Sunday 31 July 2011

The Constitution of Hungary and the Seven Lost Years

New constitution: What is left as it is is worse than what is changed

“The functioning of the Hungarian State shall be based on the principle of division of powers” - says the new Hungarian constitution (the “Fundamental Law”) in its Article C thereby codifying what is usually regarded as the heart of a democratic political regime. Although the old constitution (which remains in force until the end of 2011) did not contain such an explicit declaration, the doctrine of division of powers has been acknowledged by the Hungarian Constitutional Court as a basic – albeit implicit – principle of the Hungarian constitutional system ever since the early 1990s. Considering that the new Fundamental Law changes little on the institutional structure of the Hungarian governmental system, one has to conclude that the Hungarian system of public law will be characterized by the principle of division of powers just as much from next year on as it was under the old constitution.

But does this characterisation in fact apply?

The myth of division

This question must look odd to many. At least in Hungary, the principle of division of powers is regarded as one of the main pillars not only of the current constitution but also of constitutionalism as such. Law textbooks, much of the legal literature and newspaper articles treat this principle as a universal ideal of public law that every constitution ought to fulfil in a way. The most discussions and debates about the new constitution concerned whether the Fundamental Law fulfils this ideal to the same extent as did the old constitution or whether the current government respects the ideal as laid down in the constitution. The applicability of the principle was not challenged on either side of the argument.

Who challenged it, stood outside the argument – and, for that matter, outside conventions. In a March interview to a leading Hungarian weekly, Prof. Béla Pokol, a renowned but quite eccentric social scientist set forth the provocative thesis that the current Hungarian constitution is not based on the principle of division of powers, nor should it be. According to Prof. Pokol, the Constitutional Court has continuously misinterpreted the constitution of 1989-90, which was originally built on what he calls the British model of unified power. A close reading of the text of the Hungarian constitution, he says, would reveal a political structure in which supreme power is vested in the Parliament, whose “executive committee”, the government is not restricted by any other branch of state. The division of powers between different branches, which was not even hinted at in the constitution, has retroactively been read into it by the Constitutional Court. As a result of this misinterpretation, Prof. Pokol argues, the Hungarian governmental system has lost the efficiency that the wording of the constitution tried to establish.

When reading an opinion so much at odds with the prevailing consensus, one is inclined to think that there must be a misunderstanding here. This impression grows further when one learns that, according to Prof. Pokol, principally all European constitutions follow the Westminster model of unified power “with minor modifications”. This would mean that the division of powers, upon which so great value is set in European political discussions, were not implemented at all in European democratic regimes – an embarrassing conclusion. Fortunately, the contradiction can be resolved: European constitutional systems seem not to conform with the principle of division of powers only in comparison with the constitutional structure of the United States, a contrast played out in the argumentation of Prof. Pokol. This solution of the problem suggests, however, that the principle of “division of powers” has completely different meanings on either side of the Atlantic.

Two concepts of democracy: monarchical and republican

In fact, “division of powers” has a weaker and a stronger sense: The first means only that the scope of state authority is divided between different branches that cannot directly instruct each other in their respective sphere of competence. It does not mean that these branches were independent of each other. To the contrary: the institutional structure is designed to guarantee their efficient cooperation. This is the relationship between governments and parliaments in most European countries. In the second sense, by contrast, the principle implies full independence of the different branches of state with no institutional way to impose their will on each other. This system does not guarantee cooperation between the branches; rather, it forces them to find the terms of cooperation in every single issue. This stronger concept, which describes the balance of power between the President and the Congress of the United States, can properly be called “separation of powers”.

What is common in the two systems is that the power to direct community operations and the power to set the rules for these operations are vested in different organs. The government – as executive organ – may manage public affairs only within the boundaries of laws that are determined by the legislative. The legislative assembly, on the other hand, may make laws but these can serve as a mere framework for the particular measures determined by the government. The plenitude of power is divided between these two organs, neither of which can act efficiently in defiance of the other. Starting from this structure, European constitutions try to establish efficient governance by institutional arrangements that ensure that the government is always supported by the parliament. For this reason, they make the confidence of the parliament a condition of a government's accession to – and remaining in – office. This system is called parliamentary because it makes the government dependent on the parliament. There is no such condition and, therefore, no such guarantee of efficiency in the constitution of the United States and in other presidential systems. The President can form a government and manage public affairs without the confidence of the Congress. But he cannot count on the Congress when it comes to the enactment of laws: If the president has no majority in the congress, he has to make concessions to certain groups of representatives in order to put the proposed bill through. In this system, the two powers are completely independent of each other.

In fact, parliamentary systems still retain the structure of absolute monarchies, from which they arose. They have only one real power: the parliament, which gradually supplanted the power of the king in public affairs. The parliament receives its mandate to govern directly from the people and delegates this mandate – in its operative part – to other organs, most notably, the government. The parliament, however, maintains its control or, at least, its authority over these organs. The power thereby becomes divided but remains rooted in a single source. The ultimate power of the parliament is not constrained by other institutional powers but only by civil and political rights of citizens as acknowledged by the constitution. Fundamental rights are considered to be established by public law exactly to set limits for the otherwise omnipotent legislative assembly. In this regard, parliamentary constitutions derive directly from medieval and early modern bills of rights, which entrenched the inviolable rights of citizens towards the otherwise omnipotent crown. Consequently, the organs over which the parliament wields neither control nor authority – like the constitutional court – have a merely negative power of annulling the measures of the parliament should they infringe citizens’ rights.

In modern times, there can be no other source of power than the people. Therefore the only way for a constitution to establish two separate powers is to have the people mandate two different organs to govern. This is how presidential systems work. The people elect both the head of the executive and members of the legislative themselves. Since both organs derive their legitimacy directly from the people, their authority is evenly matched. Both are invested with positive powers, which cannot, however, take effect unless both cooperate with one another. The impossibility to enforce a measure against the other’s will is usually referred to as the system of “checks and balances”. This type of “mixed government” has been the ideal of republican thought since the antiquity: The structure of mutual control can principally protect the people from tyranny without explicitly guaranteeing their rights. Accordingly, the original version of the US Constitution did not deal with civil or political rights at all. Even the first 10 amendments to it cannot be regarded as a declaration of rights in the European style: Rather, they simply forbid the Congress to enact laws restricting certain freedoms. According to the American view, these freedoms are not established by public law but stem from the state of nature. The best way to protect them is to design a republic in which no person or body can ever grasp full power.

The Hungarian model of parliamentarism: constructive inefficiency

Parliamentary systems try to ensure efficient governance by linking the legislative and the executive powers to each other. The linkage is usually unilateral: it can be bound and released by the parliament at its own discretion. The parliament can withdraw confidence from a government and authorize another one as it may see fit. If the majority opinion of the parliament is changing continuously, however, this system may lead to serious political instability. Some constitutions, therefore, try to make the linkage between the legislative and the executive bilateral by giving the government some leverage against the parliament. One of the tools used for this is called “constructive motion of no-confidence”. This concept, invented by the Germans in 1949, means that a government cannot be removed by a vote of no-confidence unless its successor is proposed on the same ballot. Even if internal critics of the ruling coalition and parts of the opposition agree on withdrawing confidence from the Prime Minister, they cannot pass a vote of no-confidence in him as long as they do not agree on who should come after him. This arrangement strengthens the position of the government and makes the Prime Minister the real centre of gravity of the political system: Rather than being an agent of the parliament, he may actually try to set the course for the majority of the legislative, too. This system is usually called “chancellor democracy” after the German prototype.

Because of the strong linkage between the legislative and the executive, chancellor democracy is very far from the American model of “separation of powers” and close to the Westminster model of “unified power”. And it is exactly this system that Hungary adopted in 1989-90 and decided to keep intact in 2011. Only the Parliament is elected directly by the people, the Government is responsible to the Parliament and the Parliament cannot initiate a vote of no-confidence without proposing a successor of the Prime Minister at the same time. This suggests that Prof. Pokol may have right in emphasizing the “British”, “absolutist” character of the Hungarian constitution, which leaves no room for the separation of powers in the republican sense. But is he also right in blaming the distortion of the authentic constitutional structure for the inefficiency of the Hungarian governmental system in the past 20 years? I doubt it.

Inefficient governance clearly played an important role in the woes of Hungary during the “Third Republic” – as some call the political regime established by the constitution of 1989-90. Contrary to Prof. Pokol, however, I believe the inefficiency was not caused by a false interpretation of an originally efficient constitutional structure but by the inherent anomalies of the original structure itself. To begin with, a stable government, which chancellor democracy undoubtedly ensures, is not by all means an efficient government. In fact, the “constructive motion of no-confidence” tends to keep governments in power even if their performance is very poor. Unfortunately, this is not a merely theoretical or marginal possibility: Hungary spent 7 of the past 20 years under governments who were too weak to undertake important measures but completed their term nevertheless. (Not to mention governments who failed to undertake measures for other reasons.) It means that Hungary was virtually ungoverned in more than one third of this period – which I think is a luxury no country could afford.

Two lies that did not shake the system 

Hungary had two major political crises during the Third Republic: The so-called “taxi-drivers' blockade” in October 1990 and the scandal triggered by the so-called “Őszöd speech” in September 2006. Both shook the newly elected government in a way that it lost its ability to implement its policy once and for all. However, both governments remained in power for the rest of the term (although the person of the Prime Minister formally changed before the next election in both cases). The longevity of these weak governments was, besides other factors, due to the described structure of chancellor democracy, which makes it extremely difficult to remove a Prime Minister even if he performs terribly.

Half a year after the first free elections in 1990, people in Hungary were already deeply disappointed by the democratic transition, which they saw as bringing mass unemployment, inflation and insecurity instead of the welfare they had expected. After the government dramatically increased the price of gasoline despite having previously denied to want to do so, taxi drivers decided to protest against the measure by completely blocking main traffic routes. The country went lame for three days. Interestingly, most people sympathised with the move of the taxi drivers and even supported the blockade by providing participants with drink and food. The people of Hungary, which had not seen any point in organising demonstrations against the collapsing communist regime 1 or 2 years earlier, was on the brink of overthrowing the first democratically elected government by revolutionary means. Although the blockade was obviously unlawful, the government did not dare to restore order by police or military force. On the other side, protesters shrank back from making political demands such as the resignation of the government. The taxi-drivers' blockade ended with an agreement on some price compensation. The government also promised not to conduct criminal proceedings against participants.

In my view, this was the worst outcome that could happen. If the government had resorted to force, it might have saved its face and its capacity to act. If the protesters had insisted on the resignation of the government, Hungary might have had a new government with public support by the turn of the year. Instead, Hungary remained under the rule of a hugely unpopular government, which was afraid of acting resolutely, for another three and a half years. The government could never recover from the shock caused by the fierce opposition one of its first controversial measures had to face. From then on, it confined itself to create the general framework of a free market economy based on competition without trying to improve the position of Hungary in that competition. I think it was one of the major causes of the failure of the Hungarian transition that the first government – having no public support – functioned as a mere caretaker government and refrained from implementing a clear-cut policy in most of its term.

One and a half decade later, in April 2006, the Hungarian people reelected a government for the first time in the history of the Third Republic only to realize within some months that it had not deserved reelection at all. The prime minister, who had maintained that the budget was in good condition and had enacted a law of gradual tax reduction before the election, abrogated the law and started to talk about inevitable spending cuts after he won. When a secret speech of the prime minister became public in September 2006, in which he admitted to the parliamentary group of the ruling party that their reelection campaign had been based on lies, the government irrevocably lost its credibility. Because of the overall aversion to politics, most people simply fell into apathy and only a smaller portion of them went to the streets. The radical fringe of the demonstrators tried to overthrow the government with revolutionary means but, since the violent approach lacked public support, this attempt could not succeed. The police dispersed violent – and, sadly enough, many peaceful – demonstrators, while the rest of the protests were simply ignored by the government.

This time the government managed to save its face, but at a high price. It could never regain the public confidence it badly needed for the “structural reforms” it was resolved to carry out. Despite the strong resistance, it tried to implement some controversial measures. After these measures were rejected by a national referendum in March 2008, however, it had no more end in mind other than survival. The agony of the government lasted until the next general elections in 2010, which means that Hungary had no capable government through the 2008 financial crisis.

And now for something completely similar

Many have realized the negative impact of the “constructive motion of no-confidence” on the efficiency of the Hungarian political system. During the constituent process in 2010-2011, it was suggested that the President of the Republic should be granted the right to dissolve the Parliament in the case of “a constitutional-political crisis arisen from serious loss of confidence”. This solution would not have bothered with untying the close linkage between the Parliament and the Government but would have cut the Gordian knot by making it possible to end the mandate of an unpopular coalition before maturity. The provision was not included in the final version of the Fundamental Law because the majority of the constituent body feared that this power could easily be abused against a legitimate Government. I myself think that a more precise formulation could have warded off this danger: It could have been stipulated, for example, that the President may execute this right only once during his 5-year-long mandate and only if the Constitutional Court, at his request, establishes the occurrence of a political crisis “arisen from serious loss of confidence”. The suggested institution, in its balanced form, could have served as an emergency brake to prevent the political system from coming to a dead end. Unfortunately, it will not.

In effect, the new constitution is going to preserve the Hungarian "chancellor democracy" together with its anomalies. If the Third Republic – as we know it – ends in 2011, this will not happen because of institutional changes brought about by the Fundamental Law. It will happen due to changes in the election system that have recently been outlined by a commission drafting the new electoral law. (The election system is a factor that determines a political system just as much as the constitutional structure does. If Hungary will have a one-round mixed voting system with a relatively strong majoritarian component, Hungarian politics will look pretty different from that developed under the two-round mixed voting system with a relatively weak majoritarian component.)  

This change will not affect the functioning of the governmental system, however. It will remain to be based on the "weak" understanding of "division of powers", in which the Parliament and the Government are closely linked to each other instead of being separated. The only "check" and "balance" of their combined power is the electorate. As long as the electorate cannot have its say, the Government and the Parliament can act efficiently – or, with 35% probability, simply waste time.

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