Constitutional Revenge

"The world has relaxed because the Hungarian government appeared to modify some of the most offending reforms after pressure from the European Union, particularly with regard to the appointment of judges and media regulation. It also seemed that the Hungarian Constitutional Court was doing its job to keep the government in line. Contrary to all predictions (including mine), the Constitutional Court has spent the last several months striking down many of the most worrisome laws passed by the Fidesz government.

The Court declared unconstitutional the law that arbitrarily lowered the retirement age of judges, . The Court nullified the law that made it a crime to be homeless in Hungary. The Court quashed the requirement that students on state-provided financial aid remain in the country after graduation. . The Court voided on technical grounds an earlier constitutional amendment that handed power to the head of the National Judicial Office and to the chief public prosecutor to assign any case to any court, extended the old statutes of limitations for communist-era crimes, and established a new voter registration scheme. And then the Court declared the voter registration scheme substantively unconstitutional as well. Just this week, the Court declared unconstitutional the law that banned display of extremist symbols including the red star and the swastika, following prior decisions from the European Court of Human Rights. And the Court declared unconstitutional parts of the law that removed the official legal status from more than 300 churches.

Even though the government had cut the jurisdiction of the Constitutional Court, changed the system for electing judges, expanded the bench and packed it with party loyalists, Court President Péter Paczolay has been able to skillfully mobilize bare majorities to hand setbacks to the government. These strong decisions have honored basic rights and defended important constitutional principles, often agreeing with petitions sent to the Court by the surprisingly active Ombudsman Máté Szabó.

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. 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."