History provides several examples of how new eras are inaugurated with new constitutions. Archetypical examples of this could be the Philadelphia convention and all the discussions grouped in the Federalist papers that gave birth to the US constitution, or in more recent times the Monclova Pact that settled the basis for a new Spain after the death of Franco. Latin American countries have also had similar experiences throughout the last hundred years. The common element surrounding those cases in which the new constitutions turn out to be lasting and effective in terms of providing tranquility (and legitimacy) to the regime, is that the processes that brought them into life were open to the participation of different political actors and perspectives, and that without neglecting the existence of hegemonic actors, negotiations facilitating consensus and improved outcomes took place.
Consensus construction and inclusive approaches are important because Constitutions are supposed to lay down the basis on which a state is build upon. Constitutions not only establish the form of government that will reign over the state but also define core principles or values that underpin a given society; somehow they have an embedded narrative that not only justifies the way things are but that also points to the national aspirations. In the context of a political community, few elements play such a fundamental role as constitutions do: in modern times, this written or unwritten rules and principles give obligations to the state on how to function, on what to do and not to do; they set the boundaries between the government and the individual, tending to establish safeguards for the latter regarding the actions of the former. In a nutshell, constitutions are (even if only formally) at the core of what a State is and aims to be.
From this perspective, it is possible to argue that Hungary had a legitimate need for a new constitution. The previous one (amended in 1989-1990) became a flat constitution, clearly written in the rush of the end of the Cold War and the collapse of the communist regime. The main three elements that contained were the establishment of a market economy, a republican and democratic form of government, and a deep anchor in the European Union. Although functional, its spirit did not reflect the greatness of the Hungarian nation. True and very important, it was instrumental in providing basic rules and guidance for a calm transition away from the communist regime. It probably stayed in place until now because the governments that were in power for the last 20 years considered that, given the challenges of building a post-crisis political regime, there were other priorities rather than getting into the complex and to an extent uncertain process of creating a new constitution.
Based on the aforementioned, the fact that Fidesz decided to move on with the project of writing a new fundamental law for Hungary should not be considered a problem. Actually, the timing was probably right: there was no structural crisis as in 1989-1990, and the party had won the elections with a respectable absolute majority (52% of the votes, which the ill designed electoral system in Hungary artificially transformed into a qualified majority, allocating 68% of the seats in Parliament to Fidesz -enough to enact a new constitution without the concert of other parties). In this sense, enacting a new constitution seemed reasonable. What is not reasonable is the way Fidesz is wasting the historical opportunity that the conjuncture provided it with.
Given the circumstances, Fidesz could have call for a new pact for the Hungarian nation; it could have lead and frame a deliberative process intended to inaugurate a great new era in the history of Hungarian constitutionalism; an era reflecting the richness of history, culture and identities of Hungary. What is more, it could have done it with the confidence and leverage of its qualified majority. Too unfortunate, it seems that this political party is currently short in statesman and unable to pursue the virtue that Aristotle spoke about long time ago.
Fidesz has taken the path of political greed and arrogance. It has consistently excluded other political actors, making last minute amendments in the new constitution that nobody is able to discuss (letting alone object), and forgetting that almost 50% of the electorate did not vote for them. It has proven to be an unloyal player, aiming to annihilate the political adversary by unfaithful means (as with the criminal charges against the MSZP or the abusive re-drawing of electoral districts), and has weakened institutions with a proven record of democratic success as the Constitutional Court or the Presidency. Although evidence suggests that we are witnessing a downgrade in the quality of the democratic institutional design, it is to soon and I would not dare to judge if Hungary is becoming an autocracy, as some have suggested. However, I have no doubt when saying that Fidesz has wasted a historical opportunity, favoring the shortsighted political gain over the long term vision and more challenging nation-state building, enacting a Constitution with vices of origin that rather than uniting, brings division into this wonderfully unique country.
*Rodrigo Avila Barreiro
Public Policy Alumnus/Mexico
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