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NUMERO 19 - 16/10/2019

 Parliament and Parliamentarism in the Hungarian Constitutional Retrogression

For decades, starting from the Second World War, but especially after the progressive waves of democratization that took place in many regions all around the world after the end of the colonial and socialist regimes, scholars have noticed a constant increase, in every part of the world, of democracy against autocracy. The constitutional democracy has spread to different parts of the world as a form of State characterized not only, as the electoral democracy, by the presence of free and competitive elections, but also by further elements such as the presence of a rigid constitution approved through a democratic procedure, the constitutional guarantee of rights and freedoms and of the separation of powers, the openness towards international law and the recognition of local autonomy. However, at the end of the last century, some analyses began to emphasize another trend, contrary to the previous one, which was progressively affecting a growing number of States in different parts of the world: this trend consists in the diffusion of the illiberal democracy and in the simultaneous questioning of constitutional democracy as a model of reference. Currently, the trend seems to be confirmed and enriched with new elements that require a careful and complex analysis of the issue, especially for the European scholars: on the one hand, we are witnessing a circulation of the illiberal democracy model in the European continent, as shown by the threats recently posed to the constitutionalism in EU countries such as Hungary and Poland; on the other hand, even though the phenomena are strictly connected, there is an increasingly marked tendency to adopt the model of the illiberal democracy in systems previously characterized by a stable and effective presence of the constitutional democracy. As a consequence of this evolution, several studies have been conducted in order to define the elements and processes characterizing the diffusion of illiberal democracy. As for the content, some scholars observe that the phenomenon is giving life to a new form of State, which cannot be well framed neither in the framework of the democratic form of State nor in the autocratic one. The expressions illiberal democracy, hybrid regime, competitive authoritarianism, have been used to describe this new form of State. As for the procedure, several studies point out that the dissemination of such regimes takes place gradually, incrementally, as the result of a series of changes that appear to be of limited scope if they are taken into account separately, but that cause a general decline of the democratic State if considered as a whole. Also in this case, different definitions have been proposed to describe the complexity of the phenomenon: constitutional retrogression, constitutional rot, democratic decay, democratic recession, democratic disconnect, democratic backsliding. The majority of these studies show the transformations that involve some systems on the side of the constitutional guarantees or counter-majoritarian powers. In particular, especially in the European context, the focus is on the challenges posed to the rule of law principle, also because of the involvement of the European Union in some national issues considered to be so serious to justify the activation of the art. 7 TEU clause concerning the violation of the fundamental principles of the European Union. Other studies are dedicated to the independence and functioning of the constitutional courts and to the interference in the composition and functions of these bodies. At the same time, other counter-majoritarian institutions, such as the judiciary and the independent authorities, and, in a wider sense, also the press and the media in general, have been analysed. The purpose of this paper is to focus on the other side of the coin, the one related to the representative institutions, and in particular to the parliamentary assemblies, in order to analyse if, and eventually how, the spread of the illiberal democracy model, which has already compromised the guarantees typical of the constitutional form of State, can also affect the structures and functions of the representative institutions. Specifically, the Hungarian case will serve as paradigmatic case to achieve our goal. By analysing the evolution of the role of the Parliament in the country, which starting from 2019 has been classified as “partly free” by Freedom House, the purpose is to understand if it is possible to draw some general conclusions on the relation between legislative power and illiberal democracy… (continues)

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