We’ve seen a lot of international traffic on the subject of this proposed fourth amendment to the constitution. It’s a lot of legalese, but simplifying a bit, let me briefly review what it’s all about.
Previously, the parliament of Hungary took certain so-called “Temporary Provisions” and made them, acting as the constitutional law-maker, part of the Fundamental Law, Hungary’s new constitution. In a decision at the end of December 2012, the Constitutional Court ruled that that’s not the appropriate way to go about that, not the appropriate procedure, and that changes to the Fundamental Law must be made in a structurally coherent manner, through a formal amendment.
The Court – this is important – rejected the provisions on procedural grounds, not on substance. The exception was voter registration, which it rejected on substance, and the parliament is dropping that. Voter registration is not part of this amendment. In those cases where the amendment includes issues that were not part of the temporary provisions but were overturned by the Court – topics like homelessness and church status – the amendment attempts to address the Court’s points.
So, in simple terms, the Court did not say that these provisions should not be part of the constitution because of their content but, that if these provisions are to be incorporated into the constitution, it must be done in a coherent way, as an amendment. And that’s what the parliament is proposing to do with this amendment.
"Constitution street" sign. Source: HVG.HU
What does the amendment say? Let’s have a look (N.B. the following is based on a draft text only) at some of the points being raised.
On the Constitutional Court: The amendment would expand the body’s sphere of responsibility and power and would allow it to initiate ex-post monitoring. The proposed amendment would allow the Court to carry out preliminary and ex-post monitoring of the Fundamental Law and its amendments.
On the judicial system: The amendment raises the administration of the judicial system to the constitutional level and says that the chairperson of the National Judicial Office shall be elected by a two-thirds majority of the members of parliament.
On religious organizations: The proposed amendment says that in addition to the exercising of the right to religious freedom by all persons and organisations, the state may provide a special, church legal status for organisations performing religious activity. The objective of this legal status is to enable these organisations to perform their activities in a more efficient manner. The criteria for receiving church status is spelled out in the cardinal law and include, among others, the requirement of continuous operation and public support. This is similar to practice in other EU countries and in no way bans other religious communities from functioning.
On freedom of expression, particularly related to election campaigns: Addressing the need to assure the suitable provision of information to the public and equal opportunities for all political parties, the draft states that especially important television and radio adverts may only be broadcast through public media channels, free of charge, during the electoral campaign. The proposals aim is to reduce expenditure on the election campaign by creating equal conditions when it comes to political advertisements. Other EU members have similar limitations on television advertising.
On homelessness: No, it’s not criminalized. The Constitutional Court made it clear that its ruling does not support the misuse of public areas. So, in the interest of public order and public safety, the draft amendment says that laws or local government may prohibit living on a specific part of public property. That’s sometimes called “urban camping,” and it’s illegal in many cities around the world. The amendment also says that state and local governments must endeavour to provide accommodation for all homeless people.
On higher education: The proposed amendment upholds the right to education and says that where higher education is obtained with financial support from the state, the state may introduce terms and conditions for that support – i.e., like working in Hungary for a certain period of time. There’s no limitation on freedom of movement. I addressed this in a previous post.
Despite all the commotion over the amendment, if you take the time to look at the text itself, you can see that this is a lot of excitement over what is essentially a question of legal procedure, not of substance. In any case, according to European Commission Spokesperson, Pia Ahrenkilde-Hansen, the Commission will examine the amendment to ensure that it upholds the letter and spirit of international law. I’m confident they will come to a positive conclusion. And as we’ve demonstrated before, we are open to dialogue and ready to make changes where appropriate.