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.
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.