Restoring the Rule of Law in Hungary. An Overview of the Possible Scenarios

di Viktor Zoltán Kazai

SOMMARIO: 1. Introduction. – 2. The necessity of a change of regime in 2022. – 2.1. Constraints imposed by Fidesz on the new governing majority. – 2.2. The significance of a symbolic rupture with the Orbán regime. – 3. The non-applicability of the procedural rules in force – 3.1. Legal basis: theoretical arguments. – 3.1.1. Invalidity of the Fundamental Law on procedural grounds. – 3.1.2. The ius resistendi argument. – 3.1.3. Institutionalized authoritarianism as an exemption from the adherence to formal rules. – 3.1.4. Regime-changing constitution-making. – 3.1.5. Popular authorization through elections. – 3.2. Fear from chaos and instability: practical considerations. – 4. Specific scenarios. – 4.1. The invalidation of the Fundamental Law. – 4.2. Progressive or two-step constitution-making process. – 4.3. Enactment of a new constitution. – 5. Conclusion.

It seems to be a reasonable assumption that the systemic violation of the rule of law in Hungary that has been strongly criticized by the European Union can only be remedied by a new ruling majority after the (potential) fall of the Orbán government. However, the question is whether the new governing coalition formed by the current opposition parties can put in place any significant changes in case it does not have a constitutional majority in the National Assembly. This article aims to summarize the most pertinent views voiced by Hungarian lawyers on this topic by focusing on the following three issues: (i) the desirability or the necessity of a potential change of regime after the 2022 elections, (ii) the possible legal bases of deviating from the written rules on the constitution amending and constitution-making process and finally, (iii) the specific scenarios of implementing constitutional changes.