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Hungary: New Constitution Signed into Law

(Apr. 29, 2011) On April 25, 2011, the President of Hungary, Pál Schmitt, signed into law the country's new Constitution, the Fundamental Law of Hungary. Hungary is the last jurisdiction in Eastern Europe to effect the change to a post-communist constitution. Passage of the law was secured by the two-thirds majority held in the National Assembly by the ruling Hungarian Civic Party (Fidesz). (Sarah Paulsworth, Hungary President Signs New Constitution into Law Amid Rights Concerns, PAPER CHASE NEWSBURST (Apr. 25, 2011); Tibor Navracsics, A New Constitution for Hungary, THE WALL STREET JOURNAL (Apr. 19, 2011).)

Some key features of the new Constitution are:

  • inclusion of a new preamble condemning “the communist and socialist climate in Hungary that existed from 1944 to 1990” and solidifying the democratization process;
  • introduction of a debt ceiling, with the debt not to exceed 50% of Hungary's Gross Domestic Product;
  • reform of the Fiscal Council, giving it veto power over the budget and the right to dissolve Parliament for failure to adopt an annual budget by March 31;
  • recasting of the Constitutional Court as the court of last resort and removal of its former power to rule on tax and budgetary matters (those matters will remain the preserve of the parliament), with that power to be restored only if the level of public debt falls below 50% of GDP, from around 80% at present;
  • definition of marriage as a union between a man and a woman (a provision found in other European constitutions, according to Deputy Prime Minister Tibor Navracsics, who stated that by means of registered partnerships, moreover, same-sex couples are entitled to the same legal protections as heterosexual couples, under a 2009 law);
  • inclusion of a statement that the life of a fetus begins at and should be protected from conception;
  • reduction of the number of ombudsmen from four to one;
  • restrictions on the right to vote for people with “limited mental ability”; and
  • introduction of a provision allowing life imprisonment for violent crimes without the possibility of parole.

(Paulsworth, supra; Navracsics, supra;Human Rights Watch, Hungary: New Constitution Enshrines Discrimination (Apr. 18, 2011); Magyarország Alaptörvénye [Fundamental Law of Hungary] [in Hungarian], National Assembly website (Apr. 25, 2011).)

The document has generated a lot of controversy. Members of the Hungarian socialist party (Magyar Szocialista Párt, MSZP) and of the green liberal party (Lehet Más a Politika, LMP) boycotted the April 18 vote, a public protest against it was held, and human rights groups and civil society organizations criticized several of its provisions and contended its entry into force (on January 1, 2012) “would weaken democratic checks and balances.” (Krisztina Than, UPDATE 2-Hungary's Parliament Approves NewConstitution, REUTERS (Apr. 18, 2011); Paulsworth, supra; Amnesty International, Hungary: Newly Adopted Constitution at Odds with Human Rights, AI Index: EUR 27/006/2011 (Apr. 20, 2011); Human Rights Watch, supra.)

In addition to the statements of concern issued by human rights organizations such as Amnesty International and Human Rights Watch, the Venice Commission – the Council of Europe's advisory body on constitutional matters – released an opinion criticizing the way in which the constitution was approved. (Paulsworth, supra; Venice Commission, Opinion on Three Legal Questions Arising in the Process of Drafting the New Constitution of Hungary, Opinion No. 614/2011 (Mar. 25-26, 2011).)

Reportedly, “[t]he text of the constitution was drafted by a few select politicians from the Fidesz party and its non-independent Christian Democratic sister organisation KDNP. Even Fidesz MPs were not allowed to table modifications to the text, which was 'debated' by a few dozen deputies out of 386.” (New Constitution Cements Hungarian Ruling Party's Powers, EURACTIV (Apr. 19, 2011).) Moreover, all of the 99 amendments approved at the last minute by Fidesz leaders were approved by the National Assembly; all but one proposal from the far-right Jobbik Party and others suggested by independent legislators were rejected.

The amendments, it has been stated in the European press, “will break the leadership of the judiciary, packing the Constitutional Court with new members appointed by the current parliamentary majority and forcing many prominent judges into early retirement.” (Id.) This comment reflects the concern that the new law cements Fidesz power in general. Thus, according to some analysts, “a key problem with the new constitution is that it would allow Fidesz appointees to control key public institutions – such as the budget supervisory Fiscal Council – well beyond its government's term, which ends in 2014.” (Than, supra.)