15 May 2013

Orbán Is Heading For The Modern Age

RK: Professor Scholz, you have made a thorough study of the new Constitution, which has been in effect for a year, and which has been the object of heated criticism from beyond Hungary’s borders. What do you think of it?

RSch: The Hungarian Constitution is a wholly exemplary modern European constitution. It is exceptionally modern in the area of basic rights. It conforms to the charter of basic European rights to an extent that I have not yet seen in other European constitutions. It establishes irrefutably the basic principles of democracy, the constitutional state and social state.

RK: Nevertheless, we read again these days that PM Viktor Orbán is attempting to bring about a dictatorship. What do you think?

RSch: This is nonsense. People are blind.

: How close are you to the Hungarian government? Are you paid for your positive opinion?

: Not at all. I am dealing with the Hungarian Constitution of my own freewill and gratis. I have a certain connection with Hungary, because my father who lost his life at Stalingrad had a best friend, who was a Hungarian. He was my godfather. I have been following this country’s history for decades now. Interestingly enough I am one of the few German constitutional lawyers who have dealt with the Hungarian legal system.

RK: One hears accusations from Brussels that with his Constitution Orbán wants to return to the nationalist soil.

RSch: In the preamble to the Hungarian Constitution can be found a confession of faith in Hungary’s national identity. That is what the criticism is based on. Looking at the Constitution dispassionately, however, a reference to national identity is a self-evident element of a Constitution. In addition to proclaiming their national identity, Hungarians expressly say yes, they assent to the unification of Europe. Anyone who reads anti-European nationalism into this did not read the Constitution or has misinterpreted it on purpose.

RK: What valid criticism do you see with regard to the Hungarian Constitution?

RSch: I do not see any valid criticism. At the most a few clever ways in which the Hungarian government wishes to push through certain laws.

RK: It was the media law which caused the most outrage. Orbán was accused of wishing to muzzle the press.

RSch: The Hungarian Constitution makes it clear that the press is independent. In the same way as every constitutional state that we know. Orbán wants to regulate every kind of media with a very ambitious law. There were truly problematic points in this. This is why even the Constitutional Court rejected the law; later it was amended by the legislature. This demonstrates splendidly that the brakes and balances of power are alive and well.

RK: In your opinion what is the basis of the charge that Orbán is moving in the direction of dictatorship and the extreme Right?

RSch: The charge of dictatorship and extreme Right is absurd. The opposition is rooted in the clear victory of Fidesz, the party of government in the last election. The Left suffered a humiliating defeat, and Fidesz obtained a two-thirds victory. The Left outside Hungary is incapable of coping with this. That is why the Left is trying to discredit an unimpeachable democratic election.

RK: The current controversy, on which the newspapers are laying such stress, concerns the Constitutional Court. Orbán is accused of wanting to demolish any limits to his power. What is your interpretation?

RSch: They are primarily focusing on two points above all. The first one is that the Constitutional Court can base its decision only on the new Constitution democratically approved in 2012. Any decisions based on pre-2012 legal principles are not valid any longer. Now this is being criticised, but this demand goes counter to the view that a Constitutional Court is not above the Constitution in effect, but below it. Second: Orbán would not like the Constitutional Court to pronounce anti-constitutional those constitutional prescriptions that the Parliament has duly approved. From the constitutional standpoint, this is a legitimate demand, in the same way as considering the Constitutional Court to be below and not above the constitution.

RK: The German daily, Die Welt, writes on this subject that Orbán has long ago strayed from the path of freedom and no longer stands on the ground of democracy, but on “unlimited power”.

: Like Germany, Hungary has an independent system of justice, a separate legislature, executive and judiciary, and Constitutional Court. In Germany, the central basic principles were fixed by article 79, paragraph 3 with a permanent guarantee. At the same time, the Hungarian Constitutional Court does not have as much power as the German. The German Constitutional Court, however, is unique in the world. The Hungarian Constitution is also clearly committed to democracy and the constitutional state, so that the legislature cannot in any case overthrow the form of government. The image created by the media that Orbán wishes to rule without constitutional limits is false.

RK: In Germany, citizens can submit complaints concerning constitutionality, for example, if they feel that certain laws violate their basic rights. Is there such a thing in Hungary?

RSch: Yes. The best-known example is the media law. Complaints were submitted, because it was considered to violate the basic right of freedom of the press. In the end, the law was amended.

RK: In several political areas, the Constitution has special laws, which require a two- thirds majority. Does this make sense?

RSch: I find it an interesting innovation, which has to be observed from the standpoint of long-term stability. Orbán obviously wants to overthrow certain props. In order to do so, certain political areas have been determined, on which he raises the bar on the democratic legislative requirements. Such a bar limits the power of the governing party and forces it to reach beyond the party to find a consensus with respect to certain laws. I would consider it desirable in Germany, for example, to put such a limit on a serious decision from the democratic standpoint. Should it be possible to force through laws having such serious consequences with a simple majority? Would it not be better to lift them above the politics of the moment? Hungary is taking a position on these questions.

RK: In any event, Orbán has a two-thirds majority in Parliament and he can force through these special laws, which arouses the suspicion that he simply wants to govern as a dictator, and wishes to place future legislatures before a fait accompli.

RSch: It is true that Orbán currently has a large enough majority, but that can change at the next elections, if his party loses. Then he would be limited by his own laws. The reason for the special laws is not the desire to govern in a dictatorial way, but it is rather the result of lack of confidence in politics. Doubt is the basis of democracy. In Switzerland too, politics are kept on a short leash by direct democracy. I see this as similar to the Hungarian special laws.

RK: Still in the current situation, Orbán has a two-thirds majority. Whatever is decided here cannot be overturned so easily.

RSch: If Orbán wished to govern as a dictator, he would never have brought about such a Constitution. Look at the controversial points. In one case, the government’s responsibility to take care of the homeless has been made part of the constitution. Another special law requires Hungarian students, who are given state scholarships, to work in Hungary a few years after they finish their studies, or repay a certain sum. These are not the political initiatives of a dictatorship. On the other hand, it is a legitimate question whether such laws concerning the students and the homeless belong in the Constitution. The danger is that the Constitution can become ossified.

RK: What do you think is Orbán’s motivation? Why does he bind the Constitutional Court closer to the new constitution? And why does he stake out such special laws?

RSch: The new Constitution has been in effect since 1 January 2012. Previously, Hungary had a constitution that was written by the communists and adopted by the post-communists. In my opinion, Orbán had a legitimate desire to break with this Communist tradition and place Hungary on a new foundation of constitutional government. The conflict comes from the fact that there are judges and public prosecutors, who are hangovers from the communist times. In order to blunt the edge of this legacy, Orbán drafted transitional resolutions in his Constitution that were attacked by the Constitutional Court. The battle over the Constitution in Hungary is the fight between the communist past and the modern age. Orbán wants to modernise. It is to his credit that he gave his homeland a modern Constitution. No other former Eastern-bloc country has managed to achieve this.

RK: Orbán is also criticised for requiring Hungarian voters to register before every election.

: There was a loud outcry over this in the EU, where the double standard is clear. Take a look at Belgium. There not only do the voters have to register but they are required to vote. Anyone who doesn’t make the effort to vote has to pay a fine. Yet it doesn’t occur to anyone that Belgium is a dictatorship.

RK: How justified is the criticism on the Hungarian side, that the EU interferes too much with the debate over the Hungarian Constitution?

RSch: I think this suspicion is justified. Let’s take a concrete example: the Hungarians have brought a transitional decision that state prosecutors and judges must retire at the age of 65 in the same way as everybody else. Now, many post-communist public prosecutors and judges did not agree with this, because the communist Constitution did not prescribe any kind of age limit. They wanted to stay on and they protested to the EU. After this the EU stepped in on the side of the communist public prosecutors and judges and accused Orbán of age-discrimination. As a German, I can only shake my head. After the unification of Germany every communist East German judge was thrown out, without the requirement that they reached the age of retirement and without any transitional resolutions. The EU said not a word. Orbán was more merciful than the Federal government at the time.

The German original was published in Die Weltwoche, Zürich, 14 March 2013.
Translation by Erzsébet Csicsery-Rónay

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