The Biggest Question Is Not Hungary’s Next President but Its Next Constitution

The former prime minister did not take up his parliamentary mandate after the election that his party so resoundingly lost, but he is still president of the Fidesz party. He declared on Wednesday that after the constitutional amendment removing Sulyok, the rule of law has ceased to exist in Hungary; from now on, there is only tyranny.

After 16 years spent consolidating power and appointing loyal officials to every independent institution, Orban now contends that the actions of the new government are illegitimate because it is seeking to monopolise power. Therefore, Fidesz won’t participate in the election of officials in the place of those who were removed, because it considers the new officials also to be illegitimate. Beyond the state president, this will comprise four constitutional judge vacancies, because the constitutional amendment passed by Tisza also reintroduced the 70-year retirement age for constitutional court judges and four older than that will now have to retire on September 1.

Orban recalled that, according to the constitution, everyone has the right to lawfully resist attempts to secure exclusive control of political power. He promised that Fidesz would support anyone engaged in such resistance. At this point it is worth reminding that at the time he was prime minister, those who expressed similar resistance were usually labelled traitors and foreign agents – but “the times they are a-changin’,” as Bob Dylan sang.

It is likely that with its resistance agenda, Fidesz wants to undermine the new government’s constitution-drafting plans. Prime Minister Magyar has made it explicit that in a constitution-making process seen starting in September Hungarian society would be involved, which is in sharp contrast with the exclusively elite-driven constitution-drafting practices that Hungarians have so far experienced.

By calling on its supporters to resist and depicting the new government’s rule as arbitrary, Fidesz probably also hopes to put people off participating in the constitution-drafting process so that it can label any new constitution illegitimate. Yet this could easily backfire, as the current Fundamental Law was practically written by two Fidesz politicians on a tablet, after a postal consultation with citizens full of biased questions and simplified answer options. This level of transparency and social involvement is not that difficult to surpass, even if Fidesz eventually ends up boycotting the process.

Beyond its legitimacy, the key question about any new constitution is whether and how it will be able to prevent a similar concentration of power to what we witnessed over the past 16 years. This might entail various institutional solutions, depending on the outcome of the consultations in the constitution-making process.

It would be worth considering the reintroduction of bicameralism where, if the right institutional balance is found, the upper chamber could function as a counterbalance to the government and its majority in the lower house. Referendums should also be made functional. Though they currently exist on paper, it is practically impossible to hold a legally binding referendum due to the high turnout threshold and the extensive list of prohibited subjects. Most important of all, the electoral rules and the constitutional provisions governing legislation and institutions must guarantee that no single party can amend the constitution or entrench its priorities in cardinal laws, and that no single party can pack independent institutions with loyalists, hollowing them out from within.

Finding the right constitutional solutions to all these matters is far more important than which person will hold the presidency for an interim period of one or two years.

Bea Bakó is an independent researcher, she holds a PhD in constitutional law and co-authors the Hungarian newsletter Gemišt.

The opinions expressed are those of the author and do not necessarily reflect the views of BIRN.