Ed Note – We are hosting an international blog symposium on India and Global Decline in Democracies as a part of our New Scholarship initiative. We will be discussing Professor Tarunabh Khaitan’s article, which he introduced here. More information on the symposium can be found here. This post is the sixth response in the series, by Professor Gábor Halmai.
As Tarunabh Khaitan claims in his comprehensive study, the decline of democracy has started in India when the first government of Narendra Modi came to power in 2014. This has immediately been recognized by Hungarian Prime Minister Viktor Orbán in a speech delivered on July 26, 2014, before an ethnic Hungarian audience in the neighboring Romania. In the speech, besides Singapore, China, Turkey and Russia citing also India as a model regime, Orbán proclaimed his intention to turn Hungary into a state that “will undertake the odium of expressing that in character it is not of liberal nature.”[1]
Even though the just introduced illiberal model in India seemed to serve as a model, illiberalism in Hungary has started after the 2010 parliamentary election, and has been entrenched in the constitutional order by the 2011 Fundamental Law of Hungary.[2] Orbán even admitted that his party did not aim to produce a liberal constitution. This constitutional system indeed broke up with all three accountability mechnisms of liberal democratic constitutionalism listed in Tarun’s paper regarding India.
a) From the 2014 parliamentary elections onwards even the vertical, electoral accountability to the people has been dismantled by manipulated elections through gerrymandaring, more and more disproportional electoral system, winner-compensation, unequal campaign possibilities for opposition parties, voting rights provided for ethnic Hungarians living outside the country, nearly 100 % of whom voted for the governing party. Hence the formal democratic character of the regime can be also be questioned.[3]
b) Orbán openly refused separation of powers, checks and balances as concepts alien to his illiberal constitutional system.[4] Therefore, in the new constitution all veto points have been either abolished or seriously weakened.[5] Appointments to key offices, like Constitutional Court judgeships, ombudsmen, the head of the State Audit Office and the public prosecutor, no longer require minority party input. Independent boards regulating crucial institutions necessary for democracy, like the election commission and the media board, no longer ensure multiparty representation. The Constitutional Court itself has been packed and weakened because its jurisdiction has been limited.[6] The constitutional reforms have seriously undermined the independence of the ordinary judiciary through forcing the judges to early retirement, changing the appointment and oversight rules of judges.[7]
c) In the last decade the diagonal, discursive accountability of the Orbán government has also been destroyed by dismantling not only the independence of the public media, but also through bying up most of the private media by oligarchs close to the government. After the third electoral victory in 2018, when authoritarian state institutions have already been consolidated, the government started to dismantle the independence of academic institutions such as universities and the Hungarian Academy of Sciences, arguing that they represent a threat to their proudly followed illiberal ideology[8]. The most well-known case is the expulsion of the Central European University, the most prestigious liberal art college in the country founded by George Soros, a Hungarian-American philanthropist. Civil society organizations are also threated by the government. The so-called ’Stop Soros’ law labels NGOs supported by foreign sources as ’foreign agents’, and criminalizes them and their activists aiding ‘illegal migrants in any way.’
As we could see, according to Hungarian Prime Minister Viktor Orbán’s definition both India and Hungary are ‘illiberal democracies’. Indeed, the playbook, ‘how to dismantle liberal democracy’ has extensively been used by both governments.[9] Another similarity between India and Hungary is that in addition to their political illiberalization they both implement neoliberal economics, therefore the newly invented label ‘neo-illiberalism’ can be used to characterize them.[10] But ’illiberal democracy’ is an oxymoron, because there is no democracy without liberalism, and there also cannot be liberal rights without democracy. Illiberalism is inherently hostile to values associated with constitutionalism, as an institutional aspect of liberal democracy: separation of powers, constraints on the will of the majority, human rights, and protections for minorities. Therefore, as I argued elsewhere[11], the also oxymonoric ‘illiberal’ or ‘populist’constitutionalism in Hungary or in India for that matter is necessarily authoritarian in character.
[1] See Viktor Orbán, Speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014, Budapest Beacon, July 29, 2014, http://budapestbeacon.com/public-policy/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/.
[2] Cf. M. Bánkuti, G. Halmai and K.L. Scheppele, Disabling the Constitution , Journal of Democracy, Vol. 23, No. 3 July 2012.
[3] This lead Larry Diamond to call the Hungarian sytem as ‘pseudo-democracy’„The test of a democracy is not whether the economy is growing, employment is rising, or more couples are marrying, but whether people can choose and replace their leaders in free and fair elections. This is the test that Hungary’s political system now fails. When Viktor Orbán and his Fidesz party returned to power in 2010 with a parliamentary supermajority, they set about destroying the constitutional pillars of liberal democracy … By the 2014 elections, Orbán had rigged the system. Yes, multiparty elections continued, but his systematic degradation of constitutional checks and balances so tilted the playing field that he was able to renew his two-thirds majority in parliament with less than a majority of the popular vote (and did so again in 2018) … Orbán has transformed Hungary into not an illiberal democracy but a pseudo-democracy”. See Larry Diamond, ‘How Democratic Is Hungary?’, Foreign Affairs, September/October 2019. Similarly, Steven Levitsky and Lucan Way recently argued: “Clearly, Hungary is not a democracy. But understanding why requires a nuanced understanding of the line between democracy and autocracy … Orbán’s Hungary is a prime example of a competitive autocracy with an uneven playing field’. Steven Levitsky and Lucan Way, ‘How autocrats can rig the game and damage democracy’, The Washington Post, 4 January 2019. See also András Bozóki & Dániel Hegedűs, ‘An externally constrained hybrid regime: Hungary in the European Union” (2018) Democratization 1173.
[4] „Checks and balances is a U.S. invention that for some reason of intellectual mediocrity Europe decided to adopt and use in European politics”, Interview with Bloomberg News, December 14, 2014.
[5] See a more detailed analysis on the lack of checks and balances in M. Bánkuti & G. Halmai & K. L. Scheppele,’From Separation of Powers to a Government without Checks: Hungary’s Old and New Constitutions’, in G. A. Tóth (Ed.), Constitution for a Disunited Nation. On Hungary’s 2011 Fundamental Law, CEU Press, 2012.
[6] Cf. Gábor Halmai, Dismantling Constitutional Review in Hungary, Revista di diritti comparati, 1/2019.
[7] See Gábor Halmai, The Early Retirement Age of the Hungarian Judges, in EU Law Stories: Contextual and Critical Histories of European Jurisprudence (eds., Fernanda and Davis), Cambridge University Press, 2017.
[8] See Gábor Halmai, The End of Academic Freedom, Droit & Société, 21/10/2019
https://ds.hypotheses.org/6368
[9] See a recent comparision about the two – and some other ’illiberal’ – countries’ silencing courts: Madhav Khosia, With Freedom at Stake, Courts Are Collapsing. In Hungary, Turkey and India, the courts have turned into silent bystanders and complicit actors, The New York Times, 9 September 2020. https://www.nytimes.com/2020/09/09/opinion/hungary-turkey-india-courts.html?auth=login-email&login=email&referringSource=articleShare
[10] Reijer Hendrikse, Neoliberalism is over – welcome to the era of neo-illiberalism, Open Democracy, 7 May 2020. https://www.opendemocracy.net/en/oureconomy/neoliberalism-is-over-welcome-to-the-era-of-neo-illiberalism/?fbclid=IwAR0otG64iLpFWIlHM0WLeva_0y13YaRc9vH-BkVjLizUZg4h_4REa98IFqA
[11] See G. Halmai, Populism, Authoritarianism and Constitutionalism, 20 German Law Journal, No. 3. 2019.
