Der Untergang / Real existing Orbánism

The constitutional court refused to do Orbán’s dirty work and announce the supremacy of national law – unlike their Polish counterparts

Political insubordinance has been unheard of before 2020, when Orbán’s system cracked.

The Hungarian constitutional court has been occupied by the regime and stuffed with loyalists since 2013 when Orbán achieved a majority in the court. By 2016 there wasn’t single judge that was not an Orbánist. These judges are not rebels – they don’t even mind authoritarianism and the absence of checks on executive power. At any rate, they can only slavishly apply whatever Orbán wrote for them in his very own basic law (that replaced the constitution when Orbán came back to power in 2010). They were even made to forget any legal precedent the court might have had. It would constitute am unwritten constitution based on the ideas of constitutionalism – and that would be contrary to Orbán’s intentions. So this was not the place where anyone expected political resistance – and a ruling that Orbán doesn’t like is such a thing these days.

Orbán’s legal pitbull and Brussels henchwoman, Justice Minister Varga, submitted a case to the constitutional court, effectively asking to declare that the Orbán-government is a higher power in issues of immigration than the European law. The case was regarding the deportation of immigrants and that the government refused to accept the ECJ’s ruling that they can’t just deport someone without access to asylum procedure first. This would not be the first case the government simply ignores ECJ’s ruling, so the only reason Varga might have put this case in front of the court was to have them declare – Poland-style – the supremacy of Orbán over the EU Hungarian law over EU law.

The court refused to declare that and refrained from taking sides. They only allowed that in cases when European rules are non-existent, national law can be applied – but didn’t say if this was such a case.

For an outsider it is significant because the Polish courts have just done the opposite – triggering an EU-wide legal crisis. But for a local it is interesting for an entirely different reason. It appears to be an act of political insubordination – and in the 11th year of Orbán’s rule it is unheard of.

Two things can be behind it:

  1. If those judges resist now, it is not because they are courageous or against authoritarianism – it is because they are cowards and preparing for a life after Orbán.
  2. Or they have been tasked to give Orbán a way out of his legal standoff with the EU by giving him an excuse to step down and save face. But that appears to be the less likely scenario for now.

As of political consequences at home – there will be none. The minister has already announced that the court said she is right – even though they didn’t. They might as well let it rest – but there can be a decree to the opposite effect (they enjoy decreeing reality these days) or they can just rewrite the constitution that national law is now above EU law. That costs nothing. For Orbán, that is.

But the fact remains that there are more and more loyalists who are taking a (tiny little) stand and preparing for a life after Orbán – seeing as Orbán himself is preparing for a life after government. Or at least to make the country bankrupt and ungovernable for his successors.

Is Orbán preparing to lose in 2022?

3 thoughts on “The constitutional court refused to do Orbán’s dirty work and announce the supremacy of national law – unlike their Polish counterparts

  1. Am aware of Orban government having quitey ignored/ dragged feet on implementation of ECtHR (Strasbourg) rulings but not ECJ (Luxembourg) ones becuase that would monumentally strengthen the EU rule of law case against it. Are you mixing up responses to the decisions of the two courts?

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