Revolution under the Rule of Law: Peaceful Transition to Democracy in Hungary
Ladies and Gentlemen! Distinguished Colleagues!
Following World War II., the countries of Eastern and Central Europe ended up in the Soviet influence zone, which allowed the establishment of communist-party dominated dictatorships in these lands. Twenty years ago these countries regained their independence and restored democracy to their political lives and private enterprise to their economies.
Those were years in which democracy was achieved in many countries of the world including here, in Korea. The end of the apartheid regime in South Africa was another particularly significant example.
Everywhere these changes took place they were accompanied by a new ideal of constitutionality. In the non-democratic regimes the constitutions had existed on paper only, or more precisely, constitutions were brought into play strictly in conformity with the framework of the dominant ideology. The new political systems intended their constitutions to exist and operate independently of day-to-day political interests, to stand above the political arena as the basic law of the land, offering the “basic norm” (Grundnorm) that defined the entire legal and political system, with the concepts of human rights embedded in them. In this vein, they brought to life constitutional courts designed to oversee the exercise of constitutionality, with the power to overturn decisions of the legislature if need be. The 1990s was the decade of the constitutional courts. They went into action throughout the world and many became famous for their decisions including the South Korean, South African, Indian, and Canadian courts.
In Europe in particular, we clearly see that the constitutional courts have been inseparable components of democratic change. Three generations of European constitutional courts emerged from “regime changes” on the continent: the first generation, consisting of the German and Italian constitutional courts, took their oaths of office after the fall of the fascist regimes in WW.II. The second generation, the Spanish and Portuguese courts, followed the collapse of totalitarian regimes in the 1970s. The third generation, the constitutional courts of the new post-Soviet democracies, were founded in the 1990s, expressly as symbols of the new, democratic systems. None came about because of popular demand. Instead, each was born of the profound mistrust in institutions of “majority representation” that had been misused and corrupted by the ruling fascist and communist regimes. In the given historical setting, the constitutional courts felt they represented the essence of the democratic change.
The historically new aspect of the regime changes of 20 years ago was not just the role of the constitutional courts, but the peaceful and negotiated regime changes that were a sharp contrast to prior revolutions, which typically demanded the sacrifice of lives. International literature uses the term “Velvet Revolution” as a description. I would like to focus on Hungary, and using it as an example, tell how it became possible for the political map of Europe to change so completely in an amazingly brief time interval, and to do so without violence or loss of life.
By the late 1980s the Soviet Union had been brought to its knees economically by the arms race forced upon it by the United States. Hungary, which had maintained a tolerable standard of living by borrowing from the west, was also on the verge of bankruptcy. There had been deep-rooted opposition to the communist regime in Hungary and elsewhere throughout the 40 years of Soviet dominance. But, the Soviet Union used its military might to put down the Hungarian revolution of 1956 and the Czechoslovak democratic movement of 1968. By the 1980s, Mikhail Gorbachev, who became party General Secretary in 1985, could no longer allow his country to intervene militarily, for he needed the good will of the West for both internal reforms and to attain his global ambitions. He could no longer concentrate on the periphery of the empire (once known as the satellite countries) for he had to focus his efforts on the Soviet Union itself where the Baltic States and the Central Asian Republics alike were all demanding independence.
Gorbachev was limited to slowing down the changes in his European zone of influence and stabilizing or at least prolonging the survival of the communist regimes.
Both Gorbachev and the East European reform-communists believed that while socialism would be transformed, it would survive and that the communist parties would retain their leading role. As far as the economy was concerned, they were ready to allow private ownership and market influences to grow, and in political life they allowed certain basic liberties, but did so emphasizing the decisive role of the communist party. By now we have learned that Western Europe and the United States felt that this type of slow transition was in their interests, and preferred it taking place like that.
So, how did history sweep away those plans and bring true democracy to Hungary and its neighbours?
Poland scored the first victory where roundtable talks between the communist party and Solidarity (Solidarnosc), a very strong opposition movement, led to partially free parliamentary elections in June 1989. (Only the members of the Senate were freely elected. The roundtable agreement guaranteed that the Lower House retained a communist majority.) When not a single communist won a seat in the Senate it signalled all communist regimes in the region that time had come for change. That helped the opposition in Hungary to engage the Hungarian Socialist Workers Party (MSZMP) – please note here that negotiations were not with the government but with the political party de facto running the country – in roundtable talks focused on democratic reform. The prerequisite for this was that the different opposition movements all managed to resist the pressure of the communist party to negotiate separately. Instead, the opposition forced the MSZMP, the communist party, to negotiate with an umbrella organization that represented all of them and was called the Opposition Roundtable. The decisive step, leading to true change, came in the preliminary round of the very tough negotiations, when the communists and the opposition essentially agreed to agree. MSZMP committed itself to have parliament – still dominated by the communists as this was prior to free elections – adopt all laws formulated, worded and agreed upon at the Roundtable.
Although the Roundtable was originally set up only to draw up the legislation needed to hold free and fair elections, it soon became apparent that those laws were in conflict with the constitution of the time. It was clear that a new and democratic constitution was sorely needed. Obviously, the new constitution did not include “the leading role of the party,” and a new and powerful constitutional court was established. The constitutional reform was promulgated on 23 October 1989, paving the way for free parliamentary elections in March 1990. In the summer of 1990, the new parliament revisited the constitution and removed the passages that the communists had insisted upon and which the opposition had agreed to, to foster compromise.
The events and atmosphere of those history-making days are among my personal memories. For instance, I remember how we insisted that the opposition be able to meet inside the parliament building and evolve a unified position for the next round of talks with MSZMP (even though we knew they had listening devices in the room). I also remember the peculiar state of affairs inside parliament itself, with the communist Members of Parliament officially in session, dressed in black suits and wearing neckties, while in the other half of the building we were writing the new constitution dressed in sandals and summer shirtsleeves, making our way into the building with entry permits written on scraps of paper.
The new Hungarian Constitutional Court was a very powerful one, embracing nearly all possible competences of other courts the world over. But, its most powerful authority – an authority insisted upon by all the new constitutional courts – was that of abstract control of norms. In other words, it had the authority to review laws even though they had not been brought before the court by any concrete case or controversy. Without any concrete case or actual plaintiff, the only way to declare a law unconstitutional is to formally declare it null and void. This is why the new courts have been called negative legislators, using the classic expression coined by Hans Kelsen.
The goal of these courts was to maintain control over the democratic transitions. It is generally known that the South African Constitutional Court certified the consistency of its draft constitution with a set of preliminary principles (in 1993). The Hungarian Constitutional Court made a similar effort to explain the theoretical bases of the Constitution and the rights included in it and to form a coherent system with its decisions which as an “invisible Constitution” provides for a reliable standard beyond the text of the Constitution.
In contrast with earlier constitutional thinking that had been weighed down and tied in a knot by ideology, the new courts, and in particular the Hungarian Constitutional Court raised rule of law into a central category. Ideology gave way to the new normative order, a clear hierarchy of norms, in which legal certainty and the coherence of the Constitution became the guiding principles, and the establishment of formal rule of law controlling and overruling political decisions was the greatest order of the day. The formal rule of law was then coupled with the results of the “rights revolution”, that is, the expansion of civil rights jurisprudence, which had been underway since the 1950s in the US and in national and early constitutional courts worldwide, supported by two UN Covenants, the European Convention of Human Rights, and the decisions of respective specialized international Courts. The rule of law took the position of the highest law (much as of the ancient notion of divine law, or natural law once did). Rule of law conveyed a coherent system of human rights at its essence.
The above can be clarified through a problem that became a hard case for the constitutional courts of all new democracies.
The newly established constitutional courts had to reflect the historical events that brought them into existence. The basic question they had to respond to involved the “extraordinary circumstances” themselves: did such circumstances modify or justify the modification of constitutional standards; did the unique historical events allow the suspension of constitutional guarantees; in short, was there a “transitional constitutionality” that differed from the “normal” one?
The new courts faced the inevitable agenda of transition. They had to rule on issues related to punishing the political crimes of the past, which raised the problem of retroactive criminal legislation; “lustration”, i.e. exposing the activities and identifying the agents of the communist secret services, which would probably lead to their exclusion from key public offices, at least temporarily. One facet of the post-communist transition was the resurrection of private property, the privatization of formerly nationalized state property.
The way these genuinely “transitional” questions were answered determined the style of transition in a given country. The answers varied, as courts do not necessarily agree in their conceptualization of specific transitional problems. The Hungarian Constitutional Court introduced and enforced a cohesive theory, coining the somewhat paradoxical term “revolution under the rule of law”. To explain: first the court emphasized the revolutionary nature of the changes, pointing out that the new Constitution of 1989 had introduced a new constitutional order. Then, the court insisted that the revolutionary changes be carried out in strict compliance with the constitution and constitutional laws.
The most relevant issue here was the question of retroactive criminal legislation. Could politically motivated crimes during the communist era be prosecuted and punished, particularly since the statute of limitations had already expired. The problem of constitutional law was clear: could formal guarantees set in the penal code and upheld by the constitution be put aside if adherence resulted in “unbearable injustice”? What was the ultimate law that governed and determined all other legal norms? Was it the new constitution that represented the new, democratic order, or was there an even higher law, natural law, or the principle of justice? The problem was more momentous here because although the issue was specific, the credibility of the new system was at stake – and we are talking about a new system that was based on the absolute precedence of the rule of law.
In other countries, namely, in Germany, Poland and the Czech Republic, the constitutional courts yielded to “justice”, ruling that the statute of limitations could be changed retroactively.
In contrast, the Hungarian Constitutional Court insisted on the principle of the absolute force of the constitution and repeatedly struck down laws that retroactively reset the statute of limitations or attempted to otherwise manipulate it. In 1992, the Constitutional Court declared that the given historical situation could be taken into consideration. However, the basic guarantees of the rule of law could not be set aside, even if historical situations and justice apparently warranted it. A State governed by rule of law cannot be created by undermining that rule of law. Legal certainty based on formal and objective principles is more important than what, of necessity, would be partial and subjective justice.
It has to be realized, however, that the Hungarian court found another way to render justice: criminal prosecution under international law. The court ruled that the Geneva Conventions were directly applicable to cases in Hungarian criminal courts and to crimes falling within the categories of war crimes and crimes against humanity. Therefore, they could be brought to trial because for these crimes there was no statute of limitations under international law. Thus, the most serious crimes, like the massacre of demonstrators committed during and after the revolution of 1956, were punishable and were in fact punished.
Looking back from today’s vantage point we can see that in general criminal sanctions imposed on political crimes – if any – were confined to a few, rather symbolic cases in the post-communist countries, irrespective of the positions of principle taken by their constitutional courts. But the different courts sent different messages to the public on constitutionality and on the absolute validity of the constitution during a very sensitive historical period. The attitudes of the constitutional courts regarding the past, manifest in the symbolic transitional cases, determined the “style” of the transition.
The message of the new constitutionalism, the absolute insistence of the Constitutional Court on the above understanding of the rule of law and its predominance over politics, was something that people understood. The Constitutional Court was popular, not only because its independence and impartiality was widely accepted and held in high esteem during a politicized chapter in history. One special feature of the Hungarian Court is the “actio popularis.” This means that everybody has standing before the Court, and may call for a review of any law, without showing that the law has harmed them personally. This unusually broad standing has opened the door to countless submissions. At the same time, it has made people feel that they participated in building the new legal order, or, even today, that they have disposal over a means of controlling legislation.
In addition to emphasizing legal certainty and the formal features of the rule of law, the Hungarian Constitutional Court also conducted a moral reading of the constitution. The Court set the right to human dignity at the top of the hierarchy of fundamental rights and connected it with equality: the right to equal dignity constituted the foundation of its most important decisions. It provided utmost protections for the life and dignity of human beings (including the abolition of capital punishment), and for civil rights, especially freedom of speech.
The Constitutional Court has contributed to the stability of the new democracy in many ways. In general, consti¬tutional review has a neutralizing function. Under the circumstances of transition, it was especially important that political debates be transformed into pure constitutional law issues and decided upon in legal terms - and it was an even more important achievement that both the new political class and the people accepted this mode of conflict resolution. The other side of the coin was that politics repeatedly attempted to sidestep responsibilities that parliaments and cabinets would rather have avoided by turning the issues over to the constitutional courts, as was clearly the case in Hungary when, for instance, a decision had to be made on capital punishment. Other decisive rulings of the Constitutional Court enabled the new democracy to function properly. These judgements included consolidating the organization of the new state, settling conflicts of competence, protecting the independence of the judiciary and the autonomy of local governments.
Looking at all the principal decisions of the Constitutional Court on the genuine transitory issues, further its broad interpretation of human rights and its rulings that consolidated the new State, we have to realize what a gigantic role the Constitutional Court played in establishing a new democratic and constitutional order, in the “revolution under the rule of law.” The Hungarian Constitutional Court was the decisive factor of the transformation, similarly to the Constitutional Court in South Africa – while in other new democracies the Parliament or the President or the Ombudsman played a major role.
Nevertheless, the most important contribution to the stability of the new order, consciously performed by the Hungarian Constitutional Court, was the restoration of the authority of the law itself, ending its role as an instru¬ment of power and turning it into a system based on principles and regulated by the constitution.
