Dignity & Democracy
A HRDF Blog
Dignity & Democracy
A HRDF Blog
Posted by ccld201
30 October 2023László Sólyom (1942-2023), the founding President of the Hungarian Constitutional Court, later also the President of the Republic of Hungary (2005-2010), died on 8 October at the age of 81. Sólyom was a crucial player at the Round Table negotiations, which designed the constitutional framework of the 1989 democratic transition from communist rule, from January 1990 for nine years served chief judge of the extremely powerful Constitutional Court, and initiator of its activist jurisprudence. Under his presidency, the Constitutional Court has become the first judicial body in the world abolishing the death penalty, issued landmark decisions among many others on transitional justice issues, freedom of expression as foundations of Hungary’s newly introduced liberal democratic constitutional regime. The year 2010, when Sólyom finished the first term as President of the Republic was also the year in which Viktor Orbán’s Fidesz party came to power. Orbán did not want to have him serving a second term and being a true check on Fidesz’s autocratization.
I hope I don’t seem disrespectful if, in this short memorial, I raise the question whether the premature ideals of liberal constitutionalism advocated by the first Constitutional Court led by Sólyom have potentially and indirectly contributed to the destruction of the liberal democratic system.[1] My point of argument is that at the time of the regime change, the country lacked liberal democratic traditions and the population could not be considered as liberal.[2]
For many, the failure of liberal democratic constitutionalism in Hungary can be explained by the characteristics of the democratic transition, being led by a liberal elite, which used ‘undemocratic’ tools of legal constitutionalism. These critics claim that the undemocratic character of resolving the most important political (but also economic) issues of the transition, which were also subject of the constitution-making process, have become legal (rather than merely political) issues (legalization), and were taken out of the political arena, with no serious public debates and popular control (depoliticization).[3] The liberal nature of this process is due to the fact that the anti-communist elite wanted to copy the Western idea of political (as well as economic) liberalism, without being sure that the population was aware of the institutional consequences of political liberalism (and the social costs of economic liberalism for that matter), and if they were aware, very few of them would have opted for political (and economic) liberalism.[4]
This undemocratic liberalism of legal constitutionalism sometimes decided important societal issues against public opinion by referring to provisions of the new comprehensively amended constitution of 1989, or even by referring to the ‘invisible constitution’[5] (Sólyom’s invention) behind the text. This happened in the case of the abolishment of the capital punishment in 1990.[6] In declaring the death penalty unconstitutional, the Constitutional Court referred to the liberal provisions of the Constitution on the right to life and on human dignity.[7] Later, the Court also declared that it was unconstitutional to organise a referendum on capital punishment.[8] These claims of an exclusive constitutional authority not only denied the constitutional amendment power of the Parliament, but also ignored the fact that at the time of the decision a two-third majority of the population was in favour of the capital punishment.[9]
The same applied to the decisions of the Court on transitional justice measures, such as the possibility of retroactive justice for perpetrators of grave crimes committed but not punished during Communism, lustration of leaders of the previous regime, compensation for confiscated properties, access to the files of the secret police, which were important issues for the general public to face the Communist past. A survey conducted in 2002 has shown that around 60% of the respondents thought that it would be better not to hide but rather reckon with the dark sides of the country’s history.[10] This became impossible partly due to the decisions of the Constitutional Courts mostly inspired and drafted by Sólyom himself, which relied on the formal requirements of the rule of law, emphasizing certainty for the protection of the individual rights of the perpetrators, as opposed to the German and the Czech constitutional courts requiring substantive justice, maybe serving better the reconciliation within society.
The tragic fate of Sólyom’s life is that he, as one of the founding fathers of Hungary’s maybe premature liberal democratic constitutionalism, had to be a helpless witness of the destruction of the rule of law and turning one of the first fully consolidated democracy in the region into an autocracy.[11]
Gabor Halmai is Part-time Professor of Constitutional Law, European University Institute, Florence. Professor emeritus, Eötvös Loránd University, Budapest. Email: gabor.halmai@eui.eu
[1] A disclaimer: if I answer this question in the affirmative, this means also that I blame myself as well, because I served as Sólyom’s chief advisor in the first six years of his presidency, and I agreed with most of his decisions, including those discussed here.
[2] According to some opinion polls conducted in 1991, not even the majority of voters of the bigger liberal party, the Alliance of Free Democrats (SZDSZ), could be considered as true liberals, but rather radicals.
[3] See Cas Mudde, Populism in Europe: An Illiberal Democratic Response to Undemocratic Liberalism, Government and Opposition, Volume 56, Issue 4, October 2021, 577-597, at 585..
[4] See this critique first rights after the transition by Jerzy Szacki (Liberalism After Communism, CEU Press, 1995), and after the start of the backsliding again by Ivan Krastev and Stephen Holmes (The Light that Failed: A Reckoning, Pegasus Books, 2020.)
[5] On this, see my article ‘Silence of transitional constitutions: the ‘invisible constitution’ concept of the Hungarian constitutional court’, International journal of constitutional law, 2018, Vol. 16, No. 3, pp. 969-984.
[6] 23/1990. (X. 31.) AB decision
[7] Both the last reform communist and the first democratically elected government lead by József Antall wanted to abolish the death penalty by amending the Penal Code, also because this was the condition for Hungary’s accession to the Council Europe’s European Convention of Human Rights. The Constitutional Court’s and Sólyom’s personal ambition was to precede the legislative decision on a purely legal, constitutional basis.
[8] 11/1999 (V. 7.) AB decision
[9] Eleven years later, in 2001 68% of the Hungarian population still supported this arbitrary and cruel punishment. The survey also indicated that younger and higher-educated people were more critical of the death penalty, while religious people were more ready to support it. See TÁRKI, Közép-európai közvélemény: Lakossági vélemények a közbiztonságról és a halálbüntetésről a közép-kelet-európai országokban, 2001. június, https://www.tarki.hu/adatbank-h/kutjel/pdf/a556.pdf. A survey conducted in 2015 has shown a slight decrease of support. Here 58 % of the respondents believed that the death penalty would be necessary to use against murderers. Cf. Iránytű Intézet: 2015. júniusi közvélemény-kutatásának eredményi a halálbüntetés társadalmi támogatottságának kérdésében, 2015. június, http://iranytuintezet.hu/elemzesek-kutatasok/kutatasok/88-a-halalbuntetes-tarsadalmi-tamogatottsaga-2015-juniusaban/
[10] The survey result quoted in Varga László, Gergő és az árnyéka, Beszélő, 2002/9-10, http://beszelo.c3.hu/cikkek/gergo-es-az-o-arnyeka#2002-f09-07_from_1.
[11] Both Freedom House and the Varieties of Democracy Project have tracked Hungary as it has passed from a “consolidated” democracy (Freedom House in 2010) through the “partially consolidated” category (Freedom House in 2015) and into the status of ‘electoral autocracy’ (https://www.v-dem.net/publications/democracy-reports/), and ‘transitional or hybrid regime.’ https://freedomhouse.org/report/freedom-world/2023/marking-50-years. See also my chapter: ‘The Evolution and Gestalt of the Hungarian Constitution’, in A. v. Bogdandy, P. M. Huber and S. Ragone, Constitutional Foundations, The Max Planck Handbook in European Public Law, Volume II. Oxford University Press, 2023. 217-268.