Hungary’s constitutional undermining of internationally protected human rights

Hungary is about to take a leap backwards when it comes to guaranteeing human rights and basic freedoms including a deeply limited definition of “family” in its new constitution.

The fourth amendment to Hungary’s constitution was adopted this week by the country’s parliament. Now it only needs a signature from János Áder, the Hungarian president, to become law.

Hungary’s new constitution came into effect at the start of 2012 and has been a problematic enterprise from the start.

Amnesty International raised its concerns about possible negative consequences for human rights already when the new Constitution was adopted, and again later when it took effect. However, this fourth amendment could bring about an even more serious step-back for human rights.One of the serious concerns regarding the amendment is about the unnecessarily restrictive definition of the family, which discriminates on the basis of sexual orientation and marital status.

It defines family only on the basis of “marriage, and parental – children relations” excluding amongst others same-sex couples, who cannot marry, since the Constitution already determined marriage only as a union between a man and a woman.

Some heterosexual couples would also not be regarded as a family for example two people living together but unable to have children .

The legal status of unmarried heterosexual couples who have children will also become uncertain .

According to an expert on families approximately 40 per cent of babies are born to parents in de facto relationships but who are unmarried.

Aside from the negative symbolism of such pronouncements these restrictions could have serious implications in terms of inheritance, shared property plus other financial and social issues.

The amendment also contains other elements that could permit the incarceration of the homeless.

As one homeless activist said in his speech at a weekend demonstration, as a consequence of the amendment, cities can literally become prisons for many people who are unfortunate enough to have no roof over their heads, and for whom simply sleeping, eating and spending time with friends on the street can bring the threat of heavy penalties or imprisonment.

The government claims this is the only solution for reducing homelessness. NGOs and UN experts are, however, of the opinion that ensuring the right to adequate housing for all, including the most vulnerable, and concentrating on social solutions rather than resorting to the criminal justice system would be the most effective way of addressing the problem.

The new amendment additionally creates a framework for the curtailment of freedom of expression, by including a rather broadly worded prohibition of expressions that “violate the dignity of the Hungarian Nation, or any national, ethnic, racial or religious community”.

Similar legal provisions were deemed unconstitutional earlier by the Constitutional Court and run counter to international standards on the protection of freedom of expression and speech.

According to the Hungarian Helsinki Committee, this could even mean the prosecution of Hungarian writers and poets, who often use strong words to criticise and challenge the Hungarian Nation.

Perhaps the most worrying aspect of the amendment is that a number of its elements had earlier been found unconstitutional by the Hungarian Constitutional Court. Instead of annulling or changing these laws, the government opted to integrate them into the Constitution.

“The Constitution is not a game” – growing protests

A growing wave of internal and external protest has evolved around the fourth amendment.

As the whole amendment affects the rights and interests of several different social groups and institutions – such as students, teachers, churches, artists – Hungarian civil society has been engaged in an almost unified protest action.

Amnesty International Hungary was part of a civil coalition that organised a mass demonstration under the name “The Constitution is not a game” on 9 March.

The outrage over the proposed reform sparked more radical, though non-violent forms of civil action as well. A couple of days before the parliamentary vote, a group of around 70 activists climbed into the headquarters of Fidesz, the governing party, to occupy it in protest for initiating the amendment.

They held out there for several hours, then marched to the Constitutional Court to express their concern.

On the day of the vote 16 high school students also engaged in peaceful civil disobedience by blocking the vehicle entrance into the Parliament building.

In addition to NGOs, serious legal experts, opposition parties, the former President of Hungary and former head of the Hungarian Constitutional Court voiced grave concern, warning of the break down of the rule of law if the amendment takes effect.

He and the current Parliamentary Commissioner for Human Rights both called on the President to veto the amendment – something the ruling party claim is beyond the head of state’s power.

The degree and the tone of international criticism resembles or even goes beyond early 2011 when Hungary held the Presidency of the EU, and at the same time enacted media laws that attacked freedom of expression.

A mere hour following the parliamentary adoption of the constitutional reform, Secretary General Jagland and EU Commission President Barroso issued a joint statement saying the “amendments raise concerns with respect to the principle of the rule of law, EU law and Council of Europe standards”.

This is where we are now. The amendment was adopted by the parliamentary majority, whilst opposition parties were either away from the plenary or holding up signs in protest.

At the same time a civil rally of a couple of thousand people gathered at the Presidential Palace calling on President Ader not to sign the amendment.