An incoming democratic government will repeal all measures Hungarian Prime Minister Viktor Orban has taken to perpetuate his grip on power, Peter Marki-Zay, the opposition’s joint candidate for premier, told a web debate held by the CEU Democracy Institute on February 2.

Despite the fact that repeal of the laws requires a two-thirds majority in Parliament – something the united opposition is very unlikely to have – a new democratic government will simply declare invalid any laws designed to give Fidesz a monopoly, and ratify the moves by holding a referendum afterwards to approve a new constitution, Marki-Zay told the debate on “The Future of Rule of Law Constitutionalism in Hungary”.

“If we can’t find a legal way of restoring democracy there won’t be a rule of law in Hungary even after the elections,” Marki-Zay said. “We will cancel [the] stipulations that are [there] to give Fidesz the ultimate power even if they lose the election.”

Hungary’s opposition faces an uphill battle at April’s general election to defeat the Hungarian strongman, who has built up a system over the past 12 years that gives him a massive advantage. As well as electoral rules that favour Fidesz, the party uses state funds to spread its message and controls virtually all the country’s major media. This has already helped Orban to regain the lead over the united opposition in opinion polls.

But even if the opposition does win the election, it will be unable to dismantle Orban’s regime or push through its reform programme because Fidesz has used its two-thirds majority to entrench its people in long-term positions in often new key institutions that require a two-thirds majority to be removed.

The media council, for example, has turned a blind eye to Orban’s virtual monopoly of print media and radio and TV broadcasting. Four out of its five members are Fidesz loyalists and its chief was pushed to stand down last month so a new incumbent could be appointed with a nine-year term.

Other key positions occupied by long-serving and entrenched Fidesz placemen include the president, the judges of the constitutional court, the chief prosecutor, the head of the state accounting office, the president of the National Judicial Office, and members of the budgetary council.

These Fidesz loyalists will be able not only to obstruct any new democratic government, but they could help engineer its collapse and quickly bring Orban back to power. For example, a vote of the budgetary council against a new government’s budget can precipitate an early election.

“Will Fidesz still rule the country or will the new government make significant changes?” Marki-Zay asked rhetorically. “Fidesz will still rule this country and in a very short period of time Fidesz can come back,” he warned.

But if the opposition tries to remove these placemen or abolish the institutions they run without a two-thirds majority, the moves could be referred to the constitutional court, which is also full of Fidesz loyalists with long terms, and it will likely rule them unconstitutional.

Moreover, the European Commission is likely to be loath to accept any unconstitutional moves, because this could make it look hypocritical as it tries to force governments such as Orban’s Hungary and Jaroslaw Kaczynski’s Poland to abide by the rule of law.

Milan Simecka, the Slovak vice-president of the European Parliament, told the web debate that “this debate is immensely consequential for everyone and not just for Hungary. This election will reverberate throughout the region and especially in my country.”

He said the EU was beginning to take a more “contextualised view of these things”, recognising that Fidesz’s laws should be seen as an issue of authoritarianism and not just as a strict rule of law issue.

Nevertheless, he warned that “caution is warranted” and that the EU would likely be still fairly legally strict on rule of law issues.

“The steps any future government will take will be used in a propaganda war all across Europe,” Simecka said. “The conclusion [if it took unconstitutional steps] would be there is no rule of law standard, it’s all malleable.”

The question of how to deal with Fidesz’s new constitution and other laws that require a two-thirds majority is also controversial within the opposition, with Budapest Mayor Gergely Karácsony – the early frontrunner in the opposition primary to be the prime ministerial candidate – arguing that it must strictly respect the rule of law.

However, Marki-Zay said it was Orban’s measures to perpetuate his control of the state that were illegal, unconstitutional and against the rule of law and they must be repealed, regardless of whether this was allowed under the system he had built.  

He said in a normal country a constitutional court would have overruled the laws Orban passed to establish his monopoly on power, but Orban had limited its powers, filled it with loyalists and it was no longer doing its job.

“We don’t even need a two-thirds majority to declare current constitutional laws invalid,” he argued. “We are just doing the constitutional court’s job.”

As part of this drive, he said the opposition was working on a new simple constitution – which he said would focus on checks and balances – though progress had so far been slower than he had hoped. This would be put to a referendum, which if passed, would remove all these Fidesz laws. “In this new constitution we can already solve most of these issues,” he said.

Another “interesting proposal”, he said, would be to elect a Constitutional Convention, as Chile had done to rewrite the constitution imposed by its former dictator Augustus Pinochet.

Academics on the panel argued Fidesz should not be able to hypocritically use the rule of law it had debased to defend its continued dominance of Hungary. 

“The rigid legal-based concept of the rule of law does not apply,” said Andras Sajo, Professor of Legal Studies at CEU, which Orban forced to move to Vienna. “The rule of law here was used to destroy the rule of law, to create opportunities to abuse it. If you continue to apply the traditional standards you do not do a service to the rule of law.”

Kim Scheppele, Professor of Sociology and International Affairs at Princeton, concurred. “Fidesz has consistently put itself above the law by changing the law whenever it wants,” she said. “[It has used] the law as a weapon against its enemies and to achieve its own purposes.”

Scheppele argued that an incoming government should use the treaties Hungary has signed with the EU and the Council of Europe to override Fidesz’s legislation, as those treaties have precedence over domestic law.

“This is a legal avenue for getting out of the legal box,” she said. “[It] does not ignore the rule of law but brings about a rule of law that everyone can live with.”

Scheppele argued that a new government could even override Fidesz’s laws without going through the lengthy procedure of appealing to the European Court of Justice (CJEU) or the European Court of Human Rights (ECHR), because it could claim that the laws conflicted with Hungary’s treaty commitments.

A new government could also use the CJEU and ECHR judgements against Poland's top courts to argue that that the Hungarian Constitutional Court was also not a court in law, and it could create a parallel court to take over its functions. “If you lean on European law you can get round some of the problems in Hungarian law,” she said.