Hungary: The constitution is not a toy

The Fourth Amendment to the Hungarian constitution limits checks and balances and is a retaliation against the Constitutional Court for annulling a number of laws passed by parliament.

Foto: Creative Commons/ Redjade

The latest amendment to the Fundamental Law of Hungary has been thrust into the spotlight. The Secretary General of the Council of Europe urged the Hungarian parliament to postpone a final vote on the amendment so that the Venice Commission could examine it prior to adoption, and the president of the European Commission (EC) expressed concerns with respect to its conformity with EU law.

The situation in Hungary is an issue in the European Parliament as well, and one of the EC’s vice-presidents warned Hungary of possible repercussions under Article 7 of the Treaty on the European Union. Criticism came not only from the EU, with Angela Merkel and American officials also expressing concern to their Hungarian counterparts. Simply put, the Fourth Amendment is a serious attack on the rule of law in Hungary, which had already been undermined in the last three years.

Step by step

After the general elections in 2010, ruling party Fidesz and its small coalition partner, KDNP, used their two-thirds parliamentary majority to adopt a new constitution – the so-called Fundamental Law – without the support of the opposition. Since it came into force on 1 January 2012, the Fundamental Law has been amended four times, with the Fourth Amendment the most excessive and creating the greatest stir. The ruling coalition also restricted the powers of the Constitutional Court (CC) in budgetary and tax matters – prompted by the judges’ ruling on a special 98% retroactive tax on severance pay which found the law unconstitutional.

The government coalition responded by introducing a constitutional provision which allowed for retroactive taxation. The current government has since then repeatedly used this method of ‘overriding’ constitutional concerns and ‘overruling’ the CC. In addition, it is worth noting a few precedents which had earlier raised concern outside Hungary. The administration of courts was re-regulated in a way that prompted the Venice Commission (the Council of Europe’s advisory body on democratic functioning of institutions) to conclude that ‘the reform as a whole threatens the independence of the judiciary.’

The lowering of the mandatory retirement age for judges made its way to the Court of Justice of the European Union (CJEU), which later ruled against Hungary. The premature dismissal of the Commissioner for Data Protection resulted in an infringement procedure. Finally, the freedom and pluralism of the media were threatened by the media law, which triggered powerful international reactions. In addition to systematically dismantling the system of checks and balances, the governing majority has adopted a series of laws which violate the fundamental rights of specific groups, such as retired armed services members, civil servants and the homeless.

Punishing the Constitutional Court

The Fourth Amendment further undermines the rule of law by continuing the practice of inserting provisions into the Fundamental Law which have previously been found unconstitutional by the CC. It introduces provisions in the Fundamental Law which violate international standards and it further weakens the check on the parliament exercised by the CC. This amendment can be interpreted as ‘retaliation’ by the government which ‘punishes’ the CC for annulling a number of laws passed by parliament.

In December 2012, the CC overturned some of the so-called Transitional Provisions which the parliament had attached to the Fundamental Law, arguing that they were not of a transitional nature. Most of these provisions are re-inserted into the Fundamental Law by the Fourth Amendment, but while the government suggests that this is merely a technical step, the truth is that a number of these clauses have been criticized by Hungarian human rights NGOs as well as by the Venice Commission.

Earlier this year, the Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the Eötvös Károly Institute issued an analysis highlighting a number of concerns in relation to the Fourth Amendment, and as one of the authors I present here its main findings.

The text of the Fourth Amendment declares that CC decisions ‘delivered prior to the entering into force of the Fundamental Law become void.’ This, in practice, abolishes important precedents established by the CC’s rulings during the last two decades, and removes the possibility of referring to such rulings when interpreting the Fundamental Law adopted by the new government. The rule applies not only to the CC, but also to ordinary courts, the ombudsman.  This approach clearly contradicts the CC’s case law, since the CC has argued in certain decisions reached after the Fundamental Law came into force that when the content of the old Constitution and the Fundamental Law are identical or similar to a considerable extent a decision adopted on the basis of the old Constitution may be used and referred to. However, the Fourth Amendment aims to prohibit the CC to base its verdicts on earlier rulings under the old Constitution. The amendment constitutes a purely arbitrary restriction which seriously undermines the CC’s independence.

Supermajority rules

Until 2012, the CC maintained the position that it would not review amendments to the constitution on grounds that this would limit the parliament’s constitution-making powers. However, the CC’s ruling on the Transitional Provisions marked a clear departure from this practice. In it, the CC carved out for itself the power to review amendments to the Fundamental Law on the basis of general standards of constitutionality. However, the Fourth Amendment explicitly prohibits the CC from reviewing the content of amendments to the Fundamental Law. As a result, the Fundamental Law may in the future be amended according to the political interests of the governing majority, allowing any executive possessing a two-thirds parliamentary majority to protect governmental measures that could otherwise be disputed on constitutional grounds – a method which has already been used by the current coalition. This clause therefore de facto nullifies the powers of the CC in the face of an executive commanding a supermajority.

The old Constitution (amended by the current majority) and the Fundamental Law already restricted the powers of the CC by stipulating that as long as state debt exceeds half of GDP the CC may only review the constitutionality of laws on budgetary and tax matters if certain listed basic rights have been violated. The Transitional Provisions made this transitory restriction permanent by stating that laws adopted in the ‘transitory’ period would not be subject to full oversight by the CC even when state debt is below half of GDP. Although this change (criticized by the Venice Commission) was annulled by the CC, the Fourth Amendment simply re-introduces the clause into the Fundamental Law. The same applies to another clause in the Transitional Provisions (raised as an issue of concern by the president of the EC), which allows for the establishment of a new levy in case the Hungarian state incurs a payment obligation deriving from a decision by the CC, the CJEU or any other court  (as long as state debt exceeds half of GDP and the budget earmarked for meeting such obligations is insufficient).

The Venice Commission has also expressed concerns over the extensive powers of the president of the newly established National Judicial Office (NJO), the central body for administering the courts. The commission noted with particular concern the NJO president’s right to transfer cases, i.e., the power to reassign any case to a court other than the one it was originally assigned to by law. This power was based on the Transitional Provisions, which stated that the rule would apply “until a balanced distribution of caseload between courts has been realized” (this clause was also among the ones overturned by the CC).

The Venice Commission stated that since the transitional character of the system is not guaranteed and since it seems impossible to establish objective criteria for the selection of cases to be transferred, it “strongly disagrees” with the system, because “it is not in compliance with the principle of the right to a lawful judge.” Disregarding this criticism, the governing majority has inserted the overturned clause from the Transitional Provisions into the Fundamental Law with almost the same wording. In addition, the transitional character of the system is abolished by the Fourth Amendment, further aggravating the violation of the principle of the right to a lawful judge.

The government is home with you

In reaction to the CC’s decision in December 2012 to abolish a law containing a restrictive interpretation of the notion of family, the Fourth Amendment introduces a narrow interpretation of the family (defined as marriage or parent-child relationship) into the Fundamental Law. This means that only those who fall under this new restricted definition will enjoy constitutional protection, and that laws discriminating between human relationships will not be considered unconstitutional in future.

At the beginning of January 2013, the CC abolished the provisions of the new Electoral Procedure Law which restricted political campaigning to the public media. The CC’s verdict emphasized that the clause ‘does not serve the aim of providing balanced information, and may even lead to the opposite result’). The Fourth Amendment introduces a very similar clause into the Fundamental Law, thereby de facto banning political advertising in the commercial media. Since the ban would also apply to European parliamentary elections, the restriction was specifically mentioned by the president of the EC as an issue of concern.

Criminalizing homelessness has been an important aim of the governing coalition. A law adopted in 2012 declared that living on public premises and storing personal property on public premises constitutes an offence punishable by a fine or confinement. In November 2012, the CC overturned the respective provision, arguing that criminalizing the status of homelessness violates the right to human dignity.

Prime Minister Viktor Orbán expressed his disapproval of the CC’s decision in parliament, and the Fourth Amendment ‘overrules’ the CC once again by introducing a new provision into the Fundamental Law that enables local governments “to outlaw the use of certain public space for habitation in order to preserve the public order, public safety, public health and cultural values.”

Due to a law adopted in 2011, most former churches lost their legal status, and a new system was set up under which religious communities are recognized as churches by parliament instead of by a court (provided they comply with certain rather restrictive requirements such as having been existence for at least 100 years internationally or for 20 years in Hungary, and the support of 1,000 citizens). While the Venice Commission asked for some of the requirements and the recognition procedure to be reviewed, the CC ruled that the recognition of religious communities by the parliament was unconstitutional.

The respective rule of the Transitional Provisions was also overturned by the CC at the same time (in February 2013). In response, the Fourth Amendment re-empowers parliament to recognize certain religious communities as churches endowed with extra rights and benefits. Thus, the amendment violates the principle of separation of church and state, and allows for discrimination against religious denominations.

According to a clause in the Fourth Amendment, the government ‘supervises the financial management’ of higher-education institutions financed by the state, and determines their financial order. The clause severely limits the autonomy of universities.

By establishing the ‘student contract,’ the government obliges students to work in Hungary for a certain period of time after obtaining their degree or to repay the costs of their studies in exchange for financing their university tuition. Critics claim that the measure disproportionately restricts the rights of students to choose their occupation freely (because students undertake a long-term obligation when signing the contract, while the state must merely “strive” to ensure adequate employment opportunities), and that it interferes with the principle of free movement of workers inside the EU.

Although the CC’s decision on the case is pending, the Fourth Amendment contains a clause under which working in Hungary for a certain period of time may be introduced as a condition for receiving financial aid to pursue studies in higher education. In other words, the government has decided once again to bypass constitutional obstacles by creating a constitutional foundation for ‘student contracts.’

The constitution is not a toy

In sum, the Fourth Amendment clearly shows that the governing majority does not respect the opinion of the CC (or that of foreign expert bodies, for that matter) on constitutional issues. Nor does the executive care about the opinion of its own citizens: The amendment was submitted by individual MPs, and therefore no preliminary public consultation was required.

But this manner of legislating undermines the stability and enforceability of the Fundamental Law, which will have serious and long-lasting consequences. As a result, the Fundamental Law may cease to qualify as a constitution guaranteeing basic rights and regulating the relationship between citizens and the state. As the motto of the recent demonstrations goes, “the constitution is not a toy” and should not be treated as one.

The article was first published in the ‘Focus on Hungary’ dossier prepared by Heinrich Boell Foundation. The legal analysis referred to in the text is available here (PDF-document, 312 KB).

Nóra Novoszádek

Nóra Novoszádek

is a legal officer at the Hungarian Helsinki Committee.