Prior to 2010, the Hungarian constitutional system appeared to be best equipped with the armoury of militant democracy against any possible authoritarian advance.

The Hungarian Constitutional Court was recognised as one of the most powerful constitutional tribunals in Europe, and its jurisdiction deeply rooted in the tradition of the famous German Bundesverfassungsgericht. The country’s constitution and cardinal laws were protected by a supermajority clause, setting the threshold of amendment so high that it effectively hindered any large, systemic revision of the Hungarian constitution from 1990 until 2010.

The independence of justice seemed to be effectively guaranteed, and Hungary appeared to be a success story of the implementation of the Scandinavian ombudsman model in East-Central-

Viktor Orbán

Europe.

Although the country’s mixed electoral system turned to produce increasingly majoritarian results in every single electoral period that lead to a significant concentration of the Hungarian party system, at first it appeared to be rather a sign of the party system’s consolidation than of a crisis of representation. No one was really alerted; ultimately the mixed electoral system still had a proportional component that appeared to be a guarantee against any electoral overkill.

However, as we already know today, this impressive line of defence was unable to protect liberal democracy in Hungary, and the country has ultimately degenerated into a competitive authoritarian regime since 2010.

Supply-driven illiberal reforms

How could all this happen? Why were all the above mentioned constitutional checks and balances, all the institutional achievements of militant democracy that at least on paper appeared to be much stronger than some of their Western European counterparts, unable to hold back the tide of authoritarianism? Surprisingly or not, the conditions that enabled the illiberal breakthrough are not unique to Hungary at all.

The necessary but not sufficient condition of the authoritarian turn was the supermajority that the former right-conservative, now radical-right party Fidesz won on the 2010, and later 2014 and 2018 parliamentary elections.

This supermajority in 2010, which enabled the smooth illiberal constitutional engineering process that tailored the whole Hungarian constitutional structure according to the party interests of Fidesz, was allowed by a collapse of the left-liberal progressive political spectrum due to its disastrous former performance in government, the unfavourable external economic conditions, and last but not least a semi-majoritarian electoral system.

Obviously, such political constellations can from time to time emerge in other political systems as well, which might be even less protected by their constitutional setting than Hungary has been after 2010.

However, the necessary and sufficient condition has definitely been the conscious betrayal of liberal democratic values and the pursuing of an illiberal, autocratising agenda by one the country’s mainstream political parties after its landslide electoral victory. Therefore, bearing also the moderate electoral campaign of Fidesz (similarly to the campaign of the Polish PiS in 2015) in mind, it is fair to say that autocratisation is a supply, and not demand driven political phenomenon. But why were the instruments of militant democracy unable to cope with this challenge?

Domestic dangers

According to the logic of Karl Loewenstein and the classical tradition of militant democracy, the toolkit of militant democracy is tailored to combat extremists and outsiders.

Party bans, the limitations of the freedom of assembly and association, or the persecution of hate speech as criminal act might be appropriate measures against real extremist groups on the right and left fringes that prominently questions the very fundaments of liberal democracy (in the German constitutional tradition, die “freie demokratische Grundordnung”).

However, the autocratic challenge of our days, at least in East-Central-Europe, does not stem from the political fringes.

Once mainstream, right-conservative people’s parties launched their authoritarian offensives from government positions to permeate, undermine and ultimately transform the liberal constitutional systems of the Hungarian and Polish states.

Mainstream left-socialist people’s parties approach carefully step by step the same red line in Romania and probably also in Slovakia by curtailing media freedom and the independence of judiciary.

Against the betrayal of mainstream elites, who gave liberal democratic values the cold shoulder once they entered power positions, the traditional approach of militant democracy is rather helpless.

Second, populists – how the representatives of the authoritarian agenda are also often dubbed – do not challenge the democratic order as outsiders. Especially in Central and Eastern Europe, where populists are more often members of the power elite than not, they are empowered by democratic mandates and act from democratically legitimised power positions.

Not only as members of the legislation, as it also often happens in Western Europe, but more often than not as sole governing parties or senior members of government coalitions. And the concept of militant democracy does not help us to defend liberal democracy if the sources of the authoritarian challenge, once respected people’s parties, already occupied the majoritarian positions of democracy and are able to reframe the threat they pose to liberal democracy to a conflict between liberalism and democracy.

Obviously, in Hungary after 2010 like in several other Central and Eastern European countries the autocratization of the Fidesz government successfully exploited the already occupied institutions that once in the previous era of liberal constitutionalism served as checks and balances to undermine opposition initiatives and suppress its political enemies.

Notable examples have been provided by the constant blocking of the opposition’s referendum initiatives by the National Election Commission (NVB), while the body embraced even such legally, highly-dubious government initiatives as the October 2016 EU quota referendum, underlining the highly-biased political functioning of the institution.

The State Audit Office of Hungary (ASZ), theoretically tasked with the neutral supervision of party and campaign finances, was also enlisted in the regimes service.

In December 2017 the State Audit Office fined nearly all opposition parties (except the Hungarian Socialist Party “MSZP”) due to allegedly accepting illegal material campaign support, just months before the upcoming parliamentary elections in April 2018. The fine of the biggest opposition party, Jobbik, reached 1.05 million EUR.

The discriminatory investigation and financial sanctions rendered the Hungarian opposition largely incapable of conducting a proper election campaign, as Hungarian law does not provide any legal opportunity to appeal against the decisions of the State Audit Office.

Unsurprisingly, the party finances of the governing parties Fidesz and Christian Democratic People’s Party (KDNP) were not subjects of any investigation by the State Audit Office.

The path is set

Several further examples could be mentioned, how allegedly independent institutions of the state that should have served as checks and balances in the constitutional system of a liberal democracy are subordinated to and exploited for party political reasons by the power elite of the Hungarian regime.

The National Media and Info-communication Authority (NMHH) should serve as the institutional guarantee of neutral and balanced public media broadcasting; however, it has not even raised its voice against how the Hungarian public media has turned – as well as an overwhelming part of the private media outlets – into a propaganda machine of the regime.

Furthermore, the NMHH has definitely shown favour for Fidesz-related investors in sheer frequency distribution tenders they have won.

Nevertheless, the crucial question remains, are we really experiencing the rise of “militant illiberal democracies”?

The answer in this regard is rather a straightforward no. It is neither necessary, nor correct to introduce the concept of “militant illiberal democracies” to describe autocratisation, instead of just calling it autocratisation.

Although illiberal populists often frame themselves as the representatives of the sovereign people and its democratic will against the liberal constrains on the will of the majority, the Hungarian example demonstrates that the strike on checks and balances and liberal constitutionalism is soon followed by the strike on the rules of democratic competition, when the incumbents tailor the electoral system, campaign rules and the media environment in their own favour.

In contrast, individual freedoms, one of the highest liberal values, remained largely intact in the allegedly illiberal regimes of Central and Eastern Europe, at least so far.

Those institutions suffered instead what served as guarantees of a fair political competition and constrains of an arbitrary rule by the government.

Therefore, it is both fair and analytically correct to call the above process autocratisation, and label its current manifestation in form of the Hungarian regime as competitive authoritarianism.

We shall not defy ourselves about the democratic qualities and intentions of such regimes with labels like “militant illiberal democracies”. Authoritarianism is looming just around the corner.

Rethink.CEE fellow at the German Marshall Fund of the United States


Report

The EU is at a critical juncture. For the first time since the launching of European integration, doubts about the future of the EU have been raised by mainstream politicians and large swathes of the European public. Read about four political directions that Europe may follow after the EP elections in 2019.

Visegrad Insight is published by the Res Publica Foundation. This special edition has been prepared in cooperation with the Konrad Adenauer Foundation and with the kind support of ABTSHIELD.

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