1. Recreating Constitutional Democracy under Hybrid Constitutions
We are facing a new though not entirely unanticipated form of authoritarianism during the first quarter of the 21st Century. It is different than fascist, state socialist and even military (bureaucratic) forms of authoritarianism in two main respects: insistence on the role of more less competitive elections in the selection of rulers and reliance on instruments traditionally associated with constitutionalism. Given the historical tension between the two poles of constitutional democracy, popular sovereignty and constitutionalism, most current authoritarian movements and governments purport to change the balance between these dimensions rather than abolish one or both as did the other major authoritarian forms. Taking the point of view of popular sovereignty, in their interpretation, the new authoritarians often depicted, rightly or wrongly as populists, seek to expand the powers of supposed majorities and elected officials at the expense of state institutions whose role was to limit these within the bounds of the constitution. Yet perhaps surprisingly they almost never neglect the role of constitutional politics in their attempts to liberate the sovereign. In particular, the new authoritarians, when they can, produce new constitutions, almost always in processes incumbent governments can dominate. When they can, they achieve this result under rules of change in previous constitutions, but when they cannot they sometimes initiate legal ruptures with the past. In cases where constitutional replacement is not feasible, the new authoritarians often resort to two additional techniques: constitutional amendment and the packing of constitutional courts. While the former represents formal constitutional change, the latter’s purpose is informal change accomplished through authoritative interpretation legalizing radical changes of the constitution enacted through ordinary laws and even executive decrees.
The three techniques of the new authoritarian constitutional politics are related, and may be all relied on in a given case. Constitutional court decisions are sometimes needed to legalize amendments that violate the letter and the spirit of the rest of the constitution, and amendments may establish possibilities of replacement not provided for under the inherited constitution. The frequent use of the three techniques, especially in combination, radically transforms constitutional democracies, and makes “constitutionalism” that must mean legal limits on all power holders, impossible. Under modern conditions, not only illiberal democracy but even more “illiberal constitutionalism” are contradictions in term.
Authoritarian constitutional politics has been well described as “abusive constitutionalism”, meaning the use of constitutional instruments against constitutionalism. For us it is important that such politics has three main phases. While in the first phase the emphasis is on the attack on the traditional protections of constitutionalism, using mainly the authority to regulate these by amendment or simple statutes, in the second phase the emphasis is on the capture and instrumentalization of at least one (in the case of Poland: constitutional judgement) or more of its main institutions (in Hungary also the amending and constituent powers). There is however a third phase on which we concentrate here, that is well described by the term “hegemonic preservation”, namely the enactment of provisions and the making of appointments that will guard the authoritarian constitution against changes in case the incumbents lose an election, a possibility that is inherent in the legitimating formula of contemporary authoritarianism.In the literature dealing with transitions from authoritarianism, and specifically in the case of Chile, the devices thus used have been described as “authoritarian enclaves” and “bionic appointments”. High levels of constitutional inflexibility and legislative hurdles can play the same role. While the second stage constitutional politics tries to enable rulers to act as they please, the third stage and its devices have the function, indeed the purpose, of achieving the opposite, namely to incapacitate governments that have replaced the authoritarians. Of course, the deeper aim, whether it is conscious or not, is to cause failure of a new government and enable the return of the authoritarians to power.
As a result of the third stage of authoritarian constitutional politics, the parties who defeat the new authoritarians in an election, face a trap, possibly already in their electoral campaigns. They are confronted with the bad choice of themselves advocating in the campaign or using when in government illegal or extra-legal means to eliminate the hurdles put in their way, or not being able to govern at all. At worst the arrangement can lead to constitutional crisis and even the duality of power, where one side nominally controls the government and the other side holds on to many state institutions whose role becomes primarily to block action. The consequences of this logic can be disastrous for both sides, and above all the population itself.
2. What is Wrong with the Fundamental Law of Fidesz
The Fundamental Law did not appear in the electoral program of Fidesz in 2010, and it was enacted by the votes of the governing party alone, without a referendum of ratification being held at all. It rested on nothing more than the will of parliament, the famous 2/3 majority achieved through a highly disproportional electoral rule. Thus, the Fundamental Law cannot be regarded as the expression of the democratic constituent power of Hungarian society. Some of those who argue that Fidesz created an autocratic system, refer to the right and even duty of all citizens, on the bases of a paragraph of the Fundamental Law taken over from the previous constitution, to resist such a transformation. Thus, they argue that a new parliament is not bound by the current rules of amendment in the Fundamental Law. On our part, we are not convinced that the removal of the Fundamental Law can be unambiguously based on such right of resistance, and do not base our proposal on this supposedly legal foundation.
More important than the formal objections is the fact that already during its initial enactment the Fundamental Law was proudly declared as an “illiberal” constitution, that has since, as a result of nine amendments, become increasingly autocratic. It cannot thus be the foundation of a constitutional democracy of the future. As early as in 2012 in a submission to the Venice Commission we have argued that the document does not satisfy European requirements with respect to democracy, the rule of law, and protection of fundamental rights among others on the following grounds:
The identity and the boundaries of the political community. A fundamental dimension of a democratic constitution is that everyone living under its rule should be able to recognize it as its own. The Fundamental Law repeatedly violates this principle. The long Preamble called National Declaration of Faith identifies the subject of constitution making the ethnic Hungarian nation, rather than all those who live under Hungarian laws.
The significant weakening of the defense of fundamental rights. The Fundamental Law deprived the Constitutional Court from reviewing laws with financial contents. This was complemented by the introduction of a new system of appointment for constitutional judges, with the consequence that since 2013 their majority was put into office by Fidesz. This body, loyal to the government, never once made a decision against the interest of the ruling party. Relying on the Fundamental Law, the independence of ordinary courts was undermined by the removal of the president of the Supreme Court, along with a tenth of ordinary judges, using the means of the reduction of the age of retirement.
The entrenchment of political preferences into the constitution. Many issues ordinarily belonging to statutory law are placed in the constitution. This move enables the present government that has the necessary 2/3 to entrench many of its own preferences in economic and social policy, for example systems of pension, family support and taxation. Accordingly, a future government with a simple majority would not be able to change these, despite its authorization to do so by the electorate. The Ninth Amendment of the Fundamental Law for example establishes property controlling foundations able to treat the funds not only of economic branches, but also previously public universities as private resources. These foundations too can only be altered by a 2/3 majority.
3. How can we escape the trap of the Fundamental Law?
It is clear, that even if Fidesz loses a national election, and a new government will be formed, the latter will not be able to function whether in the legal, economic or cultural domains. On the foundation of the Fundamental Law, a great deal of power will remain in the hands of its present holders or those near to them. The new government would not be able to really govern; all or most of its measures can be sabotaged by state officials, among them constitutional judges who cannot be removed or replaced under the Fundamental Law, during the next parliamentary term.
If therefore a democratically elected government would wish to replace the autocratic system, the “hybrid regime”, or “elective autocracy” institutionalized by the Fidesz government, with a constitutional system, it must free itself from the Fundamental Law. But how?
We believe that the replacement of the Fundamental Law is necessary, with a rule of law constitution that restores freedom. The new document should be one created by a democratic constituent power according to newly enacted rules, making every effort to avoid civil war and its usually accompanying violence. In its process of drafting the role of the 1989 round table can be a model, even if we cannot count on the acceptance of its new constitutional draft by 2/3 of the parliament elected in 2022.We stress that constitution making as we imagine it would be revolutionary only in its content, and procedurally only by not following the amendment rule of the Fundamental Law. Seeking at all costs to avoid civil war and violence, we envision a legitimate process of achieving new constitution making rules.
Before we present our own ideas concerning constitution making, we wish to consider the main answers available today for the dilemma of an electoral victory of the opposition short of the 2/3 parliamentary majority.
According to Imre Vörös, a former member of the Constitutional Court led by László Sólyom, the newly elected Parliament can free itself from the Fundamental Law even if lacking a 2/3 majority, and in two steps. First the new Parliament on its first day in office can with a law of nullification passed by a simple majority can eliminate all the essential measures of the Orbán system that were lifted into the Fundamental Law. It can similarly withdraw the appointment of all state officeholders chosen by 2/3 but without consensus. Vörös would repce the Constitutional Court left without members by the body of parliament itself.
According to the argument of Vörös, the new parliamentary majority is authorized to revise the Fundamental Law by simple majority, by the fact that in 2011 a stealth coup has smashed the rule of law state, and put an autocratic system in its place. This state of affairs is the legal fondation for resistance to arbitary rule, one found both in the 1989 Constitution and the Fundamental Law itself. Disobedience under such conditions does not represent injury to the principle of the rule of law, but carries out a duty under the Fundamental Law itself.
Somewhat later Vörös, accompanied by two former ministers of justice, declared in a newspaper that „in the case of change of governemnt the retoration of the rule of law must begin with a new republican constitution, that would be ratified after the parliamentary vote by a popular referendum” in other words, there is no need for 2/3 even for the enactment of a new constitution, merely a referendum and while it remains unclear according to what rules of participation and validation.
János Kis, former dissident, and later the first chairman of the liberal party, now political philosopher at CEU accepts in essence the Vörös proposal regarding law of nullification, but would delay its enactment to a time when the narrow parliamentary majority can be certain of the expressing the will of an overwhelming popular mobilization. According to him only such a support can guarantee the measures can be actually carried out. Thus, he regards the time of the enactment of nullification to be a political rather than constitutional question. At the same time Kis rejects the Vörös-Bárándi-Forgács notion of constitution making by simple majority. According to him, if the one sided enactment of the Fundamental Law in 2011 was illegitmate – as claimed by Vörös – the constitution making by simple majority also cannot be legitmate a decade later.
4. Is there an alternative to either revolution or to doing nothing?
It is undeniable, that one of the most important characteristics of the 1989-1990 regime change was legal continuity in several senses. First of all, the legal order was not suspended from one day to the next, as it is often in revolutions. But also, the Constitution whose contents were radically changed kept the title Law XX of 1949, and was enacted according to the single chamber 2/3 amendment rule of the Communist constitution. For this to happen however, it was necessary that the ruling MSZMP that could no longer count on Soviet support to accept not only the round table negotiations, but also the enactment of the new document by its parliamentary deputies with a few modifications. There was thus no need to sideline the 2/3 rule of constitutional change. Today the situation is completely different, and it is not likely that significant change will occur by next year’s elections. Thus, even if the opposition wins the elections, it is almost certain that it will not have 2/3 of the seats, and also that it will not be able to convince the defeated Fidesz and its deputies to participate in either amending the Fundamental Law, or in the enactment of a new liberal constitution.
The proposal that follows wishes to avoid two things. First, we wish to reject the amendment of the Fundamental Law by a simple majority, and even more the enactment of a new constitution by the same. As we have seen Kis rejects the latter, but not the former. We believe however that there is no principled difference between the two; whoever says no to constitution making by a simple majority, should say no the using the same method for constitutional amendment, if for no other reason than the identity of the two procedures in question. But we also want to avoid a new democratic government having to govern in the long run within the framework of the present Fundamental Law, because that requirement would not satisfy the demand of constitutionalism.
The elements of the scenario we consider possible and reasonable are:
The coalition of the present parties of opposition must win the parliamentary elections of 2022. This is a difficult task given the electoral and campaign rules favorable to Fidesz, and the chance of electoral manipulation and even cheating by the government. It is nevertheless possible. We cannot exclude that in the case of electoral defeat Fidesz would attempt to peel off the member of the coalition least committed to a democratic transformation. A revolutionary rhetoric in the campaign should be avoided not only because of its constitutional flaws, but also because it can potentially scare off uncertain voters to whom stability is an important value. For this reason, during the campaign the opposition’s goal of general legal continuity must be made clear, in other words the rejection of passing or modifying 2/3 laws by simple majorities, and especially the enactment of a new constitution in the same way. At the same time it should be declared that a new government’s goals would include the replacement of the Fundamental Law by a constitutionalist constitution, and that the preparation of that change would begin immediately.
A voters should also be informed which laws requiring simple majorities, and which state officials whose appointment and replacement does not require 2/3, would be replaced to reduce the number of elements of the Orbán system that are contrary to the rule of law.
As a part of the preparation of a new constitution, it would be important to initiate a round table similar to the one in 1989, but with a wider participation drawing in parties both in and out of parliament, as well as civil organizations. This round table would have the task of working out the composition of and the electoral rules for a new constitutional assembly, and presenting it to parliament for debate and enactment.
We do not want to try to pre-determine what a legitimately constructed round table would propose on the level of constitution making procedures. We note only that there is the danger that a fair and even comprehensive agreement among the major political and social forces at the round table concerning a constitutional assembly could be submitted to the new parlianent and yet its proposal would not be able to achieve the 2/3 requirement for enacting a new constitution. Nevertheless, the enactment of a new constitution is a task that the new parliament has no right to avoid or indefinitely delay under the circumstances of the current political order.Thus we would like to suggest two main alternatives to the participants of the future round table. If the 2/3 majority for their proposal clearly cannot be attained, they should further propose either a new rule for the formation of a constitutional assembly, based on majority vote of parliament followed by a democratic and participatory referendum in the whole country, or, to propose the dissolution of parliament. The first option should lead to the election of a constitutional assembly, concerned with one and only one task: the drafting of a constitution. The second option would mean new parliamentary elections where the main stake would be the creation of a constitutional assembly according to the round table constitutional proposal. We leave open the possibility that the round table would leave exactly this choice to the parliament itself.
Arato, Andrew; Halmai, Gábor: So that the Name Hungarian Regain its Dignity: Strategy for the Making of a New Constitution, VerfBlog, 2021/7/02, https://verfassungsblog.de/so-that-the-name-hungarian-regain-its-dignity/, DOI: 10.17176/20210702-140024-0.