DISABLING THE CONSTITUTION

Miklós Bánkuti, Gábor Halmai, and Kim Lane Scheppele

Miklós Bánkuti is senior research specialist in Princeton University’s Woodrow Wilson School. Gábor Halmai is professor of law at Eötvös Lóránd Univerity, Budapest and visiting research scholar at Princeton University. Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and Public Affairs at the Woodrow Wilson School and the University Center for Human Values at Princeton University as well as director of its Program in Law and Public Affairs.

In Hungary’s April 2010 general elections, former prime minister Viktor Orbán and his Fidesz party won an overwhelming majority of the seats in parliament. The elections gave voters a choice among the discredited Socialist Party (MSzP), which had governed for the preceding eight years, a new youth party of unclear aspirations (Politics Can be Different or LMP); the neo-

Nazi right (Jobbik); the center-right Fidesz; and a few smaller parties that did not muster enough votes to cross the 5 percent threshold into the unicameral, 386-seat Hungarian National

Assembly.1 Given that the bottom had fallen out of the economy on the Socialists’ watch and that the party had been mired in scandal, it was not surprising that Fidesz won 53 percent of the popular vote. That was normal party politics. What happened next was a mistake of constitutional design.

During Hungary’s transition away from communist rule in 1989 and 1990, the constitutional drafters had been worried about two things: a fractured parliament in which small parties would be unable to form stable majority coalitions, and a deeply entrenched constitution that would be too hard to change once the new democrats figured out how they wanted to design their political institutions. To allay the first of these worries, the framers opted for an election law that put its thumb on the scale in favor of larger parties—effectively using extra seat bonuses as a means of ensuring stable government. In order to address the second concern, the 2 amendment rule in the new constitution allowed a single two-thirds majority of parliament to alter any provision of the constitutional text.

What happened in April 2010 amounted to a perfect storm battering Hungarian constitutionalism. The disproportionate election law translated Fidesz’s 53 percent vote share into 68 percent of the seats in parliament. And with the easy constitutional-amendment rule, this two-thirds supermajority was big enough to change everything, which is what the ruling party set about doing. In its first year in office, the Fidesz government amended the old constitution twelve times, changing more than fifty separate provisions along the way. Many of these changes were designed to weaken institutions that might have checked what the government was going to do next, which was to impose upon Hungary a wholly new constitutional order using only ideas and votes from Fidesz.

One of the ruling party’s first amendments removed the last restraint on a government with a two-thirds majority. In 1995, the constitution was changed to require a four-fifths vote of parliament to set the rules for writing a new constitution. But because the amendment rule to the constitution had not been altered to exempt the new four-fifths rule from its purview, the Fidesz parliament was able to use its two-thirds vote to eliminate the four-fifths rule from the constitution. With that rule out of the way, Fidesz could write a new constitution on its own.

Fidesz then attacked the Constitutional Court. For more than twenty years, the powerful

Court had been the constitutional guardian and primary check on the government.2 It might well have declared many of the Fidesz initiatives unconstitutional had it not first been disabled.

The government wasted no time in changing the constitution to alter the system for nominating constitutional judges.3 The old constitution required a majority of parliamentary parties to agree to a nomination and then a two-thirds vote of parliament’s members to elect the 3 nominee to the Court. The Fidesz parliament simply amended the constitution to allow the governing party to nominate candidates and let its two-thirds majority elect judges to the Court.

This gave Fidesz the power to name judges without needing multiparty backing.

Majoritarianism Unleashed

The Fidesz government then restricted the Constitutional Court’s jurisdiction. In order to plug gaping budget holes, the Fidesz government established a 98 percent retroactive tax on the customary departing bonuses of those who had left public employment in the preceding five years. The Constitutional Court, before it could be packed with a working majority of new judges, struck down this tax as unconstitutional.4 Parliament responded by amending the constitution to take away the Court’s power over fiscal matters.5

Now the Court can no longer review for constitutionality any laws about budgets or taxes unless those laws affect rights that are hard to infringe with budget measures (rights to life, dignity, data privacy, thought, conscience, religion, and citizenship). Conspicuously, the

Constitutional Court is not allowed to review budget or tax laws if they infringe other rights that are much easier to limit with fiscal measures, such as the right to property, equality under the law, the prohibition against retroactive legislation, or the guarantee of fair judicial procedure.

Sidelining the Court in this area enabled the Fidesz government to continue to roll out a series of unconventional economic policies. Among other measures, it effectively nationalized private pensions, which resulted in eight-thousand cases on the issue going to the European Court of

Human Rights.6 Meanwhile, the Constitutional Court remained silent. 4

To further establish its control over the Constitutional Court, the Fidesz government amended the old constitution to increase the number of judges, giving the party power to name seven of the fifteen judges on the Court in its first year and a half in office. Although the Court still exists, it has now largely disappeared from the political landscape. All these measures enacted within the first year of the Fidesz government —the new nomination procedure for judges, the limitation on judicial review of fiscal measures, and the expanded size of the

Constitutional Court—were entrenched in the new constitution.

In its early days in power, Fidesz brought the Election Commission under its control as well, prematurely terminating the mandates of members who were elected to serve through 2014.

Under the old system, the Commission was divided so that five of its seats were filled by party delegates (one from each parliamentary party), while the other five were filled by mutual agreement between the governing and opposition parties. Fidesz immediately filled all the nondelegate seats on the Commission with its own members, giving the ruling party a dominant majority on the Commission. This mattered not only for election monitoring but also because the

Election Commission must rule on proposals for referendums. Thus the Commission could thwart attempts by civil society groups to use referendums to derail aspects of the government’s program. (Electoral Commission decisions can be appealed to the Constitutional Court, but that hardly matters since the Court, as we have seen, was disabled early on.)

Another early target of the Fidesz government was the mass media. Two major new laws restructured the Media Authority, the state regulatory agency, and created a five-member independent Media Council with powers to levy hefty fines on all media outlets for, among other things, failing to achieve “balanced” news coverage.7 Orbán appointed a former Fidesz MP to a nine-year term as head of the Media Authority, a position whose occupant must now by law be 5 the chair of the independent Media Council , and the parliament elected other Fidesz party loyalists to every seat on the Council.

These media reforms faced heavy criticism from both the Council of Europe and the

European Union, which forced Hungary to relax the rules slightly.8 But the key features of the new Council system were left in place—most crucially, the power to interpret vague standards vested in a Council whose membership consists exclusively of affiliates of one party. As a result of a decision by the dying Constitutional Court in December 2011,9 these restrictive content requirements no longer apply to the print and online press. But the media remain under pressure since the Council still controls the entire broadcast sector and has not foresworn its still-extant legal power to reregulate print and online media. A Council of Europe analysis in May 2012 confirms that the changes made by the Hungarian government still do not meet European human rights standards.10

Finally, under the old constitution, the president held a number of important powers that could keep the government in check. The president could exercise a suspensive veto by sending laws back to parliament for revision or could send a law of questionable constitutionality to the

Constitutional Court for review. Without changing the laws, the Fidesz government changed the person. In 2010, parliament elected former Fidesz vice-chair Pál Schmitt to the office. Schmitt never hesitated to sign anything that the Fidesz government put before him; thus he provided no real check on the constitutional revolution either. (Schmitt was forced to step down amid a plagiarism scandal in April 2012, and János Áder, a cofounder of Fidesz and coauthor of the controversial law on the judiciary, was elected to replace him.)

These four actions—limiting the Constitutional Court, dooming the referendum process, asserting control over the media, and putting a Fidesz loyalist in the presidency—effectively 6 created an opening through which the Fidesz government could then push a new constitution without challenge.

The key parts of the constitution-drafting process occurred behind closed doors. The two- stage process required first that a parliamentary committee adopt the basic principles of the new constitution and then that representatives draft the constitution following these principles. But when the parliamentary committee (which opposition members had boycotted because their proposals made little headway) announced the constitutional principles in December 2010, there was no debate or formal adoption of these principles. Instead, a March 2011 parliamentary resolution gave all MPs one week to come up with proposed draft constitutions “with or without” taking the principles into account.

In the end, only two proposals for a new constitution were offered. One came from an extraparliamentary committee consisting of three Fidesz members, headed by József Szájer, a

Fidesz member of the European Parliament. The other came from former National Assembly speaker and 2005 Socialist presidential candidate Katalin Szili. The Szájer draft was promptly introduced in parliament as a private member’s bill. Using this procedure, Fidesz could eliminate the preparatory stage required of all government bills that mandates consultation with the opposition and interested civil society groups. As a result, virtually no one outside Fidesz was given the chance to discuss the draft constitution as it was being constructed. Szili’s draft was quietly dropped by parliament and never received a serious hearing.

The Szájer constitution was introduced in the National Assembly with one month for a public debate that never occurred. Parliament itself discussed the constitution in only nine sessions, during which about 180 amendments were offered. But the only alterations that had any chance of passage were those submitted by Fidesz. Democratic opposition parties, whose 7 proposals were virtually all rejected, eventually walked out of the chamber and did not vote on the final constitution. Only the far-right Jobbik stayed and voted no.

In a party-line vote, with all Fidesz members in favor and everyone else either boycotting or voting no, the new constitution passed parliament by the requisite two-thirds vote and was signed by the president on 25 April 2011. The whole process was completed in a rush without even contemplating a public referendum to ratify the result. The new constitution went into effect on 1 January 2012,11 along with many of the “cardinal laws” that the constitution required to fill in the specifics.

The New Constitutional Order

Both the old and the new constitution have at their core a parliamentary system with a unicameral parliament. But unicameral parliaments need checks if they are to avoid the potential abuses of majoritarianism. The old constitution had many checks. The new constitution has substantially weakened all of them.

The Constitutional Court had been the primary check on the power of government majorities, and we have already seen how Fidesz captured the Court prior to the new constitution’s adoption. But in addition to changing the size of the Court, its jurisdiction, and the procedures for nominating judges to the Court, the new constitution also sharply limits access to the Court. Under the old constitution, anyone could challenge a law’s constitutionality. This

“actio popularis” jurisdiction was unusual in Europe and had become the most effective way in

Hungary to keep the government in constitutional line. 8

The new constitution eliminates actio popularis review, substituting instead a constitutional complaint on the German model. In this new system, individuals may challenge laws only if the laws affect them personally. The ability of the Court to review laws in the abstract is further limited by the narrow list of officials who have competence under the constitution to take a case to the Court for abstract review. For example, the constitution requires

25 percent of the members of parliament to challenge a law. But given the current division of the opposition between the left (the Socialists) and the far right (Jobbik), it is unlikely that 25 percent of MPs will work together to organize such a challenge. The cumulative effect is that the

Court will now hear primarily individual-level complaints alleging infringements of rights, but will not be able to reach many of the most disturbing aspects of the new constitutional order— issues related to separation of powers and institutional structure.

Other checking institutions that were important in the old constitutional order have also been seriously weakened. The ordinary judiciary has lost a great deal of its independence. Under the old system, lower-court judges were selected by panels of their fellow judges. Under the new system, the president of the newly created National Judicial Office has the power to select new judges, to promote and demote any judge, to begin disciplinary proceedings, and to select the leaders of each of the courts.12 The person chosen by the Parliament with a two-thirds majority to fill this office is both a close friend of Prime Minister Orbán and the wife of József Szájer, the principal drafter of the new constitution.13

In choosing new judges, the head of the National Judicial Office must pick candidates from a list prepared by local councils of judges, but she sets up the process through which candidate may apply and she may reject the judges’ lists and start the process over again if need 9 be. The President of the Republic must sign off on all new judicial appointments, but with a

Fidesz loyalist holding that position, the president is unlikely to object.

The Transitional Provisions to the Basic Law, enacted by parliament on 30 December

2011, give the president of the National Judicial Office the power to reassign specific cases from the courts where they are assigned by law to any other court in the country. In the first set of reassignments, made in February 2012, two of the nine cases moved to other courts had distinct political overtones, including the highest-profile corruption case that the public prosecutor has so far brought against MSzP officials as well as an appeal by a Fidesz party member from a criminal conviction for corruption.14

Between selecting the judges and being able to assign cases, the head of the National

Judicial Office has extraordinary power. Moreover, when her nine-year term expires, she can be replaced only by a candidate who can muster a two-thirds vote of parliament. Should parliament be unable to agree on her successor, she may stay on until a new candidate wins the required legislative supermajority. The Council of Europe’s Venice Commission (formally, the European

Commission for Democracy through Law) recently condemned the new law on the judiciary for concentrating unheard-of powers in the hands of one person and for the extraordinarily long term of her office, among other issues.15

The new president of the National Judicial Office has had many judgeships to fill in her first months in office. Between lifting a moratorium that had blocked the selection of new judges until the new system could be set up and suddenly and abruptly lowering of the judicial retirement age from 70 to 62, the government had about 10 percent of all judicial posts in the country to fill when the new constitution took effect. The European Union has brought an infringement action against Hungary for violating EU law by arbitrarily lowering the judicial 10 retirement age. In the meantime, the newly opened judgeships are being filled quickly while the infringement procedure is pending.

Entrenching Fidesz

In addition to weakening the separation of powers and attacking judicial independence, the Fidesz government has also compromised the accountability institutions that were once known for their independence and expertise.

The old ombudsman system for monitoring human rights has also been seriously weakened. In place of four separate ombudsmen with separate staffs and independent jurisdictions, the new system has only one “parliamentary commissioner for human rights” with two deputies operating under his direction and a much-reduced staff. The old data-protection ombudsman’s office has been eliminated, and its functions have been transferred to a new office that is part of the government and no longer an independent body. The European Union has brought an infringement action against Hungary for violating EU law with this change in the status of the data-protection authority.

In the new constitutional order, the state audit office, once a bastion of independent expertise, has been granted additional powers to launch serious investigations into the misuse of public funds. But the new head of the state audit office, a former Fidesz MP who was elected to hold the audit post for twelve years by a two-thirds vote of parliament, has no professional auditing experience. The public prosecutor, elected by a two-thirds parliamentary majority for nine years, also has increased powers—for example, to assign any criminal case to any court of his choosing. Not surprisingly, the occupant of this office, too, has long been closely aligned with Fidesz. The long terms of the current head of the state audit office and the current public 11 prosecutor mean that both will survive through multiple parliamentary election cycles, providing crucial veto points should any other party come to power in the meantime.

The new constitution also establishes a Budget Council with the power to veto any budget produced by parliament that adds even a single forint to the national debt. The Budget

Council consists of three officials, two elected by a two-thirds vote of parliament and one appointed by the President of the Republic. All have terms of office that exceed a normal parliamentary cycle—six years for two of themembers and twelve years for the other. Thus this institution can exercise dead-hand control over future elected governments.

According to the new constitution, if parliament fails to agree on a budget by March 31 of each year, then the president may dissolve parliament and call new elections. Obviously, if the

Budget Council, dominated by Fidesz loyalists, vetoes the budget on the eve of the deadline, the constitutional trigger may be pulled for new elections. If another party manages to gain power in a future election, this provision will hang like the Sword of Damocles over its continued term in office.

There are numerous other troubling aspects of this new constitutional order: the gerrymandering of election districts, which makes it hard for any other party to win an election in the foreseeable future; the removal of the statute of limitations for crimes committed during the Soviet period, which opens the door to selective prosecution of the political opposition; an unwisely large number of “cardinal” laws (that is, laws requiring a two-thirds vote in parliament) that fix details of state policy on issues such as taxes, pensions, and family protection; the troubling constitutional preamble, which gives constituent power to ethnic Hungarians both at home and abroad while leaving out all other citizens; the references to the historic constitution, which invite (among other things) revisiting the 1920 Treaty of Trianon (which set Hungary’s 12 borders after the Habsburg Empire was defeated in the First World War); the sudden deregistration of more than three-hundred churches that had operated in Hungary for years; and incursions on the independence of the Hungarian Central Bank. We have focused on the core structural issues, however, because they reveal why it will be hard for any non-Fidesz government to govern, should such a government manage to be elected.

Assuming that there continue to be free and fair elections among competing parties in the future, it will be hard for any other party to come to power with this level of political control over all the institutions necessary for democratic elections. Even if another party defies the odds and manages to win an election, however, Fidesz loyalists are entrenched in every corner of the state—from the Constitutional Court, Budget Council, and National Judicial Office to the State

Audit Office, Public Prosecutor’s Office, and National Bank. These loyalists ensure that there will be multiple chokepoints at which Fidesz can stop anything that deviates from its preferences.

In a September 2009 speech, Viktor Orbán predicted that there was “a real chance that politics in Hungary will no longer be defined by a dualist power space. . . . Instead, a large governing party will emerge in the center of the political stage [that] will be able formulate national policy, not through constant debates but through a natural representation of interests.”

Orbán’s vision for a new constitutional order—one in which his political party occupies the center stage of Hungarian political life and puts an end to debates over values—has now been entrenched in law. The new constitutional order was built with the votes of his political bloc alone, and it aims to keep the opposition at bay for a long time. Constitutions, though, often have a way of turning against their makers, as the new rules of the game are learned and used by those 13 who were initially disadvantaged by them. Whether Orbán can keep his opponents down forever, then, remains to be seen.

1 Among these parties were the Hungarian Democratic Forum (MDF), the biggest winner of the 1990 elections, and the Alliance of Free Democrats (SzDSz), the most successful of the liberal parties since the transition. By 2010, both were near complete collapse.

2 Gábor Halmai, “The Hungarian Approach of Constitutional Review,” in Wojciech Sadurski, ed., Constitutional Justice, East and West, Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (The Hague: Kluwer International, 2002), 189–211.

3 Amendment to Law XX of 1949 on the Constitution of Republic of Hungary, 5 July 2010, Magyar Közlöny, Issue 113 (2010).

4 Hungarian Constitutional Court, Decision 184/2010 (X. 28), Magyar Közlöny, Issue 165 (2010).

5 Law CXIX of 2010 on the amendment to Law XX of 1949 on the Constitution of the Republic of Hungary, Magyar Közlöny, Issue 177 (2010).

6 “Human Rights Court Inundated with Hungary Complaints,” EurActive.com, 16 January 2012, available at www.euractiv.com/future-eu/human-rights-court-inundated-hungary-complaints-news-510155.

7 Law CIV of 2010 on the Freedom of the Press and the Fundamental Rules of Media Content and Law CLXXXV of 2010 on Media Services and Mass Media. The laws are translated at the website of the Center for the Study of the Media at Central European University at https://cmcs.ceu.hu/node/26249.

8 Center for Media and Communication Studies, Central European University Hungarian Media Laws in Europe: An Assessment of the Consistency of Hungary’s Media Laws with European Practices and Norms. (2011), available at https://cmcs.ceu.hu/sites/default/files/field_attachment/news/node- 27293/Hungarian_Media_Laws_in_Europe_0.pdf. The criticism of the new media laws is collected at the website of the Center for the Study of the Media at Central European University at https://cmcs.ceu.hu/node/26249.

9 Hungarian Constitutional Court, Decision 165/2011 (XII. 20), Magyar Közlöny, Issue 155, 2011.

10 See Expertise by Council of Europe Experts on Hungarian Media Legislation: Act CIV of 2010 on the Freedom of the Press and the Fundamental Rules on Media Content and Act CLXXXV of2 2010 on Media Services and Mass Media, 11 May 2012, available at www.coe.int/c/document_library/get_file?uuid=fbc88585.

11 The new Hungarian Basic Law is available in translation at http://lapa.princeton.edu/hosteddocs/hungary/Hungarian%20Constitution%20English%20final%20version.pdf.

12 For more detail on the state of the judiciary under the new laws, see Kim Lane Scheppele, “First Let’s Pick All the Judges” at Paul Krugman’s blog Conscience of a Liberal at http://krugman.blogs.nytimes.com/2012/03/10/first-lets- pick-all-the-judges, 10 March 2012.

13 Joshua Rozenberg, “Meet Tünde Handó: In Hungary, One Woman Effectively Controls the Judiciary, and She Happens to be Married to the Author of its Constitution,” Guardian, 20 March 2012, available at www.guardian.co.uk/law/2012/mar/20/tunde-hando-hungarian-judges.

14 Scheppele, “First Let’s Pick All the Judges.”

14

15 European Commission for Democracy Through Law (Venice Commission), Opinion on Act CLXII of 2011 on the Legal Status and Enumeration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary, 19 March 2012, available at www.venice.coe.int/docs/2012/CDL%282012%29104-e.pdf.