Hungary’s proto-authoritarian new Constitution

Hungary is about to give itself a new constitution: 21 years after the peaceful transition from communism to democracy the nationalist-conservative government of Prime Minister Viktor Orbán, by virtue of its 2/3-majority in parliament, has tried to put the country on a entirely new constitutional course, with exceptional haste: Last week a draft for a new constitution was published, this week parliament has begun to discuss it, and in the week before Easter it will be adopted and promulgated. On January 1st 2012 it will enter into force.

The draft is remarkable in more than one way. First, it begins with a preamble of unprecedented length, titled National Avowal of Faith. The religious connotation of that term is intentional: The draft declares Christianity as crucial for the foundation of the nation; other religious traditions (such as Judaism) are merely “respected”. The preamble also describes the nation in cultural, not political terms: “We solemnly promise to preserve the intellectual and spiritual unity of our nation, torn apart by the storms of the past“ – a reference to the great number of ethnical Hungarians living in neighboring countries. It also refers to the concept of the „Holy Crown“ – the medieval crown of the Christian Hungarian kings – as the embodiment of the constitutional continuity of Hungary and of the „unity of the nation“.

The “Holy Crown“, odd as it seems in a republican constitution, also implies a reference to greater-Hungary ambitions, since the medieval kings ruled over the entire Carpathian Basin, including large parts of what now is Romania, Slovakia, Serbia and Ukraine. Last year the government enacted a law that gives access to Hungarian citizenship to ethnic Hungarians, and many expect that soon they will also be given the right to vote in national elections – which could very well result in a further shift in the electorate favoring the right.

The preamble is not intended as merely a solemn declaration: In Art. Q III the draft provides that the constitution is to be “interpreted in accordance (…) with the Fundamental Law’s National Avowal of Faith”, and also “with the achievements of our thousand-year-old Hungarian Historical Constitution.” What the legal effect of this will be is totally unclear at this point. That will be for the Constitutional Court to decide.

The Constitutional Court has played a considerable role in shaping the current Constitution of Hungary. After the communist reign ended in 1989, the old stalinist constitution of 1949 had not been replaced, but was amended in numerous ways; basically all traces of the communist constitution have been eliminated. The result was a rather incoherent, provisional text, the core of which has been adopted by the communist parliament on the basis of the round table agreement. In the 90s the Consitutional Court under its president László Sólyom did a great deal to fill the gaps and to create what was a perfectly workable constitutional law.

The flaws of the current constitution were mostly aesthetic and symbolic. Therefore, as the Orbán government announced its plans to create a new constitution most expected the reform to fix these symbolic shortcomings, first and foremost to cast the current constitutional law in a better legitimized form, adopted by a freely elected parliament. That did not turn out to be the case, though. Whereas many provisions basically remain the same, in some important aspects the actual draft breaks radically with its 1989 predecessor and the constitutional values it embodies.

First of all, the draft severely narrows the competences of the Constitutional Court. It raises the number of parliamentary deputees needed for constitutional review of a law from one to one quarter of the parliament – a threshold that effectively precludes the opposition to question government laws constitutionally, because Socialists and Greens would have to cooperate with the extremist Right in order have 25%. Even more disruptive is what the draft does to the competence of the court to review fiscal and budgetary laws: this is mostly eliminated. Only if a law infringes human dignity or some other very specific rights such review is admitted. The effect will probably be that the Court will betake itself to softening the concept of human dignity in order to get its hand on unconstitutional fiscal law – a possibly very harmful side effect.

The background for the restriction of its competence is that the Court last year struck down a law that enabled the government to retroactivly impose a 98% tax on all public payments, with the intention to roll back parachute payments for cronies of the outgoing socialist government. The Orbán government in return used its 2/3 majority to amend the constitution accordingly to save its law, and at the same time it restricted the Court’s competence of judicial review. It announced that this would be only transitional. But now the draft makes it permanent.

The most disturbing feature of the draft is probably that it seems to be bent on undoing the entire constitutional jurisdiction of the last 20 years. In the preamble it says: “We do not recognise the legal continuity of the 1949 Communist ‘Constitution’, which laid the foundations for tyranny, and hence we declare it to be invalid.“ That might imply that all jurisdiction and scholarship referring to the old constitution is declared irrelevant under the new constitutional law. (On the other hand the preamble says at another point that May 2 1990 is “the day we consider to be the beginning of a new democracy and constitutional order for our country“. Much of the constitutional democratization had already taken place at that date, though).

Some even think that this could even lead to a dismantling of the present Court altogether: The government might argue that the old justices have been appointed under the old, now invalid constitution and pack the court with a full set of loyalists who would stay in office for 12 years. The Orbán government has in the last months repeatedly made use of its majority to prolong the terms of several key official positions, such as the general prosecutor, the head of the auditing office or the head of the media regulation office, to nine years, in order to make sure that Orbán loyalists stay in office regardless of the outcome of future elections.
A distinctly authoritarian streak can be felt in the basic rights section – albeit in a more subtle way. The title of that chapter is “Freedoms and Responsibilities“. That could be read as a departure from the classic concept of basic rights as status rights of human beings or citizens, which do not have to be earned or deserved by fulfilling one’s obligation to the community. In Art. XI the freedom of choice of profession (“Everyone shall have the right to freely choose his or her job or profession, or to engage in entrepreneurial activities.“) is directly followed by this sentence: „Everyone shall have a duty to contribute to the enrichment of the community through his or her work, performed according to his or her abilities and possibilities.“

A peculiarity of the draft is its provision of the possibility of an additional vote for families with children. (This is still controversial even in the ranks of Orbáns coalition and therefore might be dropped before the adoption.) That digression of one man, one vote is very problematic, particularly since it might also serve Orbáns electoral interests. The idea is not to give the parents a vote for each child, though, but to give the mother to a second vote, regardless of the number of children. That probably serves to assuage the resentments of many Hungarians against the Roma minority with their alledgedly large families.

While the content of the draft is disquieting, the process of its handling by the government majority is downright bizarre. Orbán had announced after his landslide victory in April 2010 to give the country a new constitution within a year. The current constitution with its single chamber system gave him the power to do so: A 2/3 majority is sufficient to alter the constitution and to enact a new one. In the 90s a former coalition government had introduced the need of a 4/5 majority to get a new constitution on the way, but that was quickly reversed by means of a further amendment.

The idea is that the election was the actual revolution that Hungary never had. The government likes to talk of the election in terms of a “revolution in the voting booth“: by giving Orbáns coalition a 2/3 majority the Hungarian people empowered him to complete the unfinished job of 1989 and to put and end to the communist era for good. Orbán appointed a commission lead by the conservative MP and constitutional law professor László Salamon. The initial draft that commission drew up did not find favour with Orbán nor with most else, so Orbán dumped that draft and installed another committee by three politicians (including Salamon) which finalized the actual draft. Who actually contributed to that draft remains intransparent.
No referendum will take place. The government chose to consult with the people only by means of a short questionnaire of 12 questions, most of them put in a rather suggestive form and omitting some of the most controversial points such as the restriction of the competence of the Constitutional Court. How many of these questionnaires have been answered and in which way they shall influence the process is unclear at this point.

The opposition withdrew itself early in the process. The only party that has taken an active part in it, besides the government coalition, is the right-wing extremist Jobbik. Orbáns coalition with its 2/3 majority will have written, debated and enacted the new constitution all by itself. That makes it highly improbable that the new constitution will have a sounder legitimacy base than its predecessor.

–Maximilian Steinbeis, www.verfassungsblog.de