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Hungary’s new constitution - the beginning of a new regime or merely technical amendments?

Is Hungary really on the way to becoming an authoritarian regime? Does the newly adopted constitution violate EU regulations? These questions have been reported daily in local and foreign media recently and included heavy criticism of the country’s leadership. In this article, we try to briefly answer the above questions objectively, on basis of the legal texts. We also aim to shed light on the context in which the government’s controversial measures took place.

In April 2010, the parliamentary elections in Hungary resulted in an overwhelming victory of the conservative Fidesz-KDNP alliance, sending the previously governing Socialist party into opposition. As the Hungarian election system usually strengthens the winners, the alliance secured a 68% majority in Parliament which made it possible to form a government without allies and to adopt radical changes in the country’s legal system.
The winners interpreted their victory as a “revolution in the polls” by which Hungarian voters declared their desire for fundamental changes. This led the governing party to adopt radical changes in the country’s several systems and build a new political and social system based on new rules. The governing party considered that further legislative work was necessary to finalise the change of regime that started in 1989, and that this process would be concluded by adopting a new constitution.
The new constitution was adopted by Parliament on 18 April 2011 and came into force on 1 January 2012. It is Hungary’s first constitution adopted after democratic free elections. It succeeded the constitution adopted back in 1949 and almost entirely re-written on 23 October 1989.
Even though a number of significant legislative changes were adopted and heavily criticised since then, the actual text of the new constitution is largely based on the previous one, in that it provides for the protection of human rights and does not contain significant changes to the country’s governmental form. The changes appear in some minor albeit significant details, which – besides giving the text a conservative character – for the time being have rather philosophic, symbolic consequences and may only be considered troublesome because – depending on their interpretation – they may provide sufficient ground for stricter regulations.

The most debated changes introduced by the new constitution were the following:

the change of the country’s name from Republic of Hungary to Hungary, the word Republic no longer in the country’s name;
the new constitution protects marriage as the symbiosis between men and women (which may deprive same-sex couples from the right to marry);
the new constitution declares the protection of foetal life from the moment of conception (which may potentially be used as a basis for ultimately banning abortion);
the new constitution modifies the clauses dealing with certain fundamental rights, so that the state only “aspires to provide” them instead of “providing” them (right to social security, to public utilities, etc.);
the ban on discrimination does not mention age or sexual orientation as a basis of unlawful discrimination;
the new constitution provides the possibility of life imprisonment for violent crimes;
the right to turn to the Constitutional Court was heavily cut back;
the new constitution restricts future governments’ power as family policy, taxation and pension systems may only be altered by fundamental laws (passed by a 2/3 majority).

 

The concept of the new constitution remains in line with the traditions of Hungarian constitutional law by setting out merely the most important rules, and leaving detailed regulations to the fundamental laws. The problem with the above-listed provisions is rather that they leave the door open to regulations restricting human rights.
Most constitutional lawyers agree that the text places less emphasis on the individual rights and the main achievements of liberal democracy, and stresses rather conservative values. This – in itself – does not make it impossible to govern the country in a democratic way. Constitutional lawyers agree that the decisive factor differentiating between democratic and authoritarian regimes is the way of interpreting and “using” laws, rather than the way in which they are formulated (in the past, several authoritarian regimes had “democratic” constitutions). There are, however, question marks as to how the new constitution can fulfil its sociological and emotional function to unite the nation and represent the nation’s core values accepted by the vast majority of society.
Despite the heavy criticism, government party officials and MPs argued that the new constitution cemented the break with Hungary’s communist past and completed the country’s transition to democracy. They stressed the importance of the new clauses on public finances, which does not allow Parliament to adopt a budget that would increase the country’s debts. The aim of those clauses is to protect the country from high indebtedness.

Article provided by Gide Loyrette Nouel Budapest Law Office