The worst thing about the current constitution making process in Hungary led by the FIDESZ government is the process itself: under an opposition boycott, and involving an absurd process of popular consultation through sketchy and deficient mail in citizen questionnaires, it lacks all genuine aspects of participation and inclusion. Not only is the process illegitimate however, it may also be illegal.
At issue is the abolition of a rule , art 24 (5 ) of the constitution, requiring that the detailed rules for making the new constitution be passed by the votes of 4/5 of all members of parliament, by using article 24 (3) that required only a 2/3 vote of all members for passage. Admittedly, 24 (5) was not codified in a self referring manner. But the best interpretation of a such a rule is nevertheless in terms of implicit self-reference, since the rule would be meaningless if it could be by passed in a two step fashion. It would then mean that parliament makes the rules by 4/5 unless it chooses to do so by 2/3. Neither the German Grundgesetz unchangeable clause of Art. 79.3 or the entrenchment of the Senate in Article V of the U.S. Constitution are codified with a self-reference, yet they are always so understood.
It is also true, that 24 (5) was intended by the parliament of 1994 to be accompanied by a sunset clause, preposterously enough. But through the error of codification, sunset was mentioned only in the accompanying legislation, not put in the constitutional amendment text itself. That legislation indeed had the sun set on it, along with the detailed and indeed very fair rules of constitution-making enacted under it. But the clause itself stayed in the constitution, and its valid presence is shown by the fact that FIDESZ instead of disregarding it as a law on which the sun has set, chose to amend it out of existence. Such an amendment of a 4/5 clause by a 2/3 law, however, is prima facie invalid.
Why has the opposition not gone to the Constitutional Court? There may be the matter that the Court has been very reluctant to undertake prior abstract review in general, and matters of standing would have to be resolved. But the biggest problem is that in spite of its very early jurisprudence this Court has pronounced itself incompetent in the manner of constitutional amendments. This it has done with the bad Kelsenian or pseudo-Kelsenian reasoning that since an amendment is part of the constitution, it cannot be judged in terms of the constitution. Even when applied to posterior review, this argument seems strained and fallacious. It could easily have been said that an amendment is not fully part of the constitution until it has been tested and validated. It seems beyond belief that such an argument could exclude procedural review of amendments as in this case, and it should be said that previously it has been applied by the court to claims against the substance of amendments.
I would suggest that instead of concentrating on arcane matters like the issue of holy crown that will have little significance, or demanding a referendum that FIDESZ may very well win for this pitiful little constitution we should focus on the illegitimacy and illegality of the process that produced it. While the challenge of the constitutionality of the abolition of the 4/5 rule involves technical matters, it would actually highlight the difference between authoritarian and consensual, inclusive methods of constitution making. If it is true that the current constitutional plan involves a fundamental attack on the Constitutional Court and especially its accumulated legal heritage, the members of that Court should be invited into the process to defend that important heritage. The only way to do that is to challenge the legality of the process.
Since there is still time for the legal challenge, I believe international legal opinion has an important role to play in this matter.
–Andrew Arato, New School