The Hungarian Socialist Party’s critique of the latest amendments to Hungary’s new constitution

On February 8, Antal Rogán and Péter Harrach, leaders of the Fidesz and KDNP factions respectively, submitted the Fourth Amendment to the Basic Law of Hungary (proposal # T/9929). The overwhelming majority of representatives from the governing parties signed the document. The proposal was penned in the name of all majority MPs. The Fourth Amendment will be effective one month after it was passed.

Hungary's Basic Law was supposed to be carved in stone

Hungary’s Basic Law was supposed to be carved in stone

This amendment is characterized by, in addition to a few minor corrections in wording intended to improve coherence, the current administration’s desire to further destroy the constitutional limits for the exercise of power.

Through this proposal, in addition to further curbing the powers of the Constitutional Court, the Fidesz-KDNP coalition is now including all elements in the country’s constitution which were, in part, declared unconstitutional by the Constitutional Court or were featured in the Temporary Provisions of the Basic Law of Hungary.

This document summarizes the most important elements of the Fourth Amendment. However, first we must briefly familiarize ourselves with the Constitutional Court’s 45/2012 (XII/ 29) decision regarding the unconstitutionality of certain sections of the Provisions of the Basic Law of Hungary.

At the initiative of the Commissioner of Fundamental Rights, the Constitutional Court opined that a significant portion of the Temporary Provisions was unconstitutional. The Court stated that the Temporary Provisions cannot be accepted as a part or an amendment of the Basic Law with regards to the document’s themes and content. Furthermore, it was decided that the Provisions, considering the time span which they cover, undermined the Basic Law’s uniformity and structure.

The Court struck down the following provisions:

The preamble which condemns MSZP, the Hungarian Socialist Party

Article 1 –  On decreasing the pensions of “guilty persons”

Article 2 – On the inability of communist crimes to expire

Article 3 – On the establishment of the Committee of National Memory and the publication of communist documents

Article 4 – On the duty of communist leaders and public actors to tolerate all opinions formed about their persons

Article 11, paragraphs (3) and (4) – On the ability of the president of the National Judicial Office (Orszagos Birosagi Hivatal – OBH) and the Chief Prosecutor to move cases to other courts as they see fit

Article 12 – On the deadlines for judges’ mandatory retirement

Article 13 – On the deadlines for prosecutors’ mandatory retirement

Article 18 – On a member of the Budgetary Council being the President-appointed chair of that body

Article 21 – On the National Assembly’s ability to regulate and determine recognized churches in a cardinal law and determine recognized nationalities

Article 22 – On the definition of a constitutional complaint

Article 23 paragraphs (1) and (3)-(5) – On setting the date for the election of local government representatives for October 2014 and laying down the preliminary electoral rules

Article 27 – Further restricts the Constitutional Court’s competencies by extending limitations to periods when the national debt threshold is not surpassed.

Article 28 paragraph (3) – The office of the government can turn to the courts if a local government fails to make decisions in areas defined by law. The office of the government is even allowed to make up for the absent resolution.

Article 29 – A special approval is necessary to fulfill the state’s payment obligations arising out of unconstitutional or unlawful legislation.

Article 31 – On making the Temporary Provisions part of the Basic Law

Article 32 – On making April 25 Basic Law Day

While it’s important to note that the Constitutional Court nullified elements of the Temporary Provisions due to form-related constitutional issues, the body quoted several previous decisions, emphasizing that “stepping over the boundaries of legislation results in unconstitutionality” and that “formal unconstitutionalities are, coincidentally, violations of the standards for the rule of law.”

The Constitutional Court indicated that it could alter the interpretation applied in previous exercise of its competencies, namely that it did not subject the contents of the Basic Law to review (because that would result in interfering with the jurisdiction of a constitutionalizing power). However, “procedural, formal, and public law requirements are not the only factors of constitutional legality – there are also content-related criteria. The standards for a democratic state ruled by law include not only values, principles, and rights discussed in international agreements and accepted by the democratic community, but also so-called peremptory norms. In certain cases the Constitutional Court is allowed to examine the uninhibited application of the constitutional guarantees and values of the rule of law.”

It is completely obvious that the formal necessity for the inclusion of the Temporary Provisions in the Fourth Amendment of the Basic Law and the Constitutional Court’s decisions which defied the government’s objectives overrode the symbolic steps accompanying the passage of the Basic Law.

We will now introduce the alterations without political evaluations.

1. The amendment states that the bases for familial relations are marriage and the parent-child relationship.

When reviewing the currently applicable Article L of the Basic Law, the Constitutional Court decided, after examining decision 43/2012. (XII. 20) on articles 7 and 8 of Act CCXI of 2011 concerning the protection of families, that “by considering marriage as a value […] the legislator –  while accepting the right of the individual to pursue happiness within a relationship of their personal preference, keeping in mind social trends and needs and the transformation of a traditional family configuration–does not exclude other chosen forms of relationships, which are similar to marriage, from the protection of the law. The duty to protect institutions cannot hinder the extension of rights in an open and democratic society, otherwise this would not be compatible with the spirit of the Basic Law.” (ABH 2010, 194, 208)

According to the Court, the constitutional protection of families extends to both marriage and socially (emotionally) based relationships. Previously the Constitutional Court decided that Act CCXI of 2011 defines “family” too narrowly. The currently applicable Basic Law contains no indication that partnerships with common goals, mutual care, and long-term economic and emotional commitment do not enjoy the protection of the law. If the legislator wants to create laws which regulate the rights and duties of family, he or she cannot do so at the expense of those who wish to form families based on alternative economic and emotional relationships and cannot diminish the legal status of such relationships. Furthermore, the state’s duty to protect the institutions of family and marriage cannot lead to direct or indirect discrimination of the children due to their parents’ relationship. As such, the Constitutional Court decided that compared to the Basic Law, Act CCXI’s wording was too restrictive and struck down its Article 7. In the justification, the judges cite the practice of the European Court of Human Rights in Strasbourg. In 2010, that body declared that the existence of family is primarily factual: if people live together, they can be considered family despite their legal status and/or gender.

The Constitutional Court also decided that from now on the fundamental laws of inheritance will be guided by the Civil Code. Registered couples are to enjoy the same inheritance privileges as those who are officially married. Act CCXI, on the other hand, conveniently ignores such a specification. The laws governing inheritance have to be precise and clear. Because of this, the Constitutional Court decided that the contradictions contained in the review provisions are too significant for dissolution through executive legal interpretations, and as such, they were sure to violate the notion of legal certainty. The court subsequently threw out Article 8 due to incoherence between the Civil Code and the Basic Law.

The new Civil Code awaits a final National Assembly vote as proposal T/7971. On December 17, 2012, the Fidesz-KDNP coalition accepted a series of legislative amendments which make substantial differences between marriage and cohabitative romantic relationships in terms of family law. Romantic partnerships will be part of the “BOOK OF OBLIGATIONS” (“Kötelmi könyv”) instead of the “BOOK OF FAMILY LAW” (Családjogi könyv). With this, a cohabitative romantic partnership will simply be a contractual relationship. The new Civil Code does not deal with registered cohabitative partnership at all. By the force of law, such a relationship will only carry any sort of legal meaning if the relationship has been in effect for one year and the couple has at least one child together.

The Fourth Amendment to the Basic Law constitutionalizes families as ties based on marriage and the parent-child relationship. Partners cannot form a family even if they have a common child. Their familial relations can only be recognized separately with their own children.

2. The amendment adds Article U, which cements communist crimes not simply in the Preamble but in the very body of the Basic Law.

Basically the complete contents of the Temporary Provisions, which were struck down by the Constitutional Court, have been lifted into the fundamental principles of the Basic Law with minor structural changes. These include, in addition to the list of crimes, the extension of punitive measures, and the stigmatization of criminals, the establishment of the Committee of National Memory (Nemzeti Emlékezet Bizottsága). This body is supposed to uncover the past and publish related documents.

According to the text, the Hungarian Socialist Workers’ Party (MSZMP), its legal predecessors, and other associated political organizations are criminal in nature. Naturally, the Hungarian Socialist Party (MSZP) is also mentioned: “as an heirs to unlawfully accumulated wealth, organizations which emerged as legal successors to the MSZMP during the democratic transition also share the responsibility of their predecessors.”

Paragraph (3) of Article T of the Basic Law states that a legislation cannot contradict the Basic Law. The Basic Law’s Preamble records that the Basic Law is the foundation of legal order in Hungary. Paragraph (1) of Article R reaffirms this with a normative rule and states that the Basic Law is the basis for the country’s legal system. According to paragraph (2) of Article R, the Basic Law and legislations are obligatory for all.

3. This means that any legislation in the Hungarian legal system can order the prosecution of the leading Leftist party due to its shared responsibility for communist crimes. The amendment creates a foundation for the provisions of the cardinal law concerning churches in a manner which utilizes parts of the discarded text of the Temporary Provisions.

The National Assembly continues to have the exclusive ability to recognize churches who will enjoy the ability to cooperate with the state. Recognition is dependent on conditions, but, according to the proposal, membership and historic traditions are not among these.

Constitutional Court decision 161/2011. (XII. 20.) destroyed the first church law due to its incompatibility with public law. The governing coalition then proceeded to record the very same concepts in the §21 of the Temporary Provisions. This was also voided by the Court. Consequently, the constitutional foundations of the effective church law became questionable. The Venice Commission found fault with the notion that the only body which can recognize organizations as churches is the National Assembly. With this configuration, there is no chance for legal remedy in case of an unfavorable parliamentary decision. The mechanisms used for determining recognition were also denounced.

To prevent further critiques, the governing parties recorded the cardinal structure for church laws in the Basic Law itself.

The Constitutional Court has already dealt with the complaints of the unfavored religious communities twice. A decision in the matter can be expected on February 11. Even if the Court will opine that the fundamental provisions of the church law are contrary to the Basic Law, the amendment would render this situation hopeless for smaller religious groups.

4. Media campaigns in public service media are included in the amendment using the wording featured in an unconstitutional (passed but not enacted) electoral legislation, while a cardinal law may limit electoral campaign in commercial media.

The amendment is an obvious response to the Constitutional Court’s 1/2013. (I. 7.) decision. This document declared the unconstitutionality of the electoral law accepted in the National Assembly on November 26, 2012. The Court found several faults with the legislation. Its resolution outlaws the controversial notion of preliminary voter registration. The justices called attention to the fact that the state exists to protect institutions, and as such it cannot plant unconstitutional hurdles in front of citizens to restrict their right to vote. Registries currently available to the state were deemed sufficient for the unhindered execution of the electoral process by both the Constitutional Court and the electoral law.

The Constitutional Court decided to abolish a ban on publishing or broadcasting political advertisements from electoral campaigns in media. The Court considered this ban a serious breach of the right to a political opinion during the course of an electoral campaign and considered it a grossly disproportionate measure. The 48 hour pre-election moratorium on political ads and a ban on political ads in movie theaters was also disfavored by the justices.

In response, the amendment implemented these changes on the constitutional level.

5. The amendment limits the right to free speech, as it does not allow free speech to violate the dignity of others.

It creates a basis for the new anti-hate speech rule in the Civil Code – which would have been unconstitutional. “The right to free speech cannot be utilized to demean the Hungarian nation and national, ethnic, racial, or religious groups. Members of such communities are entitled, as prescribed by law, to take their case to courts due to undignifying speech against the community.”

The Hungarian legislative owed a law on hate speech to the people. The left was unable to gain sufficient parliamentary support for its initiatives in the area.

At the same time, this document limits freedom of speech so severely that it is able to completely negate that right. In a state ruled by law, the only acceptable form of restriction targets communications which, in terms of consequences, pose a clear and direct threat to a social group. On the other hand, similarly to German dogmatics, the offended group has to be defined by a prominent feature of human personality and its size has to be sufficiently small. For this reason, war propaganda, hate-mongering against ethnic, racial, or religious groups, and declarations relating to the inferiority of any one group which contain discrimination, hostility, calls to or support for violence must be banned.

6. The financial independence of institutions of higher educations will be abolished. The amendment creates the foundations for obligating graduates to stay in the country.

According to regulations, the economic management of institutions of higher education are determined by the government through law. Management is then supervised by the executive. The law can mandate students to work domestically in certain fields for a predetermined amount of time.

In decision 32/2012. (VII. 4.), the Constitutional Court discontinued the practice of higher education contracts. The Court stated that the unconstitutionality lied in the fact that the executive was unable to regulate mandatory domestic employment for students at universities.

The day after the decision was made, the governing parties amended the law on higher education. Because the amendments were followed by wide-scale protests and civil disobedience among high school and university students, the government reacted by including the restriction in the Basic Law.

The amendment completely abolished the economic autonomy of institutions of higher learning. The state’s attitude towards higher learning focuses not on encouragement but punishment.

7. Local governments “strive” to provide the homeless with shelter. At the same time, the amendment allows for the lawful removal of the homeless from public spaces via policing tools. Local governments will be able to declare living in public spaces unlawful.

The events leading up to decision 38/2012. (XI. 14.) concerning the sanctioning of the homeless are the following.

Máté Kocsis (Fidesz), chair of the National Assembly’s Committee on Police and National Security and the mayor of Budapest’s District VIII initiated measures to combat homelessness with misdemeanor statues along with several other Fidesz representatives. According to their legislative proposal (also supported by Jobbik members), the “ban on living in public areas as a lifestyle” took effect on December 1, 2011. Its text states that “146/A § (1) Those who repeatedly violate the ban on living in public areas or who store their belongings in a manner suitable for such a lifestyle can be incarcerated or fined up to HUF 150,000. (2) The misdemeanor identified in paragraph (1) can only be considered as repeatedly occurring if the accused person has a conviction in a similar case in the last 6 month period. (3) The misdemeanor recorded in paragraph (1) belongs to the jurisdiction of the courts. (4) The sanctions determined in paragraph (1) cannot be applied if the city’s local governance does not implement care for the homeless.”

This was also recorded in a new misdemeanor legislation which took effect on April 15, 2012. The Constitutional Court’s decision destroyed this provision.

The Constitutional Court’s notable findings in the case:

The cause and the intended subject of legal protection by the legislator cannot be precisely identified in the debated notion of this misdemeanor.

  • With this action, the legislator deemed living on the street – being homeless – illegal. For the homeless, their situation is a grave crisis which occurred due to several factors which are very rarely intentional. The homeless have lost their homes and have no opportunity to solve their habitation problems. As such, due to a lack of a real alternative, they must live in public areas.
  •  The social law does not interpret living on the street as unlawful behavior. It records aiding those living in public areas as an issue which must be handled by local governments.
  • The cause for the matter to be classified as a misdemeanor cannot be identified. On its own, the fact that someone lives in a public space does not violate the rights of others, cause damages, does not make using the public space dangerous, or does not endanger public order.
  • According to the stance of the Constitutional Court, neither the removal of the homeless from public areas, nor the encouragement to make use of social services can be considered enough of a cause to declare homelessness as a misdemeanor.

The issue’s status as a misdemeanor does not clarify norms.

  • With regards to the fact that the provision aims to punish not a behavior ( an act or a failure to act) but an objectively existing life situation in connection which guilt is not interpretable, it basically creates an objective responsibility which is separate from the subject.
  • The inner area of public spaces is clearly defined, and it allows for the authorities’ arbitrary use of of legal interpretation.
  • When a homeless person’s responsibility is waived is indeterminable, as this hinges on whether the local governance took the necessary steps.

8. The electoral rules and rights and the governments of nationalities are regulated by the Fourth Amendment in a manner based on the voided passages of the Temporary Provisions.

9. The amendment allows for the legal basis of the policing and disciplinary competencies of the Speaker of Parliament. It provides room for the Guard of the National Assembly in the Basic Law.

The law on the National Assembly provides the Speaker with considerable disciplinary and policing powers. When debating this issue and after the law actually took effect, it had to be pointed out that these measures significantly limit freedom of speech for the representatives of the National Assembly. At the same time, this is a highly ineffective tool and is not utilized against hate speech in Parliament.

The Speaker can exercise these new competencies through a parliamentary guard. This initiative is not directed at securing the National Assembly. It seems as if this is more a tool to silence political opposition. MSZP was forced to act against Speaker László Kövér’s biased behavior several times.

The constitutionally mandated creation of the Guard means that an organization with policing capabilities was created which owes no responsibility to the National Assembly.

10. The amendment alters the powers of the President of the Republic. The cause of this is the severe limitation of the Constitutional Court’s powers.

The President is only allowed to refer a Basic Law amendment to the Constitutional Court due to violations of procedural rules. The Basic Law’s contents cannot be revised by the Court. This provision is related to the restrictive changes made to the Constitutional Court’s powers.

11. Changes in the role of the Constitutional Court

The Fidesz-KDNP coalition’s alteration of the body’s function is not accidental. The Constitutional Court is the only checks and balances mechanism which can inhibit its legislative ambitions. When the Court struck down on several of the Temporary Provisions, it became obvious that in certain cases it can alter the contents of Basic Law amendments. As such, it was no longer only a body which could intervene when formal or procedural violations occurred. A scenario in which it could exercise these powers could occur if the Basic Law would be amended in a manner which contradicts its own contents. In addition to the above mentioned arguments, Istvan Stumpf’s following statement also refers to this concept.

Stumpf: “As long as a norm altering the Basic Law – through interpretation – can become part of the Basic Law, the Constitutional Court cannot subject the contents its order for inclusion to a constitutional review. If such a tension cannot be resolved within the system provided by the Basic Law, the Constitutional Court must declare its unconstitutionality.

My perspective is that this could occur especially when the inclusion of a provision which was previously deemed unconstitutional by the Constitutional Court would cause unresolvable tension within the Basic Law’s system. In these cases, the Constitutional Court already determined that the given provisions signify  violation of the Basic Law. Inclusion of these in the Basic Law could only satisfy the formal criteria for inclusion, but they would be unable to become integrated, coherent elements of the Basic Law. The unresolvable tension would not mandate a new examination into such a matter, because the Constitutional Court already subjected that to a constitutional review. In this regard the norm to be included was already declared to be unconstitutional by the Constitutional Court and thus unchangeably contradicts the Basic Law.”

The implicit substantive requirements for the order for inclusion were not yet enforced by the Constitutional Court. The resolution, though it refers to the above mentioned items, does not subject those to constitutional review, because determining partial public law invalidity made this unnecessary. In this vein, our parallel analysis continues on the path of the Constitutional Court, but it also points beyond the Court’s findings, highlighting the possible courses of future events.

The following can be considered as troublesome limitations:

  • It creates a deadline for the Constitutional Court for judicial reviews initiated by judges.
  • The Court cannot examine or destroy legislation which is not in close connection with the provision mentioned in the referral (one of the failures of the electoral law was that the Constitutional Court extended one of its powers according to prior practice)
  • The Constitutional Court can only review the Basic Law and its amendments in terms of formative and enactment-related procedural respects defined in the Basic Law. Preliminary review can be requested by the President of the Republic, while post-enactment review can be requested, in addition to current initiators, by the Chief Justice of the Kuria and the Chief Prosecutor.
  • As prescribed by a cardinal law, the Constitutional Court can hold hearings for the person responsible for drafting the legislation and the legislation’s initiator or their agent. It can also attain their opinions if the matter affects a large number of people. This part of the procedure is public.

The amendment takes the destroyed limitations the Temporary Provisions placed on the Constitutional Court and places them into the Basic Law. According to this, as long as the national debt exceeds half of the gross domestic product, the Constitutional Court can only review laws (normally within its jurisdiction) on matters of the central budget, the state spending, central forms of taxation, benefits and aids, duties, and the central conditions for local taxation in terms of their Basic Law compatibility in connection with the right to life and human dignity, the freedom of religion, and rights  in connection with Hungarian citizenship. It can only void laws in these cases as well. According to the rule introduced by the amendment, this limitation on the Constitutional Court will remain in place for laws passed during this period even after the conditions existing under the current level of national debt are no longer present. In short, laws passed by the Fidesz-KDNP coalition can never be reviewed.

Constitutional Court decisions made before the acceptance of the Basic Law cannot be considered by the Court during the interpretation of the Basic Law.

This does not simply mean that the Court cannot rely on its previous findings. This can contain a notion that the body can distance itself from its previous decisions, e.g. the constitutional requirements for the rule of law. As an example, we can mention that the Court defined legal certainty as a necessary element of the rule of law. An imminent part of this is that prior to a law’s taking effect, a right cannot be revoked, a duty cannot be retroactively assigned, or it cannot make a previously mandated duty more severe. In this new interpretation, it is possible – in accordance with the governing parties’ previous practices – that retroactive legislation could be utilized in certain instances.

12.  The OBH chair’s election, which was regulated by a law previously, will now be included in the Basic Law.

13. The amendment records the OBH chair’s an the Chief Prosecutor’s right to assign cases to courts with other jurisdictions.

This is an element which plainly violates the right to a lawful judge. It was heavily criticized by the Venice Commission. The Constitutional Court previously eliminated these passages from the Temporary Provisions. The National Assembly altered the text of this document by stating that a cardinal law will determine the types of cases for which this right will apply; all in order to ensure the right to an expedient trial and to ease the case load for courts.

14. As long as the national debt is over half of the gross domestic product, if the Constitutional Court, the Court of the European Union, or other judicial or executive organization subjects the state to a payment obligation for which the funds in the central budget are insufficient, a contribution MUST be determined in a manner exclusively aimed at financing the common necessities of such an expense in name and content.

It is a distinct possibility in several instances, that Hungary will incur penalties or reimbursement obligations due to the decisions of the European Court. As for the Constitutional Court’s recent decisions in this field, we can highlight the unconstitutionality of the forced retirement of judges. According to the legislative proposal submitted by the government (the general debate of which is still ongoing in the Parliament), the retired judges are entitled to 12 months compensation if they do not request the restoration of their legal statuses. There are definitely no sums allocated for this in the budget. The source of funding for this then becomes questionable. It is entirely possible that this will be the first instance when they burden the population with the financial costs of enacting unconstitutional and illegal legislations.

The final provisions of the fourth Amendment adopt expired or already executed provisions without criticism. With its unacceptable legislative solutions, the Fidesz-KDNP coalition is already damaging the symbolic significance it established and nurtured by passing the Basic Law.

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39 comments

  1. I appreciate the efforts of the Socialists to analyze the new amendments to the Fidesz-constitution (which was supposedly carved into granite, yet this will be its fourth amendment within a year and a half).

    But this text would have benefitted greatly from the involvement of an English-speaking constitutional lawyer and a native-speaker editor (who could have edited the text from the point of view of a layperson).

    The original in Hungarian must have been written by lawyers who were trying, but faling to be understandable, and the resulting Hungarian text was then “officially translated”.

    Not the meaning was translated and placed into the English-speaking con law discourse, but the words and the grammatical structure (as though this was a standard language examination in Hungay – at language exams in Hungary verbatim translation is emphasised).

    In addition, the introduction is very weak, it could make sense only to those who closely follow Hungarian constitutional law developments (for example do you know what the Temporary Provisions were and what were their significance?) and perhaps who also studied some constitutinal law, but they, too, would be asking why basic terms such as ‘override’ aren’t used?

    So way more efforts are needed to counter Fidesz’ road shows and foreign political wheeling-dealing..

  2. I can’t pretend to understand most of that, but the hasty creation of a new constitution and the constant tinkering with it again emphasises the extreme need for a united opposition movement in Hungary.

    Such a united opposition should have as it’s first aim the annulment of this absurd constitution and the temporary reestablishment of the old one. To be immediately followed by multi-party/interest groups, nationwide, consultations leading to the development of a new constitution – a referendum to approve that constitution and then new national elections. A ‘government of the experts’ would be appointed to run the country between the two elections.

    This would require no political agreement between the opposition parties/groups, other than considering the current constitution illegal, resolving to create a new (broadly supported) constitution, and working together to run the country for the year (or two) the process takes.

    Surely, even in the Hungarian political óvoda, this much is possible?

  3. London Calling!

    Yes – pretty impenetrable legalese. I hope it’s more understandable in Hungarian.

    I’m not sure that this is very helpful, for example, to the electorate, who will see it – if they understand it – as pure polemic.

    Whilst I know it is wishful thinking – and in the absence, for example of a second house like the House of Lords in England, which has a legal mandate – that the original constitution should have been submitted to the EU for a legal opinion. Or a friendly country’s constitutional faculty – even England’s! (I think the Socialists would have gained more if it had been a third-party analysis; and more coherent!)

    The mess of pottage that is the constitution is so full of holes – and breaches EU human rights’ legislation – and ties the population into the Roman Catholic ethos which refuses to acknowledge modern times, and even discriminates against ‘civil partnerships’ (forget any mention of same-sex marriage!)

    You don’t have to be a lawyer to understand this – it’s all there on Eva’s blog.

    And as has been recognised internationally (Nato? – (strange!)) – how can you possibly make ‘homelessness’ illegal? What a callous State.

    So I don’t think much has been gained by the Socialist’s analysis.

    No, not much.

    Regards

    Charlie

  4. @WRE – Translator here. I agree with some of your comments, but I do have to point out a few things. I will avoid the personal aspects of your remarks. For starters, the author’s aim was not to capture the hearts and minds of the general public. This was a highly specialized text (which I tried to simplify as much as I could in the time I had). Second, the problem here is not necessarily a “language gap.” It’s more of a “mindset gap.” I think this text reflects the nature of Hungarian legal discourse pretty well. It definitely does not translate well, but this analysis was written using the aesthetics of Hungarian legal discourse. Could it be done in simpler terms? By G-d, yes. If you can swing that for me, please, HOOK IT UP. Finally, I think that Fidesz is purposefully making its language oblique. Just take a look at the quote from Stumpf in this article. Break that down in terms of meaning and then tell me how any of that is supposed to make sense to anyone specializing in American constitutional law.

    Please note: a translator is just a translator. I can’t make a text into something it is not.

  5. Never mind the translation, if it is hard to fathom, then it is clearly the original’s fault. But its effect on the country and the legal “system” is pure horror of horrors.
    These bastards have messed up and uprooted some of the most basic common sense legal thinking honoured for centuries.Clearly they are on the march against not only common sense, but the entire edifice of the enlightenment. Back into the middle ages, that is what they want: catholic church overlordship above all hearts, minds, press, society. Forget liberty, forget developement, and forget being part of the world. They are doing to society what they already have done to the economy: disaster.

  6. translator – please accept my apologies on behalf of the HS community for any offence caused (inadvertently, I’m sure) by WRE. We all know just how hard it is to translate, even non-technical stuff, from Hungarian into meaningful English, so we are grateful for any translation (see my previous posts!).

    I think part of the problem here is that there was no preamble to the piece. I was some way into it before it dawned on me that this wasn’t one of Éva’s usual posts, and that it must have been written by someone else (I’m afraid it didn’t even occur to me that it had also been translated). Normally when Éva blogs things from other authors she introduces them and gives a brief explanation of what it is we’re about to read. I can only assume that pressure of time meant that she wasn’t able to do that this time.

    Had there been the usual preamble, I’m sure WRE’s comments would have been more muted – and I might have struggled a little further with it before admitting defeat!

  7. Am I missing something here? We are having a conversation about how adoquate the translation of the new Hungarian constitution is? Well, put t that way, it was so badly thought out, it was so swiftly typed out on an iPad, approved with such urgency that even those who passed it in its original form cannot comprehend it, and have to alter it in order to even make sense to them, and serve their purpose. Let’s have a conversation about the content that cannot even support their supporters. Let’s not forget that those who threw it together were lawyers… lawyers who supposed to manage the country. It is a joke. WHat happened to the shrines at each district with its guards, and table that supposed to show the average Hungarians the “embalmed” version of Fidesz’ masterpiece? Also, will they shred all the old copies they printed by now or they will print a New edition? Can those with the original copy will get a free replacement or this will be the 0.4 version?

  8. WRe here. Translator, noted, thanks for your reply. What I believe was needed beyond translation was editing. This function does not really exist in Hungary (people in publishing will say it does, but in fact most books get printed as produced by the author), but this is exactly the type of text that should have been edited.

    Hey, I can rewrite it (the first couple of paragraphs), though I am not a native speaker and don’t really have time for that, but I will try to spend some time on it by the late afternoon (CET). It will not be a translation (since I can only assume what the original text was) but a redrafting.

    Anyway, the idea was good, efforts must be appreciated, but it is just a reminder that to get effect (get the biggest bang for your buck) one needs to do more.

  9. @Paul No harm done. Thank you for your kind words. Süsü rocks.

    @WRe I completely agree. I would love to have these editing options, but there are no resources for this.

    All I’m saying is that this is the rhetorical plane on which these debates (well… all things considered… you know…) are conducted. Is it counterproductive? Is it frustrating? Is it difficult to understand? Yes. Does it play into Fidesz’s hands? Definitely. Will you loose relevant information which the author intended to communicate by further stripping the text down? Most likely.

    I think that this text, if you can get past the language, highlights some pretty scary prospects, Disliking Fidesz is one thing. But once you realize how difficult it is to change the current constitutional order, think about where this will take the country in two or three decades.

  10. I would have written somthing like this. Although I am not a constitutional lawyer, nor a native speaker, and so this text should also be edited and I realise there are too many brackets, but I hoped to explain things a bit.

    On February 8, 2013, Antal Rogán and Péter Harrach, leaders of the Fidesz and KDNP factions respectively (Fidesz-KDNP, the governing majority party with more than 2/3 of the seats in the Hungarian Parliament is formally a coalition, but for all practical purposes the two are one party), submitted the bill of the Fourth Amendment to the Basic Law of Hungary (i.e. as the current, entirely Fidesz-written constitution is called). Fidesz-KDNP possesses the necessary majority (2/3) to amend the Basic Law on its own.

    This current amendment (along with surrounding events, such as the planned election of new reliably Fidesz-leaning members of the Constitutional Court and the officially sanctioned denigration of László Sólyom, the otherwise conservative first chairman of the Constitutional Court and later President of the republic) is characterized by, in addition to a few minor corrections in wording intended to improve coherence, the Orbán administration’s desire to break free from all meaningful constitutional limitations.
    Through this proposal, in addition to further curbing the powers of the Constitutional Court (which was anyway tamed through various means, including packing the court with judges loyal to Fidesz), the Fidesz-KDNP coalition is now attempting to explicitly override all recent case-law of the Constitutional Court (cases which were narrowly decided by more senior, though also conservative, judges vs. the more junior, openly Fidesz-leaning ones).

    This document summarizes the most important provisions of the Fourth Amendment.

    However, first we must briefly familiarize ourselves with the Constitutional Court’s 45/2012 (XII/ 29) decision regarding the unconstitutionality of the so-called Temporary Provisions of the Basic Law of Hungary.

    At the initiative of the Commissioner of Fundamental Rights (the only person entitled to initiate such abstract judicial review proceedings), the Constitutional Court recently opined that a significant portion of the Temporary Provisions was unconstitutional. The Temporary Provisions were a bundle of legal provisions which were made part of the constitution proper by reference but which remained formally a separate legal instrument. They contained technical provisions and preamble-style pseudo-historical verses, but more importantly they also contained operative provisions on (the restrictions of) rights. These restrictions (on voting rights, media, rights related to exercise of religion etc.) were considered originally too embarrassing internationally for Fidesz to include them in the main text, so Fidesz buried them in the Temporary Provisions. Once the Constitutional Court struck down these Temporary Provisions, the Court moved to strike down controversial laws enacted based on them (such as voting registration, an obligation introduced by Fidesz which would have obligated all people intending to vote to register him/herself even though Hungary has an up-to-date register of voters already).

    Fidesz, with the planned override of the Constitutional Court intends to establish the constitutionality once more of the statutory restrictions of various constitutional rights. In addition, the composition of the Constitutional Court will change in the coming months, so that by April 2013 the majority will be judges nominated and elected solely by Fidesz, and it has to be noted that many of the older judges are also reliably conservative and were nominated by Fidesz, assuring that the Constitutional Court will not cause significant problems to the Orbán’s regime, but could be a major impediment to any potential government formed from currently opposition forces).

  11. Orban & Fidesz want to negotiate with the Jobbik-affiliated HÖK student organization only (see above)

    Today, they called the other student organization, HaHa a “dwarf minority, supported from abroad”.

    Yesterday, they used police state methods against HaHa members. They arrested a female student at a metro station and interrogated her for five hours to get additional names from her.

    http://atlatszo.blog.hu/2013/02/19/metroaluljarobol_vitte_el_az_nni_a_diaklanyt

    Summary: Jobbik is kosher for Fidesz, real opposition is enemy.

  12. The female student was interrogated without a lawyer. Here is what happened, in her own
    words:

    [audio src="http://www.klubradio.hu/data/files/varadi_nora_bevittek.mp3" /]

  13. Sandor :
    Never mind the translation, if it is hard to fathom, then it is clearly the original’s fault. But its effect on the country and the legal “system” is pure horror of horrors.
    These bastards have messed up and uprooted some of the most basic common sense legal thinking honoured for centuries.Clearly they are on the march against not only common sense, but the entire edifice of the enlightenment. Back into the middle ages, that is what they want: catholic church overlordship above all hearts, minds, press, society. Forget liberty, forget developement, and forget being part of the world. They are doing to society what they already have done to the economy: disaster.

    When you are the sole, un-balanced, power and can make laws that have neither logic or precedent and are not to be understood…than you, with the power to enforce, become the sole arbiter of what is ‘right’ and legal and have deprived any and all opposition of logical counter-arguments.

    Welcome to Kafka’s nightmare…

  14. Just to be clear. I’m not responsible for the translation but–as Sándor says–the translation is the least of our problems. This new revised constitution is unacceptable in a democratic country. But Hungary by now is not really a democratic country.

  15. That’s pretty good, WRe, thanks. Hard work though (to do, not to read!)

    As an aside, re translating – I’ve dabbled a bit in this, trying to put badly translated notices, texts, etc into ‘native’ English, but it can often be very difficult. There are two main problems:

    1) The sheer difficulty of translating, not just the words, but the meaning (often very convoluted) – it often looks quite easy to adjust the text so that it reads better, but nearly always I find myself having to reword/rewrite quite extensively to get it to make sense in English. At which point I start to worry that it might no longer say what the text said in Hungarian, so I turn to my wife and ask her for her understanding of certain words/phrases in the original. This is never simple! Several times, we have struggled, even with the simplest texts, to put it into native English and still retain its original meaning (or even to understand the original meaning!).

    2) Few, if anyone, is bothered. There is so much appallingly badly translated English around in Hungary*, that, in my early days in Hungary, I often offered to rewrite these things for free – but never got any interest at all (or even replies to letters). The only place that was interested was the Palota hotel in Lillafüred, and that was the only place where the English was OK to start with!

    *My favourite is the introduction to the English version of the Tourinfo ‘welcome to Debrecen’ brochure which has Debrecen as “the most Easter city” in the first sentence! But the weirdness of the ‘English’ notes on the displays in Debrecen’s museum have to be seen to be fully appreciated – I often have to turn to the Hungarian notes and my pocket dictionary to work out what the hell they’re on about!

  16. tappanch :
    Orban’s daughter’s fiance’s …………..
    The fiance is a board member at one of Simicska’s companies.

    It must be a coincidence…. Reminds me of the Hungarian past glorified by Fidesz where the only qualification needed to allow by the family to be married is to grow the wealth of one’s family.

  17. Can we have twenty more entries on how good, bad, excellent, better, worts the translation is? If time allows, maybe you could comment on what is going on with the Hungarian Constitution…

  18. Shylock revisited.
    The Constitution became a rigid contract.
    Gifted Portia, and the Venecian ruler will easily prove that FIDESZ is taking many extra liters of blood from the Hungarian nation, beyond the agreed fine.
    The FIDESZ/JOBBIK leaders and their insane supporters belong into a mental asylum.

    PS The thoughts of Rwe have to be reedited. Try to inject positive decency into your arguments, and a broad support for our protest against the Orban clique.

  19. I guess these won’t be the last amendments …

    A few hours ago the constitutional court struck down a law that forbade the “use” of certain symbols related to dictatorships. The current Hungarian criminal code forbids the use of symbols such as the swastika, SS emblem, arrow cross symbol, hammer and sickle, or five-pointed red star.

    Dang. Now this have to go into the basic law. The court is practically dictating them what to put into the constitution. Jozsef Szajer is sitting in his favorite recliner with his iPad on his laps, watching football on TV, beer in hand, and every time the high court strikes down something he just punches it in the basic law. After a few pages he emails it to the law makers of the Fidesz. “Please vote for this or we fine your ass. Thanks!”

    This is actually interesting considering that the Hungarian government was actually was defying the court in Strasbourg last year in the Fratanolo case (he was wearing a red star since he is communist).

    See, Mr Zoltani? The Hungarian constitutional court is a bunch of professed commies, right?

  20. Paul :
    I can’t pretend to understand most of that, but the hasty creation of a new constitution and the constant tinkering with it again emphasises the extreme need for a united opposition movement in Hungary.
    Such a united opposition should have as it’s first aim the annulment of this absurd constitution and the temporary reestablishment of the old one. To be immediately followed by multi-party/interest groups, nationwide, consultations leading to the development of a new constitution – a referendum to approve that constitution and then new national elections. A ‘government of the experts’ would be appointed to run the country between the two elections.
    This would require no political agreement between the opposition parties/groups, other than considering the current constitution illegal, resolving to create a new (broadly supported) constitution, and working together to run the country for the year (or two) the process takes.
    Surely, even in the Hungarian political óvoda, this much is possible?

    This is the core of the matter. The opposition is wasting its time writing unreadable comments on amendments to the Fidesz constitution in stead of declaring the whole Fidesz constitution null and void for their part. The opposition should declare in unison that they intend to scuttle the Fidesz constitution because it violates human rights and fundamental principles of democracy. The drafting process should be monitored on the internet and open to comments from the public.

  21. Jean P:

    Bajnai opened his party to the middle so he can’t seem to be a radical (i.e. declare this constitution and the regime set up pursuant to it illegitimate) and so he is against ‘unconstitutional’ changes, supposedly because then Fidesz could do the same when it came back.

    Whether this is a conviction or tactics I cannot tell, but he has people around him who would stick to this suicide pact.

    They are not agressive enough to face Fidesz.

    They have not realised what they are up against. Which would be rule no. 1: know your adversary. But knowing not in the sense of being able to recite a text, but knowing in the sense of being able to think in that ‘world’, to be part of their discourse.

    Politics is not just good governance as they want to imply, sure, it is very important, but not enough.

    I don’t think Bajnai and his people want to get real dirty.

    They are like the gone Hungharian liberals, who cared about their reputation with foreign friends and in their circle of know-it-all friends. A sure way to get lost.

    If someone wants to enter politics he/she has to abandon any notion of caring about reputation. Even this word have to cease to exist for him/her. Only the ability to obtain power and then keep it in order to implement policy should matter.

    Bajnai and his people seem to smart for their own good, and not ready to fight. Have they got any notion of János Lázár? Tünde Handó? Péter Polt? Antal Rogán? István Balsai? László Kövér? József Szájer? Lajos Simicska? Zsolt Nyerges? I am doubtful.

    I think at present only Gyurcsány understands Orbán and his world well enough. His is the most passionate opposition politician and probably one needs that extreme passion to comprehend Orbán’s world from the inside.

    The rest are amateurs. Fidesz knows well that their power is there to keep it, unless the opposition dares to change the complete regime. But the opposition is not ambitious enough.

  22. Some1 :
    Can we have twenty more entries on how good, bad, excellent, better, worts the translation is? If time allows, maybe you could comment on what is going on with the Hungarian Constitution…

    I think we all know what is going on with the constitution.

    Perhaps a better discussion might be what we should do about it?

    e.g. – see my first post (above) – or Jean P’s reply at 2:11 today.

  23. Paul :

    Some1 :
    Can we have twenty more entries on how good, bad, excellent, better, worts the translation is? If time allows, maybe you could comment on what is going on with the Hungarian Constitution…

    I think we all know what is going on with the constitution.
    Perhaps a better discussion might be what we should do about it?
    e.g. – see my first post (above) – or Jean P’s reply at 2:11 today.

    okay, so if we all obviously KNOW what’s going on with the BASIC LAW then do we see that we have either reached or are rapidly approaching a point where there won’t be a way to restore a liberal constitutional order through peaceful means? if, as kim lane scheppele suggested in her presentation at ceu, the constitutional court is not willing to declare the basic law intrinsically unconstitutional due to its own “historical constitution” clause (or consider any of the other 3 options presented by her there) and will eventually become completely unable to provide any sort of tangible review, then what other options do you see? the opposition obviously won’t be able to achieve a 2/3 majority anytime soon, so that’s that.

    just saying… so far the only thing you guys have done here is criticized the socialists for issuing a legal analysis meant for use BY PROFESSIONALS… because heaven forbid they analyze a constitutional amendment in a way which you people have trouble understanding and then perhaps use that analysis to persuade the eu or the us to exert some pressure on the governing coalition to maintain some semblance of democracy.

  24. I offer one solution to the Socialists: oppose the current Basic Law as a completely oppressive Fidesz-creation, the source of all bad and don’t deal with specific amendments.

    Mind you, this is exactly what Fidesz did, they did not offer piecemeal recommendations for amendments, they just denied the whole previous constitution (first secretly, and when they came to power, they supplanted it with a new constitution).

    At the memoment the Socialists (and Bajnai’s smartypants helpers) try to argue rationally they already lost it, because they enter a game (a ‘discourse’, I repeat this often but this is a blog, a dicourse, and politics is language and dicouse) the rules of which was set up by Fidesz. One simply can’t win this game in Fidesz’ own discourse, you can only further it and strengthen it — even if you oppose it. The more you write about it (articles, books, blog posts) the more legitimacy you give to this basic law.

    The basic law must be opposed as such, in its entirety, and without entering into any discussion about it. Fidesz knows that once you enter a dicussion, you are bound to enter into a compromise and Fidesz is not in the business of making compromises. Neither should the Socialists be re the basic law.

  25. hegemon :
    The basic law must be opposed as such, in its entirety, and without entering into any discussion about it. Fidesz knows that once you enter a dicussion, you are bound to enter into a compromise and Fidesz is not in the business of making compromises. Neither should the Socialists be re the basic law.

    yes. but this being the fundamental law of the land, if and once the opposition gets elected, they WILL have to find a way to can it (the other option would be to adopt a political culture which compensates for constitutional shortcomings, but this is an unlikely and lengthy option for Hungarians). if there are no legal instruments to throw the basic law out with, which are provided by the basic law itself, you are talking about the dismantling of the republic (which hungary still is btw)

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  27. I find it interesting that a post from Paul is being held for moderation while a spam from discreetdildo from Australia (above) is posted…

  28. gdfxx :

    I find it interesting that a post from Paul is being held for moderation while a spam from discreetdildo from Australia (above) is posted…

    WordPress is very erratic about moderation. Sometimes they ask me to moderate my own comments. Just yesterday at least two. On the other hand, WordPress is pretty good at catching spam. Very few go through. Just for your information, right now 324 spams are waiting for me to get rid of. But here and there some slip by. Like this one. During the day I usually get rid of them within a few minutes because I check the comments often. But during at night naturally I can’t. So, this is what happened this time. But it’s “spammed” and “trashed” a few minutes ago.

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