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Constitutional renewal must be done by Hungarians for Hungarians

July 12, 2012

A conversation between two consitutional legal scholars:

Kim Lane Scheppele, Princeton University and Gábor Halmai, ELTE Budapest and Princeton University

Gábor Halmai: In the book we are writing, we try to understand how Hungary, one of the forerunners of the post-communist constitutional democracies has fallen back – to say the least – to an illiberal democracy, if not to an authoritarian regime, after twenty years of constitutional development.  In your posts on Paul Krugman’s New York Times blog you even went on to say that an unconstitutional Basic Law introduced a one-party police state.  Before going into the facts and reasons for democratic backsliding, how would you characterize the current Hungarian political and constitutional system after the new Basic Law and most of the so-called cardinal laws have come into effect?

Kim Lane Scheppele: The new constitutional order is not a rule-of-law state in its formal legal features, which is a serious step backwards for Hungary.   A constitutional rule-of-law state requires three elements:  a guarantee that power can rotate among different political parties through free and fair elections, a guarantee that the elected government is constrained through a system of independent checks on power and a system for ensuring that individuals have meaningful rights that they can assert against the state so that they remain authors of their own lives.    All three elements of constitutional government have been compromised with the new Hungarian constitution and the accompanying system of cardinal laws.    That is why I have resorted to extreme descriptions.

The new constitutional order will make it much harder for any political party other than the governing one to come to power.  The election districts have been gerrymandered.

GH: But it happens in other democracies, like the US, as well.

KLS: Yes, many countries have gerrymandered election districts.  In fact, the practice was invented by an American, Elbridge Gerry, who famously created a district shaped like a salamander in 1812.  But I know of no other country where it takes a 2/3rds votes of the parliament to change the election districts and where the law establishes almost no criteria for determining whether the districts are fairly drawn.

GH: But voters change their minds about what they want, and it is impossible to create districts that prevent a huge change of opinion from bringing in a new government.  

KLS: Yes, that’s true.   But the worry about whether the new constitutional order guarantees rotation of power extends beyond the point about election districts.  To have a new government, one needs to have viable political parties.   But right now, no opposition party can plan for the next election.   A required procedural law that regulates how elections will be conducted has yet to be enacted.  And the governing party has not yet even floated a draft for review.  As a result, any opposition party that wants to contest the next election does not know what the rules are for doing so.

To make matters worse, the governing party recently proposed to eliminate all state subsidies for parties during the next election cycle – a policy not crazy in its own right, but which is announced too close to an election to be fair to opposition parties.   It will be impossible to have a free and fair election unless those who want to contest power know what the rules of the game are with sufficient time to plan an electoral strategy.

GH: You mentioned checks on power, but Hungary has a parliamentary system in which the executive and legislative branches are not separated as they are in the American system.   The American system cannot be a model for Hungary.

KLS: Yes, I agree.  But even a parliamentary system needs institutions that keep an elected majority within constitutional constraint.  The new Hungarian constitutional order has no serious checks on the government’s power.  The Constitutional Court’s ability to review laws for constitutionality has been sharply curtailed and the court has been packed with judges sympathetic to this government.    Since the new system has gone into effect – nearly half a year now – the Constitutional Court has disappeared from the political landscape.   The independence of the ordinary judiciary has been comprised through the introduction of a highly political system for selecting, disciplining and assigning the workload of judges, as a Venice Commission report recently confirmed.   The accountability institutions have all been weakened, either because their staffs and jurisdictions have been cut (e.g. the former ombudsmen’s office) or because the offices have been filled with people who have long histories of association with the governing party (e.g. the state audit office, public prosecutor, media board, the national judicial office and increasingly even the monetary council).   The media are under constant threat from the all-powerful Media Board and they are required to carry news from the government-controlled news service.   As a result, the current governing party can operate almost without constraint, particularly given that it has a supermajority in the parliament that can override any adverse decisions that slip through the cracks.

GH: You have hinted in your posts on the Krugman blog that Hungary is essentially now a one-party state.  But Hungary surely does not have a one-party state of the sort that existed between 1949-1989!  Admittedly, the party structure of the new Hungarian democracy was incomplete and very weak from the very beginning. There  was no real social democratic party or an effective social liberal party.  That opened the space for a populist party like Fidesz to have strong support.  Without a robust party system, revitalizing Hungarian democracy is much harder.

KLS: Constitutional theorists like us often underestimate how important political parties are.   Modern democracies in mass societies cannot operate without them. If the party structure is weak and unrepresentative, then this is a problem for the whole democratic order.    Hungary started the transition in the first election of 1990 with what appeared to be a quite robust party system, which was maintained through much of the 1990s.  But then we saw that most of the parties had no system in place for rotating leadership, bringing in younger generations of party members and deepening their connections with their supporters.  By the end of the decade, the party system was falling apart and we saw the final results in the 2010 election.   In fact, the latest opinion polls show that a clear majority of the Hungarian people supports no party at all.   This is a sign that the party system has collapsed, which is precisely why the governing party has no well-organized opposition at the moment and why democracy itself is at risk.

GH: You mentioned that a constitutional rule of law state needs to guarantee the protection of rights.   Would you say that there is a lack of separation of powers currently in Hungary, which makes the protection of rights impossible?   

KLS: In a system where rotation of political power cannot be assured and where the government of the day has few checks on its power, it is impossible to protect rights if they come under attack. Who is left to defend rights of vulnerable populations if the current government decides that rights are inconvenient to maintain?  With power-checking institutions weakened, rights depend entirely upon the good will of the government.        Rights need defenders, which means relying on independent institutions strong enough to stand up to a potentially abusive government.  If the government controls all institutions, then where do those whose rights are infringed by this government go?   That is what constitutions are supposed to ensure – independent defenders of rights.

GH: Many supporters of the government argue that there are states governed by the rule of law that do not have strong constitutional review, like the UK or France.  Besides, in Hungary, the Constitutional Court still has important competences, with a real, German-type constitutional complaint jurisdiction, which many constitutional scholars – including myself – requested from the very beginning of the transition.  In addition, the only remaining ombudsperson, who still has the power to initiate abstract review at the Constitutional Court, recently filed very important petitions, including challenges to the Transitional Act of the Basic Law, the media law, and the party financing system.

KLS: Yes, the Constitutional Court has been weakened, but officially it still exists.  And petitions are piling up at the Court waiting to be answered, both through constitutional complaints from those whose rights have been directly infringed and from abstract challenges forwarded by the ombudsman’s office.  If the Constitutional Court were an independent institution as strong as it was in the 1990s, these petitions would give the Court a chance to be a major check on the power of the government.

But the Constitutional Court has a clear majority of judges who have had long affiliation with the governing party. One might have hoped – and one still can hope – that these judges will show themselves to be independent of those who put them onto the Court.  But early signs are not encouraging.  Since the new judges have gone onto the bench, the Court has issued only three decisions that challenged the government at all.  One unconstitutional law – giving the prosecutor the power to pick the court that would hear each case – was easily “fixed” by amending the constitution to override the Court. Another unconstitutional law – on the status of the churches– was reenacted virtually unchanged as the Court had criticized only the procedure used to enact the law without dealing with the challenges to the law’s substance.   The fate of the third unconstitutional ruling that nullified part of the media law is still pending, but the Constitutional Court dealt only with the rather small-bore restrictions on the print media rather than with the much more important challenges – restrictions on broadcast communications or the unrepresentative composition and extreme powers of the Media Council itself.

GH: Exactly this part of the media law was now challenged by the ombudsman.

KLS: Yes, and the Constitutional Court may yet rise to the challenge and rule on the constitutionality of the new system of media regulation.  But I am not optimistic in light of what we have seen so far.    Even when the Constitutional Court has made important decisions, however, they have made almost no difference.  And given that the government clearly knew about the three decisions I mentioned before they were announced, this has given rise to public speculation that the Court only does what the government permits it to do.   I do not know whether that is really true or not, but the existence of the speculation is also not good for constitutional review.

But the most striking thing is that the Court has been silent on the key issues of the day, even though we know petitions sit before the Court that would give it an opportunity to intervene.

It’s true that constitutional democracies survive and even thrive without constitutional review by a high court.   But in those systems, like the UK or the Nordic countries, other institutions – like powerful ombudsmen, public inquiries, parliamentary house rules that give important roles to minority parties, and substantial accountability offices – perform those functions.   Almost everywhere, however, courts are gaining increased power.  The new UK Supreme Court now has the power to declare statutes incompatible with human rights; Nordic courts can review laws for their compliance with EU law, including European human rights law.  And France just greatly enlarged the capacity of the Constitutional Council to review laws for constitutionality.

So yes, not all constitutional democracies have the same robust constitutional review Hungary once had.   But almost all countries that built their democracies without judicial review are moving to have more judicial review from now on.

Hungary is the only democratic country that has taken away the already-granted powers of a constitutional court.  And that is surely a bad sign.

The Consitution of the Hungarian Republic, 1989

         

GH: Do you really think that the police state that existed before 1989 was again reintroduced?

KLS: Not in the same form.  But there are worrying tendencies that secret surveillance is both growing and increasingly unaccountable.  In addition, evidence is mounting that the government is again creating data bases with detailed profiles of citizens who have not violated any criminal law.   Hungary currently has not only a new and very powerful anti-terrorism office (TEK) with broad powers, virtually unlimited capacities for surveillance, and no accountability to anyone outside the Prime Minister’s immediate circle, but it also has several other powerful intelligence agencies that also have extraordinary capacities to conduct intrusive surveillance and that have alarmingly few serious external controls.    In a government with few checks on its powers, who keeps the intelligence services from becoming merely another arm of state power that keeps the current rulers in office and that uses spying to suppress dissent?

GH: But the general regulation of the intelligence services was already in place, when this government came into power.

KLS: Yes, the intelligence services were already a problem before the FIdesz election of 2010.  The police), Constitutional Protection office (AH), the Bureau of Information (IH) and the Special National Security Service (NBSZ) were able to engage in widespread surveillance upon order of the government of the day and, while they were formally accountable to the parliament, the parliament never did much with this power.   There are also various military intelligence branches, some of which are permitted to operate within the country and not just outside.  All of these agencies had overlapping competencies to spy on citizens even before Fidesz came to power, so the secret police problem is not new.

The new government, however, has consolidated control of the security services under the interior minister and prime minister, enlarged the capacity of the security services to engage in intrusive surveillance operations without a judicial warrant and empowered the security services to gain more private data from third-party service providers with fewer constraints (giving the government access to the content of emails, medical files and more).     Though there were already too many security services with too much power before, the Fidesz government has invented two new security agencies:  the TEK about which I have already written extensively and also the National Protective Service (NVSZ) which supervises the other domestic security services.  The NVSZ, as a new institution, supervises the personnel of the other security services, almost like creating a new agency to spy on the spies.   As a result, the new agencies created under the Fidesz government have given this government the power to intimidate the personnel they inherited from previous governments and to shape the security services the way that they want.

GH: Surely, though, Hungary is not a party state or a police state!

KLS: I know many Hungarians don’t share my view that the situation has gotten this bad in daily life.   Walking down the streets of Budapest, as I did a few months ago, one can see that Hungary doesn’t feel like either a party state or a police state.   But I draw conclusions based on an analysis of the laws.  Given the new legal framework, a government operating under it could choose to do virtually anything it wants.   That is why I have used such alarming descriptions for the current state of affairs.

Perhaps this will be a government of angels, acting in a democratic, self-constrained and rights-respecting manner even though the law does not require it.   But as one of the main authors of the US Constitution, James Madison, wrote, “If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Even though America has an exceptional constitutional order that cannot be copied, James Madison was right about why all democratic governments need constitutions.

GH: But, as Andrew Arato argues in a recent article of his it is still too early to call Hungary a dictatorship.

KLS: A government without controls is a potentially dangerous government.   Is it a dictatorship and a police state yet?    Perhaps not.   But it has the legal framework in place that would allow an easy slide into both.   That is why I have decided to speak out in such forceful terms.

There is an old story about a frog who sits in a pot of water.  When the water starts to heat up gradually, the frog feels warm but not alarmed.   By the time the water has gotten hot enough to be dangerous, the frog is already dead.  Hungarians living in the country are sitting in the pot of water, gradually getting warm.   By contrast, if a frog from the outside is dropped into a pot of dangerous hot water without the gradual warm-up, it jumps out immediately because it can tell that the situation is intolerable.   Consider me that frog.    Sometimes outsiders can be useful.

GH: Let’s start our tour through more than two decades with the assessment of the Hungarian type of constitution-making. The negotiations between the MSZMP and the members of the Opposition Round Table in 1989 ended up with a comprehensive amendment by the illegitimate Parliament to the 1949 Constitution, keeping its title, and only promising a new constitution. This caused a legitimacy deficit, which has been amplified by the fact that the efforts to enact a new constitution failed in 1996, when the governing coalition of MSZP and SZDSZ had a 2/3rds majority. Both Bruce Ackerman and Andrew Arato wrote about a missed opportunity to close the post-sovereign constitution-making process with this second step, as the South Africans did. Do you also see this as an important but missed opportunity, and would you think that with a new constitution adopted back then, the situation might be less serious now?

KLS: It is always hard to know what would have happened if history took different turns.  But I don’t believe that a “better” constitution enacted before 2010 would have prevented what has happened since the Fidesz government came to power.    The 1989-1990 constitution was working.   It was not perfect and it may have been written under less-than-ideal circumstances, but it had guided the development of a democratic state for more than 20 years.   The Constitutional Court had filled in some of the missing pieces that were not written into the constitution when it was first drafted.  The key institutions created by the 1989-1990 constitution had become taken-for-granted by most of the population.  The constitution developed legitimacy because it had become a real and living framework for government.   That is a constitutional success story and there was in fact no constitutional crisis.

While there was much wrong with the country in 2010 when FIdesz won the election, the problem was not with the existing constitution.   The problems with the country (corruption, social inequality, a dependence of many private institutions on state support, a polarized and cynical political elite, a tax-evading and system-gaming population) could have been fixed within the prior constitutional structure, which set up a system of constrained and accountable state power.   When the Fidesz government took office in 2010 and wanted more power than the constitution gave it, Fidesz attacked the old constitution.   In my view, the fact that a constitution does not give a government all the power it wants is not a sign of a failed constitution, but a successful one.  But no constitution, no matter how successful, can withstand a direct attack launched by a supermajority like the one that came to power in 2010.     Yes, people wanted change in the 2010 election but it is not at all clear that the public signed up for what it got.  A new constitution in 1996 would not have changed this unless it gave a new government nearly unlimited power, which it would not have done.

GH: Yes, but wouldn’t it be harder for Fidesz to make these constitutional changes, if the original election system hadn’t been that disproportionate, and if the 1989-1990 constitutional system had been entrenched with a stricter amendment rule?

KLS: Yes, those are precisely the two features that should have been changed in the 1990s.    But the disproportionate election rules were not in the constitution itself; they could have been changed without requiring a complete constitutional overhaul.  And a stricter amendment rule had already been introduced into the constitution with the amendment in 1995 that required a 4/5ths vote of the parliament to begin a new constitutional process.   As a result, the new Basic Law introduced by Fidesz should have been governed by a 4/5ths vote.  But they ignored the constraint by using the ordinary amendment rule to change the more heavily entrenched rule about writing a new constitution.    So we can see that the Fidesz government would not have been stopped by a constitution that constrained it.   In fact, the constitution that Fidesz inherited already prevented it from doing what it did.    This is why I don’t believe that a perfect process in 1995-1996 would have mattered much, except insofar as it might have changed the electoral rules and therefore strengthened the diverse party system to prevent such a large one-party victory in the 2010 election.   But that is all speculation.

GH: How do you evaluate the seriousness and stability of consensus behind the 1989-1990 constitutional changes among the conservatives (MDF) and liberals (SzDSz)? The liberals accused the Antall government of being authoritarian, while the government argued that SZDSZ, by supporting the taxi-drivers’ blockade after the first democratic elections, deviated from the road of constitutionalism, and then built an unnecessary coalition government with the former communists after the second election, betraying the transition.

KLS: Politics has been exceptionally polarized ever since the changes of 1989 and there has always been robust political debate.  But disagreement over policy issues does not mean that there is a constitutional crisis.   The constitution of 1989 was reaffirmed repeatedly by different coalitions of political parties over its first 20 years.   Until the Fidesz government came to power, there was never a government that attempted to subvert it.   And there was never a political consensus to change it.  The constitution was working.

At the Roundtable, the communists and key opposition parties agreed on the new text.   The one area of persistent disagreement, whether the president should be elected by the public or by the parliament, was resolved by a popular referendum.    In 1990, after the first multiparty election, the leading party of the governing coalition and the leading party of the political opposition agreed on some important constitutional changes.  In 1995-1996, the constitutional drafting process initiated by the Horn government failed, largely because there was no consensus on what should be changed.

GH: The current government says that the 1989 constitutional amendment was not legitimate, and that is why a new constitution was necessary.   

KLS: Actually, many thousands of Hungarians went to the Constitutional Court over 20 years to enforce the new constitution through actio popularis petitions, which they would not have done if they thought the constitution and the Constitutional Court were illegitimate.

In 2010, there was no public demand for a new constitution, and in fact Fidesz did not campaign with the promise that it would write a new one.  Twenty years of experience under the 1989-90 constitution created a stable, constitutional system that was largely taken for granted both at home and abroad.

Many constitutions are born in less than ideal circumstances, as was true in 1989.   Constitutions become legitimate when they come to be the agreed-upon framework within which politics should be conducted.  That had happened in Hungary.

GH: What do you think about the role of the mild transitional justice measures that were chosen by the legislature and the reactions of the Constitutional Court to them in the failed reconciliation between Right and Left of the political spectrum in the early 1990s? Could a harsher approach to retroactive justice, compensation, lustration and access to the files of the previous regime have been more helpful?

KLS: Different countries emerging from Soviet rule from 1989-1991 took different paths on the retroactive justice issue.  Hungary initiated a very principled course of action, which we have called in the title of one of our joint articles “living well is the best revenge.”    The best tribute to the fact that the country had changed entirely in 1989-90 was for the new state to avoid acting like the old one – no more political show trials, no more extreme measures taken against political opponents and no more political retribution to settle old scores.   Instead, Hungary chose to create and honor rights for all, including for those who had never accorded respect for rights to others.     The Constitutional Court led the way in this – refusing to permit the extension of the statute of limitations for crimes committed in the Soviet period that were not prosecuted for political reasons and ruling that even spies had privacy rights in the new system.     Perhaps that required a country of angels to appreciate.  Many people clearly wanted to use their new democratic power for revenge after 1989.   But I am confident that history will judge Hungary’s more principled approach well.

That said, the current Fidesz government is whipping up anti-communist sentiment as one of its key emotional appeals.    Perhaps the government could not have done this if the communists had been dealt with differently in the transition.   But that is not an argument against what Hungary did at the time.   If FIdesz is serious about exposing the evils of communism now, it could start with opening the secret police files.   But Fidesz MPs blocked the law that would have done so.  In addition, Fidesz could give more publicity to the historical record of what happened during the communist period.   But a Fidesz proposal will make records from the Institute of Political History inaccessible even to scholars.   It is hard to take Fidesz’s anti-communism seriously when it has done so much to hide the files that would have been able to set the historical record straight.

GH: Robert Post argues that without the „democratic ownership” of the people, in other words without the tradition of democratic culture, even perfect democratic institutions can fail. According to comparative value surveys, the Hungarian people are closer to the orthodox cultures of Russia, Bulgaria or Moldova than to the secular constitutionalism of Western Europe.  Also Péter Nádas argues in a recent study that in the last twenty years a third modernization failed, leaving the society still divided between the values of the Kádár era and the values of the Horthy era.  It seems to me that constitutional and democratic backsliding had no effect on the popularity of the Fidesz government, and that the „constitutional culture” László Sólyom is talking about does not exist, not even in wider circles of the intelligentsia and the political elite.

KLS: Of course a democratic culture is necessary for a constitutional democracy to survive.  No regime lasts long unless people believe in its basic premises.     I have watched the Hungarian survey results with some dismay and worry a great deal about Hungarian political culture.

But I also want to resist blaming the Hungarian people for democratic backsliding.    In any democratic country worth that designation, the political elites must take a leadership role in defending and promoting democratic values.   And the political parties in Hungary, across the board, have not taken this responsibility seriously.      It is hard for a public to be more committed to democracy and constitutionalism than its leaders have been.

None of the political parties in Hungary has been successful in generating internal democratic renewal of its own party.   Fidesz has the same leadership it had since its founding.  Other parties – MDF, SzDSz, the Smallholders – did not outlast their founding generations.  The Socialists have had some turnover in leadership, but not because it really had an internal program of democratic and multi-generational renewal in place.   The party system is broken in Hungary because the first generation of democratic leaders did not train their successors to create the democratic parties that could lead a democratic nation.

Also, the powerful Constitutional Court may have been partly responsible as well.   In a country where people could wait until the Parliament did something awful and then write a letter to the Court to overturn it, political engagement could be minimized.     As long as the Court was always there to fix mistakes, it may have also taken some democratic responsibility off the shoulders of the political elites who could act without consequence.

Having read many thousands of petitions to the Constitutional Court in the 1990s, however, I refuse to believe that the Hungarian public is anti-democratic and doesn’t care about constitutional values.   But I also believe that Hungary has not gotten the political leadership it deserves, which has led to a certain popular cynicism about politics.  And that is dangerous, too.

GH: What is the way back from this situation to a constitutional democracy? How can the current constitutional order be changed if the next non-Fidesz government won’t have the 2/3 majority? Are there compromises on the Basic Law with the Fidesz possible and feasible?  Do you see any possibility that the Constitutional Court or other constitutional institutions can successfully resist the government pressure on constitutional matters?

KLS: I have been speaking out as forcefully as I have because the new constitutional order slams all of the doors shut to formal constitutional renewal and bolts them against change.  It will not be easy to get out of this dangerous new constitutional order with less than a 2/3rds majority of a future government.  And that assumes that Fidesz won’t suddenly use its 2/3rds vote to change the amendment rule to make the constitution even harder to amend than it has been.

GH: What can be done?   

KLS: First, nothing can be done without new and “clean” political actors coming onto the stage to lead a political movement back to democratic and constitutional values.   If such an opposition party or coalition could be elected, it could start a truly participatory and legitimate constitutional drafting process to bring Hungary back to a stable and democratically justified constitutional order.   Some current members of Fidesz might well be part of that new coalition, but it is hard to imagine that happening unless Fidesz can produce supporters of true multi-party politics.

A new party or grand coalition could pledge in the next election cycle to not use all of the power that the new constitution gives it.  Nothing in the constitutional order requires a new government to be abusive in the exercise of its power.    An electoral coalition could run on a platform of constitutional self-limitation and could govern responsibly even under this new constitution until it can be changed.

Political renewal will have to be done by Hungarians, for Hungarians.  And it will take steady and principled leadership to organize such a program.   More than at any point since the loosening of Soviet control, Hungary needs brave and selfless leaders to restore a constitutional and democratic state.

Of course, the Constitutional Court could lead by example – pruning the new order of its most abusive features.    But we have not seen many signs yet that the Court in its present diminished state has the capacity to do this.  That makes me think that organized democratic politics is the only way forward to a new constitutional order.

What role can foreign actors, like the European Union, the Council of Europe and the US, play to push the Hungarian government toward constitutional and democratic reform, without driving the country back into an even deeper nationalism? Even though the Venice Commission as an expert advisory body to the Council of Europe criticized the Basic Law and the different cardinal laws, the European Parliament seems to be divided about what action should follow from this evaluation.  The European Commission, which had been critical, eventually gave a green light to the negotiations with the IMF without achieving the reform it sought, not willing to let another member states’ economy collapse.   The criticism coming from the American government is undermined by its exceptionalist constitutional approach as well as its compromise of civil liberties at home in the ongoing promotion of a „global war on terror” that you also criticized in many of your writings.

Hungary voluntarily joined the European Union by taking on its principled commitments through a long accession process.  But the EU has limited tools for bringing constitutional democracy to Hungary after accession.  The US has even fewer tools for encouraging the Hungarian government to return to the constitutional and democratic path.   But as I have said, constitutional renewal must be done by Hungarians for Hungarians.  Outsiders cannot drive this process, not least because no country – certainly not my own – has all the answers.  Most crucially, however, real democracy cannot be imposed by those who don’t live under its jurisdiction.

That said, outsiders can help by keeping the international spotlight on the Hungarian government so that it will be less likely to abuse its power.  Outsiders can also assist in articulating the internationally recognized values to which a new Hungarian constitutional order can aspire.    Those of us who criticize the new constitutional order from the outside have an obligation not to use double standards.   In my work and in my teaching, I have been relentless in criticizing both my own government and others when they have slipped from the constitutional rule-of-law path.   My criticism of Hungary should be understood against that background.    Hungary has fallen very far and very fast off the road of constitutional democracies and that is why its friends abroad are sounding the alarm.

GH: Some of the fragilities of the Hungarian constitutional regime seem to be inherent to all parliamentary systems, and you also said that power is by definition concentrated where it is the same power that dominates both political branches. This is reinforced by the fact that Hungary is a non-federal, unitary state, without genuine autonomy on the sub-national level. All this is underlines the importance of building checks and balances in the system. How do you think the old constitutional design performed in this sense, and what improvements could you envisage, if any, for framers of a future constitution that could limit the government, accepting that the constitutional culture will not considerably improve by that time?

KLS: The “old” Hungarian constitution – the one that existed between 1989 and 2011 – had many creative checks and balances despite setting up a unicameral parliamentary state in which executive and legislative powers are fused.   The Constitutional Court was very powerful, almost an upper chamber of the Parliament.  The judiciary, which was slow to reform after 1989, eventually established a reputation for political independence.   The “accountability institutions” – the ombuds system, the state audit office, the electoral commission – had developed reputations for professionalism and non-partisanship.   Local governments had important complementary powers to the national government and their elections were on a different cycle, which maximized their independence from the center.

In addition, national governments before the current one had repeatedly set fundamental change of the system outside their reach.  The first elected MDF government agreed on the self-limiting “Paktum” with the largest opposition party even though it could have governed without that constraint.  The first 2/3rds government from 1994-1998 amended the constitution to require a 4/5ths vote for starting a process of fundamental constitutional change.    Through self-limiting mechanisms like these, the Hungarian constitutional order became a proper constitutional system.

The only additions I would suggest to the old system would be to make explicit what were informal norms.  All checking institutions, like the media board and electoral commission should have guarantees of multiparty representation.    All accountability institutions should be staffed by people without party affiliations and with strong records of independent expertise.   Those features had been taken-for-granted until suddenly they were not.  These requirements of independence and multi-party representation should be entrenched in a new constitution.

That said, I don’t see a way to improve the constitution without improving the constitutional culture, because it takes constitutional democrats to maintain a constitutional democratic system.  But I take this to be more a problem of leadership than a problem of mass discontent with democratic governance.   What Hungary badly needs are visionary leaders who put country above party and who believe that elites cannot govern without respecting and encouraging democratic publics.     And the country could do much worse than to readopt its 1989-90 constitution and to start the improvements from that point.

Hungary has spent way too much of its history under the governance of foreign powers and without the ability to create a fully democratic state of its own.    It is therefore very sad to see the post-1989 democratic experiment cut short by a constitution that centralizes power and entrenches the current governing party in a way that endangers democracy itself.    Once Hungarians realize what has happened in this blizzard of legislation that has passed in the last two years, I can’t believe that they would really approve it.    I still have faith in Hungarians to find their way back to a constitutional and democratic path again.

An abbreviated version of this conversation appeared in Verfassungblog: On Matters Constitutional.

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  1. petofi
    July 12, 2012 at 8:56 pm | #1

    “Perhaps this will be a government of angels….”
    Yeah, well let’s just wait and see what happens when Jobbik allies with Fidesz as the senior
    partner in government after the next election.
    The real deviousness of what Orban and Fidesz have done is to create a set of laws not yet in use and so declared as ‘harmless’, but they will form the basis of autocratic action in times to come.

  2. petofi
    July 12, 2012 at 9:07 pm | #2

    Hungary’s contribution to social and political engineering in the 20th century was the value of heartless lying. It’s fascinating to watch how Fideszers revel in the most outrageous lies and are positively beside themselves with glee to watch people wrestling with their various lies.

  3. July 12, 2012 at 11:37 pm | #3

    A very circumspect and temperate yet trenchant critique by Professor Scheppele. Historically important. One day the Hungarian people will be grateful for her severe but sympathetic scrutiny.

  4. Odin’s Lost Eye
    July 13, 2012 at 6:01 am | #4

    At present the Hungarians I know have ‘withdrawn’ from anything political. As they say “The running of this country is no longer out concern”. Most of them will not register or vote.

    I have also noticed that when employees leave an employer because of non-payment or short payment of wages. They get no support what so ever from the state. In fact the local authorities reply was “Well you should have gone on working”. -What as serfs!

    The fact that they were expected to work for less than half the agreed rate or for nothing at all does not matter. In addition the ex-employees have to pay those taxes etc their employers should have paid even though they themselves have not been paid by their employers.

    Those who belong to Fidesz have the right to do what they want, and break the law with impunity
    .
    Part of the problem for the E.U. is that they know what is going on but have bigger worries in the financial world of the Euro.

  5. Some1
    July 13, 2012 at 8:27 am | #5

    Odin’s Lost Eye :

    Part of the problem for the E.U. is that they know what is going on but have bigger worries in the financial world of the Euro.

    THat is a very valid and interesting point. THere are plenty of factual evidence about how the current Hungarian government makes a mockery out of democratic rights they enjoy in the EU, while themselves abuse the same rights not only in the country they swore up to serve but toward other countries. One thing Fidesz knows is that legal decisions come slow, and they also know how to slow it down even further. THe EU has it’s laws and processes that were established to serve a western standard democracy, but Orban and his gang is not westernized. They are way back where they wan to be, in a time when the ruling class were to serve their own interest wit their own laws, taxes and earthbound ways, namely a feudalist model. (Earthbound = example the new retroactive education laws, where university students cannot leave the country….)
    I am a ‘bit exaggerate here but I want t provide a simple example that easy to understand. When the UN peacekeepers arrived to Rwanda, they had the laws of the West. They believed that there is a common moral and understanding why are they there, but they became entangled in their own legal and moral codes and had to watch helplessly as the savage unfolded. The USA also did not get involved for various reasons. We know the outcome. No, I am not suggesting that there is genocide is taking place n Hungary. What I am saying is that there is a huge abuse of political and economical power is going on, and there is squat that the EU is doing about it. When all will settle in one way or another, the Fidesz people who were involved in this mass will be rich enough at the expense of Hungarians, that they will do not care at all what will happen after.

  6. Odin’s Lost Eye
    July 13, 2012 at 9:32 am | #6

    Some1 Part of the problem lies in the hands of the Hungarian people., and I am not talking about those with brains, but the ordinary folk. The problems are due in part to their ignorance, in part to their fear of ‘authority’, and the fact that they will not admit that they have been ‘conned’. There are remedies, but they will not use them.

    Those who even now those who are ‘ripping off’ the people are busy stashing their ill gotten gains in’ off shore’ banks and at the same time running up debts in Hungary. These folk will just ‘vanish’ “poof”! leaving the others to pick up their tabs.

    It is a tradition that when a Hungarian became wealthy he would just move ‘abroad’ to somewhere more liberal.

    The Highest politicos are doing the same sort of thing but are also just power hungry. They will expect every Hungarian or person of Hungarian descent everywhere in the world to become ‘freedom fighters’ These folk are to fight for the freedom of this little group (the highest and of course the all highest) to ignore all treaties their land has signed , all promises they have made etc and to do whatever they like.

  7. Karl Pfeifer
    July 13, 2012 at 11:46 am | #7

    I disagree. The EU has the power. Mrs. Merkel has convened the Romanian ambassador.
    Of course her principle seems to be: quod licet Iovi non licet bovi. Orbán is belonging to her political family.

  8. An
    July 13, 2012 at 12:44 pm | #8

    “But I take this to be more a problem of leadership than a problem of mass discontent with democratic governance. What Hungary badly needs are visionary leaders who put country above party and who believe that elites cannot govern without respecting and encouraging democratic publics. ”

    True words. And Hungary got into trouble so many times because of short-sighted, self-serving political leadership (Mohacs, for example)… if something is a curse on the nation, that is. When are we going to learn?

  9. Some1
    July 13, 2012 at 1:04 pm | #9

    Karl Pfeifer :
    I disagree. The EU has the power. Mrs. Merkel has convened the Romanian ambassador.
    Of course her principle seems to be: quod licet Iovi non licet bovi. Orbán is belonging to her political family.

    If they have the power, why are they deciding not to use it? It seems to me that their hands are tied wit their own “play it nice, play it by the rules” game. I am not so familiar wit the Romanian situation, so it would be unfair for me to comment (I am not L. Kovach to pretend to know it all), and I am only basing this what I am seeing so far regarding Hungary. THe game the Orban plays is going on for a while and it affects many Hungarians. The new taxes, the churches, retroactive taxes, people in media loosing their jobs, nazi writers will be taught in schools as mandatory teaching, churches are loosing their status, political parties have their funding cut, gypsies are in labour camps, retirement savings are nationalized, and the list goes on. CAn you tell me what are the hard, concrete actions the EU took so far to stop this? (I am not talking about negotiating back and forth, I am talking about immediate actions that benefit does who Orban set out to destroy.)

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