Government Action to Bypass Court Undermine Rule of Law
March 12, 2013
These latest changes leave no doubt about the Hungarian government’s contempt for the rule of law. The government’s willingness to bypass the constitutional court and subvert the constitution for its own political ends underscores the need for a concerted EU response.
Lydia Gall, Eastern Europe and Balkans researcher

(Brussels) – The EU should take resolute action in response to the latest constitutional changes adopted in the Hungarian parliament.

The changes adopted on March 11, 2013 respond directly to a series of critical rulings in 2012 by Hungary’s Constitutional Court, which struck down problematic laws introduced by the government. Instead of respecting those rulings, the government has reintroduced the same laws through amendments to the constitution itself and ended the court’s power to review substantive changes to the constitution.

“These latest changes leave no doubt about the Hungarian government’s contempt for the rule of law,” said Lydia Gall, Eastern Europe and Balkans researcher at Human Rights Watch. “The government’s willingness to bypass the constitutional court and subvert the constitution for its own political ends underscores the need for a concerted EU response.”

The amendments to the constitution adopted on March 11:

  • Limit the mandate of the Constitutional Court, preventing it from referring to its own rulings prior to January 1, 2012, when a new constitution came into force, and ending its power to review the substance of amendments to the constitution.
  • Permit laws or local authority action criminalizing homelessness. The Constitutional Court struck down a law with the same effect in November 2012.
  • Define family narrowly as that founded on marriage between a man and a woman or as a parent-child relationship. In December 2012, the Constitutional Court had struck down legal provisions in the Act on Protection of Families which limited family to that based on marriage between a man and a woman plus dependent children as “excessively restrictive” after they were referred to the court by the country’s ombudsman. The new provisions continue to discriminate against unmarried and same-sex families.
  • Limit religious freedom by giving parliament the sole right to decide which religious organizations are considered ‘churches’ for the purpose of domestic legislation. In February 2013, the Constitutional Court struck down as procedurally unfair a law that led to most religious organizations in Hungary losing their status as churches, denying them state funding, including for service provision.
  • Give constitutional status to the existing wide-ranging powers of the president of the National Judicial Office (NJO), including the authority to transfer cases from one court to another. Politically sensitive corruption cases have already been transferred by the NJO president from courts in Budapest to courts in the countryside, which have considerably less experience trying such cases and where there is less media scrutiny.
  • Limit the broadcasting of political campaign ads to the state broadcaster, which could enable the government to ban campaign ads on commercial radio and television. Legislation with the same limitation was struck down as unconstitutional by the Constitutional Court in January.
     

The new constitution changes have attracted broad international concern, with criticism from European Commission President Jose Manuel Barroso, European Parliament President Martin Schultz, the US State Department, and calls by Council of Europe Secretary-General Thorbjorn Jagland to postpone the parliamentary vote pending international review by the Council of Europe Venice Commission, which specializes in constitutional reform. The Parliamentary Assembly of the Council of Europe is considering formal monitoring of Hungary, following a February 2013 mission to the country.

The amendments are only the latest in a series of problematic constitutional and legal changes introduced by the ruling Fidesz party since it won election with an absolute majority in 2010. The changes have undermined media freedom, limited judicial independence, and weakened the power of the Constitutional Court, which has been a key check on the executive.

The constitution changes, combined with the government’s blatant disregard for the rulings of the Constitutional Court, are at odds with the fundamental values of the EU and ignore numerous recommendations made by European expert bodies. Article 7 of the EU Treaty permits the suspension of an EU member states voting rights if actions pose a clear risk of a breach of the common values of the European Union, or if a member state is in serious breach of those values.

“The Hungarian government doesn’t want to listen – not to Brussels, and not to its own Constitutional Court.” Gall said. “It’s time for the EU to step up its response, including by giving serious consideration to suspending Hungary’s voting rights under Article 7 of the EU Treaty.” 

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