The Fundamental Law of Hungary (), the country's constitution, was adopted by Parliament (the National Assembly) on 18 April 2011, promulgated by the president a week later and entered into force on 1 January 2012. It is Hungary's first constitution adopted within a democratic framework and following free elections.
The document succeeded the 1949 Hungarian Constitution, originally adopted at the creation of the Hungarian People's Republic on 20 August 1949 and heavily amended on 23 October 1989. The 1949 Constitution was Hungary's first permanent written constitution; until it was replaced, Hungary was the only former Eastern Bloc nation without an entirely new constitution after the end of Communism.
Both domestically and abroad, the Fundamental Law has been the subject of controversy. Among the claims critics make are that it was adopted without sufficient input from the opposition and society at large, that it reflects the ideology of the ruling Fidesz party, and enshrines it in office, that it is rooted in a conservative Christian worldview despite Hungary not being a particularly devout country, and that it curtails and politicizes previously independent institutions. The government that enacted the charter dismissed such assertions, saying it was enshrined lawfully and reflects the popular will.
Contents
The Fundamental Law is divided into sections and articles as outlined below.
Section and article(s)Subject area(s)Notes National Avowal (preamble) Foundation21 articles (A-U) specifying the country's name, capital, official language, symbols, etc. Freedom and Responsibility31 articles (I-XXXI) covering citizens' rights and dutiesThe State54 articles covering the state's attributes 1-7The National Assembly 8National Referendums 9-14The President of the Republic 15-22The Government 23Autonomous Regulatory Organs 24The Constitutional Court 25-28Courts 29The Prosecution Service 30The Commissioner for Fundamental Rights 31-35Local Governments 36-44Public Finances 45The Hungarian Defence Forces 46The Police and National Security Services 47Decisions on Participation in Military Operations 48-54Special Legal OrdersProvisions concerning state of national crisis, state of emergency,state of preventive defence, unexpected attack and state of danger Closing and Miscellaneous ProvisionsConsolidated version of the Fundamental Law of Hungary incorporating the five amendments Text of the Fundamental Law of Hungary as adopted by the National Assembly on 18 April 2011 Consolidated version of the Fundamental Law of Hungary incorporating the five amendments
Overview
Described as socially, fiscally, and traditionally conservative,"Hungarian lawmakers approve socially and fiscally conservative new constitution", The Washington Post, 18 April 2011; accessed April 25, 2011 Cohen, p. 449 the constitution initiates a number of changes. In an effort to push the public debt below 50% of gross domestic product (from above 80% at the time of adoption), the powers of the Constitutional Court on budget and tax matters are restricted until debt falls below 50%. The President is allowed to dissolve Parliament if a budget is not approved, and only companies with transparent activities and ownership structures are allowed to bid for government contracts. The powers of the head of the Hungarian National Bank are also limited, and the modification of tax and pension laws requires a two-thirds majority.Judy Dempsey, "Hungarian Parliament Approves New Constitution", The New York Times, 18 April 2011; accessed April 25, 2011 The life of a fetus is protected from the moment of conception, and although the move is seen as opening the possibility for a future ban or restrictions on abortion, existing laws were unaffected. Kata Janecskó, "Hiába védett a magzat, nem szigorodik az abortusz" ("Despite Fetal Protection, Abortion Law Is Not Tightened"), index.hu, 11 March 2011; accessed June 23, 2011 Same-sex couples may legally register their partnerships, but marriage is defined as being between one man and one woman. A ban on discrimination does not mention age or sexual orientation, and the constitution allows life imprisonment for violent crimes without the possibility of parole.
The constitution lowers judges' mandatory retirement age from 70 to the general retirement age, which was 62 at the time of adoption and was set to rise to 65 by 2022."Bírói egyesület: átmeneti rendelkezések kellenek" ("Judges' Association: Transitional Provisions Needed"), mti.hu, 19 April 2011; accessed April 26, 2011"Judges protest planned mandatory retirement age cut in planned new constitution" , politics.hu, 15 April 2011; accessed May 13, 2011"Hungary" at the OECD Library; accessed April 26, 2011 The provision also covers prosecutors but exempts the Prosecutor General and the head of Hungary's highest court, the Curia. "Botrány lesz a bírák nyugdíjazásából" ("Retirement of Judges Will Be a Scandal") , nepszava.hu, 22 June 2011; accessed June 23, 2011 The country's name is changed from "Hungarian Republic" to "Hungary" but the country remains a republic. The preamble of the constitution asserts the constitution's role as the basis of Hungary's legal order, and contains references to the Holy Crown, God, Christianity, the fatherland and traditional family values.Cohen, p. 443 Laws affecting areas such as family policy, the pension system and taxation can be altered only through special legislation (cardinal acts) passed by a two-thirds majority of Parliament and are not subject to constitutional review.
Gábor Halmai and Zoltán Szente, researchers of comparative constitutional law, claimed that the constitution was adopted without sufficient input from the opposition and society at large, that it curtails and politicizes previously independent institutions, and that it is designed to enshrine the rule of the Fidesz government.Halmai, p. 304Szente, p. 129 The lowering of judges' mandatory retirement age allowed the government to appoint hundreds of new judges across the judicial system.Scheppele, p. 553 Zsolt Körtvélyesi, another expert on comparative constitutional law, criticized its preamble for including ethnic elements in the identity of Hungarians, thereby leaving Hungarian citizens belonging to ethnic minorities in an ambiguous position.Körtvélyesi, pp. 113-117
History Background
For centuries, the Hungarian constitution was unwritten, based upon customary law.Körösényi, p.145 There was no civil code either; lawyers worked with the Corpus Iuris Hungarici.Mezhikovskii, p.122 Among the laws that acquired constitutional force were a series of liberal statutes enacted during the 1848 Revolution; Statute XII of 1867 (enacting the Ausgleich); and further guarantees for constitutionalism, such as Statute IV of 1869, separating the executive and the judiciary; or the post-1870 statutes regulating local self-government and state administration.Harmathy, p.4
Following the advent of the Hungarian Soviet Republic, the Revolutionary Governing Council adopted a Provisional Constitution on 2 April 1919, providing for a Soviet-style political system. On 23 June, the National Assembly of Allied Councils adopted Hungary's first charter-like constitution, the Constitution of the Socialist Allied Council Republic of Hungary. However, that regime was crushed two months later and Hungary returned to its historical, unwritten pre-1918 constitution.
Despite the lack of a written constitution, several constitutional laws were passed during the interwar period of the Kingdom of Hungary. Statute I of 1920 confirmed the monarchical form of government (albeit with a vacant throne, the king's powers being exercised by regent Miklós Horthy and his ministers) and vested legislative power in the diet. Statute XLVII dethroned the Habsburg-Lorraine dynasty. A second chamber was established by Statute XXII of 1926. Successive constitutional acts increased the power of the regent, who was empowered to nominate forty senators at first, and during World War II, eighty-seven.Ludwikowski, p.30
1949 Constitution
In August 1949, with the Hungarian Working People's Party in complete control of the country, a constitution based on the 1936 Soviet Constitution was enacted,Ludwikowski, p.31 the party's leading role enshrined in the document.Harmathy, p.7 Its basic features remained in place until 1989, although a number of important amendments were made, including one in 1972 that proclaimed Hungary a socialist state.Rakowska-Harmstone, p.100 While the constitution guaranteed certain fundamental rights, their scope was limited by provisions stating they had to be exercised in harmony with the interests of the socialist society.Somody, p.211
In 1989, as the Communist regime ended, the legislature overwhelmingly approved nearly a hundred changes to the constitution that purged the document's Communist character. Hungary was thus defined as a civil democratic and constitutional republic that respected "the values of both bourgeois democracy and democratic socialism".Harmathy, p.8-9 After the opposition won free elections in the 1990 Hungarian parliamentary election, references to democratic socialism and the planned economy were dropped.Harmathy, p. 9 Further modifications followed over the ensuing two decades,Dupré, p. 173-4 as successive plans for a new constitution did not reach fulfillment. "Magyarázkodásra kényszerül Gyurcsány" ("Gyurcsány Is Forced to Explain") , Magyar Nemzet, 4 April 2011; accessed April 25, 2011.
2011 Fundamental Law
Drafting process In 2010, a new government led by Fidesz initiated a drafting process for a new constitution."Hungary's new constitution drafted by next March, says Fidesz official" , politics.hu, 2 August 2010; accessed August 18, 2010 "Bihari szerint mindig lehet jobb" ("According to Bihari, One May Always Do Better"), FN.hu, 7 August 2010; accessed August 18, 2010 A parliamentary committee for drafting the constitution was set up, with all five parliamentary parties represented; "Megalakult az alkotmány-előkészítő bizottság" ("Constitutional Draft Committee Is Formed") , hirtv.hu, 28 June 2010; accessed June 23, 2011 the draft was composed on the iPad of József Szájer, then a member of the European Parliament. The following February, a body responsible for national consultations on a draft was set up by Szájer; its members included János Csák, Hungarian ambassador to the United Kingdom; Zsigmond Járai, chairman of the supervisory board of the National Bank; József Pálinkás, president of the Hungarian Academy of Sciences and former Minister of Education; and Katalin Szili, former Hungarian Socialist Party Speaker of the National Assembly."Body set up for national consultation on new constitution" , politics.hu, 7 February 2011; accessed April 25, 2011 The consultation involved questionnaires being mailed out to all citizens for their opinions; some 917,000 or 11% were returned. "Szájer: Óriási siker a nemzeti konzultáció" ("Szájer: National Consultation a Huge Success") , Magyar Nemzet, 4 April 2011; accessed June 23, 2011 Provisions were then included or excluded based on consensus among respondents; for instance, a proposal to adopt voting rights for minors was shelved after citizens expressed disapproval. "Orbán: kivételesen erős lesz az új alkotmány" ("Orbán: New Constitution Will Be Exceptionally Strong") , MR1-Kossuth Rádió, 28 March 2011; accessed June 23, 2011