It could also be argued that constitutional identity has become a discursive framework for illiberal democracy since it is used by constitutional courts in Hungary and Poland to denote the distinctiveness of their respective constitutional orders in the EU.
See action brought by Hungary and Slovakia against the 2015 Council decision regarding the mandatory refugee quotas.
The Hungarian government's reaction to the European Court of Human Rights decision on incarcerating asylum seekers in so-called transit zones (Illias and Ahmed v. Hungary, Appl. No. 47287/15) is remarkable as for the first time government politicians began suggesting that Hungary should simply suspend its adherence to the Convention for the Protection of Human Rights and Fundamental Freedoms. According to János Lázár, Orbán’s first lieutenant and the cabinet minister, the government considers the verdict ‘unacceptable and impossible to implement,’ while the leader of Fidesz's parliamentary caucus, Lajos Kósa, said that ‘if Strasbourg continues criticizing Hungary's migrant policies, we must relinquish our adherence to the treaty’. Yet, the government undertook some steps to formally implement this decision – paid the compensation and passed the general measures (amending laws). See link 2.
In his public appearances, Orbán utilizes a new, precisely tailored, well-targeted, and highly effective nationalist political rhetoric. In his 2014 Bálványos speech he explained that ‘[t]he political and intellectual program of 1848 proclaimed: we will not be a colony! The program and the desire of Hungarians in 2012 is: we will not be a colony! Hungary could not have stood against the pressure and dictates from abroad in the winter of 2011-2012 if it were not for those hundreds of thousands of people who stood up to show everyone that Hungarians will not live as foreigners dictate, will not give up their independence or their freedom, therefore they will not give up their constitution either, which they finally managed to draft after twenty years. Thank you all!’ See link 3.
In Poland an indictment against the President of the Republic requires a resolution of the National Assembly passed by a majority of at least two-thirds of the statutory number of members of the National Assembly, on the motion of at least 140 members of the Assembly (Article 145(2) of the Polish Constitution), while bringing a member of the Council of Ministers to account before the Tribunal of the State can be done by a resolution passed by the Sejm by a majority of three-fifths of the statutory number of Deputies, on the motion of the President of the Republic or 115 deputies (Article 156 (2) of the Polish Constitution). In contrast, deputies of the Sejm and the Senate are constitutionally accountable only for performing business activity involving benefits derived from the property of the State Treasury or local government (Article 107 of the Polish Constitution).
On 28 June 2010, upon the proposal of a Fidesz MP, Parliament repealed Article 24 (5) of the Constitution, which required a four-fifths majority of MPs to adopt the procedural rules of the preparation of a new Constitution. In this way, the governing coalition, having a two-thirds majority, eliminated the provision obliging it to cooperate with opposition parties while preparing the new Constitution. The Parliamentary Ad Hoc Committee Preparing the Constitution was established on the same day. 30 out of its 45 were members of the governing coalition. The committee prepared a concept paper, which in the end was only considered to be a working document, while the draft of a new constitution was prepared by Fidesz/Christian Democrat MP's and introduced to the Parliament on 14 March 2011. The new constitution, called the Fundamental Law, was adopted only with the votes of the Fidesz/Christian Democrats coalition on 18 April and entered into force on 1 January 2012. It has been the sole product of the governing political party and has been adopted by the governing majority without the support of any other political force. The text, widely criticized by national, European, and international NGOs and organizations, was adopted on the basis of a bill deliberated only for 35 days and passed exclusively by the votes of members of the ruling coalition. However, to create the delusion of popular support, the government launched so-called ‘national consultation’ by a questionnaire sent to all eligible Hungarian voters. They were asked to answer 13 questions concerning the draft. According to the government (as there were no transparent means to verify this), 12 per cent of voters returned it.
The essence of the government viewpoint regarding a representative democracy as an alternative to a constitutional democracy is presented in the Expert Report on issues regarding the Constitutional Tribunal (available in English at: link 5.
In Hungary the Parliament elects Constitutional Court justices for 15 years with a two-third majority.
In Hungary the recent cases where the overwhelmingly Fidesz-elected Constitutional Court actually struck down government initiatives, such as for example the law blocking the transparency of public spending of the Central Bank (headed by one of Orbán's most important ally) (CC decision 8/2016. (IV. 6.)), the ban on publishing faces of police officers in duty in the media (CC decision 17/2016. (X. 20.)) are less significant and sensitive from the constitutional and political point of view. See also judgment of the Polish Constitutional Tribunal of 16 March 2017, Case no Kp 1/17 (finding in a preventive review that the new law on public assemblies introducing the institution of cyclical assemblies complies with the Constitution).
Before 2010 nomination to the Court required a consensus with the opposition. Also, in 2011, the number of justices was raised from 11 to 15, and later their tenure also raised from 9 to 12 years, and the elimination of a 70 years age limit. Also, the Courts competence was curtailed by excluding a power to review budgets and tax laws that passed Parliament when the national debt was more than 50% of the GDP. See link 7.
For example in reaction to the Court's quashing of the tax on the severance pay received by civil servants forced to retire. Also, the Fourth Amendment to the new Constitution (the Fundamental Law) banned political advertising during election campaigns in any venue other than in the public broadcast media, which is controlled by the all-Fidesz media board. These restrictions had been previously declared unconstitutional by the Constitutional Court. Similarly, constitutional amendments overrode Court decisions finding the definition of marriage too restrictive and parts of the law on churches. Certain provisions of the 2011 electoral law on campaign finance were also found to be unconstitutional (CC decision 1/2013) – and were later taken up again verbatim and constitutionalized by the Fourth and Fifth Amendment. See link 8.
The European Commission did not initiate the infringement procedure against Poland when the Polish government carried out the attack on the Constitutional Tribunal even though it could be considered as the breach of the rule of law enshrined in Article 2 of the EU Treaty. Instead the Commission launched a political dialogue with the Polish authorities and adopted two sets of recommendations within the new Framework for addressing systemic threats to the Rule of Law.
Under Article 7 of the Treaty on European Union, on a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of such a serious and persistent breach. Thereafter, the Council, acting by a qualified majority, may decide to suspend certain rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. The Commission may also bring the matter before the Court of Justice of the European Union.
Judgment of the Court (First Chamber) of 6 November 2012, European Commission v Hungary, ECLI:EU:C:2012:687.
See the procedure for suspension of European Structural and Investment Funds provided in Regulation (EU) No 1303/2013 of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006
The CJEU enshrined the precedence principle in the 1664 Costa versus Enel case (Case 6-64), declaring that the laws issued by European institutions are to be integrated into the legal systems of Member States, who are obliged to comply with them. European law therefore has precedence over national laws. Therefore, if a national rule is contrary to a European provision, Member States' authorities must apply the European provision. National law is neither rescinded nor repealed, but its binding force is suspended.
van der Schyff (2002) 563. See also Besselink (2010) 36. and 42.; von Bogdandy and Schill (2011) 1417. and 1430–31.
Consider for example the renaming of the 2003 Draft Treaty establishing a Constitution for Europe for a Charter of Fundamental Rights of the European Union (2007).
Consider for example Orbán's most recent Putin-type attack on NGOs, which was found to be following a legitimate aim. CDL-PI(2017)002-e Hungary – Preliminary Opinion on the Draft Law on the Transparency of Organisations receiving support from abroad.
See the argument used by the European Commission in its opinion on the legislative reforms concerning the Constitutional Tribunal in the Commission Recommendation regarding the Rule of Law in Poland, Com(2016) 5703 final, 27 July 2016.
More specifically, in this analysis Scheppele brings the example of combining Germany's much-criticized rules for drawing electoral districts with Britain's highly disproportionate first-past-the-post rules for constituency elections, and topping it off with the widely used d'Hondt system for deriving proportional representation from party-list votes, a system that marginalizes small parties. See Scheppele (2013).
Opinion No CDL(2011)016, of the European Commission for Democracy through Law (Venice Commission) on the new Hungarian constitution and the three legal questions arising out of the process of drafting the new Hungarian constitution. It stated that ‘[t]he more policy issues are transferred beyond the powers of simple majority, the less significance will future elections have and the more possibilities does a two-third majority have of cementing its political preferences and the country's legal order (…) When not only the fundamental principles but also very specific and ‘detailed rules’ on certain issues will be enacted in cardinal laws, the principle of democracy itself is at risk.’ (para 22–25).
Opinion poll on the willingness to take part in elections and interest in politics, CBOS 101/2017, August 2017.
The term ‘Goulash communism’ evokes images of a community-style dish cooked in the open air to symbolize a communist regime with a relatively pleasant overall atmosphere. This term characterizes the mixing of certain elements of the free market with a planned economy that allowed Hungary to have had slightly higher living standards than its Iron Curtain neighbors and to be among the rare countries in the Eastern Bloc that did not have a shortage of food. See Wike (2010), link 17.
Shortly after the elections, in 2010, parliament passed a law declaring June 4, the 90th anniversary of the Trianon Peace Treaty, a national day of remembrance (Act XLV of 2010).
Jarábik (2015) 319–24., Hegedűs (2015), link 21.
Kövér (2015) 81–90.
Jarábik (2015) 319–24.
Although several demonstrations in defence of the Constitutional Tribunal took place in December 2015 and in 2016, this movement has not been massive and the government continued to pass new obviously unconstitutional laws and refused to publish the Tribunal's judgements.
Mandatory voting is currently used and enforced in several states, including Argentina, Australia, Belgium, Brazil, Cyprus, Ecuador, Lichtenstein, Luxembourg, Peru, Singapore, Uruguay, and on the sub-national level in India, and Switzerland. While formally in force it is not enforced in some 15 more states, some of which are ‘model’ Western democracies.
For the American context, consider for example that in the last election Americans between the ages of 18 and 24 voted for Clinton over Trump in a landslide. Only 43 percent of citizens in that age group voted, however, while Americans over age 65 supported Trump — and 71 percent of them voted. Similarly, Americans in their 30s were more likely to support Clinton, and less likely to vote, than those in their 50s. In midterm elections a mere 17 percent of Americans between 18 and 24 voted in 2014, compared with 59 percent of seniors. See Leonhardt (2017).
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