The Draft 17th Amendment to the Fundamental Law: sometimes too much, sometimes too little — but improvable

Despite the extremely short, five-day deadline, the Hungarian Helsinki Committee today submitted its opinion to the government on the forthcoming 17th Amendment to the Fundamental Law.

The five-day deadline provided for public consultation and written comment does not meet the minimum of eight days prescribed by law. For constitutional changes of the gravity of those now proposed — several of which the governing party’s leaders had not previously mentioned at all — such a narrow deadline is a direct obstacle to broad public participation in rebuilding the rule of law. The Hungarian Helsinki Committee therefore recommends that the government extend the consultation deadline on the constitutional amendment to at least until 3 July.

What is unnecessary and what is missing

The human rights organisation considers it a positive direction that, according to the government, the purpose of the 17th Amendment is a limited, transitional constitutional reform, while the comprehensive constitution-making process will be launched by the governing majority from September onwards, at the end of which Hungary could have a new democratic, rule-of-law Fundamental Law.

Against this backdrop, however, the 17th Amendment contains elements that are unnecessary for the urgent rebuilding of the rule of law and that should instead be debated and decided upon during the later constitution-making process. Premature proposals of this kind include the abolition of independent regulatory bodies and the capping of parliamentary mandates at 12 years — a measure that, beyond being inseparable from any eventual debate on a new electoral system, affects the opposition far more severely than the governing party, and therefore clearly does not point in the direction of any self-limitation of governmental power.

At the same time, while the draft’s stated aim is to restore rule-of-law functioning, it leaves unchanged provisions of the Fundamental Law that openly undermine rule-of-law principles and whose victims are minority groups (Roma, LGBTQ+ people, homeless people, asylum seekers, etc.). This constitutes a serious deficiency of the draft.

Tamás Sulyok and the Constitutional Court justices

The greatest public attention surrounds the future of the entrenched Fidesz-appointed constitutional office holders. The picture among the planned changes is mixed. In every case, however, it can be said that the draft fails to adequately justify the arguments behind the removals and the solutions chosen. For amendments of such critical importance to public life, it is unavoidable to explain why certain constitutional office holders must be removed before their mandates expire, and why, among the available options, the government has chosen the proposed solution. The government will in any case be required to set out the detailed arguments in the proposal submitted to the National Assembly.

In the Hungarian Helsinki Committee’s view, President of the Republic Tamás Sulyok has repeatedly and seriously failed to fulfil his constitutional obligations, and his removal can therefore be justified by the necessity of restoring the rule of law. However, the government must set out the underlying arguments in detail in the explanatory memorandum of the amendment proposal.

The Hungarian Helsinki Committee also considers acceptable the restoration of the 70-year retirement age for Constitutional Court justices and of the internal election of the court’s president. These provisions were in force until 2012 as a compromise of the 1989–90 democratic transition, and were arbitrarily changed by Fidesz in order to eliminate the checks and balances of the rule of law.

The human rights organisation also considers acceptable the removal of some of the currently serving constitutional court justices, but does not regard this as achievable through the immediate application of the 70-year age limit. According to the Venice Commission, a person whose appointment was unconstitutional cannot claim the protection of constitutional guarantees. Although the election of Hungarian constitutional court justices formally complied with legal requirements, those requirements were introduced unilaterally by the Fidesz-led majority in order to extend its own political power, systematically eliminating the earlier norms that had given opposition parties a meaningful role in the election process. The Helsinki Committee considers it preferable to remove from the court those justices who were elected as unilateral political nominees.

The Hungarian Helsinki Committee accordingly recommends a one-time amendment to the Fundamental Law providing that, in order to restore the rule-of-law functioning of the Constitutional Court, the mandates of those justices elected by the Parliament as “single-party nominees”, without the meaningful participation of opposition parties, shall terminate. Among the available options, this can be considered the most consistent with the rule of law, as it determines which justices may remain and which justices’ mandates shall end on the basis of an objective criterion linked to the rule of law.

It is essential that such an amendment could only be acceptable if, at the same time, new nomination and election rules are adopted that allow the current parliamentary opposition to participate meaningfully in the election of new constitutional court justices, and even to re-nominate former justices.

Court leaders

The HHC sees the most serious problems in the planned removal of the most important judicial leaders, even though this is where the process would outwardly appear most democratic. Here the government would leave it to the judges to decide the future of György Barna Senyei, President of the National Office for the Judiciary, and András Varga Zs., Kúria President, and to determine who their successors might be. Both Senyei and Varga were placed in their positions by Fidesz and cemented there.

Our assessment of the planned amendment is made difficult by the fact that the draft and its explanatory memorandum do not address the key details, leaving us with only Prime Minister Péter Magyar’s words to go on as to how the government actually envisions the process of judicial recall of court leaders.

This is clearly insufficient, and it appears that the government and parliament are shifting the responsibility for the decision onto the judges. The greatest problem with this is that a confidence vote on the current leaders — which would require very high (two-thirds) judicial support for their removal — would necessarily lead to serious conflicts within a judiciary already divided along numerous fault lines. If the detailed rules do indeed take this shape and a judicial petition for the removal of the leaders is launched, it is possible that a perceptible majority, but fewer than two-thirds, of judges would support the recall proposal — meaning the president in question would remain in post despite manifestly not enjoying the support of the majority of judges. Such a situation would also significantly undermine public confidence in the justice system. The planned amendment is therefore not suited to restoring the rule-of-law functioning of the courts — indeed, it could deepen the crisis.

The Hungarian Helsinki Committee’s view is that responsibility for the measures necessary to restore the rule of law rests with the government that campaigned on this electoral promise, and cannot be passed on to the judges. The removal of the current Kúria President could be adequately justified by the compelling need to restore the rule of law: András Varga Zs. was elected Kúria President through tailor-made legislation, in disregard of the firm objection of the National Judicial Council, despite having no prior assessable experience as an ordinary judge. His appointment procedure therefore did not comply with rule-of-law requirements, as international fora have also established. In light of this, his mandate could be terminated through a one-time amendment to the Fundamental Law, tied to the election of a new president under new rules.

Our expert opinion also addresses the reduction of two-thirds (cardinal) laws and the abolition of independent regulatory bodies.

➡️ Read the full opinion here