A Revolution in the Polling Booths?
The new constitutional order in Orbán’s “illiberal” Hungary
In 2010, after a landslide victory, the elected prime minister of Hungary, Viktor Orbán, declared his takeover to be a revolution in the polling booths and promised a “second Change of Systems,” referencing the common description of the 1989-90 democratic transition. When he took charge, the very first steps for his party, Fidesz-KDNP, included claiming themselves to be the founders of a new political system: “The System of National Collaboration.” Yet, while the desire for a complete overhaul was made apparent and opposition parties and intellectuals were quick to accuse the government of authoritarian tendencies, there was little to be known about the actual nature of the reforms planned, due to a lack of concrete policy proposals prior to the elections.
In line with these ambitions, Orbán was also quick to announce that he considered the new parliament to be “a constitutional assembly,” tasked with setting the solid foundations for the new system in the form of a new constitution, The Fundamental Law, coming into force on January 1, 2012. This new constitutional order now serves the purposes of what Orbán himself has called an illiberal democracy despite containing few explicitly authoritarian measures and having been implemented according to the liberal democratic rules and institutions which were previously in place .
Before the current Fundamental Law, the constitution of Hungary was an amended version of the Act XX of 1949, titled The Constitution of the Republic of Hungary (CoRH). The replacement of this document had always been an easily justifiable option since its implementation. Unique among the former socialist republics, Hungary did not receive a completely new constitution during the 1989-90 transition because the constitution included a requirement for a referendum to confirm an entirely new document. The parliament, however, had the power to „amend” the constitution without seeking confirmation from the citizens. That is why the parliament chose to use a constitutional amendment to overhaul the system, instead of spending time and money on a hazardous referendum. Even though this amendment in 1990 turned the constitution into a basically new one that largely followed the pattern of those of Western liberal democracies, the symbolic act of starting a new era was missing from it. As Orbán himself pointed out in 2007, “the biggest problem [with the change of systems in Hungary] is that it never had its one, cathartic moment.” Moreover, the constitution itself explicitly included a reference to its temporary nature. The preamble set the goals of the document as follows: “In order to facilitate a peaceful transition to pluralism, parliamentary democracy and social market economy, the Parliament determines the text of the Constitution of Hungary as follows, to be in effect until Hungary’s new Constitution comes into force.”
Even though the previous constitution had this dubious background, it certainly had one great advantage in terms of legitimacy. While it was never subject to the confirmation of the public, it had been crafted by a committee called the National Round Table, which – though unelected by the public – featured representatives of all the significant opposition groups of the late-Communist era and representatives from the Communist successor party,” and thus covered the whole political landscape of the country in the early nineties. Consequently, the document was accepted unequivocally by the parliament in 1990. In contrast, the text of the Fundamental Law was hastily drafted by a committee of only three members: Member of European Parliament József Szájer and MPs László Salamon and Gergely Gulyás, all from the governing party alliance. The plan was never subject to public scrutiny, and was only voted for by Orbán’s Fidesz-KDNP party, with most of the opposition leaving the chamber during the vote in protest. Thus, serious questions can be – and were – raised concerning the legitimacy of the new constitution.
Orbán himself claimed that their remarkable election victory had created such national unity that they had the mandate to change the foundations of the system, including the constitution. Thus, he echoed Norberto Bobbio’s notion that a “majority rule for political decisions” is enough for action to be legitimate. As Jürgen Habermas points out, this argument clearly fails Robert Dahl’s criteria, as Orbán never sought “the inclusion of all those affected” or “a situation that allows all the participants to develop, in the light of sufficient information and good reasons, an articulate understanding of the contested interests.”
Indeed, the legitimacy of this process is questionable even by Bobbio’s standards, which can be understood as requiring that the constituents make a decision directly on the most important new measures implemented, especially bearing in mind that writing a new constitution was never part of Orbán’s campaign promises or his „program,” the clarity of which even Bobbio finds a key criterion for an informed majority decision. The Hungarian election system (which Orbán inherited) was also a key factor as it gave Fidesz 68 percent of the seats with only 53 percent of the popular vote with a voter turnout of 64 percent. While this essay is not intended to determine whether or not this level of popular support still qualified as majority rule, it is hard to deny that even this question is open and up for different interpretations.
Both constitutions feature preambles that introduce the core principles the document is supposed to represent. In the CoRH, as quoted above, these are basic democratic (and economic) principles, which is no wonder considering the transition that was taking place. And so the question is: How does the 2012 preamble reflect on the transition happening in those years?
The preamble of the new Fundamental Law has its own title: “National Avowal.” The constant use of the term national is highly typical of the text, as is a rather upbeat, sentimental tone. While it still acknowledges several aspects of democratic principles, such as “human dignity” and “popular sovereignty,” it puts far more emphasis on conservative, nationalistic or even religious notions, celebrating “our forebears” who “defended Europe in a series of struggles and enriched Europe’s common values.” It also refers to the so-called Holy Crown studies, a notion created by nationalistic historians, which states that the crown used by Hungarian kings for centuries still “embodies the constitutional continuity of Hungary’s statehood and the unity of the nation.” However, this preamble is sometimes seen as a mere political gesture for the conservative Christian voting base, while the rest of the document takes a considerably more pragmatic approach.
Generally speaking, the new constitution covers largely the same areas as the CoRH did. As will be discussed in detail later, it may put slightly less emphasis on liberal principles, but generally it upholds all the basic criteria of a liberal democracy, maintaining the various public institutions, a “division of powers” (Article C) and “a freedom of speech” (Article IX).
A number of the significant changes instantiated in the new constitution were largely symbolic. Causing outrage in liberal circles, the constitution stated that “[t]he name of OUR COUNTRY shall be Hungary” (Article A), which meant they had removed the word republic from the name. On the other hand, it still makes it clear that the “form of government of Hungary shall be a republic,” where the “source of public power shall be the people” and the Fundamental Law follows the CoRH in clarifying that “Hungary is a rule-of-law state” (Rechtsstaat; Article B). The Fundamental Law itself also does not include much in the way of conservative or nationalistic policies either, apart from one notable example: it defines marriage, an issue the CoRH did not mention whatsoever, as “the union of a man and a woman established by voluntary decision” (Article L).
Perhaps due to the document’s pragmatism, less criticism has been leveled against the Constitution’s content than its implementation process. In 2011, László Sólyom, former Chair of the Constitutional Court and former President of the Republic, called attention to the Constitution’s dubious origins, writing “the cult of constitutionalism never works when implemented ‘from above’” and that “the main point of constitutionalism is lost […] without a moderation of power.” Nonetheless, he calls the text itself “generally all right,” claims it “does not re-interpret basic rights,” and that therefore “a parliamentary democracy can [emphasis added] be run based on it.”
Six years later, the question that has to be asked is how a constitution which is suitable for a parliamentary democracy is equally well suited to serve the purposes of an illiberal regime. One possible answer might be that while the Fundamental Law does not reinterpret the meaning of or eliminate popular sovereignty, it does introduce a number of centralizing measures, which can easily enable a party governing with a two-thirds majority to stabilize its own system. For example, the new Fundamental Law determines a wide range of issues to be controlled by “cardinal acts,” laws “for the adoption or amendment of which the votes of two-thirds of the Members of the National Assembly present shall be required” (Article T). These include the system of the elections (which was overhauled and shifted further toward a first-past-the-post system), ownership of agricultural holdings, “protection of personal data,” churches, operation of political parties and the educational system. Previously, these fields were either not controlled by cardinal acts or were controlled by cardinal acts that had been results of a compromise between the government and the opposition. After January 2012, the Fidesz-KDNP, having extended the authority of cardinal acts, began using them to unilaterally force through all the legislation before losing its two-thirds majority three years later. In doing so, Orbán was helped by his remarkably loyal group of representatives, who followed the custom of so-called group discipline. This convention – that representatives vote with the party leaders — has been ever-present in Hungarian democracy. In Fidesz, MPs are fined or forced to leave the party if they break it.
This slow but consistent concentration of power is also visible in the passage about the Constitutional Court. While the court remained “the principal organ for the protection of the Fundamental Law” (Article 24, §1), crucial fields were removed from its purview, including “the Fundamental Law or the amendment of the Fundamental Law” (Article 24, §3) as well as a variety of financial matters. The fact that constitutional amendments are now by definition consistent with the Constitution has enabled Fidesz to turn seemingly unconstitutional proposals into amendments and thus remove them from the court’s control: the Fourth Amendment, for instance, which imposes restrictions on free speech and makes homelessness a punishable offense. Sólyom also pointed out in 2011 that policies concerning “the budget and taxes, which make up a large chunk of governmental activity” are now “without any constitutional control,” for which reason he calls this provision “the only indefensible part” of the new constitution. He also questioned “whether a state like this can still be called a constitutional state,” where in certain areas “anything can be done and the constitution can not be enforced.”
As another part of this centralization, the new constitution, while upholding the vast majority of democratic institutions, deprives many of them of a number of their powers, paves the way for the government to do so in the future, and increases the membership of or changes the method of appointment to public bodies. Several ombudsman positions were abolished. The room for local authorities to maneuver was narrowed (and Article 34 made the law limiting their powers subject to cardinal act). The Fourth Amendment also narrowed the field for opposition parties by banning political advertisements from non-state owned television. Thus, while avoiding the desires for an illiberal system becoming apparent and causing widespread outrage, the new Fundamental Law still helped the governing party eliminate a number of obstacles standing in its way. Another way of its doing so may be the extension of various extraordinary states of emergency, giving the government remarkable power along with a vague statement of what exactly could trigger these provisions. However, the government is yet to invoke a state of emergency.
The new Hungarian constitution, apart from slight warning signs, could very well be that of a liberal democracy at first glance and it could hardly have led to authoritarian measures on its own. Why, then, was it so important to the Orbán administration? From what we have seen, we have to conclude that the new constitution was and remains an integral part of the “System of National Collaboration” in two crucial ways. Firstly, on the level of words, it standardized a more nationalistic and conservative mindset and terminology (especially in the National Avowal). Its symbolic significance is clear: it marked the beginning of the new era as a milestone and brought about the “cathartic moment” Orbán had missed. However, the importance of the document is clearly not merely symbolic: in various ways, along with the two-thirds majority the government continued to enjoy for three years after the adoption, it paved the way for a concentration of power that has made the regime nearly impossible to displace.
Mátyás György Endrey is a first-year B.A. student in the Humanities, the Arts and Social Thought program at Bard College Berlin.