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Constitution Making and Transitional Politics in Hungary © Copyright By

Constitution Making and Transitional Politics in Hungary © Copyright By

13 Making and Transitional Politics in

Andrew Arato and Zoltán Miklósi

ore than a dozen years and five amendment rule of the old regime, a rule general elections after the end of that survives to this day.1 More important, it its old regime, Hungary has a lib- was a product of a process, in common with Meral democratic constitution that established a five other countries—Poland, Czechoslova- foundation for its relatively well-functioning kia, the German Democratic Republic, Bul- parliamentary political system. The process garia, and the Republic of South Africa2—in of constitution making was entirely peaceful, which the terms of the political transition © Copyrightwas within established legality, by and the never Endowmentfrom forms of authoritarian rule of were de- involved the danger of dual power, civil war, veloped through roundtable negotiations. or state or popular violence. As one political On a comparative and theoretical level, the theregime, United a Soviet-type dictatorship, States was fully InstituteHungarian case represents of Peace an incomplete replaced by another, liberal democracy, the model of democratic constitution making; it destructive logic of friend and enemy well could be characterized as postsovereign with known from the history of revolutions— respect to the ideals of the American and purges, proscription, massive denial of rights, French revolutions. Characteristically, in this and terror—was avoided. Since 1989, the model, are drafted in a process main political antagonists under the old of several stages, during which no institution regime have functioned on the political if or representative body can claim to represent not always the rhetorical level as opponents fully, in an unlimited fashion, the sovereign within a competitive multiparty democracy. people. What makes the model democratic In the strict legal sense, the method of is the drafting of the final constitutional constitution making that achieved this result product by an assembly, one that is elected, at was one of parliamentary constitution mak- least ideally, primarily for that purpose, even ing through legal continuity, utilizing the if it does not become a sovereign constituent

350 Framing the State in Times of Transition 351

assembly of the past. Hungary did not com- namely renewed authoritarianism or a new plete this last stage. An ordinary parliament form of dictatorship. But positive benefits elected in 1996 assumed the task of second- can be claimed for the approach as well. The stage constitution drafting but failed to ac- many-stage process allows the generation of complish it, making the interim constitution different modes of legitimacy4 as well as the of 1989–90 ultimately a work of elite agree- institutionalization of learning between the ments, de facto permanent. The only demo- stages. The former advantage implies a solu- cratic participation that Hungarian consti- tion to the hitherto intractable problem of tution making involved—the referendum of beginning democratically where there is no November 1989 that decided the question of democracy by substituting initial pluralist for the country becoming a parliamentary rather democratic legitimacy through inclusion of than a presidential republic—produced this as many relevant actors as possible and hav- result because of a rejection of communist ing them come to agreement through con- attempts to preserve and convert old forms sensus or fair compromise. The latter advan- of power. Paradoxically, on the constitutional tage means that with or without appropriate issue of that referendum, the majority would sunset clauses, initial power-sharing arrange- have always preferred, though not particu- ments or concessions to old regime forces can larly passionately, direct elections of the head be adopted without incorporating them in of state, probably with greater powers than the final constitutional product. the current system allows. The comparatively important question in The merits of the constitution-making the case of Hungarian constitution making method that Hungarian political actors ad- is whether the incomplete version of the opted concern both what it avoids and what model of postsovereign constitution mak- it contributes positively to future democratic ing, which we fully present here, allowed developments. The significance of round- Hungary to anticipate and take advantage table negotiations, aside from the great of the paradigm more completely developed strategic advantage of avoiding violence elsewhere, above all in South Africa. There and civil strife, is to help find an alterna- is little question that it did in what it helped tive to two forms of imposition that tend to avoid: the danger of authoritarian impo- © Copyrightto lead to pseudo-democracy by and pseudo-the Endowmentsition or relapse to dictatorship duringof the constitutionalism: by the forces of an old re- critical period of constitution making. If we gime and by new, revolutionary actors. His- consider the relevant period to be 1989 to thetorically, United the former has generallyStates taken the Institute1997, between the meetingof Peaceof the National form of imposed constitutions or reformist, Round Table (NKA) and the definitive fail- top-down constitution making. The preferred ure of the new constitution-making effort, it form of the latter has been revolutionary and is clear that constitutionalism has been suc- sovereign constituent assemblies with the cessfully applied in this period, to both con- plenitude of power. In opposition to these stitutional and normal politics through an models, from a theoretical point of view, the allegedly interim basic law. There was never interim constitution tends to impose constitu- constitutional imposition in Hungary during tionalism on the process of constitution mak- this time by merely one political force. ing that in traditional European democratic In positively contributing to democratic models is under the dominance of potentially developments, the picture is more differenti- dictatorial provisional and all- ated. It is clear to us that little democratic le- powerful assemblies.3 Here, the advantage gitimacy was generated for the process, or for of the method is best seen in what it avoids, the interim constitution that became perma- 352 Andrew Arato and Zoltán Miklósi

nent, one reason being that there was no at- and available historical narratives to which tempt to promote public participation or ed- they can refer, such as the plausible claim ucation during the failed effort of 1996–97. that the constitution belongs to the people, At the same time, constitutional learning or that it was partly the people’s work in a proceeded dramatically between 1989 and great historical period, or that it was made 1990, the dates of the two main elite agree- in the people’s name by persons in whom the ments concerning the interim text, resulting people have or had confidence and who have in the removal of consociational devices in a been entrusted to that purpose. In Hungary, fashion parallel to developments elsewhere. not all of these claims could be made, and After 1990, and especially with the failure to even those that could, regarding the dramatic produce a new and permanent constitution historical events of 1988–89, have not been in 1994–96, constitutional learning became made successfully. This is what we mean by almost exclusively the domain of the very the constitution’s legitimacy problem, which powerful Constitutional Court, immediately does not mean that constitutional or demo- raising suspicions about whether such judi- cratic is in crisis in Hungary. cial activism or constitution making could be What they face is a long-term and already sustained in view of Hungary’s “soft” consti- ongoing erosion of interest and support, tutional background, that is, the weak demo- which may or may not matter for stability cratic legitimacy of the constitution.5 For and the quality of political life depending on a while, the answer was that it could, as historical circumstances. the Constitutional Court imposed important Both the achievements and the failures limits on parliamentary actions that endan- of the new Hungarian constitution are best gered constitutionalism, such as attempts to interpreted in terms of the procedural his- change the constitution through simple stat- tory of its making, which in turn is related utes. Eventually, however, judicial activism to the character of the country’s transition could not be sustained. With the Constitu- from communist rule. Before the transition, tional Court much more quiescent under new Hungary was a partially reformed postcom- leadership, from 1998 to 2002, a new right- munist regime.6 The country’s negotiated wing coalition adopted a significant num- path of transition, hardly the only type pos- ©ber ofCopyright measures constraining parliamentary by the sible, Endowment was favored by this particular regime of democracy that were arguably incompatible type. On one hand, despite many an earlier with the constitution. Public interest in re- dream, there was little chance of a revolu- sistingthe these United measures was minimal. States Was this tionary Institute overthrow of the system.of ThePeace memo- because of the relatively low legitimacy of ries of the failed revolution of 1956 and the the constitution or because of the shift of in- partial successes of communist economic terest to economic performance and joining reform7 more or less guaranteed that there the ? Probably both played was no possibility in Hungary of a popular a role. In all countries, issues like the latter uprising, even in the late 1980s. The high occupy public interest and the understand- level of civil privatism in this period, linked ing of constitutional and political questions to the development of the second—that is, is low. It is up to institutions such as con- private—economy, made the emergence and stitutional courts, professional groups such development of even a Solidarity-type non- as lawyers, and elites such as liberal parties revolutionary mass movement unlikely. Un- to raise normative and constitutional issues like other governments in Eastern and Cen- and mobilize around them. They can do so tral , Hungary’s was ready throughout only if there are latent significant meanings the age of Mikhail Gorbachev to experi- Framing the State in Times of Transition 353

ment with further economic reforms and even period, for the functioning of a liberal demo- tightly managed political liberalization. cratic regime. Many of the compromises that On the other hand, a top-down process of were required to make the task in the first pe- reiterated reforms slowing down the process riod viable were, however, obvious liabilities of eventual system change, as in Mexico or from the point of view of the second. Chile, also turned out to be impossible. The Thus, immediately after the Round Ta- regime’s weakness, the existence of a small ble agreements, including the new interim but well-organized and articulate demo- constitution, were signed on September 18, cratic opposition since the late 1970s, and 1989, a process of constitutional reform and the activism of a variety of small movements adjustment began.11 The referendum of No- and initiatives in the 1980s, along with the vember 26, 1989, which established the pri- increasing rapidity of change in the whole ority of parliamentary elections and provided , made the top-down option, not to for parliamentary selection of the president speak of a conservative one, impossible.8 of the republic, set off this process. The par- Thus, a fully negotiated transition with un- liament of the old regime, which technically broken legal continuity occurred in Hungary, had to enact the Round Table constitution one resembling the slightly earlier process in and retained the right to amend it by a simple Poland and, to an extent, the later processes two-thirds majority, was a key institution; its in the German Democratic Republic and role was not limited to the formal legal one, Bulgaria. As in all these cases, the central in- either before or after the interim constitution stitution of change in Hungary was a round- was enacted. The new constitutional court table, the NKA. Unlike in the other transi- set up by the Round Table constitution was tion countries, in Hungary, all democratic another important actor. However, the most forces had been organized as proto-parties important institution after the Round Table before unification in the so-called Round that was involved in molding the new par- Table of the Opposition (EKA). Though liamentary regime was the first freely elected both were weak, the respective strengths of parliament in 1990. Behind its significant re- government and opposition at the negotia- visions of the Round Table constitution stood tions were relatively well matched. Undoubt- a temporary pact between the two major par- © Copyrightedly, the unexpected pace of byprior change the in Endowmentties during the change of regimes—the of na- Poland reinforced the strength of the united tionalist, right-of-center Magyar Demokrata Hungarian opposition. Fórum (MDF), or Hungarian Democratic theUntil United the South African States transition, Hun- InstituteForum, and the liberal, of left-of-center Peace Sza- gary’s NKA was the only such body that bad Demokraták Szövetsége (SZDSZ), or produced a new, detailed, and fully enacted Alliance of Free Democrats—that constitution,9 even if it was technically an easily formed the required two-thirds parlia- amendment of the Stalinist constitution of mentary majority (for a list and description 1949 and was stated to be an interim docu- of the parties, see the glossary appended to ment.10 The constitution was supposed to this chapter). Avoiding the writing of a new serve a double purpose: to provide the frame- constitution, the new parliament’s revisions work for political institutions as well as polit- rationalized and completed the development ical guarantees for all the actors, persons, and toward a pure parliamentary regime; a few groups to be able to continue in the process. later amendments and many relevant judicial A suitable set of rules was to be provided for a decisions only modified some details. unique and one-time event—the democratic The constitution-making project was taken transition itself—and for an undetermined up only one more time after the efforts of 354 Andrew Arato and Zoltán Miklósi

the late 1980s, during the 1994–98 coalition sion and transition—stark because moderate government of the Magyar Szocialista Párt agents of reform tend to lose power either (MSZP), or Hungarian Socialist Party, and way. According to Przeworski, if liberalizing the SZDSZ.12 This was the only time since elites understood what they were doing, they 1990 that a governmental coalition had the would not opt for liberalization. The argu- required votes to change the constitution. ment, however, works only if we confine the Aside from addressing a few substantive target of liberalization to the sphere outside of deficiencies, the coalition hoped to generate politics. As Bolivar Lamounier14 first noticed greater political legitimacy by putting in place in the case of Brazil, liberalization—when not a democratic constitution no longer laboring rigidly counterposed to democratization— under the interim label or its technical con- can involve carefully controlled reform of the tinuity with the 1949 constitution. The effort political order itself. Such reforms, even when failed, however, and it remains an open ques- reiterated, may protect the power positions of tion whether it could have succeeded given ruling elites in the context of a gradual change the piecemeal process of evolutionary devel- in the very identity of a regime. In our view, opment already in motion. To be sure, the there are in principle two fundamental but workings of the political process sufficiently combinable ways of achieving the goals of explain the failure of 1996–97, when ad- transition preservation through reform. One equate political support was not available for is the purely electoral road Lamounier has in any new constitutional alternative, whether mind, which was most successfully practiced a relegitimated and rationalized parliamen- in Mexico. The other is the path of institu- tary constitution, a more presidential one, or tionalizing from above a partially authoritar- possibly an option with corporatist elements. ian, partially democratic constitution, as was More generally, in contrast to the much more accomplished in Chile around 1980,15 which successful two-stage Polish and South Afri- may or may not be coupled with an electoral can efforts, the Hungarian failure draws at- strategy. The first of these options involves tention to the importance of time, sequence, organizing from above partially competitive political opportunity, and procedural learning elections, which lead to either “soft” dictator- in processes of constitution making. ships or “hard” democracies that can neverthe- © Copyright by theless appealEndowment to democratic legitimacy. Though of we cannot demonstrate it here, we strongly The Process believe that the precondition of this version the United Statesof Institutereformism is a viable claimof of Peacelegitimacy, Prehistory: The Development whether it draws on older revolutionary ide- of a Transition Strategy ologies, newer nationalist ideologies, or their When political change is widely anticipated eclectic combination. The method can work in a country and especially in a region, gener- because free elections are highly sensitive ally only the most rigid authoritarian regimes, targets for political intervention even with- such as those in Czechoslovakia and Roma- out electoral fraud; they can be influenced on nia in 1988–89, decide or feel compelled to the level of electoral rules, finances, and time- avoid all preemptive reforms from above. The tables, as well as through controlling access to majority of authoritarian regimes undertake the media.16 some liberalizing reforms. As Adam Prze- We encounter the model of authoritarian worski13 argued, liberalization tends to release electoral reform in a wide variety of contexts, a dynamic that eventually leads to societal po- not only in Latin America, but in South Af- larization and a stark choice between repres- rica (reforms of 1983) and the old Soviet Framing the State in Times of Transition 355

Union (reforms of the late 1980s). In Hun- ficial deputies could participate.20 The idea gary, the policy was tried in 1985 when, as a of producing from above turned result of a reform allowing multiple candida- out to be as contradictory in Hungary as it cies on all levels, in many electoral districts was in the Soviet Union.21 (about 71 out of 352), competitive elections Thus, the alternative notion of enacting an occurred that led to the loss of 35 parliamen- entirely new, partially liberal, and even demo- tary seats by the ruling party.17 The hitherto cratic constitution came to be advocated by a merely paper powers of parliament were not variety of forces within the ruling party. Ini- increased in this reform, no independent tially—around the time that the relevant work new parties were allowed to nominate can- group in the Ministry of Justice was formed didates or even organize themselves, and in May 1988—these forces hoped to use a in most districts, the authorities informally new constitution to relegitimate a reformed blocked truly independent candidates from version of the one-party system. Though they running. Nevertheless, the turmoil associ- were probably unaware of the example, the ated with some of the nomination struggles relative success and stability at that time of in which dissidents tried to run, and the loss the Pinochet constitution of 1980 indicated of face involved in the loss of seats, must have that the effort was by no means unthinkable convinced the ruling party of the dangers or impossible.22 Differing from the Chilean of this road in isolation. In retrospect, the option, which envisaged elections only much Hungarian communists did not have either later, the Hungarian variant in all its forms the self-confidence or the legitimacy of the sought to link the project of authoritarian Partido Revolucionario Institucional (PRI) constitution making to a quick move to gen- in Mexico, or even Gorbachev in the Soviet eral elections that the MSZMP would win Union, to seriously try to impose or exploit a one way or another. More important for the controlled electoral transition path.18 drafters than the Chilean experience were the Nevertheless, in the epoch of Gorbachev, results of the Polish Round Table agreements. given the significant changes occurring in Concluded in April 1989, these agreements the Soviet Union and the reformist self- did not create even a provisional new consti- understanding of the Hungarian commu- tution, but rather transitional arrangements © Copyrightnist party, the Hungarian Socialistby Workersthe Endowmentdefined by a strong andof partially Party (MSZMP, precursor to the MSZP), competitive elections, with the expectation as well as the intensification of a variety of at the time that both the presidency and the thepressures United from below, political States reforms had Instituteparliamentary majority of would Peace wind up in the to be tried. In late 1988, after organizing a hands of the communist party.23 series of public discussions under the head- More or less in the Polish spirit, after ex- ing of “social discussion,” these efforts took amining a variety of options, the Hungarian the form of enacting a variety of liberalizing Ministry of Justice came up with two draft reforms targeting civil society, the rights of conceptions and one proposal for extensive association and assembly and the right to constitutional revisions in November 1988, strike being the most important.19 In these January 1989, and May 1989. The last two cases, however, the MSZMP had the unfor- were presented to parliament in March and tunate experience of being forced to enact May, respectively. The first of these latter much more radical measures than it initially documents envisaged neither open multi- envisaged because of the unexpectedly lively party competition and fully free elections nor character of the social discussions and even an executive responsible to or even checked parliamentary debates, in which a few unof- by parliament. The proposal brought to par- 356 Andrew Arato and Zoltán Miklósi

liament in March 1989 sought to imitate the the old ruling power, both in parliament and Polish arrangements rather closely, provid- the executive.29 The sponsors may not have ing for parliamentary elections in which the believed in the permanence of such a con- party shares were divided in advance; as an stitution even if it were to be enacted. What option, a bicameral legislature, but without a they sought was to institutionalize an elabo- freely elected chamber; a strong presidency; rate, electorally centered transition, in which and a relatively weak constitutional court.24 political power would not be risked for a The discussion of this proposal in the politi- considerable period—an arrangement that a cal bureau of the MSZMP foresaw a subse- reformist, partially democratic system of the quent election in 1995 that would be free, rule of law was to legitimize.30 Crucial in this though under rather unspecified conditions. context was not as much the various consti- The final proposal submitted to parliament tutional contents, of which only a relatively in May seemed to reduce the power of the strong presidency seems to have been a con- president somewhat, at a time when the rul- stant, but the political timetables involved. ing party was obviously gearing up for pro- The opposition in Hungary—poorly orga- jected negotiations. But it still provided for nized, with relatively few members and re- full presidential control over foreign policy, sources, its leaders hardly known—could not the military forces, and, rather strikingly, have competed effectively if any of the top- states of emergency.25 Clearly, the political down variants were enacted in early 1989 bureau at this time was no longer thinking in and elections soon followed, as was planned. terms of formally distributing parliamentary Thus, there was significant danger from seats in advance, as in the Polish model, but the democratic point of view in another set it is less clear that they abandoned the idea of of proposals calling for the early election of a two-stage process with some kind of elec- a constituent assembly, made variously early toral restriction in the first of these. In their in 1989 by groupings within the Hungarian own words, they sought to reduce the com- Democratic Forum, already the dominant and petitive character of the next elections, either best-organized force in the moderate part of by a prior coalition agreement with a part of the opposition,31 and somewhat later by some the opposition or, at the very least, an early of the most reformist elements of the ruling ©timing Copyright that would not allow the oppositionby the party, Endowment the only group well-enough organized of to organize and campaign adequately.26 None to win such an election (i.e., by Mihaly Bi- of the three proposals established parliamen- hari and the New March Front). The idea of tarythe responsibility United for the executive; States to some- a constituentInstitute assembly was of strongly Peace associ- what different degrees, each concentrated ex- ated with revolutionary democratic ruptures ecutive power in a strong or medium-strong in the European tradition. In principle, such directly elected presidency.27 an assembly could have enacted an entirely Even if many individual parts of the last democratic constitution and organized free, constitutional draft that the Ministry of competitive elections. In practice, however, Justice produced found their way into the the formula in Hungary also could have very eventual compromise,28 it is clear that the possibly produced yet another variant of the system-defining features of the two original Ministry of Justice proposal: Early elections draft presidential constitutions were quite for such a body, organized by the government different in spirit and structure from any fully in office, were likely to result in a communist democratic document. They were semidem- majority, which then could enact a reformist, ocratic and semiauthoritarian constitutions, regime-conservative option with greater for- with important nondemocratic preserves for mal legitimacy than the sitting parliament Framing the State in Times of Transition 357

had. For this reason, the radical part of the and adhered to. In Hungary, however, the opposition rejected this formula, which, af- option was not even raised. As a result, it be- ter its adoption by the reform socialist New came clear, if by default, that ordinary par- March Front, became unacceptable to the liaments—in the end, two of them—would moderate opposition as well. play significant roles in constitution mak‑ It was, however, not clear that rhetorically ing. This was a procedure inherited from the rejecting all of the options could block one communist past and undesirable from the of them from being imposed from above. As point of view of the heightened legitimacy a series of constitutional amendments en- needed for democratic constitution making, acted in early 198932 indicated, the danger of under which voters need to know that the new legislation was constant,33 and the op- assembly that they elect is about to under- position was divided into a variety of rather take a constitution-making role. Monistic, weak groupings, or proto-parties. The ruling parliamentary constitution making is also party could easily exploit political party frag- not conducive to creating the two-track mentation, with the cooperation of some but structure needed for constitutionalism.34 not all oppositional groups, to stage less than fully competitive elections. Only if united could the opposition force the regime into The Opposition Round Table an alternative procedural mode that favored and the Beginning of Negotiations the opposition—namely, full-scale negotia- Apart from a brief period of increasing re- tions. It was quite important, therefore, to pression in the early 1980s after the intro- block any significant part of the opposition duction of martial law and the banning of from agreeing to participate in any formula Solidarity in Poland, the situation in Hun- imposed from above, no matter how superfi- gary was characterized by the old regime’s cially attractive. This was the main though not growing awareness that it could best contain the only function of the Round Table of the future pressure from the population by con- Opposition that, in March 1989, brought to- tinuing some reform policies. Liberaliza- gether seven parties or proto-parties and two tion in Hungary was not restricted to mea- nonparty associations in a single organization sures targeting the political system; it also © Copyrightwith the purpose of pushing by for and theengag- Endowmentinvolved making concessions to, orof at least ing in negotiations with the ruling power. tolerating the existence of, dissident or other Rejecting the election of a constituent as- extrainstitutional groups. Most relevant was thesembly—the United classical European States democratic Institutethe emergence in the of 1980s Peaceof three distinc- formula—as understandable as it was in the tive groups of intellectuals who opposed the circumstances, had unfortunate results. The regime in one form or another. The first and formula came to be associated with top-down, second were a group of democratic dissidents authoritarian regime–­dominated forms of and a circle of so-called populist writers. The constitution making and was not considered third group, soon called the Fiatal Demokra- as a model to be combinable with creating an ták Szövetsége (), or Alliance of interim constitution by roundtable negotia- Young Democrats, emerged from various tions. However, this very combination later student associations to reach some level of proved to be successful in Bulgaria and South permanence in early 1988. The democratic Africa, in the latter powerfully enhancing dissidents consisted of intellectuals who the legitimacy of the final constitution, even openly opposed the system by publishing as the constitutional principles agreed upon declarations (e.g., condemning the arrest of in roundtable negotiations were preserved Vaclav Havel in Czechoslovakia) and illegal 358 Andrew Arato and Zoltán Miklósi

magazines, and who, as a consequence, were lot to lose. In Hungary, pronouncements by subject to frequent persecution and official highest-level leaders of the old regime that abuse. The populist writers for the most part the fundamentals of state socialism were to remained within the confines of the official be abandoned came at such an early point public sphere; their primary concerns fo- that it arguably surprised even many of the cused on social issues, such as declining birth dissidents. In May 1988, an impromptu con- rates or the situation of ethnic in ference of the MSZMP ended the thirty- neighboring countries, rather than on explic- two-year rule of General Secretary János itly political causes. The liberal SZDSZ grew Kádár. In November, Prime Minister Miklós from the first group; the nationalist, populist Németh declared that the Hungarian re- MDF grew from the second.35 These groups forms should eventually lead to a Western- had a clear view of their own identities and style parliamentary regime. those of the others, and as the process lead- The proclamations said next to nothing ing to the opening of negotiations about the about the pace of transition, the precise char- transition was evolutionary rather than dra- acter of the new regime to be built, or the matic, there was no point in that evolution prerogatives that the still-ruling party would at which they would have felt compelled to preserve under the new rules, not to mention unite forces altogether and renounce their the role of opposition groups in devising the independence. This did not exclude rather new system. The idea of a negotiated transi- extensive cooperation among these groups tion clearly came into view as a consequence and those that emerged later, when the time of parallel events in Poland. After months for negotiations had finally come. of preparation, the Polish government con- A crucial moment in all negotiated transi- ducted negotiations with Solidarity between tions occurs when representatives of the old February and April 1989, reaching a com- regime unequivocally announce the need for promise solution whereby, in exchange for a general overhaul of the system. The manner the relegalization of Solidarity, the opposi- and pace of a transition depends on whether tion conceded partially free elections and a such a proclamation was forced by an open strong presidency to the ruling party. The and general disintegration of existing power beginning of Polish negotiations triggered ©structures Copyright or irresistible popular pressure,by theas a similar Endowment chain of events in Hungary, albeitof in the German Democratic Republic and with altogether different outcomes. Czechoslovakia, or was made when the old In mid-February 1989, the central com- regimethe could United still claim a vital States role in the mittee Institute of the MSZMP announcedof Peace that it transformation, or even take charge of it would conduct bilateral and multilateral dis- altogether, as in Poland and Hungary. The cussions about the new ways of exercising latter case is much more likely to lead to a power. In response, a joint declaration of real bargaining situation, as the rules of the the most important independent organiza- new regime are neither imposed on society tions—most notably, the MDF, the SZDSZ, by the old regime nor formulated exclusively and FIDESZ—urged roundtable talks with by agents representing the would-be new re- the participation of the government and the gime, with old institutions and leaders being democratic political organizations. Yet there reduced to placing the official stamp on the was no agreement as to the terms and ob- new rules. In other words, a real bargaining jectives of the proposed negotiations. The situation is characterized by the fact that all government wanted discussions of new con- main parties to the deal see themselves and stitutional drafts under preparation by the the others as having a lot to gain as well as a Ministry of Justice. The independent groups Framing the State in Times of Transition 359

wanted merely to work out the legal frame- partner of the government.38 The EKA del- work needed to freely elect a democratic leg- egates, rather than their respective organiza- islature that would, in turn, adopt a new con- tions, were to represent the entire opposition stitution of its own making. At the same time, at the NKA, the scene of negotiations. As a preparation of a new electoral law was well logical consequence, the EKA had to adopt under way by the government; apparently, the consensus principle as its own way of the bilateral and multilateral discussions that proceeding. Each organization had the right the government urged were meant, at least at to any EKA resolution. Nevertheless, this point, to do little more than give an air the opposition groups emphatically retained of popular consent to a new regime that the their ideological as well as organizational government could impose on the people. The independence. danger was especially great that the govern- The political agents belonging to the op- ment would gain as its partners one or more position EKA, whatever their previous views of the new so-called historical parties that as parties, were driven to favor the model were recently formed: the Független Kisgazda of constitution making by a new legislature, Párt (FKgP), or Independent Small Holders which some interpreted as a constituent as- Party; the Keresztény Demokrata Nép Párt sembly, for two distinct yet interrelated rea- (KDNP), or Christian Democratic People’s sons. Both stemmed from the weakness of Party; the Magyar Szociáldemokrata Párt the opposition agents. First, agents rightly (MSZDP), or Hungarian Social Democratic perceived that being unelected with small Party; and the Néppart, or People’s Party.36 memberships, they lacked the popular sup- The ambiguities of the government’s pro- port necessary for them to claim the author- posal notwithstanding, the prospect of nego- ity to devise the rules of the new regime by tiations created a new situation on the oppo- themselves. Second, opposition groups were sition side. In Hungary, there was no single divided among themselves on crucial con- unified opposition movement comparable to stitutional issues yet, at the same time, were Solidarity with demonstrable popular sup- forced by circumstances to act in a coordi- port, unquestioned authority, and nationally nated manner; therefore, on pain of losing in- known leaders. The months preceding the fluence over the transition process altogether, © Copyrightbeginning of negotiations in by July 1989 the were Endowmentthey were left with the single option of of post - characterized by a rapid proliferation of inde- poning decisions on all constitutional issues pendent groups, and in the multitude of voices, that separated them until an undefined later thethe generalUnited public could hardlyStates perceive the Institutepoint—at the very least, of until Peace the election of a difference between groups with a decade of new legislature or constituent assembly. Thus, prehistory and significant intellectual back- their initial position was that the agenda of ground and newly emerging formations with the NKA talks should be confined to estab- no discernible substance. With negotiations lishing the conditions for a disciplined tran- approaching, the question of political agency sition, in the restricted sense of a transfer of was bound to surface with unusual urgency power. The agenda, in their view, should have for the opposition. Who would participate in been limited to adopting a new electoral law the negotiations? The issue was settled in a and removing or at least neutralizing the more or less ad hoc manner: On March 22, MSZMP’s strategic organizational and fi- 1989, eight organizations, comprising all of nancial advantages, leaving open questions the important independent groups,37 formed regarding the new regime’s features.39 the EKA, which became a coordinating body The crucial question then turned out to be between them and the single negotiating whether the government might be persuaded 360 Andrew Arato and Zoltán Miklósi

to adopt the EKA’s terms for the discussions. of events. After June 16, there simply was In this respect, the decisive move came in to be no returning to attempts to impose a early June 1989, when—sensing the growing new regime by the government; the old re- influence of the opposition as well as its own gime’s pretensions to representing the peo- progressive disintegration—the MSZMP ple were given a final blow. Third, the most agreed to limit negotiations to the conditions important opposition groups stabilized their of the transition and to abandon its own status as the negotiating partners of the gov- draft constitution, which it had completed ernment, and some of them—most notably in May.40 This concession, together with the the MDF—even demonstrated substantial earlier formation of the EKA, finally created popular support in by-elections. Therefore, the conditions for a real bargaining situation. the opposition realized that it had a direct But it was sustainable only as long as the stake in concluding the negotiations in a MSZMP could keep its promises to avoid timely fashion. Fourth, the relative reversal entering into the substantive issues of the of perceived strengths notwithstanding, the design of the new regime and to provide fair outcome of any popular elections, either conditions for the transition, and only as long presidential or legislative, was vastly unpre- as the EKA could retain a sufficient level dictable, especially for the legislature. In all, of . Given the substantial differences the major external constraints on the bar- among the opposition groups, the second gaining process were removed, there was to condition could be met only if the first con- be no return to the old ways, and neither of dition was met. As it happened, the MSZMP the major political agents was strong enough kept neither of its two promises, but by that to set the terms of the process all by itself. time, it only disturbed the transition process The NKA talks had a rather sophisticated rather than spoiling it altogether. structure that facilitated the overcoming of The most important period of classical major obstacles yet had little to recommend bargaining occurred between June and Au- itself in the way of public accessibility, let gust 1989, when all the essential prerequi- alone popular participation.41 The negotia- sites of bargaining between two autonomous tions were conducted at three levels: one ple- parties were present in a particularly clear nary, one medium political level, and one ex- ©form. Copyright First of all, by this time it wasby a more the pert Endowmentlevel. The two lower levels were dividedof or less common understanding that the So- into various thematic committees. The gov- viet Union would not intervene should the ernment insisted, and the opposition reluc- outcomethe ofUnited the negotiations leadStates to adopt- tantly Institute agreed, on making of only thePeace plenary ing an entirely new type of regime. Thus, the level accessible to the media, the level that, single most important strategic advantage for the most part, was confined to being the of the communist party was removed. Sec- public stage for declarations and the forum ond, the reburial of , the executed for striking the final deals on various de- prime minister of the 1956 uprising, on June tails.42 The main bargaining was carried out 16, 1989, altogether shattered the ideological in the committees and subcommittees of the as well as symbolic self-understanding and medium level, with the participation of the legitimacy of the old regime. After some ini- most prominent figures of both sides.- Mi tial hesitancy, the reform-minded leaders of nor adjustments and differences were ironed the party decided to support preparations for out at the expert level. This structure, com- the reburial and even attended the ceremony, bined with informal background talks among which became from a psychological point various agents as well as the EKA sessions, of view the turning point of the sequence provided sufficient flexibility and fallback op- Framing the State in Times of Transition 361

portunities to retain the unity and continu- transition, whereas the position on presiden- ity of the negotiating process even in the face tial elections forced the EKA to enter into of serious disagreements. However, the struc- many of the substantive issues of the new ture also meant that devising the crucial de- constitutional design. To be sure, the oppo- tails of the new regime was insulated from sition groups had already agreed before this the general public, which was hardly aware of episode to discuss some of the key elements either the major issues of the negotiations or of the new regime, such as the constitutional the alternative positions and choices. Admit- court, the ombudsmen, and even the presi- tedly, a more open bargaining process could dency itself. It was, however, the question of have had undesirable consequences; it is easy the timing and manner of presidential elec- to see how greater public involvement could tions that was to lead to the (partial) break- have led to more plebiscitary alternatives, par­- down of the negotiation process. ticularly a popularly elected strong presidency. Arguably, the communist party’s change As we argue, the sophisticated bargaining of strategy was due to its perception that its structures made for favorable institutional chances of retaining at least some of its pow- outcomes but little transparency. There was ers in popular elections were deteriorating an important cost for this: Because the popu- further. The summer of 1989 witnessed the lation was given little opportunity to see the landslide victory of Solidarity for all con- emerging institutions as their own work, the tested seats (one-third of Sejm, 99 out of 100 new constitution was to have much less legiti- of the Senate) in Poland’s general legislative macy than was generally thought desirable.43 elections, as well as the victory of opposition candidates in three by-. While perceiving its relative weakness had From Round Table to Referendum forced the government to accept the EKA’s At a rather late point in the negotiations, terms of debate early in the summer, the in late July 1989, when there was already premonition of its possible defeat in popu- remarkable progress in almost all areas, the lar elections pushed it to tighten its grip on MSZMP delegates changed their stance on power and seek to retain it by other means. both the issue of the agenda of the negotia- At that moment, the party’s only relative as- © Copyrighttions and the issue of providing by for fairthe con- Endowmentset that could have been mobilized of in popu - ditions of transition. First, they announced lar elections was the popularity of one of its that the party would not abolish its organi- nationally known leaders, , who thezations United at workplaces or publishStates accounts of Institutehad been up to that pointof in Peace the forefront of its property, nor would it dissolve the Work- reforms. The only way the party could have ers’ Guard, the party’s own paramilitary or- cashed in on this advantage was through a ganization. All of these were seen as provid- popular with Pozsgay as ing unfair electoral organizational advantage the party’s candidate. After Pozsgay’s elec- to the communists, contrary to any accept- tion as president, the outlook for parliamen- able notion of a fair transition. Second, the tary elections could very well change. party urged that the president of the repub- The dramatic change of perceptions on lic should be elected by the population at the part of the MSZMP leadership trans- large before the new legislative assembly was formed the entire bargaining process. Pre- elected; this was intended to secure this posi- viously, as all parties of the NKA agreed to tion for the party and its then-popular can- postpone discussing the substantive issues of didate Imre Pozsgay. The first set of positions the new regime, the opposition parties could could have obstructed the fair conditions of also avoid a Polish-type outcome of a previ- 362 Andrew Arato and Zoltán Miklósi

ously arranged parliamentary chamber and and FIDESZ, saw no reason to grant such a the division of the executive between a presi- concession to the government in the chang- dent and a prime minister. It was assumed ing circumstances. However, if they used the both that the election of the new legislature right of veto given to them by the rules of the would be entirely free and that there would EKA, they would risk all the results that were be no division of the executive power. Both achieved at the round table, possibly spoiling assumptions were plausible because the two the entire process of transition. Therefore, sides not only felt themselves weak but also they decided to neither sign nor veto the perceived their relative weaknesses as being final agreement but called for a referendum in balance. Because both could hope to win on the four contested issues of the presi- fair but not overwhelming representation in a dency, the communist party’s property, its or- popular legislative election, they could agree ganizations at workplaces, and the Workers’ on holding entirely free elections without Guard.45 On September 18, 1989, the major- Polish-type restrictions. According to János ity of the EKA organizations signed the final Kis, the SZDSZ’s most important leader, the agreement and the rest initiated a referen- weakness of opposition agents paradoxically dum. FIDESZ and the SZDSZ gathered far led to their radicalization; unlike Solidar- more than the necessary 100,000 signatures ity, the independent Hungarian organiza- to support their referendum initiative. As a tions lacked the authority they would have result, the last communist legislature still in needed to persuade society that concessions office adopted the agreement reached at the to the old regime were necessary. Thus, in- round table and thus amended the consti­ stead of dividing executive and legislative tution on October 17–20; a few days later, a powers, they focused on imposing constitu- referendum was officially called for Novem- tional constraints on them, such as through ber 26 on the four contested questions. The establishing the constitutional court and the answers favored by the radical wing carried ombudsman’s office.44 Arguably, the negoti- the day on all four questions, although on ating process was smooth only as long as the the presidency issue, the margin was only six self-perceived weaknesses of the bargaining thousand votes. Thus, the presidential elec- parties were relatively balanced. The moment tions were postponed until after the new leg- ©one ofCopyright the sides perceived its chances by as bethe- islature Endowment was elected and conditions of relaof- ing considerably better or worse than those tive equality for the upcoming competition of the other party, the bargaining process was secured.46 boundthe to faceUnited difficulties. Of Statescourse, there is InstituteTo sum up, through theof agency Peace of the an asymmetry here. Had it been the case that generally obedient old one-party parliament, the communist party sensed its position to be the NKA had been without a doubt the dramatically improving rather than deterio- chief organ of making the new democratic rating, it could have left the bargaining table . In institutional altogether instead of changing its strategy. terms, its most important products included The change in dynamics between the two a new , a regulation of the sides of the NKA entailed a change in the relationship between the executive and the dynamics within the EKA. The moderate legislature—leaving the issue of the presi- wing, led by MDF, was ready to sign the final dency unresolved until the referendum—and agreement and thus for all practical purposes the introduction of significant constitutional to concede the presidency, albeit with very constraints on the government, such as the limited powers, to the MSZMP. The more Constitutional Court and the Ombudsman’s radical wing, represented by the SZDSZ office. More specifically, the NKA adopted Framing the State in Times of Transition 363

a mixed proportional-majority electoral sys- radical organizations helped remove a pos- tem, in which 45 percent of the seats were sibly damaging compromise from the struc- filled through the majority-plurality system ture of the new constitution. Finally, the gov- and 55 percent were elected through the ernment and the MSZMP chose to accept proportional representation method, though these outcomes rather than block the process with peculiarly disproportional consequences altogether. due to the relatively low average district size. With the referendum, the most important Regarding executive-legislative relations, the phase of constitution making was over. It had arrangement reached at the NKA was for a two long-run effects. First, the referendum mostly parliamentary system, with execu- turned what was until then a purely elite af- tive power exercised by a parliament-elected fair into one involving popular initiative and government dependent on legislative confi- participation. Whatever legitimacy and pop- dence. In subsequent steps of constitutional ular acceptance the constitution was to have amendments and Constitutional Court rul- in the beginning certainly benefited from ings, this arrangement was further shifted this element of politics from below. Second, in the direction of pure parliamentarianism. the referendum was not strictly about con- Regarding constitutional constraints on the stitutional issues but also about the timing executive and the legislature, the restric- of the elections. On the issue of the presi- tions imposed on the government by the dency, the population probably did not agree arrangements arrived at by the NKA gave with its own decision to avoid direct election the Hungarian democratic regime a truly of the president; it voted the way it did by a constitutionalist character. Not only did the very slim majority only because of the du- constitution emphatically recognize a list of bious circumstances of the NKA agreement fundamental human rights and other consti- on this issue, which the radical opposition tutional principles that the government was exploited. Certainly linking the issue of the obliged to respect, but it also provided for presidency with three additional questions on effective institutions to enforce these rights which there was vast popular agreement fa- and principles. In particular, the Constitu- cilitated the outcome. Thus, what was gained tional Court introduced by the NKA was for the legitimacy of the NKA arrangements © Copyrightgiven such extensive powers by that untilthe the Endowmentwas probably limited and certainly of unmea - later creation of the South African Court, it surable, although the party most associated was regarded as the most powerful institu- with the referendum, the SZDSZ, definitely thetion ofUnited its kind around the States world. In the early Institutegained much new support of inPeace this process. 1990s, the Constitutional Court played a Ironically, the referendum—the single crucial role in protecting fundamental rights popular moment in any of the phases of the from invasions by the government and in making of the Hungarian constitution— clarifying the relationship between various intensified the already existing cleavages branches of government. among the opposition organizations. When In hindsight, one can argue that both the the making of a definitive new constitution moderate and the radical wings of the op- required their unity, the major parties of re- position were crucial to preparing the way gime change, the MDF and SZDSZ, became for a peaceful and disciplined transition. By bitterly divided, even though the interim signing the agreement, the moderate organi- constitution more or less satisfied their top zations helped secure the vital achievements negotiators’ basic ideals concerning a par- reached at the NKA; by initiating and sub- liamentary republic. The division of the op- sequently winning a referendum, the more position and of the EKA itself, always one 364 Andrew Arato and Zoltán Miklósi

of the aims of the negotiators of the ruling achieved a measure of independence from party, finally occurred, even if only at the very the party; and parliament, in smaller measure, end of the process of successfully drawing from both.47 From a more skeptical point of up the interim constitution. As a result, the view, the necessary public role of government new constitution itself was not looked upon and parliament gave a legal opportunity to even by the new political elite—not to speak the ruling party to modify agreements in a of the population in general—as of its own retroactive and one-sided way by appeal- common making. Given that the document ing to the still-fictitious independence of itself was in most respects acceptable, it was other communist actors. Whatever the truth, first and foremost its relatively weak -legiti the last communist parliament managed to macy that inspired a variety of actors to seek play an independent role in the making of further constitution making. the new constitution twice: once in October during the enactment of the interim consti- tution and once under the rules of this new A Plurality of Constitution-Making Agents basic law. The electoral rules agreed upon at the The Old Parliament NKA were an obvious compromise, mixing The Hungarian model of transition was directly elected seats (152), seats attained based equally on comprehensive negotiations in provincial lists (152), and seats attained and the maintenance of legal continuity. A from a national compensational list (70), the remarkable feature of this process was the function of which was to make the overall legalism of all the actors, who scrupulously electoral result more proportional. In dis- adhered to the letter of the law even when it cussing this particular proposal, the parlia- was to their disadvantage. The ruling party, ment staged a veritable rebellion, demanding for example, accepted the validity of the pe- a dramatic expansion of individual seats. It is tition campaign and subsequent referendum impossible to know whether this was done and was not tempted to manipulate the result to fight for the original bargaining position concerning the presidency, even when its po- of the ruling party that the MSZP itself had sition lost by a mere six thousand votes. The to modify or to protect the personal interests ©opposition Copyright was equally defenseless by when thethe (however Endowment mistakenly interpreted) of deputies of sitting parliament, the last communist one, who were elected in individual districts in enacted the provisions agreed upon by the which they were well known.48 In any case, NKA.the It wasUnited a technical requirement States of the the Institute result was a compromise of that Peace increased 1949 constitution, then in effect, that parlia- the directly elected seats to 176, at the ex- ment had to enact all constitutional changes pense of the national compensational list, by a two-thirds majority as well any new elec- which was reduced to 58. This produced a toral rule. The opposition at the NKA had much less proportional system than the one assumed that parliamentary consent would agreed upon by the NKA, which survives to be achieved on all issues in “the usual way,” this day.49 That parliament was operating un- that is, according to the unwritten material der something like a veil of ignorance about constitution of all communist regimes: by the actual voter preferences is shown by the political pressure of the Political Bureau—the outcome of the first free elections, however. party to the agreements—on the government The ex-state party, the renamed MSZP, won and the parliament. But during the rapid de- only one seat in individual districts in March velopments of 1988 and 1989, this unwritten 1990. The action probably cost at least a few constitution, too, was changing. Government deputies their jobs and political careers. Framing the State in Times of Transition 365

Modifying the electoral law did not for- the MSZP received only 10 percent of the mally require constitutional revision. The votes in the first parliamentary elections in same is not true of basic rights. In another March 1990, the party was certainly going example of its exercise of independence, be- to lose the presidency in a popular election if fore fully enacting the package agreed upon it took place any time in 1990 (i.e., after the at the NKA, the old parliament rewrote the parliamentary elections). paragraph concerning the impossibility of limiting the rights identified in the package by providing a set of classical conservative The New Parliament: the MDF-SZDSZ Pact limits rooted in the requirements of public That the last communist parliament did not order, public security, public health, and pub- fully adhere to the NKA agreements was an lic morality. More significant and more last- important reason for further constitutional ing, parliament also added the right to social change. However, it was most certainly security in the table of basic rights. not the only one. The agreements incorpo- The same parliament failed, but only tem- rated features that were important for both porarily, to establish the direct election of sides from the point of view of guarantees the president of the republic, rejecting the of a significant political role in case of se- parliamentary solution of the NKA negotia- vere electoral defeat. These guarantees can tions.50 The NKA, confusingly, originally es- themselves be grouped under two headings: tablished a relatively weak presidency elected consensus democracy and constitutionalism. by parliament, and it was only for the first As in South Africa, coming to agreement free elections that a direct popular election by two relatively equal sides was very much of the president was provided for—if it took facilitated by using both types of guaran- place before parliamentary elections. This tees. In both countries, however, it was soon one-time feature was reversed by the No- recognized that while constitutionalism en- vember 1989 referendum, which, in the view forced by a court could somewhat narrow the of the Constitutional Court, did not deal framework of possible policy making, strong with the constitutional issue of the mode of consensus requirements could interfere with electing the president, but only the question policy making, directly resulting in political © Copyrightof its timing.51 When the court by ruled the on the Endowmentdeadlock that a new democracy did of not need. matter, it allowed the old parliament under Such requirements, moreover, could imply the new constitution’s purely parliamentary that there was only one effective form of theamendment United rule (two-thirds States of an absolute Institutegovernment formation, of a grand Peace coalition of majority) to revise the constitution and pro- the largest parties irrespective of their ideo- vide for a popular election of the president logical orientation. This approach minimizes after the first parliamentary elections.52 This the constructive government-opposition re- the parliament actually did on the initiative lationship of parliamentary democracy and of Deputy Zoltan Kiraly, the most famous interferes with the accountability of govern- independent member elected in 1985, who ment that is so important for countries ex- himself was a candidate for the presidency.53 tricating themselves from authoritarian re- What mattered was not the institutional in- gimes. Admittedly, consensus requirements, terest of parliament but the strong prefer- including qualified majorities required for ence of the now renamed MSZP, still smart- constitutional amendment, do have an im- ing from its defeat in the referendum, for portant purpose, namely, stopping temporary a directly elected presidency. Nevertheless, majorities from modifying the rules of the they did not know what they were doing. As game to benefit incumbents. Some consen- 366 Andrew Arato and Zoltán Miklósi

sus democracy is thus required also for con- tion’s opponents to take political power from stitutionalism. But in Hungary as well South the MDF, it was the most interested in the Africa, the initial drafters went much too far type of changes that the MDF government in requiring that ordinary legislative (Hun- favored. The SZDSZ was not ideologically gary) and executive (South Africa) acts be inclined to consensus democracy; the main consensual. Making ordinary policy making sponsor of the 1989 referendum, it was dependent upon reaching consensus among deeply committed to reestablishing a purely parties with vastly divergent political views parliamentary presidency. In return for ele- substantially increases the risk of failure in ments of chancellor democracy providing the political process, which is particularly for a strong parliamentary executive, and the dangerous in newly established democracies drastic reduction of the number of two-thirds with mounting economic problems. In Hun- laws to an enumerated group of twenty,54 the gary, the last undemocratic parliament added MDF could easily offer the concession con- to the NKA agreements further consensual cerning the election of the president—which requirements for legislation, to the point that the prime minister, József Antall, in any case governability itself became a problem. favored—along with the nomination of Ar- The most important form that consensus pád Göncz as the first president. Göncz was democracy took in Hungary was the very an SZDSZ founding member and veteran large number of laws that would be modifiable of 1956, whom Antall thought (wrongly) he only by two-thirds relative majorities—the could control. With this concession came a vote of two-thirds of those present and vot- slight strengthening of presidential powers, ing, almost as difficult to achieve as constitu- presumably to offer further guarantees to tional amendments that required two-thirds the SZDSZ that the government would not of all members, present and absent. Because abuse the new powers of the executive.55 Thus the new government formed in 1990 chose was born the MDF-SZDSZ pact, easily rati- not to create a grand coalition, it had an im- fied by parliament as the law 1990: XL.56 It mediate interest in reducing the number of was the second general agreement that, to- two-thirds laws. Given potential parliamen- gether with the first (the NKA compromise), tary volatility, the government also was very established the new Hungarian constitution. ©interested Copyright in measures guaranteeing by stability, the TheEndowment occasion for enacting the pact seemed of such as the constructive no-confidence vote to motivate the other parties and individual and the elimination of the individual respon- members of parliament to offer a variety of sibilitythe of United ministers. The new States center-right amendments. Institute Some of theseof proposals Peace ac- nationalist Christian coalition, dominated by tually passed, and some even helped to im- the MDF, did not, however, have the two- prove the rule-of-law dimension of the new thirds vote necessary to amend the constitu- constitution. The term of the president was tion. Of its opponents at that time, the MSZP extended from four to five years, and in case and FIDESZ strongly defended consensus of proceedings, the Consti- democracy and opposed the strengthening tutional Court had the responsibility to try of the executive at the expense of parliament. him. A habeas corpus provision was estab- So the only plausible partner for change was lished, and parliament reversed the limits on the liberal, culturally left-of-center SZDSZ, rights that the last undemocratic parliament at that time the MDF’s toughest competitor inserted into the NKA package.57 and a strong runner-up in the general elec- These additional amendments show that tions. Because the SZDSZ was thought to there was at the time strong latent parliamen- have the best chance of the Christian coali- tary interest in constitution making. Why not Framing the State in Times of Transition 367

then move toward a comprehensive agree- a collective effort could also have moderated ment on a new constitution, especially as the the destructive ideological and institutional Round Table constitution defined itself as an struggles from 1990 to 1994 that helped to interim one? We do not believe that this op- weaken decisively the two important parties tion was seriously raised at the time, though to the pact. We have even better reason to the relevant leaders must have considered it. think that despite the passing of some con- To begin with, the SZDSZ and MDF were stitutional amendments between 1990 and by then bitter ideological opponents with 1998, probably the best chance was missed in an extremely divisive election campaign be- 1990 to establish the definitive constitution hind them. It was not clear that they could of the new liberal democratic parliamentary agree on a wide range of questions for which republic. This is so because the 1990–94 pe- worldview mattered first of all. Their mili- riod was the only and last time when the tants and members were quite hostile to three parties that were the true motors of the one another; cooperation was not popular regime change—the MDF, the SZDSZ, and among their rank-and-file members. Had FIDESZ—had overwhelming majority.58 there been an all-party constitution-making As for the procedural aspects of the sec- effort instead of a two-party one, consensus ond major round of constitutional amend- might have been achievable. But the prefer- ments, it was, if anything, even less partici- ences of the MDF’s allies and the MSZP patory than the Round Table process itself. for direct election of the president, and even The preparations were restricted to secret presidentialism, made them impossible part- talks between top leaders of the MDF and ners for the SZDSZ, which cared about this SZDSZ, completely excluding all other par- issue most of all. Moreover, the attachment ties, the media, and the general public. The of FIDESZ and the MSZP to consensus de- secretive nature of the preparatory talks, and mocracy made them difficult partners for the the fact that the outcome was presented as MDF government. It is possible that a com- an accomplished fact, infuriated many of the prehensive bargaining framework could have leaders and ranks of the two participating ironed out the differences through compro- parties themselves, leading to lasting rup- mise. But there was no guarantee that from tures within the MDF. The agreements made © Copyrightthe point of view of the SZDSZ by or MDFthe or Endowmentby the two parties were presented of as a fait both, such a result would not have produced accompli to the other parliamentary parties a substantively worse constitution than what and the public as well; hence, the slightly de- thethey couldUnited arrive at through States their pact. Institutenunciatory term “pact” of attached Peace to the whole What the parties neglected, however— process. The proposals had been submitted to aside from several serious remaining flaws of the legislature jointly by MDF and SZDSZ the constitutional setup, such as the highly and were subsequently passed without any disproportional electoral rule and the much- substantial alteration, despite the stark criti- too-easy constitutional amendment rule— cism of FIDESZ and MSZP, the two op- was the issue of legitimacy. They did not position parties. MDF secured the support, even try to explore what kind of constitution albeit not without certain misgivings, of the could be produced through extensive discus- two junior partners of the governing coali- sion and consultation. It is very likely that if tion. There is no indication whatever that attempted, MDF, SZDSZ, and FIDESZ co- the chief agents behind this second round operation could have produced a solid con- of amendments—the MDF and SZDSZ— stitution expressing the new public-law ideas ever seriously considered that popular par- of 1989. We have reason to believe that such ticipation or citizens’ groups should be 368 Andrew Arato and Zoltán Miklósi

brought into the process. To be sure, because likely to produce a constitution with a per- the agreement, in addition to constitutional ceived legitimacy deficiency. It may be added amendments concerning governability and at this point that the outcome of such a pro- the number of two-thirds laws, involved sev- cess of constitution making is likely to have eral ad hoc deals to nominate particular per- a provisional, patchwork character. Weak sons for offices including the presidency, the agents may be tempted, by an awareness of a governor of the central bank, and the chair- lack of democratic authorization, to resort to men of the national public television and ra- amending and revising the existing constitu- dio stations, the exclusion of public partici- tional document rather than devising an en- pation was inevitable. Clearly, citizens could tirely new constitution. Thus, it is also more not have been brought into what was to a likely that in subsequent periods, the actors great extent a self-interested compromise of the new regime will be more prone to en- between the two largest parties. gage in amending and revising the resulting This is not to say that the MDF-SZDSZ document than they might for a constitution pact as a whole was not beneficial for the with uncontested legitimacy. Also, the patch- nation’s constitutional arrangement. As was work character of the document likely makes often the case in Hungary’s process of nego- it more susceptible to having significantly tiated transition, substantively desirable out- ­diverging interpretations. As there is no comes were reached by less-than-desirable single unified constitution-making process procedural routes. And while the pact left the with uncontroversial democratic authoriza- nation with a much-improved constitutional tion, the original intention of the framers, situation, the act itself—a rare feat of imagi- too, is even more obscure than is the case nation, foresight, and mutual self-restraint generally, and the room for judicial interpre- in Hungary’s extremely divisive post-1989 tation greater. Thus, a role for the Consti- constitutional politics—was and has been tutional Court would seem to be unusually widely perceived as yet another instance in important in consolidating the new consti- a long series of elite bargains conducted over tutional arrangement—though this logi- the heads of ordinary citizens. Therefore, its cal requirement, inherent in the negotiated welcome consequences notwithstanding, the transition method of constitution making, ©second Copyright round of major constitutional by amend the- has beenEndowment fully realized among the important of ments did little to refurbish the legitimacy of cases only in Hungary and South Africa. the new regime. For Hungary’s 1989–90 constitution, both the United Statesthe Institute creation and the judicial of practice Peace of the Constitutional Court to a large extent reflect The Constitutional Court the circumstances characteristic of negotiated Political conditions that favor negotiated transitions. Although the agreements made transitions also increase the likelihood that at the NKA—modified by the referendum the constitution-making process will be dis- of November 1989—and by the two largest continuous, more extended over time, and parties after the 1990 elections represented the work of different primary agents in dif- an entirely new constitutional arrangement ferent phases of constitutional consolidation. in substantive terms, the document for- It was argued above that the pure form of mally still retained an air of temporariness. negotiated transitions is likely to take place The paradoxes of the negotiating process, when political agents on both sides perceive originally intended merely to provide for the themselves as weak; furthermore, it was ar- conditions of a disciplined transition but re- gued that the weakness of political agents is sulting in a new constitution, are well illus- Framing the State in Times of Transition 369

trated in the preamble of the document it- tution, as well as for deciding contested issues self. The preamble claims that the document related to retroactive justice that emerged as a merely intends to “promote the transition consequence of regime change. In one of his to the rule of law”59 until the adoption of a early opinions, the chief justice of the court, new constitution, which has yet to happen László Sólyom (at the time of this writing as of this writing. Thus, the Constitutional the ) argued that Court established by the new constitution the Constitutional Court must continue to . . . was confronted with the task of exercising articulate the theoretical bases of the Consti- constitutional review on the basis of a patch- tution and the rights incorporated in it, and to work document; in this situation, quite a lot formulate a coherent system that will serve, as depended on how the court understood its an invisible constitution, as a safe guideline of function as the constitution’s guardian. constitutionalism above the existing constitu- tion that is currently still being amended out of The extensive powers granted to the court fleeting daily purposes.61 were certainly necessary conditions for the very active role that the court was to assume Thus, initially, the court explicitly asserted in consolidating the new constitutional or- the right to revise the constitution itself der. But such powers would not have been where it judged necessary. In some instances, sufficient to perform this role were it not for the court revised existing constitutional pro- the specific circumstances characteristic of visions.62 Between 1990 and 1993, Constitu- negotiated transitions. The usual dilemmas tional Court rulings provided a very robust of popular sovereignty versus judicial review interpretation of the freedom of speech, surfaced in a special context, in which the abolished the death penalty, authoritatively constitution not only lacked uncontested le- settled conflicts of competence between the gitimacy but also was the outcome of a se- president of the republic and the prime min- ries of substantial revisions and amendments, ister (establishing that the role of the presi- containing unsettled issues and possible in- dent within the executive branch was merely consistencies. Thus, an opportunity was pre- formal),63 and prohibited punishment of sented for the court to act as the constitu- crimes committed by the previous regime tion’s maker as well as its guardian.60 once the term of limitation had expired.64 In © CopyrightIn addition, as the law by on the Consti-the Endowmentthis period, the court had a decisive of but am- tutional Court was the product of a last- biguous role in defining the function of vari- minute compromise, it displays all the traces ous institutional agents as well as in making theof a United temporary character. States Among other Institutedifferent political of agents Peace realize the limits things, it leaves a number of questions un- of their powers in the new constitutional settled, such as the procedural rules and the arrangement. Unsurprisingly, in the same so-called rules of order of the court. It is nat- period, the charge of usurping the constitu- ural that the judges interpreted these provi- ent sovereignty vested in the legislature was sions broadly, giving themselves the largest most frequently made against the court. possible freedom. As the consolidation of the new regime The specifically activist period of the progressed and major interpretive decisions court stretched from 1990 to around 1993. were made (which are binding in future rul- Although the court’s decisions in this period ings of the court itself ), the coherence of the concerned chiefly the evolution of funda- new regime was stabilized and the room for mental rights, they were also consequential judicial activism with respect to questions of for defining the function of the presidency state organization was reduced to a mini- within the structure of the republican consti- mum. Since then, the main focus of judicial 370 Andrew Arato and Zoltán Miklósi

activism has shifted to such areas as welfare Closer to our context, it took the Poles eight rights. years and the South Africans three to move As with the NKA talks and other phases from interim to definitive constitutions. In of the Hungarian constitution-making pro- principle, the intervening time is quite use- cess, it may be claimed that the court’s activ- ful, allowing the accumulation of learning ity exhibits a characteristic ambiguity vis-à- experiences concerning an interim constitu- vis the symbolic and substantive aspects of tion, the weaknesses and difficulties of which its outcome. While the court has performed become apparent only over a sufficiently long an essential and, in substantive terms, bene- period.66 It can also happen, however, that ficial function in consolidating the republi- the window of opportunity for legitimate can constitution, judicial constitution making and consensual constitution making closes (or consolidation) as a general rule is not the before there is sufficient interest and political most adequate means to enhance the legiti- support to attempt the task of full-scale re- macy of a constitutional arrangement. As the drafting and enactment. That is what seems major interpretive decisions and formulation to have happened in Hungary.67 of rules were carried out by a body insulated In 1994, a left-of-center coalition of the from the democratic political process rather ex–state party MSZP and the SZDSZ came than by popular representatives, the experi- to power after four years of a national Chris- ence of constitution making was again lost tian center-right coalition. The new gov- for the general public. Nevertheless, as the ernment easily commanded a constitution- major political agents in subsequent legisla- amending majority (over 70 percent of the tive terms were, for the most part and either seats when only two-thirds were required), formally or in terms of legitimacy, too weak and its intention to draft and enact a con- to make fundamental constitutional resolu- stitution was a powerful spur for the other tions, not to mention a new constitution, it three (eventually four) parliamentary parties was left for the court to make such decisions to cooperate. On the advice of several experts after 1990. (including one of the authors), the coalition offered parliament an elaborate constitution- making procedure that was to involve a high ©Failure Copyright of the Effort to Produce by thelevel Endowment of consensus before any draft could of fi- a New Constitution in 1996–97 nally be approved. First, it would require the All acts of constitutional review between agreement of 80 percent of the deputies to 1989the and United 1995 were based materiallyStates on approve Institute a constitution-making of Peace procedure; the supposedly interim Round Table con- that majority was successfully achieved. Sec- stitution of 1989, which was formally an ond, the procedure included a formula that amendment of the Communist constitu- gave each of the six parliamentary parties tion of 1949.65 Thus the idea of producing four seats on the drafting committee. Third, a definitive constitution survived on the po- it provided that committee decisions re- litical back burner, waiting for a time when quired five out of six parties and two-thirds there was political power and will to accom- of the members of the committee. To protect plish the task. That it took six years to get to the project from the dangers of such high that point was not unusual in the history of consensus requirements, the procedure also constitutions. The United States waited six provided that whenever no agreement on years between the ratification of the Articles a constitutional provision was possible, the of Confederation in 1781 and the drafting corresponding provision of the 1989 consti- of the federal constitution in Philadelphia. tution would be maintained and integrated Framing the State in Times of Transition 371

in the new draft. Finally, as the biggest party, ing. The Poles, unlike the Hungarians, faced with 54 percent of the seats, the MSZP had serious structural and legitimation problems the additional guarantee that as always, the with respect to their presidency, which was a final draft would have to be approved by two- forced concession to the Communists at the thirds of parliament, which would be im- time of the Round Table and mixed poorly, possible without the strong support of that as President Walesa’s tenure showed so well, party. This feature was important because the with parliamentary institutions. There were project was not easy to accept for the ex-state no problems of this magnitude in Hungary. party, whose minister of justice, exactly like Moreover, unlike in South Africa, the mak- his predecessor in 1989, continued to play ers of the interim Hungarian constitution with the idea of producing a constitutional neither constructed a timetable to produce a draft by his own experts in the ministry.68 definitive version nor put in place sufficient Because no constitution actually emerged rewards and sanctions for the parties to stay from the process, it would take us too far loyal to the task. afield to discuss the details. It is enough to Several factors militated against success note that despite exemplary cooperation on in Hungary in 1996. Having come out from the level of the committee, the draft that under the empirical veil of ignorance, parties emerged did not deal with some of the great- sought not conversion of present into future est structural problems of the 1989 constitu- power or guarantees against future persecu- tion—the highly disproportionate electoral tion or marginalization but rather the real- law and the deep tension between a simple ization of the needs of their new political parliamentary amendment procedure and an identities. The ideological field in Hungary, extremely powerful constitutional court. But much more than the field of real choices, had a draft did emerge even with the forbidding become extremely polarized.70 Around issues consensus requirements. What then occurred, of diverging identities, no full consensus was however, was extremely peculiar. Though the possible. The expert drafting committee only SZDSZ, the MDF, and FIDESZ voted for had to reconcile interests, and that turned the draft, the right-wing Small Holders and out to be easy enough. There was no political Christian Democrats did not. More strik- majority, however, and certainly not a two- © Copyrightingly, enough members of by the governing the Endowmentthirds one, behind any ideological of ­vision of MSZP, including most government min- the constitution, including the 1989 con- isters, voted against the draft—for which stitution’s liberal democratic parliamentary- thetheir Unitedown party’s committee States chairman bore Instituteconstitutionalist model. of Admittedly,Peace that the main responsibility—thus depriving it of very constitution was the default for any new the necessary two-thirds majority. In effect, a provisions that could not be agreed—that red-black coalition, present in Hungary only was the clever ploy of the liberal leaders of for that moment, brought the effort down. the committee. But a sufficient number of After that fiasco, there were attempts to save members of parliament, waiting for another the draft by satisfying some of the critics, by day to establish their vague constitutional including some mildly social corporatist ele- dreams, could and did choose not to relegiti- ments, but new defections and the final failure mate the system they were living and acting of the project were unavoidable.69 The com- under. parison with Poland, where, under the lead- How could a temporary red-black linkage ership of President Kwasniewski, the Poles get away with such sabotage in the face of got rid of most of the presidentialist features the majority of the committee and even that of their own interim constitution, is strik- of parliament? First, unlike in Poland, no 372 Andrew Arato and Zoltán Miklósi

popular participation or discussion was or- attachment to the constitution never allowed ganized, and the government did not have to authoritarian deformations to emerge as an fear any popular pressure. This state of affairs issue around which the opposition of that characterizes the entire constitution-making particular period could mobilize. process in Hungary, where, with the excep- tion of the referendum campaign of the fall of 1989, there was no popular participation The Constitution as a Product at all. There were very few people (including of Models and Bargains one of the authors) who advised, in 1994, a popular, participatory, and educational pro- Innovation and Models cess on the model of South Africa, but the During the epoch of the reconstruction of legal experts of the coalition parties tended civil society in Eastern Europe, many in- to consider such an approach irrelevant or volved in that process recalled the famous even dangerous. The liberal party feared that saying ex oriente lux. Intellectual innovation popular participation would lead to a directly was a striking feature of the crumbling So- elected president, possibly to a strengthened viet empire in Eastern and Central Europe, executive. They may have been right about and brilliant political projects were orga- this, but on the other hand, the absence of nized around the reconstruction of civil so- public attention to the process made it much ciety by activist intellectuals such as Adam easier for members of the government, along Michnik, Jacek Kuron, Vaclav Havel, and with unlikely right-wing allies, to sabotage János Kis.72 This innovation did not extend the project of their own coalition. to the constitution-making sphere, however. Second, even the liberal SZDSZ and its With respect to Western models, the East- lawyers did not care about the issue suffi- ern European innovators felt they had noth- ciently to make cooperation of the MSZP ing new to offer on the level of constitutional leaders with their own committee a condition and institutional design. It was the common of their own continued participation in the sense of Hungarian institutional designers governmental coalition, which they should that they must take their institutional option have left when the sabotage of the draft took from the best that was available. But what ©place. Copyright Third, public opinion as well by as the libthe- was thatEndowment best? of eral party leaders had become accustomed In Eastern and Central Europe, demo- to an evolutionary pattern of constitutional cratic constitution makers had low regard for learningthe and United change, of which theStates Constitu- the Institute U.S. version of the separation of Peace of powers tional Court was the main protagonist. They as well as British parliamentary sovereignty. did not fully realize the paradoxical nature of To the extent that elements of either of these court activism in the context of a soft consti- appeared, they were in the form of semi­ tutional background;71 the likely future reti- authoritarian strategies of old ruling parties cence of a court eventually attacked from all (the U.S. presidency, majoritarian elections) sides could mean that other political branches or new nationalist groupings with a parlia- could grab the power to mold the material mentary majority (either the U.S. presidency constitution even without formal amend- or British cabinet government). In countries ments. That last outcome has been realized with negotiated transitions (with the tem- under the government cycle of 1998–2002 porary exception of the first, Poland), these by the right wing FIDESZ government, put- options were unsuccessful, and we see their ting Hungary’s constitutional future tempo- lasting influence only where options were rarily in doubt. However, the lack of popular imposed from above. From the point of view Framing the State in Times of Transition 373

of professional opinion in the Round Table well as the right to strike, was reached only countries, which was generally echoed by after intense conflict and debate. liberal and democratic forces, the constitu- tions and electoral arrangements of the Ger- man Federal Republic and the French Fifth Bargaining for an Electoral Rule Republic were considered close to the best and the Conversion of Power available. As it turned out, even federal states The electoral formula for the constituent as- in the region chose one or another version of sembly negotiated at the Round Table was parliamentary government or semipresiden- acceptable to all sides. Claims for both pro- tialism, with governments headed by prime portional and direct individual mandates ministers (supposedly) responsible to parlia- were satisfied in a combination the high level ment. Among parliamentary republics, none of disproportionality of which was not yet chose to operate without a written constitu- clear to anyone, least of all to the historical tion, insulated amendment rule, and some parties that significantly contributed to it by kind of constitutional review. No country insisting on county lists. The 4 percent cutoff chose a single-district, first-past-the-post, agreed upon seemed relatively unthreatening one-round plurality electoral rule, nor was to the parties of the EKA, many of which the idea of electing the president through an had no idea how weak they actually were. electoral college ever seriously entertained This feature would ultimately be an impor- anywhere. The model of constitutional ju- tant part of manufacturing a majority out of risprudence chosen was invariably the Eu- a minority. Even the parliament’s unilateral ropean Kelsen type, fluctuating between raising of the number of seats to 176, which weak French and strong German prototypes. was a third source of the high disproportion- But the choice among mostly French, Ger- ality of the system, involved a 45 percent–55 man, and other options—the last including percent ratio of direct to proportional rep- a given country’s own earlier constitutional resentation mandates, which was closer to heritage—was filtered through the political the EKA formula of 50–50 than the Round party interests as well as legitimating needs Table compromise itself. faced by the major actors. What emerged, then, as a result of bar- © CopyrightAs against other countries, by especially the fur- Endowmentgaining over the electoral system, ofwas a set ther east, outside experts and advisers were of rules that gave something to all the main not significant in the Hungarian constitution- forces, and therefore unavoidably a unique themaking United process, even if States the constitutional Instituteset of extremely complex, of mixedPeace rules that solutions of other countries were broadly in- had some features (two ballots) of the Ger- fluential.73 The most direct influence on the man model that it superficially resembled Hungarian drafters was the European Con- and some important elements (two rounds) vention on Human Rights, the first fourteen of French elections. Those who hoped that articles of which provided the structure and this would be the model only for the first much of the content of the twelfth chapter of elections were deeply mistaken. The very the Hungarian constitution on fundamental early freezing of the model confirms the rights and duties. As far as we can tell, adopt- expectation of most political scientists: De- ing these provisions at the Round Table on spite the embarrassing disproportionality of the proposal of the ministry of justice was the system, its inhospitability to small and entirely uncontroversial, even if just a few new parties, and the dangers of super-large months before, agreement concerning statu- majorities, it is unrealistic to ask parties that tory freedoms of association and assembly, as have just won an election to change the rules 374 Andrew Arato and Zoltán Miklósi

Table 13.1 1990 Elections fully parliamentary structure, with a rather Number weak president elected by parliament,76 it Percent of (Percent) mandated during the first electoral period Votes for of Seats the direct election of the president if it took Party Party Lists (total: 386) place before parliamentary elections.77 Ordi- MDF 24.73 165 (42.7) nary legislation was then to order that the SZDSZ 21.39 92 (23.8) election of the president would occur before FKgP 11.73 44 (11.3) 78 MSZP 10.89 34 (8.8) parliamentary elections. Thus, it was pos- FIDESZ 8.95 23 (5.9) sible to sell the model to some who opposed KDNP 6.46 21 (5.44) it with the idea that direct elections would Independent 7 (1.8) involve only a one-time, exceptional com- promise of their positions.79 There is a question whether those who that led to their success. Close to the next changed their position at the Round Ta- election, however, polls would indicate the ble—in particular the MDF, which always beneficiaries of any change with clarity, thus thought in terms of the model of the 1946 making any tinkering with the rules appear weak, parliamentary presidency—were actu- self-serving (see Table 13.1).74 ally naïve concerning the potential meaning of the concession. There has been significant speculation about a private or secret agree- Bargaining and the Nature of the Presidency ment between Imre Pozsgay of the MSZMP A similar compromise model was impossible and József Antall of the MDF concerning in the case of the presidency, in part because this compromise, which would supposedly the MSZMP proposal was already a mixed lead to a Hungarian version of the Polish one, putting together, in the French style, “your president, our prime minister” for- a directly elected presidency with a prime mula. Though there is some evidence of minister with parliamentary responsibility. this,80 it is possible and more charitable to More important than this formal point was take Antall’s remarks at the last plenary at the determined opposition of the radical op- face value, according to which he was still ©position Copyright and even many moderates by to presi the- uncertain Endowment about the possibility of Soviet of in- dential government that, in the context of tervention and civil war when making the Hungarian tradition,75 seemed like a foreign concession. With over ten years’ hindsight, it import.the Whereas United some of the minorStates groups is alsoInstitute possible to say that thereof wasPeace a highly in the EKA always favored a directly elected functional division of labor between moder- presidency, the radical opposition saw a con- ate and radical oppositions, with the former version strategy for what it was and feared making the then-possible deal with regime the authoritarian possibilities of a plebi- reformers, while the radicals who rightly scitary presidency more than the potential chose not to veto the agreements as a whole weaknesses of a model involving problems of chose instead to turn to the electorate in the divided government, as in the United States, petition-referendum campaign to get rid of or cohabitation, as in France. The compro- its one objectionable feature.81 It is easy to mise engineered by Antall, but never ac- see why the radicals won in the referendum, cepted by the radical SZDSZ and FIDESZ, and only won slightly. Whether there was a involved a partial return to the two-stage deal or not, many Hungarians tended to be- schemes of the reform Communists. While lieve that there was, an idea reinforced by the the constitution would generally affirm a very low level of publicity for what was going Framing the State in Times of Transition 375

on at the Round Table negotiations. Mak- the other side was using guarantees to pre- ing a deal, however, that shattered the unity serve power.83 of the main opposition parties seemed like The most important case in point was sacrificing a great deal at that moment for the agreement concerning the Constitu- private party advantage. It would have meant tional Court. From the beginning of mak- leaving the veil of ignorance and genuine ing reform proposals, such a court was on the public-regarding argumentation behind. The MSZP/MSZMP’s list of innovations. The referendum was won by only 6,000 votes idea was consistent with the project of con- because the actual preference of the major- trolled liberalization, in which partially free ity in a plebiscite was, logically enough, for elections and an increased sway of the rule of the plebiscitary election of a president. The law would relegitimate a partially authoritar- dangers of a plebiscitary president concerned ian system. The importance of models in this only relatively few intellectuals. case is clear: There was never a moment when the Hungarian discussion entertained a U.S.- type judicial review, and all the options were Veil of Ignorance and Guarantees conceived in terms of a Kelsen-type inde- Though they acted as if they knew the future, pendent tribunal outside the judicial system the parties were under what could be called proper. This type, however, allowed strong an empirical veil of ignorance regarding the (German) and weak (French) variants. In its outcomes of rules for both projected presi- original version, the plan included a relatively dential and parliamentary elections. The solid weak court, with no standing for anyone out- expectations of many were frustrated. The side the political system, possibly with the MSZMP did poorly in the single-member option of parliamentary overrule of decisions districts it originally fought for so hard; that in any case would be easy given the ex- many of the small parties were not particu- isting constitutional amendment rule. Judges, larly concerned about the 4 percent thresh- of course, would have been selected through old, which then led to their elimination; the the Ministry of Justice or a combination of MDF would have done much worse under actors that the party would control. It was the balanced mixed system it advocated than still a variant of this project—allowing only © Copyrightunder the more disproportionate by system the that Endowmenta suspension of unconstitutional of laws and emerged; and the SZDSZ would have done including the feature of parliamentary over- worse under the system of more direct seats rule—on which parliament voted in a pre- thethat itUnited wanted. In the end, States the acceptance of Instituteliminary version in Marchof 1989,Peace in a “putsch a mixed formula speaks for the parties hedg- like fashion” in the eyes of the opposition,84 ing their bets in the context of uncertainty.82 and that the MSZMP brought to the Round The same is even more true for those parts Table. This version restricted standing, in the of the bargain involving guarantees of a con- French pattern, to public law authorities such tinuing political role for losers in the first as the president of the republic, the president free elections. While the MSZMP sought to of parliament, and large parliamentary mi- convert part of its powers, it also sought, in norities. Whereas the existing oppositional case of failure, guarantees that belong to two political manifestos were for a strong con- categories: constitutionalism and consocia- stitutional court, interestingly the EKA did tionalism. Not having anything to convert, not support its immediate establishment.85 the opposition was also interested in guar- The EKA sought originally only the enact- antees of constitutionalism, but this interest ment of a few organic laws necessary for had to be factored in with the concern that free elections, and, due to the Round Table’s 376 Andrew Arato and Zoltán Miklósi

lack of democratic legitimacy, it was against this very issue would become a Constitu- producing a full constitutional synthesis.86 A tional Court judge.89 More certain of itself new constitutional court in their view pre- in the beginning of negotiations, the MSZP supposed a legitimate constitution, one that sought a court that was no more than what Hungary could not have until after the first was needed for the purposes of legitimation. free elections. Moreover, a court might tend Less certain toward the end, it became more to freeze transitional arrangements that are interested in—or less opposed to—constitu- still based on an old constitution not thought tional guarantees. worthy of preservation even if reformed.87 Once guarantees were sought, it would Nevertheless, using public-regarding reasons, have been sensible to entrench them, but this it was difficult to oppose the establishment did not occur. A massive electoral victory by of a body internationally considered to be one of the sides could have led to the aboli- the very organ of constitutionalism and the tion or weakening of any guarantee whatso- rule of law. ever by constitutional amendment. The Con- When it turned out that, piece by piece, stitutional Court, in other words, represented the EKA had to reverse its position and no protection against a force controlling two- agree to a massive effort of constitutional re- thirds of the legislature; its powers themselves writing, there was suddenly the prospect of could be amended. Thus, to be consistent and having a constitution worthy of preservation secure, the MSZMP and some of the parties and protection. Thus, the opposition shifted less certain of their future should have tried its strategy by accepting the setting up of the to change the easy amendment rule of the in- Constitutional Court before free elections, herited constitution, but they did not do so. but in return demanding, first, that the court They were certainly not stopped from doing be given greater powers, specifically allowing this by theoretical arguments, such as those the annihilation and not just suspension of of and Alf Ross, that amending unconstitutional legislation, and that, outside an amendment rule by its own use was either of constitutional amendments, the decisions impossible or invalid. It is unlikely—though of the court be regarded as final, without possible—that no participant was aware of any kind of parliamentary override; second, the logical link between a relatively difficult ©that Copyrightthe court should be also open by to suits the amendment Endowment rule and the possibility of conof- emerging outside the political system, and stitutional review, and the theoretical incon- specifically the actio popularis that would al- sistency involved in establishing one but not lowthe anyone United and not just interested States persons to the Institute other. of Peace challenge the constitutionality of legislation; In a potentially multiparty setting, it was third, that the judges be elected in part by rightly thought that no party could obtain the new parliament, and even those elected a majority, certainly not the two-thirds of immediately would be elected consensu- parliament needed for amendments. But ally; and fourth, that former officials of the it should have been noticed that the same Ministry of Justice be excluded from serv- multiparty system necessitated coalitions, ing as constitutional court judges.88 The re- and there was no obvious limit to how large sulting compromise wound up producing an they could be. Even this argument does not even stronger version of the German court explain why smaller parties and even the than in itself. The opposition very SZDSZ—which feared an MDF-MSZMP much favored the model, as it had to drop coalition that certainly would have the power only the last of its demands and concede to amend—did not raise the issue of chang- in effect that the vice-minister negotiating ing the amendment rule. The real explana- Framing the State in Times of Transition 377

tion is that the opposition especially took for that the text of the constitution should be granted the lack of legitimacy of the Round relieved from being inundated with legisla- Table and the last communist parliament. tive elements.92 Clearly, with the weakening They were conscious that the massive con- of the presidency model in the same nego- stitution making they were engaging in was tiations, the restriction on legislative powers an elite affair, without genuine publicity or pointed less and less to an instrument of au- any popular participation. Thus, in Hungary, thoritarian conversion and more and more to the problem of generations appeared espe- a guarantee for all parties, though with the cially intractable. It made no sense to allow risk of ungovernability. an illegitimate or nonlegitimate set of actors In any case, it seems that it was the to bind the hands of future, more legitimate MSZMP—which, because of its built-in ad- actors. By insisting on the interim character vantages in expertise and staff resources, could of the Round Table constitution, its authors dominate the formulation of all that was not deprived themselves of the right or the ratio- deemed particularly important at the Round nale to enshrine their work. Table—that was primarily responsible for in- The peculiar feature of the interim consti- corporating this feature. The other parties did tutional settlement was that while the con- not oppose the feature, as they were mainly stitution was insulated only by a relatively concerned with the risks of the transition pe- easy parliamentary amendment rule, much riod posed by the old parliament, and they ordinary lawmaking was to have consensus probably also wanted to hedge their bets in requirements almost as high (two-thirds of case of an electoral victory by the ruling party. present members versus two-thirds of all What then happened was therefore curious. members). While this feature can be inter- The same old parliament, dominated by the preted as a guarantee against unilateral legis- MSZMP, not only willingly established the lation or against the marginalization of a suf- category of constitutional laws that would tie ficiently large party such as the MSZP, it was its own hands and those of its successors but one in terms of consociational or consensus also added a formulation according to which rather than constitutional democracy.90 It all rules regulating fundamental rights and seems that the idea of proposing a set of or- duties would have to take the form of con- © Copyrightganic laws that can be modified by bythe parlia- Endowmentstitutional laws.93 Next, the Constitutional of ment only by two-thirds majority originated Court, when it was still dominated by an in reform socialist constitutional proposals MSZP majority, proceeded to interpret this thebrought United before parliament States before Round Ta- Institutebroad premise in a particularly of Peace expansive way ble negotiations began.91 Originally, the idea that implied that any law touching on mat- was part of a conception that limited par- ters affecting basic rights would have to be liamentary sovereignty, for the benefit of a passed by a two-thirds majority.94 Undoubt- strong presidency also in the same plan. It is edly, the more extreme interpretations fol- unclear whether or not there was any Round lowed a time sequence that corresponded to Table discussion of this issue, and it may be a more and more realistic and therefore pes- that the original justification consisted of the simistic evaluation by the MSZP of its elec- need to protect the organic laws required for toral chances. the transition toward free elections from easy The MSZP turned out to be right in their modification by the communist-era parlia- pessimism, but the two-thirds requirement ment still in place. It may be that an argu- could not protect a party that garnered only ment subsequently referred to by the Con- 10 percent of the vote and 8 percent of the stitutional Court also played a role, namely mandates in 1990. The authors of the MDF- 378 Andrew Arato and Zoltán Miklósi

SZDSZ pact of 1990 considered the vast the MDF-SZDSZ pact, eschewing full and extension of the scope of constitutional laws open drafting and enactment of a new con- beyond the Round Table agreements one of stitution, did the same without moving be- the illegitimate acts of the old parliament. yond the supposedly interim arrangements. They therefore proceeded to abolish the plas- The question, therefore, is whether it could tic and expandable notion of constitutional be legitimate to move to majoritarianism by law and restricted the number of two-thirds mere majority rule (together MDF-SZDSZ laws to an enumerated twenty.95 It was a pe- had 66 percent of the mandates, but only 45 culiarity of the time that the only party that percent of the popular vote), or whether con- really fought for preserving more consen- stitution making presupposes higher con- sual legislation was FIDESZ, which was too ditions of legitimacy, including consensus, small to put the government past the two- than ordinary legislation. To be sure, this ar- thirds threshold and not needed if either of gument would not justify the expansive in- the two other parties were available.96 Thus, stitution of constitutional laws, but it raises we can presume that their motivation was a questions concerning the method of their principled support for consensus democracy abolition in 1990. It also points to the fun- that did not last by the time FIDESZ itself damental problem of an otherwise successful came to power in 1998. process of Hungarian constitutional design: What FIDESZ did not understand, at legitimacy. least in 1990, was the change of function of consensual guarantees from the period of a democratic transition to a time afterward Conclusions: Achievements and Failures when the institutions of a working democ- This chapter began with the achievements of racy should be operating. The kind of pro- the Hungarian process of constitution mak- tections needed by erstwhile enemies are ing. To that list we can now add the creation different from those required by political op- of a basic law that establishes a liberal demo- ponents in a democratic system. While con- cratic blueprint for a parliamentary repub- sociational arrangements need not hamper a lic drawing on the best available European country getting ready for general elections, (mainly German but also French) sources. ©they Copyrightpotentially threaten later governability by the The Endowment same blueprint also sets up a system of of and accountability. Only in radically divided viable and active judicial protections of con- societies should they be resorted to, and stitutionalism, understood as limitations on there,the too, United hopefully only within States time lim- all Institute branches of power by a ofsystem Peaceof the rule its. As the South African constitution mak- of law, which enshrines constitutional rules ers confirm, the best path is one that moves against easy change by temporary majorities, from a transitional consensus democracy to as long as these remain under the two-thirds one whose protections and guarantees are threshold, which is unfortunately not out recast in terms of constitutionalism.97 But of the question for coalition governments.98 FIDESZ’s brief for consensus democracy in This chapter also noted failures, linked to the 1990 could be strengthened by pointing to a problem of democratic legitimacy, that in- difference between South African develop- hibited the emergence of constitutional pa- ments and the earlier Hungarian ones. The triotism—in other words, a political culture South African constitution makers moved oriented to constitutionalism. To this list, too, beyond consensual features present in their we can add a variety of unsolved problems. interim constitution only in their defini- The Hungarian constitution makers could tive constitutional document. In Hungary, not successfully address structural problems Framing the State in Times of Transition 379

in the constitution—most significantly, in namely, that the new constitution is adopted our view, the potentially dangerous combina- by a body that is formally authorized to tion of an extremely powerful Constitutional amend the constitution, and the outcome es- Court, a purely and under some possible cir- tablishes the rule of law. Given that this con- cumstances easy parliamentary amendment dition would formally empower in a country rule, and an electoral framework that tends like Hungary in 1989 a nondemocratic body to produce a high level of disproportionality unaccustomed to the rule of law, namely, the between votes and seats, to the benefit of the inherited parliament of the old regime, it largest parties. On the symbolic level, there required the invention of the Round Table is a deep contradiction between a substan- and comprehensive negotiations to make the tively new basic law and the formal state of rules of regime change under the condition of affairs in which this institutional design rep- legal continuity. The Round Table, however, resents only a set of amendments of the 1949 was not in a position to fully dictate rules to Stalinist constitution. Even more important, the sitting parliament, especially to force it while the constitution announces its merely to violate the existing amendment rule. Le- temporary status in its very preamble, the gal continuity involved relying on this parlia- chances of producing a definitive new docu- ment using the existing amendment rule to ment have by now disappeared. These sym- formally enact all (or most) changes agreed bolic failures move some to speak about a upon at the Round Table. revolution stolen by the makers of the Round Though legal continuity rested on the fic- Table constitution.99 tion of the rule of law under a lawless old In our view, both the achievements and regime,100 its value was considerable. An ex failures can be traced back to the long, drawn- lex condition of legal rupture or legal state of out set of procedures that produced the con- nature so strongly criticized by Hannah Ar- stitution. The question is whether they neces- endt101 was thereby avoided, and along with sarily imply one another. If that were so, the it, the legal insecurity and nihilism charac- Hungarian pattern of constitution making terizing so many of the great modern revolu- would provide only highly ambiguous les- tions. The Round Table, playing the role of a sons for future designers of institutions in quasi-constitutional convention but without © Copyrightdemocratic transitions and by reconstructions. the Endowmentformal powers, could gain its influence of only But we believe that the advantages could through consensual decision making, which have been achieved at a much lower set of in turn was possible only if all the parties re- thecosts. United A summary of what States went right in the Instituteceived the required guaranteesof Peace in case they Hungarian process, what went wrong, and turned out to be the political losers of the the paradoxical relationship between the two process. These guarantees were the founda- supports this conclusion. tion of consensual and constitutional fea- tures of the transition and had importance beyond the circle of the negotiating part- What Went Right: Legal Continuity ners. It is certainly true that these features The Hungarian model of transition or regime of transition helped to stabilize it and keep it change has been defined by its best partic- on a peaceful and nonviolent path. Since the ipant-interpreter, János Kis, as the unlikely Round Table constitution was not imposed combination of a break in legitimacy and le- by or on any of the sides and was, in effect, gal continuity. By legal continuity or continu- their common work—whatever they later ous legality, we mean a fairly unusual require- came to believe concerning this subject— ment in the context of a change of regimes, even one-sided acts, such as the legislation of 380 Andrew Arato and Zoltán Miklósi

the old parliament, the referendum of 1989, SZDSZ-FIDESZ victory in the referendum and the MDF-SZDSZ pact of 1990, did not of 1989 proves that even direct democratic lead to its violent abrogation, or the defec- instruments could serve the interest of par- tion of any of the sides. liamentary democracy, given a sufficiently The consensus, to be sure, had an elite informative and well-designed campaign. By character. The parties of the EKA chose one avoiding such participation in general, along another as partners. The ruling party, itself with its very real risks, the Round Table par- without democratic authorization, chose as ticipants endangered the democratic legiti- partners those represented in the EKA, who macy of their work. The democratic forces also were not selected democratically. Not kept their own work hidden, with the conse- only popular participation but also the pub- quence that most of these parties themselves lic sphere was more or less excluded from the did not construct their identity around their Round Table negotiations. Only the plenary own achievements of 1989. sessions, where nothing really happened, were open to the press and the electronic me- dia. There was only one short weekly opin- What Went Wrong: the Deficit ion program on television that dealt with of Democratic Legitimacy the negotiations. Thus, not surprisingly, the A constitution-making process might pur- population experienced almost nothing from port to meet the requirements of legitimacy the momentous changes. Coupled with the if the political agents who participate in the absence of a legal rupture was the absence of making of the new constitution are autho- political rupture. There was no great politi- rized to do so in a relevant sociological rather cal novelty, in fact, until the free voting on than in a merely formal legal sense. That is, the referendum of 1989. But even that vote the constitution makers should be able to could not compensate for the common expe- demonstrate sufficient popular backing—or rience that old and new elites were managing better, popular belief in the justification—for the entire regime change over the heads of their claim that they are giving a constitution the inert population. 102 to the people in the name of the people.103 In retrospect, many liberals came to be- Certainly, the very idea of popular sov- ©lieve, Copyright even if they fought for greater by openness the ereignty Endowment implies that some form of nonin of- initially, that the absence of popular pressures stitutional action should at least be involved made the job of creating a liberal democratic at some point in the process of making a constitutionthe United easier. Popular participation States and constitution. Institute On the other ofhand, thePeace empiri- public pressure implied the danger of the in- cally available “people,” as a mere multitude trusion of plebiscitary democratic forms that of individuals, is incapable of being drawn would leave their institutional traces in the into the making of a constitution other- outcome. The result, in their view, could have wise than ratifying it through a referendum, been a directly elected, strong presidency which may not be a very good way to or- and a weak constitutional court. In actual ganize participation or articulate a majority fact, the establishment of a strong consti- opinion. It follows, therefore, that the non- tutional court was opposed in the end by institutional agents whose inclusion in con- only very small segments of society. Even if stitution making is normatively required by a large majority would have always preferred the idea of popular sovereignty will typically a directly elected presidency in principle, the be some spontaneously emerging political public was certainly educable regarding its movements or organizations—voluntary but dangers in the transition period. The narrow partial associations of citizens. This inevita- Framing the State in Times of Transition 381

bly raises the question of democratic autho- Thus, the absence of genuine political le- rization. Are these noninstitutional political gitimacy carried over from the Round Table agents justified in claiming to represent the to all its successors, of which there were many, people? This question cannot be decided by as they did not have to meet an established abstract argument. hurdle of a high degree of political legitimacy The existence or lack of such a popular to change the constitution. The fragmenta- mandate is in a crucial sense an extralegal tion of the process made its completion in the reality. There is no general rule that would formal sense less and less likely. In principle, furnish the criteria for deciding whether or however, a many-stage constitution-making not, in a particular case, a popular mandate process allows for learning from what does is obtained.104 In a similar vein, although the not work to perfect the constitutional prod- demands of legitimacy with respect to the uct.105 This is what happened in the case of process of constitution making—primarily, consensus democracy not only in South Af- transparency and open access for a variety rica but in Hungary even earlier. of agents—may be articulated generally, For obvious reasons, negotiated transi- there are no exact criteria to decide whether tions are likely to impose certain constraints these conditions obtain in any one particular on majority rule. There are two fundamental instance. These are, to a large extent, ques- types of such constraints, one being a sharing tions of political judgment and are open to of power among different agents, indepen- contestation. There are a variety of ways to dently of the outcome of elections. This was achieve the legitimacy of a constitution- the case in Poland and may be interpreted making process. In a revolution involving as a form of consensus democracy, where the legal rupture, the accomplishment of libera- different agents are forced to reach agree- tion from a hated old regime and the project ments on matters of policy. The other type of building a better future society together might be characterized as imposing limits on add up to what has been called revolution- what can be made a matter of policy to begin ary legitimacy. Revolutionary legitimation with—that is, on the scope of the legislative was in principle excluded, however, in the and executive powers in general. This version Hungarian context of legal continuity and of restricting the rule of the majority is usu- © Copyrighta fully negotiated transition. by But so wasthe full Endowmentally referred to as constitutionalism. of Much democratic legitimacy for the makers of the of the Hungarian constitution-making pro- interim arrangements that were the frame- cess in its later phases may be described as thework Unitedfor the first free elections—agents States who, Institutea movement away fromof power Peace sharing (or logically, were not elected to perform that consensus democracy) toward constitution- task. Thus, the EKA unsuccessfully fought alism. The movement was already discernible against the project of creating a detailed in- during the months of the national Round terim constitution. When this fight was lost, Table talks when, perceiving the changes in the opposition had no interest in enshrining strength of the different agents, the ruling through democratic legitimacy based on par- party gradually came to focus not so much ticipation, publicity, or popular ratification an on converting its power in institutional interim instrument that they wished to re- forms as on securing the institutional guar- place after the first free elections. The politi- antees of the integrity of the persons and cal constellation developed, however, in such property of its members—that is, on the rule a way that there was opportunity only for yet of law. One lingering element of power shar- another elite bargain, in 1990, concerning a ing was nevertheless retained in the MDF package of constitutional amendments. and MSZMP’s compromise about the presi- 382 Andrew Arato and Zoltán Miklósi

dency, though this compromise was removed its activist role.108 In its absence, learning is by the referendum of November 1989, which in the unreliable hands of parliamentarians, represented a further step toward a unified yet who without strong review cannot be stopped constitutionally limited executive power. The from unconstitutional constitutional revision agreement between the MDF and SZDSZ, in the form of ordinary legislation.109 the two largest parties in April 1990, then eliminated the vast majority of two-thirds laws, the single largest element of consensus Beyond the Paradoxes of Hungarian Constitution in the new regime. The last important ele- Making? ment of power sharing was removed from the Did what went right inevitably imply what constitutional order in 1992, when the Con- went wrong? Would generating greater dem- stitutional Court, arbitrating the conflict of ocratic legitimacy imply substantive losses competence between the prime minister and with respect to the constitutional outcome? the president, ruled that such rights of the Was legal continuity and negotiated transi- president as granted by the MDF-SZDSZ tion incompatible with a process that would pact were against the constitution. Mainly produce democratic legitimacy? due to the activity of the Constitutional Most certainly, proponents of constitu- Court, the normative and procedural con- tionalism in the sense of imposing procedural straints on the executive and the legislature and normative constraints on the executive became political realities of the new regime, and the legislative branches of power—that to be reckoned with by all political agents. is, the SZDSZ, FIDESZ, and some leaders Even though direct democracy, parlia- of the MDF—were not strong enough dur- ment, and the Constitutional Court all played ing the summer of 1989 to shape the out- their roles in a many-step process of con- come to such an extent as is reflected by the stitutional learning, it does not follow that liberal-democratic character of the finished leaving a process open-ended and relying product. That the Hungarian constitution- on the normal political process to eventually making process, despite its lack of democratic produce the material constitution has much legitimacy, produced a liberal-democratic promise in the long run. Empirically, such outcome can best be explained by the dy- ©an approachCopyright tends to require reliance by on thethe namics Endowment of negotiated transitions. More of ac- Constitutional Court as almost the exclusive curately, it is not so much some necessary method of self-improvement. An unelected internal dynamics of negotiated transitions Constitutionalthe United Court acting as “aStates constituent as Institute the material conditions of that givePeace rise to assembly in permanent session” may work in such a form of transition—primarily, the per- a country like the United States, which has ceived weakness of agents and a relative veil made its constitutional tradition part of a civil of ignorance—that lead to outcomes that are religion.106 In Hungary, where that tradition truly liberal-democratic. On the other hand, has little normative force, such a court only the same material conditions usually lead to embodies and continually reexpresses the ini- a sense of lack of legitimacy regarding the tial legitimation problems. Bruce Ackerman new regime. Such a legitimacy deficit runs was right to warn that the activist practice through the entire twelve years of Hungarian of the Hungarian Constitutional Court was constitution making.110 untenable in light of its “soft constitutional But was it inevitable that conditions in background.”107 After the retirement of its Hungary in 1989 could not have tolerated great first chief justice, László Sólyom, the a more democratically legitimate process? Hungarian court decisively retreated from We believe not. The distinction between up- Framing the State in Times of Transition 383

stream and downstream publicity that El- in fully negotiated transitions involving le- ster describes allows us to see that while the gal continuity, we should readily admit that presence of public pressure could have led to the South African constitution makers sur- undesirable consequences for constitution passed all their Central European predeces- drafting, the same would not have been true sors in elaborating such a project. for a ratification process afterward, one that One point should be added about the never took place. Granted, even during ratifi- connection between the procedural history cation, a substantively desirable constitution of the making of the Hungarian constitution could be lost as it almost was in the United and the regrettable fact that none of the ma- States in 1787–89, and as did in fact happen jor agents of today’s Hungarian politics con- in France in 1946, and in referendums on a struct their ideological identities around their new European Union constitution in 2005. role in the constitution making, even though Nevertheless, democracy must imply taking the roles of the MDF, the SZDSZ, FIDESZ, a chance with uncertainty, even in constitu- and the Communists were, though different, tion making. When coupled with a massive very significant. Because of the rather pro- education effort as in South Africa, the de- tracted and multistaged character of the con- gree of uncertainty can be greatly reduced. stitutional process, there was no single point The problem becomes more difficult, that could be identified as the moment of the however, when one is dealing with an in- coming-to-be of the new constitution, when terim constitution that the relevant agents all the major actors gave their clear back- do not want to enshrine. The reasons for not ing to the constitutional state of affairs. The engaging in an extended ratification process October 1989 amendment that amounted for extensive amendments to an authoritar- to a substantively new constitution is the ian constitution—an inevitable artifact of most plausible candidate, but at least some legal continuity—are cogent. But it should of the important agents did not endorse be realized after the Hungarian experience the arrangement that led to it. Similarly, at that a constitution, even an interim one, every other significant juncture—the refer- can be enshrined de facto by pursuing a pro- endum, the MDF-SZDSZ pact—at least cess of piecemeal constitutional engineering, some of the main participants felt alienated © Copyrightas well as by the closing of bythe window the of Endowmentfrom the process. The October of 1989 con- political opportunity for constitution mak- stitution, ratifying the Round Table’s final ing. While it may in principle be desirable agreement, left the SZDSZ and FIDESZ theto leave United room for an extended States learning pe- Institutefeeling betrayed and of excluded. Peace In turn, the riod, that window may close fully before outcome of the referendum in November that period is over. In this respect, it would 1989 left the MDF and MSZP feeling hu- be important for future constitution makers miliated and deceived; more specifically, they operating within a similar set of procedures claimed that the Hungarian people had been and constraints to avoid the mistake of Hun- deceived by the tendentious grouping of the garian constitution makers, who postulated questions on the ballot. Finally, the MDF- the interim nature of their constitution but SZDSZ pact estranged all those left out provided neither a democratically enhanced from the outcome. Therefore, even though procedure for making the permanent consti- over the years that have elapsed since 1990, tution nor a timetable armed with relevant all of these parties have pledged allegiance sanctions for the production of the definitive to the emerging arrangement, at least at the document. While we cannot speak today of general rhetorical level, at no point during a definitive formula of constitution making the long process of its coming to existence 384 Andrew Arato and Zoltán Miklósi

could the new constitution claim the simul- 2002. Most important leader was József Antall, taneous support of all the actors that had a at least during the period of the Round Table. share in its making. Quite independently of MSZDP — Magyar Szociáldemokrata Párt; “his- torical” social democratic party, absorbed into the almost total absence of popular partici- the MDP (renamed Communists) in 1948. Rec- pation in the constitution-making process, reated in January 1989, and since troubled by this must have contributed to the fact that splits and scandals. Failed to win seats in parlia- the symbolic political self-understanding of ment in 1990. the new democratic republic does not center MSZMP/MSZP — Magyar Szocialista Munkás around the constitution—which, it is widely Párt, renamed in October 1989 as Magyar Szo- cialista Párt; Hungarian Socialist Workers Party, agreed among experts at least, is worthy of renamed in October 1989 as Hungarian Social- protection and respect. ist Party. Successor to KMP, MKP, and MDP (different names of the Hungarian Communist Party). Ruling state party from 1948 to 1989. In Glossary parliament since 1990; leading party of govern- EKA — Ellenzéki Kerekasztal; Round Table of the ment 1994–1998; 2002–present. Best known Opposition. Formed in March 1989, to bring leaders in 1989: Karoly Grosz, Imre Pozsgay, together six parties, one circle, and one indepen- Miklós Németh, and . dent union for purposes of negotiation with the Néppárt — People’s Party. Successor to the “histori- ruling party. cal” party of the peasantry, the Nemzeti Paraszt- FIDESZ — Fiatal Demokraták Szövetsége; Al- part (National Peasants Party). Recreated by liance of Young Democrats. Formed in March ­officials active in the Patriotic People’s Front, 1988 as a social-political organization of young the Communist electoral front organization. activists. A political party after the negotiations. Has failed to win any seats in parliament. In parliament since 1990. Leading party of co- NKA — Nemzeti Kerekasztal; National Round alition 1998–2002. Most important early leaders: Table. Met June 1989 to September 1989, and Viktor Orbán, László Kövér, and Gábor Fodor. produced Round Table constitution. FKgP — Független Kisgazda Párt; Independent SZDSZ — Szabad Demokraták Szövetsége; Small Holders Party. “Historical” party of middle Alliance of Free Democrats. Inheritor of the peasantry. Biggest party of 1945–1948 coalitions. democratic opposition of the late 1970s and Recreated around old members in November 1980s. First formed as the Network of Free Ini- 1988. In government 1990–1994; 1998–2002. tiatives in 1988. A liberal political party since ©Failed Copyright to win seats in parliament inby 2002. Bestthe NovemberEndowment 1988. Main early leaders were Jánosof known leaders: Imre Boross and József Torgyán. Kis, Bálint Magyar, Péter Tölgyessy, and Iván KDNP — Keresztény Demokrata Nép Párt; Chris- Peto. tian Democratic Peoples Party. Formed by mostly theolder activists United of a variety of Catholic States organiza- Institute of Peace tions (and lively Catholic subculture) in late Notes 1989. In governmental coalition of 1990–1994. Failed to win seats in parliament in 1998. 1. Andrew Arato, Civil Society, Constitution, MDF — Magyar Demokrata Fórum; Hungarian and Legitimacy (Lanham, MD: Rowman and Lit- Democratic Forum. Formed by populist writers, tlefield, 2000), chaps. 5 and 7. and intellectuals and their supporters in 1987. 2. Jon Elster, ed., The Roundtable Talks and Largest opposition (center-right) party in 1989, the Breakdown of Communism (Chicago: University at which time won three by-elections. Winner of of Chicago Press, 1996); A. Bozoki, ed., The Round- first free elections in 1990, and leading force of table Talks of 1989: The Genesis of Hungarian Democ- government 1990–1994. Failed to win seats in racy (: CEU Press, 2002); S. Friedman and parliament as an independent party in 1998 and D. Atkinson, eds., The Small Miracle: South Africa’s 2002, though several members entered with sup- Negotiated Settlement ( Johnnesburg: Raven Press, port of FIDESZ. István Csurka’s MIEP (Hun- 1994); and Hassen Ebrahim, The Soul of a Nation: garian Truth and Life Party) is a right-wing off- Constitution-Making in South Africa (Capetown: shoot that entered parliament between 1998 and Oxford University Press, 1998). Framing the State in Times of Transition 385

3. See Carl Schmitt, Verfassungslehre, 7th nal constitution making. Thus it did not posit itself ed. (Berlin: Duncker and Humblot, 1989), chaps. 6 consistently and insistently enough as interim. and 8. 10. The preamble to the constitution states: 4. We are ultimately concerned with the so- “In order to facilitate a peaceful transition to a rule ciological sense of the term legitimacy as established of law state that actualizes a multi-party system, by Max Weber, having to do with a significant part parliamentary democracy, and a social market econ- of a population—at the very least, the main political omy, the National Assembly—until the ratification and social elites (his “administrative staff ”)—con- of our country’s new Constitution—establishes the sidering a political order as a whole or the govern- text of Hungary’s Constitution as the following.” A ment based on it (two different matters) justified Magyar Köztársaság Alkotmánya (Budapest: 1990). or valid. This sociological meaning of the term is Available at net.jogtar.hu/jr/gen/getdoc.cgi?docid= related but not identical to legal and moral philo- 94900020.tv (accessed July 14, 2009). sophical meanings. We assume, ceteris paribus, that 11. The parliament fully enacted the interim political orders and governments that can be justi- constitution on October 23, 1989, on the anniver- fied by valid normative (moral and legal) assump- sary of the uprising of 1956. tions shared by a political community will be legiti- 12. MSZMP (Hungarian Socialist Workers mate in the sociological sense as well. But there is no Party), the Communist Party, changed its name and one-to-one relation, and all things are rarely equal. identity to MSZP (Hungarian Socialist Party) on Legitimacy in the sociological sense is undoubtedly October 7, 1989, a social democratic party in terms also affected by performance as well the presence of its intentions. The old name was kept by a small and effectiveness of delegitimating ideologies. In communist party that plays no role in this story. We the present study, not concerned with broader social will refer to the party before October 6–9 as the and political matters, we have to assume a rough MSZMP and after as the MSZP. identity of legitimacy in the sociological sense with 13. Adam Przeworski, Democracy and Market legitimacy in the normative sense. It is primarily in (Cambridge: Cambridge University Press, 1991), the latter area, however, that we detect a legitimacy pp. 54–66. deficit, and it is well worth asking for comparative purposes how this deficit came about, even if the 14. Bolivar Lamounier, “Authoritarian Brazil translation into empirical legitimation problems has Revisited: The Impact of Elections on the- Aber either not occurred or if these phenomena have been tura,” in Democratizing Brazil, ed. A. Stepan (New neutralized by factors such as relatively successful York: Oxford University Press, 1989). economic performance and joining the European 15. Przeworski might point out that today all Union. Such sources of compensation are evidently three countries—Brazil, Chile, and Mexico—are not always and everywhere available. democracies. But, first, we do not maintain that the © Copyright5. Bruce Ackerman, The by Future ofthe the Lib- Endowmentreformist road, when tried, must succeed, of only that eral Revolution (New Haven, CT: Yale University it need not necessarily fail. Second, the time gained Press, 1992), chap. 6; Andrew Arato, “Constitu- in these relatively slow transitions (ten years in Bra- thetional UnitedLearning,” in Theoria52, States no. 106 (April 2005), Institutezil and Chile, twenty years of or more Peace in Mexico) may pp. 1–36. be the functional equivalent of success for the rel- 6. Juan Linz and Alfred Stepan, Problems of evant elites. And third, in all such cases, important Democratic Transition and Consolidation (Baltimore, preserves are won for the relevant elites that survive MD: Johns Hopkins Press, 1996), chap. 17. democratization. 7. Janos Kornai, “The Hungarian Reform 16. Arato, Civil Society, chap. 1. Process: Visions, Hopes and Reality,” in Crisis 17. Rudolf Tokés, Hungary’s Negotiated Revo- and Reform in Eastern Europe, eds. F. Feher and A. lution (Cambridge: Cambridge University Press, Arato (New Brunswick, NJ: Transaction Publishers, 1996), pp. 189–90; István Kukorelli, Igy választot- 1991). tunk (Budapest: ELTE Állam- és Jogtudományi 8. Arato, Civil Society, chap. 2. Kar, 1988). 9. The GDR Round Table produced a draft, 18. Further research is necessary on this point. but the Volkskammer did not enact it, either before When a new round of reformism was decided on in or after free elections. Thus the Hungarian interim Hungary, it took the much broader form of a reform constitution was the first of the new genre. It did not, package presented in terms of preemptive constitu- like that of South Africa, contain a procedure for fi- tion making from above. 386 Andrew Arato and Zoltán Miklósi

19. Laws 1989 II, III, and VII. See Jutasi in pontok és alkotmányos modellek,” A rendszerváltás Magyarország Politikai Évkönyve 1990 (Budapest: forgatókönyve, vol. 7, p. 167. Országgyűlési Napló, 1990), 372; G. Halmai in 29. See Samuel Valenzuela, “Democratic Magyarország Politikai Évkönyve 1988 (Budapest: Consolidation in Post-Transitional Settings,” in Is- Országgyűlési Napló, 1989). sues in Democratic Consolidation, eds. Scott Main- 20. Laszlo Bruszt, “1989: The Negotiated waring, Guillermo O’Donnell, and Samuel Valen- Revolution in Hungary,” in Social Research, vol. 57, zuela (South Bend, IN: University of Notre Dame no. 2 (1990), p. 366. Press, 1992), pp. 57–105. 21. “Social Movements and Civil Society 30. Most clearly put by Kalmár, “Modellvál- in the Soviet Union,” in From Neo-Marxism to tástól a rendszerváltásig az MSZMP taktikájának Dem­ocratic Theory (Armonk: M.E. Sharpe, 1993), a metamorfózisa a demokratikus átmenetben,” chap. 14. p. 287ff. 22. M.A. Garreton, The Chilean Political Pro­ 31. See remarks by József Antall in A. Rich- cess (Boston: Unwin Hyman, 1989), pp. 132–45. ter, ed., Ellenzéki kerekasztal (Budapest: Ötlet Kiadó, 23. High-level Political Bureau delegations, 1990), pp. 160–61; L. Lengyel, “A kerekesztal hosei” including Imre Pozsgay, the leader of the reform fac- in A rendszerváltás forgatókönyve. tion, traveled to Warsaw to discuss the consequences 32. 1989: Amendment I on rights and on a of the Polish Round Table and their possible applica- constitutional court; 1989: Amendments VIII and bility to Hungary. See M. Kalmár, “Modellváltástól IX on the possibility of a modified parliamentary a rendszerváltásig az MSZMP taktikájának a meta- vote of confidence; 1989: Amendment XVII on morfózisa a demokratikus átmenetben,” in A rend- popular petition and referendums. These amend- szerváltás forgatókönyve, vol. 7, ed. A. Bozoki (Buda- ments presented needed democratic change but pest: Magvető and Uj Mandátum presses, 1999 and generally were poorly or incompletely formulated. 2000); Alkotmányos forradalom, pp. 287–88. Only the referendum amendment came to have real importance during 1989. The problem with 24. Csaba Tordai, “A harmadik köztársaság the series of amendments was, however, even more alkotmánya születése,” in A rendszerváltás forgató- procedural than substantive; they involved the dan- könyve, vol. 7, p. 482; K. Kulcsár, Két világ között: ger of establishing an uncontrollable and mutable, Rendszerváltás Magyarországon 1988–1990 (Buda- top-down, gradual model of change. Thus the ruling pest: Akademia, 1994). Kulcsár was the last minister party was forced to agree to a moratorium on fur- of justice before the free elections and his memoirs ther one-sided constitutional legislation at the start make for highly interesting reading. It should remind of the Round Table negotiations. See I. Kukorelli, those like ourselves who disagree with his evaluation “Az orszéggyülés a többpártredszer elso évében,” in ©of top-down Copyright reform that there is an important by casethe Magyarország Endowment Politikai Évkönyve (Budapest: Aula-of to be made for the positive role of such efforts. Omikk Press, 1990), p. 195, lamenting that the 25. Tordai, “A harmadik köztársaság alkot- move interfered with the decision-making process mányathe születése,” United pp. 483–84. Statesof Institute government and the normal of working Peace order of 26. Kalmár, “Modellváltástól a rendszervál- parliament. tásig az MSZMP taktikájának a metamorfózisa a 33. The threat of new legislation was used as a demokratikus átmenetben,” pp. 288–89, versus Kul- club also during the Round Table negotiations, af- csár, Két világ között. ter the MSZMP formally agreed to suspend such 27. This is true even of the last of the three unilateral efforts. See Kilényi at the July 27 meeting constitutional proposals, which, however, was prob- of the Middle Level Political Coordinating Council ably more a first statement of a negotiating position of the National Round Table in A Rendszerváltás than an actual attempt at imposition. forgatókönve. Kerekasztal-tárgyalások 1989-ben. II 28. Rudolf Tokés speaks of an implausible (Budapest: Magveto, 1999), pp. 645–47. three-fourths of contents, though he admits that it 34. See Bruce Ackerman, We the People, Vol. 1: was probably the new one-fourth that defined the Foundations (Cambridge, MA: Harvard University character of the Round Table constitution. Later, Press, 1991). however, he resumes treating that constitution as 35. On the origins of these parties, see Tokés, primarily the work of the Ministry of Justice. See Hungary’s Negotiated Revolution, as well as the vari- “Intézményalkotás Magyarországon elemzésiszem- ous writings of Bozóki and Körösényi. Framing the State in Times of Transition 387

36. These parties were called historical because tás Forgatókönyve, vols. I, II, and III; M. Vásárhelyi. their forerunners were important in pre–World War Eventually the discussion moved on to the type and II Hungarian history, especially in the coalition frequency of television coverage that would be pro- governments between 1945 and 1948. While old vided. The overall contrast with Poland was obvious, members played a role in their reorganization, it is although in Poland some important agreements generally assumed that so did various factions of the were made privately at the Magdalenka Castle by ruling party, the MSZMP, which wished to compete a small group around Jaruzelski and Walesa. In with Imre Pozsgay, who was involved in the forma- Hungary, the existence of primarily nonpublic ne- tion of the MDF. For this reason, they were obvious gotiating sessions also did not prevent most likely targets for overtures from the ruling party at least important additional private contacts between rul- until the Round Table agreements were concluded. ing party officials and important members ofop- None of this is meant to suggest that significant position parties. members of these parties did not at all times seek to play an honorable and independent role. 43. See Bruce Ackerman, The Future of the Liberal Revolution (New Haven, CT; Yale Univer- 37. These were the three new orgnizations sity Press, 1992), chap. 6, “Judges as Founders”; (MDF, SZDSZ, and FIDESZ), the four histori- Arato, Civil Society, chaps. 3 and 4. cal parties (FKgP, KDNP, MSZDP, and Néppárt), and one association (Bajcsy Zsilinszky Endre Baráti 44. János Kis, “1989: A víg esztendo,” Beszélo, Társaság). The League of Independent Trade Unions vol. 4, no. 10 (1999), pp. 22–46. (Liga) received only observer status. 45. A Rendszerváltás Forgatókönyve, vol. 4; see 38. For the best study by far of the negotia- Bozóki and Tokés for two different views. tions, see András Bozóki in Lawful Revolution in 46. On the referendum see Kis, “1989”; Hungary, eds. Bela Király and András Bozóki (Boul- Tokés, Hungary’s Negotiated Revolution; Tordai, der, CO: Social Sciences Monographs, 1995). Also “A harmadik köztársaság alkotmánya születése”; see Tokés, Hungary’s Negotiated Revolution. L. Bruszt and D. Stark, “Remaking the Political 39. See A Rendszerváltás Forgatókönyve, vol. 1, Field in Hungary,” in Eastern Europe in Revolution, especially Bozóki’s own essay. ed. Ivo Banac (Ithaca, NY: Cornell University Press, 40. Ibid., pp. 599–607; compare to pp. 88–90. 1992); as well as the interviews with Antall and 41. We are neglecting here that the Hun- Tölgyessy in Richter, Ellenzéki kerekasztal. garian Round Table was, on the insistence of the 47. Many ex-ministers and their expert advis- MSZMP, “triangular.” The ruling party did not wish ers maintain that the process would have developed to see negotiations as a confrontation of the power more smoothly if the opposition agreed to negoti- and society or even as regime and opposition. See A ate with the leaders of the government and not the © CopyrightRendszervaltas Forgatókönyve, vol. by 1, pp. 91–92. the Thus Endowmentparty. We remain skeptical about the difference of this a third negotiating partner, representing established would have made, and the noninclusion of those official and semiofficial organizations, was insisted who controlled sovereign powers for such a long theon. The United opposition, however, Statesmanaged to insist upon Institutetime would not have been of or seemed Peace safe in an ep- consensual decision making; thus, the so-called och still marked by uncertainties. See Kulcsár, Két third side could not team up with the MSZMP to világ között. put through proposals. Their only significance was 48. In the latter case confirming Elster’s posi- in floating trial balloons that deviated from the MSZMP line that it did not wish to immediately tion on the question of the institutional interests of modify. This happened, e.g., when county lists (de- constituted powers that participate in constitution manded by the historical parties of the EKA) were making, against Tokés (Hungary’s Negotiated Revo- accepted first by the third side when the MSZMP lution), who is certainly mistaken in his belief that it still insisted on unified national lists for parties in was the hidden institutional interests of the Minis- elections. See A Rendszerváltás Forgatókönyve, vol. 3. try of Justice that dominated in the process. 42. The reluctance of particular actors- de 49. J. Schiemann, “A választási törvény me- pended on party and professional affiliation. It galkotása,” in A rendszerváltás forgatókönyve, vol 7; seems to us that the SZDSZ and nonlawyers were Halmai Az, “1949 Alkotmány jogállamositása,” in most amenable to publicity on any level, while the A rendszerváltás forgatókönyve, vol 7.; See Arato on MSZMP and the lawyers on both sides most in- the negative aspects of electoral system in Civil So- sisted on excluding it. See debates in A Rendszervál- ciety, chaps. 5 and 6. 388 Andrew Arato and Zoltán Miklósi

50. Tordai, “A harmadik köztársaság alkotalkot-- partners, an option that János Kis, the leader of the mánya születése,” pp. 494–95. SZDSZ was quite inclined to, as was the FIDESZ 51. 1/1990 Constitutional Court Ruling. leadership. 52. The court was arguably wrong to do this; 59. Magyar Köztársaság Alkotmánya (1949/ the referendum covered the first selection of a presi- XX), preamble. dent, and only careless phrasing that left out refer- 60. This was further accentuated by the fact ence to the parliamentary election that was already that László Sólyom, the first chief justice of the in the constitution (Article 29/A[1]) allowed the court, who all but dominated the first years of the interpretation that the issue was merely that of tim- court and shaped its self-understanding, had also ing and not mode of election. Of course, mode was been a prominent figure of the Round Table discus- as important as timing, or even more so, from the sions on the opposition side. Thus, he might have point of view of the petitioners. Parliamentary mod- felt doubly justified in spelling out rulings that ification of the results of referendums was possible, substantively shaped the unfinished constitution- but only after two years. An interesting feature of making project. this decision was that the court ruled on the con- 61. 23/1990 Constitutional Court Ruling. stitutional validity, to be sure only in the procedural 62. This occurred in the case of abolishing the sense, of a constitutional amendment. death penalty (23/1990). For an analysis of this rul- 53. Tordai, “A harmadik köztársaság alkotalkot-- ing, see János Kis, Alkotmányos demokrácia (Buda- mánya születése,” p. 495. pest: INDOK, 2000), pp. 204–11. 54. The twenty laws that remained subject 63. On the role of the court in defining the to the two-thirds requirement fall into two main presidency, see Andrew Arato, “Az Alkotmány- groups. Some of them concern fundamental liber- bíróság a médiaháborúban,” in Civil Társadalom, ties, such as the and the free- Forradalom és Alkotmány, ed. Andrew Arato (Buda- dom of religion, or they regulate the functions and pest: Uj Mandátum, 1999). powers of basic constitutional institutions, such as 64. On these formative years of the court, see the judiciary, the prosecutor’s office, and the elec- András Sajó, “A ‘láthatatlan alkotmány apróbetűi,’” toral system. In actual fact, many of them have been Állam- és Jogtudomány, vol. 1–2 (1993), pp. 37–96; subject to change since 1990. Neither did the num- and János Kis, “Alkotmánybíráskodás a mérlegen,” ber of two-thirds laws remain constant, as a few in Alkotmányos demokrácia, esp. pp. 200–57. have been added to the list. 65. For the important distinction between 55. One especially unfortunate aspect of these, material and formal constitutions, see H. Kelsen, which had no significance for the 1990–94 posi- The General Theory of State and Law (Cambridge, tions of the parties, allows the president to dissolve MA: Harvard University Press, 1945), pp. 124 ff, ©parliament Copyright in forty days if his candidate by for prime the 258–60. Endowment We do not, however, accept Kelsen’s of idea minister is rejected. The 1989 formulation, requiring that using a constitution’s own amendment rule at least four attempts, was obviously better, as we even to completely replace it would leave in place foundthe out inUnited 2002, when there was speculationStates that the Institute same constitution, an idea of that disregardsPeace his the current president could offer the office of prime own distinction between formal and material. minister to the largest party, which in fact could not 66. S. Holmes, “Back to the Drawing Board,” form government, thereby forcing new elections in in East European Constitutional Review, vol. 2 extremely polarized circumstances. (1993/1), pp. 21–25. 56. For the text of the pact, see Magyarország 67. Ackerman, The Future of the Liberal Revo- Politikai Évkönyve 1991. lution; Arato, “Constitutional Learning.” 57. See Tordai, “A harmadik köztársaság al- 68. Arato, “Refurbishing the Legitimacy kotmánya születése,” and Szalay in Magyarország of the New Regime: Constitution-Making End- Politikai Évkönyve 1991. game in Hungary and Poland,” in Civil Society, 58. Seventy-two percent of the mandates. It is pp. 199–228. thus probably true that József Antall made the grav- 69. Halmai, Magyarország Politikai Évkönyve; est error when, on the basis of old-fashioned cultural Arato, Civil Society, chap. 7. nostalgia, he chose the Independent Small Hold- 70. Hungarian politics is increasingly shaped ers (FKgP) and the Christian Democrats (KDNP) by the hardening of two major blocks, which are and not the SZDSZ and FIDESZ as his coalition themselves internally heterogeneous. The socialist- Framing the State in Times of Transition 389

liberal side is emphatically pro-Western, favors more pervasive collaboration between Pozsgay and privatization and integration into the international Antall. economy, and draws support mostly from the urban, 81. This eventually became Antall’s position; professional middle classes, the elderly, and the ranks see remark attributed to Tölgyessy by Lengyel, but see of the former Communist party and bureaucracy. Antall’s denial of explicit coordination with the radi- The right-of-center block is more open to economic cal opposition in Ellenzéki kerekasztal, pp. 164–65. protectionism, less enthusiastic about international 82. See Przeworski, Democracy and Market; integration, and draws support from the rural, ag- Schiemann, “A választási törvény megalkotása,” and ricultural population, small to mid-size entrepre- Halmai, Magyarország Politikai Évkönyve. neurs, religious voters, and the younger generation of 83. See Halmai, Magyarország Politikai voters. Évkönyve. 71. Ackerman, The Future of the Liberal 84. A Rendszerváltás forgatókönyve, vol. 3, Revolution. p. 649; see Magyarország politikai évkönyve 1990 for 72. For the Hungarian case see Kis, Haraszti, the legislation. and Solt, The Social Contract, samizdat 1987, that in- 85. SZDSZ, Rendszerváltás programja (Buda- volved a creative constitutional package as well as pest: SZDSZ, 1989). the first open declaration that “Kadar Must Go!” 86. For the formal position of the EKA, see 73. One of the authors of this case study, Arato, “Az Alkotmánybíróság a médiaháborúban,” Andrew Arato, played a very occasional role as an p. 612. For a vigorous debate on this position see expert of the SZDSZ, in constitutional matters, as remarks by Tölgyessy and Kilényi in Ellenzéki ker- well as a more formal role submitting drafts to the ekasztal, pp. 649–50. parliamentary drafting committee (in 1995–96) 87. See the September 15, 1989, Middle Level concerning the electoral law and the constitutional Political Coordinating Council of the National amendment rule. In both cases, however, Arato was Round Table in A Rendszerváltás forgatókönyve, asked to participate as a Hungarian rather than for- vol. 4, pp. 410–13. eign expert. 88. Undoubtedly many of the elements of the 74. Nevertheless, the latter was done once, in eventual design for the constitutional court came 1993, when the government, with the tacit consent from reform communist drafts. But Kulcsár’s ar- of the largest opposition party, raised the electoral gument that he and vice minister Kilenyi actually threshold from 4 to 5 percent. wished for the stronger model, did not introduce it 75. Hungary was a monarchy until 1945, in for tactical reasons, and were happy when the op- theory with a responsible parliament, a parliamen- position forced through its points is unconvincing tary republic from 1945 to 1948, and formally and unverifiable. See Két világ között, pp. 252–53. © Copyrighteven after. See, e.g., Antall’s remarks by at the thelast ple- EndowmentUltimately what matters is not what theseof politi - nary session of the National Round Table, in A cians believed but what they proposed. Kulcsár Rendszerváltás forgatókönyve. Kerekasztal-tárgyalások omits from his list the expansion of standing in the1989-ben, United vol. 4 (Budapest: ÚjStates Mandátum, 2000) Institutefront of the court, successfully of Peace demanded by the pp. 499–500. opposition. 76. Constitution of the Republic of Hungary, 89. September 18, 1989, session of the EKA; art. 29(A). September 18, 1989, Middle Level session of the National Round Table, A Rendszerváltás forgató­ 77. Constitution of the Republic of Hungary, könyve, vol. 4, pp. 450–51, 472–79. 1989 text, art. 40(1). 90. The distinction is papered over by Arend 78. See also the text of the last plenary session Lijphart in Democracies, in which he treats constitu- of the National Round Table in A Rendszerváltás tionalism as a dimension of consensus democracy. forgatókönyve, vol. 4, pp. 499–507 and note 18. 91. Kulcsár implies, but supplies no proof, 79. See Antall in Richter, Ellenzéki kerekasz- that the conception originated with Tölgyessy, who tal, p. 163. claimed that it was the MSZMP. See Két világ kö- 80. See Kulcsár, Két világ között, who, how- zött, p. 261. In any case, the idea of constitutional ever, mentions no quid pro quo, and most recently laws that can be changed only by qualified majori- Lengyel, “A kerekesztal hosei,” who denies a spe- ties seems to have been in the draft conception of cial deal by affirming in effect an even wider and a new constitution brought to parliament by the 390 Andrew Arato and Zoltán Miklósi

Ministry of Justice in April–May 1989. See Tokés, 99. Istvan Csurka, “Meg nem történt forrada- Hungary’s Negotiated Revolution, p. 163, who cites lom” in Csendes, Forradalom, Volt, ed. András Bozóki the text Igazságügy Minisztérium—Magyarország (Budapest: Twins, 1992); “Az alkotmánybiróság Alkotmánya—Szabályozási Koncepció. We do not see, döntéséhez,” in Magyar Fórum, March 12, 1992. however, why he claims that parliament received 100. Arato, Civil Society, p. 3. some kind of veto right thereby, in a conception that 101. See Hannah Arendt, On Revolution otherwise sought to limit parliamentary sovereignty (New York: Penguin Classics, 1990). in a variety of ways. See also Tordai, “A harmadik 102. See Mária Vásárhelyi, “A tárgyalások köztársaság alkotmánya születése.” nyilvánossága, a nyilvánosság tárgyalása,” in A rend- 92. 4/1990 Constitutional Court Ruling. szerváltás forgatókönyve, vol. 7, p. 575 ff. 93. Jutasi, Magyarország Politikai Évkönyve 103. Arato, Civil Society, pp. 69, 124–25; Kis, 1990. “Between Reform and Revolution,” Constellations 94. 4/1990 Constitutional Court Ruling. ( January 1995), p. 405. 95. Jutasi, Magyarország politikai évkönyve 104. Schmitt, Verfassungslehre. 1990. 105. Holmes, “Back to the Drawing Board.” 96. Tordai, “A harmadik köztársaság alkotalkot-- 106. Woodrow Wilson in Arendt, On mánya születése.” Revolution. 97. See D. Atkinson, “Principle Born of Prag- 107. Ackerman, The Future of the Liberal matism? Central Government in the Transition,” in Revolution. A Small Miracle, eds. S. Friedman and D. Atkinson 108. Halmai, Magyarország Politikai Évkönyve. (Pretoria: Raven Press, 1994); R. Schrire “The Pres- ident and the Executive,” as well as the other essays 109. Kelsen, General Theory, p. 155 ff. in South Africa: Designing New Political Institu- 110. The material structure of the Hungar- tions, eds. M. Faure and J.-E. Lane (London: Sage, ian negotiations based on two weak sides was first 1996). stressed by Bruszt and Stark, “Remaking the Politi- 98. Bruce Ackerman, We the People, vol. 1 cal Field.” (Cambridge, MA; Harvard University Press, 1991), chap. 1.

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