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Imre Vörös A “Constitutional” Coup in Hungary between 2010–2014 On Some Aspects of the Exclusive Systemic Exercise of State Power with Regard to Constitutional Law, International Law, and European Law Foreword Formally, Hungary’s new Constitution of 1989 was a modification of Law XX/1949 rather than a new law enacted by the parliament of the time, that is, it was not an entity voted for in a free election. This constitution established the civil democratic system of public law and regulated the democratic functioning of the state organization and fundamental human rights in a comprehensive and satisfactory manner. However, its legitimacy could have subsequently been challenged, as it had not been enacted by a freely elected parliament. In its statement issued on 30 March 1989, the Opposition Round Table of 1989 made it clear that they wished to discuss the precondition of a democratic transition, namely, that of free elections, with the representatives of the single-party state. The opposition explicitly ruled out a discussion of the constitution and the state structures of public law it contained, considering it to be a task of the parliament to be elected. The new text thus defined itself as having only temporary validity. The Preamble of Law XXXI/1989 modifying Law XX/1949, that is, the very first sentence of the new constitution , reads as follows: “In order to facilitate a peaceful political transition to a constitutional state instituting a multiparty system, parliamentary democracy and a social market economy—until our country’s new constitution is adopted [my emphasis]—the National Assembly of the Republic of Hungary hereby establishes the text of the Republic of Hungary’s constitution in the following manner.” The task of writing and enacting the definitive version of the constitution was thus left to the new parliament. But as happens so often in history, the realities of the present overrode future plans. i6 Maffia II 00 book.indb 41 2016.12.07. 15:47 42 TWENTY-FIVE SIDES OF A POST-COMMUNIST MAFIA STATE The parliament convening after the free elections was faced with the necessity of immediate action, primarily due to the large number of laws requiring the approval of two-thirds of the lawmakers, which became incorporated into the Constitution of 1989. (These laws later became known as the infamous “two-thirds laws.”) Such a large quantity of two-thirds laws was an effective check and balance, however, it practically barred the government formed in the wake of free elections from governing; parliamentarian governance was by and large incapacitated. In the spring of 1990, the parliament reduced the number of two-thirds laws, as a result of which the pressure to rapidly build a new constitution lifted. Thus, a temporary solution turned permanent. Whereas time pressure, the circumstances, and the historical period in which it was produced all left their traces on the text of the Constitution of 1989, the Constitutional Court (CC), taking up its work in 1990, excelled in applying the laws and interpreting the constitution to such a degree that it withstood the test of time and stayed in effect for twenty years. A new government was formed in 2010, launching, as it later turned out, a well-planned smear campaign against the Constitution of 1989. The emergent public discourse shifted toward referencing it as “the communist constitution,” and this gave rise to the outline of a new constitution appearing alongside with the skeleton of a new public legislative system whose purpose and contents were hidden from the general public. Legal academics, the public, professional organizations, and experts were excluded from the drafting of the new constitution. Although certain organizations received formal invitation to participate, their suggestions and ideas did not enter into consideration. Whereas the new Fundamental Law, enacted in the spring of 2011, largely readopted the solutions from the previous constitution, it introduced a number of innovations foreshadowing the possibility that the new presiding forces would not shy away from reinterpreting fundamental constitutional values and principles such as the rule of law. There was no genuine need to produce a new constitution since the one of 1989, complemented as it was by the interpretative practice of the CC, adequately fulfilled its function. The government’s goal was to lay down the foundations of a new centralized system of public law—suffused with an eclectic brand of nationalist ideology and bent to limit basic rights—as well as define its chief tenets. The process and its product, the contents...


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