The Fourth Amendment of the Basic Law: analysis of the consequences

After a number of laws passed by the governing parties enjoying a super-majority in Parliament were struck down by the Constitutional Court in the past year, the Fidesz-KDNP coalition passed a basic law amendment. As a result, in the future Parliament’s two-thirds majority may amend the Constitution without control, i.e., it may pass any legislation at will. At the same time, the lengthy amendment inserts a number of passages into the Basic Law the government had earlier tried to enact through legislation, acts found unconstitutional and annulled by the Constitutional Court. On March 13, 2013 President János Áder announced he would sign the package of Basic Law amendments.

Major findings

• After three years, with a presidential approval and the fourth amendment of the Basic Law the government has achieved its objective of removing all obstacles before its two-thirds parliamentary majority. Thanks to the amendment and a constitutional interpretation ‘sanctioned’ by the President, nothing stands above the decisions of the government and its two-thirds parliamentary majority in the Hungarian body politic and, for all practical purposes, from now on anything can be written into the Basic Law.
• In its three years in power the second Orbán administration has made a number of questionable decisions raising concerns well beyond partisan politics (e.g., media act, restriction of Constitutional Court jurisdiction). However, the fourth amendment of the Basic Law has raised the stakes to a new, unprecedented level. Essentially, it removes all controls over any parliament with a super majority. In other words, the issue goes beyond the current Parliament dominated by Fidesz-KDNP; in the future, any political power enjoying the two-thirds majority will be free to govern Hungary without checks and balances.
• Moreover, under public law all this could be done legally as, according to the government’s legal interpretation applied in the past three years, legality is nothing but a formality. The President’s announcement also reflects this kind of thinking. János Áder stated: “To be a democrat means that one must adhere to the forms and framework of the law under all circumstances”. In other words, there are only forms and frameworks and no substantive requirements can be made of democracy and the rule of law. It is sufficient to respect the letter of the law and not its spirit. The amendment package inserts substantively unconstitutional provisions into the Basic Law, i.e., in fact, they are no longer unconstitutional in the formal sense, but remain so in their essence.
• In theory, the rule of law means more than observing legal regulations in effect (and worded by the powers that be). It also implies consistency and legal certainty, two key principles thoroughly eliminated by the Basic Law.

Government position

• The government explains the need for amending the Basic Law by claiming it is simply following Constitutional Court guidelines and correcting passages challenged by the CC on “formal grounds”. It bases its argument on the fact that the CC struck down the Basic Law’s so-called temporary provisions because they contained not only temporary but also general provisions.
• However, the reinstated temporary provisions (some of which are likely to be substantively flawed as well, although these have not been reviewed by the Constitutional Court) constitute only a small part of the comprehensive amendment package. The governing parties try to cover up that a number of other items in the package are passages taken from legislation passed earlier by the current Parliament, passages found substantially unconstitutional and thrown out by the Court. Moreover, the amendment package also includes a number of new provisions.

Content of the Basic Law amendment package

An overview of the major changes, following the order of proposals in the Bill (items already substantively reviewed and struck down by the CC are italicized):

• The definition of ‘family’. Under the current Basic Law the family relationship is limited exclusively to marriage between a man and a woman, and the parent-child relationship. Last December the CC reviewed the family protection act and found these provisions overly restrictive.
• Presidential competencies. In respect to constitutional amendments, the President may request a Constitutional Court review by referring only to procedural mistakes and may not challenge legislation on substantive grounds. In essence, any Parliament with a two-thirds majority may enter anything into the Basic Law without control.
• Active role in the one-party state. Rules meant to restrict the legal rights of persons that played an active role in a dictatorship will be raised to the constitutional level. An abridged version of a passage on active participation in the one-party state set forth in a temporary provision will be lifted into the Basic Law. It describes the Hungarian Socialist Workers Party (MSZMP) in power between 1956 and 1989 as a criminal organization whose liability has not lapsed. While the act does not name MSZMP's legal successor, the Hungarian Socialist Party (MSZP), it states that all successor parties to MSZMP share its responsibilities.
• The status of churches. The Basic Law states that a religious community may only be recognized by Parliament and only with a two-thirds majority. After reviewing the act on churches, at the end of February the Constitutional Court declared the act unconstitutional and stated that, instead of a political decision by a two-thirds majority, the recognition of churches based on rules and overseen by the courts is desirable.
• Limitation of the election campaign in the media. After reviewing the election procedures act, in January 2013 the Constitutional Court struck down the provision limiting political campaign advertising to the public media. With the new amendment, the Constitution stipulates that in future election campaigns political parties may advertise only in public radio and television (i.e., advertising in commercial television and radio is banned – the provision does not involve the printed and online media, where advertising will be still allowed). Under the new regulation, public media may not charge a fee for political advertisements. At the same time, the ban does not extend to government advertising, which may undermine the principle of fair political competition.
• Hate speech. The Basic Law will be extended with a ban on hate speech. Insulting any national, ethnic, racial or religious community, as well as the Hungarian nation will be punishable by law. In the past the Constitutional Court has always struck down similar efforts to limit free speech.
• University autonomy, a ban on the freedom of movement. The government assumes the financial management of universities and institutes of higher education, i.e., these institutions will lose a large part of their autonomy previously granted by the Constitution. At the same time, banning the free movement of university graduates will receive constitutional protection: in return for state-subsidized higher education, graduates will have to stay and work in Hungary for a specified period of time. In the past, the Constitutional Court overruled this provision for formal reasons.
• The criminalization of homelessness. In one of its previous rulings, the Constitutional Court threw out legal measures authorizing municipalities to ban the homeless from public areas, describing the move as violating human dignity. The current amendment returns that right to state and local governments, and in the future the authorities may simply refer to public order and community interests. In compensation, the state will “have to make every effort” to find shelter for the homeless.
• Ethnic minorities. Henceforth, recognition of national ethnic minorities will be regulated by an act requiring a two-thirds majority, based on residence and the size of national minorities.
• Parliamentary Guard. The new Basic Law will also include the provision authorizing the speaker of the House to call on the Parliamentary guard under his command and discipline members of Parliament. To date the work of delegates has been regulated only by constitutional rules.
• Jurisdiction of the Constitutional Court – constitutional amendment. As a result of the amendment, Parliament may amend the Basic Law at will and the Constitutional Court is denied the right to review amendments for their substantive unconstitutionality. In other words, in the future provisions violating fundamental constitutional rights and international law may be entered into the Basic Law.
• Jurisdiction of the Constitutional Court – petition requirement. Both the Chief Justice and the Chief Prosecutor may file retroactive challenges at the Court. However, in the future the body's competence will be limited to issues raised in the petition or closely related thereto. This amendment is likely to have been inspired by the Constitutional Court’s ruling related to election registration for in his petition President János Áder challenged only specific sections of the election procedures act, while the Court found pre-registration unconstitutional in its entirety.
• Courts, the allocation of court cases. A definition of the administrative structure of the courts will be part of the Basic Law, and the entire organization will be overseen by the National Judicial Office (NJO). The amendment also specifies that the president of the NJO has the right to move cases from one court to another.
• Jurisdiction of the Constitutional Court – acts on public financing. The Basic Law also authorizes the government to collect special taxes when budget reserves are insufficient to cover fiscal obligations incurred, for instance, due to decisions handed down by the Constitutional Court or the EU Court based in Luxembourg. The limitation of the Constitutional Court’s jurisdiction means that the body may not review acts related to public funds even after the public debt dips below 50% of the gross national product. This represents a temporal extension of an earlier restriction of the Court’s jurisdiction.
• Jurisdiction of the Constitutional Court – earlier rulings. Under terms of the current amendment, Constitutional Court rulings passed before the January 1, 2012 promulgation of the Basic Law become null and void, although these rulings would not lose their legal effect (legislation overruled by these decisions will not be reinstated). According to official explanation, this is needed to make sure that when it reviews the constitutionality of specific legislation the Court, following the principle of case and precedent law, not be bound by rulings and opinions passed under the previous Constitution. However, opponents of the amendment argue that the governing coalition wishes to give free reign to a Court expanded with loyal appointees, giving it the opportunity to depart from years of human-rights-protecting constitutional doctrine when it develops a position on major issues. In their view, the change involves a break with a tradition of constitutional culture developed over the past 22 years.

(Source: Helsinki Committee)