Our contributor Andrew Arato, along with other leading academics, submitted an amicus brief to the Venice Commission concerning the new Constitution of Hungary. It is in many ways a devastating critique of the new document on both substantive and procedural grounds.
The Venice Commission itself released an Opinion on the Constitution earlier this week, arguing that the document puts “the principle of democracy itself at risk.” I find it interesting that the Commission critiqued the Hungarians for its choices about specificity, that is, which issues to leave general and which to provide more detail. In particular, they find that there are too many “cardinal laws” (meaning organic laws requiring a supermajority) requied in the constitution. From paragraph 24 of the Commission Report: “there are issues on which the Constitution should arguably be more specific. These include for example the judiciary. On the other hand, there are issues which should/could have been left to ordinary legislation and majoritarian politics, such as family legislation or social and taxation policy. The Venice Commission considers that parliaments should be able to act in a flexible manner in order to adapt to new framework conditions and face new challenges within society. Functionality of a democratic system is rooted in its permanent ability to change. The more policy issues are transferred beyond the powers of simple majority, the less significance will future elections have and the more possibilities does a two-third majority have of cementing its political preferences and the country’s legal order…. When not only the fundamental principles but also very specific and “detailed rules” on certain issues will be enacted in cardinal laws, the principle of democracy itself is at risk.”
I am not sure I agree with this particular critique by the Commission. There is a certain tension between the scholars’ critique of the current constitution, adopted by a two-thirds majority of parliament, as reflecting a temporal and limited majority, and the concern that the two-thirds requirement for cardinal laws reflects too much entrenchment. More broadly, I am not sure that one can specifcy ex ante the normatively proper domain of entrenchment for all socieites. The gravest issues raised by the Hungarian document are not that it disempowers the legislature, but rather that it strengthens it by weakening the judiciary.
–TG
For more comment and documentation see the LAPA website here.
Comments
5 responses to “New Hungary Constitution: New Opinions”
True, there is a tension, but it is between having a 2/3 majority and keeping it: In my view, the bad thing about the cardinal laws is that in case FIDESz loses the next election it still will be in a position to veto a large part of the next government’s policies, particularly if that government wants to alter things FIDESz with its 2/3 majority has installed. With a supermajority clause for raising of taxes and cutting pensions, it will be very hard to successfully run a government on a simple majority basis. This is not about weakening the legislative, this is about neutralizing the outcome of elections to a certain degree, and that is what makes this undemocratic.
I agree with Max.
Moreover let me point out that the amendment scheme presented as the best by Ginsburg et.al. in Endurance, namely that of India’s is four tier: basic structure, 2.3 plus states, 2/3 and absolute (or simple?) majority are the four well known tiers.
There is no need to ex ante know waht should be in all of these tiers for each and every society. They must decide this for themselves, as India and South andAfrica(4tier) Bulgaria, and Spain (3 tier systems), Canada (badly set up 5 tier) system. (I assume nevertheless that generally fundamental rights belong to a highly entrenched tier, while budgetary rules belong to the statutory tier. State and church relations however…?)
The 2/3 rule in Hungary, along with the highly disproportional electoral rule, is under some polttical conditions as now is entirely majoritarian, while the new organic laws of FIDESZ under other conditions can lead to ungovernability. That’s the problem our document points to.
I agree that the worst part of the Basic Law is its attack on the judiciary and judicial review, just know completed by a comprehensive packing of the Constitutional Court.
Good points, both. Andrew highlights that a 2/3 rule or any other vote threshold can only really be understood in interaction with the electoral rules. This is yet another reason that the cross-national study of amendment rules is so difficult.
In “normal” constitutional schemes, the call for cardinal laws is a kind of delegation to future legislatures, which might have better information on which to act. But in this case, in which the constitution-making majority retains office and power, they are able to consolidate their rule with quick enactment of entrenched cardinal laws. One normative implication is that there should always be an intervening election between constitution-making and the adoption of such entrenched laws. this would heighten the veil of ignorance quality of decisionmaking, even though it is imperfect because of electoral manipulation.
Broad question for those who follow this closely. To what degree is this seen as a kind of Putinization? that is, the shift toward a kind of electoral authoritarian regime with the form of democracy but not the substance? Is that too hyperbolic a characterization?
wasn’t it the Economist who brought up that comparison first? I don’t quite remember…
I don’t know if Hungarians would react as gratefully to authoritarian rule as the Russians do. I think a more likely scenario is constitutional dysfunctionality: Orbán will have to cede from power but there won’t be a legitimate constitution left to govern under for his successor.