Many a politician, who started life as dissident in the opposition, championing the human and fundamental rights of the downtrodden and oppressed, has in time, evolved into a popular democratic leader and in short order, transformed into an autocratic tyrant, suppressing the basic rights of the people and consolidating the dictatorial rights of himself, his family, his political allies and those other sycophants who crowd around his throne singing a chorus of hosannas of praise.
In the end, when all democratic and civilised methods of retirement or removal of the ruling clique from power have been blocked, by their own actions or omissions, the inevitable exit is made, either feet first in a box or wrapped up in a shroud like Gadaffi of Libya and others or exile in a friendly country, like Ben Ali of Tunisia and Idi Amin of Uganda and others.
A third humiliating consequence like that faced by Mubarak of Egypt, being wheeled into a court house on a stretcher for public display and humiliation periodically, is also an option.
Throughout the history of the world, this sad story has played itself out with depressing regularity. Leaders of nations, knowing, very well, the consequences faced by their predecessors, who dreamt of the myth of eternal unchanging power, have ended up in the dustbin of history, humiliated, spat upon and condemned.
Researchers and biographers have written weighty tomes analysing the virtually seamless transition from dissident fighting for the fundamental rights of the oppressed, to charismatic leader of a political movement which overcomes the established power and transforms to a populist democratic leader, in a few years, in turn, transforms into a autocratic corrupt dictatorship with family dynastic ambitions and then over thrown by popular revulsion either through a democratic process if the space for that option remains, or through a violent revolution. It happens over and over again, with depressing regularity.
The latest example is Hungary. The transition of Hungary’s present Prime Minister Victor Orban from a firebrand anti communist dissident to populist dictatorial xenophobe is a reminder of other nation’s journeys from economic chaos to political authoritarianism.
Orban has recently introduced a new constitution for Hungary combined with a barrage of other new legislation, which is suffused with ethnic nationalism and reeks of one party rule. The new constitution promises repression of personal freedoms within Hungary and by extending citizenship to minorities of ethnic Hungarian origin in other countries, threatens instability in ethnically diverse neighbouring countries, for the purpose of promoting populist xenophobia within Hungary.
Hitherto independent outfits like Hungary’s media regulator, the judiciary, the central bank and the budget and audit watch dogs have all had their independence compromised. A new law requires judges to retire at age 65 instead of 70 as at present. The current Central Bank chief has clashed with Orban on policy and many of the judges affected by the early retirement law are those appointed by previous governments.
Orban is also using the two-thirds majority he has in parliament to entrench undemocratic amendments to the constitution, which he knows that cannot be undone in the future, as obtaining a two-thirds will be difficult in the Hungarian system of parliamentary elections in the future.
The authority of the courts has been limited and the judges subjected to closer political supervision. The new constitution asserts state control over matters of personal conscience and the number of recognised religions is limited. The rule of law is subordinated to one party rule.
Orban’s supporters argue that, despite all this, Hungarians can still vote, citizens can still freely protest and private media can still criticise the Prime Minister. But, say oppositionists, this is a false democracy, all state institutions, the courts, the national broadcaster, etc. are firmly in the hands of Prime Minister Orban’s Fidesz party.
A political commentator in Sofia Ivan Krastev, Chairman of the Centre for Liberal Strategies, describes Orban as a radical opportunist who has tapped into Hungarian nationalism at a moment of national crisis to serve his own ends. Krastev says Prime Minister Orban is a would be-autocrat who has harnessed the fears and prejudices of the majority of the Hungarian people for his political ends.
Hungary is central Europe’s biggest debtor; both the European Union (EU) and he IMF have pulled out of economic negotiations because they believe that Fidesz is undermining the independence of the Hungarian central bank and the national fiscal council.
This is not the first time Hungary has had to defend itself from criticism from its European neighbours. In 2011 it was forced to begin its six month presidency of the EU defending a media law that critics said was a threat to press freedom. Currently the EU has also taken on Hungary on the new law that opens the door to political control of the central bank of Hungary, which is forbidden in terms of EU treaties.
In January this year the European Union’s Executive Branch ruled that the three new laws violate EU treaties and began legal proceedings to overturn the measures The two are also at issue over a set of fiscal laws that legislate a flat personal income tax rate and puts limits on public debt, thus limiting the power of future governments to raise revenue.
The two-thirds majority in parliament which Orvan’s Fidesz party enjoys, gives it the power to enact such laws, future governing parties may not have such a majority to overrule the restrictive provisions.
Among the issues which are at stake are: the appointment of a third central bank governor, to be recommended by the prime minister, the expansion of the Monetary Council and a new law which allows the merger of the central bank with the state financial regulator and demotes the central bank governor.
Due to the two-thirds majority the Fidesz party has in parliament and the iron discipline Orban maintains over his members of parliament, parliament is in effect nothing more than a rubber stamp for Orban’s policies.
The Hungarian economy is in crisis, the currency, the forint, has slid to record lows, two leading rating agencies have downgraded Hungary’s public debt to junk status, and bond yields have topped 10%. The people are suffering, with unemployment hitting almost 10%. The labour force participation in Hungary is around the lowest in Europe.
Orban is trying to capture the state on behalf of his Fidesz party, and put Hungarians firmly under the domination of his political party. Hungarian democracy, if it still can be called that, lacks the essential checks and balances and limitations and controls on power which are fundamental for a democratic process to operate.
Fidesz has manipulated the electoral boundaries for parliamentary seats in its own favour. Subservient allies of the party have been appointed to almost every independent institution, including the presidency, the State Prosecutors Office, the State Audit Office and the Media Authority.
Orban’s Government has limited the jurisdiction of the Hungarian constitutional court and sacked scores of judges. The Government claims that even the new appointees to the judiciary will exercise their mandates independently, but when questioned, cannot explain why only individuals openly accepted as friends of Fidesz can safely be entrusted with such responsibilities! The Fidesz party has senior more enlightened members, who have either been co-opted or coerced into remaining silent.
What we are watching live, in real time happening, in Hungary, has been repeated over and over again in recent world history.
Purpose of a constitution
A constitution of a country has to grant a certain amount of power to certain designated persons to carry on the affairs of state efficiently, there have to be checks and balances to limit the power and authority of each branch of government, there must be the assurance provided by the provisions of that constitution or at least a by a law having the same amount of sanctity, that the persons carrying out the affairs of state can be controlled or removed, should they attempt to encroach further than is absolutely necessary upon the liberty of the individual, in administering the state.
The constitution lays down the political institutions that will be allowed to exist, the functions of those different institutions, and the distribution of powers among them. The limits of power of each and every institution set up by the constitution should be clearly demarcated.
A constitution to work satisfactorily should be sufficiently flexible to allow for changing economic and social circumstances. The constitution should attract leaders of wisdom and experience to take part in government. All these leaders must be willing to work according to the spirit of the constitution.
The constitution should so satisfy the needs of the citizens as to enlist their loyalty. The constitution should give protection to minorities, the poor and the marginalised, all of whom should have their say in determining their future. The success of a constitution often rests on how far it can reconcile opposing interests.
For a constitution to work effectively, ideally the constitutional document should be the supreme document. The highest judiciary in the land should be empowered to interpret the rules of the constitution and whether any constitutional provisions or the rights of the citizens are being infringed in any circumstance. This necessarily entails that the judiciary should be independent of the other branches of government.
The executive arm of the government should administer the country in terms of laws enacted by the legislature. The policy on any given matter will be reflected in the law on the subject together with the purposes for which funds are voted by the legislature for the implementation of that policy.
The funds so voted must be managed and accounted for by an independent public service which is free from political control and acts according to law. These accounts must be audited by an independent auditor and the report made available to the public.
Disputes which arise in the management of the administration, disputes between the state and the citizens as well as disputes among citizens should be adjudicated upon by the judiciary according to law. The law should rule, not any individual or other institution.
The law should ensure that there is media freedom, only subject only to a reasonable law of defamation to protect the citizen from abuse by the media. Civil society, professional organisations, chambers of commerce, non-governmental organisations must be provided the space by the constitution to express their views on matters good governance, the state of the economy and other matters of public interest and on policy and there should be participatory consultative mechanisms to determine national policy.
The constitution should ensure free and fair elections at fixed times administered by independent public officials. The obligations, rights and duties of the defence services and the police must be clearly spelt out by law and the limits to their powers clearly demarcated. The rights of all types of minorities should be protected by law.
It is preferable if the state is secular, if not the rights of other believers and the followers of other faiths should be protected. Fundamental human rights and freedoms must be protected according to internationally accepted norms.
In today’s globalised world economic freedoms are important as is the protection of property and intellectual rights and an effective legal regime to regulate trade and industry. The economic management of the nation must be governed by constitutional principles which are reasonable and provide for balanced sustainable development.
The constitution or some other law having equal sanctity should have strong anti corruption provisions, implemented by an independent and autonomous agency. Also conservation of the human environment must be legally provided for and natural resources protected for posterity.
Where legislation creates a regulatory role framework, for example to regulate land management, sports, fund management or whatever, it must provide for transparent, accountable, autonomous and efficient regulation.
Obligation of stakeholders
In broad terms a constitutional regime which ensures to a high degree the issues raised above, will ensure a level of sustainable prosperity for its people. But as Frenchman Joseph de Maistre, writing in 1811, said: “Every nation has the government it deserves”. Therein lies the crunch.
Unless the citizens see it in their own interest, as a national grouping, to fight for, preserve and protect, their rights and honour their obligations to the law and to one another, constitutions written on paper are worth little.
It has been said, a long time ago, by a member of the Irish Parliament John Philpot Curran that ‘Eternal vigilance is the price of liberty’. This quotation emphasises the obligation of all stakeholders to be vigilant, of their rights and obligations and the abuse and/or dishonouring of obligations.
Once a ruler or a ruling clique begins a step by step, incremental dismantling of the sacred principles on which good governance is grounded and a docile citizenry, a compliant media, a cowed down and conniving civil society, a politicised and compromised public service, a servile judiciary, does not assert itself and raise its voice in protest, de Maistre has been proved to be correct: they get a government their traitorous inaction and irresponsibility deserves.
The point was also well made by the late Justice Khanna of Supreme Court of India. He was the only dissenting Judge in the famous Habeas Corpus case, during the Emergency imposed by Prime Minister Indira Ghandi in India from 1971 to 1977.
Ghandi’s Government detained large numbers of people without trial under the repressive Maintenance of Internal Security Act but several High Courts had given relief to the detainees by accepting their right to Habeas Corpus under Article 21 of the Indian Constitution and thereby releasing them from custody.
The state appealed to Supreme Court. The matter came up for hearing before a bench consisting of the five senior most judges of the Indian Supreme Court. A majority of four judges held that the state was entitled to unrestricted powers of detention.
Justice Khanna dissented. He said: “The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive. What is at stake is the rule of law… detention without trial is an anathema to all those who love personal liberty.” Before delivering the judgement, Justice Khanna, wrote to his sister: “I have prepared my judgement, which is going to cost me the Chief Justice ship of India.”
On seniority Justice Khanna was next in line for the post. Predictably, when the vacancy occurred, a vindictive Indian Government appointed a Judge junior to Justice Khanna, who was a member of the majority in the Habeas Corpus case, as the Chief Justice and Justice Khanna resigned on the same day.
In a later book, ‘The Making of India’s Constitution,’ Justice Khanna wrote: “If the Indian Constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper; it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power.”
This is a sad fact. It is unfolding in Hungary before our eyes. It has happened in other environments repeatedly. The North Africans and the citizens of the Maghreb have tried to reassert their moral values on governance, but progress is slow and painstaking.
The road back to good governance and prosperity from a tyranny is long, arduous and requires many sacrifices. How much better would it be if challenges to democracy and good governance can be nipped in the bud by some timely responses by stakeholders like Justice Khanna?
Only those who have the courage of their convictions and commitment and a spirit of sacrifice to do so will truly get a government they deserve.
(The writer is a lawyer, who has over 30 years experience as a CEO in both government and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)