According to Minister of Justice László Trócsányi, global migration processes, the federalisation aspirations gaining headway within the European Union and challenges that are threatening individual privacy require the Fundamental Law (Constitution) to specify more clearly certain organisational and legal frameworks of the Hungarian state.
Speaking in Parliament on Tuesday, 5 June, Mr. Trócsányi said with relation to the proposed seventh amendment of Hungary’s Fundamental Law that the bill provides responses to current challenges that are in the spirit of the Constitution, European values and international legal requirements alike.
According to the Minister, the constitutional amendment would reinforce sovereignty and the protection of constitutional self-identity, stating that protecting constitutional self-identity is one of the state’s fundamental duties; the amendment also states that alien populations cannot be settled in Hungary.
In Mr. Trócsányi’s opinion there are two opinions standing opposite each other within the EU: according to one, as many spheres of competence as possible must be raised to EU-level, which the followers of the other do not accept the raising to EU-level of spheres of competence in a manner that would violate independent statehood.
The Minister listed himself as a believer in the second school of thought and said that if EU law and EU institutions could overwrite the constitutional self-identity and fundamental elements of the constitutional apparatus of individual member states unilaterally, the sovereign state existence of member states would become dissolved into a joint European legal system.
He stressed that the proposed amendment to the Constitution makes it clear that the exercising of common EU spheres of competence must be in harmony with the fundamental rights and freedoms included in the Fundamental Law, in addition to which it cannot restrict Hungary’s inalienable right of disposal with relation to its territorial integrity, population, form of government and state system.
Mr. Trócsányi explained that there is a particularly great need for such a conceptual framework in the midst of the migration crisis, in which some institutions of the European Union see the solution in the transfer and resettlement of asylum-seekers among member states. “The changes are in harmony with the will of the Hungarian people, as reinforced at the October 2016 referendum and the April 2018 elections”, he declared.
The Minister said that the amendment prevents the implementation of “forced” decisions concerning the mandatory placement of foreign populations in the country’s territory, which ignore the will of Hungarian constitutional bodies and the Hungarian people.
With relation to changes in asylum regulations, he said the new text of the related article of the Fundamental Law makes it clear that only people who arrive directly from territories where they are being persecuted or where there is a substantiated fear of persecution according to the Geneva Convention are entitled to receive asylum in Hungary as a fundamental human right.
“In all other cases, meaning if someone arrives from a country where they were not being persecuted or where there is no substantiated fear of persecution according to the Geneva Convention, the National Assembly is free to decide whether to afford the individual asylum or similar protection”, he pointed out.
The constitutional amendment also reinforces the tasks of the police with relation to preventing illegal immigration, he indicated.
Amongst others, Mr. Trócsányi justified the establishment of a separate public administration court system with the fact that the parties involved in public administration court cases are not equal, and this requires more active involvement on the part of judges, and that conducting procedures assumes a level of professional knowledge that can generally only be acquired within public administration.
“Judicial independence is the fixed star of democracy”, but this does not mean that the regulations on courts cannot be modified, he stressed.
The Minister, who has been researching the public administration court system for 30 years, pointed out that in civil cases the judge decides a dispute between two equal peers, but in a public administration court case one of the parties is at an advantage, the individual stands against the power of the state.
Mr. Trócsányi spoke about the Hungarian traditions relating to a separate public administration judicial system, which was established in 1896, but later disbanded by the communist dictatorship in 1949.
According to the Minister, the sphere of competence of the regular court system would continue to primarily cover criminal cases and civil legal actions, while the sphere of competence of public administration courts would primarily determine the framework for public administration litigation. The chief body of the regular court system will remain the Curia (Supreme Court), while that of the public administration courts would be the Public Administration Supreme Court, he added.
Another change would make it clear that the primary source concerning the goal of legislation is the Constitution’s preamble and the justification provided for legislative proposals. This regulation would come into force in January 2019.
With relation to the protection of privacy, Mr. Trócsányi explained that freedom of expression and exercising the freedom of assembly cannot violate the private and family life of others or their homes.
It will be made possible for courts to decide on an individual basis when the practicing of these rights violates the private life of others. Thanks to the amendment, the state affords the home legal protection, in the interests of preserving its tranquillity, he indicated.
In the Minister’s evaluation, the first three amendments to the Constitution were not substantive, but the fourth and fifth amendments were, involving the decisions of the Constitutional Court and the agreement with the European Commission. The sixth amendment was aimed at protecting Hungary’ citizens from the threat of terrorism that has developed in Europe, he added.