“The Empire Strikes Back” in Hungary

“The Empire Strikes Back” in Hungary

The Hungarian Parliament is likely to vote next week on amendments to the new constitution, which will move many statutory provisions into the constitution, despite Constitutional Court rulings striking them down and both the European Union and the Council of Europe urging reconsideration. These moves reopen serious doubts about the state of liberal democracy in Hungary.

On February 8, 2013, all the MPs of Hungary’s governing coalition – which currently has the two-thirds majority in Parliament that is needed to pass constitutional amendments – submitted a fourth amendment to the country’s constitution of 2011, called the Fundamental Law. The reasons for this fifteen page comprehensive amendment to the still new constitution are the result of previous decisions by the Hungarian Constitutional Court, in particular a ruling issued at the very end of 2012. This decision ruled that those parts of the Act on the Transitional Provisions of the Fundamental Law which are not transitory in nature, cannot be deemed as part of the constitution, and are therefore invalid 1. This ruling made it possible for the Court to review the substance of some of the cardinal laws based on the claimed constitutional status of the Transitional Act. Among these reviewed and annulled laws was one on voter registration, which the Court found unconstitutional 2. When the fourth amendment was submitted, a decision on the constitutionality of the cardinal law on the status of churches was expected and the Court issued its ruling on February 26, 2013, declaring parts of it to be unconstitutional3. These important defeats of the government show that the judges who are perceived to be unconditionally loyal to the governing party Fidesz, cannot at the same time rely on a majority within the Court, and this is the reason for the government wanting to limit the Court’s influence even further.

In response to these decisions, the submitted amendment elevates the annulled non-transitory provisions of the Transitional Act into the main text of the Fundamental Law, with the intention of excluding further constitutional review, as the draft amendment also proposes prohibiting the Constitutional Court from reviewing the constitutionality of constitutional amendments. Among other issues lifted to constitutional rank are the annulled provisions of both the cardinal law on the status of the churches, and the Transitional Act, according to which the designation of legally recognized churches is vested in the Parliament itself. The annulled law has listed fourteen legally recognized churches and required all other previously registered churches (some 330 religious organizations in total) to either re-register under considerably more demanding new criteria, or continue to operate as religious associations without the legal benefits offered to officially recognized churches. As a result, only eighteen have been able to re-register. This means that the vast majority of previously registered churches have been deprived of their status as legal entities. Even though the Constitutional Court argued that the registration of churches by the Parliament does not provide a fair procedure for the applicants, this procedure will be constitutional in the future, which effectively means an end of the freedom to establish new churches in Hungary.

Another provision of the Transitional Act to be relocated to the Fundamental Law is the authorization of the President of the Judicial Council to select another court, if she thinks that the competent one is overloaded with cases. Similarly, provisions annulled earlier by the Constitutional Court, besides the ones that were part of the Transitional Provisions, have also become part of the amendment. One of them is the authorization of the legislature to set conditions for state support in higher education, such as requiring graduates of state universities to remain in the country for a certain period of time after graduation. Another retribution for the declaration of unconstitutionality is the authorization of both the legislature and local self-governments to declare homelessness unlawful. At the end of 2012, the Court had annulled the very definition of the family in the law on the protection of families. Now the Fundamental Law will define marriage of men and women and the parent-child relationship as the basis of a family relationship, excluding not only same-sex marriage, but also non-marital partnerships. Likewise, the Constitutional Court had expressed constitutional concerns about private law limitations of hate speech. The new amendment was made to allow such limitations, not only to protect racial and other minorities, but also to protect the dignity of the members of the Hungarian nation. Finally there is a set of amendments related to the power of the Constitutional Court itself, as a direct reaction to recent unwelcome decisions of the judges. The most alarming one annuls all Court decisions prior to when the Fundamental Law was entered into force.

If these amendments are passed they will in effect kill off not only many fundamental rights, but also basic constitutionalism in Hungary. The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) in its working paper published on March 5, 2013 harshly criticized the status of democracy and rule of law in Hungary, including the planned amendment. The Secretary General of the Council of Europe, on March 6, also called upon the Hungarian government and Parliament to postpone a vote on the amendment in order to provide time for consideration by the Venice Commission prior to their adoption. On March 7, the U.S. State Department echoed this call. The question now is what European institutions will be able to do. Will they be able to prevent the current attempt of the Hungarian government to violate European constitutional values?

1Decision 45/2012. (XII. 29.)
2Decision 1/2013. (I. 5.).
3Decision 6/2013. (III. 1.)