Unorthodox Measures in a Partisan Constitution in

Hungary
Towards a Nationalist Model of Constitution-making?
by
Zoltn SZENTE
Professor of Law,
Institute for Public Law,
National University of Public Service, Budapest
Research Chair,
Institute for Legal Studies,
Hungarian Academy of Sciences, Budapest

Introduction

The new Hungarian Fundamental Law, there is no doubt that it is one of the most unique
constitutions in modern European constitutional democracies. It has been the 58th new
constitution of the Continent since the end of the Second World War. It is the first one which
allegedly tries to follow the principles and structure of the Charter of Fundamental Rights of
EU. But it is not even sure whether it really follows the recent tendencies of contemporary
European constitutionalism. No other new constitution of an EU member state has been
criticized so sharply as this one. A number of European institutions, 1 human right organisations2
and international newspapers equally expressed their doubts whether or not some principles
and rules of the new Hungarian basic law comply with the European, or the pure democratic
standards.

See the report of the Venice Commission of the Council of Europe, see Venice Commission 2011, Opinion on

the new constitution of Hungary, Strasbourg: Opinion no. 618/2011.

2

The Human Rights Watch and the Amnesty International raised concerns about the democratic deficit of the
new Fundamental Law. See the Human Rights Watchs letter to Mr Viktor Orbn,
http://www.hrw.org/en/news/2011/04/15/letter-prime-minister-orb-n-regarding-aspects-hungarian-constitution, and
Amnesty International Public Statement. AI Index: EUR 27/006/2011. 20 April 2011.

2
As we will see, there is no any other European country where the constitution-making would
have been so intense and rapid, as in Hungary in the recent years. Thus, this country provides
great opportunity to test some theoretical presumptions from the migration of constitutional
ideas3 to the internationalisation of constitutional law, and explore to what extent the
supranational law and international discourse influenced the whole constitution-making process.
Since both the circumstances of the adoption of the new constitution and the outcome of the
constitution-making have been heavily disputed and sharply criticized equally by many
international organisations, European institutions and constitutional scholars, my hypothesis is
that the process of preparing and adopting the new Fundamental Law were affected by foreign
and international patterns only in an extremely limited way. Despite the general European
trends of global constitutionalism and the Europeanisation of constitution-making, my
presumption is that most innovations of the Hungarian Fundamental Law are such
unorthodox measures which differ considerably from some well-established values of modern
European constitutionalism, or, in some cases, are explicitly in contrast with them. The foreign
patterns were used to support the political will of the government majority, rather than general
constitutional standards that must be followed.

1. The unique way of constitution-making in Hungary

In the transition period of the Central and Eastern European countries, Hungary was the only
post-communist state which did not adopt a new constitution replacing the old communist-type
basic law. The constitutional foundations of the system change in 1989-1990 were laid by a
peaceful negotiating process producing an agreement between the ruling communist party and
the opposition parties and movements. The so-called National Roundtable Talks shaped a
comprehensive political compromise not only on the schedule of the democratic transition
from a Soviet-type, one-party authoritarian regime to a Western-like parliamentary democracy,
but also on the rules of the game, i.e. the basic institutions and features of the new constitutional
system.4 The results of this compromise were codified by the last one-party communist National

See for example Choudhry, Sujit: The Migration of Constitutional Ideas. Cambridge University Press, 2007; Basil
Markesinis and Jorg Fedtke (eds.): Judicial Recourse to Foreign Law: A New Source of Inspiration? RoutledgeCavendish, 2006.; Gbor Halmai: Perspectives of Global Constitutionalism. The Use of Foreign and International
Law by Domestic Courts. Eleven International Publishing, 2014. [Forthcoming.]
4

Schiemann, J. W.: The Politics of Pact-Making. Hungarys Negotiated Transition to Democracy in Comparative

3
Assembly as a basic revision of the existing constitution of 1949, which brought about
fundamental changes in Hungarian constitutional law. In reality, the general revision of the
constitution in 19895 changed almost all the important parts of the basic law to such a degree
that many refer to it as an actually new constitution.6
In the next two decades, despite some political initiatives, all attempts to adopt a new
constitution failed, including the constitution-making project of the mid-1990s when the LeftLiberal government coalition had a two-thirds majority in Parliament (19941998), sufficient to
amend the constitution or to make a new one. However, after when a government coalition had
gained a qualified majority again with 53 per cent of the votes cast, everything changed rapidly.
Just a year after the overwhelming election victory of the ConservativeChristian Democratic
coalition in 2010, a new constitution was voted by them. Even during this year, the old
constitution was amended no less than twelve times by the governing parties.
The zealous constitution-making activity did not ease even after the enactment of the new basic
law; together with the Fundamental Law, a long piece of constitutional legislation (Transitional
Provisions) came into force on 1 January, 2012, containing a number of rules completing and
exacting the new constitutional text.7 Since then, the parliamentary majority has amended the
Fundamental Law five times, rewriting about 20 per cent of the constitutional text.
Thus, the old constitution remained in effect, retaining its unfortunate title of Act No XX of
1949, even if in a deeply restructured version.8 Yet it proved to be fairly flexible: from the
general revision of 1989 to 2010, the constitution was modified more than 20 times.
Despite the failure to pass a completely new constitution at the dawn of the system change, all
political actors believed that even the considerably revised constitution would only be a
transitional one, as its preamble said, in order to facilitate a peaceful political transition to a

Perspective. Paglrave Macmillan, New York, 2005. 3784.

5

Act No. XXXI. of 1989 on the amendment of the Constitution.

Jakab, Andrs: The Republic of Hungary. Commentary. In Wolfrum, R. and Grote, R. (eds.), Constitutions of

the Countires of the World. Oceana, New York, 2008. 8.

7

The constitutional character of the Transitional Provisions was uncertain insomuch that the Constitutional Court
invalidated it in 2012.
8

See Paczolay, Pter: The New Hungarian Constitutional State: Challenges and Perspectives, In Howard, Dick A.
E. (ed.), Constitution Making in Eastern Europe, Washington, DC: The Woodrow Wilson Center Press, 1993.
2155. and Pogny, Istvn: Constitutional Reform in Central and Eastern Europe: Hungarys Transition to
Democracy, International and Comparative Law Quarterly, Vol. 42, 1993, 332.

4
constitutional state, the Parliament established the new text of the basic law, until the countrys
new constitution is adopted.
The favourable moment for constitution-making apparently came out after the parliamentary
elections of 2010, when the Conservative government coalition acquired a two-thirds majority in
Parliament. It was a decisive point as in Hungary the National Assembly, beyond its legislative
power, is also the pouvoir constituent, which may adopt or amend the constitution by a
qualified majority. Although the question of a new constitution was not a featured issue in the
election campaign, shortly after the election victory, Mr Orbn, the charismatic Prime Minister
and undisputed leader of the political right made it clear that the new coalition will use its
mandate to accept a new constitution. Paradoxically, the same conditions, which made possible
the adoption of a new constitution in political sense, brought about, from a constitutional point
of view, an extremely unfavourable position for constitution-making, because the precondition
of the qualified majority was established in 1989 just for preventing a particular political force to
make constitutional changes alone as it wants.
The whole process of constitution-making was exceptionally rapid and intransparent. Although
its preparation lasted for almost ten months, the ad hoc committee established in June 2010 for
the preparation of the conception of the new constitution was convened only twenty times. The
members took about seventeen hours altogether to prepare the final concept. In November,
two opposition parties, the MSZP and the LMP (Politics Can Be Something Else in English)
as a protest against the mutilation of the competence of the Constitutional Court, and, in
general, the governmental politics of destroying the rule of law, marched out the
parliamentary committee (and they never came back). After an uneventful period of three
months, owing to the protest and boycott of the opposition parties, the conception of the ad hoc
committee was declared non-binding for the further work, and, by a parliamentary resolution
adopted on 7 March, all parliamentary factions were invited to introduce their own
constitutional bills until 15 March 2011.9 Meanwhile, a three-member informal drafting
committee began to work out the text of the constitution. They had to hurry, because the Prime
Minister set the deadline of Easter (April 18) when Parliament should accept the whole
constitution.

Only two bills were submitted, one by the coalition parties, and another by a deserted socialist politician, the
former speaker of Parliament.

5
The coalition parties tried to counterbalance the non-attendance of the two opposition parties,
as well as they wanted to avoid a national referendum about the new constitution. Although the
latter would have been a rational instrument to eliminate the legitimacy objections, this idea was
in contrast to the political conviction of the Fidesz politicians, namely that their election victory
provides proper mandate for them to reorganise the whole state. Moreover, a national
referendum was probably considered too risky. Therefore, the Government resorted to an
unusual means: as the widest national consultation of all times, a questionnaire was sent to all
voters with 12, not-too-important questions worded in a way that the final results could be
foreseen. Besides that, the Government put three questions to the Venice Commission, a
Council of Europe's advisory body on constitutional matters about three other secondary issues.
However, none of these moments influenced the process the new constitution reflected the
political will and ideology of the ruling parties.

2. Process, legitimacy and ideology of constitution-making in Hungary

2.1. The winner-takes-all principle and the legitimacy problem of the Fundamental Law
There can be several different reasons for constitution-making a country. The classical periods
of the European constitutionalism was bound to the state formations, civil wars, revolutions or
military defeat, and there was no change in this respect in the decades after the Second World
War, either. Nevertheless, it has become more common to adopt a new constitution for
modernising, rationalising or systemising the existing constitutional order without upheaval or
other extraordinary political conditions. The constitution of France in 1958, which was a
foundation of the Republic V introduced the semi-presidential system of government in this
country, while the new constitutions of Finland or Switzerland, both approved in 1999,
consolidated the former constitutional order, without huge changes.
The last happened to Hungary in 2010 based on the political claim that both the old
constitution of communist origin and the unsuccessful constitutional order of the preceding two
decades must be altered.
The new Hungarian Fundamental Law is the only one of the constitutions of the modern
European democracies which was approved exclusively by the MPs of Government majority.

6
The constitutional bill, in the absence of two opposition parties, was approved by 262:44 (with 1
abstention)10 the MPs of the third opposition party, the radical rightist Jobbik said no.
In those cases in which, at least since the WWII, the new constitution was passed neither by a
constitutional assembly, nor the legislature, a national referendum confirmed the new
fundamental law, like in 1958 in France, or the member state legislatures provided legitimacy
for the constitution-making, like in Germany in 1949. Therefore, it seems to be a great and
hardly remediable defect of the new basic law that it is a partisan constitution, in a sense that the
basic rules of the game were set unilaterally by the Government majority. The circumstances of
the constitution-making process might raise the issue of legitimacy, even if the Fundamental
Law was approved by the two-thirds majority of the National Assembly, as required by the old
constitution. Nevertheless, the original constitutional function of this majority requirement,
namely enforcing a compromise between the Government and Opposition of the day, could
not prevail, because the Government parties themselves were able to provide the formally
necessary majority.
As a result, the whole process was not transparent at all; there were no parliamentary or national
debates even on the most disputed plans leaked by media; allegedly, the major parts of the
finally submitted constitutional text was worded by Mr Jzsef Szjer, a European Parliament
MP of the Fidesz, on his iPad during his travels between Strasbourg and Brussels.
The legitimacy problems come not only from the rapid and intransparent procedure of the
constitution-making, but also from the theoretical bases of the Fundamental Law. The text does
not clarify the subject of the pouvoir constituant that is the constitution-making power. While
the preamble begins with the words We, the members of the Hungarian nation, it closes
saying that We, the citizens of Hungary. These are obviously not overlapping concepts, since
the former refers to the cultural nation including those Hungarians who live in the neighbouring
countries and excluding the non-Hungarian citizens within the state borders, the latter relates to
those who belong to the political nation.11 Anyway, it is not clear how the community of all
Hungarians could be the subject of the constitution-making, because they do not constitute any

10

The Parliament had 386 members.

11

See also Krtvlyesi, Zsolt: From We the People to We the Nation, In Tth, Gbor Attila (ed.), Constitution
for a Disunited Nation. On Hungarys 2011 Fundamental Law. Central University Press, BudapestNew York,
2012. 114117.

7
legal entity, and the non-citizen Hungarians were not represented in the National Assembly
which approved the Easter Constitution.
Finally, the source of legality of the new text is also obscure: while it declares that we [the
Hungarians] do not recognise the communist constitution of 1949, since it was the basis for
tyrannical rule; therefore we proclaim it to be invalid, one of its closing provisions says that
Parliament adopts the Fundamental Law pursuant to the relevant rules of the constitution of
1949.

2.2. Partisan values and symbolic provisions

The new Fundamental Law is introduced by the first sentence of the Hungarian national
anthem, God bless the Hungarians which truly expresses that this document is not devoted to
be an ideologically neutral rule-book. As a manifesto of some Hungarian constitutional lawyers
and philosophers argues, this verse emanates from the 1820s, when the Christian religion was
an integral part of the self-identity of the whole community, but it is not able to symbolize the
unity of nation anymore.12
Since during the whole constitution-making process the Government parties did not have to
agree with their political opponents, they put into the text whatever they wanted. That is why the
preamble of the Fundamental Law is named National Avowal, and the role of Christianity is
emphasized as preserving nationhood for the same reason. In fact, the preamble is probably
to be the most religious one in contemporary Europe.
The preamble is by far the longest in the Continent, and the text contains other conservativerightist ideological elements as well. Thus, it tries to erase the communist period from the
constitutional history, declaring that the continuity of rule of law was broken in March 1944 by
the occupation of the country by Nazi Germany, so it ignores that the constitutional transition in
1989/90 followed in many respects the short-lived post-war democratic attempt in 1946, which
refused the restoration of the earlier unwritten constitution. It is worth noting that the name
Fundamental Law, instead of the usual word constitution reflects an obscure conception
stating that only the historic, unwritten and so-called one-thousand-year-old constitution13 is

12

Arat, A., Halmai, G. and Kis, J. (2011) Vlemny Magyarorszg alaptrvnyrl, let s Irodalom, LV. 26, I.

13

According to the traditional public law approach, the roots of the historic constitution can be tracked to the state

8
the real one, specified and articulated by fundamental laws.14 The constitution makers wanted
to express the nations honour of the achievements of our historical constitution and the
Holy Crown, which embodies the constitutional continuity of Hungarys statehood and the
unity of the nation. To make such a strong connection of the present basic law with an old,
unwritten and historic constitution is likely to be a unique phenomenon in contemporary
Europe.
But the rightist parties symbols and values appear also in the text itself providing normative
character for them. According to Article R, Section (3), [t]he provisions of the Fundamental
Law shall be interpreted in accordance with their purposes, the National Avowal and the
achievements of our historical constitution. Although the content of these achievements is
unclear, the reference may raise suspicion because the traditional doctrine of the Holy Crown
refused the principle of peoples sovereignty (stating that all public powers are rooted in the
crown of the first Hungarian king, St. Stephen) and symbolized the unity of not only the society,
but the territory of the historic Great Hungary15 as well.16
Beside the solemn declarations of the preamble expressing the national pride, another group of
constitutional provisions express the national characteristics and autonomy. Thus, a separate
provision protects the Hungarian as an official language. It is a curious idea, since the language
protections clauses of the constitutions, where they exist at all, used to relate to the minority
languages.17 Another rule declares that the official currency of Hungary is the forint. This is an
uncommon provision again, and it is especially surprising in a country which has committed
herself to the introduction of the euro.
However, the ruling political ideology and the partisan values are entrenched not only in the
preamble, but in the body of the constitutional text as well.
foundation by the first king of Hungary, St. Stephen in 1000.
14

In most countries, the expressions of basic or fundamental law are synonyms of constitution. Nevertheless,
in Germany, after the Second World War, the name of Grundgesetz (Basic Law) instead of Verfassung
(Constitution) had a significance, expressing that it had been approved only by a special body and the member
states (Lnder), but not by the whole nation. Hucko, Elmar M.: The Democratic Tradition. Four German
Constitutions, Berg, Hamburg, Leamington Spa, New York, 1987. 65.; Dreier, Horst: Deutschland, In von
Bogdandy, A., Villaln, P. C. and Huber, P. M. (eds.), Handbuch Ius Publicum Europaeum. Band I. Grundlagen
und Grundzge staatlichen Verfassungsrechts, C. F. Mller Verlag, Heidelberg, 2007. 911.
15

The name of Great Hungary refers to the old Hungarian Kingdom before her considerable territorial losses in
the peace treaties after the First World War in 1919.
16

Szente, Zoltn: The Doctrine of the Holy Crown in the Hungarian historical constitution, Journal on European

History of Law, Vol. 4, No. 1, 2013, 109115.

17

Jakab, Andrs: Az j Alaptrvny keletkezse s gyakorlati kvetkezmnyei, HVG-Orac, Budapest, 2011. 190.

3. Followed or denied constitutional patterns?

3.1. The catalogue of basic rights: closer to or away from European principles?
The authors of the new Fundamental Law chose a curious way of rewriting the catalogue of
basic rights: they decided to base this crucial part of the basic law on the Charter of
Fundamental Rights of the European Union. It was not a complete incorporation of the Charter
into the text, but its pattern was more or less followed by the constitution makers.
This solution is quite surprising, because the EU Charter is substantially an international treaty,
which comprises a minimum level of human rights protection reflecting the agreement of the
negotiating parties. The national level of protection is usually higher or stricter than a common
European minimum.18 Another problem may arise from the different interpretation of the same
provisions of the EU Charter by the European Court of Justice and the national Constitutional
Court. The Charter has and expectably will have a more and more extensive authentic
interpretation based on the case-law of the ECJ, without having regard to the Hungarian
constitutional jurisprudence. This may lead to legal complications according to the Venice
Commission of the Council of Europe as well.19 In legal sense, the incorporation of the
Charters provisions in the Fundamental Law is virtually the extension of their effect, since the
Charter itself has already a direct effect in Hungary, as a member state of the EU, as far as
national public authorities implement EU law.
If one considers that the Hungarian Fundamental Law diverges in how many other issues from
the European standards, the use of the EU Charter of Fundamental Rights as a pattern can be
really surprising. Paradoxically, an explanation can be found just in the unusual constitutional
policy of the government majority. By all accounts the constitution makers just wanted to
demonstrate Hungarys commitment to the European values in this way.
Maybe the rapidity of the constitution-making process is the reason why the text comprises basic
rights of different legal nature. The chapter is really a mixture of basic human rights, freedoms

18

See the so-called Solange decisions in the practice of the German Federal Constitutional Courts. BVerfGE 37,
271 (1974); BVerfGE 102, 147 (1986).
19

Venice Commission (2011) Opinion on three legal questions arising in the process of drafting the new
constitution of Hungary. Strasbourg: Opinion no. 614/2011, 6.

10
and rights reserved for citizens, and some social and welfare rights which are regarded as state
objectives and goals without any enforceable rights or entitlements.
The individual rights are worded mostly in a general and abstract way allowing wide margin of
appreciation for the Parliament to regulate the special rules of scope and limitations of the
respective rights in so-called cardinal laws. It raises some concern that constitutional provisions
might be eroded by special acts.20
Nevertheless, the text, having regard to the jurisprudence of the Constitutional Court, makes the
regulation of some human rights more exact. Thus, it respects the social and economic rights as
state aims, instead of recognizing them as basic rights. Although it might seem as a decrease of
protection, it brings the regulation closer to practice; the old constitution, for example, declared
simply the right to work (as a remnant of its original text, dated in 1949), without any
enforceable right. Another achievement is the elimination one of the most problematic
provisions of the constitution of 1949, which says that the basic meaning and contents of
fundamental rights may not be restricted. Since the implementation of this rule was a
mission impossible (as the collision of two fundamental rights cannot be solved without
restraining the basic meaning of one of them), it frequently led to unbridled, text-free
constitutional interpretation. Instead, the new regulation requires only that the restriction of
fundamental rights be in proportion to its essential content, and the so-called
necessity/proportionality test became textually recognized, which was developed after 1990 by
the Constitutional Court for reviewing the constitutionality of limitations of basic rights. For any
restriction of basic rights, the test requires a legitimate aim (the exercise of another basic right,
or defence of other constitutional values) which justifies the limitation of a basic right, but only
to the extent of necessity, and in proportion to the desired goal.
Apart from these achievements, the whole approach of the chapter on basic rights seems to be
fermented by a conservative social philosophy, which connects the justification of fundamental
rights with the accomplishment of civic duties. It can be exemplified by the title of the whole
chapter Freedom and Responsibility, or by a curious provision that adult children are
obliged to look after their parents if they are in need. The basic law declares that every
person shall be obliged to contribute to the communitys enrichment with his or her work to the

20

See Fn 1, 59.

11
best of his or her abilities and potential.21 All these principles, while they provide unlimited
empowerment for the current parliamentary majority to adopt the relevant cardinal laws, lack
precision. Since the text refers to the importance of work which creates value, in another
place as well, many suspect that the Fundamental Law does not stand on the basis of the
complete and unconditional equality of the citizens, but it differentiates between them according
to their social usefulness. This presumption appears to be reinforced by Article 19, Section
(3) of the Fundamental Law stating that [t]he nature and extent of social measures may be
determined by law in accordance with the usefulness to the community of the beneficiarys
activity. This provision is likely to be a legalized result of a heated political debate of the last
few years whether the social supports can be conditional upon undertaking public work, or not.
All in all, the whole chapter reflects a shift from the essentially liberal human right approach of
the old constitution, in which the fundamental rights are self-aimed, unconditional values, with
the obligations of the state to respect and promote them, to another understanding of the basic
rights, emphasizing the individual citizens duties towards the whole community. Whatever the
intention of the constitution makers was in following the European Charter of Fundamental
Rights, the dependency of the basic rights from the fulfilment of the citizens obligations is
strange from a European perspective.
The logic of mutual relationship of rights and duties is breached only in case of those
Hungarians who live beyond the state borders, but have acquired the Hungarian citizenship. In
2004, the so-called double-citizenship of the Hungarians of the neighbouring countries was not
approved by a national referendum (which was not valid because of the insufficient turnout), but
its realisation was an old promise of the rightist parties. The new Fundamental Law recognizes
their right to citizenship, which will soon involve their right to vote as well. However, while every
Hungarian is entitled to vote, some obligations are imposed only on those who live in Hungary.
One could think that it reflects sensitivity to the possible counter-feelings of the neighbouring
countries with the aim of avoiding any controversy with them. But this explanation fails; the
Fundamental Law declares without hesitation that every Hungarian citizen, that is including
those who live abroad, is obliged to defend the country.
Other innovations were motivated also by a rightist-conservative political ideology, like the
definition of marriage which is union of a man and a woman guaranteeing the prevention of

21

Allegedly, the example of this provision was Article 6 of the Federal Constitution of the Swiss Confederation on
the individual and collective responsibility. See Jakab, ibid. 96, 196.

12
the gay and lesbian marriage at constitutional level. Although there is no European or
international standard which allows gay and lesbian couples to get married, the legal
development of constitutional democracies shows that more and more states recognise the right
to marriage for same sex couples as well. Thus, the apparent intention of the constitutional
definition of marriage was to prevent such a development in Hungary.22
Another critical point generating heavy debate is the provision safeguarding the protection of
embryonic and foetal life from the moment of conception, just after declaring that [e]very
human being shall have the right to life and human dignity.23 Since the Constitutional Court in
a landmark case in 1991 said that the mothers right to self-determination cannot prevail over
the foetus right to life, if the latter is to be seen as a human being,24 many fear that this
regulation may lead to the prohibition, or at least, the drastic tightening of the liberal abortion
rules.25 It is sure that the constitution makers choose a wording that opens the way for a pro-life
interpretation, connecting the state duty for protecting life to the foetus right to life.
The constitutional declaration of the possibility of life imprisonment without parole raises the
question of compatibility with European standards, even if it is formulated as a guarantee:
according to Article 2, Para (4), life imprisonment without parole can be imposed in relation to
the commission of wilful and violent offences. Actually, it has also been devoted to prevent the
Constitutional Court from repealing this punishment as a cruel and unusual, one in line with
foreign legal development.26

22

It is to be noted that the so-called Slyom Court, as the Constitutional Court is called after its first chairman,
interpreted marriage in the same way already in 1995, declaring that the institution of marriage in our culture and
law is traditionally a cohabitation of a man and a woman, aiming to foster children. Decision No. 14/1995 (III.
13.) of the Constitutional Court, ABH, 1995, 8283.; Szente, Zoltn: The Interpretive Practice of the Hungarian
Constitutional Court: A Critical View, German Law Journal, Vol. 14, No. 8, 1600.
23

The principle of inviolability of the human dignity was imported from the German Federal Constitution. See
Dupr, Catherine: Importing Human Dignity from German Constitutional Case Law, In Halmai Gbor (ed.), The
Constitution Found? The First Nine Years of the Hungarian Constitutional Review on Fundamental Rights .
INDOK, Budapest, 2000. 215-221.; and Dupr, Catherine: Human Dignity: Rhetoric, Protection, and
Instrumentalisation, In Tth, Gbor Attila (ed.), Constitution for a Disunited Nation. On Hungarys 2011
Fundamental Law. Central University Press, BudapestNew York, 2012. 149.
24

Decision No. 64/1991 (XII. 17.) of the Constitutional Court, ABH 1991, 302.

25

Others argue this possible interpretation claiming that the text does not recognise explicitly the foetus right to
life, but it prescribes the states duty to provide institutional protection for the foetus. See Jakab, ibid. 204.
26

Some argue that the possibility of the life-long imprisonment is not unprecedented in Europe. Jakab, Andrs
Sonnevend, Pl: Kontinuitt mit Mngeln: Das neue ungarische Grundgesetz, Zeitschrift fr auslndisches
ffentliches Recht und Vlkerrecht, Band 72, 2012, 88-89. Nevertheless, this punishment is not protected by the
constitution in other countries.

13
The provisions on the freedom of religion of the Fundamental Law have also been heavily
criticized, in particular after its fourth amendment in 2013, empowering the National Assembly
to recognize religious communities as established churches. As a result of these rules, more
than 300 religious communities had lost their church status, of which only 27 regained its earlier
status. Although the constitution declares everyones right to freedom of thought, conscience
and religion, and the principle of the separation of states and religious communities, the
constitutional text makes a formal difference between the established churches and other
religious communities authorizing Parliament to provide specific privileges to the former with
regard to their participation in the fulfilment of tasks that serve to achieve community goals. In
this way, the establishment of churches is not regarded as a matter of freedom of religion, but
rather as an issue of the exercise of public power. Since the National Assembly makes its
decisions on a political basis, and the respective religious communities do not have a right to
appeal against these parliamentary acts, the constitutional regulation does not fit into the
contemporary European standards.27
Remarkably, in all these cases, the relevant provisions of the Fundamental Law diverge from
those of the EU Charters.
The list of basic rights has been moderately extended by the prohibition of human cloning,
exported from the EU Charter, and by the right to self-defence of everybody against any
unlawful attacks against his or her person or property.

3.2. Constitutional unorthodoxy in institutional arrangement

One of the first characteristics of the new constitutional regulation is that only minor changes
took place in the system of state organization. The republican form of state and parliamentary
government has remained unchanged, even if new tones and approaches appear in the written
text. The constitutional status of the President of the Republic and the Parliament, in contrast
with some fears and presumptions concerning the introduction of a semi-presidential system
and bicameralism, has not changed significantly.28 Some specification has been made in relation

27

Uitz, Renta: Freedom of Religion and Churches: Archeology in a Constitution-making Assembly, In Tth,
Gbor Attila (ed.), Constitution for a Disunited Nation. On Hungarys 2011 Fundamental Law. Central University
Press, BudapestNew York, 2012. 221224.
28

During the preparation of the conception for the new constitution, some influential rightist politicians preferred
the introduction of corporate bicameralism as an option for parliamentary reform. The proposal divided the

14
to the local government system and state administration, with moderate centralisation through
the relevant provisions on the allocation of powers and duties and on the control over local
authorities.
The Fundamental Law refers expressis verbis to some principles which were lacking in the old
one, like the principle of separation of powers, and comprises some innovations shaped by the
Constitutional Courts jurisprudence in the last years. Many think justified, that the real (and
hidden) purpose of making a new constitution was not to modernise the old constitution, or to
give it a new date of birth (these needs could have been met by amendments), but rather, to
cement the power of the rightist government into the future.29
The new basic law retained the frequently criticized type of cardinal laws for regulating the
detailed rules of the constitutional provisions. The category of organic laws requiring a twothirds majority of the MPs being present is a heritage of the transition period of 1989/1990,
when both the ruling communist party and the opposition movements insisted on an
enforceable consensus for laying down the fundamental laws of the new constitutional system.
Now, the subjects of these laws were partly changed, because many policy-related regulations
will need a qualified majority in the future, which can make the effective government much
more difficult, because whenever the Government does not have such an overwhelming
majority, it will have to get support from the opposition. The purpose of these provisions is to
preserve the results and achievements of policy measures of the current coalition government.
Thus, the management of the national assets, the system of pensions and family support, the tax
allowance of child raising or the maintenance of a voluntary reserve force can be regulated only
by two-thirds majority in the future. If we suppose that such a parliamentary majority will only
be exceptional in the long term, the policy decisions of the current government, frozen by the
constitution itself, will hardly be changed fundamentally for a long time.30 Therefore, this kind of
constitutional regulation is apparently in contrast with the principle of parliamentary
government, since the future governments, in the absence of a qualified majority, will not be
able to implement the free will of majority of the voters, for example, they cannot change the
uniform rate of 16 per cent of personal income tax, or, involve private capital in the pension
system.
professional community. See Tglsi, A. (ed.): Szksg van-e ktkamars parlamentre az j Alkotmnyban? Az
Orszggyls Alkotmnygyi, igazsggyi s gyrendi bizottsga, Budapest, 2011.
29

Kis, J. (2011) Alkotmnyozs mi vgre? IIII, let s Irodalom, LV, 1214.

30

JakabSonnevend, ibid. 96.; Jakab, ibid. 201.

15
The curious paradox of the new constitutional regulation of the exercise of public power is that
while the state organisation system has changed only moderately, these changes have significant
political impacts in practice. In general, it can be said that the institutional balances of the
executive power have considerably weakened. Some of them have lost their independence, or
some of their control powers. Both relate to the Constitutional Court, which was for two
decades the most effective and strongest counterbalance of the Executive.31 Just a few months
after its formation, the new coalition government, using its two-thirds majority transformed the
process of nominating the justices of the Constitutional Court. Since then, the membership of
the parliamentary committee responsible for the nomination has not been based on parity
anymore, but reflects the party-strength in the National Assembly. Whereas the earlier
regulation required a compromise between the parties to nominate justices (because of the twothirds majority requirement), since autumn of 2010 the government parties have been able to
elect their own nominees. It is not only a theoretical option; in 2010, two, in the spring of 2011
five more justices were elected by the government party MPs ignoring the protest of the
opposition parties.32 In this way, the Government managed to place its loyal supporters in the
body, reaching a stable majority. The personal control of the Court was extended by the new
Fundamental Law, empowering Parliament to elect the head of the Court (before that, he or
she was elected by the justices themselves).33 Besides these measures, when the Constitutional
Court had declared unconstitutional and annulled a law that imposed a 98 per cent tax on the
extreme severance payment with retroactive effect, the government majority immediately
curtailed its most important power of constitutional review.34 Since then the Court has only been
able to review and annul the budgetary laws, the acts on taxes, duties, pensions, customs or any

31

See eg. Schwartz, H. (2000) The Struggle for Constitutional Justice in Post-Communist Europe, Chicago and
London: The University of Chicago Press: 87-108.; Slyom, L. and Brunner, G. (2000), Constitutional Judiciary in
a New Democracy: The Hungarian Constitutional Court, University of Michigan Press: Ann Arbor.; Halmai, G.
(2002) The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the
Hungarian Constitutional Court in Sadurski, W. (ed.), Constitutional Justice, East and West. Democratic
Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective, The HagueLondon-New York: Kluwer International Law, 189-211.
32

One of the reasons of the protests was that some nominees failed to comply with qualification conditions set by
law.
33

The political motivations of these changes can be demonstrated by the fact that they were enacted by modifying
the old constitution, that is, not waiting for the effect of the new Fundamental Law. Otherwise, the Constitutional
Court, in its old composition, would have been able to decide on some politically hot issues, and elect itself its
president for three years.
34

The political pressure proved to be partly successful; after repealing two versions of the retroactive legislation
introducing 98 per cent tax for earlier incomes (Decision No. 184/2010 (X. 28.) and Decision No. 37/2011 (V.
10.) of the Constitutional Court) the Court finally approved of a third law, declaring the constitutionality of the
retroactive taxation if it extends only to the beginning of the current tax year.

16
kind of financial contributions to the state if they violate the right to life and human dignity, the
right to the protection of personal data, freedom of thought, conscience and religion, and the
rights related to Hungarian citizenship. At first sight, this truncation of the Courts powers was
only a political revenge for an unfavourable decision, but it proved to be a long-term strategy
neutralizing the Courts controlling role.35
One of the major instruments of the financial recovery programme of the Government coalition
was to nationalize the private pension funds, expropriating also the savings of their members.
Allegedly, if this measure was repealed as an unconstitutional one (which would stand a chance
in normal circumstances), the budgetary deficit would jump to about seven per cent instead of
the three per cent that Hungary undertook to keep as an EU-member.
In spite of the promises that this limitation on the jurisdiction of the Court will only be a shortterm solution, it was put in the new Fundamental Law as well, stipulating that this restriction of
the Courts power will last as long as state debt exceeds half of the GDP.
Although pulling out some issues from judicial review is not unprecedented in Europe,36 since
the constitutional review is an institutional guarantee of the rule of law; its elimination, even only
for a deemed transitional period, brings up the assumption that the constitutional constraints of
the executive power can be put aside in economically difficult times.
Nevertheless, the Constitutional Court has been compensated for the loss of its fundamental
power; the Fundamental Law, on German pattern, introduces the politically neutral institution
of individual constitutional complaint. For handling the expectably growing workload, the
number of justices was raised from 11 to 15. It is true that the so-called actio popularis (i.e.,
everybodys right to turn to the Court for reviewing the constitutionality of a statutory act without
any personal interest) will cease, but the Court itself has proposed it for several years.
The new constitutional regulation of the Judiciary has caused also some surprise. First, the
Fundamental Law does not determine the basic features of its organisational system; not even
the instances of judicial power are given in the text either. Instead, all structural issues are left to
the relevant cardinal law. The basic law merely declares that [t]he judiciary shall have a multilevel organisation. Much more attention was paid to judicial selection. At the last moment
35

Kriszta Kovcs and Gbor Attila Tth, Hungarys Constitutional Transformation. European Constitutional Law

Review, Vol. 7, No. 2, May 2011. 193194.

36

Wheare, K. (1966) Modern constitutions, London: Oxford University Press, 102.

17
before the vote on the Fundamental Law, a proposal was submitted (and approved) on applying
the general retirement age to professional judges except the President of the Curia). As a result
of lowering this age limit from 70 to 62, about ten per cent of the professional judges (almost
300 judges) will have to retire.37 In fact, most leadership positions of judiciary will be soon
vacant, because most of them are filled by older judges. The inner logic of this kind of
regulation is obscure; the reduction of the judges retirement age apparently increases the
overburden of the courts, which problem was known for the constitution makers; another
provision of the new basic law allows court secretaries to act within the competence of sole
judges. It is unclear why court secretaries should perform judicial tasks and functions, when
these could be carried out by real judges if the constitution maker had not decreased radically
their retirement age. Under these conditions, in the absence of other rational explanations,
there is some ground for suspicion that the real intention of this change was to replace the
judges in leading positions at all levels of judicial hierarchy.
A special provision of the new Fundamental Law prescribing a general interpretive principle for
the ordinary courts gives also ground for concern. According to the second sentence of Art. 28,
[t]he interpretation of the Fundamental Law and other laws shall be based on the assumption
that they serve a moral and economical purpose corresponding to common sense and the
public benefit. This provision seems to suggest the unconditional preference of particular
moral and economic needs and interests over the legal aspects, which can bring about legal
uncertainty in judicial practice.
As to the other controlling powers, it is worth drawing the attention to the fact that the qualified
majority of the government parties puts even the seemingly neutral constitutional provisions in
new light. For an independent observer, it might be surprising how long the mandate of a
number of public officials is. The members of Constitutional Court, as well as the Head of the
State Audit Office are elected for twelve, the Attorney General (so-called Supreme Prosecutor),
the President of the Curia (Supreme Court) for nine years. All these office-holders were or will
be elected solely by the government party MPs, who have used their power to appoint reliable
party soldiers so far.38 The present Government will also be able to keep its loyal followers in

37

38

Interestingly, the same rule has not been extended to the prosecutors.

The head of state, Mr Pl Schmidt was a second-level politician of the Fidesz. He is an enthusiastic supporter of
the Government policy; the President of the State Audit Office was a backbencher MP of the Fidesz until his
election; the Attorney General, elected last year, a Fidesz MP-candidate in the early 90s, filled the same position
under the first Orbn Government, and he was under permanent political attack by the leftist opposition at that
time.

18
position for a long time, because the mandate of the government appointees for the central
regulatory bodies will be fixed by cardinal laws.
The only new institution in the system of the public power is the Budget Council, an organ
supporting Parliaments legislative activities and examining feasibility of the State Budget. But it
is not a pure advisory body, since its prior consent is required for the adoption of the state
budget by the Parliament. Although the Council may refuse to give consent only in specified
cases (e.g. if the budget bill would allow state debt to exceed half of the GDP), its decision may
not be reviewed or annulled, so it will have a real veto right, which is an exceptional restriction
of the Parliaments budgetary power. This absolute veto power of the Budget Council might be
the sword of Damocles over a possible leftist government after 2014 as well, because the
present government will be able to control the composition of the Council for a long time.
Furthermore, the President of the Republic will be given a new power by the Fundamental Law
from 2012 to dissolve the Parliament if it fails to adopt (and to get the approval of the Budget
Council) the state budget for the running year by 31 March.

Conclusions
As it was demonstrated above, the constitution-making process, and many elements of
constitutional changes differ from the major tendencies of the modern European
constitutionalism, and some of them are in conflict with its values and principles. Nevertheless,
the whole chapter on the catalogue of basic rights was modelled after the EU Charter of
Fundamental Rights which suggests that some foreign arrangements could be used for
constitutional design, even if only in a special, half-hearted way. However, the use of the Charter
as a model for constitutionalizing basic rights does not mean the dominant influence of
European constitutional patterns on Hungarian constitution-making. First, the Charter
embodies a commonly accepted minimum level of rights-protection prepared for special
purposes. Second, some guarantees entrenched in the Charter were left out of the Hungarian
constitutional text. In all cases political considerations overruled the conceptions of
fundamental rights as they are firmly embedded in the Charter.
As we have seen, some elements of the constitutional regulation of basic rights are in conflict
with the European trends, or at least close some ways of the possible development in future.
The divergence is even more evident in the field of the separation of power where a whole

19
range of unorthodox measures can be highlighted from the restriction of the budgetary power of
Parliament to the harsh limitation of the power of the constitutional court.
The Hungarian case exemplifies a special way of constitution-making in contemporary Europe
emphasizing and preferring the national specialities against the commonly used and followed
international or supranational patterns.
The question is how this partially eccentric constitution-making can be explained. Although the
evaluation of the recent constitutional changes as a build-up of an authoritarian political regime39
which has become a constitutional democracy only in name40 is a strong exaggeration, certain
authoritarian tendencies can undoubtedly be discovered. The new Fundamental Law reflects a
political philosophy which openly sets out the goals of the establishment of a central political
force field where the conservative parties can be able to remain in power for a long time. 41 In
fact, the claim for providing the constitutional conditions of this political ambition was the main
reason for choosing unorthodox constitutional solutions differing from the mainstream
continental patterns. The attempt to crystallize the political ideology and policy preferences of
the current government parties and to create favourable conditions for retaining the political
power was facilitated by certain conditions.
First, the undeveloped constitutional culture proved to be not strong enough to withstand the
constitutional changes which were hardly compatible with the well-established European
constitutional principles and standards. In addition, the European institutions have no effective
tools to prevent the breakdown of the fundamental values of the separation of powers and the
basic rights. The European integration is built on the common values and commitments, and its
organisations and working methods are simply unprepared to handle and sanction the situations
in which a member state turns away fully or partially from the generally accepted principles.
The recent Hungarian constitutional development seems to be strong evidence that the
European constitutionalism is not a straightforward way and an automatic and self-propelling

39

Tth, Gbor Attila, Macht statt Recht. Deformation des Verfassungssystems in Ungarn, Osteuropa, 4/2013. 2128.
40

Bnkti, Mikls, Halmai, Gbor and Scheppele, Kim Lane: From Separation of Powers to a Government
without Checks: Hungarys Old and New Constitutions, In Tth, Gbor Attila (ed.), Constitution for a Disunited
Nation. On Hungarys 2011 Fundamental Law. Central University Press, BudapestNew York, 2012. 238.
41

Bozki, Andrs, Autoritare Versuchung Die Krise der ungarische Demokratie. Osteuropa, 2011/12. 165.;
Dek, Andrs, Hungarian Dances The Origins and the Future of Viktor Orbns Revolution, Lithuanian Annual
Strategic Review, Volume 11, Issue 1, January 2014. 153.

20
mechanism for every country in the region, but its values and principles need to be
continuously controlled and improved.