Portrait of an abusive relationship — Orbán government indicted for its rule of law violations


Each year, Canada’s Congress of the Humanities and Social Sciences – comprising a wide range of academic associations in the humanities and the social sciences – gathers in a different Canadian city, to discuss developments in their areas of expertise. Organizers accept papers from specialists within their academic association to present research under the aegis of the Congress. This year’s Congress took place at Ryerson University in Toronto, from May 27 to June the 2nd. Seventy different scholarly organizations participated at this year’s event.  HFP contributor Dr. András B. Göllner, a political economist at Montreal’s Concordia University and an expert on contemporary political developments in Hungary, presented the results of his research to the joint conference of The Association of Hungarian Educators of America and The Hungarian Studies Association of Canada. We can report that Dr. Göllner’s talk resulted in a truly engaging discussion and attracted a large audience. The following is a summary of Dr. Göllner’s presentation to this gathering. The Hungarian Free Press is very pleased to reproduce here the text of Dr. Göllner’s talk.


Dr. András Göllner in Toronto (May 2017)

Dear colleagues:

It’s truly a great pleasure and honour to see so many of you here today. This is the last presentation in our three day program. I, along with some others, and not necessarily for the same reasons, had expected that by now, most of you would be well on your way to your homes in various parts of the world after three days of deliberations. I’d like to compensate you all for your admirable perseverance by presenting you with some thoughts that may challenge your curiosity, and provide some intellectual comfort for sticking around to the bitter end.

My thesis

The thesis of my talk is straight forward. The Orbán government, which has been elected to office in Hungary in 2010, uses the instrument of „Parliamentary Sovereignty” to abuse the „Rule of Law.” I argue that it manages to get away with this abuse for the following reasons:

  1. Each of the „partners” in this relationship – the Rule of Law and Parliamentary Sovereignty – suffer from a „personality disorder. They possess multiple identities. It is these character flaws that stand as the primary sources of the abuse.
  2. These original character flaws are purposefully exaggerated or kept alive by the Hungarian leadership, as instrument for generating personal profit, and expanding income inequality. The Hungarian Predatory State is kept alive via the parliamentary abuse of the rule of law.
  3. Hungarian political culture, cultivated by successive political elites, (domestic and externally imposed) has been historically tolerant of Rule of Law abuses. Domestic civil and political resistance to abuse is weak.
  4. International (EU, UN) enforcement of common standards regarding the Rule of Law, and Parliamentary Sovereignty is difficult to implement, especially if some political leaders and key opinion leaders in the international arena are actively promoting the Orbán regime as a role model for Western democracies. International enforcement is even more difficult in Hungary’s case, because the Orbán regime is handsomely compensated as a surrogate inside the Western Alliance, on behalf of the most powerful international Rule of Law abusers, such as Russia, and China.
  5. The Orbán government utilizes a highly effective communications strategy to hinder the domestic and international detection of its abusive behavior. It uses an affinity fraud, to fly under the radar built and operated by members of the Western alliance. It cultivates supportive agents from all walks of life to perpetuate the fraud. I include among the solicited supporters some members of the so-called „learned societies” such as the two associations that are hosting my talk here today. (This gathering of the AHEA and the HSAC for example is sponsored by The Hungarian Initiatives Foundation, which is one of the Orbán government’s lobby arms in the USA. The two associations’ opening cocktail party was sponsored by the Rule of Law violator’s local representative in Canada.)

The Methodology that sustains the thesis

What methods did I use to produce these conclusions? Are they perhaps the results of Marxist ideology, hearsay, perhaps liberal or partisan political bias? Can I vouch that my research methods, if applied under carefully monitored laboratory conditions will reproduce the results that I’m revealing to you today?

Given the time limit before us, my answer to these very legitimate questions has to be brief. I will be happy to discuss them in more detail during the Q and A. The methodology used in this investigation is rooted in conventionally accepted principles of rationalism and empiricism. The approach is NOT based on Marxist theory. It is compatible with Western Democratic Theory, Liberal as well as Conservative principles of Justice and Constitutionalism. The principles I follow were laid down for Western civilization, and it’s social sciences, first and foremost, by such thinkers as Aristotle, Locke, Kant, de Tocqueville, Rawls, Habermas, and Sen. In addition to following the generally accepted contemporary conventions of the Western Social Sciences, the approach I follow, bases itself on the principles enshrined in the universally accepted covenants of the two major international organizations that Hungary is a member of and that matters to us all – the United Nations and the European Union. There is no attempt on my part to apply standards to Hungary that the government of this country has not formally signed on to uphold.

Why Does the Rule of Law Matter?

The short answer to this question was given by John Locke, 330 years ago, in his unforgettable masterpiece, Two Treatises of Government: “Wherever law ends tyranny begins. ” But perhaps it’s better to listen to more contemporary voices, such as those, who are entrusted with the enforcement of the Treaty of Europe, and the values that lie at the core of Western Democratic societies. Here is the statement of the European Union on why observance of the Rule of Law matters.

The rule of law is the backbone of any modern constitutional democracy. Respect for the rule of law is a precondition for EU membership… Compliance with the rule of law is not only a prerequisite for the protection of all fundamental values listed in Article 2 TEU. It is also a prerequisite for upholding all rights and obligations deriving from the Treaties and from international law. The confidence of all EU citizens and national authorities in the legal systems of all other Member States is vital for the functioning of the whole EU as “an area of freedom, security and justice without internal frontiers”. (Source: The European Commission, March, 2014.)

If the Rule of Law matters so much, why is there so much controversy over its enforcement, why are there so many who can get away with breaking it? As I stated earlier, the primary reason for this paradoxical situation is that the Rule of Law has been able to exhibit a chameleon like behavior, not unlike those exhibited by those sub-atomic particles that are the building blocks of the Universe. The latter can appear as either a wave or a particle depending on how we look at them. The ability of the Rule of Law to exhibit multiple identities have lead some of our best legal minds to throw up their hands in frustration. Let me quote three of them:

“The Rule of Law may well have become just another one of those self-congratulatory theoretical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling class chatter” Prof. Judith Shklar, former President of the American Society for Political and Legal Philosophy

„The Rule of Law has given rise to a rampant divergence of understanding, everyone is for it, but have contrasting convictions about what it is.” Prof. Brian Tamanaha, Washington University, School of Law.

„The term means little more than “Hooray for our side.”  Prof. Jeremy Weldron, NYU School of Law.

(For serious students of the subject, I recommend an excellent book written by the Lord Chief Justice of Great Britain, Tom Bingham. The Rule of Law. Penguin Books. London. 2010. The above quotations are taken from this book.)

If the identity of the Rule of Law is so hard to define what about the concept of Parliamentary Sovereignty? Perhaps here we have a less unstable, more composed character? Unfortunately, once we get past the rhetoric, we are confronted by the same dilemma as before. The identity of Parliamentary Sovereignty is perhaps more unstable, flawed, than the partner it was called upon to protect. A brief explanation is in order.

Parliamentary Sovereignty is a form of governance invented by the Greeks. Its weaknesses were thoroughly discussed by Plato and Aristotle. This governing instrument died in a rather ugly manner approximately 300 years before the birth of Jesus Christ. As a systemic idea for deciding who gets what, when and how in a community, it lay dormant for close to two millennia, and was only revived, like some ancient seedling, approximately 300 years ago.

The revival of this genetically flawed seed took two avenues – one was British, the other French. The British reengineered the seed using the fusion of power principle. Under Parliamentary Sovereignty, the legislators and members of the executive sit in one chamber (hence the fusion of power principle). Under Parliamentary Sovereignty, it’s not the courts, but Parliament that has the last word on any issue that’s of importance to a community. No one says this more clearly than the former Lord Chief Justice of Britain in that book I referred to earlier:  „There is no judicial body in the country by which the validity of an act of parliament could be questioned. An act of the legislature is superior in authority to any court of law… There is no recorded case in Britain, in which the courts without the authority of Parliament have invalidated or struck down a statute. ” (Ibid. p. 163)

The French saw things differently. They used the separation of power principle to reengineer the ancient, and genetically flawed Greek seedling. They invented checks and balances, sat the executive and the legislature into separate chambers, and gave the judiciary the last word on what constitutes the Rule of Law. America followed the French, as did most of continental Europe.  Hungary opted for the British model, fusing its executive and legislative branches, and giving the elected representatives of the people the last word on who gets what, when and how in their community. And herein lies the source of the abuse that the Lord Chief Justice alludes to in his own study. „There is a conflict between the two constitutional principles, the Sovereignty of Parliament and The Rule of Law.” (p. 161.)

What have Western democracies done recently to cope with the challenges facing the relationship between Parliamentary Sovereignty and the Rule of Law? What kind of genetic modification have they attempted to engineer on the seedling inherited from the Greeks, which even after our best efforts, continues to produce a bitter harvest in many parts of the world? There has been some remarkable progress to report on.

The Identity of the Rule of Law is no longer in question

During the last decade, the identity of the Rule of Law has been solidified, and should no longer elicit the kind of comments that Professor Weldon and others have made earlier. A global consensus has emerged about the four pillars of the Rule of Law, and I will summarize them here:

  1. Legal certainty, constitutionalism: Governmental authority is based on publicly disclosed laws that define the limits of governmental action. These laws cannot be changed arbitrarily, retroactively or in a one sided manner.
  2. Public scrutiny, justice: Government must guarantee and promote fearless, equal and informed participation for parliamentarians and civil society, in the scrutinization of policy-making and implementation. The State must protect and promote respect for the rational evaluation of competing validity claims in the political arena – free speech, free media, independent NGOs.
  3. Equality under the law: There can be no preferential treatment afforded to anyone in society under the law. No one can be above the law, not even the head of state, or members of the government.
  4. Judicial independence: The independence of the judiciary from government and political interference must be protected by law. Judges, prosecutors, lawyers and law enforcers must have no other master than the law and must be able to uphold and protect the “rule of law” without fear or favour by politicians.

These four principles are now accepted by the European Union as well. There is no longer any need for „covfefe” on this subject matter. Here is how the EU lays down the Rule of Law, based on the above mentioned four pillars:

„The precise content of the principles and standards stemming from the rule of law may vary at national level…. Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law… The rule of law is intrinsically linked to respect for democracy and for fundamental rights: there can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa. Fundamental rights are effective only if they are justiciable. Democracy is protected if the fundamental role of the judiciary, including constitutional courts, can ensure freedom of expression, freedom of assembly and respect of the rules governing the political and electoral process.” 

Consensus on Parliamentary Sovereignty 

Like its partner, the Rule of Law, Parliamentary Sovereignty has also been the subject of considerable character building innovations of late, in order to cure it of its abusive predispositions.

The British designers of Parliamentary Sovereignty recognized, that if the decisions of their Sovereign Parliament become arbitrary, subject to executive fiat, if constitutional constraints on governmental power are weak, if the transparency of the legislative process and the ability of the public to scrutinize it are hindered,  and especially, if the ability to evaluate the validity claims of the competitors in the political arena, or the ability to organize alternative courses of action are limited, Parliamentary Sovereignty becomes not a guardian but an abuser of the Rule of Law. Under such circumstances, Parliamentary Sovereignty isn’t worth the paper it is written on. The British went to work, to correct the problem in order to enhance the public interest. (As I’ll show later, the Hungarian government went to work to exacerbate the problem in order to enhance their personal profit.)

The modifications that were introduced to Parliamentary Sovereignty to enhance its social responsibility are too numerous for itemization. As in the case of the Rule of Law, we can also speak of pillars that can be globally built on:

  1. Pro-active leadership is the key: Political leaders should alert their followers to the natural tendencies of this model to degenerate. They should follow the path of positive discrimination – serve as champions of communicative action – the drive to understand and to be understood. They should chart a political cultural agenda that rewards rather than scorns debate, discourse.  (Hyde Park corner rather than Tien Mien Square)
  2. Transparency/Scrutiny: There has to be an ongoing policy commitment to strengthening the mechanisms of scrutiny of the legislative process. Scrutiny, transparency, public access to fact based information on alternatives policy choices must be accessible rather than restricted. Parliamentary law and an active, well trained civil society are necessary adjuncts. Without TS, PS is BS.
  3. Fearless speech: Parliamentary commitment to a competitive political market, based on free speech and the freedom of the press. This freedom must be regulated and cannot be left in the hands of unregulated market forces or political monopoly. Civic education in rules of discourse, and responsible journalism. Governmental watch-dogs must be kept alive, off the leash, but well trained not to harm the collective good.
  4. Independent judiciary: Parliamentary Sovereignty by its nature requires a highly independent judiciary, politically neutral law enforcement. 

How Does Hungary Score?

As I summarized in my thesis, the abuse of the Rule of Law in Hungary is rampant. Instead of strengthening the three pillars above, Hungary has weakened each of them during the reign of Viktor Orbán. The objectively verifiable evidence for this is widespread. Hundreds of credible academics worldwide have reported on it along with, globally respected international organizations. Here is a quick rundown of the 10 most glaring cases of abuse since Orbán came to power:

  1. Leadership hostile to discursive political culture (Kötse). Orbán publicly embraces path of Rule of Law violators such as Russia, China, or Turkey. (Tusnádfürdő)
  2. Supermajority in Hungarian parliament restricts scrutinization of lawmaking. (Private member Bills, Emasculated Committees.)
  3. Transparency guarantees lowered by legislative action.
  4. Development of civil society hindered rather than promoted.
  5. Principal of equality before the law is regularly breached
  6. Checks and balances have been greatly weakened
  7. Judicial independence highly curtailed
  8. Free, competitive media has been destroyed
  9. The public service has been politicised, de-professionalized.
  10. Political competitiveness, like economic competitiveness has drastically fallen since 2010. (OSCE, OECD, World Trade Forum)

In a precedent setting vote on May 17, 2017, the European Parliament decided to initiate disciplinary measures against Hungary’s flagrant and repetitive abuse of the Rule of Law. The EU had not taken such a drastic step against any of its member states during its lifetime. The most relevant parts of this resolution to our discussion are these:

The European Parliament..

  1. Regrets that the Commission did not respond to Parliament’s call to activate its EU framework to strengthen the rule of law, as contained in its resolutions of 10 June 2015 and 16 December 2015 on the situation in Hungary, in order to prevent, an emerging systemic threat to the rule of law from escalating further;
  2. Takes the view that the current approach taken by the Commission focuses mainly on marginal, technical aspects of the legislation while ignoring the trends, patterns and combined effect of measures on the rule of law and fundamental rights;
  3. Believes that infringement proceedings, in particular, have failed in most cases to lead to real changes and to address the situation more broadly;
  4. Believes that the current situation in Hungary represents a clear risk of a serious breach of the values referred to in Article 2 of the TEU and warrants the launch of the Article 7(1) TEU procedure;
  5. Instructs its Committee on Civil Liberties, Justice and Home Affairs therefore to initiate the proceedings and draw up a specific report with a view to holding a plenary vote on a reasoned proposal calling on the Council to act pursuant to Article 7(1) of the TEU, in accordance with Rule 83 of its Rules of Procedure;


Will the measures announced by the EU be sufficient to compel Mr. Orbán and the Hungarian government to end its abusive behavior? Very unlikely. The ability of the EU to enforce its standards is notoriously weak. Given the tenor of the current administration in the USA, Rule of Law advocates in Hungary have little to hope for from this quarter. Indeed, the new US Attorney General, Jeff Sessions, warmly applauds the conduct the European Parliament overwhelmingly dismissed in its May 17th resolution. Here is a brief quote from Sessions correspondence with Hungary’s former ambassador: „Hungary now serves as a global beacon for the power of freedom, democracy and human rights. Economic prosperity flows from democratic traditions, and Hungary is proof of this rule.” (Letter from Jeff Sessions to Réka Szemerkényi, former Ambassador of Hungary. September 20, 2016.) Jeff Sessions’ right hand man during the Trump campaign, J.D. Gordon issued a series of even stronger public endorsements on behalf of Donald Trump for Orbán, a man who by his actions and words, is increasingly seen as Putin’s “Trojan Horse” within the Western Alliance. (See: The Budapest Bridge, HFP) Donald Trump is well on his way to taking Orbán to his bosom. It appears, all he is waiting for is a lull in the slightly embarrassing chatter which suggests, that Orbán may have played an accommodating role in the Russian secret services efforts to influence the outcome of his race with Hillary Clinton.

If the abuse of the Rule of Law, which is spreading like a cancer from Hungary to other parts of Central Europe to be stopped, decisive steps must be taken by three sets of actors::

  1. Hungarian civil society/political elite: They must do a much better job organizing sustained pressure for change. Need to generate sustainable governing/policy alternatives, and a new political-cultural climate that „economizes” Rule of Law abuse, linking the issue to citizens’ pocket books. (Civic education, grass roots Party Organization, Resistance.)
  2. Hungarian diaspora leaders: Should work to unmask rather than sustain the „affinity fraud” perpetrated upon unsuspecting Western public opinion by Hungary’s lobby offensive and its politically subservient diplomatic class. Public whining rather than public wining!!!
  3. Western governments/alliances: Should enforce community standards rather than turn a blind eye to their violation. Act fairly, without discrimination. Jeff Sessions should be named and shamed as a supporter of Rule of Law violators. Since Hungary is the major violator within the Western alliance, it should be made an example of to deter future abusers. Rule of Law abuse is a communicable disease.

The prospects for a peaceful, orderly progress towards ending the abuse in Hungary are slim. Unless there is a shift in the pattern of behavior exhibited by each of the three constituents above, the cancer will spread. At this point, the chances of EU infringement procedures succeeding against Hungary are virtually zero. The chances of Hungarian diaspora leadership turning against Orbán publicly are also close to zero. The chances of Hungary’s political elite, or its civil society being able to engineer a peaceful end to the abuse are less than 20%. The chances of ordinary citizens taking the law into their own hands, to bring about regime change, via civil disobedience or even violence are 50-50.

There is no way of getting around it: Peaceful, orderly change requires a paradigm shift on the part of the key players listed above. The prospects for a mutually respectful relationship between the rule of law and parliamentary sovereignty requires that concerned citizens demand it vigorously, up to and including the use of civil disobedience. It requires, that political parties in Hungary organize themselves more effectively and be able to connect economic prosperity to respect for the rule of law. The spread of the cancer requires a targeted surgical procedure. The EU should hit the Hungarian regime where it’s most vulnerable. At its pocket book. It should immediately stop transferring billions of its taxpayer’s money into the hands of a regime that steals vast amounts of it, and uses the rest to undermine the community’s core values. There is no way around this: The European Union must enforce its directives and treaty terms upon non-compliant members before they undermine the integrity of the entire community.

 András Göllner

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