Hungary: New Constitution Entrenches Ius Sanguinis and Keeps Open the Issue of Non-Resident Voting Rights

Posted on

The new Hungarian constitution, approved by the central right government with a two-thirds majority on 18 April, was signed into law by President Pál Schmitt on 25 April. The date has a dual symbolic message. Easter Monday was chosen for its religious significance, but it also marks the first anniversary of the establishment of the Orbán government. The Socialists (MSZP) and the new liberal party Politics Can Be Different (LMP) boycotted the parliamentary debates and the vote, while the far right Jobbik voted against. The new constitution comes into force on 1 January 2012.
According to the governing coalition of FIDESZ and the Christian Democrats, the new constitution is to complete the democratic transition by replacing the 1949 communist Basic Law that, with amendments, was kept provisionally in 1989 as part of the compromise between the ruling communist elites and the democratic opposition. The governing central right alliance claims that the new constitution expresses the common values of the majority of Hungarians, while the opposition parties consider the new constitution illegitimate. MSZP and LMP claim that it is a party constitution of the parliamentary majority only, and fears that it will weaken democratic institutions, curb freedom of expression and restrict social rights [1].
The symbolic message of the Basic Law has also been widely criticised both in Hungary [2] and in the international media [3]. The preamble (“National Credo”), while respecting Hungary’s different religious groups, acknowledges the constitutive role of Christianity in preserving the nation and states that the Holy Crown embodies Hungarian constitutional continuity.
Closer to citizenship legislation, the new constitution endorses an antiquated notion of the nation. The text refers to ‘nation’ in an ethnic sense. As the preamble states, Hungary promises to protect the intellectual and spiritual unity of the nation torn apart by the storms of the past century. The next sentence (taken with some changes from the 1949 constitution) notes that the nationalities living with us are constituent parts of the political community and the state – but it is not mentioned whether they are part of the Hungarian nation. While the 1949 constitution also stated that Hungary bears responsibility for the fate of Hungarians abroad, the new constitution adds that this provision follows from the principle of a united Hungarian nation (Art. D.).
As a novelty, the new constitution introduces a new article on the acquisition of Hungarian citizenship. Article G. states that descendants of Hungarian citizens become citizens by birth and adds that other modes of acquisition can be specified by the Nationality Act. Though the new article is in line with provisions of the current Act on Citizenship, the inclusion of the principle of ius sanguinis in the supreme law without mentioning other modes of acquisition has a clear symbolic message.
Although the long-debated question whether non-resident Hungarians should get voting rights is not directly addressed by the text, the new phrasing opens up the possibility to enfranchise transborder and expatriate Hungarians, who since last year have the option to apply for citizenship without permanent residence in Hungary. While according to the 1949 constitution residency was required to vote, the new constitution states that all adult Hungarians should have the right to vote and to stand as candidates in parliamentary and European Parliamentary elections (Art. XXIII. para 1.). This may mean that the residency requirement will be removed from the eligibility criteria for voting by a future modification of the Act on Voting Rights. But this issue is left open by the constitution. In fact, paragraph 4 specifies that the Act on Voting Rights may require that citizens who want to practice full voting rights may have to reside in Hungary or meet other criteria. This wording is in line with earlier leaked plans according to which the new Act on Voting Rights (to be debated and voted later this year) may offer non-resident citizens only active voting rights in national elections and that they may only vote for the party lists, but not for candidates running for single-seat constituencies.
As of now, no official translation of the new constitution is available in languages other than Hungarian and it is uncertain when there will be one. The English translation of the draft version of the Basic Law [4] submitted by the government to the Council of Europe and the European Parliament was criticised by human rights NGOs and the opposition parties for omitting parts that may violate European norms [5]. Among others, the Hungarian government’s translation of the draft sent to Brussels wrongly claimed that voting rights would presuppose Hungarian residence.
The Hungarian text of the new supreme law is available here: http://www.mkogy.hu/irom39/02627/02627-0187.pdf
http://www.eurotopics.net/en/archiv/calender/NEWSLETTER-2011-04-19-Orban-consolidates-power-base;
http://www.spiegel.de/international/europe/0,1518,757971,00.html;