A growing chorus of experts on Hungarian constitutional law warn that Hungary’s Prime Minister, Viktor Orbán, orchestrated a series of legal maneuvers of dubious legality starting in 2015 in order to furnish the legal basis for Hungary to opt out of European decisions with which it disagrees in the name of “national/constitutional identity.”
Having failed to muster the two-thirds parliamentary majority necessary to modify the Fundamental Law, Orbán appears to have arranged for Hungary’s Constitutional Court to confer powers on itself not spelled out in Hungary’s constitution in the form of a binding resolution adopted by the Court in response to a petition submitted by the Ombudsman for Fundamental Rights.
Despite the series of domestic political and legal setbacks at the end of 2016 over whether Hungary should abide by a 2015 EU Council of Interior Ministers resolution requiring EU Member States to temporarily resettle asylum-seekers, Hungary’s packed Constitutional Court gave itself the authority to interpret national/constitutional identity in a manner that creates a dangerous new precedent.
As one critic puts it, this process plays out in Hungary like acts in a theater, with actors playing out the role the director has assigned to them.
On September 22nd 2015, the EU Council of Interior Ministers resolved to assist Greece and Italy in the processing of asylum applications. The plan was to distribute asylum-seekers among EU Member States, thereby alleviating the intense pressure on Italian and Greek authorities.
According to the plan, Hungary was to have temporarily settled 1,294 asylum-seekers — 306 from Italy and 988 from Greece. In accordance with EU rules, the resolution only required a qualified majority to pass. Although Hungary, Slovakia and Poland opposed the resolution, the majority of interior ministers voted in favor.
As the resolution applied to asylum-seekers, Hungarian authorities would have been responsible for vetting their asylum applications, reserving the right to deport those whose applications it deemed invalid.
A political godsend
Domestically, the refugee crisis proved to be a godsend for Fidesz. In the wake of the terrorist attacks in France, the Hungarian government launched a massive nationwide propaganda campaign with a view to shoring up its popularity which had plummeted in the wake of the 2014 election. The campaign targeted not only refugees and asylum-seekers from the Middle-East but also Brussels, which the government claimed was attempting to undermine the national sovereignty of EU Member States.
On December 3rd, Hungary and Slovakia challenged the legality of the relocation scheme in the Court of Justice of the European Union. In Hungary, the lawsuit was heavily publicized by government-controlled media.
On that very same day, László Székely, Hungary’s Ombudsman for Fundamental Rights, petitioned the Constitutional Court for clarification on a potential conflict the EU Council of Interior Ministers resolution may have with Hungary’s Fundamental Law. Székely, who was appointed to his post in 2013, sought clarification over two sections in the Fundamental Law. In short, he asked whether Hungary would be required to take part in the EU relocation scheme if the plan conflicted with Hungary’s own Fundamental Law because it would have involved Hungary taking part in a mass expulsion of a population from another country.
This petition sat untouched by the Constitutional Court for nearly six months. Meanwhile, the Orbán government spent tens of billions of forints fomenting xenophobic sentiment and inundating Hungarian society with anti-refugee propaganda conflating asylum-seekers with Muslim terrorists — all this culminating in a so-called “national consultation” on immigration in 2016.
The result of the consultation was never published. However, according to the government, the vast majority of respondents reportedly agreed with the government’s position that immigration posed a threat.
Emboldened by the outcome of the national consultation, and seeking to further capitalize politically on a “migration crisis,” the following year the government held a referendum on the relocation scheme.
The failed referendum
Despite pulling out all the stops, the government failed to mobilize the requisite 50 percent of the electorate required by law in order to be valid and legally binding on parliament. However, as the vast majority of those participating in the referendum reportedly agreed with the government’s position that migration posed an existential threat to Hungary, Orbán reacted to the defeat by declaring victory and proposing to modify Hungary’s Fundamental law for the seventh time since its adoption in 2011.
The motivation for the Seventh Amendment, as actually stated in the document, was the following:
“The European Union is trying to use a compulsory quote to distribute those arriving in Europe among Member States. The government of Hungary was the first in Europe to initiate a referendum on this. On the October 2nd referendum, 98 percent of those who cast a valid vote rejected the forced settlement. With this a new unity was formed for Hungary. This new unity is above political parties, it treats preserving Hungary’s sovereignty as national issue, and it rejects the compulsory quote. The unanimous will of the 98 percent requires the National Assembly to move forward with law. This Amendment to the Fundamental Law is based on will of the 98 percent majority, 3 million 300 thousand people. This is greater than the voter base of any political party since the system change.”
The Amendment would have introduced the following key sentences to the Fundamental Law:
- “We hold that it is the state’s fundamental responsibility to defend the constitutional identity of the historical constitution.”
- “Protecting Hungary’s constitutional identity is the responsibility of every state organ.”
The proposed constitutional amendment went on to say that in order for EU law to be carried over into the Hungarian legal system, the laws must not interfere with Hungary’s territorial rights, population, or state structure.
On November 8th, 2016, Viktor Orbán failed to secure a two-thirds parliamentary majority necessary to introduce the term “constitutional identity” into Hungary’s constitution.
What is constitutional identity?
Article 4(2) of the Treaty of the European Union states:
“The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
In other words, by citing this particular passage in EU law, a Member State can essentially sidestep having to abide by an EU directive on grounds of national or constitutional identity.
According to Gábor Halmai, Professor and Chair of Comparative Constitutional Law at the European University Institute, there are totally legitimate instances “when an EU Member State can engage in the dis-application of EU law in exceptional situations where a fundamental constitutional commitment uses higher standards for the protection of rights than one provided by the EU.”
A legal “joker card”
On November 30th, 2016, just three weeks after the failed attempt to amend Hungary’s constitution, the Constitutional Court rendered a decision on the ombudsman’s 2015 petition. And this is where the Constitutional Court did something that, according to some legal scholars, amounts to gross violation of the court’s mandate.
Taking up the ombudsman’s petition from the previous year, the Constitutional Court granted itself the right to determine what constitutes national/constitutional identity in the form of a resolution containing almost word for word the key passages contained in the proposed Seventh Amendment to the Constitution. According to the resolution, “the protection of constitutional identity shall remain the duty of the Constitutional Court as long as Hungary is a sovereign State.”
Legal scholars consulted by the Budapest Beacon agree that in this way the government achieved with the Constitutional Court what it failed to achieve either with the referendum or the proposed 7th Amendment to the Fundamental Law: A right to opt out of EU decisions on the basis of “constitutional identity.”
A clear abuse of the concept of national/constitutional identity
Former Constitutional Court Justice Imre Vörös told the Budapest Beacon that “The Constitutional Court did not define the framework through which the principle of constitutional identity can be determined. Rather, its judgement is vague, allows for loose interpretation, and – if it is applied in bad faith – can be used as a joker card.”
Halmai, who advised Constitutional Court president (and later Hungarian president) László Solyom on constitutional matters, told us that neither the Fundamental Law nor the Act on the Constitutional Court actually authorizes the court to give itself the competency to decide on the constitutionality of EU law based on Hungary’s national/constitutional identity.
“The Constitutional Court’s decision [on the ombudsman’s petition] amounts to a packed court’s rubber stamp of the government’s defense not to comply with an EU obligation,” says Halmai, adding that by using “the loyal ombudsman’s petition the Constitutional Court got the job done, but this is a clear abuse of the concept of national/constitutional identity.”
Kriszta Kovács, a researcher at WZB Berlin, told us “the Hungarian Constitutional Court functioned not as a check on the government but as a backup of the governing majority by transforming the political claim to distinctive national identity as the judicial understanding of national identity.”
Whether or not national/constitutional identity as a legal principle can be abused is something that is up for debate.
Dorota Leczykiewicz, assistant professor of law at Oxford University, told us that Article 4(2) of the Treaty of European Union isn’t something that can be used in good or bad faith. Instead, she says, the argument can really only be legally effective or ineffective — and this will ultimately be decided by the Court of Justice of the EU.
“It’s a screen to hide behind, giving them a way to evade EU law,” Kim Lane Scheppele, the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School of Princeton University, told us in reference to Hungary’s application to the EU law.
What is Hungary’s national/constitutional identity? A “historical constitution” and “the Holy Crown”
Kovács told us that what the Court of Justice of the European Union seems to respect when interpreting Article 4(2) TEU is the national identity embodied by the domestic legal system from the moment of the foundation of the independent and democratic state.
According to Kovács, “Hungary’s Constitutional Court could have interpreted constitutional identity in accordance with the EU law had it understood under national identity the way universal constitutional values such as equality, democracy and rule of law have been discussed and interpreted in the Hungarian Parliament, domestic courts and the Hungarian Constitutional Court since the 1989 democratic transition. But because the Fourth Amendment to Hungary’s Fundamental Law (adopted unilaterally by the ruling Fidesz-KDNP political alliance in 2013) nullified the entire jurisprudence of the Constitutional Court from 1990-2011, none of the decisions of the Constitutional Court before the enactment of the Fundamental Law can be relied on as legal authority, including all of the Court’s prior decisions on equality, democracy and republicanism.”
Kovács continued: “Central European constitutional courts tend to build national identity on presumably distinctive historical events, the Hungarian Constitutional Court is in a special position because of the constitution the judges are expounding….[which] requires the judges to interpret the constitutional provisions in the light of the National Avowal, and the National Avowal contains mythical historical and religious considerations.
“According to [the Constitutional Court’s decision],” Kovács said, “the constitutional identity of Hungary is distinctively and uniquely rooted in the historical constitution. Both the Fundamental Law and its interpretation given [in the Constitutional Court’s decision] assume that the special features of the Hungarian historical constitution, including the Holy Crown doctrine, cannot be found elsewhere. However, taking a closer look at these two doctrines – historical constitution, Holy Crown – it turns out that both are regional phenomena, and not specific to Hungarian history.
“Emphasizing distinctiveness by referring to unique historical features in Central Europe is doomed to failure,” Kovács added. “Even seemingly specific historical events or traditions are rarely special and distinctive, since their elements may quite possibly be detected in other countries’ historical pasts, too.”
Halmai says: “One of the dangerous aspects of the Constitutional Court’s decision is that it separates constitutional identity from Fidesz’s own constitution and connects it to the undefined concept of the historical constitution. Nobody really knows what the ‘historical constitution’ is. We can just hope that the Constitutional Court won’t declare the Jewish laws of the 1920s and 1930s as part of Hungary’s historical constitution.”
Armed with his court’s decision, Orbán suits up for battle with the European Union and UN
In mid-June 2017, six months after the failed attempt to amend Hungary’s constitution for the seventh time, the European Commission launched infringement procedures against the Czech Republic, Hungary and Poland for non-compliance with their obligations under the 2015 Council decision on relocation.
On September 6th, 2017, when the European Union Court of Justice dismissed the case brought by Slovakia and Hungary seeking to annul the Council Decision of September 2015, Prime Minister Orbán famously remarked that Hungary would not comply with the court’s decision.
Following a cabinet meeting in late February 2018, justice minister László Trócsányi filed yet another petition to the Constitutional Court asking whether Hungary can cite “constitutional identity” to avoid having to take in refugees.
Similar to the ombudsman’s petition from 2015, Trócsányi pushed the Constitutional Court to take a position on national/constitutional identity.
Vörös and Halmai agree that the scope of Trócsányi’s petition to the Constitutional Court goes well beyond a relocation plan for refugees and that it targets other EU laws the government does not want to comply with.
Halmai says Trócsányi’s petition explicitly asks for permission for the government to overrule the parliament’s decisions on EU issues, “which blatantly violates Article 19 of [Hungary’s own] constitution.”
The Constitutional Court has yet to render judgement on Trócsányi’s petition.
“We can just hope that the European Union, a community of values of rule of law, democracy and guaranteed fundamental rights will find ways to stop Hungary from violating those values. The procedure to start an Article 7 procedure, which after [Hungary’s general] elections will be discussed by the European Parliament, would be a first, unavoidable step on the long road to force Hungary to comply with the values of the EU, and not just enjoying its financial support, or leaving altogether,” says Halmai.
Vörös: “This long and drawn-out process demonstrates what it’s like when a country’s legal system, its checks and balances, becomes a theater of democracy, where the scenes are acted out,” adding that similar productions can be seen in Venezuela and Poland.
According to the former Constitutional Court justice, this series of events demonstrates that Hungary’s executive is capable of imposing its will on every nominally independent institution in Hungary.
“The separation of powers does not work, and this is what can be seen from the [failed] attempt to introduce the 7th Amendment and the Constitutional Court’s decision of December 2016,” says Vörös, adding that the Constitutional Court “carried out the will of the executive instead of serving its own constitutionally-defined function.”