(Mar. 19, 2013) On March 11, 2013, Hungary’s Parliament approved a number of controversial amendments to the country’s constitution, the Fundamental Law of Hungary (Magyarország Alaptörvénye). The changes were adopted in a vote along party lines, with the ruling conservative coalition, which controls the legislature, holding sway. (Margit Feher & Gordon Fairclough, Hungary Lawmakers Rebuff EU, U.S.>, THE WALL STREET JOURNAL (Mar. 12, 2013).)
The reported changes to the Fundamental Law include:
- limiting the powers of the Constitutional Court, by preventing the Court from referring to its rulings prior to the entry into force of the current Fundamental Law in January 2012 and by removing its power to review substantive amendments to the Fundamental Law;
- lowering of the retirement age for judges;
- incorporating in the Fundamental Law the statutory powers of the President of the National Judicial Office (NJO), including the authority to transfer cases from one court to another;
- restricting election campaign broadcasts to only state media;
- requiring that students who are recipients of state grants stay and work in Hungary after graduation for a certain time period, or else reimburse the state for their tuition costs;
- giving preference to traditional (i.e., heterosexual) family relationships: that family is based on marriage between a man and a woman and the parent-child relationship;
- permitting adoption of laws or local actions to prohibit the homeless from living in certain parts of public areas (this is referred to by some sources as criminalizing homelessness, but the government emphatically contends the provision does not do so);
- for purposes of domestic legislation, granting Parliament the sole right to decide which religious organizations may be deemed churches;
- allowing limitation of freedom of expression in the interest of combating hate speech; and
- permitting the government to pass on to Hungarian citizens fines incurred for noncompliance with the Fundamental Law or with European Union law, in the form of special taxes rather than being payable from the regular state budget. (Hungary: Constitution Changes Warrant EU Action, HUMAN RIGHTS WATCH (Mar. 12, 2013); Q&A: Hungary’s Controversial Constitutional Changes, BBC NEWS (MAR. 11, 2013); Paul Krugman, The Conscience of a Liberal [opinion], THE NEW YORK TIMES (Mar. 1, 2013, 4:14 p.m.); Letter from Tibor Navracsics, Minister of Public Administration and Justice of Hungary, to Thorbjorn Jagland, Secretary General of the Council of Europe (Mar. 7, 2013), KORMÁNY PORTÁL [Hungarian Government website].)
Criticism of the Amendments
According to Human Rights Watch, (HRW) the amendments are a direct response to a series of key rulings handed down in 2012 by the Constitutional Court that abrogated certain problematic laws that the government had introduced. In HRW’s view, “[i]nstead of respecting those rulings, the government has reintroduced the same laws through amendments to the constitution itself and ended the court’s power to review substantive changes to the constitution.” (Hungary: Constitution Changes Warrant EU Action, supra.) HRW specificallycriticized the provision on the family, because the Court had struck down provisions in the Act on Protection of Families that had limited “family” to marriage between a man and a woman plus dependent children as being “excessively restrictive,” and the election broadcast provision, because the Court had struck down as unconstitutional legislation with the same limitation in January 2013. (Id.)
HRW also criticized inclusion of the provision on homelessness, because the Court struck down a law with the same effect in November 2012, and the provision on determination of “churches,” because in February 2013 the Court had “struck down as procedurally unfair a law that led to most religious organizations in Hungary losing their status as churches, denying them state funding, including for service provision.” (Id.)
It has also been argued that the power to transfer cases would in effect allow prosecutorial authorities to select which judges to hear certain cases. (Feher & Fairclough, supra.) HRW noted that “[p]olitically sensitive corruption cases have already been transferred by the NJO president from courts in Budapest to courts in the countryside, which have considerably less experience trying such cases and where there is less media scrutiny.” (Id.)
Before the adoption of the amendments, moreover, the Council of Europe had urged a delay in the parliamentary vote until the proposed changes had been reviewed by an international commission. Officials of the European Union and the United States had also called upon the Hungarian lawmakers to give the measures more deliberation, contending that the amendments raised concern about rule-of-law issues. (Feher & Fairclough, supra.)
In a press release,European Commission (EC) President Jose Manuel Barroso and Secretary General of the Council of Europe Thorbjorn Jagland commented that the amendments raise concerns of the EC and the Council of Europe (Venice Commission) “with respect to the principle of the rule of law, EU law and Council of Europe standards. Experts from both institutions will now make a detailed assessment of these new changes to the Constitution.” (Press Release, European Commission, Response to Hungarian Parliament’s Adoption of New Constitutional Changes (Mar. 12, 2013).)
Government Defense of the Amendments
According to Tibor Navracsics, Minister of Public Administration and Justice of Hungary, the Constitutional Court’s December 2012 annulment of several transitional provisions of the Fundamental Law was done “for formal, technical legal reasons,” because the Court assessed “that the Transitional Provisions contained rules which in fact were not transitional, but rather substantial ones.” (Letter from Tibor Navracsics, supra.) The Minister asserted that, following the Court decision, the main aim of the constitutional amendment proposal “is to formally incorporate these rules … into the text of the Fundamental Law itself” and to incorporate not only the annulled articles, but the Transitional Provisions in their entirety, which is why the proposal was “to a great extent, merely a technical amendment to the Fundamental Law, and most of its provisions do not differ from the former text of the Transitional Provisions or they are directly linked thereto.” Hence, he contended, “the significance and novelty of this Proposal should not be overestimated.” (Id.)
The transplanted provisions include the ones on churches, the competences of the Constitutional Court, and the NJO’s power to transfer cases. In regard to the latter, the Minister stated that it is substantially the same as the stipulation in the Transitional Provisions, but with the “additional guarantee” that “not any cases, but only cases (groups of cases) to be defined by a cardinal Act may be referred to a court in deviation from the general rules of competence,” and that therefore the provision does not affect legal guarantees made to the Council of Europe. (Id.)
The Minister addressed the subject matter of new provisions as well. In regard to the retirement age of judges and prosecutors, for example, he commented that no such official may serve who is older than “the general retirement age,” as set forth in the Constitution but without any specific age; that specification of the age can be set forth in a cardinal act; and that a bill on the subject, in which “the general retirement age would be gradually and proportionately reduced,” has been submitted to Parliament. (Id.)
The 2012 Constitution and Amendment Procedures
The current Fundamental Law, which came into force in January 2012, is based on a bill submitted to the Parliament by the governing parliamentary factions, the Fidesz and KDNP parties. (Legislation of the Fundamental Law of Hungary, House of the Nation [the National Assembly, Hungary’s Parliament] website (last visited Mar. 12, 2013); The Fundamental Law of Hungary (adopted Apr. 18, 2011, issued Apr. 25, 2011, in force on Jan. 1, 2012), KORMÁNY PORTÁL; Magyarország Alaptörvénye, [Fundamental Law of Hungary], National Legislation Collection website (last visited Mar. 13, 2013).)
The process for constitutional amendment is set forth in article S, paragraph 2, under the part on “Foundation” of the Fundamental Law. It stipulates, “[t]he adoption of a new Fundamental Law or any amendment of the present Fundamental Law shall require a two-thirds majority of the votes of all Members of Parliament.” (The Fundamental Law of Hungary, supra.) Paragraph 3 states, “[t]he Speaker of the House shall sign the Fundamental Law or the amended Fundamental Law and send it to the President of the Republic. The President of the Republic shall sign the Fundamental Law or the amended Fundamental Law and shall order its publication in the Official Gazette within five days of receipt.” (Id.)
The government coalition, comprising the Fidesz Party of Prime Minister Viktor Orban and the Christian Democratic People’s Party (Kereszténydemokrata Néppárt, or KDNP), holds two-thirds of the parliamentary seats. This virtually guaranteed passage of the amendments under the amendment process. (Q&A: Hungary’s Controversial Constitutional Changes, supra.)
Note on the National Judicial Office
The NJO (Országos Bírósági Hivatal) replaces the former, collective decision-making body, the National Council of Justice, “with a one-person decision-making mechanism.” The duties of the NJO President are set forth under article 65 of the Court Organization Act and include fulfilling the tasks at the central level of court administration, management of the courts’ budgetary affairs, and supervision of the administrative activities of the presidents of regional courts of appeal and tribunals. (Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary (Nov. 28, 2011), Venice Commission website; Opinion on the Acts of Parliament on Courts, Judges and the Prosecution Service in Hungary (Feb. 2012), Hungarian Helsinki Committee website.)