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."