Our contributor Andrew Arato, along with other leading academics, submitted an amicus brief to the Venice Commission concerning the new Constitution of Hungary. It is in many ways a devastating critique of the new document on both substantive and procedural grounds.
The Venice Commission itself released an Opinion on the Constitution earlier this week, arguing that the document puts “the principle of democracy itself at risk.” I find it interesting that the Commission critiqued the Hungarians for its choices about specificity, that is, which issues to leave general and which to provide more detail. In particular, they find that there are too many “cardinal laws” (meaning organic laws requiring a supermajority) requied in the constitution. From paragraph 24 of the Commission Report: “there are issues on which the Constitution should arguably be more specific. These include for example the judiciary. On the other hand, there are issues which should/could have been left to ordinary legislation and majoritarian politics, such as family legislation or social and taxation policy. The Venice Commission considers that parliaments should be able to act in a flexible manner in order to adapt to new framework conditions and face new challenges within society. Functionality of a democratic system is rooted in its permanent ability to change. The more policy issues are transferred beyond the powers of simple majority, the less significance will future elections have and the more possibilities does a two-third majority have of cementing its political preferences and the country’s legal order…. When not only the fundamental principles but also very specific and “detailed rules” on certain issues will be enacted in cardinal laws, the principle of democracy itself is at risk.”
I am not sure I agree with this particular critique by the Commission. There is a certain tension between the scholars’ critique of the current constitution, adopted by a two-thirds majority of parliament, as reflecting a temporal and limited majority, and the concern that the two-thirds requirement for cardinal laws reflects too much entrenchment. More broadly, I am not sure that one can specifcy ex ante the normatively proper domain of entrenchment for all socieites. The gravest issues raised by the Hungarian document are not that it disempowers the legislature, but rather that it strengthens it by weakening the judiciary.
For more comment and documentation see the LAPA website here.