Budapest Beacon: A conversation with Gábor Halmai on Viktor Orbán’s Hungary

Many thanks to The Budapest Beacon for permitting me to republish this interview.

One of Hungary’s most distinguished scholars of constitutional law, Gábor Halmai is the director of the Institute for Political and International Studies at Eötvös Lóránd University, Budapest, as well as director of the Hungarian Human Rights Information and Documentation Center. He has published extensively in English, German and Hungarian on problems related to human rights, judicial review, freedom of expression and freedom of association. Former chief counselor to the president of the Hungarian Constitutional Court, László Sólyom (later President of the Republic of Hungary), Halmai has served as vice-chair of the Hungarian National Election Commission. He received his PhD from Eötvös Lóránd University and is currently a visiting research scholar at Princeton University. 

(Note: We apologize to Dr. Halmai for technical problems experienced during the filming of this interview.  When transcribing this interview, we took the liberty of rewording a few of Dr. Halmai’s statements for the sake of clarity, taking care not to change their meaning.  We have also highlighted key terms and expressions used by Dr. Halmai for easy reference. -ed.)

As an expert on constitutional matters, what is happening in Hungary?

Ironically, Prime Minister Orbán himself characterized the development very accurately by saying in a speech this last summer that Hungary is not any more a liberal democracy but an illiberal democracy.  He even proudly claimed that the pursuit of the Hungarian government is not having a liberal democracy. He named as leading examples for the Hungarian government Russia, China, Singapore, even Turkey, countries which certainly are not fulfilling those ideals which are principles of the European Union of which Hungary has been a member state since 2004.   So the paradox in that kind of self-definition by the government of Hungary not being any more a liberal state is a kind of proof that Hungary does not fulfil any more the requirement of a member state in the European Union, which is based on the values of rule of law, democracy, protection of fundamental rights, including minority rights, including religious minority rights . . .

Sounds to me like you’re suggesting that if Hungary were to apply for EU membership now it wouldn’t meet the Copenhagen criteria.

Certainly not.  And this is actually one of the troubles of the European Union now:  How can the European Union actually protect fundamental values of the EU within a member state if the member state is not willing to comply?  Seemingly liberal democracy is not the only path for emerging democracies.  It’s very hard to influence, for instance, Egypt to turn into a liberal democracy.  But a member state of the European Union and a member state of NATO is a different issue.

What is a liberal democracy?  What does that mean?

Liberal democracy certainly has many definitions and many requirements.  As a constitutional scholar, let me define liberal democracy as a constitutional democracy, which is certainly a kind of Western approach of democracy.  But we are living in the Western world, at least here in the US and we in the European Union.  So two major elements have to be mentioned.  One is rule of law, which means, on the one hand, that one kind of separation of power or at least checks and balances, if not the US approach of separation of power, some type of checks and balances has to be provided in liberal democracies.  The other major element is guaranteed fundamental rights in a way that they are not only prescribed in the constitution (which was also given in the 1949 constitution. Almost all the rights which we have now in our constitution were provided in the text of the Stalinist constitution, but no one took it seriously that those rights are guaranteed).  In a rule of law state, institutional guarantees have to be in place: an independent judiciary, in the case of the new member states, new democracies, even an independent constitutional court, certainly some independence of the president in a democratic institutional setting.  And probably some more special institution like the ombudspersons in the new democracies.

So these are very important elements which are less and less provided in Hungary.  And the other element I wanted to mention beside these two major components of rule of law, is a kind ofaccountability of the government, meaning a democratic selection procedure, which means mainly a democratic election system.  Unfortunately, in the last years we not only lack those mentioned checks and balances and guaranteed fundamental rights, for example, freedom of the media, freedom of religion, but we also lack a democratic election system.  So even though the governing party, Fidesz, won the parliamentary election in April with a two-thirds majority, this two-thirds majority was due to some substantial changes, and, I would argue, not democratically enacted changes of the election law.  The two-thirds is certainly a result of several anti-constitutional new elements of the parliamentary election system. Everyone knows that giving the right to vote to those living outside the country and not resident was decisive to getting the two-thirds majority for the governing party.  Also, I can mention, without going into details, the very strange and unique system of giving advantage to the winner by an approach that is really unique in the world: the compensation for the winner.

And it’s not only the parliamentary election system but very recently the municipal elections were, I would say, fraud, because the changes they made to the system were made just four months before the election, which is, in itself, a violation of any kind of legal security or legal certainty, which is a part of the rule of law. Not to speak of the fact that they created the system in order to get a secured majority in the Budapest council, abolishing entirely the direct election of the council members.  So, according to the new system those council members were not elected by the citizens of Budapest. They were just delegated according to the new system, and these delegates are mostly Fidesz candidates.

So these are elements in a constitutional system–lack of separation of power, lack of guaranteed rights, lack of democratic elections–which makes a country an illiberal democracy with very strong elements of an autocratic system.

And it’s not only on the constitutional level.  If you see the orientation of this government.  I mentioned already the speech of Prime Minister Orbán, what are the model countries.  Certainly not only non-liberal democracies, but as potential political or economic partners—Russia, China—which are seemingly crucial to the Hungarian government as a kind of balance against the EU and, in economic terms, the IMF, which makes a conditional kind of contribution to the Hungarian economy.  Those countries–Russia, China–won’t make rule of law or other democratic conditions for their contribution to the Hungarian economy. But they will certainly make political conditions, which makes Hungary really different from the original member state of a value community, namely the European Union or NATO.

When the system change happened, that was the beginning of what many believe was a difficult transition.  What does this latest transition do to the rule of law in a country?

This new constitutional system, and not only the constitution itself, which is not even called a constitution, it’s called the Basic Law, and not even the “Republic of Hungary” which was the case in 1989 when Hungary finally dropped the “People’s Republic” and turned into a real republic.  In 2011, with the new Fundamental Law, Hungary dropped from its name “The Republic”.  This is a very symbolic change, dropping the republican ideal as well, not only the name.  Hungary became a kind of illiberal democracy.  But what worries me even more than this change, which is worrisome enough for a constitutional scholar who is really committed to constitutional democracy, is that the people themselves over the last five years did not seem to care about these changes.

Prime Minister Orbán claimed that some revolutionary events happened during the election in 2010, which was a kind of “revolution of the ballot box”.  Certainly something happened.  And it is not only what I as a constitutional scholar characterize as “backsliding” of constitutional democracy, but certainly, and I have to admit, an acceptance by the population, or at least a significant part of the population, even if it’s not even the majority of the population, because you know in April altogether 26 or 27 percent of the entire Hungarian population voted for the governing party.  But still that meant a two-thirds majority of the seats in the Hungarian parliament due to the disproportionate election system, and so on.  But still they were the decisive political actor in that election, and they can claim that they are in charge of that country.  So, they can certainly argue that the Hungarian voters approved that change of the constitutional system.

So what is wrong?  It seems to be a democratically chosen new way in Hungary, not being a liberal democracy any more. This is a very complicated issue and I do not want to give a very simple answer, because I do not know the very reasons.  I’m here partly to find out what may have happened in Hungary.

One of the reasons (although I do not fully share this view) is that the change in 1989-90 was very much a kind of elite change in the system of government.  The new comprehensively amended constitution in 1989 was a result of some revolution by an elite, both an intellectual elite and a legal elite.  Some scholars even characterize this kind of development as a “legalistic constitutionalism” led by those people who were part of the negotiations with the previous Communist Party, the democratic opposition and the conservative-liberal opposition forces and, on the other hand, the Constitutional Court itself, which, from the beginning of its establishment, very much imposed this new liberal democratic constitutional system.  So this might be one of the elements.

I try to understand why the people were so dissatisfied with this kind of liberal democracy.  Because probably they were not involved in that change.  The kind of civil participation in the constitutional making process in 1989 and 1990 and even later on in the 1990s was probably not enough to be a part of a constitutional thinking and building up a constitutional culture for the people.

In 2010 when the Orbán government came and said, “okay, get rid of this liberal democracy” – they did not admit at that time that they were doing that, but as I said just recently the prime minister openly admitted that this was the very aim of the new revolutionary changes — probably for the people it wasn’t that interesting what kind of constitutional system Hungary has.

This is a very interesting point.  I don’t think it’s been talked about enough. This transition into a liberal democracy – I don’t want to use the term “illegitimate” – but the parties involved in crafting that change, that was not a bottom-up approach, it was a top-down approach, and there was a level of detachment that may have influenced the public’s semse of being involved.

There were some illegitimate elements in that process in the very beginning.  For instance, the so-called roundtable discussions between the Communist Party and the opposition movements,none of them were elected.  They reached the compromise about the democratic transition, and the very result of that compromise was a comprehensive amendment to the constitution.  The decision was made that this will not even be a new constitution voted by a democratically elected parliament.  This was an amendment to the previous Stalinist 1949 constitution which was voted by the Communist parliament.  So the decision was made in October or November of 1989 with a totally illegitimate parliament.  That is why Viktor Orbán from 2010, but also beforehand in his first governmental term, he always argues “come on, we’ve got a Stalinist constitution!”.   So the title of the constitution is still the 1949 constitution and in 1989 it was only an amendment to it.

He knew, of course, because he is a lawyer and an educated guy, that all the major substantive elements of the Stalinist constitution were changed in 1989.  But formally speaking, it was the same constitution.  So he had a very easy time arguing in 2010 “okay, get rid of this communist constitution”.

Of course, if someone wants to substantively argue “come on, this was the constitution on the basis of which Hungary was admitted to the European Union, according to the Copenhagen criteria”.  So everyone knew in Europe this cannot possibly be a dictatorial or Stalinist constitution.  But for the majority of the population, this could have been a very convincing argument.  “We have to get rid of this old stuff and make a real revolution and a real transition.”  This is his terminology:  “There was no transition in 1989-90. This is the transition”.

Is there anything that is defining of the Fidesz constitution, that work as a whole?

I’ve already tried to list all the elements of this kind of illiberal parts of the constitutional system which is, again, not only the fundamental law itself, but together with those so-called cardinal laws and amendments to the constitution as an entire system.  So this is lacking the major crucial checks and balances and the guarantees of fundamental rights.  Let me mention only two fundamental rights which are actually very much limited since the new constitutional system came into force.

One is the freedom of expression and media freedom, with all the institutional system in place where the government actually occupies all the media and all the review of the media.  They can check all of the public and commercial media through the system they introduced.

The other element is the lack of religious freedom.  If you consider that Fidesz managed to de-register more than 200 churches which were registered originally from the start, from the 1990 religion law with a new system which allows the parliament with a two-thirds majority to decide who is a legitimate church, and who can be the partner of the state as a church, with all of the rights of being a church, and all of the advantages: having state supports, state subsidies, having schools or having other social institutions.

These are really major changes in the system of fundamental rights.  There is a very importantnationalist approach in that new constitutional system.  Let’s start with the basics.  Who is the subject of the new constitution?  If you read the preamble of the new constitution, it says all Hungarians irrespective of their citizenship, or irrespective of their residence, which has two implications:  One, that this is a kind of ethnic concept of the nation.  So Hungarians are those who feel themselves as Hungarians.  The negative implication of that is that all those who do not feel themselves as Hungarians despite being Hungarian citizens are not considered as subject of the constitution.

Of course, there is nothing in the text which indicates that they are treated differently.  But if you interpret what does it mean being a subject of the constitution not being Hungarian, then it means Roma people in Hungary who identify themselves as Roma and not Hungarians, or Jewish people who happen to identify themselves as Jewish and not Hungarian do not belong to this notion of ethnic nation.

There are representatives of nationalities in parliament.  For me as an American I didn’t really understand the reasoning behind that. Can you explain that to me?

From the very beginning of the democratic transition in 1989-90, there was a demand for national minorities can be a real part of the nation.  How they can represent themselves in the democratic decision-making process.  And there were different kinds of suggestions, which all failed, as to how to involve ethnic national minorities within Hungary.  I won’t characterize this kind of attempt to involve ethnic minorities as a ridiculous one.  Certainly, the final solution was not satisfactory for any of those ethnic minorities because they failed to reach the threshold for being represented in the parliament.

What is more worrying for me is the overemphasis of the Hungarian nation in the constitution, in the law of citizenship.  Ethnic Hungarians not even willing to reside in Hungary or move to Hungary were provided Hungarian citizenship, mostly in the neighboring countries, who lost their Hungarian citizenship due to the Trianon treaty, with the very suspicious aim of being involved in the Hungarian parliamentary election.  They were also provided voting rights and, as I mentioned, this was decisive in the general election.

So this is also a kind of very troublesome characteristic of the new constitution.  Another one is certainly the emphasis on Christianity and the Christian heritage in the constitution, which, as a historical argument, is totally legitimate.  The question comes what does it mean Hungary being “historically a Christian country” when it comes to the interpretation of religions rights, for religious minorities, for instance.  As you may know, according to the text of the Fundamental Law, these kinds of provisions in the preamble are also the basis for interpretation by the Constitutional Court.

This was an issue with the church law.  There was a very interesting legislative process behind this.  The church law was passed.  It was changed very quickly right before it was voted on.  Then it was passed quickly by the two-thirds (majority).  And then the Constitutional Court strikes it down.  How does a law that is deemed unconstitutional become constitutional in Hungary?

Unfortunately, it happened not only with the church law but with a lot of other laws.  It became a kind of custom in the last four or five years that those decisions of the Constitutional Court—I’m talking about the Constitutional Court before 2013, a more or less independent Constitutional Court between 2010 and 2013—certainly struck down a lot of laws which were enacted by the new majority of the parliament.  And the new governmental majority just introduced a practice which is really not a characteristic of a rule of law country.  They changed the constitution when any of the laws were struck down by the Constitutional Court, just to overrule Constitutional Court decisions. They put new provisions into the constitution saying this will be the new constitutional rule.  The infamous fourth amendment says the Constitutional Court cannot review any constitutional amendment.

That would suggest that any legislative process, even the highest judicial levels, is completely subject to a very political agenda.

I would even argue that this is the loss of constitutionality.  In that moment when a constitutional rule can be overruled just because the Constitutional Court has struck down an unconstitutional law, and the constitution making majority, which is the government majority due to the very unfortunate and disproportionate election system, can just change the constitution.  This means there is no division between constitutional laws and political laws.  All the laws are political, in that respect.  Whatever the government intends to do to follow their political aims is subject to a constitutional amendment.

There are no checks and balances in this process.

And there are no divisions between constitutional and statutory law.

What is the difference between them?

Statutory laws, which, in all rule of law countries, are subject to a legislative majority decision, are subject to a constitutional review, the basis of which is the constitution.  If the legislature can change the very foundation of the review, the constitution itself, then there is no distinction between those statutes and the constitution, because the same rule applies for the statutory legislative procedure and the constitution making procedure.  In that respect, unfortunately, Hungary reached that situation where there is no more constitution as a higher law, higher to any other statutes in the country which should be subject of a review by a constitutional court.  Not to speak about the fact that this constitutional court is not an independent body any more.

It seems to me that one of the dangers that a country would face when it reaches this point is that legislation can be enacted arbitrarily. There is no precedent that would prevent any legislation from being enacted.

They also abolished all of the previous case-law of the Constitutional Court enacted before the new constitution came into force, which is the case even when the new constitution has the same wording as the previous one had.  If the Constitutional Court ruled something in the mid-1990s, according to the constitutional rule which is still part of the new constitution, this decision is null and void.

Where do we stand now?  There is no independence in the Constitutional Court.  Previous case law is out the window.

That means the Constitutional Court became a political institution serving entirely the will of the government.  And if you study all the decisions made by the Constitutional Court, let’s say since April 2013 (I will explain why this date is crucial) these are all political decisions, at least those decisions which are politically relevant and crucial for the government to win.  The 2013 date is important because Fidesz started abolishing checks and balances in the very early stages of 2010.  Already in May they changed the system of the nomination and election of the Constitutional Court judges.  Previously the case was that the nomination of a Constitutional Court judge needed a consensus in the parliament.

What does that mean, “consensus”?

The governing parties needed some kind of approval by at least part of the opposition parties.  So there was a nominating committee which consisted of both governing and opposition parties.  And for the nomination to be valid it needed a majority of all the parties, governing and opposition parties.  The new rule Fidesz introduced in May 2010 meant that the government alone, without any consent from opposition parties, can nominate Constitutional Court judges.  And from 2010 until 2013 all eight, which means the majority, of the Constitutional Court judges were nominated and elected exclusively by the governing party, which means without consensus of opposition parties.

Since that time over the last year or so, twelve of the fifteen judges have already been elected without consensus.

But I’m sure all of these Constitutional Court judges are known for their knowledge of the law.

Unfortunately, not.  They started in 2010 with two nominees who did not fulfill even the legal requirement of being a Constitutional Court judge.

So would that mean that their nomination by the governing party was purely politically motivated?

Purely political.  For instance, one of the justices was previously head of the first Orbán’s government’s cabinet.  Judge Stumpf was nominated despite not being a professor or being a doctor of sciences, which was the legal requirement in the law.  And his nomination went through the two-thirds majority of the government because the government party had that majority.  And new appointments and nominations are following that rule that not even legal requirements are important, not to speak about the political affiliation of those justices.

Are the nominees brought before a committee and then grilled by members of the committee about decisions they’ve made or positions they’ve assumed on certain legal issues?

It’s very interesting. The latest hearing before that nomination committee was a secret meeting.  It was not accessible to the public.  They had a secret meeting.  The reason given by the government was that the privacy rights of those candidates had to be protected.  Seemingly for the past twenty-five years these privacy rights in a hearing were not important.  Of course there is no rule about the protection of privacy rights of a public official who is running for a public position.  So these nominations are just pure political selections of those loyal to the government.

If this process had to happen now, what would be necessary in order for Hungary to get back on the path to becoming a liberal democracy?

Certainly that kind of procedure which happened in 1989-1990 would not be advisable.  Probably an involvement of the public in understanding what a constitutional democracy is about.  Explaining to them what the advantages to being a constitutional democracy are, despite the fact that this also meant being a member state of the European Union, or the Council of Europe, or any other communities.  Showing them what is at stake to being a constitutional democracy as opposed to the slippery slope of first being an illiberal democracy, as is probably the case of Hungary, or even later being an autocracy like Putin’s Russia or China, just for the sake of some advantages, mostly for the political elite,  I’m not an expert in economic issues but I’m afraid the crucial issue here is when the people will understand what a constitutional democracy means for their well-being.  If the Hungarian population will understand that, probably we can start again establishing a constitutional democracy.

A shameful verdict: The Court finds the new Budapest electoral law consitutional

Now that Viktor Orbán has seen the light and convinced Péter Szentmihályi Szabó to shelve his ambitions to be the next Hungarian ambassador to Rome, I am returning to the domestic scene, which is not pretty either.

Although hardly a day goes by without some horrendous attack on Hungarian democracy, this week’s greatest abomination was the 8 to 7 decision of the Constitutional Court affirming the constitutionality of the new law governing elections in Budapest. Once, back in May, I wrote about Fidesz plans to completely change the electoral system in Budapest. Why? Simple. After the April elections it looked as if Fidesz’s position was not secure in the capital. And naturally, in Fidesz’s view, no election can ever be lost. By hook or by crook they will win. The party and its leader will march resolutely from victory to victory for time immemorial. And so a devilish plan was devised to ensure victory.

Since I went into the details of previous system in May, here let me just summarize it briefly. In the past the lord mayor (főpolgármester) was elected directly by all the eligible voters in Budapest. District mayors were chosen only by the inhabitants of the 23 districts. In addition, there were party lists on the basis of which the 32-member city council was elected. What particularly bothered Fidesz was that the opposition might get a majority on the city council given the fact that numerically more Budapest people voted for the opposition parties than for Fidesz. After some clever mathematics they came up with a solution: simply abolish the city council as it exists today and replace it with a body composed of the 23 district mayors. This body could then be joined by nine people from the so-called compensation lists of the losers. Thus, including the lord mayor, it would have 33 members, just as it has now.

But from day one it was clear that this scheme is glaringly unconstitutional because it violates the one person, one vote principle that is fundamental in a functioning democracy. This disproportionality is due to the varying sizes of the districts. Here are some examples. While District I (the Castle district) has 24,679 inhabitants, District III has 127,602.  District V (Antal Rogán’s domain) has 26,048 while District XIII has 119,275. I guess you will not be terribly surprised to learn that the smaller districts lean heavily toward the right. Thus, the Castle District where no socialist or liberal has ever won will be represented on the city council by one person as will the socialist District XIII.

As soon as this problem was discovered–and it didn’t take long–the Fidesz “election experts” started to tinker with the proposed law and introduced all sorts of amendments that were supposed to remedy the situation. Their attempts eventually made the system extremely complicated without satisfying the constitutional requirements. In a very rare moment of unity, all parliamentary members of the opposition–including Jobbik and LMP–turned to the Constitutional Court for a ruling on the issue. That was in June. On Monday at last the judges handed down their decision. It was a very close vote, especially considering the composition of the court: 8 out of the 15 judges found the law, by and large, constitutional.

One ought to keep in mind that the majority of the judges were appointed by Fidesz after the “court-packing scheme” was introduced. In addition, there are two judges who were put forth by Fidesz earlier. Currently there are only three judges on the court who were nominated by MSZP, one of whom will have to retire in September and two others in March 2016.  After that time there will not be one member of the court who was not a Fidesz appointee. As it is, seven out of the eight judges who were nominated by Fidesz since 2010 found the law constitutional; the one exception refused to concur because he couldn’t agree with the majority on the one side issue it found unconstitutional. So, this is where we stand.

A rather telling picture of the current Hungarian Constitutional Court. Source: Népszabadság

Several judges wrote separate opinions. Perhaps the  hardest hitting was that of the chief justice, Peter Paczolay, who is considered by legal experts to be conservative. He was endorsed by both parties and since his term will be up next February I guess he doesn’t particularly care what Viktor Orbán thinks of him. He pointed out that “the present case does not merely touch on constitutional issues but on the right to vote that is the very basis of democracy.” According to him, this Fidesz-created law “is entirely contrary to the fundamental principle of equality.” Moreover, he added that some of his colleagues did not fulfill their professional duties and instead wrote a decision that was dictated by the interests of a political party. Pretty tough words.

András Bragyova (MSZP), who will be leaving the court in September, had nothing to lose either. In his opinion the new “council will not be an elected body although the constitution states that Budapest must have its own self-government.” It is an unconstitutional creation. Moreover, he noted that while the constitution demands self-government for the city as a whole, the election of district mayors is not specifically mentioned in the constitution. As he wittily remarked,  “from here on instead of Budapest having districts, the districts will have a capital city.”

The behavior of István Stumpf, an old Fidesz hand and Viktor Orbán’s former college professor who doesn’t always toe the party line, was the strangest. He voted this time with the slim majority, but he wrote a separate opinion in which he objected to changing the electoral law only months ahead of the election.

NGOs such as the Hungarian Helsinki Commission and TASZ as well as independent electoral law experts are appalled by the poor quality of the opinion that was written by Béla Pokol. Viktor Orbán chose him to serve on the court despite the fact that he is opposed to the very existence of a constitutional court. His judicial views are also extreme.

Csaba Horváth (MSZP), who ran against current lord mayor István Tarlós in 2010, declared that this decision demonstrates that the last bastion of democracy, the Constitutional Court, has been captured by the enemies of democracy. Some people contemplate boycotting the election but most are ready to face the music. Between Fidesz and the totally incompetent opposition a huge Fidesz win seems to be shaping up for October 12.

“Unless blood flows”: Human Rights Watch’s report on Hungary

Lately I have been struck by the high number of incidents, often resulting in death, involving relatives or people living in the same household. A daughter kills her mother, an 85-year-old former high-ranking police officer kills his 79-year-old wife, a professional soccer player kills his partner and her son in a family dispute. These are only three cases I remember from the last two weeks or so.

In addition, it was only yesterday that the public at last learned that it was not the blind komondor that knocked over “Terike,” the domestic partner–since then wife–of József Balogh, mayor and member of parliament (Fidesz). Balogh admitted that he hit her in the face several times, grabbed her by the hair, and hit her head on the porch railing.

I’ve dealt with the subject of domestic violence, a very serious problem in Hungary, several times. The first reference I found on Hungarian Spectrum is from January 2009 when a bill was adopted by parliament which introduced the widely used practice outside of Hungary of a restraining or protective order. At that time President László Sólyom refused to sign it and instead sent it to the Constitutional Court. His objection was based on a section in the Constitution [58. § (1)] that guaranteed the right to choose one’s place of residence. I guess that needs no additional comment. The Constitutional Court naturally found the president’s legal opinion brilliant. After all, he was the chief justice of the court between 1990 and 1998.

In September 2012 the question came up again after Fidesz initially refused even to consider the issue. When public opinion forced the government party to act, they tried to make the law as weak as possible. Zoltán Balog, minister of human resources and in his former life a Protestant minister, was upset about the opposition’s “bluestockings attitude” and objected to talking about “violence within the family” because the family is sacred. Instead of family, the government insisted on “violence within the confines of partnership or relations.”

Eventually, after a long and rather fruitless discussion, the bill became law in July 2013, but it has serious shortcomings. For example, an assault against an intimate partner will be classified as an instance of domestic violence only if there are at least two separate occasions of abuse. Moreover, the new legislation does not cover non-cohabitating partners.

All in all, the Hungarian situation was considered to be so serious that Human Rights Watch (HRW) decided to issue its findings in a lengthy situation report. It was written by Lydia Gall, researcher on the Balkans/Eastern Europe in the Europe and Central Asia Division of the organization. Those who are interested in the details should read the report itself. Here I will concentrate on the official Hungarian reaction to it.

First, it is evident that the Hungarian government received a copy of the report before November 6, the official release date, because they were prepared to combat HRW’s “allegations” within hours after the appearance of the report. The very first reaction, a legal rebuttal, came from the Hungarian police. In my opinion it is almost certain that the author of the rebuttal is not a policeman. I rather suspect that it is the work of some government lawyer in the Ministry of Administration and Justice. In it the Hungarian government complains about “the several factual errors” and “the lack of sources.” From the document it becomes clear that the representatives of HRW did pay a visit to the Hungarian police headquarters, but it seems they were not convinced by the assurances of the policemen they met. The police’s “Communication Service” spent the rest of its document listing all the government resolutions to battle domestic violence, starting in 2003. Even this glowing report on the excellence of the Hungarian law, however, had to admit that charges against someone who commits domestic violence can be brought only by the victim.

The Hungarian police are especially sensitive about the issue of their officers’ preparedness in cases of domestic violence. The document states that there are “several forums” where a victim can complain in case the policeman refuses to act in the manner expected, but it doesn’t identify any of these forums by name.

A couple of hours after the release of the police communiqué, Zoltán Balog’s ministry also raised its voice against HRW’s claims that the Hungarian government’s system of handling domestic violence “simply doesn’t work.” The HRW report contends that because of police inaction and the lack of legal safeguards, women who are victims of domestic violence don’t get proper protection. Naturally, the Hungarian government doesn’t accept this verdict. Moreover, the ministry spokesman pointed out that too little time has passed since the law took effect and therefore no meaningful evaluation of the system can be undertaken. The ministry also said that the representatives of Human Rights Watch had assured the ministry earlier that the report would not be a comprehensive picture of the Hungarian situation but would only mention the most flagrant cases in order to inspire the Hungarian government to take further steps. I might add that throughout its reply, Balog’s ministry refused to refer to domestic violence by its common name (in Hungarian családon belüli erőszak) but instead used “kapcsolati erőszak,” a word combination cooked up by Balog in order to avoid the word “család” (family).

Then came the official spokeswoman of Fidesz, Gabriella Selmeczi, who charged that the criticism of Human Rights Watch is not really about the shortcomings of Hungary’s handling of domestic violence. In this case, as usual, Selmeczi continued, “we are witnessing an artificially generated international pressure” on Hungary. She can’t help thinking of the relationship between HRW and George Soros, the American financier with Hungarian roots. After all, last year Soros gave 20 million dollars to the organization. Selmeczi also added that the same Soros “has given millions to Gordon Bajnai’s foundation and has business dealings with Ferenc Gyurcsány’s firms.”

It doesn’t seem to matter to the Fidesz propagandists that Gyurcsány’s firms have nothing to do with the finances of the party. Moreover, the so-called millions given to Bajnai’s foundation turned out to be a small grant for a few thousand dollars from one of Soros’s foundations. The same is true about the money Gyurcsány’s firm got. Soros has been since 2010 financing projects aimed at Roma integration throughout Europe. Altus, Gyurcsány’s firm, is involved with such projects in the Balkan region and this received $13,800 toward the financing of the project.

So this was yet another Fidesz attempt to discredit a respectable NGO, this time Human Rights Watch, by claiming that it is an instrument of George Soros aimed at bolstering the political chances of the opposition. Gabriella Selmeczi most likely forgot that in 2010 George Soros and Viktor Orbán actually, after many years, met again to discuss his Roma integration project. At this meeting Soros offered one million dollars to the Hungarian government after the red sludge accident in 2010. Soros apparently also offered financial assistance for the Orbán government’s efforts at Roma integration. I don’t know what happened afterward. It is possible that Soros changed his mind once he realized that Roma integration was transformed into Roma school segregation with the active assistance of Zoltán Balog.

In brief, the Orbán government’s commitment to seriously combating domestic violence is lukewarm at best. I highly doubt that the government will try to improve the existing ineffectual laws as a result of Human Rights Watch’s indictment of their shortcomings. I also doubt that the police’s reluctance to interfere in domestic disputes will change any time soon.

Attila Mesterházy and Ferenc Gyurcsány outline their plans for the restoration of Hungarian democracy

It’s time to get back to the present, which is a great deal  less upbeat than the days just before the Hungarian government allowed the East Germans to cross into Austria. Those days were full of hope. The Round Table Negotiations were winding up and within a few days the establishment of the Fourth Republic was declared.

Today the mood of the country is outright gloomy. The economy is languishing and the opposition is in disarray. And yet one must move ahead. One helpful sign: a discussion about how the wounds the Orbán government inflicted upon the democratic institutions of the country can be healed is going on in earnest on the Internet. Zsófia Mihancsik, editor-in-chief of Galamus, was the one who initiated a series of articles on the topic. Up to date eleven pieces have appeared; I will compare the last two. Yesterday Ferenc Gyurcsány wrote and today Attila Mesterházy.

Attila Mesterházy

My first impression was that their ideas on the restoration of democracy in Hungary run along very similar lines. In my opinion, if it depended only on these two men, MSZP and DK could come to an understanding on practically all the important issues in no time. I don’t know whether Gordon Bajnai will join these two politicians and outline his own ideas on Galamus, but from what I know about E14-PM ‘s view of the future without Viktor Orbán it is quite different from those of Gyurcsány and Mesterházy.

Ferenc Gyurcsány

So, let’s see what they agree on. Practically everything. Neither of them believes in any kind of compromise with Viktor Orbán’s party. Gyurcsány, as is his wont, puts it in stark terms. He considers the Orbán government illegitimate and illegal. Illegitimate because it didn’t receive a mandate to change the basic democratic structure of the country and lead it toward autocracy. It is illegal because it strives toward the acquisition of exclusive power. He also finds the 2012 Constitution illegal and illegitimate.

Neither Gyurcsány nor Mesterházy thinks that the 2012 Constitution can be left in place, but while Gyurcsány considers a two-thirds majority necessary to write a new constitution, Mesterházy perhaps  a little bit more realistically thinks that some kind of legal possibility exists that might solve the problem. For example, wide societal support for a new constitution that could force a referendum on the issue. That would require some very clever legal finagling given the current restrictive provisions of the Hungarian constitution.

Mesterházy spends some time distinguishing between Fidesz as a party and the Fidesz voters. He is convinced that the majority of those who voted for Fidesz in 2010 did so in the hope that Viktor Orbán would ensure them a better future but that by now they are disappointed in their man and his government. I disagree with his assessment of the current state of affairs. I don’t think that most Fidesz voters are disappointed. Yes, a lot are, but the so-called hard core is unshakable. In my opinion Mesterházy is far too optimistic when he writes about the eventual attrition of Orbán’s followers. Past experience tells us that 1.5 million people will always vote for Fidesz no matter what. Gyurcsány doesn’t address this problem.

Both think that political appointees must be relieved of their jobs because otherwise the new government would be totally powerless to make the changes necessary for the restoration of democracy. Gyurcsány specifically mentions a few crucial appointments in the judicial system such as Fidesz nominated judges to the Constitutional Court, new high-level judges, and the supreme prosecutor. He also thinks that many of the newly appointed civil servants most likely will have to be let go because by now the whole civil service is completely politicized. Unfortunately neither of them tells us how he would be able to accomplish this legally.

Both agree that the illegal concessions, be they land leases or tobacconist shops, must be reevaluated and if necessary revoked. As for the tobacco state monopoly Gyurcsány specifically calls for an immediate abrogation of the law. Let’s open the tobacco market, he says, and let the new Fidesz owners compete on a level playing field.

Gyurcsány is quite specific about which Fidesz changes he would leave alone. He would allow municipalities to choose whether they want to have their schools back or whether they are satisfied with having local schools under centralized state administration. One could even make an argument to leave hospitals in the hands of the state. He would not abolish the new administrative unit, the járás, although one most likely would give them autonomy instead of centralized state oversight.

These two men could easily see eye to eye. EP14-PM is a different matter. Bajnai’s team are ready for a compromise with Fidesz, and they think they could live with the current constitution after a little fiddling with it. On this point both Mesterházy and Gyurcsány are clear: there can be no compromise with Fidesz. This is such a basic disagreement of principle that it will be difficult to resolve. And, by the way, E14-PM again lost a couple of percentage points according to the latest Tárki poll that was released only today. The postponement of the negotiations in the hope of gaining strength didn’t bring the expected results. On the other hand, MSZP gained a couple of percentage points.

Report of the Venice Commission on the Hungarian Constitution: End of the dance of the peacock?

On March 12 the Hungarian parliament, despite protestations,  passed the fourth amendment to the less than one-year-old Hungarian constitution. The amendment itself was fifteen pages long and incorporated all the objectionable laws that had earlier been part of the temporary provisions. By incorporating them into the constitution proper, the Hungarian government through its super-majority in parliament prevented the Constitutional Court from studying their constitutionality. Earlier the Constitutional Court had found some of these provisions unconstitutional.

When the Hungarian parliament was considering passage of the fourth amendment, prominent EU politicians such as Thorbjørn Jagland, secretary general of the Council of Europe, and José Manuel Barroso, president of the European Commission, asked them not to move ahead. Angela Merkel personally warned János Áder, who happened to be on a state visit in Berlin, of the possible serious consequences if he signs this amendment to the constitution into law. Yet Áder went ahead and in a speech to the nation tried to justify his action by claiming that he had no other choice. His hands were tied by law. Some people, including former President László Sólyom, earlier chief justice of the Hungarian Constitutional Court, thought otherwise.

Viktor Orbán himself dismissed the criticism that the changes his government had made to the constitution were anti-democratic. “Who is able to present even one single point of evidence, facts may I say, that would be the basis for any argument that what we are doing is against democracy? Just one concrete step,” he told reporters ahead of a summit of  EU leaders in Brussels.

Well, it seems that the five constitutional scholars who were in charge of examining the provisions of the fourth amendment had plenty of evidence to prove that it is “against democracy.” I doubt that Viktor Orbán is as cocky today, after the Venice Commission’s report was mistakenly uploaded to its website ahead of schedule, as he was a day or two after the storm in mid-March. Apparently he told the Fidesz-KDNP parliamentary delegation at that time that “the more they attack us the better.” This time around it seems that these “attacks” will indeed have very serious consequences. Every European organization that is involved with the Hungarian constitutional crisis–the Council of Europe, the European Parliament, and the European Commission–had been waiting for word from the Venice Commission.

The handwriting was already on the wall in mid-April when the members of the Venice Commission visited Budapest and were handed a fifty-page reply to their criticisms. Róbert Répássy, undersecretary in the Ministry of Administration and Justice, sensed that “the members of the Venice Commission had already made up their minds.” I’m sure they had. After all, these five legal scholars had been studying the new Hungarian constitution as well as its amendments for over a year.

At this point, János Martonyi, most likely on instruction from above, asked three conservative legal scholars to take a look at the constitution and its amendments. The government was hoping for an endorsement of its position, but even their report, which arrived in early May, was not an unequivocal seal of approval.

I have only the summary of the report that  Népszava published last night. The original is 34 pages long and is apparently a complete condemnation of the Hungarian constitution as it now stands. (The report was taken off the site once the timing error was discovered.) The members of the Commission (the Austrian Christoph Grabenwarter, the German Wolfgang Hoffmann-Riem, the Polish Hanna Suchocka, the Finnish Kaarlo Tuori, and the Belgian Jan Velaers) consider the fourth amendment no more than a “political declaration” that “aims at the perpetuation of the political power of the current government.” The document itself has seven chapters and the objections are summarized in 155 points. Without trying to go into details on the basis of a summary, I’ll skip straight to the Commission’s final verdict. The Commission, unlike in other cases, doesn’t even bother to make suggestions that would perhaps remedy some of their objections. Rather, they indicate that the whole thing is unacceptable. It has to be abrogated. Thrown out.

The limits imposed on the Constitutional Court “have a negative influence on the Council of Europe’s three fundamental pillars: the separation of powers, the defense of human rights, and the rule of law…. The Hungarian constitution cannot be a political instrument…. The fourth amendment perpetuates the problems of the judiciary independence, severely undermines the possibilities of constitutional scrutiny, and endangers the constitutional system of checks and balances.”

Even Gergely Gulyás, Fidesz’s young star and expert on the constitution, admitted that this was a much worse outcome than he himself had anticipated. Naturally, he pointed out all the alleged inaccuracies and wrong interpretations, but I had the impression listening to his interview this afternoon that even he realizes that the Hungarian government doesn’t have a leg to stand on. The government will answer, but I doubt that they are too sanguine about being able to change the mind of the Venice Commission.

And a lot depends on the opinion of the Venice Commission. In the Council of Europe, the members have been waiting for the opinion of the legal experts before they hold a vote on imposing a monitoring procedure against Hungary. The European Parliament will soon vote on the LIBE recommendations.  The Venice Commission’s opinion might sway some members who hitherto have been undecided on the merits of Rui Tavares’s report. And there is the European Commission, whose decision on a new infringement procedure as a result of the fourth amendment has been in limbo, pending word from the Venice Commission. And finally, the legal opinion on the Hungarian political situation as embodied in the new Orbán constitution might tip the scale against Fidesz in the European People’s Party where until now the majority supported Viktor Orbán. After the release of this document it will be difficult if not impossible to stand by a man who uses his power for the perpetuation of his own rule while trampling on the most sacred tenets of democracy.

Viktor Orbán most likely knew a couple of months ago that this is what would happen. He said in one of his speeches that a new attack is under way and that by June Hungary will be the target of an international assault. I guess he has been preparing for the battle. But this battle will be very difficult to win. His opponents are numerous and strong. And the god of democracy is on their side.

The newest judge of the Hungarian constitutional court: A man jointly supported by Fidesz and Jobbik

You may recall that Viktor Orbán “packed” the Constitutional Court in July 2011. He nominated and parliament approved four new judges, increasing the size of the court from eleven to fifteen. Since then there was another Fidesz-KDNP appointee, László Salamon, who replaced Mihály Bihari who had to retire because he reached the age of seventy. László Salamon prior to his appointment was a KDNP member of parliament. So much for even the semblance of impartiality and independence. Another sitting judge, András Holló, will turn seventy in April, which provided an opportunity to further tip the Constitutional Court in Orbán’s favor.

The earlier Orbán appointments were criticized because the appointees didn’t have the necessary qualifications. Moreover, it was clear that these people were fully committed to the current government. Indeed, for the most part these four new judges have voted as a bloc in favor of the government’s position.

Imre Juhász / MTI, Photo László Beliczay

The new appointment, announced on March 19 and voted on the next day, is perhaps the most unacceptable of all. It looks as if Fidesz-KDNP and Jobbik struck a deal to appoint Imre Juhász, who is considered to be close to Jobbik. Here are some headlines that tell a lot about the general perception: “The right hand of Krisztina Morvai will be the new judge of the Constitutional Court,” “Fidesz and Jobbik made a deal,” “Imre Juhász is only a gesture to Jobbik.”

So, who is this Imre Juhász? Yes, he has a law degree. Shortly after graduation in 1986 he started teaching civil procedure at his alma mater, ELTE’s law school. First as a T.A. and from 1992 on as an assistant professor and later as an associate professor. Eventually he received a doctorate in law.

He became well known not because of his teaching activities but because he was one of the founding members of the Civic Legal Committee (Civil Jogász Bizottság). The committee’s shining light was Krisztina Morvai, who later became a prominent member of Jobbik and today serves as one of the party’s members of the European Parliament. I might add that the second star of this committee was Zoltán Balog, currently minister in charge of education, health, culture, sports and everything else under the sun. This unofficial far-right “committee” was set up to investigate the events of the September-October 2006 riots, especially the activities of the police. There was also an official investigating committee comprised of former police chiefs, sociologists, lawyers, and historians under the leadership of Katalin Gönczöl (Gönczöl Bizottság) that arrived at a critical but balanced assessment of the events.

Not so Morvai’s committee, whose seemingly sole purpose was to assist Viktor Orbán in discrediting Ferenc Gyurcsány and his government. I must say that they were very successful. They managed by repeated and noisy accusations to falsify the history of those days. Moreover, by now most people, including liberals and socialists who ought to know better, swear that there was a concerted police attack on innocent bystanders.

Balog already received his much deserved reward for services rendered. He is one of the most powerful ministers in Orbán’s government and perhaps the closest to the prime minister. Since Krisztina Morvai joined Jobbik, she cannot be openly supported by the present government, but surely Viktor Orbán must be grateful to her for the terrific job she did. The book the committee published was translated into English, and I understand that it was one of the two books Gergely Gulyás handed to Senator Ben Cardin at the U.S. Helsinki Commission’s hearing the other day. And now Imre Juhász receives a top job from the grateful Viktor Orbán.

MSZP, DK, and PM (Párbeszéd Magyarországért) boycotted the parliamentary committee that considered Juhász’s nomination. Only Fidesz, KDNP, and Jobbik MPs were present, and they enthusiastically endorsed Juhász. Tamás Gaudi-Nagy (Jobbik) explained that his party didn’t have an official candidate, but they can heartily endorse Juhász. Indeed, it would have been strange if they didn’t.

From what Juhász said in his hearing before the committee, we can have no doubt that he will be an obliging appointee. He doesn’t have any problems with the new restrictions on the constitutional court. If earlier decisions cannot be used, no problem. One must follow the new constitution without considering any legal renderings of the past. He also seems to be enamored with the “historical constitution,” which should receive much greater emphasis than it does currently. As far as the limits of the constitutional court are concerned, Juhász endorses the absolute supremacy of parliament. As we know from Kim Scheppele’s argument, this means the elimination of checks and balances and can lead to tyranny. He talked about his plans to defend the rights of Hungarians in the neighboring countries, something that I find difficult to comprehend. He as a member of the Hungarian Constitutional Court has no jurisdiction across borders. If Juhász actually means what he said to the committee, we may well be faced with a lot of unpleasantness between the Hungarian government and its neighbors.

Another hobbyhorse of Juhász is the repeal of the so-called Beneš doctrine. In his curriculum vitae Juhász called attention to his efforts when he referred to the two petitions he delivered to the European Parliament. The first in 2007 and the second in 2012. He handed in the more recent one jointly with Alida Hahn-Seidl, the representative of the Hunnia Baráti Kör (Hunnia Fraternity).

Gergely Bárándy, MSZP’s legal expert, called the nomination a hoax (kutyakomédia) in which his party will not participate. Gergely Karácsony announced that PM members will not pick up their ballots. DK announced the boycott even earlier. So, when it came to the final tally there were only 298 members present, of whom 286 members voted for Juhász and 12 voted against him. As far as I know, LMP remained in the chamber. And, by the way, over the weekend LMP decided that they will not negotiate with Gordon Bajnai’s Együtt 14 or any other opposition party.

Maiming the Hungarian constitution: Is the Orbán government willing to pay the price?

While opposition politicians are unable to agree on any meaningful joint action and the so-called intellectual class is deeply divided, the Orbán government is merrily proceeding with its plans to rewrite the new constitution. According to constitutional experts, if the latest amendments are voted into law Hungary will be without a valid constitution.

There was only one group that was ready to take things into their own hands. They decided to engage in civil disobedience. Since ordinary opposition gatherings are not even reported in the public media, tightly controlled by the government, they decided to do something that was guaranteed to get media coverage. They climbed a fence and settled in the courtyard of the Fidesz party headquarters. There they sat  for ten hours and repeated a few slogans. Mostly: “Constitution, Freedom” and “We protest the destruction of the constitutional system of the Hungarian Republic.”

The organizers of the Peace March, András Bencsik and Zsolt Bayer, immediately counterattacked. On Facebook they called on their followers to come and teach a thing or two to these little “Bolsheviks.” And they arrived. Someone described “the fruitful political dialogue” this way:

Youngsters: “We protest the destruction of the constitutional system of the Hungarian Republic.” And here are some of the answers from “the peace guardists”: “Do you want to have some acid in your face?” “Get lost and work!” “I’ll slap you on the face, you rat!” “Rotten, lousy communist stooge!” “Go to Moscow!” “Filthy f…ing Jews!” “Stupid fag!” “Come on out, if you dare, you little queers!”  That will give you an idea about the Fidesz fans who gathered in the name of Christian love and peace.

Here is our gentleman who threatened a young man with acid:

 

https://www.youtube.com/watch?v=YpR87Bjqe2M

Perhaps the officials inside the building no longer trust the police because they were ordered to retire after a while. “Volunteers”  arrived to save the building and those inside it from the peaceful demonstrators. Most of them came from the notorious Fradi (Ferencváros) fan club. One of the volunteers spent ten years in jail for murder and now serves as a “coordinator” for the fan club. The football hooligans physically tried to remove the protesters. Eventually the demonstrators left on their own but not before some of them climbed a wall and positioned themselves on a balcony. The clever student leaders began reciting Fidesz’s 1989 party program which was full of liberal demands. The counter-protesters naturally had no idea that what they were screaming at was really Victor Orbán, their idol.

Older women were especially vocal. They simply couldn’t understand what the protesters were complaining about. How can they be dissatisfied when at last the country has a “good government”? One woman, obviously a pensioner, claimed that it is her money that these students are wasting.

One really has to be deaf and blind to claim that the small crowd that gathered in the courtyard of the Fidesz headquarters was “rabble” as Péter Boros, prime minister of Hungary for a few months after József Antall’s death in 1993-1994, did. Interestingly enough, he had nothing to say about the behavior of the counter-protesters. One can get a vivid picture of the Fidesz crowd by watching this video:

But perhaps the most shocking and most telling example of the mindset of the peace marchers and Orbán supporters is a very professionally executed banner. On it one can see practically all the important MSZP politicians in addition to Ferenc Gyurcsány, Gordon Bajnai, Lajos Bokros, and András Simor. The banner reads: “The nation is in mourning! It suffers from the presence of traitors.”  In Hungarian it has even more punch: “Gyászol a nemzet! Hazaárulóktól szenved!”  Just think about this horrendous statement. I don’t know whether the people actually know what they are saying, because from this banner it is clear that what they want is a one-party system. The opposition has no right to exist. In fact, they should be eliminated as traitors used to be. Perhaps hanged.

The nation is in mourning! It is suffering from the presence of traitors / Népszabadság Árpád Kurucz

Yesterday’s protest was laudable in many ways. Take, for instance, the poise and dignity of the protesters. As you can see on the video, the young man didn’t lose his cool despite repeated physical and verbal abuse. Second, their protest lasted over ten hours. At the beginning they were alone, but once word got out about the gathering others joined them. By the time the demonstrators decided to walk over to the building of the Constitutional Court their numbers had swelled to about 1,000. By contrast, the counter-demonstrators got tired of screaming and their numbers decreased fairly rapidly.

The football hooligans of Gábor Kubatov’s Ferencváros football team, I think we can now say with conviction, are in the employ of Fidesz. Not necessarily in the sense of having paid positions but in being ready to assist “their party”  if necessary. Certainly, someone from the building called on them. One can’t help thinking of the storming of the public television station by Fradi football hooligans.

And finally, the protesters are determined to continue their fight for democracy, the constitution, and the rule of law. Moreover, they seem to have realized that without parties they cannot be successful. At their next demonstration tomorrow parties are welcome.

And, in a critical turn of events, the European Union and the Council of Europe are also waking up to the harsh reality in Hungary. I already wrote about German Undersecretary of Foreign Affairs Michael Link’s warning letter in the Frankfurter Allgemeine Zeitung a few days ago. I was sure at that time that something was brewing in Germany. And, indeed, today ” in a statement reflecting deep seated anxiety at the direction Orbán is taking Hungary, Germany and three other EU countries called for Brussels to be given new power allowing it to freeze EU budget funds to a member state in breach of Europe’s ‘fundamental values.'” The three other countries are the Netherlands, Denmark, and Finland. Since then we found out from the spokesman of the European Commission that José Manuel Barroso phoned Viktor Orbán this morning and warned the Hungarian prime minister that the proposed changes in the Hungarian constitution are not only incompatible with the rule of law but also might violate laws of the European Union. Following the conversation Barroso sent a letter in which he summarized the points he made during the telephone conversation.

I should also mention that today we learned that President János Ader will be in Berlin on Monday and Tuesday next week. On Monday he will meet President Joachim Gauck. Tuesday his first trip will be to Foreign Minister Guido Westerwelle followed by a conversation with Chancellor Angela Merkel. Some might say that this trip was arranged some time ago and has nothing to do with the current brouhaha over the Hungarian constitution. Perhaps, but I find it odd that the president of Hungary has an appointment with the German foreign minister. I doubt that this is normal protocol. My hunch is that although the trip might have been arranged earlier, the meeting with Westerwelle was added only recently. But this is only a guess on my part.

Viktor Orbán’s grandiose plans might be thwarted by Strasbourg and Brussels

The bureaucrats, speculators, and foreign press are once again lining up against the Hungarian government.

Let’s start with the forint, which today breached the 300 mark against the euro. The forint’s weakness is the result of several factors: the appointment of György Matolcsy as chairman of the Hungarian National Bank; rumors about the possible exchange of some of the bank’s foreign reserves for rubles; and, the latest, word that the government intends “to assist” Hungarians with their foreign currency loans. The government would convert these loans into ones denominated in forints and would also lighten their burden by paying a certain percentage of their debt. The Hungarian government would use some of the reserves of the Hungarian National Bank for this purpose.

There are political pressures on the Orbán government as well. In the March 5 issue of the Frankfurter Allgemeine Zeitung Michael Link, undersecretary in the German Foreign Ministry, wrote a piece that appeared on the op/ed page of the newspaper and available on the website of the German Foreign Ministry or in Hungarian on the Galamus site. The title itself is telling: “Hungary must remain a country of the law.” In the body of the article Link reasserts that “we cannot be indifferent” to what is happening in Hungary. Earlier the European Commission managed to convince the Hungarian government to change some passages in the Constitution. The Hungarian Constitutional Court also found some of the laws passed by the Hungarian Parliament to be unconstitutional. Now, however, there are new attempts to smuggle back all the formerly objectionable passages into the body of the constitution. These “new initiatives limit the freedom of expression for the alleged protection of the dignity of the Hungarian nation.”

As a friend of Hungary, Link would like Hungary “to demonstrate that the country has an effective separation of power between the legislative and the judicial” branches. As it stands, the Constitutional Court hands down judgments that the government ignores. “We need a vibrant parliament with a perceptible opposition and a confident Constitutional Court.” Link also wishes that “the two-thirds majority the Government relies on is used prudently. A two-thirds majority is not a free ride…. The European values that we share in the world, we must also cherish at home.” For good measure Link mentioned that Foreign Minister Guido Westerwelle shares these concerns. Common European values “must apply to all EU members, both new and old.” As with each member state Hungary remains “master of its cultural identity,” but there have to be shared values. Among them the rule of law is the most central. “It must be able to develop without any ifs, and, or buts.”

The Hungarian answer that came from Gergely Gulyás, a young Fidesz MP and a member of the parliamentary committee on constitutional matters, was that “it is a misunderstanding” that the Hungarian government wants to limit the competence of the Constitutional Court. To the contrary, its latest amendments were made at the request of the Court itself. What else is new? We know from earlier government statements that everybody misunderstands the intentions of the Hungarian government and Viktor Orbán.

On the very same day the Financial Times came out with an editorial on “Orbán’s threat to democratic values.” It is about the same amendments Michael Link was talking about. The article reminds people that last year Viktor Orbán backed down on aspects of a new constitution that would have posed a threat to judicial, religious, and press freedoms. But this week the Hungarian parliament threatened to revive “curbs that violate European values in an amendment to the constitution. If this goes ahead, the response from Brussels should be rapid and robust.” According to the editorial, Brussels should “set out in precise detail where the amendment violates Hungary’s membership of the EU. But once that is established, it should warn Mr Orbán that it is prepared to use the most powerful weapons in its armoury to defend European values.” The article recalls that the EU was ill equipped thirteen years ago to handle the situation when the Austrian government included a far-right party as a coalition partner. But the editorial stresses that “this time there is greater political consensus that Mr Orbán’s attacks on democratic norms cannot be tolerated.” The FT editors suggest a withdrawal of Hungary’s voting rights and add that “financial sanctions too should be considered…. Faced with an economy in deep recession, and a decline in foreign investment, Mr. Orbán needs the money. Brussels should not hesitate to threaten a withdrawal of structural subsidies, for example, if Mr. Orbán does not call on his party to drop any amendments that violate EU membership. If the Hungarian prime minister insists on flouting European values, he cannot expect Europe’s support.”

And if that weren’t enough, today the secretary general of the Council of Europe called on the Hungarian government to postpone the vote on the latest amendment to the constitution. Thorbjørn Jagland wrote: “I have misgivings concerning the amendments that may not be compatible with the rule of law.”  He further argued that with the incorporation of these amendments the government with its two-thirds majority is forcing its will on the Constitutional Court and is thereby endangering the system of checks and balances. He suggests a postponement of the vote in order for the Venice Commission to study the matter.

The embattled Hungarian Constitutional Court fights back

Originally I wanted to write about the excitement over rumors that Péter Erdő, head of the Hungarian Catholic Church, might be a serious candidate to become the next pope. Not because I believe for a moment that Erdő has a chance but because devoting a post to him would give me an opportunity to spend some time on the state of the Hungarian Catholic Church under his leadership.

But then a barrage of legal news arrived. So today I would like to concentrate on two recent issues: the precarious position of the Hungarian Constitutional Court and its latest decisions.

Let’s start with the issue of the red star. The European Court of Justice ruled twice in the past few years on the display of the red star. In the early days of the Third Republic the use of symbols representing dictatorships, e.g. the red star on the one hand and the swastika or the symbol of the Arrow Cross Party on the other, was deemed a criminal act. At least two individuals tested the legality of the law by displaying the red star and being found guilty. When they exhausted all appeals  they went to Strasbourg. In both cases the European Court of Justice ruled in favor of the plaintiffs and the Hungarian state had to pay a few thousand euros to them by way of compensation. At this point even Tibor Navracsics, the minister of justice, thought that it was futile to stick with the original passage in the criminal code because time and again Hungary would lose in the European Court of Justice.

So, the Constitutional Court took the case and handed down an unexpected decision. They ruled that not only should the display of the red star be legalized but also symbols of far-right dictatorships. I guess the judges wanted to save themselves from the uncomfortable position of  repealing only half of the law, the one related to the communist symbol.

People who argue that the red star should be legalized while the swastika, for example, shouldn’t, claim that the red star was originally the symbol of the working class movement and social democracy and not the symbol of Soviet dictatorship. Only later were the red star and the red flag expropriated by a cruel dictatorship that had little to do with the original idea. Moreover, these people add that the far-left ideology is practically nonexistent in Hungary today and thus poses no threat to democracy.

On the other hand, goes the argument, the Hungarian far right is strong and poses a threat. Moreover, while in the Hungary of  the pre-war years the Hungarian communist party was a negligible organization, the Hungarian far right was strong. Thus, the swastika and the symbol of the Hungarian Arrow Cross Party should be banned because of the history of far-right movements and their present strength in the country.

Political reactions to the Constitutional Court’s decision are telling. The first party to respond was the Christian Democratic Party. MTI reported that the party accepts the decision but “it regrets that from here on anyone can march with an emblem depicting the hammer and the sickle or the red star on May 1.” Then Antal Rogán expressed his regret that “anyone can loiter on the streets with a swastika, the red star, or an SS badge.” He considers this situation untenable and brought up the possibility of another amendment to the constitution that would forbid the display of these symbols.

But, of course, the last word is Viktor Orbán’s and he announced a couple of days ago that the law forbidding the use of these symbols must stay. He announced his opinion on the day that was devoted to the victims of communism. The communist symbols, as we know, bother him more than those of the far right. After all, Orbán makes every effort to appease the far right and therefore glosses over the past and present sins of the Hungarian Nazis.

A more important decision of the Constitutional Court is the ruling on the disputed church law. Today the Court repealed parts of the law and told parliament to work out new rules on the status of churches. I have written fairly extensively on the issue; one can read some of the details here. The decision is retroactive, which means that the seventeen churches that were stripped of their status as bona fide churches will regain their former legal status.

This decision was hailed by practically everybody as a great victory for Hungarian democrats and a serious defeat for the Orbán government. See, for example, the quick response to the law by Bloomberg. I would wait, however, before rejoicing. Again the first government politician who responded to the decision was a Christian Democrat, Tamás Lukács, a not so bright lawyer, who pointed out that the parliament at the moment is working on the new amendments to the constitution and if these amendments are approved (and who doubts that they will be approved) the Court’s decision might have to be re-examined.  This doesn’t sound too promising. Even less promising is what Antal Rogán had to say a few minutes later. In his opinion the amendments to the constitution “will solve the problem.” But he added that they will carefully study the matter and they will respect “whatever possible” of the decision. And naturally there will be parts they will ignore.

And finally, which I can touch on only very briefly here, there is the Orbán government’s decision to further strip the Constitutional Court of its already greatly curtailed powers. A few days ago we learned that the plan is to annul all Court decisions of the last twenty-two years. Zoltán Fleck, a professor of law, considers such a step a “liquidation of our twenty-year-old constitutional development and our legal culture.” However, according to an MTI report today, “ruling Fidesz lawmakers … will reconsider [their] earlier proposal to strip the Constitutional Court of its right to refer to its previous decisions when making a ruling.” Apparently, in the parliamentary committee on the constitution the legislators are contemplating another version of the proposal that would allow the Court to make decisions identical to its earlier rulings and/or make decisions contrary to earlier decisions.

The country is in legal limbo but probably not for long. Orbán has appointed a new judge who used to be a Christian Democratic member of parliament. He will join the five earlier appointees who vote together and always in the government’s favor. Within a few months another judge will be appointed. Soon enough, the Constitutional Court will also be Orbán’s plaything.

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

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.