The New Hungarian Constitutional Order

1. Kim Lane Scheppele The New Hungarian Constitutional Order

2. A constitution-making majority In 2010, Fidesz obtained 2/3rds of the parliament’s seats under an election law that supplements pluralities. Prime Minister Viktor Orban has called this a “revolution of the ballot box.”

3. Since coming to power . . . • The Fidesz government had passed by the end of 2011: • 12 amendments to the old constitution (changing more than 50 separate constitutional provisions) • 1 new constitution • 1 large addendum to the new constitution • 25 “cardinal” laws • 338 other laws • They call it a “reboot.” Fidesz supporters

4. But they have lost support Fidesz is not popular, but every other party is less popular.

5. How to understand the new constitution Today, we will consider: • Absence of checks on the power • Personnel entrenchment • Policy entrenchment • Control over institutions that ensure continued democratic rotation of power. Must look at the system as a whole. Viktor Orban

6. 1. Checks on power Constitutional Order before 2010 election • Constitutional Court with “actiopopularis” jurisdiction. • Independent judiciary. • Independent bodies safeguarded democratic process and provided accountability. • Parliamentary procedure that required consultation with opposition and affected groups outside the parliament. • Local governments had autonomy. Basic structure: A unicameral parliamentary system

7. Erosion of checks 1 Constitutional Court After 2010 election • Changed system for electing judges. • “Packed the court” • Removed jurisdiction for reviewing tax and budget policy. • Changed access by abolishing actiopopularis. • Added “constitutional complaint” but this is not as good at monitoring the system of laws. It is no longer possible for the Court to keep the government within constitutional boundaries. The seal of the Constitutional Court – will be changed to remove the word “Republic”

8. Erosion of checks 2 Reducing the independence of the judiciary: • Lowering of retirement age to 62, which removes many court presidents and ¼ of the Supreme Court justices • All new judges (especially court presidents) are chosen by the lone head of a new “National Judicial Office” • Any judge can be promoted or demoted by this same person. • Any case in the country – civil or criminal – can be assigned to a specific court by either the head of the national judicial office or by the public prosecutor. Hungarian Supreme Court – renamed “Kuria”

9. Erosion of checks 3 Independent bodies/offices • Electoral commission • Media board • Audit office • Public prosecutor • Ombuds system Strategies for eliminating the independence of these institutions: • Institutional reorganization (media board and ombuds office; data protection authority) • Appointments • Formerly diverse boards now have no diversity • All are staffed with party loyalists, sometimes people without the relevant expertise.

10. Erosion of checks 4 Parliament has been reduced to a “rubber stamp”: • Use of private member’s bills to bypass consultation phase of legislation • Even the constitution itself was introduced as a private member’s bill! • Parliamentary opposition has been blocked from any role in legislation. • Law passed on the last day of 2011 allows a 2/3rds vote of the parliament to bypass debate altogether. Now laws can go straight from proposal to vote. Fidesz parliamentarians napping in the house during one of the all-night sessions in late 2011. Could they have possibly known what they were voting on?

11. Erosion of checks 5 Local governments are no longer independent: • Local governments may not finance public projects without getting central government approval. • Creation of new administrative level (the járás) run from the central government to supervise municipalities • New laws nationalize both hospitals and schools (both buildings and employees) • Local government elections are now the same date as national elections, which means they will have the same party lineup as the national parliament. • All school principals in the country had to reapply for their jobs in March 2012.

12. 2. Personnel entrenchment • The new system establishes long terms of office for key posts. • Those posts have been filled with people who have had political careers with Fidesz. • Examples: • Public prosecutor – 9 years • State audit office head – 12 years • Media board head – 9 years • Budget council head – 6 years • Constitutional judge – 12 years Orban’s campaign slogan: “Now’s the time!” But he did not say – time for what?

13. Entrenchment of personnel (2) • A parliamentary cycle is four years. • Some of the terms of important offices now last through three election cycles. • Why does this matter? • Public prosecutor and state audit office have substantial functions: can conduct prosecutions and investigations. • Budget council can veto budgets, which can result in parliament being dissolved. • Media board has enormous power over the media. Long terms of office are not new, but the previous occupants of these offices were typically non-partisan and independent.

14. 3. Entrenchment of policy • The constitution requires cardinal laws for a number of subjects where ordinary majorities are usually sufficient to make policy. • This means that Fidesz – with its present 2/3rds – can design policy in such a way that the substantive choices of this government cannot be overturned by a future government. • “Transitional provisions” of the constitution permit the parliament to designate new substantive areas for regulation by 2/3rds laws. • Substantive areas governed by 2/3rds laws: • Tax policy • Pension policy • Family policy • Recognized churches • “National wealth” • New parliament will not be able to make decisions about these things.

15. 4. Compromise of democracy-promoting institutions • Control over the media: • Media board enforcing vague political standards like political “balance.” • Constitutional Court decision spares online and print media for now. • Media board can award bankrupting fines. • Media board entirely in the hands of government loyalists. • Much of the media now do not report international criticism or opposition views. • Combined with: • Commercial pressure on non-government media • Strategic awarding of broadcast licenses

16. Compromise of democracy-promoting institutions (2) • Electoral commission: all 5 general seats on the board are in the hands of government loyalists. • There are still representative of each parliamentary party but they are outvoted. • Electoral law organizes districts to ensure Fideszvictory, even under wide electoral swings. • New election law awaited that will specify election rules.

17. Conclusions • Hungary’s constitution creates a structure of power that is too centralized with too few checks. • Add personnel entrenchment and policy entrenchment – and you have “dead hand” control of future governments. • Democratic institutions (media and election mechanisms) tilt in favor of keeping the current government in place. • If a few laws are modified in response to EU or other external criticism, it will not alter this basic structure, which is entrenched in multiple ways. 1990 SzDSz campaign poster: “Constitution – not this one”