Assessing the New Constitution Draft Document (event archive)

December 7, 2010 by  

Dr Péter Hack, professor of law at ELTE university spoke at the fourth Constitution of Liberty event and lead a discussion on the draft document of the new constitution published by the Parliament’s ad hoc drafting committee on December 1, 2010. The event assessed the main prospective changes in the text of the Constitution and the technical aspects of the drafting process. (Scroll down for an extended summary of this topic.)

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Assessing the Parliamentary Draft of the Constitution

Roughly half a year has passed since the Fidesz-KDNP alliance won the parliamentary elections and Prime Minister Orbán announced that Hungary, the only country not to formally adopt a new Constitution during the system change will now start a new chapter in its constitutional history.

On December 1, 2010 the ad hoc Parliamentary Draft Committee, whose mandate it is to draft the new constitution, has published its first Working Draft which outlines some of the basic tenets of the new basic law. The committee, from which opposition parties MSZP and LMP opted out, has spent 19 hours and 20 minutes in session. It is therefore fair to say that that the current 16 page long concept mirrors the governing majority’s constitutional ideas, and more specifically those of László Salamon, the Christian Democratic head of the committee. Curiously, the Draft in many places is out of sync with the 6 working groups’ proposals. For example, the idea of re-instating the pre-war Curia which appears in the final draft is not mentioned by any of the previous recommendations of the working groups.

Many forget that in 1994, the Socialist-Liberal coalition did indeed have the necessary supermajority to amend the constitution. The 1994 election campaign featured a series of public debates and specific propositions on how to amend the ‘temporary’ constitution of Hungary in order to legally and symbolically finish the system change. The MSZP-SZDSZ governing majority did not in the end initiate a constitutional redrafting. One reason is that the coalition was too weak to push for a major constitutional overhaul, or that it was more important to maintain constitutional continuity and protect the fresh constitution by a hands-off political mentality.

2010 was different. There was little if any specific reference during Fidesz’ election campaign about the soon-to-be adopted new constitution and most of the opposition parties criticize the process instead of the actual content, the best way to evaluate the Draft is to hold it up against existing European standards of constitutionality, to compare it to our current constitution and see whether the Draft does a better job in defending our fundamental rights and giving us a better frame of self-government.

The current constitution, adopted before the first free elections were held in Hungary, has some of the most robust institutions to defend civil liberties and serve as a check on government. This was to counterbalance the dwindling state party’s power no matter what the elections would bring. Hence the exhaustive Bill of Rights, a State Audit Office, a strong and independent National Bank, the institution of the Ombudsman, and formally one of the strongest – if not the strongest – Constitutional Court was established. Because of the tyranny of the state party, there was a similar drive to create a strong system of checked central power in the 1980’s Hungary as there was during the framing of the American Constitution based on the historical experience of the abuse of power of the British Crown.

Although many doors are still open, the Draft certainly answers at least some of the open-ended questions. For one, Hungary will not be a Kingdom – despite the dear hopes of a fringe minority. It will also not adopt a presidential or semi-presidential system, towards which Hungary has been drifting in the past decade and many believed would have elevated Prime Minister Orbán to an even more powerful position. Hungary will most probably remain a parliamentary system, with a prime minister resembling Germany’s chancellor.

One of the strongest elements of checks and balances is the large number of laws (seventy) which require a strong super majority to be amended. These ‘two-thirds laws’ which require   the consensus of the governing parties and the opposition have guarded against the tyranny of the majority faction. On the other hand, since they regulate some of the most essential aspects of democracy (e.g. the process of adopting a law, the workings of the Constitutional Court, rules regarding public television and the media supervisory board, citizenship law), they represent major roadblocks when it comes to modernizing democratic institutions. Some hope that the new constitution will specify fewer of these ‘two-thirds laws’, but the Draft concept actually allows for at least as many if not more. The reasoning goes that when the current Constitution was drafted in the 1980s, the opposition had a good reason to protect certain laws with a supermajority, in a mature democracy they are only an unnecessary burden which obstruct effective governance.

The Constitutional Court, which has been the single most important guarantor of Hungary’s smooth transition to democracy, has been the most prestigious and trusted democratic institution. With the power to veto bills and abolish laws on grounds of unconstitutionality and the unusually wide range of petitioners (virtually anybody) can address the Court with constitutional complaints. Moreover the Court has had one of the broadest domains of competence in the world. This might now change. The Draft leaves open the question of the Constitutional Court’s authority by saying that it can decide on the appropriate legal measures to be taken by Parliament. Hardly a definition of the strong, primus inter pares type of court that Hungary has today.

The Bill of Rights, quite an extensive list including many third generation rights, was a major achievement in an era when the realization of true freedom of association and free speech was still questioned by many. The Draft defines rights to which duties are always attached. Some say that this is a legal residue of Socialist-Marxist legal theory which understood rights and duties as inseparable; others argue that this is a clearly Catholic concept, directly traceable to papal encyclicals (most notably by Pope Pius XI and Pope John XXII). Inarguably, the Draft introduces two concepts which do not appear in the current constitution: life starting at the moment of conception and marriage being a union between a man and a woman. Although each one of these new elements have received ample criticism from liberals now in opposition that Hungary is thus taking a step back in its democratic evolution, two things must be clarified. First, the concept of marriage was clearly defined by the Constitutional Court’s interpretations as a union between a man and a woman. Second, the constitutional protection of life – no matter where it starts – does not mean an outright ban on abortion. Liberals and human rights groups have been quick to label these two changes as archaic, retrograde, or anti-democratic, but in their current form they would have little policy implications.

The constitution, however, could have a serious policy impact were it to include a constitutional cap on government spending. Since public debt severely limits the options of future generations, this would be a guarantee that government spending cannot continue to spiral out of control and the national budget would need to be balanced. It would also be much healthier if fiscal self-restraint came from within the country and not from outside, e.g. from the European Union in the form of Maastricht criteria or IMF loan conditions. If the Hungarian constitution adopted such a legally binding financial self-restraint, it would truly have a positive impact in the region and maybe on some bigger EU countries as well.

The amendment and ratification process will very much define the legitimacy, longevity, and integrity of the new Constitution. At the same time, it is also one of the fuzziest parts in the current Constitution. It specifies that a two-thirds supermajority is needed for an amendment but it fails to mention how a new constitution can be adopted, despite the fact that the preamble specifically refers to its temporary nature. It has been an oft-cited criticism of the current—some would argue, patchwork—constitution that it has been amended too many times and it is too easy to change. As opposed to the U.S. constitution which has been amended 27 times in the past two hundred years, the Hungarian constitution was amended more than 30 times in the past twenty years. The Draft would introduce a Dutch-type ‘double two-thirds’ rule, which would require a super-majority vote of two consecutive Parliaments to amend the Constitution. This would ensure that passing swings in public opinion and strong but temporary governing coalitions cannot enforce their ideas on the minority and will also be unable to make long-lasting changes in short periods of time. This stabilizing element, however, would have made impossible some necessary changes required for our timely NATO or EU accession as well as some amendments required by the Constitutional Court. On the other hand, it would prevent the now dominant practice of ‘amendment haste’: in the past eight months, the parliamentary majority amended the Constitution eight times which seriously weakens the Constitution’s integrity. It is hard to argue that constitutionalism is strengthened by changing the basic rules of the game in every session of Parliament. If constitutionalism means anything, it means that we have clear structural rules of government that are not dependent on the political climate.

The ratification of the new Constitution will be one of the most important questions to decide. It would be a serious mistake if the Fidesz-KDNP majority would be willing to write a new constitution and adopt it by a two thirds majority but on the other hand would require a stronger mandate to amend it. It would indeed be strange to have a Constitution that is easier to rewrite than to modify. Not exactly an incentive to abide by the rules. The idea of a Constitutional Convention therefore merits more attention. It would not only lend the necessary national approval to the new constitution but it would also create a special legal-political environment which lends legitimacy to the document.

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