Election 2022

Can the constitution be changed with a simple majority?

Orbán’s system is not just a function of a persisting supermajority – it is enshrined in his very own Basic Law. Can a new government change it without a constitutional supermajority?

If they can’t, they will be legally tied (on top of the severe economic constraints Orbán’s current election spending and the economic crisis cause). If they do it, the legitimacy of the new constitution would be very weak.

There are two issues that keep non-Orbánists up at night:

  • Whether Orbán’s self-cementing basic law can be replaced without a 2/3 supermajority and
  • whether it would create a “dangerous precedent” to hold Fidesz politicians and cronies accountable for corruption after they left office.

The answer to the latter is that they are perhaps looking at precedents from the wrong angle. After all, pre-1989 communist cronies have got away with their wealth and influence intact – and that created an equally dangerous precedent for today’s politicians. It might be the reason they chose the path of corruption: because their predecessors ran free with their own ill-gotten wealth and they expect the same to happen to them. It would create a new, nouveau riche, de facto aristocracy in Hungary (they have often refer to themselves as such) with bottomless wealth and influence over future governments.

The parallels with the post-1989 privatization are especially valid as the last year of outsourcing public wealth and assets into private hands is comparable to the post-1989 privatization in volume – it is just even less accountable and less advantageous for the state and the public. There is no reason that the men who manage this wealth would interfere less with politics than their communist predecessors did after the regime change.

The legal team behind Péter Márki-Zay, the new leader of the united opposition, has already hinted at a possible strategy against cronyism. Since the population is now saturated with leaders who participated in the schemes it would be impractical to aim at complete and total prosecution – but the smaller fish could be offered plea deals in exchange for ratting on their higher-ups – and thus have a go at the highest ranks of the Orbán-made oligarchy, the small group of fronts and family.

As of the new constitution, it is a more difficult matter. Everything Orbán ever does is technically legal because he virtually writes the laws, thanks to his disciplined supermajority. But this is the moment when legality and legitimacy, when legality and right diverge. They don’t always coincide. By this logic anything can be written into law, even total surveillance without oversight. (It actually was.) The law makes it legal – but not necessarily legitimate or democratic.

Without a constitutional supermajority the next government has no chance to govern – only perhaps it is Orbán’s. (And even with a supermajority some things can not be taken care of anymore.) It is thus crucial to think what a new government could do if they found themselves with a majority but without a 2/3 supermajority.

The bitter feud between legal scholars about the possibility of a simple majority constitution replacing Orbán’s supermajority Basic Law is unsurprising. Some argue on the basis of previous constitutions and how those were enacted (never really without coercion). Some argue from political, others from a legal philosophy point of view. There are plenty who fret that a simple majority constitution would cause an unbridgeable division within the country (but definitely among the elite) – and those who do are likely to make sure it actually happens.

The speaker of the House angrily threatened even such speculations as an attempted coup and thus criminal and treasonous. Others are afraid that the legitimacy of such a referendum would suffer. For one thing, the current basic law stipulates that the constitution can not be the topic of a referendum. And without a 2/3 approval at a referendum (and with a breathtakingly high participation rate) the chances of the president and the constitutional court not obstructing the process is practically non-existent.

The new leader of the opposition, Péter Márki-Zay called Orbán’s Basic Law illegitimate and promised to call for a constitutional referendum, within 60 days of winning the elections, when the public can confirm their consent to reinstating constitutional checks and balances and the rule of law. But not only is the 60-day limit legally unfeasible, the new prime minister would run into resistance by both Orbán’s new president (to be appointed before elections) and his constitutional court, currently with a 100% Orbánist majority.

Those who argue for replacing the Basic Law without a supermajority argue that even the Basic Law contains the principle of the separation of powers – which is at the moment not observed – and it also contains a clause that any effort directed at the exclusive possession and practicing of power is illegal and everyone is obliged (and has the right) to step up against such efforts. Their argument is that a legal coup has already taken place sneakily, therefore even the Basic Law allows for efforts to thwart that process.

Whichever camp wins, either legal continuity or the country’s governability will suffer a blow when Orbán is replaced – but without a supermajority.

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