The Hungarian Constitution and the Venice Commission

I know that you will be very disappointed that I'm temporarily suspending my biographies of the less than qualified nominees for the Constitutional Court, but right now there are far too many other topics that demand our attention. Perhaps during the weekend I will be able to return to that sorry list.

There are so many interesting developments that I find it difficult to choose: Gyurcsány and MSZP; the accusation that the CEO of MOL bribed the former prime minister of Croatia, Ivo Sanader, for a majority share in INA, a state-owned oil refinery; Fidesz-KDNP MPs who are practicing lawyers and who turned against the Fidesz proposal that would restrict defense lawyers' access to their clients; and the Hungarian Constitution and the Venice Commission. I decided to write about this last item today.

In early March I wrote about a news item that informed the public that Tibor Navracsics, minister of public administration and justice, asked the Venice Commission to pass judgment on certain passages of the constitution. At this point the text of the whole document wasn't yet available, and suspicious commentators interpreted Navracsics's gesture as an insurance policy. If there is later criticism of the constitution as a whole, the Hungarian government can refer to the Commission's earlier opportunity to pass judgment on the constitutional process.

On April 17-18 a delegation of the Venice Commission headed by Thomas Markert spent a day and a half in Budapest. They met Tibor Navracsics again and also wanted to talk to the foreign minister about "the question of Hungarians living outside the borders." Markert cautiously remarked that a lot will depend on the "cardinal laws" numbering over forty. From his remarks it was clear that the Commission could not yet form a definite opinion. They would study the text carefully.

Once the new constitution became law on April 11 the Commission at last could sit down and scrutinize the text. On April 25 Markert in the European Parliament was much more explicit. He expressed his worries about the incredible number of "cardinal laws," all of which would need a two-thirds parliamentary majority to change. This would unduly limit the scope of subsequent governments. In addition, he complained about the short length of time that passed between the text of the constitution being made public and its becoming the law of the land five weeks later. The Commission was also unhappy about the limitations put on the Constitutional Court. The Commission wasn't too thrilled with the preamble either. For example, the definition of the nation may exclude minorities living in the country. At the same time the reference to the defense of Hungarians living outside of Hungary's borders may trouble the neighboring countries.

In early June Népszabadság got hold of a document that expressed the Commission's misgivings about the new Hungarian constitution. In it the Commission was much more explicit. In the opinion of the document's authors, Cristoph Grabenwarter (Austria), Wolfgang Hoffmann-Riem (Germany), Hanna Suchocka (Poland), Kaarlo Tuori (Finland) and Jan Velaers (Belgium), the numerous cardinal laws "decrease the importance of elections." In plain language, the political ideas and practices of the current government will perpetuate ad infinitum because it will rarely happen that one political formation will be able to achieve a two-thirds majority. It is also unlikely, knowing the past attitude of Fidesz, that after a lost election the party would be willing to come to a political understanding with the government party or parties on certain issues.

When the Commission's final report became available, it was clear that the Commission was indeed "vexed by Hungary's new constitution," as The Wall Street Journal described their reaction. The report is 29 pages long, and the Commission outlined its comments in 150 points. I have neither time nor space to detail these objections, but since the report is available in English there is no need to do so anyway.

The cardinal laws especially worry the members of the Commission. Thomas Markert at a press conference said that they found "50 references to cardinal law--not only in cases where it would seem to make sense, ... but also in cases such as the taxation or the pension system. We should make a difference between policies and principles." 

The Hungarian government's reaction was predictable. József Szájer, Fidesz EP MP and allegedly the author of the constitution, was outraged and accused the members of the Venice Commission of ignorance. They misunderstood a lot of things because "they are not familiar with Hungarian law." He was also upset at the suggestion that the new constitution was accepted without proper consultation. After all, "almost one million Hungarian citizens unanimously expressed their opinion." I can only hope that the members of the Commission are unfamiliar with the questions posed on the questionnaire or with the fact that most of the answers arrived after the final text was already approved. And I guess Szájer didn't tell them that out of eight million questionnaires only 950,000 people bothered to send them back. Moreover, the answers didn't receive public scrutiny, and therefore we have no idea what the returned answers really were.

Szájer also accused the members of the Commission of not acting professionally . "They have been unable to avoid the influence of ideological attacks on the constitution that developed in the last few months." So, he accuses them being politically motivated. Szájer expressed his ire toward the Commission on his blog and in Hungarian, but I doubt that his words will remain a Hungarian secret for long. Someone will sit down and translate his tirades. For anyone who's interested in the job, here is the link to Szájer's blog.

Even if the Venice Commission didn't yet read Szájer's blog, surely by now they know that the Hungarian government is unwilling to follow the advice of the Commission. Whether this will be the final word on the subject we don't know. After all, Viktor Orbán swore that not one word of the media law would be changed and yet a couple of months later the Hungarian government was forced to retreat somewhat.

Hungary's relations with Slovakia have been pretty rocky for years, and it is unlikely that they will improve in the near future. The Venice Commission's report actually strengthened Slovakia's hand in their opinion on national minority issues and dual citizenship. As Mikulás Dzurinda, Slovakia's foreign minister, said today, "the Venice Commission's views on certain points are identical to the Slovak point of view."

According to Péter Balázs, Hungarian foreign minister in the Bajnai government, it was a big mistake to refuse to deal with the Venice Commission's criticism. It is very possible that the leaked prediction of the Slovenian prime minister, Borut Pahor, about Hungary's isolation by other European countries might not be an idle threat. As far as Hungary's relations with her neighbors, Balázs doesn't expect any change for the better until 2014.

 

Comments

[Paul]

Can the EU do anything about the constitution in general? Or, specifically, if it's found to contradict any promises/agreements relating to Hungary's entry into the EU?

Or can individual countries basically do what they like, once they are members?

[peter litvanyi]

Dear Paul,
that would be the question, no? We signed something along these lines a year ago /initiated by Rajk Laszlo/.
I am afraid not. The EU is not what it seems to be on a movie screen.
As far as the "constitution" or whatever goes: let me post this very important article again. It is possible that even Eva might have a couple minutes to read it:
http://tamas.gaspar.miklos.nepszava.com/2011/03/29/az-uj-alkotmany-tortenelmi-jelentosege/

Peter Litvanyi

[Ron]

Can the EU do anything about the constitution in general? Or, specifically, if it's found to contradict any promises/agreements relating to Hungary's entry into the EU?

The answer is yes. However, it is not immidiately initiated. First the Venice Report once finished will be studied by the appropiated parties. Each will give their opinion on a piece of legislation. If the Commission finds that adjustments are necessary they will inform the Hungarian Government about this and the timeframe when it needs to happen (like what happened with the media law). If there are not enough instruments to do this, the Commission or Parliament (EU) will propose adjustment to the law. This whole process make take one or two years.

In the meantime any parties who believe that the constitution is against basic human rights can start a court case in Brussels.

Or can individual countries basically do what they like, once they are members?

Basically yes, look what happened to Greece they cook the books and no penalty here. Although I do not think thay can pay this penalty.

Btw about Greece does not come as a surprise. Since 1995 I heard about Club Med (Greece, Spain, Portugal and Italy) and the financial mess they are in.

[Johnny Boy]

Paul: why are you so desperate to see the EU doing something against the Hungarian constitution?
If they could find any EU law violated or seemingly hurt by the new constitution, they would immediately say so.
So far they found nothing.
Why the pursuit against it then?

[Kirsten]

Ron: "Since 1995 I heard about Club Med (Greece, Spain, Portugal and Italy) and the financial mess they are in."

But how come that the "prudent" countries have lent money to them?

[Paul]

"So far they found nothing"

29 pages and 150 points of "nothing"?

It would help if your posts had at least a slight coincidence with reality.

[Paul]

Kirsten - if you start asking fundamental questions like that, the whole EU setup starts to look unworkable!

The EU is as much an act of faith than it is anything else.

And long may we continue to believe in it. Imagine the alternatives.

[Paul]

Thanks for the link, Peter. Unfortunately the Google translation is even weirder than normal, so I can't make much sense of it.

But it ends with one very clear sentence: "Violence would be necessary if the Hungarian people to know what's cooking."

Which is exactly what I've been saying for months (although in better English!). Let's hope both of us are proved wrong.

[Ron]

Kirsten: But how come that the "prudent" countries have lent money to them?

I do not think it was the "prudent" countries, but financial institutions that lend money. And do not forget at that time the sky was the limit and optimisme was very high.

The problem occurred after 2002 when the economic growth went down, and as result the tax income went down. Otherwise we would never had these problems.

[Johnny Boy]

Paul: those 'pages' and 'points' refer to exactly ZERO of any EU law being violated.

Those pages express various concerns, mostly based simply on not knowing Hungarian legal terminology and having them mistranslated - generously referred to by Eva as Szájer's "tirades". No miracle she avoids to translate those "tirades" as they specifically point out some examples of where terminology comprehension has gone wrong.

Those concerns are not legal references of any kind, they are just general buzzwords as 'freedom of speech' and 'not enough discussion' with the opposition.
Those objects may even be true and rightful, but it is a matter of taste and political standpoint and inadequate for any objective consideration. This is a child's tantrum kind of legal reasoning. A factual and substantive analysis shows zero objective reference to any EU law.

[Some1]

Johnny Boy: "If they could find any EU law violated or seemingly hurt by the new constitution, they would immediately say so.
So far they found nothing."
Hungary signed the a contract wit the EU that retains to Human Rights. "and, "if", "but", "must" can be found in any novels and in legal documents, but it is the meaning and the context that matters Johnny Boy, not how the words put together. In fact, contrary that you keep posting over and over, the EU did find many problems with the Media Law, and were waiting for the report from the Venice Commission. As Ron said in his post that you conveniently skipped, the report "will be studied by the appropiated parties". I know that taking time to study things is a new concept for Fidesz, based on how fast they put together the new constitution on a laptop without sufficient feedback, but democratic entities like EU work that way (watch and learn!) SInce the Venice Commission just currently released its report I have no idea (or actually I do have some idea), where you get your information about the EU did not find anything wrong.

[Johnny Boy]

"Hungary signed the a contract wit the EU that retains to Human Rights."

Exactly, and the Venice Commission explicitly states that the Hungarian constitution conforms to the European Charter of Fundamental Rights.
So?

[Johnny Boy]

To help the case with a direct quote:
"In particular, the Venice Commission welcomes the fact that this new Constitution establishes a constitutional order based on democracy, the rule of law and the protection of fundamental rights as underlying principles. It notes that constitutions of other European States, such as Poland, Finland, Switzerland or Austria, have been used as a source of inspiration. A particular effort has been made to follow closely the technique and the contents of the ECHR and to some extent the EU Charter."

See the whole document here for yourself: http://www.venice.coe.int/docs/2011/CDL-AD(2011)001-e.pdf

Now come on, study it and come back with those exact legal objections instead of spewing leftist propaganda.

[Gretchen]

Just a note on sources: JB is using the 'Opinion' from 28 March 2011 and Eva's citation is of the 'Opinion on the New Constitution of Hungary' 20 June 2011.
Seems important to be viewing the same documents in order to arrive at one's ideas.

[Johnny Boy]

There are a lot in common between the two documents, but right, here is the link to the latest document: http://www.venice.coe.int/docs/2011/CDL-AD(2011)016-E.pdf

[Paul]

SB, I think you'll find "general buzzwords" such as freedom of speech are actually pretty fundamental parts of EU law.

And "'not enough discussion' with the opposition" is a pretty damming criticism of a new constitution.

Need I remind you (and obviously I do) that this is the constitution of the country we are discussing, not the just over half the electorate who voted Fidesz.

[Paul]

Nice one, Gretchen, it's always a pleasure to see our pet troll skewered with a fact or two.

[Paul]

Well, I've only had time to read the first 9 pages of the Venice Commission document, but, so far, stripped of its politeness and careful language, it has been pretty comprehensively critical of the new constitution - sometimes quite strongly so.

They even point out that, by refusing to recognise the 1949 constitution (as amended), Fidesz have effectively created a paradox where their own election and legitimacy becomes unconstitutional!

I'll read the rest later, but, if it's all like this, it is very far from the 150 points of nothing that SB claims.

Reading between the diplomatic lines, this is a pretty clear call on Fidesz to do it again, this time properly.

[Kirsten]

Ron: "I do not think it was the "prudent" countries, but financial institutions that lend money. And do not forget at that time the sky was the limit and optimisme was very high."

It is off topic in this blog so perhaps only a quick reply: in this case you do differentiate between whether it was the governments or the banks, in the "Club Med" case you did not, it were the countries only (not perhaps their banks as it has been the case for instance in Spain). And second, if "optimism was high" on the part of the lenders, why so if it were really believed that these are "Club Med" countries. Apparently both lenders and borrowers were "optimistic". In my opinion "it needs two to tango" so it is not just the "Southerners" that are to be blamed, no matter how appealing this interpretation seems currently.

Paul: "if you start asking fundamental questions like that, the whole EU setup starts to look unworkable!"

I believe that to be the case to some extent. I am very much in favour of the EU and of European cooperation and integration so my criticism certainly does not arise from general opposition to the EU. But there are many flaws in the way how it is organised currently. I spare you of details but for instance the criticism of the "spendthrifts" in Greece fully forgets how often all other member states simply closed their eyes when Greece somehow did not fully play by the rules (and btw other member states are also skilled in this). It was them who were opposed to include the whole of Cyprus to the EU, although most other member states were sure that this country need not stay divided. I read that this (negligence) is being done in order to make deals possible on many important issues. (This is also where this uncertainty how to deal with Viktor Orban stems from; the EU has some mechanisms how to criticise the member states, but there are also many ways how to get around it.) And such "deals" are necessary because there has not yet been found a different mechanism how the now 27 member states could reach agreements, which they must in many issues from refugees to agricultural policies and now the support of Greece. The countries are very much divided on the issue how far integration should go, with most countries now definitely not supporting a closer, i.e. political union. Decision-making in the EU could be different and more stringent with "more integration" (fewer competences at the member states level and more in Brussels and with the European Parliament). I think every person that is resident in Europe knows that this is impossible to sell to the "man in the street". So the EU is (in my opinion) primarily handicapped by this indecision with what the whole thing is about (many people would easily discard the whole project because it has still not been possible to get into the minds of many people - as you write - that it is difficult to conceive of an alternative: German and French rivalry or hegemony?). In the meantime most Europeans indulge in their animosities (it is the Germans who dictate, it is the Southerners who brought us into these troubles etc.). So unless it is more widely accepted that it is our "collective mess", I indeed think that the EU gets more and more "unworkable".

[Paul]

Interesting comments, Kirsten.

Like you, I am a great supporter of the EU and think it's the only future for Europe. But the problem with the EU is that its purpose is not at all clearly defined.

Individual countries join it for their own reasons, and, once they become members, then mostly carry on as if they weren't. There doesn't seem to be an overall, agreed view of what it's for.

Why, for instance, does it keep allowing countries to join? When it was a trading partnership between the richer north-western countries, it made sense. Or you could say that it made sense from a political point of view because a united Europe would prevent war, etc.

But in what way does it make sense to invite all the smaller, poorer countries to join? Inevitably they are going to be a drain on EU's resources and require the richer countries to put yet more money in. Once it had expanded beyond the richer countries, the EU ceased to be a logical trading/political bloc, and effectively became a sort of European-wide welfare system - distributing money from the rich to the needy.

To be more specific and topical, Croatia is now invited to join. Why? What can Croatia's membership possibly add to the EU? Another small, poor country that will take out more than it puts in. And politically it hardly makes any difference if Croatia is in or out. To Croatia, it obviously makes a big difference and you can see clearly what benefits they gain, but in what way do Germany or France or the UK gain anything from their joining?

The EU seems to have turned into a sort of political/geographical ideal, that is just accepted as a good idea and a logical evolution (and I would agree with this). But how would anyone explain it's existence and constant expansion in hard economic or political terms? What's it for, what does it do? Can it possibly justify the huge cost of running it?

And where does it stop? Is Iceland a European country? Is Turkey? Where exactly is the 'natural' border of the EU? If Israel in in Eurovision, should it also be a candidate for membership of the EU?

Personally, I don't care too much about any of this (except the last point!), I'm just glad it's there and regard it as an obviously 'good thing'. But unfortunately all these questions, and many more, provide excellent ammunition to the anti-EU parties and their supporters - whose numbers and vehemence seems to growing by the year. (For instance, there is no way the UK would join the EU if it wasn't already in - membership has very little support these days.)

And if that wasn't confusing enough, there's the mystery of the Eurozone. Again, I like the idea of a single currency, and wish the UK (and Hungary!) were members, but the way it's been set up doesn't make sense and is just asking for trouble. The logical way to implement a single currency would have been to have an EU Central Bank (with appropriate powers) and to have harmonised the various economies as far as possible. A common currency without those steps is an accident waiting to happen. In fact I am amazed it's lasted as long and as well as it has.

But, of course, very few counties (if any) and going to join a common currency if it means handing over significant parts of the economic policies and control to a central EU agency, so this was effectively dodged and the plan went ahead without its essential internal mechanisms in place. Very much like the rest of the EU, it was a triumph of idealism (or wishful thinking) over real economics and politics.

[Some1]

Johnny Boy, as I you may have selective understanding of what the document contains, let me quote you just two small paragraphs:
"Furthermore, it is regrettable that neither Art. R above-mentioned nor Art. 28, dealing with the courts’ interpretative obligations, mentions Hungary’s international law obligations, nor does the chapter on “Freedom and Responsibility” include any reference to international human rights instruments. In the dualistic model of the relations between international and
domestic law, an important means to secure respect for international human rights treaties consists of the obligation, for courts and public authorities, to interpret constitutional provisions on fundamental rights and freedoms in light of human rights treaties. It is thus particularly important to derive such an obligation from Art. Q(2), according to which “Hungary shall ensure harmony between international law and Hungarian law in order to fulfil its obligations under international law”. The obligation to interpret constitutional provisions in the light of
international human rights treaties binding on Hungary concerns, inter alia, Art. I (3), which states that “[a] fundamental right may be restricted to allow the exercise of another fundamental right or to defend any constitutional value to the extent absolutely necessary, in proportion to the desired goal and in respect of the essential content of such fundamental right”. This would for instance mean that eventual limitations should also be in harmony with the limitation clauses in the ECHR (see also comments under Article 28 below)."
OR
"the Preamble also states that “we value the various religious traditions of our country.” Such a statement is of key importance. It should be adequately taken into account in the future application and interpretation of the Constitution and should be extended to the protection of all religions, religious traditions and other convictions of conscience."
THis would start you out. I hope these will help you focus.

[Johnny Boy]

Paul: show me those EXACT EU laws that are violated.
Not buzzwords that are measured with "not enough" and such subjective arguments.

The opposition chose to not take part in the discussion on their own volition.
You seem to ignore that fact, for some reason. So the "not enough discussion" is entirely their fault, not the government's.

[Some1]

The opposition choose not be part of the process where democratic measures (example referendum) were declined. They also did not want to give their name to a document that was draft up on a laptop on an ad hoc manner. Maybe those measures are good enough for the Fidesz but hardly good enough for anyone serious about the future of a country.

[Kim Scheppele]

The Venice Commission report is an extremely critical document based on a very careful study of the new Hungarian Constitution. Here are what I take to be its main points:

1. The Hungarian constitution threatens democracy at multiple turns:

o By requiring so many super-majority laws that a new parliamentary majority has almost no room to maneuver, the results of future elections cannot result in changes in policy.

o The budget council, which is itself unelected and has a membership which lasts through multiple election cycles, can veto the budget without any constitutional guidelines to limit the grounds for its action. Also, the constitutional court cannot review for constitutionality either the decisions of the budget council or the budgets that are eventually passed.

o (The Venice Commission missed a crucial point – which is that the president can dissolve the parliament if it fails to pass a budget by the end of March of each year, and there is no provision for a snap election at that point – which implies that the prime minister can carry on without a parliament.)

o The ability of the parliament to create autonomous regulatory bodies will eventually limit the range and strength of the parliament. Moreover, there are no constitutional guidelines for these autonomous regulatory bodies to ensure their constitutional operation.

o A functioning democracy requires an independent judiciary, and the ordinary judiciary is not defined or protected sufficiently in this constitution to meet the requirements of a constitutional democracy.

o The independence of local self-government is not assured.

2. The constitution leaves many gaps and holes that create a cause for concern about the government's commitment to constitutionalism:

o The constitutional court can no longer review laws that are central to the operation of the government.

o The independence of the judges, both at the constitutional court and in the ordinary judiciary, is not guaranteed nor is the independence of the body that manages the courts.

o In many cases, there are no constitutional guidelines for drafting the cardinal laws that elaborate what should be constitutionally protected principles. As a result, it is impossible to tell from this constitution whether basic guarantees of rights and democratic institutions will be preserved in the cardinal laws.

o Many things that should be constitutionally regulated are not, including protection of minority rights, freedom of the press as an individual right, the abolition of the death penalty, the requirement that courts interpret human rights provisions in light of international human rights law, the principle of local self-government, protection for welfare benefits as property, protection of the life and health of pregnant women, and nondiscrimination on the basis of sexual orientation. These are all omissions.

3. The process through which the constitution was adopted lacked transparency, communication with opposition parties, opportunity for public debate and time for careful consideration of the text.

There is more, but these are the major things. This is an extraordinarily large number of major objections,including a number of findings that Hungary is in direct violation of European human rights law. The document also has unusually strong language for a diplomatic document.

Because the Venice Commission reviewed the Hungarian Constitution at the request of a committee of the European Parliament, the next step will be for the European Parliament to receive and review this report. As I understand it, Lajos Bokros, MEP from Hungary, has tentatively scheduled a debate on this report in the European Parliament in the fall.

[Paul]

Is that the best you can come back with, SB?

Even you must feel embarrassed by having to rely on petty semantics and painfully contrived misunderstanding to 'argue' your case.