Legal defense in a deteriorating rule of law

Today constitutional democracy is shrinking in Hungary. Rule of law institutions, which normally should protect the rights of the individual against the state are less and less able to fulfill this objective. Using its two-third majority in Parliament, the government has dismantled, weakened or conquered these institutions to protect its power instead of the rights of the citizens.

HCLU cannot give up on its goals to preserve individual rights, despite the shrinking democracy, against illegal interference in private affairs which can also occur in a well-functioning democracy. To this end we need to use the means provided by law even in a badly functioning democracy. Such means include the judiciary for example. It is also evident that when the system of checks and balances weakens and the rule of law guarantees are destroyed, the task of legal defense is also more difficult because the situation requires a new approach to relationships with institutions. In a well functioning democracy an illegitimate action by the government is an exception or borderline act, but in a badly functioning democracy illegitimacy might well be institutionalized.
Boycotting institutions
Institutional illegitimate functioning creates the possibility for legal defenders to boycott the institutions which are not in line with the principles of a legitimate state. The fear from illegitimate institutions is justified by a dedication to democracy, a reason similar to the one used to justify civil disobedience. Adherence to the basic principles of the democratic stats justifies civil disobedience which is not true for other violations of the law. The state’s primary responsibility is to respect and protect individual rights where the citizen cannot find herself breaking the principles of democracy in order to adhere to the law. To guarantee this right a constitutional democracy must be recognized while the civil disobedient rightly aspires to the freedom that a constitutional democracy should normally guarantee. To listen to one’s conscience and choose disobedience is to act according to the principles of democracy which also legitimize actions by the state.
The position of an organization that serves to defend the rule of law has a task beyond the nature of its work. The institutions and the various legal remedies provided by them assume that the state operates rationally meaning that the state takes the institutions, their procedures and decisions seriously (for example; the institutions carry out the decisions by the administrative courts). However, one of the surest signs of a deteriorating rule of law is that the exercise of power is irrational if not autocratic. The state is then able to ignore its institutions. If a civil rights organization does not pay attention to this development, then it essentially gives legitimacy to the state which left the path of the rule of law. Therefore, civil rights organizations have to recognize, as part of their conviction of the shrinking of the rule of law and their fight against this shrinking, that there is need to boycott the institutions not operating according to the rule of law as a way to demonstrate the deficiencies of the system.
Testing the constitutional functioning
The question is which institutions deserve respect and can be seen to protect individual rights. A deteriorating democracy means that some institutions are no longer functioning constitutionally while others are still working within the framework of the rule of law. To answer the question we need to examine the obvious and the not-so-obvious cases. Obvious examples allow us to indentify the criteria that need to be taken into account when we review the functioning of an institution (in some cases, the review of other criteria could also be relevant). Considering these criteria will helps up in defining the relationship to institutions whose functioning is less clear.  The Hungarian media authority and the data protection agency provide the most obvious cases.
1. Formal framework of institutions – First we have to consider the formal rules of the structure and operation of the institutions and how these rules were created. The cardinal law on media regulation was adopted without regard to the principles of parliamentarism (the law was submitted by members of Parliament) and democracy (the adoption of the law ignored criticism of the opposition). The law provided unprecedented powers for oversight of public and private media outlets enabling the direct control over public media and indirect control over private media outlets through extremely high fines and public procurement processes. Hence, the powers of the media authority guarantee the enactment of the government’s will. The restructuring of the institutional framework for data protection also happened in a shameful manner: the former ombudsman for data protection was removed from his office before his mandate ended while a new, much less independent authority was tasked with data protection and guaranteeing freedom of information. 
2. Actual operation – In theory, the government could argue that the institutions function within the framework of the rule of law and, therefore, there is reason to worry. This is not the case with either the media authority or the data protection authority. The cases of Klubradio demonstrate this point where the authority ignored the decisions by the judiciary. The decision by the data protection authority repeatedly favored the government. The personal of the two agencies cannot diminish the abuse of power when they were put in place without consent of the opposition and remain loyal not to the law but to the government. 
Evaluation of these criteria clearly supports our conviction that these institutions were created by the government to protect its interest against the citizens. Hence, the protection of rights cannot rely on these institutions as we are convinced that HCLU cannot call upon on these institutions to defend the rights of the citizen.
The relationship with the ombudsman for fundamental rights is not that complicated. The basic rules require the ombudsman to protect the rule of law, so there is no reason the question this mandate. The current ombudsman has undoubtedly lived up to this mandate, having been active in protecting rights, but his appointment began before this government came to power and his mandate ends this coming fall. Considering the past practice of this government when it comes to appointments, it is easy to imagine that future ombudsman will be less active and will have a negative record by this time next year.
The most difficult case concerns that Constitutional Court and the judiciary which are the most important institutions for protecting rights. The formal rules of the constitutional court cannot be seen illegitimate despite significant changes to its jurisdiction and less meaningful changes to its structure.   The primary problem with the court comes from the changing of the judges. The new appointments reflected the government’s policy preferences and the operation of the Court corresponds less and less to the criteria of right protection. Soon, the Court may no longer be able to fulfill its primary goals and there won’t be a reason to turn to it.
Seemingly, the ordinary courts are facing similar issues, especially the Curia, where under political pressure, courts will more and more become an arm of government power and less able to protect rights. However, the courts are nationwide, separate bodies with an extensive personal and are, therefore, more resistant to political pressure. Changes in personal have a more profound effect on the Constitutional Court despite similar efforts to influence the outcome of decisions by the judiciary. For this reason, the courts can still be considered a “clear” case and today it is still worth relying on the judiciary for enforcing rights protection.  This is that despite the fact that courts cannot always be convinced that their primary purpose is to protect individual rights. We can be hopeful that the judiciary is based on argumentation and as Kis Janos pointed out “we need to carry on with efforts for a dialogue until the judiciary starts to account for its decision.”
Lastly, we should take note of international bodies, like EU institutions and the human right courts, charged with right protection. These institutions should be used as much as possible to protect domestic rights. The less domestic institutions are able to carry on with their tasks the more one needs to rely on international bodies. The European Union’s mechanisms for protecting rights are still in its infancy (the recently adopted Tavares report merely initiates the creation of an effective mechanisms) and while the European Court of Human Rights have been more effective, its importance has been limited to individual cases. 
In conclusion; as more and more institutions are turning from protecting the rights of citizens into “fig leafs” of the rule of law, civil rights organizations have to decide between the various institutions in order to effectively defend individual rights. 
Szabolcs Hegyi
Program director, Political Rights

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