I. Are There Such Things as “Illiberal or Nonliberal Constitutionalism”?

In a speech delivered on July 26, 2014, before an ethnic Hungarian audience in the neighboring Romania, Prime Minister Viktor Orbán proclaimed his intention to turn Hungary into a state that “will undertake the odium of expressing that in character it is not of liberal nature.” Citing as models he added:

We have abandoned liberal methods and principles of organizing society, as well as the liberal way to look at the world . . . Today, the stars of international analyses are Singapore, China, India, Turkey, Russia . . . and if we think back on what we did in the last four years, and what we are going to do in the following four years, then it really can be interpreted from this angle. We are . . . parting ways with Western European dogmas, making ourselves independent from them . . . If we look at civil organizations in Hungary, . . . we have to deal with paid political activists here . . . [T]hey would like to exercise influence . . . on Hungarian public life. It is vital, therefore, that if we would like to reorganize our nation state instead of it being a liberal state, that we should make it clear, that these are not civilians . . . opposing us, but political activists attempting to promote foreign interests . . . This is about the ongoing reorganization of the Hungarian state. Contrary to the liberal state organization logic of the past twenty years, this is a state organization originating in national interests.

Four years later at the same venue Orbán again expressed his support for illiberal democracy, adding that he considers Christian democracy as illiberal as well:

There is an alternative to liberal democracy: it is called Christian democracy… Let us confidently declare that Christian democracy is not liberal. Liberal democracy is liberal, while Christian democracy is, by definition, not liberal: it is, if you like, illiberal.

In June 2019, after Fidesz was suspended from the center-right party family, epp (European People’s Party) has set up a special committee to examine the Fidesz party’s adherence to democratic standards. One of the questions the members of the committee, former Austrian Chancellor Wolfgang Schüssel, former European Council President Herman Van Rompuy and former European Parliament President Hans-Gert Pöttering addressed to Viktor Orbán has been: “Please explain what you mean by the expression ‘illiberal state’?” Here is the Fidesz chairman and Hungarian Prime Minister’s response:

We are Christian democrats and we are differing nowadays at least in three aspects from the liberals: The first one is the conviction that family is fundamental, and family is based on one man and one woman. We believe that this needs to be protected, which the liberals deny. Secondly, while the cultural life of every country is diverse, a Leitculture, a cultural tradition is present everywhere. In Hungary this is Christian culture. We respect other cultures, but our own has a prominent role for us, and it is our responsibility to preserve it. Liberals refuse this concept. The third aspect is that liberal democrats are everywhere pro-immigration while we are against immigration. So whether one admits it or not: Christian democrats are illiberals by definition.

In a conversation with the French philosopher Bernard-Henry Lévy, Orbán identified liberalism with totalitarianism, and illiberalism with true democracy:

Liberalism gave rise to political correctness—that is, to a form of totalitarianism, which is the opposite of democracy. That’s why I believe that illiberalism restores true freedom, true democracy.

In July 2019 in the yearly Băile Tușnad/Tusnádfürdő Free University Orbán admitted that “illiberalism” carries a negative connotation, and therefore he changed the terminology calling illiberalism “Christian liberty,” which according to him is “a genuine model of a theory of state, a unique Christian democratic state.” He made it clear however that “Christian liberty does not mean individual liberty, because individual freedoms can never encroach on the interests of the community. There is indeed a majority that must be respected, that is the foundation of democracy.”

In a speech, delivered in mid-September 2019 at the 12th congress of the Association of Christian Intelligentsia he said that “Christian liberty” is superior to the individual liberty—defined by John Stuart Mill in his On Liberty—, which can only be infringed upon if the exercise of one’s liberty harms others. Christian liberty, by contrast, holds that we ought to treat others as we want to be treated. “The teachings of ‘Christian liberty’—he added—maintain that the world is divided into nations.” As opposed to liberal liberty, which is based on individual accomplishments, the followers of “Christian liberty” acknowledge only those accomplishments that also serve the common good. While liberals are convinced that liberal democracies will eventually join together to form a world government à la Immanuel Kant in the name of liberal internationalism, Christian liberty by contrast considers “nations to be as free and sovereign as individuals are, and therefore they cannot be forced under the laws of global governance.”

In the system “Christian liberty” Hungary has a special place:

We shouldn’t be afraid to declare that Hungary is a city built on a hill, which, as is well known, cannot be hidden. Let’s embrace this mission, let’s create for ourselves and show to the world what a true, deep, and superior life can be built on the ideal of Christian liberty. Perhaps this lifeline will be the one toward which the confused, lost, and misguided Europe will stretch its hand. Perhaps they will also see the beauty of man’s work serving his own good, the good of his country, and the glory of God.

Another new element of the speech that Orbán puts “Christian liberty” at the center of the “Christian democratic state,” “a new and authentic model of state and political theory,” which has been reached in the last thirty years by two big steps. The first has been the liberal democratic transition in 1989, while the second, more important one is the national or Christian regime change in 2010.

Regarding the new constitutional order, introduced by the 2011 Fundamental Law of Hungary, Orbán admitted that his party did not aim to produce a liberal constitution. He said:

In Europe the trend is for every constitution to be liberal, this is not one. Liberal constitutions are based on the freedom of the individual and subdue welfare and the interest of the community to this goal. When we created the constitution, we posed questions to the people. The first question was the following: what would you like; should the constitution regulate the rights of the individual and create other rules in accordance with this principle or should it create a balance between the rights and duties of the individual. According to my recollection more than 80% of the people responded by saying that they wanted to live in a world, where freedom existed, but where welfare and the interest of the community could not be neglected and that these need to be balanced in the constitution. I received an order and mandate for this. For this reason the Hungarian constitution is a constitution of balance, and not a side-leaning constitution, which is the fashion in Europe, as there are plenty of problems there.

Orbán’s rejection of liberal constitutionalism entails his attitude towards its two main components, human rights and separation of power. He made clear his stance on issues of human in a speech at the Hungarian Diaspora Council in December 2, 2015:

There is a political discourse that treats the world on the basis of the philosophy of human rights, and we are obliged to account for anything and everything within the framework of this kind of thinking. And whoever steps outside of this canon commits treason against the wonderful values of the world. This era is coming to an end… We are in the endgame of the period that is based on the export of democracy and human rights.

In his speech at the congress of Fidesz on December 13, 2015 he labels human rights as a secondary value:

Today, Europe’s mainstream and its key people pursue superficial and secondary values such as human rights, progress, openness, new family types, and tolerance. These are nice and cute things, but in reality, they are secondary, because they are derivative values.

According to him, the “primary values” that are missing in Europe today are “Christianity, common sense, military virtues, and national pride.” Orbán also consequently refuses the separation of powers, checks and balances as concepts alien to his illiberal constitutional system:

Checks and balances is a U.S. invention that for some reason of intellectual mediocrity Europe decided to adopt and use in European politics.

The ideological foundation of Orbán’s illiberalism can be found in the works of his two court ideologues, the sociologist and former liberal mp, Gyula Tellér and András Lánczi, a political scientist. It is easy to prove that Orbán in his 2014 speech on “illiberal democracy”recited a study of Tellér published earlier on that year, what Orbán assigned as compulsory reading for all his ministers. Tellér claims that the “system of regime-change” has failed because the liberal constitution did not commit the government to protect national interests, therefore the new “national system” has to strengthen national sovereignty, and with it the freedom of degree of government activity. This, Tellér argues is necessary against the moral command of the liberal rule of law regime, according to which “everything is allowed, what does not harm others’ liberty”.

Lánczi’s antiliberal concept can be found in his book Political Realism and Wisdom, which was published in English in 2015, as well as in an article published in 2018, after Fidesz’ third consequitive electoral victory. Lánczi’s critique is an outright rejection of liberalism as a utopian ideology, which is—similar to Communism—incompatible with democracy.

Similarly to Orbán, the that time Polish Prime Minister Beata Szydło (with Kaczyński, ruling from behind the scenes as he holds no official post), have described the actions of the PiS government dismantling the independence of the Constitutional Tribunal and the ordinary courts as a blitz to install an illiberal state. In mid-September 2016 at a conference in the Polish town of Krynica, Orbán and Kaczyński proclaimed a “cultural counter-revolution” aimed at turning the European Union into an illiberal project. A week later at the Bratislava eu summit, the prime ministers of the Visegrád 4 countries demanded a structural change of the eu in favour of the nation states. Witold Waszczykowski, Poland’s minister of foreign affairs expressing his own and his governing PiS party’s antiliberalism went as far as to mock liberalism as “a world made up of cyclists and vegetarians, who only use renewable energy and fight all form of religion.”

Ryszard Legutko, the main ideologue of PiS, similarly to his Hungarian counterpart, Lánczi, also likens liberal democracy with Communism both being fuelled by the ideas of modernazation and progress. Both Lánczi and Legutko assert together with other antiliberals with one voice that liberalism and Communism, or for that matter its ideology, Marxism are secretly allied and share a common ancestry that they are two offshoots of an Enlightenment tradition. This critique of liberalism goes back to Carl Schmitt.

This critical stance of the new illiberals towards liberal constitutionalism is also related to a Schmittian understanding of the constitution, and to Carl Schmitt’s critique of liberal constitutionalism and its conception of the rule of law. As is well-known, the constitution in Schmitt’s view is an expression of “the substantial homogeneity of the identity and the will of the people,” and guarantee of the state’s existence, and ultimately any constitutional arrangement is grounded in, or originates from, an arbitrary act of political power. In other words, in Schmitt’s view the basis of the constitution is “a political decision concerning the type and form of its own being,” made by the people as a “political unity,” based on their own free will. This political will “remains alongside and above the constitution.” Schmitt also portrays the people as an existential reality as opposed to the mere liberal representation of voters in parliament, holding therefore that Mussolini was a genuine incarnation of democracy. Schmitt goes so far as to claim the incompatibility of liberalism and democracy, and argues that plebiscitary democracy based on the homogeneity of the nation is the only true form of democracy.

As Mattias Kumm argues, Carl Schmitt’s interpretation of democracy, inspired by Rousseau, and used by authoritarian populist nationalists, like Viktor Orbán as “illiberal democracy,” becomes an anti-constitutional topos. Consequently, I equate constitutionalism with liberal democratic constitutionalism. This does not mean, however, that constitutions cannot be illiberal or authoritarian. Therefore, it is legitimate to talk about constitutions in authoritarian regimes, as Tom Ginsburg and Alberto Simpler do in their book, but I do not agree with the use of the term “authoritarian constitutionalism” or “constitutional authoritarianism”. Besides the constitutions in the Communist countries, both current theocratic and communitarian constitutions are considered as illiberal. Theocratic constitutions, in contrast to modern constitutionalism, reject secular authority. In communitarian constitutions, like the ones in South Korea, Singapore and Taiwan, the well-being of the nation, the community and society receive utilitarian priority rather than the individual freedom, which is the principle of liberalism. But in these illiberal polities, there is no constitutionalism, their constitutions—using Pablo Castillo-Ortiz’s term—are “de-normativised.” In other words, in my view “illiberal constitutionalism” is an oxymoron.

Besides illiberal constitutionalism there are also attempts to legitimate “nonliberal constitutionalism” as a subtype of constitutionalism. Graham Walker uses the term for constitutionalist structures, “wherever people value some aspects of communal identity more than autonomy of individual choice.” Walker’s main example for the nonliberal, rather local than universal values, is granting group right to native peoples and the distinct society of Québec, but he also mentions the state of Israel, which fails its noncitizen residents in many regrettable ways, as well as the tribal life of the native American nations in the us. The common characteristic of all these approaches is “to indict the notion of individual autonomy rights as a form of naïve and homogenizing universalism, and to unmask the ethnic and moral ‘neutrality’ of the liberal state as a covert form of coercion.” Walker builds up his concept using Charles Howard McIlwain’s understanding of constitutionalism in his 1940 book. According to McIlwain the limitation of government by law isn’t necessarily liberal, because the rights of individuals are not centralized, and there is no need for a public authority to be a neutral arbiter among competing value systems. Among the more contemporary thinkers, Walker relies on Stanley Fish’s skepticism about individual rights of all kind. In his notorious articles from 1987 and 1992 respectively, Fish argues that because liberalism conceives its rational principles precisely as supranational and nonpartisan, “one can only conclude, and conclude nonparadoxically, that liberalism doesn’t exist.” According to Walker, nonliberal constitutiuonalism historically was anticipated in some features of Republican Rome or of medieval Europe, or in the millet system of the Ottoman Empire, while in more recent history in Canada before the 1982 Charter of Rights and Freedoms. He also consideres the evolving multiculturalist/tolerationist American university campus practices as an embryonic version of nonliberal constitutionalism, and “politically correct” thinkers who promote such policies as hostile to the notion of “individual rights.”

The problem with Walker’s concept is that he conflates constitutionalism with constitution. While the latter indeed predates the enlightenment, the former, together with liberalism, does not. The “constitution” as the configuration of public order defined by Aristotle or Cicero did not require the notion of individual rights, while modern constitutionalism does. For instance Montesquieu in The Spirit of Laws argues that the constitutional system based on the separation of power is necessary for securing political liberty and preventing the emergence of “tyrannical laws” and “execution of laws in a tyrannical manner.” This means that “fettered power”, which, according to Walker is the essence of constitutionalism, presupposes guaranteed individual rights. The same applies to definitions of constitutionalism, emphasizing “limited government”. For instance Giovanni Sartori defines constitutionalism as “a fundamental law, or a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure ‘limited government’”. Also, András Sajó and Renáta Uitz describe constitutionalism as a liberal political philosophy that is concerned with limiting government. But the main aim of limiting government is to guarantee individual rights. In other words, modern constitutionalism is by definition liberal. Not only the anti- or illiberal version, but also the nonliberal one is oxymoronic.

II. Attempts to Legitimize “Illiberal Constitutionalism”

A. Majoritarian (Westminster) System

Proponents of Fidesz’ illiberal constitution, as Béla Pokol, professor of law and member of the packed Hungarian Constitutional Court argues that the post-2012 constitutional system envisages the Westminster type of Parliamentary system, in which the “winner takes all,” and where principle of the unity of power prevails. But the Hungarian, or for that matter the Polish constitutional system, cannot be considered as a monistic democracy, which just gives priority to democratic decision-making over fundamental rights. Actually, the new Hungarian constitution and the Polish constitutional practice do not comply with any models of government, which are based on the concept of separation of powers. The more traditional models of government forms are based on the relationship between the legislative and the executive. For instance, Arendt Lijphart differentiates between majoritarian (Westminster) and consensual models of democracy, the prototype of the first being the British, while of the second refers to continental European parliamentary, as well as the us presidential system. Giovanni Sartori speaks about presidentialism and semi-presidentialism, as well as about two forms of parliamentarism, namely the premiership system in the uk, or Kanzlerdemokratie in Germany, and the assembly government model in Italy. Bruce Ackerman uses, besides the Westminster and the us separation of powers systems, the constrained parliamentarism model as a new form of separation of powers, which has emerged against the export of the American system in favor of the model of Germany, Italy, Japan, India, Canada, South Africa, and other nations, where both popular referendums and constitutional courts constrain the power of the parliament.

Hungary and Poland, from 1990 until 2010, and 2015 respectively, belonged to the consensual and constrained parliamentary systems, close to the German Kanzlerdemokratie, in Poland with a more substantive role for the President of the Republic. But in Hungary, the 2011 Fundamental Law abolished almost all possibility of institutional consensus and constraints of the governmental power. In Poland, despite the fact that the governmental majority isn’t able to change the Constitution, due to the legislative efforts of the PiS government, the 1997 Constitution has become a sham document. In both countries, the system has moved towards an absolute parliamentary sovereignty model without the cultural constrains of the Westminster form of government. Not to mention the fact that in the last decades, the traditional British model of constitutionalism has also been changed drastically with the introduction of a bill of rights by left-of-centre governments—and opposed by right-of-centre opposition parties—in Canada (1982), New Zealand (1990), the United Kingdom (1998), the Australian Capital Territory (2004) and the State of Victoria (2006). Contrary to the traditional Commonwealth model of constitutionalism, in the new Commonwealth model the codified bills of rights became limits on the legislation, but the final word remained in the hands of the politically accountable branch of government. In this respect, this new Commonwealth model is different from the judicial supremacy approach of the us separation of powers model, as well from the European constrained parliamentary model. The biggest change occurred in the uk, and some even talk about the “demise of the Westminster model.” The greatest deviation from the system of unlimited parliamentary sovereignty was the introduction of judicial review. In just over two decades, the number of applications for judicial review nearly quadrupled to over 3,400 in 2000, when the Human Rights Act 1998 came into effect in England and Wales. The Human Rights Act has a general requirement that all legislation should be compatible with the European Convention of Human Rights. This does not allow uk courts to strike down, or “disapply”, legislation, or to make new law. Instead, where legislation is deemed to be incompatible with Convention rights, superior courts may make a declaration of incompatibility under Section 4.2. Then, the government and Parliament decide how to proceed. In this sense, the legislative sovereignty of the uk Parliament is preserved. Some academics argue that, although as a matter of constitutional legality Parliament may well be sovereign, as a matter of constitutional practice it has transferred significant power to the judiciary.

Others go even further and argue that, although the Human Rights Act 1998 is purported to reconcile the protection of human rights with the sovereignty of Parliament, it represents an unprecedented transfer of political power from the executive and legislature to the judiciary.

Besides the mentioned Commonwealth countries, a similarly new model has emerged in Israel, where the Basic Law on occupation, re-enacted in 1994, contains a “notwithstanding” provision, similar to the Canadian one. The new model of Commonwealth constitutionalism is based on a dialogue between the judiciary and the parliament. In contrast to these new trends, in the Hungarian and Polish constitutional system the parliamentary majority not only decides every single issue without any dialogue, but practically there is no partner for such a dialogue, due to the fact that the independence of both the ordinary judiciary and the constitutional courts have been eliminated.

B. Political Constitutionalism

It is striking, and of significance, how the illiberal authoritarians in Central and Eastern Europe attempt to legitimize their actions by referring to political constitutionalism as their approach to constitutional change. The main argument of Central and Eastern European illiberals to defend their constitutional projects is grounded in a claim to political constitutionalism, which favors parliamentary rule and weak judicial review. To be clear, despite some academics’ efforts to use the concept of political constitutionalism in defense of illiberalism, I do not consider political constitutionalism, based on republican philosophy, or all of the concepts rejecting strong judicial review, or judicial review altogether, as populist. Some scholars and constitutional court justices both in Hungary and Poland have attempted to interpret the new constitutional system as a change from legal to political constitutionalism. In my view, these interpretations are simply efforts to legitimize the silencing of judicial review.

One of the “fake judges” of the Polish Constitutional Tribunal, the late Lech Morawski, emphasized the republican traditions, present both in Hungary and Poland, mentioning the names of Michael Sandel, Philip Pettit, and Quentin Skinner. Also, constitutional law professor Adam Czarnota explained the necessity of the changes, with the argument that “legal constitutionalism alienated the constitution from citizens… The place of excluded citizens was taken by lawyers.” He proudly acknowledges that the governing party, PiS has appointed judges that represent its worldview, which according to Czarnota is based “on the principle of supremacy of the Parliament in relation to constitutional review and acceptance of a role of the judicial restraint not judicial activism which was earlier the norm.” Czarnota interprets the present constitutional crisis in Poland and in some other countries in Central-Eastern Europe as “an attempt to take the constitution seriously and return it to the citizens,” what he considers to be the fulfillment of political constitutionalism.

In Hungary, István Stumpf, constitutional judge, nominated without any consultation with opposition parties by Fidesz right after the new government took over in 2010, and elected exclusively with the votes of the governing parties’, in his book argued for a strong state and claimed the expansion of political constitutionalism regarding the changes. It is remarkable that two other members of the current packed Constitutional Court also argue against legal constitutionalism, blaming it as “judicial dictatorship” or “juristocractic.” In the scholarly literature, Attila Vincze argued that the decision of the Constitutional Court accepting the Fourth Amendment to the Fundamental Law—which among other things also invalidated the entire case-law of the Court prior to the new constitution—was a sign of political constitutionalism prevailing over the legal one. Even those, like Kálmán Pócza, Gábor Dobos and Attila Gyulai who acknowledge that the Court hasn’t been confrontational towards the current legislature and the government characterize this behavior as a special approach within the system of separation of powers, best described as a partnership in a constitutional dialogue.

Political constitutionalists, like Richard Bellamy, Jeremy Waldron, Akhil Amar, Sandy Levinson, and Mark Tushnet, who themselves differ from one another significantly, emphasize the role of elected bodies instead of courts in implementing and protecting the constitution, but none of them reject the main principles of constitutional democracy, as “illiberal” populist constitutionalists do. Even Richard D. Parker, who announced a “constitutional populist manifesto” wanted only to challenge the basic idea, central to constitutional law, “that constitutional constraints on public power in a democracy are meant to contain or tame the exertion of popular political energy rather than to nurture, galvanize, and release it.” Similarly, those who describe a new model of constitutionalism, based on deliberation between courts and the legislator, with the latter retaining the final word, have nothing to do with illiberal constitutionalism. Those scholars realize that parliamentary sovereignty tends to be increasingly restrained, either legally or politically, and that the last decades have witnessed less and less scope for the exercise of traditional pouvoir constituant, conceived as the unrestrained “will of the people,” even in cases of regime change or the establishment of substantially and formally new constitutional arrangements. The remainders of both Hungarian and Polish constitutional review have nothing to do with any types of political constitutionalism or a weak judicial review approach, which all represent a different model of separation of powers. In the authoritarian Hungarian and in the Polish sham system of constitutionalism, there is no place for any kind of separation of powers.

Following Tamás Györfi’s theory, there are three different forms of weak judicial review: each of them is lacking one of the defining features of strong constitutional review, but all of them want to strike a balance between democracy and the protection of human rights that differs from the balance struck by the ‘new constitutionalism’ of strong judicial review. First, judicial review is limited if the constitution lacks a bill of rights, as is the case in Australia. Second, judicial review is deferential if courts usually defer to the views of the elected branches, as in the Scandinavian constitutional systems, or are even constitutionally obliged to do so, as in Sweden and Finland. Finally, and probably most importantly, there is the Commonwealth model of judicial review, where courts are authorized to review legislation, but the legislature has the possibility to override or disregard judicial decisions.

In my view, neither the Polish nor the Hungarian model fits any of these approaches to weak judicial review, as their aim is neither to balance democracy nor the protection of fundamental rights. The weakening of the power of constitutional courts has started in Hungary right after the landslide victory of the center-right Fidesz party in the 2010 parliamentary elections. What happened in Hungary resonated with some less successful, similar attempts to weaken constitutional review in other East-Central European countries that took place roughly around the same time. In the Summer of 2012, there was a constitutional crisis also in Romania, where the ruling socialists tried to dismantle both the constitutional court and the president, but the eu was able to exert a stronger influence over events there. From 2014, there has also been a constitutional crisis in progress in Slovakia, where the Constitutional Court has also worked with two—and from February 2016 three—judges short, because the President of the Republic refused to fill the vacancies. But the most successful follower of the Hungarian playbook on how to dismantle constitutional review has been Jaroslaw Kaczynski’s governing party (PiS) and its government in Poland. After the 2015 parliamentary election in Poland, the Law and Justice Party (PiS) also followed the playbook of Viktor Orbán, and started by first capturing the Constitutional Tribunal. But these efforts have nothing to do with political constitutionalism, partly because they do not question the capacity of constitutional courts to invalidate legislation passed by parliaments, partly because they are not based on the mechanism of political accountability and checks on power. Also, political constitutionalism emphasizes the importance of legislatures over courts, and not the direct role of citizens, as Czarnota argues. This dismantlement of constitutional review cannot be considered as a par excellence majoritarian project either.

C. Constitutional Identity

From the very beginning, the government of Viktor Orbán has justified non-compliance with the principles of liberal democratic constitutionalism enshrined also in Article 2 of the Treaty of the European Union (teu) by referring to national sovereignty. Lately, as an immediate reaction to the eu’s efforts to solve the refugee crisis, the government has advanced the argument that the country’s constitutional identity is guaranteed in Article 4 (2) teu.

After some draconian legislative measures were adopted, the government started a campaign against the eu’s plan to relocate refugees. The first step was a referendum initiated by the government. On 2 October 2016, Hungarian voters went to the polls to answer one referendum question: “Do you want to allow the European Union to mandate the relocation of non-Hungarian citizens to Hungary without the approval of the National Assembly?” Although 92 % of those who casted votes and 98 % of all the valid votes agreed with the government, answering “no” (6 % were spoiled ballots), the referendum was invalid because the turnout was only around 40 %, instead of the required 50 %.

As a next attempt, Prime Minister Orbán introduced the Seventh Amendment, which would have made it “the responsibility of every state institution to defend Hungary’s constitutional identity”. The most important provision of the draft amendment reads: “No foreign population can settle in Hungary”. Since the governing coalition lost its two-thirds majority, even though all of its mps voted in favour of the proposed amendment, it fell two votes short of the required majority. After this second failure, the Constitutional Court, loyal to the government, came to the rescue of Orbán’s constitutional identity defense of its policies on migration. The Court revived a petition of the also loyal Commissioner for Fundamental Rights, filed a year earlier, before the referendum was initiated. In his motion, the Commissioner asked the Court to deliver an abstract interpretation of the Fundamental Law in connection with the Council Decision 2015/1601 of 22 September 2015.

The Constitutional Court in its decision held that “the constitutional self-identity of Hungary is a fundamental value not created by the Fundamental Law—it is merely acknowledged by the Fundamental Law, consequently constitutional identity cannot be waived by way of an international treaty.” Therefore, the Court argued, “the protection of the constitutional identity shall remain the duty of the Constitutional Court as long as Hungary is a sovereign State.” This abuse of constitutional identity aimed at not taking part in the joint European solution to the refugee crisis is an exercise of national constitutional parochialism, which attempts to abandon the common European liberal democratic constitutional whole.

The Constitutional Court in its decision 3/2019. (III. 7.) AB also decided about the constitutionality of certain elements of of the “Stop Soros” legislative package, and ruled that the criminalization of “facilitating illegal immigration” does not violate the Fundamental Law. The Court again referred to the constitutional requirement to protect Hungary’s sovereignty and constitutional identity to justify this clear violation of freedom of association, freedom of expression hiding behind the alleged obligation to protect Schengen borders against “masses entering uncontrollably and illegitimately” the eu. Besides infringing the rights of the ngos, the decision deprives all asylum seekers of the protection of all fundamental rights by stating that

the fundamental rights protection . . . clearly does not cover the persons arrived in the territory of Hungary through any country where he or she had not been persecuted or directly threatened with persecution. Therefore, the requirements set forth by Article I Paragraph (3) of the Fundamental Law regarding the restriction of fundamental rights shall not be applied to the regulation of the above listed cases.

With this, the Court denies the core of human dignity: the right to have rights.

Conclusion

In this paper, I tried answer the question, whether there is a genuine constitutional theory of “illiberal constitutionalism”? I argued that the constitutional concept, which rejects liberalism as a constitutive precondition of democracy, cannot be in compliance with the traditional idea of liberal democratic constitutionalism. This concept has nothing to do with any majoritarian constitutional model based on the separation of power, or with political constitutionalism, or any kind of weak judicial review, and it misuses the concept of constitutional identity.

Gábor Halmai

Professor and Chair of Comparative Constitutional Law, European University Institute, Florence, Italy – gabor.halmai@eui.eu.