HCLU's analysis of the seventh amendment of the Fundamental Law

The seven-year-old Fundamental Law of Hungary has been amended for the seventh time. Any amendment of the Fundamental Law should theoretically be based on a broad political consensus because a constitution does not reflect the majority’s will, but instead provides a legal framework for a government gaining majority via any democratic election to implement their political commitments. An ideal constitution provides for the possibility to govern according to different ideologies and defines the clear limits of governance that shall not be transgressed.

The Fundamental Law of Hungary, however, is amended when the government’s policy requires it. In other words, in Hungary, it is not the constitution that regulates the government's work, but it is the government that adjust the Fundamental Law to their needs. This is what happened with the seventh amendment of the Fundamental Law.

When the proposal to amend the Fundamental Law was published, HCLU analysed its most relevant parts in detail.

Here are the main conclusions of the analysis:

During its parliamentary debate to the original proposal to amend the Fundamental Law, completely new proposals were added that the aforementioned analysis of HCLU could not yet discuss. Therefore, the approved amendment contains additional unacceptable provisions that are thoroughly inappropriate for a modern European constitution.

The prohibition of homelessness

The seventh amendment to Hungary’s Fundamental Law bans homelessness by referring to the protection of the public use of public space. The HCLU is of the opinion that the prohibition of habitual residence in public places is seriously violating human dignity and freedom of action. While the same (the seventh) amendment of the Fundamental Law makes the protection of Christian culture the task of all state bodies, it also conversely persecutes the most vulnerable among us, the ones without shelter. Although the fourth amendment the Fundamental Law contains a provision authorising the criminalization of homelessness, thus far it has been possible to classify this behaviour as illegal solely by an act or municipal decree in respect of certain parts of a public place. After the seventh amendment, however, homelessness will be banned throughout the whole country. Meanwhile, the Fundamental Law does oblige the state or the local government to provide decent housing and/or to provide accommodation.

According to the reasoning of the amendment, the state ensures many ways to safeguard human dignity as well as the conditions for such safeguarding. However, the amendment criminalizes the habitual use of public places and therefore, the government argues, any counter-measures are justified.

Those drafting the amendment sensed correctly that human dignity is at stake. At same time, however, it is obvious that there is no serious constitutional concept behind the amendment. The protection of a general public purpose (the public use of public places) is not a sufficient justification for the limitation of a fundamental right. A fundamental right may only be restricted to the extent necessary and proportionate in order to enforce other fundamental rights. State purposes or public interest can only serve as ground for limiting fundamental rights in exceptional and very justified cases. In addition, the protection of human dignity enjoys accentuated protection among fundamental rights, as it is the basis (“mother right”) of several other fundamental rights and its innermost core cannot be restricted. The only discernible concept of constitutional law behind this amendment is to circumvent this essential theorem of constitutional law for this very reason: the prohibition of habitually using public places is included into the Fundamental Law so this abridgment may not be annulled on the basis of not complying with the constitutional requirements for abridgments. With this, of course, the Fundamental Law is becoming more and more distanced from a legal document that can be regarded as a constitution content-wise.

The decision No. 38/2012. (XI. 4.) AB of the Constitutional Court of Hungary was clearly of the opinion that the criminalization of homelessness violates the Fundamental Law. It is worth highlighting a longer citation from the decision:

"[50] (...) For homeless people living in a public place means a very serious crisis situation that has arisen under various constraints, and is rarely a conscious, deliberate and free choice. Homeless people have lost their homes and have no way of solving their housing, therefore, in the absence of a real alternative, they are forced to live in a public place – since it is the only space welcoming anybody to use. (…)"

"[51] (...) it is not possible to determine the reason, that interest wished to be protected, which was the justification for the legislator to declare a living situation entitled to social care under Act III of 1993 on social administration and social care (henceforth: Sztv.) as a criminal, for the society dangerous behaviour based on the state responsibility set out in Article XIX of the Fundamental Law.

"[53] (...) Declaring living in public places of the settlement’s urban zones a punishable act means that the act creates further exigency for the homeless, who are in crisis anyway, by threatening with punishment, with the prospect of imposing state constraints limiting personal freedom . The homeless can choose to either look for housing in the outskirts of the settlement or resort to homeless care provided by local municipalities. According to the Constitutional Court of Hungary’s opinion, neither the removing of homeless from public places or their encouragement to using social services may be regarded as legitimate, constitutional reason, which would lay foundation to declaring the homeless living in public places as committing a minor offense. Homelessness is a social problem that the state shall handle by the means of social administration and social care, but not punishment. It is per se irreconcilable with the protection of human dignity regulated in Article II of the Fundamental Law to declare as a danger to society and punish someone solely for the reason of having lost his/her housing due to any reason and henceforth living in public places under the pressure of necessity, while not violating the rights of others, not causing harm, and not committing any other illegal act. It is also a violation of personal freedom of action based on human dignity if the government is pressuring by the means of punishment to use social services. (…)"

It is noteworthy that following this decision of the Constitutional Court of Hungary the government introduced to the Fundamental Law, as part of the fourth amendment of the Fundamental Law, the possibility of criminalizing homelessness, thus clearly opposing the Constitutional Court of Hungary’s decision to protect fundamental rights. Therefore, the situation was tenuous even before the seventh amendment. However, the absolute prohibition of homelessness is completely inadmissible in a state having rule of law.

While the government establishes a ban on homelessness under the guise of protecting Christian culture, they do not create social security or dignified housing necessary to address the issue of homelessness. These continue to remain simply aspirations that the state alleges they will pursue, but dignified housing and social security are not created by aspiration, as state goals and aspirations cannot be enforced or implemented at an individual level.

The state alleges that they provide a number of tools for the homeless to protect human dignity does not correspond to reality: approximately one-third of the homeless can obtain a place in homeless shelters in Hungary. Moreover, the horrible state of homeless shelters often expressly violates the right to private space that is part of human dignity.

A constitution should and must contain prohibitions for the state, the violation of these progibitions would immediately be a serious breach of the human rights of individuals. Accordingly, the prohibition of mass expulsion, the prohibition of torture, the prohibition of human trafficking, the prohibition of scientific experimentation on a human body without consent, the prohibition of eugenics and the prohibition of human cloning, amongst others, are all prohibited practices that belong a modern European constitution. The within seventh amendment seeks to place the prohibition of the living situation of our fellow human beings with the hardest living conditions to the same level as the aforementioned prohibitions, all in the name of the Christian culture. Homelessness, however, is a living situation, not a behaviour. A prohibition regarding a living situation has been introduced to the Fundamental Law which seriously violates the fundamental rights of those living in this situation, regarding which the state should counter-act with social measures and the provision of dignified housing, but which living situation does not endanger the fundamental rights of others.

On the administration and supervision of the institution of the Administrative Court

According to the provision of Article 25 Section 5 of the Fundamental Law of Hungary being in force so far:

The central responsibilities of the administration of the courts shall be performed by the President of the National Office for the Judiciary. The National Council of Justice shall supervise the central administration of the courts. The National Council of Justice and other bodies of judicial self-government shall participate in the administration of the courts.

Following the seventh amendment this section is modified to:

The central responsibilities of the administration of the ordinary courts shall be performed by the President of the National Office for the Judiciary. The National Council of Justice shall supervise the central administration of the ordinary courts. The National Council of Justice and other bodies of judicial self-government shall participate in the administration of the courts. [Emphasis added]

Following the seventh amendment of the Fundamental Law, the National Office for the Judiciary (OBH) will not have the power to administer the Administrative Courts, and the National Council of Justice (OBT) will not have the power to supervise these courts.

The amendment raises serious questions about the independency of the Administrative Courts. Who will administer the Administrative Courts? Which body will have the jurisdiction to supervise their administration? The Fundamental Law should provide answers to these questions, but the suggested changes leave these questions ominously unanswered. It is currently clear that the Administrative Courts will not be administered by the OBH. It is possible that the Administrative Supreme Court or its president will have administrative responsibilities; however, based on the summary of the amendment proposal, it is also possible that the aim is to subordinate the Administrative Court to ministry administration. It is also not clear whether the administration of the Administrative Courts will be supervised by a body made up of judges, similar to the OBT, or a different unspecified solution in the new justice system. In any case, the insufficient guarantees of the independency of administrative justice, if -- based on the text of the proposal -- the administration and the supervision of the Administrative Courts is not laid down in the Fundamental Law.

Although the legislator has a wide space to deliberate regarding the establishment of the judicial system, this space is not without limits. The administration of the Administrative Court must secure judicial independence and must be supervised by the judiciary in order to ensure the separation of powers. This is a consequence not only of constitutional principles, but also of various obligations under European Union law. Since it is expected that the Administrative Courts will have the authority to decide in various administrative disputes (e.g., decisions of the competition authorities and judicial review of the Equal Treatment Authority’s decisions, etc.), Hungary must provide judicial channels with the appropriate guarantees of independency according to the European Union laws.

On the duty of protecting Christian culture

The Fundamental Law has already been subject of wide criticism, given that in addition to the major rules, the law includes several abstract and emotional provisions without direct legal meaning. It remains to be determined whether the duty of protecting Christian culture will be just a similar empty provision or whether it has legal relevance.

The answer to this question is of enormous relevance, since a constitution is imprecise by nature, as it is a codex of broad norms setting a framework and having theoretical relevance, which norms are then implemented by the several rules and theorems of the legal system that make a constitution applicable for daily use. The Hungarian Fundamental Law, however, includes rules about the interpretation of legal provisions, e.g. stating that “the provisions of the Fundamental Law shall be interpreted in accordance with their intended purpose, with the Fundamental Law’s National Commitment, and with the achievements of our historical Constitution.” Many critics have regarded this rule as a motto with little legal implication, but others have found it rather threatening, as it is unclear what the “historical constitution” exactly means. However some legal experts were of the opinion that this provision (and the Article 28 besides it, which clarifies that in course of the interpretation of the law, not only its wording, but the supposed intentions behind the provision shall be taken into account) was an expressly positive development in the original wording of the Fundamental Law. A large part of legal work is finding the right interpretation for legal measures. Although there never will be a legal system which has a rule for all possible situations arising in life, it is important to have a coherent set of rules. The lower the quality of law-making (done abruptly, without including concerned persons and experts, motivated by the intrigues of party politics), the less coherent are the results. The interpreters of the law – which are mainly judiciary and administrative bodies – are meant to fill the gaps of the legal system. This interpretation can be a positive, as well, as it might be used as a tool to transform erroneous rules into functioning, morally acceptable laws in the interest of society.

The government has now added a clause to the above-mentioned article of the Fundamental Law that creates a duty to protect Hungary’s constitutional identity and Christian culture. The latter is explained more fully below.

Supposing the exact meaning of “historical constitution” is unclear, there is even greater haziness in attempting to define the “Christian culture” of Hungary. While the reasoning for the amendment offers little explanation on the matter, it gives an insight into the intent of the law-makers:

“In Europe there are ongoing processes that may change the traditional cultural image of the continent. There is no Europe and no Hungary without the Christian culture. Protecting the universal values of Christian culture is a priority, and that is why the state’s duty to protection shall be included in the Fundamental Law.”

Thus, the within amendment is not justified by a certain concept of constitutional law - it is obviously a part of the Hungarian government’s anti-refugee campaign that has been going on for years. Within this campaign the government is scaremongering without any evidence that the refugees entering Europe wish to deliberately destroy the European culture.

Although this anti-refugee campaign has already caused immense social damage, it is worthwhile to examine the possible effects of the governmental supermajority making one of their slogans a part of the Fundamental Law.

Would the immigration office deny asylum from Muslim refugees fleeing from war based on its duty to protect Christian culture? Or could child protection services keep gay couples from adopting children, given that homosexuality is not compatible with Hungary’s Christian culture?

According to the Hungarian Civil Liberties Union’s position, the above mentioned questions are not real dangers. The judiciary and the other authorities have to follow specific laws during their daily practices. These laws are far more detailed than the constitution’s new provision and provide little room of opportunity for such considerations.

Therefore, the incorporation of the duty to protect Christian culture into the Fundamental Law is nothing more than introducing the governmental party’s immediate political agenda to the highest legal statue.

The provision on the duty to protect Christian culture is a piece of symbolic law-making, without normative content. It will not have any legal implications and will carry no weight in the interpretation of the law. Regardless of its lack of a direct effect, the provision harms the constitution’s normativity and damages the image of a secular Hungary.

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