Giulia Calini, LL.M. in Law and Sustainable Development, University of Milan.
The European Union’s decisions are taken on the basis of the rule of law, which EU Justice Commissioner Viviane Reding defined as ‘a system in which no one, no government, no public official, no dominant company, is above the law. It means equality before the law’. This principle is essential both to the functioning of the EU, which depends on shared confidence in individual legal systems and to the aim of embedding liberal democracy in Europe.
However, the EU has struggled to respond effectively when Member States violate the rule of law. It is unacceptable for the European Union to have States acting against EU fundamental values and this is the reason why the ex-post rule of law conditionality is being considered as a possible key to solve these situations. This tool is about conditions included in an agreement only after its conclusion, which could impose both positive and negative obligations and its infringement give the EU the right to suspend or terminate the agreement.
Viktor Orbán was elected Prime Minister of Hungary in 2010 and since then he led his party, the Hungarian Civic Alliance (Fidesz), on a path towards questionable actions. Hungary has been following the trend of affirmation of rule of law crisis and democratic erosion. Orbán follows his project to create an ‘illiberal democracy’ where the defense of the principles originated from the Christian culture, such as human dignity, traditional family and the Nation are his main goals. If on the one hand the European élites promote the ‘liberal democracy’ which is in favor of multiculturalism, pro-immigration and accepts different forms of family union, on the other one the ‘illiberal democracy’ dream gives priority to Christian culture, is anti-immigration and supports the Christian family model: this contrasting believes create tensions within the EU.
Starting from gender related issues, Orbán’s approach has led to violations of the rule of law and human rights. In particular, the Hungarian political discourse exploited the Christian beliefs to override the principle of equality: the idea of the traditional family and the relative role of women cannot be established while respecting the principle. Right-wing actors reject the principles of liberal democracy, focusing instead on the concepts of nation, family, and religion. This is typical of illiberal governments that focus on majoritarian nationalism, privileging the will of the majority while neglecting minorities’ rights. The Hungarian government demonizes feminists, the human rights sector, and progressive political actors, who are pictured as villains who go against the Hungarian interests. Also, very controversial is the deep disrespect Orbán shows towards women. He and his allies introduced in the country a gender ideology that strongly opposes gender as a social construct, the emancipation of sexual minorities, and the provision of reproductive rights, including the freedom of abortion. These ideas come true by replacing human rights organizations with pro-government NGOs that support the political agenda. As an example, to enforce this ideology Orbán manipulates NGO’s funds: significant state funding is not a thing in the country and the new NGOs are predominantly religious and anti-modernist. Another example is the 2011 abortion campaign which created a big scandal. Hungary managed to trick the EU with a false project proposal in order to get communitarian funds, and then the money was used to implement a cruel anti-abortion campaign that strongly went against EU’s values.
Orbán follows the idea of Familialism, a kind of biopolitics that views the traditional family as the foundation of the nation and subjugates individual reproductive and self-determination rights to the normative demand of the reproduction of the nation. Familialist policies have been accompanied by the discourse on ‘gender ideology’ which presented various gender equality and women’s rights issues as a ‘deadly threat’ responsible for the moral and biological decay of a state. The Hungarian Constitution, called the Fundamental Law, declares that Hungary ‘shall protect the institution of marriage as the union of a man and a woman’ because the family is ‘the basis of the nation’s survival’. Accordingly, heteronormative families are at the center of all policies at the expense of individual rights. Right-wing politicians describe women primarily as mothers, not as citizens whose equal rights need to be assured.
In line with this vision, Hungary refused to ratify the Istanbul Convention (The Council of Europe Convention on preventing and combating violence against women and domestic violence): the government believes the Convention is problematic because of how gender has been defined in its text. The decision not to ratify the Convention came in a rather symbolic momen: during the 2020 pandemic, several countries across Europe have reported a significant rise in domestic violence incidents, with women being the most frequent victims of partner abuse. However, this did not affect Orbán’s positions. Hungary signed the Convention in 2014, but never ratified the instrument. Refusing to ratify the Istanbul Convention is one among many of Hungary’s drawbacks in the field of human rights. Since it came into power in 2010, the Fidesz party has changed the national Constitution to limit marriage to the union between a man and a woman and implementing on the 31st March 2020 the Omnibus Bill, putting an end to the legal recognition of trans and gender diverse people in the country, as Orbán and his political allies seeks to define gender as the ‘biological sex based on primary sex characteristics and chromosomes’.
Freedom of expression and its limitations
In addition to gender-based discriminations, freedom of expression in Hungary is affected by government’s threats to academic freedom. Orbán’s centralization of power limits academic institutions’ freedom and independence. These are considered as enemies of the government’s illiberal ideology. The government accuses universities and research institutes of supporting the liberal agenda and spreading its values. In so doing, Orbán tries to control them and makes sure that their resources are limited. Furthermore, the government also accuses universities to waste money on ‘useless’ studies such as gender studies that are now banned in both public and private universities. All this because in 2013 Orbán and his party adopted drastic changes to the Constitution without consulting the other political forces and ignoring warnings from European partners. These changes destroyed the rule of law, introducing the lawfulness of limitations on freedom of expression and by tearing apart the separation between the powers and the checks and balances systems: the Constitutional Court’s authority was emptied. Because of the reform, the Court can now only examine changes to the Constitution from a formal point of view, not touching the contents.
On top of that, freedom of press has been more than silenced by the Hungarian government. Media freedom and pluralism are just a far memory and nowadays most of the media is owned by the government. Fidesz party finances 80% of the political and public affairs news channels. The country now has only one independent political newspaper, the Nepszava. Moreover, in July 2020, Index, one of the most important news’ websites, has been closed. Index history ended when its editor-in-chief, Szabolcs Dull, was fired for having revealed political interferences from the government. Index’s editor did not want to accept the political blackmail and was therefore forced to quit his job.
The same treatment is intended for independent radio stations and TV stations: the government limited the access of some channels in certain areas of the country. As a result, people living outside major urban centers can only rely on official sources.
Many journalists left or were forced to leave their job while being described as ‘non-Hungarians’ or ‘Hungary-haters’ by the government. To close the cycle, here gender is an issue too: female journalists are belittled for their gender even more than for their job, compared to male journalist who are belittled anyway.
Covid-19 and human rights
Lastly, focusing on the Covid-19 health crisis, Orbán’s actions led to further human rights violations. Indeed, he started a process of presidentialisation, namely the progressive increase of powers of the executives and their leaders. On March 11th, 2020, the government ordered a state of emergency and on the 30th of the same month the Hungarian parliament passed a bill, called Coronavirus Protection Act, giving Orbán special powers to deal with the coronavirus pandemic.
The international criticism around the bill was intense for many different reasons. First, the measures seemed to violate the Hungarian constitution. Measures taken in such exceptional circumstances must comply with both national constitutions and international standards and respect the very essence of democratic principles. An indefinite and uncontrolled state of emergency cannot guarantee that the basic principles of democracy will be observed and one cannot know if the emergency measures restricting fundamental human rights are strictly proportionate to the threat which they are supposed to counter.
In addition, the bill introduced up to five years of jail for people who spread ‘fake news’ about the virus or measures against it, raising anxieties about freedom of expression in Hungary. The Council of Europe warned that democratic debate in national parliaments, in the media and the internet, as well as access to official information and documents are essential elements of any free and democratic order and of particular importance in crisis situations to maintain trust and confidence within society. Democracy, rule of law and human rights always need to be respected.
Moreover, the emergency measures entitle Orbán to the legislative power, allowing him to create and amend laws with no limitations. This strongly break the UN Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights and the principle of the rule of law which provide that no one should be above the law. Such measures should instead be proportionate, related to the ongoing health crisis, limited in time and subjected to regular scrutiny.
To sum up, the parliament was deprived of its legislative authority and elections were no more allowed during the state of emergency. Respect for freedom and democratic values were affected so much that Orbán was accused of using his citizens’ pain for his own gain.
Prime Minister Orbán promised at the beginning of this crisis that these extraordinary powers would stay in force only as long as it will be necessary to protect the population and slow the spread of the coronavirus. Once the threat subsided, they would be given back. However, a blanket authorization of unconstrained executive powers presents serious risks to the rule of law and constitutional government, especially during a raging epidemic. However, it is hard to imagine a measure that presents a more serious threat to constitutional democracy than the recent Hungarian enabling bill. In introducing such measures, Orbán has become the first EU leader to exploit the pandemic for his own political ends, using the circumstances to further centralize the power in his hands.
In conclusion, in Orbán’s political regime, human rights are despised. Women are in danger because they are underestimated and considered as tools intended for the satisfaction of reproductive needs. Minorities are despised and neglected. Moreover, freedom of expression, from that transmitted by the media to that taught in the academic environment, has less and less space due to the precarious condition of democracy in Hungary. Finally, the health crisis born at the beginning of 2020, despite all the suffering it has caused, has been exploited by Orbán for its selfish interests. The situation is worrisome, and the European Union really needs to move towards a solution.