Hungary’s Dangerous Constitution

By:
Viktor Orban. Courtesy European People's Party.

Viktor Orban. Courtesy European People’s Party.

Constitutional reform in Eastern Europe sounds like the stuff of the late 1980s.  In recent years, though, Hungary has gone through immense constitutional upheaval.  In 2010, Hungary voted in the right-wing, Euro-skeptic Fidesz party with 52% of the vote.[1]  Because of an idiosyncrasy in the electoral law, their slim majority translated into 68% of the seats in Parliament (i.e., a two-thirds supermajority).  With a parliamentary supermajority, Fidesz had the power to amend the Constitution, an authority Fidesz has seized with gusto.  The new “Fidesz” Constitution came into effect on January 1, 2012.[2]  Since then, the Fidesz government has amended it four times, the most recent of which is a fifteen-page amendment to their forty-five-page Constitution.[3]  This piece will show that this new Constitution entrenches Fidesz’s worldview by including numerous provisions relating to their economic and social policies.  By entrenching these policies in the Constitution, rather than leaving then to ordinary legislative processes, Fidesz has transformed the Hungarian Constitution from an instrument of democratic governance into a tool of populist governance.

Fidesz has included a number of provisions in the Constitution that entrench its own rule.  For example, the new Constitution annuls all of the decisions made by the Constitutional Court made before January 1, 2012 (i.e., the day the new Constitution came into effect).[4]  It does so by delegitimizing the old Constitution altogether: “We do not recognize the communist constitution of 1949, since it was the basis for tyrannical rule; therefore we proclaim it to be invalid.”[5]  What this section of the Constitution glosses over, though, is that the very same communist Constitution was – in a highly amended form – in force until the new Fidesz Constitution, written in 2012.  Thus, by finding the old Constitution “invalid,” the new one nullifies ex tunc “all acts of state enacted under the former Constitution.”[6]  As the European Commission for Democracy through Law (the Venice Commission) has pointed out, this jeopardizes the “rich case law of the Hungarian Constitutional Court which…has played an important role in Hungary’s development towards a democratic state governed by the rule of law.”[7]

The Fourth Amendment to the Constitution bans “political advertising during the election campaign in any venue other than in the public broadcast media, which is controlled by the all-Fidesz media board. . . . These restrictions had been previously declared unconstitutional by the Constitutional Court, so the government amended the constitution to override that decision.”[8]  In other words, the Fidesz Constitution helped institutionalize not the separation of powers, but rather the consolidation thereof.

Fidesz has further tried to consolidate its power in government by changing the electoral laws.  Indeed, the new Constitution includes an article that changes the legal supervision of elections.  Whereas before “the norm was for the five-member Election Commission to be politically diverse,” the new Constitution stipulates that a new board of election commissioners is elected during each new national election.[9]  The Election Commission thus now consists of only members of the governing party.  Other instances of entrenchment meant to consolidate their power include:  the boundaries of electoral districts require a two-thirds majority to change;[10] only a two-thirds majority, rather than multi-party agreement, is necessary to elect judges of the Constitutional Court.[11]  By so consolidating Fidesz’s powers, elections look less like an exercise in contestation and more like one in affirmation.

In addition to including provisions that consolidate its power in office, Fidesz has also rewritten the Constitution to reflect its own economic and social policy preferences.  Thus, regardless of whether Fidesz holds office in the future, the Constitution largely reflects their policy preferences.  For example, tax and fiscal policy must now be decided by a two-thirds majority, and, at the same time, the Fourth Amendment stipulates that the Constitutional Court will never have complete power to review budgets and tax laws that passed Parliament when the national debt was more than 50% of the GDP).[12]  This latter provision makes it impossible for the judiciary to review much of Fidesz’s fiscal policy.  (In 2012, public debt was 80.2% of the GDP; it fell to 79% at the end of 2013.[13])  Cardinal laws, which require a two-thirds majority to change, also regulate the “basic rules of public finances, public service provisions, pension system etc..”[14]  As for social policy, Article 1 of the Fourth Amendment defines marriage as the union between a man and a woman.[15]  Article 5 of the Amendment ensures that only a two-thirds majority can change laws regulating “media outlets, press products and the information market”.[16]

As Fidesz writes more and more policy points into the Constitution and into Hungary’s cardinal rules, elections further lose their significance:  even if Fidesz were to lose the elections and become a minority party, many policies once open to contestation are now sealed in the Constitution and thus closed off from debate.  As one report by the Venice Commission states, “Th[e] wide use of cardinal laws to cement the economic, social, fiscal, family, educational etc. policies of the current two-thirds majority, is a serious threat to democracy.”[17]  Both forms of constitutional entrenchment –– provisions meant to consolidate Fidesz’ power and those meant to enshrine its political programs –– are a “threat” because they attempt to lock in the current majority and thereby transform it into a permanent one.

This sort of entrenchment is harmful to basic democratic processes.  Indeed, elections are premised on the notion that there are laws and policies to be discussed, drafted, redrafted and eventually signed into law, but still open to later renegotiation.  Undue entrenchment of specific policy preferences is thus antithetical to democracy.  Entrenching social policy in the Hungarian Constitution and requiring supermajorities to change fiscal policy ignores this fault-line between ordinary and constitutional or fundamental politics.

The constitutional upheaval in Hungary speaks to the potential for populist warping of democratic governance.  Numerous scholars and commentators have classified Fidesz as a populist party.[18]  Within the confines of such a short blog post, I will not attempt to define populism.  Suffice it to say, that populists adopt a Manichean political worldview, divided between the “pure people” and the “corrupt elite.”[19]  They tend to celebrate “the good, wise, and simple people” and to reject “the corrupt, incompetent and interlocking elites.”[20]  As such, populism entails “a kind of mystical union of the people,” seeking to restore purity to the political realm.[21]  Claiming to represent the interests of the pure, the populist conception of politics is a highly moralized one.  As spokespeople for and redeemers of the “pure,” populist parties claim to embody not just some transient set of preferences of the electorate, but rather the will of the people.  This substantive conception of the people, I argue, can find its expression in populist constitutions.

Taking this rough definition of populism, Hungarian Prime Minister Victor Orbán, along with his Fidesz party, fit the populist mold.  They present themselves as a sort of savior, rescuing Hungary while it is under attack both from within and outside the country.  Domestically, the previous Socialist government “stranded and capsized” the nation, Fidesz claims.[22]  And from the outside:  Orbán has compared the E.U. and IMF to the Soviet Union[23] and has even equated Angela Merkel’s economic policies to Hitler’s military ones.[24]  In the midst of this onslaught from these usurpers, Orbán and his Fidesz Party emerge as the redeemers of the Hungarian nation: “Now we will finish what we started in 1956,” Orbán declared before a crowd on 23 October 2013.[25]

Fidesz’ use of constitutional entrenchment – the fusion of ordinary and constitutional politics – follows directly from the general logic of populism and populist governance, namely the simplification of the political landscape into the pure and corrupt and the attempt to represent their policies as the incarnation of the people’s will.  Because populists divide the political world into two monolithic and wholly opposing categories, populist leaders, as alluded to above, claim to speak in the name of the people.  In other words, the opinion of the party, they argue, is the will of the state.  Fidesz-style entrenchment of specific policy preferences into the Constitution reflects a kind of certainty alien to the balance between constitutional and ordinary politics.  This collapse of the distinction between ordinary and constitutional lawmaking helps show that the populist Constitution is hardly a liberal-democratic tool of government.  Indeed the populist constitution betrays the democratic promise of uncertainty and turnover and undermines the liberal commitment to limited government.


[1] Hungary Post-Election Watch: April 2010 Parliamentary Elections, International Republican Institute, http://www.iri.org/sites/default/files/Hungary%20Post-Election%20Watch,%20April%202010%20Parliamentary%20Elections.pdf (last visited Nov. 12, 2015).

[2] Magyarország Alaptörvénye [The Fundamental Law of Hungary] April 25, 2011, Closing and Miscellaneous Provisions § 1, available at http://2010-2014.kormany.hu/download/e/2a/d0000/THE%20FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf (official English translation) [hereinafter Fundamental Law].

[3] An unofficial English translation of the Amendment is available at http://lapa.princeton.edu/hosteddocs/hungary/Fourth%20Amendment%20to%20the%20FL%20-Eng%20Corrected.pdf.

[4] Fundamental Law, Closing and Miscellaneous Provisions § 5.

[5] Id., National Avowal.

[6] European Commission for Democracy through Law, Opinion on the new Constitution of Hungary, Adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011), Opinion no. 618/2011, para. 35.

[7] European Commission for Democracy through Law, Opinion on the new Constitution of Hungary, Accepted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011), Opinion no. 618/2011, para. 35.

[8] Kim Lane Scheppele, Testimony: U.S. Commission on Security and Cooperation in Europe, Hearing on “The Trajectory of Democracy — Why Hungary Matters,” March 19, 2013, available at http://hungarianspectrum.wordpress.com/2013/03/19/kim-lane-scheppeles-testimony-at-the-helsinki-commission-hearing-on-hungary-full-text/.

[9] Kim Lane Scheppele, “Hungary’s Constitutional Revolution,” New York Times, December 19, 2011, available at http://krugman.blogs.nytimes.com/2011/12/19/hungarys-constitutional-revolution/.

[10] “International Election Observation Mission: Hungary – Parliamentary Elections, 6 April 2014,” Organization for Security and Co-Operation in Europe (Apr. 6, 2014), http://www.osce.org/odihr/elections/117205?download=true.

[11] Fundamental Law, Art. 24 § 8.

[12] Id., Art. 37 §§ 4–5.

[13] “Hungary public debt falls to 79% of GDP at end of 2013,” Politics.hu, Feb. 17, 2014, available at http://www.politics.hu/20140217/hungary-public-debt-falls-to-79-of-gdp-at-end-of-2013/.

[14] Opinion on the New Constitution of Hungary, Adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011), Opinion no. 618/2011; see also Fundamental Law, Art. 40.

[15] Fundamental Law, Art. L, § 1.

[16] Fundamental Law, Art. IX, § 6.

[17] Opinion on the Fourth Amendment to the Fundamental law of Hungary, Adopted by the Venice Commission at its 95th Plenary Session (Venice, 14-15 June 2013), Opinion 720/2013, para 129.

[18] See e.g., Paul Hockenos, “Central Europe’s Right Wing Populism.” The Nation, May 2010, available at http://www.thenation.com/article/central-europes-right-wing-populism/; Jan-Werner Müller, “How Europe Could Face Its Own Shutdown,” The Guardian October 2013, available at http://www.theguardian.com/commentisfree/2013/oct/21/europe-own-shutdown-anti-eu-parties.

[19] See, e.g., Cas Mudde, “In the Name of the Peasantry, the Proletariat, and the People:  Populisms in Eastern Europe,” 15 East European Politics and Societies 33 (2001); Yves Mény and Yves Surel, “The Constitutive Ambiguity of Populism,” in Democracies and the Populist Challenge (2002).

[20] Yves Mény and Yves Surel, Democracies and the Populist Challenge 12 (2002).

[21] Klaus von Beyme, “Representative Democracy and the Populist Temptation,” in The Future of Representative Democracy 59 (Sonia Alonson et al., eds. 2011).

[22] Palko Karasz, Leader of Hungary Defends New Constitution, N.Y. Times, http://www.nytimes.com/2012/02/08/world/europe/viktor-orban-defends-hungarys-new-constitution.html

[23] Viktor Orbán’s Shameful Speech on October 23, Hungarian Spectrum (Oct. 25, 2013),  http://hungarianspectrum.wordpress.com/2013/10/25/viktor-orbans-shameful-speech-on-october-23/.

[24] Krisztina Than, Analysis: Orban Turns Foreign Catcalls into Hungarian Applause, Reuters, July 30, 2013, http://www.reuters.com/article/2013/07/30/us-hungary-orban-conflict-analysis-idUSBRE96T0NN20130730.

[25]  Viktor Orbán’s Shameful Speech on October 23, Hungarian Spectrum (Oct. 25, 2013),  http://hungarianspectrum.wordpress.com/2013/10/25/viktor-orbans-shameful-speech-on-october-23/.

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