Memory Politics in Hungary: Political Justice without Rule of Law

von Gábor Halmai

After the 1989-90 democratic transition, Poland and Hungary were the first to introduce the institutional framework of constitutional democracy and of transitional justice. For a number of reasons, including a lack of democratic traditions and constitutional culture, after the 2010 parliamentary elections, liberal constitutionalism became a victim of the authoritarian efforts of Viktor Orbán’s Fidesz party. The new constitution, called Fundamental Law, systematically dismantles guarantees of the rule of law, leading to measures of ‘bad political justice’1)Here I refer to “bad” political justice, using the terminology of Ellen Lutz and Caitlin Reiger, who citing Judith N. Shklar’s book Legalism: Law, Morals, and Political Trials (Cambridge, MA: Harvard University Press, 1964), distinguish between “bad” political trials, in which politics gains the upper hand over justice, and “good” political trials, which reflect a desire for public accountability. See Ellen L. Lutz and Caitlin Reiger, “Introduction,” in Ellen L. Lutz and Caitlin Reiger, eds., Prosecuting Heads of State (Cambridge: Cambridge University Press, 2009), 10-11., in which politics wins out over justice through ordinary national criminal law. Unlike the 1989 Constitution, the 2011 Fundamental Law of Hungary is rather vocal about the country’s dictatorial past and reveals the intentions of the new constitution-making majority. The preamble, entitled “National Avowal,” opens with the statement, “We deny any statute of limitation for the inhuman crimes committed against the Hungarian nation and its citizens under the national socialist and communist dictatorships”. If “inhuman crimes” refers to war crimes and crimes against humanity, then the denial of a statute of limitations complies with effective international law ...

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