Thursday, 4 July 2013

European Parliament passes resolution on Hungary's Constitution

The European Parliament passed a resolution yesterday calling on Hungary to reform its constitution to bring it into line with EU values and norms. The resolution was passed by an EPP-S&D-Greens-United Left coalition, so it notably gained support from the European People's Party, which the ruling Fidesz party in Hungary is a part of.

The resolution is very detailed, outlining the background of the recent changes and the Parliament's objections to them in the areas of judicial independence, the media, the extensive use of cardinal laws (laws that need a 2/3s majority in the Hungarian parliament to pass, and therefore would be highly entrenched), changes to the data protection authority, the change in the electoral law, and the treatment of minorities.

The Parliament also called for a rethink of the EU's Fundamental Right Agency's role, suggesting that is could be used to monitor Member States' compliance with Article 2 TEU (which sets out the values of the EU), and that there could be a "Copenhagen Commission" to monitor compliance with these values and the Copenhagen Criteria before and after accession to the EU. (I've posted some similar thoughts previously). The resolution leaves open the possibility that it might try to trigger an Article 7 sanction against Hungary, tasking the Parliament's Conference of Presidents (the EP President and the leaders of the political groups) with considering the move.

Mostly the resolution echos the Council of Europe's Venice Commission's opinion on Hungary's constitution (PDF). This Commission provides legal advice to the Council of Europe's Member States on how their constitutions and constitutional reforms can comply with European human rights standards. I recommend reading the opinion, which is more detailed but also clearer then the resolution in its analysis of the Hungarian constitution.

The Parliament's resolution isn't binding on Hungary, but it does show that the Parliament is moving (slowly) towards using Article 7 TEU to suspend Hungary's voting rights in the EU. That the Commission is introducing a score-card and the Parliament is calling for a better institutional mechanism for monitoring and enforcing fundamental rights within the EU shows that patience is running out. Taking an Article 7 action would break the taboo over using the "nuclear option" - while the situation in Hungary has been a concern for a while, it has highlighted the need for the proper mechanisms and the political will to properly defend the Union's values.

Here are a few extracts from the resolution:

"8. Considers that while the use of two-third majority laws is common in other Member States and has been a feature of the Hungarian constitutional and legal order since 1989, the extensive use of cardinal laws to set forth very specific and detailed rules undermines the principles of democracy and the rule of law, as it has enabled the current government, which enjoys the support of a qualified majority, to set in stone political choices with the consequence of making it more difficult for any new future government having only a simple majority in the parliament to respond to social changes, and thus of potentially diminishing the importance of new elections; considers that such use should be re-evaluated, in order to ensure that future governments and parliamentary majorities are allowed to legislate in a meaningful and comprehensive manner.


19. [The Parliament i]s also extremely concerned about those provisions of the Fourth Amendment which repeal 20 years of constitutional jurisprudence, containing an entire system of founding principles and constitutional requirements, including any potential case law affecting the application of EU law and of European human rights law; notes that the Court already used its previous decisions as a source of interpretation; is concerned, however, at the fact that other courts may not be able to base their decisions upon the previous case law of the Constitutional Court.


30. Considers that the premature termination of the term of office of the Supreme Court’s President violates the guarantee of security of tenure, which is a key element of the independence of the judiciary.


38. Recalls that the redrawing of electoral districts, the adoption of the Act on the election of members of parliament of Hungary and the electoral procedural law considerably change the legal and institutional framework for the next elections due in 2014, and therefore regrets that these laws were adopted unilaterally by the ruling parties, with no broad consultation of the opposition.


46. Deplores the fact that the creation of the state-owned Hungarian News Agency (MTI) as the single news provider for public service broadcasters, while all major private broadcasters are expected to have their own news service, has meant it has a virtual monopoly on the market, as most of its news items are freely available; recalls the recommendation of the Council of Europe to eliminate the obligation on public broadcasters to use the national news agency, as it constitutes an unreasonable and unfair restriction on the plurality of news provision.


53. Notes with concern repeated changes to the legal order restricting the rights of lesbian, gay, bisexual and transgender (LGBT) people, for instance by seeking to exclude same-sex couples and their children, as well as other varied family structures, from the definition of 'family' in the Fundamental Law; stresses that this runs counter to recent European Court of Human Rights jurisprudence and fuels a climate of intolerance vis-à-vis LGBT people."