Abstract

Drawing on the work of the 20th century Hungarian political scientist, Istvn Bib, this article offers a critical examination of Hungarys new constitution, or Fundamental Law, which entered into force in January 2012. Hungarys Fundamental Law and various associated legal texts have been heavily criticised by the EU Parliament, the OSCE, the Council of Europes Venice Commission, the US State Department, major human rights NGOs and foreign as well as Hungarian scholars. This article argues that the constitutional regime that operated in Hungary from the end of communist rule until January 2012 represented a satisfactory framework for the consolidation of liberal democracy, the rule of law and the protection of human and minority rights. By contrast, the Fundamental Law, related legal instruments and various policies of the present government have diluted or threatened essential democratic freedoms and have resulted in the removal of many of the checks and balances that previously operated within the Hungarian constitutional system. These regressive measures suggest that elements of what Istvn Bib called the deformed political culture of pre-World War II Hungary are reasserting themselves.

The Crisis of Democracy in East Central Europe: The 'New Constitutionalism' in Hungary[footnoteRef:1] [1: Earlier versions of this article were presented as papers at research seminars held at the University of Kent (February 2012) and at the Norwegian University of Science and Technology (March 2012). I am grateful to the Editor of European Public Law and to to the anonymous reviewer for their helpful and insightful comments on an earlier draft of this article. Unless indicated to the contrary, all translations from French and Hungarian are by the author.]

Istvn Pogny[footnoteRef:2] [2: Professor of Law, School of Law, University of Warwick.]

Above all, being a democrat means not being afraid; not being afraid of people with different opinions, different mother tongues, or people from different races...not being afraid of all those imaginary fears which are only made real by our fear of them.

Istvn Bib, The Misery of the Small States of Eastern Europe (1946)[footnoteRef:3] [3: See Bib Istvn, A kelet-eurpai kisllamok nyomorsga in Bib Istvn sszegyjttt Munkai, Vol. 1 eds Kemny and Srkzi (Berne: Az Eurpai Protestns Magyar Szabadegyetem, 1981), 202 at 222.]

1 Introduction

On 15 March 2012, on the emotionally-charged anniversary of Hungarys revolt against Habsburg rule, Hungarys Prime Minister, Viktor Orbn, declared that his fellow countrymen remain committed to the principles of freedom and sovereignty that had prompted the uprising of 1848.[footnoteRef:4] In an impassioned speech delivered before a crowd of supporters, Orbn asserted that there are important parallels between the events of 1848 and the present day, as well as underlying similarities in Hungarys treatment by the USSR and, latterly, by the European Union: we are only too familiar with the image of the comrade offering unsolicited help and we recognise his type even when he is not dressed in a uniform with epaulets but comes disguised in a well-tailored suit.[footnoteRef:5] [4: For the original, Hungarian-language text of Orbns speech see e.g. The following English-language quotes from Orbns speech were translated by the author. For an alternative English-language translation of excerpts from Orbns speech, which was made available by Hungarian officials, see e.g. Financial Times: Brussels Blog, 16 March 2012, at: .] [5: Authors translation.]

For the present government, Hungarys history represents a continuous and as yet incomplete struggle for independence and self-realization in the face of a succession of external threats, whether emanating from Vienna, Moscow or Brussels. Thus, the prime minister reminded his listeners that they are the political and spiritual heirs of 1848 and asserted that now, as then, the fundamental aspiration of the Hungarian people can be summed up in the rallying cry: we shall not be a colony![footnoteRef:6] [6: Ibid.]

The prime ministers speech aside from its dubious and provocative historical analogies - shows that he and his government have failed to grasp the changing character of state sovereignty. Thus, Orbn defined national freedom as the liberty of the state (or nation) to determine its own laws, to decide whats important and whats not.[footnoteRef:7] Hungarys Prime Minister emphasised that his country must be allowed to make such decisions:[footnoteRef:8] [7: Ibid. ] [8: Ibid.]

using our Hungarian eyes, our Hungarian way of thinking and in accordance with the rhythm of our Hungarian hearts. This is why we are writing our own constitutionand we dont want any unsolicited help from strangers who are keen to guide usHungary must turn on its own axis

The insistence on the preservation of complete national freedom reflects an outdated and largely discredited conception of state sovereignty. For example, Martti Koskenniemi, recently defined sovereignty as, the freedom of action left to public officials by a states international obligations.[footnoteRef:9] As Koskenniemi points out, sovereignty has lost much of its normative or descriptive meaning. All over the world, states are bound by an increasingly dense network of formal and informal rules and regimes.[footnoteRef:10] [9: Martti, Koskenniemi, What Use for Sovereignty Today? Asian Journal of International Law 1 (2011): 61, at 61-63. ] [10: Ibid., 63.]

In the present day, international human rights norms concerning self-determination, democratic governance, respect for civil liberties etc define the parameters within which sovereign governments may lawfully function. Governments can no longer pursue oppressive, discriminatory or undemocratic policies, for example, without risk of violating international law and triggering international censure and possible sanctions.[footnoteRef:11] Governments are no longer free, in the exercise of state sovereignty, to violate the fundamental freedoms of their people.[footnoteRef:12] [11: For example, during its 65th Session in 2010/11, the UN General Assembly adopted resolutions in which it condemned serious and persistent human rights violations in various countries and called upon the governments and non-state actors concerned to comply with their obligations under international law. See, in particular, GA Res. 65/287 on the Status of Internally Displaced Persons and Refugees from Abkhazia, Georgia, and the Tskhinvali Region/South Ossetia, Georgia; GA Res. 65/241 on the Situation of Human Rights in Myanmar; GA Res. 65/226 on the Situation of Human Rights in the Islamic Republic of Iran; GA Res. 65/225 on the Situation of Human Rights in the Democratic Peoples Republic of Korea; GA Res. 65/105 on Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied Palestinian Territory etc; GA Res 65/104 on Israeli Settlements in the Occupied Palestinian Territory etc. In July 2012, in response to continuing attacks on Syrian civilians by government and pro-government elements, the UK, US, Germany and France introduced a draft resolution in the UN Security Council which threatened Syria with economic sanctions. See UK draft resolution on Syria/ UNSMIS under Chapter VII (July 11, 2012), UN Report, available at: http://un-report.blogspot.co.uk/2012/07/uk-draft-resolution-on-syria-unsmis.html] [12: The characterization of a states behaviour as unlawful will not automatically translate into the application of sanctions, particularly where the transgressor can count on the support of powerful allies. For example, up to August 2012, vetoes cast by China and Russia in the UN Security Council have prevented the Council from responding to escalating human rights violations and to significant breaches of international humanitarian law by government forces in Syrias civil conflict. See e.g. Jos Luis Diaz, The Security Councils Syria shame, CNN World, 2 August 2012, available at: http://globalpublicsquare.blogs.cnn.com/2012/08/02/the-security-councils-syria-shame/]

By joining the European Union (EU), Hungary has voluntarily limited its national sovereignty still further. For example, in Costa vENEL, the European Court of Justice held:

By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields... [footnoteRef:13] [13: Case 6/64, Costa v. E.N.E.L., EUR-Lex 585, at 593 (my emphasis), available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61964CJ0006:EN:PDF. See, generally, Ingolf Pernice, Costa v ENEL & Simmenthal: Primacy of European Law Revisited in The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty, eds. Miguel Poiares Maduro, Loic Azoulai (Oxford: Hart Publishing, 2010) 47. ]

EU membership entails acceptance of supranational processes of law-making and of the acquis communautaire, the corpus of EU rights and obligations. However unconscionable for Hungarys current government, EU membership involves partial, albeit voluntary, loss of sovereignty.

Prime Minister Orbns refusal to acknowledge limits on Hungarys sovereignty stems, at least in part, from a fundamental ideological difference between old and new EU Member States. As Anneli Albi has commented: [i]n the old Member States, the concept of sovereignty has considerably transformed in the course of the European integration process.[footnoteRef:14] By contrast, in the new EU States, particularly in Central and Eastern Europe (CEE), there has been much stronger resistence, both amongst politicians and legal theorists, to the surrender or pooling of national sovereignty. As Albi emphasises, the countries of Central and Eastern Europe, where sovereignty was only recently restored, have hitherto predominantly operated in a traditional language of sovereignty, independence, ethnically defined nation-state and national self-determination.[footnoteRef:15] [14: See Anneli Albi, EU Enlargement and the Constitutions of Central and Eastern Europe (Cambridge: Cambridge University Press, 2005), 122.] [15: Albi, supra n. 12, at 122.]

This difference in outlook is largely explicable by reference to the history of the CEE region. Unlike the countries of western Europe, most CEE states were subject to varying degrees of external (i.e. Soviet) domination from the end of World War II until the revolutions of 1989.[footnoteRef:16] This reinforced earlier memories, throughout the CEE region, of the centuries-long struggle of peoples or nations for national recognition (or survival) and for political self-determination.[footnoteRef:17] Thus, the very specific historical legacy of the CEE region has helped to produce a culture in which notions of unbounded national sovereignty remain important in political and legal discourse. [16: On the establishment of Soviet hegemony over the CEE region see e.g. ZbynkZeman, The Making and Breaking of Communist Europe, rev edn (Oxford: Basil Blackwell, 1991), Ch. 18; Joseph Rothschild & Nancy Wingfield, Return to Diversity, 3rd edn (New York & Oxford: Oxford University Press, 2000), Ch. 3.] [17: For a good general history of the CEE region see e.g. Robert Bideleux and Ian Jeffries, A History of Eastern Europe 2nd edn (London & New York: Routledge Taylor & Francis Group, 2007).]

This critical difference in the historical experience of Western and Eastern Europe was emphasised by Istvn Bib. Writing in 1946, Bib argued that while most West European nations (French, British, Swedes, Danes, Dutch etc) have experienced economic crises, wars and, in several cases, the loss of empire, there was always, something that couldnt be taken away from them, something that couldnt be disputed.[footnoteRef:18] By contrast, in the CEE region, Bib argues, nationhood had to be made, re-fashioned, fought for and constantly protected not only from the predations of imperial powers but also from the indifference and fluctuating sense of national identity of a part of the people themselves.[footnoteRef:19] [18: Bib, supra n. 1, 220.] [19: Ibid.]

Importantly, Prime Minister Orbns speech of 15 March 2012, with its emphasis on law-making in accordance with Hungarian eyes, Hungarian way[s] of thinking and the rhythm of our Hungarian hearts, can also be understood as a rejection of the notion of a common set of European, let alone global, values. In effect, the Prime Ministers speech with its robust defence of cultural and other differences between states (or nations) as justifying variations in political and constitutional practice - challenges the fragile ideological consensus that has existed in Europe since the end of communist rule in the CEE area.[footnoteRef:20] [20: The main elements of this ideological consensus - democracy, the rule of law, human rights and economic liberty - were affirmed in the OSCEs Charter of Paris for a New Europe, adopted by Europes heads of state and government in November 1990. For the text of the Charter of Paris see e.g. http://www.osce.org/mc/39516.]

Alternatively, Prime Minister Orbns words can be understood as a call for European states, like Hungary, to enjoy an unusually broad margin of appreciation in their interpretation of shared constitutional principles, including democracy, human rights and the rule of law. On this view, each state as the ultimate custodian of its unique cultural heritage or way[s] of thinking must be the final arbiter of the legitimacy of its actions.

Prime Minister Orbns speech, with its deliberately offensive historical analogies, needs to be understood in the context of the intense criticism levelled at Hungarys new constitution, or Fundamental Law, as well as at other laws and policies adopted by Hungarys Fidesz-led government, which came to power after elections in April 2010.[footnoteRef:21] Crucially, Fidesz won over two-thirds of the seats in Hungarys unicameral parliament,[footnoteRef:22] giving it the necessary votes to secure the passage of the Fundamental Law and of a series of associated legal texts.[footnoteRef:23] [21: These criticisms are examined infra, Part 3.] [22: In Hungarys most recent general elections, held in April 2010, Fidesz secured 263 of the 386 seats in Parliament. See e.g. http://news.bbc.co.uk/2/hi/8642456.stm.] [23: In accordance with Art. 24(3) of Hungarys 1989 Constitution, a majority of two-thirds of Parliamentary Deputies was required to amend the Constitution. Similary, a two-thirds majority was required to elect the President or to amend other basic laws, including laws concerning human rights. For an English-language text of the 1989 Constitution see e.g. http://www.servat.unibe.ch/icl/hu00000_.html]

Condemnation of recent constitutional developments in Hungary has come from various sources including the OSCE, the EU Commission, the EU Parliament, the Council of Europes European Commission for Democracy Through Law, the US State Department, the Foreign Minister of France, The New York Times,The Financial Times, Der Spiegel, Le Monde and The Economist, human rights NGOs and legal scholars from Hungary and abroad. In essence, critics assert that the Fundamental Law, which entered into force in January 2012, as well as related legislation, have eroded democracy, civil liberties, and the separation of powers in Hungary.[footnoteRef:24] [24: See infra, Part 3.]

This article examines the Fundamental Law, as well as related laws and political initiatives, to determine whether the intense and sustained criticism of these measures is fully warranted. However, before reviewing the Fundamental Law and related legislation, the article provides an overview of the (re)introduction of democracy, human rights and the rule of law in Hungary and in the CEE states following the collapse of communist rule. Without a thorough understanding of the constitutional regime that operated in Hungary from 1990 to 2012 it is impossible to evaluate the Fidesz-led Governments claims that there was a pressing need for a new democratic constitution in Hungary and that the Fundamental Law and associated legislation represent a major improvement over the earlier constitutional arrangements. Finally, in Part 4, the article uses Istvn Bibs contrasting models of liberal and illiberal or authoritarian democracy to illuminate recent constitutional developments. As argued below, Bibs depiction of authoritarian democracy, which was based on the deformed political culture of the CEE region in the first half of the 20th century, as well as Bibs understanding of what a genuine democratic sensibility would mean. Bibs contrasting are used to illuminate.

Istvn Bib, who was imprisoned in Hungary for his involvement in the abortive revolution of 1956, died in politically-imposed obscurity in Budapest, in 1979. Bib is now acknowledged by a small but growing circle of British, French and American scholars as one of the 20th centurys outstanding liberal thinkers.[footnoteRef:25] As Alexandra Laignel-Lavastine has commented, [Bib] compte parmi les penseurs politiques europens la fois les plus pntrants et les plusmconnus de la seconde moiti du XXe sicle.[footnoteRef:26] [25: On Bibs scholarly writings see e.g. Robert Berki, The Realism of Moralism: The Political Philosophy of Istvan Bibo, XIII History of Political Thought (1992: 3) 513. See, also, Katalin Srvry, Democracy and international relations: the theory of Istvn Bib (19111979), 11 Journal of International Relations and Development (2008:4), 385; Alexandra Laignel-Lavastine, Esprits dEurope (Paris: Calmann-Lvy, 2005), Part Three; Johanna Granville, Istvn Bib and the history of Hungary in the 20th Century (conference paper, Trento, Italy, 26-27 October 2001), available at: www.csseo.org/Papers/paperGranville.rtf.] [26: Alexandra Laignel-Lavastine, supra n. 23, 475 (iBooks edition). The passage may be translated as: [Bib] represents one of the most insightful as well as overlooked European political thinkers of the second half of the 20th century.]

2 (RE)INTRODUCing Democracy, Human rights and the

Rule of Law in Hungary AND IN the cee states

The collapse of communist governments in the CEE region in 1989-1990 and the regions uneven transition to forms of democracy, constitutionalism and market economics has been analysed by numerous scholars.[footnoteRef:27] As emphasised by commentators, factors within individual states generally dictated the course and pace of the transitions. [27: See, in particular, Timothy Garton Ash, We the People, rev. edn (London: Penguin Books, 1989); Misha Glenny, The Rebirth of History (London: Penguin Books, 1990); Franois Fejt, La fin des dmocraties populaires (Paris: DITIONS DU SEUIL, 1992); Rothschild & Wingfield, supra n. 13, Chs. 7-8; Democratic Consolidation in Eastern Europe, Vol. I, ed Zielonka (Oxford & New York: Oxford University Press, 2001); Democratic Consolidation in Eastern Europe, Vol. II, eds Zielonka & Pravda (Oxford & New York: Oxford University Press, 2001).]

New or heavily revised constitutions were adopted in every post-communist state. In broad terms, these provided for multi-party democracy, the rule of law and respect for human and minority rights.[footnoteRef:28] With varying degrees of success the constitutions, together with a raft of accompanying legislation, succeeded in formally replacing the centralization of power characteristic of the communist order in which political power was the monopoly of the communist party - with the separation of powers characteristic of liberal parliamentary democracy. The possibility of the re-emergence of arbitrary, oppressive or dictatorial government in the CEE states was reduced, if not eliminated, through the introduction of a series of constitutional checks and balances in which, according to a range of formulae, power was shared between the various branches of government.[footnoteRef:29] [28: For a comparative analysis of post-communist constitutions in the CEE states see e.g. Leonardo Morlino, Constitutional Design and Problems of Implementation in Southern and Eastern Europe in Democratic Consolidation in Eastern Europe, Vol. I, supra n. 25, 48 at 78-105. Hungary did not enact a new constitution, or Fundamental Law, until 2011. This entered into force in January 2012. For the text (in Hungarian) see e.g. http://www.kozlonyok.hu/nkonline/MKPDF/hiteles/mk11043.pdf. For an English-language translation see e.g. http://www.kormany.hu/download/4/c3/30000/THE%20FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf. However, as discussed below, major amendments to Hungarys communist-era Constitution, passed in 1989-1990, are widely felt to have ensured that the Hungarian constitution reflected European standards of democratic pluralism, the rule of law and the protection of human and minority rights. ] [29: The major exception to this pattern of peaceful if uneven transition in the CEE area was the former Yugoslavia. See e.g. Misha Glenny, The Fall of Yugoslavia 3rd rev edn (London: Penguin Books, 1996); Allan Little, Laura Silber, Aleksandar Siric, The Death of Yugoslavia 2nd rev edn (London: Penguin Books, 1996).]

Inevitably, the success of these constitutional formulae has depended on a number of factors. These include the willingness of heads of state, members of the judiciary and parliamentary deputies to exercise their legal powers to the full, where necessary, in defence of constitutional values. Ultimately, the personal qualities of key political and legal figures - strength of character, moral values, intellectual outlook and charisma - may be as important as questions of constitutional design.[footnoteRef:30] [30: Some recent examples of the importance of the personal qualities manifested by a politician are given infra, Parts 2, 3.]

In Hungary, round table talks, involving members of the ruling communist party, opposition elements and certain other groupings, were held in the summer of 1989.[footnoteRef:31] These resulted, inter alia, in the detailed revision of Hungarys 1949 communist Constitution and in agreement on the establishment of a Constitutional Court. The heavily amended Constitution was formally adopted by Hungarys parliament in October 1989, while a series of further constitutional amendments were passed in 1990.[footnoteRef:32] As as result of these measures, the 1949 communist Constitution was comprehensively overhauled to meet the requirements of a liberal, multi-party democracy. As emphasised by Istvn Szikinger, the constitutional amendments adopted in Hungary, in 1989-90, resulted in a critical shift in the underlying ethos or spirit of Hungarys Constitution: [31: For an account of the round table talks see e.g. Paul Lendvai, Hungary: Between Democracy and Authoritarianism (London: Hurst & Company, 2012), 24-26. See, also, Istvn Szikinger, Hungarys Pliable Constitution in Democratic Consolidation in Eastern Europe, Vol. I, supra n. 25, 406 at 410-14.] [32: For the text of the revised Constitution (in English), which remained in force until 1st January 2012, see supra, n. 21.]

Although the Hungarian Constitution remains officially cited as Act No. XX of 1949 (as amended) practically no provision survived unscathed after the numerous modifications...The 1989 amendment (Act No. XXXI) changed not only an overwhelming majority of positive rules in the basic law, but also its spirit. The party-state rgime enshrined in the 1949 communist Constitution was thus transformed into one structured along the principles of division of power and the liberal values of human rights and public power.[footnoteRef:33] [33: Szikinger, supra n. 29, 47.]

Similarly, the political scientist, Attila gh, has argued that the revised constitution, despite its shortcomings, may be accepted as an appropriate constitution for a democratic legal state, as it meets all the major requirements of European standards.[footnoteRef:34] [34: Attila gh, The Permanent Constitutional Crisis in the Democratic Transition: The Case of Hungary in Constitutional Policy and Change in Europe, eds Hesse and Johnson (Oxford: Oxford University Press, 1995) 296, at 300.]

Following general elections, held in March and April 1990, a right of centre government was formed by the Magyar Democratic Forum (MDF) in coalition with the Independent Smallholders Party and the Christian Democrats.[footnoteRef:35] The government was headed by the MDFs leader, Jzsef Antall.[footnoteRef:36] Hungarys first post-communist president, chosen by agreement amongst the parliamentary parties, was rpd Gncz, a communist-era dissident who was now a member of the opposition Free Democrats.[footnoteRef:37] Hungarys newly established Constitutional Court, which began work in January 1990, was presided over by Lszl Slyom, a former law professor.[footnoteRef:38] [35: See e.g. Rothschild & Wingfield, supra n. 13, at 244-45.] [36: On Antall see e.g. Lendvai, supra n. 29, Ch. 3.] [37: Lendvai, supra n. 29, at 37-39.] [38: On Slyoms background and on his role as the first president of Hungarys Constitutional Court see generally Kim Lane Scheppele excellent article, Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Communist Europe, University of Pennsylvania Law Review 154 (2006), 1757.]

The Constitutional Court quickly became central to Hungarys emergent constitutional system. As noted by Attila gh, the Court gained an influential place in the division of powers and a vital role in political life, becoming a key player.[footnoteRef:39] Similarly, Princeton Universitys Kim Lane Scheppele has emphasized the pivotal role that Hungarys Constitutional Court came to exercise, in the 1990s, in a fragile world of political reconstitution.[footnoteRef:40] Scheppele notes that: [d]uring Slyoms nine-year tenure, the Courtissued 1871 decisions and had a hand in virtually every major aspect of Hungarys transition to an independent democratic state.[footnoteRef:41] [39: gh, supra n. 32, at 315.] [40: Scheppele, supra n. 36, at 1758.] [41: Ibid., 1785.]

Decisions of the Constitutional Court have helped to clarify, inter alia, the functions and powers of the head of state, the lawfulness of the death penalty, the extent of the constitutional protection of socio-economic rights, as well as the permissible scope of measures of transitional justice, including compensation for injuries to property and other rights by earlier Hungarian administrations.[footnoteRef:42] The subject-matter jurisdiction of the Court and rules governing locus standi were exceptionally broad, [footnoteRef:43] suggesting a genuine desire to constitutionalise the new political system. Professor Scheppele argues that: [w]hen communism collapsed, constitutionalism stood up to take its place. Or, at least, constitutionalism offered itself as a moral ideology of the state to replace the instrumental ideology of communismvirtually all in Hungarian public life eagerly embraced this new philosophy.[footnoteRef:44] [42: See, generally, Catherine Dupr, Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity (Oxford: Hart, 2003); Constitutional Judiciary in a New Democracy, eds Lszl Slyom and Georg Brunner (Ann Arbor: University of Michigan Press, 2000); Istvn Pogny, Righting Wrongs in Eastern Europe (Manchester: Manchester University Press, 1997), Parts II, III. For a comparative study of constitutional courts in Central and Eastern Europe see Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe 2nd edn (Dordrecht: Springer, 2007).] [43: See, generally, Herman Schwartz, The New East European Constitutional Courts in Constitution Making in Eastern Europe in Constitution Making in Eastern Europe, ed Howard (Washington, DC: Woodrow Wilson Center Press, 1993), 163 at 167-75.] [44: Scheppele, supra n. 36, at 1846.]

Under Hungarys revised constitution a credible system of checks and balances and of multi-party democracy was introduced for almost the first time in Hungarys history.[footnoteRef:45] This represented an extraordinary shift from the communist-era political process in which policy-making was neither transparent nor inclusive, in which judicial review was virtually unknown and in which political power had been concentrated almost exclusively in the hands of the inner circles of the Party. [45: As Misha Glenny caustically observed: Hungary may have a proud history, but its democratic traditions would barely fill a school exercise book. Glenny, supra n. 25, 72. See, also, Gale Stokes, The Social Origins of East European Politics in The Origins of Backwardness in Eastern Europe ed Daniel Chirot (Berkeley and Los Angeles: University of California Press, 1989) 210, esp at 219-26.]

To many observers, particularly in the 1990s, Hungarys democratic institutions seemed reasonably robust. Under Slyom, who was President of Hungarys Constitutional Court from July 1990 until November 1998, the Court was widely respected for its willingness to confront the executive and for the intellectual rigour of many of its judgments.[footnoteRef:46] At the same time, a number of Hungarys post-communist heads of state, beginning with the former political dissident, rpad Gncz, demonstrated a capacity for independent-mindedness.[footnoteRef:47] In particular, Gncz and one of his successors, Lszl Slyom, viewed the presidency as an important check on the executive and as a custodian, together with the Constitutional Court, of the Constitution. [46: See e.g. Scheppele, supra n. 36, 1775-1786. ] [47: On the increasingly strained relations between the Prime Minister, Jzsef Antall, and the State President, rpd Gncz see e.g. Lendvai, supra n. 29, 38-47.]

From 1990 to 2010, the power of Hungarian prime ministers was limited by the exigencies of coalition government, by periodic interventions by the President or by the Constitutional Court, as well as by a growing number of normative constraints resulting from Hungarys new diplomatic alignment. Hungary joined the Council of Europe in November 1990,[footnoteRef:48] the OECD in May 1996,[footnoteRef:49] NATO in March 1999[footnoteRef:50] and the EU in May 2004.[footnoteRef:51] Hungary has also been a participating state in the OSCE, formerly the CSCE, since its inception.[footnoteRef:52] [48: For details see e.g. http://www.coe.int/en/web/coe-portal/country/hungary.] [49: See e.g. http://www.oecd.org/general/listofoecdmembercountries-ratificationoftheconventionontheoecd.htm.] [50: On the history of Hungarian-NATO relations see e.g. http://www.mfa.gov.hu/kum/en/bal/foreign_policy/security_policy/hungary_in_nato/history__hungarian_nato_relations/.] [51: For details of EU member states see e.g. http://europa.eu/about-eu/countries/index_en.htm.] [52: For a list of CSCE participating states see http://www.osce.org/who/83.]

Membership of these organisations entails a clear commitment to the principles of multiparty democracy, the rule of law and respect for individual and minority rights. For example, Art. 3 of the Statute of the Council of Europe provides that: [e]very member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms.[footnoteRef:53] Similarly, in November 1990, states participating in the OSCE (then the CSCE), expressed their commitment to the principles of democracy, human rights and the rule of law in The Charter of Paris.[footnoteRef:54] With respect to the EU, Members human rights obligations are spelt out, inter alia, in Arts. 2, 3, 6 and 21 of the Consolodated version of the Treaty on European Union,[footnoteRef:55] while [53: For the text of the Statute see e.g. European Treaty Series - No 1 (London, 5.V.1949).] [54: For the text of the Charter see e.g. http://www.osce.org/mc/39516.] [55: For the text of the Treaty see Official Journal of the European Union, 2010/C 83/01, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:FULL:EN:PDF.]

post-communist states seeking to join the Organisation have had to show that they have:

...achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union.[footnoteRef:56] [56: See PRESIDENCY CONCLUSIONS, Copenhagen European Council, 21-22 June 1993, available at: http://www.europarl.europa.eu/enlargement/ec/pdf/cop_en.pdf.]

In the same period, Hungary and other CEE states have also expressed their acceptance of western, liberal values by acceding to various human rights treaties that focus on civil, political and minority rights, in contrast to the social and economic rights or, more properly, principles that were emphasised by the socialist states during the communist era.[footnoteRef:57] Thus, Hungary became a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms in November 1992,[footnoteRef:58] the European Charter for Regional or Minority Languages in March 1998,[footnoteRef:59] and the Framework Convention for the Protection of National Minorities in February 1998.[footnoteRef:60] The increasingly dense web of Hungarys international human rights commitments - many of which were assumed as a direct consequence of Hungarys transition to democracy - reinforced and complemented the principles enshrined in Hungarys 1989 Constitution. [57: On the socialist states ideological emphasis on social and economic rights see e.g. Daniel Whelan and Jack Donnelly, The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight, Human Rights Quarterly 29:4 (2007): 908 at 946. ] [58: See http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=8&DF=&CL=ENG.] [59: See http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=148&CM=8&DF=&CL=ENG.] [60: Seehttp://www.coe.int/t/dghl/monitoring/minorities/6_Resources/PDF_Table_Monitoring_en.pdf.]

By early 2010, it seemed to many foreign observers that a functioning, if frequently imperfect, constitutional democracy and a viable system of checks and balances had been established in Hungary. However, the major constitutional changes introduced by the present government, following its decisive victory in general elections in April of that year, have prompted a reassessment of the state of democracy and of constitutionalism in Hungary.

3 The EROSION of Democracy AND CONSTITUTIONALISM in Hungary

As noted above, intense foreign and domestic criticism has been directed at Hungarys Fundamental Law, which entered into force in January 2012, as well as at other laws and policies introduced by Hungarys Fidesz-led Government. For example, writing in The New York Times in December 2011, Paul Krugman, Professor of Economics at Princeton and a regular columnist for the paper, denounced the Fundamental Law, as well as other laws proposed by Hungarys right of centre government: [ta]ken together, all this amounts to the re-establishment of authoritarian rule, under a paper-thin veneer of democracy, in the heart of Europe.[footnoteRef:61] [61: Paul Krugman, Depression and Democracy, The New York Times, 11 December 2011. See, also, Ian Bremmer, Hungarys new path is the hidden danger to Europe, Financial Times, 9 October 2011; Adam leBor, Democracy in Hungary: Ring the alarm, The Economist, 9 December 2011; Charles Gati,Hungarys Backward Slide,The New York Times, 12 December 2011; Charles Hawley, Democratic Deficiencies Abound in Hungary, SPIEGEL ONLINE INTERNATIONAL, 12 December 2011, available at: http://www.spiegel.de/international/europe/the-world-from-berlin-democratic-deficiencies-abound-in-hungary-a-805112.html; Kim Lane Scheppele, Hungarys Constitutional Revolution,The New York Times, 19 December 2011; Catherine Dupr, Hungary's fundamental law challenges the EU's democratic ideals, Comment is free (The Guardian), 13 March 2012, available at: http://www.guardian.co.uk/commentisfree/libertycentral/2012/mar/13/hungary-fundamental-law-eu#start-of-comments; Kim Lane Scheppele, The New Hungarian Secret Police,The New York Times, 17 April 2012.]

An article in the French newspaper, Le Monde, described the Fundamental Law as une Constitution liberticide i.e. as a constitution that dealt a death-blow to liberty.[footnoteRef:62] The article summed up the various legal and political initiatives taken by Hungarys new government as tantamount to un quasi-coup d'tat.[footnoteRef:63] [62: Caroline Fourest, Un symptme hongrois mditer, Le Monde, 7 January 2012.] [63: Ibid.]

In December 2011, shortly before the Fundamental Law and various related statutes entered into force, the US Ambassador to Hungary took the unusual step of expressing her concerns publicly. Ambassador Kounalakis used the pages of Heti Vlasz to urge Hungarys government to think again:

A number of credible voices are raising questions. Are there sufficient checks and balances built in to the new system such that the independence of democratic institutions is maintained for future generations of Hungarians?...Do the reforms inspire the trust of the people?[footnoteRef:64] [64: For an English-language translation of Ambassador Kounalakiss article see http://hungary.usembassy.gov/kounalakis12082011.html. ]

In a letter to Hungarys Prime Minister, dated 23 December 2011, US Secretary of State Clinton reaffirmed Ambassador Kounalakis reservations. Clinton asserted that the US has significant and well-founded concerns about the Fundamental Law and related legislation that would come into force in January 2012.[footnoteRef:65] [65: For a facsimile of Secretary of State Clintons letter see e.g. http://nol.hu/media/file/attach/25/14/00/000001425-6248.pdf. On 3 January 2012, the French Foreign Minister, Alain Jupp declared that there is a problem today in Hungary and that, the fundamental principles [of the EU] must be respected everywhere, including Hungary. See Le Monde, 4 January 2012.]

Although slower to respond to developments in Hungary than the US State Department, the EU Parliament adopted a resolution in February 2012 in which it expressed serious concern about democracy, the rule of law and the protection of human rights in Hungary.[footnoteRef:66] In the previous year, the European Commission for Democracy Through Law, more commonly known as the Venice Commission, adopted two detailed and highly critical Opinions on Hungarys Fundamental Law and on the process leading up to its adoption.[footnoteRef:67] [66: See European Parliament resolution of 16 February 2012 on the recent political developments in Hungary (2012/2511(RSP)). In January 2012, the EU Commission launched accelerated infringement proceedings against Hungary because of concern at government measures that, variously, threatened data protection, the independence of the Hungarian Central Bank and the autonomy of the judiciary. For details of the EU Commissions concerns see e.g. the texts at: http://ec.europa.eu/commission_2010-2014/reding/multimedia/news/2012/01/20120111_en.htm.] [67: See OPINION ON THREE LEGAL QUESTIONS ARISING IN THE PROCESS OF DRAFTING THE NEW CONSTITUTION OF HUNGARY, Opinion no. 614/2011 (Strasbourg, 28 March 2011); OPINION ON THE NEW CONSTITUTION OF HUNGARY, Opinion no. 621/2011 (Strasbourg, 20 June 2011). By 1 August 2012, the Venice Commission had adopted no fewer than six further Opinions on constitutional developments in Hungary. These are discussed infra. ]

The international condemnation of recent political and constitutional developments in Hungary is important not only for Hungary but for Europe more generally. The subversion of liberal constitutional principles and institutions in Hungary, since 2010, suggests that the project of transforming the ex-communist states of Central and Eastern Europe (CEE) into stable, liberal democracies (and market economies) may have failed, at least in part. More disturbingly, mounting evidence in Hungary of authoritarianism, of the governments manipulation of nationalist sentiment and, particularly within the civil sphere, of escalating hostility towards Roma and Jews suggests that the contest for the soul of Europe is far from over, particularly if viewed in conjunction with evidence of the erosion of civil liberties and of growing intolerance in parts of western Europe.[footnoteRef:68] [68: The success of right-wing, anti-immigrant (or anti-Muslim) parties in prosperous, developed west European countries, including France, the Netherlands and Denmark, suggests that levels of intolerance are rising across much of the continent. The erosion of civil liberties in western Europe is most clearly apparent in the draconian measures various states have adopted in response to the spectre of terrorism. For example, Liberty, commenting on UK anti-terrorist legislation, has argued: [m]uch recent counter-terrorism legislation is dangerously over-broad and has affected vast numbers of people in particular peaceful protesters and ethnic minority groups undermining civil liberties and fundamental human rights.See: http://www.liberty-human-rights.org.uk/human-rights/terrorism/overview-of-terrorism-legislation/index.php.]

The historian, Mark Mazower, has emphasised that, in Europe, the triumph of democracy and human rights over totalitarianism and systems of racial oppression was never a foregone conclusion. Writing after the collapse of communism in the CEE region, Mazower cautioned:

...democracy reigned supreme as the First World War ended, but it was virtually moribund two decades later...It was thus not preordained that democracy would win out over fascism and communism, just as it remains still to be seen what kind of democracy Europe is able and willing to build.[footnoteRef:69] [69: Mark Mazower, Dark Continent: Europes Twentieth Century (London: Penguin Books, 1999), xii. ]

As Mazower points out, Europe may seem to be a continent of old states and peoples, yet it is in many respects very new, inventing and reinventing itself...through often convulsive political transformation.[footnoteRef:70] [70: Ibid., ix.]

The crisis of democracy and constitutionalism in Hungary, in the second decade of the 21st century, could conceivably become a crisis of European proportions, particularly if underlying economic, social and political problems are not addressed.

Criticism of the new constitutionalism in Hungary has focused on the process by which the Fundamental Law and various related statutes were adopted as well as on the substance of these legal instruments. These criticisms are examined in turn.

4.1 THE FLAWED Process of constitution-making IN HUNGARY

The European Commission for Democracy Through Law (hereafter the Venice Commission) was established under the auspices of the Council of Europe, in 1990, following the collapse of communist regimes in the CEE area and the urgent need to assist the states in the region to effect a smooth transition to liberal constitutionalism. The Commissions mandate extends, inter alia, to promoting the rule of law and democracy as well as examining the problems raised by the working of democratic institutions and their reinforcement and development.[footnoteRef:71] Members of the Venice Commission serve in their individual capacity and are drawn, overwhelmingly, from the ranks of senior professors of constitutional law or related subjects, as well as former or serving judges of constitutional or supreme courts.[footnoteRef:72] [71: See Art. 1(1), Revised Statute of the European Commission for Democracy through Law, Resolution(2002)3, available at: http://www.venice.coe.int/site/main/Statute_E.asp] [72: For the composition of the Venice Commission see: http://www.venice.coe.int/site/dynamics/N_Members_ef.asp?L=E&All=Yes]

Consequently, the Venice Commission represents a unique repository of theoretical as well as hands on expertise in matters of constitutional law and practice. Although the Venice Commissions views are not legally binding on states per se, the intellectual calibre of many of the Commissioners as well as their experience of the application and enforcement of constitutional law at the highest levels, invests the Commissions Opinions with enormous moral authority. At the very least, they can be regarded as an example of soft law. Consequently, the Venice Commissions trenchant criticisms of the process by which Hungarys Fundamental Law was adopted should be given careful consideration.

Opinion No. 614 of 2011 of the Venice Commission followed a request for advice from Hungarys Minister of Justice, dated 21 February 2011, concerning several issues that had arisen in the course of the Governments efforts to draft a new constitution. Following the Ministers request, the Venice Commission sent a delegation to Hungary, which included Christoph Grabenwarter, a Judge of Austrias Constitutional Court, Wolfgang Hoffmann-Riem, a former Judge of Germanys Federal Constitutional Court and Hanna Suchocka, formerly Prime Minister and Minister of Justice of Poland. The Venice Commissions Opinion, which was adopted in late March 2011, merits quoting at length:

14. At the date of the visit of its delegation [7-8 March 2011], the text of the draft Constitution had not yet been released. The Commission was informed that the draft was being finalisedThe adoption of the Constitution was foreseen for 18 April 2011.

15. while initially associated to this processthe opposition forces were for several months not participating in the elaboration of the draft andthere was no longer a dialogue between the majority and the opposition in this regard

16. Moreover, concerns have been raised within the civil society over the lack of transparency of the process and the inadequate consultation of the Hungarian society on the main constitutional challenges to be addressed in this context. Since the draft was only submitted to the Parliament on 14 March 2011, only limited public debate could take place on the changes and novelties that the future Constitution might introduce.[footnoteRef:73] [73: Paras. 14-16, OPINION ON THREE LEGAL QUESTIONS ARISING IN THE PROCESS OF DRAFTING THE NEW CONSTITUTION OF HUNGARY, supra n. 65.]

The facts set out by the Venice Commission, in its Opinion, reveal an inexplicably compressed time-scale for the adoption of the new constitution, an almost total lack of co-operation or consultation with opposition parties, as well as the Governments failure to submit a draft text of the Fundamental Law to Hungarys Parliament until as late as 14 March 2011, little over a month before the Fundamental Law was scheduled for adoption. The Commissions carefully-worded advice to Hungarys Minister of Justice, in Opinion No. 614 of 2011, can also be read as a rebuke to the Hungarian Government over its unsatisfactory handling of the process of constitution-making:

18. The Commission would like to recall that transparency, openness and inclusiveness, adequate timeframe and conditions allowing pluralism of views and proper debate of controversial issues, are key requirements of a democratic Constitution-making process.

19. In its opinion, a wide and substantive debate involving the various political forces, non- government organisations and citizens associations, the academia and the media is an important prerequisite for adopting a sustainable text, acceptable for the whole of the society and in line with democratic standards. Too rigid time constraints should be avoided and the calendar of the adoption of the new Constitution should follow the progress made in its debate.[footnoteRef:74] [74: Ibid., paras. 18-19.]

The clear (and one might have thought uncontroversial) policy guidelines formulated by the Venice Commission went almost entirely unheeded, precipitating renewed criticism of the Hungarian Government in a later Opinion:

it is regrettable that the constitution-making process, including the drafting and the final adoption of the new Constitution, has been affected by lack of transparency, shortcomings in the dialogue between the majority and the opposition, the insufficient opportunities for an adequate public debate, and a very tight timeframe.[footnoteRef:75] [75: See OPINION ON THE NEW CONSTITUTION OF HUNGARY, Opinion no. 621/2011, supra n. 65, para. 144. ]

At this point in time, an explanation of the factors that led to the procedural defects identified by the Venice Commission as well as other procedural irregularities, including the fact that the draft Fundamental Law and other constitutional texts were submitted to Parliament in the form of Private Members Bills can only be surmised. However, well-informed academic commentators, including Professor Kim Lane Scheppele of Princeton University, have charged the Hungarian Government with employing procedures that minimised the possibilities of internal or external review of the draft Fundamental Law and of related texts before they were adopted by Parliament.[footnoteRef:76] [76: Kim Lane Scheppele, Hungary, Misunderstood?, The New York Times, 21 January 2012.]

4.2 HUNGARYS FLAWED constitution

Lack of space precludes an exhaustive analysis of all the features of Hungarys Fundamental Law and of related laws and practices that have been called into question.[footnoteRef:77] The following analysis will focus on (a) the ethnification of Hungarys new constitution; (b) changes in Hungarian constitutional practice concerning the role of the state president; (c) the perceived threat to judicial independence in Hungary and the diminished role of the Constitutional Court; and (d) restrictions on the independence and freedom of Hungarys print and electronic media.[footnoteRef:78] [77: For a detailed critique of the Basic Law compiled by prominent Hungarian and US scholars see e.g. Opinion on the Fundamental Law of Hungary eds Arato, Halmai and Kis (June 2011), available at: http://lapa.princeton.edu/hosteddocs/amicus-to-vc-english-final.pdf. See, also, Attila Vincze & Marton Varju,Hungary: The New Fundamental Law, European Public Law 18 (2012), 437; Mikls Bnkuti, Gbor Halmai and Kim Lane Scheppele, Disabling the Constitution, Journal of Democracy 23 (2012), 138; Gbor Halmai, Towards an illiberal democracy: Hungary's new constitution, Eurozine (25 January 2012), available at: http://www.eurozine.com/articles/2012-01-25-halmai-en.html. See, also, various Opinions of the Venice Commission, supra n. 65.] [78: Other features of Hungarys new constitutional settlement that have attracted domestic and foreign criticism include restrictions on the formal recognition of religious denominations. For example, Gbor Halmai has noted that, in addition to the Basic Law or new Constitution:

Many other cardinal laws were also passed in late December 2011. One of them is the law on the status of churches, which creates 14 staterecognized religions and decertifies the rest. On 1 January, over 300 denominations lost their official status in Hungary including their tax exemptions and their abilities to run statefunded schools.See Halmai, supra n. 76, at 10. In a letter to Viktor Orbn, dated 23 December 2011, US Secretary of State, Hilary Clinton, was highly critical of the new Law on Churches. Clinton argued, inter alia, that the procedure envisaged by the law, for recognising denominations other than the fourteen expressly listed in the statute, were prohibitively cumbersome and unnecessarily politicize[d] decisions surrounding a basic human right. For the text of Secretary of State Clintons letter see supra, n. 63. See, also Vincze and Varju, supra n. 75, at 439.]

(a) The Ethnification of Hungarys New Constitution

In Opinion No. 621 of 20 June 2011, the Venice Commission was critical of various aspects of Hungarys draft Fundamental Law. These include the distinction drawn in the Preamble between Hungarians (i.e. ethnic Magyars) and Hungarian citizens belonging to other nationalities. In particular, the Commission was critical of the Preamble for its overal lack of ethnic inclusivity:

While this statement [the nationalities living with us form part of the political community and are constituent parts of the State] may be seen as an effort towards inclusiveness, it is also to be noted that the Preamble has been written in the name of we the members of the Hungarian nation, intimating that members of the nationalities living with us are not part of the people behind the enactment of the Constitution.[footnoteRef:79] [79: Para. 40, OPINION ON THE NEW CONSTITUTION OF HUNGARY, Opinion no. 621/2011, supra n. 65.]

Hungarian constitutional practice in this respect is by no means unique. Several constitutions in the CEE area, adopted since the fall of communist rule, have introduced distinctions between elements of their respective populations based on national or ethnic affiliation.[footnoteRef:80] In effect, one national group, whether Slovak, Slovene, Croat, Hungarian etc, is elevated by these constitutions to a pre-eminent position in the formation and overriding function or purpose of the state. As recognised by the Venice Commission, an emphasis on the ethnic foundation of statehood can only compound the marginalisation of national and ethnic minorities in the collective political imagination, notwithstanding the routine affirmation of principles including non-discrimination, equality before the law and minority rights. [80: See, generally, Istvn Pogny, Pariah Peoples: Roma and the Multiple Failures of Law in Central and Eastern Europe, Social & Legal Studies [March, 2012] 1 at 10, available at: http://sls.sagepub.com/content/early/2012/03/28/0964663911429152.full.pdf?patientinform-links=yes&legid=spsls;0964663911429152v1.]

In some respects the emphasis on ethnicity, i.e. on the Hungarian nation, in Hungarys Fundamental Law, represents a closing of the gap between constitutional practice in Hungary and elsewhere in the CEE area. However, it also represents a clear example of what Bib saw as the most characteristic feature of the East European political sensibility: existential fear for the survival of the community or nation.[footnoteRef:81] [81: Bib, supra n. 1, 202 at 220.]

As recognised by various commentators, the presence of sizeable ethnic Hungarian minorities in states bordering Hungary particularly in Romania, Slovakia, Serbia and the Ukraine combined with the constitutionalization of ethnicity in Hungarys Fundamental Law, is likely to increase friction between Hungary and its neighbours, as well as between Hungarian minorities and majority populations in the neighbouring states. In particular, the emotionally-charged and legally fuzzy proposition in Article D of the Fundamental Law,

that Hungary shall bear responsibility for the fate of Hungarians living beyond its borders is highly problematic.[footnoteRef:82] As the Venice Commission emphasized, the wide understanding of the Hungarian nation and of Hungarys responsibilities in the Fundamental Law may hamper inter-State relations and create inter-ethnic tension.[footnoteRef:83] [82: See, generally, Para. 39, OPINION ON THE NEW CONSTITUTION OF HUNGARY, Opinion no. 621/2011, supra n. 65.] [83: Ibid.]

For Bib, the preoccupation with issues of ethnicity and national survival in Hungary, as in the region more generally, has been an impediment to the establishment of democracy as well as a potential source of friction and instability. All too often, peoples in the CEE area had viewed democratic pluralism as a threat to their vital interests.[footnoteRef:84] [84: Bib, supra n. 1, 202 at 222-23.]

(b) The Role of Hungarys State President

A recent article in the Journal of Democracy notes dryly that: under the old constitution, the president [of Hungary] held a number of important powers that could keep the government in checkWithout changing the laws, the Fidesz government changed the person.[footnoteRef:85] [85: See, Bnkuti, Halmai and Scheppele, supra n. 75, at 141.]

As emphasized in Part 2, a number of Hungarys post-communist Heads of State viewed the office of president as a vital check on the executive. Both rpd Gncz and Lszl Slyom were prepared to confront the government where they considered that important constitutional interests were at stake

However, the Governments nomination of Pl Schmitt to succeed Lszl Slyom, as Hungarys Head of State, was indicative of an important shift in policy. According to a normally reliable Hungarian publication, senior figures in the ruling party were anxious that Slyoms successor should be less politically intrusive.[footnoteRef:86] [86: On the thinking of senior Fidesz figures about who should succeed Slyom as state president see Hetek: Orszgos Kzleti Hetilap, 7 July 2010, available at: http://www.hetek.hu/belfold/201007/az_emberek_embere The article notes that Fidesz leaders had been anxious that Lszl Solyoms successor, as president, should not emulate Solyom in regularly interfering in the political life of the country.]

Schmitt, who had been a Fidesz Deputy and Speaker of the National Assembly before his nomination, explained during the selection process that he would try to assist the government if he were elected President: I wont be...an obstacle to the governments rate of progress in pursuing its legislative program. Rather, I intend to be the programs motor. I certainly dont want to be a counterweight to the government.[footnoteRef:87] [87: Ibid.]

In describing himself as the potential facilitator of the governments policies and in rejecting outright the role of counterweight to the government, Schmitt revealed his ignorance of (or unconcern for) the basic principles of liberal constitutionalism, including the separation of powers. Schmitts self-proclaimed desire to use the office of president to assist the government may suggest a degree of political engagement with one political party that was fundamentally incompatible with his role as head of state, as defined by the 1989 Constitution. For example, in accordance with Art. 26(4) of the 1989 text, if the President had reservations about the constitutionality of any provision of a law he could refer it to the Constitutional Court for review.[footnoteRef:88] Thus, the Constitution required the President to exercise his independent judgment in constitutional matters rather than to serve as a cipher of the executive. [88: For an English-language text of the 1989 Hungarian Constitution see e.g. supra n. 21.]

Having commenced his term of office in August 2010, Schmitt was forced to resign the presidency in April 2012 after a finding by Budapests Semmelweiss University that, some years previously, he had plagiarised the bulk of his doctoral thesis.[footnoteRef:89] Significantly, the Government, instead of taking this opportunity to nominate an independent political figure to the presidency, as advocated by many commentators, nominated a founding member of Fidesz, Jnos der. [89: See http://www.semmelweis-univ.hu/news/2556/university-senate-revokes-pal-schmitt%E2%80%99s-doctoral-dr-univ-title/.]

Since assuming power, in April 2010, the present Government relying on its massive majority in Parliament - has turned the state presidency into little more than a ceremonial office. In terms of legislative efficiency, this may appear eminently reasonable. Government leaders, one assumes, need no longer worry that the President may exercise his constitutional powers to obstruct the Governments ambitious legislative program. However, in terms of constitutionalism, the deliberate downgrading of the presidency to a subordinate role may prove disastrous. For short-term political advantage, the Government has dislodged one of the main constitutional pillars that had served as a check on executive power and authoritarianism in Hungary.

(c) The Threat to Judicial Independence in Hungary and the Diminished Role of Hungarys Constitutional Court

In a letter to Hungarys Prime Minister, dated 23 December 2011, US Secretary of State Hilary Clinton criticised, inter alia, the new judicial law, which concentrated power in the President of the National Judicial Office (NJO): [i]n our view, this dismantles important checks and balances preserving judicial independence.[footnoteRef:90] In an Opinion adopted in March 2012, the Venice Commission strongly endorsed these criticisms: [90: See Secretary of State Clintons letter to Viktor Orbn, dated 23 December 2011, supra n. 63.]

The main problem is the concentration of powers in the hands of one person, i.e. the President of the NJO. Although States enjoy a large margin of appreciation in designing a system for the administration of justice, in no other member state of the Council of Europe are such important powers, including the power to select judges and senior office holders, vested in one single person. Neither the way in which the President of the NJO is designated, nor the way in which the exercise of his or her functions is controlled, can reassure the Venice Commission. The President is indeed the crucial decision-maker of practically every aspect of the organisation of the judicial system and he or she has wide discretionary powers that are mostly not subject to judicial controlThe very long term of office (nine years) adds to these concerns.[footnoteRef:91] [91: OPINION ON ACT CLXII OF 2011 ON THE LEGAL STATUS AND REMUNERATION OF JUDGES AND ACT CLXI OF 2011 ON THE ORGANISATION AND ADMINISTRATION OF COURTSOF HUNGARY (Strasbourg, 19 March 2012), Opinion 663/2012, para. 118 (my emphasis).]

In addition to appointing judges and senior office holders, the President of the NJO may, inter alia, decide on the allocation of cases to particular courts. The Venice Commission condemned this practice as manifestly incompatible with Article 6 of the European Convention on Human Rights.[footnoteRef:92] [92: Ibid., paras. 90-94.]

In view of the concentration of enormous discretionary powers in the hands of the President of the NJO, the choice of Tnde Hand to occupy that office raises uncomfortable questions about the appearance, if not necessarily the substance, of impartiality. It is common knowledge that Hand, a respected lawyer, has been a close personal friend of both the Prime Minister and his wife since they were students in the 1980s.[footnoteRef:93] In addition, Hand is married to Jzsef Szjer, one of the founders of Fidesz and, reputedly, one of the authors of the Fundamental Law. In view of Hands extensive political baggage her appointment as President of the NJO breaches the spirit of the separation of powers. [93: See e.g. The End of the independent judiciary, Hungarian Spectrum (posted 13 December 2011), available at: http://esbalogh.typepad.com/hungarianspectrum/2011/12/the-end-of-the-independent-judiciary.html.]

As indicated in Part 2, Hungarys Constitutional Court played a critical role in the development of Hungarys post-communist constitutional culture, particularly in the 1990s. However, as a result of various measures introduced by the present Government, the Court is no longer viewed by most observers as a serious challenge to the Governments ability to carry out its program. As noted by Bnkuti, Halmai and Scheppele, [a]lthough the Court still exists, it has now largely disappeared from the political landscape.[footnoteRef:94] [94: See e.g. Bnkuti, Halmai and Scheppele, supra n. 75, at 139-40.]

The disappearance of Hungarys Constitutional Court was achieved by increasing the number of Judges and by ensuring, as far as possible, that new appointees are broadly sympathetic to the aims and policies of the present Government, by limiting access to the Constitutional Court and, finally, by curtailing the Courts subject-matter jurisdiction:

the Court can no longer review for constitutionality any laws about budgets or taxes unless those laws affect rights that are hard to infringe with budget measures (rights to life, dignity, data privacy, thought, conscience, religion, and citizenship). Conspicuously, the Constitutional Court is not allowed to review budget or tax laws if they infringe other rightssuch as the right to property, equality under the law, the prohibition against retroactive legislation, or the guarantee of fair judicial procedure.[footnoteRef:95] [95: Ibid. See, also, Opinion on the Fundamental Law of Hungary, supra n. 75, at 25-28; Scheppele, Hungarys Constitutional Revolution, supra n. 59. For a more positive view of the recent Government-inspired changes to the Courts jurisdiction ratione personae and ratione materiae see Vincze and Varju, supra n. 75, at 452-53.]

In Opinion no. 665/2012, the Venice Commission expressed concern about the recent changes to the rules governing the composition and jurisdiction of Hungarys Constitutional Court. In particular, the Commission regretted that, in contrast to practice in a number of other countries, only Parliament which is controlled by Fidesz - can appoint judges to the Court.[footnoteRef:96] As the Commission noted, in a legislature dominated by a single political party this creates the risk of politicisation of the Constitutional Court.[footnoteRef:97] The Venice Commission also urged that recently imposed restrictions on the Courts subject-matter jurisdiction should be removed. In particular, the Commission called for the abolition of limits on the Constitutional Court's control powers in budgetary matters.[footnoteRef:98] [96: See OPINION ON ACT CLI OF 2011 ON THE CONSTITUTIONAL COURTOF HUNGARY (Strasbourg, 19 June 2012), Opinion no. 665 / 2012 para. 8. For the text (in Hungarian) of the 2012 Act on the Constitutional Court (Act CLI: 2012) see e.g. http://www.mkab.hu/jog/ab-torveny.] [97: OPINION ON ACT CLI OF 2011 ON THE CONSTITUTIONAL COURTOF HUNGARY, supra n. 94, para. 8. Under the 1989 Constitution a majority of parliamentary parties had to agree every nomination to the Court. Thereafter, a two-thirds vote of members of Parliament was required to appoint the nominee. See Bnkuti, Halmai and Scheppele, Disabling the Constitution, supra n. 75, at 139.] [98: Para. 54.10, Opinion no. 665/2012, supra n. 94. See, also, ibid., para. 38. See, generally, Bnkuti, Halmai and Scheppele, Disabling the Constitution, supra n. 75, at 139-40.]

The Government has taken various steps to try to limit the risk of judicial interventionism. If successful,[footnoteRef:99] this strategy will no doubt facilitate the rapid implementation of the Governments legislative program. However, in the longer term, measures such as restricting the jurisdiction of the Constitutional Court and impairing the independence of Hungarys judicial system and can only weaken the Hungarian constitution. Since Fideszs election victory, in 2010, Hungary has given every appearance of regressing to a unipolar political system in which the notion of checks and balances has less and less meaning and in which key figures whether constitutional court judges, the heads of the National Judicial Office and the Media Council or even the President of Hungary, are selected, at least in part, on the basis of their presumed loyalty to and ideological empathy with - the Government and the ruling party. [99: One should note here a recent Judgment of Hungarys embattled Constitutional Court, delivered in July 2012, which has attracted considerable interest because it suggests that the Court may not have become entirely quiescent. In this Judgment, the Court declared recent Government-supported legislation that reduced the age of retirement of judges to be unconstitutional. For the text of the Judgment see Decision 33/2012. (VII. 17.) AB hatrozat, available at: http://www.mkab.hu/letoltesek/alkotmanybirosag_hatarozatai_2012_03.pdf. For an English-language commentary see Kim Lane Scheppele, How to Evade the Constitution: The Case of the Hungarian Constitutional Courts Decision on the Judicial RetirementAge, eutopia law (posted 8 August 2012), available at:http://eutopialaw.com/2012/08/08/how-to-evade-the-constitution-the-case-of-the-hungarian-constitutional-courts-decision-on-the-judicial-retirement-age/]

(d) Restrictions on the Independence and Freedom of Hungarys Print and Electronic Media

In her letter to Prime Minister Orbn, dated 23 December 2011, US Secretary of State Clinton expressed strong reservations about Hungarys Media Law, which came into force in January 2011: we share concerns expressed by the OSCE, Freedom House, and a recent international mission of press experts that the law concentrates too much power in the hands of a politically-appointed Media Council.[footnoteRef:100] [100: See Secretary of State Clintons letter to Viktor Orbn, dated 23 December 2011, supra n. 63.]

Unsurprisingly, Hungarys controversial Media Law, which entered into force in January 2011, has attracted extensive international criticism.[footnoteRef:101] As originally conceived, it would have imposed a virtual straighjacket on the media in Hungary. For example, Article 13(2) of the Media Law introduced a vague requirement to provide: comprehensive, factual, up-to-date, objective and balanced coverage on local, national and European issues that may be of interest for the general public.[footnoteRef:102] As originally enacted, Article 17(2) of the Media Law also contained a vaguely worded clause prohibiting the media from giving offence to individuals or groups: media content may not offend or discriminate against - whether expressedly or by implication - persons, nations, communities, national, ethnic, linguistic and other minorities or any majority as well as any church or religious groups.[footnoteRef:103] [101: For example, in December 2010, the OSCE Representative on Freedom of the Media stated: I am concerned that Hungary's parliament has adopted media legislation that, if misused, can silence critical media and public debate in the country. See http://www.osce.org/fom/74687. See, also, Opinion of the Commissioner for Human Rights on Hungarys media legislation in light of Council of Europe standards on freedom of the media (Strasbourg, 25 February 2011), Doc. CommDH(2011)10, available at: https://wcd.coe.int/ViewDoc.jsp?id=1751289. The US human rights NGO, Freedom House, has also been critical of the new legislation. For details see e.g. Proposed Hungarian Media Law Would Threaten Freedom,http://www.freedomhouse.org/article/proposed-hungarian-media-law-would-threaten-freedom?page=70&release=1292. As recently as May 2012, following the adoption of further amendments to the Media Law, which were, in part, a response to a critical Judgment of Hungarys Constitutional Court the previous December, the OSCE Representative on Freedom of the Media concluded, [t]he changes to the Hungarian media lawonly add to the existing concerns over the curbing of critical or differing views in the country. See http://www.osce.org/fom/90823.] [102: For the text of the 2010 Media Law, in English, see e.g. http://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_civ_media_content.pdf (my emphasis).] [103: Ibid.]

These alarmingly ambiguous legal terms were to be applied by a powerful Media Council comprised soley of members of the ruling Fidesz Party.[footnoteRef:104] The Media Council is authorised to impose massive fines on offenders, including private newspapers, radio stations etc. As emphasised by the Council of Europes Commissioner for Human Rights, the Hungarian media legislation breached elementary principles of human rights, including freedom of expression: [104: See Hungarian Media Laws in Europe: An Assessment of the Consistency of Hungarys Media Laws with European Practices and Norms (Budapest: Center for Media and Communication Studies, CEU, 2012), at 1, available at: https://cmcs.ceu.hu/sites/default/files/field_attachment/news/node-27293/Hungarian_Media_Laws_in_Europe_0.pdf, at 1. The Center for Media and Communication Studies noted, inter alia, that the scope of the powers conferred on the Media Authority are without precedent in Europe. Ibid., at xv.]

The adoption of legislation regulatinga priorithe content of media output is irreconcilable with the right to freedom of expression enshrined in Article 10 ECHR. The media has a crucial role as a watchdog in a democratic society, not least in helping to create an informed, critical public. It is therefore undesirable that the media be tasked to conform to subjective criteria, especially where those criteria are expressed in vague and imprecise terms liable to misinterpretation.[footnoteRef:105] [105: Opinion of the Commissioner for Human Rights on Hungarys media legislation in light of Council of Europe standards on freedom of the media (Strasbourg, 25 February 2011), supra n. 99, at 5.]

The Commissioner also emphasised that, the mere possibility that the new legislation could be interpreted in a manner which restricts media freedomis enough to have a profound chilling effect on medias preparedness to challenge, dissent and assume unpopular positions, at least insofar as they could be perceived as having deviated from the types of information and coverage prescribed in the legislation.[footnoteRef:106] Reservations expressed by the Venice Commission, concerning the formulation of the right to freedom of expression in Hungarys new Constitution, are also relevant in this context: [106: Ibid.]

The Venice Commission finds it problematic that freedom of the press is not formulated as an individuals right, but as an obligation of the state. This freedom appears to be dependent on the will of the state and its willingness to deal with its obligation in the spirit of freedom. This construction has consequences for the substance, direction and quality of the protection, as well as for the chances for successful judicial review in cases of infringements of constitutional rights.[footnoteRef:107] [107: OPINION ON THE NEW CONSTITUTION OF HUNGARY, Opinion no. 621/2011, supra n. 65, para. 74 (my emphasis).]

The Government has been partially stymied in its efforts to introduce the Media Law as originally conceived. The strength of international, especially EU, opposition appears to have been decisive in forcing the government to relent and to introduce amendments to the legislation.[footnoteRef:108] However, the Media Law, as initially drafted and passed by the Hungarian Parliament, tells us much about the commitment of the Government to fundamental democratic principles, including freedom of expression. [108: See e.g. Media: Commission Vice-President Kroes welcomes amendments to Hungarian Media Law, MEMO/11/89, Brussels, 16 February 2011, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/89.]

4 ISTVN BIBs and the meaning of constitutionalism and democracy

Writing amidst the rubble of post-war Budapest, Istvn Bib published a series of extraordinarily perceptive, elegant and morally unflinching studies of Hungary and of the CEE region until creeping communist control over the print and electronic media and over intellectual life in general rendered open public debate of sensitive or politically important issues impossible. In 1948, Bib had published an essay entitled, The Jewish Question in Hungary after 1944.[footnoteRef:109] Bibs essay shocked many of his fellow countrymen with its disturbing thesis that Hungarian society was morally complicit, in various ways, in the persecution and eventual deaths of up to six hundred thousand Hungarian Jews. Within Hungary the frank interrogation of the countrys responsibility for the genocide of Hungarys Jews and Roma remains acutely sensitive up to the present day.[footnoteRef:110] [109: The essay is available in Hungarian at: http://mek.niif.hu/02000/02043/html/362.html.] [110: This is reflected, for example, in the current heated debates within Hungary about the historic role of Hungarys Regent, Admiral Horthy, who served as Head of State until October 1944. Current efforts to rehabilitate Horthy and to elevate him to the status of national hero reflect an unwillingness to accept the extent of his (and Hungarys) complicity in the persecution and mass deportation of the countrys Jews and, on a more random basis, of Roma before October 1944. See, generally, the special issue of Mozg Vlg on the significance of the present Horthy phenomenon in Hungary: Mltunk s Jvnk? - Horthy s Korunk [Our Past and our Future? Horthy and our Era], Mozg Vlg 2012: 8-9.]

In the previous year, Bib had published an unsparing political study of Hungary, entitled: Hungarys Deformed Structure: The Blind Alleys of Hungarian History.[footnoteRef:111] In 1946 he had produced the essay which is quoted at the beginning of this article: The Misery of the Small States of Eastern Europe.[footnoteRef:112] Both of these studies are noteworthy for their minute and unsentimental disection of Hungarian history and for their unequivocal conclusion that the countrys political culture stands in urgent need of reform. [111: The essay is available in Hungarian at: http://mek.niif.hu/02000/02043/html/349.html] [112: See supra n. 1. The essay is also available in Hungarian at: http://mek.niif.hu/02000/02043/html/194.html]

Aside from graduate academic studies in Vienna and Geneva, in the mid 30s, Bib spent virtually his entire life in Hungary under a succession of mostly authoritarian and totalitarian regimes; he had very little personal experience of liberal democracy. Nevertheless, Bib demonstrated an acute sense of what democracy would mean.

Similarly, Bib had a deep understanding moral as well as historical - of the deformed political culture of the CEE region, in the inter-war era, of which Hungary was a prime example.[footnoteRef:113] While claiming democratic legitimacy, regimes in the area became increasingly authoritarian, invoking existential fears about the survival of the nation as justification for the erosion of democratic norms and civil liberties: [113: In addition to Bib own essays see the following texts on the reasons for the failure of democracy in the inter-war era, in the CEE region, and the factors behind the rise of Fascism and nationalism: Bideleux & Jeffries, supra n. 14, Chaps 22-27. See, also, Richard Crampton, Eastern Europe in the 20th Century and After, 2nd edn (London & New York: Routledge, 1997), Part I.]

Fear, the constant feeling of being under threat, all those things that real democracies only experience at moments of real crisis, restrictions on public freedoms, censorship, the hunt for the enemys hirelings and for traitors, the constant chipping away at liberty in the interests of national unity and order at all costs, or at least the appearance of order. The adulteration and corruption of democracy in the most diverse ways[footnoteRef:114] [114: Bib supra n. 1, 202 at 223.]

Bibs extraordinarily vivid description of the deformed state of political culture in the CEE region in the first half of the 20th century serves as a reminder to Hungarians and Europeans alike of the importance of holding fast to hard-won principles of liberal constitutionalism. At the same time, Bibs depiction of inter-war politics in the CEE region serves as a disturbingly precise portrait of recent political developments in Hungary.

The new constitutionalism in Hungary, which was conceived by the present Government while in opposition and which has been implemented at extraordinary speed since it took office, in 2010, would have been all too familiar to informed audiences in the CEE region before World War II. The repeated appeals to nationalist sentiment, the routine denunciation of foreign interference and the increasing concentration of political power and economic patronage in the executive, as well as the spectre of the manipulation of future elections,[footnoteRef:115] are uncomfortably reminiscent of that period. [115: See e.g. Freedom Houses comments on Hungarys new Election Law which was adopted in December, 2011:In late December, the National Assembly passed a government- backed electoral law that appears designed to solidify the ruling coalitions grip on power through the redrawing of parliamentary electoral districts and changes to the allocation of seats and votes in Hungarys mixed system of single-member districts and party lists. The law also raised the registration thresholds for candidates and party lists, and granted the vote to citizens with no residence in Hungary, such as ethnic Hungarians in neighboring countries. See Nations in Transition 2012, Freedom House, 239 at 241, available at: http://www.freedomhouse.org/sites/default/files/NIT2012Hungary_final.pdf

]

Hungarys Fundamental Law and related legislation, examined above, represent a significant shift towards a more authoritarian political culture. They also reflect the growing concentration of power in the executive, primarily at the expense of the President and the Constitutional Court. The Prime Ministers invocations of Hungarian history, particularly Hungarys independence struggles of the 19th and 20th centuries, can be read as a cynical manipulation of nationalist sentiment and of what Bib termed the fear complex which is so prevalent in the CEE region.[footnoteRef:116] As the President of the EU Commission, Jose Manuel Barroso, pointed out through his spokesperson, after the Hungarian Prime Ministers intemperate speech of 15 March 2012, [t]hose who compare the European Union with the USSR show a complete lack of understanding of what democracy is. [footnoteRef:117] [116: Bib supra n. 1, 202 at 222.] [117: See Financial Times: Brussels Blog, 16 March 2012 at: ]

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