“All I want for Xmas is demokracia [democracy],” says one protest sign seen in Budapest, Hungary, over the past several days, as up to 15,000 people took to the streets. They were demonstrating over the latest actions in the increasingly authoritarian rule by Prime Minister Viktor Orban and his Fidesz Party, including a tightening noose around the judiciary and a labor law that could affect the vast majority of Hungarian workers. Opposition parties on the far right as well as the left made a rare showing of solidarity in several cities, appearing together at protests against the new policy changes. “There is more that connects us than that which divides us,” said Kalman Toth, a local representative of MSZP-DK Solidarity in Vas County – considered a Fidesz stronghold.
One of the main reasons for the protests, which began last week, was the Dec. 12 passage of what has become known as the “slave law” that allows employers to require employees to work up to 400 hours of overtime per year, up from a limit of 250, and at the same time permits delays in payment for that extra time for up to three years. Opposition parties in parliament came out strongly against the law, even jeering and sounding sirens during the vote. But Fidesz enjoys a constitutional two-thirds majority, so was easily able to push through the law despite the opposition.
Fidesz’s actions have spurred outrage over other conditions as well. Protesting opposition leaders have coalesced around five demands, indicating increasing discontent with the rollback of freedoms in Hungary since Orban returned to power in 2010. Among the demands is support for and access to independent public media, highlighted when protesters surrounded the party-controlled state television station building and Members of Parliament (MPs) demanded unsuccessfully that they be allowed to read the demands on air. The Guardian reported that one MP was forcibly removed from the television headquarters, and another was taken away by ambulance with minor injuries.
The demonstrators also are demanding something not often thought to bring people into the streets: an independent judiciary.
At the same time the labor law was passed, Fidesz boldly legislated creation of a new politically-controlled court system. The new system of administrative courts has been in the works for years; the idea first surfaced in 2016. At that time, however, Fidesz lacked the super-majority needed to amend the constitution (known as “the Fundamental Law”) to make the change happen.
Not about to let that get in the way, they originally tried to push through a law anyway, using a simple majority, but the attempt was ruled unconstitutional by the Constitutional Court (before Fidesz kneecapped that tribunal). Undeterred, the proposal resurfaced in May of this year, after Fidesz won its third-in-a-row constitutional majority in parliament, and Orban, who previously served as prime minister from 1998-2002, began yet another term in office.
This time, the government easily amended Hungary’s constitution in June to allow the new court structure to be established. It then reintroduced the legislative proposal on Nov. 6, and parliament passed it on Dec. 10, shortly before adopting the slave law. The twisted process used to pass the law contributed to the anger that ignited the protests. Opposition leaders, experts, and judges were given almost no opportunity to weigh in, opponents were refused a chance to speak against the two bills that made up the court reform package in parliament, and not one of their nearly 2,900 amendments to the legislative package setting up the administrative courts were accepted. When the flawed process was complete, the government had basically gifted itself its own completely controllable judicial branch on the side, with decisions provided by judges beholden to them for their jobs.
The new courts will operate in a hermetically sealed ecosystem, completely separate from the ordinary court system and the Supreme Court (known as the Kuria) – similar to the U.S. Supreme Court for non-constitutional issues. Instead, the new system will have its own version of a supreme court, called the Administrative High Court. Judges will be chosen by a member of Orban’s cabinet, the Minister of Justice, who also has been given complete control over the court system’s budget, its internal regulations, and its investigations, with no opportunity to appeal his decisions.
The Fidesz government hasn’t been able to explain why the new system is necessary; even when its own National Judiciary Office (a body charged with governing the court system that reviewed the original proposal) questioned the legitimacy of the move. The Council of Europe’s Venice Commission is likely to join in with its own criticism early next year. Of course, now that opinion will come out only after the new courts are already in place. The former administrative court system in Hungary was abolished in 1990 as unnecessary, after the Constitutional Court ruled that ordinary courts were empowered to hear what were considered administrative cases – or cases concerning challenges to state power. Fidesz has offered no evidence or reason why the regular court system is unable to deal with these cases, as they have been doing since then. Legally, its proposal makes no sense.
Politically, however, a review of the types of cases that will be under the purview of the new courts offers a guess at Fidesz’s motives, as the government, emboldened by its electoral win this year, accelerates its rollback of rule of law and human rights. Generally, administrative courts deal with cases concerning public power, so a number of subjects that are key for consolidating Fidesz’s power. Topics reserved for the new court include public procurement cases, such as those in which Orban’s cronies have repeatedly been found to have made corrupt deals. It includes media regulation, such as the recent agreement by a group of over 500 Fidesz-friendly outlets to “voluntarily” consolidate themselves into a Fidesz-aligned media holding company that was then exempted from antitrust scrutiny in a suspect order from Orban.
Also on the list are appeals by individuals seeking asylum, Orban’s go-to targets as he uses anti-migrant and antisemitic rhetoric, fearmongering his way through elections and unpopular policies (the apparent exception being prime ministers from neighboring countries fleeing corruption charges). Other topics on the list are just as obvious: tax and customs matters, police misconduct, limitations on public protests, land ownership, construction and building permits, and – of course — electoral issues.
Poland and Hungary: Taking Lessons from Each Other
While Fidesz was thwarted in its earlier attempt to create the new courts, Orban likely felt emboldened to try again not only by his own resounding re-election but also by recent developments in Poland. There, Law and Justice Party leader Jaroslaw Kaczynski first followed in Orban’s footsteps, orchestrating a takeover of the constitutional court. But Kaczynski then went further to kneecap the ordinary court system, weeding out disagreeable judges with legislation giving the Minister of Justice hiring and firing ability – and setting up a separate, politically-controlled body to discipline judges and another empowered to re-decide all cases closed since 1997. After seeing the developments in Poland, some aspects of the Hungarian law give one a sense of déjà vu.
As occurred in Hungary this week, the Law and Justice targeting of judicial independence led to massive protests in Poland as well. But Poland’s democratically elected governments have failed to respond. The European Union took ages to gather its wits before criticizing the moves in Poland, and despite accusing Hungary of undermining its own fundamental values, the European Peoples Party (the voting bloc in the European Parliament that includes Hungary) loudly refused to expel Hungary.
Poland’s closest NATO ally — the U.S.– barely mustered a look askance. And in Hungary, when Orban took aim at the leading U.S. priority there by expelling Central European University this month, U.S. Ambassador David Cornstein appeared to condone Hungary’s move. He criticized the university, minimized its importance, and proclaimed that the issue did not concern academic freedom, a pronouncement that strangely (and embarrassingly) repudiated his own nation’s foreign policy interest.
The EU and the U.S. cannot afford to stay silent now. The EU risks allowing its own fundamental order to be undermined by not one but two states legitimizing authoritarian-style justice within the EU. The U.S. cannot afford to continue its weak and ineffective policy of appeasement of anti-democratic partners in NATO. The State Department should consider the recent flicker of pro-democracy life in Hungary and explore more principled positions. In the current situation, the U.S. needs to offer a clear and sharp response to the corrupt legislative process, the Russian-inspired result, and the crackdown on protesters and their ability to voice concerns.
As for the protests, it remains to be seen whether they will have an effect. Reports from Hungarian activists indicate that women across all opposition parties are helping keep the coalition together and that trade unions are now getting involved to maintain momentum. The anger seen on the streets has been mounting for years, as Fidesz has dismantled protections not only for recent migrants, but now for its own citizens. Said one protesting NGO leader, “we [feel] that Hungary is not a democracy anymore.”
IMAGE: A participant holds a placard reading ‘We want independent court of justice’ outside the headquarters of the Hungarian state television during a Dec. 17 protest in Budapest against changes to the labor code proposed by the Prime Minister’s party. (Photo by PETER KOHALMI/AFP/Getty Images)