* Originally Published in revista 22 collection ' a Constitution for liberty III '
In Hungary, in Romania and everywhere in the civilized world, there are people who share an understanding of principles capable of supporting freedom. Some of them have an understanding not only of the principles of the commune, but also of the fact that, in certain historical moments, the citizens of a country have the opportunity to establish institutions to protect and preserve these principles. Hungary is situated in such a moment: the politics of the situation a sufficient parliamentary ratification supermajoritati allows to replace the Communist Constitution of 1949 and amended after the revolution. The opportunity is comparable in importance to that which allowed the change in 1989.
In the debate over constitutional reform, Common Sense Society (CSS) supports the institutional principles of a State with limited powers that would protect individual freedom. The draft Constitution Freedom of the SSC includes a series of public debates, educational events, research, publications and advocacy meetings which promotes freedom in public discourse and in the process of drafting the new Constitution. The overall goal is to ensure that the new Constitution will not be a simple extension, nor a partisan document, but a legitimate Constitution on religious freedom for all.
Why is it important that Hungary will have a new Constitution? History shows us that anytime you may come moments in which the elements of freedom are put to the test in different ways. In such situations, we cannot trust the majority public opinion, but we will have to rely on the Hungarian people's will expressed in a previous Charter of what embodies the consent given to the rule of law and fundamental rights. Here stand the key constitutionalismului: offers a standard of the rule of law stands above the waves of the heat exchangers of the arguments outline public opinion.
Hungary was the only country in the Eastern bloc that has not officially adopted a new Constitution after 1989. A major criticism of peaceful change was her coordination by an elite and making too many compromises. As a result, the current Constitution of Hungary is considered to be a patchwork with amendments for the lack of a popular attachment and a deeper legitimari, characteristic of a democratic State. Otherwise, how could the Hungarian citizens have any attachment to a document full of unnecessary compromises, rather a political past shadows of nightmare than political principles of the future? The political future of Hungary should not be determined by the unfortunate episodes of its history. The Constitution can not autolegitima, regardless of how much effort has been made to amend them, and the problem cannot be characterized as a pure tehnicalitate. Because, from the perspective of the current Constitution, the Constitutional Court shall be confronted with contradictory and hence with an intolerable risk of arbitrary interpretation.
There is now an opportunity that allows its representatives of the Hungarian nation and to refine the institutions of Government is based on a philosophy of freedom from coercive pressures. The new constitutional process should be understood in the spirit of the change of regime in 1989, not an effort by the erosion of democratic reforms that have taken place in the meantime. The majority of Hungarians understand things like this: 67% of them declare themselves in favour of a new Constitution.
I'll point out a few fundamental ideas to be taken into consideration in the constitutional process from our circumstances from custom Hungary.
The first is the idea of separation of powers. The most obvious way to ensure a balanced system of powers is to establish a strong and independent judicial sector, with the power to review the decisions of the legislature and the Executive on the basis of the new Constitution. Members of the Constitutional Court shall be appointed by the Government Cabinet and confirm. The details of this arrangement are important, but difficult to summarize here. They relate to the structure of courts, appellate procedure, appointment and confirmation process, the length of the Court mandates. The principle is that of the balance of the implementation of the system of government organizations.
The second elimination is to be represented in a Union. One of the elements of the current Constitution of communist ideas strongly impregnated about property, business and State obligation is to be entrepreneurs represent in labour unions. It is no wonder as he discovered the 2007 Eurobarometer as Hungary have lowest entrepreneurial activity based on the opportunity of the 25 States in the Schengen space. Some bowlers reformers say the constitutional article is not applied strictly. Fine, but then why I have there? Is a gun which later could be used against political and economic freedoms, civil. Freedoms are connected and should not be left at the mercy of the State.
Keeping the articles in the Constitution is missing from the active force and legitimate articles. For instance, the current Constitution establishes that parents are entitled to choose the education they receive their children, but in legal practice that right is not always respected. Local authorities determine, on a case by case basis if a family can educate their children at home. This is the third idea which must be taken into account: the protection of the freedom of education. The right to a different education provided by the State is crucial for pluralism. It should be explicitly stated in the new Constitution resumed.
A fourth idea is to limit the constitutional public expenditure. The 2010 index of economic freedom, Heritage Foundation and the Wall Street Journal, shows a level of public expenditure for 49.7 per cent of GDP, among the largest in Europe. A large portion of these expenses are a bankrupt pension system. The index calculated from the LAnglophone of Brussels journal has identified Hungary as having the highest tax burden in the European Union, and, in 2009, Forbes magazine ranked her as having the 13th highest worldwide. Since the beginning of its mandate, in May 2010, the FIDESZ-KDNP (Alliance of young Democrats-Christian-Democratic People's Party) has made significant steps towards lowering taxation and has undertaken to introduce a unique share of 16 percent starting next year. But these efforts will not show the utility without a reduction in the level of public expenditure. Of course for a genuine economic boosting and cut the costs of political courage is needed.
Momentum will be even more difficult, as the recent environmental disaster in western Hungary announces serious infrastructural expenditures. However, the Government's Cabinet who draw up the EU Constitution should not lose the opportunity to limit the level of public expenditure in the future by the introduction of an annual ceiling expressed as a percentage of GDP. To ensure that the safest way to lift Hungary from economic paralysis of recent years is placing the emphasis on individual responsibility in investments. This principle has not been refuted by the economic science, beyond the regrettable fashion to spread the costs of companies.
Finally, a fifth idea is to protect national sovereignty. Hungary is a member of the European Union, which complicate any attempt to reform the Constitution. You must however decided if Hungary is a sovereign country which will create a national Constitution whose legitimacy is derived from the consent of its citizens, or is a member of a Union employee in a sterile exercise. If you still believe that the State-nation is the best mechanism to guarantee the rule of law, the new Constitution is supposed to protect the sovereignty in the relations with the Union. This can be achieved by a constitutional clause that would stipulate that all treaties, laws and regulations legal force through their gain approval by Parliament.
Constitutional processes are primarily political, not legal issues. However, the procedure does matter. In Hungary we already deal with criticism of the constitutional reform efforts taken by the Government. Some civil society organizations have publicly announced its refusal to be part of the process of reform. Critics say the process is undemocratic, because the citizens have not chose FIDESZ-KDNP to ratify a new Constitution, and that therefore there will be a partisan document. Beyond toward egocentrism, the Government will have to take seriously the constitutional process. Procedural options are: 1) the ratification of the new Constitution through the usual mechanisms of Parliament where FIDESZ-KDNP owns supermajoritatea needed for ratification; 2 recourse to a referendum), which will likely be a function of confidence vote for the Government's national Obinna or 3) the formation of a National Convention for ratification. The formation of a National Convention would be far preferable option. Would reflect, first, the fact that this process is beyond the ordinary operations of Government. Then, would provide legitimacy, without having to make a constitutional issue of a populist such as a referendum.
Two decades after the fall of communism, Hungary may conclude this episode and play official confidence in the principles of individual freedom and responsibility, abandoning all forms of paternalism. It is too early to predict the outcome and how much will the new Constitution reflects those principles. What is clear now is that Hungary has an unprecedented chance to establish institutions that guarantee individual rights and, in particular, to encourage free competition, which will result in a thriving economy.
The rule of law in Hungary and everywhere to be refined and strengthened. The feeling that anything can happen tomorrow is still widespread in post-Communist countries and it poisons the economic innovation, business sector and civil society. The State of uncertainty must be provided instead perpetuate the confidence of citizens in a limited constitutional Government.
The draft Constitution Freedom of Common Society and run by twin project CADI and the Foundation "Konrad Adenauer" in Romania is trying to engage a wide audience in a debate which, more than any other, concerns us all. We try to make each understood the principles of a just society and to promote the EU Constitution to provide the Foundation of a future in which individuals to enjoy freedom, equality before the law and economic prosperity.
MARION SMITH, the President of Common Society, Budapest
Version of IKE DOMAS
