Lex Rex vs. Rex Lex: A Hungarian Parable

By: Peter Vincze

For many of us who live far from our native lands, no day passes by without us thinking of the place we left behind. I tend not to palaver about Hungary or the challenges the country has been facing for nearly a decade. However, my approach changed forever on September 12, when the EU Parliament invoked Article 7 of the Treaty on European Union against Hungary for its contemptuous disregard of democratic norms and the rule of law. Such solemn measure could potentially lead to stripping Hungary of certain rights within the bloc including voting. Following this poignant event, I strongly attest it is the onus of every patriot to wave a warning flag and do whatever one can to halt further harm to our frangible democracy. Citing a revered poet: “On your feet, Magyar, the homeland calls! The time is here, now or never!”[1]

Following my undergraduate studies, I was eager to broaden my perspective and learn the practicalities of international relations, the focus of my academic endeavors, by enrolling in a Master’s program abroad. However, I left Hungary with the conviction that one day I would return with wisdom and prowess to serve the country that has given me so much. During those few years I studied outside Hungary, tectonic shifts occurred not only in the Middle East, the region I chose to specialize in, but also back in my homeland that altered my career aspirations once and for all.

As the Arab Spring swept through the Middle East, Hungary encountered another type of maelstrom. The country was severely hit during the 2008 financial crisis resulting in an abysmal economic contraction of 6.4 percent. Subsequently, the Hungarian Socialist Party, the largest center-left force in Hungary’s political gamut, experienced its worst defeat in the history of the country’s Third Republic during the 2010 parliamentary elections, whilst nationalism and the extreme right-wing Jobbik party gained momentum. Hungarians breathed a sigh of relief when, in lieu of Jobbik, the then moderately conservative Fidesz led by Viktor Orbán seized power. Little did we know at that point that the country was headed down a darker path.

Mr. Orbán, buttressed by an unprecedented two-third majority in parliament, took no respite to reshape Hungary on his and his party’s whim, which led to the meteoric decimation of democratic checks and balances and defilement of the rule of law. According to the Worldwide Governance Indicators, a joint World Bank Group and Natural Resource Governance Institute endeavor, Hungary’s rule of law index plummeted by approximately 10 percent between 2012 and 2017.[2] Findings of the World Justice Project’s (WJP) Rule of Law Index showcase a similar trend between 2017-2018 and 2012-2013. Consequently, according to WJP, Hungary now ranks lowest among high-income countries vis-à-vis the status of the rule of law. [3] Among the eight dimensions measured in WJP’s Index, Hungary shows alarming tendencies with regards to constraints on government powers, open government, regulatory enforcement, and civil justice.[4] Such findings alas come as no surprise.

Since Fidesz’s ascendancy to power, Hungary has experienced disquieting developments regarding the expansion of executive puissance, crippling of democratic checks and balances, political intrusion into disparate branches of the government, and suppression of the press and civil society as well as their subordination to the executive branch. Moreover, fast-tracked legislative solutions have circumvented democratic processes, and curtailed stakeholder participation and parliamentary and public deliberations, thereby debilitating governmental transparency and citizen empowerment.

Furthermore, regulations have been ineffectively or unfairly enacted or enforced. Hungary’s new constitution, for instance, was ratified with major lacunae on issues crucial to safeguarding the rule of law following a nine-day parliamentary debate. These legal gaps were purposefully filled with the so-called cardinal laws that require two-third parliamentarian majority to be adopted or amended. With such enactments, the Fidesz Government made it unattainable for any simple parliamentary majority to transmute any of the provisions encapsulated in these statutes. As the government passed these cardinal laws to regulate the key dimensions of a democratic society, such as freedom of the press, electoral legislations, and minority rights, Fidesz ascertained that the party’s values are cemented into the society for years if not for decades to come.

Finally, Hungary’s civil justice system has become crippled by protracted delays in the resolution of court cases, stymies in enforcing court adjudications, political interference with judicial appointments and decision-making, discriminatory practices targeting marginalized groups, and the paucity of accessibility, probity, and efficacy vis-à-vis alternative dispute resolution mechanisms. The mandate of Hungary’s highest court, the Constitutional Court, has been significantly encumbered by the newly-adopted constitution as well as ensuing amendments. An expansion of Constitutional Court membership from 11 to 15 judges has rendered an idiosyncratic opportunity for Fidesz to appoint four new justices to the high court, thereby tilting its neutrality for years to come.

I like to believe, the rule of law is the sine qua non of progress and development. The prevalence of the rule of law forfends, mitigates, and disincentivizes conflict, malfeasance, and violence. At the same time, it creates societal inclusion, fortifies public accountability, ascertains a just allocation of resources, safeguards public goods, and reduces corruption, inter alia. Conversely, once the rudimentary tenet of “lex rex” is assailed or infringed, social cohesion suffers, leading to grave abuses by certain interest groups that are not representative of the will of the majority.

Hungary has historically been prone to such political hijacking, and recent experiences point to a similar tendency: Approximately fifteen years in the twentieth century were ruled by democratically elected leaders. Who however thought recidivism would occur following strenuous efforts by the political leadership in the 1990s to lay the bricks of a democracy that successfully functioned for over a score of years? The Global Financial Crisis is unequivocally one of the culprits that paved the way in a frail democracy for one strongman at the helm of a coterie to “come, see, and conquer.” To avert such hijacking, we need a mature democracy grounded in a robust rule of law. What Hungary needs is the herculean effort to foster a rule of law, and this effort ought to come directly from its political elite.

Under the leadership of Prime Minister Orbán, the opposite however seems to be materializing. Unassailable by political opponents, Mr. Orbán seemingly believes “rex lex.” The unfortunate part is that Mr. Orbán used to be a vanguard of democracy and his, and his comrades’ efforts, through the establishment of Fidesz, significantly contributed to the fall of communism and Hungary’s transition to market economy. As one of the champions of nascent democratizing movements in Eastern Europe, he was even awarded a scholarship to pursue education in the UK, thanks to one of the loudest democratizing voices back then: Mr. George Soros. Mr. Orbán has apparently chosen to diverge from some of the lessons he learned about democracy earlier in his lifetime, something that became clear even during his first premiership in the late 1990s. Since the inception of his second premiership, this trend has just regressed. The liberal opposition has entirely been asphyxiated, critics have been silenced, freedom of speech has been curbed, and Mr. Soros has been declared one of the foremost personae non gratae of Hungary. Now, after Fidesz’ third consecutive election victory and the disintegration of the mere remaining considerable opposition force, Jobbik, the sole question remains: Hungary, quo vadis? While “lex rex” is in absentia, the answer cannot rest in the hands of one person. Those of us who care for Hungary must stand up to defend its democracy and future.

[1] Excerpt from the National Song [Nemzeti Dal] composed by Sándor Petőfi in 1848 prior to the outbreak of the Hungarian Revolution against the Habsburg Empire. Translated by László Kőrössy in 2004. Available at: http://laszlokorossy.net/magyar/nemzetidal.html [Accessed 16 October 2018].

[2] Kaufmann, D., Kraay, A., and Mastruzzi, M. (2010) The Worldwide Governance Indicators: Methodology and Analytical Issues. [online] Available at: http://info.worldbank.org/governance/wgi/index.aspx#reports [Accessed 14 October 2018].

[3] The World Justice Project (2012–2013). Rule of Law Index 2012–2013. [online] Available at: https://worldjusticeproject.org/sites/default/files/documents/WJP_Index_Report_2012.pdf [Accessed 14 October 2018].

The World Justice Project (2018). Rule of Law Index 2017–2018. [online] Available at: https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2018-June-Online-Edition_0.pdf [Accessed 14 October 2018].

[4] The World Justice Project (2018). Rule of Law Index 2017–2018. [online] Available at: https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2018-June-Online-Edition_0.pdf [Accessed 14 October 2018].

About the blogger: Peter Vincze is a consultant on legal topics at the World Bank.  He aims to pursue further academic training in international development law.

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