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.

Long Live August 20, The Day of Our Constitution

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since the government claimed  that the principle of self-limitation contained in the 1995 constitutional amendment was no longer in effect.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 new constitution, deluxe edition

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.

* * *

The Hungarian translation of this article is available in the printed edition of HVG and will appear on the internet sometime this week.

 

 

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Paul
Guest

Excellent article – thank you.
That meeting with Kovács must have been an interesting one!

EM
Guest

Professor Balogh,
I am a Connecticut based producer working with a Hungarian production company on a “Yes We Can”-

type spot that features young Hungarians (hopefully some Hungarian celebrities will participate) who are opposed to the direction that Orban is taking Hungary. Our plan is to first post it on YouTube and other social media portals. If it achieves critical mass on-line, then we would offer it to commercial TV in Hungary and see if they are willing to air it—ideally on March 15th. I have contacts at media buying agencies in Hungary who could assist with this. If the Hungarian networks refuse to air it, then that becomes a news story in itself.
I would be honoured to hear your thoughts about the necessity for/viability of/potential effectiveness of such a project. If you find the project interesting, please contact me via e-mail.

An
Guest

EM, very interesting idea. Milla (Egymillioan a Sajtoszabadsagert) on Facebook was running a video campaign, with young faces, about a year ago when they were organizing their demonstration… maybe you are familiar with that.
Here is one of their videos:



Titled “Nem tetszik a rendszer” “I don’t like this system”.

Member

Great article. It is unfortunate that the EU is running out of steam to deal with this whole mess, and my feeling is that they will let Hungary down. With all dues respect most people at the EU are not well immersed i Hungary’s dealings. WHy would they? They have their own country to worry about. THere is no Ms. Scheppele on these meetings where she could “testify”, there are no representatives from the Venice Commissions, and so forth, so Fidesz uses all the meetings to turn it around and say that whoever had a problem had not read this had not known that. THey are right. It is not their job, as they rely on experts to arrive to conclusions, and the politicians only reiterate those findings.
@EM, I hope you succeed. It is unfortunate that according to TARKI Social Research Institute, 2/3 of people between the ages of 18 and 37 would vote for Jobbik.
http://www.tarki.hu/hu/news/2012/kitekint/20120207.html

An
Guest

@Some1: 1/3, not 2/3… which is bad enough

Member

An, Yes 1/3. Sorry. I guess I have the number 2/3 beaten in to my head.

Member

It’s always hard to translate idioms in any language. In Hungarian they say “Nesze semmi, fogd meg jol!” something like “Here is nothing, hold it tight!”. That’s what this new “basic law” always felt like. This new constitution is much ado about almost nothing. Jozsef Szajer, on his new iPad, between two exhausting sessions of Angry Bird (it’s hard, believe me) just shuffled the words of the old constitution. The only “original” piece they came up with is the preamble and it shows.
This analysis, as the truth in general, will blow the fuse with a bunch of turul troopers but it was time to reveal that they blew 10 million to celebrate a knockoff of the old commie constitution.
Prof. Balogh may want to consider temporarily reinstating moderation of the comments. We can expect a lot of “blog skunks” very soon, especially if the press will mention this post and I certanly hope it will.
Thank you Prof. Scheppele for caring.

Living with it in Hungary
Guest
Living with it in Hungary

“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.”
It is this arrogance that is sooo pervasive. Gyurcsany displayed at the end of his CNN interview with Nic Robertson. Kovács displayed it in all of his interviews with the english press. Orbain displayed it when he dressed down a reporter after his session at the EU parliament. IMHO, none.. none of these people are fit for office!
It would be interesting for you to share more of Kovács’s ideas if you could.

EM
Guest

@An…yes, that’s a good, very professional video and Milla is a great movement. The producers who put together the video are top notch and totally ‘get it’. Do you have any idea how it was received in Hungary, and whether it ever received any commercial TV exposure?

I love Hungary
Guest

Professor Scheppele misses the point that if FIDESZ “invalidated” the pre-existing constitution because it was based on tyrannical rule, then it also invalidated its own mandate to author a constitution.
FIDESZs’ mandate to write a new constitution took its authority from the old (1949) one.
By invalidating the constitution, FIDESZ esentially made itself a “care taker government” that should be charged only with managing the country while a “constititutional assembly” drafts a REAL constitution for Hungary– and this draft is, in turn, presented to the people for a referendum.
I’ve had some correspondence (2 emails) with Professor Scheppele on this subject, and have also blogged here about it.
The idea gets general agreement but no real traction.
I really don’t know why.

Ron
Guest

Professor Scheppele: 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.
I question I have: Was there a 4/5 rule in the Constitution prior to the 2010 Constitution changes?
If so, How did Fidesz remove this limit from the Constitution?

Vilmos
Guest

Professor Scheppele, as in previous writings, does an excellent job of cutting through the smoke of BS put up by Fidesz with their justifications for the party taking control of all institutions, elimination of checks etc.

Aurélie Martin
Guest

Very interesting article. I hope that dr. Scheppele will continue to keep a sharp eye on the events and decisions in Hungary.
Today, the Art Newspaper also published an article about Hungary:
http://www.theartnewspaper.com/articles/Hungary%E2%80%99s-government-tightens-grip-on-arts/25561
It is a comforting thought that people from all over the globe investigate what is going on in Hungary – from legislation to media to arts.

Eva S. Balogh
Guest

Off topic but if you have time, please take a look at a video recorded during the demonstration against and for the new director of Új Színház, György Dörner. It becomes clear that the far-right demonstrators have never been inside of a theater and that they know next to nothing either about the program of the theater under István Márta or about György Dörner. It is quite hillarious:
http://hvg.hu/itthon/20120202_video_uj_szinhaz#utm_source=hvg_weekly&utm_medium=email&utm_campaign=newsletter2012_02_08&utm_content=normal

Member

@ EM, I do not mean to be rude and please, do not take this in the wrong way, but how much are you following the Hungarian news? DO you speak Hungarian? THat video has been around for a long time. It was all over the news, and if you check youtube, the viewing numbers as well as the name of the creative team is listed clearly.
Do you know who the people are who are featured there? For being a producer maybe you should do a little more research. (THis is coming from someone who has worked as a producer for over fifteen years on documentaries, music videos, animation, etc. many that won various awards, with various award winning directors. )

Kim Lane Scheppele
Guest
Thanks to all for the comments! To “I love Hungary”: I made a similar point about the internal incoherence of the new constitution in my lecture at Central European University last week. The new constitution’s preamble repudiates all laws passed between March 1944 and May 1990, which includes most of the 1989 constitution that the new one replaced and particularly includes the amendment rule carried over from the 1949 constitution. Given that the 2011 constitution was adopted using the amendment rule of an invalidated constitution, then, the new one has doubtful legal validity. Unfortunately, CEU cut that argument out of the excerpts of the lecture they posted at . To Ron on the 4/5th rule: In 1995 (when the Socialists and SzDSz had 2/3rds of the seats in the Parliament), the Parliament passed a constitutional amendment that required a 4/5ths vote on a procedure to write a new constitution before such a process could be started. The text of the law containing the amendment also included a “sunset” clause that limited it to the 1994-1998 government. But when the constitutional text itself was changed to incorporate this amendment, the 4/5ths rule was added to the constitution without the sunset clause.… Read more »
Member

About Eva’s video link to the demonstration for the “Uj Szinhaz”.
THis is the exact picture of who supports Fidesz or Jobbik. People have no clue. THey demonstrate, because they believe what the PR tells them. I actually felt sorry for the man who was seen the most. He seems like a very nice man. Obviously he has limited understanding and knowledge about things, but that does not make him a bad person. The other ones scared me. They are aggressive, and why there were there for is the main reason football hooligans go to soccer games. It has nothing to do with the sport, it has to do with some macho, I am the King of the garbage dump attitude.

Ron
Guest

Professor Scheppele thank you very much for answering my question.
So the 4/5 rule was incorporated into the Constitution before 2010, perhaps as an “honest” mistake.
I am not a legal expert, but according to me, all amendments need to be voted on in order to make the law work, including publishing.
Therefore, I assume that on this 4/5 amendment (not the Statute) to be incorporated into the Constitution was voted on again and published, and nobody noticed this?
If that is the case, than this “sunset” clause was not valid, as it was not included in the Constitution. Therefore, in my opinion the current Constitution is null and void.
Unfortunately, the only Group that would clarify this is the Constitutional Court, which I consider currently biased.
Furthermore, when Hungary entered the EU, I assume that they were judged on their Constitution. The question here is, which Constitution was filed? And can the European Court decide on this? Which laws passed the last two years are invalid.
Ohh my that will be a mess if the current Constitution is considered invalid.

Member

Ron: “Furthermore, when Hungary entered the EU, I assume that they were judged on their Constitution. ” I think that is a great point!!! Is the new constitution acceptable by the EU? The True Hungarian big argument is that everyone should live them alone because they can do internally whatever they please. Well they get into the EU because of the whole package, and is the new constitution acceptable by the EU. If not, than HUngary is out if Hungarian s feel that they want to do whatever they please. No argument there with Orban and his followers.

question
Guest

@Scheppele
Scheppele, can you answer two questions.
1. Why didn’t you ever apoligise for (or correct) the falehoods in your previous posts on the Paul Krugman blog even when pointed out in the comment section there several times.
2. Who financed your trip to Hungary.
Also based on Scheppele’s latest description about the validity of the 4/5th rule, Fidesz acted responsibly when it removed a clause that’s effective power was legally unsound and a matter of controversy between experts. If the sunset clause failed it failed because of a mistake of the MSZP-SZDSZ government, which Fidesz fixed.

pink walnut
Guest

Dear Professor Scheppele,
As a Hungarian, I wish to thank you for your efforts in the interest of Hungarian democracy, and express my regret about the rude and belligerent tone of some of my countrymen. I belong to those who almost never comment just watch the events with growing anxiety. To foreigners it may seem that all Hungarians have lost their minds but in reality many of us have not, only we find it pointless to argue with Orban’s agressive and energetic supporters, and voice our opinions publicly much less frequently. It is high time, I am afraid, that we change our attitude.

Mutt Damon
Guest
I seriously doubt that this constitution will have any direct effect on the lives of the ordinary citizens. The FIDESZ oppositions will try to use it in the future to attack bills then the diluted pro-FIDESZ constitutional court may agree or may not. The glass half full part is that they took away the right of the court to interfere with matters related to the budget. So there is hope: this guys are so dumb and lazy that they screw up even the the screwing up. Those quality people at the New Theatre clearly show the chasm between life and constitution: Article XI (1) Every Hungarian citizen shall have the right to education. While watching this video I’m trying to imagine Dorner and the remaining theatre staff looking out the windows, staring horrified at their future customers. I can’t wait for the play they ordered about Gyurcsany. I remember when my kindergarten class was on a filed trip in the Budapest Theatre of Puppetry and the evil fox showed up, we were all yelling at the stage “Bunny!! Watch out!!”. It will be something similar when the theatre will show the Gyurcsany play. These guys, already liquored up on the… Read more »
GW
Guest
Question: Addressing Prof. Scheppele by last name alone is extremely rude. Whether this is due to poor English or poor social skills does not excuse this. In the address of your message, using either her professor title or “Ms.” would have been appropriate. In the body of your text, of course, use of the last name in reference to Prof. Scheppele’s article, is appropriate. As to your two questions, Prof. Scheppele has consistently responded at length, in the Times website, to serious questions. She has no responsibility here to respont to your blanket accusation of lying. Prof. Scheppele — and the readers here — require specific examples in which you offer cponcrete evidence that statements in her articles were contrary to fact. Otherwise, you have placed a defamatory message in the public sphere and she is in no obligation whatsoever to respond. As to your second question, unless you wish to make a specific accusation of conflict of interest here, the answer is: none of your damn business. I am certain, however, based on Prof. Scheppele’s long record of non-partisan research and expertise in Hungarian history and institutions, that the answer would not yield any such conflict. Thus your question… Read more »
Paul
Guest

“The idea gets general agreement but no real traction. I really don’t know why.”
Because it’s a nice little debating point, but it has no relevance at all in the real world. All that matters in the real world is who holds power, and Orbán holds supreme power.
He can do what he likes and he ‘justify’ it in any way he likes (and idiots like ‘question’ will believe whatever he says). You can be as clever as you like with your “if I go back in time and shoot my granddad, would I still exist?” type question, but it means nothing.
It’s like pointing out to the man who is about to shoot you that what he’s doing is technically illegal.

Eva S. Balogh
Guest

To GW, I hope you are not terrible surprised by “question”‘s comment. They are like this. Born boors.

Odin's Lost Eye
Guest
Could anybody tell me what is the legal significance of a preamble of a constitution? Is what it says, the law, or is it window dressing? That is the statement written by Kim Lane Scheppele in the piece ** “The new constitution’s preamble repudiates all laws passed between March 1944 and May 1990” ** does this really mean what it says? If it does mean in law what it says then I am afraid that Hungary is so deep in the ‘fertiliser’ that you will need a Bathyscaphe to visit it. Further exactly who was Jânos GYÔNGYÔSSI? Who and how was he appointed and what were his powers? Did he have powers which made what he signed binding on Hungary in Hungarian law? If he did not have these powers how was what he signed ratified and brought into Hungarian law as the documentation he signed implies it must be. If what Jânos Gyôngyôssi signed is no longer part of Hungarian law,that is it has been repudiated then it may well be that a Bathyscaphe could not go deep enough to visit Hungary. I will develop these ideas when I know the answer to the business of the ‘preamble to… Read more »
Paul
Guest

“1. Why didn’t you ever apoligise(sic) for (or correct) the falehoods(sic) in your previous posts on the Paul Krugman blog even when pointed out in the comment section there several times.
2. Who financed your trip to Hungary.”
Classic ‘we have already lost this argument, but we’re desperate’ response.
Were any of these ‘falsehoods’ at all relevant to the points the Professor was making? Were they, by chance, just minor mistakes of little or no consequence?
Does it actually matter who paid for the trip? Fidesz are more than welcome to pay for my next flight to Hungary*, but it won’t alter what I see and hear them doing to Hungary, or my opinion of OV.
When losing an argument, just gracefully retire, don’t clutch at tiny, imaginary straws. They won’t hold your weight.
*I’d like BA first class, please, with a special connecting flight to Debrecen and a taxi from the airport to our flat (it’s not far).

Mutt Damon
Guest

@Question
1. She doesn’t need to apologize for minor factual errors.
2. She was swimming all the way.
I hope this helps.

Ron
Guest

Odin’s Lost Eye: Could anybody tell me what is the legal significance of a preamble of a constitution? Is what it says, the law, or is it window dressing?
That is the statement written by Kim Lane Scheppele in the piece ** “The new constitution’s preamble repudiates all laws passed between March 1944 and May 1990” ** does this really mean what it says?
Again I am not a legal specialist. But my understanding is that the preamble is an introduction and/or explanation of the document. In this case the Constitution. A preamble can be very strong as it may also give sometimes the intention of the document.
In the Hungarian case the preamble beside the aforementioned also made the statement that all previous legislation in the period mentioned are no longer valid.
The preamble done in this way save a lot of time and misunderstanding, if for example a current law is in conflict with a law of that period. In that case the younger law prevails over the older law.

Ron
Guest

In wikipedia is a piece about the preamble.
http://en.wikipedia.org/wiki/Preamble

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