Sunday, February 12, 2012

Kim Lane Scheppele explains what's wrong with the new Hungarian Consitution

Kim Lane Scheppele (Princeton University): Constitutional Nostalgia

With its two-thirds majority in the Parliament, Fidesz has changed the entire constitutional order to stamp out the remnants of communism.  In the preamble of its new constitution, the 1949 communist constitution is invalidated because it “was the basis for tyrannical rule.”  

But the invalidated constitution has not really vanished.  Instead, core elements of the 1949 constitution have reappeared in the new constitution, making the Fidesz constitution far more similar to the 1949 communist constitution it repudiated than to the 1989 post-communist constitution it replaced.

The 1949 communist constitution asserted that the National Assembly had the power to do virtually anything [Art 10(1)], without contradiction by any other state organ.  The communist Parliament could even change the constitution with a single two-thirds vote [Art. 15(3)], a majority that the single-party state always had.  The extreme power of the two-thirds rule had its origins in the 1949 constitution. 

The post-communist 1989 constitution added a number of institutional constraints on these previously unlimited powers.   The Constitutional Court, with its actio popularis jurisdiction, acted as if it were an upper chamber of the Parliament, reviewing almost all laws for their constitutionality and showing that, for the first time, another state body could check the work of the Parliament.  When the first two-thirds government was democratically elected in 1994, it restricted its own power by amending the constitution to require a four-fifths agreement to any process that would create a new constitution.   From 1989-2010, the Parliament lived under constraints built into the new constitution.   

In 2010, the Fidesz government dismantled these constraints.  The Parliament amended the constitution to remove the last remnants of the four-fifths rule, since the government claimed  that the principle of self-limitation contained in the 1995 constitutional amendment was no longer in effect.  In addition, the constitution was further changed to eliminate the jurisdiction of the Constitutional Court in budget and tax matters and to sharply curtail its capacity to engage in abstract review of laws.  These changes restored the communist state structure, making the Parliament virtually always supreme, particularly if one party held two-thirds of the seats. 

The parallel state structures of the communist and Fidesz constitutions are not the only element they share in common.   The communist constitution emphasized the duties of citizens as much as it emphasized their rights.  So does the Fidesz constitution.  And it does so with nearly the same philosophy.  While the 1949 constitution proclaimed, “Everyone according to his ability and to everyone according to his work” [Art. 8(4)], the new constitution says, “Every person shall be responsible for his or herself, and shall be obliged to contribute to the performance of state and community tasks to the best of his or her abilities and potential” [Art. O].  Even though the Fidesz constitution includes a long list of individual rights which the 1949 constitution did not, it is unclear what those rights can mean if the state can command virtually anything from its citizens.   By contrast, the 1989 constitution emphasized that the rights of all citizens could not be made contingent on the performance of specified duties. 

Both the communist and the Fidesz constitutions have extensive preambles that lay out the ideology of the constitution.   While the communist preamble emphasized the communist victory over fascism and the central role of the working class, the Fidesz preamble offers a deeply nationalist version of Hungarian history.  Both preambles have the goal of imbuing the text with the lessons of history.   They are opposite ideologies, of course, but both ideological preambles differ from the one in the 1989 constitution, amended in 1990, which says simply that the constitution seeks to establish “a multi-party system, parliamentary democracy and a social market economy.”  

In the communist constitution, power emerged from the vanguard leading the people [Art. 56(2)], which is to say from the communist party.  As a result, the Parliament in the communist constitution became in practice a mere rubber stamp on the party’s program.   Sensitive to this past, the 1989 constitution built in unusually strong guarantees that the state could no longer be run by a party.   Even beyond the preamble, the 1989 constitution said bluntly, “Political parties may not exercise public power directly. Accordingly, no single party may exercise exclusive control of a government body. In the interest of ensuring the separation of political parties and public power, the law shall determine those functions and public offices which may not be held by party members or officers” [Art. 3(3)].  In the Fidesz constitution, however, only the first sentence remains.   Apparently it is no longer necessary to ensure that party and state are completely disentangled.

Over and over again during these past 20 months, the Parliament has dutifully used the absolute power of its 2/3rds majority to rewrite the constitutional order.   The laws that the Parliament enacts may have been introduced as private member’s bills, but they are part of a one-party revolutionary program, as one can see from parliamentary voting patterns and from the statements of party leadership.   Virtually no MP ever dissents from what the party asks him, even if the MP has not been given time to read or debate what he is asked to approve.

Last week when I was in Budapest, Zoltán Kovács, state secretary for government communication, invited me to his office to talk about my criticisms of the new constitution.  When asked what justifies Fidesz’s root-and-branch revision of Hungary’s constitution, he said that Fidesz has the power of two-thirds and therefore does not have to consult opposition parties or even the voters of the country any further.    Nothing can constrain this two-thirds mandate, he says.  

If this absolute power of two-thirds – deployed by a vanguard party in the name of a people it does not feel the need to consult – sounds familiar, then Hungarians might look back to the 1949 constitution to see what lessons it has for the future.

One of the comments nails it:

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