The EU institutions should step up with complementary and comprehensive measures against antidemocratic member states that are undermining the rule of law, including the increasingly authoritarian Hungarian government.
The Orbán regime has entered a new authoritarian level. Democratically elected members of the parliament were forcibly thrown out from the state television’s building on Monday.
There was no disorder; they only wanted to get their petition to be read on air in the otherwise well-functioning governmental propaganda machine, but instead of being welcomed by the so-called “fake news” editor Dániel Papp, they were met by armed security services.
The situation is also riddled with systemic irony in the fact that such infringements will soon be dealt with the newly-established parallel administrative courts whose members are appointed by the Minister of Justice.
Welcome to the parallel dimension of Orbán
Ever since the democratic transition, there has been no such precedent of removing parliamentarians from the public TV’s headquarter by using physical violence.
Obviously, the news director of MTVA did not silence Bernadett Szél, Ákos Hadházy and other MPs on his own initiative. Recent developments have rather shed lights on the “modus operandi” of the captured public media that has been build up since 2010 in a violent manner.
As a former editor, I had a chance to experience personally how “content” is beings produced in Public television.
Rule number one was that the opposition-related news was not only hidden on the website and shown in a mostly negative light, but the stories themselves were only published after Fidesz had an opportunity to respond and paint a more government-friendly context of their making.
This is how opposition news became “repackaged” governmental news, and this is how I became disgusted with Hirado.hu, dubbed “public media”, after 2 years in 2014. Due to the increasingly repressive and paranoid nature of the system, the situation of the Hungarian public media has been aggravated ever since.
In the past four years, I’ve been mainly focusing on the authoritarian system building of the Orbán regime, which was misunderstood especially by foreign colleagues who interpreted the Hungarian Prime minister’s key message during his illiberal speech at Băile Tușnad to be that he is not willing to organise the state based on liberal values.
Soon after, it was proven, that this was not about an ideological fundament but serious measures that undermined the rule of law itself.
In Hungary, the political power plays as well as the institutional system have become increasingly authoritarian and exacerbated by the demise of democratic institutions and the elimination of the checks and balances.
Earlier this year, Fidesz won its third two-third majority using the framework of the well-established authoritarian system. They created a political field so uneven that no one, not even a strong and unified opposition, would have been able to keep them from maintaining power.
Understanding how this undemocratic system functions is not that complicated. It is enough to look at the reality on the ground with the government’s extensive capture of the media landscape, the State Audit Office’s discriminatory abuse of the opposition parties or to examine the one-sided effects of the hate-filled state propaganda funded by public funds and numbered in the billions.
With tacit support from the powers that be, a Socialist opposition politician was hindered from submitting a referendum question.
It is unacceptable that today open physical violence is being used against opposition politicians exercising their constitutional rights or that the police are disposing of tear gas and pepper spray on demonstrators without giving prior warning.
Viktor Orbán’s controversial authoritarian system “generously” never bothered with “dissidents”, but the fact that demonstrators have been depicted as anti-Christian minorities or labelled as activists paid by Soros is elucidating about Fidesz’s “concept of democracy” in an even more comprehensive manner. This regime is using its propaganda machine and entire fake news arsenal to delegitimise the opposition and those who are dissatisfied with this administration, which is likely to be wilfully accompanied by pro-Russian media that is generally supportive towards Fidesz’s politics.
Outsourcing undemocratic principles
With such a democratic backsliding, Hungary represents a unique model in the European Union but aspects, or close facsimiles, of which are being exported to an ever-expanding club.
The EU – which is overburdened with Brexit as well as the Italian and French domestic political events – has been forced to deal with at least five problematic countries at the same time. Although Poland has recently retracted tactically by respecting the decision of the EU’s Court’s, Warsaw does not want to give up on the long-term transformation of the entire judicial system.
While Jarosław Kaczyński’s broad-spectrum system-changing efforts are being slowed down by institutional constraints, such as the proportional electoral system and the multi-level autonomous local governments, Law and Justice (Kaczyński’s party) is still trying to manoeuvre between EU institutions á la Orbán’s methodology.
Most recently, the Venice Commission has given a denouncing verdict on the Maltese government; according to its report released at the beginning of this week, there is a lack of separation of powers, and the courts, suffering from a paucity of constitutional control, are unable to provide rule of law and justice for all citizens which is contrary to any version of democracy.
Bulgaria has joined the club not only by being at the bottom of the systemic corruption rankings in the EU but also because the government of Boyko Borisov speedily hollowed out their democratic directly after Bulgaria’s EU accession in 2007.
In Romania, the Social Democratic Government has utilised all their political tools to undermine the work of the National Anti-Corruption Directorate in the past five years in order to avoid its own accountability. In its annual report this year, the Commission has expressed its concern that Bucharest might be walking down a path of democratic backsliding similarly to the Hungarian and Polish governments.
The political impasse
The Article 7 procedure, which can be suitable for political quarantine but is hardly the “nuclear option” that it is sometimes referred to, was certainly not invented to restrict such an illiberal block. European legislatures have not had to deal with the possibility of facing similar rule of law issues and antidemocratic patterns.
Moreover, political hearings within the Council might get slowed down by the next EU presidency led by Romania. Nevertheless, if there would be a vote, Hungary, together with Slovakia, Czechia, Romania, Bulgaria and one of the Baltic states could easily prevent an unfavourable decision for Warsaw.
With regards to Hungary and Poland, I have repeatedly argued that the key solution is in the hands of the politically independent EU courts.
Brussels, as the guardian of the EU treaties, should launch an infringement procedure against Hungary, similarly to the way it did against Warsaw: by referring to the principle of judiciary independence in the case of the new administrative court.
And if the Fidesz government refuses to amend the law in a significant manner, the Commission has to turn towards the Luxembourg court in an accelerated procedure.
Forcing CEU out from Hungary is yet another example of how important it is to make burdensome infringement procedures more efficient. The Commission, which declared that Lex CEU is incompatible with EU law from the very beginning, turned to the EU court last December for a ruling, yet it recently indicated that it will not provide a legal judgement before the end of this year.
The way forward
In the following months, the EU court is expected to come up with a strong announcement of the Lex CEU by identifying the serious infringement made by the Hungarian government. But Viktor Orbán will be able to avoid serious EU fines, given that he has achieved his goal as CEU has been relocated already, so the government can easily retract the relevant legislation next year.
Therefore, the Commission and the Luxembourg court should set aside the precautionary principle by stating that if a member state abolishes judicial independence, the freedom of education or infringes on freedom of the press, it is equal to a breach of the constitutional guarantee of the Union.
That is why they could take the wind out of the sails of those who argue that it is still problematic to launch infringement procedures or politically sanction a member due to the violation of the rule of law because of the lack of proper codification of EU values.
Also, if initiatives regarding the conditions of the rule of law will not be incorporated in such new mechanisms, it would be important to enforce at least the currently existing instruments of the Lisbon Treaty. As it has been rightly pointed out by R. Daniel Kelemen, an American political scientist, Article 142 of the Common Provisions Regulation currently allows suspension of payments in case of systematic violation of the rule of law. In order to avoid an irreversible proliferation of authoritarian hybrid regimes, the EU institutions have to enforce these multiple tools in a systemic and efficient manner.
This article is part of the #DemocraCE project series run by Visegrad/Insight and the Res Publica Foundation in cooperation with the National Endowment for Democracy (NED) as well as editors of leading newspapers across Central Europe. The original was published in Hungarian on HVG.