Most of the “temporary provisions” of the Hungarian Constitution are scrapped by the Constitutional Court

Yesterday just before noon came the news that the Constitutional Court had annulled a number of so-called “temporary provisions [átmeneti rendelkezések] related to this Fundamental Law” that were specified in the closing sections of the new constitution.

Almost all the newspapers hailed this as the death of Fidesz’s plans to introduce registration as a prerequisite to citizens exercising their right to vote. But although the final outcome might indeed be the repeal of the law, the Constitutional Court’s ruling was not on the registration issue per se.

The ruling addressed not President János Áder’s request to the Court to investigate the constitutionality of the registration requirement but a request of the ombudsman, Máté Szabó, to take a look at the “temporary provisions.” Upon closer scrutiny, about two-thirds of these provisions were not temporary at all. Including in the new constitution the right to enact “temporary provisions” was only a Fidesz trick. They were smuggling all sorts of  unconstitutional laws into the constitution itself.

The majority of the Court decided to annul the questionable provisions retroactively. Five Fidesz appointees–István Balsai, Egon Dienes-Oehm, Barnabás Lenkovics, Péter Szalay and Mária Szívós–dissented.

From reading the law on “temporary provisions” in the collection of Hungarian laws it becomes clear that a huge part of the law has been scrapped, starting with the preamble entitled “On the transition from communist dictatorship to democracy.”  In it there is a long list of sins of the communist dictatorship for which the two-thirds Fidesz-KDNP majority made today’s Hungarian Socialist Party responsible. In addition, the law makes it clear that these crimes have no statute of limitations. In plain language, the current government has the legal right to prosecute politicians of the main opposition party for crimes committed, let’s say, by the Rákosi regime.

Article 11 (3) and (4), which allows the president of the National Judicial Office to transfer cases to courts of her choosing, was also scrapped. So were Articles 12 and 13 that deal with the early retirement of judges and prosecutors and Article 18 that states that the president of the Budgetary Council is appointed by the President. Article 21 is also gone; it allows parliament to decide the status of churches. Article 22, which prescribes that only those can ask for remedy from the Constitutional Court who have already exhausted all other legal possibilities, was also found questionable. Article 23 (1) and (3)-(5) is about electoral registration and it was annulled.

Article 27 is a tricky one; it concerns the functioning of the Constitutional Court. It is a kind of amendment to Article 37 (4) of the Constitution that reads: “As long as state debt exceeds half of the Gross Domestic Product, the Constitutional Court may, within its competence set out in Article 24 (2)(b-e), only review the Acts on the State Budget and its implementation, the central tax type, duties, pension and healthcare contributions, customs and the central conditions for local taxes for conformity with the Fundamental Law or annul the preceding Acts due to violation of the right to life and human dignity, the right to the protection of personal data, freedom of thought, conscience and religion, and with the rights related to Hungarian citizenship. The Constitutional Court shall have the unrestricted right to annul the related Acts for non-compliance with the Fundamental Law’s procedural requirements for the drafting and publication of such legislation.” Article 27 of the “temporary provisions” actually negates this right.

Article 28 (3) allows the government to pass regulations for local governments if they neglect to regulate something prescribed by law. Article 29 also made waves when it was adopted because it states that new taxes can be assessed in case the European Court fines Hungary because of the government’s actions that were not in line with European Union law. Article 31 (2) simply states that these temporary provisions were accepted on the basis of the old and new constitutions. And the Court also scrapped the last article (32) that declares April 25 as a memorial day of the new constitution. This last point might seem trivial, but it is in line with the reasoning of the Court. Declaring a special day for the celebration of the new constitution is certainly not a temporary measure.

The judges’ decision was not based on the constitutionality of the temporary provisions. They simply declared that these provisions were not temporary. Fidesz’s answer was immediate. József Szájer, who boasted that he wrote the constitution on an iPad on the train between Budapest and Brussels, announced shortly after noon today that since the Court didn’t examine the constitutionality of these provisions the government is planning to incorporate them straight into the new Constitution. The Constitution that was supposed to be the basic law of the land for centuries to come has already been amended three times and certainly will be many more times in the future. Every time because the political interests of Fidesz-KDNP so dictate.

Szájer is apparently a talented man and very familiar with constitutional law. In his interpretation the Constitutional Court didn’t interpret the law properly. According to him, the reference to the “temporary provisions” was put into the final article of the constitution because the framers always considered these provisions part of the Constitution itself. Well, Szájer might be a legal brain, but then why did they call these provisions “temporary”?

Antal Rogán, the whip of the Fidesz parliamentary caucus, seconded Szájer and also announced that in February when Parliament reconvenes they will fix the problem. Fixing means that he will gather the members of the caucus and tell them that here is the list of new amendments that they will have to vote on. The voting machine works flawlessly.

On Monday we can expect the Court’s decision on the registration issue. If the Court again finds only formal problems with the law, then the Fidesz-KDNP government can simply incorporate Article 23 (1) and (3)-(5) dealing with registration into the Constitution. But if the objections are more substantive and the judges find the law itself unconstitutional, then the Fidesz brains will have to work a little harder.

Máté Szabó as the sole ombudsman appointed by the current government has been a pleasant surprise. I think a lot of people expected him to be only a tool for Viktor Orbán’s designs. He must be a disappointment and Orbán must have cursed his bad judgment in allowing Szabó to be appointed ombudsman. I’m glad that Szabó turned to the Constitutional Court concerning this issue because without his intervention the world would not be as informed about the Orbán government’s undemocratic rule and its transgressions of the laws of the land. These “temporary provisions” were adopted one by one over time; only when one reads the whole list does one become painfully aware of the undemocratic nature of this regime.

Meanwhile, I was surprised to hear that the tables displaying the Basic Law have disappeared from public buildings. Central and local government offices were instructed by the government to set up a table in a prominent place so admirers of the new constitution could sign a “guest book” and could also purchase either an ordinary or a deluxe edition of the Basic Law. A person had to be hired to mind the table. Someone the other day noticed that the tables had disappeared.

The Table of the Basic Law in the Fifth District in Budapest. The mayor is Antal Rogán

The Table of the Basic Law in the Fifth District in Budapest. The mayor is Antal Rogán.

Indeed, sometime in September the government officials running these offices were ordered to remove them. The mayor of  Hajdúdorog told one of the reporters of ATV: “We had a room where people could take care of their business concerning trash removal. There was a table there already, so we put a tablecloth and the Basic Law on it. If anyone wanted he could look at it. I may add that only 1% of people over 18 wanted to buy the simple edition and no one was interested in buying the deluxe edition.” Now the table is gone. Imre Kerényi, who was the brain behind the Table of the Basic Law and to whose career I devoted a whole post, explained that the idea is not dead. It was planned this way.

It seems that this new and wonderful Basic Law has very serious problems, among them that the people don’t have a particular affinity to it. The lack of interest was too embarrassing. It was better to remove table and all. And I predict that the Basic Law’s aura will only decrease thanks to the games the Orbán government is playing with something as important as the constitution of the country.

49 comments

  1. London Calling!

    Kim Lane Scheppele: “……………….. The Court was brave to do so………..”

    I think not.

    They were all aware that the constitutional court is a minor irritation to Orban. A just “going-through-the-process” ritual.

    They all know that Orban will achieve his ends through other means.

    Some would even say that it ‘legitimises’ his actions since they have been through the process – and I bet that when Orban meets them there will be nods and winks as to what each ‘had to do’ – but it wasn’t too disruptive – “ha, ha ha!”

    So not bravery – just token resistance.

    I also take issue that the sacred text – which should be hand illuminated on parchment – has a ‘contingency’ clause!

    That if National debt is greater that 50% of GDP then the CC can only ‘review’ certain actions – and presumably intervene if it is less!

    We are talking about people’s ‘rights’ and fundamental principles! – And they are contingent on how much the State is in ‘hock’?

    These rights and principles should be set in ‘granite’ as someone has suggested – they don’t bend to the wind.

    So this ‘Basic Law’ is not precious enough to have a separate table even – or any reverence whatsoever.

    It’s a spiv’s charter.

    Written thoughtlessly on an Ipad on an insignificant train journey by a supposed ‘constitutional legal expert’. And without any consensus review by all stakeholders.

    As I said – a mess of pottage – that deserves no reverence whatsoever.

    Better, perhaps, not to have one at all.

    Regards

    Charlie

  2. “For all those who hope to get foreign support: only Hungarians living in Hungary can change Hungary.”

    100% correct but for those of us non-Hungarians who reside in and deeply love the place and its people, the level of apathy presently existing is very troubling. Ms oneill and so many others in our friend and family circle won’t be registering for the next election. I don’t blame them at all- never mind the very real fear what the Orbanists will do with the data but alsp to do so is to give legitimacy to the illegitimate regime which by hook or by crook will continue to govern Hungary post April 2014. But also Orban has gauged perfectly both the instrinsic weaknesses and faultlines within present-day Hungarian society and the fact that so many groups raised the white flag before the fight had even begun means that to take on Fidesz now is to take them on 2 years too late.

    Yeah, sure the judges take the complaint about their forced retirement to the EC but where were they when the earlier multiple rape of the country’s legal and judicial independence was taking place? Hiding under a stone, hoping that the Dear Leader wouldn’t notice them. Yes, of course, certain students are now complaining about their subsidised studies being removed but where were the student groups when Orban attempted to shut down the free media? Again, crawling under that stone with the judges. Don’t punish me personally and I won’t whinge while you remove all the normal elements of a democratic country or if you want to be more poetic:

    When the Orban came for the liberals,
    I remained silent;
    I was not a liberals.

    When he locked up the homeless,
    I remained silent;
    I was not a social democrat.

    When le came for the unemployed,
    I did not speak out;
    I was not a unemployed.

    When he came for the judges, the journalists, the students, the cancer patients etc etc
    It was already too late….

    When he came for me,
    there was no one left to speak out

    As a non-Hungarian, the main thing I wish for the New Year is that the apathetic get off their knees and FFS start fighting back.

  3. My last comment is in moderation (I used the N*z* word), so here is the original of oneill’s quote:

    First they came for the communists,
    and I didn’t speak out because I wasn’t a communist.

    Then they came for the socialists,
    and I didn’t speak out because I wasn’t a socialist.

    Then they came for the trade unionists,
    and I didn’t speak out because I wasn’t a trade unionist.

    Then they came for the jews,
    and I didn’t speak out because I wasn’t a Jew.

    Then they came for the catholics,
    and I didn’t speak out because I wasn’t a catholic.

    Then they came for me,
    and there was no one left to speak for me.
    http://en.wikipedia.org/wiki/First_they_came

  4. Professor Scheppele’s comments are very interesting from an academic point of view and in a country of laws they may have practical implications. What I am afraid of is that those in power in Hungary today couldn’t care less about legal implications of their actions, if necessary they just rewrite the laws, including the “basic law”, to fit their goals.

  5. I had an interesting conversation with someone in Hungary today. When I asked the person about the political climate there, the answer was something like this:” I am happy that these guys are in power and not my guys, because I can tolerate all this [corruption etc.] much more from those that I oppose than I could tolerate it from those that I supported.”

  6. gdfxx :
    Professor Scheppele’s comments are very interesting from an academic point of view and in a country of laws they may have practical implications. What I am afraid of is that those in power in Hungary today couldn’t care less about legal implications of their actions, if necessary they just rewrite the laws, including the “basic law”, to fit their goals.

    Exactly!

    This constant writing and rewriting of laws is really outrageous! At first I couldn’t believe it – just the number: 200 laws in one year plus those many changes …

    And the sheep in parliament nod and sign everything – probably neither having read it and if so not having understood anything!

    @Eva: Seems my first comment has appeared – it’s the one with those two wiki references.

  7. wolfi, I would never be so crass as to compare Fidesz to the nazis… however Niemoller’s quote about the dangers of sitting back and letting dictators do their work does have a resonance with what I personally see in Hungary today.

  8. “Oh no, not for a moment I would want civil war, and honestly I doubt that with a civil war Hungary could remain member of the EU (having said that, look at Greece). THe only civil actions I would support and suggests are the demonstrations and civil disobedience. Of course I understand that it there is fine line between the peaceful manner of these things and civil war, especially as there are always provocateurs in any actions on either side.”

    A VERY fine line with Orbán in power. I have been advocating civil action/disobedience for the last two years, as regular readers will know – that was the only way to get rid of Orbán before he got too confident and powerful. Now it is too late.

    But it is still the only option.

    And we have seen from the events of 2006, etc how Orbán will react. What starts from the democratic side as legitimate, peaceful protests and refusals to participate, will be met by Orbán’s propaganda and his ‘brown shirts’. And before we know it the ensuing violence and vandalism will be blamed on the ‘troublemakers’.

    From that point on it will degenerate into low level civil war.

    I’m only too aware that that sounds ridiculous, but the key ingredient for a civil war is the person in power to refuse to step down, or even admit they are wrong. Look at the various countries involved in the Arab Spring – where the leader gave in and stepped down, there was a relatively peaceful change of power, but in those counties where the leader swore to fight to the death, there was inevitably full-scale civil war – with all the death and destruction and horror that that involves.

    I can no more imagine civil war in Hungary than anyone else reading this, but if Orbán stays true to form and a non-democratic opposition begins, I’m afraid I see no other outcome.

  9. Gábor :
    “The beautiful lie is, however, the essence of kitsch. Kitsch is a form of make-believe, a form of deception. It is an alternative to daily reality that woul otherwise be a spiritual vacuum. It represents “fun” and “excitement”, energy and spectacle, and above all “beauty”. Kitsch replaces ethics with aesthetics. […] The Third Reich was the creation of “kitsch men”, people who confused the relationship between life and art, reality and myth, and who regarded the goal fo existence as mere affirmation, devoid of criticism, difficulty, insight. Their sensibility was rooted in superficiality, falsity, plagiarism and forgery.”

    That is a fantastic quote, thank you. It expresses, better than I could myself, my revulsion when I looked at that picture of Szent István supposedly “blessing” the new constitution – documented by Prof Balogh in a far-previous post. (My own interpretation of that piece of “art” was that István was actually trying to stab his sword right through the horrid document, under inspiration from one of the Harry Potter movies… ;) ).

    In a wider context, this is what I find as a non-Hungarian passionately interested in the place, language, history and culture. Everywhere I find interesting things worth celebrating – everywhere this revolting kitsch-paste is smeared all over it by Orbán and friends.

    So that one thing that’s left untouched and really admirable is the wealth of merciless, rip-the-p*ss, subversive dark jokes I hear from Hungarians I know. The one success of Orbán’s “work-based economy” must be in the satire sector – do Hungarian political satirists ever find time to eat or sleep?

    I’ve learnt so much from reading this blog: thanks to Prof Balogh (and Prof Scheppele) for the education!

  10. “oneill! – are you advocating ‘Boycott’?”

    The worst thing would be for the democratic opposition to bend over for the regime and attempt to get folk registered.

    I think the democratic opposition shouldn’t play into Orban’s hands by fighting the election under his rules rather than those accepted norms in place everywhere else in the world. I am sure through a mixture of apathy and deliberate action on behalf of the regime the turnout will be a joke (20/30?).

    When that happens then the time will be ripe and justified for the majority to bring down the whole rotten edifice down by peaceful civil resistance and extra/parliamentary action. If they can be bothered that is or if there is anybody under the age of 40 still left in the country or if there isn’t a good reality show on RTL that night. I won’t be holding my breathe, unfortunately.

  11. I think anyone who wants to see “war” should stand in the first row or send their kids to distribute the flyers in the first row. Please, do not advocate any form of violence at the expense of other families’ loss. You want to go and fight, or send your kids to fight, go for it!
    I understand that things can get out of hand but going on and predicting it, and telling others to do while we back you up from our computer is not different from Orban’s tactics. We just have to wait for the elections. I know what many of you are saying and I see it too, Orban rolls a barricade between democratic elections. Still, if that is the case people should go out and convince others. THey should go from house to house, make flyers, whatever it takes, but violence.

  12. “Please, do not advocate any form of violence at the expense of other families’ loss.”

    Did you miss the “peaceful” I placed in front of the “civil resistance”?

    I come from a place where friends of my father were indeed murdered in the name of “politics” (or “religion” or “national identity” which amounts to the same thing anyway) so I am fully aware of the futility of violence to achieve poltical goals but thanks for the lecture anyway.

    Peaceful civil reistance can take so many forms but the most effective is preventing the functioning of the state, where I can from that involved, for example, refusing to pay rent and rates to the local government but I am sure there are other methods it could be achieved in Hungray

  13. Reblogged this on The Hagyó Case and commented:
    “Article 29 also made waves when it was adopted because it sates that new taxes can be assessed in case the European Court fines Hungary because of the government’s actions that were not in line with European Union law.”

    While I await the restart of the BKV trial for fresh hearing updates, I thought I might reblog this from Hungarian Spectrum. It’s a good read and an informative update on Hungarian government affairs.

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