Nathan Brown and Kristen Stilt have a nice analysis of the current situation in Egypt, with a critique of the amendment process, here.
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
Last week, Bakhtiyar Hajiyev spent his 29th birthday in an Azeri jail for the crime of refusing military service. At present he has remained incarcerated for more than a month.
In Azerbaijan, a country where extralegal detentions and human rights abuses are tragically normal, this particular arrest has caused a stir in the international media due to Mr. Hajiyev’s status as a high profile and Western educated opposition figure, a parliamentary candidate, and a protest organizer. On a more personal level this arrest has stirred me, because I know Bakhtiyar – with whom I attended graduate school – to be a peaceful and honorable man, and one who passionately loves his country.
While Bakhtiyar’s detention is almost certainly politically motivated, the specific crime with which he is charged has a controversial history in Azerbaijan. The criminal status of conscientious objectors in that country has long served as a point of contention with the international community and yet has remained unchanged despite multiple international agreements (and a constitutional amendment) to the contrary.
Prior to Azeri independence from the Soviet Union in 1991, Azerbaijan had already suffered through bloody separatist skirmishes with ethnic Armenians in its Nagorno-Karabakh region. Once the Soviets left for good however, this strife escalated into a full-scale war with neighboring Armenia which lasted three years and cost tens of thousands of lives. Following a 1994 armistice, sporadic clashes over the region have continued and anti-Armenian sentiments and fears, “Blood Memory” , remain an important part of Azeri political discourse to this day, coagulating around wrongs dating back as far as the days of the Ottoman Empire.
Given this historical context, mandatory conscription is not at all surprising and all male Azeri citizens between the ages of 18-35 are expected to serve at least one year of military service unless they are deemed physically or mentally unfit to do so by the state. This principle is enshrined under the Azeri Constitution of 1995 in Article 76: titled “Defense of the Motherland.”
Of course, universal national service is not in itself particularly unusual. Countries across the military spectrum – from peacefully isolationist Switzerland to regional powerhouse Israel – demand similar sacrifices from their citizens. Azerbaijan’s case is a bit different however. Unlike the majority of conscripting countries, the Azeri state makes no alternative provisions for conscientious objectors (those opposed to military service as a matter of pacifism, tradition or religion) save prison. This draconian policy came increasingly under attack in the nineteen nineties from groups such as the UN Human Rights Committee and Amnesty International.
Then in 2002, as a condition for club membership, the Council of Europe managed to extract a promise from the Azeri government to allow an alternative form of national service to those minorities who were unwilling to bear arms. The Constitution was amended for this purpose and a second section was added, and ratified, into Article 76:
Art. 76 sec. 2: If beliefs of citizens come into conflict with service in the army then in some cases envisaged by legislation alternative service instead of regular army service is permitted.
The Azeri Parliament has never gotten around to drafting the “envisaged” legislation however, and to this day no actual alternatives have been created nor exculpatory cases defined.
In 2005, Mahir Bagirov, a twenty-eight year old doctor, new father and Jehovah’s Witness was arrested for refusing to report for military service. His lawyers argued the case all the way to the Supreme Court which found that, despite its wording, Art. 76 did not in itself grant the possibility of an alternate service, rather it merely legalized the possibility that an alternate service might be created by the legislature. The court further reasoned that since such legislation had not actually been enacted, the constitutional provision was irrelevant to Mr. Bagirov’s case. He served over a year in prison between his pretrial detention and his sentence.
In response, the Council of Europe began to criticize the Azeri government for “failing to meet its commitments,” backing off only when Azeri parliamentarians assured the Council that the missing legislation would be in place by early 2006. Five years later, there are still no legislative provisions for alternative national service, and Azerbaijan remains a full member of the Council of Europe. Throughout this time conscientious objectors (many of them religious minorities like Mr. Bagirov) have continued to face harsh prison sentences, and yet generated relatively little political or media interest.
Now with this high profile arrest the controversy is once again in the news. And yet, Bakhtiyar’s incarceration is not about Article 76. Azerbaijan’s backwards conscription policy is being used as a façade, a fictitious yet useful precedent for removing a person deemed dangerous by a corrupt and panicky state. In a letter smuggled out of his cell early last month, Bakhtiyar claims to have been beaten, disallowed contact with his family and friends and denied legal counsel. Even given the callousness with which Azerbaijan has historically treated conscientious objectors, this is something else.
The Azeri government is no different from other failing regional autocracies such as Lybia, Yemen and Bahrain that have proved themselves all too willing to brutalize their own people when the chips are down. Many opposition and youth leaders, as well as simple protesters have likewise been arrested and detained on charges ranging from the unforgivably vague (“sedition”, “behaving dishonorably”) to the outright absurd (“using of abusive words.”) As such, it seems very likely that were there no compulsory military service in Azerbaijan, or had Bakhtiyar previously served, he would regardless have joined his opposition colleagues in prison.
That being said, I believe that Bakhtiyar will soon be free – if for no other reason than because it is in the best interest of the ruling regime in Baku to free him. The young dissident’s former professors and classmates from Harvard, as well as his supporters from around the world are lobbying on his behalf to media outlets and political forces worldwide. The arrest has already been condemned by a US Senator, European Parliamentarians, The New York Times and myriad international media outlets. Protests over the weekend in the Azeri capital led to street violence and hundreds of arrests. Even the Azeri Embassy in Washington DC was recently picketed. At a time when international support can mean all the difference for autocrats facing revolting populations and difficult choices, this is no small matter.
Bakhtiyar’s personal situation aside however, the Council of Europe needs to step up and demand that Azerbaijan keep its promises. Europe defines and rightly prides itself on its human rights record, as well as its progressive policies towards minority populations. Both Belarus and Kazakhstan have been denied membership to the Council due to their failure to meet these standards. Azerbaijan’s inclusion was predicated on an unfulfilled promise and Europe should insist on what it is owed from the Azeri government – or else expel it from the Council. Should Europe fail to act other promises, to say nothing of the very notion of what it means to be European, may lose much of their meaning.
In graduate school I took a class requiring a political speech before a roomful of peers. I spoke on Venezuela, taking easy shots at the Chavez Regime and receiving some decent laughs and a similarly decent grade. Bakhtiyar’s speech followed mine. It was a long one. Hesitantly optimistic in its way, but at the same time expecting no levity and offering none. In recent weeks, I have often thought about this speech although I can remember very little of its actual content. I may not have been paying enough attention or perhaps, knowing so little about Azerbaijan, I could not follow it. What I do remember was the disarming earnestness, the soft-spoken passion and resolve. I hope to someday ask Bakhtiyar what he said in class that day, and whether he would still say it now. I like to think that he would.
Other than the fact that it would be the first national constitution drafted on an I-pad, Hungary’s proposed new constitution is engendering serious concern. Although the Orban government is associated with the political right, voices have been raised across the political spectrum, including the Wall Street Journal.
Further to the very informative post by Maximilian Steinbeis on Hungary’s rushed new constitutional reform, many prominent scholars have signed a petition expressing concern about the content of the changes. If you are interested in joining the petition, see here.
A French chess player, and two confederates, have been found guilty of cheating at the recent world chess olympiad in a scheme that involved use of the Internet, use of a very strong computer chess program, use of a cell phone, as well as coded signals by the team captain (based on where he stood in the tournament room). http://www.bbc.co.uk/news/world-europe-12853229 A trial in front of a French chess federation tribunal with lawyers, evidence rules, etc. took place. The guilty grandmaster actually had won an award and money for his excellent performance in the tournament. As a chess player myself, the whole scenario is strange and troubling. The only good news is that a French chess federation official was brave enough to accuse her own team. But the appeals of the convicted individuals will be based, in part, on the argument that privacy rights were violated when text messages on a cell phone were looked at without permission. This dispute could provide more information about how French law handles privacy interests involving new technologies.
Last week, Canada entered its 41st federal election. Voters will head to the polls in a few weeks on May 2. The contest will pit the incumbent Conservative Party, which held a minority in the last Parliament, versus the four major opposition parties: the Liberal Party, the separatist Bloc Québécois, the New Democratic Party, and the Green Party.
Unlike most recent federal elections in Canada, this one will be potentially quite significant for the future of the Canadian Supreme Court. The reason why is this: the next Prime Minister will have the power to appoint up to three or four new Supreme Court justices in his next term. Insofar as there are no formal checks on the Prime Minister’s appointment power–unlike, for instance, in the United States where the Senate must confirm the President’s nominees–the Prime Minister could very well reshape both composition of the Court and its ideological orientation.
By law, a Canadian justice must retire no later than her seventy-fifth birthday. [Section 9(2)]
Four current justices will reach that benchmark by the year 2015: (1) Justice Morris Fish will reach the mandatory retirement age on November 16, 2013; (2) Justice Ian Binnie will attain that age on April 14, 2014; (3) Justice Louis Lebel will have to retire by November 30, 2014; and (4) Justice Marshall Rothstein must retire by December 25, 2015.
Appointments to the Canadian Supreme Court have historically been much less politically charged than what we have seen in the United States. But the two protagonists in the current federal election–incumbent Prime Minister Stephen Harper and Opposition Leader Michael Ignatieff–both possess strong views about the role of judges and more broadly about the function of the Supreme Court. It would therefore not surprise observers to see the next Prime Minister depart from Canadian political tradition in order name more ideological judges to the Supreme Court, particularly if the new Prime Minister holds a parliamentary majority.
One could quite easily conceive of Stephen Harper appointing unabashedly conservative-minded judges who adhere to a minimalist view of the Court’s function. One could just as easily picture Michael Ignatieff, the celebrated human rights scholar, naming to the high court a cast of judges who believe deeply in the socially transformative possibilities of constitutional rights adjudication.
Either is possible. Which is why the Canadian federal election now underway will have important implications for the future of the Canadian Supreme Court.
Amnesty International has released figures on worldwide use of the death penalty in 2010. The U.S. clocks in at number 5 in terms of the sheer number of executions, ahead of Saudi Arabia and behind Yemen. These are absolute numbers, though, not per capita figures. The BBC has a helpful graph here. Although the article says that the use of the death penalty is continuing to fall, in the sense that the raw number of executions is decreasing, the number of countries that executed people actually went up last year.
Just a few days before the constitutional amendment referendum held in Egypt on March 19, the current ruling authority, the Supreme Council of the Armed Forces (SCAF), announced that the results of the referendum, positive or negative, would be followed directly by a “constitutional declaration.” Prior to that announcement, it had been expected that if the referendum passed, the SCAF would merely amend the provisions of the constitution as provided for in the referendum and then reinstate the constitution. In such a case, the declaration was anticipated to be a straightforward statement of the timetable for subsequent parliamentary and presidential elections. If the referendum did not pass, the SCAF would have to come up with a new plan.
The referendum did pass, but one week later, the SCAF still has not issued the constitutional declaration. During the course of the week, more information has been released about its expected contents. The press reported rather consistently that the declaration would contain the amended constitutional provisions, other provisions from the constitution that are relevant in this interim period, and the most important laws (as amended by the constitutional drafting commission) for the coming elections. (These include the laws on the formation of political parties and the election process for both houses of parliament and the presidency.) This bundle of constitutional provisions and laws would act as a temporary constitution until new parliamentary and presidential elections take place and a new constitution is subsequently drafted and accepted by Egyptians.
The idea of a temporary constitution raised significant questions, especially among judges and lawyers paying close attention to the constitutional aspects of the transition process. Will the temporary constitution include a role for the SCAF, so that it can become a constitutional actor? Why was a referendum to amend certain provisions of the constitution even needed, if the SCAF in fact has the power to make substantive constitutional decisions on its own? And if a referendum to amend the constitution really was needed, is a new referendum also necessary in order to accept the interim constitution? The SCAF has not provided answers to these
Further, the sense of certainty with which the SCAF initially announced that a constitutional declaration would be forthcoming now seems to be fading quickly. News reports suggest that it may be several more days, and there is no explanation for the delay other than vague statements that the SCAF wants to ensure widespread agreement on its contents. The delay may suggest that the SCAF is reevaluating its plan to hold in quick succession parliamentary and then presidential elections. It is even possible that the opponents of the referendum have convinced some on the SCAF that the process it initially envisioned might exclude the youth movement and others from effectively competing in the elections. The delay may mean that the SCAF is finally taking note of the concerns raised by some constitutional law scholars, most vocal among them Supreme Constitutional Court justice Tahani al-Gebali, about the constitutionality of the process and the possibility that aspects of it could later be challenged as unconstitutional. And the delay certainly indicates that the path forward in the constitutional process is more complicated than the SCAF admitted when it presented the referendum to the people for a vote.
–Kristen Stilt, Northwestern Law School
This month marks the 150th anniversary of the signing of the Confederate Constitution into law. Following weeks of deliberation by forty-three delegates from seven states, the Confederacy formally ratified the document on March 11, 1861. Four more States, and two territories, would later join the Confederate States of America (CSA) and in doing so adopt this constitution for the war’s duration. In all, nine million free Americans, and three million slaves, lived and fought under its jurisdiction for years. And yet, while the causes and issues behind the US Civil War have received a good deal of attention as America prepares to commemorate the sesquicentennial, the actual government envisioned by those early rebels has been largely overlooked.
The CSA Constitution reads as a nearly verbatim copy of the US Constitution, and includes all amendments in existence at the time (#1-12). Yet the few modified provisions where the drafters did choose to alter the fundamental design of government can offer a fascinating window as to Southern leaders’ actual goals in seceding, and by extension the causes of the war. This perspective is of great value at a time when certain political movements have latched on to the CSA Constitution as a sort of intellectual precursor on issues such as State’s Rights, limited judicial authority, Christian values and minimal government interference over economic freedoms. And yet, it would be difficult to concoct a stronger rebuttal to this view than the actual text of the Confederate Constitution.
“We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God — do ordain and establish this Constitution for the Confederate States of America.”
To a modern reader, the above preamble might imply that what the rebel leaders had in mind was a kind of Tea Partyer Utopia. Gone is talk of promoting ‘general welfare’ or working towards a more ‘perfect union.’ Replacing them are references to The Creator and of “sovereign and independent states.”
Reading beyond the preamble however, it soon becomes clear that this language of God and State Independence is more a justification of rebellion, than a philosophical foundation for governance. Modern conservative bogeymen such as the Federal “Supremacy” clause, the congressional power to “Regulate Commerce” and the “as Necessary and Proper” clause remain intact; as does, somewhat ironically, the presidential authority to suspend habeas corpus in response to a rebellion. And while certain federal powers are curtailed or excluded, a surprising number of brand new ones emerge which, had the Confederate government ever been able to finish putting itself together, might have actually made the individual states even less independent than they had been in the antebellum period.
Mentions of Judeo-Christianity beyond the preamble are likewise absent with the exception of references to such and such “Year of our Lords” when discussing dates. And lest we be tempted to read too far into this language, it is important to note that the change keeps with Nineteenth Century writing conventions. The CSA likewise modernized the language of those US Constitutional provisions which were kept on: the old congressional power to “chuse their other Officers” becomes one to “choose their other officers.”
It is important to note the difference between the CSA government as envisioned by its constitutional drafters, and the weak federal structures that actually emerged between 1861-1865. Due to the constant state of wartime emergency, many of the institutions outlined in the Confederate Constitution were never set up. Elections were few and flawed, a called for Federal Supreme Court was never actually put together, nor was a coherent taxation system put into place. These situational circumstances led to a far weaker federal authority in practice than that which was drafted into the CSA Constitution. Forced to rely on State donations and an ever-increasing pile of debt, while at the same time bearing the staggering responsibility of organizing defense, the embryonic government was unable to implement much of what was constitutionally required of it. As a result, the jurisdictional vacuum was predictably filled by those State institutions which had emerged from the secession largely intact.
A good example of this phenomenon can be seen in the Confederate judiciary. CSA Article 3 mirrors its US counterpart in all but three respects:
- Omission of the language “in law and equity” since around half of the initial signers (Florida, Texas and Louisiana) came from continental colonial traditions that did not recognize the legal distinction.
- The constitutional prohibition of suits against the Confederate States by citizens of foreign governments (so as to sidestep property claims from former landholders in the now ‘foreign’ USA.)
- The dropping of federal jurisdiction over disputes between citizens of different CSA States.
What this system would have looked like in practice – for example where interstate disputes could have gone when they invariably arose – will never be known. In the absence of a Confederate Supreme Court with the final authority for constitutional interpretation, there was never an opportunity to provide a definitive answer. It was in this context of judicial adhocracy, that state courts enjoyed a veritable free rein. Those ‘Federal’ Courts that did exist were invariably Union appointee holdovers from before the war and suffered from a serious lack of legitimacy and influence as a result. On paper however, the Federal courts remained an integral part of the system – just like the secessionists had envisioned them to be.
Where the Confederate Congress did weaken Congressional power to appropriate money is as follows:
- Confederate Federal Congress was explicitly forbidden from “granting bounties” or “imposing tariffs” to “promote or foster any branch of industry” (which would have been terrible news for a Confederate General Motors, or AIG.)
- To appropriate money from the treasury a two-thirds vote in congress was required (as oppose to a simple majority.)
- These appropriations would be strictly limited to the specific amount approved.
- Congress lost the authority to tax the imports of industrial goods from foreign countries, which somewhat understandably for the pre-industrial South, had been a constant source of contention prior to the war.
And yet modern readers might be surprised to discover that, the abovementioned congressional limitations aside, the Confederate Constitution was surprisingly hostile to a free economy. States could collude to tax ships (foreign or domestic) for utilizing their waterways (think tollbooths on the Mississippi), and would also be responsible for printing their own money with all the trade complications implied therein (think Europe before the Euro.) Also, under a bold new heading titled “The Congress shall have Power” the Federal Government gained the right to lay a tax on exports both for the international market and for those goods moving between the Confederate States themselves. For an economic region almost entirely dependent on export revenues from cotton, tobacco and sugarcane to Europe, The North, and one another, this would have been a much a greater potential source for government revenue than the former provisions on imports.
Oddly enough, some novel items in the document have subsequently become de facto US procedure as federal authority, particularly executive authority, has been strengthened over the last century. A clear example of this can be seen in the right of cabinet members and executive staff to appear before, or be summoned by, Congress.
Other innovations, such as a presidential line item veto, have likewise been seriously discussed as viable alternatives to existing American law. Line item vetoes, a common check in parliamentary systems, empower a President to strike down specific pieces of legislation without having to veto the entire bill. And while the United States has never granted this power to the executive, most standing president since the 1970s have endorsed the idea in principle for the purpose of combating ‘pork.’ It’s interesting to note that the first of these presidential endorsers, Richard Nixon, would likely have had an even greater appreciation for the CSA President’s heightened authority to fire any civil servant at will – requiring only a cursory explanation to the Senate after the fact.
The individual states did gain a few new authorities under the CSA. Rather than requiring constitutional amendments to take place through a three/quarters vote in Congress, the CSA Constitution could be modified through a two/thirds majority in two thirds of the state legislatures. The States could also impeach federal officials acting locally through super-majorities in state assemblies. Then again, as previously mentioned, the President could also fire State officials at will so this initiative might best be seen as a dilution of the separation of powers than a strengthening of State Authority per se.
Yet these few new state rights came with a very high price tag. Throughout its history the United States has allowed, and continues to allow, the states themselves to define most of the requisites for suffrage. At various times, in various states, women, Native Americans, people who own no land, the illiterate, criminals, foreign nationals who own property, citizens living out of state etc. have been granted or denied the franchise fully on the authority of the State government. At the time of the Civil War five states had already enfranchised African Americans, and defining who got to vote, was one of the most important issues in 19th Century state politics (think the Irish immigrant laborer votes and Tammany Hall…)
It’s interesting to note that in 1789, the Founding Fathers never once mentioned “slaves” or “slavery” by name in the US Constitution. The text (rather awkwardly) refers to slaves as “other persons” or uses blanket terms such as “property” in which slavery can be interpreted (or not) by court or statute. For their part, the CSA had no qualms in this regard, and the term “slave” or “slavery” expressly appear ten times.
Under their constitution, the Confederate States, would give up the right to legislate against (or even modify) the institution of slavery. Nor could, states seeking to enter the Confederacy could not do so as ‘free states.’ “The institution of Negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government.” This entirely new section of the constitution goes a long way towards clarifying Confederate priorities. Fugitive slave laws were tightened and the ability of slave-owners to move their slaves around the fledgling country as they saw fit was constitutionally protected and would remain “as is” regardless of subsequent developments or state preference.
The rejection of Federal authority to decide “moral” issues for the states is a repeating and unifying theme in modern conservative and libertarian discourse. From mandatory health care and homosexual marriage, to Roe v. Wade, the argument that States are the polity that can best recognize the moral needs of their people may well be among the most resonant expressions of Tea Party discontent. So to draw common cause with a constitution which expressly forbids the States to legislate any “bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves” is at best ignorant (and at worse a cynical ploy to disguise actual bigotry.)
As outlined above, those few new state freedoms which were granted, were either unintended (like stronger state courts) or prosaic and largely circumstantial modifications (such as taxing exports rather than imports), not a philosophical rejection of ‘big government.’ Thus, if it’s constitution is to be believed, the Southern secession of 1861 was never about state rights, or religion, or free economies – it was about slavery, plain and simple.
The full text of the Confederate Constitution in can be found here courtesy of the Yale Law School Avalon Libnrary: http://avalon.law.yale.edu/19th_century/csa_csa.asp
Hungary is about to give itself a new constitution: 21 years after the peaceful transition from communism to democracy the nationalist-conservative government of Prime Minister Viktor Orbán, by virtue of its 2/3-majority in parliament, has tried to put the country on a entirely new constitutional course, with exceptional haste: Last week a draft for a new constitution was published, this week parliament has begun to discuss it, and in the week before Easter it will be adopted and promulgated. On January 1st 2012 it will enter into force.
The draft is remarkable in more than one way. First, it begins with a preamble of unprecedented length, titled National Avowal of Faith. The religious connotation of that term is intentional: The draft declares Christianity as crucial for the foundation of the nation; other religious traditions (such as Judaism) are merely “respected”. The preamble also describes the nation in cultural, not political terms: “We solemnly promise to preserve the intellectual and spiritual unity of our nation, torn apart by the storms of the past“ – a reference to the great number of ethnical Hungarians living in neighboring countries. It also refers to the concept of the „Holy Crown“ – the medieval crown of the Christian Hungarian kings – as the embodiment of the constitutional continuity of Hungary and of the „unity of the nation“.
The “Holy Crown“, odd as it seems in a republican constitution, also implies a reference to greater-Hungary ambitions, since the medieval kings ruled over the entire Carpathian Basin, including large parts of what now is Romania, Slovakia, Serbia and Ukraine. Last year the government enacted a law that gives access to Hungarian citizenship to ethnic Hungarians, and many expect that soon they will also be given the right to vote in national elections – which could very well result in a further shift in the electorate favoring the right.
The preamble is not intended as merely a solemn declaration: In Art. Q III the draft provides that the constitution is to be “interpreted in accordance (…) with the Fundamental Law’s National Avowal of Faith”, and also “with the achievements of our thousand-year-old Hungarian Historical Constitution.” What the legal effect of this will be is totally unclear at this point. That will be for the Constitutional Court to decide.
The Constitutional Court has played a considerable role in shaping the current Constitution of Hungary. After the communist reign ended in 1989, the old stalinist constitution of 1949 had not been replaced, but was amended in numerous ways; basically all traces of the communist constitution have been eliminated. The result was a rather incoherent, provisional text, the core of which has been adopted by the communist parliament on the basis of the round table agreement. In the 90s the Consitutional Court under its president László Sólyom did a great deal to fill the gaps and to create what was a perfectly workable constitutional law.
The flaws of the current constitution were mostly aesthetic and symbolic. Therefore, as the Orbán government announced its plans to create a new constitution most expected the reform to fix these symbolic shortcomings, first and foremost to cast the current constitutional law in a better legitimized form, adopted by a freely elected parliament. That did not turn out to be the case, though. Whereas many provisions basically remain the same, in some important aspects the actual draft breaks radically with its 1989 predecessor and the constitutional values it embodies.
First of all, the draft severely narrows the competences of the Constitutional Court. It raises the number of parliamentary deputees needed for constitutional review of a law from one to one quarter of the parliament – a threshold that effectively precludes the opposition to question government laws constitutionally, because Socialists and Greens would have to cooperate with the extremist Right in order have 25%. Even more disruptive is what the draft does to the competence of the court to review fiscal and budgetary laws: this is mostly eliminated. Only if a law infringes human dignity or some other very specific rights such review is admitted. The effect will probably be that the Court will betake itself to softening the concept of human dignity in order to get its hand on unconstitutional fiscal law – a possibly very harmful side effect.
The background for the restriction of its competence is that the Court last year struck down a law that enabled the government to retroactivly impose a 98% tax on all public payments, with the intention to roll back parachute payments for cronies of the outgoing socialist government. The Orbán government in return used its 2/3 majority to amend the constitution accordingly to save its law, and at the same time it restricted the Court’s competence of judicial review. It announced that this would be only transitional. But now the draft makes it permanent.
The most disturbing feature of the draft is probably that it seems to be bent on undoing the entire constitutional jurisdiction of the last 20 years. In the preamble it says: “We do not recognise the legal continuity of the 1949 Communist ‘Constitution’, which laid the foundations for tyranny, and hence we declare it to be invalid.“ That might imply that all jurisdiction and scholarship referring to the old constitution is declared irrelevant under the new constitutional law. (On the other hand the preamble says at another point that May 2 1990 is “the day we consider to be the beginning of a new democracy and constitutional order for our country“. Much of the constitutional democratization had already taken place at that date, though).
Some even think that this could even lead to a dismantling of the present Court altogether: The government might argue that the old justices have been appointed under the old, now invalid constitution and pack the court with a full set of loyalists who would stay in office for 12 years. The Orbán government has in the last months repeatedly made use of its majority to prolong the terms of several key official positions, such as the general prosecutor, the head of the auditing office or the head of the media regulation office, to nine years, in order to make sure that Orbán loyalists stay in office regardless of the outcome of future elections.
A distinctly authoritarian streak can be felt in the basic rights section – albeit in a more subtle way. The title of that chapter is “Freedoms and Responsibilities“. That could be read as a departure from the classic concept of basic rights as status rights of human beings or citizens, which do not have to be earned or deserved by fulfilling one’s obligation to the community. In Art. XI the freedom of choice of profession (“Everyone shall have the right to freely choose his or her job or profession, or to engage in entrepreneurial activities.“) is directly followed by this sentence: „Everyone shall have a duty to contribute to the enrichment of the community through his or her work, performed according to his or her abilities and possibilities.“
A peculiarity of the draft is its provision of the possibility of an additional vote for families with children. (This is still controversial even in the ranks of Orbáns coalition and therefore might be dropped before the adoption.) That digression of one man, one vote is very problematic, particularly since it might also serve Orbáns electoral interests. The idea is not to give the parents a vote for each child, though, but to give the mother to a second vote, regardless of the number of children. That probably serves to assuage the resentments of many Hungarians against the Roma minority with their alledgedly large families.
While the content of the draft is disquieting, the process of its handling by the government majority is downright bizarre. Orbán had announced after his landslide victory in April 2010 to give the country a new constitution within a year. The current constitution with its single chamber system gave him the power to do so: A 2/3 majority is sufficient to alter the constitution and to enact a new one. In the 90s a former coalition government had introduced the need of a 4/5 majority to get a new constitution on the way, but that was quickly reversed by means of a further amendment.
The idea is that the election was the actual revolution that Hungary never had. The government likes to talk of the election in terms of a “revolution in the voting booth“: by giving Orbáns coalition a 2/3 majority the Hungarian people empowered him to complete the unfinished job of 1989 and to put and end to the communist era for good. Orbán appointed a commission lead by the conservative MP and constitutional law professor László Salamon. The initial draft that commission drew up did not find favour with Orbán nor with most else, so Orbán dumped that draft and installed another committee by three politicians (including Salamon) which finalized the actual draft. Who actually contributed to that draft remains intransparent.
No referendum will take place. The government chose to consult with the people only by means of a short questionnaire of 12 questions, most of them put in a rather suggestive form and omitting some of the most controversial points such as the restriction of the competence of the Constitutional Court. How many of these questionnaires have been answered and in which way they shall influence the process is unclear at this point.
The opposition withdrew itself early in the process. The only party that has taken an active part in it, besides the government coalition, is the right-wing extremist Jobbik. Orbáns coalition with its 2/3 majority will have written, debated and enacted the new constitution all by itself. That makes it highly improbable that the new constitution will have a sounder legitimacy base than its predecessor.
–Maximilian Steinbeis, www.verfassungsblog.de