"Hungary's new draft constitution was hastily produced on the trip between Strasbourg and Brussels on MEP József Szájer’s iPad. After talking to EurActiv, he uploaded the draft on the Internet. The proposal was supposed to be different from 19th or 20th Century constitutions, yet it starts with a quasi-archaic preamble that was produced by Mr Szájer on that infamous TGV train.
Fidesz and its non-independent sister party won 53% of the vote in general elections held in April 2010, but due to the non-representative electoral system, it claimed more than 67% of the seats. This gives it a super-majority sufficient to amend the constitution. The Orbán government and its parliamentary group have used this super-majority to bypass any legal obstacles posed by the Constitution or the Constitutional Court.
In spite of Mr Szájer's claim that limiting the powers of the Constitutional Court was a transitory measure justified by the 'extraordinary economic situation', these changes, like other amendments that Fidesz have made, will be permanent.
The powers of the Constitutional Court were curtailed by Fidesz before it nationalised the assets of private insurance savings to balance the budget. András Jakab, a legal scholar who was asked to comment on the draft by Origo, explains that these changes were not undone in Szájer's draft.
A new procedure was created, mainly available for the governing majority. With this new power the parliament can ask for an opinion from the Court before it passes a law. However, constitutional remedies after the law has been passed will be as limited as they are now, and access to the means of starting such a procedure will be diminished.
Mr Jakab explains that 'if there is a new law that nationalises all bank accounts, agricultural lands or second homes by lake Balaton, that would be unconstitutional, yet we would not be able to ask for redress from the Constitutional Court'. Mr Jakab thinks that the permanent limits on the powers of the Constitutional Court are there to ensure that the Court cannot ever deem unconstitutional the nationalisation of private pension savings.
Access to the Constitutional Court, which has been a constitutional right for all citizens until now, will be severely limited. So far, more than 40,000 people have made legal claims against the decision to use their private pension savings to reduce the public deficit and the Court's verdict is probably the most keenly awaited decision in Hungarian judicial history.
Lawyers representing those people who legally objected to the nationalisation are threatening to dump the tens of thousands of individual claims onto the European Court of Human Rights if it turns out that the Hungarian legal system cannot offer a judicial review of the decision.
Another aspect of the new draft is that it wants to make permanent Fidesz's personalised legal amendments to laws and the constitution itself. This means that even if the opposition defeats Fidesz in 2014, the next parliament and the government will have to live with some top officials selected by Fidesz.
Gábor Török, a political scientist, gives a few examples. The next parliament and government will have to live with a state attorney elected by the Fidesz majority for nine years. Peter Polt, a former Fidesz MP, will hold the position until 2019. Another constitutional barrier to his removal is that his successor will have to be elected with the same two-thirds qualified majority as he enjoyed from his party.
The head of the State Auditor's Office, which can investigate public spending for the parliament, will remain another former Fidesz MP, László Domokos. He will scrutinise the spending of the next two governments until 2022. The fiscal watchdog will receive a lot of extra powers, for instance, the power to veto the draft budget of the next parliament until 2017, and he can even call new elections in conjunction with the president. This powerful man will be Zsigmond Járai, a former Fidesz finance minister.
Each of the three appointments has its own problems. Even the two-thirds majority of Fidesz had no right to appoint Mr Járai, because an independent Fiscal Council was already in place. As they could not sack Jár'i’s predecessor, they abolished the Council in December and recreated it in January.
Mr Polt is not only a former Fidesz politician, but he has held the state attorney's position. The opposition has accused him of obstructing criminal investigations against party loyalists. Mr Domokos was a Fidesz MP who chaired a parliamentary commission to find an independent candidate to chair the auditor's office. However, he was nominated by his party. Both men can withhold investigations under two successive governments, probably giving their party extended immunity.
Fidesz already controls all branches of government and formerly independent or quasi-independent offices, so the further curbing of the autonomy of the different courts is an important issue. The Constitutional Court will not only have to live with its powers clipped, but the governing majority will be able to elect its president. It was formerly a privilege of the judges to select the president from the members of the court themselves.
Mr Török laments that a possible candidate could be former Fidesz-minister István Stumpf, whose reign would end during the term of the parliament elected in 2018. Mr Stumpf was selected to the Court by the Fidesz parliamentary group in July even though he had no qualifications for the position.
Fidesz could have chosen to change the qualifications required to become a member of the court with its super-majority, but chose instead to install Mr Stumpf anyway, because the Hungarian legal system offers no remedies for this procedure.
Ms Annamária Szalai, the infamous Hungarian media czar, will be unaffected by parliamentary politics, as her term will expire in 2019. According to the draft constitution, the law governing her appointment can be modified only with a two-thirds majority, like the constitution itself.
Similarly, the current Fidesz majority could appoint a central banker for nine years, possibly beyond the reach of the next parliaments. President of the European Central Bank Jean-Claude Trichet announced on 2 March that he was very unhappy with the way Fidesz changed appointments to the Central Bank and referred the case to the European Commission.
The 'widest-ever debate' cited by Mr Szájer is very limited. His own parliamentary group opened a debate about renaming Hungary's counties according to their original (feudalistic) name because that title was abolished during Stalin's reign. Citizens could also tick a box on a questionnaire about criminal sentencing and other issues that do not touch open the constitutional separation of powers."
