How Orbán’s Fundamental Law Can be Confronted with Orbán’s Authoritarianism
By János Palotás
It was indeed a unique solution proposed by the legal advisors who turned their backs on their profession and served the authoritarian rule of Orbán, that by abusing the two-thirds mandate, Orbán created the first dual (hybrid) Fundamental Law with the fourth amendment to the original Fundamental Law (March 25, 2013). This amendment made it possible for the Fundamental Law to include both the fundamental values of the rule of law (a prerequisite for EU membership) and the indispensable autocratic powers granted to Orbán. Orbán then deprived the Constitutional Court of the right to examine the contents of the new amendments he proposed, to preserve the integrity of the Fundamental Law and its compatibility with human rights.
It is indicative of Orbán’s deliberate move that in the years to come, Orbán will repeatedly and without a second thought, take advantage of this opportunity. Orbán, in parallel with the enactment of laws satisfying his despotism, is also regularly adding amendments to the Fundamental Law that preclude their sustainability and even their amendability in the event of a change of power. Thus, Orbán’s legislation did not abolish the obstructive elements of the Fundamental Law, because upon its detection the EU would have immediately initiated proceedings against the Orbán Government, but it added new articles to the Fundamental Law, keeping the ones approved, as necessary for his nefarious purposes, knowing that the Constitutional Court cannot carry out a substantive examination.
Orbán therefore regularly invokes his right under a hybrid (dual) structure of the Fundamental Law. The real question is: why only Orbán? So why can’t we see that the clauses protecting our rights are still there today. Why don’t we, or even the European Union, make use of the legal options, most of which are still available in the Fundamental Law to protect the rule of law!
After Orbán’s landslide victory in the 3 April elections, he was confronted with the need to negotiate with the European Union to finance his authoritarian regime (I prefer to call it his criminal cabal). As a result, a number of Orbán’s laws are being amended by Parliament today. These amendments are considered by me to be unlikely to restore the rule of law, as I pointed out in a recent interview with the Frankfurter Allgemeine Zeitung (one of the world’s most influential newspapers). The obvious thing would have been for the EU, and the opposition parties here at home, to demand that we join the European Public Prosecutor’s Office, that we change our electoral and media regulations so that voters can recognize and assert their own interests and vote again in a much more proportional system of electoral mandate allocation. It should be upheld as an expectation that the Government should withdraw the amendments to the Fundamental Law, from the Fourth to the Eleventh, which, without exception, ensure the sustainability of Orbán’s authoritarianism.
It should be pointed out that within the dual Hungarian Fundamental Law, all of its authoritarian interventions are in conflict with EU law, which is an integral part of the Hungarian legal system. It is important to know that EU law takes precedence over national law. This is also true for proceedings before national courts, which unfortunately most courts do not seem to understand, and this seems to be the case for many chambers of the Curia.
Throughout my presentations, my conversations with friends, my writings, I have always maintained that laws do not take precedence over truth. Our rights and obligations are determined by social justice appropriate to the times, even if quite often, as in Hungary today, those who exercise power abuse the legislative process in an attempt to secure exclusive power for themselves, including thez exclusive right to decide on people’s rights and obligations.
It also follows from my understanding that, in my capacity as an expert, inquiries submitted to me which, after a preliminary review, lead me to the conclusion that my potential client is in the wrong are not accepted. My self-contained expert reasoning would then always hit an invisible wall, according to which the act under challenge violated not only the law, but also the rights of others.
The situation is different when a first review of an inquiry or request makes it likely to me that the person seeking assistance needs to assert the truth against a particular piece of legislation. The person who approaches me in such cases usually complains of his helplessness and that he has been dismissed from countless qualified law firms and lawyers’ offices, saying that although the law should, according to the principle of justice, uphold his right, but “unfortunately this is often not the case”, and that the decisions of the courts are determined by the law and not by justice, and that there is nothing to be done. I am sad to say that I too have encountered this very common argument many times in my conversations with otherwise excellent lawyers and judges, and in assessing legal situations. But this is not the case!
I will try to illustrate the clarity of my understanding of the law with an example that is very relevant today, known and followed by readers of the “Szép Szó (A Beautiful Word)” addendum of Népszava.
According to the statements of Dr. Balázs Tóth, the attorney of the international advocacy organization representing the teachers, the reception of the action in court cannot be predicted in advance, precisely because of its unprecedented nature, but more than ten arguments are presented in the action, which, in their opinion, justify the disproportionate assessment of the teachers’ actions in the sanctions applied.
Despite my infinite respect and appreciation, this legal argument would either be left out of my line of reasoning altogether, or at most would be included in my legal argument. In the petition, I would only ask for a ruling that the conduct of the teachers concerned was lawful and therefore did not give rise to any sanction.
Although the so-called Convention on Human Rights and Freedoms does not include the right to strike (the right to walkout) as a specific clause, it would be a mistake to conclude that the right to strike cannot be derived from its rules. Under Article 4 of the Convention, for example no one can be required to perform compulsory labor. In other words, no teacher could be obliged to teach any class at any school for which he or she is not qualified or contracted. Namely, this violates the cited legal text as well as the rights of parents and children and the obligations of the State under Article 2 of the First Additional Protocol. In my professional opinion, it is also a violation of the Convention if a teacher receives instructions that violate the human rights of the child he or she is teaching or of the parent representing the child.
Article 9 of the Convention on freedom of conscience specifically states that everyone has the right to express his or her convictions, individually and collectively, in public and in education. The obligation to observe and uphold the rights and obligations contained in the Convention, both in the national legal system and in national court proceedings, is recurrent in the principal treaties of the Union.
Article XVII of the Fundamental Law provides for the right of workers to walkouts. According to paragraphs 2 and 3, all employees have the right to working conditions which respect their health, safety and dignity. One only has to wonder whether the central regulations that govern teachers’ daily lives today ensure their personal dignity. Whether their remuneration guarantees their livelihood and their health and safety, etc.
The right to walkouts in the Fundamental Law is nothing other than the right to freedom of expression under Article IX of the Fundamental Law and the protection of one’s legitimate interests under Article XXVIII of the Fundamental Law in the world of work.
Article I(2) of the Fundamental Law also states that it expects these rights to be enshrined in law. Paragraph 3 also requires the substantive elements of such laws to comply with the requirement that “A fundamental right may be restricted to the extent strictly necessary to ensure the exercise of another fundamental right or to protect a constitutional interest, in proportion to the aim pursued and with due regard for the essential substance of the fundamental right”.
When designing a tactical approach to litigation, it is crucial what we consider to be the starting point and from where we build up the process. We will arrive at a different conclusion if we accept as a starting point the Emergency Government Decree issued by Orbán on February 11, 2022, which is in force today, as the rules for teachers’ protests through a walkout, or if we reject it and take into account as a starting legal principle the Human Rights, the law of the European Union, and certain provisions of the Fundamental Law that give us rights when filing the petition for a legal action.
Orbán’s Decree is only in force until the legality of its substance is overturned. For in the case that I envisage, if at the end of a lengthy procedure it is established that Orbán’s restrictive decree is unlawful, i.e. null and void, because it has deprived civil disobedience participants of rights (for example, the right to express their opinions through a walkout) that they could not have been deprived of, then we can certainly no longer talk about the alleged infringement. But the same proportionality is expected of those involved in civil disobedience. So it is still open to scrutiny whether an announced absence from a class was a disproportionately broader expression of opinion by those affected than they would have had if they had been given the right to strike, had they not been unlawfully restricted by Orbán. I think that this is certainly not the case, so the voluntary expression of teachers’ opinions is lawful, and the sanctioning of them can be declared a serious infringement, even in the Hungarian courts, I think, but most definitely in the European Court of Justice.
The result and social significance of such a procedure goes far beyond the protection of the rights of five teachers to teach, which is of course a priority in itself. It is often argued that the legal work in the proceedings I consult on runs the risk that, due to gaps in national law, many claims cannot be directly assigned a legal rule, which would simplify the legal argument. But this should not scare us. Thousands of years of law, dating back to the 3rd century BC, can now give us a solid basis for never giving up on what is right. Nor is it an inescapable obstacle if national law does not explicitly enshrine the right of civil resistance and disobedience. These rights are existing even without the knowledge of the Minister of the Interior, and can be enforced by the long-known and often forgotten rules of analogy in courtrooms. If we learn to apply the law more comprehensively, we can also get legal answers on how to resist the traps of the legal environment created by Orbán’s continuous infringing legislation.
In September, the EU Parliament declared by a large majority, with my agreement, that Orbán’s regime has now become an authoritarian hybrid regime. However, the duality also means that the system does not only serve Orbán, but also retains the constitutional elements that can be used as a weapon against him.