There are a lot of misconceptions out there about Hungary’s new constitution – the Fundamental Law – and the recently passed 4th Amendment. Here are some of the most common, along with the facts.
“The changes threaten the system of checks and balances because the amendment limits the powers of the Constitutional Court”
The amendment in fact expands the competence of the Constitutional Court. First, it makes it clear that the Constitutional Court has indeed competence to examine amendments to the Fundamental Law from a procedural point of view (this power had not been specifically provided until this amendment). It also makes it clear that the Constitutional Court cannot review the substance of the Fundamental Law itself, which is in line with earlier Constitutional Court rulings.
Second, it extends the circle of those entitled to initiate review of new legislation. The circle now includes the government, one quarter of the members of parliament, the ombudsman, the president of the Court and the chief prosecutor.
The 15-page Amendment in fact contains only a few new provisions and therefore can hardly be regarded as “brand new.” Most of these provisions have been applicable since the Fundamental Law entered into force on the 1st of January, 2012. In December 2012 the Constitutional Court annulled parts of the ’Transitional Provisions to the Fundamental Law.’ The transitional provisions were a legislative vehicle for transition between the old constitution and the new Fundamental Law, and the Court struck part of them down for formal legal reasons, arguing that they were not transitional in nature. The Court explicitly said that it was the Parliament’s task and responsibility to revise the annulled provisions and decide which matters should be re-regulated in the Fundamental Law itself.
“Legal protections are weakened by abolishing case law”
Decisions of the Constitutional Court must be based on the new Fundamental Law because the old constitution is no longer in force. Decisions of the Court issued before January 1, 2012, when the Fundamental Law came into effect, will no longer be formally in force. But the legal effect of these decisions will remain unchanged.
The Constitutional Court remains free in its interpretation. It can rule in a specific case just as it did before the new Fundamental Law. But because the Fundamental Law is effectively the new constitution, the Constitutional Court would have to base its decision on the Fundamental Law, not merely refer to the old constitution.
Other criticisms raised say that the changes allow the government to reintroduce measures previously rejected by the court or dropped under EU pressure. These include the misconceptions that:
“Students are forced to remain in Hungary”
Students can pay for their studies however they like. One possibility is through the full scholarships that the state offers each year. If a student accepts a state scholarship, under the new legislative regime, he or she may be required to work in Hungary for a commensurate period of time. Students are not ‘forced’ to stay in Hungary, but must repay the support if they breach this condition. The implementing law, being discussed with student representatives, will ensure proportionality between the amount of support provided and period of time required to work in Hungary.
Alternatively, students may take preferential tuition loans, backed by the state, or finance their own studies.
“Political advertising will be banned”
A particular type of political advertising, specifically TV and radio campaign spots, will be limited to state TV and radio channels. However, air time on the national channels during the campaign period will be free of charge and subject to strict allocation criteria. The aim of limiting paid political advertising on TV and radio is to level the political playing field and reduce campaign costs. The implementing law will not affect political advertising in other forms (e.g., billboard, flyers, internet) and will be subject to judicial review.
“Homelessness will be criminalized”
In fact, the Fundamental Law includes an obligation for state and local authorities to strive to provide decent housing and accommodation to all persons. It’s completely false that homelessness will be criminalized. There are no provisions for penalties for homelessness in the Fundamental Law.
It does include a clause that allows local governments to prohibit habitual living in certain public areas on the basis of clear and justified criteria (public order, public security, public health and protection of cultural heritage). Such prohibitions, which do not in any way criminalize homelessness, can be challenged before the Constitutional Court.
“Freedom of expression is limited”
The new provisions follow the logic that “freedom of expression may not be exercised with the aim of violating the dignity of the Hungarian nation or of any national, ethnic, racial or religious community” and will secure the right of individuals belonging to various communities to bring a civil law action (but not criminal law action) before the court because of hate speech.
In a previous ruling, the Constitutional Court stated that “human dignity may put a limit on the freedom of expression.” The Venice Commission also recalled that “the EU Charter places the individual and the individual dignity at its heart.”
This legislative change has been hailed as a historic step by many – particularly by Jewish communities – as a step forward in fighting hate speech.
“Family is defined too narrowly”
The Fundamental Law states that marriage and the parent-child relationship are the basis of the traditional family relationship. Non-married couples and children in non-traditional relationships retain the same rights as before. The issue of homosexual marriage rights in Hungary is regulated by the Civil Code and not by the Constitution, similarly to most countries of the EU, under the category of civil union. While it is clear that there are different approaches to define marriage in Europe, the Venice Commission stated that the definition of marriage belongs to the Hungarian state and its constituent legislator.
(A blog entry by Mr. Ferenc Kumin, Deputy State Secretary for International Communications Hungarian Government)
