Venice Commission’s opinion on new Hungarian Constitution

In April 2011 Hungary’s Parliament approved (262 deputies in favour, with 44 voting against and one abstention) with its super majority a new Constitution. The text was signed shortly after by President Pál Schmitt and will come into force on 1st January 2012.

Hungary was the only post-communist country in Central and Eastern Europe which did not adopt a new constitution after 1989 regime change. The previous version dated back to 1949, although amended several times in order to bring it in line with the democratic principles and ultimately also with the requirements for joining the European Union.

Since the new Fidesz/KDNP coalition took office in 2010, Prime Minister Orbán soon announced his Government’s intention to give the country a new constitution in order to ensure its full transition to democracy. In 2010, the process of drafting a new Constitution began, taking overall less than a year.

The drafting process and some contents of the new Constitution has given rise to criticism by the opposition parties, the European Union, the United Nations, and several NGOs.

Therefore, the Council of Europe’s constitutional watchdog – the European Commission for Democracy through Law (better known as the Venice Commission)(1) issued an Opinion on the new Constitution of Hungary on June 20th 2011 as an outcome of the study(2) undertaken by a group of Rapporteurs who visited Hungary in May 2011 and met with representatives of the authorities, political parties represented in the Hungarian Parliament, the Constitutional Court and the civil society.

General remarks:

1. The Commission acknowledges the importance that a former communist country adopts a new and modern Constitution aimed at consolidating Hungary as a democratic state guaranteeing the protection of democratic principles as well as of fundamental rights and the rule of law.
2. It welcomes the objective of seeking to bring constitutional standards in line with common European democratic values and directives, and of enshrining the preservation of the form of state as parliamentary republic. In this regard, it also recognizes the particular effort made to follow closely the technique and contents of the European Convention on Human Rights and of the EU Charter for fundamental rights.
3. The Commission emphasizes also the number of particular variation of European guarantees (linked to national traditions and identity), which can be found in a limited number of European constitutions, but this is considered to be in line with the European Union law (art. 6 TEU) as it recognizes the protection of fundamental rights as guaranteed by European human rights tools and by constitutional traditions (these special guarantees are seen as part of constitutional autonomy).



On the other hand, a more in-depth analysis is offered on those parts of the Constitution which have sparked more controversy. As follows, a synthesis of the most important ones.

Special remarks and final recommendations:

As it was already stated in the Venice Commission 2011 March’s opinion, the working group has confirmed concerns regarding the constitution-making process – including the drafting and final adoption of the Constitution, which apparently lacked of transparency, of shortcomings in the dialogue between the majority and the opposition(3) , insufficient opportunities for public debate and very tight timeframe.

Hence the Commission hopes the adoption of the implementing legislation to be more transparent and inclusive, and accompanied by a proper debate. To this end, it calls on all parties involved to adopt a more constructive approach.

The Commission generally expresses concerns over the significant number of matters regulated by cardinal laws – requiring a two-thirds majority – including issues generally decided by simple majority procedures (e.g. cultural, religious, moral, socio-economic and financial policies). As highlighted by the working group, the extensive use of a ‘constitutional’ majority bears the risk of cementing the two-thirds majority political preferences and country’s legal order, thus undermining the functionality of a democratic system which is rooted in its permanent ability to change through elections. The working group thus recommends to restrict the fields and scope of cardinal laws in the Constitution to areas where there are strong justifications for the use of a super-majority.

The limitation of powers of the Constitutional Court on taxation and budgetary matters (as long as state debt exceed 50% of the GDP, the Constitutional court may only review Acts on taxation and budgetary matters if violation to certain fundamental rights occurs) is regarded with serious concern as it introduces a serious limitation to its competences and creates the impression that abiding to the national budget 50% of the GDP may be a more important goal, so that it may even be reached by unconstitutional laws. It thus represents a source of concern in the light of its potential impact on the functioning of democracy.

The relevance of the Preamble for the Constitution’s interpretation. The working group acknowledges the significant unifying function of a Preamble which usually gathers the main principles, values and guarantees for the concerned State and population. Hence, although numerous national, historical and cultural references are cited in it, the Venice Commission’s group welcomes the effort made by the legislator to balance national and universal elements in it. Nevertheless:

– the uncertainty of its nature (whether only political or also legal) may be a cause for concern as some statements - for example the paragraph declaring invalid the 1949 Constitution (which is, despite thorough amendments, currently still in force) – could have serious legal consequences (in the cited example it could generate legal invalidity of the country’s legal order in force up to now). Hungarian authorities confirmed the political nature of the Preamble. The working group recommends to provide clarity on this sensitive issue in the context of future interpretation of the Constitution.

– Other provisions contained in it as the protection of marriage as a union between a man and woman is accepted and justified as there is no European consensus regarding same-sex marriage. Therefore, the definition of marriage belongs to the Hungarian state and constituent legislator (registered same sex civil partnerships in Hungary enjoy legal protection since 2009).

The Constitutional protection of fundamental rights should be given more precise indications as to their content and stronger guarantees for their effective protection and enjoyment by individuals. The Commission calls it essential that the most important guarantees for individual fundamental rights should be specified in the text of the Constitution, and not left to lower level norms.

– As for specific issues, such as the Article II providing for protection of embryonic and fetal life from the moment of conception, the working group recalls Hungary’s obligations in terms of binding Human rights standards defined in various international conventions and concludes that this article does not necessarily imply an obligation for the Hungarian State to penalize abortion. Weighing up the various, and sometimes conflicting, rights or freedoms of the mother and the unborn child is mandatory. Provided that such a balance of interests is met, the extension of the safeguards of Article II to the unborn child is in line with the requirements of the European Convention on Human rights.

(1)The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation. It has 47 member countries (including Russian Federation, Ukraine, Turkey and Caucasus region), differently from the European Union. The Venice Commission is the Council of Europe’s advisory body consisting of experts on constitutional issues and its task is to encourage European standards in the adoption of constitutions.

(2) On request of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe.

(3) The main opposition Hungarian Socialist Party (MSZP) withdrew from the Committee established in 2010 to draft the new Constitution version, claiming it would not have been listened to, and did not take part to the final parliamentary vote either, in order to reflect its criticism over both the content of the constitution and the way it was drafted.