democratic constitution

Conservative critics of the Orbán regime and its “new” constitution

First and foremost I would like give a link to Professor Kim Scheppele’s latest article, “The Fog of Amendment,”  about the latest changes to the Hungarian constitution adopted less than a year ago. She who worked at the Hungarian Constitutional Court during its most heroic period, right after the change of regime in the early 1990s, is most worried about the castration of the court.

László Sólyom, former president and chief justice who was one of the authors of the constitution the Fidesz government replaced with its own, decries the death of a democratic constitution and its replacement with one in which the separation of powers is destroyed with the introduction of the so-called “fourth amendment.” Sólyom argues, correctly I believe, that the amendments, fifteen pages in length, fundamentally change the spirit of the constitution.

I would like to spend a little time on Sólyom’s arguments. I think I should mention that I considered Sólyom a disaster as a president. He didn’t even try to hide his political sympathies; he openly favored the man, Viktor Orbán, and the party that was responsible for his election. Sólyom would gladly have continued as head of state, but the new prime minister had other ideas. Sólyom was a pain in the neck as far as the socialist-liberal governments were concerned, and there was every likelihood that he would continue in the same vein and find almost every new piece of legislation unconstitutional. The members of the court naturally obliged. After all, the former chief justice knew the constitution he himself helped write. And, naturally, this was the last thing Viktor Orbán wanted. So instead came Pál Schmitt. He had no objection to anything. He most likely didn’t even read the documents. Too bad for Orbán that his faithful servant in the Sándor palota (the office of the president in the Castle District) was found to have plagiarized and had to step down.

Sólyom points out that both the constitution of 1990 and even the one that replaced it were based on the principle of a separation of powers. In that system, the constitutional court ensures the sanctity of the basic laws while the parliament represents the public will. Each is the highest organ within its own domain. By contrast, in the communist system the parliament was the single “power” over the affairs of state. “Unrestricted parliamentary powers in Hungary as well as in Central Europe have never been democratic and bring back very unpleasant memories,” writes Sólyom.

The move to place parliament and through it the government over and above the constitutional court did not start with the adoption of these latest amendments. From the moment Viktor Orbán and Fidesz won the elections it was evident that the power of parliament was going to be enhanced at the expense of the judiciary and the constitutional court. They began to use the constitution as an instrument of political power. Between June 2010 and January 1, 2012 they changed the old constitution thirteen times, affecting twenty-six paragraphs. Between January 1 and March 11, 2013 they changed their own new constitution four times. This time they practically created a new constitution. According to Sólyom, the “Basic Laws” enacted by parliament in April 2011 could still be considered to be a democratic constitution. With these new amendments, however, Hungary has ceased to be a democracy because from now on the parliament has the last word as far as constitutionality is concerned.

We arrived at this sorry state of affairs as a result of the government’s decision to ignore the rulings of the constitutional court that found several of the so-called “temporary measures” unconstitutional. Yesterday the Fidesz faithful in parliament voted to incorporate all those unconstitutional measures into the main body of the constitution. And at the same time it forbade the constitutional court from examining the constitutionality of these provisions.

Gábor Török, not exactly a liberal commentator, pointed out that perhaps the most worrisome passage in this newly amended constitution is Article 2(3), which reads as follows:

“(3) The Speaker of the House shall sign the adopted Fundamental Law or the adopted
amendment thereof within five days and shall send it to the President of the Republic. The
President of the Republic shall sign the Fundamental Law or the amendment thereof sent to
him within five days of receipt and shall order its publication in the Official Gazette. If the
President of the Republic finds a departure from any procedural requirement laid down in the
Fundamental Law with respect to adoption of the Fundamental Law or any amendment thereof, the President of the Republic refers such departure to the Constitutional Court for a revision. Should the revision by the Constitutional Court not verify the departure from the requirements, the President of the Republic shall immediately sign the Fundamental Law or the
amendment thereof, and shall order its publication in the Official Gazette.”

From here on the government through its two-thirds majority in parliament can do anything its heart desires. There is no control over the laws they put into the constitution. Because, let’s not fool ourselves, unless Orbán is stopped ever new amendments will enable him to do whatever he wants.

This latest rape of Hungarian democracy is too much even for some so-called conservative writers. Like Bálint Ablonczy of Heti Válasz who complains that the Orbán government has lost its sense of reality. He calls the constitution a “legal lasagna” and says that “it is not the least bit consoling that there is no horse meat in it.” Ablonczy argues that “those Fidesz politicians who came up with this scandalous procedure not only cause damage to themselves but  further tear into the already unstitched fabric of our common affairs.” Ablonczy finds it incomprehensible that the Orbán government is ready ignore the danger signs coming from the Council of Europe, the European Commission, the American administration, and the German foreign ministry. “It is time to think a little bit.” Surely, the editorial board of Heti Válasz had to approve this article. Maybe they want to send a message to Viktor Orbán.

Even more outspoken criticism came from Dávid Lakner, a member of Mandiner, an online site for young conservatives. They also seem to be waking up to the fact that the ideology of the Orbán government has nothing to do with conservatism in the classical sense. This is an undemocratic, authoritarian system heading toward full fledged dictatorship.

The German conservative paper Die Welt described Orbán, after the enactment of the “new” constitution, as a man “who no longer trusts the free play of democratic forces and instead relies on unfettered power…. Orbán isn’t protecting his country. He is leading it into a dangerous rigidity. But things that are too brittle break all too easily.”

Finally, Barbara Stamm, president of the Bavarian parliament, cancelled her scheduled meeting with László Kövér. This must be a real blow because if Viktor Orbán’s regime had one steadfast supporter, it was Bavaria’s governing party, the Christian Social Union (CSU). Viktor Orbán loved visiting Munich where he was always welcome. And Bavarian politicians came to Budapest to sing the praises of the Orbán government. No longer, it seems.