—Tímea Drinóczi, Department of Constitutional Law, Faculty of Law, University of Pécs, Hungary
On 10 November 2020, the Hungarian government submitted the Ninth Amendment to the Fundamental Law (FL) and some other laws to the parliament. These amendments have a great potential to increase the degree of exclusion affecting “others” – that can be the members of LGBTQI+ and the opposition. These amendments underscore the illiberal nature of the Hungarian regime and illustrate how this country has just sped up its authoritarianization process. During the pandemic, the nature of illiberal constitutionalism has also revealed itself: it does not do what you would expect. The most ostentatious rules are not introduced by emergency governmental decrees but have been subjects to normal-times processes in the parliament even during the constitutional emergency.
The Amendment shows the intolerance and frustration of the government and the prime minister caused by a book, A fairy tale for everyone. It is an alternative storybook portraying the heroes of e.g., traditional Hungarian folk and fairy tales as belonging to minorities such as lesbian or Roma community. The book, which, in fact, has been accompanied by a manual on how to use it in kindergartens, was publicly destroyed by a politician. While Ursula von der Leyen, in her speech on the EU 2020, emphasized her commitment to the mutual recognition of family relations in the EU, Viktor Orbán, in connection to the book, said that there are rules on homosexuals in Hungary, and the Hungarians are tolerant even against this kind of provocation, but there is a red line that no one can cross: you have to leave our children alone.
The government was quick to act and submitted changes to the constitutional notion of family. The family would not only be the basis of the survival of the nation and based on marriage or the relationship between parents and children but now its members would be clarified: the mother is a woman and the father is a man. For the government, human dignity implies a need to stress that sex is unchangeable; it is an inborn and created quality – which is threatened by Western ideologies. Therefore, each child has a right to an identity based on their sex (with which they were born). The state protects this identity; it ensures that the upbringing of the child is based on the constitutional identity and Christian culture of Hungary. Other changes are proposed, too: adopting parents can only be married couples. Adoption is allowed also for relatives and the married spouse. Adoption by single persons (including LGBTQI+ people) is not prohibited but the proposed rules of the FL have to be complied with: a single person can adopt only under exceptional circumstances when the minister grants it. When granting permission, the new constitutional rule on the child’s protection has to be strongly considered.
What has already been accomplished at the statutory level concerning the emergency, now is part of the Amendment. The government claims that the constitutional emergency regime needs to be modernized but no critical views and actual experiences on oversight have been considered. The result is the reduction of the six emergencies to three, including an additional term: acts aiming at subverting the constitutional system. It is vague enough to pose the danger that it would be used for any discontent expressed against government policies, such as a long-lasting protest at universities.
It is, however, not the only way of repressing critical and opposition views. The Amendment, by defining public money as revenue, expenditure, and demand of the state, makes it harder to get access to public information on spending public money. Another proposal would prevent political opposition from pursuing their agenda, provided that they would prevail in the next election, also in the field of higher education. The reform, against which students organized the protest, will be undone only by a two-thirds parliamentary majority. The amendment to the electoral law aims at making even a simple majority win impossible by increasing the number of single-member constituencies in which parties need to have candidates (from 27 to 50) to have their national list. Because of this extra challenge, opposition parties would need to create joint lists, which also means that the threshold for getting seats would increase from 5% to 10% (two parties) or 15% (three or more parties). This change will be enough to hinder even the possibility of a change in the political leadership of Hungary in the next election.
These exclusions combined could easily push Hungary from its illiberal constitutionalist state to the doorstep of an authoritarian turn.
Suggested citation: Tímea Drinóczi, Hungary has sped up in its sliding down the slope towards authoritarianism: the proposed Ninth Amendment and accompanying laws, Int’l J. Const. L. Blog, Nov. 21, 2020, at: http://www.iconnectblog.com/2020/11/hungary-has-sped-up-in-its-sliding-down-the-slope-towards-authoritarianism-the-proposed-ninth-amendment-and-accompanying-laws/
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