1216-2574 / USD 20.00 ACTA JURIDICA HUNGARICA
© 2007 Akadémiai Kiadó, Budapest 48, No 1, pp. 71–85 (2007)
DOI: 10.1556/AJur.47.2007.1.5
*
PETER SMUK
Law Pertaining to Political Parties and Political Pluralism
– Freedom of the Foundation and Functioning of Political
Parties in Post-Communist Hungary
Abstract. This paper studies the law pertaining to political parties in Hungary, from the
viewpoint of establishing and maintaining of political pluralism. In the period of 1989–1990,
the transition from the one-party system to the democratic and pluralistic state of law could
be followed up relative to the development of the law pertaining to the political parties, which
is based on the rules that foreclose the contingent development of unconstitutional political
system.
The paper reviews the concept of the political party according to the constitutional law,
the normative framework of functioning and the regulations of the internal organization of
political parties. The provisions of primary importance concern: a) equality of political parties,
b) forbidden purposes and instruments, c) rules of incompatibility, d) state subvention. Rules
concerning the internal organization require the openness and the prevailing of democratic will-
making also inside the political parties, so contribute to the maintaining the democratic
competition of political parties.
The author emphasizes the factors that determine multiparty-system, and argues that
electoral thresholds and the effective method of state-financing of political parties contest
the principle of equality and harm the fair-competition. Thresholds and subvention are both
based on the effectiveness of political parties–though being capable to prevent the party
system and the parliament from fragmentation, nonetheless, they prefer extensively, if not
unconstitutionally, the political parties in the Parliament, so they can be seen as being designed
to protect the current political elite.
Keywords: political parties, party law, political pluralism, state subvention of political
parties, electoral systems/electoral law
Constitutionality, established by provisions affirming and demarcating rights
as well as by rules safeguarding these rights as institutional guarantees of the
prevailing social-political system provided under Constitutions, is principally a
requirement to be observed by governments primarily as a sequel to the grievous
experiences of history. The bewildering precedent of the Weimar Republic is
only one regrettable instance to admonish posterity that no political establish-
ment can dispense with the rules that foreclose the contingent development of
*
Associate professor, Széchenyi István University, Győr
E-mail: .
, 72 PETER SMUK
unconstitutional political systems.1 Nonetheless, according to András Sajó’s
view, effective Constitutions are not designated to safeguard future societies.
Since Constitutions are mere corollaries of (“creations related to”) the fears
generated by previous political systems, they set forth the modus operandi of
the exercise of political power.2
In view of the post-transformation constitutional processes in Central-
Eastern- Europe, it is particularly valid to assert that Post-Communist political
systems, by reason of disquieting historical experiences, intended to institute
multifarious constitutional safeguards, so as to protect the pluralism of political
parties. Therefore, the respective provisions can be construed with respect to
the former exclusive role of the Communist Party. In this paper, we’ll briefly
expound the rules of the Constitution and other law governing political parties
in Hungary framed with the purpose of legally substantiating and sustaining
pluralist democracy and the underlying multi-party system.
As a matter of course, countries in the former Soviet-bloc had had to comply
with the Stalinist “constitutional” pattern, therefore, they had implicitly declared
the autocracy of the communist party (e.g., Hungary in 1972 set forth, “The
Marxist–Leninist Party of the working class shall be the leading force of
society.”, Poland in 1952 stipulated, “The Polish United Workers’ Party shall
be the leading political force of the society designated to build socialism.”).
Nevertheless, memories of the multi-party system prevailing in Hungary before
the communist-socialist era had not faded by the time of the change of regime,
when Parliament annulled the provisions substantiating the exclusive power of
the Socialist Workers’ Party under the Constitution. Nonetheless, as Halmai
concurrently noted, law pertaining to political parties as a sub-division of the
law of associations cannot per se ground the democratic functioning of the
multi-party system, because these regulations have a limited scope of effect. 3
Consequently, the observance of the effective legal environment established
during the 18 years following the political transformation would be an in-
1
See, Para. 59 of Decision of 1995 of the European Court of Human Rights on Vogt v.
Germany: “The Court proceeds on the basis that a democratic State is entitled to require
that civil servants are loyal to constitutional principles, on which the State is founded. In
this respect, the Court takes into account the calamities Germany had suffered under the
Weimar Republic and during the woeful period that followed the collapse of that regime up
to the adoption of the Basic Law in 1949. Since Germany intended to avert the contingent
recurrence of those experiences, it founded the new State on the concept of a ‘democracy
capable of self-sustenance’.”
2
Sajó, A.: Az önkorlátozó hatalom (The Self-Limiting Power). Budapest, 1995, 18.
3
Halmai, G.: Az egyesülés szabadsága (Freedom of Association). Budapest, 1990.
161. For the discussion of law governing the one-party system, see, 135–139.
© 2007 Akadémiai Kiadó, Budapest 48, No 1, pp. 71–85 (2007)
DOI: 10.1556/AJur.47.2007.1.5
*
PETER SMUK
Law Pertaining to Political Parties and Political Pluralism
– Freedom of the Foundation and Functioning of Political
Parties in Post-Communist Hungary
Abstract. This paper studies the law pertaining to political parties in Hungary, from the
viewpoint of establishing and maintaining of political pluralism. In the period of 1989–1990,
the transition from the one-party system to the democratic and pluralistic state of law could
be followed up relative to the development of the law pertaining to the political parties, which
is based on the rules that foreclose the contingent development of unconstitutional political
system.
The paper reviews the concept of the political party according to the constitutional law,
the normative framework of functioning and the regulations of the internal organization of
political parties. The provisions of primary importance concern: a) equality of political parties,
b) forbidden purposes and instruments, c) rules of incompatibility, d) state subvention. Rules
concerning the internal organization require the openness and the prevailing of democratic will-
making also inside the political parties, so contribute to the maintaining the democratic
competition of political parties.
The author emphasizes the factors that determine multiparty-system, and argues that
electoral thresholds and the effective method of state-financing of political parties contest
the principle of equality and harm the fair-competition. Thresholds and subvention are both
based on the effectiveness of political parties–though being capable to prevent the party
system and the parliament from fragmentation, nonetheless, they prefer extensively, if not
unconstitutionally, the political parties in the Parliament, so they can be seen as being designed
to protect the current political elite.
Keywords: political parties, party law, political pluralism, state subvention of political
parties, electoral systems/electoral law
Constitutionality, established by provisions affirming and demarcating rights
as well as by rules safeguarding these rights as institutional guarantees of the
prevailing social-political system provided under Constitutions, is principally a
requirement to be observed by governments primarily as a sequel to the grievous
experiences of history. The bewildering precedent of the Weimar Republic is
only one regrettable instance to admonish posterity that no political establish-
ment can dispense with the rules that foreclose the contingent development of
*
Associate professor, Széchenyi István University, Győr
E-mail: .
, 72 PETER SMUK
unconstitutional political systems.1 Nonetheless, according to András Sajó’s
view, effective Constitutions are not designated to safeguard future societies.
Since Constitutions are mere corollaries of (“creations related to”) the fears
generated by previous political systems, they set forth the modus operandi of
the exercise of political power.2
In view of the post-transformation constitutional processes in Central-
Eastern- Europe, it is particularly valid to assert that Post-Communist political
systems, by reason of disquieting historical experiences, intended to institute
multifarious constitutional safeguards, so as to protect the pluralism of political
parties. Therefore, the respective provisions can be construed with respect to
the former exclusive role of the Communist Party. In this paper, we’ll briefly
expound the rules of the Constitution and other law governing political parties
in Hungary framed with the purpose of legally substantiating and sustaining
pluralist democracy and the underlying multi-party system.
As a matter of course, countries in the former Soviet-bloc had had to comply
with the Stalinist “constitutional” pattern, therefore, they had implicitly declared
the autocracy of the communist party (e.g., Hungary in 1972 set forth, “The
Marxist–Leninist Party of the working class shall be the leading force of
society.”, Poland in 1952 stipulated, “The Polish United Workers’ Party shall
be the leading political force of the society designated to build socialism.”).
Nevertheless, memories of the multi-party system prevailing in Hungary before
the communist-socialist era had not faded by the time of the change of regime,
when Parliament annulled the provisions substantiating the exclusive power of
the Socialist Workers’ Party under the Constitution. Nonetheless, as Halmai
concurrently noted, law pertaining to political parties as a sub-division of the
law of associations cannot per se ground the democratic functioning of the
multi-party system, because these regulations have a limited scope of effect. 3
Consequently, the observance of the effective legal environment established
during the 18 years following the political transformation would be an in-
1
See, Para. 59 of Decision of 1995 of the European Court of Human Rights on Vogt v.
Germany: “The Court proceeds on the basis that a democratic State is entitled to require
that civil servants are loyal to constitutional principles, on which the State is founded. In
this respect, the Court takes into account the calamities Germany had suffered under the
Weimar Republic and during the woeful period that followed the collapse of that regime up
to the adoption of the Basic Law in 1949. Since Germany intended to avert the contingent
recurrence of those experiences, it founded the new State on the concept of a ‘democracy
capable of self-sustenance’.”
2
Sajó, A.: Az önkorlátozó hatalom (The Self-Limiting Power). Budapest, 1995, 18.
3
Halmai, G.: Az egyesülés szabadsága (Freedom of Association). Budapest, 1990.
161. For the discussion of law governing the one-party system, see, 135–139.
