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Perhaps it isn’t overly dramatic to claim that constitutional democracy is in its death throes in Hungary. At its most basic, a constitution, whether in a monarchy or in a republic, is simply a set of constraints on what the government – the king, the president, the majority-elected prime minister – can do.
After last week’s vote to tack onto the constitution laws that had been struck down by the country’s highest court, it is difficult to say now that Hungary has a constitution left, in this most basic sense. What it has is a government that, backed unquestioningly by a two-thirds parliamentary majority, has taken over nearly the entire state. Encountering opposition from the last remaining bastion of independent power, the Constitutional Court, it has now essentially killed it dead.
For a while it had been difficult for the court to stand up to the parliamentary majority anyway. Traditionally independent and unafraid to flex its muscles, under Prime Minister Viktor Orban the court has been drastically weakened. Under current procedures it is very difficult to send anything to the judges for review. Orban’s parliament has even banned the court from referring to case law older than 2012 (when the present joke of a constitution was introduced).
Yet faced with stubborn resistance from the court (among others, the judges struck down a new election law that would have skewed things in the government’s favor), Orban has decided essentially to do away with it altogether.
He did make a weak attempt to justify this arrogant and cruel vandalism to the country’s constitution. As early as December Orban argued that not only the minority but the majority has rights in this country, and that he thinks it’s a “bad rule” for him to have to follow what the Constitutional Court says. And if the majority’s opinion (that is to say, his opinion) differs from that of the court, he will simply change the constitution.
Could Orban genuinely have a different constitutional vision from that of the Western tradition, with its bothersome checks and balances and the rule of law? I suspect not. Like so many before him, he has simply lost patience with the difficulties of governing.
He is tugging and jolting at the levers of power and nothing works. Largely through his incompetence and narrowness of vision, the country is at sea. Practically all his ideas are bankrupt or meaningless in the 21st century. His economy minister has ruined the economy, so he names him governor of the central bank. The young are leaving Hungary in numbers unseen since the 1956 revolution, so he binds them here with requirements that government scholarship recipients work in the country after graduation.
None of these things will work, yet he appears constitutionally unable – no pun intended – to acknowledge a mistake, to change direction. He must only drive on with yet more aggression. If the system produces countermeasures, then he must change the system. Resistance must be crushed. That he is destroying the constitution in the process he cares little. He never understood it anyway.
It is difficult to overstate the significance of this. Within the state, there are simply no independent centers of power left, including now the court. Orban can do essentially as he likes – and he does. The very structures that underpin liberty he has swept away. For even more than the ballot, the Western model of government – the Western vision of freedom – has at its heart the constitutional separation of powers.
The Baron de Montesquieu, an 18th century French philosopher credited with devising the system of checks and balances, said simply that “there would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers.” By the "end of everything" Montesquieu meant the end of liberty. For liberty simply cannot survive in a country where all the state’s power has been gathered into one man’s hands.
If no checks on the majority’s power are tolerated, there is nothing to protect the minority. If nothing can restrain the government, there is nothing to protect you and me. Perhaps some would wield this awesome power with wisdom and care. Yet the very arrogance that has taken Orban to this point is ample demonstration that he is not such a man. Few are. As Benjamin Constant, a 19th century French politician said, “There are some burdens that are too heavy for the hand of man.”
What will Orban and his supermajority of yes-men write into this “constitution” of his next? Elections every 20 years? Government by decree? An end to due process? And what, or who, will stop him?
Worse yet, who will ever fix this mess? Orban will fall eventually, yet reconstructing the liberal constitution may be very hard indeed. For one thing, it is unlikely that a new majority will have enough votes to change the constitution. For another, a new government might decide that it enjoys its unchecked powers. Orban has essentially destroyed liberal democracy in this country. We may have to live among the ruins for a long time.