The legal status of Members of the National Assembly

Members of the National Assembly

The legal status, essential rights and obligations of Members of the National Assembly were formerly subject to the Constitution and have been governed by the Fundamental Law since 2012. The provisions of Act XXXVI of 2012 on the National Assembly regulate the legal status and remuneration of Members.

The legal status of Members of the National Assembly

The Fundamental Law establishes that: "The people shall exercise their power through their elected representatives or, in exceptional cases, in a direct manner."

As in other countries, the free mandate is the basis for the legal status of Members in Hungary. Once elected, Members become legally independent of their electors. They may not be instructed, called to account or recalled because of their actions or the way they vote. They are at liberty to shape their views in Parliament based on their conscience and convictions and to cast their votes accordingly.

Societal control over Members of Parliament is guaranteed by the contact maintained with voters and by the relative brevity of the term, both of which drive Members to prove continuously that they are worthy of their office. The relationship between Members and their voters is political by its nature. However, it is only in subsequent elections that a Member is put to the test in terms of voter confidence or the lack thereof.

The vast majority of Members join a party's parliamentary group of their own free will. They are also awarded mandates as candidates of one or more parties. They represent the programme of their party in the National Assembly. In practical terms of parliamentary work, Members depend on their parliamentary group in many respects, for instance, in the office a Members may occupy in the National Assembly and in the committees they join and the duties they are assigned. The "party principle" determines the political structure of the National Assembly as well as the activities of Members and the way they perceive their role. However, a Member who resigns or is expelled from a parliamentary group need not renounce his or her mandate and cannot legally be forced to do so.

Although Members may have won their mandates in different ways, such as in an individual constituency or as candidates on a list nominated by a party or a nationality, their rights and obligations are identical.

The majority of rights apply to every Member (e.g. the right to propose legislation, the right to interpellation and the right to take the floor during a debate), but there are certain rights that Members may only exercise collectively. Forming a parliamentary group requires at least three or five representatives. The Rules of Procedure require that motions to modify the orders of the day, to close a debate or to set a minimum timeframe be put forward by at least five Members. A common threshold is one-fifth of the Members. That limit applies, for instance, to motions of no confidence and proposals seeking to create a committee of inquiry, to convening an extraordinary session or sitting and to proposing a policy debate.

Members' rights and obligations can be divided into two fundamental groups. The first group covers the rights and obligations relating to the duties and operation of the National Assembly, including the right to be present and to speak at a plenary, which is based on Members' freedom of speech, the right to propose legislation and to make a motion, the right to vote, the right to act as an officer of Parliament, the right to participate in committees, the right to form a parliamentary group and the right to information.

The second group covers rights and obligations that ensure undisturbed conditions for working in Parliament, including immunity, conflict of interests and the right to various forms of remuneration.

Playing an active role in the work of the National Assembly and promoting its operation are among a Member's fundamental rights and obligations. Uncertified absence from the sittings of Parliament above a certain limit (over one third of voting sessions) is penalised by proportionately reducing the fee payable to the Member.

Members exercise their rights in person (e.g. voting), except in committee meetings, where absent Members may authorise another member of the committee to act as a proxy.

Importantly, Members are expected to maintain regular contact with their voters, to take their opinion into consideration and to represent their interests to the extent possible. To that effect, Members participate in community fora, hold consulting hours and respond by post or email to inquiries received from voters.

A Member's mandate commences when he or she is elected, but it is only complete with the certification of the mandate and the oath taken before the National Assembly, whereupon Members may exercise the rights inuring to them (and may vote, for instance). Another condition precedent requires Members to make a declaration of property and to eliminate any conflict of interest.

Members' rights to access to information

Members of the National Assembly can only perform their duties effectively if they stay informed and avail themselves of the facts and figures required for their work. The Act on the National Assembly provides two means of achieving that end. First, the Act obliges state institutions to support Members in performing their duties by supplying them with the information they require. Second, the Act confers upon Members the right to gain access to all public institutions, their documents and publications and related services. Interpellations and questions are two important vehicles enshrined in the Fundamental Law to ensure Members access to information. The obligation of the addressee to respond to an interpellation or question guarantees that this right will be enforced effectively.

Immunity

To ensure that Members can perform their duties unimpeded, they are granted the right to immunity. Immunity evolved in response to the need to be protected from unfounded persecution and harassment by authorities to which a Member is (or may be) exposed in his or her activities as a Member.

Immunity takes two forms: Members enjoy immunity in so far as they are not liable and in so far that they are inviolable. Freedom of speech is warranted by the prohibition to establish the liability of a current or former Member of Parliament for facts or views expressed in connection with his or her mandate while a Member (lack of liability). However, immunity does not apply to liability under civil law, proceedings by public authorities, and crimes, such as public incitement, violation of national symbols, public denial of crimes committed by national socialist and communist regimes, and misuse of classified information.

Under law, Members shall not be detained unless caught in the act, no criminal or misdemeanour proceedings shall be brought and no forceful measures under the act on criminal procedure may be applied against a Member without the prior approval of the National Assembly (i.e. after the suspension of immunity) (inviolability). Members may not waive their right to immunity unless subject to a proceeding for a minor offence. This is incumbent upon all Members. Parliament may suspend the immunity of a Member, provided two-thirds of the Members in attendance vote in favour.

In previous parliamentary cycles, proceedings were mostly initiated against Members by plaintiffs for slander or libel. However, the National Assembly tended not to suspend the immunity of the Member involved in such cases, citing rulings by the Constitutional Court on freedom of opinion. Conversely, the National Assembly tended to honour requests made by the Prosecutor General in public cases by suspending the immunity of the Member. Even when Parliament upholds a Member's immunity, the case will still not lapse, as the right to immunity is not a prerogative. When a Member's mandate expires, he or she is no longer protected by immunity (or inviolability), a criminal proceeding may be launched and the Member can be punished. However, Members cannot be held to account for their statements and votes, and immunity protects Members from subsequent retaliation.

Conflict of interest

The Act on the National Assembly and other laws set forth conflict of interest provisions. A conflict of interest means that a Member may not fill certain positions and may not engage in certain activities during his or her mandate. The idea behind conflict of interest regulations is to ensure independence for legislators, prevent undesirable influence and forestall the intertwining of various offices and engagements.

The Act on the National Assembly lays down more stringent conflict of interest rules applicable from the beginning of the new cycle. A Member's mandate is incompatible with any other office or engagement in state or local government or in a business organisation. A Member may not be employed in another paid job and may not accept remuneration under a contract of employment except as a researcher, teacher, artist, proof-reader or editor or in activities subject to intellectual property rights.

The provisions on "incompatible offices" in the Act on the National Assembly no longer regulate the offices that are not compatible with Member status; instead, they list a limited number of exceptions. A Member may hold a position in government (Prime Minister, minister, minister of state etc). After the 2014 municipal elections, a Member may not be a member of a municipal assembly nor hold office in local government, such as the office of mayor. The Act lays down tighter rules in respect of conflicts of interest in business.

The Act on the National Assembly also defines cases in which a Member is discredited and becomes unworthy of his or her status as a Member, such as loss of the right to vote due to deprivation of the right to participate in public affairs or to imprisonment.

The Act also lists activities that are incompatible with the status of a Member. Members may not act as legal representatives of the state, a central budgetary entity or institution of public administration, or a state-owned business organisation, they may not invoke their status as a Member in professional or business matters, nor may they use confidential information in an unauthorised manner.

Members are required to eliminate a conflict of interest within a certain period of time, and the National Assembly will withdraw their mandate unless they do so.

Obligations to report other offices and to declare property

Under new regulations, Members of the National Assembly may only hold another office in exceptional cases, such as the office of mayor, or act as a member or officer of a non-governmental organisation, foundation or public body and must report these incompatible positions to the Speaker.

Members are subject to additional reporting requirements intended to ensure the transparency of a Member's property, income and business interests. The same obligation applies to the Member's spouse and any children that share the same household with the Member. Wilfully neglecting to make a declaration of property and the deliberate disclosure of false information are tantamount to a conflict of interest and the Member will thus lose his or her mandate. Declarations of property filed by Members of Parliament must be published. Declarations of property made since 2005 are posted for public access on the National Assembly website.

Remuneration for Members of Parliament

The National Assembly has followed suit with other parliaments in that an Act has ensured the financial independence of Members of Parliament by regulating their remuneration and other benefits since 1990.

Effective as of the constituent sitting of the new Parliament, the Act on the National Assembly has fundamentally re-shaped the remuneration system for Members. Below is a summary of major changes:

  • The monthly fee payable to a Member of Parliament will be identical to the monthly salary of a deputy minister of state, but no extra allowance will be paid for committee membership;
  • Members will receive fuel cards for transport (the allowance for remote constituencies will be cancelled);
  • Members with no place of residence of their own in Budapest are entitled to use a residence with no more than 50 sq m of floor space (the housing benefit will be cancelled);
  • The Office of the National Assembly must provide each Member with a properly equipped office (in or outside Budapest).

The operating conditions for Members and parliamentary groups have been improving for the past 24 years and increasingly meet the requirements of a modern parliament.