The Article discusses the democratic backsliding after 2010 in Hungary, and how it affected the state of human rights in the country, a Member State of the European Union. The main argument of the Article is that paradoxically the non-legitimate 1989 constitution provided full-fledged protection of fundamental rights, while the procedurally legitimate 2011 constitution-making resulted in curtailment of rights and their constitutional guarantees. The Article first describes the democratic transition that occurred in 1989–1990 as a rights revolution and the results (...) of the 2011 “illiberal” constitution, called Fundamental Law, as counter-revolution. The second part of the Article illustrates the constitutional and statutory regulation of human rights protection after this “rule of law revolution,” and the activist jurisprudence of the first Constitutional Court using the concept of an “invisible constitution” to protect human rights. The third part discusses the rights provisions of the new Fundamental Law and several statutes dismantling the guarantees of human rights, with special attention to the decreased possibilities of state institutions, such as the Constitutional Court, the ordinary judiciary and ombudsmen, as well as civil society organizations to effectively protect fundamental rights. The fourth part assesses the efforts of European institutions to force the Hungarian government to comply with the human rights standards laid down in the European Convention of Human Rights and in the Treaty of the European Union. The Article concludes that neither internal nor external challenges could prevent the development of a new authoritarian regime with no guaranteed human rights. (shrink)

The paper discusses the reactions of different political and constitutional systems reactions to the pandemic and also the impact of COVID to populism, constitutionalism, and autocracy. Beyond the choice between economic and health considerations also applied in liberal democratic countries, which have lead either to “under-” or “overreaction” to the pandemic, certain illiberal regimes used the crisis situation as a pretext to strengthen the autocratic character of their systems. In some cases, this needed an “underreach,” like in Poland to insist (...) on the presidential election, which has been important to entrench the power of the governing party’s incumbent, elsewhere “overreach,” like in Hungary, where an unlimited emergency power of government has been introduced after the very first cases of contagion. These autocratic “overreactions” have breached the formerly used authoritarian legalistic approaches by openly violating their own illiberal constitutions. New “conservative” theories on “common good constitutionalism” emerged to legitimize the necessity of authoritative rule by the executive power. The paper concludes that one possibility to overcome authoritarian populism and restore constitutionalism in crisis situation such as the COVID-19 pandemic would be to rely on the involvement of the well informed public, one that is capable to understand and assess the advice of the meritocratic elite. This kind of participation would also help build up a constitutional culture necessary to preserve the values of constitutionalism. (shrink)