Chief Justice Lenkovics on the Fidesz Constitutional Court, Part I

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.

Lenkovics

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

 

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Wondercat
Guest

He’s where he is thanks to OV. “Wes Brot ich eß, sein Lied ich sing.” — R, Freisler.

Webber
Guest

Or, in English, He who pays the piper calls the tune.
It’s sad that a constitutional court judge thinks of himself as a servant of the party-state – but then, judging from Lenkovics’s age (he was born in 1950), that was exactly what he was taught to be many decades ago in law school in Kádár’s Hungary (Lenkovics got his law degree in 1974).

spectator
Guest
“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.” Which means in layman terms that the Court turned over all its powers to the government, which practically means Viktor Orbán in person. For your information: that was the whole point: to have that constitutional control! That’s exactly why Barnabás Lenkovics has a job! It is/was supposed to be his job to guarantee that the constitutional control in place and working! Otherwise I don’t agree with the reference to his age and education – I truly believe that it goes on the personal level. Someone is a spineless slug, or isn’t. Fairly easy to see, you know. There are plenty of people from that era who just loath the Orbanist way, and there are newly educated slaves who serve him gladly. I knew a former member of the same court who even was involved in the events of ’56 in the ‘right’ side who dared to keep his moral integrity, both before and after the regime-changes (here I’m… Read more »
Webber
Guest

Spectator – “there is a way to remain honest and sincere while holding a position”….
Hmmm… little compromises, little compromises…
I’m not criticizing. Life is short. We all make our choices – some constantly struggle against the stream, others float ever upwards. Most of us do a little of both. I just don’t see the point in imagining that jellyfish have backbones.
How do you imagine people had “great” careers in government prior to 1989? I imagine jellyfish.

spectator
Guest
Actually I didn’t specified “careers in government”, I referred to – intended anyway – professional advancement, recognition, success, etc. As a matter of fact, the Kádár-era was far from perfect, not even the counter-selection, so believe me, please, time and again really talented and really good people also managed to get in the universities and receive proper education! The reality of those times not always correspond to the contemporary propaganda, there weren’t only communist agents, spineless functionaries and the heroic dissidents resisting to the dictatorship, you know. There was still a lots of quite “normal” people, who went on living and working as it was a “normal” country – as in many measures actually was. Besides it’s already countless times analysed politic, which wasn’t. Fortunately to most, the life was not soaked trough and through with politics – as is the case today, and in the later period wasn’t even required political activity or party membership to reach a higher position outside of the political circles. Yes, there was people who remained true to themselves even then. Once in the early ‘80s one of my friends, an academic, mentioned his conflict with the local party secretary. – What it was… Read more »
Guest
Now I know why when I visited Magyarorszag back in those ‘Kadarian’ days that I knew I could never lay my head down there. It was a much different land made up of a different people with a different psychology as a resort of debilitating assaults on their identity through the decades and centuries. To put it directly I was a stranger in a strange land. Today I am stunned as to the direction of the country after all of those ‘assaults’. It would seem that for the longest time the quest for true ‘freedom’ has apparently been subsumed by autocratic forces that seem to never disappear from its society. It is like a ghost that continually haunts and never goes away. And the more it continues the more it rips at the moral fabric of the country. That is why I admire whistleblowers there. For I think they are part of the vanguard of change that is needed for the country to get out of its moral death spiral. Each ‘no’ then is a move to another hopeful direction. Maybe they can be an example to all Magyars who refuse to be dictated to like little children and offer… Read more »
bimbi
Guest

“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 seen by Fidesz/KDNP].

How depressing, yet again, to be reminded of how thoroughly the judicial process has been corrupted by Mr. Orbán and his government, a process that started under Mr. Navracsics, now [God help us] an EU commissioner.

Mr. Lenkovics apparently makes plain his adherence to the Fidesz/KDNP line and to the secondary position of what elsewhere is called the Rule of Law. As a lawyer trained under the Commonists he will, no doubt, be familiar with the term “lackey”, perhaps an appropriate appellation for a person in his situation… And, of course, the non-political Justice Lenkovics is also happy to repeat the silly Fidesz canard that the country was made bankrupt by the government in 2008. More tired, false propaganda from yet another Fidesz mouthpiece.

Prof. Balogh’s post again shows how deeply the Orbán regime has corrupted the country and its institutions. Depressing reading indeed.

petofi
Guest

“…how deeply the Orbán regime has corrupted the country and its institutions.”

Only 1/2 of this fragment is true: “…corrupted…its institutions.”

The country has been corrupted a long time before.

Without realizing that fact, no coherent plan and policy can be put in place in the future.

ER1956
Guest

Petofi, I think you are right. I am waiting for similar strong words from the mouths of the Hungarian scholars inside and outside of Hungary.
ER

Guest

@petofi
July 19, 2015 at 1:06 pm

“The country has been corrupted a long time before.”

A perfectly normal condition for a country firmly in the Balkan mold. Has always been so in its history and will always be thus in its future.

tappanch
Guest
1. There is no Constitution since January 1, 2012 – therefore Mr Lenkovics and his “Constitutional Court” cannot defend it; they have no other task but to provide a fig leaf to Orban’s tyranny. They are the handpicked and obedient servants of the philosophy and practice of this kleptocratic dictatorship. 2. Eyewitness Sunday report from Dagaly spa. Orban’s oligarch friend Garancsi received 50 billion forints (doubled budget) to destroy Dagaly and build two swimming pools for the sake of the two-week long championship race in 2017 in its place. There were plenty of empty plots nearby for the new swimming pools for the sportsmen, but the aim was to destroy the cheap opportunity of thousands of citizens for enjoying water. After destroying all of the trees in the northern 1/3 of the Dagaly park along with a big pool, Garancsi’s workers followed by exterminating all of the trees on the Danube front and cutting the trees in the southern 1/4 of the territory. They will take over the first thermal pool and will presumably destroy it tomorrow. One worker told me that he thinks there is a news blackout about the destruction, that is why no newspapers write about it… Read more »
tappanch
Guest

Already destroyed:
comment image

The trees in the background are already gone:
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tappanch
Guest

The official webpage is not updated. It still reads: the new swimming pools for the world championship will be built “next to”, [and not “in the place of”] Dagaly.

“A létesítmény a jelenlegi Dagály Strandfürdő mellett […] épül.”

http://mnsk.hu/letesitmeny/dagaly-uszokomplexum/

tappanch
Guest

First application of the new Fidesz law that makes it difficult to receive public information.

An opposition MP wanted to find out details of the fideszization of public agricultural land.

[Fideszization = optional nationalization, followed by cheap or free privatization to Fidesz friends and family]

The government agency demands 10 million forints for even the deficient “public” information.

http://hvg.hu/itthon/20150719_10_millioert_arulnanak_el_kozerdeku_adato

exTor
Guest

Viktor Orbán ascertained in 2010 that Hungary was “close to bankruptcy”, so his answer was to steer Magyarország toward moral bankruptcy.

The prospect of activist judges –the bane of US Republicans– bothered VO so much that he packed the court with yessers, which any selfrespecting government would do (and does do), then amended the laws so that new laws thereafter could fasttrack the remaking of the MO constitution.

MAGYARKOZÓ

Member

Re @petofi

Indeed a strong argument!

Guest
Re: “Petofi, I think you are right. I am waiting for similar strong words from the mouths of the Hungarian scholars inside and outside of Hungary” I’d think some have spoken though their words probably have disappeared into a legal mist. You know I’d suggest that Orban is pretty good framing issues that he wants to be taken care of (control of the court and media the tried and true of autocrats) and putting that plan into pragmatic action. Looks like it has worked and he has pulled it off in front of the country and the EU itself. A master political stroke. He has done in a way what the founding fathers of the American state were afraid of in the nascent nation and that was the big grab for power that would result due to the lack of checks and balances in government and judicial proceedings.. What I’d like to know if does Europe and the opposition even realize how Orban’s fiefdom is throwing down a challenge?. A challenge which at bottom I’d suggest is an almost comeplete revaluation of values in the modern state Hungarian state. I think he pulled it off but what has the EU… Read more »
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