Old constitution socialistic?
The previous constitution, which is still valid until the end of the year, is labeled as a remnant of socialism by the governing party Fidesz. Actually the constitution dates from 1949. However - and this point is not accepted by the government – in 1989 there was a fundamental constitutional reform. The only sentence which was taken from the 1949 constitution is: "Hungary’s capital is Budapest”. Otherwise, the then-fledgling opposition ensured that all democratic values were included in the new constitution. Viktor Orbán was already chairman of Fidesz (first a student organization, not a party) and therefore actively involved in the elaboration of the constitution of ‘89.
The new constitution under fire
The recently adopted constitution - the government speaks of “alaptörvény” (Basic Law) - makes legal scientists shudder. As the first and probably most serious criticism in the long run the preamble has to be mentioned. Where in other constitutions objectives of the state are formulated and help is given for the subsequent interpretation by the national Constitutional Court, the “nemzeti hítvallás” (National Statement of Faith) refers to the thousand-year-old constitutional tradition of Hungarian history and to the Holy Crown as its identity-creating element. The Hungarian Holy Crown is a worldwide singularity. While the crown is a symbol of power in other monarchies, in Hungary it is a source of power - a historico-cultural object as a carrier of state sovereignty.
But next to the revisionist claims of territories from before the time of the Treaty of Trianon arising from the crown, Christianity is included as a religion belonging to the nation in the ‘National Statement of Faith’. Only briefly shall be mentioned that subsequently - from a constitutional point of view - a primacy of the Christian denominations can be derived. The guaranteed right to freedom of religion might thus be undermined.
Abortion illegal?
However the criticism can and needs to be extended to the other constitutional text. Across Europe constitutions grant rights. Where a restriction is necessary, the barriers are directly mentioned in the article. Thus the Parliamentary Council choose 1948/49 the phrase “further regulated by a federal law." It is this type of barriers that is lacking at critical passages of the Easter Constitution. Two examples illustrate this.
The new Hungarian constitution protects the right to life from the moment of fertilization. This could now lead to different interpretations. The positive one, which is sought by the government, says: In case of a desired abortion the right of the mother to an independent life and development of her personality should be weighed against that of the unborn. Up to this point nothing is to be said against. Also in Germany this discussion was held - in the early seventies.
So now the Constitutional Court as decision-maker has to weight up the different rights, as all previous abortion laws are unconstitutional and therefore no longer apply. The Constitutional Court can now use the National Statement of Faith as a help for interpretation and assessment. The absence of all legal barriers to the right to life leads to no other option but to balance two fundamental rights against each other. The result seems clear, as the strong reference to Christianity will probably cause the banning of abortions.
Too much power for the president
A different but no less dramatic case concerns the powers of the president. In the description of its powers it is said: “The president can dissolve parliament.” No limits, no conditions. There is no room for interpretation - the President is awarded an abundance of power, as was last seen during the Weimar Republic.
The critical reviewer may point out that two drastic examples were chosen deliberately, but it remains only to repeat what the philosopher Janos Kis said: “This constitution does not initiate a new era, but a counting down towards the past.”
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