Abstract
Drawing on the work of the 20th century Hungarian political
scientist, Istvn Bib, this article offers a critical examination of
Hungarys new constitution, or Fundamental Law, which entered into
force in January 2012. Hungarys Fundamental Law and various
associated legal texts have been heavily criticised by the EU
Parliament, the OSCE, the Council of Europes Venice Commission, the
US State Department, major human rights NGOs and foreign as well as
Hungarian scholars. This article argues that the constitutional
regime that operated in Hungary from the end of communist rule
until January 2012 represented a satisfactory framework for the
consolidation of liberal democracy, the rule of law and the
protection of human and minority rights. By contrast, the
Fundamental Law, related legal instruments and various policies of
the present government have diluted or threatened essential
democratic freedoms and have resulted in the removal of many of the
checks and balances that previously operated within the Hungarian
constitutional system. These regressive measures suggest that
elements of what Istvn Bib called the deformed political culture of
pre-World War II Hungary are reasserting themselves.
The Crisis of Democracy in East Central Europe: The 'New
Constitutionalism' in Hungary[footnoteRef:1] [1: Earlier versions
of this article were presented as papers at research seminars held
at the University of Kent (February 2012) and at the Norwegian
University of Science and Technology (March 2012). I am grateful to
the Editor of European Public Law and to to the anonymous reviewer
for their helpful and insightful comments on an earlier draft of
this article. Unless indicated to the contrary, all translations
from French and Hungarian are by the author.]
Istvn Pogny[footnoteRef:2] [2: Professor of Law, School of Law,
University of Warwick.]
Above all, being a democrat means not being afraid; not being
afraid of people with different opinions, different mother tongues,
or people from different races...not being afraid of all those
imaginary fears which are only made real by our fear of them.
Istvn Bib, The Misery of the Small States of Eastern Europe
(1946)[footnoteRef:3] [3: See Bib Istvn, A kelet-eurpai kisllamok
nyomorsga in Bib Istvn sszegyjttt Munkai, Vol. 1 eds Kemny and
Srkzi (Berne: Az Eurpai Protestns Magyar Szabadegyetem, 1981), 202
at 222.]
1 Introduction
On 15 March 2012, on the emotionally-charged anniversary of
Hungarys revolt against Habsburg rule, Hungarys Prime Minister,
Viktor Orbn, declared that his fellow countrymen remain committed
to the principles of freedom and sovereignty that had prompted the
uprising of 1848.[footnoteRef:4] In an impassioned speech delivered
before a crowd of supporters, Orbn asserted that there are
important parallels between the events of 1848 and the present day,
as well as underlying similarities in Hungarys treatment by the
USSR and, latterly, by the European Union: we are only too familiar
with the image of the comrade offering unsolicited help and we
recognise his type even when he is not dressed in a uniform with
epaulets but comes disguised in a well-tailored
suit.[footnoteRef:5] [4: For the original, Hungarian-language text
of Orbns speech see e.g. The following English-language quotes from
Orbns speech were translated by the author. For an alternative
English-language translation of excerpts from Orbns speech, which
was made available by Hungarian officials, see e.g. Financial
Times: Brussels Blog, 16 March 2012, at: .] [5: Authors
translation.]
For the present government, Hungarys history represents a
continuous and as yet incomplete struggle for independence and
self-realization in the face of a succession of external threats,
whether emanating from Vienna, Moscow or Brussels. Thus, the prime
minister reminded his listeners that they are the political and
spiritual heirs of 1848 and asserted that now, as then, the
fundamental aspiration of the Hungarian people can be summed up in
the rallying cry: we shall not be a colony![footnoteRef:6] [6:
Ibid.]
The prime ministers speech aside from its dubious and
provocative historical analogies - shows that he and his government
have failed to grasp the changing character of state sovereignty.
Thus, Orbn defined national freedom as the liberty of the state (or
nation) to determine its own laws, to decide whats important and
whats not.[footnoteRef:7] Hungarys Prime Minister emphasised that
his country must be allowed to make such decisions:[footnoteRef:8]
[7: Ibid. ] [8: Ibid.]
using our Hungarian eyes, our Hungarian way of thinking and in
accordance with the rhythm of our Hungarian hearts. This is why we
are writing our own constitutionand we dont want any unsolicited
help from strangers who are keen to guide usHungary must turn on
its own axis
The insistence on the preservation of complete national freedom
reflects an outdated and largely discredited conception of state
sovereignty. For example, Martti Koskenniemi, recently defined
sovereignty as, the freedom of action left to public officials by a
states international obligations.[footnoteRef:9] As Koskenniemi
points out, sovereignty has lost much of its normative or
descriptive meaning. All over the world, states are bound by an
increasingly dense network of formal and informal rules and
regimes.[footnoteRef:10] [9: Martti, Koskenniemi, What Use for
Sovereignty Today? Asian Journal of International Law 1 (2011): 61,
at 61-63. ] [10: Ibid., 63.]
In the present day, international human rights norms concerning
self-determination, democratic governance, respect for civil
liberties etc define the parameters within which sovereign
governments may lawfully function. Governments can no longer pursue
oppressive, discriminatory or undemocratic policies, for example,
without risk of violating international law and triggering
international censure and possible sanctions.[footnoteRef:11]
Governments are no longer free, in the exercise of state
sovereignty, to violate the fundamental freedoms of their
people.[footnoteRef:12] [11: For example, during its 65th Session
in 2010/11, the UN General Assembly adopted resolutions in which it
condemned serious and persistent human rights violations in various
countries and called upon the governments and non-state actors
concerned to comply with their obligations under international law.
See, in particular, GA Res. 65/287 on the Status of Internally
Displaced Persons and Refugees from Abkhazia, Georgia, and the
Tskhinvali Region/South Ossetia, Georgia; GA Res. 65/241 on the
Situation of Human Rights in Myanmar; GA Res. 65/226 on the
Situation of Human Rights in the Islamic Republic of Iran; GA Res.
65/225 on the Situation of Human Rights in the Democratic Peoples
Republic of Korea; GA Res. 65/105 on Israeli Practices Affecting
the Human Rights of the Palestinian People in the Occupied
Palestinian Territory etc; GA Res 65/104 on Israeli Settlements in
the Occupied Palestinian Territory etc. In July 2012, in response
to continuing attacks on Syrian civilians by government and
pro-government elements, the UK, US, Germany and France introduced
a draft resolution in the UN Security Council which threatened
Syria with economic sanctions. See UK draft resolution on Syria/
UNSMIS under Chapter VII (July 11, 2012), UN Report, available at:
http://un-report.blogspot.co.uk/2012/07/uk-draft-resolution-on-syria-unsmis.html]
[12: The characterization of a states behaviour as unlawful will
not automatically translate into the application of sanctions,
particularly where the transgressor can count on the support of
powerful allies. For example, up to August 2012, vetoes cast by
China and Russia in the UN Security Council have prevented the
Council from responding to escalating human rights violations and
to significant breaches of international humanitarian law by
government forces in Syrias civil conflict. See e.g. Jos Luis Diaz,
The Security Councils Syria shame, CNN World, 2 August 2012,
available at:
http://globalpublicsquare.blogs.cnn.com/2012/08/02/the-security-councils-syria-shame/]
By joining the European Union (EU), Hungary has voluntarily
limited its national sovereignty still further. For example, in
Costa vENEL, the European Court of Justice held:
By creating a Community of unlimited duration, having its own
institutions, its own personality, its own legal capacity and
capacity of representation on the international plane and, more
particularly, real powers stemming from a limitation of sovereignty
or a transfer of powers from the States to the Community, the
Member States have limited their sovereign rights, albeit within
limited fields... [footnoteRef:13] [13: Case 6/64, Costa v.
E.N.E.L., EUR-Lex 585, at 593 (my emphasis), available at:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61964CJ0006:EN:PDF.
See, generally, Ingolf Pernice, Costa v ENEL & Simmenthal:
Primacy of European Law Revisited in The Past and Future of EU Law:
The Classics of EU Law Revisited on the 50th Anniversary of the
Rome Treaty, eds. Miguel Poiares Maduro, Loic Azoulai (Oxford: Hart
Publishing, 2010) 47. ]
EU membership entails acceptance of supranational processes of
law-making and of the acquis communautaire, the corpus of EU rights
and obligations. However unconscionable for Hungarys current
government, EU membership involves partial, albeit voluntary, loss
of sovereignty.
Prime Minister Orbns refusal to acknowledge limits on Hungarys
sovereignty stems, at least in part, from a fundamental ideological
difference between old and new EU Member States. As Anneli Albi has
commented: [i]n the old Member States, the concept of sovereignty
has considerably transformed in the course of the European
integration process.[footnoteRef:14] By contrast, in the new EU
States, particularly in Central and Eastern Europe (CEE), there has
been much stronger resistence, both amongst politicians and legal
theorists, to the surrender or pooling of national sovereignty. As
Albi emphasises, the countries of Central and Eastern Europe, where
sovereignty was only recently restored, have hitherto predominantly
operated in a traditional language of sovereignty, independence,
ethnically defined nation-state and national
self-determination.[footnoteRef:15] [14: See Anneli Albi, EU
Enlargement and the Constitutions of Central and Eastern Europe
(Cambridge: Cambridge University Press, 2005), 122.] [15: Albi,
supra n. 12, at 122.]
This difference in outlook is largely explicable by reference to
the history of the CEE region. Unlike the countries of western
Europe, most CEE states were subject to varying degrees of external
(i.e. Soviet) domination from the end of World War II until the
revolutions of 1989.[footnoteRef:16] This reinforced earlier
memories, throughout the CEE region, of the centuries-long struggle
of peoples or nations for national recognition (or survival) and
for political self-determination.[footnoteRef:17] Thus, the very
specific historical legacy of the CEE region has helped to produce
a culture in which notions of unbounded national sovereignty remain
important in political and legal discourse. [16: On the
establishment of Soviet hegemony over the CEE region see e.g.
ZbynkZeman, The Making and Breaking of Communist Europe, rev edn
(Oxford: Basil Blackwell, 1991), Ch. 18; Joseph Rothschild &
Nancy Wingfield, Return to Diversity, 3rd edn (New York &
Oxford: Oxford University Press, 2000), Ch. 3.] [17: For a good
general history of the CEE region see e.g. Robert Bideleux and Ian
Jeffries, A History of Eastern Europe 2nd edn (London & New
York: Routledge Taylor & Francis Group, 2007).]
This critical difference in the historical experience of Western
and Eastern Europe was emphasised by Istvn Bib. Writing in 1946,
Bib argued that while most West European nations (French, British,
Swedes, Danes, Dutch etc) have experienced economic crises, wars
and, in several cases, the loss of empire, there was always,
something that couldnt be taken away from them, something that
couldnt be disputed.[footnoteRef:18] By contrast, in the CEE
region, Bib argues, nationhood had to be made, re-fashioned, fought
for and constantly protected not only from the predations of
imperial powers but also from the indifference and fluctuating
sense of national identity of a part of the people
themselves.[footnoteRef:19] [18: Bib, supra n. 1, 220.] [19:
Ibid.]
Importantly, Prime Minister Orbns speech of 15 March 2012, with
its emphasis on law-making in accordance with Hungarian eyes,
Hungarian way[s] of thinking and the rhythm of our Hungarian
hearts, can also be understood as a rejection of the notion of a
common set of European, let alone global, values. In effect, the
Prime Ministers speech with its robust defence of cultural and
other differences between states (or nations) as justifying
variations in political and constitutional practice - challenges
the fragile ideological consensus that has existed in Europe since
the end of communist rule in the CEE area.[footnoteRef:20] [20: The
main elements of this ideological consensus - democracy, the rule
of law, human rights and economic liberty - were affirmed in the
OSCEs Charter of Paris for a New Europe, adopted by Europes heads
of state and government in November 1990. For the text of the
Charter of Paris see e.g. http://www.osce.org/mc/39516.]
Alternatively, Prime Minister Orbns words can be understood as a
call for European states, like Hungary, to enjoy an unusually broad
margin of appreciation in their interpretation of shared
constitutional principles, including democracy, human rights and
the rule of law. On this view, each state as the ultimate custodian
of its unique cultural heritage or way[s] of thinking must be the
final arbiter of the legitimacy of its actions.
Prime Minister Orbns speech, with its deliberately offensive
historical analogies, needs to be understood in the context of the
intense criticism levelled at Hungarys new constitution, or
Fundamental Law, as well as at other laws and policies adopted by
Hungarys Fidesz-led government, which came to power after elections
in April 2010.[footnoteRef:21] Crucially, Fidesz won over
two-thirds of the seats in Hungarys unicameral
parliament,[footnoteRef:22] giving it the necessary votes to secure
the passage of the Fundamental Law and of a series of associated
legal texts.[footnoteRef:23] [21: These criticisms are examined
infra, Part 3.] [22: In Hungarys most recent general elections,
held in April 2010, Fidesz secured 263 of the 386 seats in
Parliament. See e.g. http://news.bbc.co.uk/2/hi/8642456.stm.] [23:
In accordance with Art. 24(3) of Hungarys 1989 Constitution, a
majority of two-thirds of Parliamentary Deputies was required to
amend the Constitution. Similary, a two-thirds majority was
required to elect the President or to amend other basic laws,
including laws concerning human rights. For an English-language
text of the 1989 Constitution see e.g.
http://www.servat.unibe.ch/icl/hu00000_.html]
Condemnation of recent constitutional developments in Hungary
has come from various sources including the OSCE, the EU
Commission, the EU Parliament, the Council of Europes European
Commission for Democracy Through Law, the US State Department, the
Foreign Minister of France, The New York Times,The Financial Times,
Der Spiegel, Le Monde and The Economist, human rights NGOs and
legal scholars from Hungary and abroad. In essence, critics assert
that the Fundamental Law, which entered into force in January 2012,
as well as related legislation, have eroded democracy, civil
liberties, and the separation of powers in Hungary.[footnoteRef:24]
[24: See infra, Part 3.]
This article examines the Fundamental Law, as well as related
laws and political initiatives, to determine whether the intense
and sustained criticism of these measures is fully warranted.
However, before reviewing the Fundamental Law and related
legislation, the article provides an overview of the
(re)introduction of democracy, human rights and the rule of law in
Hungary and in the CEE states following the collapse of communist
rule. Without a thorough understanding of the constitutional regime
that operated in Hungary from 1990 to 2012 it is impossible to
evaluate the Fidesz-led Governments claims that there was a
pressing need for a new democratic constitution in Hungary and that
the Fundamental Law and associated legislation represent a major
improvement over the earlier constitutional arrangements. Finally,
in Part 4, the article uses Istvn Bibs contrasting models of
liberal and illiberal or authoritarian democracy to illuminate
recent constitutional developments. As argued below, Bibs depiction
of authoritarian democracy, which was based on the deformed
political culture of the CEE region in the first half of the 20th
century, as well as Bibs understanding of what a genuine democratic
sensibility would mean. Bibs contrasting are used to
illuminate.
Istvn Bib, who was imprisoned in Hungary for his involvement in
the abortive revolution of 1956, died in politically-imposed
obscurity in Budapest, in 1979. Bib is now acknowledged by a small
but growing circle of British, French and American scholars as one
of the 20th centurys outstanding liberal thinkers.[footnoteRef:25]
As Alexandra Laignel-Lavastine has commented, [Bib] compte parmi
les penseurs politiques europens la fois les plus pntrants et les
plusmconnus de la seconde moiti du XXe sicle.[footnoteRef:26] [25:
On Bibs scholarly writings see e.g. Robert Berki, The Realism of
Moralism: The Political Philosophy of Istvan Bibo, XIII History of
Political Thought (1992: 3) 513. See, also, Katalin Srvry,
Democracy and international relations: the theory of Istvn Bib
(19111979), 11 Journal of International Relations and Development
(2008:4), 385; Alexandra Laignel-Lavastine, Esprits dEurope (Paris:
Calmann-Lvy, 2005), Part Three; Johanna Granville, Istvn Bib and
the history of Hungary in the 20th Century (conference paper,
Trento, Italy, 26-27 October 2001), available at:
www.csseo.org/Papers/paperGranville.rtf.] [26: Alexandra
Laignel-Lavastine, supra n. 23, 475 (iBooks edition). The passage
may be translated as: [Bib] represents one of the most insightful
as well as overlooked European political thinkers of the second
half of the 20th century.]
2 (RE)INTRODUCing Democracy, Human rights and the
Rule of Law in Hungary AND IN the cee states
The collapse of communist governments in the CEE region in
1989-1990 and the regions uneven transition to forms of democracy,
constitutionalism and market economics has been analysed by
numerous scholars.[footnoteRef:27] As emphasised by commentators,
factors within individual states generally dictated the course and
pace of the transitions. [27: See, in particular, Timothy Garton
Ash, We the People, rev. edn (London: Penguin Books, 1989); Misha
Glenny, The Rebirth of History (London: Penguin Books, 1990);
Franois Fejt, La fin des dmocraties populaires (Paris: DITIONS DU
SEUIL, 1992); Rothschild & Wingfield, supra n. 13, Chs. 7-8;
Democratic Consolidation in Eastern Europe, Vol. I, ed Zielonka
(Oxford & New York: Oxford University Press, 2001); Democratic
Consolidation in Eastern Europe, Vol. II, eds Zielonka & Pravda
(Oxford & New York: Oxford University Press, 2001).]
New or heavily revised constitutions were adopted in every
post-communist state. In broad terms, these provided for
multi-party democracy, the rule of law and respect for human and
minority rights.[footnoteRef:28] With varying degrees of success
the constitutions, together with a raft of accompanying
legislation, succeeded in formally replacing the centralization of
power characteristic of the communist order in which political
power was the monopoly of the communist party - with the separation
of powers characteristic of liberal parliamentary democracy. The
possibility of the re-emergence of arbitrary, oppressive or
dictatorial government in the CEE states was reduced, if not
eliminated, through the introduction of a series of constitutional
checks and balances in which, according to a range of formulae,
power was shared between the various branches of
government.[footnoteRef:29] [28: For a comparative analysis of
post-communist constitutions in the CEE states see e.g. Leonardo
Morlino, Constitutional Design and Problems of Implementation in
Southern and Eastern Europe in Democratic Consolidation in Eastern
Europe, Vol. I, supra n. 25, 48 at 78-105. Hungary did not enact a
new constitution, or Fundamental Law, until 2011. This entered into
force in January 2012. For the text (in Hungarian) see e.g.
http://www.kozlonyok.hu/nkonline/MKPDF/hiteles/mk11043.pdf. For an
English-language translation see e.g.
http://www.kormany.hu/download/4/c3/30000/THE%20FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf.
However, as discussed below, major amendments to Hungarys
communist-era Constitution, passed in 1989-1990, are widely felt to
have ensured that the Hungarian constitution reflected European
standards of democratic pluralism, the rule of law and the
protection of human and minority rights. ] [29: The major exception
to this pattern of peaceful if uneven transition in the CEE area
was the former Yugoslavia. See e.g. Misha Glenny, The Fall of
Yugoslavia 3rd rev edn (London: Penguin Books, 1996); Allan Little,
Laura Silber, Aleksandar Siric, The Death of Yugoslavia 2nd rev edn
(London: Penguin Books, 1996).]
Inevitably, the success of these constitutional formulae has
depended on a number of factors. These include the willingness of
heads of state, members of the judiciary and parliamentary deputies
to exercise their legal powers to the full, where necessary, in
defence of constitutional values. Ultimately, the personal
qualities of key political and legal figures - strength of
character, moral values, intellectual outlook and charisma - may be
as important as questions of constitutional design.[footnoteRef:30]
[30: Some recent examples of the importance of the personal
qualities manifested by a politician are given infra, Parts 2,
3.]
In Hungary, round table talks, involving members of the ruling
communist party, opposition elements and certain other groupings,
were held in the summer of 1989.[footnoteRef:31] These resulted,
inter alia, in the detailed revision of Hungarys 1949 communist
Constitution and in agreement on the establishment of a
Constitutional Court. The heavily amended Constitution was formally
adopted by Hungarys parliament in October 1989, while a series of
further constitutional amendments were passed in
1990.[footnoteRef:32] As as result of these measures, the 1949
communist Constitution was comprehensively overhauled to meet the
requirements of a liberal, multi-party democracy. As emphasised by
Istvn Szikinger, the constitutional amendments adopted in Hungary,
in 1989-90, resulted in a critical shift in the underlying ethos or
spirit of Hungarys Constitution: [31: For an account of the round
table talks see e.g. Paul Lendvai, Hungary: Between Democracy and
Authoritarianism (London: Hurst & Company, 2012), 24-26. See,
also, Istvn Szikinger, Hungarys Pliable Constitution in Democratic
Consolidation in Eastern Europe, Vol. I, supra n. 25, 406 at
410-14.] [32: For the text of the revised Constitution (in
English), which remained in force until 1st January 2012, see
supra, n. 21.]
Although the Hungarian Constitution remains officially cited as
Act No. XX of 1949 (as amended) practically no provision survived
unscathed after the numerous modifications...The 1989 amendment
(Act No. XXXI) changed not only an overwhelming majority of
positive rules in the basic law, but also its spirit. The
party-state rgime enshrined in the 1949 communist Constitution was
thus transformed into one structured along the principles of
division of power and the liberal values of human rights and public
power.[footnoteRef:33] [33: Szikinger, supra n. 29, 47.]
Similarly, the political scientist, Attila gh, has argued that
the revised constitution, despite its shortcomings, may be accepted
as an appropriate constitution for a democratic legal state, as it
meets all the major requirements of European
standards.[footnoteRef:34] [34: Attila gh, The Permanent
Constitutional Crisis in the Democratic Transition: The Case of
Hungary in Constitutional Policy and Change in Europe, eds Hesse
and Johnson (Oxford: Oxford University Press, 1995) 296, at
300.]
Following general elections, held in March and April 1990, a
right of centre government was formed by the Magyar Democratic
Forum (MDF) in coalition with the Independent Smallholders Party
and the Christian Democrats.[footnoteRef:35] The government was
headed by the MDFs leader, Jzsef Antall.[footnoteRef:36] Hungarys
first post-communist president, chosen by agreement amongst the
parliamentary parties, was rpd Gncz, a communist-era dissident who
was now a member of the opposition Free Democrats.[footnoteRef:37]
Hungarys newly established Constitutional Court, which began work
in January 1990, was presided over by Lszl Slyom, a former law
professor.[footnoteRef:38] [35: See e.g. Rothschild &
Wingfield, supra n. 13, at 244-45.] [36: On Antall see e.g.
Lendvai, supra n. 29, Ch. 3.] [37: Lendvai, supra n. 29, at 37-39.]
[38: On Slyoms background and on his role as the first president of
Hungarys Constitutional Court see generally Kim Lane Scheppele
excellent article, Guardians of the Constitution: Constitutional
Court Presidents and the Struggle for the Rule of Law in
Post-Communist Europe, University of Pennsylvania Law Review 154
(2006), 1757.]
The Constitutional Court quickly became central to Hungarys
emergent constitutional system. As noted by Attila gh, the Court
gained an influential place in the division of powers and a vital
role in political life, becoming a key player.[footnoteRef:39]
Similarly, Princeton Universitys Kim Lane Scheppele has emphasized
the pivotal role that Hungarys Constitutional Court came to
exercise, in the 1990s, in a fragile world of political
reconstitution.[footnoteRef:40] Scheppele notes that: [d]uring
Slyoms nine-year tenure, the Courtissued 1871 decisions and had a
hand in virtually every major aspect of Hungarys transition to an
independent democratic state.[footnoteRef:41] [39: gh, supra n. 32,
at 315.] [40: Scheppele, supra n. 36, at 1758.] [41: Ibid.,
1785.]
Decisions of the Constitutional Court have helped to clarify,
inter alia, the functions and powers of the head of state, the
lawfulness of the death penalty, the extent of the constitutional
protection of socio-economic rights, as well as the permissible
scope of measures of transitional justice, including compensation
for injuries to property and other rights by earlier Hungarian
administrations.[footnoteRef:42] The subject-matter jurisdiction of
the Court and rules governing locus standi were exceptionally
broad, [footnoteRef:43] suggesting a genuine desire to
constitutionalise the new political system. Professor Scheppele
argues that: [w]hen communism collapsed, constitutionalism stood up
to take its place. Or, at least, constitutionalism offered itself
as a moral ideology of the state to replace the instrumental
ideology of communismvirtually all in Hungarian public life eagerly
embraced this new philosophy.[footnoteRef:44] [42: See, generally,
Catherine Dupr, Importing the Law in Post-Communist Transitions:
The Hungarian Constitutional Court and the Right to Human Dignity
(Oxford: Hart, 2003); Constitutional Judiciary in a New Democracy,
eds Lszl Slyom and Georg Brunner (Ann Arbor: University of Michigan
Press, 2000); Istvn Pogny, Righting Wrongs in Eastern Europe
(Manchester: Manchester University Press, 1997), Parts II, III. For
a comparative study of constitutional courts in Central and Eastern
Europe see Wojciech Sadurski, Rights Before Courts: A Study of
Constitutional Courts in Postcommunist States of Central and
Eastern Europe 2nd edn (Dordrecht: Springer, 2007).] [43: See,
generally, Herman Schwartz, The New East European Constitutional
Courts in Constitution Making in Eastern Europe in Constitution
Making in Eastern Europe, ed Howard (Washington, DC: Woodrow Wilson
Center Press, 1993), 163 at 167-75.] [44: Scheppele, supra n. 36,
at 1846.]
Under Hungarys revised constitution a credible system of checks
and balances and of multi-party democracy was introduced for almost
the first time in Hungarys history.[footnoteRef:45] This
represented an extraordinary shift from the communist-era political
process in which policy-making was neither transparent nor
inclusive, in which judicial review was virtually unknown and in
which political power had been concentrated almost exclusively in
the hands of the inner circles of the Party. [45: As Misha Glenny
caustically observed: Hungary may have a proud history, but its
democratic traditions would barely fill a school exercise book.
Glenny, supra n. 25, 72. See, also, Gale Stokes, The Social Origins
of East European Politics in The Origins of Backwardness in Eastern
Europe ed Daniel Chirot (Berkeley and Los Angeles: University of
California Press, 1989) 210, esp at 219-26.]
To many observers, particularly in the 1990s, Hungarys
democratic institutions seemed reasonably robust. Under Slyom, who
was President of Hungarys Constitutional Court from July 1990 until
November 1998, the Court was widely respected for its willingness
to confront the executive and for the intellectual rigour of many
of its judgments.[footnoteRef:46] At the same time, a number of
Hungarys post-communist heads of state, beginning with the former
political dissident, rpad Gncz, demonstrated a capacity for
independent-mindedness.[footnoteRef:47] In particular, Gncz and one
of his successors, Lszl Slyom, viewed the presidency as an
important check on the executive and as a custodian, together with
the Constitutional Court, of the Constitution. [46: See e.g.
Scheppele, supra n. 36, 1775-1786. ] [47: On the increasingly
strained relations between the Prime Minister, Jzsef Antall, and
the State President, rpd Gncz see e.g. Lendvai, supra n. 29,
38-47.]
From 1990 to 2010, the power of Hungarian prime ministers was
limited by the exigencies of coalition government, by periodic
interventions by the President or by the Constitutional Court, as
well as by a growing number of normative constraints resulting from
Hungarys new diplomatic alignment. Hungary joined the Council of
Europe in November 1990,[footnoteRef:48] the OECD in May
1996,[footnoteRef:49] NATO in March 1999[footnoteRef:50] and the EU
in May 2004.[footnoteRef:51] Hungary has also been a participating
state in the OSCE, formerly the CSCE, since its
inception.[footnoteRef:52] [48: For details see e.g.
http://www.coe.int/en/web/coe-portal/country/hungary.] [49: See
e.g.
http://www.oecd.org/general/listofoecdmembercountries-ratificationoftheconventionontheoecd.htm.]
[50: On the history of Hungarian-NATO relations see e.g.
http://www.mfa.gov.hu/kum/en/bal/foreign_policy/security_policy/hungary_in_nato/history__hungarian_nato_relations/.]
[51: For details of EU member states see e.g.
http://europa.eu/about-eu/countries/index_en.htm.] [52: For a list
of CSCE participating states see http://www.osce.org/who/83.]
Membership of these organisations entails a clear commitment to
the principles of multiparty democracy, the rule of law and respect
for individual and minority rights. For example, Art. 3 of the
Statute of the Council of Europe provides that: [e]very member of
the Council of Europe must accept the principles of the rule of law
and of the enjoyment by all persons within its jurisdiction of
human rights and fundamental freedoms.[footnoteRef:53] Similarly,
in November 1990, states participating in the OSCE (then the CSCE),
expressed their commitment to the principles of democracy, human
rights and the rule of law in The Charter of Paris.[footnoteRef:54]
With respect to the EU, Members human rights obligations are spelt
out, inter alia, in Arts. 2, 3, 6 and 21 of the Consolodated
version of the Treaty on European Union,[footnoteRef:55] while [53:
For the text of the Statute see e.g. European Treaty Series - No 1
(London, 5.V.1949).] [54: For the text of the Charter see e.g.
http://www.osce.org/mc/39516.] [55: For the text of the Treaty see
Official Journal of the European Union, 2010/C 83/01, available at:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:FULL:EN:PDF.]
post-communist states seeking to join the Organisation have had
to show that they have:
...achieved stability of institutions guaranteeing democracy,
the rule of law, human rights and respect for and protection of
minorities, the existence of a functioning market economy as well
as the capacity to cope with competitive pressure and market forces
within the Union.[footnoteRef:56] [56: See PRESIDENCY CONCLUSIONS,
Copenhagen European Council, 21-22 June 1993, available at:
http://www.europarl.europa.eu/enlargement/ec/pdf/cop_en.pdf.]
In the same period, Hungary and other CEE states have also
expressed their acceptance of western, liberal values by acceding
to various human rights treaties that focus on civil, political and
minority rights, in contrast to the social and economic rights or,
more properly, principles that were emphasised by the socialist
states during the communist era.[footnoteRef:57] Thus, Hungary
became a party to the European Convention for the Protection of
Human Rights and Fundamental Freedoms in November
1992,[footnoteRef:58] the European Charter for Regional or Minority
Languages in March 1998,[footnoteRef:59] and the Framework
Convention for the Protection of National Minorities in February
1998.[footnoteRef:60] The increasingly dense web of Hungarys
international human rights commitments - many of which were assumed
as a direct consequence of Hungarys transition to democracy -
reinforced and complemented the principles enshrined in Hungarys
1989 Constitution. [57: On the socialist states ideological
emphasis on social and economic rights see e.g. Daniel Whelan and
Jack Donnelly, The West, Economic and Social Rights, and the Global
Human Rights Regime: Setting the Record Straight, Human Rights
Quarterly 29:4 (2007): 908 at 946. ] [58: See
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=8&DF=&CL=ENG.]
[59: See
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=148&CM=8&DF=&CL=ENG.]
[60:
Seehttp://www.coe.int/t/dghl/monitoring/minorities/6_Resources/PDF_Table_Monitoring_en.pdf.]
By early 2010, it seemed to many foreign observers that a
functioning, if frequently imperfect, constitutional democracy and
a viable system of checks and balances had been established in
Hungary. However, the major constitutional changes introduced by
the present government, following its decisive victory in general
elections in April of that year, have prompted a reassessment of
the state of democracy and of constitutionalism in Hungary.
3 The EROSION of Democracy AND CONSTITUTIONALISM in Hungary
As noted above, intense foreign and domestic criticism has been
directed at Hungarys Fundamental Law, which entered into force in
January 2012, as well as at other laws and policies introduced by
Hungarys Fidesz-led Government. For example, writing in The New
York Times in December 2011, Paul Krugman, Professor of Economics
at Princeton and a regular columnist for the paper, denounced the
Fundamental Law, as well as other laws proposed by Hungarys right
of centre government: [ta]ken together, all this amounts to the
re-establishment of authoritarian rule, under a paper-thin veneer
of democracy, in the heart of Europe.[footnoteRef:61] [61: Paul
Krugman, Depression and Democracy, The New York Times, 11 December
2011. See, also, Ian Bremmer, Hungarys new path is the hidden
danger to Europe, Financial Times, 9 October 2011; Adam leBor,
Democracy in Hungary: Ring the alarm, The Economist, 9 December
2011; Charles Gati,Hungarys Backward Slide,The New York Times, 12
December 2011; Charles Hawley, Democratic Deficiencies Abound in
Hungary, SPIEGEL ONLINE INTERNATIONAL, 12 December 2011, available
at:
http://www.spiegel.de/international/europe/the-world-from-berlin-democratic-deficiencies-abound-in-hungary-a-805112.html;
Kim Lane Scheppele, Hungarys Constitutional Revolution,The New York
Times, 19 December 2011; Catherine Dupr, Hungary's fundamental law
challenges the EU's democratic ideals, Comment is free (The
Guardian), 13 March 2012, available at:
http://www.guardian.co.uk/commentisfree/libertycentral/2012/mar/13/hungary-fundamental-law-eu#start-of-comments;
Kim Lane Scheppele, The New Hungarian Secret Police,The New York
Times, 17 April 2012.]
An article in the French newspaper, Le Monde, described the
Fundamental Law as une Constitution liberticide i.e. as a
constitution that dealt a death-blow to liberty.[footnoteRef:62]
The article summed up the various legal and political initiatives
taken by Hungarys new government as tantamount to un quasi-coup
d'tat.[footnoteRef:63] [62: Caroline Fourest, Un symptme hongrois
mditer, Le Monde, 7 January 2012.] [63: Ibid.]
In December 2011, shortly before the Fundamental Law and various
related statutes entered into force, the US Ambassador to Hungary
took the unusual step of expressing her concerns publicly.
Ambassador Kounalakis used the pages of Heti Vlasz to urge Hungarys
government to think again:
A number of credible voices are raising questions. Are there
sufficient checks and balances built in to the new system such that
the independence of democratic institutions is maintained for
future generations of Hungarians?...Do the reforms inspire the
trust of the people?[footnoteRef:64] [64: For an English-language
translation of Ambassador Kounalakiss article see
http://hungary.usembassy.gov/kounalakis12082011.html. ]
In a letter to Hungarys Prime Minister, dated 23 December 2011,
US Secretary of State Clinton reaffirmed Ambassador Kounalakis
reservations. Clinton asserted that the US has significant and
well-founded concerns about the Fundamental Law and related
legislation that would come into force in January
2012.[footnoteRef:65] [65: For a facsimile of Secretary of State
Clintons letter see e.g.
http://nol.hu/media/file/attach/25/14/00/000001425-6248.pdf. On 3
January 2012, the French Foreign Minister, Alain Jupp declared that
there is a problem today in Hungary and that, the fundamental
principles [of the EU] must be respected everywhere, including
Hungary. See Le Monde, 4 January 2012.]
Although slower to respond to developments in Hungary than the
US State Department, the EU Parliament adopted a resolution in
February 2012 in which it expressed serious concern about
democracy, the rule of law and the protection of human rights in
Hungary.[footnoteRef:66] In the previous year, the European
Commission for Democracy Through Law, more commonly known as the
Venice Commission, adopted two detailed and highly critical
Opinions on Hungarys Fundamental Law and on the process leading up
to its adoption.[footnoteRef:67] [66: See European Parliament
resolution of 16 February 2012 on the recent political developments
in Hungary (2012/2511(RSP)). In January 2012, the EU Commission
launched accelerated infringement proceedings against Hungary
because of concern at government measures that, variously,
threatened data protection, the independence of the Hungarian
Central Bank and the autonomy of the judiciary. For details of the
EU Commissions concerns see e.g. the texts at:
http://ec.europa.eu/commission_2010-2014/reding/multimedia/news/2012/01/20120111_en.htm.]
[67: See OPINION ON THREE LEGAL QUESTIONS ARISING IN THE PROCESS OF
DRAFTING THE NEW CONSTITUTION OF HUNGARY, Opinion no. 614/2011
(Strasbourg, 28 March 2011); OPINION ON THE NEW CONSTITUTION OF
HUNGARY, Opinion no. 621/2011 (Strasbourg, 20 June 2011). By 1
August 2012, the Venice Commission had adopted no fewer than six
further Opinions on constitutional developments in Hungary. These
are discussed infra. ]
The international condemnation of recent political and
constitutional developments in Hungary is important not only for
Hungary but for Europe more generally. The subversion of liberal
constitutional principles and institutions in Hungary, since 2010,
suggests that the project of transforming the ex-communist states
of Central and Eastern Europe (CEE) into stable, liberal
democracies (and market economies) may have failed, at least in
part. More disturbingly, mounting evidence in Hungary of
authoritarianism, of the governments manipulation of nationalist
sentiment and, particularly within the civil sphere, of escalating
hostility towards Roma and Jews suggests that the contest for the
soul of Europe is far from over, particularly if viewed in
conjunction with evidence of the erosion of civil liberties and of
growing intolerance in parts of western Europe.[footnoteRef:68]
[68: The success of right-wing, anti-immigrant (or anti-Muslim)
parties in prosperous, developed west European countries, including
France, the Netherlands and Denmark, suggests that levels of
intolerance are rising across much of the continent. The erosion of
civil liberties in western Europe is most clearly apparent in the
draconian measures various states have adopted in response to the
spectre of terrorism. For example, Liberty, commenting on UK
anti-terrorist legislation, has argued: [m]uch recent
counter-terrorism legislation is dangerously over-broad and has
affected vast numbers of people in particular peaceful protesters
and ethnic minority groups undermining civil liberties and
fundamental human rights.See:
http://www.liberty-human-rights.org.uk/human-rights/terrorism/overview-of-terrorism-legislation/index.php.]
The historian, Mark Mazower, has emphasised that, in Europe, the
triumph of democracy and human rights over totalitarianism and
systems of racial oppression was never a foregone conclusion.
Writing after the collapse of communism in the CEE region, Mazower
cautioned:
...democracy reigned supreme as the First World War ended, but
it was virtually moribund two decades later...It was thus not
preordained that democracy would win out over fascism and
communism, just as it remains still to be seen what kind of
democracy Europe is able and willing to build.[footnoteRef:69] [69:
Mark Mazower, Dark Continent: Europes Twentieth Century (London:
Penguin Books, 1999), xii. ]
As Mazower points out, Europe may seem to be a continent of old
states and peoples, yet it is in many respects very new, inventing
and reinventing itself...through often convulsive political
transformation.[footnoteRef:70] [70: Ibid., ix.]
The crisis of democracy and constitutionalism in Hungary, in the
second decade of the 21st century, could conceivably become a
crisis of European proportions, particularly if underlying
economic, social and political problems are not addressed.
Criticism of the new constitutionalism in Hungary has focused on
the process by which the Fundamental Law and various related
statutes were adopted as well as on the substance of these legal
instruments. These criticisms are examined in turn.
4.1 THE FLAWED Process of constitution-making IN HUNGARY
The European Commission for Democracy Through Law (hereafter the
Venice Commission) was established under the auspices of the
Council of Europe, in 1990, following the collapse of communist
regimes in the CEE area and the urgent need to assist the states in
the region to effect a smooth transition to liberal
constitutionalism. The Commissions mandate extends, inter alia, to
promoting the rule of law and democracy as well as examining the
problems raised by the working of democratic institutions and their
reinforcement and development.[footnoteRef:71] Members of the
Venice Commission serve in their individual capacity and are drawn,
overwhelmingly, from the ranks of senior professors of
constitutional law or related subjects, as well as former or
serving judges of constitutional or supreme courts.[footnoteRef:72]
[71: See Art. 1(1), Revised Statute of the European Commission for
Democracy through Law, Resolution(2002)3, available at:
http://www.venice.coe.int/site/main/Statute_E.asp] [72: For the
composition of the Venice Commission see:
http://www.venice.coe.int/site/dynamics/N_Members_ef.asp?L=E&All=Yes]
Consequently, the Venice Commission represents a unique
repository of theoretical as well as hands on expertise in matters
of constitutional law and practice. Although the Venice Commissions
views are not legally binding on states per se, the intellectual
calibre of many of the Commissioners as well as their experience of
the application and enforcement of constitutional law at the
highest levels, invests the Commissions Opinions with enormous
moral authority. At the very least, they can be regarded as an
example of soft law. Consequently, the Venice Commissions trenchant
criticisms of the process by which Hungarys Fundamental Law was
adopted should be given careful consideration.
Opinion No. 614 of 2011 of the Venice Commission followed a
request for advice from Hungarys Minister of Justice, dated 21
February 2011, concerning several issues that had arisen in the
course of the Governments efforts to draft a new constitution.
Following the Ministers request, the Venice Commission sent a
delegation to Hungary, which included Christoph Grabenwarter, a
Judge of Austrias Constitutional Court, Wolfgang Hoffmann-Riem, a
former Judge of Germanys Federal Constitutional Court and Hanna
Suchocka, formerly Prime Minister and Minister of Justice of
Poland. The Venice Commissions Opinion, which was adopted in late
March 2011, merits quoting at length:
14. At the date of the visit of its delegation [7-8 March 2011],
the text of the draft Constitution had not yet been released. The
Commission was informed that the draft was being finalisedThe
adoption of the Constitution was foreseen for 18 April 2011.
15. while initially associated to this processthe opposition
forces were for several months not participating in the elaboration
of the draft andthere was no longer a dialogue between the majority
and the opposition in this regard
16. Moreover, concerns have been raised within the civil society
over the lack of transparency of the process and the inadequate
consultation of the Hungarian society on the main constitutional
challenges to be addressed in this context. Since the draft was
only submitted to the Parliament on 14 March 2011, only limited
public debate could take place on the changes and novelties that
the future Constitution might introduce.[footnoteRef:73] [73:
Paras. 14-16, OPINION ON THREE LEGAL QUESTIONS ARISING IN THE
PROCESS OF DRAFTING THE NEW CONSTITUTION OF HUNGARY, supra n.
65.]
The facts set out by the Venice Commission, in its Opinion,
reveal an inexplicably compressed time-scale for the adoption of
the new constitution, an almost total lack of co-operation or
consultation with opposition parties, as well as the Governments
failure to submit a draft text of the Fundamental Law to Hungarys
Parliament until as late as 14 March 2011, little over a month
before the Fundamental Law was scheduled for adoption. The
Commissions carefully-worded advice to Hungarys Minister of
Justice, in Opinion No. 614 of 2011, can also be read as a rebuke
to the Hungarian Government over its unsatisfactory handling of the
process of constitution-making:
18. The Commission would like to recall that transparency,
openness and inclusiveness, adequate timeframe and conditions
allowing pluralism of views and proper debate of controversial
issues, are key requirements of a democratic Constitution-making
process.
19. In its opinion, a wide and substantive debate involving the
various political forces, non- government organisations and
citizens associations, the academia and the media is an important
prerequisite for adopting a sustainable text, acceptable for the
whole of the society and in line with democratic standards. Too
rigid time constraints should be avoided and the calendar of the
adoption of the new Constitution should follow the progress made in
its debate.[footnoteRef:74] [74: Ibid., paras. 18-19.]
The clear (and one might have thought uncontroversial) policy
guidelines formulated by the Venice Commission went almost entirely
unheeded, precipitating renewed criticism of the Hungarian
Government in a later Opinion:
it is regrettable that the constitution-making process,
including the drafting and the final adoption of the new
Constitution, has been affected by lack of transparency,
shortcomings in the dialogue between the majority and the
opposition, the insufficient opportunities for an adequate public
debate, and a very tight timeframe.[footnoteRef:75] [75: See
OPINION ON THE NEW CONSTITUTION OF HUNGARY, Opinion no. 621/2011,
supra n. 65, para. 144. ]
At this point in time, an explanation of the factors that led to
the procedural defects identified by the Venice Commission as well
as other procedural irregularities, including the fact that the
draft Fundamental Law and other constitutional texts were submitted
to Parliament in the form of Private Members Bills can only be
surmised. However, well-informed academic commentators, including
Professor Kim Lane Scheppele of Princeton University, have charged
the Hungarian Government with employing procedures that minimised
the possibilities of internal or external review of the draft
Fundamental Law and of related texts before they were adopted by
Parliament.[footnoteRef:76] [76: Kim Lane Scheppele, Hungary,
Misunderstood?, The New York Times, 21 January 2012.]
4.2 HUNGARYS FLAWED constitution
Lack of space precludes an exhaustive analysis of all the
features of Hungarys Fundamental Law and of related laws and
practices that have been called into question.[footnoteRef:77] The
following analysis will focus on (a) the ethnification of Hungarys
new constitution; (b) changes in Hungarian constitutional practice
concerning the role of the state president; (c) the perceived
threat to judicial independence in Hungary and the diminished role
of the Constitutional Court; and (d) restrictions on the
independence and freedom of Hungarys print and electronic
media.[footnoteRef:78] [77: For a detailed critique of the Basic
Law compiled by prominent Hungarian and US scholars see e.g.
Opinion on the Fundamental Law of Hungary eds Arato, Halmai and Kis
(June 2011), available at:
http://lapa.princeton.edu/hosteddocs/amicus-to-vc-english-final.pdf.
See, also, Attila Vincze & Marton Varju,Hungary: The New
Fundamental Law, European Public Law 18 (2012), 437; Mikls Bnkuti,
Gbor Halmai and Kim Lane Scheppele, Disabling the Constitution,
Journal of Democracy 23 (2012), 138; Gbor Halmai, Towards an
illiberal democracy: Hungary's new constitution, Eurozine (25
January 2012), available at:
http://www.eurozine.com/articles/2012-01-25-halmai-en.html. See,
also, various Opinions of the Venice Commission, supra n. 65.] [78:
Other features of Hungarys new constitutional settlement that have
attracted domestic and foreign criticism include restrictions on
the formal recognition of religious denominations. For example,
Gbor Halmai has noted that, in addition to the Basic Law or new
Constitution:
Many other cardinal laws were also passed in late December 2011.
One of them is the law on the status of churches, which creates 14
staterecognized religions and decertifies the rest. On 1 January,
over 300 denominations lost their official status in Hungary
including their tax exemptions and their abilities to run
statefunded schools.See Halmai, supra n. 76, at 10. In a letter to
Viktor Orbn, dated 23 December 2011, US Secretary of State, Hilary
Clinton, was highly critical of the new Law on Churches. Clinton
argued, inter alia, that the procedure envisaged by the law, for
recognising denominations other than the fourteen expressly listed
in the statute, were prohibitively cumbersome and unnecessarily
politicize[d] decisions surrounding a basic human right. For the
text of Secretary of State Clintons letter see supra, n. 63. See,
also Vincze and Varju, supra n. 75, at 439.]
(a) The Ethnification of Hungarys New Constitution
In Opinion No. 621 of 20 June 2011, the Venice Commission was
critical of various aspects of Hungarys draft Fundamental Law.
These include the distinction drawn in the Preamble between
Hungarians (i.e. ethnic Magyars) and Hungarian citizens belonging
to other nationalities. In particular, the Commission was critical
of the Preamble for its overal lack of ethnic inclusivity:
While this statement [the nationalities living with us form part
of the political community and are constituent parts of the State]
may be seen as an effort towards inclusiveness, it is also to be
noted that the Preamble has been written in the name of we the
members of the Hungarian nation, intimating that members of the
nationalities living with us are not part of the people behind the
enactment of the Constitution.[footnoteRef:79] [79: Para. 40,
OPINION ON THE NEW CONSTITUTION OF HUNGARY, Opinion no. 621/2011,
supra n. 65.]
Hungarian constitutional practice in this respect is by no means
unique. Several constitutions in the CEE area, adopted since the
fall of communist rule, have introduced distinctions between
elements of their respective populations based on national or
ethnic affiliation.[footnoteRef:80] In effect, one national group,
whether Slovak, Slovene, Croat, Hungarian etc, is elevated by these
constitutions to a pre-eminent position in the formation and
overriding function or purpose of the state. As recognised by the
Venice Commission, an emphasis on the ethnic foundation of
statehood can only compound the marginalisation of national and
ethnic minorities in the collective political imagination,
notwithstanding the routine affirmation of principles including
non-discrimination, equality before the law and minority rights.
[80: See, generally, Istvn Pogny, Pariah Peoples: Roma and the
Multiple Failures of Law in Central and Eastern Europe, Social
& Legal Studies [March, 2012] 1 at 10, available at:
http://sls.sagepub.com/content/early/2012/03/28/0964663911429152.full.pdf?patientinform-links=yes&legid=spsls;0964663911429152v1.]
In some respects the emphasis on ethnicity, i.e. on the
Hungarian nation, in Hungarys Fundamental Law, represents a closing
of the gap between constitutional practice in Hungary and elsewhere
in the CEE area. However, it also represents a clear example of
what Bib saw as the most characteristic feature of the East
European political sensibility: existential fear for the survival
of the community or nation.[footnoteRef:81] [81: Bib, supra n. 1,
202 at 220.]
As recognised by various commentators, the presence of sizeable
ethnic Hungarian minorities in states bordering Hungary
particularly in Romania, Slovakia, Serbia and the Ukraine combined
with the constitutionalization of ethnicity in Hungarys Fundamental
Law, is likely to increase friction between Hungary and its
neighbours, as well as between Hungarian minorities and majority
populations in the neighbouring states. In particular, the
emotionally-charged and legally fuzzy proposition in Article D of
the Fundamental Law,
that Hungary shall bear responsibility for the fate of
Hungarians living beyond its borders is highly
problematic.[footnoteRef:82] As the Venice Commission emphasized,
the wide understanding of the Hungarian nation and of Hungarys
responsibilities in the Fundamental Law may hamper inter-State
relations and create inter-ethnic tension.[footnoteRef:83] [82:
See, generally, Para. 39, OPINION ON THE NEW CONSTITUTION OF
HUNGARY, Opinion no. 621/2011, supra n. 65.] [83: Ibid.]
For Bib, the preoccupation with issues of ethnicity and national
survival in Hungary, as in the region more generally, has been an
impediment to the establishment of democracy as well as a potential
source of friction and instability. All too often, peoples in the
CEE area had viewed democratic pluralism as a threat to their vital
interests.[footnoteRef:84] [84: Bib, supra n. 1, 202 at
222-23.]
(b) The Role of Hungarys State President
A recent article in the Journal of Democracy notes dryly that:
under the old constitution, the president [of Hungary] held a
number of important powers that could keep the government in
checkWithout changing the laws, the Fidesz government changed the
person.[footnoteRef:85] [85: See, Bnkuti, Halmai and Scheppele,
supra n. 75, at 141.]
As emphasized in Part 2, a number of Hungarys post-communist
Heads of State viewed the office of president as a vital check on
the executive. Both rpd Gncz and Lszl Slyom were prepared to
confront the government where they considered that important
constitutional interests were at stake
However, the Governments nomination of Pl Schmitt to succeed
Lszl Slyom, as Hungarys Head of State, was indicative of an
important shift in policy. According to a normally reliable
Hungarian publication, senior figures in the ruling party were
anxious that Slyoms successor should be less politically
intrusive.[footnoteRef:86] [86: On the thinking of senior Fidesz
figures about who should succeed Slyom as state president see
Hetek: Orszgos Kzleti Hetilap, 7 July 2010, available at:
http://www.hetek.hu/belfold/201007/az_emberek_embere The article
notes that Fidesz leaders had been anxious that Lszl Solyoms
successor, as president, should not emulate Solyom in regularly
interfering in the political life of the country.]
Schmitt, who had been a Fidesz Deputy and Speaker of the
National Assembly before his nomination, explained during the
selection process that he would try to assist the government if he
were elected President: I wont be...an obstacle to the governments
rate of progress in pursuing its legislative program. Rather, I
intend to be the programs motor. I certainly dont want to be a
counterweight to the government.[footnoteRef:87] [87: Ibid.]
In describing himself as the potential facilitator of the
governments policies and in rejecting outright the role of
counterweight to the government, Schmitt revealed his ignorance of
(or unconcern for) the basic principles of liberal
constitutionalism, including the separation of powers. Schmitts
self-proclaimed desire to use the office of president to assist the
government may suggest a degree of political engagement with one
political party that was fundamentally incompatible with his role
as head of state, as defined by the 1989 Constitution. For example,
in accordance with Art. 26(4) of the 1989 text, if the President
had reservations about the constitutionality of any provision of a
law he could refer it to the Constitutional Court for
review.[footnoteRef:88] Thus, the Constitution required the
President to exercise his independent judgment in constitutional
matters rather than to serve as a cipher of the executive. [88: For
an English-language text of the 1989 Hungarian Constitution see
e.g. supra n. 21.]
Having commenced his term of office in August 2010, Schmitt was
forced to resign the presidency in April 2012 after a finding by
Budapests Semmelweiss University that, some years previously, he
had plagiarised the bulk of his doctoral thesis.[footnoteRef:89]
Significantly, the Government, instead of taking this opportunity
to nominate an independent political figure to the presidency, as
advocated by many commentators, nominated a founding member of
Fidesz, Jnos der. [89: See
http://www.semmelweis-univ.hu/news/2556/university-senate-revokes-pal-schmitt%E2%80%99s-doctoral-dr-univ-title/.]
Since assuming power, in April 2010, the present Government
relying on its massive majority in Parliament - has turned the
state presidency into little more than a ceremonial office. In
terms of legislative efficiency, this may appear eminently
reasonable. Government leaders, one assumes, need no longer worry
that the President may exercise his constitutional powers to
obstruct the Governments ambitious legislative program. However, in
terms of constitutionalism, the deliberate downgrading of the
presidency to a subordinate role may prove disastrous. For
short-term political advantage, the Government has dislodged one of
the main constitutional pillars that had served as a check on
executive power and authoritarianism in Hungary.
(c) The Threat to Judicial Independence in Hungary and the
Diminished Role of Hungarys Constitutional Court
In a letter to Hungarys Prime Minister, dated 23 December 2011,
US Secretary of State Hilary Clinton criticised, inter alia, the
new judicial law, which concentrated power in the President of the
National Judicial Office (NJO): [i]n our view, this dismantles
important checks and balances preserving judicial
independence.[footnoteRef:90] In an Opinion adopted in March 2012,
the Venice Commission strongly endorsed these criticisms: [90: See
Secretary of State Clintons letter to Viktor Orbn, dated 23
December 2011, supra n. 63.]
The main problem is the concentration of powers in the hands of
one person, i.e. the President of the NJO. Although States enjoy a
large margin of appreciation in designing a system for the
administration of justice, in no other member state of the Council
of Europe are such important powers, including the power to select
judges and senior office holders, vested in one single person.
Neither the way in which the President of the NJO is designated,
nor the way in which the exercise of his or her functions is
controlled, can reassure the Venice Commission. The President is
indeed the crucial decision-maker of practically every aspect of
the organisation of the judicial system and he or she has wide
discretionary powers that are mostly not subject to judicial
controlThe very long term of office (nine years) adds to these
concerns.[footnoteRef:91] [91: OPINION ON ACT CLXII OF 2011 ON THE
LEGAL STATUS AND REMUNERATION OF JUDGES AND ACT CLXI OF 2011 ON THE
ORGANISATION AND ADMINISTRATION OF COURTSOF HUNGARY (Strasbourg, 19
March 2012), Opinion 663/2012, para. 118 (my emphasis).]
In addition to appointing judges and senior office holders, the
President of the NJO may, inter alia, decide on the allocation of
cases to particular courts. The Venice Commission condemned this
practice as manifestly incompatible with Article 6 of the European
Convention on Human Rights.[footnoteRef:92] [92: Ibid., paras.
90-94.]
In view of the concentration of enormous discretionary powers in
the hands of the President of the NJO, the choice of Tnde Hand to
occupy that office raises uncomfortable questions about the
appearance, if not necessarily the substance, of impartiality. It
is common knowledge that Hand, a respected lawyer, has been a close
personal friend of both the Prime Minister and his wife since they
were students in the 1980s.[footnoteRef:93] In addition, Hand is
married to Jzsef Szjer, one of the founders of Fidesz and,
reputedly, one of the authors of the Fundamental Law. In view of
Hands extensive political baggage her appointment as President of
the NJO breaches the spirit of the separation of powers. [93: See
e.g. The End of the independent judiciary, Hungarian Spectrum
(posted 13 December 2011), available at:
http://esbalogh.typepad.com/hungarianspectrum/2011/12/the-end-of-the-independent-judiciary.html.]
As indicated in Part 2, Hungarys Constitutional Court played a
critical role in the development of Hungarys post-communist
constitutional culture, particularly in the 1990s. However, as a
result of various measures introduced by the present Government,
the Court is no longer viewed by most observers as a serious
challenge to the Governments ability to carry out its program. As
noted by Bnkuti, Halmai and Scheppele, [a]lthough the Court still
exists, it has now largely disappeared from the political
landscape.[footnoteRef:94] [94: See e.g. Bnkuti, Halmai and
Scheppele, supra n. 75, at 139-40.]
The disappearance of Hungarys Constitutional Court was achieved
by increasing the number of Judges and by ensuring, as far as
possible, that new appointees are broadly sympathetic to the aims
and policies of the present Government, by limiting access to the
Constitutional Court and, finally, by curtailing the Courts
subject-matter jurisdiction:
the Court can no longer review for constitutionality any laws
about budgets or taxes unless those laws affect rights that are
hard to infringe with budget measures (rights to life, dignity,
data privacy, thought, conscience, religion, and citizenship).
Conspicuously, the Constitutional Court is not allowed to review
budget or tax laws if they infringe other rightssuch as the right
to property, equality under the law, the prohibition against
retroactive legislation, or the guarantee of fair judicial
procedure.[footnoteRef:95] [95: Ibid. See, also, Opinion on the
Fundamental Law of Hungary, supra n. 75, at 25-28; Scheppele,
Hungarys Constitutional Revolution, supra n. 59. For a more
positive view of the recent Government-inspired changes to the
Courts jurisdiction ratione personae and ratione materiae see
Vincze and Varju, supra n. 75, at 452-53.]
In Opinion no. 665/2012, the Venice Commission expressed concern
about the recent changes to the rules governing the composition and
jurisdiction of Hungarys Constitutional Court. In particular, the
Commission regretted that, in contrast to practice in a number of
other countries, only Parliament which is controlled by Fidesz -
can appoint judges to the Court.[footnoteRef:96] As the Commission
noted, in a legislature dominated by a single political party this
creates the risk of politicisation of the Constitutional
Court.[footnoteRef:97] The Venice Commission also urged that
recently imposed restrictions on the Courts subject-matter
jurisdiction should be removed. In particular, the Commission
called for the abolition of limits on the Constitutional Court's
control powers in budgetary matters.[footnoteRef:98] [96: See
OPINION ON ACT CLI OF 2011 ON THE CONSTITUTIONAL COURTOF HUNGARY
(Strasbourg, 19 June 2012), Opinion no. 665 / 2012 para. 8. For the
text (in Hungarian) of the 2012 Act on the Constitutional Court
(Act CLI: 2012) see e.g. http://www.mkab.hu/jog/ab-torveny.] [97:
OPINION ON ACT CLI OF 2011 ON THE CONSTITUTIONAL COURTOF HUNGARY,
supra n. 94, para. 8. Under the 1989 Constitution a majority of
parliamentary parties had to agree every nomination to the Court.
Thereafter, a two-thirds vote of members of Parliament was required
to appoint the nominee. See Bnkuti, Halmai and Scheppele, Disabling
the Constitution, supra n. 75, at 139.] [98: Para. 54.10, Opinion
no. 665/2012, supra n. 94. See, also, ibid., para. 38. See,
generally, Bnkuti, Halmai and Scheppele, Disabling the
Constitution, supra n. 75, at 139-40.]
The Government has taken various steps to try to limit the risk
of judicial interventionism. If successful,[footnoteRef:99] this
strategy will no doubt facilitate the rapid implementation of the
Governments legislative program. However, in the longer term,
measures such as restricting the jurisdiction of the Constitutional
Court and impairing the independence of Hungarys judicial system
and can only weaken the Hungarian constitution. Since Fideszs
election victory, in 2010, Hungary has given every appearance of
regressing to a unipolar political system in which the notion of
checks and balances has less and less meaning and in which key
figures whether constitutional court judges, the heads of the
National Judicial Office and the Media Council or even the
President of Hungary, are selected, at least in part, on the basis
of their presumed loyalty to and ideological empathy with - the
Government and the ruling party. [99: One should note here a recent
Judgment of Hungarys embattled Constitutional Court, delivered in
July 2012, which has attracted considerable interest because it
suggests that the Court may not have become entirely quiescent. In
this Judgment, the Court declared recent Government-supported
legislation that reduced the age of retirement of judges to be
unconstitutional. For the text of the Judgment see Decision
33/2012. (VII. 17.) AB hatrozat, available at:
http://www.mkab.hu/letoltesek/alkotmanybirosag_hatarozatai_2012_03.pdf.
For an English-language commentary see Kim Lane Scheppele, How to
Evade the Constitution: The Case of the Hungarian Constitutional
Courts Decision on the Judicial RetirementAge, eutopia law (posted
8 August 2012), available
at:http://eutopialaw.com/2012/08/08/how-to-evade-the-constitution-the-case-of-the-hungarian-constitutional-courts-decision-on-the-judicial-retirement-age/]
(d) Restrictions on the Independence and Freedom of Hungarys
Print and Electronic Media
In her letter to Prime Minister Orbn, dated 23 December 2011, US
Secretary of State Clinton expressed strong reservations about
Hungarys Media Law, which came into force in January 2011: we share
concerns expressed by the OSCE, Freedom House, and a recent
international mission of press experts that the law concentrates
too much power in the hands of a politically-appointed Media
Council.[footnoteRef:100] [100: See Secretary of State Clintons
letter to Viktor Orbn, dated 23 December 2011, supra n. 63.]
Unsurprisingly, Hungarys controversial Media Law, which entered
into force in January 2011, has attracted extensive international
criticism.[footnoteRef:101] As originally conceived, it would have
imposed a virtual straighjacket on the media in Hungary. For
example, Article 13(2) of the Media Law introduced a vague
requirement to provide: comprehensive, factual, up-to-date,
objective and balanced coverage on local, national and European
issues that may be of interest for the general
public.[footnoteRef:102] As originally enacted, Article 17(2) of
the Media Law also contained a vaguely worded clause prohibiting
the media from giving offence to individuals or groups: media
content may not offend or discriminate against - whether
expressedly or by implication - persons, nations, communities,
national, ethnic, linguistic and other minorities or any majority
as well as any church or religious groups.[footnoteRef:103] [101:
For example, in December 2010, the OSCE Representative on Freedom
of the Media stated: I am concerned that Hungary's parliament has
adopted media legislation that, if misused, can silence critical
media and public debate in the country. See
http://www.osce.org/fom/74687. See, also, Opinion of the
Commissioner for Human Rights on Hungarys media legislation in
light of Council of Europe standards on freedom of the media
(Strasbourg, 25 February 2011), Doc. CommDH(2011)10, available at:
https://wcd.coe.int/ViewDoc.jsp?id=1751289. The US human rights
NGO, Freedom House, has also been critical of the new legislation.
For details see e.g. Proposed Hungarian Media Law Would Threaten
Freedom,http://www.freedomhouse.org/article/proposed-hungarian-media-law-would-threaten-freedom?page=70&release=1292.
As recently as May 2012, following the adoption of further
amendments to the Media Law, which were, in part, a response to a
critical Judgment of Hungarys Constitutional Court the previous
December, the OSCE Representative on Freedom of the Media
concluded, [t]he changes to the Hungarian media lawonly add to the
existing concerns over the curbing of critical or differing views
in the country. See http://www.osce.org/fom/90823.] [102: For the
text of the 2010 Media Law, in English, see e.g.
http://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_civ_media_content.pdf
(my emphasis).] [103: Ibid.]
These alarmingly ambiguous legal terms were to be applied by a
powerful Media Council comprised soley of members of the ruling
Fidesz Party.[footnoteRef:104] The Media Council is authorised to
impose massive fines on offenders, including private newspapers,
radio stations etc. As emphasised by the Council of Europes
Commissioner for Human Rights, the Hungarian media legislation
breached elementary principles of human rights, including freedom
of expression: [104: See Hungarian Media Laws in Europe: An
Assessment of the Consistency of Hungarys Media Laws with European
Practices and Norms (Budapest: Center for Media and Communication
Studies, CEU, 2012), at 1, available at:
https://cmcs.ceu.hu/sites/default/files/field_attachment/news/node-27293/Hungarian_Media_Laws_in_Europe_0.pdf,
at 1. The Center for Media and Communication Studies noted, inter
alia, that the scope of the powers conferred on the Media Authority
are without precedent in Europe. Ibid., at xv.]
The adoption of legislation regulatinga priorithe content of
media output is irreconcilable with the right to freedom of
expression enshrined in Article 10 ECHR. The media has a crucial
role as a watchdog in a democratic society, not least in helping to
create an informed, critical public. It is therefore undesirable
that the media be tasked to conform to subjective criteria,
especially where those criteria are expressed in vague and
imprecise terms liable to misinterpretation.[footnoteRef:105] [105:
Opinion of the Commissioner for Human Rights on Hungarys media
legislation in light of Council of Europe standards on freedom of
the media (Strasbourg, 25 February 2011), supra n. 99, at 5.]
The Commissioner also emphasised that, the mere possibility that
the new legislation could be interpreted in a manner which
restricts media freedomis enough to have a profound chilling effect
on medias preparedness to challenge, dissent and assume unpopular
positions, at least insofar as they could be perceived as having
deviated from the types of information and coverage prescribed in
the legislation.[footnoteRef:106] Reservations expressed by the
Venice Commission, concerning the formulation of the right to
freedom of expression in Hungarys new Constitution, are also
relevant in this context: [106: Ibid.]
The Venice Commission finds it problematic that freedom of the
press is not formulated as an individuals right, but as an
obligation of the state. This freedom appears to be dependent on
the will of the state and its willingness to deal with its
obligation in the spirit of freedom. This construction has
consequences for the substance, direction and quality of the
protection, as well as for the chances for successful judicial
review in cases of infringements of constitutional
rights.[footnoteRef:107] [107: OPINION ON THE NEW CONSTITUTION OF
HUNGARY, Opinion no. 621/2011, supra n. 65, para. 74 (my
emphasis).]
The Government has been partially stymied in its efforts to
introduce the Media Law as originally conceived. The strength of
international, especially EU, opposition appears to have been
decisive in forcing the government to relent and to introduce
amendments to the legislation.[footnoteRef:108] However, the Media
Law, as initially drafted and passed by the Hungarian Parliament,
tells us much about the commitment of the Government to fundamental
democratic principles, including freedom of expression. [108: See
e.g. Media: Commission Vice-President Kroes welcomes amendments to
Hungarian Media Law, MEMO/11/89, Brussels, 16 February 2011,
available at:
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/89.]
4 ISTVN BIBs and the meaning of constitutionalism and
democracy
Writing amidst the rubble of post-war Budapest, Istvn Bib
published a series of extraordinarily perceptive, elegant and
morally unflinching studies of Hungary and of the CEE region until
creeping communist control over the print and electronic media and
over intellectual life in general rendered open public debate of
sensitive or politically important issues impossible. In 1948, Bib
had published an essay entitled, The Jewish Question in Hungary
after 1944.[footnoteRef:109] Bibs essay shocked many of his fellow
countrymen with its disturbing thesis that Hungarian society was
morally complicit, in various ways, in the persecution and eventual
deaths of up to six hundred thousand Hungarian Jews. Within Hungary
the frank interrogation of the countrys responsibility for the
genocide of Hungarys Jews and Roma remains acutely sensitive up to
the present day.[footnoteRef:110] [109: The essay is available in
Hungarian at: http://mek.niif.hu/02000/02043/html/362.html.] [110:
This is reflected, for example, in the current heated debates
within Hungary about the historic role of Hungarys Regent, Admiral
Horthy, who served as Head of State until October 1944. Current
efforts to rehabilitate Horthy and to elevate him to the status of
national hero reflect an unwillingness to accept the extent of his
(and Hungarys) complicity in the persecution and mass deportation
of the countrys Jews and, on a more random basis, of Roma before
October 1944. See, generally, the special issue of Mozg Vlg on the
significance of the present Horthy phenomenon in Hungary: Mltunk s
Jvnk? - Horthy s Korunk [Our Past and our Future? Horthy and our
Era], Mozg Vlg 2012: 8-9.]
In the previous year, Bib had published an unsparing political
study of Hungary, entitled: Hungarys Deformed Structure: The Blind
Alleys of Hungarian History.[footnoteRef:111] In 1946 he had
produced the essay which is quoted at the beginning of this
article: The Misery of the Small States of Eastern
Europe.[footnoteRef:112] Both of these studies are noteworthy for
their minute and unsentimental disection of Hungarian history and
for their unequivocal conclusion that the countrys political
culture stands in urgent need of reform. [111: The essay is
available in Hungarian at:
http://mek.niif.hu/02000/02043/html/349.html] [112: See supra n. 1.
The essay is also available in Hungarian at:
http://mek.niif.hu/02000/02043/html/194.html]
Aside from graduate academic studies in Vienna and Geneva, in
the mid 30s, Bib spent virtually his entire life in Hungary under a
succession of mostly authoritarian and totalitarian regimes; he had
very little personal experience of liberal democracy. Nevertheless,
Bib demonstrated an acute sense of what democracy would mean.
Similarly, Bib had a deep understanding moral as well as
historical - of the deformed political culture of the CEE region,
in the inter-war era, of which Hungary was a prime
example.[footnoteRef:113] While claiming democratic legitimacy,
regimes in the area became increasingly authoritarian, invoking
existential fears about the survival of the nation as justification
for the erosion of democratic norms and civil liberties: [113: In
addition to Bib own essays see the following texts on the reasons
for the failure of democracy in the inter-war era, in the CEE
region, and the factors behind the rise of Fascism and nationalism:
Bideleux & Jeffries, supra n. 14, Chaps 22-27. See, also,
Richard Crampton, Eastern Europe in the 20th Century and After, 2nd
edn (London & New York: Routledge, 1997), Part I.]
Fear, the constant feeling of being under threat, all those
things that real democracies only experience at moments of real
crisis, restrictions on public freedoms, censorship, the hunt for
the enemys hirelings and for traitors, the constant chipping away
at liberty in the interests of national unity and order at all
costs, or at least the appearance of order. The adulteration and
corruption of democracy in the most diverse ways[footnoteRef:114]
[114: Bib supra n. 1, 202 at 223.]
Bibs extraordinarily vivid description of the deformed state of
political culture in the CEE region in the first half of the 20th
century serves as a reminder to Hungarians and Europeans alike of
the importance of holding fast to hard-won principles of liberal
constitutionalism. At the same time, Bibs depiction of inter-war
politics in the CEE region serves as a disturbingly precise
portrait of recent political developments in Hungary.
The new constitutionalism in Hungary, which was conceived by the
present Government while in opposition and which has been
implemented at extraordinary speed since it took office, in 2010,
would have been all too familiar to informed audiences in the CEE
region before World War II. The repeated appeals to nationalist
sentiment, the routine denunciation of foreign interference and the
increasing concentration of political power and economic patronage
in the executive, as well as the spectre of the manipulation of
future elections,[footnoteRef:115] are uncomfortably reminiscent of
that period. [115: See e.g. Freedom Houses comments on Hungarys new
Election Law which was adopted in December, 2011:In late December,
the National Assembly passed a government- backed electoral law
that appears designed to solidify the ruling coalitions grip on
power through the redrawing of parliamentary electoral districts
and changes to the allocation of seats and votes in Hungarys mixed
system of single-member districts and party lists. The law also
raised the registration thresholds for candidates and party lists,
and granted the vote to citizens with no residence in Hungary, such
as ethnic Hungarians in neighboring countries. See Nations in
Transition 2012, Freedom House, 239 at 241, available at:
http://www.freedomhouse.org/sites/default/files/NIT2012Hungary_final.pdf
]
Hungarys Fundamental Law and related legislation, examined
above, represent a significant shift towards a more authoritarian
political culture. They also reflect the growing concentration of
power in the executive, primarily at the expense of the President
and the Constitutional Court. The Prime Ministers invocations of
Hungarian history, particularly Hungarys independence struggles of
the 19th and 20th centuries, can be read as a cynical manipulation
of nationalist sentiment and of what Bib termed the fear complex
which is so prevalent in the CEE region.[footnoteRef:116] As the
President of the EU Commission, Jose Manuel Barroso, pointed out
through his spokesperson, after the Hungarian Prime Ministers
intemperate speech of 15 March 2012, [t]hose who compare the
European Union with the USSR show a complete lack of understanding
of what democracy is. [footnoteRef:117] [116: Bib supra n. 1, 202
at 222.] [117: See Financial Times: Brussels Blog, 16 March 2012
at: ]
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