Tag Archives: Constitutional Court

Mission accomplished: Jobbik’s hard-hitting billboards will be removed

On June 14, 2016, a united opposition prevented the adoption of a proposal intended to re-regulate the use of posters and billboards by political parties. The bill, among other things, included the stipulation that if the provider of advertising surfaces sells spaces at a price lower than the current market value, such an action would be considered to be hidden and forbidden party financing. Since a portion of the bill dealt with party financing, in order to pass, the bill needed a two-thirds majority of the members present.

The proposal was submitted in response to thousands of Jobbik billboards carrying the message that while ordinary citizens work, the members of the political elite and their friendly oligarchs steal the country blind. Viktor Orbán’s fury over the posters was only reinforced when he learned that Jobbik had rented the advertising surfaces from one of Lajos Simicska’s business ventures, Mahír, for practically peanuts. Simicska would like nothing more than to get rid of his former friend turned enemy Viktor Orbán at the next national election in the spring of 2018, and he was prepared to be generous to Jobbik in its anti-Fidesz billboard campaign.

The government party was two persons short of the magic two-thirds majority, and therefore it was imperative that all the members of the Fidesz and KDNP delegations showed up. Even György Rubovszky of KDNP, who died a week later, attended the session. The hope was that either a few opposition members would be absent or that the politically diverse opposition would not be well disciplined. But everyone was there with the exception of Lajos Oláh of DK, who was on his way to the hospital with kidney stones. And every member of the opposition voted against the bill. So Fidesz was left with only one absentee, which wasn’t enough. The bill failed to be enacted.

Within hours, however, the government party announced that the bill would be resubmitted. The president of the parliament called for an extraordinary session, where the only item on the agenda was the poster law nicknamed by its co-sponsor Lajos Kósa “Lex Csicska.” Csicska is a person who in jail or in a reformatory is forced to serve others. In this case, the “csicska” is Jobbik, the party which, they claim, is simply an instrument of Simicska’s design against Viktor Orbán and his government.

Since the session was not a scheduled one, the hope again was that many opposition members would be unable to attend. At the same time, just to be sure, Fidesz politicians began negotiations with several opposition parties and members, hoping to get partners to push through this bill that Viktor Orbán found so important. A few days ago I devoted a post to MSZP’s decision to submit a proposal of their own, which was not a hit with the other parties and which was eventually torpedoed by László Botka, the party’s candidate for the premiership. Thus, it looked as if there was no chance for Lex Csicska to be adopted. Moreover, on the day of the extraordinary session (Friday, June 22) Viktor Orbán was supposed to be in Brussels. And György Rubovszky died on June 21, a day before the crucial vote. Yet Viktor Orbán announced that he has no plans to return because “his boss,” i.e. the leader of the Fidesz parliamentary delegation, doesn’t think that his presence is necessary. It was at this point that I became mighty suspicious that the legal wizards of Fidesz had found some clever work-around solution.

And indeed, late on Thursday evening, when Orbán was already in Brussels, the public learned that Fidesz will not resubmit the original law which had been voted down a week earlier. Rather, members of parliament will have to vote on amendments to a 2016 law on the defense of community image (településkép), which required only a simple majority to pass. In Hungary the central government lays down the parameters of what towns can and cannot do in burnishing their images. The original law dealt with advertisements, posters, billboards but only commercial ones, advertising everything from beer to toothpaste. Expanding this law to give municipalities the authority to restrict party advertising is, according to most legal scholars, unconstitutional because the Hungarian Constitution specifically states that “the detailed rules for the operation and management of political parties shall be laid down in a cardinal Act.”

Gergely Gulyás, Fidesz’s wunderkind, enjoying the fruits of his labor

But that wasn’t the only trick Fidesz employed. Gergely Gulyás, deputy speaker of parliament responsible for legislation, breaking house rules, introduced MSZP’s proposal, which was never officially submitted for consideration, as an amendment, putting MSZP in the uncomfortable position that their members had to vote against their own “amendment.” The vote was 123 in favor and 68 against. Fidesz-KDNP parliamentarians knew ahead of time what was coming, so of their 130 members only 123 showed up. On the other hand, all 68 members of the opposition parties and the independents were present and voted against the bill.

Although legal scholars believe that the Constitutional Court should find this law unconstitutional, they admit that, given the composition of the 15-member body, the judges may just rubber stamp it. Zoltán Fleck, professor of sociology of law at ELTE’s law school, with a certain sadness remarked that he wasn’t really surprised to hear about this latest Fidesz ploy because in Hungary “the rule of law has long been officially terminated.” György Magyar, Simicska’s lawyer and civil activist, also tore the law apart on his blog.

An amusing story connected to the passage of this bill shows the cynicism of most of those Fidesz members of parliament who serve as voting robots. Máriusz Révész (Fidesz), under pressure from a journalist of 24.hu about the strange transformation of a law that requires a two-thirds majority into one that needs only a simple majority, got mighty confused. After a lot of prevarication, he blurted out: “obviously this time it is not happening according to the law.” So, he basically confirmed the opposition’s criticism that Fidesz acted illegally. It is not something the Fidesz leadership easily forgives. This afternoon Index, which reported on the 24.hu story, received a letter from Révész in which he tried to convince them that he wasn’t talking about the law itself but about illicit party financing.

Albert Gazda of Magyar Nemzet wrote an opinion piece titled “The cowardly Fidesz.” As the title suggests, Gazda looks upon this latest Fidesz trick, which he considers primitive even by the party’s own low moral and intellectual standards, as a sign of weakness. “Here is the first spectacular and hard-hitting campaign and Fidesz is running around like a chicken with its head cut off.” Gazda also believes that Fidesz is not only cowardly but also fearful. “But fear eats away the soul, takes away strength, and destroys faith.”

I’m not at all sure that Gazda is right. Instead, I would suggest that these posters got under Orbán’s skin in a big way because he found them politically damaging. He had only one goal: the posters must be taken down immediately. Therefore, I believe, he didn’t particularly care in what manner this bill became law. He most likely knows that the law is unconstitutional, but in the short run he simply doesn’t care. Even if the Constitutional Court finds the law unconstitutional, that decision may take months while the billboards will have to be removed immediately. Orbán wanted to stop the political hemorrhaging right now.

June 24, 2017

Hungarian NGOs embrace civil disobedience

I don’t think anyone was surprised when two days ago the Hungarian parliament with its overwhelming, almost two-thirds Fidesz majority passed a law imposing strict regulations on foreign-funded non-governmental organizations. The law bears a suspicious resemblance to the 2012 Russian law that required groups that received funds from abroad to identify themselves as “foreign agents.” The Hungarian version is somewhat more “lenient.” The targeted NGOs don’t have to call themselves “foreign agents,” but they must bear the label that they are the recipients of foreign funds, which can be considered a stigma.

Defenders of the bill insist that there is nothing “discriminatory” in this new “civic law,” but, of course, this is not the case. If it were, there wouldn’t be so many “exceptions” to the rule. For example, churches and sports clubs are exempt. Fidesz politicians feel confident in capitalizing on how the Hungarian everyman reacts to anything foreign, especially after a series of anti-migrant campaigns that, as we know from polls, greatly increased xenophobia in the country. Just imagine an interview with the managing director of TASZ, the Hungarian Civil Liberties Union, in which either she must introduce herself or the reporter must introduce her as “the leader of a foreign-funded organization.”

Fidesz’s pretext for enacting such a law is the government’s alleged striving for more transparency and for preventing money laundering and the financing of terrorism. Anyone at all familiar with the work of such organizations as TASZ, the Hungarian Helsinki Commission, or Amnesty International, three NGOs that are specifically targeted by the government, knows that it is not money laundering that is bothering the Orbán government. Over the years these NGOs have become increasing irritants as far as the Orbán government is concerned. Every time the lawyers working for these NGOs suspect illegality they immediately turn to the courts, and they almost always win. As far as Fidesz and the Orbán government are concerned, this is an intolerable situation.

The government’s position is that human rights activists are not elected officials and therefore they have no right to act as a quasi-political opposition to the elected government. Of course, this argument is unacceptable in a democratic society where people can freely organize political associations on pro- or anti-government platforms. Even political parties fall into the same category. They are voluntary organizations ruled by their own by-laws and their own boards of directors. All these groups have the right to function freely as long as they act in a lawful manner. Fidesz has pretty well succeeded in making the other political parties inconsequential. But the NGOs refuse to go away or kowtow to the government. And so it was time, somehow or other, to get rid of these pesky civil rights activists with their highly qualified lawyers who keep poking their noses into the Orbán government’s dirty business.

Viktor Orbán hates these organizations, whom he considers in large measure responsible for many of his problems with the European Union, the European Court of Justice, and the European Court of Human Rights. If these organizations hadn’t existed, he wouldn’t have had half the problems he has had over the years with the European Commission.

With the anti-NGO law, Orbán is most likely convinced that the small, cosmetic alterations the government made by incorporating some of changes recommended by the Venice Commission will satisfy the European Commission, as similar superficial modifications to Hungarian laws satisfied the commissioners in the past. For a few days foreign papers will be full of articles condemning the undemocratic, illiberal Hungarian state and a few foreign governments will publish official statements expressing their disapproval of Orbán’s latest move, but nothing of substance will happen. In fact, in a couple of days everybody will forget about the bill and its consequences. Then, sometime in the future, the Orbán government will make another move against the NGOs. Because few observers believe that this will be the last attempt to get rid of the NGOs that stand in the way of the present Hungarian government.

Only a few hours after the enactment of the “civic law,” TASZ announced that it will not obey the law, i.e. it will not register as the law demands because “this is the most effective way of combating this unconstitutional law.” According to TASZ, the law violates the freedoms of speech and association and unlawfully differentiates among civic organizations. TASZ’s lawyers are also convinced that it violates EU laws because the legislation violates the European Union’s internal market rules, in particular the free movement of capital. TASZ is prepared for the consequences of its action. Máté Szabó, professional director of TASZ, argued along the following lines: “Some of the enforcement possibilities will be open to us only if we don’t comply with the law. Since we do not want to relinquish a single law enforcement option, we will not comply with the requirements of the law.” Stefánia Kapronczay, executive director of TASZ, said: “We are aware of the fact that legal procedures will be initiated against us, but we are not afraid of them. Yearly we represent our clients in more than a hundred cases in the courts of Hungary, the Constitutional Court, and the Strasbourg court…. I’m convinced that after long procedures this law will have to be discarded.” The Hungarian Helsinki Commission joined TASZ in boycotting the new law on civic groups. “Unless and until the Hungarian Constitutional Court and/or the European Court of Human Rights hear the case and approve the law, we will not register.”

I think that the decision of these two civic organizations is the correct one, even if László Trócsányi, minister of justice, announced that “civil disobedience is not known to me, nor is it known in [our] legal system.” This was obviously meant not as an admission of ignorance but as a warning to TASZ and the Hungarian Helsinki Commission. However, I would like to remind Trócsányi that his lawyers don’t have a great track record against the lawyers of these two NGOs.

June 15, 2017

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.