Volume 11 Numbers 1/2

Winter/Spring 2002

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Hungary - In the first round of elections, held on April 7, the opposition Hungarian Socialist Party (HSP), slightly edged out the ruling Federation of Young Democrats-Hungarian Civic Party (FYD-HCP), with 42 percent of the vote, compared to the FYD-HCP's 41 percent. The elections saw a huge turnout, with over 70 percent of eligible voters going to the polls, compared to just 54 percent in the 1998 elections. In the second round, which will be held on April 21, voting is repeated in districts where no candidate received over 50 percent of the vote or if turnout did not surpass 50 percent. In any case, the two weeks between rounds will likely see fierce campaigning, in what commentators have called the most significant elections since the regime change, as well as one of the nastiest, with a considerable increase in mudslinging and name-calling. Many have noted that the ballot was not so much a poll on the government's policies but, rather, it seems, a vote on what people thought about Prime Minister Viktor Orban and his FYD-HCP, which had struck a more populist tone of late, perhaps turning too far to the right for voters. In the campaign, Orban often spoke of his supporters as people who loved their country, while opposition parties and their supporters were presumably not proud to be Hungarian. Preelection polls had given the government a slight edge over HSP, but, for the most part, it was so close that it was impossible to predict what was to happen on election day.

HSP and the Alliance of Free Democrats (AFD), which won 5.6 percent of the vote, immediately started negotiations on supporting each other in the second round, meaning that their candidates will bow out of races in certain districts so the two parties will not be competing for votes. (AFD is in third place in about 100 districts.) In the first round, 185 seats were won with 98 going to HSP and AFD combined and 87 to FYD-HCP. Another 201 seats will be decided in the second round. Observers note that in the 1998 elections, HSP was actually leading by 4 percent after the first round and ultimately lost to FYD-HCP, which was able to win because other parties, such as the Independent Smallholders' Party, stepped out of races in the second round. In this race, however, FYD-HCP does not have another ally that it could cooperate with to such an extent.

Last September, FYD-HCP had formed an alliance with the Hungarian Democratic Forum (HDF), whose candidates were already on the FYD-HCP lists in the elections. Another potential ally, the far-right Hungarian Truth and Life Party (HTLP) did not pass the threshold required for entering parliament, and so the extent of FYD-HCP's support from other parties in the second round is rather limited. As a result, observers speculate that HSP may be able either to form a government on its own or be joined by AFD. Just three parties-FYD-HCP, HSP, and AFD-were able to enter parliament, compared to six parties in the last elections. Also, the far-right HTLP, which won 10 percent in the last elections, missed the threshold by just one percent, with 4 percent of the votes. EU officials and other leaders in Western Europe had worried about the possibility of a governing coalition that included HTLP, which is anti-EU, anti-NATO, and often openly anti-Semitic.
Part of Orban's emotional appeal to voters concerned the "status law," officially called the Law on Hungarians Living in Neighboring Countries (No. 62 of 2001), which, although adopted by a 95 percent majority in June 2001, has divided the polity into noisy factions. The controversy has centered not so much on the legislation's original provisions, which provide rights and preferences for ethnic Hungarians living beyond Hungary's borders, but on the angry response of Hungary's neighbors to the law and the measures taken by the government to deal with these controversies. (For more on the "status law," see Hungary Update, EECR, Vol. 9, Nos. 2/3, Spring/Summer 2001, and No. 4, Fall 2001.)

Among all the neighboring countries with Hungarian minorities, including Austria, Yugoslavia, Croatia, and Ukraine, only Romania and Slovakia-albeit with the largest minorities-declared that they would obstruct the implementation of the law, which came into force on January 1. In response to the continuing anger of Romania, as well as to statements from the Venice Commission that certain aspects of the law should be amended, on December 22, Hungarian Prime Minister Viktor Orban signed a memorandum of understanding with his Romanian counterpart, Adrian Nastase. The memorandum was an effort to appease Romanian claims that the law discriminated among Romanian citizens on an ethnic basis by only granting certain benefits to ethnic Hungarians in Romania. According to the memorandum, "all Romanian citizens, notwithstanding their ethnic origin, will enjoy the same conditions and treatment in the field of employment," thus allowing any Romanian citizen to benefit from the law's provision granting the right to work in Hungary for up to three months. The Hungarian government claimed that this change was not particularly significant as only ethnic Hungarians, in the main, would take advantage of the provision, adding that Romanians were already allowed a quota of 8,000 seasonal work permits annually, of which less than half had been used. Nonetheless, with this change, nonresident Hungarians will have equal but no better chances when competing not just with their Romanian compatriots but also with laborers from all over the world who can already seek work permits in Hungary.

The opposition was outraged by the memorandum: some claimed that the prime minister had totally disregarded parliament's will by making changes via an agreement with Nastase, others saw it as a betrayal of Hungarians living in Romania. (In addition, the document's legal nature and binding force are less than clear. Some suggest that it would only be binding if ratified by parliament. If ratified, it would most likely require that the bilateral basic treaty between Romania and Hungary be amended. In addition, adopting the measures outlined in the memorandum will require a wholesale revision of the laws regarding the residence and employment of foreigners in Hungary.) HSP, which supported the law in June, warned about the dangers of allowing a half million Romanian workers into the Hungarian labor market. AFD, the only party that had rejected the law, suggested the labor stipulations be amended, arguing, too, that the Hungarian labor market could not sustain these numbers. Ironically, Orban and FYD-HCP, often on the right in political debates, argued that they were championing such virtues as the free movement of labor while the opposition parties were supporting retrograde policies. According to a telephone survey, two thirds of respondents were critical of the memorandum, 50 percent thought it was a mistake, 53 percent still support the law, and 47 percent reject it entirely. According to another survey, 85 percent of the population is against Romanian labor in Hungary.

On January 15, the government found a long-unused passage in the 1991 Law on Labor Regulations, allowing it to set a ceiling on the number of work permits that can be issued to foreigners. In an attempt to assuage fears of a flood of labor from Romania, the government announced a quota of 81,320 work permits for foreigners as of January 1, some 40,000 more than were granted last year.

While the memorandum satisfied the Romanian leadership, tensions remained with Slovakia, with which no agreement has been reached yet. Making matters worse, Orban suggested, on February 13, that if Slovakia continued to complain, Hungary could reconsider its support for the country's NATO accession. (For the reaction from Bratislava, see the Slovakia Update in this issue.) The tension between the countries was further increased by Orban's comment in Brussels, later in February, suggesting that the presidential decrees of Eduard Benes, which had served as a legal basis for deporting ethnic Germans from Czechoslovakia after World War Two, be invalidated. While some commentators in Czech and Slovakian political circles regarded Orban's comments as campaign moves, the uproar prompted the Czech and Slovak ministers of culture to withdraw from an international summit of the Visegrad ministers of culture and provoked outrage in Hungary as well as across Europe.

All in all, instead of being a clever diplomatic step and a brilliant patriotic public-relations move, as originally intended, the "status law" turned out to be a nightmare for the government, bringing a loss in popularity at home and, critics claim, humiliation in international circles. (On March 4, the Washington Post published an article critical of Orban, announcing that he had been denied a visit to the White House because of his nationalist remarks.) What is more, a formerly unquestionable consensus on foreign policy, including the importance of Euro-Atlantic integration and agreed-upon policy toward Hungarians abroad, has been lost.

In addition, the controversies swirling around the law heated up the electoral campaign. In early February, HSP proposed that the memorandum of understanding between Hungary and Romania be reviewed by parliament, and AFD proposed that the law be amended. In the ensuing parliamentary debate, Orban and other government members called the opposition "traitors," prompting the opposition to walk out of parliament. Days later, on February 8, AFD requested that President Ferenc Madl mediate between the parties on the matter, because of the "uncivilized tone used in the election campaign." FYD-HCP deputy chair Laszlo Kover responded with more caustic remarks, accusing the opposition of hating their own country, among other things. The mediation meeting, which was held on February 21, was basically fruitless.

Matters seemed to break down still more as the elections neared, when Orban was unwilling to accept the invitation from Peter Medgyessy, HSP's candidate for prime minister, to participate in a debate. Observers commented on the campaign's unusually nasty tone, and, days before the first round, FYD-HCP sent out shockwaves when one party leader declared that in case the party did not win a majority, it would team up with the far-right HTLP. The party, led by Istvan Csurka, is known for its nationalist and anti-Semitic pronouncements and has not shied away from either in the campaign.

A major move, determining the campaign's structure and tone, was made just hours after the president's announcement of election day in December when the government took steps, unexpectedly, to replace the National Elections Committee (NEC). According to Art. 26.1 of the electoral law, the NEC's mandate runs until the new NEC is elected for the next general elections. The NEC is composed of a minimum of five members elected by parliament on the initiative of the interior minister. According to Art. 24.5 of the law, members must be appointed at least 51 days before the elections. The five members named by the government will be joined by additional members selected by each of the parties that managed to establish a party list shortly before the elections.

Although the government's move to appoint a new NEC was legal, even required, it nonetheless was viewed as a bit premature, since the sitting NEC's mandate ran until March. In addition, the newly elected members are said to be close to government circles. While the prior NEC members had been supported by almost all deputies, when they were first appointed, FYD-HCP did not bother to negotiate with any other parties and simply named the five members.

The NEC's composition and political orientation are not just matters of symbolism, given that it also helps control the purse strings of state-provided campaign funds. In September 2001, FYD-HCP and the Hungarian Democratic Forum entered into an election agreement according to which the candidates of the two parties would run on a joint national list. According to the law on political parties (Act No. 33 of 1989), 25 percent of campaign-finance funds are distributed among all the political parties that obtained mandates by means of their national lists in the previous elections, the other 75 percent is distributed in proportion to the number of votes received by the party and its candidates in the first round of the elections. According to NEC Decision 1/2002. (II.1.) OVB, made after the body had been reconstituted by the government, if a national list contains candidates from more than one party, all the parties are eligible for funding, with the money coming both from the 25 percent (allotted to all equally) and the 75 percent (distributed proportionally) set aside in the central budget funds. In all other respects, the parties on the joint list are treated as one organization (for example, media access for campaign purposes). With the decision of the newly constituted NEC, multiparty coalitions, such as FYD-HCP and HDF, will certainly increase their share of state funds for the electoral campaign.

At the end of December 2001, the Constitutional Court handed down a decision on freedom of speech. In May 2001, parliament adopted an amendment to the Civil Code (Law No. 4 of 1959), sponsored by Deputy Robert Repassy (FYD-HCP). Under the amendment, anyone whose rights had been infringed by an opinion in the written or electronic press can demand the publication of his or her own opinion in response (the "right to reply"). If the newspaper or broadcaster refuses to publish the reply, the person demanding the reply can go to court, and fines can be levied. The right to reply is available in addition to other remedies, such as a right to demand a correction, and civil-law damages, as provided for in the Civil Code. The president referred the matter to the Court, questioning whether the amendment infringes on the free speech and freedom of the press as protected under Art. 61 of the Constitution.

In Decision 57/2001 (XII. 5.) AB, a split Constitutional Court (four dissenting, out of 11 votes, and one concurring opinion was filed) found that the right to reply, as provided for in the amendment, is unconstitutional; at the same time the Court upheld the provision of the fine in the public interest. The decision, written by Justice Attila Harmathy, stated that the right to reply is instrumental in protecting human dignity and constitutes a permissible limitation of free speech and of the freedom of the press. However, the Court noted, the language of the amendment might give rise to uncertainties and unforeseeable consequences, and thus, in its present form, amounts to an unconstitutional limitation of the freedom of speech.

Although the Court found the measure unconstitutional, its judgment was seriously criticized. The Court did not emphasize in clear terms that while an already-existing "correction" is available only with regard to statements of alleged facts under the Civil Code, the "right to reply," as stipulated in the draft amendment, would have been available in the case of statements of opinion as well. To the extent that the bill interferes with the freedom of press and editorial freedoms, it might be argued that it constitutes a regulation concerning the press and thus pertains to a matter subject to regulation by a qualified majority, under Art. 61.3 of the Constitution. This potential ground for unconstitutionality, however, was not examined by the Court. In addition, by ruling that a "right to reply" is constitutional, the Court opens the door to further, similar measures, possibly involving the Court in highly controversial political matters. Repassy has already announced his intention to submit a new version of the proposal.

Repassy's amendment also provided for a "fine in the public interest" to be applied when the harm caused by the publication of the opinion is so grave that it cannot be remedied by just damages to the injured party. This is a fine, not damages, and is payable to the government. The amendment did not define a maximum fine, leaving this up to the individual trial court. In its decision, the Court stated that the fine is analogous to nonmaterial damages and other sanctions imposed in civil law, and there is no need to determine a maximum fee in the Civil Code. According to the Court, this lack of a ceiling does not intensify the chilling effect of the fine.

The decision was handed down at a time when ordinary courts are dealing with numerous civil and criminal defamation cases involving politicians. In a recent case, an appellate court awarded damages of 700,000 forints (approximately $2,500) against an HSP deputy for a statement concerning the minister responsible for the secret services. The case arose in connection with a heated exchange, following an interpellation addressed to Prime Minister Orban, that was reported in a major daily newspaper and was covered in a televised interview given by the MP explaining his comments. The secret-services minister claimed that the MP's statements were injurious to his reputation. In assessing the facts of the case, the trial judge did not find it relevant that the allegedly defamatory statements were made in the course of a debate in parliament, that the statements involved matters of public concern, or that the parties-an MP and a minister-were public figures themselves. Commentators expressed fear that the award of damages in the case might give rise to similar suits and also might bring about court-administered restrictions on political discourse in the name of protecting the reputation of politicians.

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