Hungary’s new constitution is already short on democratic legitimacy. It is the government’s constitution, one which is not only fiercely opposed by a considerable segment of the population, but which was intentionally written to ensure victory over the government’s enemies. Even before the constitution comes into effect in 2012, however, the Hungarian government is already amending this glorious document. This time, their goal is to legislate history: to make it a law of the country that the biggest opposition party is guilty of crimes committed during the years of Communism.
The supposed basis for this claim is the historic continuity between the state party before 1989 (the Hungarian Socialist Workers’ Party) and the Hungarian Socialist Party – a hotly contested connection both by historians and legal scholars. According to a poll, the party which is to bear collective guilt for the crimes committed in the period beginning in 1945 and commencing in 1990 would receive 27% of the votes if parliamentary elections were held this Sunday.
The amendment of the constitution states the following:
“A demokratikus átmenet során jogi elismerést nyert Magyar Szocialista Párt a Magyar Szocialista Munkáspárt jogutódaként, a törvénytelenül felhalmozott vagyon örököseként, a diktatúrában vagy az átmenet során megszerzett illegitim előnyök haszonélvezőjeként, valamint régi és az új pártot összefűző, a pártvezetést is jellemző személyi folytonosság okán osztozik mindazon felelősségben, mellyel az állampárt terhelhető.”
The Hungarian Socialist Party, as the successor party of the communist dictatorship, “the heir of illegally accumulated wealth, as the beneficiary of illegitimate advantages obtained during the dictatorship or the transitional phase to democracy, and because of the personal continuity characterizing the old and the new leadership of the parties, shares in every responsibility with which the state party [before 1989] may be charged.”
The list of the crimes in question includes murder, illegal imprisonment, forced labour camps, inhumane treatment, dispossession of property and the complete privation of freedoms; discrimination on the basis of heritage, worldview and political convictions; operating a secret police for the unlawful surveillance and influencing of the private lives of the people; dismantling, with the assistance of the Soviet military, the multi-party system of the years following the Second World War, bringing the country into debt and fatefully ruining its competitiveness, submitting the economy, the military defense, the diplomacy and the human resources of the country to foreign interests, undermining national independence, and the systematic destruction of the traditional values of European civilization.
It is not clear what kind of legal culpability would be established by the text which would become part of the constitution’s preamble – I am not sure if there is precedent anywhere in the world for “legislating” criminal responsibility in a constitution. It has been on the agenda of the Hungarian government to reduce the pension of members of the party governing the country before 1989 – one of the articles of the text (article 1) allows for exactly that. Any benefits lawfully provided to “the leaders of the communist dictatorship as lawfully determined” (the expression sounds as vague in Hungarian as in English) could be lowered to the extent determined by law. The funds thereby collected would be used “to alleviate the damages caused and to cultivate the memory of the victims.”
Another article (article 2) makes it possible to persecute criminal acts as defined by the laws of the country at the time they were committed, as long as the statute of limitation for persecuting the crime expired before 1990. A new statute of limitation would start with the coming into effect of the new constitution (on January 1, 2011). At the same time, the law states specifically that no legislation could be passed to compensate the victims of these crimes – the amendment only opens up the possibility for individual suits.
In 1991, attempts were made for the criminal prosecution of acts committed during Communist times in the form of a similar law (known as the Zétényi-Takács law), but the Hungarian Constitutional Court found it unconstitutional to establish legal culpability for acts beyond their statute of limitation.
Legal concerns notwithstanding, the selective historical principles reflected in the constitutional amendment would probably make a high school student blush when it limits the so-called historic continuity to the membership of the Hungarian Socialist Party.
To be sure, the Hungarian Socialist Workers’ Party is still in existence, and its leader, Gyula Thürmer grudgingly distances himself from the Hungarian Socialist Party on every occasion he can find. While the Hungarian Socialist Party did inherit the wealth of the Hungarian Socialist Workers’ Party during the years of transition, they represent a left-wing socialist program rather than dictatorial aspirations to one-party rule. And some of the crimes on the list are from the time before the Hungarian Socialist Workers’ Party even existed, these took place during the rule of the Hungarian Workers’ Party.
What is more, members of the Hungarian Socialist Workers’ Party are found on both sides of the aisle: three ministers of the current government and the President of Hungary were long-time party members. László Kövér, the President of the Hungarian Parliament worked in a research institute operated by the Central Committee of the Hungarian Socialist Workers’ Party before he found his way to the opposition, while at least four important Fidesz politicians, among them Viktor Orbán, were officers of the Communist Youth League.
In other controversial passages of the same constitutional amendment, a distinction is made among officers of the (supposedly independent) judiciary. Some of them are going to have to return their mandate once the new constitution comes into effect, so that a new officer could be appointed in their place. Among them are the ombudsman for data protection and freedom of information (András Jóri, who intervened on many occasions on behalf of the government’s opposition), and the president of the Supreme Court, András Baka. Others could continue filling out their mandates as set out by the previous constitution. The ombudsman for civil rights, and the ombudsman for minority rights and the ombudsman for environmental affairs will serve a full term – apparently they did not oppose the government’s ambitions enough to warrant replacement.
The amendment provides no explanation for the selective replacement of members of the judiciary – no reasonable explanation fits the pattern except the above. The amendment therefore also violates the principle of an independent judiciary, so blatantly that the European Commission is almost certain to initiate legal proceedings against these particular provisions at the European Court.
Update: For a survey of the responses to the bill in the Hungarian press, see:
Update #2: On Dec. 30, 2011, the amendment was ratified by the Hungarian parliament (the opposition parties, with the exception of the far-right Jobbik party, boycotted the legislative session).