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Lost in Transition
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representative bodies, judiciary, media, and civil liberties. As many reports
have chronicled, the Court was among the first subjects of the rapid transfor-
mation.
54
The new Parliament reformed the nomination and election process
so that the parliamentary majority alone would choose candidates. It enlarged
the Court’s membership from eleven to fifteen, adding up to four justices to
the bench. (In sum, due to vacancies seven new justices were elected within
one year.) It limited the competence of the Court by banning the annulment
of unconstitutional tax and financial measures.
55
In the name of a “winner-take-all” conception of constitutional politics,
on the first anniversary of the election victory, the Parliament adopted the
2011 Fundamental Law as a new constitution which proclaimed the 1989
Constitution invalid, and repeated the previously introduced limitations on
the Court. What is more, after the Court, using its preceding judgments,
took some hesitant steps as a check and balance of the ruling majority, the
Parliament adopted several amendments to the Fundamental Law, one of
which stated: “Decisions of the Constitutional Court delivered prior to the
entering into force of the Fundamental Law become void.” In this way, the
whole influential work of the Sólyom-led Court became a constitutional past.
Some scholars argue that the determining factor is legal continuity: since the
former legal order remained valid, and a democratically elected parliament
adopted the Fundamental Law in conformity with the 1989 Constitution’s
two-thirds rule, the new system is both legal and legitimate.
56
The new system
receives favorable reviews, because reportedly the Fundamental Law and its
governmental enforcement replace judicial supremacy with parliamentary
sovereignty. The representative government of Hungary gives the majority of
people what they want instead of the former rule of “juristocracy,” i.e., the
counter-majoritarian activity, indeed, time-to-time zealotry, of the unelected,
elitist, aristocratic Constitutional Court.
57
According to many opposing views, however, this has nothing to do with
the formally continuous legality, because the Fundamental Law and its sub-
sequent amendments are in conflict with the basic normative features of
54
K. Kovács and G. A. Tóth, “Hungary’s Constitutional Transformation” (2011) 7 European Con-
stitutional Law Review 183; Tóth (ed.) Constitution for a Disunited Nation: On Hungary’s 2011
Fundamental Law; Tóth, Supra note 9.
55
Venice Commission, Opinion No. 614/2011, [10].
56
A. Jakab and P. Sonnevend, “Kontinuität mit Mängeln: Das neue ungarische Grundgesetz”
(2012) 72 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79–102.
57
See generally M. Tushnet, Taking the Constitution away from the Courts (Princeton, NJ:
Princeton University Press, 1999); R. Hirschl, Towards Juristocracy: The Origins and Conse-
quences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2007).
560
Gábor Attila Tóth
constitutional legitimacy.
58
Although, on the face of it, the Fundamental Law
upholds the rule of law, the primary status of human rights, and parliamentary
architecture with constitutional constraints, the way the text was drafted, and
the content of the text are far from constitutional values and principles.
Political theorists also face difficulties when they attempt to label the new
Hungarian constitutional system. In formal terms it still belongs to constitu-
tional democracies, but according to various views the Hungarian democracy
is majoritarian rather than consensual, populist instead of elitist, nationalist
as opposed to cosmopolitan, religious and not neutral. In sum, it is based
upon realist considerations in place of idealist theories. The term “illiberal
democracy” is also applied to Hungary because political power is based upon
repetitive elections, but the power-holders systematically violate the freedoms
of the people they represent.
59
In my view, the new constitutional system – between constitutional democ-
racy and totalitarianism – belongs to modern authoritarianism;
60
it establishes
the entire set of formal institutions associated with constitutional democracy,
yet these serve as either a tool of authoritarian imposition, or a façade of
representation. Hungary, like other modern authoritarian systems, does not
reject multiparty elections; on the contrary, the regime legitimizes itself as a
“democracy” through elections. However, voting practice is hegemonic in its
nature. In other words, there is no separation between the ruling party and the
state. As a result, the head of government may keep the process and outcome
of the vote under control. Importantly, though the ruling party gained power
democratically in 2010, the subsequent elections in 2014 were unfair.
61
From this perspective, the Fundamental Law can be seen as an example of
paper constitutions called semantic camouflage, or a façade constitution. As
regards key legislative, executive, and judicial bodies, it does not serve as a nor-
mative benchmark; it is only a descriptive map of formal powers. Moreover,
formal and actual powers are different. All political power resides with the
leader and a leading clique of the ruling party. Formal governmental domi-
nance is subordinate to informal party dominance.
58
M. Bánkuti, G. Halmai and K. L. Scheppele, “From Separation of Powers to a Government
without Checks,” in G. A. Tóth (ed.) Constitution for a Disunited Nation: On Hungary 2011
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