Plato was wrong: the Hungarian Constitutional Court

I was somewhat reluctant to write about a legal institution because, on the one hand, I have no legal training and, on the other, until very recently I had absolutely no knowledge of the Hungarian legal system. When, as a teenager, I lived there, Hungary’s legal system was in shambles and in the service of the dictatorship. No "decent" person ever went to law school.

However, one cannot avoid the topic for long, especially nowadays when the Constitutional Court seems to be on center stage. The Court’s latest decisions turned the political scene upside down and, I suspect, in the next few months we will hear a lot about the Constitutional Court. So, here is a long, hard look at the Court and its composition.

The institution itself–that is, a separate constitutional court, distinct from the regular court system–is new in Hungarian legal history. Until 1949 Hungary, just like England, had no written constitution and the highest court (the supreme court) was called Kúria. After the communist takeover, the Kúria’s name was changed to the more prosaic Legfelsőbb Bíróság (Supreme Court) under which were the Court of Budapest and the courts of the different counties and cities (and their surrounding villages). This structure was inadequate. It was felt that there was a need for an intermediate level of courts, which did exist before 1949 but was then abolished. They are called "táblabíróságok" (Courts of Appeal). The decision was made during the Horn government to establish five courts of appeal (Budapest, Győr, Pécs, Szeged and Debrecen), but one of Viktor Orbán’s first decisions was to refuse to set them up. It was only after the Orbán government’s defeat in 2002 that these much needed courts of appeal were established in order to lighten the burden of the supreme court.

As I said earlier, the Constitutional Court (Alkotmánybíróság) is not part of the above outlined judicial structure. Thus, the cases they decide on do not go through the normal channels. In the United States a case travels from the lower courts to the appellate courts, and sometime the decision is to made to pursue the case at the Supreme Court. The court then either decides to hear it or not. Mostly not. This is not so in the case of the Hungarian Constitutional Court, modeled after the German. Here any Tom, Dick and Harry, or, for that matter, president of the republic can turn to the Constitutional Court to decide on the constitutionality of either a parliamentary act, or a law, or anything else. Every nut can write up something and send it off to the court. So, you can imagine. I just read somewhere that at this very moment more than 1,400 cases are pending.

The Constitutional Court itself isn’t exactly law abiding. The original parliamentary act establishing it stated that the court should reside in the city of Esztergom. This sounded like an excellent idea to me because in Hungary everything is concentrated in the capital, and I thought that this was the beginning of a decentralization trend. However, the judges didn’t like the idea of not living in Budapest. They announced that moving to Esztergom was not practical and that was that. Originally, there were fifteen judges, but eventually they realized that if the United States, for example, could manage to live with nine judges, perhaps eleven would be enough for a country just a tad smaller! For a picture of the honorable judges, taken last year, click on this link. http://www.mkab.hu/content/hu/kepek/popup.htm?/content/hu/kepek/hird0602/image007.jpg Note that currently there is no female member on the court.

The judges are elected for nine years or until they reach the age of seventy. Their election must be approved by parliament. The procedure begins with a nominating committee, comprised of all parliamentary parties. Of course, the left-liberals try to nominate liberal judges, while the opposition supports conservative ones. However, the nominees must be compromise candidates because for their election a two-thirds majority of the votes is necessary. Ironically, at the moment the left-liberal parties’ candidates are in the majority, but the parties must not have been very careful when it came to their selection because the latest decisions are in favor of the right (7-4).

A striking difference between the U.S. Supreme Court and the Hungarian Constitutional Court is the background of the judges. While in the United States all the judges have had wide legal experience, the Hungarian judges are all "intellectuals." They are scholars who either worked for the Legal Institute of the Academy of Sciences as researchers or taught at different universities. And most of them didn’t even specialize in constitutional law. For example, the current chief justice, although he has a law degree, taught "political science" in the Kádár regime, which is a euphemism for Marxism-Leninism! Judicial practice, practice, practice. This seems to be missing.

In the Constitutional Court there are no oral arguments, just briefs. Oral arguments, by the way, are not a strong suit of the Hungarian judicial system in general. The judge in a lower court, before he enters the courtroom, is already familiar with the case on the basis of a long indictment from the prosecutor’s point of view which he studies many days before the trial, while the defense lawyer has no opportunity to be familiar with the same. I understand that the legal scholars of the democratic opposition during their negotiations for the peaceful transition from a one-party system to democracy wanted to change this practice, but because of the judges’ resistance they didn’t succeed in revamping this unhealthy situation. Thus, it is not surprising that the prosecutors can boast a 99% success rate!

In the Constitutional Court everything is done behind closed doors. As for the decisions: a few are up on the internet, but the court is in no hurry to make them available. The "newest" is from 2004! See some decisions in English at the following link: http://www.mkab.hu/en/enpage3.htm You can compare this with the absolute up-to-date data of the American Supreme Court http://www.supremecourtus.gov/opinions/06slipopinion.html The transcripts of oral arguments are available a day after the fact for those (lawyers in general) who subscribe to the services of Lexus. If you are just an interested bystander, you can read these transcripts on the internet about a month afterward.

The American judges get together more often than their Hungarian counterparts. Almost every month they spend between eleven and twelve days together discussing cases (that also includes oral arguments). The Hungarians spend two days a week. I just read on the Hungarian Constitutional Court’s homepage that 24 (twenty-four!) cases will be discussed at the next two-day get-together. How can anyone do a good job this way?

All in all, one has the distinct feeling that the whole judicial system needs an overhaul. A few months ago Péter Kende, a muckraker of sorts, wrote a book about judges and the job they do. The verdict is dismal. (Péter Kende, Védtelen igazság: Röpirat bírókról, ítéletekről, Budapest: Hibiszkus, 2007) Until now public opinion was kind to the Constitutional Court, but public sentiment is changing. Perhaps a new philosophy is needed in appointing judges on all levels. Three years out of law school, no really serious preparation, and one can be appointed to a judgeship at the tender age of, let’s say, twenty-five. These young people not only don’t have enough professional experience, they haven’t seen enough of the world to be a judge of others. As for the judges of the Constitutional Court these intellectual eggheads without any practical experience are perhaps not the best interpreters of constitutional law. However, if someone asked me how to change the system I wouldn’t even know where to begin. All I know is that the "philosopher king" concept fails when applied to the Hungarian Constitutional Court.