Hungary: The New Fundamental Law

The birth of a new constitution is an exceptional event in contemporary Europe and an outstanding opportunity for public lawyers to make the best use of the richness of models, experiences and requirements European constitutionalism offers. The pleasant difficulties the drafters face come from the profusion of transplantable solutions available in other European jurisdictions and from the external constraints placed on national constitutions by European constitutional law, most notably the law of the European Convention on Human Rights. Selecting the right constitutional ingredients from other jurisdictions and establishing an appropriate response to European obligations requires care and expertise. The European elements only add to the already complex task of producing a constitutional document suitable for a state in 21st century Europe. A new constitution would need to acknowledge and express the developments in how the state interacts with its environment. The shift from hierarchical modes of government to more complex structures and activities of governance, the transformation from a provider and owner state to a regulatory state and the gradual decrement in the European Union of the state's autonomy in regulating the market should have an impact on the definition of basic constitutional concepts, such as sovereignty, power, accountability and citizenship. The evolution of new forms of accountability should be expressed in the constitution along the traditional modes of democratic and legal accountability. Open government and the transparency of governance should be elevated to the position of basic constitutional principles. The language of fundamental rights in the constitution should be able to express the relationship between the state and the individual and the state and the market in an open and pluralistic society. These concerns would suggest a slow preparation for a new constitution. This was hardly the case in Hungary. The few months of actual constitution-making were troubled by a turbulent period in domestic and European politics, mainly in the first half of 2011. Besides engaging in an overhaul of the entire domestic constitutional architecture, the government completed its first ‘European semester’ serving as the Presidency of the Council of the European Union. The six month term started badly with open political hostilities towards the Hungarian government, and the pressure never really ceased – suffice to mention the war in Libya and the euro-zone crisis. The political storms in the EU, nonetheless, did not prevent the government from raising more political and legal controversy by whipping through the Hungarian Parliament the new Basic Law prepared and debated only for a handful of months between the end of 2010 and April 2011, when it was finally adopted. The process of constitution-making and some of the content of the new constitution attracted severe criticism from politicians, NGOs, intellectuals and experts. In particular, the opinions of the Venice Commission condemned the new Basic Law. The Commission pointed out that the constitution-making process lacked transparency and social dialogue, and received some substantive changes, such as the limitations of the competences of the Hungarian Constitutional Court, the new catalogue of fundamental rights and the regulation of certain substantive issues, in particular the role and powers of the judiciary, with reservations. The government responded by observing that the solutions adopted in the new Basic Law were all inspired by one or another constitution of EU Member States. Whether shopping around among European constitutions was an appropriate method of constitution-making was not considered by the government.