The concept of ‘sovereignty’ played a vital role in the UK’s campaign to vote to leave the European Union (EU). It was used to persuade people that being a member of the EU restricted the country’s sovereignty. The day the UK left the EU was boldly hailed by some media as ‘Independence Day’.
What is ‘sovereignty’?
UK in a Changing Europe defines sovereignty as the authority of a state to govern itself and determine its own laws. In the UK, there is the idea of parliamentary sovereignty, which means that the UK Parliament is the highest source of authority to make laws without restriction. However, in many countries parliaments are constrained by written constitutions and a constitutional court. These courts can review and annul laws that conflict with the country’s constitution. The UK does not have a written constitution to constrain Parliament.
We did not lose sovereignty
Owing to the primacy of EU law, UK Parliamentary sovereignty was said to be complicated by EU membership, as it constrained some decisions made by Parliament. However, as I described in my article on scrutiny, which was one of my jobs at the then Foreign and Commonwealth Office, the UK Parliament had an input into EU decisions. We scrutinised proposals, suggested amendments and freely entered into them. Just the fact that the UK was able to leave the EU because of several Acts of Parliament shows that our sovereignty remained.
Even after Brexit, the UK is still constrained by its international agreements, such as membership of the World Trade Organisation (WTO) and the United Nations. In a democratic society, nobody can be independent of some constraints. In fact, no society could work if all members set their own rules.
Populism misrepresents sovereignty
The call for sovereignty and freedom seems to be used frequently as a rallying call by populist leaders to incite people to resist constraints imposed by laws, treaties and conventions. Hungary’s so-called illiberal democracy is such a case. Orbán is at war with EU values and regulations. The latest infringement is a new law called ‘protection of sovereignty’.
According to Miklós Ligeti, the legal director of Transparency International Hungary, although the Hungarian government tried to prove that the draft law does not endanger the media, this is indeed the case.
Anna Donáth, an MEP representing the Hungarian opposition party Momentum, turned to the European Commission to request that they initiate an investigation. As the law has been adopted, she asks for an infringement procedure due to its conflict with EU law. Máté Kocsis, faction leader of the ruling party Fidesz-KDNP said a few weeks ago that the aim of the new law was to crush the ‘left-wing’ media.
Transparency International Hungary
The organisation lists twelve criticisms of the newly passed bill. Fidesz wants to create a new authority that is absolutely unnecessary but will cost taxpayers a lot of money. This new authority will be able to act against anyone whose aim is by a wide definition to influence some public authority decision. In the name of acting for Hungarian sovereignty, they can investigate companies, churches, parties, civil organisations, and even private individuals if they get on the radar of the new office. For example, even if a citizen or a local NGO wants to prevent a local battery farm from being built, that could already be considered ‘influencing the decision of the public authorities’.
All the new office has to do in order to start an investigation is to point out that such an NGO is either serving foreign interests or may violate Hungary’s sovereignty. Since the planned law does not set any definitions or limits, the office can accuse anyone and anything of violating or endangering national sovereignty for foreign interests. In other words, the office can initiate an investigation against anyone at any time.
At first glance, of course, since the new authority cannot impose fines or arrest anyone, its procedure does not seem so threatening. However, the office has access to all data and information during its investigation. In practice, this means that neither a private person, nor a company, nor a political party, nor a church, nor an NGO can withhold data from it.
No legal recourse
Of course, the police, the tax authorities, and the prosecutor’s office have similar powers to the new authority. However, these bodies act within the framework regulated by law, and their decisions can be appealed through the courts. In addition, not even investigators and prosecutors have access to all data, for example, they cannot seize data that constitutes a lawyer’s secrets or incriminate the relatives of a person subject to a procedure. And there are cases where they can only act with prior judicial permission. This is not the case with the new authority, since the procedure is not covered by any legal guarantee: it can act against anyone as it pleases and no complaints can be lodged against its actions or decisions. They will not only prepare an annual report on Hungary’s sovereignty, but they can also examine individual cases and report on them to the public.
If the authority makes explicitly disparaging or false statements, it is not possible to file a complaint or a legal procedure. The authority can summon the heads of concerned organisations by the National Security Committee of Parliament. There is no legal remedy when church leaders, mayors, representatives of civil organisations or executives of private companies are forced to submit to a national security hearing.
Secret service tools
The new authority also has access to classified data encrypted by any other body and can use the National Information Centre. In other words, the new office can count on secret service methods and tools if it wants to find out something.
The broad concepts in the draft law and the extremely broad authorisation given to the office, which lacks any kind of legal guarantee, do not even meet the requirements of Basic Law, which was already amended by the current government. If Hungary still had a real constitutional court, everyone could rest assured that this law would fail.
Impact on elections
At the same time, Fidesz also wants to ban associations from financing election campaigns with money from abroad. This would be fine in principle since campaign spending should be put in order. Since 1989, the law has prohibited parties from financing their election campaigns with funds from abroad. Fidesz would now extend this ban to nominating organisations operating as associations. The new rules make it impossible for Fidesz’s opposition challengers to operate while leaving its own campaign corruptly paid from public funds that have driven Fidesz to the top, untouched.
Impact on the media
In an English-language statement, the International Press Institute (IPI) indicated that today it will join the partners of the Media Freedom Rapid Response (MFRR) consortium to draw the attention of the EU authorities to the dangers of the sovereignty protection bill. The Bill has total power over the country’s remaining independent press.
Although the newly adopted law, does not mention the press and its possible financing through foreign tenders, the Hungarian government gave several signs of what it is really about: Viktor Orbán explained in his radio interview on Friday morning that with the help of the law, not only will funds not be able to come to the opposition, which is only referred to as the left, but also to the ‘media of the left’.
Telex reports on the Prime Minister’s interview:
“The Sovereignty Protection Act makes it clear that we are closing these loopholes, dollars cannot roll into the coffers of the left and the media of the left. It is not fair that they want to influence people’s political decisions with foreign money, according to the interests of the principals. We hope that this current law will prevent this.”Viktor Orbán, Prime Minister of Hungary
The IPI highlights that Fidesz built the framework of the current constraint on press freedom while the EU was watching. For too long nothing has been done against the consolidation of the pro-government media bubble and the elimination of independent journalism.
It is horrifying to see how Orbán is using the concept of ‘sovereignty’ to weaken democracy and quash press freedom. The BBC examined the state of Hungarian media and you can read their report here.
I am sad to say that the UK press reports about Orbán on the world stage, but publishes little about the internal developments in Hungary. Complacent about the freedom of the independent press in the UK we might be missing the opportunity to learn from the Hungarian example of how far a rogue government can go. Also, hopefully, we will see how the EU can support democracy in its member countries. It’s important that we watch our current government’s control of the mainstream media, since we no longer can count on the protection of our democratic rights by the EU.