There has been a barrage of English-language communications from the government since this case put Hungary back on the news radar. The official line on the Fourth Amendment to Hungary’s new Constitution is that criticism over its latest constitutional amendment, particularly concerns voiced abroad, are the result of “misunderstandings”, as Foreign Minister János Martonyi wrote to all 26 of his EU counterparts last week.
The trouble for the opponents of the government’s lawmaking practice – and there are many who hold the entire Fundamental Law in question because it was drafted unilaterally by Fidesz appointees and ratified solely by Fidesz lawmakers – is that the Commission and the Council of Europe can act only on specific technical points. Thus, despite huge international pressure in 2011, the government was forced to make only minor changes to a controversial law on media regulation. The spirit in which the law is conceived, and the pace at which it is rushed through Parliament, are not matters for supranational litigation. Beyond a few points found to be in contravention of EU directives, previous conflicts have tended to boil down to legally uncertain presumptions of intent and the bandying of semantics.
Homeless issue in Constitution
In the case of Martonyi’s defence of the homelessness law, he argued that solidarity from the state “should go hand-in-hand with the legitimate expectation to maintain public order”. He cites another new provision, whereby the state and local authorities are obliged to “strive” to provide accommodation to the homeless. “Needless to say, this legislative change falls short of the ‘criminalisation’ of the homeless,” the foreign minister wrote to his European colleagues. However, the latest amendment clearly states that local authorities can “declare illegal” the “occupation of designated public areas for living purposes”
Dealt with at local level in US
In the pre-human rights era, vagrancy was often a crime, and its practitioners tossed into a cell for the night or banged up in a workhouse. With vagrancy laws having gone the way of racial segregation from the 1960s onwards, several US cities have resorted to “sit-lie” laws over the past decade or so. Seattle led the way in 1993, and you are not allowed to sit or lie on the pavement between 7am and 9pm in commercial areas. Others followed suit with broader sit-lie regulations; several were found to be unconstitutional. None of the cities in question, as far as this newspaper is aware, have lobbied for a 28th Amendment to the US Constitution.
Another example from Martonyi’s letter – the longest official rebuttal so far of criticism of the amendment bill – concerns the powers of the Constitutional Court. After the latest amendment, “the Constitutional Court may only review the Fundamental Law and the amendment thereof for conformity with the procedural requirements laid down in the Fundamental Law with respect to its adoption and promulgation”. Martonyi justifies this clause by referring to two decades of case law – the very case law that has been annulled under another provision of the Fourth Amendment. The fact remains that the court no longer has the right to reject an amendment because it finds its content to be out of line with the existing Fundamental Law.
Learn to work here
Then there is their wording. Even if the administration of tuition fees and student grants are, as the government apparently believes, suitable material for a nation’s Constitution, it does not take a constitutional lawyer to see that this:
“(3) By virtue of an Act of Parliament, financial support of higher education studies may be bound to participation for a definite period in employment or to exercising for a definite period of entrepreneurial activities, regulated by Hungarian law.”
goes a little beyond the government’s original stated intentions (the text, by the way, is the government’s official translation and a fair reflection of the original).
Fidesz’s plan was to oblige graduates who had secured one of the dwindling state-funded places at university to refund it if they emigrated before working a year in Hungary for every year of paid study. Now it is being widely reported that the Fourth Amendment will somehow force graduates to remain in Hungary, perhaps beyond their will – a legal requirement that would surely run counter to EU law on freedom of movement.
The European Commission (the guardian of the Lisbon Treaty) and the Council of Europe (guardian of the European Convention on Human Rights) have a busy time ahead of them.