In the third chapter of the book ‘Constitutional Crisis in the European Constitutional Area’ (2015), Scheppele outlines the context and implications of Hungary’s new Constitution, as formalized in 2011 and further amended by March 2013. The chapter outlines the variety of ways through which the Fidesz party used the new Constitution to consolidate their power by undermining the country's judicial, media, and other institutional independence.
How was the new Constitution put into place? During Hungary’s transition away from communism in 1989, uncertainty surrounding the right framework for the newborn democracy led policymakers to write an easily amendable Constitution. More specifically, the only requirement to re-write the Constitution was a simple two-thirds parliamentary majority. This condition was instrumental in the country’s authoritarian switch under the Fidesz government.
In the April 2010 general elections, a weak economy and a series of scandals led to the widespread unpopularity of the Sociality Party (MSzP), who had been in power for the previous eight years. Consequently, the right-wing Fidesz party won 53% of the votes, which translated into 68% of the parliamentary seats. This placed the party in an unprecedented position of power: by controlling two-thirds of the parliament, they could single-handedly re-write the Constitution, as they did shortly after. In fact, they proceeded despite not having campaigned for such a radical change, which caused their popularity to plummet to just 15% in opinion polls once their plan was revealed. Moreover, even after the Constitution’s establishment in 2012, they amended it another four times in its first 15 months. In March 2013, the Fidesz government passed the ‘Fourth Amendment’, a 15-page change to the new 45-page Constitution. The changes led to the consolidation of power at the Fidesz party, compromising the country’s democracy.
In what ways did the new Constitution compromise Hungarian democracy? In their re-write of the Hungarian Constitution, the Fidesz government accumulated incredible amounts of power by consolidating their control over the judiciary, media, and political institutions. More specifically, the election process for numerous key roles was switched to a 2/3 parliamentary majority, which effectively allowed the Fidesz government to appoint its own allies. Some important examples of this practice are outlined in Figure 1 below.
Figure 1: Key roles which the March 2013 Constitution selected by a 2/3 parliamentary majority
Data: Scheppele (2015), Bonsai Economics.
The National Judicial Office (NJO) selection was particularly important. This institution was first created in the new Constitution, and its President controlled the hiring, firing, and promotion of all judges in the system. Moreover, the Media Council had the power to levy heavy fines on media, and the National Budget Council could veto all future budgets which added to the country’s debt. Unless a 2/3 majority was formed again, the National Budget Council members could not be replaced, which translated into veto powers for the Fidesz party, even if it were to lose general elections.
The above list is far from exhaustive of the ways the Fidesz party used the Constitution to increase their power. Another striking example is that the Constitutional Court was banned from reviewing constitutional amendments for substantive conflict with constitutional principles. This allowed the Fidesz government to add amendments such that one may not defame the Hungarian nation, which conflicts with the Constitution’s clause on freedom of expression.
Conclusion
The Fidesz party’s usage of the Constitution writing process to consolidate their own power is a great reminder of the Constitution’s importance in controlling government. An easily amendable Constitution offers a weak defense to a country’s democracy, a risk for which Hungary is paying a heavy price. The question is raised about whether a stricter original Constitution would have been enough in itself to prevent the country’s shift towards authoritarianism.
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