A brief history of the new Hungarian constitution


A little more than a year ago I started collecting news items and organizing them according to topic. This enables me, if I did a decent job of collecting the important sources, to reconstruct the “history” of any given topic. Naturally I have a fairly large collection of news items under the heading “Constitution.” The very first item in this collection is telling. On November 10, 2009, Viktor Orbán talked about the necessity of a new constitution because the old one is nothing but “a collection of technocratic regulations.” But, and this is very important from our point of view, “creating a constitution is the not the work of one party … it is a much more important and far-reaching matter.”

After the election, on May 19, 2010, he expressed his hope that “in a year and a half or two we will be able to create a new constitution.” That would have meant that at the earliest the constitution would be drafted by the end of 2011 or sometime in the middle of 2012.

But after having received a two-thirds majority in parliament he was no longer worried about a constitution that is created by only one party. In fact, a government with such a huge majority cannot leave a constitution in force that bears the date of 1949, he said shortly after the election.

At the end of May 2010 he asked the Fidesz and the Christian Democratic parliamentary delegations to begin work on the creation of a new constitution. After all, “if there was a two-thirds revolution (kétharmados forradalom), it is time to change the old regime and to change the constitution.” In early June a parliamentary committee was formed to lay down the principles of the new constitution. The subcommittee had forty-five members. The government parties sent thirty delegates (26 Fidesz members and 4 Christian Democrats), MSZP was entitled to seven members, Jobbik six, and LMP two. It was made clear that all decisions would be made by a simple majority rule. One of the MSZP members, Gergely Bárándy, asked the government majority not to abuse its two-thirds majority.

However, within days it became clear that Fidesz was planning to do just that. András Schiffer, leader of the LMP parliamentary delegation, raised his voice when he learned about government plans to remove the rule that prescribed that a four-fifths majority was necessary to pass a new constitution. By that time it also became clear that Fidesz wanted to speed up the process. It was announced that by mid-December the committee’s work should be completed. The opposition members complained that in three and a half months there was no way “to do quality work.” Mónika Lamperth (MSZP) expressed her suspicion that perhaps the whole text of the new constitution is more or less ready, but “in this case let’s not play a comedy here.”

By early August György Schöpflin, a Fidesz member of the European Parliament who had been asked to be a member of an advisory committee to Viktor Orbán on the constitution, came up with the “revolutionary” idea that the constitution should be passed on Hungary’s national holiday, March 15th. Since then the final day has changed a few times. March 15th became April 21–that is, Easter Monday. (Do you get it? Resurrection!) The latest is April 18th. I guess someone decided that Easter Monday was too much after all. So with lightning speed, in ten short months there will be, if all goes according to plan, a brand new constitution.

By September 2010 more and more voices were raised against the way the government parties handled the creation of a new constitution. Géza Kilényi, a former member of the constitutional court, called the concepts put forth by Fidesz “Bolshevik.” A few days later the Eötvös Institute (a legal think tank) published a statement saying that in the institute’s opinion the opposition parties should not participate in what more and more people considered to be no more than a party affair. A month later LMP walked out of the committee and a few hours later MSZP followed suit. Jobbik stayed for another month, but by mid-November its six members also left the committee. It was at this point that László Sólyom, breaking his silence, spoke up in defense of the old constitution and expressed his misgivings about the way the government was handling the whole question.

Fidesz, on the other hand, was thoroughly satisfied. László Kövér promised that only one sentence will remain from the old constitution: The capital of Hungary is Budapest. In this new constitution everything will be different: new preamble, new structure, new text. It will be shorter and more concise than the current one.

By mid-December a summary of the committee’s proposals became known and the chief justice of the constitutional court, Péter Paczolay, was obviously not thrilled. According to him human rights got short shrift in the document. At the end of December Tamás Bauer wrote an article in Élet és Irodalom in which he gave a fairly detailed critique of the document that was made available by the committee. Already in the preamble he found some strange concepts. For example, the framers talked about “all those values the nation shares.” But it is a well known fact that Hungarian society is deeply divided. Bauer claimed that this new Hungarian constitution breaks with the tradition of western democracies that a constitution must reflect the range of worldviews and lifestyles. Bauer also talked about a strange sentence in the proposal: “Basic rights involve obligations and responsibilities” (Az alapvető jogok kötelezettségekkel és felelőséggel járnak). Thus, Bauer claims that the basic rights of this constitution are “gifts” that can be withdrawn if someone doesn’t behave. That’s why he entitled his article “Constitution for Subjects.”

By mid-January Orbán came out with the new idea that the parliamentary session between February 14 and April 18, when allegedly the new constitution will be voted on, will have a new name: “alkotmányozó országgyűlés.” The best translation would be “constitutional convention” but there is a little problem with the term and the institution: it doesn’t exist in Hungarian constitutional history. I guess that was a clever way of involving the opposition parties in the creation of a new constitution. They walked out of the committee, but by golly they will be part of the constitutional convention. Ferenc Gyurcsány was the first one to notice the trap on January 11, 2011, and he suggested a boycott of the so-called constitutional convention. A week later MSZP announced that MSZP members of parliament will not be present in the House on those days.

That was the situation until early February. But then something happened. I suspect the Hungarian government got the word, most likely from the United States and its European friends, that if the new constitution is a party document there will be serious consequences. The creation of a new body headed by József Szájer, an EP member, indicates to me that the European Union has some secret weapon that it could use against the Hungarian government if the new constitution is adopted without any input from the opposition. So now Szájer is trying to entice the opposition parties to join in and practically start from the beginning.

Yesterday I outlined Gyurcsány’s position and today LMP came out with a very similar suggestion. They would join the process of creating a new constitution only if Fidesz gave absolute guarantees that a two-thirds majority will not be sufficient for its passage. Moreover, they demand a change in Fidesz’s unconstitutional practices and the reversal of unconstitutional laws they enacted earlier. Fidesz now has a choice. We will see what they decide to do.