Chief Justice Lenkovics on the Fidesz Constitutional Court, Part II

Yesterday I tried to summarize the legal philosophy of Hungary’s new chief justice, which I found shocking and totally at odds with our understanding of the rule of law in a democratic society. Viktor Szigetvári, chairman of the opposition party Együtt, in an impassioned Facebook note, called Barnabás Lenkovics morally unfit for his post. Szigetvári doesn’t spend much time on the topics I covered yesterday but instead bases his condemnation of the chief justice on some currently relevant issues such as the status of churches, the refugee issue, human rights, same-sex marriage, and the Orbán government’s latest attempt at limiting access to public documents. On almost all of these issues Lenkovics holds not conservative but outright undemocratic views.

At the moment the Hungarian government is taking its sweet time drafting an entirely new law on the recognition of churches. The original law of 2011 stipulated that only churches approved by the Hungarian parliament could partake of the benefits churches usually enjoy in democratic countries. Smaller, less traditional churches or congregations, including some following reformed Judaism, were stripped of their church status. In February 2013 the Constitutional Court, which at that time wasn’t yet packed with Fidesz loyalists, found the law to be discriminatory and therefore unconstitutional. The Orbán government’s answer was to change the constitution and leave the objectionable law unaltered.

Since all remedies at home had been exhausted, sixteen small churches decided to go to the European Court of Human Rights in Strasbourg to seek justice. In April 2014 the court ruled in the churches’ favor: the law was unconstitutional, so it should be scrapped and the churches compensated. The Hungarian government decided to appeal the decision. Five months later, on September 9, 2014, the court turned down the appeal. At the moment the government is apparently working on a new version of the law. They are in no hurry to compensate the churches for their financial losses between 2011 and 2015.

Barnabás Lenkovics in the middle of the upper row

Barnabás Lenkovics in the middle of the upper row

It was this case that came up in the conversation between Lenkovics and the journalist from Mandiner.hu. Keep in mind that the constitution itself was altered to make an unconstitutional law constitutional. Lenkovics, who was a nominee of the then opposition parties Fidesz-KDNP and MDF in 2007, and four of the five Fidesz justices who were appointed after 2010 found nothing wrong with the church law. Consistent with that view, Lenkovics sees no reason to amend the constitution in light of the ruling of the European Court of Human Rights. It is enough if “the law is rewritten or at least significantly altered.” But he still thinks that the 1989 law on churches “gave too much freedom in the establishment of churches … who, in turn, abused it.”

Well, if the churches abused their freedom, the same is true of civil rights activists whom he labelled “hobby civil rights activists” and “professional revolutionaries.” He added that “probably there is need for them, otherwise they wouldn’t finance them.” Who are these “they”? I guess the trouble-making foreigners who would like to know what the members of the government are up to. In any case, Lenkovics finds it “strange that they [the activists] exercise their own rights at the expense of the community.”

When the reporter noted that the corruption of officials and politicians may be much more costly to the community than photocopying a few hundred pages of documents, Lenkovics came up with this gem: “We assume that those who decided to serve the common good and who took an oath will not abuse their power and will not take advantage of the public purse for their own use.” The reporter was so stunned that he could only mutter: “That is what the Constitutional Court assumes? That’s all?” At this point Lenkovics realized that he went too far and quickly retreated: “Everybody is entitled to the presumption of innocence. I believe in civil control.” A little later he even sang the praises of investigative journalism, bemoaning the fact that there are not enough reporters who can ferret out the sources of corruption.

There was a brief exchange on same sex-marriage, in which Lenkovics resorted to the old natural law argument which claims that “certain rights or values are inherent in or universally cognizable by virtue of human reason or human virtue of judicial recognition or articulation.” In his view marriage has “traditional and natural legal foundations … and it is the basis not only of European and Christian civilization but of the whole human civilization.” He compares changing the current law on marriage to creating a law that would state that “a child can be born of a man by a man.” One could write such a law, but that doesn’t make it possible.

Lenkovics wove into the topic of same sex marriage a couple of intriguing sentences. “It is an interesting absurdity that while among heterosexuals the number of marriages is decreasing and more and more existing marriages break up, among homosexuals the demand to be able to get married is growing. Did anyone try to compare them?” I suspect that this intellectual giant thinks that homosexual “propaganda” is making headway and actually has an impact on the sexual behavior of the society in favor of homosexuality.

Finally, there was an exchange on the refugee question, which came up as a corollary to Lenkovics’s distinction between “legal” and “political” constitutionality. The latter in his opinion considers reality while the former is too abstract and unworkable. So, Lenkovics thinks that

It is a great problem that the Universal Declaration of Human Rights emphasizes universality while in reality something very different is going on. The world, the United Nations, the European Union signed a blank check about universal human rights but that check is uncovered.

These people now, as refugees flood the world, declare their human rights and the duties of Europe. Not the duties of their own governments to look after them, but those of the West.

My take on this is that human rights as such should be thrown out of our legal arsenal.

This interview, I believe, tells us more about the nature of the Orbán regime than hundreds of pages of analyses by political scientists. The chief justice opened the door to the workings of Viktor Orbán’s illiberal state.

Sort by:   newest | oldest | most voted
Guest

About the picture.
The man to the left in the mouse-green operette uniform outweighs the EU flag to the right on Justitias imaginary scale.
Most judges show an attitude well known from official pictures from the communist past.
The shape of the room is undefineable.
Miserable furniture design.

petofi
Guest

The EU flag is hung low and at an angle so that the other end probably touches the dirty ground–such a significance is not lost on the ever-suggestive mind of Hungaricoes…

petofi
Guest

correction: “ever-suggestive”…should be, “ever-suggestible”

tappanch
Guest

The influx of the Middle Eastern migrants and refugees is growing, probably motivated by the news that Hungary is building the fence.

There were 4235 people detained by police in the last three days.

http://hvg.hu/itthon/20150720_Tobb_mint_4000_hatarsertot_fogtak_a_hetve

It seems that Afghans outpace Syrians. The reason could be that the Iranian government started to expel the long-term Afghan refugees from Iran [I lost my link]

“Iran has become an unwelcoming place for Afghan refugees. Barati, who lived in Iran’s Shiraz province from 2007 to 2009, fled to Turkey illegally because of what he calls the worsening atmosphere in Iran.

“Afghans refugees have no rights in Iran. We could not get treatment at hospital. They would not even let us use public buses,” Barati claims.

Supporting Barati’s claims is research from Human Rights Watch’s 2013 report, Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights.[…] Iranian forces deport thousands of Afghans summarily, without allowing them the opportunity to prove they have a right to remain in Iran, or to lodge an asylum application.”

http://news.videonews.us/silent-crisis-for-turkeys-afghan-refugees-0827596.html

Guest

Interesting parallels – Britain’s appeasement policy re Hitler and the strange behaviour of their Royals:
http://www.theguardian.com/uk-news/2015/jul/20/queens-nazi-salute-a-sign-of-ignorance-shared-by-many-in-scary-times

Guest

Those fascists sure had an active club in Britain during those days. And like then plenty of ‘Haw Haws’ around today of course. They are a robust and resilent breed spewing out their poisons.

It is apparent that the rhetoric is getting pretty overt. What was once kept in private thought is now in public verbiage in many places. Bound to be a ‘tipping point’ soon along those lines. It has to be dangerous when compounded with the quest to reign in various institutions who are becoming as ‘silent’ as the grave due to government actions.

Webber
Guest

No parallel. Among Western powers, England was first to fight against Hitler. The solid majority of Brits are and were anti-fascist.
Edward VIII, who abdicated, was an exception (and not the only one among Brit aristocrats). The princess (now Queen) was just a child when that picture was taken, and was following what the adults around her suggested.

gardonista
Guest

One of Hungary’s important contribution to world religion was its role in the development of Reformed Judaism, going back to around 1805.
See:
http://www.newworldencyclopedia.org/entry/Reform_Judaism

Aaron Chorin was an especially fascinating example of Reformed Judaism:
https://en.wikipedia.org/wiki/Aaron_Chorin

All of this completely demolishes the Fidesz justification for revoking recognition of Reformed Judaism. It goes back more than 200 years, not less than 20 years, as they claim.

tappanch
Guest

The Fidesz regime does not permit referendums it does not like.

http://nol.hu/belfold/fideszes-troll-1552677

spectator
Guest

This interview, I believe, tells us more about the nature of the Orbán regime than hundreds of pages of analyses by political scientists. The chief justice opened the door to the workings of Viktor Orbán’s illiberal state.

It also give us/me a rather frightening insight on just how deep the Orbanian nonsense penetrated the country’s structure. There is no place with any significance where not the loyal and/or the servile would be in place already.

Hard to see any way out of this masterful cage, really.

Guest

Wow!

It happened under the radar:

Ildikó Vida resigned as the head of tax authority NAV two months ago – so now she’s gone, citing a lot of reasons in a letter to her former colleagues …
http://www.portfolio.hu/en/economy/hungary_travel_ban_gate_star_vida_no_longer_chief_of_tax_authority_ecomin_confirms.29970.html

PS:
I’m sure they give her a nice pension – and maybe a cushy job somewhere …

wpDiscuz