Hungary Constitution.

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15 Hungary's Pliable Constitution

Istvan Szikinger Hungary is the only country among the emerging democracies in Central and Eastern Europewithout a new constitution. This does not mean that constitutional values are absent in

Hungary, nor is there a complete vacuum at the top of Hungary's continental-type hierarchicallegal system. Indeed, Hungary's 1989 radical institutional reform coupled with free and fair political competition clearly merits the democratic label. Nevertheless, the currentConstitution is far from being a product of deliberate institutional engineering. Instead, it ismalleable, reflecting rather than framing the dynamic political current. If evolutionarydevelopment and institutional engineering could be seen as two models for implementing political and legal transformation,1 Hungary has followed the first model. The result has beenthat the parliamentary system created by the 1989 constitutional amendments has beenwarped by the formation of a parliamentary super-majority which can easily amend theConstitution further (and has) to suit its political goals. Power is somewhat balanced by a proactive Constitutional Court, but since the Constitution can be changed with such ease,most of the political power remains in the hands of the coalition parties.Before delving into the analysis of the Hungarian Constitution, it is important to consider thecentral motives behind its design. Andrs Saj asserts that fear is a determining factor for legal codification at the highest level.2 To a great extent, the guaranteesend p.406PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedincluded in the 1989 amendments to the Constitution were indeed introduced to moderatefears. The opposition feared persecution by the still-powerful Hungarian Socialist WorkersParty (HSWP) prior to free elections, while the communists (aware of their inevitable loss of authority) feared retaliation by their successors. Both fears were well founded despite the peacefully negotiated transition. But the safeguards laid down in the amended Constitutioncould not prevent power-grabbing by both sides. This is not to say that democratic principleswere unheeded by the governing forces. Nevertheless, party politics still plays a moreimportant role in preserving the rules of the game than the Constitution itself.Hungarians did not reject adopting a post-communist constitution deliberately. But whilethere was some consensus on the final outcome of reformsdemocracypolitical actorscould not agree on how to restrain the branches of power constitutionally. Although theHungarian Constitution remains officially cited as Act No. XX of 1949 (as amended), practically no provision survived unscathed after the numerous modificationsexcept the onedeclaring Budapest as the country's capital. Thus, Hungary has a formally old, substantially

new constitution which was the result of the amendments passed by the outgoing communist parliament following the decisions made at the Roundtable Talks. The 1989 amendment (Act No. XXXI) changed not only an overwhelming majority of positive rules in the basic law, butalso its spirit. The party-state regime enshrined in the 1949 communist Constitution was thustransformed into one structured along the principles of division of power and the liberalvalues of human rights and public power. Although the amendments have contributed to theconsolidation of democracy in terms of restructuring power and institutions, the regime'slegitimacy continues to be challenged. The Roundtable Talks were not intended to be aconstitution-drafting body, and the amendments were neither publicly scrutinized or debated,nor approved by referendum. This led to a situation where the declaration of universallyaccepted constitutional values was codified and institutionalized with dubious political

legitimacy.


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Another problem with the flexibility of the Hungarian Constitution is that it cannot guarantee protection from majority tyranny, which is the major function of any liberal democraticconstitution. Post-communist constitutional development in Hungary has reflected both thestrengths and weaknesses of the political leadership. Recognition of major political trends andchallenges and a focus on implementing reforms has been accompanied by selfish jockeying

for position by political parties and interest groups. Without proper restraints on parliament,the dangers of monopolizingend p.407PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reserved power and passing decisions for electoral gain loom large. Political actors try to reinforcetheir status within the given framework in which little attention is paid to long-termconstruction of a system providing a solid basis for exercising public power. In constitutionalterms, the political superstructure functions according to popular trends while no real progressis made in the field of human rights apart from some modest results triggered byConstitutional Court decisions (data protection) or internationalized political aspirations(minority rights). However, even here an erosion of the constitutionalized foundational rulescan be observed.Constitutional TraditionsBefore 1949, no written constitution had ever existed in Hungary and the communistdictatorship saw the Basic Law as a tool with which the ruling political forces could achievetheir goals. And it was not even the most important tool. During the period of modesteconomic liberalization in the late 1960s, official declarations envisaged shifting the use of legal means for social planning and management in favour of using economic tools. In other words, law was perceived as one of the numerous means by which to pursue political idealsand interests. It is no wonder, then, that the Constitution, which inherently sets limits on political activity, was marginalized and seen simply as an example of communist rhetoricrather than an enforceable law.By the end of the 1980s, the ruling elite's attitude changed slightly. The political oppositiongained a voice in politics by focusing on constitutional issues, since legal reforms were seenas a legitimate tool for effecting lasting political change. In the late 1980s, the growingopposition began challenging the legitimacy of the communist leadership by exposing thecontradictions between constitutional provisions and the reality of communist politics.Meanwhile, as the collapse of the totalitarian system became increasingly inevitable,Communist Party leaders and their supporters began crafting survival strategies. One initiativewas preparing and adopting a new constitution with all the characteristics of a democratic basic law, built upon the principles of division of power and respect for human rights. To that

end, intensive state-sponsored research was conducted which concluded that a newconstitution was necessary for the reformed communists to retain as much power as possible. Thus, cooperation towards change was enabled by the fact that both the old guardand the opposition aimed towards the same goal: constitutional reform.end p.408PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights ReservedDue to the particular structure of the communist regime, the foremost strategy for implementing Hungary's Constitutional Revolution3 was to create a constitutional court.Under the communist regime, judicial power had been seen simply as a subsystem of thecentralized state, and therefore was substantially neglected. The independence of courts and

judges was restricted by the centralized prosecution ( prokuratura ) structure, which wasdirectly managed by the HSWP. Legislation was passed by the standing substitute body of


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parliament, the presidium, which represented the supreme authority within the state. Theexecutive also played an outstanding role in shaping social relations. Behind these actorsstood the determining force of socialist politics: the HSWP. Due to the programmatic,socialism-building character of the regime, legal values and court decisions were secondary tothe whims of the party.

Hungary's constitutional revolution meant that the majority of rules enacted under communism and judicial personnel remained basically the same while the spirit of the oldConstitution was changed radically. But the expectation that communist judgesaccustomedto ignoring the Constitutionwould suddenly treat it as the basis of law in the country wasunrealistic. Even if judges could, confusion over the different interpretations of the law wouldlead to practical problems and would further weaken legal authority. Thus, in order toreconcile old provisions within a new constitutional order, the Constitutional Court was seenas the solution because of its separation from the traditional judiciary and its characteristic of having strong, quasi-legislative competence.The Constitutional RevolutionThe deputies voting in the 1989 Assembly were elected in 1985, that is, before perceivable political changes began. But by 1989, the Assembly had a different character from when itwas initially elected. This was essential for the democratic transformation to take place, sincethe Communist Party's power was concentrated in the legislative and executive branches. Thecatalyst for this change was not only the growing opposition but the HSWP itself, which hadsimply ceased to exercise its powers as the central governing body, giving deputies a certainamount of freedom. Moreover, a small number of opposition deputies were elected after nascent democraticend p.409PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reserved parties and movements passed laws making it possible for constituencies to revoke their representatives and elect substitutes.Initially, the HSWP charged the minister of justice with the task of drafting a set of constitutional guidelines in 19889. Although the draft preserved basic socialist values, it wasinnovative in its inclusion of human rights and the separation of power principle. The draftwas scheduled to be discussed in parliament, but before debates could begin, the oppositionattacked the parliament's lack of democratic political legitimacy which, it argued, is essentialfor adopting a new constitution. Parliament therefore changed its agenda, the governmentrevoked the proposal (together with some accompanying draft laws concerning important political institutions, such as political parties), and the preparations for the Roundtable Talks began.

The Roundtable Talks brought together various political parties and factions that had emergedin the late 1980s to negotiate the transition. The Talks were established by the 10 June 1989agreement between the Opposition Roundtable,4 the HSWP, and the so-called Third Side,composed of organizations and movements characterized by the opposition as HSWPsatellites.5 Though theTalks were not meant to be a constituent assembly, certain modifications to the Constitution, anew democratic electoral law, and the depoliticization of institutions proved inevitable in thecourse of creating a framework for the transition.6 The Roundtable was organized on threelevels. Plenary sessions, composed of the highest-ranking party representatives, were todetermine the general direction of negotiations and sanction the agreements reached.Intermediate discussions dealt with the substantial problems and preparations for the plenum's

decisions. Finally, six expert committees were delegated the task of negotiating various problems of the transition. Only one was created to debate necessary constitutional


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amendments, while the others discussed the various problems of transition, such as modifyingthe criminal code and the electoral law.The initial agreement to prevent parliament from engaging in constitution-making andlegislation on politically crucial issues gradually developed into a mutually accepted situationin which the legal safeguards discussed and adopted during the Talks were not restricted to

the period preceding free elections but also included long-term political goals. Thus, despitethe carefully worded agreement and clearly defined structure of the Talks which prevented itfrom becoming a constitution-making body, discussion of constitutional amendments prevailed over all other issues and the Roundtable negotiations turned into aquasiconstitutional assembly. There were, in my opinion,7 two main reasons behind thisdevelopment. First of all, due to the natural interdependence between the many provisions of the basic law, it proved extraordinarily difficult to change selected elements of the complexconstitution without affecting other sections. As a consequence, changing certainconstitutional rules meant adapting related stipulations as well. The second and moreimportantend p.411PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedreason was the temptation offered by the situation. Since no one knew what the outcome of the democratic elections would be, parties participating in the Roundtable Talks saw it as alegitimate means for securing their interests in the new regime. No party to the Roundtableresisted this temptation, and the Talks became ade facto constitution-making and legislativeforum.It is ironic, then, that the opposition prevented parliament from adopting a new constitution byarguing that it lacked political legitimacy, because the same arguments applied to theRoundtable Talks. There was no formal proof for popular support behind any party participating in the Talks. Thus parliament, with formaland actually growing political legitimacy, transferred its powers to another decision-making body, which had neither formalnor proven political authorization from the people to engage in constitution-making. Theagreement signed by participants on 18 September concerned major legislative issues of thetransition including proposals for a comprehensive constitutional amendment. Parliamentaccepted the agreement reached at the Roundtable Talks and sanctioned the proposedamendment without substantial changes to its essence. On 23 October 1989, the HungarianRepublic replaced the People's Republic and the constitutional amendment was promulgated.As might be expected, the interests of the parties participating in the Talks clashed constantly,not only between the three groups represented, but even within the groups themselves.Debates focused on formal institutions and on the sources of political power. Under the

communist regime political power was based, not in state institutions, but in the CommunistParty. Therefore, distinguishing party politics from direct public power was an issue of paramount importance during negotiations. While the HSWP recognized and accepted this, itwas still the most organized political force and hoped to preserve as much influence as possible. Meanwhile, the opposition focused its attack on demolishing the HSWP's economicdominance and most importantly its control over workers' unions. It hoped to restructure thelegal framework such that the declining HSWP could not make use of its accumulatedresources and all parties could participate in the elections on an equal footing. Nevertheless, the compromise reached at the Roundtable favoured the HSWP. The mostdramatic protest came from certain opposition parties, including the Free Democrats, whichrefused to sign the agreement and made their dissent public. After failing to influence the

outcomes of the Talks, this group proposed aend p.412


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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedreferendum, hoping to garner legitimacy through public support. It is interesting to note thatnone of the points raised in the referendum represented a conflict of political philosophy withthe adopted constitutional amendments. Among the four questions posed by the referendum,

the most important related to the method of presidential elections8

and the institutionalizeddominance of the Communist Party. The results of the 16 November 1989 referendum brought a slight victory to the initiators, the Free Democrats. But the dissenters' initiative wasquashed by the still communist-dominated parliament, which responded by modifying theConstitution and repealing the result of the referendum. As a consolation, parliament placedfurther restrictions and obligations on the HSWP to appease the dissenters' claim that theCommunist Party maintained clear dominance over all other parties. The issue of presidentialelections resurfaced in 1990 with the passage of Act No. XVI, restoring the direct election of the president. But when the new, democratically elected parliament came to power, it changedthe rules again by reinstating presidential election by the parliament (Act No. XL of 1990),and the president was finally elected by parliament on 3 August 1990.Originally, the result of the Roundtable Talks should have represented a quick fix of theConstitution, touching upon only those provisions absolutely necessary for managing thetransition. This would have been the only solution possible, since none of the parties to theTalks had a clear mandate to engage in constitution-making. Reforming the electoral law andits constitutional implications was, of course, unavoidable. As Klmn Kulcsr 9 confirmed,the task of the parliament was strictly limited to passing acts necessary to ensure the peacefulcharacter of the transition.10 But despite these statements, in the course of negotiations thequick fix turned into an interim constitution, which is still in effect today. Having been inforce for so many years, there is a general agreement that even if a new constitution isadopted formally, it will need to rely heavily on the one currently in force.end p.413PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights ReservedFrom a procedural point of view it is true that the Hungarian Constitution lacks evidence of popular support. On the other hand, continuity can also be explained by emphasizing thesolid, basically unchallenged authority of the supreme law. There is a piece of truth in bothstatements. On the one hand, it is possible that the parties participating in the RoundtableTalks succeeded in grasping the Zeitgeist and created a lasting political framework. Asmentioned earlier, comprehensive research had been conducted before the draft Constitutionof the Ministry of Justice was elaborated in 1988; this was used as a basis throughoutnegotiations, even by the opposition. Another undeniable fact is that the Constitution was the

result of an agreement between parties that dominated politics and thus had proven their popular legitimacy. This has led to a situation where interpretation and necessaryconstitutional modifications can be made without enormous difficulty. On the other hand, theConstitution remained the political tool it was under the communist regime without impactingsignificantly the relations between government and civil society. As Istvn Kukorelli stated:The present-day constitution is the result of a bargain between the old and new humanistic professional elite, and it was sanctioned by the old Parliament. The fact that the subject of theconstitution is narrowed down still causes damage to the credibility and social acceptance of the constitution.11 The 1989 Amendments in ForceChanging the Constitution from a government tool to a supreme law constraining public

power remains the crucial problem for constitutionalism in Hungary. A flexible constitutionreflecting rather than framing politics undermines any institutional engineering conducted by


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the framers because the determining features of the constitutionalized power structure aredisregarded.12 Stephen Holmes perceives an even greater danger, however, in an overly rigidconstitutional framework and actually prescribes vesting more power in parliament to allowflexibility in adapting institutionsend p.414

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedto the changing political environment.13 But the Hungarian experience illustrates that problems with consolidating democracy do not arise simply from an anti-parliamentaryfeeling. Instead, Hungary's overly strong parliament has become supra-constitutional. Whilenot denying that the Hungarian institution designers succeeded in introducing some solidelements into the constitutional system, the fact that eleven modifications to the Basic Lawhave been adopted since the initial 1989 amendments reflects the fact that parliament possesses constitutional authority, placing political-legislative interests above all other institutions.Constitution-making is the exclusive power of the Hungarian Parliament. Two-thirds of allMPs can introduce a change into the system of provisions determining the scope, limits, andstructure of the exercise of public power. The only restriction on this competence wasimposed by the 1989 Act (No. XVII) on Referendum and People's Initiative. Section 7 of theAct requires confirmation of a new constitution by referendum. Of course, even this rule can be repealed at any time by a two-thirds majority.14 While these regulations are fairly flexible,constitution drafters did not intend to create a system in which constitutional amendmentsrequired little effort to adopt. Indeed, the amendment procedure alone would be insufficient tocreate what some observers have called the parliamentary constitutional dictatorship15 inHungary. This situation emerged as a direct result of the electoral law, the party balance itcreated, and the process of coalition-building which ensued.The Constitution stipulates that parties shall not directly exercise public power and,accordingly, no party shall direct any state organ. With a view to separation of parties from public power, positions and public offices incompatible with party membership shall bespecified by law.16 The 1989 Act No. XXXIII on Functioning and Finances of PoliticalParties introduced further guarantees to prevent the return of one-party rule. Nevertheless,separating political parties from state organization has not abolished party dominance over thestate. Instead, the one-party system has beenend p.415replaced by a multi-party structure, in which representatives of the civil society, professionalorganizations, and other interest groups nevertheless remain outside the decision-making process.17 This situation exists despite legislation promoting the interaction between state and

civil society. Section 27 of the 1987 Act on Legislation (No. XI) is still in force requiringcoordination with interested social organizations and representative entities in order to learntheir opinion prior to submitting drafts to the government. But this provision is oftendisregarded in practice.At the same time, the electoral law makes it difficult for new parties to gain access to parliament. Although the proportions have changed radically, broadly the same parties of the1990 parliament gained seats after the 1994 and 1998 elections. As most basic institutions, the parliamentary electoral system was a product of the Roundtable Talks. It is a mixed scheme based on a combination of individual constituencies and party lists. In addition, by countingresidual votes not resulting in mandates, a compensatory scheme has been introduced tocorrect certain deficiencies of the system. The electoral system prefers big parties and

prevents fragmentation of parliamentary representation. Nevertheless, electoral coalitions andlist consolidation are allowed. It is also possible for independent candidates to run in


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elections, but only in individual constituencies.The 1990 elections rendered the ex-communist party, the Socialists (MSZP), powerless, butleft the splintered opposition to resolve its internal tensions. As a consequence, with the aimof consolidating the nationalist-conservative bloc, a three-party coalition (controlling 241seats in parliament) was formed between the Hungarian Democratic Forum (MDF), the

Independent Smallholders' Party (FKGP), and the Christian Democratic People's Party(KNDP), which became the basis for forming the government. On the one hand, the newestablishment had gained unquestionable legitimacy because of the reflection of the publicsupport expressed through the votes. On the other hand, the institutional structure relied onthe 1989 constitutional amendment which wasend p.416PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedelaborated by unelected delegations of self-designated political actors. Had a constitutionalassembly been established by the new parliament, there could have been an appropriate forumfor legitimizing the basic law. However, the newcomers to power made no serious attempt tolimit their power for the sake of legitimacy.Almost immediately after the new parliament was elected, one of the most importantguarantees preventing the arbitrary exercise of power adopted in the 1989 amendments to theConstitution was repealed. First, parliament repealed Article 8, paragraph 2 of theConstitution, which required a two-thirds majority for adopting any law on basic rights andduties of citizens. This move was based on a compromise between the two largest parties, theMDF and SZDSZ, in order to prevent paralysing the legislative process since the governmentdid not have a qualified majority in the house. In exchange for the concession, the SZDSZwas given the right to nominate Arpad Goncz as president, even though it was not technically part of the ruling coalition. With the abolition of the general provision on the required two-thirds majority for amending laws on basic rights specific rules demanding the same have not been repealed. In other words, qualified majority is, as before, needed to enact, modify, andrepeal norms on basic rights if so provided by particular sections of the Constitution. Therights of paramount importance (freedom of press, assembly, association, etc.) remained inthat protected circle of rules. The possible explanation of any effort to make human rightslegislation easier by simplifying the procedure can be dismissed because of the fact that nosuch law-making has taken place except some acts of parliament passed in response toConstitutional Court decisions or international obligations.Another safeguard included in the 1989 amendments to the Constitution separated militaryfrom law enforcement agents. Accordingly, the first democratically formed government putreorganization of the border guards (who perform simultaneously both military and policing

functions) on the agenda. The government's intended policy was to convert the border guardsinto a purely law-enforcement agency. However, the military lobbied to retain the duality of that agency and a constitutional amendment for the exception was passed by parliament in1993. The army's interest in pre-serving border guards within its scope of command can beexplained by the natural desire of any power agency not to lose influence frequently identifiedwith importance. In addition to that, a substantial decrease of military personnel preceded thedecision on border guard service accompanied by a confidence-building withdrawal of end p.417PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedregular troops from the frontiers. All these were meant to be counterbalanced by keeping the

border guard service as an agency not so explicitly belonging to the army but, at the sametime, performing defence duties in temporary subordination to it if necessary.


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Even the Constitutional Court proved to be weak against the government's efforts to usesupreme law to satisfy political and bureaucratic needs. In one of its early decisions (3/1990(III. 4) AB hat), the Court ruled that excluding citizens living abroad from participating inelections was unconstitutional. In an effort to avoid difficulties derived from extendingsuffrage to citizens abroad, a government-sponsored constitutional amendment was adopted

by parliament amending the Constitution, and finally the discriminatory provision wasexpressly confirmed by the supreme law, thus overriding the Constitutional Court decision.This amendment, actually, was introduced by the previous communist-dominated parliament but none of the numerous subsequent modifications has changed its substance. This fact refersto a silent consensus among all parties regarding avoidance of taking the risk of opening thegates for an unknown and unforeseeably voting group of the electorate, apart from theobvious convenience of not having the organizational burden of collecting the ballots fromabroad.Generally speaking, narrow partisan interests dominate parliamentary debates in Hungaryexcluding any chance for outside actors to have a significant impact on decision-making. Inconformity with the closed circuit character of high-level state activities, there are almost no provisions on external channels connecting deputies with other branches of government or thesociety at large. National and ethnic minorities cannot delegate deputies to parliament in spiteof a resolute stipulation of the 1993 Act (No. LXXVII) on Rights of National and EthnicMinorities, which expressly prescribes such representation. Attila gh describes theunderlying contradiction of decision-making by political parties in Eastern and CentralEurope, which is clearly illustrated in the case of the Hungarian legislature:the weaker the parties are socially, the more they try to prevent the other social and politicalactors from entering the decision-making process. But the more the other actors are missing,the more the parties themselves are weakened, since it is only the organized meso-system(interest groups) and micro-system (civil society association) that give them a solid social background.gh perceives overparticization and overparlamentarization, that is, expropriation of almost all decision-making powers by partiesend p.418PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedin parliament, as transitory features of the early democratic institutionalization process.18 Of course, it was not the parliamentary powers as such which caused problems for thedemocratic, constitutional development, but rather the lack of proper integration of thelegislation into a broader system of expressing and representing non-partisan interests whichcasts doubts on the fully democratic nature of parliament. With no institution checking its

power, the parliament can be dominated by the governing party or parties to the extent of endangering the essence of separation of powers.In Hungary, the power accumulated by the ruling coalition and the flexibility of institutionaldesign has meant spending countless parliamentary sessions debating problems of secondaryimportance (such as the mode of electing a relatively weak president) and, more importantly,raises the question of the legitimacy of the regime. Referenda are, of course, not a perfect prescription either. But suppressing lawfully prepared initiatives calling for a referendum19 isa clear rejection of democratic principles.Constitutional CourtComplying with constitutional requirements in Hungary today necessarily includes respectingthe rulings of the Constitutional Court. Moreover, these rulings are based not only on the

actual text of the basic law, but on the interpretation of an invisible constitution, that is thegeneral principles of constitutionalism as well.20 Thus, in addition to the text itself, the actual


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meaning of the Constitution includes also the jurisprudence of the Constitutional Court. Inthis way, the Court represents an important check on the parliament's power monopoly.Admittedly, the parliament can amend the Constitution when the Court declares its actions or legislation unconstitutional. But even when that happens, itend p.419

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedemphasizes the importance of the Court's role in synchronizing state actions and the basiclaw.The Court's role in balancing the legislature's power is particularly apparent in how the Courthas influenced the application of rights. Wojciech Sadurski presents convincing arguments for rethinking the conventional wisdom that constitutional courts are the almost exclusiveguardians of basic rights,21 and he is right in questioning perspectives that overemphasize theadvantages of judicial review as opposed to majoritarian decision-making by parliament.22Although the Hungarian experience does not defy his conclusions, certain practicalconsiderations render the situation more complex. The Hungarian state is structured in such away that formally the president (who is elected by parliament) is not part of the executive power and the government, too, is responsible to the legislature. Therefore, according to thelogic of this system, the same political parties are behind all three institutions and legislationoften involves simply translating government activity into law. As a result, the Court is theonly institution which is left to review and criticize these policies.The work of the Constitutional Court proved to be especially important in defining and protecting its own interpretation of citizens' rights. The 1989 amendment rewrote the structureand particular provisions on human rights. Individual and political freedoms were given mostof the attention and careful safeguarding, while detailed guarantees for socio-economic rightsthat had existed under the communist regime were replaced by simple declarations, such as protecting the right to work, the right to equal and due compensation for work, and to other goods and values, in the amended text of the Constitution. Undeniable differences betweenthese positive rights and individual or political freedoms have led many experts to theconclusion that, despite the actual wording of the Constitution, economic, social, and culturalrights are better understood as tasks of the state without corresponding enforceable subjectiveclaims of the citizens. As a result, constitutional rights would vary depending on the level andmethods of enforceability.23 But there are also numerous advocates for attributing principallyend p.420

doi:10.1093/0199244081.003.0015

equal legal force in principle to all constitutional provisions, and therefore opting to excludeeconomic, social, and cultural rights from constitutions since they cannot be enforced properly by courts.24 This has been the policy of the Hungarian Constitutional Court, whichhas contributed to developing the legal character of institutions to promote the delivery of such rights. The Constitutional Court passed several rulings addressing the problem of theright to an income conforming with the quantity and quality of work performed. Decisionsusually rely on the connected constitutional provision requiring equal pay for equal work.However, there have been cases where even independent examination of due payment has been deliberated. For example, an initiative was filed to the Constitutional Court against

certain provisions of the 1996 Service Relations of Members of Armed Organs Act. The actitself determines a salary system for military and law enforcement officers. The policy is built


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upon a basic salary unit which is to be defined yearly depending on economic conditions, butthe legislature decided to introduce the new, naturally more advantageous, salary system onlyin 1999. This is clearly a case of violation of the constitutional provision on due payment,whereby a purely legal analysis can lead to a decision. Since there is no deadline for Constitutional Court proceedings, the initiative is one of those on the waiting list. Time seems

to be the factor solving the problem, though the Court has the power to decide on retroactiveforce for its rulings.Another notorious case involving socio-economic rights was the so-called Bokros Package,which was nothing more than a set of financial decisions dictated by the government. Nocomprehensive social policy discussions had taken place before the Cabinet passed thisresolution in March 1995. It was only after the Bokros Package was adopted (and after theminister of welfare resigned in protest at the austerity measures) that the ministers examinedthe problems of implementing the resolution. Wherever a law was found to contradict theBokros Package, the cabinet found ways to modify those laws in order to accommodate thenew welfare programme. Although their approach was most likely in line with economic principles, they acted in violation of fundamental principles of the rule of law. TheConstitutional Court gave a rather prompt response to the government's activity by repealingsubstantial provisions of the Package (43/1995 (VI. 30) AB hat). The Court acknowledged theright of the state to change social policies evenend p.421PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedif they negatively impact upon public welfare. But, according to the ruling, the state'sactivities were unconstitutional though the Court reasoned many points through the concept of legal security rather than citing concrete constitutional provisions.Andrs Saj published the deepest analytical criticism against the results of judicial review:The Hungarian Constitutional Court, in its early decisions, declared that its mission was torestore the rule of law. Ironically, it ended up propounding a concept of material justice, thesworn enemy of the formal rationality of the rule of law. Material justice will undermine themarket economy and limit freedom of contract.25 Without discussing the particular argumentsraised by Saj, I would like to point out that the activities of the state challenged by the Courtcannot be characterized simply as steps toward market economy. Indeed, it was thegovernment that overstepped its jurisdiction by distributing social benefits based on needs of recipients instead of citizens' equality. Therefore, although it is true that by going too far insearch of social goods the Constitutional Court can easily turn into a policymaking body, theCourt's application of the Constitution irrespective of its implications for social (or any other)ideology is the most effective means to curb misuse of state power. Thus the Court's action

reflects the necessity of maintaining a strong judicial body to counterbalance the powers oftenmisused by executive-operated legislation. On the other hand, there are certainly inherentdangers in authorizing a court tainted by an important accountability deficit26 to review sucha wide scale of decisions made by other branches, but in Hungary this is mitigated by the factthat any constitutional modification can overrule the findings of the Constitutional Court.Section 70/K of the Constitution stipulates that all public authority decisions that violate basicrights may be challenged before courts. This applies to classical freedoms and political rightsas well as to economic, social, and cultural rights. However, there are substantial problems inthe field of interpretation and implementation of the constitutional provision to which itrefers. Important cases remain outside the scope of judicial review because the legislaturefailed to pass appropriate procedural and competence regulations.

Following a decision of the Constitutional Court (32/1990 (XII. 12) AB hat), an amendmentto the Administrative Procedure Act


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end p.422PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reserved(Act No. IV of 1957 as amended) opened the way for the ordinary courts to reviewadministrative acts by a general clause. The Constitutional Court ruled that until specific laws

on the review of administrative decisions are passed, the Constitution must be implementeddirectly. However, the Court used the term resolution referring to the acts open to challengeinstead of decision of the relevant constitutional text. This distinction is important becausemeasures as opposed to formal decisions (resolutions) do not fall into the category of actsopen to judicial review by virtue of narrowing down the original scope of constitutional protection. At the same time, a great number of measures have an impact on very elementaryhuman rights including the right to life and human dignity. Police, for example, do not issueany formal document on deprivation of liberty for public security purposes. As aconsequence, these and many other interventions into rights of paramount importance may nottrigger any significant act of revision apart from the complaints procedure, leaving the wholecase within the police organization.The Constitutional Court itself has the power to deal with constitutional complaints on allegedviolations of constitutional rights (section 48 of the 1989 Act No. XXXII on theConstitutional Court). However, the decision to be reached has to focus on constitutionalconformity of the rules applied instead of the behaviour challenged. Thus, this remedy has asecondary importance taking into consideration that posterior constitutional examination of legal norms can be initiated by anybody without satisfying specific requirements (e.g.exhaustion of all other remedies) attached to constitutional complaint against individualviolations of rights. The leading principle of basic rights' protection in the HungarianConstitution is the provision of section 8, paragraph 2 reflecting and practically repeating thewords of the German Grundgesetz by stating that in the Republic of Hungary Acts of Parliament regulate fundamental rights and obligations, but even they must not impose anylimitations on the essential contents of fundamental rights. The Hungarian ConstitutionalCourt invoked this principal standard when abolishing the death penalty. Referring to section54, paragraph 1 of the Constitution, the Court ruled that the death penalty was not compatiblewith a legal system based on the outstanding importance of human life and dignity. The Courtreasoned in its decision on abolishment of capital punishment: Legal norms on deprivation of life and human dignity by death penalty do not only restrict the essential contents of fundamental rights to life and human dignity but they permit the total and irreparableend p.423PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reserved

destruction of life and human dignity, and thus the right guaranteeing them. Therefore theunconstitutionality of the said regulations is declared by the Court and they are repealed(23/1990 (X. 31) AB hat). It was underlined in the reasoning that human life and dignity wereinseparable and form together an integral basic right which is the source and precondition of numerous other rights. One could expect far-reaching consequences for the complete legalsystem by the extension of theratio decidendi to other pieces of legislation on activities of state organs involving possible use of lethal violence. Although the Court did not go intocomprehensive analyses of the issue as it relates to problems outside the scope of the death penalty, it is clear that any official killing is contrary to the constitutional right to life andhuman dignity. By declaring the unconstitutionality of the death penalty because of theobvious loss of the essential content of the right to life in case of killing by the representatives

of the state, the Court inevitably implied that all actions with a similar possible result were to


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governments with powers given mainly to municipal organs, but their relatively smallnumbers in parliament initially prevented them from influencing policy. But after liberal parties prevailed in the local elections, the legitimacy of end p.425their position increased and, in the end, a strong system of local self-government emerged

displaying a resolute counterbalance to central administration. The result was that localgovernments gained broad powers and independence in the field of economic activities. Theywere entitled to levy taxes according to acts of parliament, and to engage in any business notendangering their actual mission. Section 77, paragraph 1 of the 1990 Act (No. LXV) onLocal Governments declared: The local government offers public services. It disposes of itsown property, and manages its budgetary revenues and expenses independently. Nevertheless, since the adoption of the 1990 Act, a gradual but resolute recentralization process can been observed. Many powers granted to local bodies by the original act have notreally been transferred from central state control. One example is the responsibility for publicsecurity. The 1990 Act declared that municipal authorities were to provide for local publicsecurity. However, no efforts have been made to create a legal framework for local policing.The 1994 Police Act (No. XXXIV) confirmed that local authorities did not have thecompetence to maintain law enforcement agencies. The only powers granted to localgovernments by the Police Act were to offer opinions concerning the establishment,reorganization, or abolishment of police units in their territory, and ask for a review of the public security situation from the local chief of police. Enquiries into activities can also beinitiated by local governments but the final decision must be made by the appropriate policesuperior. Moreover, police are not obliged and furthermore do not have the right to enforcelocal statutes. According to section 97, paragraph 1, subparagraph a of the Police Act, localstatutes are not normative legal acts in terms of the act.Although centralization is often considered to run counter to the goal of democratization, theHungarian case shows that decentralization does not necessarily result in a more openadministration. Once example of this is the Constitutional Court's ruling to repeal certain provisions of the Local Government Act which had given local representative bodies thefreedom to order closed sessions if necessary. It turned out that a number of municipalitiesused this power to exclude publicity without proper justification. The Court ruled that: data processed by state organs or local governments which are not personal and which may not bedeclared confidential on the basis of statutory regulations are classified as accessible toeveryone. Only this way can the requirement that citizens be given access to all data of publicinterest be satisfied (32/1992 (V. 29) AB hat).end p.426PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com)

Copyright Oxford University Press, 2006. All Rights ReservedEfforts to Adopt a New ConstitutionThe 1989 amendment reflected the compromise made between communists and theopposition in order to initiate political and economic reforms. Although this agreementstipulated the temporary character of the amended Constitution, further constitutionaldevelopment proved slow-going. After the first free parliamentary elections, the governingcoalition showed little interest in constitution drafting.27 Following the 1994 elections,attention was again focused on the prospect of adopting a new constitution because thegoverning coalition that was forged between the Socialists and liberal Free Democratsenjoyed an absolute majority in parliament, with which it could conveniently introduce anyamendments to the Constitution it wished, or even adopt an entirely new constitution. Several

relatively insignificant constitutional amendments were introduced by the coalition, butquestions were continually raised by the opposition regarding the coalition's legitimacy to


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undertake constitution-drafting unilaterally. In response to political pressure, the coalitionultimately waived its right to modify further the Basic Law. This moratorium placed onconstitutional amendments was seen as a chivalrous act on the part of the ruling coalition as aconcession to smaller parliamentary parties that would otherwise be left out of theconstitution-making process.

In 1995 the Ministry of Justice produced a working paper which proposed three options for adopting a new constitution in an inclusive way in order to avoid a situation in which thegovernment coalition would become a constitutional dictator.28 Some of the measures proposed required more than one parliament to vote on constitutional amendments andinstituted the need to gain support for constitutional amendments through referenda. Thesesuggestions prompted parliament to pass an amendment to the Constitution in the summer of 1995, which increased the quorum required to adopt constitutional amendments from three-quarters of all members of parliament to four-fifths. Next, the parliament created aConstitutional Commission consisting of an equal number of representatives from each parliamentary party. In order approve a constitutional draft, support must be given by five parties (out of the six parliamentary parties) and two-thirds of the delegatesend p.427PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reservedof the twenty-five-member Commission.29 If no agreement is reached on a particular issue, the provision of the amended Constitution will remain. Finally, all the draft provisions must beapproved by a plenum of the parliament according to the general rule (two-thirds majority). Itwas a step towards true democratic maturity when the governing parties decided not to useand politically misuse their qualified majority for adopting a new constitution at will. At thesame time, restricting the membership of the Commission to parliamentary parties, instead of opening its doors to representatives of civil society organizations and national minorities for example, reveals the Hungarian state's tendency to favour party-dominated parliamentary rule.By April 1995 an agreement had been reached by the Commission on the guidelines for a newconstitution. All but one party approved the new set of guiding principles for adopting a newdemocratic Hungarian constitution. The document was published and the Commission allottedforty-five days for the public to make comments on the draft. About 1,000 remarks and proposals arrived at the Commission including those of experts and organizations who weredirectly requested to communicate their opinions. Of the comments received, the suggestionsthat were eventually included into the draft were determined on a party-interest basis. That is, proposals that further concentrated power in the parliament (for instance, by decreasing theinfluence of referenda and other forms of direct democracy) were incorporated into the draft,while other proposals were largely ignored. Parliamentary party preferences often seemed

petty and hypocritical of their past actions in the legislature. For instance, the highly publicized controversy surrounding presidential elections emerged only after consensus had been reached that the head of state should play a mainly representative role without real powers to interfere with parliamentary decisions, which makes the method of presidentialelections rather superfluous. Another contentious issue that arose was the proposal toreorganize the one-house parliament into two chambers. The upper house would includerepresentatives of civic organizations, religious leaders, and minority representatives, thus balancing the power of political parties in the political process. Advocates of the bicamerallegislature argued that the current representative system built exclusively on territorial and party interests was inadequately democratic and pointed to the low quality of legislation. Theend p.428

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introduction of an upper house, they contended, could serve as a check on the legislative process.30 Moreover, this option was supported by traditionalists, since an upper house existedin the pre-war regime.31 Nevertheless, the draft was not changed to accommodate thesedemands. At the last minute, the Socialist Party blocked constitutional preparation in June1996 by demanding that social rights and a declaration on social commitment of the state be

included in the constitutional draft. Although this demand might seem to correspond with theinterests of any socialist-leaning party, the Hungarian Socialist Party had endorsed economic policies of its own government which were not only criticized by the opposition for beingsocially indifferent, but were also declared unconstitutional by the Constitutional Court whichrepealed numerous provisions of the legislative package curbing social rights.On 27 June 1996 the plenary session voted on the draft guidelines. Two hundred and fifty-seven affirmative votes were needed to adopt the draft as a basis for future work. But, to thegreat surprise and dismay of many (even from within the Socialist Party32 ), a number of Socialist Party ministers and party leaders abstained from voting, which amounted to awholesale rejection of the draft. With only 252 votes supporting the coordinated proposal, theconstitution-drafting process was hamstrung. Although the guidelines were finally passed on21 December 1996 (Res. No. 119/1996 (XII. 21) OGY), growing disagreements over procedural and substantial issues mean that the hope that a new constitution will be adopted inHungary is fading again. The government lifted its self-imposed moratorium on constitutionalamendment when (after consulting with all the parliamentary parties and gaining their approval) several constitutional amendments were drafted in a bill in May 1997 (No. T/4300).With this decision, the Socialists and Free Democrats wilfully destroyed the fragile structureof constitution-drafting which included all parliamentary parties. None of the proposedamendments included in the bill was absolutely necessary for the functioning of the state. Butthe amendments reflected the inverse logic of Hungary's parliamentary regime, in which theConstitution is adapted to the needs of planned legislation instead of shaping the latter incompliance with the Basic Law. Theseend p.429PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com) Copyright Oxford University Press, 2006. All Rights Reserveddevelopments also confirm the conclusion prevailing among constitutional lawyers inHungary that constitution-making is ruled by a small monopoly of political elites.33 ConclusionThe real chances for success in adopting a brand new Constitution seem to be very weak. Thisis not a tragedy with regard to the commonly confessed philosophy of constitution-drafting:indeed, there is no emergency requiring a new constitution in Hungary since the amendedConstitution does in fact satisfy the needs for democracy. But emphasizing the positive

achievements of the Constitution in force does not exclude, of course, criticism concerningcertain provisions and proposing some significant changes within the institutions of public power. Although some of these problems could be solved through Constitutional Courtrulings, others are far more problematic. For instance, the current arrangement of representation does not necessarily satisfy the needs of society as a whole. Political parties proved to be unable to integrate, or even to convey and express, legitimate interests of non- partisan organizations, movements, and groups. The poor quality of legislation is just asymptom of this underlying problem. This seems to demonstrate that Hungarian constitutionalhistory resembles the classical constitutional principle of rejecting monopolistic power even if exercised by an elected body. Parliament has to play a major role in democratictransformation but it should do so only embedded in a wider range of constitutional

institutions ensuring a high degree of responsibility toward a variety of interests worth takinginto consideration during debates on issues of paramount importance for the whole society.


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Any other endeavour in the field of institutional engineering would continue the erosion of constitutional values. Thus, although the very existence of the Constitution and its particular wording has contributed to democratic consolidation, this document has not reached the levelof importance it should have. This article has shown that this is not a problem within the textof the Constitution, but rather a problem of its political environment.

end p.430

Hungary Constitution.

Documents

Transcript of Hungary Constitution.