New Hungarian constitution? To follow the Polish model?

Viktor Orbán is dissatisfied with the current constitution. He is not the only one. Many people have suggested in the last twenty years that it would be time to draft a new one. What Hungary has now is a reworking of the Stalinist constitution of 1949. Although the changes introduced in 1989 and afterwards were extensive, many argue that the text is now a haphazard document, not a coherent whole.

There are a number of passages that promise things that simply cannot be guaranteed as rights. For example §18 states that "the Hungarian Republic recognizes and ensures everybody's right to a healthy environment." Or §70(1) declares that "on the territory of the Hungarian Republic everybody has the right to work and guarantees free choice of trade and profession." The first promise cannot be guaranteed in a capitalist system and the second assertion is unnecessary in the constitution of a democratic state. Surely, this passage was inserted because in the old socialist system at one point the authorities simply assigned people to different jobs without their consent. Another oddity is §70/D(1): "People living on the territory of the Hungarian Republic have the right to the best possible psychological and physical health." Indeed, it would be wonderful if a constitution could take care of our ailments! How is it possible to effect such a happy state of psychological and physical health? §70/D(2) takes care of that: by providing institutions of healthcare, by organizing the medical care of the population, "ensuring physical activity in addition to the protection of the environment." If only it were that simple.

Other passages hark back to the socialist system and have no place in a modern democratic constitution. For example, §9(1) announces proudly that "in the economy of Hungary public and private property have equal protection." Or §12(1): "The state assists co-operatives based on voluntary union and recognizes their independence." Seems a bit archaic, doesn't it?

There are other kinds of problems as well. The most often mentioned is §2(2) which goes as follows: "In the Hungarian Republic all power belongs to the people which is exercised through its elected members of parliament and directly." The mixing of these two styles of governance can lead to all sorts of trouble, and a lot of constitutional legal experts would like to get rid of this reference to exercising political power directly.

During the Horn government there was a serious attempt at drafting a new constitution. The work was overseen by the minister of justice of the time, Pál Vastagh. Constitutional experts worked fast and furiously, and by 1998 the text was presented to parliament. Given the large majority of socialist-liberal members, the new constitution should have sailed through. But it didn't. If I remember correctly, even Gyula Horn voted against its acceptance. Again, I'm a bit foggy on the details but I do remember a huge fight over the phrase "szociális piacgazdaság."

The current constitution's English translation available on the internet says the following in its preamble: "In order to facilitate peaceful political transition into a constitutional state ready to realize a multiparty system, introduce parliamentary democracy, and promote conversion to a socially alert market economy, Parliament submits the following text as the authorized version – until the ratification of its replacement – of the Constitution of Hungary." As one can see even from the English translation, those who were confronted with the phrase "social market economy" didn't quite know what to do with it. They rendered it as "socially alert market economy" which to my mind means nothing. Perhaps "socially sensitive" would have been better. Whatever the translation, the phrase was omitted from the draft constitution. The socialists wanted to retain it in order to soften the reality that Hungary's economy is based on capitalism. By the way, the word "capitalism" is shunned by politicians even today. They always speak of a market economy. I guess they think this sounds better. However, the majority of the Hungarians still haven't fully embraced the current economic system, whatever its name.

As you can see, I'm not at all against drafting a decent constitution, but I find rather interesting that it is Viktor Orbán who is now the leading champion of this idea. Because between 1998 and 2002 absolutely no attempt was made to tackle the problem of the "communist" constitution. Why the sudden urge now? Why does Orbán suddenly denigrate the constitution? He was quite specific: "he has no respect" for the constitution. Whatever the shortcomings of this constitution, it is the basic law of the land that governs Hungarian democracy, and therefore a statement like that is provocative to say the least. According to analysts this is no more than a gesture to the far right that also has no respect for the constitution and envisages an entirely new world order based on their constitutional ideas that have nothing to do with parliamentary democracy.

Interestingly enough Orbán's objections are not directed against the kinds of serious shortcomings of the current constitution that I sketched above. He is missing "the soul of the nation" in "this heap of technical data." He would like to see a preamble very much like that of the Polish Constitution. He wants to see elevated language. The preamble of the U.S. Constitution is certainly not written in an elevated style. It is a utilitarian account of what necessitated the acceptance of the Constitution: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." The preamble of the German Constitution is short and to the point: "Conscious of their responsibility before God and Men, Animated by the resolve to serve world peace as an equal partner in a united Europe, the German people have adopted, by virtue of their constituent power, this Basic Law."

Ah, but the Polish Constitution, the model, it seems, close to Viktor Orbán 's heart, is something else:

* * *

THE CONSTITUTION OF THE REPUBLIC OF POLAND
OF 2nd APRIL, 1997

As published in Dziennik Ustaw No. 78, item 483

Having regard for the existence and future of our Homeland,

Which recovered, in 1989, the possibility of a sovereign and democratic determination of its fate,

We, the Polish Nation – all citizens of the Republic,

Both those who believe in God as the source of truth, justice, good and beauty,

As well as those not sharing such faith but respecting those universal values as arising from other sources,

Equal in rights and obligations towards the common good – Poland,

Beholden to our ancestors for their labours, their struggle for independence achieved at great sacrifice, for our culture rooted in the Christian heritage of the Nation and in universal human values,

Recalling the best traditions of the First and the Second Republic,

Obliged to bequeath to future generations all that is valuable from our over one thousand years' heritage,

Bound in community with our compatriots dispersed throughout the world,

Aware of the need for cooperation with all countries for the good of the Human Family,

Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland,

Desiring to guarantee the rights of the citizens for all time, and to ensure diligence and efficiency in the work of public bodies,

Recognizing our responsibility before God or our own consciences,

Hereby establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom and justice, cooperation between the public powers, social dialogue as well as on the principle of subsidiarity in the strengthening the powers of citizens and their communities.

We call upon all those who will apply this Constitution for the good of the Third Republic to do so paying respect to the inherent dignity of the person, his or her right to freedom, the obligation of solidarity with others, and respect for these principles as the unshakeable foundation of the Republic of Poland.

* * *

Of course, if Fidesz wins big and achieves a two-thirds majority Orbán can have his own preamble based on the Polish model. What Hungarians will think of it is another matter. Hungary is not Poland. In Hungary only about 15% of the population attend church services regularly. Moreover, in a country where at least on paper church and state are supposedly separate is it a good idea to mix religion with basic universal laws? I for one don't think so, and I would be surprised if the large majority of Hungarians would be too happy with a similar preamble to the new constitution.

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Pat
Guest

If Fidesz achieve a two thirds majority in the next General Election, specifically what powers do they have regarding changing the constitution? Can they make changes unilaterally without a referendum of the people? If so, I wonder will the opposition parties raise this as a issue in an effort to limit their losses?

icr
Guest
Elefante
Guest

Yeah. Poland may be a good example when it cames to govt expenditures but – as far as I know constitutnion from 1997 – it’s one of the most eclectic, vague and incoherrent constitution in Europe. An elaborate preamble is only a top of an iceberg.
Hellishly long – 235 articles plus final and transitional provisions.
There’re also oddities like ‘social market economy’ (art.20), senselessness institution of Commissioner for Children’s Rights (art.72), totally unclear art.13 about political parties, awkwardly small power of president of Republic in relation to the fact of direct election – etc.etc. Experts may write volumes about it…
I only wonder why the hell Orban decided to choose Polish constitution as the best pattern…

Sandor
Guest

Why be so picky?
What does it matter what religion it is as long as it serves to knock the “other” religions with it?
And what if he strayed from his anti-clerical past.
Just remember: the family that strays together stays together.
He has a veritable ecumenical family.

Mat
Guest
After the amendments in 1989 and 1990 the Hungarian constitution became a fully democratic one. Most of the provisions enshrined in eastern European constitutions were in fact (a part from provisions on “party leading role”, etc.) democratic in their formulation, the problem being their practical application. The author refers to “passages harking back to the socialist system” having “no place in a modern democratic constitution” such as the equal protection of public and private property. This is not true. It is a simple (liberal in fact) principle of equal treatment and non-discrimination. This passage is everything but “socialist”, as no prominence is given to the public property over the private. Public-private systems of property coexist in any modern state, and the equality of their status is a guarantee of the independence of public authorities from privileging one or the other. For instance, the Italian constitution sets forth that “property is either public or private. Economic goods belong to State, organizations or individuals”. Among the unchangeable principles of the Portuguese constitution on can find the “co-existence of the public, the private, and the cooperative and social sectors, with respect to the property of the means of production”. This brings us to… Read more »
Attila
Guest
This is why Mr. Orban needed to change the constitution.Those of you under the mindless spell of communism socialism liberalism, wake up and smell the death. HOW MANY DID COMMUNIST REGIMES MURDER?* By R.J. Rummel Note that I completed this study in November 1993 while still engaged in collecting democide data. Not all the democide totals I mention here may be complete, therefore. For final figures on communist megamurderers, see my summary Table 1.2 in my Death by Government. For all final estimates, see the summary table in Statistics of Democide With the passing of communism into history as an ideological alternative to democracy it is time to do some accounting of its human costs. Few would deny any longer that communism–Marxism-Leninism and its variants–meant in practice bloody terrorism, deadly purges, lethal gulags and forced labor, fatal deportations, man-made famines, extrajudicial executions and show trials, and genocide. It is also widely known that as a result millions of innocent people have been murdered in cold blood. Yet there has been virtually no concentrated statistical work on what this total might be. For about eight years I have been sifting through thousands of sources trying to determine the extent of democide… Read more »
Ron
Guest

Attila: Interesting piece, and most likely true. But I do not see how this contribute to the discussion of a new constitution.
Beside what you mention it happen in your essay it was not only the Communist responsible, Nazi, Japanese, Serbs, in general Africa, in the middle ages Europe, India, and you can go on and on and on.
What strikes me is that in Western Europe topics are hijacked by referral to the 2nd WW/Nazi, while in CEE it is communist. Understandable most people have bad experience.
In Western Europe references to WW2 and Nazi during commenting is a Godwin’s law. In short a Godwin.
http://en.wikipedia.org/wiki/Godwin%27s_law
Do we have something when hijacking and making reference to the Communist area, and I do not suggest a Orban, JB, but could we call it for example an Afghan or a Comwin?
Any suggestions.

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