DOCSLIB.ORG

DISABLING the CONSTITUTION Miklós Bánkuti, Gábor Halmai, And

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
DISABLING the CONSTITUTION Miklós Bánkuti, Gábor Halmai, And 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.
Load more

Recommended publications
  • Patterns of Presidential Activism in Central and Eastern Europe
    VETO ET PETO: Patterns of Presidential Activism in Central and Eastern Europe __________________________ Philipp Köker UNVERSITY COLLEGE LONDON Thesis submitted for the degree of Doctor of Philosophy in Political Science 1 Declaration I, Philipp Köker confirm that the work presented in this thesis is my own. Where in- formation has been derived from other sources, I confirm that this has been indicated in the thesis. Date Signature 2 Abstract The powers of Central and East European presidents have been subject to a number studies. Paradoxically, only few scholars have tried to explain how presidents actually use them. This thesis maps and explains patterns in the activism of democratic presidents in Central and East- ern Europe (CEE). It proposes a new theoretical framework for the study of presidential activ- ism, defined as the discretionary use of formal presidential powers, and argues that it can be explained by the constitutional setting and the political environment. To test these hypotheses, the study employs a nested analysis approach. Thereby, the patterns of presidential activism are assessed using an original data set on the use of presidents’ legislative powers in nine CEE de- mocracies between 1990 and 2010, and the thesis provides one of the first cross-country empiri- cal analyses of the actual use of presidents’ reactive powers to date. Based on the predictions of the statistical model 12 president-cabinet pairings from four countries (Estonia, Hungary, Po- land, 4.) are selected for in-depth case studies. The qualitative analysis then uses the results of 65 semi-structured elite interviews and ample source material to examine the validity of the sta- tistical results.
    [Show full text]
  • Survey: English
    Back-translation of the 2002 CEU-Medián post-election study questionnaire in Hungary Prepared by Ágota Révész and Gábor Komáromy August 2002 Note: This back-translation includes nearly the entire original Hungarian-language questionnaire, except for some sections on market research about internet and mobile phone-use. Questions 1 to 22 of CSES Module 2 were asked as a single block, as questions 22 to 51 in the questionnaire below, except that the questions on turnout and vote choice in the last election were asked before, as questions 10, 11 and 13, and that the question on left-right self-placement (question number 24 in the CSES module) was inserted before the battery on the left-right placement of the parties (question 20 of the CSES module, asked as question 47 below). Question 23 of the CSES module was asked as question 62 in the questionnaire below, and the information items as questions 14, 52 and 53. LOCATION RESPONSES ARE VOLUNTARY! 1 6 7 4 QUESTIONNAIRE APRIL 2002 COUNTY Location: ................................................................................................ 5 6 Sample Code: 1 2 3 4 5 6 TELEPNAG 7 TELEP3 8 INTERVIEWER CODE INTERVIEWER:.......................................................................................................... 9 10 11 12 DATE INTERVIEW DATE: APRIL 2002............... DAY ...…............-to ............... 13 14 TIME RESPONSES CHECKED BY: .......................................................................................... (IN MINS) CODED BY: ...........................................................................................................................
    [Show full text]
  • Hungary by Balázs Áron Kovács and Bálint Molnár
    Hungary by Balázs Áron Kovács and Bálint Molnár Capital: Budapest Population: 10.0 million GNI/capita: US$18,210 Source: The data above was provided by The World Bank, World Bank Indicators 2010. Nations in Transit Ratings and Averaged Scores 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 Electoral Process 1.25 1.25 1.25 1.25 1.25 1.25 1.75 1.75 1.75 1.75 Civil Society 1.25 1.25 1.25 1.25 1.25 1.25 1.50 1.50 1.75 1.75 Independent Media 2.25 2.25 2.25 2.25 2.50 2.50 2.50 2.50 2.50 2.75 Governance* 3.00 3.00 2.50 2.50 n/a n/a n/a n/a n/a n/a National Democratic Governance n/a n/a n/a n/a 2.00 2.00 2.25 2.25 2.50 2.50 Local Democratic Governance n/a n/a n/a n/a 2.25 2.25 2.25 2.25 2.50 2.50 Judicial Framework and Independence 2.00 2.00 1.75 1.75 1.75 1.75 1.75 1.75 1.75 2.00 Corruption 3.00 3.00 2.75 2.75 2.75 3.00 3.00 3.00 3.25 3.50 Democracy Score 2.13 2.13 1.96 1.96 1.96 2.00 2.14 2.14 2.29 2.39 * Starting with the 2005 edition, Freedom House introduced separate analysis and ratings for national democratic governance and local democratic governance to provide readers with more detailed and nuanced analysis of these two important subjects.
    [Show full text]
  • Process and Background of the New Hungarian Constitution 1
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE 37 provided by Repository of the Academy's Library A Constitution’s Environment, Environment in the Constitution – Process and Background of the New Hungarian Constitution 1 Anikó RAISZ 2 It may be the 2011 Hungarian Constitution that had the most interesting birth among all the “modern” constitutions so far. Even if from a clearly constitutional legal aspect, it was a birth every mom-to-be may only wish for herself – fast, practically painless, almost boring… But here it becomes visible again that constitutional law is not standing alone in the void. It is interrelated – and with almost everything: international law, European law, environmental law, and basically every other legal branch as well, but also politics, and international investments. In the following paper, certain aspects of the background of the new Hungarian Constitution will be discussed, laying special emphasis on the process of its adoption (including the so-called national consultation), its echo at an international level (above all in the European Parliament, the Venice Commission and the European Centre for Law and Justice) and even some “revolutionary” new dispositions, e.g. those relating to environmental protection. I. The process – To be or not to be? That was indeed the question “Modern” Hungarian constitutional traditions date back to the 19th century and the longest living European 1848 revolution (that actually lasted into 1849), although 1 This research was carried out as part of the TAMOP-4.2.1.B-10/2/KONV-2010-0001 project with support by the European Union, co-financed by the European Social Fund.
    [Show full text]
  • Populist Politics and Liberal Democracy in Central and Eastern Europe
    POPULIST POLITICS AND LIBERAL DEMOCRACY IN CENTRAL AND EASTERN EUROPE Grigorij Mesežnikov, Oľga Gyárfášová, and Daniel Smilov Editors INSTITUTE FOR PUBLIC AFFAIRS 2 The authors and editors wish to thank Rumyana Kolarova, Lena Kolarska−Bobińska, Andras Sajo and Peter Učeň for reviewing the country studies and Kevin Deegan−Krause for proofreading. This publication appears thanks to the generous support of the Trust for Civil Society in Central & Eastern Europe 3 Edition WORKING PAPERS Populist Politics and Liberal Democracy in Central and Eastern Europe Grigorij Mesežnikov Oľga Gyárfášová Daniel Smilov Editors INSTITUTE FOR PUBLIC AFFAIRS Bratislava, 2008 4 TABLE OF CONTENTS Preface .....................................................................................................................................................................5 The Rise of Populism in Eastern Europe: Policy Paper .....................................................................................7 Daniel Smilov and Ivan Krastev CASE STUDIES: Bulgaria ................................................................................................................................................................ 13 Daniel Smilov Hungary ................................................................................................................................................................ 37 Renata Uitz Poland ..................................................................................................................................................................
    [Show full text]
  • Enlarged Europe, Shrinking Relations? the Impacts of Hungary's Eu Membership on the Development of Bilateral Relations Between New Zealand and Hungary
    ENLARGED EUROPE, SHRINKING RELATIONS? THE IMPACTS OF HUNGARY'S EU MEMBERSHIP ON THE DEVELOPMENT OF BILATERAL RELATIONS BETWEEN NEW ZEALAND AND HUNGARY ________________________________________________ A thesis submitted in partial fulfilment of the requirements for the Degree of Doctor of Philosophy in European Studies in the University of Canterbury by Adrienna Ember University of Canterbury 2008 CONTENT Page Acknowledgements 1 Abstract 2 Abbreviations 3 List of Figures 5 List of Tables 6 Chapter 1 INTRODUCTION 1.1 Introduction 8 1.2 Problem setting 15 1.3 Empirical literature 16 1.4 Objectives and research questions 19 1.5 Theoretical Framework 23 1.6 Methodology and Limitations 26 1.7 Chapters Overview 29 1.8 Summary 31 Chapter 2 LITERATURE REVIEW AND THEORY 2.1 Introduction 32 2.2 Review of Empirical Literature 33 2.2.1. Introduction 33 2.2.2 Literature on Relations between New Zealand and the EU 34 2.2.3 Literature on Relations between Hungary and the EU 40 2.2.4 Literature on New Zealand and Hungary within the Context of the EU 52 2.2.5 Summary of Empirical Literature 55 2.3 Theoretical Framework 56 2.3.1 Introduction 56 2.3.2 Small State Theory 57 2.3.2.1 Relevance and Development of ‘Small States’ Studies in Europe 57 2.3.2.2 Can Smallness be Defined? 60 2.3.2.3 Milestones in the Small State Literature 63 2.3.2.4 Critiques of Small State Theory 68 ii Page 2.3.2.5 The Applicability of Small State Theory for New Zealand 74 and Hungary 2.3.3 Theory on the Role of Ethnic Networks in International Trade 78 2.3.3.1 Development of Theory
    [Show full text]
  • Edith Oltay Hungarian Opposition Party Locked In
    SÜDOSTEUROPA, 54. Jg., 4/2006 Edith Oltay* Hungarian Opposition Party Locked in Power Struggle with the Government Hungary's largest opposition party the Alliance of Young Democrats-Civic Alli- ance Fidesz (Fidesz-MPP) was the landside winner of the October municipal elec- tions and is a key player in the political crisis that has engulfed the country since the middle of September. Following the April 2006 Hungarian parliamentary elections, Fidesz was forced into opposition for a second time in a row under the leadership of Viktor Orbán. The Hungarian Socialist Party (MSZP) and the liberal party Alliance of Free Democrats (SZDSZ) obtained a stable majority in parlia- ment and formed a coalition government. This marked the first time since the change of regime that a government was reelected in Hungary.1 Shortly after the elections, however, the government experienced a great loss of public support when it announced the introduction of tax rises and spending cuts. Drastic re- forms of healthcare, state administration, higher education and energy prices are planned. The public was taken by surprise since during election campaign the coalition parties spoke of a "booming economy" and even promised tax cuts. In reality, Hungary's budget deficit swelled to 10% of the GDP and is by far the highest in the EU relative the size of the economy.2 It was only oil on the fire when on 17 September a tape recorded in May was leaked to the media on which Prime Minister Ferenc Gyurcsány told a closed ses- sion of the MSZP parliamentary group that in the past one and a half years his government had "lied (to the population) morning, noon and night" about the state of the economy in order to be reelected.
    [Show full text]
  • From Protest to Party the Transformation of Anti-Communist Opposition Movements in East-Central Europe
    From Protest to Party The Transformation of Anti-Communist Opposition Movements in East-Central Europe by Victor Gomez A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy in Political Science Department of Political Science University of Toronto © Copyright by Victor Gomez 2014 ii From Protest to Party: The Transformation of Anti- Communist Opposition Movements in East-Central Europe Victor Gomez Doctor of Philosophy Department of Political Science University of Toronto 2014 Abstract Viable and stable political parties are a key element for the establishment of healthy democracies in post-authoritarian countries. In that sense, the study of why some countries have greater difficulties than others in this regard is an important gauge of the quality of democracy in various polities. My paper is based on a comparison of these issues in Poland and Hungary. Why did some of the anti-communist opposition movements spend years going through repeated rounds of fragmentation producing weak parties, while others were able to produce relatively stable parties early on in the transition to party-based competition? While the literature tends to attribute such differences to electoral systems or social cleavages, this paper argues that the historical regime divide between the former communist party and the former anti-communist opposition as well as the extent to which the ex-communist party was able to compete in the new system had a crucial impact on this question. The deeper the regime divide, the more difficult it proved for the anti-communist opposition movements to produce stable parties if the communist party was able to become an effective player in the new democratic system.
    [Show full text]
  • Hungarian Domestic Policy in Foreign Policy”, International Issues & Slovak Foreign Ties Living Abroad and Shall Promote the Fostering of Their Relation with Hungary
    46 47 Foreign Policy of Hungarian Governments in the period of 1990 – 2006 Balázs KISS The Antall and the Boross Governments (1990 – 1994) Csaba ZAHORÁN The foreign policy of the first freely elected rightist Hungarian government was determined by three main objectives. The conservative government of three parties (MDF-Keresztény Demokrata Néppárt (Christian Democratic Hungarian Domestic Policy People’s Party) KDNP-Független Kisgazdapárt (Independent Smallholders, in Foreign Policy Agrarian Workers and Civic Party, FKGP) lead by the Hungarian Democratic Forum, MDF tried to make international politics equal in order to achieve the objectives of the Euro-Atlantic integration policy, the neighborhood policy and the Hungarian national policy. However sometimes the balance of the system Summary: The article focuses mainly on the national policy (i.e. the issue of the of these three foreign policy priorities proved to be unstable, mainly in case of Hungarian minorities living abroad) since in this field the fundamental differences collision of the neighborhood policy and the Hungarian national policy. In a between the viewpoint of the right-wing and the left-wing political parties display very strong representation of national interests, which during the communist era significantly, what also appears in the policy of the ruling governments. After providing had been damped, practically encoded were the conflicts with neighboring a brief summary of the foreign policy of the Hungarian governments since the change of countries, mainly if we take into consideration the revival of nationalist the political regime, the authors discuss some crucial issues and evaluate the Hungarian emotions in the region. When the Antall government openly – however, foreign policy of the last year of the new Gyurcsány government, outlining briefly the sometimes without proper sensitivity and tact 1 – stood up for the representation relation of Hungary and the Great Powers.
    [Show full text]
  • 3. Weak but Not Powerless: the Position of the President in the Hungarian Political System
    1 3. Weak but not powerless: The position of the president in the Hungarian political system Gábor Dobos – Attila Gyulai – Attila Horváth Introduction It is a commonplace of Hungarian politics that the head of state has a weak, constitutionally limited position. On a closer look, however, several important factors seem to worth analysing. While the strong head of state is part of Hungary’s long-term traditions, during the transition from communism to democracy, its role became constitutionally weak. This discrepancy would suggest broad opportunities for strengthening the informal position of the president still; only isolated efforts have taken place for the last two decades which, however, can always be traced back to the formal frameworks. The chapter proceeds as follows. After a short historical background, the subsequent section describes the formal position of the Hungarian president providing a general outline of the legal framework and its interpretation by the Constitutional Court. The competences of the president are analysed from the viewpoint of those which may contribute to the increasing engagement of presidents in politics. The main part of the chapter is devoted to how the presidents have built their informal positions with their relatively weak constitutional powers. On the base of political activity of the heads of state so far, we make an attempt to describe and separate different models of role perceptions. Antecedents, traditions and historical background Beginning from its foundation, Hungary was a kingdom until the early 20th century. As a result of the establishment of the Austro-Hungarian Empire in 1867, constitutional monarchy was introduced that existed until 1918.
    [Show full text]