“La légalité nous tue”

It is not out of question that the united Hungarian opposition will obtain Parliamentary majority in 2022, but a constituent supermajority of two thirds remains wishful thinking. Winning the election will not result in actual governmental power. If the budget is not approved by the Budget Council, the President can (will?) dissolve Parliament. As to ordinary legislation, and without questioning the constitutional integrity of the veto players, the future President (who will be elected a few weeks before the national election by the FIDESZ majority) has the power to send all bills to the Constitutional Court where these may be declared unconstitutional in the hands of judges elected by FIDESZ.

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If under Orbán’s regime law was used in the spirit of an Italian Prime Minister (not the one that comes to your mind but the liberal Giolitti: “Laws are applied to enemies, but only interpreted as regards friends”), in case FIDESZ lose elections, the inherited loyalist institutions could apply both their laws and interpretation to enemies. A new form of “abusive constitutional review” is to be expected, this time in defense of the past usurpation of the rule of law, and yet in the name of strict law observance. In many cases it will be easy to show formal illegality.

The entrenchments and veto powers in the Fundamental Law are comparable to ”authoritarian enclaves.” Transition constitutions often contain entrenched provisions which remain beyond the reach of constitutional politics and maintain the effective influence of undemocratic forces. Such is the case with constitutionally entrenched amnesty, a favorite of the military when they return power to civilians after years of criminal governing. Sometimes it is the logic of the rule of law that supports such enclaves: The removal of incapable and/or corrupt judiciary is blocked by the principle of judicial irremovability.

Recall the words of Odilon Barrot, Prime Minister under President Napoleon in 1849: La légalité nous tue (Legality kills us). He made this remark to justify measures of emergency, departing from the existing laws to fight left and right “extremism”.

Given the impossibility to govern and restore the rule of law, the leaders of the Hungarian opposition seem to have learned from Odilon Barrot. They promise to enact a new constitution with simple majority approved in a referendum. The Fundamental Law requires two thirds parliamentary majority and prohibits all forms of popular involvement in constitutional matters.

The technical necessity for unconstitutional legislation hardly provides popular constitutional endorsement and a stable form of lasting living together. It is unlikely that there is constitutional moment in Hungary. However, given that Hungarians live in a state of cold civil war, peace or at least truce is badly needed and such conciliation often requires some form of constitutionalisation. It is, however, also possible that it will be the constitution-making that will aggravate that cold war.

Many Hungarian legal experts are shocked by the idea of constitution-making and law-making in disrespect of the Fundamental Law. They claim that the rule of law cannot be restored by its antithesis, it will only start an endless cycle of illegality. A kind of “constitutional despair” prevails.

Such legalism is somewhat surprising. Constitution-making was never a matter of pure legality. A fair number of constitutions were created illegally. While positive constitutional law does not authorize such “adventures”, the irregular method is accepted as legitimate ex post, for example in the name of popular (constituent) sovereignty.

The standard justification among the irregular constitution-makers who disregard the amendment rules of the constitution in force is that the constitution served injustice or became illegal because the government did not respect it. Grievance is legitimation. As the Declaration of Independence states, “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” However, the Declaration adds a careful line to this: “Governments long established should not be changed for light and transient causes.” How do we know (as lawyers) that the “train of abuses and usurpations” is long enough?

A most famous attempt to provide a legally practical standard for the disregard of applicable law was offered in the Radbruch formula. This is often understood to advocate that where the conflict between statute and justice reaches such an intolerable degree that the law is “flawed”, law must yield to justice. It is often thought that this intolerable degree is reached in Nazi-like regimes. If this is the standard, there is no ground to depart from the legal prescriptions and constitutions of illiberal democracies like Hungary. Illiberal democracies do not reach that threshold. But in a less quoted line Radbruch seems to say that the Nazi legal system was flawed law not only because of a fundamental violation of equality etc., but because, replicating its puppetmaster, Hitler, it was a system of lies. Orbán’s legal regime pertains to the same family: like the Nazis, the Orbán regime institutionalized a legal system based on cheating by the law. But the differences are still fundamental: Hitler created a system where the lie concerned racial inferiority and Poles attacking Germany, while Orbán created a political and legal system based on cheating with public procurement rules.

In a different perspective the uncertainties related to the level of the “flawedness” of the legal system are not that important. The argument is that all power emanates from the people and the people retains its constituent (sovereign) power. Of course, some constitutions exclude popular participation in amendment or constitution-making. This is the case in Hungary, and to a certain extent in Germany (Article 146).  But irrespective of the constitutional rule, it is hard to deny for a democratic constitutional theory that the people can always reclaim its powers.

However, without proper formalities “constitutional amendment and replacement can be used by would-be autocrats to undermine democracy with relative ease.” Forget about the difference that in the transition back to the rule of law the replacement is intended to restore the rule of law while in abusive transformation the opposite is intended. This is a cheap argument: all reforms for the worse, from Venezuela to Poland, claimed that they are only about creating real democracy. Without additional safeguards the constituent power as sovereign power is simply naked power (even if legal). Nevertheless, just for being extra-legal, constitution-making does not have to be lawless. Extra-constitutional constitution-making requires its own rules that satisfy the rule of law (procedural fairness), civility (inclusive rational discourse) and democracy (participation of the citizenry), and concern (toleration) for minorities including the opposition. Where the extra-constitutional constitution-making starts by setting its own constitutionally decent principles (subject to ulterior external control) and prohibits the concentration of powers with specific institutional criteria, the temptation of abuse in the name of substantive justice can be limited. The Chavezista scenario can be avoided.

Constituent assembly (disciplined by constitutional principles and supported by referendum) is the textbook solution to this kind of a problem, though not the only possible technique.

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The Hungarian Fundamental Law (except some divisive, ideologically driven articles) does not deviate from the constitutional textbook, although it is far from ideal in terms of separation of powers. It is not by accident that in 2011 the Venice Commission called the Fundamental Law a “commendable step” and could not find major shortcomings in it except regarding the non-inclusive process of its making and sensing the potential for abuse in the institutional setting. What the Commission could not see was that it has the potential to perpetuate power. The Fundamental Law (just like all the transformative constitutions in populist-controlled Latin-American states) was a nice opportunity to purge constitutional institutions. Is another round of purge inevitable with the restoration of the rule of law? The dictates of necessity offer an unappealing perspective and textbook constitutionalism is not prepared for dirty reality. The deeply undertheorized problem remains: what to do with the institutions that served, and are programmed to continue to serve, only rule by law undermining the constraints on arbitrariness? The roadblock on the way to restore the rule of law in Hungary is not simply the Fundamental Law (though it creates formidable obstacles). It lies in institutional settings, many of them anchored in entrenched constitutional rules. Are there rule of law grounds to disregard such institutional setting?

Consider the case of the Hungarian Constitutional Court in this respect. While it is relatively easy to find a series of rule of law violations in the case of the Polish Constitutional Tribunal (which may or may not justify radical accountability), there is no smoking gun (only cadavers of principles) in the Hungarian court room. The current composition of the Court is the result of various moves of court packing, entrenched in the Fundamental Law. However, all the appointment steps taken were legal under the tailor-made law. A few judgments of the Court were found contrary to various international conventions and EU law but there is neither judicial nor non-partisan political finding of systematic disregard of the rule of law as the Art 7 TEU procedure remains unfinished.  Is there a feasible and practically applicable constitutional theory that would indicate that a series of domestic judgments favoring the FIDESZ government, but rendered in conformity with the Fundamental Law is sufficient for some extra-constitutional reform (e. g. court packing, jurisdictional reform etc.)? Is it enough for rule of law restoration that the Court was demonstrably deferential, relying on false arguments or formulating the legal issue in a way that predetermined the government friendly outcome? For a not-too-political theory of restoration (e. g. via court-packing) there should be something more objective than the alleged political agenda or assumed inclination of the court in question.

FIDESZ, being in control of the necessary majority had no hesitation to carry out the court-packing even before the Fundamental Law was enacted. Professor Imre Vörös, a former Hungarian constitutional judge, is of the view that the 2011 constitutional regime is a stealth coup d’ Etat, an attempt to monopolize state power, that is expressly prohibited by the Fundamental Law and can be disregarded by simple parliamentary majority. Is non-revolutionary constitutional theory ready to accept that where a one-sided, purely partisan (but formally legal) court-packing occurred, the restoration of the rule of law justifies a similar (strictly proportionate and least intrusive, non-vindicative) measure, albeit in violation of the legality emanating by the Fundamental Law? Without a generally acceptable theory of constitutional restoration which would allow and limit formal departure from legality, the EU will be forced to apply its own case law to undermine the very same, politically desired restoration that is expected by the same EU bodies: after all the currently foreseeable effective transformative measures will be similar to what the CJEU declared unacceptable for its legal order to counter the disregard of the rule of law. The belief that certain otherwise illicit measures are acceptable where they serve the “good cause” is eminently political.  It is not convincing to say that where a court has lost its way court-packing becomes an alternative and this is different from populist court-packing, as the measure itself is not necessarily unconstitutional. There ought to be convincingly demonstrated that the court is responsible for the departure from the rule of law and the measure applied shall be necessary for the return of the previous, uncontested status quo (i. e. a politically balanced court). Without such clear demonstration the restoration will not be acceptable to the public and whatever its merits there will be no popular legitimacy.

Perhaps these matters of principle will not matter that much. A different, only slightly less unappealing practical solution will emerge: given the actual social power balance a deal will be cut, a grand or tacit compromise, where FIDESZ will be able to maintain most its positions and power, allowing the public institutions (e.g. the public media) to return to normalcy, and allowing the rule of law and pro-European politics to operate for future use only. Here the rule of law will be the guarantee of FIDESZ survival and eventual return, including the protection of the assets of the cronies, as if it were a well-acquired property. The rule of law and illiberal democracy will be saved – to some degree and at a price.

In a country where democratic and rule of law culture is weak, the restoration of the rule of law may last for many years. Perhaps the forty years (two generations) of wandering in the desert are still a requirement of liberty. Countries where different forms of populism were successful continue to oscillate between the rule of law and its abuse. Or perhaps only different forms of abuse will alternate.

And yet, this shall not paralyze constitutional imagination. On the contrary, by getting rid of the shackles of legal formalism we can contribute to the intellectual liberation needed for the return to the much needed routine of legalism. Imagination is what animates change.