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Oct 19, 2016

Proposed Seventh Amendment to the Fundamental Law [full text in English]

In 2015, a migratory wave of unforeseen proportions reached the borders of Europe. One and a half million people have crossed Schengen borders illegally. The cultural and economic integration of the masses of newcomers has made Europe face an unsolvable task, and uncontrolled border-crossings have significantly increased the danger of terror.

Seventh Amendment to the Fundamental Law

(DD MM 2016)

The National Assembly as constituent power, acting within its competence defined in Article 1(2)a) of the Fundamental Law, amends the Fundamental Law as follows:

Article 1

After the text “We honour the achievements of our historical constitution and we honour the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation.”, the National Avowal shall be supplemented by the following text:

“We hold that the protection of our constitutional identity rooted in the historical constitution is a fundamental obligation of the State.”

Article 2

Article E)(2) of the Fundamental Law shall be replaced by the following provision:

“(2) With a view to participating in the European Union as a Member State and on the basis of an international treaty, Hungary may, to the extent necessary to exercise the rights and fulfil the obligations deriving from the Founding Treaties, exercise some of its competences set out in the Fundamental Law jointly with other Member States, through the institutions of the European Union. Exercise of competences under this paragraph shall comply with the fundamental rights and freedoms provided for in the Fundamental Law and shall not limit Hungary’s inalienable sovereignty over its territorial integrity, population, form of government and state structure.”

Article 3

Article R) of the Fundamental Law shall be supplemented by the following paragraph (4):

“(4) The protection of the constitutional identity of Hungary shall be an obligation of every organ of the State.”

Article 4

(1) Article XIV(1) to (3) of the Fundamental Law shall be replaced by the following provisions:

“(1) Foreign population shall not be settled in the territory of Hungary. Foreign citizens – not including citizens of the countries of the European Economic Area – may live in the territory of Hungary under an application individually examined by the Hungarian authorities in their proceedings as regulated by an Act adopted by the National Assembly.

(2) Hungarian citizens shall not be expelled from the territory of Hungary and may return from abroad at any time. Foreigners staying in the territory of Hungary may only be expelled under a lawful decision. Collective expulsion shall be prohibited.

(3) No one shall be expelled or extradited to a State where there is a risk that he or she would be sentenced to death, tortured or subjected to other inhuman treatment or punishment.”

(2) Article XIV of the Fundamental Law shall be supplemented by the following paragraph (4):

“(4) Hungary shall, upon request, grant asylum to non-Hungarian citizens being persecuted or having a well-founded fear of persecution in their native country or in the country of their usual residence for reasons of race, nationality, membership of a particular social group, religious, political belief, if they do not receive protection from their country of origin or from any other country.”

Article 5

(1) This Amendment to the Fundamental Law shall enter into force on the day following its promulgation.

(2) The National Assembly shall adopt this Amendment to the Fundamental Law on the basis of Article 1(2)a) and Article S)(2) of the Fundamental Law.

(3) The justification of this Amendment to the Fundamental Law shall be published simultaneously with the promulgation, while the consolidated text of the Fundamental Law shall be published in the official gazette forthwith after the entry into force of this Amendment to the Fundamental Law.

Justification

In 2015, a migratory wave of unforeseen proportions reached the borders of Europe. One and a half million people have crossed Schengen borders illegally. The cultural and economic integration of the masses of newcomers has made Europe face an unsolvable task, and uncontrolled border-crossings have significantly increased the danger of terror.

The European Union tried to distribute those arriving into Europe among the Member States through mandatory resettlement quotas. For the first time in Europe, the Government of Hungary initiated a referendum on mandatory settlement.

On the 2 October referendum, 98 percent of voters casting valid votes said no to forced resettlement. This created a new unity for Hungary. This new unity stands above the parties, and considers the protection of Hungary’s sovereignty and the rejection of mandatory resettlement quotas a national cause.

The unanimous will of this 98 percent obliges us and it is the task of the National Assembly to give it the force of public law.

This amendment rests on a 98 percent majority, on the will of 3 million 300 thousand people. It is more than any of the parties’ electoral bases in the twenty-five years that have passed since the transition.

The amendment of the Fundamental Law clearly says the message of the referendum out loud: with the exception of citizens from the countries of the European Economic Area, one can only live in Hungary based on a decision reached in proceedings under an Act adopted by the Hungarian National Assembly. It clearly prohibits the resettlement of a foreign population. It determines unambiguously that the sovereignty of Hungary shall not be limited, and its inalienable right of jurisdiction over its of its territorial integrity and population cannot be brought into question.

Detailed Justification

for Article 1

The Legislative Proposal contains an amendment to the National Avowal, which declares that protecting the constitutional identity of Hungary, which originates in its historical constitution, shall be a fundamental duty of the state.

for Article 2

The European Union is such a community of law and values, which respects the constitutional identity of its Member States; their autonomous right to decide on the most fundamental questions regarding their statehood. Article 4(2) of the Treaty on European Union specifically indicates that the Union respects the principle of the equality of Member States and the national identity of the Member States, inherent in their fundamental structures, political and constitutional. The definition of the national identity of a Member State is mutatis mutandis the most fundamental and indubitable right of the given state and of its constituent political community, which is primarily, but not exclusively, represented in its constitution. It shall therefore be appropriate for a political community of a state to define certain elements of the state’s national identity in the constitution through the constitutional legislator. The interpretation of the relationship of national and Union law in light of the constitutional identity of the respective states is constantly on the agenda of the constitutional courts of European countries. No state choices of value in terms of policy and society represented by the constitution can be brought into question under EU law, if these are considered significant as regards the national and political identity of the respective Member States. The proposed amendment to Article E) serves the purpose of concretisation for the “to the extent necessary” turn of the current paragraph (2), giving it content, which essentially means a clarification for the exercise of competences by the Union.

for Article 3

In accordance with the amendment of the National Avowal, amendment to Article R) would clarify that the protection of the constitutional identity shall be an obligation for every organ of the state.

for Article 4

The amendment of Article XIV sets forth that foreign population shall not be settled in Hungary. This is a constitutional embodiment of the referendum question, which clearly declares that no decision of other states or supranational organisations can result in the settlement of persons belonging to a foreign population. In addition, it sets forth that foreign citizens may only live in the territory of Hungary based on an individual application examined by Hungarian authorities in their proceedings regulated by an Act adopted by the National Assembly. The rule, however, does not concern citizens from the countries of the European Economic Area. In their case, a declaration shall be sufficient. The new first paragraph of Article XIV is the constitutional phrasing of the referendum question in a way making it clear, that settlement shall only occur in respecting the fundamental rights of the applicants, upon applications submitted based on their free will, and individually decided by the organs of the Hungarian state. With this, Hungary, at the same time, includes a principle also accepted in international customary law into the constitution, also evidenced by state practice – simultaneously set forth in the Draft articles on the expulsion of aliens by the International Law Commission of the United Nations – namely: States shall have the right to set conditions, based on which they shall allow aliens entry into their countries. From this it shall be clear that state sovereignty immanently includes the inalienable right to allow entry of foreign nationals into the territory of the state.

for Article 5

This Article contains the provision of the Legislative Proposal regulating entry into force, and provides for the publication of the justification for the present Amendment to the Fundamental Law and of the consolidated text of the Fundamental Law following its amendment. Publication of the justification shall be without prejudice to the rule contained in Article R)(3) of the Fundamental Law concerning the interpretation of the Fundamen