Tag Archives: Constitutional Court

Michael Ignatieff in Brussels ahead of Viktor Orbán

Tomorrow Viktor Orbán will have to make an appearance in the European Parliament in, as 888.hu put it, “the defense of our homeland.” In his long article Gábor Nagy recounts the indignities Orbán has suffered over the years at the hands of the European Commission. He lists all the “unfair” sanctions and infringement procedures, which, I can assure you, are numerous. Dozens of penalties have been levied against Hungary every year. And now, once again, the author continues, the homeland is under unjust fire. The Hungarian people should rest assured, however, that “Orbán is still fighting Brussels,” with the prospect of victory. Or at least that is what the grammatical construction of the sentence implies.

Even though the author envisages victory, a couple of sentences at the end of the article indicate that there is plenty of worry in Hungary over the outcome of this latest bout between Orbán and the European Commission and Parliament. The author calls attention to the fact that “right after the Wednesday EP meeting, Juncker & Co. will decide on new infringement procedures as a result of closing the Serbian-Hungarian border and the Central European University law.” Worry is also evident in a Magyar Hírlap editorial about the possible expulsion of Fidesz from the European People’s Party. It quotes all possible statements by Christian Democratic politicians in defense of Viktor Orbán and tries to calm nerves by quoting a Hungarian proverb about the porridge which is not as hot when eaten as it was while being cooked.

So far the Hungarian government is not backing down. Viktor Orbán declared that “if it’s war, let it be war,” meaning he is ready for a fight. The Orbán government found a new “star” among the Christian Democrats, István Hollik, a relatively young man who has become a forceful and extremely loyal spokesman in defense of the Fidesz-KDNP position. Practically all of his assertions are false, but he utters them with a conviction and force worthy of Szilárd Németh, except that Hollik’s demeanor and delivery are more civilized. Today in a press conference he delivered an indictment of both George Soros and the European Union. Soros, we were told, has been banned from “many countries–from the United Kingdom to Israel,” and “more than a dozen politicians in Brussels are in Soros’s pocket.” It is “an open secret, according to him” that his men are in the European Council and the European Parliament. As far as Hungary’s membership in and support from the EPP are concerned, Hollik claims to know that “the members of the European People’s Party are certain that EPP’s leaders, just as in earlier times, will not believe the mendacious allegations against Hungary and will give the country an opportunity to explain the facts and to clarify the misunderstandings.” My feeling is that this optimistic bit of news comes from the Fidesz contingent within EPP.

Well, if it depends on Michael Ignatieff, I don’t think there will be any misunderstanding in the EU about what the Hungarian government is doing as far as Central European University is concerned. Here are a couple of sentences from Ignatieff’s talk at an event organized on the issue of CEU in the European parliament, as related by The Guardian. His verdict on what the Orbán government is doing to his university is crystal clear. “It is just outrageous and these people around here need to understand how outrageous it is. This will be the first time since 1945 that a European state had actually tried to shut down a free institution that conforms to the law, that has good academic standards, operates legally…. My job is not to tell Europe what to do about it but to say: here are the stakes, this is why it matters.” Unusually frank words in the political world of the European Union. When Ignatieff was asked what Orbán hoped to achieve in persecuting CEU, he said: “You have really got to ask him. I can’t characterize what the agenda is with confidence and for me that is not the issue. I don’t care what the agenda of Mr. Orbán is, actually. My point is you don’t take an institution hostage to serve your political agenda, I don’t care what it is.” Ignatieff is, by the way, “cautiously optimistic” that the European Union will launch infringement proceedings against the Hungarian government.

Ignatieff also participated in a discussion organized by the Free University of Brussels (ULB/VUB), where the Hungarian ambassador to Brussels was present. The ambassador admitted that the European Commission might initiate an infringement procedure against Hungary on account of the CEU scandal, but “we are ready to face them and settle the disputes together.” There might, however, be a faster and more effective way to punish the Orbán government. You may recall that Ignatieff talked not only to Frans Timmermans but also to Carlos Moedas, who is in charge of research, science, and innovation. It is possible that the new law can be seen as interfering with the free flow of scientific inquiry, and therefore it might run counter to EU laws. In fact, that possibility was brought up in Frankfurter Allgemeine Sonntagszeitung. If this is the case, the EU could withdraw support for scientific research in Hungary.

Earlier, I thought there would be an easy way for the Orbán government to get out of this sticky situation. With the help of Jobbik, 64 members of parliament signed a request to the Constitutional Court to take up the case and decide on the constitutionality of the new law on higher education. The Hungarian legal community is practically unanimous in its conviction that the law is unconstitutional. Such a ruling by the court would provide cover for the government. It could drop the whole idea and thus save face and, at the same time, demonstrate to the world that, after all, Hungary is still a democratic state. Unfortunately, there is a problem of time. If President Áder had sent the amendments to the court for review, the Constitutional Court would have had to rule within 30 days. But in the case of a parliamentary petition, it might be several months before a verdict could be expected. So, in the short run this is not a workable solution.

For now, everything depends on what happens by the end of the week in Brussels.

April 25, 2017

Viktor Orbán’s regime under fire at home and abroad

It is difficult nowadays to write a post about the Hungarian political scene since it is almost impossible to predict what may happen in the next few minutes on the streets of Budapest, which are again filled with demonstrators.

One thing I have been pondering today in view of the latest U.S.-Hungarian clash over the Central European University (CEU) is the Orbán regime’s total ignorance of the workings of the U.S. government. Throughout the presidential campaign, interest in the Clinton/Trump duel was just as intense in Hungary as anywhere else in Europe. Yet day after day it was apparent that a great many journalists as well as politically engaged citizens were unfamiliar with even the most basic principles of the U.S. electoral law. I found this depressing. But when politicians who are supposed to make decisions affecting U.S.-Hungarian relations are ignorant of how U.S. diplomacy functions, we are in real trouble. And unfortunately, this is increasingly the case.

In the last three years the whole Hungarian diplomatic corps was decimated, and their places were filled with party loyalists who had no diplomatic experience. But even those who in the past 20 years were in important diplomatic positions and who are considered to be Atlantists, i.e. working for better U.S.-Hungarian relations, can come up with mind-boggling idiocies. The latest example comes from Zsolt Németh, undersecretary of the foreign ministry between 1998 and 2002 and again between 2010 and 2014. Commenting on Hoyt Brian Yee’s message to the Hungarian government, he said that Yee’s report on the U.S. government’s support for CEU is “only an opinion and in any case we are talking only about a deputy assistant secretary. Moreover, as far as I know, he has held this position for the last few years, so we ought to wait for the answer of the present American administration as to whether we can sign an agreement that would make CEU’s continued work possible.” What dilettantism and what arrogance, said Zsolt Kerner of 24.hu. The Orbán government assumed (and of course hoped) that the American response still reflected the thinking of the Obama administration. But a few hours after Németh’s comment Mark C. Toner, spokesperson of the State Department, confirmed Yee’s message. The most important sentence of Toner’s lengthy answer to a journalistic question was: “We’re urging the Government of Hungary to suspend implementation of the law.” The message cannot be clearer. The simplistic view of the Orbán government that, for Hungary, “Democratic rule is bad, Republican rule is good” was once again proved wrong. How could Viktor Orbán have forgotten his bad luck with George W. Bush after 9/11 when his insensitivity or perhaps planned insult got him into deep trouble with the Republican administration for the rest of his term?

Viktor Orbán has been a great deal more successful in his dealings with the European Union. For years he has been hoodwinking the hapless “bureaucrats.” But the “Stop Brussels” campaign and the farcical questionnaire of the so-called National Consultation helped them see the light. At last the College under the chairmanship of First Vice-President Frans Timmermans decided “to take stock of the issues at hand, in an objective, facts-based and law-based manner” concerning “the compatibility of certain actions of the Hungarian authorities with EU law and with our shared values.” Timmermans outlined the issues the European Commission and Parliament considered troubling. Heading the list was the fate of Central European University, but right after that came the announcement that “the Commission … decided that it will prepare and make public its own response to the Hungarian Government’s ‘Stop Brussels’ consultation.”

The current European Commission

Moreover, Timmermans accused Hungary of not abiding by Article 2 of the Lisbon Treaty, which reads: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” The sins of the Orbán government are numerous: its attack on CEU and the NGOs, lack of transparency of funding, asylum questions, disregard of human dignity and freedom, and a lack of respect for human rights, tolerance, and solidarity. Of course, we have heard all this before, but what’s different this time is that Timmermans announced that they will complete the legal assessment of the Hungarian situation as soon as possible and “the College will consider next steps on any legal concerns by the end of the month.” In the European Union, where everything takes months if not years, the Hungarian issue seems to have priority. The EU’s criticisms didn’t go unnoticed in Poland. Foreign Minister Witold Waszczykowski, in an interview with MTI, the Hungarian news agency, labeled Timmermans’ announcement “blackmail.” Péter Szijjártó called it a “pathetic accusation.”

I left to the end a development that I find extremely important. Viktor Orbán’s whole political system relies on a three-pronged parliamentary structure. Fidesz is the “center power” with two opposition groups on its flanks: Jobbik on the right and assorted smaller parties on the left, where the right and left have diametrically opposed ideologies. This was the situation in Hungary between the two world wars, which ensured the government party’s supremacy from 1920 to 1944. The genius of this arrangement is that these two poles, due to their ideological incompatibility, are unlikely to unite against the middle.

But in the CEU case Jobbik opted to join ranks with the left. In Hungary 25% of parliamentary members can demand a review of a law by the Constitutional Court, even if it has already been signed by the president. LMP decided to invoke this procedure to trigger a Court review of the new anti-CEU law. To reach the 25% threshold LMP needed to muster 50 votes. If only LMP (5), MSZP (28), and all the independents (11) were to vote for the initiative, they would come up short. But Jobbik decided to add its 24 votes. Demokratikus Koalíció (4), whose members sit with the independents, opted not to join the others because DK doesn’t consider the Fidesz-majority Constitutional Court a legitimate body. Thus, 64 members of parliament joined together in an action against Fidesz. Of course, the Jobbik spokesman emphasized that the decision was made only to save the rule of law in Hungary, and he kept repeating that this doesn’t mean an endorsement of George Soros or his university. But the fact remains that Jobbik decided to join the rest of the opposition. (At the time of the vote on the law on higher education they simply didn’t vote.) This Jobbik decision may have significant consequences.

As I write this, tens of thousands are demonstrating in Budapest, all over the city. The cause is no longer just CEU and the NGOs but democracy and a free Hungary.

April 12, 2017

How not to pick constitutional judges: LMP’s choices II

My post on the election of the four new members of the Hungarian Constitutional Court ended on a pessimistic note. I was of the opinion that all four nominees are legally conservative and thus would strengthen the already overwhelmingly one-dimensional, pro-government character of the court. Since then I read András Schiffer’s lengthy self-justification of his role as the principal architect of the deal that allowed all the positions on the court to be filled. Unfortunately, the article gave me no reason to change my mind.

Schiffer is very proud of his achievement. As opposed to other opposition parties, he said, LMP brokered a deal that is a sensible compromise. In fact, he believes the democratic opposition came out ahead.

Schiffer suggests that with the four new judges the court will be less lopsided. He convinced himself that the selection of constitutional judges prior to 2011, when all parties participated in the selection, was nothing more than political pillage by which each party pitted its own candidate against all others. He broke with this tradition. His candidates, he said, are independent scholars not attached to any party who will judge each case on its merits. It’s hard to imagine that Schiffer actually believes his own propaganda.

Schiffer gave a glowing account of the four new judges. According to him, they are all internationally known scholars. This may be true of Balázs Schanda and Marcel Szabó, but on the basis of my research it is certainly not true of Marosi and I also have my doubts about Attila Horváth, whom I will introduce today.

As I noted earlier, Horváth was Fidesz’s choice. He is, as index.hu pointed out, the only new judge who “is being accused of far-right sympathies.” We wouldn’t know that from Schiffer’s article. Schiffer was a student of Horváth in the early 1990s, and “on the basis of his lectures one would have had difficulty identifying his political views.” As you will see later, however, there are plenty of signs that Horváth leans far to the right. In Schiffer’s version, it was Gergely Gulyás, who represented Fidesz in the negotiations, who pointed out the necessity of having a legal historian on the court. Schiffer accepted his argument. There is no question, says Schiffer, that today Horváth is the “best known legal historian of the socialist period.” I’m sure this is the case because Horváth seems to be the obvious person to consult every time there is a controversial case involving the sins of the communists, be it the Hungarian Soviet Republic or the guilt of Béla Biszku.

Attila Horváth at one of his frequent lectures

Attila Horváth at one of his frequent lectures

One reason for Horváth’s reputation as a man of far-right views was his participation in the Civil Legal Committee, an organization created by Krisztina Morvai of Jobbik to investigate the “police terror” that allegedly took place in the wake of the disturbances in the fall of 2006. Morvai’s extremism defined the tone of the report the Civil Legal Committee published. Six lawyers were involved in writing the report, five of whom are well-known right-wingers, including another Jobbik member, Tamás Gaudi-Nagy. Attila Horváth was also a member of this committee, although his role was restricted to writing a chapter on “the history of the theory and practice of the right of assembly in Hungary until 1989.” But the very fact that he agreed to be part of this group says something about the man.

Since Horváth doesn’t seem to keep his curriculum vitae up to date, I don’t have a complete list of his publications. His early work focused on the reform period of the 1820s. The center of his attention was the modernization of Hungarian legal thinking and the ideas of István Széchenyi. It was only in the 1990s that he left the safety of the pre-1848 period and moved on to the much more politically charged topic of the legal system of the socialist system. Horváth doesn’t confine his activities to legal studies. He also writes short non-legal pieces, for example on the causes of the outbreak of the revolution in 1956.

Horváth usually has strong opinions on controversial issues. Here is one example. In the spring of 2015 a huge controversy broke out over the dictum, coming from the ministry of human resources, about a required name change in Szeged. The Ságvári Gymnasium, one of the best in the country, had to shed its name because Endre Ságvári was not only a communist, he also killed a gendarme on July 27, 1944–that is, after the German occupation of Hungary. The Hungarian Academy of Sciences, at the request of the Orbán government, recommended not naming any public place or institution after him because of his communist past. Given Horváth’s reputation as the legal expert on such matters, Magyar Hírlap asked his opinion on the issue. Horváth said: “Ságvári did nothing significant. Just because he is less of a negative character than, let’s say, Rákosi, it doesn’t mean that he is worthy of having an institution named after him.” In Horváth’s opinion, the resistance of other organizations was much more important than the communists’ struggle against the German invaders.

Horváth can often be seen side by side with total amateur “historians” whose “fame” is due entirely to their political connections. For example, Ildikó Kassai, whose good fortune is due to her friendship with János Lázár. In no time after 2010, her career soared. She became an adviser to Ferenc Papcsák (Fidesz) of Zugló,  and after 2014, one of the directors of the Holocaust Memorial Center, where she wreaked havoc. She kept organizing historical conferences, and she gave a lecture on the 1956 revolution that was full of stories I had difficulty believing. At the same conference Attila Horváth told equally dubious stories about the “pesti srácok.” It seems to me that Horváth, for ideological reasons, is ready to travel far from his real expertise, legal history.

November 24, 2016

How not to pick a constitutional judge: LMP’s choices I

Parties of the democratic opposition are up in arms. They are outraged at the assistance LMP extended to Fidesz to score an important parliamentary victory, the approval of four new judges for the Constitutional Court.

MSZP in the last minute tried to delay the inevitable by instructing its representative on the nominating committee to resign ahead of the vote. With his resignation the committee, which according to house rules must have at least nine members, no longer had a quorum. The MSZP tactic might have been clever, but the socialists didn’t count on Fidesz’s total disregard for rules and regulations. The majority party could have opted to get another member to replace MSZP’s representative and, let’s say a week later, finalize the nominations. No, they simply went ahead. This time not even Gergely Gulyás, Fidesz’s legal magician, could give a half-believable explanation for the vote’s alleged legality. Because of the decision to go ahead with the nominations despite the lack of a quorum, the opposition parties consider the entire procedure by which these four people were appointed illegitimate.

The Károly Eötvös Intézet, the liberal legal think tank, hasn’t changed its opinion in the last year. Just as in January, the legal scholars working there consider LMP’s decision the worst possible move. Their position is that the Constitutional Court ever since its enlargement with four Fidesz-appointed judges has not been an independent court but an arm of Fidesz’s political will. It no longer fulfills its function. As it stands, there are seven judges who will always vote in favor of the government while four on occasion will express a contrary opinion. The four new judges, considered to be “conservative,” will make the situation even worse. And no judge will have to retire from the court before 2023.

That leads me to the problem of vetting nominees. It has happened in the past, when all parties participated in the nominating process, that the socialist-liberal nominee turned out to be much more conservative than anticipated. One reason for these “mistakes” is the lack of a body of legal work on the basis of which the candidate’s legal philosophy could be judged. A good example of this was the choice of Mihály Bihari by MSZP and SZDSZ. Although he had a law degree, he had worked as a political scientist. There was no reliable way to assess his legal views. A somewhat similar situation occurred when Fidesz nominated István Stumpf, again a political scientist, to the court in 2010. Judging by his past, he should have been an absolutely safe choice from Viktor Orbán’s point of view. After all, Stumpf served as Orbán’s chief of staff between 1998 and 2002. But he turned out to be much less reliable than expected. The same problem exists with people who have been practicing judges and have no published work on the basis of which one could assess their legal thinking. Among the new appointees Ildikó Marosi falls into this category. She has been working as a judge, dealing with administrative and labor cases.

Although all opposition parties are highly critical of LMP’s role in this affair, the Demokratikus Koalíció is the most outspoken in its condemnation of the party. Csaba Molnár, one of the deputy chairmen of DK, tore into Ákos Hadházy on ATV’s “Szabad szemmel” (Open eyes). It quickly became apparent that Hadházy had not the foggiest idea about the legal views of the nominees his predecessor, András Schiffer, had picked.

molnar-hadhazy2

Csaba Molnár and Ákos Hadházy on ATV’s “Szabad szemmel”

A lot of people, including me, hoped that under the leadership of Hadházy LMP would be more willing to cooperate with the other opposition parties. I remember vividly when he announced that any kind of a deal or coalition with Fidesz is absolutely out of the question as long as he is the co-chairman of LMP. Hadházy normally makes a very good impression on people. He comes across as a modest, earnest, idealistic man who isn’t quite at home in the world of politics. Unfortunately, he is also naïve. He doesn’t seem to understand how differences in legal philosophy shape how judges interpret the constitution. When Molnár tried to explain to him that at least three of the nominees come from the conservative legal camp, which would further strengthen the pro-Fidesz majority, Hadházy naively shot back: “And conservative people cannot be honest?”

In any case, poor Hadházy was demolished under the weight of the facts DK gathered on the legal and political past of the nominees. Hadházy could only mumble: “Well, I didn’t know that, I will have to check on this.” This was Hadházy’s answer to Molnár’s claim that Bálint Schanda’s views on abortion are so extreme that, if it depended on him, he would forbid pharmacists to fill valid prescriptions signed by a physician for the morning-after pill.

The fact is that Schanda writes almost exclusively on legal questions concerning religion. The list of his publications is a mile long, and some of them are available online. If it depended on Schanda, stores would be closed on Sundays because believers (Christians) should have the opportunity to follow the Scripture, which forbids any kind of work on the Sabbath. This is part of the freedom of religion in his opinion.

He can be critical of the government, but his criticism comes from his religious convictions and his special interest in the defense of the family. For example, he didn’t like the idea of keeping children in school all day long, which he considers to be a “left-wing notion” popular in Western Europe. That’s why he was surprised to learn that the conservative Fidesz government had decided to introduce such schools. He finds the idea of the state’s taking over the “nurturing” of children from the family unacceptable. Church schools, however, are different because the parents expressly grant the church the task of educating their children.

Schanda also liked the idea of “family electoral law.” That is, that parents, depending on the number of children they had, could have multiple votes. Admittedly, he doesn’t want Hungary to rush into being the first country in the world to introduce such a law, but “this question cannot be a taboo; it would be foolish simply to discard it without seriously considering it.” In the article he practically suggests starting preparatory work for such a piece of legislation to be introduced later. Perhaps if Ákos Hadházy took the time to read a couple of Shanda’s articles he would better understand the impact of legal philosophy on people’s daily lives.

Finally, Csaba Molnár brought up an article by Schanda that he published in Magyar Kurir, which is the official newspaper of the Conference of the Hungarian Catholic Bishops. The short article’s title was “Pope Francis and zero tolerance.” It was about the vexing question of pedophilia. Schanda explains that there is nothing new in Pope Francis’s announcement because the church has had strict laws concerned pedophilia since 2001. Zero tolerance in this case simply means that a priest accused of this particular crime is immediately suspended, which he approves of. He cautions, however, about exaggerating the problem “because according to American studies pedophilia among Catholic priests in comparison to lay teachers is infinitesimal.”

The only study on pedophilia among Catholic priests I found was from 2004. The John Jay College of Criminal Justice published a comprehensive study in which it was claimed that 4% of Catholic priests in the U.S. had sexually victimized minors in the past half century. This seems to be somewhat lower than school teachers during the same time frame. Well, “somewhat lower” is not “infinitesimally” less. Moreover, it is very possible that victims of priests are less willing to confront church authorities than victims of teachers are to go to civil authorities. But this is a small point and not an important one. What, on the other hand, I found disingenuous was his claim that “in the former socialist countries the proportion of such acts in comparison to western countries is much lower.” At this point I had to laugh. What makes Polish, Hungarian or Slovak priests less prone to committing such crimes? Their countries’ socialist past? Or, perhaps something else, like a lower rate of reporting and a higher rate of covering up cases. Schanda even tries to cast doubt on the seriousness of the very few stories that emerged in the last few years in Hungary by saying that the media used these cases to incite anti-church sentiment in the population. Moreover, he claims that these cases were exploited by political parties. Obviously, the socialist-liberal parties.

In the summer of 2011 I devoted four posts to the four Fidesz-picked judges, asking “how qualified will the new judges in the Hungarian Constitutional Court be?” I’m planning to do the same this time.

November 23, 2016

The right decision: MSZP refuses to assist Orbán’s illiberal democracy

In the last few days an intense debate has been waged over new constitutional court appointments. Very soon the mandates of three members of the fifteen-member constitutional court will expire; the term of Péter Paczolay, the former chief justice, expired almost a year ago. Therefore, in order to have a full court, four new justices must be appointed.

I don’t think it’s necessary to retell the sad story of a once well-functioning constitutional court that was first packed with Fidesz party loyalists and later stripped of most of its competence. In my opinion, and I’m not alone, the current constitutional court is an empty gesture toward the semblance of democracy.

With the departure of the three judges, all the remaining justices are Fidesz nominees, including two who were jointly nominated by Fidesz and Jobbik and approved by Fidesz’s two-thirds majority. Today, however, Fidesz no longer has the luxury of a super majority and so would like to come to some kind of understanding with the opposition parties. According to information obtained by Index, the original idea was that Fidesz would nominate three judges while an opposition party willing to strike a bargain with the government party would be able to sponsor one judge of its choice. Apparently, Jobbik was approached first. It immediately rejected the idea and proposed that Fidesz nominate two judges, Jobbik one, and the democratic opposition parties one. By early January, Fidesz apparently agreed to the scheme. The reason that Fidesz, or to be more precise Gergely Gulyás, who is the party’s negotiator, was so amenable is that if there is no agreement, the constitutional court will not have a chief justice either. According to the new rules, the chief justice is no longer elected by the other judges. His appointment must now be sanctioned by a two-thirds majority of parliament, which Fidesz no longer has.

Jobbik’s negotiators were naturally pleased, and for a while it looked as if some people in the MSZP leadership were also ready to sit down and negotiate with Fidesz. One MSZP politician, Gergely Bárándy, who has neither the backbone nor the smarts of his father, Péter Bárándy, the former minister of justice, was quite willing to lend his party’s name to this deal. A few weeks ago he told Ildikó Csuhaj of Népszabadság that such an offer shouldn’t be rejected “just because of what has happened in the last six years.” They shouldn’t be offended and boycott the negotiations, because in that case not even one decent judge would sit on the court. But, as usual, the MSZP leadership was split.

It was under these circumstances that the Károly Eötvös Institute (EKIN), a legal think tank, came up with a brilliantly argued piece of writing titled “Should the opposition nominate a judge to the constitutional court?”

Here I will summarize the argument of this NGO. There are three possible alternatives. The first is that the opposition parties accept the offer. The second, that the left-of-center parties turn the offer down and Fidesz makes a separate deal with Jobbik. Third, they simply don’t pick new judges and thereby the court will have only eleven members. In order to have a quorum, at least ten judges must be present.

In the opinion of the Institute, “the reasons for turning down the offer are overwhelming.” All eleven judges are Fidesz appointees, and the majority of them are clearly “government loyalists.” One lone judge nominated by the left makes not the slightest difference. At the same time, the negative consequences are numerous. First, agreeing to participate would give the impression of multi-party consensus. Second, those opposition parties that until this point had criticized the practices of the Orbán regime would lose their right to criticize the constitutional court. Third, by engaging in a negotiation with Jobbik, the democratic parties would go against their declared position never to cooperate with this far-right party. Taken alone, each of these concessions is unacceptable, but together “it is sheer madness both morally and politically.”

If MSZP and other democratic parties represented in parliament refuse to participate, Fidesz would be forced to make a deal with Jobbik, which “would strengthen the illegitimacy of the constitutional court at home and abroad.” If neither the new members nor the chief justice can be installed, it could easily happen that the functioning of the court could be jeopardized. But “because the court today … doesn’t exercise any real control over the government majority, we can’t consider this a real loss.” The only alternative for the democratic parties would be a return to the nominating practice that was in place prior to 2010 and to the reestablishment of the full competence of the court. Surely, Orbán will never agree to this, and therefore “there is no real alternative to the rejection of the offer.”

At this point and for a couple of days later it was unclear what MSZP was planning to do. Then two days ago Ferenc Gyurcsány, chairman of the Demokratikus Koalicíó, on his Facebook page announced that since there is consensus among the democratic parties that Fidesz destroyed the Third Republic, anyone who assists Fidesz in obscuring this fact is an accomplice of Viktor Orbán and a traitor to the democratic opposition’s policies.

Today József Tóbiás made the long-awaited announcement. MSZP will not nominate anyone and will not take part in the ongoing discussions concerning the appointment of the four judges to the constitutional court.

Jözsef Tóbiás announces the decision: No help to Fidesz

Jözsef Tóbiás announces the decision: No help for Fidesz

As for LMP, as usual it refuses to join the other democratic parties and is ready to negotiate with Fidesz and Jobbik. András Schiffer, co-chairman, doesn’t agree with EKIN’s analysis of the situation. He sees some differences in the opinions of the judges despite the fact that they are all government appointees. Therefore he believes that the opposition should add its own nominee to strengthen the admittedly very “nuanced” voices. However, he doesn’t want to see a return to the old practice, which simply meant voting down each other’s candidates. He would like to have consensus. He claims that he knows four people who would be acceptable to all parties.

Of course, at this point Schiffer didn’t know whether MSZP was game or not. Since that question was decided today, I wonder how Fidesz-Jobbik on one side and LMP alone on the other side will agree on four acceptable candidates. What other democratic parties think of Schiffer is demonstrated by an open letter of Viktor Szigetvári, chairman of Együtt, in which he expressed his utter dismay at LMP’s decision. He accused Schiffer of “assisting in the consolidation of the illiberal regime” in Hungary. Such a move “is not just a mistake but an unfathomable shame.”

The usually belligerent Lajos Kósa was the first Fidesz representative to respond to the news of MSZP’s decision, and he sounded rather sad. Fidesz will send an invitation to the party even after Tóbiás’s announcement. This tone tells me that EKIN’s analysis was correct and that MSZP made the right decision.

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

 

Kim Lane Scheppele: Hungary without two thirds

I’m glad to be able to share Professor Kim Scheppele’s latest article, which appeared on Paul Krugman’s blog in The New York Times on March 17, 2015.

* * *

On 22 February, in a small by-election in a medium-sized Hungarian town, the governing party Fidesz lost its two-thirds parliamentary majority.

The loss of the Fidesz supermajority is a big deal because two thirds is a magic fraction in Hungarian law. With two thirds of the parliamentary seats, a party can change the constitution at will and therefore govern without constitutional constraint. But it’s not just constitutional change that requires a two-thirds vote. Over the last five years, Fidesz built so many required two-thirds supermajorities into so many different laws that it is nearly impossible to govern Hungary on a daily basis without two thirds. And each time it now confronts a two-thirds problem, Fidesz must get the support of someone – or some party – outside its own circle. This is the first political constraint that Fidesz has faced since it came to power in 2010.

When Fidesz still had the the magic two-thirds majority

When Fidesz still had the magic two-thirds majority

What will Fidesz do without two thirds? It only took a little more than a week after the by-election for a tentative answer to emerge. A two-thirds vote appeared on the parliamentary agenda – and passed. Who put Fidesz over the top to get its two thirds? An MP from the far-right party Jobbik. The vote signaled that Fidesz may now be working in effective partnership with a party that Human Rights First has called “the bloody tip of the far-right spear in Europe.”

If this is true, then why hasn’t the European Union immediately launched crippling sanctions as EU member states did when the Austrian government included Jörg Haider’s far-right party in 1999? Because Fidesz learned a lesson from that example. In Austria, the coalition was public. In Hungary, a coalition can be secret.

The constitutional rules in Hungary permit Fidesz to keep its two thirds through strategic absences rather than affirmative votes. For most two-thirds votes, no member of parliament (MP) need visibly cross the aisle to vote affirmatively with the governing party. If an opposition MP is merely missing when a two-thirds vote is taken, Fidesz can still win.

In Hungarian constitutional law, not all two-thirds majorities are created equal. An absolute two-thirds majority requires the affirmative vote of two-thirds of all of the members of parliament. An absolute two-thirds majority is required to amend or rewrite the constitution or to ratify treaty change in the European Union. An absolute two-thirds majority is also required for electing constitutional judges, the president of the Supreme Court, the head of the State Audit Office, the head of the National Judicial Office, the public prosecutor and the ombudsman – or to declare a state of emergency. For Fidesz to gain an absolute two-thirds majority now, someone must to visibly cross the aisle and vote with the governing party.

But it takes only a relative two-thirds majority to do everything else – like amend the especially important “cardinal laws” or fill seats on the electoral commission or the media council. A relative two-thirds majority requires the affirmative vote of two thirds of the members of parliament who are present on that day in the chamber, given a quorum. Fidesz can therefore still win a relative two thirds with the votes of only its own party if all of its MPs are present while any non-Fidesz MP is missing. For the vast majority of two-thirds votes, then, Fidesz does not have to win an affirmative vote from an opposition MP. It only has to procure his absence.

On 3 March, Fidesz faced its first two-thirds challenge since it lost its supermajority. Two key items were on the agenda that day, both bundles of amendments to existing laws. Parts of each bundle were “cardinal” and thus required two-thirds votes while other parts were not and therefore required only a simple majority to pass. The governing party’s tendency to mix different sorts of amendments in the same parliamentary procedure is confusing for everyone, including MPs who have to vote by different majorities on each.

In the first package of amendments, child protection agencies, social security offices, employment centers, land administration agencies, environmental protection offices and more would lose their independent and separate spheres of action and become integrated parts of the regional offices of the central government as of 1 April 2015. The second package of amendments proposed to “enhance public trust in state officials” by requiring public sector workers to disclose to their employers if they are under criminal investigation.

At the time of the vote on both packages, all Fidesz MPs were present, but there was one opposition MP missing: István Apáti from Jobbik. The cardinal bits in first package of changes passed, with 131 votes in favor (all Fidesz), and 65 against, with 196 MPs present – gaining the support of 66.8% of those present. This gave Fidesz just barely two thirds (above 66.6%). The cardinal bits in the second package of changes failed because only 130 voted in favor, 44 voted against and 22 (Jobbik MPs) abstained. Because only 66.3% of the MPs present voted for the law, Fidesz failed to clear the two-thirds hurdle by a bare one third of one percent.

What happened in the second vote? Lajos Kósa, a Fidesz stalwart, pressed the wrong button and accidentally voted against the package. His party promptly fined him 100,000 forints (about $343 USD) for having disobeyed a party order to vote along party lines. (Yes, in the Hungarian parliament, some political parties fine their MPs for failing to take direction on parliamentary votes!)

Fidesz castigated Kósa for making a mistake on the second vote. But, they said nothing about how the first package could pass. It gained the required two-thirds vote only because an opposition MP was missing. Had Kósa not erred, the second package would have passed as well.

Jobbik’s party leader, Gábor Vona, claimed to be furious with the missing MP Apáti and fined him 100,000 forints for violating party discipline. Vona gave an interview shortly thereafter in which he threatened anyone who might claim that Jobbik was acting in concert with Fidesz on this vote.

But the whole story got curiouser and curiouser when Apáti started explaining why he had been absent on that crucial day. He claimed he had to protect his family because he had gotten death threats from a member of a Roma gang. (Jobbik rode to popularity on an anti-Roma platform blaming “Gypsy crime” for many of Hungary’s ills.) While the threat occurred on a Saturday, he reported it to the police only on Monday, which was the day before the parliamentary vote. Journalists who interviewed many people in his town could find no one else who knew about a local “Roma mafia.” So the story just seems strange and conveniently timed.

Does this mean that Fidesz is working under the table with Jobbik? From this one incident, it is hard to say for sure. Jobbik’s leader has been at pains to claim that there is no secret coalition, and yet Vona was himself missing for another parliamentary vote on 15 December 2014 that had the same effect. At that time, Vona’s absence shored up the Fidesz relative two-thirds when a Fidesz MP, Jenő Lasztovicza, was absent due to illness. (He later died – so there will be another by-election in April.) The December vote sailed over the two-thirds hurdle with even more support than necessary because another MP, former Socialist Prime Minister Ferenc Gyurcsány, was missing as well. Fidesz was therefore already able to pass an amendment to a cardinal law (in this case, one that nationalized and regulated tobacco shops) when one of its MPs was dying – before the party definitively lost its two thirds in February’s by-election. In December, the Fidesz victory was made possible by missing one MP to the right and another MP to the left of the governing party.

When Vona’s December absence was noted in the brouhaha over the 3 March vote, he promptly fined himself 100,000 forints to show that he was even-handed about disciplining his party’s members. He then said he would donate the proceeds of this fine to charity, raising questions about whether, under Jobbik party rules, fines issued against MPs who don’t follow party orders go straight into the pocket of the party leader.

The theory that Fidesz is collaborating with Jobbik is not far-fetched, given the record. Since 2010, when Fidesz took office with its two-thirds supermajority, Jobbik has been the only parliamentary party whose MPs have voted with Fidesz on a non-trivial number of occasions. Jobbik supported many of Fidesz’s most controversial laws – for example, the extra taxes on banks, retroactive taxation of public sector severance pay, the elimination of time limits on pretrial detention and the approval of the recent deal with Russia on nuclear plants. Jobbik even backed two of Fidesz’s appointments to the Constitutional Court (Béla Pokol and Imre Juhász).

Not only has Jobbik already voted more often than any other party with Fidesz, but Fidesz has already borrowed many ideas from Jobbik. Before the by-election, Jobbik votes were not needed to get to two thirds and Fidesz did not have to take pages from Jobbik’s platform to get Jobbik’s votes. Jobbik regularly piled votes onto Fidesz initiatives and Fidesz regularly took ideas from Jobbik anyway. A secret collaboration at this point would only take underground what has already occurred in public. Perhaps what we saw on 3 March is a sign that Fidesz and Jobbik are already working together.

But the deniability of a working coalition is crucial to its success. Would the EU sanction the Fidesz government for collaboration with a far-right party when Jobbik MPs are simply missing in action at the time a parliamentary vote is called? Since there are so many reasons to be away from parliament on any particular day – “Roma attacks,” or perhaps a strategic illness, or a well-timed flat tire – missing MPs have plausible deniability that their absence was part of a plan. One can imagine that EU sanctions would dissolve without smoking-gun proof of coordination. In addition, Fidesz and Jobbik have every reason to deny working together in order to maintain their credibility with their own voters.

Jobbik is not the only source of a crucial missing MP. Any MP willing to put personal benefit ahead of party loyalty – or any MP who could be successfully blackmailed – could agree to be absent and allow a relative two-thirds majority to form without him. All Fidesz needs is one opposition MP to disappear on a particular day and the relative two-thirds votes will still sail through. Fidesz may find that it is even simpler to get an individual MP to break from a party than to convince a whole party to collaborate.

Of course, the fact that Fidesz could seek its procured absences elsewhere reduces Jobbik’s bargaining position. So, Vona could be right that there is no permanent coalition. But there may be an opportunistic collaboration on particular issues nonetheless. If Fidesz were really clever, however, it could hide such an opportunistic collaboration by procuring a strategic absence from both left and right on the same day, just to demonstrate its independence. We already saw that voting pattern in December. It would be fascinating to know what has been promised – or threatened – in exchange for absences. Or whether the absences were generated by one of the many perfectly innocent reasons why MPs go missing for crucial votes.

Figuring out what is happening in Hungarian politics from now on will require careful attention to missing persons. We probably will not have to wait long to see the new ways that Fidesz gets its two thirds because amendments to cardinal laws come up surprisingly often in the Hungarian parliament. Cardinal laws were originally only supposed to regulate matters of fundamental constitutional importance, but they now cover so many different subjects that two-thirds votes have become the “new normal” of political life.

The parliamentary records show that Fidesz has needed its supermajority almost every week – and sometimes even every day – that it has governed. In fact, one Hungarian law blog did the count: between September 2014 and January 2015, fully 50 matters before the parliament required two-thirds votes. In the year before that, two-thirds votes were required on 214 occasions. The law on economic stability alone was amended 20 times since its passage in 2011 and, since it is a cardinal law, each vote has required two thirds. (So much for economic stability!)

While Fidesz now claims that the loss of its two-thirds supermajority is not important because revolutionary changes are over and the need for the daily two thirds has passed, the statistics don’t lie. Prime Minister Viktor Orbán’s new constitutional order can’t operate smoothly without its two thirds.

Perhaps the best testament to the continuing importance of two thirds is the legal framework invented for last April’s parliamentary election. Orbán clearly thought that his two-thirds majority was so important that he stopped at almost nothing to keep it. In fact, Orbán actually needed every trick in the book to win his second two-thirds parliament. He also needed a trick that was not in the book. Fidesz won its two-thirds majority in April 2014 only by counting the speaker of the house in that total, and then the party discovered that the rules of parliamentary procedure prevented the speaker from casting a vote. So the Fidesz MPs quickly voted to change the “house rules” of the parliament to allow the speaker’s vote to count. And voilà! Fidesz retained its two thirds!

After February’s by-election, however, Fidesz no longer has its magic fraction. Given the party’s plunging popularity, it may well lose the next by-election in Tapolca on 12 April** as well. The loss of two thirds is important, both practically and symbolically. But we will only be able to assess whether Fidesz’s wings are really clipped and whether Orbán has had to depend on strategic partners by closely monitoring every two-thirds vote from now on. If Orbán keeps achieving relative two-thirds majorities with only the votes of his own party, then we should wonder what price was paid for every empty seat in the room. In Hungarian politics now, out of sight should not mean out of mind.

** In the original blog post, I not only got the by-election date wrong but also misspelled Tapolca! It’s corrected here.