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Constitutional debate points towards new basic document

Hungary’s Constitutional Court ruled the 98 % tax levied on public service severance pay over HUF 2 million unconstitutional and annulled it. After the decision was announced Fidesz caucus leader János Lázár initiated an amendment to the constitution that would remove issues that are already removed from the circle of potential referendum targets - such as questions on taxes - from the Constitutional Court's jurisdiction.

This latest step of the governing party, however caused great uproar not only in the media but also among many civil organizations and foreign institutions. Many are worried not only about the quick amendments to the current constitution but also about the new constitution under preparation.

German Commerzbank AG said that Prime Minister Viktor Orbán’s attempt to deprive nation’s Constitutional Court from its authority to hear cases involving budget issues is basically undermining the faith of investors in the rule of law in Hungary. Társaság a Szabadságjogokért (TASz), a civil liberties group expressed its concern about the attempt of the government to amend the constitution in order to restrict the rights of the Constitutional Court and called on people to raise their voices in protest.

Now that the governing party is preparing the new constitution many ask urging questions about the old and the new constitution. Also, seeing the “hasty” and “worrisome” amendments to the constitution many are truly concerned not only about the “old” but also the new constitution currently under preparation. However, regardless of the current debate, the question of whether Hungary needs a new constitution has been on the table for quite a while.

The German constitution states that the document is untouchable while in the United States a constitutional change was made so difficult that it became almost impossible. Hungary’s constitution can be changed by a two thirds majority, and Fidesz enjoying a majority of just that proportion easily has the legal power to pass this or any other amendment to the constitution in the parliament.

László Sólyom, former President of Hungary and Péter Tölgyessy analyst and former member of the legal philosophy institute of the Hungarian Academy of Sciences – who were both key members of the constitutional committee in 1989 - are among the most vocal defenders of the constitution. Sólyom and Tölgyessy agree that the current constitution - formally being a modified version of the constitution written following the Stalinist model in 1949 - needs to be replaced by an entirely new document. The current constitution – meant to be just a temporary solution in 1989 – received severe criticism from the political right for formally still being a modified version of the communist constitution. Exactly for this, Sólyom stated that the new constitution will make up for this neglect in lawmaking. Tölgyessy is on the same opinion, and said that in a formal, technical aspect the current constitution is “makeshift”, and was always meant to be temporary.

However, Sólyom and Tölgyessy also agree that despite being written in 1949, the formal amendments made in 1989 are actually a testament of parting with that regime. It provided the grounds for a constitutional state to be built, and its content and values should be included in the new one, they agreed. As Tölgyessy stated the overall modification of the current constitution “has been made based on clear moral values and has stood the test of times as it kept domestic politics -- more and more driven by wartime logic -- between constitutional boundaries”. Sólyom said that the Constitutional Court reaches decisions trying to uphold what is considered the “essence” of the current constitution. “Deviating from these rulings would mean giving up of the constitutional state,” he added. (BBJ)