Network member Kim Lane Scheppele (Princeton) passed on the following post, which appeared originally on Hungarian Spectrum, and we are pleased to cross-post it here with permission.
* * *
Today Europe acted to hold the Hungarian government to the
constitutional values that it eagerly endorsed when it joined the European
Union nearly a decade ago.
The action came in the form of the Tavares
Report, which sailed through the European Parliament with many votes
to spare. The report provides a bill of particulars against the Fidesz
government and lays out a strong program to guide European Union institutions
in bringing Hungary back into the European fold. With the passage
of this report, Europe has finally said no to Prime Minister Viktor Orbán and
his constitutional revolution.
The Tavares Report is by far the strongest and most
consequential official condemnation of the Fidesz consolidation of power over
the last three years. And it creates a powerful set of tools for European
institutions to use in defending the long-term prospects for Hungarian
democracy.
The report passed with a surprisingly lopsided
vote: 370 in favor, 248 against and 82 abstentions. In a
Parliament split almost evenly between left and right, this tally gave the lie
to the Hungarian government’s claim that the report was merely a conspiracy of
the left. With about 50 of the 754 MEPs absent, the total number of yes
votes was still larger than the total number of MEPs of all of the left parties
combined. In short, even if all MEPs had been present, the left
alone still couldn’t account for all of those votes. And since the
82 abstentions had the effect of allowing the report to go forward, they should
be read as soft “yeses” rather than undecided or negative votes.
Most of the abstentions no doubt came from Fidesz’s own
party in the European Parliament, the European People’s Party (EPP). Many
EPP members signaled ahead of time that they could not back Orbán but also
would not vote overtly against the position of their party, which officially
supported him without whipping the votes. FIdesz had been
counting on party discipline to save it. But now it is clear that Fidesz
is terribly isolated within the EPP.
The tally on the final report was not a roll-call vote, so
we do not know for sure just who voted for it in the end. But the
roll-call votes on the proposed amendments to the bill (see pp. 106-119 of this
complicated
document) revealed that many members of the European People’s Party
(EPP) and the even-more-conservative group of European Conservatives and
Reformists (ERC) voted to keep the report from being diluted at crucial
junctures. Each attempt to weaken the report was rejected openly by
18-22 EPP votes and by 8-12 ERC votes. We can guess that the MEPs
who rejected the hostile changes must have voted in favor of the report in the
end, along with even more of their colleagues who could at that point vote
anonymously.
For a government that believes that majorities are everything
and supermajorities are divine, it must have been hard for Fidesz to
see only one-third of those in the European Parliament voting in its
defense, when conservatives occupy about half of the seats. Since
many of the votes in the Fidesz column were from cranky Euro-skeptics who
simply did not want the EU to gain more powers rather than from those who were
solidly backing the broader Fidesz view of the world, the defeat is even more
humiliating. Where was the United European Right when Orbán
needed them? Apparently not in his camp.
When he dramatically appeared in the European Parliament for
the debate yesterday, Orbán claimed that the report represented the persecution
of a well-meaning right-wing government by the unified and hostile European
left.
Today, with this extraordinary vote, we saw a coalition of
left and right MEPs standing up together for the values of Europe.
The Tavares report is named after Rui Tavares, the
Portuguese MEP who was the rapporteur on this patient and careful study of the
Hungarian constitutional revolution. He deserves much of the credit for
the factually impeccable report and as well as for skillfully guiding it
through a complicated and perilous process. Despite repeated
attempts to amend the report, gut its strong conclusions and weaken its
remedies by Fidesz MEPs and their allies, all efforts to change the report in
any substantial way failed at every stage.
With its acceptance today of the Tavares Report, the
European Parliament has created a new framework for enforcing the principles of
Article 2 of the Treaty of the European Union, which proclaims that the Union
is “founded on the values of respect for human dignity, freedom, democracy,
equality, the rule of law and respect for human rights, including the rights of
persons belonging to minorities.”
So what, concretely, does the report do? It puts a very clever system of
monitoring and assessment in place. While there are many
elements in the report, the most important four elements are these, identified
by paragraph number in the report as voted by the Parliament today:
1. An
“Article 2 Alarm Agenda” which requires the European Commission in all of its
dealings with Hungary to raise only Article 2 issues until such time as
Hungary comes into compliance with the report (para. 69). This Alarm
Agenda effectively blocks all other dealings between the Commission and Hungary
until Hungary addresses the issues raised in the report.
2. A “Trilogue” (a
three-way dialogue) in which the Commission, the European Council and the
European Parliament will each delegate members to a new committee that will
engage in a close review of all activities of the Hungarian government relevant
to the report (Para. 85). This committee is charged with assessing
the progress that Hungary is making in complying with the list of specific
objections that the report identifies. The Trilogue sets up a system of
intrusive monitoring, much more intrusive than the Excessive Deficit Procedure
(EDP) from which Hungary just escaped. Under the EDP, European
bodies only looked at the budget’s bottom line to determine whether Hungary’s
deficit was within acceptable bounds. Under the Trilogue, the committee
can examine anything that is on the long list of particulars that the report
identifies as within its scope.
3. A “Copenhagen
Commission” or high-level expert body through which a panel of distinguished
and independent experts will be assigned the power to review continued
compliance with the Copenhagen criteria used for admission to the EU on the
part of any member state (para. 78-80). The idea behind this body,
elaborated in a report
by my Princeton colleague Jan-Werner Müller, is that non-political
experts should be given the task of judging whether member states are still
acting on the values of Article 2. Since Orbán kept claiming double
standards and dirty politics all of the way through this process in the
European Parliament, a Copenhagen Commission consisting of impeccable experts
and modeled on the Council of Europe’s Commission for Democracy through Law
(the Venice Commission) would move the process of fact-finding and assessment
from political officials to non-partisan experts.
4. And in the
background, there is still Article 7 of the Treaty of the European Union.
Article 7, which identifies a procedure through which an EU member state can be
deprived of its vote in the European Council and therefore would lose
representation in the decision-making processes of the EU, is considered the
“nuclear option” – unusable because extreme. But the Tavares Report
holds out the possibility of invoking Article 7 if the Hungarian government
does not comply with the monitoring program and reform its ways (para.
86). Because the Tavares Report lays out detailed
expectations of the Hungarian government, the Parliament and the Council who
would have to vote on Article 7 in the end would have a strong factual record
to work with if they decided to go nuclear.
These are important tools in the toolkit that European
institutions can now use to ensure that a member state of the European Union maintains
its European constitutional commitments.
Yesterday at the plenary debate, both Commission President
José Manual Barroso and Commissioner for Justice, Fundamental Rights and
Citizenship Viviane Reding indicated their willingness to follow the Parliament’s
direction. We can therefore expect an eager uptake from the
Commission on the elements of the report that require the Commission’s active
participation.
But perhaps the most breathtaking part of the report is the
list of what these various monitoring bodies can examine.
Here it is worth quoting at length from the report itself, because the scope
and breadth of the complaints against the Hungarian government indicate that
these monitoring processes will be authorized to look at the most fundamental
elements of what it means to be a robust democracy committed to the rule of law
and the protection of human rights. Here is the list of items that the
Hungarian government must address, taken from para. 71 of the report, where the
Parliament . . .
Urges the Hungarian
authorities to implement as swiftly as possible all the measures the European
Commission as the guardian of the treaties deems necessary in order to fully
comply with EU law, fully comply with the decisions of the Hungarian Constitutional
Court and implement as swiftly as possible the following recommendations, in
line with the recommendations of the Venice Commission, the Council of Europe
and other international bodies for the protection of the rule of law and
fundamental rights, with a view to fully complying with the rule of law and its
key requirements on the constitutional setting, the system of checks and
balances and the independence of the judiciary, as well as on strong safeguards
for fundamental rights, including freedom of expression, the media and religion
or belief, protection of minorities, action to combat discrimination, and the
right to property:
On the Fundamental
Law:
–
to fully restore the supremacy of the Fundamental Law by removing from it those
provisions previously declared unconstitutional by the Constitutional Court;
–
to reduce the recurrent use of cardinal laws in order to leave policy areas
such as family, social, fiscal and budget matters to ordinary legislation and
majorities;
–
to implement the recommendations of the Venice Commission and, in particular,
to revise the list of policy areas requiring a qualified majority with a view
to ensuring meaningful future elections;
–
to secure a lively parliamentary system which also respects opposition forces
by allowing a reasonable time for a genuine debate between the majority and the
opposition and for participation by the wider public in the legislative
procedure;
–
to ensure the widest possible participation by all parliamentary parties in the
constitutional process, even though the relevant special majority is held by
the governing coalition alone;
On checks and
balances:
–
to fully restore the prerogatives of the Constitutional Court as the supreme
body of constitutional protection, and thus the primacy of the Fundamental Law,
by removing from its text the limitations on the Constitutional Court’s power
to review the constitutionality of any changes to the Fundamental Law, as well
as the abolition of two decades of constitutional case law; to restore the
right of the Constitutional Court to review all legislation without exception,
with a view to counterbalancing parliamentary and executive actions and
ensuring full judicial review; such a judicial and constitutional review may be
exerted in different ways in different Member States, depending on the
specificities of each national constitutional history, but once established, a
Constitutional Court – like the Hungarian one, which after the fall of the
communist regime has rapidly built a reputation among Supreme Courts in Europe
– should not be subject to measures aimed at reducing its competences and thus
undermining the rule of law;
–
to restore the possibility for the judicial system to refer to the case law
issued before the entry into force of the Fundamental Law, in particular in the
field of fundamental rights;
– to
strive for consensus when electing the members of the Constitutional Court,
with meaningful involvement of the opposition, and to ensure that the members
of the court are free from political influence;
–
to restore the prerogatives of the parliament in the budgetary field and thus
secure the full democratic legitimacy of budgetary decisions by removing the
restriction of parliamentary powers by the non‑parliamentary Budget Council;
–
to provide clarifications on how the Hungarian authorities intend to remedy the
premature termination of the term of office of senior officials with a view to
securing the institutional independence of the data protection authority;
On the independence of
the judiciary:
–
to fully guarantee the independence of the judiciary by ensuring that the
principles of irremovability and guaranteed term of office of judges, the rules
governing the structure and composition of the governing bodies of the
judiciary and the safeguards on the independence of the Constitutional Court
are enshrined in the Fundamental Law;
–
to promptly and correctly implement the abovementioned decisions of the Court
of Justice of the European Union of 6 November 2012 and of the Hungarian
Constitutional Court, by enabling the dismissed judges who so wish to be
reinstated in their previous positions, including those presiding judges whose
original executive posts are no longer vacant;
–
to establish objective selection criteria, or to mandate the National Judicial
Council to establish such criteria, with a view to ensuring that the rules on
the transfer of cases respect the right to a fair trial and the principle of a
lawful judge;
–
to implement the remaining recommendations laid down in the Venice Commission’s
Opinion No CDL-AD(2012)020 on the cardinal acts on the judiciary that were
amended following the adoption of Opinion
CDL-AD(2012)001; [NOTE: Venice Commission reports on Hungary
can be found here]
On the electoral
reform:
-
to invite the Venice Commission and the OSCE/ ODIHR to carry out a joint
analysis of the comprehensively changed legal and institutional framework of
the elections and to invite the ODIHR for a Needs Assessment Mission and a long
and short term election observation.
–
to ensure balanced representation within the National Election Committee;
On the media and
pluralism:
–
to fulfil the commitment to further discuss cooperation activities at expert
level on the more long‑term perspective of the freedom of the media, building
on the most important remaining recommendations of the 2012 legal expertise of
the Council of Europe;
–
to ensure timely and close involvement of all relevant stakeholders, including
media professionals, opposition parties and civil society, in any further
review of this legislation, which regulates such a fundamental aspect of the
functioning of a democratic society, and in the process of implementation;
–
to observe the positive obligation arising from European Court of Human Rights
jurisprudence under Article 10 ECHR to protect freedom of expression as one of
the preconditions for a functioning democracy;
–
to respect, guarantee, protect and promote the fundamental right to freedom of
expression and information, as well as media freedom and pluralism, and to
refrain from developing or supporting mechanisms that threaten media freedom
and journalistic and editorial independence;
–
to make sure that objective, legally binding procedures and mechanisms are in
place for the selection and appointment of heads of public media, management
boards, media councils and regulatory bodies, in line with the principles of
independence, integrity, experience and professionalism, representation of the
entire political and social spectrum, legal certainty and continuity;
–
to provide legal guarantees regarding full protection of the
confidentiality-of-sources principle and to strictly apply related European
Court of Human Rights case law;
–
to ensure that rules relating to political information throughout the audiovisual
media sector guarantee fair access to different political competitors, opinions
and viewpoints, in particular on the occasion of elections and referendums,
allowing citizens to form their own opinions without undue influence from one
dominant opinion‑forming power;
On respect for
fundamental rights, including the rights of persons belonging to minorities:
–
to take, and continue with, positive actions and effective measures to ensure
that the fundamental rights of all persons, including persons belonging to
minorities and homeless persons, are respected and to ensure their
implementation by all competent public authorities; when
reviewing the definition of 'family', to take into account the legislative
trend in Europe to broaden the scope of the definition of family and the
negative impact of a restricted definition of family on the fundamental rights
of those who will be excluded by the new and more restrictive definition;
–
to take a new approach, finally assuming its responsibilities towards homeless
– and therefore vulnerable – people, as set out in the international treaties
on human rights to which Hungary is a signatory, such as the European
Convention on Human Rights and the Charter of Fundamental Rights of the European
Union, and thus to promote fundamental rights rather than violating them by
including in its Fundamental Law provisions that criminalise homeless people;
–
calls on the Hungarian Government to do all in its power to strengthen the
mechanism for social dialogue and comprehensive consultation and to guarantee
the rights associated with this;
–
calls on the Hungarian Government to increase its efforts to integrate the Roma
and to lay down targeted measures to ensure their protection. Racist threats
directed at the Roma must be unequivocally and resolutely repelled;
On freedom of religion
or belief and recognition of churches:
–
to establish clear, neutral and impartial requirements and institutional
procedures for the recognition of religious organisations as churches, which
respect the duty of the State to remain neutral and impartial in its relations
with the various religions and beliefs and to provide effective means of
redress in cases of non‑recognition or lack of a decision, in line with the
constitutional requirements set out in the abovementioned Decision 6/2013 of
the Constitutional Court;
One more item was added to this list by amendment from Rui
Tavares in the Parliament this morning:
– to cooperate with
the European institutions in order to ensure that the provisions of the new
National Security Law comply with the fundamental principles of the separation
of powers, the independence of the judiciary, respect for private and family
life and the right to an effective remedy.
In short, this is a huge list of items, which together
constitute the core of the Fidesz power grab. This section of the report
identifies the list of things that the Hungarian government must now change,
and the mechanisms I identified above are the key ones through which compliance
will be monitored and assessed.
It is hard to imagine a more sweeping indictment of the
Fidesz constitutional revolution in Hungary over these last three
years.
But back to where we started: with today’s vote in the
European Parliament. This long list of offending actions of the
Hungarian government was agreed to by left and right in the European
Parliament, by a large majority and with serious tools to ensure that the
Hungarian government changes its ways and returns to the path of democracy,
rule of law and respect for human rights.
The European Parliament is the most diverse and democratic
institution in Europe. One day when the history of the European
constitution is written, the Tavares Report and its enthusiastic acceptance in
the European Parliament will stand for Europe at its best.
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