Council of Europe calls upon Hungary to delay vote on constitutional changes

"I am concerned about the compatibility of the constitutional amendments with the principle of the rule of law, as set out in the Statute of the Council of Europe," said Thorbjorn Jagland in a statement today.

“The Hungarian government is reintroducing the Transitional Provisions which were annulled by the Constitutional Court. This gives the impression that the government is willing to use the two-thirds parliamentary majority to overrule the Constitutional Court, which might endanger the fundamental principle of checks and balances in a democracy," he added.

“This is an important and complex issue that has to be closely examined by experts. It would therefore be necessary to have an Opinion from the Venice Commission," Jagland said.

He said he was also “concerned" that these comprehensive amendments are supposed to be adopted already next Monday.

“This leaves no room for consideration by experts or due process in Hungary."

He therefore called upon the Hungarian government and the President of the parliament to “postpone the adoption of the constitutional amendments in order to provide time for their consideration by the Venice Commission prior to their adoption."

“I am convinced that the Venice Commission will make an effort to look at this text as quickly as possible.", he concluded.

“A toxic waste dump of bad constitutional ideas"

After being rapped by the Council of Europe constantly, it seemed that Hungary was finally letting the Constitutional Court do its job. Among other things the Court declared unconstitutional the law that arbitrarily lowered the retirement age of judges; nullified the law that made it a crime to be homeless in Hungary; quashed the requirement that students on state-provided financial aid remain in the country after graduation; declared the voter registration scheme substantively unconstitutional, and most recently declared unconstitutional parts of the law that removed the official legal status from more than 300 churches.

“But the government is now seeking revenge for the various defeats it has suffered by introducing into the Parliament a 15-page constitutional amendment that reverses its losses," said Kim Lane Scheppele, an expert on Hungarian constitutional law at Princeton University.

“The mega-amendment is a toxic waste dump of bad constitutional ideas, many of which were introduced before and nullified by the Constitutional Court or changed at the insistence of European bodies. The new constitutional amendment (again) kills off the independence of the judiciary, brings universities under (even more) governmental control, opens the door to political prosecutions, criminalizes homelessness, makes the recognition of religious groups dependent on their cooperation with the government and weakens human rights guarantees across the board. Moreover, the constitution will now buffer the government from further financial sanctions by permitting it to take all fines for noncompliance with the constitution or with European law and pass them on to the Hungarian population as special taxes, not payable by the normal state budget," she said in a guest post in Nobel Laureate (economics) Paul Krugman’s blog in The New York Times earlier this month.

She also underlined yet another “nasty twist" in the mega-amendment, namely that it annuls all of the decisions made by the Court before 1 January 2012 so that they have no legal effect.

The Financial Times cited Tamás Boros, director of Policy Solutions, a Budapest think-tank, warning that if the amendments were passed “there will not be any institution any more in Hungary that can hold the government to account".

Domestic and international critics agree that the new constitutional arrangements facilitated by Prime Minister’s Viktor Orbán’s two-thirds legislative majority weakened checks and balances on the government and threatened media freedom and independence of the judiciary.

The FT cited a government spokeswoman as saying that the amendments were not the government’s doing but a private member’s bill by a Fidesz MP.

“Formally, this has nothing to do with the government. In any democracy, parliament decides on legislation, and the government can’t change that," she said. She added that the amendments would not curtail the constitutional court’s powers but improve its efficiency and transparency.

Hungary’s opposition counters that the government has put through important parts of its programme, including elements of last year’s constitutional package, as private member’s bills - often hours before parliamentary vote.

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