Constitutional Politics in Contemporary Hungary

Abstract

This paper argues that what has happened with and led to the 4th amendment to the Fundamental Law of Hungary adopted in 2013 (and to the 5th amendment of the same year) is a reasonable and simple consequence of the technique of the political power that has been exercised in Hungary since 2010 in the course of amending the former Constitution and of the preparation and adoption of the new one. In order to understand why the change is so drastic and radical, it is inevitable to assess constitutional politics between 1989 and 2010 from a perspective of the constitution-changing and -making powers and the methods and techniques employed. The outcomes of constitutional politics between 1989 and 2010 gave rise to political criticism and the developments related to the Constitution (Act XX of 1949) were also surrounded by evident dissatisfaction. Yet, what has been happening since 2010 is far more problematic in the light of constitutionalism and democratic values.

La identidad de la Constitución y la identidad constitucional: apertura de discursos entre el Norte Global y el Sur Global

“…It was also demanded politically due to the failure of a constitutional amendment just one week before the delivery of the ruling. The constitutional amendment, as a result of an invalid referendum on the "quota decision" 15 , was meant to incorporate the term "constitutional identity", defence of which would have been the duty of all, with a view to constitutionally opposing the future implementation of the "quota decision" (Drinóczi, 2017). The HCC, which is seen as a packed court as stated by the Hungarian Helsinki Committee, by declaring the identity of Hungary, informally amended the FL.…”

“…Not contesting at all the importance of this kind of review, which is necessary if constitutionality is to be maintained, when the constitution itself is not in line with certain international and supranational standards, even though it is constitutionally bound by them, the non-standard-like provisions may be preserved by the constitutional courts. In Hungary, based on the new doctrine of constitutional identity rooted in the historical Constitution, the HCC enabled itself to defend the most criticized provisions of the FL 16 against a constitutional amendment which has the aim of improving the constitutional content and raising it to the same level seen in the common constitutional tradition of Member States and international human rights obligations (Drinóczi, 2017). Furthermore, the language of constitutional identity in Hungary rather shows a tendency towards individualistic detachment from the common European project 17 , which was first characterized by abusive constitutionalism (Landau, 2013) but has quickly evolved into an illiberal constitutionalism (Drinóczi / Bien-Kacala, 2017).…”

“…For a summary and critique, seeDrinóczi, T. (2017). 15 The question posed by the referendum read as follows: Do you agree that the European Union should have the power to impose the compulsory settlement of non-Hungarian citizens in Hungary without the consent of the National Assembly of Hungary?…”

“…See, e.g., the Fourth Amendment, Opinion on the Fourth Amendment to the Fundamental Law of Hungary Adopted by the Venice Commission at its 95th Plenary Session, Venice, 14-15 June 2013. It involved the incorporation of many provisions that have previously been declared unconstitutional by the HCC(Drinóczi, 2016) 17 See the Hungarian approach to the quota decision of the Council and attitudes towards migration issues in, e.g., B Nagy at eumigrationlawblog.eu. 18 The HCC in its decision, which was based on the decision of the ECtHR in case Magyar Keresztény Mennonita Egyház and others v. Hungary (2014), ruled the Church Law and some other legal acts contrary to the ECHR and called upon the Parliament and the Government to take the necessary measures to resolve the conflict before 15 October 2015.…”