The National Assembly not only has legislative power, but it is also the sole institution with constitutive power in Hungary. (In numerous countries, for example, the two functions are separated through a specially formed constitutive assembly.) In Hungary, it is not necessary to ratify the Fundamental Law (the Hungarian constitution) by referendum, although the National Assembly can vote to put a Constitution to a referendum after it has passed it, as it can do with an amendment to the constitution (as with any other law) prior to its promulgation. However, neither citizens, nor MPs can initiate a referendum on a constitutional amendment.
In respect of its form, therefore, the Fundamental Law is also a law; in respect of its significance, it is a basic law. A two-thirds vote of all the MPs is required to pass and amend the Fundamental Law. In autumn of 1989, as an outcome of the National Roundtable Discussions*, though the constitutional reform that was approved brought about a "new constitution" in terms of content, in terms of form it actually amended Act XX of 1949. After all, enacting a new constitution was seen as a duty of the National Assembly that would be formed with the free elections. Since that time, the "continuous constitutive function" has become characteristic of Parliament. To date, the National Assembly has amended the (former) Constitution on numerous occasions, but it has been unable to push a new one until 2011. It was the 1994-98 term that presented the best opportunity in this regard. Although the governing parties had a parliamentary majority of over two thirds, they wished to elaborate the concept for a new constitution in unison with the opposition and enact it with an even larger majority. (When the National Assembly amended the Constitution in 1995, it required a four-fifths vote of the MPs to pass a parliamentary resolution on the rules for drafting the new constitution.) Because of disputes within the ruling party, however, the regulatory concept submitted by the Constitution Drafting Committee was only approved by the National Assembly on the second attempt and then it was too late. In the last year of the 1994 - 1998 term, consensus on a constitution among the factions had collapsed. After that Government programmes have not even attempted to set the goal of forging a new constitution until 2010.
After the formation of the new Parliament an ad-hoc committee was established for the preparation of the new Constitution in June 2010. This year the Parliament adopted a resolution concerning the time schedule for the preparations of the new Constitution. All parliamentary factions were invited to initiate their own constitutional bills until 15 March. Two constitutional bills were submitted. Members of the governing parliamentary factions, Fidesz and KDNP initiated their bill, named Fundamental Law of Hungary. Dr. Katalin Szili as an independent Member of Parliament (former Speaker of the House) also put forward a constitutional bill, called the Constitution of the Republic of Hungary. The general debate was held on the two bills together. Parliament has sent to detailed debate only the FIDESZ-KDNP bill, after the joint general debate. The governing parliamentary factions (FIDESZ and KDNP), the Jobbik opposition party and also independent Members of Parliament took part in the constitutional debate.Two opposition factions, namely the Hungarian Socialist Party and the LMP decided not to take part in the debate and votings at all. The Parliament adopted numerous amendments from MP's and finally adopted (with the votes of more than two thirds of the Members) the new Fundamental Law of Hungary on 18 April 2011. The Fundamental Law of Hungary entered into force on 1 January 2012.
The historical task of the regime change - to build a system of institutions for a constitutional state and a market economy, and to place the entire legal system on new foundations and continuously modify it - placed particular emphasis on legislation.
This is borne out by quantitative indicators. While 472 laws were passed by the National Assembly in the 45 years between 1945 and May 1990 - and of these 100 were passed in the year prior to the regime change, 1989-90 - a total of 2551 laws were enacted between the formation of the freely elected National Assembly on 2 May 1990 and May 2010. The National Assembly adopts an annual average of 128 laws.
In 1985, the National Assembly adopted eight laws; in 2005, it enacted 189. While Acts of Parliament made up only 3% of all laws in 1985, in 2005 that figure surpassed 16% - and this despite the fact that the number of Government and, especially, ministerial decrees had grown significantly. The Hungarian legal system today is truly built on laws. Government by decree has, since 1990, been replaced by a dominance of legislation. (Between 1949 and 1987, in Hungary, as in other socialist countries, the so-called Presidium issued decrees with legal force instead of the National Assembly. Between 1987 and 1989, this substitute sphere of authority had been restricted by the Act on Legislation. The Constitutional reform of 1989 dissolved the Presidium. The head of state has been the President of the Republic ever since; he has no legislative authority.)
Beyond the legal codification of the fundamental institutions of the rule of law and basic constitutional rights, legislation covers ever newer areas of society, the economy and living conditions. Legal harmonization with the EU entailed intensive legislative obligations and continues to do so.
The growth was revolutionary. The National Assembly turned into a lawmaking factory. However, there were serious difficulties in creating a system of resources and in resolving attendant tensions as well as in reducing the danger that legislation in quantity should be at the expense of quality. What did the National Assembly do to modernise its structure and legislative process while meeting this challenge?
Most importantly, new Standing Orders were passed in 1994. The legislative tensions of the first term (1990-94) - in addition to other forces within Parliament and without - were manifest in the weaknesses of the inherited Standing Orders. There was not an adequate legislative process in a changed situation in which the legislative activity of the MPs continued to increase dramatically both in proposing laws and in submitting hundreds of draft amendments. The screening role of the committees was lacking or did not work well. There was an uneven division in the burden of preparing the legislation among the standing committees. Due to the obligation on the part of the Constitutional Committee to debate all bills, it bore an almost untenable burden.
Besides a handful of well-qualified and productive lawyer MPs, the legislative output and knowledge of codification among the overwhelming majority of the MPs was not satisfactory. The administrative resources available to facilitate the legislative efforts and in particular the pool of experts within the factions were only in the beginning stages. Absent the readiness on the part of the two sides to come to an agreement in the first term, the new Standing Orders were not adopted.
Modern even in European terms, the 1994 Standing Orders were basically the right response to the legislative challenges. The most important changes can be summarised as follows:
The past decade's experience shows that the legislative process set down in the Standing Orders and the order for debating and passing resolutions have basically been a success. An indication of this is that, though amendments to the Standing Orders have been on the orders of the day several times, these proposals have never been aimed at amending provisions on legislation, only at making minor corrections. However, the characteristic tensions in certain periods of legislation and problems tied to the quality and endurance of laws have not abated.
The Fundamental Law expressly lists those areas that can only be regulated by cardinal Acts of Parliament. These are the so-called exclusive legislative areas of which the Fundamental Law names 32. The exclusive legislative areas render the role of the National Assembly extraordinarily strong in legislation. Parliament can adopt laws in other areas as well. It is most frequently on the basis of a Government proposal that the National Assembly expands legal regulation into ever newer areas of socio-economic relations. If a law has been passed on something, this can only be amended by another law. (Of the laws passed annually, nearly half are amendments to laws already in force.)
Legislation is a tool of the National Assembly with which it lays the groundwork for its other duties. For example, establishing and developing the system of government requires legislation (see, for example, the Fundamental Law and the Act on the Ministries). Parliament also establishes the required framework by enacting laws to monitor the Government. It regulates the duties and powers of the National Assembly's own monitoring institutions, the State Audit Office and the Commissioner for Fundamental Rights and his or her deputies. Laws lay down the obligation of the various agencies to give testimony before Parliament and to submit reports.
Laws requiring a two-thirds majority were first introduced to the Hungarian system of laws when the amendment to the Constitution entered into force on 23 October 1989. (Until then a qualified majority had only been necessary to pass or amend the Constitution.) Two-thirds majority of all the MPs was required to pass (or amend) what were termed laws with constitutional force - in addition to the Constitution.
The qualified majority rule was intended to provide guarantees. Specifically, it was to ensure broad-based parliamentary backing for the development of the key institutions of a constitutional state and for the regulation of basic rights and their protection. The need for a qualified majority also derived from the fact that since it was uncertain which political forces would win the election there was a desire to strengthen the position of the current opposition in this key area of regulation. This, however, seriously restricted the Government's room for manoeuvre.
Therefore, after the free elections, the largest ruling party (MDF) and the largest opposition party (SZDSZ) entered into a political agreement by which Parliament would amend the Constitution. (MPs from the two parties combined had the two-thirds majority required to amend the Constitution**.) The amendment did away with the concept of a law with constitutional force and cut the number of laws that require a two-thirds majority. It set down which laws require a two-thirds majority vote - though now only of those MPs present, and not of all the MPs - and it defined those laws item by item in terms of relevant state bodies and/or fundamental rights. For example, in the area of civic duties, a two-thirds majority was still required for a vote on military service, but to pass tax laws that ensure equality of sacrifice it was sufficient to have a simple majority.
During the first parliamentary term, in order to continue developing the institutions of a constitutional state and to provide the required regulation of fundamental rights, opposition factions - often after heated debates and ensuing compromises - regularly assumed the responsibility of "governance" with regard to lawmaking by adopting laws that required a two-thirds majority. Most of the fundamental laws in this area were passed by the close of the 1990s. Afterward - particularly during a period of only a slight governing majority - enacting laws with a two-thirds majority would become increasingly difficult.
Generally, it has been when ruling and opposition factions have been forced by "external" causes that they have managed to agree on constitutional amendments or on passing or amending laws that require a qualified majority - and then usually as an outcome of thorny negotiations. Specifically, when the Constitution had to be amended as a pre-condition or consequence of accession to the EU or NATO, new laws were required, for example regarding the election and legal status of MEPs and regarding cooperation between Parliament and the Government on European issues. Other laws, for example the Act on Electoral Procedure, had to be amended for that reason. However, variously constituted parliaments regularly saw the defeat of Government attempts to push through a modern Act on Legislation and to amend the Act on the Constitutional Court. Further failures included public administration reform and the electoral reform required to cut the comparatively high number of MPs as well as long overdue amendments to the Standing Orders, which are also necessary for constitutional omissions. (In December 2007, after two terms marked by failed attempts, agreement was reached on several issues and the Standing Orders were amended.)
The need for the Government (the ruling party factions) and the opposition factions to arrive at an agreement on laws that require a two-thirds majority makes it particularly clear that lawmaking is, among other things, a political endeavour. In scheduling the submission of laws, in discussing them and, indeed, in passing them, both sides are given an opportunity to use various political tactics as well. The success or failure of the agreement is also influenced by the political climate, the level of trust between the two sides, the proximity of the elections, and other circumstances The new constitution, the Fundamental Law also named 32 main themes required a two-third majority and called these, using a traditional legal term, cardinal laws.
The legislative process Block diagram
The parliamentary process of legislation and related rights and obligations are laid down in the Fundamental Law, the Act on Legislation and, in the greatest detail, the Standing Orders. (All three can be found on the National Assembly home page.)
According to the Fundamental Law, the President of the Republic, the Government, every parliamentary committee and any MP can propose a law. Proposing a law means that those authorised submit a bill to the National Assembly in written form supplied with a justification. The sponsor of the bill can withdraw it at any time up to the final vote or recall it for revision. (After a detailed debate, however, the approval of the National Assembly is also required for this.)
The majority of the bills are submitted by the Government, followed in terms of frequency by MPs and the committees. The President of the Republic has availed himself of this right only very seldom. The only example of this was in the 1990-94 term.
Beyond the right to propose laws, the Government is guaranteed a key role by the numerous powers set down in the Standing Orders. (This is later described in greater detail.)
It is worth clarifying terms. Unfortunately in parliamentary parlance there is a tendency to use two distinct terms as synonyms. These are bill and draft law, and they do not mean the same thing. A bill is considered to be the text of a law that has been submitted to the National Assembly. In contrast, in the phase prior to submission, for example in the process of creating consensus at a ministry or with interest groups the text itself is called the draft law. (Thus, the Government debates a draft law, but "it is the bill that has been put on the table in Parliament".)
A general and detailed justification must be included when submitting a bill, one which essentially facilitates parliamentary debate of the bill by making clear the sponsor's purpose and intention and by explaining the draft regulation.
The parliamentary process and method of legislation in Hungary as elsewhere are built on centuries of experience. Essential components include the preparatory role of the committees, the method of plenary debate with a division between general and specific debate, the right to make draft amendments which is due both committees and MPs, and "two-round" voting, first on the draft amendments and then on the bill as a whole.
In the course of legislation the phases of plenary and committee debate follow one another in a set order.
Preparatory phase in committee. The Speaker designates a bill for debate in one or more committees. The National Assembly is under obligation to debate bills submitted by the Government, the President of the Republic or the committees, while in the case of proposals submitted by MPs the designated committee decides whether it will be debated by the National Assembly at all. This is the point at which the item is placed on the orders of the day. If the committee has not done so, the faction can request a decision from the National Assembly. It is rare, however, for Parliament to overrule a position taken by a committee.
Every plenary debate phase is preceded by a preparatory phase in committee. The designated standing committees first establish their position on whether the bill is suitable for a general debate. After the general debate they express their opinion on the draft amendments submitted by the MPs; then after a detailed debate they express their opinion on any additional draft amendments as well. If the committees consider it necessary they can also submit draft amendments.
Plenary phase. In the course of the general debate, MPs debate the necessity of the bill, the purpose of the regulation and its principles. A draft amendment can be submitted until the close of the general debate. A sponsor cannot submit a draft amendment to his own bill. Otherwise, a draft amendment (except at the final vote) can only be submitted by a committee or an MP, but the Government is not authorised to do so. The general debate, depending on the bill, can last one or more weeks. A detailed debate covers details or changes. Here it is only the draft amendments or the parts that affect the amended bill that can be addressed with arguments for or against. The detailed debate normally ends at a plenary sitting.
Voting phase. After the detailed debate, a vote is taken on the draft amendments. It is a cardinal rule that a vote must be taken on a draft amendment that has won the support of at least one-third of the members of the designated committee. A vote on draft amendments is followed by a final vote. Draft amendments submitted by the Government, committees and MPs that avoid legislative errors are reviewed by the Constitutional Affairs Committee and it puts the draft amendments forward itself. Draft amendments are debated by MPs at the plenary sitting (this is the final debate), and then a vote is taken on the draft amendments and finally on the bill as a whole. (The order of the plenary debate and the vote are described under The Hungarian National Assembly and the order of proceedings.)
After a law has passed, the sponsor or the Legal Department prepares it for signing. The Speaker signs the law within 15 days and then sends it to the President of the Republic for promulgation. (The legislative process is clearly illustrated in the figure found in the appendix.)
The significance of the Budget Act; a distinct order of debate
The system of public finances, including the central budget, is an especially important part of governance since it is with the help of this system that the state carries out its duties.
The right to shape the budget is a classical parliamentary power, one of the cornerstones of parliamentary law.
Parliamentary approval of the annual Budget Act, the supplementary budget and especially the so-called Final Accounts Act on budget execution is not only among the most important legislative acts, but also a significant tool of parliamentary control over the Government and the entire apparatus of the state. With the Budget Act, the National Assembly authorises the Government to collect revenue specified in the central budget and to carry out spending.
In the course of the plenary and committee discussion, MPs can assess whether the Government has realistically and accurately allocated budgetary revenues, whether the planned spending was justified, efficacious, and necessary, and whether a deficit is realistic and how it can be serviced. At the same time, the budget is not simply a determination of a source of state revenues and a structure for spending; it is a significant tool of the state's economic policy. Budgetary control over resources on the financial side basically determines the room for manoeuvre available to the Government and the apparati of Government. By setting the revenue and spending, Parliament has an impact on the operating conditions of state administration and the municipalities.
Parliamentary control can be asserted in the entire process of committee and plenary debate of the budget bill and in passing it, but it is embodied in the special guarantees tied to the budget as well. For example, in the powers granted to the Government, broadly or narrowly, in the order for the parliamentary approval of mid-year redistributions and in the obligation placed on Government to give an account of temporary measures taken that diverge from the Act. The National Assembly passed this system of guarantees in 1992 and then developed it with the Public Finances Act, as amended several times. At the same time, the budget debate provides a good opportunity to evaluate policies and assess the activities of the ministries. The purpose of the Final Accounts Act is expressly for Parliament to call the Government to account for the execution of the previous year's budget.
It is due to all this that both the Government and the governing party majority, on the one hand, and the opposition, on the other - even if from different aspects - place great significance on debating and approving the Budget Act. The Public Finances Act lays down the deadline for submitting the budget bill, regulates the budgetary procedure and clarifies the guarantees that, aside from a relatively long, several-step debate period, ensure that the Act is passed in due time. The Standing Orders have developed a process of debate and of adopting resolutions that accommodates the peculiarities of the bill. There is a rule that has the effect of a guarantee according to which a budget bill cannot be debated in an urgent or an extraordinary procedure.
The order of debate for a budget bill differs from the general rules for legislation at several points. The most significant difference is that a detailed debate takes place with two distinct functions and accordingly the draft amendments are voted on in two separate phases by the National Assembly prior to the final vote. In the first detailed debate, MPs debate draft amendments that recommend redistributions between the various budgetary chapters. Thereafter, the National Assembly votes on the draft amendments (by 30 November) and decides on the principal amounts in individual chapters and in the budget as a whole: revenue, spending and the deficit. In a newly opened detailed debate, only those draft amendments can be submitted that change the provisions within individual chapters and thus these do not have an effect on the approved principal amounts.
The committee preparation for a budget bill is also unusual. In contrast to other bills, every standing committee debates it in correspondence to the chapters that fall under their scope of powers, with the exception of the Committee on Immunity. The opinions of the committees on suitability for general debate are summarised by the Budget Committee and elucidated at the plenary sitting. In addition to the committee presenter, the plenary hears the opinion of the minority (opposition). Each committee debates the draft amendments that fall under its scope of powers, but only the Budget Committee takes a position on all of them. The role of the Budget Committee is also significant because from among all the committees this is the one whose draft amendments have the greatest chance of passing.
Taking into account the State Audit Office report and opinion, participants debate the budget and final statements bills together. Debating the final statements bill generally receives less attention, except in years when there is a change of term, particularly a change in government.
During the final statements debates MPs review the responsibility of the Government (or the finance ministry) with regard to whether it took the measures it could to provide planned revenues, whether it overstepped the mark in spending and if so if this was legitimate and justified. Though approving the final statements is significant from the standpoint of public law (since it is the National Assembly that approves budget execution and thus exempts the Government from any further responsibility), due to the complexity of management in fact it is only the State Audit Office that can truly monitor the final statements as the knowledge and options available to MPs are not always sufficient. This is why it is natural for MPs to make frequent reference to the State Audit Office report in the parliamentary debate. (The unusual order of debate for budget bills is illustrated in the figure in the appendix.)
Legislation by extraordinary procedure
In the amended Standing Orders passed in April 1991, the National Assembly introduced the institution of the "extraordinary procedure". If four-fifths of the MPs present agree, a bill can be debated in an extraordinary procedure. This extraordinary procedure represents a more rapid and simple legislative process. The point is that the process of actual legislation, the debate on the draft amendments, takes place in a designated committee, not at the plenary sitting. After the committee has decided on whether to back the draft amendments that have been submitted to it, the National Assembly, after a brief debate (in which only one MP from each faction can speak), takes an immediate decision on whether or not to approve the draft amendments. The National Assembly decides in a single vote on the draft amendments backed by the committee. If the committee does not back a draft amendment, the National Assembly does not even vote on it. Through the extraordinary procedure, the time required to pass a law is reduced to one-third. Bills that require a vote of two-thirds of the MPs to pass cannot be debated in an extraordinary procedure, nor can the budget, supplementary budget or final statements bills. The National Assembly used the extraordinary procedure to deal with a total of 55 bills in the first term (as of 1991), 40 in the second term, three in the third and one in the fourth. This legislative procedure appears no longer to be needed. (Legislation discussed through the extraordinary procedure is illustrated in the figure which can be found in the appendix.)
The Government is granted rights by the Fundamental Law, the Act on Legislation and the Standing Orders through which is has a decisive role in legislation. This is considered a typical parliamentary model in Europe. This is understandable since it is through legislation that the Government can meet the majority of the goals defined in its programme, and it is legislation that provides the means to implement it.
The Government programme, which is passed at the same time as the Prime Minister is elected, represents a summary of the legislative goals, directions and regulatory areas which have essentially determined the legislators' scope of work and most important legislative tasks for that term.
To make this more specific the Government is under obligation to provide a semi-annual briefing to the National Assembly on its legislative programme for the coming sittings. A list of the laws that it wishes to submit is contained in the programme with an indication of the expected dates of submission, the length of the bills, their sponsors and the goals served by the laws (e.g. legal harmonization). This is the basis for the work of the National Assembly for that half of the year. In order to meet its legislative goals, the Government can also propose to convene an extraordinary sitting or series of sittings.
The Government has sufficient institutional support to draft bills, primarily through the ministerial departments set up for codification. According to the Legislation Act, the competent minister is responsible for these activities whereas the justice minister is responsible for the harmony of the laws, for their constitutionality and for adapting them to established law.
The Government not only has the capability of thinking in terms of the entire legal system, it also has the responsibility to do so. It must avail itself of its right to propose laws systematically in order to meet the social, political and economic objectives it has clearly set. It must be mindful that the bills should not violate the Fundamental Law and that individual laws should be passed or amended in harmony with other components of the legal system. It must carefully assess the socio-economic impact desired or brought about by the law, the further regulatory and organisational steps involved in enforcing the law, and the costs involved. A legal amendment cannot be proposed in a hasty manner, as this will create a disruption in the implementation of the law. At the same time, while analysing and evaluating the experience of implementing laws during the actual process of executing them, recommendations must be made in a timely manner to repeal or amend obsolete or ineffective laws or to enact new ones.
Of those authorised to propose laws, it was the Government that submitted the most bills between 1990 and 2006 with a total of 1860 (54.5% of the bills). The overwhelming majority of them (90%) were enacted into law compared to proposals submitted by MPs. MPs have submitted a total of 1390 bills in those 16 years, but only 20.5% of the proposals reached the discussion phase and a total of 17% of them became law. (Detailed figures per term are provided in the chart found in the appendix.)
It is the Government that submits the bills for new laws that implement significant and comprehensive regulations. According to the provisions of the Public Finances Act, it is the Government that must submit the budget and final statements bills. (A committee or MP can only submit bills to amend these laws.)
The Standing Orders also facilitate the handling of the Government's bills in many respects. For example, such bills are placed on the National Assembly's orders of the day without a special decision, that is, when they are put on the orders of the day they must be dealt with. However, a designated committee must decide in advance on whether or not to place MPs' proposals on the orders of the day. The overwhelming majority of them, as becomes clear from the figures above, are never even dealt with by Parliament. According to the Standing Orders, if several bills are submitted on the same subject at the same time or for the same law, the Government's bill takes priority over the committee's or the MP's.
The governing majority ensures that the Government's bills will be placed on the orders of the day for discussion by the National Assembly, that they will be dealt with urgently and that the draft amendments and the very bills backed by the Government will be passed by Parliament.
The role of the Government is significant even if it has not submitted a bill. If the National Assembly is discussing a bill submitted by a committee or MP, it is the Government that is first to have the floor in the debate. Prior to the vote it declares whether it backs the bill submitted by the MPs or not. The position it takes will be influential for the governing majority during the vote.
In the parliaments of certain countries, the right of MPs to propose laws is tied to a set degree of support. Only 5-15 MPs or a faction can submit a bill. In Europe, however, most parliaments guarantee each and every MP the right to propose laws and our Fundamental Law has also chosen this solution.
The right to submit a proposal is a fundamental right of MPs. The MP's draft law may be motivated by several things. The submission of bills and draft amendments represent both an expression and an indicator of the MP's activity, which is evaluated by the voters. A key role in proposals is played by the proposals of voters, municipalities and local organisations, by the involvement of interest groups, professional chambers, NGOs and lobbyists, and by the professional interests of the MPs. MPs' proposals very rarely lead to the enactment of a new law; the majority of them seek to amend or supplement certain provisions of a law in force. After the Government, MPs submit the most bills; between 1990 and 2006, that figure totalled 1400 (41% of the bills).
The role of the factions in legislation
Though the rights of MPs are the same in the National Assembly, the roles of the governing party and opposition MPs and factions and, in certain respects, the options available to them differ. This is also natural inasmuch as the decision making mechanism of parliaments is built on the majoritarian principle and the majority belongs to the governing party faction and the Government. This is why there is a much greater chance that the National Assembly will pass bills or proposals to amend bills submitted by governing party MPs rather than those submitted by their fellows in the opposition. According to the figures in the chart found in the appendix, between 1994 and 2006, whereas 35.2% of the bills submitted by governing party MPs were passed by the National Assembly, that figure for opposition MPs came to 2.7%. However, a full 44.4% of proposals submitted jointly by governing party and opposition MPs became law.
There are differences between certain terms with respect to how much the Government and governing party MPs back bills submitted by the opposition and amendments proposed by it. In certain terms, the relationship between those on opposite ends of Parliament's horseshoe-shaped seating arrangement is clearly reflected in the approach the governing side takes to opposition bills and draft amendments.
Between 1990 and 2006, altogether 2.7% of opposition MPs' bills became law. Governing party MPs demonstrated the greatest openness in this regard during the first term between 1990-94 (9.8%), whereas the fewest opposition bills (0.9%) were passed in the 1998-2002 term.
The Government and governing factions coordinate legislative goals and tasks as well as specific legislative steps to be taken through various negotiation mechanisms. The governing party faction states its opinion on the Government's semi-annual legislative programme beforehand. The factions (and the major governing party faction in particular) express an opinion on draft laws regularly or one by one before the minister submits it to a sitting of Government. They add their political and professional comments to the drafts and propose amendments. Ministers and state secretaries are invited to sittings of the faction and to meetings of the working group (cabinet), where a briefing is given on issues tied to legislation or individual drafts and there is an opportunity for debate as well. The minor governing party faction(s) generally work closely with "their own" ministers and state secretaries.
A division of labour of sorts also develops between the Government and governing party MPs as well as between their factions. If, for example, the Government does not undertake to submit a particular bill for various reasons, then governing party MPs do so. One such reason may be that concerns may crop up regarding the constitutionality of a bill and the Government thus risks losing face in a review by the Constitutional Court, yet pressing political interests favour the bill being discussed in the National Assembly. On another occasion, differences of opinion within a coalition government are resolved by having the bill submitted by MPs of the major or even the minor governing party, and not the Government.
Governing party MPs occasionally assist the ministries in legislation. If, for example, their bills have not been included in the Government's semi-annual legislative programme, governing party MPs undertake to submit any remaining proposals. If provisions from a draft law that are important to a particular ministry have been stricken in a sitting of Government, an attempt can be made, with the help of governing party MPs, to put these parts back in the law with draft amendments. This frequently happens, for example, in dealing with the budget bill. Since the Government cannot submit draft amendments to its own proposals (with the exception of the final vote), errors recognised later and the outcome of talks or necessary new parts can be voted into the law with proposals by governing party MPs.
Proposals made by governing party MPs are not only negotiated within the faction, but also frequently with the ministries. Absent Government backing, these bills are usually not even submitted. Differences of opinion arising from bills are negotiated at the level of governing party (coalition) faction leaders and more commonly at that of their deputies; negotiations cover the discussion of certain key bills, those that result in differences of opinion between the factions and the submission of draft amendments.
The role of opposition Members and factions in legislation
The part played by opposition MPs and factions in legislation and their legislative strategy and tactic proceed from the position in which the opposition or minority finds itself. For one thing, the opposition can submit bills in order to communicate that their opinion differs from that of the Government on certain key issues and that it sees it necessary to have different content or a different means of regulation. At other times it wishes to provide a resolution for tensions that have risen in the application of laws in force, to which, in their judgement, the Government has not devoted (sufficient) attention or which has not been suitably regulated by an earlier law. With the exception of certain two-thirds laws, there is simply no opportunity for the opposition faction to offer its opinion beforehand on the Government's draft laws. (This would contradict parliamentary logic.)
It is mostly the concept behind bills submitted by the Government and their regulatory solutions that are debated by opposition MPs and factions. They attempt to change these by submitting proposals to amend the chief provisions or particular parts of bills. The draft amendments intended as an alternative and aimed at a change in concept are submitted in one package. They are reviewed collectively by the committees, and the National Assembly also votes on them as a whole.
Naturally, some of the bills or draft amendments submitted by governing party and opposition MPs alike are not characterised by a political approach, but by professional considerations or technical aspects of regulation. There are bills and regulatory elements that are judged similarly by both sides and uniformly supported. This mostly happens with bills that are of a so-called professional nature.
The role of opposition MPs and factions becomes particularly significant in discussing or approving the Fundamental Law and laws that require a qualified majority (a two-thirds majority and the actual term from 2010). Without their backing, these laws would not pass since (with the exception of the 1994-98 term) governing parties have seldom enjoyed a two-thirds majority in the National Assembly since the regime change. Even before submission or in tandem with the parliamentary debate, the Government endeavours to establish the consensus required to pass a law with "multiparty" discussions. Often, a qualified majority is ensured for a joint draft amendment.
In legislation, the Standing Orders provide the opposition with guarantees that a bill should not be discussed too hastily without sufficient time or suitable preparation irrespective of what its intentions are. The vote of opposition MPs is required for an urgent debate in the National Assembly on bills that need to be passed with a qualified majority or for a discussion of any bill in an extraordinary procedure or when deviating from the Standing Orders (essentially in a "fast-track" procedure).
Both governing party and opposition factions strive to coordinate the legislative tasks of their MPs. They also set the legislative goals on each occasion. They negotiate on the submission of bills and key draft amendments. In the major factions, MPs' proposals must be negotiated beforehand in working groups. If an MP fails to do so he cannot rely on the support of the faction.
In plenary and committee debates, factions generally form a unified political front. They take a position beforehand on supporting or rejecting bills and other proposals and on other key technical issues of voting.
Factions mostly expect their members to deliver a vote that is in keeping with the faction's position. The smaller the Government majority, the greater the discipline - out of necessity. Even with legislation, there is generally greater factional discipline in the governing party factions than in the opposition factions. Factional discipline is primarily tied to participation in the vote. An unexcused absence, particularly for a vote on a law that is deemed significant, can entail sanctions and fines set down in the faction rules. Factions expect their members to support their own proposals; governing party MPs are also expected to back Government proposals. Factions prepare for a vote and facilitate the assertion of the faction's position in chamber in a variety of ways. (They distribute written instructions to MPs on what the faction's position is on the different draft amendments or they issue a clearly audible "word of command" in chamber to indicate to MPs how they should vote.)
Standing committees have a key role in legislation. The most important rights of the committees pursuant to the Fundamental Law, the Legislation Act and provisions of the Standing Orders can be summarised as follows:
Since the role of the temporary committees is fundamentally different, it is the standing committees that take part in legislation.
The committees propose bills relatively seldom. In the past 16 years, they have submitted a total of 129 bills (3.8% of the total number of bills) and of those 75 (59% of them) have been adopted by the National Assembly. The majority of the committee proposals actually deal with the approval of draft resolutions, mostly briefings and reports, and not laws. Committees very rarely propose the enactment of new laws.
Committee proposals rather have a sort of "complementary" role in legislation. There are certain regulatory areas in which the Government cannot submit a bill or in which it would be "inappropriate". For example, the fact that it is the Budget Committee that must submit bills on the budget and final accounts for the National Radio and Television Body is designed to guarantee this media watchdog its independence from the Government. It is the Constitutional Committee that has traditionally submitted the bills on the legal status of MPs, on their remuneration, cost reimbursements and benefits and on amendments to them. Other committee legislative proposals are mostly aimed at effecting minor amendments to laws in force.
A key task of the committees in legislation is to screen bills and draft amendments submitted by MPs and thus reduce the debate and decision making load on the National Assembly. The task of each designated committee is to decide on whether or not MPs' bills should be placed on the orders of the day. A total of 37% of the 1096 proposals submitted by MPs in the past three terms were placed on the orders of the day on the decision of the committees. In screening draft amendments, designated committees have an important power: if one-third of the members present do not support the proposal, then the National Assembly will not even vote on it. Importantly, the committees orientate the National Assembly in its voting depending on whether or not they have supported certain draft amendments and associated draft amendments. (After all, the committees have a governing party majority just as the National Assembly does.) In the first phase, designated committees judge all draft amendments whereas the other committees deal with those that fall under their scope of duties. They too can submit draft amendments; for example they can improve an MP's draft amendment or undertake to do so at the initiative of the ministries. It briefs the National Assembly in its recommendation on the discussion of the draft amendments and associated draft amendments. These recommendations serve as the basis for a detailed debate and also facilitate preparation for a vote.
The Constitutional Committee has a particularly important and special role among the committees. It discussed all the bills in the first term, but as of 1994 it has not been this committee that debates most bills. Through its scope of duties, however, it is still of key importance in legislation. If the Constitutional Committee has not been designated by the Speaker to discuss a bill, it may still be necessary for it to become involved. At the request of the Speaker or the designated committee or at its own initiative, it submits a recommendation and draft amendment, if the bill is not harmonized with the Fundamental Law, or with the legal system in force, if its provisions are in conflict or if problems arise with the wording or grammar of the law. It is this committee that is designated by the Standing Orders to prepare the final debate and the final vote, that is to correct any errors made in the legislative process. In discussing the budget and final accounts bill, this task is carried out in tandem with the Budget Committee. In the event of a debate, it is the Constitutional Committee that decides on the issue of whether a qualified majority is required in the vote on the bill or on its individual provisions. The Constitutional Committee always discusses laws that have been rejected or vetoed by the President of the Republic or those that have been deemed unconstitutional by the Constitutional Court. Particularly in the latter case, it is this committee that submits the required draft amendment. The required expertise is guaranteed by the fact that nearly every member of the committee is a lawyer and many of them have worked on the committee over several terms. It is mainly the work of this committee in which the Legal Department assists.
The President of the Republic can submit a bill to the National Assembly, though this happens very seldom. President Árpád Göncz availed himself of this option on three occasions between 1990 and 1993. The most famous among them was the amnesty bill following a general strike known as the "taxi drivers' blockade". This was passed after a heated debate in the National Assembly. However, it rejected the bill on the appointment of the President of the Hungarian News Agency, and the third bill was withdrawn by the President of the Republic as there was no longer any justification for it. Since 1993, no President has submitted a bill to the National Assembly.
The powers of the head of state as regards legislation are to sign and promulgate laws. A law passed by the National Assembly is signed by the Speaker and then sent without delay to the President for promulgation. The President signs it within 15 days (within five days in urgent cases) and arranges to have it promulgated in the Hungarian Official Journal.
The signatures of the Speaker and the President represent different responsibilities and functions. With her signature, the Speaker, as head of the legislative body, certifies that the text of the law forwarded for promulgation is precisely what the National Assembly has passed. The President, on the other hand, does not review the authenticity of the text of the law; it is the content and its harmony with the Fundamental Law that he examines prior to promulgation. His signature indicates that there is no constitutional or any other concern with the law.
After all, if the President does not agree with the law (or some provision of it), he returns it to the National Assembly with his comments. To date, this has happened a total of eleven times. The President first returned a law to the National Assembly for consideration in 1997. That law amended the Act on the Legal Status of Members, essentially expanding the rules on incompatibility. After a debate, the National Assembly voted for the law again without any changes. At such times, the National Assembly discusses the law again in an abbreviated procedure (which consists of a final debate and a final vote) and then decides once more whether to approve it or not and with or without amendments. The President is then under obligation to promulgate the newly passed law. On the other hand, if he deems the law or any of its provisions unconstitutional, he sends it to the Constitutional Court. Since 1990, the President has turned to the Constitutional Court with twenty-one laws. If the Constitutional Court declares the law or any of its provisions null and void due to unconstitutionality, the President likewise returns it to the National Assembly. The National Assembly then remedies the violation of the Fundamental Law with amendments in an abbreviated procedure similar to the previous one. If this is not possible, the sponsor, with the approval of the National Assembly, rescinds the law. (Detailed figures on the President's role in legislation can be found in the chart within the appendix.)
As in other modern constitutional states, the Constitutional Court, which has been in operation since 1 January 1990, is the supreme institution for the protection of the Constitution and from 2012 the new constitution, the Fundamental Law. Unlike with other courts, its task is not to rule on legal disputes or to issue a judgement, but to protect the Fundamental Law and the basic rights it guarantees. Its basic task is to guarantee the constitutional operation of the state organisation; toward that end it reviews laws for constitutionality, and if it judges laws (or any of their provisions) to be unconstitutional it declares them to be null and void. It is also due to this sphere of authority that the Hungarian Constitutional Court has such great power in the system of state organisation and that the constitutional system grants it such a great degree of independence.
In respect of legislation, the Constitutional Court has the following powers:
Since 1997, it has only been the President of the Republic that can request an a priori review for unconstitutionality before a law is promulgated. Previously, this could be proposed by the National Assembly, a standing committee, or 50 MPs. The powers of the President in this regard have been described previously.
The most frequent task of the Constitutional Court is to make an a posteriori review for the unconstitutionality of laws that have already been promulgated. Anyone can initiate this process. On occasion even opposition MPs turn to the Constitutional Court with such proposals. In this process the Constitutional Court has wide-ranging authority because it can declare the law null and void in whole or in part. (The chart in the appendix provides an overview of how often this has taken place since 1990.) A law can be declared null and void with immediate effect, but if dictated by legal security the Constitutional Court sets a later date. This provides the National Assembly with an opportunity to enact a new law to replace the unconstitutional one.
Unconstitutionality can result if the National Assembly omits a legislative task. Anyone, and therefore any MP, can propose that this be determined, though MPs also have the option of proposing laws. If the Constitutional Court rules that there is a case of unconstitutionality manifested through omission, it sets a deadline for the termination of the omission. Upon receiving notice, the National Assembly is under obligation to carry out its legislative duty. This duty is not tied to any sanction, but a delay or postponement in terminating the omission tarnishes the reputation of the National Assembly. Nevertheless, if the omission affects a two-thirds law, the National Assembly sometimes goes over the deadline.
It also falls under the scope of duties of the Constitutional Court to review whether or not a rule (or indeed a law) conflicts with international treaties. The right to initiate such a review can only be exercised by the following: the National Assembly, the standing committees, any MP, the President of the Republic, the Government or any member of it, the President of the State Audit Office, the President of the Supreme Court and the Prosecutor General. A ruling of the Constitutional Court can also require the National Assembly to enact a law.
The National Assembly also has the option to send the Standing Orders to the Constitutional Court before it is approved for constitutional review. At this point, provisions that are causes for concern must be indicated. The National Assembly has not availed itself of this option in the past 16 years. However, an a posteriori control of norms (ad hoc at the initiative of an opposition MP) has led to the same result on three occasions. The Constitutional Court has found certain provisions (for example the rules on forming factions and committees) unconstitutional and declared them null and void. In other cases (for example with regard to determining the order of sittings and regulating the timeframe for speaking), it has ruled that there was an unconstitutional omission and placed the National Assembly under obligation to harmonize the rules with the Fundamental Law by a set deadline. Attempts to amend the Standing Orders to that end, however, have ended in failure in the past two terms due to a lack of agreement between the two sides. After all, to pass or amend the Standing Orders it is necessary to have a qualified majority or a two-thirds vote of the MPs present.
As a legislative institution the National Assembly does not only enact laws; it also passes normative resolutions. A resolution of the National Assembly is not law, i.e. it cannot grant rights to citizens and cannot impose obligations on them. A resolution is viewed by the Legislation Act as an alternative legal means of state direction, which not only the National Assembly may use, but also the Government, Government commissions and municipalities. In a resolution, these bodies can regulate the duties of the institutions under their direction and their own operation as well as determining plans within their scope of duties.
The National Assembly is typically a lawmaking institution, but it exercises certain powers and carries out certain duties by passing resolutions. The overwhelming majority of parliamentary resolutions are actually not normative; they are specific resolutions on the elections of various officers or committee members or on the approval of briefings. Most normative parliamentary resolutions cover the approval of various, generally longer-term conceptions, programmes and strategies. (Examples include parliamentary resolutions on the National Environmental Protection Programme, the National Health Development Programme, the National Regional Development Conception, the national strategy for crime prevention in society and long-term development trends for the Hungarian Army.) In its resolutions, the National Assembly requests that the Government should, e.g. develop and submit bills or conceptions. At the same time, the National Assembly sometimes sets tasks for the Government or sets down measures it considers the Government must take.
The National Assembly regulates its own organisation and operation in a parliamentary resolution, the Standing Orders.
The National Assembly passed a total of 1691 resolutions in the four terms between 1990 and 2006. (For data on each parliamentary term, see the chart on The legislation of the Hungarian National Assembly 1990-2006.)
Laws and provisions of law declared...
* The National Roundtable Discussions were held from June 1989 until an agreement was reached on 18 September of that year. It included the communist party that had ruled for 40 years (the Hungarian Socialist Workers' Party, or MSZMP); the Opposition Roundtable, consisting of opposition parties that had been forming as of 1988; and the so-called 'third side', made up of representatives of the various civil society organisations. Its most important outcome was to elaborate constitutional reform, the new election law, the law on parties, and the law on the Constitutional Court, which (together with other laws) laid the groundwork for free elections and a peaceful regime change. Since the MSZMP were in the majority in the National Assembly, the MSZMP Government had to guarantee that Parliament would pass these laws.
**In exchange for this amendment, which eased the task of governing, Parliament voted for the SZDSZ nominee, Árpád Göncz, as President of the Republic.