The End of Liberal Constitutionalism in Hungary?

–Gábor Halmai, Professor of Law, Eötvös Lóránd University (Budapest) and Visiting Research Scholar, Princeton University

Last month, on March 11, the Hungarian Parliament voted on the fourth amendment to the the country’s 2011 constitution which has moved many statutory provision into the constitution despite Constitutional Court rulings striking them down and the European Union, the Council of Europe and the US government urging reconsideration. These moves reopen serious doubts about the state of the liberal constitutionalism in Hungary.

On February 8, 2013, all the MPs of Hungary’s governing coalition–which currently has the two-thirds majority in Parliament that is needed to pass constitutional amendments–submitted the fourth amendment[1] to the country’s constitution of 2011, called the Fundamental Law.[2] The reasons for this fifteen page comprehensive amendment to the still new constitution are the result of previous decisions by the Hungarian Constitutional Court, in particular a ruling issued at the very end of 2012. This decision ruled that those parts of the Act on the Transitional Provisions of the Fundamental Law which are not transitory in nature, cannot be deemed as part of the constitution, and are therefore invalid.[3] This ruling made it possible for the Court to review the substance of some of the cardinal laws based on claimed constitutional status of the Transitional Act.[4] Among these reviewed and annulled laws was one on voter registration, which the Court found unconstitutional.[5] When the fourth amendment was submitted, a decision on the constitutionality of the cardinal law on the status of churches was expected and the Court issued its ruling on February 26, 2013, declaring parts of it to be unconstitutional.[6] These important defeats of the government show that the judges who are perceived to be unconditionally loyal to governing Fidesz, are still not in sure majority within the Court, and this is the reason for the government wanting to limit the Court’s influence even further.

In response to the decisions, the amendment elevates the annulled non-transitory provisions of the Transitional Act into the main text of the Fundamental Law, with the intention of excluding further constitutional review, as the draft amendment also proposes prohibiting the Constitutional Court from reviewing the constitutionality of constitutional amendments. Among other issues lifted to constitutional rank are the annulled provisions of both the cardinal law on the status of the churches, and the Transitional Act, according to which the designation of legally recognized churches is vested in the Parliament itself. The annulled law has listed fourteen legally recognized churches and required all other previously registered churches (some 330 religious organizations in total) to either re-register under considerably more demanding new criteria, or continue to operate as religious associations without the legal benefits offered to officially recognized churches. As a result, only eighteen have been able to re-register. This means that the vast majority of previously registered churches have been deprived of their status as legal entities. Even though the Constitutional Court argued that the registration of churches by the Parliament does not provide a fair procedure for the applicants, this procedure will be constitutional in the future, which effectively means an end of the freedom to establish new churches in Hungary.

Another provision of the Transitional Act to be relocated to the Fundamental Law is the authorization of the President of the National Judicial Office to select another court, if she thinks that the competent one is overloaded with cases. Similarly, provisions annulled earlier by the Constitutional Court, besides the ones that were part of the Transitional Provisions, have also become part of the amendment. One of them is the authorization of the legislature to set conditions for state support in higher education, such as requiring graduates of state universities to remain in the country for a certain period of time after graduation.[7] Another retribution for the declaration of unconstitutionality is the authorization of both the legislature and local self-governments to declare homelessness unlawful.[8] At the end of 2012, the Court had annulled the very definition of the family in the law on the protection of families. Now the Fundamental Law will define marriage of men and women and the parent-child relationship as the basis of a family relationship, excluding not only same-sex marriage, but also non-marital partnerships. Likewise, the Constitutional Court had expressed constitutional concerns about private law limitations of hate speech. The new amendment was made to allow such limitations, not only to protect racial and other minorities, but also to protect the dignity of the members of the Hungarian nation. Finally there is a set of amendments related to the power of the Constitutional Court itself, as a direct reaction to recent unwelcome decisions of the judges. The most alarming one annuls all Court decisions prior to when the Fundamental Law was entered into force.

These amendments in effect kill off not only many fundamental rights, but also basic constitutionalism in Hungary. After the vote, the EU and the Council of Europe said that they ask the Venice Commission, the Council of Europe’s constitutional expert body to carefully assess the amendments, which raise “concern with respect to the principle of the rule of law, EU law and Council of Europe standards”. The question now is what European institutions will be able to do. Will they be able to prevent the current attempt of the Hungarian government to violate European constitutional values?