Hungary has a new constitution, effective 1 January 2012. It may not be an exaggeration to say that it represents an authoritarian turn in the country’s institutional framework.
There are numerous troubling provisions, but Jan-Werner Mueller, writing at The Guardian‘s Comment is Free, emphasizes what I would take to be some of the worst features:
[F]irst, a comprehensive weakening of checks and balances – notably a much enfeebled new constitutional court – and the fact that the new constitution will be virtually impossible to amend, while much legislation, notably budgets, can only be passed with a two-third majorities. Second, the systematic staffing of the judiciary and other nominally independent agencies with Fidesz appointees for exceptionally long periods.
What is the result? Fidesz’s nationalist vision has potentially been enshrined forever: even if the party loses future elections, its appointees will keep exercising power, while the party itself will in all likelihood retain considerable influence, since no other political grouping is likely to muster a two-thirds majority. Any potential leftwing government will be highly constrained; its budget could be vetoed by the (Fidesz-staffed) budgetary council, upon which the (Fidesz-appointed) president can dissolve parliament.
Currently, and unusually for either Hungary or other European countries, the ruling party, Fidesz, has a two-thirds majority. This has enabled it to pass a constitution without need to take into account opposition preferences. Yet, as Mueller notes, the constitution increases the range of legislation that requires two thirds votes to enact. In other words, this constitution is the work of a single party, which has put in provisions that will allow its representatives in parliament to veto many future policy changes as long as Fidesz retains at least one third of the seats.
It is worth noting how Fidesz got this two-thirds majority: it was manufactured out of a narrow simple majority of votes cast. The Hungarian electoral system, which some sources continue erroneously to classify as mixed-member proportional (MMP), made this possible. I have noted before why calling it MMP is wrong, in terms of the mechanics of the system. The results of the April, 2010, election, show just how disproportional the system can be: Fidesz won 263 of the 386 seats on 52.7% of the party-list votes (and 53.5% of the nominal votes).
Proportional systems do not turn 53% into 68%. But excessively majoritarian systems can facilitate democracies turning in to autocracies.
I wonder why this sort of thing doesn’t happen more often. A party gets a super-majority, and then in effect says, “OK, game over, we won, no more elections.”
Various fascist parties in the 20s and 30s, and communist parties in the 40s, did something like this, but I think in all of these cases the chicanery was backed by the threat, or in some cases the use, of violence. Another example would be the National Party’s disenfranchising of a good deal of the opposing party’s voters after they took power in 1949, something similar happened in the southern US states in the late nineteenth century. But I’m still surprised this doesn’t occur more often.
How common are super-majorities in democratic elections? Not very, I would hazard to say.
Anticipation of a “that’s it, game over” situation was what led to the cancellation of the second round in Algeria in 1992: The FIS was almost certain to win two thirds.
Winning a 2/3rds majority is rare. Perhaps Hungary’s Constitution amending formula should have been more like how Scandinavian countries where it requires a majority vote of the present parliament majority to propose amendments, then a legislative election, and to ratify the amendments another parliament majority votes on it.
I think for unitary countries that is the best amending formulas. Amendments could also be submit to the people to ratify by referendum, but I think that any referendum to amend a constitution should be held at the same time as a general parliamentary election with a 50% plus 1 % of registered voters.
I also think that if the same parliament that introduces a constitutional amendment by a majority vote, can ratify it by either a 3/4 or a 4/5 majority vote, because I can’t think of any country in a democratic election that uses proportional representation where a party can more than 75% of the vote or even 80%.
I think that for Hungary that they should at least put the constitution to a referendum for the people to ratify.
Using Democracy to abolish and negate itself is the most ironic thing about democracy. That is why most countries have written constitutions that are hard to amend.
South Africa was a racial oligarchy, and German Weimar Republic was a very weak democracy with insufficient checks and balances which the Germans learned from, and made sure not to repeat in the German Basic Law.
At the absolute minimum, the people should have the right to demand a referendum on a new constitution or an amendment to any existing constitution.
Wow, really disappointing. I wonder how the EU will react, once it notices.
Fidesz might rue this day, however, once they have to govern with less that a supermajority – they’ve guaranteed themselves a blocking vote on budgets, but they’ve also handed it to the opposition once the anomalous supermajority vanishes.
Any changes to the non-MMP electoral system to try to lock in supermajorities?
This is a bit similar to the California State Constitution requiring a 2/3rds majority for tax increases, but a majority to pass revenue bills which means they spend more money with a 2/3rds majority than they would with a majority vote.
The trouble with fiscal supermajorities is that you are entrenching a particular view of how the economy works into the constitution. It is almost like saying the anti-tax party gets a seat bonus of 1/3. California has had this rule for generations. There is no evidence it has contributed anything to either the public good or even the narrow goal of fiscal rectitude.
Fiscal strictures also create significant accountability problems. The electorate cannot hold the legislative majority to account because that majority lacks the power to deliver promises. They cannot hold the legislative minority to account, because it goes without saying that a minority is not beholden to the electorate. Moreover, the entrenchment of particular members in districts where they are free from any prospect of defeat means their inceptive is to please their base and ignore the public good.
A far better idea would be to adopt proportional representation in both houses and abolish the fiscal supermajority.
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