The betrayed republic

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Disempowered by the new constitution: Hungary's Constitutional Court. 
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An imposed social order

May 22, 2011
Kristóf Szombati
Hungary’s right-wing coalition has set a negative European record by adopting a new Constitution on 18 April without either holding a referendum or obtaining the support of parties in opposition [1]. This despite the fact that only 30% of Hungarians believe their country needs a brand new Constitution, while 57% would like to see it put to a referendum. Besides being unwilling to broaden the text’s legitimacy the Orbán government has also dictated a frenetic pace. All-in-all MPs have had five weeks to debate and propose amendments to the text (which will come into force on 1 January 2012) before voting on it – a lacuna which has led the Council of Europe’s so-called Venice Commission to criticize the process [2]. Finally, the process also lacked transparency. A first draft produced under the supervision of the Christian Democrat László Salamon, Chairman of Parliament’s Constitutional Affairs Committee, was quietly discarded on demand of the Prime Minister who found it too sleazy and radical [3]. Orbán, who can no longer be sure that the parliamentary vote on “his” text will be remembered as a glorious day in the country’s history, may also have sought to demonstrate openness by asking the opposition to table its own proposals. This was of course nothing more than another act of the political theater put on by Fidesz since he knew perfectly well that the opposition’s conditions for lifting its boycott (broader legitimacy, more time for meaningful consultation with the public [4], and the reinstatement of the Constitutional Court’s powers) had not been met by the government.

At first sight it is not easy to understand why things had to go this way. After all, the coalition could have chosen to satisfy at least some of the left-of-center’s demands, thereby preventing a decline in popularity [5]. But Fidesz did not want to compromise. In his speech opening the parliamentary debate Speaker László Kövér declared that the regime change of 1989 was built on a fundamental lie, namely that a reconciliation of the old and new order was within the realm of the possible. This clearly shows that Hungary’s right-wing government, sure of its two-thirds majority, is ready to break with the tradition of dialogue and consensus embodied in the roundtable discussions of 1989/1990 and codified in the set of amendments to the country’s communist Constitution of 1949 (which have provided a solid foundation for government in the last twenty years). If its leaders were prepared to take this significant step it is because they have sensed a fundamental (and in the short term irremediable) disillusionment with the liberal democratic system across all segments of the Hungarian political community and think they have a long-term solution which will appeal to the masses. Contrarily to those who believe that the new Constitution’s main function is to entrench and extend Fidesz’ political power, I rather see it is as the key instrument for laying the spiritual and intellectual groundwork for a culturally conservative and politically centralized regime: the “System of National Cooperation”.

The fundamental tenets of the “System of National Cooperation”

It is no coincidence that Fidesz’ spin doctors have chosen a term that harks back to a period (preceding the Second World War) when Hungarian society was held together by nationalist ideology and irredentist ressentiment. Although Hungary will officially remain a republic - formally displaying all the characteristics of people’s rule [6] – the text of the preamble (entitled “National Pledge”) contains a reference to the “Holy Crown”, the medieval crown of the Hungarian kings, which “embodies the continuity of the Hungarian Constitutional state and the unity of the nation”. The "Holy Crown” also alludes to Greater Hungary ambitions, since the medieval kings ruled over the entire Carpathian Basin, including parts of what now is Romania, Slovakia, Ukraine, Serbia, Croatia, Slovenia, Austria and even Poland. This is just one sign that that the right-wing coalition sees itself as continuing not the heritage of the first (1918-1919) and second republics (1945-1948), but a tradition of feudal and authoritarian rule in a country whose borders did not coincide with today’s. Significantly, the coalition has decided to appropriate the far right’s suggestion to label the new Constitution a “Basic Law” which is but one chapter of an ill-defined “historic Constitution” traced backed to the 13th century. The English language draft stipulated that the provisions of the Constitution “shall be interpreted consistent with their objective, including the National Pledge incorporated therein, and the achievements of our historic Constitution”. What this will mean in judicial practice remains an enigma, but it could have far-reaching (and potentially disastrous) consequences [7]. Leaving this question aside, let us concentrate on the deeper meaning of the symbolic distancing from the republican heritage. For Orbán, who had once been at the forefront of the struggle aimed at rooting liberal democracy in Hungary, the Third Republic – born on 23 October 1989 [8] – and liberalism in general are the root cause of the country’s “Weimarization”. His reading of the last twenty years is that citizens, who were simultaneously liberated from state surveillance and regulation, and confronted with social atomization and anomia, have misused their newly granted freedoms (enshrined in the constitutional amendments of 1989/1990). Individualistic strategies have weakened communal ties and institutionalized networks of solidarity, spawning a culture of distrust. Liberalism’s failure to preserve fundamental human values and prevent a negative cycle of competition has led Orbán to subscribe to the arch-conservative vision of an ideologically committed and socially active state allied with historic churches and trustworthy entrepreneurs.

The newly adopted Constitution aims to reinforce the key pillars of the “National System of Cooperation”: family, nation, work and order. The text affirms that “Hungary protects the institution of marriage between man and woman, a matrimonial relationship voluntarily established, as well as the family as the basis for the survival of the nation”. How this will affect provisions in the Civil Code affecting gay couples – who, although they are not allowed to marry, enjoy close to identical rights to married spouses – remains an open question. Orbán has also found a way to entrench the government’s cherished policy of providing tax breaks for families – largely favorable to upper-middle class (heterosexual) couples – by referring taxation policy to a so-called super majority law [9]. Since Fidesz, who will be free to change the electoral law as it pleases, will surely hold on to one-third of the seats in 2014, this provision will remain in vigor until at least 2018. The emphasis on raising the fertility rate of white middle-class women and protecting the bourgeois family is to be understood in the light of negative demographic trends [10] which constitute the most important threat to contemporary society in the eyes of nationalists bent on preserving ethnic Magyar presence in the Carpathian basin. It is this same obsession that underpinned the decision to grant citizenship to ethnic Magyars living abroad in the highly symbolic citizenship law that was introduced immediately after the political right ascended to power in May 2010. The new Constitution goes one step further by granting Hungarian citizens living abroad voting rights [11]. Besides enlarging its voter base by approximately half a million voters, Fidesz aims to reinforce ties between them and the mother country, thereby ensuring a steady flow of skilled labor (along with right-wing votes) to Hungary. This well-concealed strategy (which goes against the official rhetoric of helping our brethren preserve their identity in the diaspora [12]) is seen as the only viable alternative to accepting Third World immigrants and counter-balancing the higher fertility rate of Roma families. The preference granted to ethnic Magyars was made obvious in the Constitution’s first draft presented to Parliament: “Hungary protects the Hungarian language and respects the languages of ethnic groups, minorities and other nations”. On the severe criticism formulated by the ombudsman for ethnic minorities, as well as political parties representing ethnic Magyars in the neighboring countries, this clause has been modified. Yet, the coalition has decided to scrap the article in the “old” Constitution which – despite being sabotaged by all post-transition governments – guaranteed parliamentary representation to ethnic minorities. This means that while ethnic Magyars living abroad may be entitled to political representation, Hungary’s own ethnic minorities as such may not.

Minorities are not the only ones to suffer setbacks under the System of National Cooperation. The new Constitution, symbolically catapulting Hungary back to the Victorian era of workfare, reintroduces the obligation to work for all citizens: “Everyone should contribute to the welfare of the community through their work in accordance with their skills and opportunities”. On the other hand, following an interesting logical twist, the state will only have to “endeavor” to create the conditions that allow everyone who wishes so to work. The poor are also likely to feel the impact of the severe curtailing of social rights. Whereas the “old” Constitution stipulates that “Citizens of the Republic of Hungary have a right to social security”, according to the new Constitution Hungary will only “strive to provide social security to every citizen”. Concerning pensions, social insurance contributions paid by citizens will henceforth be considered as simple taxes, precluding the formulation of demands for the state to ensure an adequate livelihood for the elderly. Accordingly, the state has chosen to partly relegate this duty to adult children who from now on “will be obliged to care for their parents in need”. This neoconservative attack on the poor is complemented by the reinforcement of the state’s “right hand”. Fidesz, competing with extremist Jobbik for the votes of – mostly rural - citizens hit by economic insecurity and frustrated by petty crimes (e.g. theft, bullying) committed by an “unruly” underclass, has taken a hard line on security. Following the Prime Minister’s lead - who made clear that the government will no longer tolerate the operation of “chicken thieves” (Fidesz’ code for “Gypsy-crime”) – the government adopted a “three strikes [13]” policy in 2010. Now, after a mimed “consultation” [14] with the public, the coalition has decided to inscribe life imprisonment without parole and the right to self-defense in the new Constitution. Commentators have pointed out that this symbolic move is likely to have serious effects on the ground. On the one hand the criminalization of poverty is likely to result in a surge of the prison population which, in turn, will plausibly lead to the construction of new prisons. These institutions are likely to be filled with petty criminals whose pursuit provides an unparalleled opportunity to improve criminal statistics. The victims are likely to be predominantly Roma, not only because they are overrepresented among the deeply poor but because the mentioned changes are likely to spur discriminatory police practices (as attested by human rights activists). Finally, the entrenchment of the right to self-defense could lead to the liberalization of weapons possession, the consequences of which are difficult to predict.

This barely cloaked dismantling of the legal edifice of liberal democracy, coupled with the preamble’s archaic language, gives one the impression that Fidesz is attempting to break with modernity by rewinding the clock. It is as if history was made to repeat itself - although unfortunately not as farce - and we were back in the 30s when the priest, gendarme and nabob were key power figures: The first telling you what you ought to believe, the second what you ought to do, and the third whom you ought to vote for. Of course, the methods are softer, quasi-European. Only some of the elementary schools will be handed over to historic churches; Fidesz does not seek to directly control the courts, only to sack and replace “untrustworthy” judges and state prosecutors [15]; and it will not ring the elections, only redraw electoral districts and rewrite the electoral law. All-in-all it appears that Orbán’s answer to the deepening crisis of Hungarian society is a formally democratic, centralized regime of governance, characterized by: a. a reliance on cronies rather than constitutionally defined norms; b. a strong regulation of economic processes and actors; c. the control of public opinion.

Power cemented in concrete

Implementing the project of good society, of course, requires not only wonderful ideas but also patient work. In order to assure the latter one must make sure that the spiteful opposition – always ready to mislead the public - does not have the faintest chance to undercut groundbreaking reforms. Accordingly, Fidesz has sought to either neutralize or take control of the key political institutions which were assigned some role in the system of checks-and-balances by the “constitutional revolution” of 1989/1990. The new Constitution gives the coalition the opportunity to finish that work: The President of the Constitutional Court, whose powers have already been significantly curtailed [16], will no longer be elected by the judges themselves, but by Parliament, with a two-thirds majority. Moreover, the duration of the president’s mandate will be extended from three years to the end of his or her mandate as a judge (a maximum of twelve years), allowing Fidesz to control the court until 2022. The Chief Prosecutor’s mandate has been extended from six to nine years. The position will be occupied until 2019 by Péter Polt, who already held it between 2000 and 2006 (and had previously been a member of Fidesz until 1995). Thanks to an ingenious sleight-of-hand, he will probably be able to stay in office after the end of his mandate because the new Constitution prescribes that a two-thirds majority is required to elect a successor. The president of the State Audit Office, a former MP of Fidesz, was elected last year for a period of twelve years. The current president of the Hungarian National Bank, against whom the government has been conducting a veritable witch hunt, will be in office until 2013. Fidesz will subsequently have the chance to elect a more docile candidate for six years. The renaming of the Supreme Court – the institution will retake possession of its pre-war title: kúria – is a clever maneuver to oust its current president and elect a new one [17], for nine years. Two of the four ombudsman positions (minority rights and the rights of future generations) will cease to be independent [18]. The position of the ombudsman for informational rights will be transformed into a state authority (under governmental control), and the general ombudsman’s title will be changed – again allowing for a change of leadership. You may think that this is already bad enough, but there is more. Fidesz, preparing for an eventual change in government in 2014 or 2018, has introduced two ambivalent clauses which could allow it to prevent substantive policy changes under a new government. First, the Budgetary Council (comprised of a Chairman appointed by the President of the Republic for a period of six years, the President of the Hungarian National Bank and the President of the State Audit Office) will have a right of veto over the country’s budget since its preliminary approval will be required for the passing of the budgetary law. The use of the veto will be linked to an obligation to progressively decrease the national debt to 50 % from the current level of more than 80 % and the provision that until then “Parliament may only adopt law on a Central Budget that does not result in the increase of the level of state debt”. Having witnessed previous governments’ propensity to produce excessive deficits in election years, one may say that there are good reasons for instating such a veto. However, the text also postulates that “The President of the Republic may dissolve the Parliament… if [it] does not adopt the central budget by March 31”. Taking into account the fact that the Budgetary Council will be controlled by Fidesz until at least 2019, the right of veto can be seen as a powerful political instrument circumventing the principle of majority rule in order to force a government to bend to Fidesz’ will. This, however, is not the only clause which may be used to check future governments’ ability to implement their program. As mentioned above, the new Constitution specifies that taxes and pensions may be regulated in a separate super majority law. This would allow Fidesz to prevent future governments from overriding certain policies, such as the family tax breaks introduced in 2010 which Fidesz has already pledged to keep in vigor. Whether this super majority law will contain other provisions (such as the flat income tax or pension reform) is for the moment impossible to tell.

What now?

To sum up: The new Constitution a. disempowers the whole political community by altering its basic norms and values without the consent of its members (let’s not forget that Fidesz’ electoral program contained no mentioning of a new Constitution); b. curtails certain fundamental rights and undermines the system of checks-and-balances; and c. confronts citizens with the prospect of having to live in a state which exhibits authoritarian tendencies in general, and a propensity to impose its Weltanschauung (by the means of education and the control of media) in particular.

Had there been an attempt to impose such a Constitution in any of the European Union’s old member states, it would most certainly have met serious opposition from of a wide range of actors (including professional groups, citizens and politicians). This is not been the case in Hungary. Besides a few heads of institutions ensuring checks-and-balances (e.g. two ombudsmen, the president of the Supreme Court), only a newly formed citizens’ movement and political parties in opposition have publically voiced concerns. Moreover, turnout at the separate rallies organized by these different actors (the newly formed “One Million for the Freedom of Press in Hungary” group, former Prime Minister Ferenc Gyurcsány, the Socialist party and LMP) has been shamefully low: approximately 2-5000 people took part in each of the demonstrations held between 15 and 17 April. This shows that the fragmented opposition has not managed to get a fundamental message across: that the Constitution is not just a piece of paper unconnected to the social and political struggles of everyday life –its words matter.

So is the situation hopeless? If, on the one hand we look at Hungarians’ willingness to tolerate authoritarian rule in the not-so-distant past, it is normal to despair. Orbán’s regime appears to be perfectly in tune with society’s demand for strong(er) leadership and experientially grounded aversion towards liberal democracy. On the other hand, it is also worthwhile to note that this tolerance and demand have, in the past, tended to dry out as soon as the motor of the economy began to seriously falter. In the conclusion of my last article I wrote that the governing coalition’s ability to remain in power will depend on the success or failure of its economic policies. In case the one million jobs promised by Minister Matolcsy do not materialize, we will see many rallies like the one organized on 9 April by the unions against the dismantling of the welfare state (drawing a crowd of approximately 50 000). A surge in popular discontent with the government will necessarily turn citizens against the system it will be associated with. In other words, the “System of National Cooperation” could collapse sooner than even its most radical opponents would hope. Although the Constitution appears to entrench right-wing rule for the next ten to fifteen years, there is in fact a possibility that an overwhelming Fidesz defeat will prompt the victors to find a way to write a new Constitution. (Who these will be is impossible to tell at the moment. Without entering the realm of speculation, I would simply like to note that an economic slump could be capitalized on by both far-right and left-of-center forces.) Until then the main question is how much of the “old” constitution’s spirit we, Hungarian citizens, will be able to preserve through our struggles for democracy and social justice. The ruling coalition’s unambiguously hard-right deeds and rhetoric provide an unparalleled opportunity to voice our concerns with the current regime and spell out our vision of a more inclusive and hence sustainable “Fourth Republic”. In this, however, we must strive to avoid the fundamental error of the old left: castigating the whole of the political right as a force of the past. Instead, the left-of-center should provide symbolic space for those who would qualify as conservatives adhering to a liberal and social minimum. Seeing the failures of our historic predecessors who engaged in consensus-building projects, it is normal to be skeptical and even pessimistic. But fatalism is not an option, because the perpetuation of old divides and hatred would amount to a Stalingrad not only for Fidesz (as one party member referred to the Constitution), but the nation as a whole.



[1] The think tank Policy Solutions, which has analyzed the Constitutions of all former postsocialist states, talks of a regional record. See:
To my knowledge the Constitutions of all Western European states all benefit from a higher degree of legitimacy than Hungary’s new Constitution.

[2] The Commission (whose full name is European Commission for Democracy through Law) is the Council of Europe's advisory body on constitutional matters. Initially conceived as a tool for emergency constitutional engineering, the commission has become an internationally recognized independent legal think tank. The Commission was approached on 21 February 2011 by the Deputy Prime-Minister and Minister of Public Administration and Justice, Mr. Tibor Navracsics, who  requested it to prepare a legal opinion on three particular issues arising in the framework of the drafting of a new Constitution. (These were: 1. The EU’s Charter of Fundamental Rights and the Constitution; 2. The role and significance of the preliminary (ex ante) review among the competences of the Constitutional Court; 3. The role and significance of the actio popularis in ex post constitutional review.) In its Opinion, the Commission underlined that it had “limited itself to general comments on the three issues at stake and on the most suitable options that, in its view, could be implemented in the Hungarian context”. Nonetheless, the opinion formulates an indirect critique of the whole process in point 18-19. See:

[3] The text would, for instance, have banned abortion, and cemented the new Constitution in concrete (by stipulating that only two consecutively elected Parliaments could amend it with a two-thirds majority).

[4] See footnote 14.

[5] The latest opinion poll shows that since February (when Fidesz registered its first significant losses in popularity) the government’s approval rating dropped by another 4 points; support for Fidesz by 5 points among all voters and by 8 points among likely voters; and the Prime Minister’s approval rating by 8 points. (

[6] Note that the “old” Constitution’s declaration “In the Republic of Hungary supreme power is vested in the people” will be replaced by the formula: “The source of all power is the people”.

[8] Although 23 October will remain a national holiday, the text no longer mentions that this was the day that the Third Republic was proclaimed in 1989.

[9] Originally, it was the six bills which constituted the legal framework of the bloodless transition of 1989/1990 which were called super majority laws. Today, the term is used to refer to the laws which constitute the “outer core” of the Constitution and require a two-thirds majority to adopt or amend.

[10] Hungary’s population fell below the level of 10 million in 2010, causing moral panic, especially on the right side of the political spectrum.

[11] The new Constitution stipulates: “All adult Hungarian citizens residing in the territory of Hungary shall have the right to be elected and the right to vote in parliamentary elections, local elections of representatives and mayors, as well as the elections of members of the European Parliament. The right to vote or the comprehensiveness of such right may be restricted to residence  in Hungary and eligibility to be elected to further criteria in a separate super majority law.” Coalition partners are still debating whether Hungarian citizens living abroad should be allowed to vote for their own candidates (necessitating the creation of extra-territorial electoral districts and extra parliamentary seats) or for existing candidates and party lists.

[12] Under the pressure of the far right the coalition has proposed an amendment which states that Hungary supports ethnic Magyar aspirations to enjoy individual and collective rights, as well as to form collective self-governments – an allusion to the ongoing struggle for cultural and political autonomy in the neighboring countries.

[13] On 8 June the new parliament changed the Penal Code, introducing a "three-strikes law" according to which repeat offenders convicted for serious, violent crimes on three or more occasions are to be punished by a double prison term.

[14] The most nauseating part of the process was the 12-point questionnaire in which the government sought to engage in a “National Consultation” with the public. Naturally, the questionnaire provided no space for any kind of debate or dialogue. Shockingly, the questions were framed in a rather suggestive form and the questionnaire also omitted some of the most controversial issues, such as the restriction of the competence of the Constitutional Court or the right to vote of Hungarian citizens living abroad. See:

[15] The leader of Fidesz’ parliamentary group has tabled a proposal to lower the age of retirement for judges and state prosecutors from 70 to 62 (the mandatory age of retirement currently in force). This would allow the sacking of a significant number of judges who had been professionally active during the communist regime and whom the current regime does not trust. (It is worth mentioning that in the meantime the mandatory age of retirement for policemen and firemen has been raised from 60 to 62 years.)

[16] In 2010 the parliamentary introduced a highly controversial amendment to the “old” Constitution, curtailing the Constitutional Court’s power to determine whether laws pertaining to taxation (including the budget) are in conformity with constitutionally protected rights. (According to the amendment, the Court can only examine whether these laws are in conformity with the right to human dignity; the right to the protection of personal data; freedom of thought, conscience and religion; or rights related to citizenship.) The new Constitution goes one step further by abolishing the “actio popularis”: the right of all citizens to demand a constitutional review of a specific law adopted by Parliament. (This right will be restricted to the government; the general ombudsman; one-fourth of MPs; and citizens directly affected by the adoption of a specific law.)

[17] The renaming of institutions has figured among the favorite methods for firing leaders in the repertoire of post-transition governments.

[18] The intervention of Mr. Kállai, ombudsman for minority rights, prompted the coalition to introduce an amendment according to which the work of the general ombudsman will be aided by two deputies - one responsible for minority rights, the other for the rights of future generations. According to another last-minute amendment these deputies will not be appointed, but elected by a two-thirds majority (which confirms the current practice).

A subjective assessment of the political situation in Hungary

This text ist part of a series of articles in which Kristóf Szombaty, long-time member of the Hungarian green movement and co-founder of the “Lehet Más a Politika” (LMP) party, intends to lift the veil on significant social, political and cultural transformations since the right-wing government came to power in Hungary. Click on the following links for more texts from the series:

Dossier: Focus on Hungary

The Heinrich Böll Foundation has compiled a dossier containing articles and interviews on the situation in Hungary since the right wing government came to power in April 2010. The driving goal behind the project is to analyze and interpret the changes in the domain of public life at ‘half-time’, two years before the next parliamentary elections.