The Constitutional Court: Debate on the new law

Today is the first day of the parliamentary debate on the Fidesz-KDNP proposal that would further change the competence and role of the Constitutional Court. In the last few weeks, the parliamentary committee on constitutional affairs hammered out the new law that was found by the Fidesz-KDNP majority in the committee to be ready for general discussion before the whole House. Mind you, the chairman of the committee, László Salamon (KDNP), admitted that "there is room for corrections" and asked for cooperation in fixing the possible shortcomings of the law. A rather peculiar introduction, I would say.

Salamon in his exposition pointed out two rather substantial changes: the discontinuation of the "actio popularis" and the introduction of the Constitutional Court's review of lower-court decisions. "Actio popularis" comes straight from Roman penal law which means an action to obtain remedy by a person or a group in the name of the collective interest. Thus, thousands of cases reached the Court from "every Tom, Dick, and Harry," to use an American expression. I always found this practice rather peculiar and I couldn't possibly imagine an effective court that would be able to handle that many cases. Interestingly enough, "actio popularis" was applied only to the Constitutional Court, not to the different levels of the court system, including the Supreme Court.

The introduction of the Court's review of lower-court decisions seems to us in the United States a normal procedure. So, by themselves these two changes, to my mind at least, don't pose any problems.

However, there are other aspects of the new law that are problematic. One is that the president from here on cannot send pending pieces of legislation to the Court for "constitutional control" (in Hungarian: normakontroll). Such a review will be possible only if 25% of the members of parliament ask for it. Under the present circumstances that would mean that any request for review of legislation voted on by the two-thirds majority could come only with the joint effort of MSZP and Jobbik which is "for political reasons impossible" as the keynote speaker of MSZP, Mónika Lamperth, pointed out. In addition, MSZP objected to that part of the legislation that would theoretically allow judges to remain in office for life. Because if there is no political agreement on new appointments the law would allow current judges to remain in their posts until a political agreement is reached. Another less than desirable part of the new law is that cases pending before the Court at the moment would be thrown out without review as of January 1, 2012.

Péter Paczolay, the chief justice of the Constitutional Court, was present during the debate. He noted that the really important changes affecting the Court had been decided months ago. Last year parliament took away the court's competence to rule on matters of finance. Paczolay rather bravely given the present political atmosphere in Hungary announced that because of these constitutional changes "a gaping hole was created in the defense of the constitution" (tátongó lyuk az alkotmányvédelemben).

András Schiffer (LMP) began his speech by invoking Shakespeare's Julius Caesar:  "We come to bury constitutionalism, not to praise it." Following Paczolay's train of thought, Schiffer also found the "gaping hole" in the competence of the Court intolerable. It means, said Schiffer, that from here on "the government can freely run amok" in financial matters.

It seems to me that  LMP is the only opposition party that reacts swiftly and comes armed with alternative suggestions to the government's proposals. Even before the debate on the Constitutional Court began, Schiffer gave a press conference in which he outlined his party's proposals for a new method of selecting judges. According to LMP's concept one third of the judges should be nominated by the judges in office, one third by the chief justice of the Kúría (the new/old name of the Supreme Court), and the last third by a vote of a two-thirds majority of members of parliament.

Schiffer also announced that his party would like to exclude former ministers, undersecretaries, presidents and, from January 1, 2012 on, members of parliament from serving as justices of the Constitutional Court. Well, that would take care of István Balsai and István Stumpf right away. Not that we have to worry about the proposal ever being accepted by the government parties. At the press conference Schiffer called "the legislation before us a requiem for Hungarian constitutionality."

Sort by:   newest | oldest | most voted
Joseph Simon
Guest

As a matter of interest and comparison, is the US Supreme Court competent to review the US budget, for example. Maybe it should, the world would be in a better shape.

Member

God point Joe. I’ll shoot an e-mail to my congressman.

GW
Guest

Joseph Simon:
The constitutional arrangements, with three independent branches of government in the US and budgets determined by legislative act and executive signature, are hard to compare with those of of a parliamentary system as in Hungary, but the answer to you question is yes, the US Supreme Court can review a budget law for conformity to the constitution, for example issues of separations-of-powers, states’ rights, or civil rights.

Member

@GW He knows. Just doesn’t get paid if he doesn’t post it …

Paul
Guest

In what way rxactly would the world be in a better shape if the US Supreme Court was competent to review the US budget?
Even by the ‘standard’ of outlandish troll statements on here, this one is out on its own.

Kirsten
Guest

It is very sad that criticism is still around and it is voiced at the correct places by the correct people but without any consequences. At least there will be enough people to replace the Fidesz cronies.

Kim
Guest
It’s true that Hungary is one of the rare countries with the “actio popularis” — or open access to the Constitutional Court. But it is also one of the rare countries with a unicameral parliamentary system. In most countries, there is some counterweight to a government in which the prime minister is guaranteed to have a majority in the parliament. Most parliamentary systems have an upper chamber of the parliament that is chosen differently from the lower house; some have presidents with serious veto power. Hungary has had the Constitutional Court, a body that was virtually guaranteed to review all laws because anyone could initiate a procedure. In the new constitution, however, this primary check on the power of a unicameral parliamentary system is gone. True, the Constitutional Court’s jurisdiction will look like other constitutional courts in Europe (except for the carve out for budget matters — something no other court has been made to suffer). The Constitutional Court will get the power to hear “constitutional complaints,” through which individuals can challenge personal deprivations of rights. But this is no substitute for the actio popularis which was the primary mechanism through which the constitution itself was defended from the abuses… Read more »
Paul
Guest

Off topic, but something that’s been bothering me for a while – first indications of the intended changes to the electoral law:
http://thecontrarianhungarian.wordpress.com/
If you’re having a good day, don’t read it.

Joseph Simon
Guest

Thanks for your comments and information.
But even the US Supreme Court could not or cannot stop the catastrophic spiraling of US debt. The same situation obtains all over in Europe as well.

Johnny Boy
Guest

Paul thanks for the link, it was a truly interesting read, a nicely collected outline.
Too bad the paragraphs listed as “problems” are not problems but chosen preferences instead, almost all of which I happen to agree with.
I like the most the possible need for registration prior to voting. This is an excellent method to exclude those from voting who don’t know anything about politics and don’t give a flying f00k about it, yet the sheer number of these voters could decide elections, depending on if they have a good or bad day. Or if it rains, or if the sun shines…
For those who set out to yell dictatorship, just out of sheer habit instead of thinking (as usual), let me disclose that the USA has a registration system too.

Eva S. Balogh
Guest

GW: “the US Supreme Court can review a budget law for conformity to the constitution, for example issues of separations-of-powers, states’ rights, or civil rights.”
You will be all surprised because the US sovereign debt is not as high as we normally think it is. In calculating as a percentage of the GDP the US debt is moderate in comparison to other countries: 62%. Many, many countries are much worse off: Belgium 101, France, 82, Germany 83, Canada 84, UK 76, Belgium 101, Japan 198. Italy 119, Singapore 106. See: http://en.wikipedia.org/wiki/Government_debt

Guest

I followed Eva’s link to the source for wiki.
https://www.cia.gov/library/publications/the-world-factbook/rankorder/2186rank.html
From there I got:
19 th position Hungary 80.20 % year 2010 est.
Not too bad – yet …
PS: Thanks, Eva, for that interesting piece of info, again …

Jano
Guest

JB: I agree with the preregistration too but not three months advance. Maybe a week. I also agree with the one round election and I’ve always found it undemocratic how parties tried to trick the electorate with their tactical maneuvers.
On the other hand everything else is either outrageous or stupid. E.g. problem No.1 is clearly designed to defend Fidesz from being defeated by a coalition of parties. The extent of disproportionality is ludicrous. Supermajority by only 30% of the votes??? Come’n…

Wondercat
Guest

My mortgage balance – £95K.
My salary: Substantially less. NO I’M NOT TELLING YOU LOT. Buy me a drink first.
If I were a nation, I’d be somewhere between Japan and Belgium… raw fish served with waffles? Chocolate truffles flavoured with seaweed?
This is a depressing thread.

Member

Off topic again. I hate myself. But I’m outraged. Tarlos is waging a war against the homeless.
http://magyarinfo.blog.hu/2011/10/11/hany_rendor_kell_egy_hajlektalan_lesittelesehez
It is in Hungarian (sorry, Paul). The title says: “How many cops you need to book a homeless?”.
Well if you scroll down to the video (please watch it) you’ll see the number is 8.
This area of BP is riddled with crime. The article is basically lamenting wtf the pigs doing
instead of chasing real perps. Is the laziness and avoiding work genetical?
2011 Hungary. Law and order. I want the Habsburgs back …

Member

@Wondercat “My salary: Substantially less. NO I’M NOT TELLING YOU LOT. Buy me a drink first”
Yeah, never give out too much on a blind date …
Our income to mortgage ratio is 2.25. If I didn’t have 3 kids in college (at the same time) I’d spend a month in Hawaii each year …
Orban is a liar. That’s what’s depressing. Who cares if you are in debt as long as you are able to make the payments. What matters is how can you make more?

An
Guest

@JB: “For those who set out to yell dictatorship, just out of sheer habit instead of thinking (as usual), let me disclose that the USA has a registration system too.”
Apples and oranges, again. In the US you don’t have to register to vote every time an election is coming up. You register once at the place you live, and if you go to vote at least once in every four years, you don’t ever need to register again… unless, of course, you move.
It has nothing to do with excluding anybody who does not know anything about politics or not serious about voting. It is more about keeping track of where the voters live so that they go to vote at the right constituency.

Paul
Guest
Rather weirdly, just after I’d read JB’s interesting post (by his standards), a man knocked on our door to check our voter registration (it’s done annually here). I’d actually already registered on-line about a month ago, so I’m a little confused by all this… But, seriously, if one (unlike JB) accepts the principle that democracy is only valid with universal suffrage, then surely no one should need to register to vote? If you are a adult citizen of that country, you should be entitled to vote in any election. If the UK, with our antiquated constituency only-based ‘first past the post’ system and our lack of an ID card, this wouldn’t be too easy to do, but in the US and, especially, on the Continent, it should be a piece of cake. Turn up at a polling station (or log-in – this is the 21st century, after all), present your ID card, and vote. If a geographical vote is required, then the system knows where you live and registers the vote there. And none of this waiting up all night to see who won – results would be known within seconds of close of poll. OK, there are database maintenance,… Read more »
Paul
Guest

“It has nothing to do with excluding anybody who does not know anything about politics or not serious about voting.”
Quite true, it’s mostly about not letting the blacks vote.
In Florida, at least…

An
Guest

@Paul: Very funny… I am not saying the US system is great, or cannot be misused to exclude people, but I hope you do see the difference between the US version, having to register once or only when you move and the proposed Hungarian version, requiring everybody to register 3 months before every elections so that only those people vote who are “serious” about it.
JB takes an existing practice in the US, which did not have the intention to exclude people then uses it to justify a practice that is worse and explicitly states that the purpose is to exclude some people.

Paul
Guest

An – I couldn’t resist it. Sorry.
JB grabs at any passing straws.

wpDiscuz