed be constrained, it will not be entirely powerless. Second, I will contend that many of these constraints do not stem from constitutional provisions per se, but from informal practices within constitutional organs, and thus cannot be addressed by only formal constitutional changes, revolutionary or otherwise. Third, I will claim that in the present situation a calculated formal breach of the constitution will most likely lead to civilian strife, political paralysis and radicalization. It will also have the potential to destabilize the European Union.
While there are strong theoretical arguments against a formal break with the current constitution, my reasoning here is practical. The answer to the question posed in the call ultimately comes down to the determination whether democracy and the rule of law is salvageable while remaining in formal compliance with the current constitution. I argue that in the current Hungarian context, based on the information available to us today, and assuming an election free of fraud and a peaceful transition of power, it is.
The Starting Point: The Constitutional Frame as Check Without Balances
Any opposition government will definitely face substantial formal constraints on its power.
The most significant of these is the large number of cardinal laws. For example, because media regulation is a cardinal law, the new government cannot overhaul the widely criticized media and press regulatory regime and would not be able to replace the leadership of the regulatory authority that is generally regarded as biased.
More importantly, a potential new government would also be significantly hampered in its fight against corruption, probably the most important (and popular) element of its manifesto.
The opposition and its supporters widely view the current prosecution service as a politically biased organ engaging in selective enforcement. Independent observers tend to agree. However, because the prosecutorial monopoly is entrenched in the constitution, the new government will not be able to create an independent anti-corruption agency with prosecuting powers. But it would also not be able to organize an effectively independent body within the prosecution service because the law on the organization and powers of the prosecution service is also a cardinal law.
A related concern is the entrenchment of officials widely regarded as biased. The Prosecutor General, for example, elected by a two-third majority for nine years, could also stay in office after his term ends until a new Prosecutor General is elected. If there is no agreement between FIDESZ and the current opposition he can thus stay in office indefinitely.
There is also a fear that the Constitutional Court might become more assertive after the change in power. While so far the Court has not adopted the self-immolation strategy of the Polish Constitutional Tribunal, and even occasionally declared government legislation unconstitutional, it has never torpedoed any legislation that really mattered, no matter how strong the constitutional arguments were to do so.
The Court could, for example, interpret the scope of cardinal laws extensively, further constraining the power of the new government. It could also adopt a broad interpretation of the Fidesz government’s policies elevated to the level of constitutional imperatives. These include, among others, life without parole (Art 4, Section 2), a constitutional ban on gay marriage (Art L), the restriction of the right to self-determination of gender identity to birth sex (Art 16) or the prohibition of homelessness (Art 23, Section 3). Moreover, the Constitution makes the “National Avowal”, its grandiloquent Preamble, a veritable smorgasbord of FIDESZ rhetorical titbits the source of constitutional interpretation (Art R, Section 3). If taken literally, it can theoretically allow for an outright ideological control over government policy by the Constitutional Court.
Furthermore, the Constitution also requires the consent of the Fiscal Council to submit the budget to the Parliament (Art 44, Section 3). This organ consists of the President of the National Bank (a former minister of finance in the FIDESZ government), the head of the State Audit Office (a former FIDESZ MP), and the president of the Fiscal Council, a former chief of the State Audit Office, himself a fixture of FIDESZ-aligned economic think tanks. There is fear that the Council can veto the first budget of the incoming government.
Finally, the governing majority has been moving billions of euros of public property (mostly in the form of shares of Hungarian multinational corporations) as endowments into nominally public, but effectively private foundations governing, among others, universities, but also FIDESZ-aligned think tanks. Through these, it will not only be able to keep a network of its international apologists and right-wing intellectuals on the payroll almost indefinitely, but also a huge pool of politicians and former public administrators, ensuring their long-term loyalty and effectively running a shadow government. These institutions are also enshrined in the Constitution (Art 36, Section 6) and cardinal laws.
In sum, the diagnosis of those promoting a conscious constitutional breach is thus to an extent not without foundations. While many of these constraints appear to be simply counter-majoritarian institutions at first look, taken together, they are the opposite of counter-majoritarian: they were indeed designed to perpetuate the influence of a single temporal majority. Nothing proves this point better than the constant tinkering with constitutional norms and cardinal laws out of short-term political interest. The appointment of the current President of the Supreme Court, Andras Varga Zs, is a case in point.
Will The New Opposition Government Be Unable to Govern?
The question is, however, whether this amounts to a level where the incoming government will be factually paralysed. I will contend that it does not.
Certain concerns are speculative at this point. No one knows, for example, whether the Budget Council will indeed veto the budget. How much constraint the Constitutional Court would pose on the government will depend on how extensive its interpretation of certain constitutional provisions will be. An outright blockade and ideological control might also be politically risky for the Court and the then-opposition.
With that said, some of the constrains are undeniably hard. Cardinal laws will not be touched. The Prosecutor General will stay in office and the internal structure of the prosecution service will remain unchanged. But all this does not mean that the government will be powerless in its fight against corruption. It can, for example, beef up the investigative arm of the tax authority and increase its resources to conduct wealth gain investigations. Or through changes of the Criminal Procedural Code, it can weaken the prosecutor’s influence on criminal investigations conducted by the police without touching the prosecutor’s indictment monopoly. It can use tax policy creatively to recoup at least parts of the public wealth “privatized” through grand corruption. Likewise, while it cannot legalize gay marriage, it can in effect eliminate the differences between marriage and registered partnership through amendments to ordinary laws.
Even assuming there would be setbacks, even serious ones for the future opposition government, assertiveness in utilizing its legislative powers and policy prerogative to the fullest where it can, could make a difference in dismantling the current regime. In any case, a government that formally controls the police, the intelligence services, as well as the entire executive down to its regional administrative offices will not be entirely powerless. Despite the limitations described above, it will still have the policy prerogative in a vast number of areas. It will control the university subsidies, a crucial source of income even for endowed universities, and while it likely cannot dismantle the foundations controlling FIDESZ-aligned think tanks endowed with billions of Euros of public money, it can use the government’s financial resources to create parallel institutions. This is also the reason why the claim about the ius resistendi is not necessarily justified.
But even if the government would be powerless, breaching the constitution will not necessarily be able to address the problem. This is because the actual issue does not lie with the Constitution.
Would a Constitutional Revolution Help?
Selective enforcement by the prosecution or by the media authority does not follow from constitutional or legislative norms. Nor does benefitting certain government-friendly oligarchs in a public procurement process. All of this is still against the law.
The current opposition’s main concern, at its core, is thus not the law. It is that they believe that certain constitutional organs and government entities do not fulfil their constitutional role because they make gestures to, or are in some way dependent on, the governing party. But these perceived influences are informal.
Nor does the opposition claim that these organizations are incapable of discharging their duties according to the rule of law. What they allege is what Ernst Fraenkel has described as a dual state. In cases that are politically irrelevant, the public administration and the justice system operates normally. In politically sensitive cases, however, the logic of action changes: the decisions are not guided by the law but what is in the interest of those holding political power.
But anyone who believes such regimes work their influence via telephone calls from the top is mistaken. While there could be patronal dependencies between those in government power and heads or members of independent constitutional organs, the stability of such regimes does not stem from such interpersonal relationships: they work because the operational logic of entire organs and government bodies has adapted to a receptiveness to expectations about case outcomes. Such systems thus operate through managing expectations and exert their influence through the sheer empirical fact of their power: the expectations are guessed by those making the decisions and compliance with them happens voluntarily (Hale 2015:35). What creates the equilibrium is that everyone operating within these organizations expects everyone else to comply.
Changing the legal frame is not the most efficient way of disrupting this equilibrium. The current governing party can only continue to operate such structures from opposition if it will remain able to manage expectations and maintain the spectre of its impending return. This is because empirical evidence from the study of regime dynamics tells us that such regimes are not operated by fanatics, but by a network consisting of both the ideologically committed and opportunists.
The longer the incoming government can operate in stable manner and the more of its policy agenda will be implemented, the more disruptive it will be, and actors lower in the power hierarchy and further from the centre will soon start hedging their bets and switch sides. This is because the new government will be a government after all: despite everything, it will have access to significant organisation, financial and legal resources and with these, it will be able to create and communicate its own expectations.
Proponents of the constitutional revolution might argue, though, that removing the heads of constitutional organs altogether would be equally disruptive in this sense. It might, provided it works. My argument is that it will not.
A Script for Chaos
The plans for a conscious break with the constitution after an election win and peaceful transition of power are mostly conspicuously silent about the actual consequences of such a plan. They seem to suggest that the only problem would be a blemish on the rule of law credentials of the incoming government.
However, this is highly unlikely. Why would we assume the removed officials or constitutional court judges will simply clear their desks and leave? Why would they when the law will be on their side? At best, there will be parallel institutions, and lower-level officials, like ordinary prosecutors, policemen and public administrators will be forced to take sides. Why do we assume that a prosecutor, sworn to the constitution, would not remain loyal to the unconstitutionally deposed Prosecutor General, even if otherwise he or she would have taken a different view on corruption cases that ended with no indictments?
And the biggest concern is not even what will happen inside government offices: it is how things will play out in the streets around them. The actions by the incoming government to invalidate parts of the constitution could, instead of preventing a political paralysis, create one. It could revitalize the easily mobilizable constituency of the government after the election loss: they might take the streets in protest, even form blockades around the seat of the deposed institutions. This is because the considerable number of FIDESZ voters probably do feel that the current constitution, even with, or exactly because of, its ideological elements, is the right constitution, worthy of defending in the streets. This scenario, of course, also carries the risk of actual violence.
How this chicken game might end, is anyone’s guess. The stakes will be very high for both sides. If the former government climbs down, it will essentially accept the formally unconstitutional dismantling of not only the instrumentarium of its continuous influence, but the whole legal and political edifice that is its claim to historical eternity. And if the new government backs off, it might shatter its legitimacy among its voters if a liberating formal break with the constitution is the core of its manifesto. Such a crisis could very well lead to new elections and the return of the previous government, which would then have a legal excuse to use the criminal justice system aggressively against the opposition. And even in the unlikely case that the conflict peters out without an explicit solution, leaving pockets of ambiguous legality in its wake (Poland has been living with these, albeit on a much smaller and technical scale, for years): the political polarization will likely be exacerbated even further, and create a poisonous cycle where every political camp questions the legitimacy of the other’s rule.
Again, proponents of the radical break might argue that while being risky, the strategy can work. Sufficient popular support for the plan could be enough to create facts on the ground and establish the legitimacy of the new regime, internally and externally. After all, it had worked, for example, in Georgia and the Ukraine.
There is, however, a crucial difference. Georgia and Ukraine are not EU member states. We do not know, of course, how other member states and EU institutions would react to such a scenario. But it is highly unlikely – again, assuming an election free of fraud and a peaceful transition of power – that they would endorse, or even tacitly acknowledge such a plan, even if the situation does not end in violence.
The Rule of Law Conditionality and the Revolution
There are both formal-legal and practical-political reasons for this assumption. The EU is a community of laws, and it relies on legal means (and not force) to enforce those laws. Therefore systemic or wide-spread noncompliance with law in general is a fundamental threat to the institution as a whole. This insight, value debates about the rule of law notwithstanding, is the rational core of Article 7 TEU and the Rule of Law Conditionality Mechanism. And that is why it is crucial, for the long-term survival of the Union, that the political conflict about enforcing the rule of law is not swept under the rug but played out.
Yet, what political or indeed legal ground would EU institutions have to pursue Article 7 procedures against Poland for unconstitutionally deposing constitutional court judges when it tolerates the same thing in Hungary? And: provided that after a potential green light from the ECJ the Commission does impose sanctions on Hungary under the conditionality mechanism before the election, what legitimacy will the mechanism as such have if the flow of EU funds is reinstituted after the election?
Furthermore: instead of the intellectually vacuous whataboutism, which is now the government’s ideological stance on the rule of law in Hungary and Poland, these government’s claim about the political nature of the rule of law and double standards will suddenly be filled with substance. And this is not only about rhetoric: EU institutions might reasonably fear that the Hungarian case provides a blueprint to political forces in other countries, which could increase the centrifugal forces inside the EU.
The practical takeaway is, thus, that – again, assuming a fraud-free elections and a peaceful transition of power – the opposition’s best chance to reverse the erosion of democratic and rule of law institutions in Hungary is to use its admittedly constrained powers to establish itself as a competent government within the frame of the current constitution, and to gradually dismantle the informal patrimonial networks through which the country is currently governed.
In many ways this is clearly an unpalatable choice: it foresees a messy and risky transition, with inevitable political setbacks; a transition the success of which will greatly depend on not only the political skills of leading politicians, but on the political and administrative prowess of the second, third and fourth line in government; and where a significant portion of private wealth created with public funds will likely end up remaining unscathed. But it is, I believe, under the present Hungarian circumstances the one most likely to succeed in restoring constitutionalism.
This conclusion, however, also matters for the theoretical debate: in the current political climate, a new constitution will not be perceived as legitimate across political divisions. And without this, however honest the effort to engage the opposing camps in a national dialogue to draft a new constitution, one would risk creating a mere counter-constitution with a sort of limping legitimacy existing in one political camp, but non-existent in the other. And this leads to the crucial question at the core of restoring constitutionalism: how to convince those who support the current constitution that the country needs a new one, and how to involve them in the conversation about the elements of the new basic law. Consciously breaking constitutional norms and deposing of constitutional organs would further deepen the divisions and more likely make a new constitution with cross-constituency legitimacy impossible even on the long term.