Region: Orbán stands firm in constitutional crisis

By Miklós Stemler

For the Post

The will of the people is above all in Hungary, where an amendment recently passed by Parliament has caused the Constitutional Court to lose its right to examine and amend the Constitution. The European Commission heavily criticized the move, threatening to cut off EU funds to the country if the government didn't remove the "violation of basic rights." In Hungary, some see the move as the disintegration of the constitutional state and a step back to the communist era, but supporters of the government view it as the triumph of the people over abstract law.

Hungary was covered in snow March 15, the date the country celebrates the 1848 revolution that sparked its war for independence from Habsburg rule. Those who took to the streets that weekend criticized the government for its handling of the economic crisis, but the dismal weather successfully diverted most of the attention from a far greater scandal: the new Fourth Amendment of the Constitution, which surpasses the effect of all previous amendments.

The governing Fidesz-Civic Union and its coalition partner, the Christian Democratic Party, have been busy the past three years. After gaining a constitutional majority in the 2010 general election, they created and accepted a new national Constitution in less than one year's time and have amended it four times already. The most recent amendment wrestles power from the guardians of the Constitution, the Constitutional Court, in favor of the government in power.

The government of Viktor Orbán is not the first to clash with the Constitutional Court. In 1995, the court ruled many of the measurements of the then social-liberal government austerity pack were unconstitutional and destroyed them. The event repeated in 2007, and Orbán, the leader of the conservative opposition at the time, welcomed the court's decision, saying, "There is no exception and loophole from the ruling of the Constitutional Court. This is the iron law of Hungarian democracy." The liberal-turned-conservative politician has now broken that iron law, and some fear the spine of the Hungarian democracy, too.

Although the court clashed with the government on several occasions since the regime change in 1990, the former governments lacked either the means or the will to restrict its power of the Constitutional Court. Before 2010 only one government, the social-liberal coalition of 1994-98 had a constitutional majority in Parliament, but showed relative restraint - not least due to the internal struggles of the coalition. When he took power, Orbán made it clear he views such restraint as a sign of weakness and Hungary must move past the restrictions of the past 20 years. In the autumn of 2010, after the court struck down one of the first measures of the new government, the conservative coalition ruled the court has no right to examine the measure.

When the court deemed unconstitutional the transitional measures of the new Constitution in December 2012, the government decided to end the battle in one stroke. The Fourth Amendment reinstates the previously struck-down transitional measures and declares that the court cannot directly examine the Constitution in the future. This means any government with a constitutional majority can amend it at will without judicial oversight.

The amended Constitution also states all university students whose studies were state-funded have to work for a period of time in Hungary after their graduation and imposed new limitations on the freedom of expression.

The amendment had some conservative critics. The most significant among them was László Sólyom, the former president of Hungary and the first president of the Constitutional Court in 1990.

Although the respected law professor was a Fidesz party candidate in the presidential election of 2005, in 2010 Orbán made it clear that he has no need for the independent intellectual. Instead, he nominated Pál Schmitt, a loyal party member and former communist secret police collaborator, for the party's presidential ticket. After his election by Parliament in the 2010 vote, Schmitt had to resign amid a plagiarism scandal in 2012.

Sólyom argued the amendment damages the "constitutional culture" of the country and means a step back to the communist era, when only Parliament had the right to nullify or withdraw laws. The main function of the court is to uphold the Constitutional order, sometimes even against the lawmaker, Sólyom said.

Orbán calculated correctly that most of the "people" do not care for such legal arguments. "It is maybe bad for Sólyom but good for us," Orbán told the MPs of the governing coalition March 11, before the Fourth Amendment vote. The prime minister argued the main source of power is Parliament, which represents the will of the people.

Instead of the controversial amendment, Orbán voiced outrage over a separate case in with a Hungarian court sided with an energy provider and ruled that the firm can pass the expenses of overhead cost reduction onto consumers. (Preventing energy cost hikes is part of the Fidesz party's platform for the upcoming election.)

One day after Orbán's speech, Parliament passed a new measure to prevent energy providers from such "trickeries." The message was clear: In Hungary, the will of the people is more important than abstract law, and in Orbán's eyes, the "will of the people" is the same as his own.

Miklós Stemler can be reached at

news@praguepost.com