Most of the “temporary provisions” of the Hungarian Constitution are scrapped by the Constitutional Court
Yesterday just before noon came the news that the Constitutional Court had annulled a number of so-called “temporary provisions [átmeneti rendelkezések] related to this Fundamental Law” that were specified in the closing sections of the new constitution.
Almost all the newspapers hailed this as the death of Fidesz’s plans to introduce registration as a prerequisite to citizens exercising their right to vote. But although the final outcome might indeed be the repeal of the law, the Constitutional Court’s ruling was not on the registration issue per se.
The ruling addressed not President János Áder’s request to the Court to investigate the constitutionality of the registration requirement but a request of the ombudsman, Máté Szabó, to take a look at the “temporary provisions.” Upon closer scrutiny, about two-thirds of these provisions were not temporary at all. Including in the new constitution the right to enact “temporary provisions” was only a Fidesz trick. They were smuggling all sorts of unconstitutional laws into the constitution itself.
The majority of the Court decided to annul the questionable provisions retroactively. Five Fidesz appointees–István Balsai, Egon Dienes-Oehm, Barnabás Lenkovics, Péter Szalay and Mária Szívós–dissented.
From reading the law on “temporary provisions” in the collection of Hungarian laws it becomes clear that a huge part of the law has been scrapped, starting with the preamble entitled “On the transition from communist dictatorship to democracy.” In it there is a long list of sins of the communist dictatorship for which the two-thirds Fidesz-KDNP majority made today’s Hungarian Socialist Party responsible. In addition, the law makes it clear that these crimes have no statute of limitations. In plain language, the current government has the legal right to prosecute politicians of the main opposition party for crimes committed, let’s say, by the Rákosi regime.
Article 11 (3) and (4), which allows the president of the National Judicial Office to transfer cases to courts of her choosing, was also scrapped. So were Articles 12 and 13 that deal with the early retirement of judges and prosecutors and Article 18 that states that the president of the Budgetary Council is appointed by the President. Article 21 is also gone; it allows parliament to decide the status of churches. Article 22, which prescribes that only those can ask for remedy from the Constitutional Court who have already exhausted all other legal possibilities, was also found questionable. Article 23 (1) and (3)-(5) is about electoral registration and it was annulled.
Article 27 is a tricky one; it concerns the functioning of the Constitutional Court. It is a kind of amendment to Article 37 (4) of the Constitution that reads: “As long as state debt exceeds half of the Gross Domestic Product, the Constitutional Court may, within its competence set out in Article 24 (2)(b-e), only review the Acts on the State Budget and its implementation, the central tax type, duties, pension and healthcare contributions, customs and the central conditions for local taxes for conformity with the Fundamental Law or annul the preceding Acts due to violation of the right to life and human dignity, the right to the protection of personal data, freedom of thought, conscience and religion, and with the rights related to Hungarian citizenship. The Constitutional Court shall have the unrestricted right to annul the related Acts for non-compliance with the Fundamental Law’s procedural requirements for the drafting and publication of such legislation.” Article 27 of the “temporary provisions” actually negates this right.
Article 28 (3) allows the government to pass regulations for local governments if they neglect to regulate something prescribed by law. Article 29 also made waves when it was adopted because it states that new taxes can be assessed in case the European Court fines Hungary because of the government’s actions that were not in line with European Union law. Article 31 (2) simply states that these temporary provisions were accepted on the basis of the old and new constitutions. And the Court also scrapped the last article (32) that declares April 25 as a memorial day of the new constitution. This last point might seem trivial, but it is in line with the reasoning of the Court. Declaring a special day for the celebration of the new constitution is certainly not a temporary measure.
The judges’ decision was not based on the constitutionality of the temporary provisions. They simply declared that these provisions were not temporary. Fidesz’s answer was immediate. József Szájer, who boasted that he wrote the constitution on an iPad on the train between Budapest and Brussels, announced shortly after noon today that since the Court didn’t examine the constitutionality of these provisions the government is planning to incorporate them straight into the new Constitution. The Constitution that was supposed to be the basic law of the land for centuries to come has already been amended three times and certainly will be many more times in the future. Every time because the political interests of Fidesz-KDNP so dictate.
Szájer is apparently a talented man and very familiar with constitutional law. In his interpretation the Constitutional Court didn’t interpret the law properly. According to him, the reference to the “temporary provisions” was put into the final article of the constitution because the framers always considered these provisions part of the Constitution itself. Well, Szájer might be a legal brain, but then why did they call these provisions “temporary”?
Antal Rogán, the whip of the Fidesz parliamentary caucus, seconded Szájer and also announced that in February when Parliament reconvenes they will fix the problem. Fixing means that he will gather the members of the caucus and tell them that here is the list of new amendments that they will have to vote on. The voting machine works flawlessly.
On Monday we can expect the Court’s decision on the registration issue. If the Court again finds only formal problems with the law, then the Fidesz-KDNP government can simply incorporate Article 23 (1) and (3)-(5) dealing with registration into the Constitution. But if the objections are more substantive and the judges find the law itself unconstitutional, then the Fidesz brains will have to work a little harder.
Máté Szabó as the sole ombudsman appointed by the current government has been a pleasant surprise. I think a lot of people expected him to be only a tool for Viktor Orbán’s designs. He must be a disappointment and Orbán must have cursed his bad judgment in allowing Szabó to be appointed ombudsman. I’m glad that Szabó turned to the Constitutional Court concerning this issue because without his intervention the world would not be as informed about the Orbán government’s undemocratic rule and its transgressions of the laws of the land. These “temporary provisions” were adopted one by one over time; only when one reads the whole list does one become painfully aware of the undemocratic nature of this regime.
Meanwhile, I was surprised to hear that the tables displaying the Basic Law have disappeared from public buildings. Central and local government offices were instructed by the government to set up a table in a prominent place so admirers of the new constitution could sign a “guest book” and could also purchase either an ordinary or a deluxe edition of the Basic Law. A person had to be hired to mind the table. Someone the other day noticed that the tables had disappeared.
Indeed, sometime in September the government officials running these offices were ordered to remove them. The mayor of Hajdúdorog told one of the reporters of ATV: “We had a room where people could take care of their business concerning trash removal. There was a table there already, so we put a tablecloth and the Basic Law on it. If anyone wanted he could look at it. I may add that only 1% of people over 18 wanted to buy the simple edition and no one was interested in buying the deluxe edition.” Now the table is gone. Imre Kerényi, who was the brain behind the Table of the Basic Law and to whose career I devoted a whole post, explained that the idea is not dead. It was planned this way.
It seems that this new and wonderful Basic Law has very serious problems, among them that the people don’t have a particular affinity to it. The lack of interest was too embarrassing. It was better to remove table and all. And I predict that the Basic Law’s aura will only decrease thanks to the games the Orbán government is playing with something as important as the constitution of the country.