A European Parliament debate on new Fundamental Hungarian Law (constitution) of 18 April 2011 took place on June 8 2011. The new Fundemental Law was adopted by an overwhelming majority of 262 votes to 44 votes (plus one abstention).
It shall come into force on January 1, 2012. For several weeks, the Hungarian constitution was violently criticised and it seems necessary to analyse the debate to distinguish between objective criticism, political attacks against this law, protecting values in the European tradition.
The debate around Hungarian Fundamental Basic Law, the latter recalling the importance of human dignity,protection of life and family, based on marriage between a man and a woman shows that—apart from a few legally debatalbe points- part of the political class in Brussels does not want to hear about these values and fight hard against them.
So here is a brief analysis of the criticisms most frequently opposing the constitution.
The powers of the European Union in terms of national law are strictly regulated by various treaties and the jurisprudence of the Court of Justice. Some preliminary remarks are worth highlighting.
It is legitimate for a parliament to discuss all topics. However, it may vote only in the limits of its power. If it does not follow this rule, the procedure is invalid or in the worst case could be accused of felony.
National law is independent on European law for all matters within the exclusive competence of states. However, it is true that since the ruling of the ECJ of 13 July 1972, (Commission vs. Italy), it is clear that national constitutions are not an obstacle to the primacy of Union law.
This is naturally the case, but it does not prejudge the validity of a constitutional standard in the national legal order.
Indeed, “The Union shall respect the quality of Member States before the Treaties as well as their national identities, inherent in their fundamental political and constitutional, including in respect of local and regional autonomy” -as stipulated in Paragraph 2 of Article 4 of T.UE.
The only procedure used by the European Union against a national constitution would be the ultimate weapon of Article 7 of T. EU, which can suspend certain rights of a Member State in case of violation by the latter values of Union as laid down in Article 2 of that Treaty. This possibility appears very unlikely. There is no precedent.
The relationship between national constitutions and EU law are very complex. The recent decision of the German Constitutional Court of June 30, 2010 proves this. New jurisprudential battles with the Court of Justice is expected that more discussions after the meeting without representation of European citizens.
The majority party Fidesz won 53% of the vote in 2010. This position allowed them to initiate a revision of the Constitution of 1990 according to the rules. This is by no means not a coup d’etat!
Opposition parties have been invited to participate in the constituent power which they refused. This situation is therefore outside the control of the majority party.
The French Constitutional Council referred to the Preamble of the Constitution of 1958 to give France a list of fundamental rights away from its constitutional text itself. This should not be necessary for the Hungarian Constitution.
The Preamble shows its true value the fundamental historic elements that have built the Hungarian nation. That is its role to acknowledge the values and facts that mark the national identity of that State.
There are some 2 million Hungarian non-nationals in Romania, 500,000 in Slovakia, 300,000 in Serbia and Hungarian minorities in Austria and Croatia.
A cardinal Act under section G of the new Hungarian Basic Law allows these people to acquire Hungarian citizenship.
Three conditions are: the foreign persons of Hungarian origin must apply voluntarily, they must speak Hungarian and they must have Hungarian ancestry.
What does public international law say about this? Only the state has jurisdiction to regulate the devolution of nationality. An individual may well have two nationalities unless the state refuses. He must choose between the two.
But the International Court of Justice in The Hague on 6 April 1955, concerning the Nottebohm case, recalls that nationality must be effective in order to be effective against other states.
Regarding the electoral law which poses a problem for commentators, we must affirm that the constitutional provisions concerning the Hungarian nationality does not affect the sovereignty of other states. Regarding the factual evidence of the Nottebohm case, the nationality of these people should be considered effective.
The problem of this Act is purely political. Hungary’s relations with its neighbours could deteriorate as a result. Without doubt, this can be criticised politically, yet it can not be considered a crime against international law.
All national constitutions provide for the presence of particularly important rules that can be revised only by a qualified majority.
This is the case for example of the French Constitution with the organic laws. The Basic Law provides that 26 Hungarian laws will be passed by a majority of 2/3 instead of 27 in the old constitution.
The change of government is perfectly possible, but these materials deemed particularly important for Hungary will require cooperation of political parties in power to be revised.
Article XV of the Fundamental Law provides for the equality of all persons before the law. All discrimination is prohibited by the addition of complement “in any circumstance.”
If sexual orientation is not mentioned, it is implied and will be protected before the Hungarian courts as well as more “traditional” prohibitions in this article. Not discriminating against homosexual persons has been identified in the rest of the Fundamental Law.
Finally, the Charter of Fundamental Rights of 2001 applies in Hungary. It expressly prohibits discrimination of persons because of their sexual orientation in Article 21.
The Preamble refers to the family and the nation as the main structures of community life. The core values of social cohesion that are the loyalty, faith and love. Section L of the preliminary provisions mentions the family as the foundation of national survival.
The Hungarians clearly want to develop a family policy and encourage the birth rate in their state. The current disastrous demographic situation in Europe is certainly sufficient to justify the merits of this article.
Additionally, this article does not mention civil solidarity pacts which may occur between persons of the same sex which does not preclude this possibility in Hungary.
It should be noted that no State, no declaration of rights affirms the right to abortion. Abortion is permitted under certain conditions in some states.
“Human dignity is inviolable. All human beings have been granted the right to life and human dignity; embryonic life and the life of the fetus should be subject to protection from the moment of conception”—as is stipulated in Article 2 of the catalogue of fundamental rights of the Hungarian Fundamental Law.
This article does not call into question the current Hungarian law on abortion as recalled by a statement of the Hungarian government. Instead, it announces a policy for the protection of the unborn child that will certainly by the proposal to pregnant women in need of alternatives to abortion.
Article XXIX of the Fundamental Hungarian Law expressly provides for Hungarian people not living on its territory. They have the right to use their own language, to promote their own culture and to be educated in their mother tongue.
They can also self-administer both locally and nationally. Ethnic minorities have nothing to ear from the letter of the constitution. It was not until the early jurisprudence of the Constitutional Court to know the degree of protection that really apply to minorities.
Article XX of the Fundamental Basic Law places the protection of the environment in the broader right of every person to live in a healthy environment.
Protecting the environment is clearly identified as a policy objective. The basic prohibition of GMOs, however, is surprising.
Article 24 of the Basic Law guarantees the independence of the Hungarian Constitutional Court judges, give them a clear mandate to protect human rights, carry out inspections of legality and conventionality.
The Constitutional Court has no jurisdiction in tax matters. Commentators have difficulty reading the text
Section 24 does not preclude any law of constitutional review. Only Article 28 could regulate the discretion of judges in interpreting Fundamental Law. It essentially provides that judicial interpretation must be consistent with the objectives of the laws and constitution.
This article focuses on a teleological approach to interpretation based on the idea that moral and economic subjects must conform to common sense and serve the common good.
Article 37 effectively limits the powers of the Constitutional Court for approval of the budget but with a particularly rigorous supervision. This section applies only if the national debt exceeds 50% of GDP.
For the record, treaties prohibit in principle to have a national debt greater than 60% of GDP… This article limits only matter on which the Court may exercise its control.
It remains permanently jurisdictional to try all the rules that may affect the lives and dignity of the human and fundamental rights of the individual. Any irregularity in procedure may result in cancellation of the budget in any circumstance.
Fundamental Law gives all the guarantees necessary for safeguarding the rule of law. We must of course wait for the adoption of the main laws in order to have a global impression of the Hungarian constitutional landscape.
Fundamental Law does take conservative positions on the nation, family and life that are not particularly popular among European states. Yet it is precisely this lack of popularity which is surprising and often results in indignant reactions of many misinformed commentators, as well as many MEPs.
Should respecting these values be unique in the sense of relativism? Would a State not it have the right to assert values that are not unanimously shared in his geographical area?
Opponents of the constitution do not seem to tolerate the views of the majority of people who agree on the fact that the family is based on the union of one man and one woman, that protecting the dignity of humans should be promoted from the beginning to the end of life, and that the recognition of Christian values can be good for the foundation and for the welfare of society.