May 25, 2011
By Marion Smith
Under Prime Minister Viktor Orbán, Hungary is finally getting a new constitution. The old one was adopted in 1949 and significantly amended in 1989, leaving Hungary as the only country in the former Eastern Bloc that did not formally adopt a new constitution upon gaining independence. Doing so now is monumentally important.
The governing party in Hungary, Fidesz, which makes up the overwhelming majority in Parliament, strongly backs the new constitution. But the refusal of the opposition parties to attend the debate in Parliament creates a perception of illegitimacy which may weaken the future of Hungary’s new constitutional order. The political principle of popular sovereignty, upon which the concept of constitutionalism ultimately is based, should be honored in the ratification process by a national, extra-parliamentary process of popular approval. Indeed, one way to deflect the accusation of “one-party rule” is through popular ratification of the new constitution.
Much has been made of Fidesz’s unprecedented victories in the national elections of the spring and fall of 2010. These significant successes were attributable to the Hungarian people’s affinity for Fidesz and Orbán, but also to the previous Socialist Party’s spectacular failures. The Fidesz–Christian Democratic (KDNP) coalition government in Hungary possesses more than the two-thirds majority required for constitutional reform. Fidesz has a clear electoral mandate to change the course of Hungary. In addition to amending the constitution nine times since May 2010, the Fidesz-KDNP government and Orbán have made the adoption of a new constitution a national priority. On March 14, Fidesz-KDNP formally submitted its proposed text to Parliament, which plans to conclude debate on April 18.
The current constitution is a temporary document (per its preamble) and provides that a two-thirds vote in Parliament can amend it. But the current constitution does not stipulate the method of ratification of a new constitution. That is unfortunate, because the method of ratification will set the tone and ultimately determine the legitimacy of the new governing law.
A series of court decisions has determined that a referendum to ratify a new constitution would be unconstitutional, so the government’s current plan is for Parliament — the body that wrote the document — to also ratify the new constitution.
There is another option, fully consistent with the principle of popular sovereignty and particularly appropriate for national constitution-making: a ratification convention. It has not been publicly considered, but it should be, even at this late stage.
Parliament could continue its debate and drafting process and then submit its final constitution to the Hungarian people for a yes-or-no vote at a national, extra-parliamentary ratification convention. That convention could consist of local delegates elected without party affiliation from each of the 176 voting districts or 20 counties in Hungary. Among the delegates there would undoubtedly be some current members of Parliament, but it will nevertheless be an independent body elected solely for the purpose of voting on Hungary’s new constitution.
Ratification should not occur through the normal mechanisms of Hungary’s parliamentary politics. It can hardly be viewed as politically risky to promptly engage the voters yet another time, given Fidesz’s recent landslide victories. Considering all the intellectual and legal work invested in preparing the new constitution draft, Fidesz should do all in its power to move ratification closer to the people to provide the democratic legitimacy required for such a fundamental and important act of self-government.
The Federalist Papers were written during a similar process, and it provided the drafters of the U.S. Constitution the invaluable opportunity to argue their case before the American people. It was an exercise that benefited future American jurisprudence, strengthened popular civic engagement, and led to the adoption of the Bill of Rights.
Hungary is not the United States, but by choosing a written constitution, Hungary has signaled its respect for the ultimate sovereignty of the Hungarian people, symbolically represented by the Holy Crown’s resting place in the rotunda of the Parliament building in Budapest. But popular sovereignty must be manifestly represented by the Hungarian people’s choice on the proposed constitution.
Prime Minister Orbán and the new government have committed themselves to overcoming the unwanted legacies of Hungary’s Communist past. Constitutional ratification by a national, extra-parliamentary process is the right way to establish good government, based on the consent of those governed.
Marion Smith is president of the Common Sense Society in Budapest, Hungary, and a graduate fellow with the Heritage Foundation.
First appeared in National Review Online
Visiting Fellow, B. Kenneth Simon Center for Principles and Politics
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