A few days ago Barnabás Lenkovics, the new chief justice of the Hungarian Constitutional Court, gave a lengthy interview to Mandiner.hu from which we can learn quite a bit about his legal philosophy. Lenkovics doesn’t hide his conviction that the Constitutional Court should facilitate the work of the government. At the same time he wants us to believe that the court is still an independent body whose sole purpose is the defense of the rule of law. I must say that Lenkovics fails miserably in his attempt to reconcile these two incompatible mandates.
Surprisingly, very few journalists and bloggers bothered to comment on the interview, and those who did concentrated on only some minor points: Lenkovics’s denial of the decidedly pro-Fidesz decisions of the court, his low opinion of the civil rights activists, and his cavalier attitude toward transparency. Here I would like to analyze the text more thoroughly.
A few days after Barnabás Lenkovics became chief justice of the court, the Eötvös Károly Intézet and the Társaság a Szabadságjogokért (TASZ/Hungarian Civil Liberties Union), released a study in which they showed that between 2011 and April 2013 the Constitutional Court, in which Fidesz-appointed judges were still in the minority, decided ten out of ten cases against the government’s expectations. It was in April 2013 that, with the retirement of some of the justices, two new pro-Fidesz judges were appointed. From that time until the end of 2014 77% of the cases were decided in the government’s favor.
Lenkovics’s reaction to this drastic change after the court had a Fidesz majority was that such a conclusion is “extremely simplistic.” The difference between 0% and 77% is “significant but superficial” because it doesn’t “take into consideration the processes under the surface.” He accepts the Fidesz propaganda that the Orbán government found the country close to bankruptcy after 2010. It was an emergency situation which, in his opinion, allowed, nay compelled, the Constitutional Court to expedite the work of the government.
A closer reading of the text shows that Lenkovics considers the earlier powers of the Constitutional Court too far-reaching. They needed trimming quite independently of the alleged emergency situation that had developed by 2010. In his explanation, the Constitutional Court’s supremacy over the government and parliament was dictated by the preconceptions entertained in 1989 about the future development of Hungarian democracy. The men who created the court on the German model envisaged the very real possibility that the first democratic election would bring back those reform communists who established a new party, the Magyar Szocialista Párt (MSZP), after the collapse of the old communist party, MSZMP. Moreover, there was a fear that the new president, to be elected by popular vote, would be Imre Pozsgay, a reform communist from the old regime. Under these circumstances, the government and the parliament had to be closely monitored by a strong independent constitutional court. But, Lenkovics adds, these predictions turned out to be wrong, and thus the kind of court that was created in Hungary was unduly powerful and intrusive. Now, with the Orbánite trimming of the Court’s competence, “balance is returned.” In brief, socialist governments and parliament need close scrutiny by a strong constitutional court, but right-wing governments do not.
But let’s return to the so-called emergency situation of 2010 and after. The government had to act swiftly, without hesitation, and “in such a situation, with the old mechanisms one cannot make decisions. With thorough constitutional controls cases may not be decided for years. Such procedures might paralyze the workings of the state while the Court has no political responsibility for its decisions.” Clearly, in his mind, the Court in such a situation must be “the motor” of the state instead of its brake.
Lenkovics contrasts formal and material constitutionality. The former may impose ideal requirements, while material constitutionality simply states what is achievable. He also juxtaposes his own take on “legal constitutionality” and “political constitutionality.” “Legal constitutionality operates within in its own system” while “political constitutionality says that one must act immediately…. The Constitutional Court represented the legal, ideal constitutionality while politics needed immediate action. Today politics says: ‘I have a two-thirds majority, I have the responsibility.'”
Later in the conversation the chief justice says that because “the need for political constitutionality today is greater than previously … we give the government and parliament greater room for maneuver.” Lenkovics doesn’t hide his questionable legal philosophy, which can be summarized this way: “Because of recent great global changes the Constitutional Court should abandon the defense of abstract ideal legal doctrines and must adjust itself to the actual conditions and needs of the world.”
As a corollary to this thesis, Lenkovics doesn’t seem to believe in the universality of democratic legal principles. In his opinion, “to be a judge of the Constitutional Court in Hungary is an entirely different matter from being one in Denmark or in the Netherlands.” His favorite example is an international meeting he attended while serving as an ombudsman. The Swiss ombudsman had to ascertain that seven refugees had washing machines and driers and could have daily showers while the ombudsman from Azerbaijan had to make sure that 300,000 refugees had at least 300 grams of bread and a liter and a half of water. Translating that into differences between constitutional courts, I assume he means that in Hungary people must be satisfied with less legal redress than the citizens of European countries with greater means enjoy. That’s the only thing I can think of, and that is outrageous.
To be continued