Debates Surrounding the Concepts of the New Constitution

Rather, I consider it important to give an informed response to these attacks, which are – though shrewdly presented in the guise of expert opinion and therefore all too persuasive to the layman – in fact, misleading and full of distortions. With this goal in mind, I will not pause to analyze the significance of the new Constitution or the concepts underlying it, nor will I offer an assessment of its forward-thinking elements. Nor for that matter will I address the genuinely constructive critical observations that have been made with the intention of contributing to the process and may well merit consideration. Rather, I will respond one by one to the critical assaults that are simply without foundation, citing as I do the vitriolic rhetoric in which they have been phrased.

1. A smaller Constitution amounts to the elimination of constitutional guarantees and serves to render the constitution effectively devoid of substance, leaving individual questions of constitutional law unresolved.

The goal of the smaller Constitution is the elevation and concise definition of the most important constitutional rights and their enshrinement as fundamental statute, distinct from other laws and questions of detail that do not fall within the specific scope of the constitution itself. This is essential in the interests of maintaining respect for the Constitution and avoiding the later adoption of numerous amendments, a practice which erodes the authority of any constitution. Specific questions of detail that are significant as guarantees of constitutional rights would be subsumed in the cardinal laws passed by a two-thirds majority, thus constitutional guarantees would still be given appropriate protection. In fact, the structure of the current constitutional framework is similar in this regard. One need merely consider the existing relationship between the Constitution and the fundamental laws passed by a two-thirds majority. Only the proportions would change, with an increase in the role of the latter. It is true that, in comparison with the situation at present, more questions of public law would be decided on the basis of these fundamental laws, but this does not amount to leaving questions of constitutional law unresolved. Rather it is an essential concomitant of the attentive and conscientious development of a precise system of constitutional governance.

2. The basic conception of the new Constitution neglects the most important requisites of constitutional governance: the division of powers and the guarantee of fundamental rights.

This contention is groundless. The conception underlying the new Constitution makes specific mention of fundamental constitutional values, and these values and the guarantees they provide can be found in, or rather are mirrored in, the basic principles proposed for approval. Explicit reference is made to the principle of the division of powers (in the current constitution this remains implicit), government based on constitutional rights, democracy, and the inviolate and inalienable liberty and rights of the individual, which the state is obliged to respect and defend. At the moment the vast majority of the guarantees of basic rights are contained in laws that lie outside the scope of the constitution itself. The new Constitution will safeguard all of the basic rights protected under the present constitution.

3. The new Constitution (and the planned preamble) proclaims the triumph of the Christian-national conservative ideology and abrogates the principle of multiculturalism currently embodied in public law. The reference to the Crown of Saint Stephen constitutes the assertion of a notion of statehood and law based on an outdated nationalist and aristocratic ideal fundamentally irreconcilable with modern governance.

This contention is also groundless. It represents little more than one component of the cultural war launched by socialist and ultra-liberal political forces following their defeat in the 2010 parliamentary elections. The planned preamble will make measured reference to national and historical values while emphasizing the demands and obligations of modern constitutional governance and the importance of the principles of liberty (historically associated with liberalism) and social solidarity (both Christian-democratic and social-democratic). The proposal refrains from offering any detailed discussion of history, and the reference to the Crown of Saint Stephen will remain within the framework of constitutional precepts that indeed can be regarded as having been accepted. I cite the text of the proposal: “The Holy Crown is an expression of Hungarian statehood and its constitutional continuity.” It is worth mentioning that the socialist-liberal concept for a Constitution put forward by a 72 percent Socialist Party majority under Prime Minister Gyula Horn (1994-98) also made reference to the Holy Crown. Why has the Socialist Party changed its standpoint in the intervening years?

4. The stipulation of the underlying conception of the new Constitution according to which “basic rights entail obligations and responsibilities” is a return to the former Communist notion of rights, according to which one of the preconditions of the protection of basic rights is the fulfilment of obligations (a notion the modern conception of constitutional law rejects).

This contention rests on a misconstruction. The conception on which the new Constitution is based does not make the exercise of any basic right dependent on the fulfilment of any obligation. Thus for instance it does not make it possible for the government to deprive people of their citizenship because of a failure to meet their obligations as tax-payers. The declaration of the moral and legal precept according to which rights entail obligations and responsibilities is an entirely different question. One could cite several examples from the laws currently in effect. Citizens are obligated, for instance, to accept responsibility for national service and defence. The right to a clean environment can only be ensured if everyone is obliged to protect the natural surroundings. The right to private property and enterprise is inseparable from the obligation to share in the burdens of taxation (taxation can be seen as a limitation on proprietary rights, which rest on the right to private ownership). Freedom of speech and freedom of the press both entail responsibilities, and one could list further examples.

5. The conception underlying the new Constitution offers an overly broad scope for the restriction of basic rights, and in particular any reference to “morals” as a justification for such restrictions is unacceptable.

Those who criticize the new constitution on the basis of this allegation have forgotten about the Convention (adopted not only by Hungary but by almost all of the countries of Europe) on the defence of human rights and freedoms signed in Rome on 4 November, 1950 and promulgated in 1993 in Law XXXI. The conception underlying the new Constitution essentially makes use of the solution in the Convention, preserving the rule of necessity and proportion as stipulated by the Constitutional Court while at the same time maintaining the relevant passage from the Constitution currently in effect (according to which the essential content of fundamental rights cannot be restricted). The conception underlying the new Constitution contains various approaches to the question of the restriction of basic rights in a state founded on the rule of law. One finds in the Rome Convention reference to morality as a justification for the restriction of basic rights, which naturally could only be effectuated in practice in accordance with the Constitutional Court’s rule of necessity and proportion. As is quite apparent on the basis of the Convention, which is a matter of broad international consensus in Europe, in numerous countries the interpretation of the notion of morality does not constitute a problem.

6. The prohibition of discrimination does not extend to discrimination on the basis of sexual orientation.

This contention is also groundless. The conception underlying the constitution prohibits all forms of discrimination by including, as the last item on the list of possible reasons offered as grounds for discrimination, “other circumstances.” The Constitution currently in effect is similar in this regard, and makes no explicit mention of sexual orientation.

7. The conception underlying the new constitution violates the principle of the rule of law because it contains no prohibition of retroactive legislation.

The prohibition of retrospective legislation is implicit in the adoption of the principle of the rule of law itself. The current constitutional solution is similar to the conception embodied in the proposal, which is to say it does not make this prohibition explicit. The Constitutional Court inferred the prohibition against retroactive legislation on the basis of its interpretation of the Constitution in effect now, regarding the prohibition itself as a concomitant of the rule of law and the rule of law as one of the most important components of constitutional governance.

8. Critics of the conception underlying the new Constitution object to the definition of marriage as a contract exclusively between a man and a woman.

As a supporter of the draft Constitution I acknowledge the accuracy of this observation without shame, but I feel it important to emphasize that the Constitutional Court has defined marriage in precisely the same way. Thus the Constitutional Court’s definition of marriage is merely being incorporated into the text of the new Constitution itself. Incidentally, the interpretation of the Constitutional Court was itself a response to the assertion over the past several years of conflicting and contradictory claims of various ultraliberal groups. Those who are attacking the underlying conception of the new Constitution on the basis of this accusation are apparently unwilling to accept the interpretation of the Constitutional Court, which indeed provides ample justification for the inclusion in the Constitution itself of the defence of marriage according to the definition of the Constitutional Court.

9. The assertion of the obligation to defend human life from the moment of conception would mean the prohibition of abortion.

The committee responsible for the draft constitution arrived at a unanimous decision concerning the question of the defence of human life. To cite the words of former President of the Republic László Sólyom, who can hardly be accused of prejudice in favour of the Fidesz-KDNP coalition (particularly at the moment), the explicit assertion of this fundamental truth (that life begins at conception) would constitute a revolutionary act comparable to the liberation of slaves. Undoubtedly as a matter of principle the decision concerning the fate of an embryo would no longer be merely a question for the autonomous individual, but this is not to be mistaken for the prohibition of abortion. The situation in Germany offers a good example, where the basic law is similar, in accordance with the interpretation of the German Constitutional Court.

10. The conception underlying the new Constitution breaks with the principle of the division of church and state.

This contention is similarly groundless, though it is worth noting that there are various models of the relationship between church and state in constitutional democracies (in other words in states like Great Britain, where church and state are not entirely separate). It is true that the conception does not contain an explicit assertion of the separation of church and state along the lines of the present constitution, but this is because emphasis is placed on the independence of the churches instead. The fact that only organs of the state can exercise state power is an implicit corollary of all the other stipulations and provisions of the new Constitution. The participation of churches in the exercise of state power would only be possible on the basis of constitutional authorization, of which, naturally, no mention is made whatsoever in the concept underlying the new constitution.

 

11. The right of the President of the Republic to dissolve parliament under exceptional circumstances (in the interests of “resolution of a constitutional-political crisis resulting from serious loss of confidence”) overstrains the very framework of parliamentary government (creating a semi-presidential system). This wording of the provision is not precise and creates opportunities for abuse.

Objections concerning the wording of the provision and the creation of an opportunity for abuse were raised not only by the opposition, but also by some members of the Fidesz-KDNP coalition as well. According to the canon on constitutional law, the objection concerning the strain placed on the framework of parliamentary government is certainly unwarranted. The responsibility and accountability of the government to the parliament is the essence of parliamentary government. In comparison, the possibility, under exceptional circumstances, of the dissolution of parliament does not constitute an increase in the powers of the President of the Republic to such an extent that would merit any talk of a semi-presidential system. One of the essential features of a semi-presidential system is the direct election of the head of state. The vast majority of constitutional jurists consider the constitutional form of government that was created in 1848 a parliamentary government, though the king and later the regent enjoyed a practically unlimited right to dissolve parliament. The current proposal grants this right only under exceptional circumstances.

It might be worth considering a more precise wording of the provision, but the world of constitutional law abounds with wordings that require interpretation (the President of the Republic, for instance, can reject an appointment by the government if it “would seriously disturb the democratic functioning of the state”). The risk of abuse would mean new elections, which would hardly be a tragedy in a democracy.

It is in any event revealing, as far as the motives underlying the attacks on the new Constitution are concerned, that while the Fidesz-KDNP coalition is accused of upsetting the system of safeguards and counterbalances on the one hand, at the same time a new provision that would itself constitute a safeguard is being thrown into question.

12. The underlying conception of the new Constitution diminishes the functions of the Constitutional Court because it does not contain a provision for the abrogation of any measure deemed unconstitutional, but refers instead to the establishment of legal consequences for such measures.

The underlying conception indeed does not undertake to define the precise sphere of authority of the Constitutional Court or the systems for the implementation of its rulings, but rather entrusts these tasks to the fundamental laws passed by a two-thirds majority. In this respect, it is similar to the Constitution currently in effect, which also assigns the regulation of such questions to the laws passed by a two-thirds majority. The determination of the general tasks of the Constitutional Court through the establishment of legal consequences for violations of the Constitution does not exclude the possibility that, like the Constitution currently in effect, the laws passed by a two-thirds majority will vest the Constitutional Court with the right to abrogate measures deemed unconstitutional, but in comparison with the wording in the current Constitution the text of the underlying conception is considerably more precise, as the current Constitution enables the Constitutional Court to adopt other approaches, in addition to abrogation, in the interests of addressing a measure deemed unconstitutional (for instance the ascertainment of a violation of the constitution through negligence or the establishment of the constitutional interpretation of a law). The wording of the proposal thus vests the Constitutional Court with the power to abrogate measures deemed unconstitutional and furthermore enables it to use other means with which to implement its rulings, but beyond this, it also leaves open the possibility for the adoption by the Constitutional Court of other models in use in the international context.

13. The linking of the process of amending the Constitution to ratification by a two-thirds majority of the two successive parliaments will have the effect of creating a Constitution virtually set in stone.

This is another critical observation that has been raised not only by opponents to the new Constitution, but also by several of those who support it (who have commented that the procedure is not sufficiently flexible). The proposal is intended to help ensure the stability of the Constitution, making the Hungarian Constitution qualitatively different from the constitutions that are easily amended. Two-thirds majorities come into being in a variety of divergent political contexts, and this can endanger the continuity of constitutional law and governance. The procedure whereby an amendment must be ratified by two successive parliamentary majorities is familiar in the international context, including several European countries (such as Sweden, Denmark, Spain, and Greece). The proposal elevates the constitution and the principles it embodies above the power struggles of everyday politics, and the involvement of the second parliament in the ratification of an amendment greatly contributes to the guarantee that any change to the Constitution would indeed reflect the will of the people. It is worth noting that many of the critics of the new Constitution raise this objection simply because they object to the new Constitution in its entirety. In other words they object less to the procedure itself than to the strengthening of the new Constitution, something many of them readily admit.

14. The provisions concerning the adoption of the new Constitution are not politically acceptable. The new Constitution should be ratified according to the same procedure that would govern its later modification. The adoption of the new Constitution should be decided by popular referendum.

Examination of the current rules regarding amendment of the Constitution and the writing of the new Constitution did not constitute one of the tasks of the committee responsible for the draft constitution. The draft constitution therefore does not address this question.

In any event the postponement of the transformation of the constitutional system until after the assembly of the parliament in 2014 would result in an extraordinary delay and would greatly hamper the completion of the various tasks that await the current government. The ratification of a Constitution by popular referendum is not entirely unheard of in the international context, but nor is it particularly common or typical. For instance, neither the American nor the German Constitution was ever submitted to popular referendum, and one could mention numerous other countries with significant constitutional traditions. Many legal scholars and jurists (including critics of the draft proposal) dispute the wisdom of submitting the Constitution to a popular referendum, noting that in practice such a referendum constitutes little more than an assessment of the policies of the current government, and that a referendum concerning constitutional reform merely serves the political goal of ensuring legitimacy through the votes of the citizenry, without, however, actually offering occasion for measured assessment of the merits of possible reforms themselves. Furthermore, it is worth remembering that the Constitutional Court itself rejected the possibility of a referendum to determine questions of constitutional amendment from the outset, noting that the power to govern cannot be taken from the Parliament. Presumably, the reservations familiar to constitutional jurists played a role in the reasoning underlying this decision.