Constitutional flim-flam

We have just stepped onto slippery ground: constitutional interpretation. Any constitution. The observer of the Hungarian political scene occasionally has the distinct feeling that the average Hungarian doesn’t quite understand that the constitution’s interpretation depends on the jurists’ legal and political philosophy. Somehow he thinks that there is "the" constitution and the judges of the Constitutional Court simply tell the world what it says. Period. Yes, here and there you hear minority opinions but, unlike in the United States, they don’t get much media coverage.

The chief justice of the court reinforces this rather simplistic view of the role of the constitutional court. Today, for example, he said that, in handing down a decision, he and his colleagues simply follow the "constitution." The chief justice, Mihály Bihari–ironically a Socialist candidate for the court, staunchly defended the court’s decision to allow a referendum on several budgetary issues, which until now were among the items on which no referendum could be held.

The background is this. Viktor Orbán and his party, the Fidesz, simply cannot accept the fact that they lost the national elections. Ever since last September they have been trying everything under the sun to unseat the government. By repeating that Ferenc Gyurcsány’s government is "illegitimate," they gave encouragement to those right-wing elements who were ready to unseat a democratically elected government by force. When these attempts didn’t attract strong enough support, Orbán tried other schemes within democratic limits. They, however, were unrealistic. In a parliamentary democracy a government can be removed from power only if it loses its majority in the House. That didn’t happen in Hungary. In fact, a unanimous vote of confidence in the prime minister by the members of the government coalition in parliament put an end to such dreams. Then came the local elections which the Fidesz won overwhelmingly. The new slogan was: "we are the new majority," the government has lost its legitimacy. Of course, this is also nonsense in a parliamentary system.

When the new slogan remained only a slogan, Orbán pulled out yet another card. The government’s austerity program and the removal of old socialist structures (especially health care) entailed some unpopular decisions. The government introduced tuition, co-payments at doctor’s visits, and in case of a hospital stay a certain daily fee. The parliamentary majority dutifully voted on all these measures and they all passed. At this point, the Fidesz turned to the constitutional court to decide whether a referendum could be held on these and some other less important issues. In Orbán’s view, if the referendum were to be decided in the Fidesz’s favor, the government would have to resign. To everybody’s surprise the court decided that a referendum could be held on these questions.

The decision was unexpected because the common wisdom was (and still is) that the constitution does not allow any referendum on budgetary items. The exact wording is: "a national referendum may not be held … on the budget, on the execution of the budget…." (my translation from the original Hungarian). So, great was my surprise when I heard Chief Justice Bihari saying that the constitution doesn’t talk about the budget in general, but the "laws of the budget." He blamed the members of the media for distorting the words of the constitution. He called it "disinformation," which implies purposeful misinformation. But can one blame the newspapermen for what would seem to be an accurate reading?

Until now the constitutional court was a sacred cow. The judges could do no wrong. No one dared to imply that perhaps the judges are politically motivated. I cannot fathom why this naiveté because the judges are nominated by parties. The chief justice may have said a few weeks ago in an interview that although it is true that the parties nominate the judges, as soon as they sit on that bench they "consider only the constitution." But anyone who follows the U.S. Supreme Court with its 5-4 decisions knows how disingenuous this claim is.

Before this decision politicians had refrained from commenting on the court’s actions. Now this is no longer the case. Not only have socialist-liberal politicians criticized the court’s decision but Péter Boross (MDF) also found it a dangerous precedent. Prime Minister Gyurcsány called it a political decision.

Chief Justice Bihari’s position reminds me of the American Supreme Court’s "strict constructionist" judges. But one cannot rely only on the written word, especially if that written word is not even clear. At the very least, one must consider the intent behind the text and, at best, the ramifications of any particular interpretation. Surely, if every unpopular decision of the government can be questioned, governing becomes impossible. What kind of answers can be expected to such questions as "do you want to pay tuition," "do you want pay additional fees in the doctor’s office and in hospitals"?

On the bright side, the judges’ interpretation of the "budget" as "the laws of the budget" might give a wonderful opportunity to the government to squelch this whole referendum nonsense. The referendum most likely cannot be held before next spring. By that time there will be another "law of the budget" which can contain the tuition, the co-pay, and the hospital fee. Meanwhile I would suggest to clarify the language of the constitution. If the "budget" means "the laws of the budget," please change the constitution to say precisely that (költségvetési törvény). It would clear the air.

And on the lighter side, there was a man with a good sense of humor. After he heard that the Fidesz asked the court about the constitutionality of the referendum, he also turned to the constitutional court and asked them to decide whether they could hold a referendum on whether "beer would be sold free." They dutifully considered the case and decided against it!