Tag Archives: Constitution of 2011

The fifth anniversary of the Fundamental Law of 2011

Viktor Orbán never disappoints. Every time he opens his mouth he comes out with something that takes our breath away. Today’s speech at a “conference” organized for the fifth anniversary of Fidesz’s Fundamental Law was again full of outlandish statements.

Given the fanfare that surrounded the passage of this new constitution, the celebration today was decidedly subdued–wisely so, considering the checkered history of the document. In five years the new constitution–thrown together in a great hurry, mostly by József Szájer, a Fidesz EP member, and Gergely Gulyás, the rising star of the party–has been altered five times, and its sixth amendment is currently awaiting approval. I wrote several articles about the constitution at the time of its birth in April 2011, but I just discovered that the posts from the second half of that month have simply disappeared from the archives of Hungarian Spectrum. You may recall, even without reminders, that the date the new law was enacted had a symbolic meaning. In that year April 25 was Easter Monday, and for a while government officials talked about the new Fundamental Law as the Easter Constitution. The date, of course, symbolized the resurrection of Hungary.

The constitution was passed by the super majority of Fidesz-KDNP. None of the opposition parties voted for it and now, five years later, all of them swear that with the disappearance of this whole gang (bagázs) this contrivance (tákolmány) will end up in the garbage heap. Együtt’s Viktor Szigetvári called it “the constitution of the cold civil war” and predicted that the downfall of Orbán will also mean the disappearance of his regime’s constitution and institutions. József Tóbiás, chairman of the socialist party (MSZP), reminded his audience in parliament that there is no reason for the government to celebrate. The conference organized by the government was “no celebration but rather a repass after a funeral” because “in the last five years we have had no constitution.”

Although László Kövér (president of the House), József Szájer (EP MP), Pál Schmitt (former president), László Trócsányi (minister of justice), and Tamás Sulyok (acting chief justice of the Fidesz-controlled constitutional court) all delivered speeches, I will concentrate on Viktor Orbán’s speech, which in some respects was truly extraordinary.

Let me start with his claim that the “Islamization of Hungary is forbidden by the Fundamental Law.” It was this claim that captured the imagination of the Hungarian media. According to the summary of the state-controlled news agency, MTI, “the Hungarian government cannot support such movements of people that would be contrary to the pledges stated in the ‘National Avowal’ [preamble] of the Fundamental Law.” In this preamble there is only one sentence that might be relevant. It states: “We recognize the role of Christianity in preserving nationhood.” I’ll bet no one imagined five years ago that Viktor Orbán would use this sentence about the role of Christianity and nationhood as a constitutional weapon against accepting a few hundred or thousand Muslim refugees. Moreover, the sentence following this one states: “We value the various religious traditions of our country.” And Hungary already has 4,000-5,000 individuals who are the members of the Islamic community. Would a few thousand more alter the overall religious composition of the country? Of course not. But the presumably relevant sentence from the preamble will be useful in the propaganda campaign Orbán immediately began for “a strong showing (izmos) at the referendum” to demonstrate to the world the Hungarian nation’s strong resistance to compulsory quotas.

Source: Magyar Nemzet / Photo Béla Nagy

Source: Magyar Nemzet / Photo Béla Nagy

Orbán never misses an opportunity to condemn the European Union one way or the other. This time he extolled the virtues of the Visegrád Four. These countries are characterized by vitality, vigor, and an intellectual renaissance. By contrast, the European Union “doesn’t know where it is coming from; it has no vision, and it is myopic.”

Ildikó Csuhaj of Népszabadság considered the following question by Orbán–“Why does the European Union use its power against its own members?”–a watershed. In her opinion, Orbán has never gone that far in his fight with Brussels. Whether this attack is worse than the hundreds of others I simply don’t know.

Today we learned a few new details about the birth of the new constitution. Although earlier Orbán had steadfastly denied any plan to create a new constitution before the 2010 election, it is now clear that he was adamant about it, although he was met with serious opposition within the party. As he put it, “there were strong siren voices that argued against such a move because they feared that [a new Fidesz constitution] would adversely influence Hungary’s [EU] presidency” in the first half of 2011. Today he expressed his thanks to those who stood by him. In fact, he said, the timing was perfect. It would have been a mistake to retreat.

Perhaps the most intriguing comment in Orbán’s speech was about former president Pál Schmitt, who after months of agony was eventually persuaded to resign on April 2, 2012. It turned out that his doctoral dissertation was a translation of parts of an English-language book. I wrote a number of articles on the case during March and April of 2012. To recap the scandal, HVG received a note from someone who discovered the plagiarism and came out with the story. Orbán hoped that the scandal would die a quiet death, but it didn’t. Even he couldn’t manage to quell the outrage it prompted. Reluctantly, he told Schmitt that he had to leave his post. I’m certain that by now Orbán deeply regrets his decision. In the last year and a half he has been calling on Schmitt to fill all sorts of positions in matters concerning sports. Schmitt is a former Olympic fencing champion.

Orbán is now rewriting the history of Schmitt’s resignation. In his version, Schmitt, just like all those who made the decision to go ahead with the enactment of the new constitution, knew full well the consequences of such a decision. As far as his government is concerned, I guess, this means an attack by the international legal community against certain provisions of the constitution. In Schmitt’s case, his very signature on the law regarding the constitution cost him his position as president of Hungary. “Outside and foreign forces will never forgive him for it. This is very important to know, because it places an obligation on us. If they will never forgive him, then we must never forget [him].” So, according to this version, it seems Hungary’s enemies invented the story of Schmitt’s plagiarism and decided to oust him. Instead of a cheat he is actually a martyr in the cause of the nation. The obligation, of course, means that Schmitt, instead of quietly retiring from politics, will return as some “useful” member of the Orbán team.

This latest stunt of Orbán really boggles the mind. Who can believe such a cockeyed story? One would like to say nobody, but Orbán is a skilled storyteller. Perhaps someday one of the National Bank’s foundations can produce a sequel to the Grimm Brothers’ Household Tales–Orbán’s National Tales.

April 25, 2016

The latest Orbán stunt: A referendum on “compulsory settlement” of refugees

This morning I was surprised to find an “invitation” to Prime Minister Viktor Orbán’s press conference, to be held today at 13:00, in my inbox. I am, I presume along with many others, entitled to watch the press conferences of government officials and politicians. My first thought was “Orbán is giving a press conference? What’s so important?”

It turned out that the announcement was about holding a referendum that would allow the electorate to vote on the following question: “Do you want the European Union, without the consent of Parliament, to order the compulsory settlement of non-Hungarian citizens in Hungary?” Orbán gave the press conference in the middle of a cabinet meeting, emphasizing the import of the announcement.

He focused on the ideas of loyalty and independence. Voting against this question will be a proof of loyalty to the country. “Because how could be someone be loyal as long as others decide the most important questions?” It doesn’t matter how hard I try to follow Orbán’s logic, I can’t see the connection between loyalty and the matter on hand. As for independence, all those who say no to this proposition “stand by the independence of this country.” Reuters noted that, in addition, Orbán claimed that the government is “responding to public sentiment” because “we Hungarians think that introducing resettlement quotas for migrants without the backing of the people equals an abuse of power.” Orbán gravely announced that he was aware of possible ramifications of the referendum, especially if Hungarians say “no” to the quotas.

Feeling confident and important

Feeling confident and important

Apparently the European Commission refused to comment on the announcement, saying simply that the Hungarian government should first clarify what this referendum is all about. A very wise decision because there is a possibility that the whole referendum announcement is a canard. Speaking out against the refugees who threaten the existing Christian order is a winning ticket, as the polls during 2015 clearly showed. Orbán would like to keep the Hungarians’ fear and hatred of the refugees alive. That’s why the government has been collecting signatures in the last few months against quotas preferred by Angela Merkel and that’s also most likely why he came up with the idea of a referendum on the subject.

There are all kinds of legal hurdles, taking months to overcome, before a referendum can be held. Even if Orbán’s faithful servants speed up the process at every level, I would be surprised if a plebiscite on the issue could be held before late summer or fall at the earliest. And even if all the legal hurdles are behind them, which is not at all certain, there is the new law on plebiscites that makes it almost impossible to hold a valid one. Half of the approximately 8 million voters would have to turn out, which, given the low level of enthusiasm of the Hungarian electorate for voting in general, is highly unlikely. In addition, the government would need a little more than 2 million citizens to vote against the proposition. Fidesz may boast about the 2 million signatures it collected against the quotas, but this achievement is irrelevant if other less enthusiastic voters simply ignore the plebiscite. Of course, it is possible, as Ildikó Lendvai pointed out, that Fidesz will change the law and restore the 25% minimum turnout for a valid referendum. Anything is possible. These people are shameless.

However, it is possible that there will never be a plebiscite on the quotas because it might be ruled unconstitutional. The new basic law of 2011 clearly says that “no national referendum may be held on … any obligation arising from an international agreement.” (Article 8) And even if it is ruled constitutional, Article 19 states that “Parliament may ask the Government for information on its position to be adopted in the decision-making process of the European Union’s institutions operating with the Government’s participation, and may express its position about the draft on the agenda in the procedure. In the European Union’s decision-making process, the Government shall take Parliament’s position into consideration.” In plain language, parliament has no direct jurisdiction over the dealings between Hungary and the European Union, at best an advisory role. It is the Hungarian government’s sole prerogative to negotiate with the institutions of the European Union. So, it’s no wonder that even the ever-faithful George Schöpflin, a Fidesz member of the European Parliament ever since 2004, bluntly told Népszabadság that “the Hungarian referendum has no legal influence on EU decisions, or at least he doesn’t know about such.”

But there are other problems as well. The text of the proposed question is sloppy and not at all clear. According Boldizsár Nagy, a very good legal scholar, the question is so badly formulated that it might not pass the first legal hurdle, the National Election Commission, unless the Commission is filled with “lackeys.” For example, “compulsory settlement” (betelepítés) doesn’t exist either in Hungarian or in EU law. The terms used in connection with refugee matters are “transfer” (áthelyezés) or “resettlement” (áttelepítés). So, just because of the inaccurate word usage, the Election Commission should throw the question out. But if by some miracle it gets through the Commission, the Constitutional Court will probably put an end to the story.

Yet even the constitutional hurdle could be overcome if Fidesz has the temerity to amend the constitution with the help of Jobbik, which seems to be a willing accomplice. Yesterday Jobbik submitted a proposal to change the wording of Article 8 from forbidding a referendum on “any obligation arising from an international agreement” to “any obligation arising from an international agreement, except matters that touch upon Hungary’s immigration policy or any other decisions that have an impact on it.” The question is whether Orbán and Co. will have the audacity to change the constitution again to force through a referendum serving Fidesz’s political agenda.

Foreign newspapers immediately picked up the story. The Guardian thinks that Viktor Orbán would win such a referendum “in a preemptive strike against the European commission and the German chancellor, Angela Merkel, who are pushing for a permanent EU refugee quota system.” I, on the other hand, would not be so sure that this referendum will ever be held, unless Viktor Orbán is ready to amend the constitution and change the law on plebiscites. Even then, the wrong-headed legal argument that places parliament in a decision-making position vis-à-vis the European Union makes the success of this latest Orbán move questionable.

February 24, 2016

The Orbán government’s proposed amendments

A few days ago I wrote at some length about the Orbán government’s attempt to limit democratic freedoms under the guise of an unspecified terrorist threat that can be declared unilaterally by the government whenever it feels that such a move is warranted.

To introduce such “a state of terror threat,” the constitution must be amended, for which the government party needs a two-thirds majority in parliament, which it no longer has. Therefore, on January 12 István Simicskó, minister of defense, called a meeting of all five parliamentary parties, which the socialists boycotted. LMP and Jobbik did attend, however. András Schiffer expressed his misgivings about the proposed law, his greatest objection being that the declaration of a state of terror threat would depend exclusively on the will of the government. On the other hand, Előd Novák, whom Jobbik delegated to represent the party, was enthusiastic. When Origo’s reporter asked him about the extraordinary powers granted to the government in the amendments, he lightheartedly remarked that in a state of emergency “one cannot be too squeamish. That is the natural order of things.”

police state2

Between January 12 and January 19, however, something happened. It looks as if the Jobbik leadership was less elated about the proposed amendments than Novák initially was. Indeed, Novák dramatically announced on his Facebook page that although the document he received from the ministry of defense has been made secret for thirty years, he is ready to face three years of jail time. He cannot remain quiet. Here is proof that the government is planning to introduce a police state any time it claims the need for such measures.

This morning Ádám Mirkóczki, the spokesman for Jobbik, announced on Hír TV that his party agrees that the government should have wider powers in case of a terror threat, but it cannot accept the present proposal that gives the cabinet the exclusive right to identify the existence of a terror threat. They will not support governance by decree. They will not sign a blank check. Moreover, they insist on a four-fifths majority to pass the amendments. Both Népszabadság and Magyar Nemzet triumphantly announced that “the government’s proposal failed.” Indeed, even with Jobbik support, Fidesz would not have a four-fifths majority.

According to Gergely Gulyás, Fidesz stands by its original proposals, but its representatives are ready to negotiate a possible decrease in the duration of the state of terror threat.

Here is the English translation of the document that was officially made public by Előd Novák. It contains both the wording of the amendments and a detailed exposition of what the vague words in the constitution actually mean in reality.

♦ ♦ ♦

Sixth modification of the Hungarian Fundamental Law

 

Article 1.

The following subheadings and the following 51/A. Article are inserted into the Fundamental Law:

Terror threat-situation

Article 51/A.

 (1) The Government can proclaim terror threat-situation in an event of significant terror threat or in the case of a terrorist attack, and it can introduce extraordinary measures defined in cardinal law.

(2) The Government can issue decrees in a terror threat-situation that  according to regulations defined by cardinal laws – can suspend the application of certain laws, deviate from certain legal provisions, and it may take other extraordinary measures.

(3) The Government regulation (1) and (2) shall remain in force for sixty days, unless the Government – under the authorization of the National Assembly – extends the scope of the regulation.

(4) For the National Assembly’s (3) paragraph decision, two-thirds vote of the present Members of Parliament is needed.

(5) The Government informs continuously the President of Republic and the National Assembly standing committees that have relevant responsibilities and powers about the measures taken in the time of terror threat situation.

(6) The Hungarian Defense Force may be used during the terror threat-situation, if the use of the police and national security agencies are not enough.

(7) The Government’s decree is repealed if the terror threat situation ceases to exist.

Article 2.

 (1) This modification of the Fundamental Law shall enter into force on the first day of the month following its promulgation.

(2) This modification of the Fundamental Law is accepted according to the Fundamental Law’s Article 1. Paragraph (2) Point (a) S) article Paragraph (2) by the National Assembly.

(3) The consolidated text of the Fundamental Law after this modification of the Fundamental Law entered into force shall be published immediately in the Official Gazette.

General Explanation

The security environment of the transatlantic region, including Europe and Hungary has fundamentally changed since the creation of the Fundamental Law. New type of security challenges have appeared in the world that cannot be answered by the previous same special legal answers given to classical interstate threats sufficiently and in accordance with the requirement of necessity-proportionality. The special legal order rules of the Fundamental Law create a logically closed system for the classical challenges. In this system the state of national crisis answers the classical war threat, the state of emergency answers the fundamental threat of the state or social order from inside, the state of preventive defense ensures the preparation of a coming war, the unexpected attack situation answers a situation when an external armed force attacks the country. This system provides more and more authority to the government according to the severity of each situation. The new type of security challenges cannot be implemented fully into this system.

Taking into account the security situation nowadays, this modification serves the goal of supplementing the special legal authority for the prevention and management of the new type of security challenges of terrorism, given that these types of – armed and unarmed – threats have intensified in Europe.

Detailed Explanation

For Article 1.

The purpose of the amendment is to give the government powers to immediate action in the case of terror threat – including armed or cyber threats as well – with the National Assembly’s post factum confirmation. With this amendment the prevention or elimination of these new types of security challenges does not require the introduction of the state of preventive defense that was designed for war time emergency or the introduction of state of emergency that was designed for managing an internal crisis. The latter two special laws include the systematic modification of governmental operations and the ordinary life of a citizen; which in a state of emergency situation involves fundamental legal order changes as well.

The terror threat and certain attacks do not require the introduction of state of emergency, because the immediate management of these problems could be handled by the Government with the option of extraordinary measures. In contrast, the introduction of the state of emergency is needed, if more serious attacks happen that massively threaten the life and property safety, or the constitutional order of the state is endangered fundamentally. In the case of these types of extended threats the state of emergency seems to be justified, where the President of the Republic has the decision-making powers, and the operation of the state has system-wide changes, it opens a broader extraordinary executive power in order to ward off the threats.

The regulation of terror threat-situation follows technically the regulation of emergency, with an additional overhead warranty. For the prolongation of the Government’s regulations, the Fundamental Law requires a qualified majority, and regards to the nature of the situation the Government has a permanent obligation to provide information to the President of the Republic and to the National Assembly.

The promulgation of terror threat-situation provides for the Government quick intervention opportunity to deviate from the regulations concerning the public administration, Hungarian Defense Force, law enforcement, national security agencies. In addition, it provides opportunities for the Government to introduce measures that have an effect on the everyday life of an ordinary citizen proportionately to immediate threats, with providing continuous information to the President of the Republic and to the National Assembly at the same time. The terror threat-situation does not necessary require the use of the Hungarian Defense Force, but it provides an opportunity for that. The Government can decide on the usage of Hungarian Defense Force at the same time, when it promulgates the terror threat-situation. Additional warranty condition is that the deployment of Hungarian Defense Force can be used if the Government evaluates the usage of the police and civil national security services are not sufficient to handle the situation.

For Article 2.

It includes the enacting regulation.

 

  1. year…law

Terror threat-situation modification of certain laws

  1. §

The XXXIV. law on Police from the year 1994.;  1. § Paragraph (2) Point 9. is replaced by the following:

[The police in the Fundamental Law, in this law and based on an act in other regulations among defined crime prevention, public administration and law enforcement responsibilities]

            “9. Shall carry out the law enforcement tasks delegated to it in time of state of national crisis, state of emergency, state of preventive defense, terror threat-situation, unexpected attack and in time of emergency, furthermore in time of state of national crisis and in case of unexpected attack participate in capturing and unarming the people who crossed the state border armed or with weapons,”

 

  1. §

The CXXV. Law on national security services from the year 1995.; 9. § Point b) is replaced by the following:

[The national security services]

            “b) shall carry out the tasks delegated to them in time of state of national crisis, state of emergency,  state of preventive defense, terror threat-situation, unexpected attack and in time of emergency;”

 

  1. §

The CXIII. Law (hereinafter: Hvt.) 36. § Paragraph (1) Point f) which is connected to homeland defense and Hungarian Defense Force and measures in time of special legal order is replaced by the following:

(The Hungarian Defense Force shall carry out the following tasks with the right to use weapons)

            “f) application,”

  1. §

(1) The Hvt. 64. § Paragraph (1) is replaced by the following:

“(1) The operational regulations and measures are defined by this chapter in time of state of national crisis, the state of emergency, state of preventive defense, terror threat-situation. The national measures in accordance with the NATO Crisis Response System can be used independently, and in consort with other extraordinary measures. “

(2) The Hvt. 64. § Paragraph (4) is complemented by the following:

(The Government can introduce)

            “c) in terror threat-situation measures according to the 78/A. §

(3) The Hvt. 64. § Paragraph (5) is replaced by the following:

“(5) Where this part mentions regulations, it means extraordinary measures introduced by the Hungarian Defense Council in time of state of national crisis; the President of Republic in time of state of emergency; the Government in time of state of preventive defense, terror threat-situation and unexpected attack. Any conflicting legislation with these does not apply.

 

  1. §

The Hvt. is complemented with the following 46/A. sub-heading:

“46/A. Extraordinary measures that can be introduced in time of a terror threat situation.

 

78/A. § The Government may order in compliance with the Fundamental Law Article 51/A Paragraph (2)

  1. obligatory publication of agreed and coordinated information, official resolutions for public service broadcasters
  2. stockpiling, regulating and restricting the circulation of  products, energy sources, consumer goods that are important for the protection of the country
  3. the replenishment – with simplified procedure – and overwork of  important positions in public administration, defense management, the Hungarian Defense Force and law enforcement organizations
  4. the simplification of management system in certain sectors of public administration, the modification of regulations – administration period, authority, jurisdiction and scope of cooperation – of public administrative institution’s work schedule, and public proceedings.
  5. restrictive regulations on frequency management and broadcasting, and order introduction of special modes
  6. necessary restriction of air traffic in the Hungarian air space and airports
  7. the employment of the Hungarian Defense Force, and  law enforcement forces and equipment to protect the country and the critical infrastructure of public services
  8. the limitation of ownership rights and locking interests of other states, natural persons, legal persons, and organizations without legal persons that threatens the security of the country
  9. cumulating special reserves, speeding up purchases of imported goods, export restrictions, introduction of commercial quotas, suspension of public procurement
  10. introduction of special counter terrorism measures
  11. tightening the traffic control on state borders regardless of any international regulations and conventions
  12. the use of alert levels for citizens as well
  13. the use of special access control procedures and technical control in public institutions and public places
  14. the tightening rules, introducing conditions or denying,   personal or vehicle entry into buildings and facilities of public administration, Hungarian Defense Force, law enforcement and other organizations that contribute to defense. The traffic’s evacuation, limitation or diversion on their approach routes’
  15. the searching of individuals or vehicles in the above mentioned objects and approach routes, in addition finding and destroying unattended things with unknown origins
  16. making rules for service time – differently than the procedure in time of peace – concerning the Hungarian Defense Force’s operative military units and official cadres of law enforcement agencies
  17. increased control of the internet, letters, baggage and mail traffic
  18. the restriction of residence in certain parts of the country, and subjection it to a permit
  19. curfew in the affected settlements with determination of the exact time period
  20. prohibition of organizing events and demonstrations in public spaces
  21. the use of rooms, studios, broadcasting stations, equipment,  and facilities of radios, TV-s and other mass communication institutes, unbundling or ignoring them for use.
  22. the suspension, limitation and controlling of postal and electronic communication services, furthermore the use of telecommunication and information technology networks and equipment, and the unbundling or ignoring the use of electronic communication equipment
  23. the limitation of road, rail, water or air vehicles in certain parts of the day and in certain places (routes), or prohibiting their transport temporarily in all over- or some parts of the country
  24. requisition or limitation of the usage of repair capabilities, stations, airports and storage units  in order to ensure the road, rail, water and air transports, and perform transport services in expenses of the vehicle owner
  25. the limitation or prohibition of entry of foreigners
  26. the limitation or prohibition of contact and communication with foreigners and foreign organizations, institutions
  27. an obligation to non-Hungarian citizens that stay in Hungary to report themselves to authorities, and the Government may introduce limitations on their stay
  28. that traveling to, across, or out of certain parts of the country is possible only with a permit
  29.  that the population in certain part of the country has to evacuate for a necessary time, and at the same time the Government appoints a new place of residence for them
  30. the use of regulations different from the rules on public finances, implementation of appropriation transfers between budget categories, suspension of execution of certain expenditure appropriation, fulfillment of expenditure not included in the law on the central budget, requirement of extraordinary payment obligations, establishment new type of fines, changing the rate of payment and fine obligations, elimination of exemptions and discounts.”
  1. §

The Hvt. 80. § is complemented with the w) point:

(In the application of this act and legislation concerning national defense)

“w) application: participation in time of state of emergency and terror threat-situation in elimination of violence.”

  1. §

This Act shall take effect on the first day of the month following its publication.

  1. §

This Act considered being a cardinal law based on the Fundamental Law Article T) Paragraph (1), Article 45. Paragraph (5), Article 46. Paragraph (6) and Article 54. Paragraph (4).

 

GENERAL EXPLANATION

The act is aimed to implement the sixth amendment of the Fundamental Law about homeland defense and the Hungarian Armed Force, in addition to implement the modification of the CXIII. Law (hereinafter: Hvt) on measures in special legal order from 2011. The regulation expands to the XXXIV. Law on police, from the year 1994. (hereinafter: Rtv.), and to the CXXV. law on national security services (Hereinafter: Nbtv.) and supplements them.

 

DETAILED EXPLANATION

For the 1. §

The constitutional appearance of the terror threat-situation made necessary the supplementation of Rtv. concerning special legal order. The amendment serves this purpose.

For the 2. §

The constitutional appearance of the terror threat-situation made necessary the supplementation of Nbtv. concerning special legal order. The amendment serves this purpose.

For the 3-6. §

For the Hungarian Defense Force, the sixth amendment of the Fundamental Law is necessary to carry out tasks in a terror threat-situation. The deployment of the Hungarian Defense Force has to be expanded to this special legal order besides the state of emergency, in favor of making every other regulation concerning the national defense interpretable.

The Proposal contains the Hvt. 46/A. sub-heading supplementation with the terror threat-situation. The Hvt. new 78/A. § contains in detail – within the cardinal law regulation framework of the Fundamental Law – what kind of measures are in the scope of the Government’s authority.

For the 7. §

The section contains a giving effect provision

For the 8. §

The section contains a cardinal clause.

January 22, 2016

 

Toward a police state?

It’s time to take a quick look at the amendments to existing laws on the army and the police that, in Viktor Orbán’s words, will start a new era in Hungary. The projected date of this new beginning is September 15–that is, if Fidesz-KDNP has its way and four-fifths of MPs present vote for the extended use of the army and the police in the border regions and elsewhere. The amendments, following the usual course in the Orbán era, were proposed by individual parliamentary members. Not surprisingly, they were the same nine Fidesz-KDNP MPs who were the framers of a message, in the form of a parliamentary resolution, to the “irresponsible” western politicians whom they blamed for the immigration crisis: Antal Rogán (Fidesz), Péter Harrach (KDNP), Gergely Gulyás (Fidesz), Bence Tuzson (Fidesz), Szilárd Németh (Fidesz), Sándor Font (Fidesz), Pál Völner (Fidesz), Erik Bánki (Fidesz), and József Attila Móring (KDNP).

These amendments, in the opinion of those legal scholars whom I consulted, “not only violate the principles of constitutionality but transgress new legal limits that may mean the elimination of constitutional boundaries.” At least this is the opinion of the highly respected think tank of legal scholars at the Eötvös Károly Institute.  These amendments introduce a new legal concept under the rubric of “special legal orders” which are specified in the Fundamental Law (constitution) of 2011. The introduction of this new concept, the government incorrectly maintains, does not require an amendment of the constitution itself.

According to the document, there are “common rules for the state of national crisis and the state of emergency” (Articles 48-49), which focus on external or internal military emergencies. Article 50 deals with the circumstances under which the army may be deployed–national disasters, for instance. Article 51 specifies a situation described as “the state of preventive defense,” which might occur if Hungary’s army has to be deployed as a result of her obligations as a NATO ally. Finally, Article 52 deals with a situation that arises as a result of an unexpected attack. These are the only defined cases in which the country’s armed forces can be deployed inside the country’s borders and/or certain laws can be suspended. The Orbán government is introducing a new reason for declaring a state of emergency, linked to the number of asylum seekers present in the country.

The amendment refers to a state of emergency induced by “massive immigration.” What does it mean by “massive immigration”? Answer: if more than 500 would-be immigrants ask to be considered for refugee status per month. In August that number was well over 1,000. Or, if more than a thousand transient migrants are in one of the transit zones. Finally, if disturbances break out in any of the camps. By these criteria Hungary has been in a state of emergency caused by massive immigration for quite some time.

A state of emergency can also be declared if the authorities deem that circumstances endanger the security of a given settlement. So, the situation that developed at the Keleti Station would have given the authorities ample cause to declare a state of emergency. By the way, if a state of emergency is declared, it can last for six months or even longer if the authorities consider it desirable.

police kerites

In a state of emergency the general regulations of legal order are suspended. In this case the MPs who submitted the amendments would give additional legal powers to the army and the police. For instance, a policeman would be able to enter private property without a warrant. An order from a superior officer would suffice to search for immigrants suspected of being lodged on the premises. And many more actions on the part of either the refugees or of “complicit” Hungarians would now be crimes. The military would also have new rights. It would participate in the defense and protection of the borders and in the handling of large masses of migrants. In carrying out these duties, a soldier “will have the right to fire at specific individuals.”

What the Eötvös Károly Institute is stressing is that while “the crisis situation caused by massive immigration” may resemble the situation addressed by other special legal orders, it is not itself specifically covered by the constitution. Therefore, these amendments are not constitutional. Jobbik’s proposal to amend the constitution was “at least more honest.” The Jobbik amendment would have added the concept of humanitarian catastrophe, which would have permitted the deployment of the army for the defense of the borders. Of course, the associates of the Eötvös Károly Institute find both ways of introducing a state of emergency and suspending the normal legal order equally abhorrent. So much so that they consider “anyone–be he a member of the government, member of parliament, president of the republic, member of the Constitutional Court, ombudsman, professional soldier, judge, policeman–anyone who does not try to prevent the introduction and exercise of a quasi-extraordinary legal order or the perfidious malignity of the use of weapons against the weaponless  is responsible for the consequences.”

I must say that relatively few analyses have appeared on this frighting piece of legislation. As if all those journalists with law degrees don’t quite grasp the dangers lurking in these amendments–and there are far more dangers than I could cover here. Ildikó Lendvai, who has retired from active political life, though not herself a law school graduate, is keenly aware of the problem. She wrote two op/ed pieces in Népszava on the subject. In her latest, she points out that although these new pieces of legislation are allegedly about the refugees, Hungarian citizens are just as much victims of the state of emergency in the case of massive immigration as are those hapless asylum seekers. It is hard to imagine, she writes, that the people who put those amendments together would be so heartless as to consider rescuing a small child from under the barbed wire fence such a heinous crime that the person who gave assistance deserves a jail term of a minimum of two and a maximum of eight years. There must be some hidden reason behind it. Surely this law, says Lendvai, is also meant to frighten and subdue the citizens of Hungary.

The statement of the Forum for Religious Freedom Europe on Hungary’s law on the churches

Every year the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) organizes the Human Dimension Implementation Meeting (HDIM). This year the meeting takes place in Warsaw. One of the participating organizations is the Forum for Religious Freedom Europe (FOREF). They prepared an “intervention” which they will present on September 30 at one of the working sessions entitled “Tolerance and non-discrimination II/Intolerance against Christians and members of other religions.”

This is the text of FOREF’s recommendations and intervention:

* * *

foref

Hungary: New Religious Law at Variance with OSCE Standards and
the European Convention on Human Rights

Recommendations:

That the Government of Hungary, and specifically the Minister of Human Capacities, place back on the official registry of incorporated churches included in the appendix of Act CCVI (206) of 2011 those churches deregistered unconstitutionally and in breach of the European Convention on Human Rights by Parliament in 2011. Hungary should honor its international legal commitment to the European Convention and abide by the Court’s decision.

That Hungary should modify its church law so that legal recognition of churches is not determined by 2/3 vote of Parliament, something criticized in both the European Court and the Hungarian Constitutional Court.

That participating States to assist Hungary to harmonize its laws in accordance with the Helsinki standards and international human rights law.

Intervention:

The Forum for Religious Freedom Europe (FOREF) is an independent, secular, civil society formation dedicated to defending the freedom of religion in accordance with international law.  We wish to express our deep concern about policies of the government of Hungary that violate Human Dimension commitments undertaken by the participating States in the Helsinki Final Act and in the Madrid, Vienna, Copenhagen, and Maastricht documents.  These policies have resulted in arbitrary discrimination against religious communities, and have given the state illegal and inappropriate power to interfere in religious life.

In 2011, the Hungarian Parliament passed a new law on “the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities.”  The law abolished the previous practices of treating religious communities equally and registering them through the courts, and instituted a tiered system that discriminates between “incorporated churches” and others that enjoy fewer rights and privileges, and which refers determination of “incorporated church” status to a 2/3-majority vote in Parliament. The law resulted in the de-registration of at least two hundred churches, including, inter alia Methodist, Pentecostal, Adventists and reform Jewish churches, as well as Buddhist and Hinduist congregations.  It has exposed religious organizations to bureaucratic harassment.
In February 2013, Hungary’s Constitutional Court ruled that 67 churches that had been deregistered unconstitutionally were therefore still churches.  According to point 217 of the Hungarian Court’s decision,

One of the requirements of possessing church status is that the minister must place religious communities that possess such status on the registry. Since, as a consequence of the Constitutional Court’s present decision, the provision is no longer in effect which stipulates the minister’s act of registration is tied exclusively to Parliament’s recognition of a church, there is no legal obstacle preventing religious communities, whose applications were rejected by the decision of Parliament, but who, as a result of the retroactive effect of this decision have not lost their church status … from reporting their data to the minister who can then register them.

Unfortunately, the government has deliberately disregarded the Court’s orders. The Ministry of Human Capacities has rejected the written requests of at least four deregistered churches to be placed on the registry of incorporated churches (Magyarországi Evangélium Testvérközösség, Budapesti Autonóm Gyülekezet, Isten Gyülekezete Pünkösdi Egyház, Fény és Szeretet Egyháza).   In a response worthy of a novel by Franz Kafka, the Ministry stated that it could not place the groups on the registry because according to the law, incorporated churches are already on the registry, and the churches making the request were not on the registry.  Of course, the reason they are not on the registry is because the government will not place them there. In yet an even more Kafkaesque twist, when these deregistered churches have turned to the Hungarian courts, the courts have consistently ruled that the Ministry should have placed them on the official registry. But because the courts can’t force the Ministry to register the churches, it has ordered that the churches should resubmit their request to the Hungarian Government, which can, of course, refuse again to comply with the written request ad infinitum.

Instead of adhering to the rule of law and abiding with the highest court, the Hungarian Parliament amended Hungary’s Basic Law in a way that explicitly grants Parliament the right to render arbitrary decisions concerning church registration.   The procedure by which Parliament determines the legal status of individual churches was also criticized explicitly by the European Commission for Democracy through Law (Venice Commission) as incompatible with the standards of due process (Opinion 664/2012 par. 76-77).  According to the European Court of Human Rights the scheme of parliamentary recognition “inherently carries with it the disregard of neutrality” (Magyar Keresztény Mennonita Egyház and Others v. Hungary, par. 102).  The Basic Law is thus in blatant violation of a fundamental principle of religious freedom and human rights.  No legislative body should have the power to rule over religious freedom.

In April 2014, the European Court of Human Rights ruled that that Hungarian Parliament’s deregistration of legally recognized churches constituted an interference with those groups’ fundamental rights as secured by articles 9 and 11 of the European Convention (Magyar Keresztény Mennonita Egyház and Others v. Hungary). Hungary appealed the decision to the Grand Chamber.  The Grand Chamber rejected that appeal in September 2014, so the decision is now final and binding.
In light of the ruling of the European Court of Human Rights, as well as our common Helsinki principles that uphold the freedom of religious communities from discrimination, and given the ruling by Hungary’s own Constitutional Court, FOREF respectfully asks that the Government of Hungary, and specifically the Minister of Human Capacities, Zoltán Balog, place those churches deregistered unconstitutionally by Parliament in 2011, in breach of the European Convention on Human Rights, back on the official registry of incorporated churches included in the appendix of Act CCVI (206) of 2011. Hungary should honor its international legal commitment to the European Convention and abide by the Court’s decision.

Furthermore, Hungary should modify its church law so that legal recognition of churches is not determined by 2/3 vote of Parliament, something criticized in both the European Court and the Hungarian court.

We ask the support of participating States to assist Hungary to harmonize its laws in accordance with the Helsinki standards and international human rights law.  Thank you for your attention.

Attila Mesterházy and Ferenc Gyurcsány outline their plans for the restoration of Hungarian democracy

It’s time to get back to the present, which is a great deal  less upbeat than the days just before the Hungarian government allowed the East Germans to cross into Austria. Those days were full of hope. The Round Table Negotiations were winding up and within a few days the establishment of the Fourth Republic was declared.

Today the mood of the country is outright gloomy. The economy is languishing and the opposition is in disarray. And yet one must move ahead. One helpful sign: a discussion about how the wounds the Orbán government inflicted upon the democratic institutions of the country can be healed is going on in earnest on the Internet. Zsófia Mihancsik, editor-in-chief of Galamus, was the one who initiated a series of articles on the topic. Up to date eleven pieces have appeared; I will compare the last two. Yesterday Ferenc Gyurcsány wrote and today Attila Mesterházy.

Attila Mesterházy

Attila Mesterházy

My first impression was that their ideas on the restoration of democracy in Hungary run along very similar lines. In my opinion, if it depended only on these two men, MSZP and DK could come to an understanding on practically all the important issues in no time. I don’t know whether Gordon Bajnai will join these two politicians and outline his own ideas on Galamus, but from what I know about E14-PM ‘s view of the future without Viktor Orbán it is quite different from those of Gyurcsány and Mesterházy.

Gyurcsany Ferenc

Ferenc Gyurcsány

So, let’s see what they agree on. Practically everything. Neither of them believes in any kind of compromise with Viktor Orbán’s party. Gyurcsány, as is his wont, puts it in stark terms. He considers the Orbán government illegitimate and illegal. Illegitimate because it didn’t receive a mandate to change the basic democratic structure of the country and lead it toward autocracy. It is illegal because it strives toward the acquisition of exclusive power. He also finds the 2012 Constitution illegal and illegitimate.

Neither Gyurcsány nor Mesterházy thinks that the 2012 Constitution can be left in place, but while Gyurcsány considers a two-thirds majority necessary to write a new constitution, Mesterházy perhaps  a little bit more realistically thinks that some kind of legal possibility exists that might solve the problem. For example, wide societal support for a new constitution that could force a referendum on the issue. That would require some very clever legal finagling given the current restrictive provisions of the Hungarian constitution.

Mesterházy spends some time distinguishing between Fidesz as a party and the Fidesz voters. He is convinced that the majority of those who voted for Fidesz in 2010 did so in the hope that Viktor Orbán would ensure them a better future but that by now they are disappointed in their man and his government. I disagree with his assessment of the current state of affairs. I don’t think that most Fidesz voters are disappointed. Yes, a lot are, but the so-called hard core is unshakable. In my opinion Mesterházy is far too optimistic when he writes about the eventual attrition of Orbán’s followers. Past experience tells us that 1.5 million people will always vote for Fidesz no matter what. Gyurcsány doesn’t address this problem.

Both think that political appointees must be relieved of their jobs because otherwise the new government would be totally powerless to make the changes necessary for the restoration of democracy. Gyurcsány specifically mentions a few crucial appointments in the judicial system such as Fidesz nominated judges to the Constitutional Court, new high-level judges, and the supreme prosecutor. He also thinks that many of the newly appointed civil servants most likely will have to be let go because by now the whole civil service is completely politicized. Unfortunately neither of them tells us how he would be able to accomplish this legally.

Both agree that the illegal concessions, be they land leases or tobacconist shops, must be reevaluated and if necessary revoked. As for the tobacco state monopoly Gyurcsány specifically calls for an immediate abrogation of the law. Let’s open the tobacco market, he says, and let the new Fidesz owners compete on a level playing field.

Gyurcsány is quite specific about which Fidesz changes he would leave alone. He would allow municipalities to choose whether they want to have their schools back or whether they are satisfied with having local schools under centralized state administration. One could even make an argument to leave hospitals in the hands of the state. He would not abolish the new administrative unit, the járás, although one most likely would give them autonomy instead of centralized state oversight.

These two men could easily see eye to eye. EP14-PM is a different matter. Bajnai’s team are ready for a compromise with Fidesz, and they think they could live with the current constitution after a little fiddling with it. On this point both Mesterházy and Gyurcsány are clear: there can be no compromise with Fidesz. This is such a basic disagreement of principle that it will be difficult to resolve. And, by the way, E14-PM again lost a couple of percentage points according to the latest Tárki poll that was released only today. The postponement of the negotiations in the hope of gaining strength didn’t bring the expected results. On the other hand, MSZP gained a couple of percentage points.

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