Constitution of Hungary

Fundamental Law of Hungary

The Fundamental Law of Hungary (Magyarország alaptörvénye), the country's constitution, was adopted by parliament on 18 April 2011, promulgated by the president a week later and entered into force on 1 January 2012. It is Hungary's first constitution adopted within a democratic framework and following free elections. The document succeeded the 1949 Constitution, originally adopted at the creation of the Hungarian People's Republic on 20 August 1949 and heavily amended on 23 October 1989. The 1949 Constitution was Hungary's first permanent written constitution and, until it was replaced, Hungary was the only former Eastern Bloc nation without an entirely new constitution after the end of communism. Both domestically and abroad, the 2011 constitution has been the subject of controversy. Among the claims critics make are that it was adopted without sufficient input from the opposition and society at large, that it reflects the ideology of the ruling Fidesz party, and enshrines it in office, that it is rooted in a conservative Christian worldview despite Hungary not being a particularly devout country, and that it curtails and politicizes previously independent institutions. The government that enacted the charter has dismissed such assertions, saying it was enshrined lawfully and reflects the popular will.

The Fundamental Law is divided into sections and articles as outlined below. Section and article(s)Subject area(s)NotesNational Avowal (preamble)Foundation21 articles (A U) specifying the country's name, capital, official language, symbols, etc. Freedom and Responsibility31 articles (I XXXI) covering citizens' rights and dutiesThe State54 articles covering the state's attributes 1 7The National Assembly 8National Referendums9 14The President of the Republic15 22The Government23Autonomous Regulatory Organs24The Constitutional Court25 28Courts29The Prosecution Service30The Commissioner for Fundamental Rights31 35Local Governments36 44Public Finances45The Hungarian Defence Forces46The Police and National Security Services47Decisions on Participation in Military Operations48 54Special Legal OrdersProvisions concerning state of national crisis, state of emergency,state of preventive defence, unexpected attack and state of dangerClosing and Miscellaneous Provisions

Described as socially and fiscally conservative, the constitution initiates a number of changes. In an effort to push the public debt below 50% of gross domestic product (from above 80% at the time of adoption), the powers of the Constitutional Court on budget and tax matters are restricted until debt falls below 50%. The President is allowed to dissolve Parliament if a budget is not approved, and only companies with transparent activities and ownership structures are allowed to bid for government contracts. The powers of the head of the Hungarian National Bank are also limited, and the modification of tax and pension laws requires a two thirds majority. Same sex couples may legally register their partnerships, but marriage is defined as being between one man and one woman. A ban on discrimination does not mention age or sexual orientation, and the constitution allows life imprisonment for violent crimes without the possibility of parole. The provision also covers prosecutors but exempts the Prosecutor General and the head of Hungary's highest court, the Curia. The country's name is changed from "Hungarian Republic" to "Hungary" but the country remains a republic. There was no civil code either; lawyers worked with the Corpus Iuris Hungarici. Among the laws that acquired constitutional force were a series of liberal statutes enacted during the 1848 Revolution; Statute XII of 1867 (enacting the Ausgleich); and further guarantees for constitutionalism, such as Statute IV of 1869, separating the executive and the judiciary; or the post 1870 statutes regulating local self government and state administration. Following the advent of the Hungarian Soviet Republic, the Revolutionary Governing Council adopted a Provisional Constitution on 2 April 1919, providing for a Soviet style political system. On 23 June, the National Assembly of Allied Councils adopted Hungary's first charter like constitution, the Constitution of the Socialist Allied Council Republic of Hungary. However, that regime was crushed two months later and Hungary returned to its historical, unwritten pre 1918 constitution.

In August 1949, with the Hungarian Working People's Party in complete control of the country, a constitution based on the 1936 Soviet Constitution was adopted, the party's leading role enshrined in the document. Its basic features remained in place until 1989, although a number of important amendments were made, including one in 1972 that proclaimed Hungary a socialist state. While the constitution guaranteed certain fundamental rights, their scope was limited by provisions stating they had to be exercised in harmony with the interests of the socialist society. In 1989, as the Communist regime ended, the legislature overwhelmingly approved nearly a hundred changes to the constitution which purged the document's Communist character. Hungary was now defined as a civil democratic and constitutional republic that respected "the values of both bourgeois democracy and democratic socialism." After the opposition won free elections in 1990, references to democratic socialism and the planned economy were dropped. Further modifications followed over the ensuing two decades, as successive plans for a new constitution did not reach fulfillment.

In 2010, a new government led by Fidesz initiated a drafting process for a new constitution. A parliamentary committee for drafting the constitution was set up, with all five parliamentary parties represented; the draft was composed on the iPad of József Szájer, then a member of the European Parliament. The consultation involved questionnaires being mailed out to all citizens for their opinions; some 917,000 or 11% were returned. Provisions were then included or excluded based on consensus among respondents; for instance, a proposal to adopt voting rights for minors was shelved after citizens expressed disapproval. The following April 18, Parliament approved the constitution by the required two thirds majority, on a 262–44 vote, with Fidesz and their Christian Democrat coalition partners in favor and Jobbik opposed. The Hungarian Socialist Party and Politics Can Be Different (LMP), citing the ruling party's unwillingness to compromise on issues and their inability to change the outcome, boycotted both the drafting process and the vote. On April 25, President Pál Schmitt signed the document into law, and it entered into force on the first day of 2012. The enactment came halfway through Hungary's six month Presidency of the Council of the European Union. One section of the preamble criticized by some historians as well as by the head of Hungary's Jewish community is the statement that the country lost its independence when it was invaded and occupied by Nazi Germany in March 1944. They asserted that the provision implies the state was not responsible for the ensuing deportation of Jews to extermination camps as part of the Holocaust and that it could affect future restitution claims. Historian Géza Jeszenszky strongly rejected criticism of the passage, saying the loss of Hungarian sovereignty in March 1944 due to foreign invasion is simply a historical fact that should not be denied. In its support, he also mentioned Germany's direct intervention into Hungarian politics, such as the arrest of cabinet members and of anti German politicians. Socialist leader Attila Mesterházy denounced what he called "Fidesz's party constitution" and promised to change the constitution "on the basis of a national consensus" following the next elections. László Sólyom, former President of Hungary and of the Constitutional Court, is a critic of limits imposed on the court and of the "common parliamentary wrangling" through which the charter was adopted. The day after New Year's Day 2012, the government held a gala celebration at the Hungarian State Opera House to mark the entry into force of the constitution. Outside on Andrássy út, tens of thousands of people protested the occasion, with opponents claiming the constitution threatens democracy by removing checks and balances. Demonstrators included representatives from various civil groups and opposition parties, among them the Socialists. Fidesz MP Gergely Gulyás, who helped write the constitution, responded to critics by saying that it improves the legal framework of life in Hungary.

The Venice Commission and the Hungarian Helsinki Committee expressed concern over the provision on cardinal acts; opposition parties asserted these could bind future governments to Fidesz' actions, but did promise to participate in the debate on the acts. Amnesty International believes the document "violates international and European human rights standards", citing the clauses on fetal protection, marriage and life imprisonment, and sexual orientation not being covered in the anti discrimination clause. Left wing and liberal members of the European Parliament asserted that it fails to protect citizens' rights and reduces legislative checks and balances. Werner Hoyer, Germany's deputy foreign minister, expressed his country's concern as well, Additionally, United Nations Secretary General Ban Ki moon suggested the government should address concerns about the constitution. In neighboring Slovakia, which has a significant Hungarian minority, at least three parties, including the governing Slovak Democratic and Christian Union, expressed concern about clauses that afford certain rights to ethnic Hungarians abroad, including the right to dual citizenship and the right to vote, and critics there fear that the move has expansive and nationalist objectives. Slovakia's Foreign Affairs Ministry stated that it would oppose any other country’s infringement of the Slovak Constitution, its sovereignty or the rights of its citizens. In response, Foreign Minister János Martonyi assured his Slovak counterpart that the constitution has no extraterritorial effect.

In March 2013, Parliament amended the constitution for the fourth time, on a 265 11 vote, with Fidesz, the Christian Democrats and three independents in favor and the Socialists boycotting the vote; there were also 33 abstentions. Subsequently, President János Áder signed the amendment into law, citing his legal duty and the need to preserve national unity. The fifteen page amendment touches on several aspects. It annuls rulings of the Constitutional Court made before the 2011 constitution went into force, while allowing their legal effects to remain. It endows the president of the Curia and the chief prosecutor with the power to initiate constitutional review of laws. While giving the Constitutional Court the power to review the constitution itself on procedural grounds, it stipulates that the court cannot annul a law passed by a two thirds parliamentary majority. Judges and prosecutors are obliged to retire at the general retirement age, although that age is left unstated; the Curia head and the chief prosecutor are exempt. The amendment enshrines freedom of religion and allows constitutional complaints regarding the church law. It allows civil lawsuits for hate speech targeting an individual's community, and declares that communism is condemned. The measure requires students whose education is subsidized by the state to work in Hungary for a period after graduation or reimburse their tuition costs to the state. It allows only public media to air political advertising prior to general and European elections. The importance of the traditional family is stressed, and authorities are empowered to ban living in certain public spaces, although homelessness is not outlawed. A prior proposal on requiring voters to register prior to elections was not included after being earlier voided by the Constitutional Court. The amendment drew criticism both within Hungary and abroad. The Socialist floor leader labeled the measure an attempt to restrict the Constitutional Court's powers, and party members hung black flags from the Hungarian Parliament Building's windows, in sign of mourning for democracy. The LMP charged that the government was "dismantling constitutional values", while former prime minister Ferenc Gyurcsány, head of the small Democratic Coalition, also drew attention to the diminution in the court's prerogatives. while on the day of the vote, a few hundred turned out. José Manuel Barroso, President of the European Commission, and Thorbjørn Jagland, Secretary General of the Council of Europe, together raised concerns about the amendment's impact on the rule of law, while prominent EU politicians, including Verhofstadt and Martin Schulz, expressed more forceful criticism. Orbán denied that the powers of the Constitutional Court had been curtailed, challenging critics to explain just how the amendment is undemocratic, while his party explained that the measure was needed in order to delineate the new constitution from the previous one. Following the amendment's adoption, Jagland praised government efforts to address international criticism.