Further concerns over the new Hungarian constitution

Yesterday I mentioned two negative reactions: one from the secretary-general of the United Nations and the other from the undersecretary of the German ministry of foreign affairs. Today we learned about another organization that might raise serious objections to the new Hungarian constitution: the European Parliament.

Yesterday József Szájer, who is touted as the most knowledgeable and best prepared of the Fidesz politicians in the European Parliament, decided to do some explaining in the EU’s parliamentary committee on constitutional matters. He hoped to persuade the members of the committee that the new Hungarian constitution is “the constitution of the twenty-first century and the embodiment of a new way of thinking.” His conclusion was that the other European countries could actually learn from the Hungarians and perhaps they should adjust their constitutions to the requirements of the new century. A rather ambitious undertaking, I would say.

Szájer’s pet project is the voting rights of children. When he first came up with this bizarre idea I pretty well decided that Szájer cannot be the leading light of the European Parliament as Fidesz wants us to believe. No serious expert on electoral or constitutional law could take such an outlandish idea seriously. Thus, it is unlikely that Szájer’s role in Brussels is as weighty as his fellow Fidesz politicians try to make it out to be. This first impression is reinforced now that I hear that Szájer is still trying “to introduce a discussion about the voting rights of minors” within the walls of the European Parliament.

If the discussion in the constitutional committee is any indication, Szájer will not have much of a chance to introduce his grand ideas on the subject. Most of those present had serious reservations about the constitution itself. The criticism centered on the very process of creating the new constitution. After all, a constitution must reflect the will of the majority while the new Hungarian constitution is clearly the work of one party and reflects the worldview of a decided minority. This is especially true about the religious undertones in the constitution. Hungarians, by and large, are an irreligious lot. Apparently, Hungary is second only to the free-thinking Czech Republic in this respect. Yet the constitution is written in a way that would befit a country of deep religious convictions, like Poland or Ireland. Moreover, the religiosity discernible in the new constitution is slanted toward the Catholic Church when Hungary is a religiously divided country with a large Protestant minority (about 30% of the population) and a sizable Jewish community.

All and all, according to Zita Gurmai (MSZP), the deputy chairman of the committee, out of ten members of the committee eight had serious reservations about the constitution. Even the two members, belonging to the same European People’s Party as Fidesz, who were supposed to defend the new Hungarian constitution expressed some misgivings.

Just to show how unprepared József Szájer was, here is an example. To one of the criticisms about the constitutional court he answered indignantly that even the Belgians were complaining about the restrictions imposed on the Hungarian constitutional court when Belgium doesn’t even have such a court. At this point the former Belgian prime minister, Guy Verhofstadt, tersely answered: “The speaker is mistaken.” And indeed, ever since 1980 Belgium has had a constitutional court. The star of the Fidesz delegation to Brussels needs a fact checker.

International and domestic organizations concerned with civil liberties are also critical. According the Hungarian Civil Liberties Union (TASZ) the new constitution reflects a Christian-conservative set of values, discriminating against those who don’t share such ideas. It discriminates based on age and sexual preference, opens the way for a ban on abortion, and cements the current governing party’s political ideas.

The Helsinki Committee on Human Rights claims that the constitution “undermines democratic political competition and makes political change more difficult by transforming institutional structures; [it] weakens the system of checks and balances and alters the framework of the political community by extending the right to vote” to people living abroad. The Venice Commission, the constitutional law advisory body of the Council of Europe, has criticized the document for “a lack of transparency of the [drafting] process” and for how it limits the Constitutional Court’s right to review legislation.

Here is a list of the main items in the constitution that have raised concerns. The list originally appeared in The Wall Street Journal.

 (1) The life of the fetus shall be protected from the moment of conception. The government claims that present regulations will not change. However, Amnesty International is concerned that this passage may justify later changes in the current practices.

(2) Hungary protects the institution of marriage as a union between man and woman established by mutual consent, and the family as the foundation of the survival of the nation. The European Court of Human Rights declared in a ruling last year that it no longer holds the view that “the right to marry … must in all circumstances be limited to marriage between two persons of the opposite sex.”

(3) Hungary guarantees the fundamental rights to every person without any discrimination on account of race, color, disability, language, religion, political or other opinion, national or social origins, financial situation and birth or any other grounds whatsoever. You may note that sexual orientation, which is included in the European Union’s fundamental documents, is missing from the explicit catalog as is gender.

(4) The right to vote. The Helsinki Committee complained that under the new constitution Hungarians abroad may receive the right to vote while they won’t have to suffer the consequences of the political decisions they’ll be making.

(5) Life imprisonment without parole will be possible, but only in cases of intentional, violent crimes. According to Amnesty International, all prisoners should be entitled to a periodic review of their sentences.

(6) And finally the new constitution says that numerous issues it enshrines will be specified and regulated in Cardinal Acts (saroktörvények), which will require the approval of two-thirds of parliament to pass and amend. These issues include family policy, the pension system, and taxes. The Venice Commission was concerned that these Cardinal Acts won’t be subject to constitutional review. According to the Helsinki Committee, this provision may enable the current government to effectuate a legal change that will last long after it loses power. A real “pig in the poke” because we have no idea what kinds of cardinal acts they will come up with, and therefore we don’t know what the constitution will actually look like.

We are now just waiting for Pál Schmitt to sign. I don’t think we’ll have to wait for long. Normally the president has fifteen days to ponder a piece of legislation. The government wants him to be speedier this time. He has only five days. There is no question that he will sign.

April 20, 2011