After we learned the results of the refugee quota referendum I wrote a short post, leaving an analysis of the referendum’s consequences for a later date. I did, however, indicate that Viktor Orbán was planning to change the constitution for the seventh time since its framing in April 2012. It was also already obvious that Orbán would try to make a huge victory out of a failed referendum. And indeed, in a day or so, new ads appeared touting that 98% of Hungarians are behind the government’s efforts to save Hungary from migrants. No Hungarian government has had such overwhelming support and the government cannot ignore the wishes of 3.3 million people, they claimed. Therefore, although legally the referendum was not valid, it was a major political success. The government simply cannot ignore the wishes of so many people.
The results of the referendum gave Orbán another political weapon. He cleverly equated the number of “no” votes with support for his party and his government. He declared “a new unity for Hungary,” which stands squarely behind him not just on the migrant issue but also on all matters connected with overarching national questions. Of course, as we know from Publicus Intézet’s poll, if national elections had been held on October 2, only 28% of the electorate would have voted for Fidesz and not 40% as Orbán claims now on the basis of the referendum results. The only opposition party that supported the quota referendum was Jobbik but, again judging from public opinion polls, Jobbik voters’ enthusiasm was a great deal less than that of Fidesz voters. Tipping the results in favor of Orbán’s newly discovered “unity” were those naïve souls among the supporters of the democratic parties who didn’t realize that a “no” vote was a “yes” vote for Viktor Orbán.
Orbán’s plan is to convert some of those extra one million people who were misled by the incredible anti-refugee propaganda to faithful Fidesz supporters and thus achieve the desired two-thirds majority again in 2018 or earlier. The most likely candidates for the enlargement of the Fidesz camp are the Jobbik voters who, following the call of their party, voted “no” on October 2. That would mean the destruction of the already weakened Jobbik by absorbing its supporters. For the time being, however, Gábor Vona has the upper hand. He can demand a very high price for his party’s support of the constitutional amendments. All democratic parties have already announced their intention to boycott discussions related to constitutional changes, and since Fidesz no longer has the necessary two-thirds majority Orbán needs the votes of Jobbik. But as an op-ed article in valasz.hu predicted, Jobbik might be the next victim of Viktor Orbán. Interestingly, Boris Kálnoky, Budapest correspondent of the Austrian Die Presse, also considers Orbán’s announcement of “a new unity” a declaration of war against Jobbik.
The constitutional amendments are shrouded in mystery, but by yesterday we learned that the government will invoke a fashionable legal notion called “constitutional identity.” This legal construct has such a huge literature, whole books were devoted to the subject, that what I can say about it here is not more than what I learned in a short description of a book by Gary Jeffrey Jacobsohn. Jacobsohn argues that “a constitution acquires an identity through experience—from a mix of the political aspirations and commitments that express a nation’s past and the desire to transcend that past.” I assume that after reading this description you are as puzzled as I was when I first read it. I became a bit more enlightened after I took a quick look at an article that appeared in the Utrecht Law Review by Leonard F. M. Besselink titled “National and constitutional identity before and after Lisbon.” This article then led me to the text of the Lisbon Treaty in which there is no mention of “constitutional identity.” It does, however, talk about “national identities” in Article 4.2, which reads:
The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
I suspect this is what László Trócsányi, minister of justice and former member of the constitutional court, has in mind. It looks as if Trócsányi finds the idea of “constitutional identity” an important and handy legal construct. According to vs.hu, at the time of the ratification of the Lisbon treaty, at the request of a private person, the Hungarian constitutional court examined whether the treaty transgresses the sovereignty of Hungary. The court rejected the brief, but Trócsányi filed a concurring opinion in which he stated that “the member states have kept their right to determine the fundamental tenets of their constitution, which are indispensable for the maintenance of their constitutional identity.” In other words, over the centuries the Hungarians who settled in the Carpathian Basin created a specific cultural and ethnic identity. This identity would be violated by large settlements of people coming from a different cultural and religious background. I assume this will be the main argument of the Hungarian government against the contentions of those who claim the supremacy of EU law over the laws of a member state. Judging from the fact that Hungarian constitutional scholars already wildly disagree over the Hungarian government’s interpretation of “constitutional identity,” I suspect that Trócsányi’s brainchild might not be so easy to defend.
By now I more or less understand what Trócsányi is getting at, but I was nonetheless completely baffled by what he said at this morning’s press conference. He announced that the amendments will touch on Hungary’s territory, its population (népesség), populace/population (lakosság), the structure of the state (állami berendezkedés), and the form of government (államforma). This sounds outright frightening. Let’s start with the most intriguing one: the form of government. Surely, Trócsányi is not thinking of calling back the Habsburgs or returning to the “free electors” active between the two world wars, so I don’t know what he has in mind. Changing the structure of the state is equally worrisome. Will they introduce a presidential form of government with Viktor Orbán at its head? And what on earth can it mean that the amendments will touch on the territory of Hungary? Are they planning to move a few rivers to make the country bigger, because surely they cannot contemplate renegotiating the Treaty of Trianon. Finally, I have no idea what the difference is between “népesség” and “lakosság.”
We can expect turbulent times in Hungary, that’s for sure. I also wonder what Brussels will think of the latest brainstorm of Viktor Orbán and his team.