The legal watchdogs Transparency International, Helsinki Committee, Hungarian Civil Liberties Union, and Károly Eötvös Intézet found serious problems with some of the new pieces of legislation that, in their opinion, undermine the very essence of democracy–the institution of checks and balances without which democracy can't exist. That is quite explicitly stated in the French Declaration of the Rights of Man and of the Citizen. According to the critics of the parliamentary activities of the Orbán government, a great number of the bills passed and sent on for the signature of the president violate this fundamental principle of the democratic system.
They singled out five bills that they found especially worrisome. First is the selection of the judges of the constitutional court. Until now half of the members of the committee entrusted with nominating judges came from the government party or parties and the other half from the ranks of the opposition parties. That was a democratic practice that should have ensured, in theory at least, a balanced constitutional court. It would have worked if there had been any willingness to compromise, but the committee was more often than not deadlocked. Thus, very often instead of eleven judges there were only nine, as was the case until yesterday.
The new bill changed the composition of the nominating committee. From here on it will reflect the power sharing in the house; the government party, by virtue of having the majority of the seats in parliament, will always have a larger representation on the nominating committee. As things stand now, two-thirds of its members are delegated by Fidesz-KDNP and one-third come from the three opposition parties. In practice, the nomination this year for the two new judges went something like this. The chairman of Fidesz, Viktor Orbán, suggested two names to the Fidesz parliamentary delegation. Not surprisingly, the members of the delegation were overjoyed when they heard the names of István Stumpf and Mihály Bihari and unanimously submitted these two names to the nominating committee. And in that body, there was no question that Fidesz with its two-thirds majority would vote for them. Once they approved these two names, the nominations went to the full house. Here a two-thirds majority is necessary for the election of judges. No sweat.
The second bill they found troublesome was changing the nominating procedure for the two vice-chairmen of Gazdasági Versenyhivatal, the office in charge of ensuring equal opportunity in business competition. Up until now the prime minister nominated the vice chairmen on the recommendation of the current chairman, and the president appointed them to the post. The chairman of GVH has been in office ever since 1998 and will be retiring this year. But his two vice-chairmen still have six more years to go. That would mean that Viktor Orbán would be able to get rid of the chairman, but he is stuck with his deputies who were nominated on the chairman's recommendation. And surely, Orbán wants them out of the way. So the new bill changed the nominating procedure: from here on the designated but not finally approved chairman could name his own deputies. In brief, the two vice-chairmen would be kicked out and Orbán's choice would name entirely new deputies. Well, that was too much even for László Sólyom who sent the bill not back to parliament but straight to the constitutional court. We will see what the new constitutional court will do with it. Until now it usually deferred to Sólyom, but will it do the same when he is no longer president of the republic?
The third complaint is the bill that changed the tenure and status of the Országos Választási Bizottság (National Election Committee). Until now the composition of the OVB changed only every four years, before each national election. Thus the current members were elected in the spring of 2010 and were supposed to serve for four years. But Orbán didn't like the current members and wanted to get rid of them, in part because he can't quite forgive them for delaying the official poll closings until very late at night and therefore his much awaited victory celebration was not in prime time. (The OVB decided to wait with the final word because in one of the polling places voting was extended because of very a large crowd.) According to the new regulations the composition of the committee must change not only before national elections but before local elections as well. Again, it looks very much as if the bill was introduced solely to oust the current members whom Orbán doesn't like. The law is rewritten by individual whim and thus creates legal uncertainties. Because surely it makes little sense in the long run to have two elections every fourth year, one in the spring and one in the fall, each with its own election committee. Unless, of course, they change the constitution in this respect as well and local elections will not take place in the year that national elections are held.
The fourth problem is the decision that civil servants can be dismissed without providing any reason for dismissal. The decision cannot be questioned or appealed. According to the critics this new law makes civil servants totally subservient to their superiors, subject to acts of retribution, and thus it endangers the democratic functioning of the state apparatus. In brief, from here on civil servants are not covered by the provisions of accepted labor laws.
And finally, there is the law that limits the the size of retirement packages. Or to be more precise, one can have a huge package that was worked out earlier but on anything over two million forints the recipient must pay a whopping 98% tax. The real problem with this particular provision is that it is retroactive. And that in legal practice is more than unusual. It is unconstitutional. The bill deprives the individual of a right earlier granted and enjoyed retroactively. Although the Orbán government tried to change the constitution in order to make this new bill acceptable, apparently the "fix" doesn't remedy the basic problem because it doesn't cover other constitutional guarantees that the bill violates.
There is no question that most of these bills will end up on the table of the judges of the constitutional court. If Sólyom or Schmitt don't turn to the court, the parties, trade unions, individuals will. And that will be the real test. What will the newly reconstituted constitutional court do? Most people fear that the majority of the judges will be willing pawns of Viktor Orbán.