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The Twilight of Parliament – Parliamentary Law and Practice in Hungary in Populist Times

In: International Journal of Parliamentary Studies
Author: Zoltán Szente1
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  • 1 Professor of Law, Ludovika - University of Public Service; Research Professor, Centre for Social Sciences, Institute for Legal Studies, Budapest, Hungary, szente.zoltan@tk.hu
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Abstract

This study is based on the assumption that if there really has been a transition to authoritarian rule in Hungary since 2010, this should also have had a significant impact on Parliament. The article reviews changes in parliamentary law and practice, examining whether they have indeed aimed at concentrating power and instrumentalizing the legislature. In doing so, it analyses the key organizational and operational reforms of the National Assembly. The final conclusion of the study is that 2010 was an important milestone in the very recent history of Parliament, and it evaluates some of the subsequent changes as unconstitutional, while it also argues that some new trends in parliamentary law and practice have destroyed the quality of the activities of the Parliament. As a consequence, the Parliament only formally performs its constitutional functions, and plays a marginal role in the constitutional system, having a number of institutional and operational features that are incompatible with the standards of modern constitutional democracies.

Abstract

This study is based on the assumption that if there really has been a transition to authoritarian rule in Hungary since 2010, this should also have had a significant impact on Parliament. The article reviews changes in parliamentary law and practice, examining whether they have indeed aimed at concentrating power and instrumentalizing the legislature. In doing so, it analyses the key organizational and operational reforms of the National Assembly. The final conclusion of the study is that 2010 was an important milestone in the very recent history of Parliament, and it evaluates some of the subsequent changes as unconstitutional, while it also argues that some new trends in parliamentary law and practice have destroyed the quality of the activities of the Parliament. As a consequence, the Parliament only formally performs its constitutional functions, and plays a marginal role in the constitutional system, having a number of institutional and operational features that are incompatible with the standards of modern constitutional democracies.

1 Introduction*

There is a broad consensus in the academic literature that since 2010 an authoritarian transformation of the country’s political and legal system has developed in Hungary, during which populist governance has undermined the most important guarantees of the rule of law and the system of checks and balances (Landau, 2013; Halmai, 2018; Bugarič, 2019; Walker, 2019; Fournier, 2019; Blombäck, 2020). In December 2018, the European Union launched a procedure under Article 7 of the Treaty on European Union to examine whether the rule of law in this Member State was indeed under a systemic threat.1

If nationalist populism really is in power in Hungary, which has had a constitution-making parliamentary majority since 2010, (except between 2015 and 2018), then it is a plausible presumption that the transition to authoritarian rule should also have affected the institution of the Parliament.2 The government majority adopted constitutional and legal reforms that were so comprehensive as to have been unthinkable without the involvement of the National Assembly (Országgyűlés). Therefore, it can be assumed that significant changes have taken place in the functioning of the Parliament in the last decade, in line with the increasing concentration of power in the consecutive governments of Viktor Orbán, and hence reducing the role of the legislature in the power-sharing system. In this study, I will discuss only the most important changes in the parliamentary law and practice, i.e. although the analysis will not be exhaustive, this is not necessary as a review of the basic organizational and operational characteristics of the Parliament is sufficient to confirm or refute this hypothesis.

It should be noted that the right-wing government coalition gained an overwhelming majority in all three parliamentary elections held since 2010, and has unscrupulously exploited its unlimited power. During 2011, it amended the previous Constitution a total of 12 times, then adopted a new Fundamental Law in the same year (which it has amended nine times since then) and essentially restructured the entire legal system.

2 Organisational Changes

2.1 The Plenum

The National Assembly remained a unicameral parliament despite the idea of establishing a corporatist-type second chamber being raised on several occasions, and the 2011 Fundamental Law was significantly influenced by the nostalgia for the so-called ‘historical constitution’ which was in effect until near the end of the World War ii, which would also have led to the restoration of a bicameral parliament. In the end, the rejection of bicameralism was probably driven by political considerations.

The number of Members of Parliament decreased from 386 to 199 from the beginning of the parliamentary term in 2014. This was not only a symbolic step (symbolizing that the state was cutting costs) to rationalise parliamentary debates, but also resulted in political gains, as it was obviously a popular measure, and more importantly, it made it easier to maintain discipline over smaller parliamentary groups. Nonetheless, while the makeup of committees has not changed significantly, the reduction in the overall number of mp s has not in itself increased the efficiency of parliamentary work.

The changes to the electoral system were more significant in their effects, although a full analysis of this would go far beyond the scope of this study. However, it is important to highlight that anomalies related to the fairness of the general elections3 may have contributed to the presumed decrease in the legitimacy of the Parliament, and the blatant disproportionality of the electoral system significantly distorted the representative nature of the Hungarian legislature. Preferential parliamentary representation of nationalities was introduced in 2011, but it was only in 2018 that a nationality was actually able to take advantage of this opportunity, when a German nationality representative entered Parliament – one who is, in reality, a loyal supporter of the governing parties.

Although the plenary session of the deputies is the decision-making body of the Parliament, it plays merely a formal role in Hungary; in the legislative process, due to special procedural rules, some of which are unusual in constitutional democracies, it is not able to exercise a substantial influence on the content of laws, but in fact, it automatically adopts bills submitted by the Government or pro-government deputies, while opposition-initiated proposals are usually ignored.

Owing to the traditionally highly centralized and disciplined parliamentary faction of the leading ruling party, Fidesz, and the divided and opportunistic opposition, Parliament does not exercise its oversight function over the Executive power at all. Perhaps the most striking example of this was during the emergency situation introduced in March 2020, when the Parliament, in a seriously unconstitutional manner (Szente, 2020). Simply gave up its constitutional obligation to continuously monitor the emergency decrees of the Government throughout period specified in the special legal order.

The plenary of the National Assembly is also very poorly able to fulfil its function of being a forum for discussing public affairs. This is significantly hampered by the limited publicity available on the work of parliament, pro-government propaganda in the public media and the overt hostility which exists between government and opposition mp s, which has had a very negative effect on the quality of parliamentary speech.

A special feature of the plenary session of the Hungarian Parliament is that its competence is not exclusive. However, since the Parliament, according to its constitutional status, is a collegial body of the legislature, whose members individually do not have any powers, it upsets the internal logic of parliamentary law if any body of the National Assembly itself exercises any kind of authority. The legislative power is indivisible in a unitary state, and, due to the principle of the separation of powers, the Parliament may not be authorized to exercise executive powers. However, according to an act of Parliament, its standing committees may exercise the powers specified in the Fundamental Law or in an Act, as was the case when in 2012 the Parliament authorized the Economic Committee (until 2017) to select private companies to sell so-called ‘settlement bonds’. The activities of this committee, due to its non-transparent operation, were surrounded by suspicions of corruption, which obviously did not increase the prestige of the Parliament.

Overall, it is not surprising that the Hungarian National Assembly is often regarded in constitutional scholarship as a “rubber-stamp” parliament (Scheppele, 2018).

2.2 The Parliamentary Committees

2.2.1 The Legislative Committee as an Essentially Anti-Parliamentary Body

Since 2010, significant changes have taken place in the committee system of the National Assembly. One of the most important organisational changes was the establishment of the Legislative Committee, which has become a key player in the legislative process. This in itself can be seen merely as a technical change (there are similar committees of major importance in other countries too), but this committee plays a role in law-making that is unparalleled in constitutional democracies. In essence, it is not a technical body or the guardian of the constitutionality of legislation, as in some northern European countries, but a watchdog of the parliamentary majority that plays an effective political filtering role in the whole process. Although the regular committee stage is already capable of eliminating bills or amendments that are undesirable to the government majority, this body acts as a kind of legislative supercommittee, which may supersede even the majority opinion of the competent standing committee, and which prepares a single package of all preferred amending motions as well as the consolidated text of a bill (combined with the supported modifications). In practice, the Legislative Committee makes the involvement of the plenary in the legislative process almost entirely formal. In fact, this committee is a kind of “small parliament” that usually performs the tasks of a plenary session behind closed doors, deciding on amendments to the original bills and on the final wording of each law to be passed. The plenary has no opportunity to discuss in detail the package of modifications and the bill presented to it by this committee, instead it may only adopt or reject them in their entirety, whatever they contain.

2.2.2 The Non-Existent Committees of Inquiry

In Hungary, committees of inquiry have never performed the function for which this institution was originally established, i.e. to provide oversight of the activity of Executive power by examining specific cases within the scope of the Government’s accountability. So far, there has been no real benefit from the work of any committee of inquiry, and their operation has generally been part of political struggles. Between 1990 and 2010, the establishment of a committee of inquiry was initiated more than a hundred times in the Parliament, but only 25 were set up, more than half of which ceased their work without making a final report, and only six of the committees’ reports were adopted by the National Assembly. A development dating from the time of the first Orbán Government (1998–2002), was that Parliament established only committees of inquiry proposed by the government majority. This became standard practice after 2010, and since then all committees of inquiry have been used as instruments of political campaigns against the opposition.

2.2.3 The Standing Committees as the Instruments of the Government Majority

In principle, the role of the standing committees has increased, as since 2014 the second reading of bills has been carried out not by the plenary session of the Parliament, but by an appointed committee. However, as we have seen, the Legislative Committee has full control over the whole procedure, so in reality the new role of standing committees does not serve to improve the quality of legislation but to diminish the influence of the plenary. Moreover, the committees often do not function properly. A good example of this is the activity of the committee which nominates the members of the Constitutional Court. One of the first acts of the new government majority in 2010 was to replace the previous system of nominating constitutional judges, which had been based on a compromise between the government majority and the opposition, with a new selection method in which the relevant parliamentary committee is composed in proportion to the members of the parties represented in Parliament, ensuring that the government party mp s can in practice nominate alone, without the approval of the opposition deputies, bringing the membership of the Court into the wider system of political patronage. Accordingly, the renewed nomination committee has performed only administrative tasks, making the whole process thoroughly partisan.

2.3 The Officials of the National Assembly

In Hungary, the position of the Speaker of the Parliament is a part of the political spoils system, and so far, a leading politician of the major government party has always been appointed to this office. This is despite the fact that, according to the Rules of Procedure, the Speaker is obliged to chair plenary sessions impartially, and in this position he or she does not represent his/her own party, but the entire legislature. The current Speaker, however, who has held this position since 2010, has repeatedly made extremist and abusive statements about the parliamentary opposition, often chairing parliamentary sittings in a manifestly biased manner, such as by applying parliamentary disciplinary sanctions almost exclusively to opposition members.

Other parliamentary officials play only an insignificant role in practice, such as the so-called “first officer of the National Assembly”, a position which had existed in the interwar period, and was restored in 2013 without an exactly-defined function.

2.4 Restricting the Opposition Rights – Changes of the mp s’ Legal Status

Since 2010, the changes made to the legal status of mp s have mainly aimed at limiting the rights of the opposition, such as by introducing new disciplinary rules. The modernization of parliamentary disciplinary law was long overdue because the previous rules were incomplete and contingent. The new rules have introduced certain new disciplinary sanctions such as fines, the suspension of mp s’ rights and expulsion from a sitting day. The severest of these disciplinary sanctions were used as political weapons against opposition mp s, such as fines or exclusion from a sitting day.

In 2014, an amendment to the Act on National Assembly introduced a rule prohibiting deputies from “holding a demonstration by material, image or sound media” in plenary or committee sittings of the Parliament. This regulation, as well as the parliamentary usage developed within its framework, is clearly in conflict with the case law of the European Court of Human Rights.4

The restrictions of access to public interest data (by imposing fees for data provision and extending its deadline) as well as the restriction of the right of mp s to enter public institutions have also resulted in a limitation of the rights of the opposition. Since 2020, mp s have only been able to request information from the heads of public bodies in a “pre-agreed manner”, and recently these requests have often been rejected. The antecedent of these restrictions was that some opposition mp s wanted to make a statement on public television in December 2018 on the new amendment to the Labour Code. However, several of them were forcibly removed from the television station building by the security guards next morning, while several other members were prevented from entering the building late at night. Nevertheless, despite the obvious and serious violation of mp’s rights, the Prosecutor’s Office not only rejected the complaint made by the mp s concerned, but launched a criminal proceeding against them. In doing so, the Prosecutor’s Office openly made a stand for the offenders, as several video and audio recordings were released showing that the security guards of the public tv’s headquarters used violence against several Members of Parliament, despite their rights to enter, remain in, and conduct on-site inspections of public institutions, as provided by the Act on the National Assembly. Despite all these events, the Parliament did not investigate the case, but instead it restricted the rights of its own members in the manner mentioned above. The ex-post restriction on access to public institutions was a tacit acknowledgment that there had been no legal basis for action against the mp s.

At the end of 2019, the National Assembly also tightened the regulations on parliamentary factions. The right of deputies to join parliamentary groups had in any case been somewhat restricted since the democratic transition, even though this was a clear violation of the principle of free mandate. In the early 1990s, it could have been argued that such a restriction was necessary to stabilize the party system that was still undeveloped at the very beginning of the democratization process. Retaining these restrictions today, however, serves only current political interests and defies the logic of parliamentarism. This regulation has become even more restrictive, prohibiting an mp who has left his or her political group from joining another parliamentary faction during his or her term of office, presumably in order to prevent a possible merger of opposition parties.

3 Changes in the Rules of Procedure of the Parliament

3.1 Renewing Standing Orders

In 2012, the Parliament renounced its tradition, unbroken since 1848, of adopting its standing rules in the form of a parliamentary resolution. Although the legal nature of standing rules is not a matter of principle, it is striking that the governing parties that are otherwise so eager to invoke respect for the historical constitution did not preserve even the few public law traditions that survived after 1945.

Since 2012, the procedural rules of the Parliament have been contained in two sources of law of different levels and nature: on the one hand, the Cardinal Act5 on the National Assembly,6 and on the other hand a parliamentary resolution on standing orders.7 The reason for this splitting of the operating rules was that the standing orders should comprise provisions which concern not only the rules of procedures of the legislature, but also provisions which may affect the rights of others (such as the quasi-police powers of the Speaker over the visitors of plenary sittings) or other special legal relations (such as the use of the name and symbol of the National Assembly), which therefore require legal regulation, while the classical (internal) organizational and operational rules can still be laid down in a parliamentary resolution. However, the distribution of standing orders consistently failed as the Act contains a number of provisions regulating the internal organization and procedures of the Parliament.

3.2 Formalizing Legislative Process

3.2.1 General Frameworks

Constitutional standards for law-making have been significantly eroded since 2010, but in reality they have never been particularly strict. While the Constitutional Court declared emphatically, in the euphoria of its formative years, that “procedural guarantees derive from the principles of the rule of law and legal certainty” and that “valid legislation can only be created by following the rules of formal procedure”8 and, a couple of years later, that “a formally erroneous legislative procedure – on the basis of an appropriate motion – will in future give rise to its retroactive annulment on the day the law is promulgated”,9 these principles have never been fully applied in practice. From a very early stage the Constitutional Court started to consider it permissible if certain procedural rules were not complied with by the Parliament during the legislative process, even if the statutory rules required it (such as the involvement of the stakeholders in the law-making) and later, by creating the concept of “invalidity under public law”, it declared in principle that only “a serious procedural irregularity” may lead to unconstitutionality, that is, the kind of procedural errors “which cannot be remedied otherwise than by the annulment of the law”.10 In fact, the Court has always declared the legislative procedure unconstitutional only if it violated a procedural rule directly prescribed by the Constitution.11 Overall, this practice of the Constitutional Court has diluted the constitutional requirements of the law-making process, a situation that remains to this day.12

Against this background, it is not surprising that since 2010 the legislative process has become more and more informal and the fulfilment of legislative requirements has become more flexible, although in principle the legislative omnipotence of the constitution-making majority would have justified stricter compliance with these requirements.

3.2.2 The Transfer of Second Reading of the Bills from the Plenary to Committees

Of all the parliaments of European countries, Hungary is the only one where the main decision-making body of the legislature, the plenary sitting of mp s, does not have the opportunity to debate a second reading of legislative proposals.13 In other words, Parliament does not have the power to discuss in detail the bills submitted to it, which means that it may not debate individual motions. According to the procedural rules, the second reading of bills is carried out only by the standing committee appointed for that purpose. The Parliament can only discuss compiled, unified proposals for amendments supported by the Legislative Committee. In this respect, the standing committees are no longer advisory bodies of the plenary, but substitute it. This set of rules has essentially made the National Assembly a rubber-stamp parliament, which has, in legal terms, the weakest legislative power in Europe.

Without any knowledge about the political context, it would be incomprehensible how a parliament could have accepted such a curtailment of its own prerogatives. When Parliament debated the proposals for the new standing orders in 2014, pro-government mp s argued that experience had shown that plenary debates were useless, ineffective and of low quality, invariably giving way to fruitless political debates. This is clearly an astonishing admission from the national body for representing the people, whose main functions are to discuss public affairs and to represent different political opinions (Proksch and Slapin, 2015). As a matter of fact, if this argument were to be upheld, it would call into question the whole institution of parliament and imply that law-making should be a purely professional technical-administrative process. Furthermore, depriving the plenary of the second reading of bills seriously damages the publicity of legislative activity. In addition, it seems to be unconstitutional if the Parliament has to decide on bills that could not be discussed in detail, even though the Fundamental Law ostensibly confers complete and undivided legislative power on the Parliament, specifying the plenary sitting of mp s as its chief decision-making body. Parliamentary committees themselves are not representative bodies, and therefore they cannot replace the Parliament – their proper function is only to prepare for plenary debates (Ismayr, 2008).

It is a necessary but not sufficient condition for the legitimacy of parliamentary laws that they be passed by democratically elected representatives of the people. An equally important requirement is that they must be the results of free deliberation reflecting the will of these representatives. However, if the National Assembly can discuss the necessity and principles of bills in only one reading without the opportunity to debate their specific provisions and the motions for amendment submitted to them, this condition can hardly be said to have been met.

3.2.3 Block Voting

The so-called block vote, which is the method of voting on bills, logically fits with the exclusion of the second plenary reading. This voting method, which is mostly unknown in modern democracies or which is used only exceptionally, was introduced in 2014. Its essence is that the National Assembly may not vote on individual amendments submitted to bills, but may only adopt or reject a single package containing all the amendments supported by the Legislative Committee. The same is true of the legislative text, because Parliament can only vote en bloc on the whole text of the consolidated bill (i.e. the bill completed by the supported amendments).

As I have pointed out, this voting method is applied very rarely in modern legislatures, and is used exceptionally in only a few countries, such as France (vote bloqué) Gicquel (2004). Although its application tends to lead to heated political debates even there. There are two main reasons for not voting in this way in parliamentary procedures. First, this method is less democratic inasmuch as it prevents Parliament from controlling the whole legislative process (e.g. deciding on the amending motions). Since Parliament may approve or reject only the whole text of the bills, it plays only a formal role that can hardly be considered real legislative activity. The other reason is that the block vote greatly reduces the efficiency of the legislature, as the Parliament is unable to pass the legislative law in the form it considers best.

If mp s can only vote on the whole proposal, they will not be able to enforce their real preferences, but are forced instead to cast a so-called strategic vote, avoiding the worst decision (for government party mp s, for example, this would be the rejection of Government bills), rather than passing the best text of the law (Rasch, 2000). In such a procedure, it may even be the case that Parliament adopts a variation of the text (a combination of the original proposal and the amendments) which would not otherwise be adopted by any mp without the constraint of a strategic vote.

I would argue that both the deprivation of the decision-making body of the National Assembly to discuss the bills in detail, and the block voting of the bills are unconstitutional. According to the practice of the Constitutional Court, “the democratic rule of law” presupposed “democratically adopted procedural rules and decision-making in accordance with them”,14 and “the discussion of bills (including the deputies’ freedom of speech)” was “highly important”.15 Even in 2011, the Court repealed an act of Parliament because some of its provisions were enacted after the conclusion of the detailed debate, on the grounds that the Parliament thus had no opportunity to discuss the proposal on the merits.16 In comparison, since 2014, all laws passed by the Parliament have been adopted in a procedure in which the Parliament did not have the opportunity to discuss their specific rules or to decide on them.

If the constitutional standards of legislative process that prevailed until 2011 were still applicable today, we would have to consider every piece of parliamentary legislation adopted since 2014 unconstitutional.

4 Assessing the Law-making Activity of the Parliament Since 2010

Due to the high number of laws passed by it, the Hungarian Parliament is often referred to as a “law factory” type parliament (in which legislative activity dominates political debates and the control of the Executive).

The in-depth transformation of the Hungarian legal system after 2010 was accomplished by a significant increase in the number of the laws passed by the Parliament. While a total of 589 laws were adopted in the 2006–2010 parliamentary term, 859 laws were passed during the next one (from 2010 to 2014), and a further 730 between 2014 and 2018.

However, general experience shows that the quality of legislation has steadily deteriorated, as proved by the indicators used to measure it. Thus, for example, the proportion of amending laws adopted rapidly increased to 62.6% in the 2010–2014 cycle, even compared to the otherwise unhealthily high rate of 55.3% during the previous Parliament. Although this was partly due to the comprehensive transformation of the previous legal system, examining the legislative performance of the three successive Orbán governments, it can be seen that the new laws were increasingly aimed at changing laws already adopted after 2010: in the term of 2014–2018, almost 70% of all laws were not new, but amendments to an earlier law. In addition, after 2010, far more laws were enacted in a much shorter period of time.

This accelerated law-making was also facilitated by the exceptional and urgent procedures applied to bills which were important to the Government, notably the merging of these two forms of procedures in 2012 (which, however, ceased in the next legislative term), which also allowed the final vote on a bill to be taken just a the day after it was submitted to Parliament.

Beyond the increase in the number of laws, the preparatory (pre-parliamentary) phase of the law-making process has often been significantly shortened. Since 2010, the Government has devoted far less energy than before to the preliminary consultation of stakeholders and social organisations on Government bills, and has often completely ignored it. It became a well-known technique for the deputies of government parties to submit bills to Parliament that otherwise had been prepared by the ministries or other central government agencies in order to circumvent the procedural requirements of the law-making process of Government bills. While in the parliamentary term of 2006-2010 80.64% of all adopted laws were submitted by the Government, approaching the 80–90 per cent that is usual in Western European parliaments (Olson, 1994; Brunner, 2013), and only eight per cent of them were proposed by private members (individual mp s), during the term of office of the second Orbán government (between 2010 and 2014) only 66% of the adopted laws were submitted by the Government. Yet this does not imply a legislative failure on the part of the Government, because 31% of the successful bills were proposed by government party deputies, who apparently submitted legislative proposals to the Parliament that had been prepared by the Government. Nonetheless, it seems that this assistance of individual mp s was no longer needed between 2014 and 2018, when 77.4 per cent of successful bills came formally from the Government, although pro-government deputies still submitted almost 20 per cent of the laws adopted in that period.

It is worth noting that since 2010, the opposition has not had any influence over the legislative process: between 2010 and 2014, only three laws were passed by the Parliament which had been proposed by opposition mp s, while from 2014 to 2018 only one such act was passed, as opposed to the 15 such laws adopted in the parliamentary term of 2006–2010.

The quality of parliamentary law-making can be evaluated, nevertheless, not only indirectly based on quantitative data, but also through qualitative indicators. Since 2010, for example, the number of so-called omnibus (in Hungarian terminology: “salad”) laws has sharply increased. This codification technique, by which several laws on very different topics are modified by a single act of Parliament, is also known in other countries, and Hungary has had a tradition of passing such laws since the democratic transition. The Constitutional Court considered this kind of legislative approach permissible in 1995 only as an “inevitable exception”.17 The constitutional standards were later loosened in this respect as well, though the law-making method by which several laws were amended by the Budget Act was declared unconstitutional. According to the Court, the Budget Act has a special constitutional status, and stated that the Parliament has to decide on the annual state budget in a single act in a manner separate from other laws.18

The requirement of legal certainty in Hungary has never been so important or strong as to impose a constitutional barrier to a practice that has satisfied different legislative needs by a single law, as well as often hiding certain unpopular or controversial provisions in such a composite statute, and making it difficult to keep up with legislative changes. A single piece of legislation in 2012, for example, amended 45 previous acts of Parliament with different subjects.19 Another act, adopted in 2019, modified 78 statutes.20 While a significant portion of these amendments were aimed at minor amendments to sectoral laws, this piece of omnibus legislation actually included a partial judicial reform, which should obviously have been adopted in a separate law. The act on the consequences of the state of danger, declared following the coronavirus pandemic in 2020, was a real legislative monster, consisting of more than 400 articles: beyond the provisions that perpetuated several transitional rules during the emergency situation, it has extended the powers of the Government.21

The significant decrease in the quality of law-making in Hungary can also be illustrated by statutes with different temporal effects; the provisions of a 2014 law, for instance, entered into force on nine different dates.22

The frequent adoption of “personalized laws” – statutes tailored to individuals – also seriously violates the integrity of law-making and the legal nature of acts of Parliament. By its nature, a law is a normative act, rather than a legal instrument for deciding a specific case. This is not only an analytical tool of legal theory, but also an important constitutional requirement, as on the one hand, it clearly violates the principle of separation of powers if Parliament decides on individual matters by law, and on the other hand, this practice weakens the effective judicial protection of those who are affected by that law.23 Accordingly, in the past, the Constitutional Court has in some cases annulled a legal norm that was enacted to decide individual cases,24 although this practice was very inconsistent and has now been completely forgotten. In spite of these well-known concerns, this legislative tool has now become quite common, especially in the form of laws tailored to specific individuals to provide them with special exemptions and benefits. Although such laws never name the beneficiary, laws granting individual privileges can be easily identified not only by the political context in which they are adopted, but also by their ad hoc, unreasonable or discriminatory nature and the precise identification of their individual addressees. These laws often serve to remove legal obstacles to the appointment of government party trustees to public office, to extend their term of office, or to provide them with material benefits. In some cases, however, this method has also been used against certain individuals (such as a 2011 law that allowed a former communist party leader to be prosecuted).

One murky aspect of parliamentary law-making is that a number of statutes have intervened in economic competition without real public interest, instead serving private gains, usually based on political considerations to build clientelism, or just to prefer oligarchs loyal to the Government. In the last ten years, there have been many examples of this, from the re-regulation of the tobacco retail sector to the redistribution of the gambling market, preferring specific economic activities – such as tourism or elite sports – and interest groups at the expense of certain sectors like environmental protection or the exploration of archaeological treasures. These trends show the instrumentalisation of parliamentary legislation for the sake of political and private gains. For example, after a law passed in 2012 made tobacco retail a state monopoly, retail licenses to sell tobacco products were redistributed through concession contracts. The Constitutional Court found this legislation constitutional.25 In contrast, the European Court of Human Rights stated that the withdrawal of retail rights by an act of Parliament without any compensation was a violation of property rights contrary to Article 1 (protecting the right to property) of the First Additional Protocol to the European Convention on Human Rights.26

In another case, the Parliament first increased the tax payable on slot machines placed in gaming-rooms fivefold, introduced a new gambling tax, and imposed a new, costly server-based gambling obligation on the gambling industry. After a year, however, another law, adopted in a special (urgent) procedure, banned the operation of slot machines, withdrawing the licenses previously issued for operating such machines with immediate effect. In this way, the organization of gambling also became a state monopoly, but the rights to operate casinos were redistributed by the Governments among private enterprises by concession contracts. However, according to the judgment of the Court of Justice of the European Union on a reference for a preliminary ruling, a fivefold tax imposed “without a transitional period” infringes the freedom of enterprise and gives rise to a claim for damages, which must be decided by national courts.27

Finally, constitutional concerns about parliamentary law-making must also be mentioned, even if, according to the standards of the Constitutional Court, which consists exclusively of members elected by Government party mp s, the situation has not worsened significantly in this respect compared to the past. In any case, clearly some pieces of new legislation would not have met previous constitutional standards. The prohibition of retroactive legislation or the protection of acquired rights are much less stringent requirements in Hungary today than they were before 2010 (Szente, 2013).

5 Conclusions: the Parliament in the System of the Separation of Powers Since 2010

As I have already pointed out, the constitutional status of the Parliament was only slightly affected by the changes after 2010, and, in a broader context, it could be concluded that the role of Parliament has not changed much. Some tendencies seem to have strengthened, while others have weakened the position of the Parliament in the constitutional and political system. Legislative power may have been extended due to the fact that the core function of the Constitutional Court was shifted from the control of the legislature to the constitutional oversight of the Judiciary. The Court was not only packed with pro-government judges, but its powers were severely curtailed, as it is no longer able to review public finance legislation, while access to the Court was seriously restricted by abolishing the actio popularis, and all its decisions made before 2012 were repealed. Similarly, the power of the Parliament could have increased as a result of the subjugation of all other independent bodies acting as counterweights to the legislative authority, such as the National Electoral Commission, the State Audit Office, the Commissioner for Fundamental Rights, the National Judicial Office, the Prosecutor General’s Office, the National Media and Communications Authority and the National Authority for Data Protection and Freedom of Information, as these organs were also packed with supporters of the Government parties, becoming parts of the political spoils system. The position of Parliament may also have been strengthened by the fact that after 2010 the conditions of national referendums became stricter, as the turnout required for validity was raised from 25% to 50% of the voters. In addition, the National Electoral Commission has operated in an extremely rigorous manner, and with the exception of the Government-initiated (and otherwise manifestly unconstitutional) 2016 referendum,28 it did not allow any national referendums to be held.

Nonetheless, several previously unknown limits on legislative power appeared after 2010, such as the reorganization of the institution of the Budget Council, which gave this body a veto power over the adoption of the annual budget. The requirement for the approval of a non-elected body over the budgetary power of Parliament (the lack of which could lead to the dissolution of the legislature) is unprecedented in constitutional democracies. Another development that can be considered a restriction of the legislative power is that any parliamentary legislation on certain policy areas requires a two-thirds majority vote, which can always obstruct law-making when the government parties do not have such a majority.

The almost negligible role of the Hungarian Parliament in public policy decision-making has not occurred primarily for these reasons, however. It is instead the consequence, on the one hand, of the extremely strong political control over the Parliament by the Government, and, on the other hand, of the weakness of the parliamentary opposition. The ruling party, Fidesz, is traditionally a centralized party with very strong factional discipline. Based on the experience of recent years, the Government, relying on its parliamentary majority, is able to get any decision through Parliament without any difficulties. In contrast, the parliamentary opposition has been fragmented since 2010, and has not been able to muster effective resistance to the will of the Government majority. Indeed, the parliamentary opposition has become an accessory of the contemporary Hungarian pseudo-parliamentarism, in which, in the current circumstances, there is little chance of defeating the governing coalition in general elections. Although the opposition parties are loud and confrontational in their communication, basically they behave more or less as loyal parliamentary actors, whose parliamentary presence has provided a source of legitimacy for the deep transformation of the political and legal system in the last decade.

In sum, the quality level of Hungarian parliamentary law and the legislative activity of the National Assembly has significantly diminished since 2010, both in terms of professional and constitutional standards. All this has taken place in a substantially unchanged parliamentary organizational structure, while in terms of procedural rules, the balance between the majority principle and the protection of parliamentary minorities has tipped in favour of the former.

It should also be noted that this process did not begin in 2010 but much earlier. Nevertheless, the change of government in 2010 was a real milestone not only in political terms but also in the development of parliamentary law, due to removal of all effective counterbalances against the will of the Government majority. As a result, applying the classical labelling of parliaments in political science, the Hungarian Parliament can be classified as a legislature of “minimal” or “marginal” significance29 which has a number of institutional and (formal and informal) operational characteristics that are foreign to the usual forms and practices of modern constitutional democracies.

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*

This article has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement No 822590.

1

European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(inl).

2

The effects of populism on the legislative power and process have been analyzed in several works in the past. See e.g. Arthurs (2006); Szente (2019).

3

See in details, Hungary parliamentary elections 6 April 2014 osce/odihr Limited Election Observation Mission Final Report, osce Office for Democratic Institutions and Human Rights, Warsaw, 11 July 2014.; Hungary parliamentary elections 8 April 2018 osce/odihr Limited Election Observation Mission Final Report, osce Office for Democratic Institutions and Human Rights, Warsaw, 27 June 2018.

4

ECtHR, Case of Karácsony and Others v. Hungary (Application no. 42461/13 and 44357/13); ECtHR, Case of Szél and Others v. Hungary (Application no. 44357/13); ECtHR, Case of Szanyi v. Hungary (Application no. 35493/13).

5

Cardinals act is a form of acts of Parliament to be adopted by a two-thirds majority of mp s present.

6

Act xxxvi of 2012.

7

Parliamentary Resolution 10/2014. (ii. 24.).

8

Decision 11/1992. (iii. 5.) of the Constitutional Court.

9

Decision 29/1997. (iv. 29.) of the Constitutional Court.

10

Decisions 3/1997. (i. 22.), 29/1997. (iv. 29.), 52/1997. (x. 14.) of the Constitutional Court.

11

Decision 39/1999. (xii. 21.) of the Constitutional Court.

12

See e.g. Decisions 109/2008. (ix. 26.), 164/2011. (xii. 20.), 15/2019. (iv. 17.) of the Constitutional Court.

13

In other parliamentary systems, it is exceptionally possible not to hold a plenary debate before the committee stage of the legislative process. But usually, the bill shuttles between the plenary and the appointed committee. De Winter (2004).

14

Decision 62/2003. (xii. 15.) of the Constitutional Court.

15

Decision 12/2006. (iv. 24.) of the Constitutional Court.

16

Decision 164/2011. (xii. 20.) of the Constitutional Court.

17

Decision 42/1995. (vi. 30.) of the Constitutional Court.

18

Decision 4/2006. (ii. 15.) of the Constitutional Court.

19

Act ccviii of 2012.

20

Act cxxvii of 2019.

21

Act lviii of 2020.

22

Act xvi of 2014.

23

Decision 5/2007. (ii. 27.) of the Constitutional Court.

24

Decisions 6/1994. (ii. 18.) and 45/1997. (ix. 19.) of the Constitutional Court.

25

Decision 3194/2014. (vii. 15.) of the Constitutional Court.

26

Vékony v Hungary, Judgement of 13 January 2015, no. 65681/13.

27

See C 98/14. sz. Berlington Hungary Tanácsadó és Szolgáltató Kft. és társai kontra Magyar Állam ügyet.

28

Zoltán Szente, The Controversial Anti-Migrant Referendum in Hungary is Invalid, https://www.constitutional-change.com/tag/anti-migrant-referendum/, October 11 2016, accessed: 09.11.2020.

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