Comment David Fieldsend on Constitution HungaryComment David Fieldsend on Constitution Hungary

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Comment David Fieldsend on Constitution Hungary

Is Hungary's new constitution really so outlandish?

The new Constitution of Hungary has been the subject of intense media interest and speculation over recent weeks. Last week a debate of more than three hours duration in the European Parliament was dedicated to it. Watching that debate from the gallery as I was, one could be forgiven for thinking that the MEPs below were debating two completely different documents. Speakers representing the Danish Council Presidency, the European Commission and the European People’s Party (Christian Democrats) exuded an air of calm and reassurance. The 30 odd cardinal laws implementing the Constitution’s provisions had been carefully examined and only 3 (relating to the structure of the central bank, the independence of the data protection authority and the retirement age of judges) had been found wanting, causing the Commission to send out investigatory letters seeking clarification with the threat of actions being brought before the European Court of Justice if satisfactory answers were not received. One further provision (method of appointment of judges) was still being examined. The Prime Minister of Hungary, participating in the debate at his own request, freely admitted that his Government was not immune from making mistakes, and promised to respond quickly to the Commission’s letters. 

In stark contrast from the Liberal, Green and Socialist benches strident cries could be heard. Theatrical performances verging on hysterics declaimed a seemingly complete breakdown in the rule of law and normal democratic processes in Hungary warranting the initiation of procedures to sanction the country through the suspension of EU membership rights as provided for in Article 7 of the Treaty. One would think that somehow there had been a coup d’état rather than a landslide election victory! Comparison was even made between Hungary under Prime Minister Viktor Orban and Cuba under Castro or Venezuela under Chavez. But most of these interventions were long on invective and very short on specifics. Those few comments which were relevant to the content of the Constitution mainly cited provisions not referred to in the EU Commission’s statement. These were provisions cleared as non-controversial in the report of the European Commission for Democracy through Law (Venice Commission) , such as the reference to the country’s Christian heritage in the preamble, the section on family law which entrenches the traditional definition of marriage as being the union of one man with one woman and provisions calling for the right to life to be respected from conception.

These provisions are, in fact, hardly novel or exceptional in a European context. The constitutions of the vast majority of existing Member States of the EU either invoke the name of God or refer to Christian heritage or a special role for the faith, or a particular church; marriage is restricted to the union of one man and one woman in 19 out of 27 Member States, whether by general law or constitutional provision. In at least three cases such a constitutional provision has been adopted within the last five years. As far as the right to life is concerned many constitutions provide protection from before birth – in cases such as Ireland this is accompanied by an almost blanket restriction on abortion, in other states (eg. Germany) it subsists alongside law that allows for an exception to be made for abortion with limits on the age of the foetus. 

So why the outcry from parties of the broad left against Hungary’s new Constitution (the first since Stalinist times)? Maybe it is because they have been taken in by a myth of ‘progress’ which sees the current of political and social change in Europe flowing in only one long-term direction. It appears that in their conception this direction can only be from right to left, from Christianity to Atheism, with a one-way valve preventing a recidivism on left ‘gains’, even when a right of centre party comes to power through what one west European Communist MEP (oh the irony!) referred to as ‘an accidental majority’. So when they talk of ‘European Values’ being under attack, it is not the mainstream values embedded in the vast majority of national constitutions that they are referring to. It is rather those of a small minority which they would like to see become the majority – by fair means or foul! 

As the first Hungarian Government since the collapse of Soviet hegemony to command the necessary two-thirds parliamentary majority, the current Fidesz-led coalition was given by the people of Hungary the historic responsibility of drafting the country’s first post-Communist Constitution. The fact that this has been modelled largely on the constitutions of the more conservative of the existing Member States with historic democratic values, rather than those incorporating radical social innovations, should come as no surprise. This is not a country disappearing off the radar screen of democratic European norms, but one firmly situated within the historic mainstream of European constitutional praxis. 

DAVID FIELDSEND manages the Brussels Office of CARE (Christian Action, Research & Education) and is also honorary chairman of the European Christian Political Foundation. In 2003 he was part of the team that collected more than 1.5 million signatures in support of a reference to Christian heritage in the Preamble to the then proposed EU Constitutional Treaty. 

[1] Venice Commission Opinion 618/2011 on the New Constitution of Hungary. Paras 32, 47-50 & 61-63.