Let’s hope that I will be able to tear you away from the historical discussion that has developed after my short note on the Hungarian situation in 1918-1919 and move on to the present.
I would like to turn to the draft report of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) on Hungary. It is a 30-page document that shows a thorough understanding of every aspect of Hungarian politics, relating specifically to constitutional issues, and recommends tough sanctions. But it is only a draft proposal to which amendments can be attached. The members of LIBE–fairly equally divided between the right and the left–will have to vote on the amendments one by one.
The proposed amendments were made public the other day: a total of 551 amendments taking up 134 pages. That is 134 pages of amendments to a 30-page document. About two weeks ago I read somewhere that the Fidesz delegation itself submitted 200 amendments. The members of the Fidesz delegation were assisted by two other Hungarian members of the European People’s Party, Edit Bauer of Slovakia and Csaba Sógor of Romania. These two were almost as busy as Kinga Gál (Fidesz), who submitted at least 75 amendments. Another Fidesz MEP, Lívia Járóka, an ethnic Roma, was also active. László Surján and Ildikó Gáll-Pelcz also submitted minor amendments. I find it interesting that Hungarian nationals like Bauer or Sógor who don’t live in Hungary are so heavily involved with Hungarian domestic policies. I might add that Kinga Gál was born in Cluj/Kolozsvár, Romania.
The Hungarian group was greatly aided by Frank Engel, EPP MEP from Luxembourg, who at times was just as radical in his opposition to certain recommendations as were the Hungarian defenders of the Orbán government. Jean-Pierre Audy (France EPP) was also fairly active.
On the other side (the greens, the left front, the socialists, and the liberals) few people seemed to find fault with the draft document. Their amendments were minor and often aimed at clarifying or strengthening Tavares’s arguments. If the committee follows the suggestions of the Gál-Bauer-Sógor-Engel group, however, not much would remain of the original recommendations.
Here are a few examples. Frank Engel would delete recommendation 58 of the Tavares report, which reads:
Considers that the European Council cannot remain inactive in cases where one of the Member States is faced with changes that may negatively affect the rule of law in that country and therefore the rule of law in the European Union at large, in particular when mutual trust in the legal system and judicial cooperation may be put at risk.
Edit Bauer is perhaps the most radical because she would eliminate almost all the recommendations to the Hungarian Authorities. Here is one of the key sets of recommendations (section 61) of the LIBE draft report that the Fidesz supporters find especially odious. It’s long but nonetheless worth quoting in full.
Urges the Hungarian authorities to implement the following recommendations without any further delay, with a view to fully restoring the rule of law and its key requirements on the constitutional setting, the system of checks and balances and the independence of the judiciary, as well as strong safeguards for fundamental rights, including freedom of expression, media and religion and the right to property:
On the Fundamental Law:
– to fully restore the supremacy of the Fundamental Law by removing from it those provisions previously declared unconstitutional by the Constitutional Court;
– to fully apply the recommendations of the Venice Commission and, in particular, to revise the list of policy areas requiring a qualified majority in line with the recommendations of the Venice Commission and with a view to ensuring future meaningful elections;
– to secure a lively parliamentary system which also respects opposition forces by allowing a reasonable time for a genuine debate between the majority and the opposition and for the participation of the wider public in the legislative procedure;
On checks and balances:
– to restore the right of the Constitutional Court to review all legislation without exception with a view to counterbalancing parliamentary and executive actions and ensuring, through full judicial review, that the Fundamental Law always remains the supreme law of the land;
– to fully restore the prerogatives of the Constitutional Court as the supreme body of constitutional protection, and thus the primacy of the Fundamental Law, by removing from its text the limitations on the Constitutional Court’s power to review the constitutionality of any modifications of the Fundamental Law as well as the abolition of two decades of constitutional case-law;
– to restore the case-law of the Constitutional Court issued before the entry into force of the Fundamental Law, in particular in the field of fundamental rights;
– to restore the prerogatives of the parliament in the budgetary field and thus secure the full democratic legitimacy of budgetary decisions by removing the restriction of parliamentary powers by the non-parliamentary Budget Council;
– to provide clarifications on how the Hungarian authorities intend to remedy the premature termination of the term of office of senior officials with a view to securing the institutional independence of the data protection authority;
On the independence of the judiciary:
– to fully restore and guarantee the independence of the judiciary by ensuring that the principles of irremovability and guaranteed term of office of judges, the rules governing the structure and composition of the governing bodies of the judiciary, as well as the safeguards on the independence of the Constitutional Court, are enshrined in the Fundamental Law;
– to promptly and correctly implement the above-mentioned decisions of the Court of Justice of the European Union of 6 November 2012 and of the Hungarian Constitutional Court, by enabling the dismissed judges who so wish to be reinstated in their previous positions, including those presiding judges whose original executive posts are no longer vacant;
– to establish objective selection criteria, or to mandate the National Judicial Council to establish such criteria, with a view to ensuring that the rules on the transfer of cases respect the right to a fair trial and the principle of a lawful judge;
– to implement the remaining recommendations laid down in the Venice Commission’s opinion No CDL-AD(2012)020 on the cardinal acts on the judiciary that were amended following the adoption of Opinion CDL-AD(2012)001;
On the media and pluralism:
– to fulfil the commitment to further discuss cooperation activities at expert level on the more long-term perspective of the freedom of the media, building on the most important remaining recommendations of the 2012 legal expertise of the Council of Europe;
– to ensure timely and close involvement of all relevant stakeholders, including media professionals, opposition parties and civil society, in any further review of this legislation, which regulates such a fundamental aspect of the functioning of a democratic society, and in the process of implementation;
– to observe the positive obligation arising from European Court of Human Rights jurisprudence under Article 10 ECHR to protect freedom of expression as one of the preconditions for a functioning democracy;
– to respect, guarantee, protect and promote the fundamental right to freedom of expression and information, as well as media freedom and pluralism, and to refrain from developing or supporting mechanisms that threaten media freedom and journalistic and editorial independence;
– to make sure that legally binding procedures and mechanisms are in place for the selection and appointment of heads of public media, management boards, media councils and regulatory bodies, in line with the principles of independence, integrity, experience and professionalism, representation of the entire political and social spectrum, legal certainty and continuity;
– to provide legal guarantees regarding full protection of the confidentiality of sources principle and to strictly apply European Court of Human Rights-related case-law;
– to ensure that rules relating to political information throughout the audiovisual media sector guarantee fair access to different political competitors, opinions and viewpoints, in particular on the occasion of elections and referendums, allowing citizens to form their own opinions without undue influence from one dominant opinion-forming power;
On respect for fundamental rights:
– to take positive action to ensure that the fundamental rights of all persons, including persons belonging to minorities, are respected;
On the freedom of religion and the recognition of churches:
– to establish clear, neutral and impartial requirements and institutional procedures for the recognition of religious organisations as churches which respect the duty of the State to remain neutral and impartial in its relations with the various religions and beliefs and to provide effective means of redress in cases of non-recognition or lack of a decision in line with the constitutional requirements set out in the above-mentioned Decision 6/2013 of the Constitutional Court;
Very often Edit Bauer, Frank Engel, Csaba Sógor, and Kinga Gál want to delete exactly the same passages from the draft report. Since I suspect that these four worked together, the repetitions are not the results of an oversight. Rather they most likely want to emphasize four times over how unacceptable these recommendations are. Engel, for example, wants to get rid of “to restore the right of the Constitutional Court to review all legislation without exception with a view to counterbalancing parliamentary and executive actions and ensuring, through full judicial review, that the Fundamental Law always remains the supreme law of the land.” He also wants to get rid of the passage “to restore the case-law of the Constitutional Court issued before the entry into force of the Fundamental Law, in particular in the field of fundamental rights.” Edith Bauer wants to remove the passage “to implement the remaining recommendations laid down in the Venice Commission’s opinion … on the cardinal acts on the judiciary that were amended following the adoption of Opinion CDL-AD(2012)001.”
These amendments will be discussed in the LIBE Committee on Thursday, after which Tavares will try to come up with a compromise text. Then, most likely on the 19th, the members of the committee will vote. The revised report will come before the plenary session of the full European Parliament, probably in July.