The Council of Europe’s advisory body on constitutional matters briefed members of the EP Civil Liberties Committee on Wednesday on its opinion on the new Hungarian Constitution. Several MEPs were reluctant to have this debate in committee, arguing that the Hungarian Constitution did not fall within its competence but was part of Hungary's sovereignty. Others stressed that Hungary's right to adopt its own Constitution was not at stake but that fundamental rights must be debated in the EU.

Thomas Markert, Secretary of the Venice Commission, the Council of Europe’s advisory body on constitutional matters, presented to the Civil Liberties Committee the state of affairs in the drafting of an opinion on the Hungarian Constitution, adopted by the Hungarian Parliament on 18 April and due to enter into force in 1 January 2012. Two requests for opinions have been made to the Venice Commission: one by the Hungarian government in the process of drafting the new Constitution, and another one by the Head of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe, Mr Dick Martin.

The first opinion, adopted in March, only concerned three specific aspects of the constitutional process. The second one, due to be adopted on 17-18 June, has a more general scope. Although this latter document is not yet finalised, Mr Markert mentioned several areas of the constitution that the Venice Commission is investigating.

Need for a two-thirds majority to approve some laws

Mr Markert noted the limitation of powers of the Constitutional Court (especially on tax and property issues) and the regulation of certain important subjects (family issues, pensions, taxation, etc) by so-called "cardinal laws", which need a two-thirds majority to be adopted or amended. Replying to questions during the debate, Mr Markert said that "there is no other EU country with such a wide scope of cardinal laws" and "it is unlikely that future governments will have a two-thirds majority" to alter them if they so wished.

"Many European constitutions stipulate that certain laws and amendments require a two-thirds majority, which requires consensus among political parties. This usual safeguard does not work in the present political situation in Hungary, where one party has a two-thirds majority. The solution would be self-restraint from those wielding such power, but we are not seeing this at the moment", said Mr Markert.

Other issues

Mr Markert also mentioned that the preamble of the Constitution "is too long and it has many historic references", some of which "might be seen as excluding some minorities" and that the article on the protection of Hungarians living abroad "might be seen as interfering in the affairs other countries".

The new Hungarian Constitution also provides for the protection of "unborn life", defines marriage as a union between a man and a woman and does not explicitly mention sexual orientation in the clause against discrimination, he added.

Mr Markert also referred to the fact that the pension age for judges will be lowered from 70 to 62 years, leading to the appointment of many new judges at once. 

Should this committee debate the Hungarian Constitution?

Kinga Gál (EPP, HU), one of the vice-chairs of the Civil Liberties Committee, voiced concern at the holding of this debate: "I don't think it is within the competence of this committee to deal with the Hungarian Constitution", she said, noting that some concerns raised might also apply to other constitutions. "Constitutions fall under the sovereignty of each Member State", she emphasised. "Of course they should comply with international and European obligations but I don’t think that the Hungarian Constitution violates these", she said.

This remark was supported by Simon Busuttil (EPP, MT). "The EPP was reluctant to have this kind of debate, because we think it is not within our competence" in the Civil Liberties Committee. Commenting on some of the issues, Mr Busuttil said he did not see "any violation of fundamental rights" in the fact that the process for adopting the Constitution was pushed through in five weeks. He also noted that if the protection of unborn life was a cause for concern, "then we also have to look at the Irish Constitution" - and similarly, the definition of marriage as a union between a  man and a woman is also present "in other constitutions".

"Different people and different countries have different values", noted Mr Busuttil, referring to the EU's motto of "United in diversity". "United in diversity, but ensuring fundamental rights for our citizens...", retorted Emine Bozkurt (S&D, NL).

A debate on fundamental rights

"The S&D position is not against Hungary, but this committee has to discuss fundamental rights", said Monika Flašíková Beňová (S&D, SK). "We respect the right of Hungary to adopt its own Constitution, but European values, fundamental rights and the rights of minorities have to be respected", she underlined.

"If we don't debate our values anymore, what is Europe about?" wondered Sophia in 't Veld (ALDE, NL). Also, "if we are not able to be critical about ourselves, how can we be critical towards candidate countries?" she asked.

For Ms in't Veld, "the reasons for concern lie more in the process - it was pushed through so quickly - and in how the elements in the Constitution interact with each other". "Nobody gets upset when we discuss competition rules, why should we when we debate fundamental rights?" she concluded.

"Constitutions can be instruments of sovereignty, but they cannot be impermeable to outside criticisms", agreed Rui Tavares (GUE/NGL, PT) "We have to pay attention to the spirit of the rules", and the current non-discrimination clause "is not enough", he said.

"This government was elected for a period of four years", noted Judith Sargentini (Greens/EFA, NL), but "it has come up with some tricks", like the need for a two-thirds majority to approve or amend some laws. "At the end of the day this government is trying to continue undemocratically beyond its mandate", she concluded. 

Although the agenda of the next plenary could still change after next Wednesday's Conference of Presidents, a debate on the Hungarian constitution has been scheduled for 8 June, during the next plenary session in Strasbourg, along with a vote on a resolution.


On the Chair: Juan Fernando LÓPEZ AGUILAR (S&D, ES)