The article discusses the Tavares Report on the new constitutional changes in Hungary, the implications of the new Constitution on Hungary's obligation under the Treaty,  on European Union, especially its continuing commitment to the Union founding values of the rule of law and democracy  and its obligation to “…respect human dignity, democracy, equality, the rule of law…“, drawing on historical examples.

 

Concluding with the view that should Hungary fail to take steps to correct its apparent trend away from the EU founding values it is at serious risk of placing itself in in breach of its European Union treaty obligations, international legalities, and possibly even breach European human rights law

Ressel, James

English

NECTAR

This work has been submitted to NECTAR, the Northampton ElectronicCollection of Theses and Research.ArticleTitle: Democracy and rule of law: the Hungarian goulashCreators: Ressel, J.Example citation: Ressel, J. (2013) Democracy and rule of law: the Hungariangoulash. Law, Culture & Ideas Blog. 23/06/2013Version: Published versionNote:This work is licensed under a Creative Commons Attribution-NonCommercial 4.0International License.http://nectar.northampton.ac.uk/6595/NECTARDemocracy and rule of law: The Hungarian goulash.Posted on 23/06/2013In middle of Budapest, on the bank of the Danube facingBuda, stands Hungary’s Parliament.It is a spectacular building, a stunning  political ‘cathedral’ ofa building designed to honour the gods of democracy andlate 19th Century Mittel-European culture and identityrising from the ashes of crumbling empires.The presently rather strained and difficult relations Hungary isexperiencing with the European Union (‘EU) follow significantconstitutional changes introduced over the last two to three years which appear to effectively abolish the ruleof law and democracy in Hungary. The episode also helps to illustrate the inherent weakness but also thestrength of the dialectic in the idea of Europe, refreshing our appreciation of the ideas of rule of law,democracy and brute power politics.The Council of Europe has described the changes as following “an instrumental view of the constitution as apolitical means of the governmental majority” [1].  Meaning that the power interests of the political party ingovernment become overbearing, unrestrained by any substantive legality. The Constitution as a fundamentalbasic law, and seen as the effective legal guardian of rule of law and substantive legality is used as a mereinstrument of political power suborned to the self-interest of one political party. Thereby, the political powersidesteps the necessarily limiting dialogic constitutional mechanisms and structures which operate tomaintain a balance of fairness and legality between the political self interests of those in power and theinterests of the powerless.The delicate and fragile system of negotiations, compromises, checks and balances necessary for an effectiverule of law is substantially disrupted, leaving us with nothing more that chimeral and hollow echo of the rule oflaw encased in a legal formalist straight jacket in a hall of mirrors.So we may ask what is the legal architecture underlying this problem.By Article 2 of the Treaty on European Union (‘TEU’) [2] each member state affirms the founding values of theUnion  and legally agrees as a condition of membership of the Union, to “…respect human dignity, democracy,equality, the rule of law…“Thus the basic  ‘European common values’  are values of the rule of law and democracy underpinned by therespect for fundamental human rights and freedoms as enshrined in the Charter of Fundamental Rights of theEuropean Union [3]. Further, it is argued, that the common values set out in Article 2  are the core rights ofany European Union citizen, irrespective of nationality and political or cultural identity.However, under the principle of the rule of law, core rights can only remain real and effective rights providingthat the fundamental European common values and principles, signed up to by EU Member Sates, can actuallybe legally upheld as against Member States in some kind of legitimate judicial process.Hungary became a member of the European Union in 2004. On joining it, as any other Member State,  agreedLaw, Culture & Ideasas a condition of its membership to uphold the core values of democracy and the rule of law, and to respectfundamental human rights and freedoms. Indeed it was the first former Communist country to accede to theEuropean Convention on Human Rights (‘ECHR’) [4].Moreover, Hungary also became actively involved in shaping EU values and principles. It has worked on theConvention, at the Intergovernmental Conference in 2003-2004  energetically helping to shape Article 2 of theTEU and even introduced the provisions protecting the rights of minorities.However, the pro-European trajectory in Hungary changed in 2010. A new government was elected with amajority of more than two-thirds of the seats in Parliament. As in many countries adopting the positivistGrundnorm [5] constitutional model based on the idea of a written fundamental law, the basic code is partiallyentrenched and protected from undue unrepresentative political modification. The protective mechanism isthe requirement that a written constitution, as the supreme law of the land,  can only be changed by therequisite parliamentary majority, often expressed as two-thirds vote in parliament.  The ‘two-third rule’applies also in the case of the Hungarian constitutional structure.Indeed, as Georg Jellinek [6] has argued, strong impediments to intemperate amendments of a constitution ornation’s fundamental laws, provide protection against precipitate constitutional change  and distinguish lawscharacterised as constitutional laws from all other law. The trouble comes about when a political party inpromoting the expediency of its survival,  confuses the protected category of constitutional law with ‘everyday’law of the land.  Any elected party in power only has sovereignty over the everyday law, the limitation on theexercise of this power is the democratic mandate. Only rarely has a political party legitimate authority tochange the supreme law.In the context of the European Union, the idea behind the ‘two-thirds rule’ impediment is the implicitrecognition that reforming a constitution should take place with care and respect for the political views andcultural values of all affected citizens. In order to meet the privileges and corresponding obligations of Unionmembership, space should be allowed for consideration of the legal mechanisms to protect the fundamentalvalues and principles intended to preserve the rule of law, separation of powers, and the hierarchy of legalnorms.However, without any significant delay, the new government set about a rapid reshaping of the constitutionalorder of the country. The significant constitutional changes include curbs on the right to freedom of speechand expression, limitations on the rights and welfare of minorities and attacks on the independence of thejudiciary and juridical processes.The Hungarian Parliament approved a new Constitution in April 2011 which has since been amended at leasteleven times and Hungary’s Fundamental Law has been amended four times, writes Rui Tavares in the DraftReport on the situation of fundamental rights: standards and practices in Hungary ‘the Tavares Report’ [7]. The Tavares Report to the European Parliament raises a number ofconcerns regarding the effect of the new Constitution and thecircumstances of its passing, on Hungary’s Treaty obligations as aMember State, especially its continuing commitment to  the Unionfounding values of the rule of law and democracy  and its obligation to“…respect human dignity, democracy, equality, the rule of law…“The Hungarian experience has drawn attention to another further significant problem for the Union. It is thatalthough the European Union is careful to ensure that the constitutional structures of candidate states are fullyrecognisant of Article 2 TEU principles and values, it seems, that short of expulsion from the Union, the Unionhas limited powers to enforce on going protection of the founding values of rule of law and democracy byMember States.The Tavares Report draws attention to a number of serious points including the following matters:It questions the legitimacy of the new Fundamental Law due to the fact that the passing and adoption ofthe Fundamental Law and the changes to the Constitution “…lacked the transparency, openness,inclusiveness and ultimately the consensual basis that could be expect in a modern democraticconstituent process…”. The legislative process was rushed and lacked any meaningful consultation with andscrutiny of  the proposals, not only by opposition parties but the population at large.It questions the supremacy of the Fundamental Law as a distinct and protected constitutional law, inJellinek’s sense, and its respect and recognition of a democratic system of checks and balances as anecessary pre-condition for the existence legally constituted democratic Member State of European Union.The law has struggled to maintain the principle of juridical legality in both senses: as an arena for theprotection of constitutional law and as a source of constituting law. On the 28 December 2012 the HungarianConstitutional Court declared  “...that the Hungarian Parliament exceeded its legislative authority when itenacted a number of transitional provisions of the Fundamental Law  containing permanent and generalrules…”In response to the legal declaration the Hungarian Parliament passed the Fourth Amendment to theFundamental Law reintroducing the rules previously declared unconstitutional by the ConstitutionalCourt.This constitutionally questionable but a ‘pure’  manifestation of political power, legitimated only by theelectoral system, had the effect of degrading the Constitutional Court. Contrary to the principle of the rule oflaw, the Court was no longer able to fulfill its function as the supreme body of constitutional protection.Furthermore, the Court could no longer operate effectively as an independent and autonomous constitutionaland constituting law making body in the democratic system of checks and balances.The Tavares Report notes that the Fourth Amendment repealed 20 years of Hungarian constitutionaljurisprudence. The repealed rules, principles and laws, expressed a negation of the entire system of foundingprinciples and constitutional requirements including laws dealing with the application of EU law andEuropean human rights law. One effect could be to deny the protection of the founding European principlesexpressed in Article 2 TEU, and European human rights law to people living in Hungary.Further, it is generally accepted that an essential feature of the principle of the rule of law is that the judiciaryis independent both of parliament and the government. As the Report notes, one key element of judicialindependence is the security of tenure for judges. However, contrary to the rule of law principle, the Hungariangovernment took steps for the premature termination of the appointment of the President of the HungarianSupreme Court, and introduced lowered compulsory retirement age for all Hungarian judges.In relation to freedom of expression, and the principle of accountable and open government, the Reportdiscusses the deleterious effect of the Fourth Amendment on the plurality and the vitality of the mediaenvironment, citing instances of self-censorship, worsening working conditions for journalists, and reductionin the quality of journalism.The Tavares Report concludes with the stark warning that unless the “..systemic and general trend ofrepeatedly modifying the constitutional and legal framework in very short time frames, and the content ofsuch modification…” is “…corrected in a timely and sufficient manner...”  then there arises a “clear risk of aserious breach” by Hungary of the values set out in Article 2 TEU.Accordingly, it must follow, that should Hungary fail to take steps to correct its apparent trend away from thefounding values of “…respect human dignity, democracy, equality, the rule of law…”  it is at serious risk ofplacing itself in not only in breach of its European Union treaty obligations, but also wider internationallegalities. Furthermore, should the Hungarian government fail to protect the rights of its EU citizens it risksplacing itself in breach of European human rights law.However, if we are to recollect the events leading up to the demise of the Weimar Republic in the 1920′s, theHungarian experience may hint at more sinister possibilities for democracy and the rule of law in Europe.As Jacobson and Schlink [8] explain, following the Reichstagelections  in 1920,  the majority parties rejected the WeimarConstitution legally leaving the German Republic with recourseonly to the President as the source of constitutional law. Thepolitical rejection of the constitution resulted in social andeconomic instability and legal uncertainty generating muchdomestic unrest.In order to try to control the situation, the President declared anumber of states of emergency and issued a number of  decrees,largely to try to restore public security and order. The exceptional emergency laws were authorised by Article48(2) of the German Constitution and were implement …”especially to stabilise the currency and theeconomy in the “year of crisis 1923″” such that in time the exceptional states of emergency becamenormalised and out of which legal exception a fresh but inherently undemocratic state could emerge.Subsequently, “enabling laws” [Ermachtigungsgesetze] were passed in the early 1920′s which “…transferredextensive legislative powers to the government.” Soon thereafter, the once democratically elected governmentwas able to adopt aggressively totalising political approach to managing and exercising its ‘pure’ power, butonly after having successfully transmuted the fragile system of checks and balances necessary for a democracyas an exceptional emergency situation responding to an excess of freedom, diluting the principle rule of law toa formalistic efficiency driven framework.In the light of our experience of early 20th Century history and the current events in Hungary, we may askwhether the history of Weimar may be repeating itself, presaging a sinister social and political future forEurope, or whether the European Union has sufficient legal and political will to uphold the principles andvalues of human dignity, democracy, equality, and the rule of law.The publication of the Tavares Report however encourages an optimistic view that we may not need to repeathistory after all.Footnotes:[1] See further Council of Europe, The Venice Commission, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282013%29012-e[2] For a copy of the TEU see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012M/TXT[3] A copy of the Charter is available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT[4] A copy of the ECHR is available at http://www.echr.coe.int/Documents/Convention_ENG.pdf[5] Most famously set out by Hans Kelsen in his General Theory of Law and State, 1949.[6] Georg Jellinek ‘Constitutional Amendment and Constitutional Transformation’ in Jocobson A J., andSchlink B., (eds) Weimar: A Jurisprudence in Crisis. (Berkley, Los Angeles, London: University of CaliforniaPress, 2000)   pp54-57 originally appeared in Georg Jellinek Verfassungsanderung undVerfassungswandlung: Eine staatsrechtlich-politische Abhandlung (Berlin: Haring, 1906)[7] European Parliament Committee on Civil Liberties, Justice and Home Affairs Draft Report on the situationof fundamental rights: standards and practices in Hungary. No:  2012/2130(INI). 2 May 2013  RapporteurRui Tavareshttp://www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/pr/935/935253/935253en.pdf[8] Jocobson A J., and Schlink B., (eds) Weimar: A Jurisprudence in Crisis. (Berkley, Los Angeles, London:University of California Press 2000) Suggested citation: J Ressel ‘Democracy and the Rule of Law: The Hungarian Goulash’ Law, Cult. & IdeasBlog (23 June 2013) (available at  http://lawcultureblog.wordpress.com/ )Share this:Facebook Twitter LinkedIn MoreThis entry was posted in Charter of Fundamental Rights, Democracy, European Parliament, Free Speech, Judicial independence, Law, Rule of Law, Uncategorized andtagged Democracy, European Parliament, European Union, Freedom of speech, Hungary, Judicial independence, Rule of Law, Tavares, Treaty on European Union, Weimar.Bookmark the permalink.Law, Culture & Ideas Reblog  LikeOne blogger likes this.The Twenty Ten Theme. Create a free website or blog at WordPress.com.

Democracy and rule of law: the Hungarian goulash

Abstract

Similar works

Full text

Available Versions

NECTAR