The new Hungarian constitution will be adopted by mid-April, the week before Easter, Fidesz MEP József Szájer, vice-chair of the European People's Party and chairman of a group of three parliamentarians who are drafting the New Hungarian Constitution, told EURACTIV in an exclusive interview.
Hungarian MEP József Szájer is a member of his country's ruling Fidesz party, vice-chair of the European Parliament's centre-right European People's Party and chairman of a group of three MPs who are drafting the New Hungarian Constitution.
Szájer was a member of the European Convention which drafted a European constitution (2002-2003). According to the communication establishing a draft committee of the government's political groups to draft the new constitution, the committee's other two members are Gergely Gulyás (Fidesz) and László Salamon (KDNP, a coalition partner of Fidesz).
Mr. Szájer: Can you tell us what your personal role is in drafting the new Hungarian constitution?
I was appointed in the present system on the demand of the opposition parties. It's not the government who is proposing the constitutional drafting or participating in a draft, but members of parliament themselves. Members of parliament want to keep this right among themselves and they asked the government to help only with codification, but not in substantial decisions.
[Editor's note: In fact the "opposition parties", as Szájer described them, objected to the procedure according to which Fidesz and its sister party KDNP wanted to create a constitution. The Socialists claimed the procedure was unconstitutional and illegitimate, and they did not participate in the drafting of a constitution which in their view will be no more than a party constitution of Fidesz. The LMP (Greens) agree with Fidesz on the need for a new constitution, but also believe the current process is illegitimate and they are not participating in the making of the new constitution either.
The only "opposition party" to participate in the process is nationalist party Jobbik, which has its own agenda: it sees the process as the best time to officially present its view that the constitution of the Hungarian Kingdom, abolished in 1944, should be restored. That constitution contains an implicit territorial claim towards the lost countries of the Hungarian 'Holy Crown', meaning Transylvania in Romania and Croatia. Jobbik plans to present its views in the form of amendments to the Fidesz-KDNP draft.]
For that reason they changed the rules of procedure, which allow discussion of alternative motions for resolution at the same time. Because in the present rules of procedure, one which is favoured previously precedes the others and the next can start only if the preceding one is finished already.
The Hungarian parliament changed the rules of procedure to allow all of the parliamentary groups to table their drafts.
I am the chairman of the draft committee of the government for the government political groups, Fidesz and Christian Democrats. There are three members of this committee, one from Fidesz [Gergely Gulyás], one from the Christian Democrats [László Salamon from KDNP, a coalition partner of Fidesz], and me as chairman of this committee. The draft will be tabled at the latest by 15 March, which is a strict deadline. Then the different motions will be discussed in parallel.
Are you saying that there are drafts from different groups?
No, there is the possibility for such drafts.
To my knowledge the Socialists and the Greens are not at all happy with this exercise…
They demanded that the constitutional process should be kept in the framework of parliament and that is an answer to their demands. It is not the government which is tabling a draft constitution, but the different political groups which have this right.
The Socialists have said they have a draft but that they are not going to table it. I don't know what the Greens have said. Jobbik – the radical right party – said that they are not going to table a draft but they are going to table amendments to the government parties' drafts.
So all of the three parties have different positions on this. But the situation is clear: the rules are that every political party or independent member of parliament can table their own drafts. And the drafts can be discussed at the same time.
What's wrong with the current constitution? Fidesz doesn't appear to consider the current constitution legitimate, is that correct?
It's not Fidesz which doesn't find it legitimate. The constitution's first sentence says "this is a temporary constitution until the final of constitution of Hungary". And Hungary is the only country among the former communist countries which didn't adopt a new constitution [after the fall of communism].
This is very clear and our constitution is full of contradictions. The numbering of amendments still follows the law of 1949, which was the first charter constitution of Hungary, but this was not a democratic constitution and 20 August 1949, the day when this constitution was adopted, is the mark of the start of the dictatorship in Hungary.
So what we want is definitely a new constitution in the spirit of the 21st Century. To addressing some of the new problems like questions of indebtedness, responsibility for future generations, and environmental and economic sustainability, which didn't exist in 1949 or in 1990 when the constitution was radically changed.
We want to complete the transition to democracy. So we want a new constitution. The Hungarian parliament is delayed in adopting a new constitution by almost 20 years.
One more thing. The parties before the first free elections, the then opposition parties who later became government parties and excluding the Socialists, agreed at that time that the amendments to the constitution in 1989 should include only transitional measures. Then, after legitimate elections the legitimate parliament should change the constitution. The agreement on the constitution in 1989 was between the still-unelected opposition parties and an unelected but then governing Communist Party. An illegitimate parliament adopted it, with the agreement of the opposition.
This is why it is a temporary constitution by its name. The first sentence states clearly that "until the final constitution of Hungary is adopted we have this constitution". The legitimacy of the previous constitution is more in question than anything new.
But we are not saying that the [Hungarian] state is not working. The institutions are working. We have a constitutional court which somewhat substituted for the lack of a unified text of the constitution in the last twenty years.
But it's normal that the country's most important legal document should have the possibility to be a real constitution and not a text which has so many of the problems I mentioned just before.
I will ask you about the Constitutional Court later, because its powers to vote on budgetary, including pension issues, were recently curtailed by Fidesz in parliament. But you are saying, in fact, that the present constitution is not legitimate…
We are going to change the constitution on the basis of this constitution. We do not challenge the legal legitimacy of this question. We consider that Hungarian democracy started on 2 May 1990, which is the date of the first sitting of first freely-elected parliament, so we don't say that it's illegitimate.
It doesn't have the necessary respect of citizens and politicians. And it has serious textual problems. This is what we are saying. We are not saying that it is an illegitimate constitution.
The necessary citizens' respect is precisely what is needed for the new Hungarian constitution, meaning that there should be a wide-ranging public discussion before it is adopted. Are you planning to hold such discussions? I understand that the opposition is criticising Fidesz for being secretive and in a hurry to adopt the new constitution before any such hearing can take place.
This is not right. The Hungarian constitution has been in preparation for the last 20 years, scholarly, public, civil, all kinds of debates. That's the first point. The second point is that for this particular text the discussion started in June of last year, when the prime minister made clear that the government parties were ready to prepare the new constitution, the debate is going on, and there is a constitutional preparatory committee.
This constitution will be the constitution with the widest discussion ever in the history of Hungary, and not only Hungary. We will not have a specific referendum on it. But all citizens with the right to vote, eight million citizens, have been sent a questionnaire in recent weeks from the national consultation committee appointed by the government, where they can answer 12 specific questions concerning the details of the constitution.
So there is a wide public and civic consultation in this area. The widest ever. It is much wider than any referendum would be, which puts one question 'yes' or 'no' in front of the citizens. This one has 12 questions concerning the nature of constitutional problems which are of concern for the citizens.
These are coming back. We've already got back about 200,000 after one week.
We are closing this process in about two or three weeks, when we will send to all members of the Hungarian parliament the results of this process in order to advise them when they are voting or discussing the constitutional process.
This is a constitution which is for all Hungarians, no ideological biases or whatever, it will include extensive social rights which in many countries is the topic of the left. It will include very wide and extensive questions about responsibility for future generations and environmental sustainability, which we would say is from a Green ideology.
It will also include many references to communities, to other things for the right, but this not an ideologically biased text that we want to put forward. This is for every Hungarian citizen and the respect could be estimated on those grounds.
We made all the gestures to the opposition parties that they should come to this constitutional process, which I think is a responsibility for every elected member of the parliament. We regret that the Socialists and Greens are not representing their own electors in this process by not putting forward amendments, but we cannot force them to do that.
What we can do is to make sure and make it very clear that this constitution is for every citizen of the country.
Still I am going to challenge you, because you confirmed that it will not endorsed by referendum. You have explained about the questionnaire replacing the referendum, but some of the questions appear to be very populist. One question, I think, reads "Do you agree that people who have been sentenced to serve life sentences should serve the whole sentence?" That is not a constitutional question.
It could be. It depends how much you want to touch upon this question in the constitution. It's a widely debated thing. There are questions concerning this in different international courts, including the Strasbourg Court of Human Rights.
It has also been before the Hungarian Constitutional Court, but in the end they delayed their decision.
So if we want to keep that regulation about life sentencing and skip it constitutionally, then we have to put it forward on the level of the constitution. This has been an extended debate in Hungary in the last couple of years, so I think it is a right and legitimate question to ask people on this, and generally on questions of law and order which are also in the questionnaire.
Then there is the issue of retroactive laws. Does the constitution give an answer on this? Fidesz has created many retroactive laws on taxes and pension entitlements. Will the new constitution allow this?
Well, there was one instance, and that was the legitimate government money that was spent before the Socialist government left and it was publicly supported by 95%. And that's correct, that's not legally right, it was a break with the principle of retroactivity.
But that was a socially extraordinary situation, the previous Socialist government was paying huge amounts of money for their campaigns and their own clients, and on these grounds the public was supportive by 95% that this text should apply retroactively over a certain amount of time. But that's a limited thing, a transitory measure.
The new constitution will basically be based on general principles which exclude retroactivity in tax matters.
What will be the legal connection between Hungarian and European law?
The same text is used as in the present constitution. There is no change.
There is an issue with the possibility for ethnic Hungarians abroad to vote in Hungarian elections.
This is a political decision. The government parties decided that this issue should be handled in the electoral law, which will be adopted in the second part of the year or later on. I don't know exactly, as I am not responsible for that. This constitution will not exclude that possibility, but it will not regulate that, so it's up to the electoral law to choose whether Hungarians citizens who don't have a domicile in the territory of Hungary, whether they have the right to vote, whether they could be elected or whatever…
But this is not the subject of this constitution. However, this constitution authorises with a two-thirds majority electoral laws to regulate these questions. This discussion and this political decision concerning this will be decided later on.
I'm going to ask you about the Constitutional Court. It powers have been curtailed because the Fidesz government didn't like its ruling on retroactive taxation. How are you going to deal with this?
[The Fidesz government claims that Hungary is in an extraordinary economic situation. The Constitutional Court’s power was curtailed on ‘budgetary’ issues before the government balanced the national budget with permanently transferring private savings from about 3 million pension accounts into the national budget]
The reason for changing the Constitutional Court's competencies for budgetary questions was because in the present extraordinary economic situation, where Hungary is deeply indebted, there were some measures to limit some powers of the Constitutional Court concerning some budgetary implications.
In the new constitution we expand the Constitutional Court's right of previous review and in this preliminary review there are no limitations [of its competence] on budget matters.
The aim of regulating the Constitutional Court's competencies is to make sure that citizens increase their trust in the legality and the reliability of adopted laws.
We also refine the Constitutional Court's competencies by strengthening, according to the German system, the constitutional complaint.
So if any individual has any complaint that the law in his or her case which is applied has constitutional problems, then the Constitutional Court can have a procedure and they can also make the law void, or if the judicial decision is unconstitutional, the Constitutional Court can also declare it void.
So this will be a post-review, after the law is adopted, the review will be expanded to all of the individual cases. The court and also the prime minister and one fourth of the members of parliament can initiate the procedures in this cases, providing the right of a minority in parliament.
[In the current constitution, even a single person can initiate such a process, so access to the Court will be reduced in fact]
What is the time frame? When do you expect the constitution to be adopted?
The deadline for tabling the draft texts for the groups is 15 March and the parliament, I don't know in what time, but they will start very soon the discussion. The planned adoption is the week before Easter.
That's in the middle of the Hungarian EU Presidency. Do you expect there will be complications in this area and it was the case with the media law?
Well, there are international obligations for every country, like concerning the bill of rights. I can announce here that our bill of rights will be based on the European Charter of Fundamental Rights. The newest 21st Century document on human rights and basic rights. This is what our bill of rights will be based on. So we are going to follow on that. I don't expect any problems.
Concerning the state structures it is within the sovereignty of every country. And also the protection of fundamental rights through the constitutional courts, the ombudsman, and also through the courts, will be also provided. Otherwise adoption of the constitution is within the sovereignty of every country within the European Union.
So two things which we have to provide towards the European Union are ones you have already asked. As for whether there will be any change in relation to European law: there is none. We keep the guarantees that we have already included in the previous constitution in 2004.
Second, the protection of fundamental and human rights and respect for fundamental treaties in this area: that will be there as well. So I can expect and imagine certain constraints on other things. But on these obligations Hungary all the obligations and the new constitutional text will be strengthening in fact the protection of human rights in this area.
We are putting a lot of second and third-generation rights into the Bill of Rights on the basis of the Charter of Fundamental Rights.
You are one of the fathers of the New Hungarian Constitution. You recently described how you were working on it on your iPad. Did you receive any reactions after this statement you made, perhaps criticism?
This is my and our view, the political mandate which I have, is to create a 21st Century constitution. A 21st Century constitution is different from a 19th Century and a 20th Century constitution. It is also different from what we would have made if Hungary had decided in 1990 to have a constitution, as Poland, Romania or many countries from the transition period did: they decided that they had to mark their transition to democracy with a new constitution.
So we are doing it differently. The message, the main message of this constitution or constitutional draft, is the future. The question of sustainability, especially in budgetary terms. Hungary is the most indebted country of the last 50 years in Europe. [In fact, Belgium, Italy, Ireland or Greece have much higher national debt ratios than Hungary]
I think the government's hands should somehow be limited and bound by some budgetary obligations. That's what the European Union is doing now by limiting the deficits for the countries. We are putting a very ambitious goal of 50% for indebtedness. We cannot do it right now, there will be a transition period and the constitution will regulate that.
But this is about the future. It is about future generations. And I think the constitution will include, connected to your iPad question, it will deal, will include a sentence which encourages the state or supports the state using for transparency, for communication with citizens, new technologies.
I got very immediate and huge reactions because this constitution is written on an iPad, which is only true on my behalf, because I am really doing everything and every text which goes through my hands with my iPad. I don't use other pieces for this activity but that's very good, because I am a member of the European Parliament, I am travelling all the time and I can work on this text any time I want.
And I also got a lot of emails which are from citizens in the framework of this national consultation on the constitution, which I'm reading. Social organisations whose ideas will be included, so it's a very flexible means to create something, so it's very good.
I wouldn't be able to do this as a member of the European Parliament, working in the Parliament, and at the same time doing my obligations from my Hungarian colleagues, if I didn't have this instrument. So there was a very positive response to this question.
You're creating the impression that you're a very busy man. And that you're writing the constitution while on the train between Strasbourg and Brussels…
It's not only me. There is a big team working with me. But obviously I take full responsibility vis-à-vis the government parties, because at the moment which will be the day after tomorrow, when I table this constitution as the chairman of the drafting committee to the political groups for the political groups who asked me to do it.
Then, from that point of view, from that moment, they will be responsible for the text. But otherwise it is a team which is working with me with a lot of experts and consultations. I consulted all public authorities, from the Supreme Court to the ombudsman, everyone. And I consulted the public prosecutor, the President of the Republic, everyone, government officials, parliamentary officials on this process, and it's teamwork.
But they are all from Fidesz. Wasn't there anyone from other political parties too?
Uh, that was done by the parliamentary groups themselves. Yes. That was done.
You said it was a constitution for the 21st Century. Does that mean that you did not seek inspiration from any other constitution?
No, no, no. We read all the constitutions, all the new constitutions of countries that made transitions to democracy. We read all the classical constitutions in Europe, in the world, the South African constitution, which is a very big guideline for this, the American constitution, all kinds. We studied in this process every constitution.
Is it the first time that you have participated in such an exercise?
No, I was doing this already in 1989 in the national roundtables and since then up to 2004 when I went to the European Parliament. I was involved in all constitutional preparations. I was a member of the constitutional affairs committee and I also was present in the last constitutional-making process between 1994 and 1998.
Can you recall any section of the constitution which was born when you were travelling between Strasbourg and Brussels as you described it?
Yes. One reference to the budgetary constraints over governments, the veto right of the budgetary authority in Hungary over the parliament's draft, if they cross over the limit which the constitution takes. That would be one thing. But there are several others, I wrote most of the preamble also while travelling on a train between Strasbourg and Brussels.
[Before granting the Fiscal Council these rights, Fidesz has dissolved and recreated the fiscal council, because its members were independent from the current government. It is now chaired by a former Fidesz finance minister].