Budapest_Parlament-5060

The new Hungarian Fundamental Law: recent developments

by Prof. Dr. Zoltán Szente

In September 2013, the National Assembly of Hungary adopted the fifth amendment of the Fundamental Law of 2011. This modification, similarly to the basic law and all of its modifications, was voted only by the MPs of the government coalition, but, as the Government has a constitution-making (that is a two-thirds) majority in Parliament, it was enough to adopt it.
The constitutional amendment was initiated by the Government, arguing that “certain constitutional issues should no longer be able to serve as a pretext for attacks against Hungary”, so the changes aimed to meet the requirements of the European Commission. Actually, they were corrections of the new Fundamental Law and even the previous (the fourth) amendment, adopted only a few months beforehand.
In March 2013, the fourth amendment of the Fundamental Law introduced a new provision saying that if any payment obligation arises from a decision of the Constitutional Court, the European Union, the European Court of Justice or other law enforcement authorities or court, the Parliament may impose new financial contributions (probably extraordinary taxes). This special warranty was given temporarily, ”as long as state debt exceeds half of the Gross Domestic Product”. The EC criticized the constitutional empowerment of Parliament for shifting such kind of financial burden on people, and requested the withdrawal of this provision. The new constitutional amendment fulfils the expectations of the EC in a special way: although the objected provision was taken out of the constitutional text, the constitutional empowerment criticized by the EC was substituted by a legislative empowerment (the way of the implementation of the debt-ceiling “shall be defined by an Act”). According to the explanatory memorandum of the constitutional amendment, the aim of this change was (nothing else than) to relieve the constitutional text.
Another demand of the EC was to abolish the special power of the president of the National Judicial Office (NJO) to transfer any individual judicial case to the court as he/she wishes. Previously, this power of the president of the NJO was criticized also by the Venice Commission. The new constitutional modification abolished this power, referring to the EC request, and estimating the cost of this measure 6 bn HUF in the next five years.
The third criticism of the EC was the heavy limitation of political freedom of speech enacted by the fourth constitutional amendment. According to these rules, during the election campaign periods, political advertisements can be published only free of charge and by public media. It is worth noting that similar statutory provisions were declared unconstitutional by the Constitutional Court in 2012. After that, the government majority incorporated these rules in the constitutional text, overruling the resolution of the Constitutional Court. The major argument against this regulation was that the limitation of publishing political advertisements is detrimental to the fundamental right to the freedom of information, as the voters’ right to obtain information about public matters is restricted. The fifth amendment of the Fundamental Law lifted this limitation allowing also commercial broadcastings to publish political advertisements of free of charge.
Some other parts of the fifth amendment adjusted the relevant constitutional rules to the legislative goals and objectives of the government majority.
First, the fifth amendment of the Fundamental Law of 2011 extended the power of the National Bank with the supervisory authority of the financial organisations (which had been exercised by a separate body beforehand).
Second, it redefined the constitutional rules of the status of churches. It is also to be noted that the Constitutional Court annulled some provisions of the Church Law of 2011 in March 2013. But the latest constitutional amendment confirmed some previously invalidated rules. Thus, it empowers the National Assembly to recognize the church status of the religious communities, and openly makes a differentiation between the privileged churches and other communities pursuing religious activities.
Although the explanatory memorandum of the fifth amendment begins by stating that the debates on the new Fundamental Law have ended, the academic community seems to think otherwise. Maybe two recent scholarly initiatives can be highlighted. The first is a series of open discussions about the recent changes brought about by the cardinal laws since 2010 organized by the Institute for Legal Studies of the Hungarian Academy of Sciences. In the framework of this program, 18 discussions will be organized, and all contributions of the distinguished scholars will be published on the webpage of the Institute. The other program is a research project organized by the Institute for Public Law of the National University of Public Service (Budapest) named “Constitution-making and constitutional changes”. The program has three major pillars, studying the “Contemporary constitutional models in Europe”, “The limits of constitution-making power in the European constitutionalism”, and “The new Hungarian Fundamental law and the European constitutional values”.

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