NOVEMBER 12, 2014 BY BENJAMIN NOVAK
BUDAPEST BEACON: What we have is a system in which Hungary has the appearance of constitutionalism, democracy, and rule of law, but no reality of constitutionalism, democracy, and rule of law. This is a constitution that can be changed at will by this two-thirds parliamentary majority that was engineered in an election that the OSCE said was not fair. … Every time a law becomes inconvenient, the government changes it overnight. The point of law is to stabilize and regularize the expectation of governance. If the government can change any law it finds inconvenient with its instant parliamentary majority without any debate in the parliament, this is no longer a rule of law system. … The EU and the US are switching into high gear. I think they were waiting for the election and hoping Hungarians could take matters into their own hands and actually show that they can change their government. But once that was over and the OSCE said the election was not fair, now I think the international committee realizes they are dealing with a government that is simply showing on the surface that it is constitutional, democratic, and a government committed to the rule of law. In fact, it is no longer any of those things. – Dr. Kim Lane Scheppele, Director, Program in Law and Public Affairs, Princeton
Princeton University professor Kim Lane Scheppele trained as a sociologist and in law. She started her career teaching at the University of Michigan in the department of political science. The fall of the Berlin Wall inspired her to travel in Eastern Europe where she “discovered” Hungary.
“From the first day I got there I thought this is home,” says the expert in comparative constitutional law, despite having no personal connections to the country and knowing nothing about its language or culture.
Discovering the Hungarian Constitutional Court “was probably the most powerful court in the world” she moved to Budapest in 1994. Falling in love with the country, she ended up spending four years in Hungary studying constitutional law and its Constitutional Court.
Returning to the United States in 1998 to teach international law at the University of Pennsylvania, Scheppele went on to write numerous articles about Hungary and Hungarian constitutional law. “When the new government came to power in 2010 and started changing the constitution, I took it rather personally,” says Scheppele, “because that had been my academic specialization.”
Budapest Beacon senior correspondent Benjamin Novak interviewed Dr. Scheppele at Princeton University in October 2014.
How much has the Hungarian constitution changed since your visit in the 1990s?
In 1989 the old Soviet constitution was amended to add some checks and balances, particularly the Constitutional Court, which was the primary check on a unicameral parliamentary government. And then the changes in 2011, when the government unveiled its new constitution, basically brought it back to the constitution that existed before 1989. They removed the checks on the system that had existed before, which meant going back to a constitution very much like the Soviet constitution.
Why does this matter? Why is this an issue that you in America have to write about?
I write about it not just as an American but as somebody who came to care very deeply about Hungary, and about democracy, the rule of law and constitutionalism.
Hungary always looked like the precocious child of 1989. Hungary was way ahead of its neighbors. Hungary developed a constitutional law that people around the world would teach. It wasn’t just a Hungarian matter. And when the government that came to power in 2010 started dismantling that structure it became very important. You may recall that in the spring of 2013 the government introduced a constitutional amendment that nullified the jurisprudence of the Constitutional Court from 1990 right until 2012. That is the constitutional law that people all over the world are teaching as state of the art, admirable, “ahead of its time” constitutional law.
Is it proper to refer to this as an amendment?
The constitution that Fidesz brought in was passed in April 2011 and took effect in January 2012. And almost immediately they start changing it. Usually when a constitution is written, it stays put for a little while before it starts being amended. But they brought in an omnibus amendment almost immediately under the guise of “transitional provisions” to the constitution–what I called at the time a “toxic waste dump of bad ideas.” Between the time they passed the constitution and the time it took effect, there were lots of glitches that they discovered already. They just fixed them all in this omnibus amendment that they then brought in more or less at the same time as the constitution. The Constitutional Court (before it was packed) got to review this before it was passed, and it said you cannot amend the constitution by purporting to add “transitional provisions” to the constitution, because these provisions were not transitional.
Then the government reenacted all of that as a constitutional amendment. And then they had a few other amendments. And by the spring of 2013, only a little over a year after the constitution came into effect, they enacted a fourth amendment that was about half as long as the constitution itself! And it changed many important structural features. It was formally an amendment, but it came so close in time to the constitution itself that you wonder whether it wasn’t all part of the same package.
The constitution as it was drafted was intended, I think, to be a kind of window on Hungary for the world. I think the government was resisting putting into that constitution some of the more dreadful things that it introduced in that transitional amendment, and then in the fourth amendment. Because everybody assumed, I think, that the world would stop paying attention once the constitution went into effect. So you save all the bad stuff and you dump it in later. Those two amendments included many of the things the Venice Commission, the European Parliament and critics like me have attacked.
What are the dangers to the kind of legislative inconsistency that is happening in Hungary right now?
What’s remarkable about the Fidesz legislative program is that it was clearly imagined as a coherent whole. They came to power. They amended the old constitution quite a few times in order to disable all of the institutions that would check what they were going to do next. They changed 800 laws in their first four years in power. It was inconsistent while they were changing all these pieces. But what’s dramatic and exceptional and a sign of the fact that they thought about it all as a program is that these various pieces, once they had them in place, actually fit together very well. So they are not incoherent among themselves. They are just inconsistent with what any of the governments since 1989 had stood for, including the first Fidesz government (1998-2002) and including the conservative government that came to power in 1990. So this is a radical break from the post-communist constitutional conception. But it is a coherent package.
So it’s not taking into account precedent that had been set before?
The point of bringing in the new constitution was to make a sharp break with the prior constitutional system. The Fidesz government would often say it is just making minor changes and this is the anti-communist constitution, when actually it shares much more in common with the 1949 constitution than with the 1989 constitution. Many clauses of the constitution remain the same but they were gutted. If you look at the bill of rights it is almost the same in the 1989 constitution as it is in the 2011 constitution. But once they nullified the jurisprudence of the Constitutional Court, which gave all those rights meaning, nobody has any idea what the new ones mean. It is a document that was designed to purge the communist past, which it didn’t do. In fact, it brought back many aspects of that communist past. It was a document that was designed to look to Europe in particular like nothing had been affected about the way rights are protected in the new order, and yet everything was gutted. The surface remains the same. Underneath it has completely changed.
What are the dangers a country faces when undergoing such changes? These sound pretty drastic.
They’re very drastic, actually. The main thing is that you cannot really have a democracy or a constitutional government without having checks on power. And there have to be two kinds of checks:
One is that an elected government, even when elected with a plurality or a majority, cannot do whatever it wants. It has to pay attention to the opposition. It has to pay attention to minorities in politics. And it has to pay attention to the rights of the citizens. So there have to be checks even on a majority government.
The second kind of check on power is that people in a democracy have to be able to throw out a government they no longer like. Many of the adjustments that were made to the constitutional system make it almost impossible for majorities of the Hungarian public to throw out the government that they have.
To what extent was there a social consultation in crafting the constitution of 2011? To what extent were opposition parties involved in this process?
Usually when you draft a constitution it is meant to be a moment when you set politics aside and you think across the whole society. That did not happen here. First, when Fidesz was running in 2010 they said nothing in their campaign platform about promising a new constitution. So when people voted for Fidesz they had no idea that they were going to get a new constitution. In fact, there wasn’t very much dissatisfaction with the old constitution. There were no pressing proposals for change. There was no big social debate that something was wrong with the prior constitution. So when Fidesz came in saying we are going to draft a new constitution, that was not something that had electoral support. That kind of social consultation was never present.
The second thing is that, when they decided to have a new constitutional drafting system, they put together a parliamentary committee that had members of the opposition and members of the government. And that committee came out with a series of principles that the constitution should follow. The opposition walked out of that committee because they saw that none of their proposals were ever accepted. But still it was an effort to get the opposition and Fidesz parties in the same room.
The same day they came out with a set of principles, the parliament passed a proposal that said one week from now any parliamentary fraction can bring in a proposal for a new constitution without paying any attention to these principles. So the whole thing that was public, which looked cross-partisan, was all window dressing, because as soon as the proposals were out, the Fidesz parliamentary majority in the parliament said that the new drafts do not have take the principles into account. And that was the last we heard of those constitutional principles.
One week later, there is a full draft of the constitution on the table brought in as a private member’s bill, which is to say not as a party bill but by individual members of parliament who never claimed to have drafted it. The text just appears out of thin air in their name with no consultation. The opposition saw it for the first time when everybody else saw it–when it was unveiled in the parliament!
There was then allegedly a debate in the parliament. A number of days were set aside for amendments and debate. There was almost nothing the opposition said that even made it to the floor for debate, or was even voted on. And no substantial proposals were accepted in this draft. So it kind of went through from start to finish as “Fidesz, Fidesz, Fidesz.”
Then the government decided it would engage in something called a “social consultation” in order to gauge the opinion of the Hungarian public about the constitution. They sent out a social consultation questionnaire to all voters in Hungary. But they sent the questionnaire out just before the draft was unveiled. So it purported to ask what should be in the draft. The questionnaires go out. A couple of weeks later the draft is unveiled. The questionnaires aren’t back yet. The answers to those questions could not have been used in the draft. And since the draft didn’t actually change on the floor of the parliament as the questionnaires were coming in, they couldn’t really be used to modify anything.
The government never made the results of that social consultation public. They said that about 800,000 Hungarians had sent the questionnaire back. But we have no idea what they thought.
To make matters worse, there were two other problems. One was that the social consultation asked almost nothing that was of substantial importance in the constitutional design. They asked questions like “Do you think that members of parliament should be fined for not showing for their jobs?” That could be an interesting problem if you have massive absenteeism in the parliament but this is not a constitutional level question.
What is a constitutional level question?
“Should we change the system of judicial review of parliamentary statutes?”, which is what they did. It used to be that anybody could go to the Constitutional Court and say “this law is unconstitutional.” They took away the right of every Hungarian to challenge any law. That’s a huge change. That was the major check on power that existed in the old system. And they didn’t ask about that.
They also didn’t ask whether a two-thirds majority should be able to change anything, including the constitution. That should have been asked.
By the way, that two-thirds law, which Fidesz has depended on to cement its power, that appeared for the first time in the constitution of 1949. That’s a communist provision. That was one of the provisions that was not changed in 1989. That’s one of the few things they kept. That’s what I mean by saying the new constitution bears all these stamps and marks of the 1949 constitution. The two-thirds majority was a communist invention
What does this mean for Hungary in the long run to operate in a legal environment like this?
Hungary has the appearance of a constitution. It has the appearance of democracy. And it has the appearance of the rule of law. But these are now only appearances. Democracy is messy. Constitutions aren’t perfect. Rule of law works more or less. So it’s not like Hungary was ideal before. And Hungary did have a lot of problems that Fidesz promised to fix. That’s why they were elected. And they have tried to fix some of those problems. But now what we have is a system in which Hungary has the appearance of constitutionalism, democracy and rule of law, but no reality of constitutionalism, democracy and rule of law. This is a constitution that can be changed at will by this two-thirds parliamentary majority that was engineered in an election that the OSCE said was not fair. But they got their two-thirds majority.
Is it a democracy? The democratic opposition did a fair amount to destroy its own chances in the election. On the other hand only about a third of all Hungarians voted for Fidesz because the opposition was divided between left and right, and because so many people didn’t vote. This is not a government that has majority support. Frankly, given the way they designed the electoral law, designed the electoral districts, denying an easy right to vote to emigrés living abroad, while making it really easy for the new Hungarian citizens living in the neighboring states to vote, that was an election really engineered to produce this result. It does not reflect the will of a majority of Hungarians.
As for rule of law, what we’ve now seen is that every time a law becomes inconvenient, the government changes it overnight. The point of law is to stabilize and regularize the expectation of governance. If the government can change any law it finds inconvenient with its instant parliamentary majority, no debate in the parliament, this is no longer a rule of law system.
Laws that change aren’t necessarily bad. They just reflect changing social norms.
Normal laws change. Normal countries, however, don’t change 800 laws in four years. We now have a system in Hungary where the judges have no idea what the law is. They didn’t engage in retraining any of the judges. I have friends who are teaching constitutional law in a number of different Hungarian universities who would say “every morning when I was going to teach my students I had to wake up and read the newspaper to find out what constitutional law was that day.”
Fidesz is existing in a kind of permanent revolution where any legal obstruction that gets in their way will be immediately removed legally. Somebody will come up and introduce some law, it will pass. Suddenly, everything is fixed. This is not a system where anybody can count on law.
How does this affect Hungary’s relationship with its allies?
Hungary is a member of a lot of clubs that it could only join after it became a constitutional, democratic, rule of law state. So all the clubs Hungary is a member of are reconsidering whether Hungary should be a member. The comment that the acting chief of mission Mr. Goodfriend made the other day about Hungary potentially not even being an ally of the United States, those are really strong words. I think that when you look at the sum total of actions the United States has engaged in over the last month or so, you realize that the US government is trying everything within its powers to challenge Hungary on exactly these points, and to warn it that it is coming very close to falling out of the club of constitutional, democratic states.
The European Union has been a little bit on vacation since about the time of the Hungarian elections. The new commission is not on board. Nobody has been home in Brussels for a while. My guess is that once the new commission actually comes back, once the European Parliament gets its new committee structure sorted out, I think we are going to see some very strong actions taken against Hungary. Already some of the commissioners have indicated in their interviews as they were being vetted for their jobs at the commission, that article 7, which is the part of the treaty of the European Union that allows the harshest sanctions against member states, that maybe now is the time to consider that. People are saying that perhaps Article 7 is no longer the “nuclear weapon” it was called before, which means that now you can think about using it. The commission put in place a whole rule of law program back in the spring that would enable them to start moving towards the invocation of Article 7. So I think we are really entering a moment now when the EU and the US are switching into high gear. I think they were waiting for the election and hoping Hungarians could take matters into their own hands and actually show that they can change their government. But once that was over and the OSCE said the election was not fair, now I think the international committee realizes they are dealing with a government that is simply showing on the surface that it is constitutional, democratic and a government committed to the rule of law. In fact, it is no longer any of those things.
