13 Constitution Making and Transitional Politics in Hungary 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 ofwere 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 Peacean 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, constitutions 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 governments 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 government 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