Petition
of the
“To Protect Our Profession” Demonstration Committee
Two members of the governing party have submitted a proposal (proposal no. T/3199) to the Parliament to amend the Constitution of the Republic of Hungary.
Article 70/E of the Constitution now includes the following:
„§70/E (1) Citizens of the Republic of Hungary shall have the right to social security; in the case of elderness, sickness, disability, being widowed or orphaned and in the case of unemployment through no fault of their own, they shall be entitled to the assistance necessary for their subsistence.
(2) The Republic of Hungary shall implement the right to social support through the social insurance system and the system of social institutions.”.
The Proposal suggest to include the following section (3) in the Article:
„(3) The right to social support, in the case of pensions, shall be granted to persons who have reached the general old-age retirement age, and who fulfil the legal conditions related to pensions. Law may grant pensions to persons who have not yet reached the old-age retirement age. Pensions that started to be disbursed before the old-age retirement age may be reduced and transformed into social support, or, in case of ability to work, stopped, as set by the law.”
The Hungarian Constitutional Court have declared in several decisions that, within the constitutional framework, the legislators shall be free to create institutes and supports related to social support. But certain constitutional frameworks must be obeyed:
“The Constitutional Court declared that legal certainty, as the most significant conceptual element and theoretical basis for the protection of acquired rights, is of particular significance for the stability of welfare systems. To support this statement the Constitutional Court stressed that the benefits and their related expectations could not be substantially altered overnight or without sufficient reason. Special reasons were needed for changes to be instigated without a transition period.” [Decision of the Constitutional Court 43/1995. (VI. 30.); Decision of the Constitutional Court 103/2010. (VI.10.).]
“Denying acquired rights shall violate the principle of legal certainty. This principle is a significant element of the constitutional state. […] According to the Constitution, social security is a tool in realising the right to social support. Thus social security must guarantee acquired rights, as they are connected to the constitutional right to social support.”.[Decision of the Constitutional Court 26/1993. (II. 29.), 1993, 196, 199; Decision of the Constitutional Court 103/2010. (VI.10.).]
It is known that the Government is planning to take away the possibility of early retirement from all Hungarian citizens, including members of the armed forces, the police and the fire service. This would concern a total of hundreds of thousands persons. The proposal clearly states that previously granted pensions could be reduced and transformed into social support, or, in case of ability to work, stopped, as set by the law.
This rule is undoubtedly contradictory to the requirements set by the Constitutional Court and required by the sense of the constitutional state and the European democratic states. Furthermore, it is contradictory to European legal practices.
It must be emphasized that there is no constitutionally acceptable reason for this amendment. We do not challenge the right of the Government and the Parliament to shape the social support system, with regards to social justice, while considering the possibilities and the present and future resources. However, they shall only do so with regards to the requirements of the constitutional state, as shown in the decisions of the Constitutional Court.
The abovementioned reasons make it clear that the current Constitution does not require the eligibility to pension, other social security benefits or social benefits to be regulated on the highest level.
The new Basic Law of Hungary was announced on 25th April 2011. It shall replace the present Constitution on 1st January 2012. This Basic Law contains the following:
„Article XIX
(1) Hungary will strive to provide social security to every citizen. Every Hungarian citizen shall be entitled to support set forth in law in the case of maternity, illness, disability, being orphaned or widowed, and in the case of loss of employment through no fault of the employee.
(2) Hungary will provide social services for those mentioned in section (1) and to others through social security and a system of social institutions and measures.
(3) A law may set forth the character and extent of social services provided based on the work in the public interest performed by the person benefiting from such social services.
(4) Hungary will ensure the livelihood for the elderly by maintaining an integrated state pension system based on social solidarity and by allowing the functioning of voluntary social institutions. A law may also provide for the conditions entitling women to state pensions taking into consideration the need for their increased protection.”
The submitted proposal mentioned hereby is about an amendment of the Act XX of 1949 on the Constitution of the Republic of Hungary, necessary for creating certain transitional regulations in connection with the Basic Law. However, it is definitely unnecessary for the transition to create the regulation cited and questioned above. Setting the basic framework, both the Constitution currently in effect and the Basic Law coming into effect next year orders the requirements of pension entitlement to be set by law.
Therefore, with regards to recent events, the proposal certainly aims only at preventing the Constitutional Court from exercising control. In the Hungarian practice, with regards to the resolutions of the Constitutional Court, it is not allowed to revise the Constitution or amendments of the Constitution. In case of attempts to regulate by law, the law would certainly be repealed, as it would be contradictory to the requirements of legal certainty and respect of acquired rights.
If the proposal was passed, it would be possible to deny parts of or the whole of pensions already determined and disbursed. That would ruin many families. These people planned their lives based on regulations in effect in the past. They calculated their living based on that. The new regulations could affect anyone, because early retirement in Hungary is a general possibility, as it also is in other countries.
In the police and fire sector Act XLIII of 1996 on the Service Relations of the Members of the Official Staff of the Armed Forces (hereinafter referred to as the Hszt) determines the fulfilment of professional service. As per Article 182 of this Act, 25 years of service is enough for retirement, but the whole amount of the pension shall be disbursed only after having reached the maximum age of service, that is to say after having reached 50 years of age.
There is an explanation in the Hszt for this benefit:
„d) When re-regulating professional service relations, the Proposal shall enforce the legislators’ intent of harmonising the rights and obligations of members (mainly uniform-wearing persons) of the official staff. The starting point is that such official staff shall do their work in an order and discipline stricter than that of others, while being exposed to more difficult mental and physical circumstances, increased sacrifices, in dangerous situations, risking their lives. Meanwhile, as a prerequisite for starting service they voluntarily waive their rights to practice their constitutional rights, and they (in case of service at armed forces listed by the law) undertake to fulfil the requirements of national security, even in connection with their family members. These things mean restrictions in rights and in lifestyle. Considering this the Proposal shall hereby, by taking into consideration the earnings of civil servants also involved in public service, determine rights and benefits of the official staff more favourably, to express society’s honour and appreciation towards the official staff.”
Act XCV of 2001 on the Status of Professional and Hired Soldiers of the Hungarian Army (hereinafter referred to as the Hjt) provides the legal framework for the armed forces. For soldiers the maximum age of service shall be five years less than the relevant old-age retirement age. Thus, as per the general rules, they shall be entitled to service retirement only if they have reached that age and have at least 25 years spent in service. Only in special cases (cases totally independent from the person, and originating from causes that the person is not liable for) shall a soldier be entitled to pension (of whole amount; 90%; or 50%) before having reached the maximum age. However, even in those cases 25 years spent in professional service is still a requirement.
We must emphasize that the unchallengeable loyalty expected by the government, i.e. that the soldier must serve his or her country even if that means sacrificing his/her life, shall justify a proportional moral and financial honour and appreciation. This is also set in the Preamble of the abovementioned Hjt.
The system of early retirement is part of this honour, as it is also part of the special public service employment type (with very special obligations and serious abridgements). This is similar to the systems used in all parts of the world.
In the Unites States of America policepersons and firemen/firewomen may retire after 20 years of service, regardless of their age. Although the proportions may vary, army personnel in Europe also are entitled to serious benefits. It is inevitable that usually service time is longer than that in Europe for policepersons, and retirement is usually connected to a certain age, but early retirement is an option almost everywhere. Moreover, remuneration is much higher in Western Europe than in Hungary in the armed sector, the police and fire service.
But no one talks about easing the abovementioned abridgements and high requirements and obligations. We must also emphasize that people serving in the armed, police and fire sector have very low wages. Therefore, benefits and allowances have a high significance. Those who decided to pursue or continue this career after Hszt (law in effect before Hjt) came into effect certainly counted on the possibility of early retirement when they drew up a life plan. Early retirement certainly had a part in their decision on choosing this career. Thus, apart from the legal problems, cancelling early retirement is unacceptable and unfair. And it would be morally problematic, and in our opinion, impossible, to expect armed, police and fire personnel to systematically enforce law after them being punished by legislation.
We kindly ask you to consider the issues herein mentioned and send your position on this question to the Government of the Republic of Hungary.
Dated as of 16th May 2011, in Budapest
On behalf of the Unified Demonstration Committee [Egységes Demonstrációs Bizottság]
of the representative bodies of armed forces, the police and fire service,
Péter KÓNYA
Head of the Demonstration Committee, President, FRDÉSZ
Members of the Demonstration Committee:
Judit SZIMA, Secretary-General, TMRSZ
Judit BÁRDOS, Secretary-General, BRDSZ
Tibor VINCZE, President, RKDSZ
Dániel PACH, President, RSZV
Géza PONGÓ, Secretary-General, FRSZ
János CSUREL, President, BVDOSZ
Ferenc FABÓK, President, FBVSZOSZ
János CZÖVEK, President, HOSZ
Kornél ÁROK, President, HTFSZ
Ferenc ZENTAI, Secretary-General, KDSZ
István TAJTI, President, NDSZ
Pál POWELL, President, NBSZSZ
Zoltán TALABÉR, President, PVDÉSZ
Gábor HOLECZ, President, VPDSZ
József KISS, President, FTSZ