“Constitutional renewal must be done by Hungarians for Hungarians”

Conversation between Kim Lane Scheppele, Princeton University and Gábor Halmai, ELTE Budapest and Princeton University. Part 2.

Let’s start our tour through more than two decades with the assessment of the Hungarian type of constitution-making.The negotiations between the MSZMP and the members of the Opposition Round Table in 1989 ended up with a comprehensive amendment by the illegitimate Parliament to the 1949 Constitution, keeping its title, and only promising a new constitution. This caused a legitimacy deficit, which has been amplified by the fact that the efforts to enact a new constitution failed in 1996, when the governing coalition of MSZP and SZDSZ had a 2/3rds majority. Both Bruce Ackerman and Andrew Arato wrote about a missed opportunity to close the post-sovereign constitution-making process with this second step, as the South Africans did. Do you also see this as an important but missed opportunity, and would you think that with a new constitution adopted back then, the situation might be less serious now?

It is always hard to know what would have happened if history took different turns.  But I don’t believe that a “better” constitution enacted before 2010 would have prevented what has happened since the Fidesz government came to power.    The 1989-1990 constitution was working. It was not perfect and it may have been written under less-than-ideal circumstances, but it had guided the development of a democratic state for more than 20 years.The Constitutional Court had filled in some of the missing pieces that were not written into the constitution when it was first drafted.  The key institutions created by the 1989-1990 constitution had become taken-for-granted by most of the population. The constitution developed legitimacy because it had become a real and living framework for government. That is a constitutional success story and there was in fact no constitutional crisis.

While there was much wrong with the country in 2010 when FIdesz won the election, the problem was not with the existing constitution. The problems with the country (corruption, social inequality, a dependence of many private institutions on state support, a polarized and cynical political elite, a tax-evading and system-gaming population) could have been fixed within the prior constitutional structure, which set up a system of constrained and accountable state power. When the Fidesz government took office in 2010 and wanted more power than the constitution gave it, Fidesz attacked the old constitution. In my view, the fact that a constitution does not give a government all the power it wants is not a sign of a failed constitution, but a successful one.  But no constitution, no matter how successful, can withstand a direct attack launched by a supermajority like the one that came to power in 2010. Yes, people wanted change in the 2010 election but it is not at all clear that the public signed up for what it got. A new constitution in 1996 would not have changed this unless it gave a new government nearly unlimited power, which it would not have done.

Yes, but wouldn’t it be harder for Fidesz to make these constitutional changes, if the original election system hadn’t been that disproportionate, and if the 1989-1990 constitutional system had been entrenched with a stricter amendment rule?

Yes, those are precisely the two features that should have been changed in the 1990s. But the disproportionate election rules were not in the constitution itself; they could have been changed without requiring a complete constitutional overhaul. And a stricter amendment rule had already been introduced into the constitution with the amendment in 1995 that required a 4/5ths vote of the parliament to begin a new constitutional process. As a result, the new Basic Law introduced by Fidesz should have been governed by a 4/5ths vote.  But they ignored the constraint by using the ordinary amendment rule to change the more heavily entrenched rule about writing a new constitution. So we can see that the Fidesz government would not have been stopped by a constitution that constrained it. In fact, the constitution that Fidesz inherited already prevented it from doing what it did. This is why I don’t believe that a perfect process in 1995-1996 would have mattered much, except insofar as it might have changed the electoral rules and therefore strengthened the diverse party system to prevent such a large one-party victory in the 2010 election. But that is all speculation.

How do you evaluate the seriousness and stability of consensus behind the 1989-1990 constitutional changes among the conservatives (MDF) and liberals (SzDSz)? The liberals accused the Antall government of being authoritarian, while the government argued that SZDSZ, by supporting the taxi-drivers’ blockade after the first democratic elections, deviated from the road of constitutionalism, and then built an unnecessary coalition government with the former communists after the second election, betraying the transition.

Politics has been exceptionally polarized ever since the changes of 1989 and there has always been robust political debate. But disagreement over policy issues does not mean that there is a constitutional crisis. The constitution of 1989 was reaffirmed repeatedly by different coalitions of political parties over its first 20 years.   Until the Fidesz government came to power, there was never a government that attempted to subvert it. And there was never a political consensus to change it. The constitution was working.

 At the Roundtable, the communists and key opposition parties agreed on the new text. The one area of persistent disagreement, whether the president should be elected by the public or by the parliament, was resolved by a popular referendum. In 1990, after the first multiparty election, the leading party of the governing coalition and the leading party of the political opposition agreed on some important constitutional changes.  In 1995-1996, the constitutional drafting process initiated by the Horn government failed, largely because there was no consensus on what should be changed.

The current government says that the 1989 constitutional amendment was not legitimate, and that is why a new constitution was necessary.   

Actually, many thousands of Hungarians went to the Constitutional Court over 20 years to enforce the new constitution through actio popularis petitions, which they would not have done if they thought the constitution and the Constitutional Court were illegitimate.

In 2010, there was no public demand for a new constitution, and in fact Fidesz did not campaign with the promise that it would write a new one. Twenty years of experience under the 1989-90 constitution created a stable, constitutional system that was largely taken for granted both at home and abroad.

Many constitutions are born in less than ideal circumstances, as was true in 1989.   Constitutions become legitimate when they come to be the agreed-upon framework within which politics should be conducted. That had happened in Hungary.

What do you think about the role of the mild transitional justice measures that were chosen by the legislature and the reactions of the Constitutional Court to them in the failed reconciliation between Right and Left of the political spectrum in the early 1990s? Could a harsher approach to retroactive justice, compensation, lustration and access to the files of the previous regime have been more helpful?

Different countries emerging from Soviet rule from 1989-1991 took different paths on the retroactive justice issue.  Hungary initiated a very principled course of action, which we have called in the title of one of our joint articles “living well is the best revenge.”    The best tribute to the fact that the country had changed entirely in 1989-90 was for the new state to avoid acting like the old one – no more political show trials, no more extreme measures taken against political opponents and no more political retribution to settle old scores.   Instead, Hungary chose to create and honor rights for all, including for those who had never accorded respect for rights to others. The Constitutional Court led the way in this – refusing to permit the extension of the statute of limitations for crimes committed in the Soviet period that were not prosecuted for political reasons and ruling that even spies had privacy rights in the new system. Perhaps that required a country of angels to appreciate. Many people clearly wanted to use their new democratic power for revenge after 1989.   But I am confident that history will judge Hungary’s more principled approach well.

That said, the current Fidesz government is whipping up anti-communist sentiment as one of its key emotional appeals. Perhaps the government could not have done this if the communists had been dealt with differently in the transition. But that is not an argument against what Hungary did at the time. If FIdesz is serious about exposing the evils of communism now, it could start with opening the secret police files.   But Fidesz MPs blocked the law that would have done so. In addition, Fidesz could give more publicity to the historical record of what happened during the communist period.   But a Fidesz proposal will make records from the Institute of Political History inaccessible even to scholars. It is hard to take Fidesz’s anti-communism seriously when it has done so much to hide the files that would have been able to set the historical record straight.

Robert Post argues that without the “democratic ownership” of the people, in other words without the tradition of democratic culture, even perfect democratic institutions can fail. According to comparative value surveys, the Hungarian people are closer to the orthodox cultures of Russia, Bulgaria or Moldova than to the secular constitutionalism of Western Europe.  Also Péter Nádas argues in a recent study that in the last twenty years a third modernization failed, leaving the society still divided between the values of the Kádár era and the values of the Horthy era.  It seems to me that constitutional and democratic backsliding had no effect on the popularity of the Fidesz government, and that the „constitutional culture” László Sólyom is talking about does not exist, not even in wider circles of the intelligentsia and the political elite.

Of course a democratic culture is necessary for a constitutional democracy to survive.  No regime lasts long unless people believe in its basic premises.  I have watched the Hungarian survey results with some dismay and worry a great deal about Hungarian political culture.

But I also want to resist blaming the Hungarian people for democratic backsliding.    In any democratic country worth that designation, the political elites must take a leadership role in defending and promoting democratic values. And the political parties in Hungary, across the board, have not taken this responsibility seriously. It is hard for a public to be more committed to democracy and constitutionalism than its leaders have been.

None of the political parties in Hungary has been successful in generating internal democratic renewal of its own party. Fidesz has the same leadership it had since its founding.  Other parties – MDF, SzDSz, the Smallholders – did not outlast their founding generations. The Socialists have had some turnover in leadership, but not because it really had an internal program of democratic and multi-generational renewal in place.   The party system is broken in Hungary because the first generation of democratic leaders did not train their successors to create the democratic parties that could lead a democratic nation.

Also, the powerful Constitutional Court may have been partly responsible as well.   In a country where people could wait until the Parliament did something awful and then write a letter to the Court to overturn it, political engagement could be minimized. As long as the Court was always there to fix mistakes, it may have also taken some democratic responsibility off the shoulders of the political elites who could act without consequence.

Having read many thousands of petitions to the Constitutional Court in the 1990s, however, I refuse to believe that the Hungarian public is anti-democratic and doesn’t care about constitutional values. But I also believe that Hungary has not gotten the political leadership it deserves, which has led to a certain popular cynicism about politics.  And that is dangerous, too.

What is the way back from this situation to a constitutional democracy? How can the current constitutional order be changed if the next non-Fidesz government won’t have the 2/3 majority? Are there compromises on the Basic Law with the Fidesz possible and feasible?  Do you see any possibility that the Constitutional Court or other constitutional institutions can successfully resist the government pressure on constitutional matters?

I have been speaking out as forcefully as I have because the new constitutional order slams all of the doors shut to formal constitutional renewal and bolts them against change. It will not be easy to get out of this dangerous new constitutional order with less than a 2/3rds majority of a future government. And that assumes that Fidesz won’t suddenly use its 2/3rds vote to change the amendment rule to make the constitution even harder to amend than it has been.

What can be done?   

 First, nothing can be done without new and “clean” political actors coming onto the stage to lead a political movement back to democratic and constitutional values.   If such an opposition party or coalition could be elected, it could start a truly participatory and legitimate constitutional drafting process to bring Hungary back to a stable and democratically justified constitutional order. Some current members of Fidesz might well be part of that new coalition, but it is hard to imagine that happening unless Fidesz can produce supporters of true multi-party politics.

A new party or grand coalition could pledge in the next election cycle to not use all of the power that the new constitution gives it. Nothing in the constitutional order requires a new government to be abusive in the exercise of its power. An electoral coalition could run on a platform of constitutional self-limitation and could govern responsibly even under this new constitution until it can be changed.

Political renewal will have to be done by Hungarians, for Hungarians. And it will take steady and principled leadership to organize such a program. More than at any point since the loosening of Soviet control, Hungary needs brave and selfless leaders to restore a constitutional and democratic state.

Of course, the Constitutional Court could lead by example – pruning the new order of its most abusive features. But we have not seen many signs yet that the Court in its present diminished state has the capacity to do this.  That makes me think that organized democratic politics is the only way forward to a new constitutional order.

What role can foreign actors, like the European Union, the Council of Europe and the US, play to push the Hungarian government toward constitutional and democratic reform, without driving the country back into an even deeper nationalism? Even though the Venice Commission as an expert advisory body to the Council of Europe criticized the Basic Law and the different cardinal laws, the European Parliament seems to be divided about what action should follow from this evaluation. The European Commission, which had been critical, eventually gave a green light to the negotiations with the IMF without achieving the reform it sought, not willing to let another member states’ economy collapse. The criticism coming from the American government is undermined by its exceptionalist constitutional approach as well as its compromise of civil liberties at home in the ongoing promotion of a “global war on terror” that you also criticized in many of your writings.

Hungary voluntarily joined the European Union by taking on its principled commitments through a long accession process. But the EU has limited tools for bringing constitutional democracy to Hungary after accession.  The US has even fewer tools for encouraging the Hungarian government to return to the constitutional and democratic path. But as I have said, constitutional renewal must be done by Hungarians for Hungarians. Outsiders cannot drive this process, not least because no country – certainly not my own – has all the answers.  Most crucially, however, real democracy cannot be imposed by those who don’t live under its jurisdiction.

That said, outsiders can help by keeping the international spotlight on the Hungarian government so that it will be less likely to abuse its power.  Outsiders can also assist in articulating the internationally recognized values to which a new Hungarian constitutional order can aspire. Those of us who criticize the new constitutional order from the outside have an obligation not to use double standards.  In my work and in my teaching, I have been relentless in criticizing both my own government and others when they have slipped from the constitutional rule-of-law path. My criticism of Hungary should be understood against that background.  Hungary has fallen very far and very fast off the road of constitutional democracies and that is why its friends abroad are sounding the alarm.

Some of the fragilities of the Hungarian constitutional regime seem to be inherent to all parliamentary systems, and you also said that power is by definition concentrated where it is the same power that dominates both political branches. This is reinforced by the fact that Hungary is a non-federal, unitary state, without genuine autonomy on the sub-national level. All this is underlines the importance of building checks and balances in the system. How do you think the old constitutional design performed in this sense, and what improvements could you envisage, if any, for framers of a future constitution that could limit the government, accepting that the constitutional culture will not considerably improve by that time?

The “old” Hungarian constitution – the one that existed between 1989 and 2011 – had many creative checks and balances despite setting up a unicameral parliamentary state in which executive and legislative powers are fused. The Constitutional Court was very powerful, almost an upper chamber of the Parliament. The judiciary, which was slow to reform after 1989, eventually established a reputation for political independence. The “accountability institutions” – the ombuds system, the state audit office, the electoral commission – had developed reputations for professionalism and non-partisanship.   Local governments had important complementary powers to the national government and their elections were on a different cycle, which maximized their independence from the center.

In addition, national governments before the current one had repeatedly set fundamental change of the system outside their reach.  The first elected MDF government agreed on the self-limiting “Paktum” with the largest opposition party even though it could have governed without that constraint.  The first 2/3rds government from 1994-1998 amended the constitution to require a 4/5ths vote for starting a process of fundamental constitutional change. Through self-limiting mechanisms like these, the Hungarian constitutional order became a proper constitutional system.

The only additions I would suggest to the old system would be to make explicit what were informal norms. All checking institutions, like the media board and electoral commission should have guarantees of multiparty representation.    All accountability institutions should be staffed by people without party affiliations and with strong records of independent expertise. Those features had been taken-for-granted until suddenly they were not.These requirements of independence and multi-party representation should be entrenched in a new constitution.

That said, I don’t see a way to improve the constitution without improving the constitutional culture, because it takes constitutional democrats to maintain a constitutional democratic system.  But I take this to be more a problem of leadership than a problem of mass discontent with democratic governance.   What Hungary badly needs are visionary leaders who put country above party and who believe that elites cannot govern without respecting and encouraging democratic publics. And the country could do much worse than to readopt its 1989-90 constitution and to start the improvements from that point.

Hungary has spent way too much of its history under the governance of foreign powers and without the ability to create a fully democratic state of its own. It is therefore very sad to see the post-1989 democratic experiment cut short by a constitution that centralizes power and entrenches the current governing party in a way that endangers democracy itself. Once Hungarians realize what has happened in this blizzard of legislation that has passed in the last two years, I can’t believe that they would really approve it. I still have faith in Hungarians to find their way back to a constitutional and democratic path again.

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