Constitution for a Disunited Nation: On Hungary's 2011 Fundamental Law

Introduction: From the 1989 Constitution to the 2011 Fundamental Law

INTRODUCTION From the 1989 Constitution to the 2011 Fundamental Law János Kis On January 1, 2012 the new constitution of Hungary, called the Fundamental Law, came into effect, and on January 2, the government held a gala in its honor at the Opera House in Budapest. In response, tens of thousands gathered in front of the building to demonstrate their anger at what they saw as a subversion of the democratic constitution of the republic. The guests at the gala decided to leave by the back door. It is hard to imagine a better illustration of the claim implicit in the title of this volume. Democratic constitutions aim to unite the nation they are meant to govern by expressing the consensus of principles and procedures to which citizens are committed to together. But the new Fundamental Law divides the Hungarian nation. Its aim is to entrench a sweeping but momentary victory of the right over the left into symbolic hegemony and institutional domination. The Fundamental Law identifies the sovereign people as the totality of ethnic Hungarians, excluding Hungarian citizens of a non-Hungarian ethnicity and including individuals of Hungarian ethnicity not living under Hungarian law. It attributes a constitutive role to Christianity for the Hungarian political nation. It venerates the Holy Crown, a symbol of the Greater Hungary that was ruled for a millennium by the ethnic Hungarian nobility. It declares its continuity with the prewar authoritarian regime while stigmatizing the socialist party—which was three times elected to govern the country in free and fair elections —as the successor of a criminal organization. It flies in the face of the principle of basic rights held by everybody by virtue of their personhood, and makes those rights conditional on satisfying duties. It betrays the principle of representative government by entrenching the current government’s policy preferences into constitutional provisions and by providing for an electoral law tailored to 2 Constitution for a Disunited Nation the interests of the party now in majority in the Parliament. It undermines the rule of law by providing for retroactive imposition of disadvantage , by allowing the parliamentary majority to pass any law in an accelerated procedure while leaving no room for discussion, and in other ways. It violates the principle of separation of powers by limiting the powers of the Constitutional Court, by increasing the number of constitutional justices and by allowing the present majority to appoint new justices without the concurrence of the opposition; by mandating early retirement to judges and granting the power to appoint their replacements to one person, the head of the National Judicial Office; by allowing the chief prosecutor (himself elected by the present majority ) to choose the court that shall try a criminal case whether or not the particular court chosen by him is competent to try that case, and so on. Critics of the Fundamental Law claim that it removes Hungary from the family of liberal democracies. This is a serious charge which the articles collected here aim to better assess. Before addressing the Fundamental Law itself, however, it may help to ask a prior question. In 1989, Hungary was a leader in the post-communist transition. Already during the run-up to the first free elections, it gave itself a constitution that was exemplary in many ways and worked for more than two decades. What caused the demise of that constitution, and its replacement by the controversial Fundamental Law? This introduction focuses on this question. Constitution-making in Two Stages The year 1989 has entered history books as the year of “velvet revolutions ” in Eastern Europe. With the exception of Romania, the dismantling of communist regimes proceeded peacefully, involving at some point roundtable negotiations between delegates of the state party and those of the opposition-in-the-making. The negotiations sought an agreement on the ground rules for free (in the case of Poland, semi-free) elections, and insofar as the constitutions in force threatened to block the process leading up to the elections, the agreement included some constitutional amendments as well. Partial as these amendments have been in most cases, they had foundational significance. Rather than merely reforming the old regime, they put an end to it and laid the basis for a new one. 3 Introduction The roundtables were not taken themselves, however, to have had a mandate for constitution-making. They invariably understood their task to be limited to facilitating the...