Constitution of Hungary

Hungary

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The Constitution of the Republic of Hungary (A Magyar Köztársaság Alkotmánya), its fundamental law, was adopted on 20 August 1949, and heavily amended on 23 October 1989. It is Hungary's first and only permanent written constitution; the country is the only former Eastern Bloc nation that did not adopt an entirely new constitution after the fall of Communism. In 2011, a new constitution, styled Magyarország Alaptörvénye (Fundamental Law of Hungary), was passed, the first to be adopted within a democratic framework and following free elections. It is scheduled to enter into force on January 1, 2012.

Background

For centuries, the Hungarian constitution was unwritten, based upon customary law.^[1] There was no civil code either; lawyers worked with the Corpus Iuris Hungarici.^[2] 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.^[3]

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.^[3]

Despite the lack of a written constitution, several constitutional laws were passed during the interwar period of the Kingdom of Hungary. Statute I of 1920 confirmed the monarchical form of government (albeit with a vacant throne, the king's powers being exercised by regent Miklós Horthy and his ministers) and vested legislative power in a diet. Statute XLVII dethroned the Habsburg dynasty. A second chamber was established by Statute XXII of 1926. Successive constitutional acts increased the power of the regent, who was empowered to nominate forty senators at first, and during World War II, eighty-seven.^[4]

1949 Constitution

Democratic elections were held under Statute VIII of 1945. Then, Statute I of 1946, a provisional constitutional statute (or "little constitution") passed on 31 January, formally ended the thousand-year monarchy and introduced a republican form of government.^[1] Then in 1949, after the Hungarian Working People's Party had assumed undisputed control of the country, the Communist-controlled parliament adopted the present constitution as Act XX of 1949. The date of its adoption, 20 August, made a new national holiday that coincided with the traditional holiday of the feast of Saint Stephen. The document has been described as "a slavish imitation of the Soviet-type constitutions, with some variations resulting from the historical and political differences between the Soviet Union and Hungary". (Specifically, it was modelled on the "Stalin" 1936 Soviet Constitution.) Now, Hungary became a people's republic, which was "the state of the workers and working peasants".^[5] A Presidential Council elected by parliament was to be head of state, but real power rested with the Working People's Party, its leading role enshrined in the document. The National Assembly met for some ten days each year, with most rules taking the form of presidential and ministerial decrees. A variety of fundamental rights was guaranteed, but only for the working people (or in accordance with their interests). Church and state were separated.^[6]

Until 1989, the charter's basic features remained in effect, although the regime added important amendments in 1950, 1953, 1954, 1972 and 1983.^[7] Notably, Act I of 26 April 1972, comprehensively redrafted the constitution, proclaiming Hungary a socialist state. While the social, economic and political order remained the same, fundamental rights were now guaranteed for all citizens (but certain rights, like freedom of speech, press or assembly, still had to conform with the interests of socialism and the people). The preamble still paid tribute to the Soviet "liberators" but took a longer historical perspective, referring to the "millennium" of the people's struggle. The role of mass movements and trade unions (in addition to the party) in the building of socialism was acknowledged, the equal ranking of state and cooperative ownership asserted, and private producers recognised, so long as they did not "violate collective interests".^[8] As a moderate liberalisation continued to set in in the ensuing years, Act II of 1983 set up a Constitutional Council, intending to watch over the constitutionality of legal rules by giving internal review; and Act X of 1987 limited the Presidential Council's authority to issue law-decrees. Reforms were accelerated in 1989, with Act I envisaging the establishment of a Constitutional Court and lifting political restrictions on the exercise of all fundamental rights, and Act VIII introducing the motion of no confidence vis-à-vis the Council of Ministers and its members.^[9]

1989 reform

From 1988 on, as the economic situation deteriorated and opposition groups emerged, the idea of preparing a new constitution emerged. Reform Communists and the opposition took account of this development at the Hungarian Round Table Talks in mid-1989, desiring a document that would establish a multiparty system, parliamentary democracy and a social market economy. However, time pressure did not allow a new constitution to be written and on 18 October, the National Assembly adopted a new comprehensive amendment to the 1949 Constitution, which was to prevail until a new constitution was framed. This reform (Act XXXI of 1989) was the first thoroughgoing constitutional transformation in the Soviet bloc. It was adopted like a normal constitutional amendment, with at least two-thirds of MPs approving, and went into effect on 23 October, the anniversary of the Hungarian Revolution of 1956.^[10]

The 1989 reform established Hungary as a republic, an independent, democratic, constitutional state that was both civil democratic and democratic socialist. The economy was to be a social market one, with planning employed and public and private property enjoying equal protection. The people were sovereign, with parties functioning freely. Among the new features introduced were a weak presidency and strong parliament with oversight powers, checks and balances, limitations on the authority of the prime minister, provisions for referendums, and an independent judiciary. Outside the preamble, all references to "socialism" were carefully deleted. The Constitutional Court, whose members are elected by two-thirds of parliament, can annul laws declared unconstitutional, and has broad jurisdiction. The parliamentary term was reduced from five to four years. Human rights were emphasized, with reference to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.^[10] The changes were all-encompassing: it has been said, with some exaggeration, that only one provision remained untouched: "Budapest is the capital of Hungary".^[11] However, the form of the state was not changed; it was still described as a parliamentary democracy with parliament as "a supreme organ of state power and popular representation" that retained the power to elect the highest executive and judicial officers of the state.^[12]

Andrew Arato, an expert on constitutions in new democracies, places the 1989 text under his "post-sovereign" constitution making paradigm, so called because no single body with full powers is tasked with drafting a new constitution. Rather, the model involves a body such as a round table of major political forces drafting an interim constitution, followed by a freely elected one composing a final draft. Aside from Poland and Hungary, this method was used several years later to create the Constitution of South Africa.^[13] In Hungary, the preamble of the 1989 modification referred to its temporary character,^[14] a fact recalled when it was finally replaced by an entirely new constitution over two decades later.^[15]

Developments from 1990 to 2010

Since 1989, the constitution has been amended multiple times. The first changes came in 1990 when, after free elections brought the opposition to power, references to democratic socialism and the planned economy were dropped. (When these had been included half a year earlier, the Communists were thought much more popular than these elections showed them to be).^[16] Also that year, a pact between the Hungarian Democratic Forum (MDF), who had won the elections, and the Alliance of Free Democrats (SZDSZ), who came in second, resulted in additional changes. The President was to be elected by the Parliament rather than directly; the constructive vote of no confidence was introduced; and areas in which a two-thirds majority was required to adopt a law were reduced, making governing easier. In exchange for agreeing to this set of MDF proposals, Árpád Göncz of the SZDSZ was elected President.^[17] In 1994, the list of issues to be decided by parliament with a ⅔ majority was shortened, and the Constitutional Court was shrunk from 15 to 11 judges.^[11] In 1997 an amendment streamlined the judicial system, while later modifications allowed Hungary to join the European Union.^[18] In late 2010, even as a new constitution was being prepared, an amendment was passed restricting the powers of the Constitutional Court on budget-related laws.^[19] Today, the document includes a preamble and is divided into fifteen chapters with 79 articles.^[20] In the mid-1990s, Prime Minister Gyula Horn unsuccessfully tried to enact a new constitution. In 2006, during Ferenc Gyurcsány's premiership, a new charter was drafted for internal use which mentioned the Holy Crown of Hungary and placed the Chief Prosecutor of Hungary under government control; its contents were not made public until the 2011 debate on a new constitution.^[21]

At first, as the only Communist-era constitution retained in Eastern Europe, Hungary's charter and by extension its political system did not command a great deal of respect. The fact that it was preserved reflected a tradition of gradualism in Hungarian constitutional history; there was no constitutional assembly or referendum to confer additional legitimacy on the new system.^[1] And in particular, the enthusiastic Constitutional Court seemed more intent on applying German case law than the Hungarian constitution. However, it has gained stature since the early 1990s for three reasons. First, the process of gradual amendments allowed for experimentation that remedied some of its weaknesses. Second, the 1989 document became stable in 1997 when the government abandoned plans for drafting a new constitution. Finally, the Court never disregarded the constitution altogether, indeed remaining acutely aware of its text.^[22]

2011 constitution

Drafting process and contents

In 2010, a new government led by Fidesz initiated a drafting process for a new constitution.^[23][24] A parliamentary committee for drafting the constitution was set up, with all five parliamentary parties represented.^[25] The following February, a body responsible for national consultations on a draft was set up by József Szájer, a member of the European Parliament; its members included János Csák, Hungarian ambassador to the United Kingdom; Zsigmond Járai, chairman of the supervisory board of the Hungarian National Bank; József Pálinkás, president of the Hungarian Academy of Sciences and former Minister of Education; and Katalin Szili, former Hungarian Socialist Party Speaker of the National Assembly.^[26] The consultation involved questionnaires being mailed out to all citizens for their opinions; some 917,000 or 11% were returned.^[27] 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.^[28]

The following April, the constitution, drafted on Szájer's iPad, was approved 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, 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.^[29][30] On April 25, President Pál Schmitt signed the document into law, and it is scheduled to enter into force on the first day of 2012.^[31] The enactment came halfway through Hungary's six-month Presidency of the Council of the European Union.^[32]

The constitution, described as socially and fiscally conservative,^[33] 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 National Bank are also limited, and the modification of tax and pension laws requires a two-thirds majority.^[32][33] The life of a fetus is protected from the moment of conception, and although the move is seen as opening the possibility for a future ban or restrictions on abortion,^[33] existing laws were unaffected.^[34] Same-sex couples may legally register their partnerships but marriage is defined as being between a man and a 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.^[33] Judges' mandatory retirement age is lowered from 70 to the general retirement age–62 at the time of adoption, set to rise to 65 by 2022.^[35][36][37] The provision also covers prosecutors, while the Chief Prosecutor and the head of the Curia are exempt.^[38] The country's name is changed from "Hungarian Republic" to "Hungary", and although the country remains a republic,^[31] the preamble contains references to the Holy Crown, as well as to God, Christianity, the fatherland and traditional family values.^[30] Certain issue areas, such as family policy, the pension system and taxation, formerly under the purview of the government in office, can be altered only through "Cardinal Acts" passed by a two-thirds majority and not subject to constitutional review. The Venice Commission and the Hungarian Helsinki Committee expressed concern over the provision; opposition parties asserted these could bind future governments to Fidesz' actions, but did promise to participate in the debate on the acts.^[39][40]

Reactions

According to Fidesz parliamentary group chairman János Lázár, the constitution marks a break with Hungary’s communist past,^[32] while Prime Minister Viktor Orbán said it completes a transition to democracy and allows for sound finances and clean government after years of mismanagement and scandals.^[33] However, the opposition accused Fidesz of using its two-thirds majority in Parliament to push through its own constitution without cross-party consensus.^[31] Prior to and during the vote to adopt the constitution, thousands of protesters demonstrated in Budapest against its adoption; among their complaints are that it is an attempt by the government to cement its power beyond its term, force its Christian ideology on the country and limit civil liberties. Lack of opposition participation was also mentioned, but Deputy Prime Minister Tibor Navracsics responded that other parties were invited to participate but refused.^[30] Members of the Hungarian business community mentioned possible future difficulties in adopting the euro, noting a provision that enshrines the forint as legal tender. However, a government official said that, if the two-thirds majority to change this provision could not be attained, it could be circumvented by other means, such as a referendum.^[41] 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.^[42] 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.^[43] Direct intervention into Hungarian politics, such as removal of the Government at the time, including arrests of cabinet members and anti-German political figures and banning of Hungarian political parties is also mentioned as justification for the constitution's passage. 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.^[30][44] 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.^[45][46]

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.^[31] Among these was Guy Verhofstadt, head of the Alliance of Liberals and Democrats for Europe, who said the constitution could limit "fundamental human rights" and was adopted without transparency, flexibility, a spirit of compromise and sufficient time for debate.^[47] Werner Hoyer, Germany's deputy foreign minister, expressed his country's concern as well,^[30] prompting the Hungarian Foreign Affairs Ministry to dismiss the remarks as "inexplicable and unacceptable".^[48] Additionally, United Nations Secretary-General Ban Ki-moon suggested the government should address concerns about the constitution.^[49] 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.^[50] In response, Foreign Minister János Martonyi assured his Slovak counterpart that the constitution has no extraterritorial effect.^[51]

Notes

1. ^ ^{a b c} Körösényi, p.145
2. ^ Mezhikovskii, p.122
3. ^ ^{a b} Harmathy, p.4
4. ^ Ludwikowski, p.30
5. ^ Ludwikowski, p.31
6. ^ Harmathy, p.7
7. ^ "The Constitution of 1949", Library of Congress Country Studies
8. ^ Rakowska-Harmstone, p.100
9. ^ Harmathy, p.7-8
10. ^ ^{a b} Harmathy, p.8-9
11. ^ ^{a b} Mullerson, p.83
12. ^ Ludwikowski, p.180-81
13. ^ Arato, Andrew (2009). "Redeeming the Still Redeemable: Post Sovereign Constitution Making". International Journal of Politics, Culture, and Society 22 (4): 427–43. doi:10.1007/s10767-009-9070-z. 
14. ^ Ludwikowski, p.110
15. ^ Zoltán Csipke, "Hungary's punditocracy weighs in on new constitution", politics.hu, 20 April 2011; accessed April 28, 2011
16. ^ Harmathy, p.9
17. ^ (Hungarian) "Nagyító alatt: az MDF-SZDSZ paktum" ("In Focus: MDF-SZDSZ Pact"), HírExtra, 28 April 2011; accessed June 23, 2011
18. ^ The Ratification Process in Hungary
19. ^ "Parliament approves amendment on constitutional changes", politics.hu, 11 November 2010; accessed April 26, 2011
20. ^ Text of the Constitution
21. ^ (Hungarian) "Magyarázkodásra kényszerül Gyurcsány" ("Gyurcsány Is Forced to Explain"), Magyar Nemzet, 4 April 2011; accessed April 25, 2011
22. ^ Dupré, p.173-4
23. ^ "Hungary's new constitution drafted by next March, says Fidesz official", politics.hu, 2 August 2010; accessed August 18, 2010
24. ^ (Hungarian) "Bihari szerint mindig lehet jobb" ("According to Bihari, One May Always Do Better"), FN.hu, 7 August 2010; accessed August 18, 2010
25. ^ (Hungarian) "Megalakult az alkotmány-előkészítő bizottság" ("Constitutional Draft Committee Is Formed"), hirtv.hu, 28 June 2010; accessed June 23, 2011
26. ^ "Body set up for national consultation on new constitution", politics.hu, 7 February 2011; accessed April 25, 2011
27. ^ (Hungarian) "Szájer: Óriási siker a nemzeti konzultáció" ("Szájer: National Consultation a Huge Success"), Magyar Nemzet, 4 April 2011; accessed June 23, 2011
28. ^ (Hungarian) "Orbán: kivételesen erős lesz az új alkotmány" ("Orbán: New Constitution Will Be Exceptionally Strong"), MR1-Kossuth Rádió, 28 March 2011; accessed June 23, 2011
29. ^ Zoltán Simon, "Hungary First to Write a Constitution on IPad, Lawmaker Says", Bloomberg, 4 March 2011; accessed April 25, 2011
30. ^ ^{a b c d e} "Hungary's parliament passes controversial new constitution", Deutsche Welle, 18 April 2011; accessed April 25, 2011
31. ^ ^{a b c d} "Hungarian president signs new constitution despite human rights concerns", Deutsche Welle, 25 April 2011; accessed April 25, 2011
32. ^ ^{a b c} Judy Dempsey, "Hungarian Parliament Approves New Constitution", The New York Times, 18 April 2011; accessed April 25, 2011
33. ^ ^{a b c d e} "Hungarian lawmakers approve socially and fiscally conservative new constitution", The Washington Post, 18 April 2011; accessed April 25, 2011
34. ^ (Hungarian) Kata Janecskó, "Hiába védett a magzat, nem szigorodik az abortusz" ("Despite Fetal Protection, Abortion Law Is Not Tightened"), index.hu, 11 March 2011; accessed June 23, 2011
35. ^ "Bírói egyesület: átmeneti rendelkezések kellenek" ("Judges' Association: Transitional Provisions Needed"), mti.hu, 19 April 2011; accessed April 26, 2011
36. ^ "Judges protest planned mandatory retirement age cut in planned new constitution", politics.hu, 15 April 2011; accessed May 13, 2011
37. ^ "Hungary" at the OECD Library; accessed April 26, 2011
38. ^ (Hungarian) "Botrány lesz a bírák nyugdíjazásából" ("Retirement of Judges Will Be a Scandal"), nepszava.hu, 22 June 2011; accessed June 23, 2011
39. ^ Margit Feher, "Hungary Passes New Constitution Amid Concerns", The Wall Street Journal, 18 April 2011; accessed April 26, 2011
40. ^ "Socialists, LMP to join parliamentary debate on supermajority laws", politics.hu, 21 April 2011; accessed April 26, 2011
41. ^ "Foreign firms criticize Hungary's new constitution", Deutsche Welle, 20 April 2011; accessed April 25, 2011
42. ^ Thomas Orszag-Land, "Hungary 'deceitful' over Holocaust", The Jewish Chronicle, 10 June 2011; accessed June 12, 2011
43. ^ (Hungarian) "Az alaptörvény és a magyar történelem" ("The Basic Law and Hungarian History") Népszabadság, 31 May 2011; accessed June 23, 2011
44. ^ "Socialists pledge to 'correct' constitution as soon as possible", politics.hu, 13 April 2011; accessed April 26, 2011
45. ^ "Former state president warns about possible mistakes around new constitution", politics.hu, 7 March 2011; accessed April 26, 2011
46. ^ "Constitution - Hungary European democracy despite basic law's shortcomings, says ex-president", mti.hu, 18 April 2011; accessed April 26, 2011
47. ^ "Hungarian People's Party deputies reject liberal group's concerns about new constitution", politics.hu, 18 April 2011; accessed April 26, 2011
48. ^ "Orbán spokesman says Germany must not interfere with Hungary's adoption of new constitution", politics.hu, 20 April 2011; accessed April 26, 2011
49. ^ "UN Secretary-General cautions gov't over constitution and media law", politics.hu, 19 April 2011; accessed April 25, 2011
50. ^ "Slovakia on edge as Hungary passes new Constitution", thedaily.sk, 19 April 2011; accessed April 25, 2011
51. ^ (Hungarian) "Martonyi: Az új alkotmánynak nincs területen kívüli hatálya" ("Martonyi: the New Constitution Has No Extraterritorial Effect"), hirtv.hu, 12 May 2011; accessed June 23, 2011

References

• Dupré, Catherine. Importing the Law in Post-communist Transitions (2003), Hart Publishing, ISBN 1841131318
• Harmathy, Attila (ed.). Introduction to Hungarian Law (1998), Kluwer Law International, ISBN 9041110666
• Körösényi, András. Government and Politics in Hungary (2000), Central European University Press, ISBN 9639116769
• Ludwikowski, Rett R. Constitution-making in the Region of Former Soviet Dominance (1996), Duke University Press, ISBN 0822318024
• Mezhikovskii, S. M. et al. Law and Religion in Post-Communist Europe (2003), Peeters Publishers, ISBN 9042912626
• Mullerson, Rein et al. Constitutional Reform and International Law in Central and Eastern Europe (1998), Martinus Nijhoff Publishers, ISBN 9041105263
• Rakowska-Harmstone, Teresa. Communism in Eastern Europe (1984), Indiana University Press, ISBN 0253313910

External links

• (English) Constitutional background, with full list of amendments from 1989 to 2003
• (English) 1949 Constitution, with amendments through 2011
• (Hungarian) Act XXXI of 1989
• (Hungarian) Text of the 2011 Constitution
• (English) Draft of the 2011 Constitution, without the preamble
• (English) Draft of the 2011 preamble
• (English) Opinion of the Venice Commission on the 2011 constitution
• (English) Resolution of the European Parliament on the 2011 constitution