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Unchecked power

Keno Verseck / db
March 12, 2013

Hungary's parliament has disempowered the constitutional court by approving controversial constitutional changes, despite massive protest at home and abroad. Many view the changes as an attack on civil rights.

Viktor Orban . (Photo by Dan Kitwood/Getty Images)
Image: Getty Images

Hungary's democratic opposition took to the streets in protest. Western countries voiced major concern. And EU Commission President Jose Manuel Barroso personally called Prime Minister Viktor Orban - to no avail. Despite mounting pressure on the Hungarian leader, Hungary's parliament approved controversial changes to the constitution on Monday with a two-thirds majority.

The change represents the fourth and most comprehensive amendment to the constitution that lawmakers have approved within one year. The new constitution came into effect in January 2012 and has remained a source of controversy ever since.

Hungary's opposition and legal experts criticize the amendments as an attack on constitutional principles and civil rights. The changes spell "the end to the state's separation of powers," said Laszlo Solyom, a former Hungarian president and ex-chairman of the constitutional court.

Tightening the reins

Under the amended constitution, the constitutional court forfeits a good deal of authority. Hungary's top court can now only review and pass judgment on future constitutional amendments based on procedural grounds - and not on their content.

Thus, if a new amendment should infringe upon civil rights anchored in the constitution, judges will not be able to strike that amendment down. At the very most, they will only able to rule that the infringement of a guaranteed civil right renders the constitution less coherent legally. Hungary's political leaders are now able to introduce amendments with less supervision from the country's top court.

Protesters with painted faces and banners REUTERS/Laszlo Balogh
Tens-of-thousands of Hungarians protested the changes to the constitutionImage: Reuters

Constitutional judges have also been robbed of the right to refer in their rulings to legal decisions made before the new constitution came into effect in January of last year. Many regulations the court had previously ruled unconstitutional will now, retroactively, be rendered constitutional.

That includes the right to ban homeless people from sleeping in public spaces, the right to prohibit political party campaign advertising on commercial channels and the right by the head of the state judicial authority to allocate trials to certain courts. It also renders legal the definition of a family as a "marriage between man and woman," as well as parliament's right to decide on a religious community's status as an official religion.

Freedom of opinion in Hungary may also be limited in the future. The "Honor of the Hungarian Nation," a constitutional clause that has yet to be defined, need only be violated for someone to have broken the law. University and college students who receive state grants will also be contractually obliged to stay and work in Hungary for an undisclosed period of time after graduation.

Campaign of vengeance

Budapest constitutional lawyer György Kollath calls the amendments to the constitution a "legal campaign of vengeance," adding that the changes were a result of Orban and his Fidesz party's "Bolshevik reflexes."

Hungary's Constitutional Court was in fact the last strong state institution that opposed Orban, most often in cases where it felt that constitutional rights were being infringed upon. To the prime minister's displeasure, the court threw out several laws in early January, including controversial legislation on voter registration passed by a government majority.

(Photo: Jürgen Strauß/dpa)
In Hungary's parliament in Budapest, politicians will now have far greater powerImage: picture-alliance/ZB

The process of disciplining and disempowering the constitutional court began with Orban's election victory in the spring of 2010. The rules for the vote and the court's formation were rapidly changed, and, in the fall of that year, the Orban government withdrew the court's authority to rule on state financial issues. Orban also substituted retiring judges with candidates suited to his own interests.

Authoritarianism on the rise

Together 2014, Hungary's newly-formed opposition voter alliance, is calling the fourth amendment "a rampage against the constitutional order." Andras Schiffer, head of the left-leaning LMP party, criticized the changes as the beginning of an "authoritarian system."

For Gabor Halmai, a constitutional lawyer and critic of the government, the amendment was akin to "The Empire strikes back." The constitutional amendments were aimed at eliminating the most serious obstacle for the government to rule, he said, "and at putting an end to the submission of everyday politics to constitutional law."

The changes to the constitution secured that process, Halmai says. "The constitutional court no longer has the authority to prevent the breakdown of constitutionality in Hungary via unconstitutional laws."

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