Post-Sovereign Constitution-Making in Hungary: After Success, Partial Failure, and Now What?

Abstract

This article reconstructs a model of ‘post-sovereign constitution-making’, namely, a multi-stage, democratic model with round table or multi-party negotiations as its centre piece, involving two constitutions with free elections in between, and overall enforcement through a Constitutional Court. This is the model that was more or less perfected in South Africa in the 1990s. In comparison, Hungary, the empirical object of the study, is seen as an imperfect realisation, because the final stage, not provided for in the interim Constitution, was not completed in a democratic process. The author thus sees the role of the Hungarian Constitutional Court as compensatory, and inevitably weakening, given the weak legitimating background provided by an incomplete process. A case in point is the jurisprudence of constitutional amendments. In light of the inherited amendment rule, the Constitution of the regime change could only be reliably protected if the Hungarian Constitutional Court adopted one or another version of amendment review, in the path of the Indian ‘basic structure’ doctrine. The article tries to show that a fourfifths rule concerning constitutional replacement, adopted during an unsuccessful effort at constitution-making, could be a textual support for such a review. Subsequent to the conclusion of this research, the new right-wing Hungarian Parliament abolished the fourfifths rule, by using the two-thirds amending rule. This, in the author’s view, is prima facie unconstitutional.