Hungary’s “constitutional identity”: What does it mean?

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.

Justice Minister László Trócsányi and Undersecretary Bence Tuzson in charge of communication

Justice Minister László Trócsányi and Undersecretary Bence Tuzson in charge of communication

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.

October 6, 2016
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Csoda.peter
Guest

Presumably the switch to.make Mr Orban head of state will be accompanied by some legalistic changes so it is not so obvious. Maybe just abbreviating his current minister-president title

Gardonista
Guest

“This identity would be violated by large settlements of people coming from a different cultural and religious background.”

So having a large Jewish population also deserves some sort of solution?

Jean P.
Guest

Those who discuss national and constitutional identity evidently assume that they are two differet things. That won’t wash with Orban. He equates national identity with constitutional identity because then national identity can be redefined any time by a change of the constitution.

I doubt that a national identity blowing in the wind was what the authors of the Lisbon treaty had in mind.

Member

“Jobbik” will hardly accept any changes that makes or even increases Worban’s role as President or something similar.
Maybe LMP though.

Ferenc
Guest

Why not organise a referendum against anymore changes of the constitution within this governments time, or in general a limitation to maximum one change of the constitution in one governments period.
And request the referendum to be monitored by independent international observers.
If since 2012 the constitution has been changed already 6-times (this would be the 7th right), is it possible for somebody to make a shortlist of the changes and what are the practical consequences/use from those changes?

pappp
Guest

Ferenc, where do you live? You can’t just organize a referendum in Hungary. The path to referendums is tightly controlled by Orban’s people.

For example the Basic Law explicitly says that it is not possible to hold a referendum on question involving international obligations.

The proposed referendum on Paks 2 was denied because of that (luckily there exists a Hungarian-Russian treaty on the subject). But the courts thought it was totally OK to hold referendum which would obviously involve Hungary’s international obligations within the EU framework (last Sunday).

What Orban wants happens and what he doesn’t want won’t.

My guess is that Orban is moving towards a Milosevic and Ivanov (in Macedonia) approaches. He won’t “give in” and his masters will encourage him to stay.

I’m also waiting for an honorary degree to be bestowed on Orban by say the Moscow State University or some Turkish University.

Ferenc
Guest

I’m not living in Hungary, but have a basic understanding of Hungary, and care about what’s happening with the people in Hungary. Actualy it very scares me what I understand to be happening under the current government.
And also flabbergasted about the more or less acceptance of it by a a big part of the people in Hungary.
Some people, like MKKP, make satire about it, well if it’s good it’s funny, but it will not bring what you want yourself. Why don’t the people who are really against what the current government is doing not more united? It’s all small fractions saying similar but not the same things.

webber
Guest

Have you followed what happened to the “Norwegian” NGOs? (Norvég civil szervezetek). It appears Viktor Orbán personally ordered the police investigation against them.
Read up:
http://444.hu/2016/10/06/orban-szemelyesen-rendelte-el-a-civilek-elleni-hadjaratot

If Orbán does this to organizations with foreign backing, what do you think he and his people do to little Hungarians who protest? (hint: Losing your job is just the start.)

Don’t be flabbergasted by people’s passivity.
Next time you visit Budapest, do a test – say something positive about Orbán very loud in public, and watch what happens. You’ll be pleasantly surprised, maybe – though the reaction won’t be too pleasant for you, personally.

You have every right to be amazed that some Hungarians still support Orbán. Not just some, many, though now they are a minority (perhaps 25%?).

That people are not doing more to remove him shouldn’t surprise you, though. The regime destroys the lives of little individuals without thinking twice about it.

Ferenc
Guest

Vaguely knew something about the “Norwegian” NGO’s, so he personally requested an investigation. What’s the actual status of this case.
BTW: searched and found this page http://eeagrants.org/Where-we-work/Hungary , seems that the national (Hungarian) contact is through the PM’s office. As I’m not familiar with these things at all, it could be a normal situation, but not sure.
Furthermore they organise Oct.27 an event called “International Seminar on Countering Hate “, may they can make use of the propaganda around the referendum.

Ferenc
Guest
webber
Guest
It’s much worse than you know. After Orban personally asked for an investigation (this is news), what happened: The police arrived with the inspectors, and took the (Hungarian) head of the Norwegian organization away in handcuffs, though she had not been charged with any crime. Later that day she was released, with no explanation or apology. They seized all documents and all computers, froze all bank accounts, and closed the organization and others – again, with no explanation and no charges. A campaign was started against the Norwegian NGOs in govt. press (actually Hungarian NGOs which got Norwegian money), saying that they were all guilty of embezzlement and trying to overturn the Hungarian government, and implying that they were actually foreign agents. The Norwegian government warned that it would pull all funding from Hungary. The Hungarian government (Lázár) said they should not do that, but should give funding from now on to organizations approved by the Hungarian government. Norway said “no way.” (Norway spends quite a large amount of money every year supporting civic organizations in Hungary). Norway announced it would have its own accountants do a review of all funding to see if there was any embezzlement. In the… Read more »
Guest

I believe that Lázár didn’t just want to nominate the organisations that received Oslo funds.

I think he insisted that they should give the monies to him to administer.

This has special significance in Hungary.

It would enable them to cream off the usual ‘administration charge’ and ‘premium’ to privileged ‘consultants’ and all the other creative accounting ‘procedures’ that whittle away the finances on their way to corruptania.

Guest

And it’s about time that Lázár had another bubbleback Rolex to flash in front of his audience and papparrazi.

pappp
Guest

This is a usual question in places like Hungary. Firstly, there is a genuine support for Orban, so perhaps ‘only’ 70-75% may oppose the government.

As I see, middle-class people are happy to have a job, they have mortgages, have a spot in the free municipal pre-school and so on.

It takes two minutes to fire people or relatives of people who cross Orban and people are afraid. Especially outside Budapest. Almost everybody knows a story about people getting fired (or denied some limited public service) for disagreeing with some local influential Fidesznik. Much better to keep quiet.

People find coping mechanisms with a situation like that in Hungary, they adapt.

People may no be as paranoid as in the 1950’s (dictatorships also evolve, for example they increasingly grant autonomy in the private sphere) but they just don’t want to be associated with something politically “risky”. When you already have a small wealth you want to hold on to it and not risk it. Collective action is rendered almost impossible.

pappp
Guest
I guess népesség means all the registered citizens (of whom some 700,000 live abroad) and lakosság means those actually living in Hungary (which may include foreign citizens). What is strange to me is that many politologists, pundits who may not be government propagandists uncritically accepted as a fact that the almost 40% of voters (the turnout) at the referendum was the same circa 40% of the Fidesz-Jobbik coalition of 2014. In other words that the government could mobilize its entire electorate and nobody who is not a pro-Fidesz or pro-Jobbik voted last Sunday. I think that somehow the two numbers (the 2014 and the current figures) are so similar that it simply did not occur to anybody that there may have been many who aren’t especially pro-Fidesz or pro-Jobbik, they just simply agreed with the proposition with who most of the nation agreed on paper. As many as 80% maybe more actively hate migrants, people are terrified of Muslims etc. Is it hard to imagine that there were many voters who were not pro-Fidesz or pro-Jobbik? I agree that probably most conscious leftist voters stayed away, but from the middle 30-40% who are undecided nobody voted despite the unprecedented pressure?… Read more »
PALIKA
Guest

Orban is working hard to prove that Metternich was right when talking. with one of the Crowned heads of Europe at the Congress of Vienna he pointed to the ground as they stood by a road leading East from Vienna said: “Sire, this is where Europe ends”.

Guest

In Germany we have an even more devastating proverb:

The Balkan begins in Munich …

Guest

The Swedish playwright August Strindberg said that Asia begins in Malmö, thus including all of his own country in Asia.

PALIKA
Guest

By contrast Metternich’s view was based on screwed empirical observation which was shown to be correct by subsequent events. He could not have foreseen the events of 1848/9 but I do not expect he was taken by surprise by them.

PALIKA
Guest

Sorry; read shrewed for screwed

PALIKA
Guest

No, shrewd, not shrewed.

bimbi
Guest

In today’s Guardian, Emma Brockes offers a review of a book review in the NYT:

https://www.theguardian.com/commentisfree/2016/oct/06/reviewer-trump-hitler-new-york-times-michiko-akutani

The book review included the following:

“Hitler was often described as an egomaniac who ‘only loved himself’ – a narcissist with a taste for self-dramatisation and what [the author] calls a ‘characteristic fondness for superlatives’.” Or, “Hitler was known, among colleagues, for a ‘bottomless mendacity’.” Or, “Hitler virtually wrote the modern playbook on demagoguery, arguing… … that propaganda must appeal to the emotions – not the reasoning powers – of the crowd.”

The unstated target in the book review is to Mr. Trump, but over here in eastern Europe, we recognize that these descriptions epitomize our home-grown Trump Fan No. 1, Viktor Orban and especially so after the spectacular FAIL of his money-laundering referendum. The reference to “bottomless mendacity” is especially apt in view of the INVALID referendum result.

Orban is no Hitler but he and his team exploit all the tools in a nuanced and ‘acceptable’ way to achieve their corrupt and shameless ends. And now, comes the CALL to Higher Office…

Istvan
Guest

Bimbi I agree that Orban is not Hitler, but a Hungarian friend described the Orban regime as “tolvaj, hazug diktatúra, amelyet agyhalott nyáladzó zombik tartanak fenn” [a dictatorship run by a thief and liar, which is sustained brain dead drooling zombies].

I think the point may be Hitler actually had a buy in from the population based on a perverted belief that over all the German people’s lot could be improved under Hitler’s dictatorship which promised the spoils of Europe and the Jews into their pockets, whereas Orban’s power lies in vast parts of the Hungarian people being stupefied by their situation and what can be done to improve it. Possibly the MKKP grasps the dilemma at a more profound level than any other opposition party because it situates it within the surreal. The MKKP question “Tudtad?” Is answered by many apparently, no I don’t know shit, nor do I care.

webber
Guest

OT – this is why the police attacked the Norwegian civil organizations. Look who asked for an investigation of them – just look at the signature:
comment image

Member
Guest

Just a reminder for the Nationalists in Hungary – from the Lisbon text that prof Balogh quoted:

The Union … shall respect their essential State functions, including ensuring the territorial integrity of the State …

That goes for too for the countries neighbouring Hungary of course.

Especially for Ferenc:

Not only the constitution was changed several times, the Fidesz government introduced a new law (or a big change to an existing law ) almost every day during its reign. This made me coin the variation of an old proverb:

A new law every day keeps sanity away!

These laws were often introduced by some parliament members one day and ratified without any discussion the day (or a few days) after – no one had a chance to analyse the proposals …

Guest

London Calling!

O/T

With reference to an earlier post…….

World Questions on the BBC World Service at Sat 8 Oct 2016 19:06 gmt (21:06 Hungarian time) and available afterwards on BBC iPlayer.

http://www.bbc.co.uk/programmes/p049m2s0

Looks like I won the Pizza competition!

“Jonathan Dimbleby invites members of the public to put questions to a panel of politicians and thinkers including:
Zoltán Kovács, the spokesperson for Prime Minister Viktor Orbán,
Zsuzsanna Szelényi, opposition MP for the Together party,
János Csák business leader and former Hungarian ambassador to the UK, and
Professor Loukas Tsoukalis, acedemic and expert on the European Union.”

The oleaginous Chief Lying Toad Kovács wins the pizza for me.

As I posted before – damp squib or rivetting?

I hope it will be as sharp as the recent piece that Eva posted from the NYT – but it’s not looking good!

PALIKA
Guest

The institution of free face to face debate in public is virtually unknown in Hungary. Dimbelby’s production team would have relied on local, therefore pro Fidesz production advisers. The BBC correspondent Thorpe has gone native. The Professor might not be in the Fidesz mainstream but is unlikely he has debating skills.
The Ambassadorwas a successful business man, head of MOL. When I last saw him in London he was sporting a typical Hungarian moustache which was rather theatrical. Alas it was a political act of belonging. Orban toady.
Kovacs is an inarticulate liar.
Szelenyi? I do not know.
Professor Heller would be my choice. Interesting Schopflin is not amongst them.
Likely to be anodine, but I wait to be surprised.

Guest

You know I cringe each time these triumvirate of nouns come up:
Consititution, Fidesz, Orban. An unholy trinity with an affectation for constantly moving the chairs of a sitting government to serve its own embodied interest in controlling from on high all government form and procedures of the land. And they decide the limitations. The predatory foxes appear to have virtual free play in the henhouse.

Definitely not a good sign for the path of the country. Mr. Gati in his insightful interview might have also mentioned that when something is sold and treated as ‘junk’ no one should be surprised that when it comes to the Constitution it appears to be made simply to be tinkerered and fiddled with and virtually built to enhance the junk being put into it along with the rest of the detritus littering the actions of the current government. Unfortunately, not only does the country suffer from terrible politicians but from some very obtuse ‘editors’. Prof Balogh is correct….this is ‘frightening’.

Istvan
Guest

Interesting perspective on the fallout of the referendum http://bbj.hu/analysis/after-invalid-referendum-analysts-eye-fiscal-policy_122879