Yesterday just before noon came the news that the Constitutional Court had annulled a number of so-called “temporary provisions [átmeneti rendelkezések] related to this Fundamental Law” that were specified in the closing sections of the new constitution.
Almost all the newspapers hailed this as the death of Fidesz’s plans to introduce registration as a prerequisite to citizens exercising their right to vote. But although the final outcome might indeed be the repeal of the law, the Constitutional Court’s ruling was not on the registration issue per se.
The ruling addressed not President János Áder’s request to the Court to investigate the constitutionality of the registration requirement but a request of the ombudsman, Máté Szabó, to take a look at the “temporary provisions.” Upon closer scrutiny, about two-thirds of these provisions were not temporary at all. Including in the new constitution the right to enact “temporary provisions” was only a Fidesz trick. They were smuggling all sorts of unconstitutional laws into the constitution itself.
The majority of the Court decided to annul the questionable provisions retroactively. Five Fidesz appointees–István Balsai, Egon Dienes-Oehm, Barnabás Lenkovics, Péter Szalay and Mária Szívós–dissented.
From reading the law on “temporary provisions” in the collection of Hungarian laws it becomes clear that a huge part of the law has been scrapped, starting with the preamble entitled “On the transition from communist dictatorship to democracy.” In it there is a long list of sins of the communist dictatorship for which the two-thirds Fidesz-KDNP majority made today’s Hungarian Socialist Party responsible. In addition, the law makes it clear that these crimes have no statute of limitations. In plain language, the current government has the legal right to prosecute politicians of the main opposition party for crimes committed, let’s say, by the Rákosi regime.
Article 11 (3) and (4), which allows the president of the National Judicial Office to transfer cases to courts of her choosing, was also scrapped. So were Articles 12 and 13 that deal with the early retirement of judges and prosecutors and Article 18 that states that the president of the Budgetary Council is appointed by the President. Article 21 is also gone; it allows parliament to decide the status of churches. Article 22, which prescribes that only those can ask for remedy from the Constitutional Court who have already exhausted all other legal possibilities, was also found questionable. Article 23 (1) and (3)-(5) is about electoral registration and it was annulled.
Article 27 is a tricky one; it concerns the functioning of the Constitutional Court. It is a kind of amendment to Article 37 (4) of the Constitution that reads: “As long as state debt exceeds half of the Gross Domestic Product, the Constitutional Court may, within its competence set out in Article 24 (2)(b-e), only review the Acts on the State Budget and its implementation, the central tax type, duties, pension and healthcare contributions, customs and the central conditions for local taxes for conformity with the Fundamental Law or annul the preceding Acts due to violation of the right to life and human dignity, the right to the protection of personal data, freedom of thought, conscience and religion, and with the rights related to Hungarian citizenship. The Constitutional Court shall have the unrestricted right to annul the related Acts for non-compliance with the Fundamental Law’s procedural requirements for the drafting and publication of such legislation.” Article 27 of the “temporary provisions” actually negates this right.
Article 28 (3) allows the government to pass regulations for local governments if they neglect to regulate something prescribed by law. Article 29 also made waves when it was adopted because it states that new taxes can be assessed in case the European Court fines Hungary because of the government’s actions that were not in line with European Union law. Article 31 (2) simply states that these temporary provisions were accepted on the basis of the old and new constitutions. And the Court also scrapped the last article (32) that declares April 25 as a memorial day of the new constitution. This last point might seem trivial, but it is in line with the reasoning of the Court. Declaring a special day for the celebration of the new constitution is certainly not a temporary measure.
The judges’ decision was not based on the constitutionality of the temporary provisions. They simply declared that these provisions were not temporary. Fidesz’s answer was immediate. József Szájer, who boasted that he wrote the constitution on an iPad on the train between Budapest and Brussels, announced shortly after noon today that since the Court didn’t examine the constitutionality of these provisions the government is planning to incorporate them straight into the new Constitution. The Constitution that was supposed to be the basic law of the land for centuries to come has already been amended three times and certainly will be many more times in the future. Every time because the political interests of Fidesz-KDNP so dictate.
Szájer is apparently a talented man and very familiar with constitutional law. In his interpretation the Constitutional Court didn’t interpret the law properly. According to him, the reference to the “temporary provisions” was put into the final article of the constitution because the framers always considered these provisions part of the Constitution itself. Well, Szájer might be a legal brain, but then why did they call these provisions “temporary”?
Antal Rogán, the whip of the Fidesz parliamentary caucus, seconded Szájer and also announced that in February when Parliament reconvenes they will fix the problem. Fixing means that he will gather the members of the caucus and tell them that here is the list of new amendments that they will have to vote on. The voting machine works flawlessly.
On Monday we can expect the Court’s decision on the registration issue. If the Court again finds only formal problems with the law, then the Fidesz-KDNP government can simply incorporate Article 23 (1) and (3)-(5) dealing with registration into the Constitution. But if the objections are more substantive and the judges find the law itself unconstitutional, then the Fidesz brains will have to work a little harder.
Máté Szabó as the sole ombudsman appointed by the current government has been a pleasant surprise. I think a lot of people expected him to be only a tool for Viktor Orbán’s designs. He must be a disappointment and Orbán must have cursed his bad judgment in allowing Szabó to be appointed ombudsman. I’m glad that Szabó turned to the Constitutional Court concerning this issue because without his intervention the world would not be as informed about the Orbán government’s undemocratic rule and its transgressions of the laws of the land. These “temporary provisions” were adopted one by one over time; only when one reads the whole list does one become painfully aware of the undemocratic nature of this regime.
Meanwhile, I was surprised to hear that the tables displaying the Basic Law have disappeared from public buildings. Central and local government offices were instructed by the government to set up a table in a prominent place so admirers of the new constitution could sign a “guest book” and could also purchase either an ordinary or a deluxe edition of the Basic Law. A person had to be hired to mind the table. Someone the other day noticed that the tables had disappeared.
The Table of the Basic Law in the Fifth District in Budapest. The mayor is Antal Rogán.
Indeed, sometime in September the government officials running these offices were ordered to remove them. The mayor of Hajdúdorog told one of the reporters of ATV: “We had a room where people could take care of their business concerning trash removal. There was a table there already, so we put a tablecloth and the Basic Law on it. If anyone wanted he could look at it. I may add that only 1% of people over 18 wanted to buy the simple edition and no one was interested in buying the deluxe edition.” Now the table is gone. Imre Kerényi, who was the brain behind the Table of the Basic Law and to whose career I devoted a whole post, explained that the idea is not dead. It was planned this way.
It seems that this new and wonderful Basic Law has very serious problems, among them that the people don’t have a particular affinity to it. The lack of interest was too embarrassing. It was better to remove table and all. And I predict that the Basic Law’s aura will only decrease thanks to the games the Orbán government is playing with something as important as the constitution of the country.
Hungarian Spectrum 
Interestingly, Stumpf did not follow the party line (and generally has been quite independent in his work at the AB)
London Calling!
“First plot your curves – then plot the co-ordinates” – so says the second law of IT!
It seems the ‘Basic Law’ is a movable feast!
And meaningless.
Orban’s “The Law is what I say it is” makes a complete mockery of democracy.
The American constitution has only had 27 amendments since 1789! Orban will have had 1789 amendments since Jan 2012!
And of course England have had zero amendments!
The ‘Basic Law’ – is a mess of pottage – no wonder less than 1% are even interested.
Regards
Charlie
Heartwarming as it is to see, these are unfortunately just the last twitches of a dying democracy. Orbán will soon finish it off completely.
2010 wasn’t an election victory, it as a coup d’état.
“And of course England have had zero amendments!”
You can’t easily amend a non-existant constitution!
And, in as much as we have one, it is the product of many laws – and amedments – over nearly eight hundred years.
If you want to see the whole text of the “Transitional Provisions” (which Eva has ably summarized in her post), it can be found in translation at http://lapa.princeton.edu/hosteddocs/hungary/The%20Act%20on%20the%20Transitional%20Provisions%20of%20the%20Fundamental%20Law.pdf .
It’s true that the Court’s decision both is and is not a big deal.
It is a big deal because the government had put many of its truly toxic constitutional ideas into the Transitional Provisions so as not to have to publish them as part of the Basic Law. As the Court said, many of these provisions were not temporary, so the Court has nullified them. The Court was brave to do so.
It is also a big deal because the decision split the Fidesz appointees. Both Istvan Stumpf and Bela Pokol voted with the majority on this.
The decision is NOT a big deal, however, because the Court’s decision did not address the substantive unconstitutionality of any of the provisions that were nullified. In fact, the ombudsman did not even raise these issues with the Court, despite petitions to his office to do so. As a result of the purely formal nature of the decision, the “fix” for Fidesz is easy. All the government has to do is to reenact the very same provisions as proper constitutional amendments – which of course it has the 2/3rds vote to do. Both Jozsef Szajer and Antal Rogan have already pledged that the parliament will take this up – and then the effects of the Court decision will disappear.
So the only question is: why is the government waiting until spring to fix the problem? I can’t read their minds, of course, but I can guess: In March, two of the judges who voted with the majority on this decision will leave the Court and Fidesz will name their successors. In fact, Justice Bihari – who authored the majority decision in this case – is one of the judges who is leaving the Court. The ability to select two new judges gives Fidesz a solid block that will stand up against any challenges to further Fidesz legislation — let alone to any constitutional changes. Given that the Court has been pretty feisty of late, the government might want to
From a formal legal angle, the remaining substantial question has to do with the interim effects of the Court’s ruling. If all of the permanent constitutional changes made by the Transitional Provisions have been nullified, then what happens to decisions already made on the basis of the now-nullified provisions? For example, the power of Tunde Hando or Peter Polt to assign any case to any court in the country in order to achieve a “balanced” distribution of cases across courts was based on a permanent change made by the Temporary Provisions. What, then, is the status of the cases they have already moved? Do those cases have to go back to the court to which they would normally have been assigned because the power under which the cases were transferred has been found to be unconstitutional? In addition, the power of the parliament to designate new churches is another permanent feature of the Transitional Provisions. What happens to the 17 new churches designated since the Transitional Provisions came into effect – as well as the dozens of old churches turned down by the Parliament under a power that they did not constitutionally possess?
The decision is 100 pages with five dissents – so I’m still working my way through it.
London Calling!
Yes Paul! – That was my little (pathetic!) joke. But you’ve clarified it for the readers.
And good luck, Kim with your homework!
Most of us realise that the constitutional court – and the “Basic Law” are incidental to Orban’s plans. A sort of Maginot line of politics!
In a way your analysis is academic – In the true sense of the idiom!
But we await your findings.
Regards
Charlie
The suspicion that Pokol Bela voted with the majority is unclear (Stumpf wrote a concurring opinion so he voted with the majority that is clear). At the Hungarian CC there is no obligation to write or join a dissenting opinion. There have been five open dissents, but an 8-7 vote would have been enough.
Stumpf is more politically savvy than to simply vote as Orban wants (unlike Szivos, Szalay, Dienes-Ohm, Balsai who are effectively party commissioners sitting as judges). First, he has a somewhat broader constituency than most of the Fidesz appointees, so he needs to act more reasonable (especially as he harbors ambitions to be the chief judge). He could play the role of the non-partizan Fidesz person, who is oh-so-liberal with whom the opposition could deal (and gain value to Orban in the process – a Fidesz person always, always thinks in terms of how valuable he will be to Orban).
Also, he knows that following strictly the party line would actually make it easier to completely reorganize the CC (and the Orban-system) should there be a new government with enough majority (or political capital to push through a referendum even in the absence of 2/3). Stumpf, with all his proffered reasonableness, is a wily Fidesz appointee who believes in the new system and will do anything to protect it (though not necessarily as Orban would want it).
He knows exactly that Orban can put everything in the Basic Law’s main body and from then on, the provisions will be untouchable.
So Stumpf and other potential Fidesz appointees voting with the majority knew that really this is not a very dangerous decision, coming out at the end of the year where nobody follows politics (it certainly will not appear in mass media, except for Origo/Index).
The voter registration will be more important especially if it will be based on EHRC case law as the decision could potentially stand even if there will be a new amendment (and make Ader’s situation more difficult when he faces another version of the voter registration law). Though with two new Fidesz appointees and Bihari (mind you, he was also Fidesz leaning lately that is why he was reappointed by Fidesz) and Hollo (more reliably liberal) leaving, the majority of the court for Orban is all but assured.
Dear Ms Scheppele,
Your continuous support for a democratic Hungary is heartening.
What is disappointing is that a country that until recently was a chief exporter of Democracy (Pres. Bush) is taking so little interest in the systematic deconstruction of democracy in a european country. I’m sure that it comes as no surprise that such a deconstruction can be a blueprint for a number of east european countries to the delight of that impatiently ‘resetting’ country called Russia. Ms Clinton has been notably absent in making any significant comments on the situation. What is going on? Why is there not a more significant interest on the part of the US Congress in what is surely the most demoralizing development in Europe since Hitler’s Germany?
Thanks to Plano for the analysis of the Fidesz-appointed judges! Back when I was a researcher at the Constitutional Court in the 1990s, it was always clear how all judges voted. All judges who did not overtly dissent were with the majority, which is also practice of the Federal Constitutional Court of Germany, the inspiration for the Court’s procedural rules in the early days. Perhaps the internal rules about dissents have changed. In any event, Pokol did not dissent openly. Whether he dissented secretly, I cannot tell. His vote was not necessary to the outcome, as Plano notes. Pokol dissented openly from the Court’s judicial retirement age decision so he knows how to write dissents!
The Court’s expected decision on Monday about the electoral procedural law will probably not matter very much even if the Court agrees with all of Ader’s challenges to the law. Ader’s petition to the Court only addressed a few small aspects of the law – like whether it was discriminatory to allow citizens living outside the country to register by mail while denying the same procedure to citizens living inside the country. In addition, Ader challenged whether it is unconstitutional both to limit what the media can broadcast as well as to ban publication of opinion polls in the six days before an election. Ader did not challenge the constitutionality of the voter registration requirement, presumably because the government thought that by adding voter registration to the Transitional Provisions it had amended the constitution. Now the Court tells the government that it has to pass a proper amendment to the Basic Law itself to carry out the voter registration plan – and that is precisely Rogan and Szajer have said that the government will do. Even if the Court agrees completely with Ader when it rules on Monday, very little will change because Ader’s challenges to the electoral procedure law did not go to the heart of the new system for reducing turnout.
I asked in my previous comment what happens to decisions made by state officials that were authorized by the parts of the Transitional Provisions that the Court nullified yesterday. The Court’s decision on the Temporary Provisions nullifies all of the permanent changes retroactively. But Fidesz is full of belt-and-suspenders guys. There are almost always redundant legal provisions that back up ones that might be challenged and removed. And such is the case here.
With respect to moving cases from one court to another, both Tunde Hando and Peter Polt have a duplicate power to carry out those actions, powers granted in the cardinal laws on their institutions. The Constitutional Court decision on the Transitional Provisions did not touch those cardinal laws. Ditto with the church registration. The power of the Parliament to certify or refuse to register churches is also in the cardinal law on churches, and so the Parliament has an independent legal ground for these actions apart from the Transitional Provisions. The Court said nothing about that either.
In short, nothing changes – not even the decisions made under the now-nullified parts of the Transitional Provisions because the most important elements have independent legal bases that the Court did not touch.
Practically speaking, then, this is a non-decision decision – though it is symbolically brave. This decision would have a real-world effect only if Fidesz decided it could not stand the heat it will get by putting the toxic pieces of the Transitional Provisions directly into the constitution itself. I can’t imagine that they would lose their nerve now.
And then, if the constitution is amended to include all of this toxic stuff, the question is: will the two iPad apps containing the new Hungarian constitution get updates or will they (and other published versions) be left in their original and pristine state? So far, none of the constitutional amendments has appeared in the official versions of the text – because the first amendment was the Transitional Provisions law, the second (the voter registration provision) was passed as an amendment to the Transitional Provisions and the third amendment on land ownership passed last week as an amendment to the Basic Law directly and it is too early to tell. . . .
. . . . which raises an interesting question. Almost all of the Constitutional Court’s decisions have been leaked to the government ahead of their publication. Could the Parliament have amended the constitution directly last week (as opposed to amending the Transitional Provisions, which is what they did before) because they already knew that the permanent parts of the Transitional Provisions would be declared unconstitutional this week? Hmmm . . .
I am going to be honest. I have very hard time to follow the whole constitution changes games. WHat is and what is out, what can be put back by simply moving it into a different “chapter”. It is disgraceful even for a Parent Council to go through that many changes in their by-law in two years, let alone for a government. Especially for this government, since those who threw together this rag are supposed to be legally educated man and women. If you ever wonder about the crises of Hungarian education, you do not have to look any further than the New Constitution put together by “legal professionals” who are governing our poor country. Remind you that government so far also produced two plagiarizing doctors, a couple of open anti-semites, a man who believes that popping out babies regularly and staying home would be the solution for domestic violence, and other man that believes that the worth of Hungarians “people who have nothing are worth just that”, an other man who famously Tweeted “who the f*ck is Thomas Melia, this is all while they are in the government. You can just imagine what is going to happen when the ball is over.
I’m not holding my breath. As Éva said, Orbán will let them vote on a points list to make everything “constitutional” – in half an hour.
However, I appreciate the last twitches of the Constitutional Court. I hope the judges that voted for these decisions will be remembered after this whole spook is over – after many more years.
Dear Ms Scheppele,
Your continuous support for a democratic Hungary is heartening.
What is disappointing is that a country that until recently was a chief exporter of Democracy (Pres. Bush) is taking so little interest in the systematic deconstruction of democracy in a european country. I’m sure that it comes as no surprise that such a deconstruction can be a blueprint for a number of east european countries to the delight of that impatiently ‘resetting’ country called Russia. Ms Clinton has been notably absent in making any significant comments on the situation. What is going on? Why is there not a more significant interest on the part of the US Congress in what is surely the most demoralizing development in Europe since Hitler’s Germany?
You are, apparently, unaware of the second statement on Hungary made this year (the first being on 7/13/12) by Senator Ben Cardin, the Senate chair of the Helsinki Commission, on December 20th. If you would like to see the full text of his speech on the Senate floor, I would refer you to this article in Kanadai Magyar Hirlap “Canadian Hungarian Democratic Charter congratulates Senator Cardin for speaking out on racism in Hungary” found here: http://kanadaihirlap.com/2012/12/22/canadian-hungarian-democratic-charter-congratulates-senator-cardin-for-speaking-out-on-racism-in-hungary/
Don’t get me wrong,,,if I had my way, there would be banners flying from all the buildings about what is happening in Hungary, but the situation has not gone completely unnoticed here in the US. And, a big thank you should go to Professors Dr. Scheppele and Balogh for the huge part they play in the education and edification of those of us legally, historically, and especially, Magyar-ly challenged! 😉
The first part of my post should have been in quotation marks…it is from Petofi1.
HUNGARY’S NEED FOR GLOBAL SCRUTINY AND SUPPORT
I’ve just watched Professor Scheppele’s excellent lecture on the new Hungarian constitution at CEU nearly a year ago. Her insights were and continue to be astute — but one point on which she does not seem to be realistic is her insistence that the problem of undoing the profound damage being done by Fidesz can and and hence must be solved by Hungarians alone.
On the contrary, Hungary’s long history of red/white polarization and scape-goating has clearly culminated, in the latest pendulum swing, in the entrenchment of the white side’s ideology — a primitive, parochial, petty, punitive and somewhat paranoid world-view — in a quackish constitution that would require far more substantial and unified internal opposition to undo now than Hungary seems capable of mustering.
If global scrutiny and support on behalf of democracy and justice are not ratcheted up dramatically, Hungary will become ever more inextricably engulfed by the opportunistic tar-baby the majority made the mistake of embracing in 2010.
The glorious Hungarian dictators are insane.
The Horthys, Kadars, Orbans disregard their opposition, oppress their citizens, and lock out the foreign voices. But they all fall.
We have to support the students and the workers, who want to overthrow the regime.
We have to support the groups, which could establish a decent regime after Orban falls.
Simple elections will not dethrone Orban.
hmmmm I am not sure about the sanctions… Who would you think would be hit hard by it? THe sanctions in fact would allow the rich to get even richer, the right wing to gain more support (because of the Jewish conspiracy), Fidesz would ride the wave of proving that the whole world after all is truly against Hungary and Orban can be the only saviour. The poor Hungarians are suffering enough. Having said that, I am not sure what would be the answer.
Apart from the intriguing legal and political aspects of the decision and the whole modus operandi of a packed court it is also interesting to realize how the issue of the Basic Law reveals Fidesz’s affectionate love for kitsch and their lack of creativity. (These are of course interlinked.) The Basic Law is conceived as the expression of the authentic existence of the nation and as such it should also emanate beauty, it must be perfect, beacuse national existence is God-given and te natural state of affairs. That’s why it is “solid as granite” and as a consequence it shouldn’t be amended. (Note that the whole campaign with the table of the Basic Law, with the special editions, the exhibition could only work when the text is lasting, almost eternal – otherwise the autographed copies would soon turn to antiquarian ones – and the decision to accompany the text with supposedly artistic works reinforces its nature as a piece of art itself – transcendent in the sense as artistic reflections of the world reach beyond simple himan comprehension. And Orbán told to the Hungarian Academy of Arts how beuaty will bring about the triumph of Good over Evil.)
On the other hand we all know very well from the case of the US that even very stable constitutions deserve some alteration time after time – but the less we amend the more venerable it will become. One could presume and attempt to stress this venerability from the start with numbering the amendments , because this practice suggest that amending is an exceptional occurence – how would start numbering amendments if they would come in quick succession. Furthremore, the numbering is a clear imitation of US practice and as such it adds to te venerability of the Hungarian document, at least if one considers the mythology around the US document. But here, the authors of the constitution go even further with locating the amendments into a spearate document that is supposedly not part of the original – eternal, beautiful – text, only accompanies it for legal (and political) purpose .and do not affect how people – whose most essential qulities are supposedly reflceted in the original text – can see the Basic Law.
Nevertheless, the mania to keep the original text intact and lend it a kind of aesthetic quality, the imitation of the US prcatice of numbering in order to link the Hungarian to the US one – more precisely to the image of the US one as the best, oldest, the father of all constitutions etc. – are all part of the aesthetization effort of national existence, Let me here quote Modris Eksteins from Rites of Spring, when he oulinse the role of kitsch and beuty – and the beuatiful lie – in nazism (p. 304.), not claiming that Orbán would be a nazi, or fascist, just to show the importance of kitsch in creating mass delusion:
“The beutiful lie is, however, the essence of kitsch. Kitsch is a form of make-belive, a form of deception. It is an alternative to daily reality that woul otherwise be a spiritual vacuum. It represents “fun” and “exciteent”, energy and spectacle, and above all “beuty”. Kitsch replaces ethics with aestethics. […] The Third Reich was the creation of “kitsch men”, people who confused the relationship between life and art, reality and myth, and who regarded the goal fo existence as mere affirmation, devoid of criticism, difficulty, insight. Their sensibility was rooted in superficiality, falsity, plagiaris and forgery.”
Apart from the intriguing legal and political aspects of the decisio and the whole modus operandi of a packed court it is also interesting to realize how the issue of the Basic Law reveals Fidesz’s affectionate love for kitsch and their lack of creativity. (These are of course interlinked.) The Basic Law is conceived as the expression of the authentic existence of the nation and as such it should also emanate beauty, it must be perfect, beacuse national existence is God-given and te natural state of affairs. That’s why it is “solid as granite” and as a consequence it shouldn’t be amended. (Note that the whole campaign with the table of the Basic Law, with the special editions, the exhibition could only work when the text is lasting, almost eternal – otherwise the autographed copies would soon turn to antiquarian ones – and the decision to accompany the text with supposedly artistic works reinforces its nature as a piece of art itself – transcendent in the sense as artistic reflections of the world reach beyond simple himan comprehension. And Orbán told to the Hungarian Academy of Arts how beuaty will bring about the triumph of Good over Evil.)
On the other hand we all know very well from the case of the US that even very stable constitutions deserve some alteration time after time – but the less we amend the more venerable it will become. One could presume and attempt to stress this venerability from the start with numbering the amendments , because this practice suggest that amending is an exceptional occurence – how would start numbering amendments if they would come in quick succession. Furthremore, the numbering is a clear imitation of US practice and as such it adds to te venerability of the Hungarian document, at least if one considers the mythology around the US document. But here, the authors of the constitution go even further with locating the amendments into a spearate document that is supposedly not part of the original – eternal, beautiful – text, only accompanies it for legal (and political) purpose .and do not affect how people – whose most essential qulities are supposedly reflceted in the original text – can see the Basic Law.
Nevertheless, the mania to keep the original text intact and lend it a kind of aesthetic quality, the imitation of the US prcatice of numbering in order to link the Hungarian to the US one – more precisely to the image of the US one as the best, oldest, the father of all constitutions etc. – are all part of the aesthetization effort of national existence, Let me here quote Modris Eksteins from Rites of Spring, when he oulinse the role of kitsch and beuty – and the beuatiful lie – in nazism (p. 304.), not claiming that Orbán would be a nazi, or fascist, just to show the importance of kitsch in creating mass delusion:
“The beutiful lie is, however, the essence of kitsch. Kitsch is a form of make-belive, a form of deception. It is an alternative to daily reality that woul otherwise be a spiritual vacuum. It represents “fun” and “exciteent”, energy and spectacle, and above all “beuty”. Kitsch replaces ethics with aestethics. […] The Third Reich was the creation of “kitsch men”, people who confused the relationship between life and art, reality and myth, and who regarded the goal fo existence as mere affirmation, devoid of criticism, difficulty, insight. Their sensibility was rooted in superficiality, falsity, plagiaris and forgery.”
Apart from the intriguing legal and political aspects of the decisio and the whole modus operandi of a packed court it is also interesting to realize how the issue of the Basic Law reveals Fidesz’s affectionate love for kitsch and their lack of creativity. (These are of course interlinked.) The Basic Law is conceived as the expression of the authentic existence of the nation and as such it should also emanate beauty, it must be perfect, beacuse national existence is God-given and te natural state of affairs. That’s why it is “solid as granite” and as a consequence it shouldn’t be amended. (Note that the whole campaign with the table of the Basic Law, with the special editions, the exhibition could only work when the text is lasting, almost eternal – otherwise the autographed copies would soon turn to antiquarian ones – and the decision to accompany the text with supposedly artistic works reinforces its nature as a piece of art itself – transcendent in the sense as artistic reflections of the world reach beyond simple himan comprehension. And Orbán told to the Hungarian Academy of Arts how beuaty will bring about the triumph of Good over Evil.)
On the other hand we all know very well from the case of the US that even very stable constitutions deserve some alteration time after time – but the less we amend the more venerable it will become. One could presume and attempt to stress this venerability from the start with numbering the amendments , because this practice suggest that amending is an exceptional occurence – how would start numbering amendments if they would come in quick succession. Furthremore, the numbering is a clear imitation of US practice and as such it adds to te venerability of the Hungarian document, at least if one considers the mythology around the US document. But here, the authors of the constitution go even further with locating the amendments into a spearate document that is supposedly not part of the original – eternal, beautiful – text, only accompanies it for legal (and political) purpose .and do not affect how people – whose most essential qulities are supposedly reflceted in the original text – can see the Basic Law.
Nevertheless, the mania to keep the original text intact and lend it a kind of aesthetic quality, the imitation of the US practice of numbering in order to link the Hungarian to the US one – more precisely to the image of the US one as the best, oldest, the father of all constitutions etc. – are all part of the aesthetization effort of national existence, Let me here quote Modris Eksteins from Rites of Spring, when he oulinse the role of kitsch and beuty – and the beuatiful lie – in nazism (p. 304.), not claiming that Orbán would be a nazi, or fascist, just to show the importance of kitsch in creating mass delusion:
“The beutiful lie is, however, the essence of kitsch. Kitsch is a form of make-belive, a form of deception. It is an alternative to daily reality that woul otherwise be a spiritual vacuum. It represents “fun” and “exciteent”, energy and spectacle, and above all “beuty”. Kitsch replaces ethics with aestethics. […] The Third Reich was the creation of “kitsch men”, people who confused the relationship between life and art, reality and myth, and who regarded the goal fo existence as mere affirmation, devoid of criticism, difficulty, insight. Their sensibility was rooted in superficiality, falsity, plagiaris and forgery.”
For all those who hope to get foreign support: only Hungarians living in Hungary can change Hungary.
The US etc. at most can lend some moral support in borderline cases (as someone mentioned earlier if for example there would be a debate as to whether a new constitution was formally legal or not, and therefore legitimate or not).
The opposition should learn to work together and organize and be strategic, however hard and painful that learning curve will be.
Orban did it, though partly based on Republican know-how and we see the result. In that respect he was successful. There is no other way for the opposition than to do the same (in a more, though pragmatically, democratic way way), otherwise it will have the fate, and that is not my idea either, of the Italian left.
To be honest, I agree with those who don’t or can’t follow the situation with the Basic Law. I believe that it doesn’t matter to much, it will be replaced in the coming years, even it’s actual existence confuses everyone who ever studied constitutional law.
The Basic Law will forever symbolize incompetence, insecurity (whether someones property is taken away in a second, seen last time with the slot machines, which otherwise could have been a great idea), general crisis, corruption and arrogance of power. Perhaps the opposition should be more savvier in trying to associate these to the Basic Law if it wanted to repeal it one day, but given the regime the repeal will be all but necessity in order to govern.
Completely OT but funny (in a way …):
I’ve described before but there was no reaction here. Someone edited into the English wiki on 12/12/12 that Horthy’s wife was from a Jewish family ?????
Now some crazy is posting it all over politics.hu and maybe elsewhere too.
http://en.wikipedia.org/wiki/Magdolna_Purgly
From the atrocious grammar and spelling I presume that it was a Hungarian – surely no native English speaker …
“Máté Szabó as the sole ombudsman appointed by the current government has been a pleasant surprise.”
In reality, he was elected by the previous Parliament by consensus, serving since September 2007. Fidesz made a mistake not to remove him last year, but his term expires next year in any case.
http://www.obh.hu/allam/eng/cv.htm
To Ms KKA, Senator Cardin’s statement was published on Hungarian Spectrum on December 21.
Indeed, Some1 put it well. An incompetent bunch, a terrible product of the Hungarian education system. I’m not saying that the majority of Hungarians are poorly educated who cheated on their exams or whose professors turned a blind eye to plagiarism. But those with little moral fiber took advantage of the weaknesses of the system. And these guys’ moral fiber is simply non-existent. Their knowledge of the law is exhausted by twisting it around to produce results advantageous to themselves.
Wolfi, I took notice and I’m going to write to some of my historian friends to do something about it. I also saw a Hungarian Wikipedia article about Jusztinián Serédi, archbishop of Esztergom (1927-1945). The editors remarked that it needs a historian to look at it. I agree. The picture there is hugely slanted. I don’t know anyone who studied Serédi’s career but I will certainly ask someone whether they could suggest someone to set things straight.
Sorry, I was sloppy. Fidesz got rid of all others and I suspected at the time that he was left in his position because he was a Fidesz supporter. Perhaps what misled Viktor Orbán and his crew was that Szabó quarreled with the other ombudsmen and kept repeating that only one ombudsman is necessary and clearly he was thinking of himself. The relationship between Szabó and the others were so bad that although they were all housed in the same building they refused to talk to each other.
Oh no, not for a moment I would want civil war, and honestly I doubt that with a civil war Hungary could remain member of the EU (having said that, look at Greece). THe only civil actions I would support and suggests are the demonstrations and civil disobedience. Of course I understand that it there is fine line between the peaceful manner of these things and civil war, especially as there are always provocateurs in any actions on either side.
It was posted on this blog, and Eva already replied. Of course people will quote it, just like Kovach supported all of his ill conceived solutions, and “facts” by wikipedia. Surely it is hard to track down the results of a wondering and often disturbed minds of individuals on the Internet.
London Calling!
Kim Lane Scheppele: “……………….. The Court was brave to do so………..”
I think not.
They were all aware that the constitutional court is a minor irritation to Orban. A just “going-through-the-process” ritual.
They all know that Orban will achieve his ends through other means.
Some would even say that it ‘legitimises’ his actions since they have been through the process – and I bet that when Orban meets them there will be nods and winks as to what each ‘had to do’ – but it wasn’t too disruptive – “ha, ha ha!”
So not bravery – just token resistance.
I also take issue that the sacred text – which should be hand illuminated on parchment – has a ‘contingency’ clause!
That if National debt is greater that 50% of GDP then the CC can only ‘review’ certain actions – and presumably intervene if it is less!
We are talking about people’s ‘rights’ and fundamental principles! – And they are contingent on how much the State is in ‘hock’?
These rights and principles should be set in ‘granite’ as someone has suggested – they don’t bend to the wind.
So this ‘Basic Law’ is not precious enough to have a separate table even – or any reverence whatsoever.
It’s a spiv’s charter.
Written thoughtlessly on an Ipad on an insignificant train journey by a supposed ‘constitutional legal expert’. And without any consensus review by all stakeholders.
As I said – a mess of pottage – that deserves no reverence whatsoever.
Better, perhaps, not to have one at all.
Regards
Charlie
“For all those who hope to get foreign support: only Hungarians living in Hungary can change Hungary.”
100% correct but for those of us non-Hungarians who reside in and deeply love the place and its people, the level of apathy presently existing is very troubling. Ms oneill and so many others in our friend and family circle won’t be registering for the next election. I don’t blame them at all- never mind the very real fear what the Orbanists will do with the data but alsp to do so is to give legitimacy to the illegitimate regime which by hook or by crook will continue to govern Hungary post April 2014. But also Orban has gauged perfectly both the instrinsic weaknesses and faultlines within present-day Hungarian society and the fact that so many groups raised the white flag before the fight had even begun means that to take on Fidesz now is to take them on 2 years too late.
Yeah, sure the judges take the complaint about their forced retirement to the EC but where were they when the earlier multiple rape of the country’s legal and judicial independence was taking place? Hiding under a stone, hoping that the Dear Leader wouldn’t notice them. Yes, of course, certain students are now complaining about their subsidised studies being removed but where were the student groups when Orban attempted to shut down the free media? Again, crawling under that stone with the judges. Don’t punish me personally and I won’t whinge while you remove all the normal elements of a democratic country or if you want to be more poetic:
When the Orban came for the liberals,
I remained silent;
I was not a liberals.
When he locked up the homeless,
I remained silent;
I was not a social democrat.
When le came for the unemployed,
I did not speak out;
I was not a unemployed.
When he came for the judges, the journalists, the students, the cancer patients etc etc
It was already too late….
When he came for me,
there was no one left to speak out
As a non-Hungarian, the main thing I wish for the New Year is that the apathetic get off their knees and FFS start fighting back.
Thanks, oneill, for that reminder!
You know who wrote that “poem” ? http://en.wikipedia.org/wiki/First_they_came…
Niemöller was a German Nationalist (at first even a supporter of the Nazis!) but turned later into a real pacifist:
http://en.wikipedia.org/wiki/Martin_Niem%C3%B6ller
A really interesting person.
My last comment is in moderation (I used the N*z* word), so here is the original of oneill’s quote:
First they came for the communists,
and I didn’t speak out because I wasn’t a communist.
Then they came for the socialists,
and I didn’t speak out because I wasn’t a socialist.
Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.
Then they came for the jews,
and I didn’t speak out because I wasn’t a Jew.
Then they came for the catholics,
and I didn’t speak out because I wasn’t a catholic.
Then they came for me,
and there was no one left to speak for me.
http://en.wikipedia.org/wiki/First_they_came…
Wolfi, I don’t see you comment that is under moderation.
As a daily reader, I was aware of that…just thought maybe Petofi1 missed it. You, however, have never missed anything…that I am aware of. 🙂
Professor Scheppele’s comments are very interesting from an academic point of view and in a country of laws they may have practical implications. What I am afraid of is that those in power in Hungary today couldn’t care less about legal implications of their actions, if necessary they just rewrite the laws, including the “basic law”, to fit their goals.
I had an interesting conversation with someone in Hungary today. When I asked the person about the political climate there, the answer was something like this:” I am happy that these guys are in power and not my guys, because I can tolerate all this [corruption etc.] much more from those that I oppose than I could tolerate it from those that I supported.”
Exactly!
This constant writing and rewriting of laws is really outrageous! At first I couldn’t believe it – just the number: 200 laws in one year plus those many changes …
And the sheep in parliament nod and sign everything – probably neither having read it and if so not having understood anything!
@Eva: Seems my first comment has appeared – it’s the one with those two wiki references.
wolfi, I would never be so crass as to compare Fidesz to the nazis… however Niemoller’s quote about the dangers of sitting back and letting dictators do their work does have a resonance with what I personally see in Hungary today.
London Calling!
oneill! – are you advocating ‘Boycott’?
Sláinte
Charlie
“Oh no, not for a moment I would want civil war, and honestly I doubt that with a civil war Hungary could remain member of the EU (having said that, look at Greece). THe only civil actions I would support and suggests are the demonstrations and civil disobedience. Of course I understand that it there is fine line between the peaceful manner of these things and civil war, especially as there are always provocateurs in any actions on either side.”
A VERY fine line with Orbán in power. I have been advocating civil action/disobedience for the last two years, as regular readers will know – that was the only way to get rid of Orbán before he got too confident and powerful. Now it is too late.
But it is still the only option.
And we have seen from the events of 2006, etc how Orbán will react. What starts from the democratic side as legitimate, peaceful protests and refusals to participate, will be met by Orbán’s propaganda and his ‘brown shirts’. And before we know it the ensuing violence and vandalism will be blamed on the ‘troublemakers’.
From that point on it will degenerate into low level civil war.
I’m only too aware that that sounds ridiculous, but the key ingredient for a civil war is the person in power to refuse to step down, or even admit they are wrong. Look at the various countries involved in the Arab Spring – where the leader gave in and stepped down, there was a relatively peaceful change of power, but in those counties where the leader swore to fight to the death, there was inevitably full-scale civil war – with all the death and destruction and horror that that involves.
I can no more imagine civil war in Hungary than anyone else reading this, but if Orbán stays true to form and a non-democratic opposition begins, I’m afraid I see no other outcome.
That is a fantastic quote, thank you. It expresses, better than I could myself, my revulsion when I looked at that picture of Szent István supposedly “blessing” the new constitution – documented by Prof Balogh in a far-previous post. (My own interpretation of that piece of “art” was that István was actually trying to stab his sword right through the horrid document, under inspiration from one of the Harry Potter movies… 😉 ).
In a wider context, this is what I find as a non-Hungarian passionately interested in the place, language, history and culture. Everywhere I find interesting things worth celebrating – everywhere this revolting kitsch-paste is smeared all over it by Orbán and friends.
So that one thing that’s left untouched and really admirable is the wealth of merciless, rip-the-p*ss, subversive dark jokes I hear from Hungarians I know. The one success of Orbán’s “work-based economy” must be in the satire sector – do Hungarian political satirists ever find time to eat or sleep?
I’ve learnt so much from reading this blog: thanks to Prof Balogh (and Prof Scheppele) for the education!
“oneill! – are you advocating ‘Boycott’?”
The worst thing would be for the democratic opposition to bend over for the regime and attempt to get folk registered.
I think the democratic opposition shouldn’t play into Orban’s hands by fighting the election under his rules rather than those accepted norms in place everywhere else in the world. I am sure through a mixture of apathy and deliberate action on behalf of the regime the turnout will be a joke (20/30?).
When that happens then the time will be ripe and justified for the majority to bring down the whole rotten edifice down by peaceful civil resistance and extra/parliamentary action. If they can be bothered that is or if there is anybody under the age of 40 still left in the country or if there isn’t a good reality show on RTL that night. I won’t be holding my breathe, unfortunately.
I think anyone who wants to see “war” should stand in the first row or send their kids to distribute the flyers in the first row. Please, do not advocate any form of violence at the expense of other families’ loss. You want to go and fight, or send your kids to fight, go for it!
I understand that things can get out of hand but going on and predicting it, and telling others to do while we back you up from our computer is not different from Orban’s tactics. We just have to wait for the elections. I know what many of you are saying and I see it too, Orban rolls a barricade between democratic elections. Still, if that is the case people should go out and convince others. THey should go from house to house, make flyers, whatever it takes, but violence.
“Please, do not advocate any form of violence at the expense of other families’ loss.”
Did you miss the “peaceful” I placed in front of the “civil resistance”?
I come from a place where friends of my father were indeed murdered in the name of “politics” (or “religion” or “national identity” which amounts to the same thing anyway) so I am fully aware of the futility of violence to achieve poltical goals but thanks for the lecture anyway.
Peaceful civil reistance can take so many forms but the most effective is preventing the functioning of the state, where I can from that involved, for example, refusing to pay rent and rates to the local government but I am sure there are other methods it could be achieved in Hungray
Reblogged this on The Hagyó Case and commented:
“Article 29 also made waves when it was adopted because it sates that new taxes can be assessed in case the European Court fines Hungary because of the government’s actions that were not in line with European Union law.”
While I await the restart of the BKV trial for fresh hearing updates, I thought I might reblog this from Hungarian Spectrum. It’s a good read and an informative update on Hungarian government affairs.
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