The Fundamental Law
The Fidesz–Christian Democratic People’s Party (KDNP) alliance used its two-thirds majority in Hungary’s National Assembly to adopt a new constitution, called the Fundamental Law (Alaptörvény), in April 2011. The Fundamental Law came into effect on January 1, 2012.
The Fundamental Law replaced the 1949 Constitution of the Hungarian People’s Republic. This Constitution, originally based on the 1936 “Stalin” Constitution of the Soviet Union, underwent extensive amendment beginning in October 23, 1989 in order establish the foundations for Hungary’s transition from communism to free-market democracy.
With the adoption of the Fundamental Law, Hungary became the final post-communist country in Europe to scrap its communist-era constitution.
Drafting and Adoption
Adoption of a new constitution was not part of the Fidesz platform for 2010 national elections, though the party had previously cited the need replace the communist-era constitution (source in Hungarian). Introduction of a new constitution was, however, part of the Orbán government’s System of National Cooperation announced shortly after Fidesz’s landslide victory in the the May 2010 general election (source in Hungarian).
Fidesz Member of the European Parliament József Szájer drafted the text of the Fundamental Law at the head of a three-man committee composed of himself and two National Assembly representatives from the governing Fidesz-KDNP coalition (source in Hungarian).
The Fidesz government declined to hold a national referendum regarding the Fundamental Law on the grounds that citizens would not be capable of making an informed decision regarding such a lengthy and complex document (source in Hungarian). The government did, however, send questionnaires, called the National Consultation, to the entire adult population of Hungary asking for opinion regarding the content of the new constitution (see National Consultation on the Fundamental Law).
Hungary’s National Assembly adopted the Fundamental Law by a vote of 262 to 44 with one abstention on April 18, 2011. Of the four parties represented in the National Assembly, only those from the Fidesz-KDNP alliance voted to approve the Fundamental Law. Representatives from the radical-nationalist opposition Jobbik party voted against adoption of the Fundamental Law, while those from the democratic-opposition Hungarian Socialist Party and Politics Can Be Different party did not participate in the vote to protest the their lack of participation in framing the law (source in Hungarian). The opposition thus played no role in either the drafting or the adoption of the Fundamental Law.
More than ten-thousand demonstrators protested against the Fundamental Law outside the Fidesz-KDNP gala ceremony celebrating the new constitution at the Hungarian Opera House in Budapest on January 2, 2012 (source in Hungarian).
Structure and Characteristics
The official English-language translations of the Fundamental Law and its Transitional Provisions are 19,800 words long, more than four times the length of the U.S. Constitution without its amendments (see Fundamental Law translation in English and in the original Hungarian). It is divided into five sections: National Avowal; Foundation; Freedom and Responsibility; The State; and Closing Provisions.
Name of the Country
The Fundamental Law changes the official name of the country to “Hungary” from the “Hungarian Republic,” though defines the country’s form of government to be that of a republic. The purpose of this change is ostensibly to associate the name of the country primarily with the Hungarian nation rather than with the Hungarian state in order to extend its reach beyond the political borders of Hungary to include the approximately 2.5 million Hungarians living in the neighboring countries.
The Previous Constitution
The Fundamental Law declares the previous 1949 Constitution to be invalid because it served as the foundation for tyrannical rule.
History and Self-Determination
The law says that Hungary lost its self-determination in March 1944, when military forces from fellow Axis-alliance member Nazi Germany occupied the country, until 1990, when the first democratic elections were held in Hungary following the fall of communism. Hungary was thus by definition not a sovereign country at the time of the deportation of several hundred-thousand Jews from the country to German concentration camps, primarily Auschwitz, in the spring and summer of 1944 and during the one-party dictatorships of the fascist Arrow Cross in 1944 and 1945 and the Hungarian Workers’ Party and Hungarian Socialist Workers’ Party from 1948 to 1989 (see also: Round About Midnight).
Rights and Freedoms
The Fundamental Law specifically guarantees the rights to life, human dignity, equality before the law, a speedy, fair and public trial and to freely choose one’s work or occupation as well as the freedoms of expression, thought, conscience, religion, assembly, association, the press, scientific research, artistic creation and movement. The law states that all citizens in Hungary possess these rights and freedoms regardless of their race, nationality, color, gender or religion.
Hungarian Minorities and Greater Hungary
The Fundamental Law states that “Hungary shall bear responsibility for the fate of Hungarians living beyond its borders” and “shall support their efforts to preserve their Hungarian identity.” The law states that the members of the Hungarian nation are committed to promoting “the man-made and natural assets of the Carpathian Basin,” which is the geological designation encompassing the area of Greater Hungary.
The Constitutional Court
The law stipulates that as long as state debt is over half of gross domestic product, the Constitutional Court may review government-budget legislation only on the grounds that it violates the rights to life and human dignity, the freedom of thought, conscience and religion and the right to protection of personal data.
The Government Budget
The Fundamental Law states that the government budget “shall be subject to prior consent” of the State Budget Council, which is composed of the president of the council, the governor of the National Bank of Hungary and the president of the State Audit Office. The law stipulates that the National Assembly shall elect by two-thirds majority the president of the State Audit Office to serve a 12-year mandate and the president of the republic shall appoint the president of the State Budget Council and the governor of the National Bank of Hungary to serve six-year mandates, while the mandate of a given National Assembly and government is four years. The Fundamental Law states that the operations of the State Budget Council shall be defined by Cardinal Law. The law stipulates that the president may dissolve the National Assembly and call new elections if the body fails to adopt the annual government budget by March 31 of the year in question.
The Fundamental Law prohibits the National Assembly from adopting a government budget the raises state debt to over half of gross domestic product or, in the event that debt is already over half of GDP, from adopting a government budget that does not reduce state debt in proportion to gross domestic product. The law stipulates that as long as state debt is over half of gross domestic product, the Constitutional Court may review government-budget legislation only on the grounds that it violates one or more of the rights to life and human dignity, the freedom of thought, conscience and religion and the right to protection of personal data (see Constitutional Court above).
The Fundamental Law declares that “the State and the Churches shall be separate.” It also recognizes the “role in Christianity in preserving nationhood.”
The law states that Hungary shall protect the institution of marriage as the union of a man and a woman.
The law defines 57 Cardinal Laws that require the votes of a two-thirds majority of National Assembly representatives to amend.
The Fundamental Law states that the forint is the official currency of Hungary.
Transitional Provisions of the Fundamental Law
Fidesz National Assembly representatives adopted a series of Transitional Provisions to the Fundamental Law on December 30, 2011, just two days before the law into effect. These transitional provisions contained 32 articles as well as a long preamble-type declaration regarding “The Transition from Communist Dictatorship to Democracy” (see translation of Transitional Provisions in English and in the original Hungarian). The length of the Transitional Provisions themselves is just slightly shorter than that of the original U.S. Constitution.
Transition from Communist Dictatorship to Democracy
This portion of the Transitional Provisions outlines the “crimes of the communist régime” that ruled Hungary for over four decades from after the Second World War until the System Change. This section of the Transitional Provisions states that “the Hungarian Socialist Workers’ Party, its legal predecessors and the other political organizations established to serve them in the spirit of communist ideology, were criminal organizations and their leaders shall have responsibility without statute of limitations for maintaining and directing an oppressive régime and for the breaches of law committed and for the betrayal of the nation.”
The provision stipulates that the “Hungarian Socialist Party, having gained legal recognition during the democratic transition, shares all responsibility which lies with the state-party as the legal successor of the Hungarian Socialist Workers’ Party. . .” The provision states that no statute of limitations shall apply to “serious crimes defined in an Act” committed during the period of communist dictatorship.
The provision establishes a National Memorial Commission (Nemzeti Emlékezet Bizottsága) to “reveal the workings of power of the communist dictatorship and the role of persons and organizations that held communist power.”
Article 11 of the Transitional Provisions authorizes the president of the National Judicial Office (Országos Bírósági Hivatal) and the chief prosecutor to transfer legal proceedings from one court to another.
Article 12 of the Transitional Provisions stipulates the mandatory retirement of judges who have reached the general retirement age of 62, compared to a previous retirement age of 70 for judges.
Government Payment of Court Imposed Obligations
Article 29 of the Transitional Provisions authorizes the government to impose special taxes to pay for the cost of financial obligations imposed on the government through a decision of the Constitutional Court of Hungary, the Court of Justice of the European Union or any other court as long as the state debt is over half of annual gross domestic product.
Article 21 of the Transitional Provisions states that the National Assembly shall identify by Cardinal Law the “recognized churches” in Hungary.
The Hungarian Financial Supervisory Authority
Article 30 of the Transitional Provisions stipulates that the National Assembly may merge Hungary’s financial-market regulator, the Hungarian Financial Supervisory Authority, with the National Bank of Hungary through a Cardinal Law.
National Assembly Commissioners
Articles 15 and 16 of the Transitional Provisions eliminated the office of the National Assembly Data Protection Commissioner and merged the Commissioner for Citizens’ Rights, the Commissioner for Ethic and Minority Rights and the Commissioner for Future Generations into the single office of Commissioner for Fundamental Rights (Alapvető Jogok Biztosa). The provisions thus reduced the number of National Assembly commissioners from four to one.
On December 28, 2012, the Constitutional Court annulled several stipulations of the Transitional Provisions on the grounds that they were not, in fact, transitional, but permanent (see Constitutional Court Annulment of Transitional Provisions).