Rupert Scholz says he is one of the few German constitutional law experts who have read the new Hungarian basic law. On the basis of that reading, the former federal defence minister (1988-89), deputy chairman of the Christian Democratic Union (CDU)/Christian Social Union of Bavaria (CSU) parliamentary group (1994-98) and chairman of the committee on legal affairs of the Bundestag (1998-2002) considers that the harsh criticism, coming from the left wing in particular, is unjustified.
Have you read the basic law?
I have studied the Hungarian Constitution very thoroughly. That needs to be said very clearly. There has been much criticism of it in Germany and by the European Commission and the Venice Commission, in many cases without examining the document, let alone reading it in detail.
You have read it. In that light what is your view concerning strong objections to it?
In my opinion they are all, and I emphasise all, unjustified. The Hungarian basic law is a very modern Constitution, entirely in the spirit of Western constitutionality and democracy. It also contains a clear commitment to Europe. Let’s run through the most frequent objections, starting with the preamble. I find nothing to object to in the preamble at all. What Hungary has set down here, which in my opinion has been variously misunderstood, is that it distinguishes clearly between the Hungarian nation state, meaning Hungary’s people within its current borders, and the Hungarian cultural nation. The Constitution also speaks to ethnic Hungarians living outside Hungary, without making the claim that these are or should be part of the Hungarian nation state. Every country is free to do so in the framework of its national declaration. For example, there continue to be Germans living in the earlier German eastern territories in Poland. Naturally these people are regarded by us as Germans but also as citizens of Poland. The case of Hungarians living beyond Hungary’s national borders is similar. I do not see any reason to criticise this in any way. The preamble has also been criticised because of the declaration of Hungary’s Christian roots. The Christian declaration of the Constitution is fully in line with Christian-Western values and the Christian-Western tradition, which all Western democracies are derived from and to which they are committed. The German basic law begins by stating that it has been adopted by the German people “conscious of their responsibility before God and man”. It is worth recalling that the Constitutional Convention originally intended a commitment to God to be included in the European Constitution, which later failed. That was chiefly due to France’s very pronounced laicism, but even France does not refuse to avow Christian-Western values. In other words, no objections can be made to the Hungarian Constitution in this respect either.
The criticism is made that the nature of the preamble hinders or even prevents clear interpretation of many points of the text of the Constitution that follows.
In every Constitution the preamble has two essential functions, as in this case. First, it names the values and historical basis of the development of the Constitution. Second, various aspects of the interpretation of the later normative regulations are set down. This is also entirely legitimate and does not provide grounds for criticism. Let me give an example: the preamble of the 1949 version of the German basic law contained an express commitment to German unity. That was a national objective, which was then fulfilled with the German reunification. Such points can be legitimately included in the preamble to a Constitution.
Critics see the Hungarian Constitution as a whole as the means to establish an authoritarian system. Do you think there are any grounds for this in the Constitution?
Here too I take the view that such accusations are entirely unfounded. On the contrary: the Constitution contains a clear commitment to Hungarian democracy, as well as to the rule of law, which is always the most effective antidote to any authoritarian attempts. The Hungarian Constitution even reinforces the rule of law according to our German understanding in an exemplary way. As far as I know, apart from the German basic law, currently no other EU member state has a Constitution that contains such a broad system of legal protection guarantees for citizens. This concerns in particular the institution of constitutional jurisdiction, as well as constitutional complaints. Germany clearly served as a model for several provisions of the Hungarian Constitution in this respect. Building such a compact and efficient constitutional state in a comparable way is something very special and very, very positive about the Hungarian Constitution. In my opinion, the Constitution should also serve as a model in terms of its very strict and very modern catalogue of fundamental rights, especially when it comes to protecting fundamental social rights. Here the Constitution very clearly follows the Charter of Fundamental Rights of the European Union. The Constitutions of most of the other EU member states are not yet at that stage, if only because they are considerably older than the charter. Hungary has already included the key aspects of the charter in its Constitution in an exemplary way and integrated them into its own national system of fundamental rights.
Are there further things that other countries can learn from the Hungarian Constitution?
I also find the stipulation of freedom of opinion and of the press noteworthy. In my view it is true that the very extensive Hungarian media legislation, which in some questions proved to be too ambitious and too detailed, really could give rise here and there to certain fears regarding press freedom. On the other hand, the Constitution very clearly guarantees the independence of the media, similarly to Article 5 of the German basic law. The Hungarian Constitutional Court has corrected certain things in the media law with its decisions. This shows that Hungarian constitutional jurisdiction works very well and that the guarantees of independence and freedom in the Constitution are taken seriously. While the Constitution is in force in its current form, nobody needs to be concerned really about Hungarian press freedom.
Critics object to the abundance of two-thirds laws, with which the Viktor Orbán government has tied its own hands.
Such an institution can be debated in terms of constitutional policy. The basic idea is evidently that of introducing a two-thirds requirement for certain laws of particular importance. Incidentally, the idea has also arisen from time to time in Germany, proposed, interestingly, by the then opposition. It wanted to stipulate a two-thirds majority in the Bundestag for the adoption of certain laws. However, that didn’t come about, partly because it simply does not fit with the German legal tradition. Naturally every constitutional legislator is free to require a qualified majority, and even a two-thirds majority, for certain laws. I don’t find that reprehensible. Indeed it can be seen as positive: in certain matters the parties are forced to overcome their differences. Naturally, precisely those arguments were made in Germany in the 1990s when the Social Democratic Party of Germany (SPD) sought to set down something similar in the basic law in the fields of asylum law, protection of personal rights and some other fields. As the then-speaker on legal affairs of the CDU/CSU parliamentary group I took a clear stance against it and carried my point, not least with reference to the German legal tradition. However, I wish to reiterate that every constitutional legislator is free to decide such things.
What else do you find noteworthy in the Hungarian basic law?
The debt ceiling. That is also exemplary. Although we also have such a passage in the German Constitution it is so far barely present in those of the other EU countries. This institution will only now be introduced on a wide scale in connection with the fiscal pact to overcome the euro crisis. Hungary is leading the way in this respect.
The Constitution contains provisions on the protection of state assets and taxpayers’ money. Are such provisions present in other European Constitutions?
Not in that form as far as I’m aware. However, the principle that a very high degree of transparency is required for the distribution of public funds is widespread in Europe, if only because funds have to be approved by parliament. Parliamentary sovereignty in budgetary matters is essentially only feasible if suitable transparency in the distribution and use of funds is ensured. I cannot see any reason to object to such matters being included in the Constitution. It can also be seen in Hungary as a reaction to specific occurrences in the past. I’m thinking here of privatisation robbery and embezzlement of state subsidies. There are many historical connections. In addition a Constitution must always be able to defend itself. There are also relevant passages in our Constitution. The Federal Constitutional Court has repeatedly stressed that constitutional democracy must be defended and that it must be able to defend itself. That principle was included in the basic law in its old version of 1949.
The objection is made that the principle of the republic gets a raw deal in the Constitution.
This is a thoroughly banal and almost ridiculous objection. The Hungarian Constitution is clearly republican. Anyone who doubts this only needs to read it.
If the objections made are without any real basis, how do you explain the outrage that the Constitution has caused?
The Hungarian opposition is unwilling to recognise that majorities hold sway in a democracy. If a party has a two-thirds majority in parliament, then it is also legitimate if it makes use of that. Incidentally, I cannot identify any disadvantaging of the opposition in the provisions of the Hungarian Constitution on parliamentarianism.
Would you say that Western critics have fallen for the line of the Hungarian opposition?
Without forming their own opinions, Western European leftists have in many cases blindly adopted the criticisms of the Hungarian opposition. Otherwise they would have quickly appreciated that the criticisms are nonsense for the most part. If there were a left-wing majority in Hungary that were setting about changing the Constitution, leftists in other European countries would surely not be up in arms to such an extent.
The differences of opinion on the Constitution are surprising, ranging from it being “exemplary and outstanding” to a “highly unusual document with obscure phrases”. Both are quotes from experts.
Yes, there are striking differences in perception. Nevertheless I stick to my view that it is, according to entirely objective criteria, a modern, and in many points even exemplary, Constitution. Any expert versed in the Western legal tradition, whether they are German, French or of another nationality, must recognise this if they study it in an unbiased manner. I find it outrageous that many simply leave out the objective examination and instead try to discredit the Constitution, and thereby Hungary, with political polemic. Incidentally, I have on numerous occasions observed that the critics suddenly go very quiet if they are asked to be specific and back up their criticisms.
As a constitutional expert, would you make any criticisms of the Hungarian Constitution?
Nothing significant. As a convinced democrat, the Constitution does not give me any cause for concern. I really cannot identify anything that would make it in any way suspect or contestable. Of course it’s always possible to argue about questions of detail. Coming from Germany I would perhaps formulate certain things slightly differently, but it is a question here of Hungary’s sovereignty in constitutional affairs, which it has made use of in a very responsible and exemplary way.
How did you come to deal so intensively with the Hungarian Constitution?
As a German Constitutional Court judge I have made and still make many international constitutional comparisons. I have advised several countries on constitutional questions, for example in South America and Asia, and even in Russia. To that extent such matters naturally interest me. I also have a personal connection to Hungary: a godfather of mine was Hungarian. For that reason I have always followed the events in Hungary with particular attention. I naturally immediately obtained and read the new Constitution thoroughly as soon as it was translated.
Are there other experts in Germany who have dealt with this matter as intensively as you and former Federal Constitutional Court of Germany judge Paul Kirchhof?
I can’t think of any other names off the top of my head. Of course that’s a shame. It explains the ignorance in Germany regarding the actual content of the Hungarian Constitution. At a meeting in Berlin I told Prime Minister Viktor Orbán that Hungary should have done much better public relations work for the new Constitution in the Western countries. Hungary should have presented it to Europe with healthy self-assurance. That didn’t happen. Instead interpretation was left to the political opponents, with fairly unsurprising results. This is one of the explanations for the large number of misinterpretations and misunderstandings. However, I have the impression that the Hungarian side has recognised this and is at pains to make up for what it neglected to do. Everything is repairable.