Zoltán Fleck is a Professor of Law and Sociology at the Eötvös Loránd University (ELTE) in Budapest. He was recently appointed by Péter Márki-Zay, the leader of Hungary’s democratic opposition, to head up a working group tasked with examining constitutional questions. If the democratic opposition should win the election in Hungary this spring, it will confront an elaborate network of super-majority laws designed to prevent it from governing effectively. The working group chaired by Fleck is looking for ways to overcome these obstacles.
What follows is an interview with Zoltán Fleck by Dániel Kozák, originally published in Hungarian on December 17, 2021 by the news outlet 24.hu. Fleck describes the depth of Hungary’s constitutional crisis and shares his thinking about how the democratic opposition might overcome the obstacles to authentic democratic governance constructed by Fidesz. The interview has been translated below, but also edited significantly for the sake of brevity and style. The Hungarian original is notably longer.
You have only met opposition candidate Péter Márki-Zay twice, yet you accepted his invitation to head up a constitutional working group. How did you gain his trust?
I’m not sure. There’s been discussion over the past few months, both among the general public and among legal experts, about what a new government would be able to do if it fails to win with a two-thirds majority. The things I’ve said about this were close to Márki-Zay’s own conceptions, in particular, my view that we need to think about alternatives other than resigning ourselves to the restrictions established by super-majority laws requiring a two-thirds majority in Parliament.
If the opposition wins with a slim majority, how much room will it have to maneuver?
The question itself highlights the problematic nature of the constitutional and political structure established over the last decade. No one would have asked this question in 2010. Back then, a simple majority would have been enough to govern. The constitutional structure that has emerged over the past ten years is not normal for a democracy. In a healthy constitutional democracy, one doesn’t need a super-majority to govern.
The situation in Hungary is the product of a deliberate political decision. Perhaps everyone remembers that after Fidesz won the election in 2010, the prime minister announced he didn’t want to lose ever again. He modified the constitution to make sure this would be the case. If a new government should come to power, it will be unable to legislate. The President of the Republic, installed by Fidesz, will send new legislation to the Constitutional Court for review. Its members are all loyal to Fidesz and unlikely to allow legislation to pass constitutional review. The Fiscal Council, consisting of only three members, has the power to veto the budget, which also severely limits the rights of Parliament. So a new government will be able neither to legislate nor to pass a budget. Effectively it will have no room to maneuver.
What can the opposition do about this?
We can only move forward if we think through all the possible scenarios and identify the political and constitutional problems associated with each. Everyone wants to know what will happen if the opposition wins. In order to win they need to do two things. They have to demonstrate confidence and show voters they really want to win. They also need to demonstrate that they are capable of governing. Now is the time for them to ask themselves, do we really want to govern?
Is it possible to amend super-majority laws with a simple majority?
This is the dilemma everyone is focusing on. My view is that unless we think through all the possible scenarios, we will botch things up. Voters need to sense that the opposition is prepared for every eventuality and that we know what we’ll do in each scenario. Fidesz has created a closed autocratic system that must be dealt with. This will be the most difficult issue, both politically and constitutionally. There are two scenarios. One is that the opposition wins with only a few more seats than Fidesz. In that case, the fragile rainbow coalition will have to face a unified Fidesz block. The question will arise: can the opposition keep its coalition together and govern?
Are you thinking Fidesz has placed agents within the opposition?
No, I’m simply thinking of political calculations. Before we consider constitutional issues, we must recognize that constitutional decisions are subject to the considerations of realpolitik. Whatever I, the constitutional working group, or anyone else should say, in the final analysis the decisions will be made by politicians. Our job is to outline all the alternatives, identifying the advantages, disadvantages, and possibilities of each. If the opposition wins with a narrow majority, the dominant question will be how to hold the coalition together and whether it can work its way through the difficulties. If some voters – especially those who are undecided – have the impression that the opposition is not prepared this, if they doubt the opposition’s ability to succeed in the most difficult scenario, they may not vote for them. That’s why I say we can’t be silent about these issues.
There’s another thing to consider: the issue of political legitimacy. If the opposition wins by a large margin but doesn’t reach two-thirds, that’s an important factor from the standpoint of legitimacy. It matters in terms of the extent to which voters have bought into what the opposition has promised. But this only works if the opposition states in advance what it plans to do and asks the voters for a mandate. Unless they do this clearly, they won’t have enough legitimacy to govern.
This means you are considering at least two scenarios, one with a small and one with a large majority?
If the opposition wins with a slim majority, the defeated side will act in a completely different manner than if it loses big. Fidesz governs in a centralized, authoritarian way, centered on a single person. The party functions the same way. It’s impossible to predict what will happen within Fidesz if they lose the election. Will this result in a loss of confidence in Viktor Orbán? Should that happen, the authoritarian structure would begin to fall apart and the opposition would confront something new. Politics is the art of the compromise, and right now we don’t know how willing the loser will be to compromise.
I’d like to return to an earlier question. How can the opposition use a simple majority to rewrite provisions that hamper the normal functioning of government, but which require a two-thirds vote? And if you do this, how much resistance would there be?
If some of my earlier comments have given the impression that there’s a single scenario which must be implemented at any cost, then I’ve misled people. I understand everyone is focused on this question, but in my opinion this is a big mistake. Let’s consider all the scenarios. One scenario is that when the opposition is in power it will recognize there are formal obstacles which prevent it from changing super-majority laws and the Basic Law; it will respect those obstacles and do nothing. Has the opposition thought through whether or not it will be able to govern at all in such a scenario? As legal experts we can identify the obstacles and describe the implications of going down this path.
In this scenario, would the opposition be able to govern?
Many people say it would be, but we still don’t see how. One needs to consider all the steps of the legislative process. Can one assume good will on the part of the President? Can one assume the Constitutional Court will return to its constitutional functions? Can one assume all the people placed into key positions by Fidesz will start to act differently and work in the interest of the rule of law? These possibilities can’t be completely ruled out. To a great extent it will depend on what happens within Fidesz after defeat. Will the party collapse, or will it exhibit the strength to wait things out and return to power within a few months? Will the opposition just sit in Parliament and wait until its dissolved by the President? Because if there’s no budget, the President can do this, and call for new elections within a year. In this scenario, the traps laid by Fidesz work according to plan and the new government waits helplessly like a sitting duck.
Obviously, the opposition doesn’t want this. But then how does it deal with the mendacious system Fidesz has created? I should emphasize that neutralizing the super-majority traps cautiously, in accordance with constitutional principles, is not the only, and perhaps not even the best scenario. The working group is not saying this is the only option. There are a lot of uncertainties. The dilemmas in this scenario concern how to create legitimacy and how to work out the legal theories both in terms of the constitution and in relation to the European Union. It already says something that we haven’t yet found the language to discuss these issues. Even opposition politicians are talking about modifying the constitution with a simple majority. No one wants to start rewriting the constitution with a simple majority. No one even wants to do this with a two-thirds majority, because writing a constitution needs to be the result of a broad, inclusive social process. But the truth is decisions will have to be made about certain constitutional provisions that were clearly constructed for the purpose of preserving power. Either we say we can govern under these provisions, or we say we can’t, and we look for ways to change them. But we can only change those provisions that were demonstratively established in the interest of preserving power.
Can you give some concrete examples?
The problem with concrete examples is that one has to consider the entire legal system. What happens with the constitutional laws protected by a super-majority? What about technical regulations protected by a super-majority? What should happen with simple majority legislation? Which of the two-thirds laws have to be changed quickly because they obstruct the ability to govern? Is it possible to achieve compromise on these questions, and if not, how can the laws be changed in a way that the EU and the European court will accept it? Compared to the size of the challenge, we’ve only just begun. If I say we’ll handle the Constitutional Court and the Public Prosecutor in this or that way, I’m speaking in hypotheticals.
So it won’t be possible for a new government to fire the Public Prosecutor on day one?
It’s perfectly understandable that people want to hear about the most visible institutions, e.g., the National Office of the Judiciary, the President of the Curia, the Public Prosecutor, the Fiscal Council, the judges on the Constitutional Court. These are the best known obstacles to the constitutional functioning of Parliament. We all know there are huge debates taking place among legal scholars, politicians, and the public. At the end of the day, it’s politicians who decide the matter. I think the politicians need to start discussing the issues. I would only add two stipulations. They shouldn’t say we can solve everything if we win, and they shouldn’t say it will be easy to govern with a simple majority. Because the voters aren’t stupid. They lived through the last ten years and know perfectly well how the system works. I worry that politicians assume voters can’t grasp the difficulties. But my experience is that if you present voters with difficult alternatives, they will be able to weigh the risks. On the other hand, if voters perceive that the opposition is clueless about the dangers, then we have no chance.
What if the opposition wins with a two-thirds majority?
For the time being we are discussing scenarios with varying degrees of probability. If the opposition wins with a two-thirds majority, the temptation will be great to reverse everything that has happened, rewrite the constitution, and have the opposition take over the institutions. That would send a message that in this country things can be turned upside down any time one side secures a two-thirds majority. In the event the opposition wins a two-thirds, it will need to consider whether it wants to be like Fidesz.
On other occasions you’ve talked about a constitutional transition. What does that mean exactly?
The constitutional transition is part of a scenario where the opposition attempts to govern in earnest, avoid and resolve the pitfalls created by the super-majority laws, and seeks out compromises. The transition would concern the constitution. One has to plan for a transitional period, but even in the transitional phase the parliamentary minority will have rights, the government can be questioned, the media will be balanced, the Constitutional Court will continue to fulfill its function – in other words, there will still be constitutional controls. “Transition” doesn’t mean that the government is specially authorized during a transitional period. We’ve already experienced that kind of transition with Fidesz. They have a two-thirds majority plus governmental authorization. There’s been emergency rule for years. This is not what we have in mind for a transitional period. To the contrary, the purpose would be to restore constitutional principles and parliamentarianism. The transition concerns the institutional framework for such a change. The transition would end when a new constitution is in place. This new constitution would be approved by Parliament after it has passed technical review, with participation from society as a whole – for example, through community forums – and then be confirmed by a referendum. And this new constitution would include a provision stating that a new constitution can’t be rewritten by a two-thirds majority in Parliament. A constitutional process like this would take more than a month, more than two months or even half a year, although we would have to make sure it doesn’t last too long.
How could Fidesz voters accept a new constitution proposed by the opposition?
Fidesz voters may want to have a new constitution once we embark on the project of rewriting it. It’s not clear that the Basic Law is an especially important issue for them. If one believes the Basic Law is important to the few million voters who support Fidesz, why wasn’t it submitted to a referendum? Why was there no real societal participation? The new constitution would not be about forcing the convictions of one side on other. It would be about limiting the institutions of power, about creating a framework for exercising power and determining which rights are essential to a functioning democracy. This would be a minimalist constitution. Social policy, social values, and other similar things would be resolved through further debate.
So there is a basic minimum that everyone can accept?
Yes. A short and clearly written constitution.
I think once Fidesz loses an election, Fidesz voters will have an interest in the creation of a constitution that prevents the other side from concentrating power in its own hands. The best constitutions are built on fear, in the sense that they want to limit power. Fidesz voters should try to imagine a situation where Viktor Orbán is no longer the head of government. Do they want the kind of constitution that limits the power of government and allows for the possibility that their neighbors can sometimes be right?
You mentioned community forums. This idea is quite unfamiliar to Hungarians.
Let’s just say that community forums are not unknown internationally. National community forums are rather rare, but where they exist they work by deciding upon six to eight basic demands, a few of which are then discussed by Parliament. Democracies are very careful to preserve parliamentarianism without yielding to populist pressure, but at the same time, they allow that instruments of direct democracy can be used for supplementation. Direct democracy is quite good at correcting the errors of parliamentarism. Parliamentary democracies have numerous problems, from corrupt agreements between parties to the accumulation of personal power by party elites. The fact that politicians don’t want to take responsibility for certain important issues can also cause problems. Sometimes they fail to see certain problems, or they are unable to arrive at consensus on certain important issues.
How should we imagine these community forums? What kind of people, and how many, would participate in them?
There’s a serious methodology behind them. It’s not a matter of inviting friends for a chat, or announcing a debate for those who are interested, because in that case only people who share the same viewpoint will show up. Rather, everyone has an equal chance to participate in a community forum to discuss certain issues, about which a statement will be issued at the end, and certain demands will be expressed.
Will each issue be voted on at the end?
Yes, there would be a vote – not the kind of vote which is constitutionally binding, but one which has a certain political weight, depending on how many people participate. The rules and methods are similar to those that generally apply in a democracy. For example, everyone has the same chance to attend, the whole country will be represented in terms of age, sex, geography and education, and everyone has an equal chance to express their views as an informed citizen. Experts help to explain the issues. Afterwards people sit down at a table and discuss things until they reach a consensus. They write their position down and compare it with results reached at another table. The process can last for several days. This has been tried in Hungary. It was done over two weekends on a complicated questions involving the environmental policies of a big city, where money, interests, and competing opinions were at play. In my view, when a country is trying to dismantle an autocratic constitution and replace it with one based on national consensus, broad societal participation is necessary. Neither side should feel that the constitution has been forced on it by the other side.
What sort of legitimacy do these community forums have?
Their legitimacy comes from the fact that everyone has the same chance of attending.
Are the participants selected by lot?
Yes. The organizers receive a random list of addresses from the Census Bureau. The people on the list must be persuaded to attend. This is a long process, and it does incur costs, but they are not as expensive as those associated with political corruption or campaign placards. And it has the added advantage of getting people more involved in the democratic process. Everyone who has organized a community forum knows that even when people have widely different opinions, it is possible to find a common core on which everyone agrees, and that’s a truly liberating experience. This would also help to demonstrate that after a period of societal civil war people can compromise with each other.
How many people can participate in a community forum?
That’s a question to be decided. What’s important is that everyone has the same chance to participate if they so wish. This means thousands of people need to be able to participate, which is a lot more than in a poll. Even a common roofer can participate in this kind of forum and can express his opinion.
But how can a roofer express an opinion about the scope of authority of the Constitutional Court?
There is quite a lot he can say. It depends on whether a person like me or some other expert can explain the issues at hand. For example, let’s take the issue of reinstating actio popularis, which functioned very well in the 1990s. That meant anyone could appeal to the Constitutional Court if they believed certain laws were unconstitutional. Imagine you are fired unjustly but can’t find a legal passage to defend yourself because the employment law has been changed. You can still challenge the employer’s action as unconstitutional in certain circumstances. Would it be a good or bad thing if employees can appeal to the Constitutional Court? In my opinion it is easy to see that it would be a good thing.
Is the constitutional working group examining the question of accountability? Does it say anything about how the opposition can fulfill its campaign promise to hold people accountable for corruption?
We’ve decided on one thing, namely that the prohibition against retroactive laws must be respected. People must be held accountable pursuant to the laws that were in effect at the time the crime was committed. We’re not interested in revenge, we only want to restore the framework of criminal justice. If someone commits a crime, they should face the consequences. This is the least problematic issue for the working group, because here we don’t need to circumvent existing laws, we only need to enforce them. Simply because the prosecutor hasn’t filed charges in certain cases doesn’t prevent an investigation if there are objective reasons for it. The reason charges weren’t filed isn’t because of an absence of evidence, but because of Péter Polt. Everyone knows this. That’s why he’s become a symbol. At the same time, we know that local prosecutors and the police are conducting professional work. Once political considerations are no longer at play, the professionals can do their job.
What is the timetable of your working group? When do you have to prepare the scenarios?
By all estimates, the election will take place at the beginning of April. We’ll be saying more about the scenarios as we arrive at consensus. The working group will do everything to ensure that the whole package is completed by mid-March.