Tag Archives: Constitutional Court

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.

Strasbourg verdict on disenfranchised churches: the Hungarian government dithers

The Hungarian government has had an awful lot of bad news lately coming from various institutions of the European Union. Yesterday I wrote about the veto by Euratom and the European Commission of certain parts of the Russian-Hungarian agreement concerning Rosatom’s supply of nuclear fuel for the two new reactors of the Paks power plant. Today I will look into an older decision of the European Court of Human Rights that the Hungarian government has yet to act on, despite a March 8 deadline. What I have in mind is the infamous law on churches.

The law that Zsolt Semjén called a masterpiece has had some rough sledding. The law stipulated that only churches approved by the Hungarian parliament could partake of the benefits churches usually enjoy in democratic countries. Smaller, less traditional churches or congregations, including some following reformed Judaism, were stripped of their church status. In February 2013 the Constitutional Court, which at that time wasn’t yet packed with Fidesz loyalists, found the law to be discriminative and therefore unconstitutional. The Orbán government’s answer was to change the constitution and to leave the objectionable law unaltered.

Since all remedies at home had been exhausted, sixteen small churches decided to go to the European Court of Human Rights in Strasbourg to seek justice. Nine churches were represented by TASZ, the Hungarian equivalent of the American Civil Liberties Union, while Dániel Karsai represented another six. Csaba Tordai represented perhaps the most important church, which was most likely the victim of Viktor Orbán’s personal vendetta: the Magyarországi Evangéliumi Testvérközösség (MET) led by Gábor Iványi, basically a Methodist church.

Dániel Karsai, who frequently appeared on ATV during 2013, was certain already in late May of that year that their case was so strong that the Hungarian government would suffer another setback in Strasbourg. It took a year, but in April 2014 the verdict was announced. It was in favor of the small churches. The Hungarian government and the churches will have to agree on a financial settlement. If they cannot reach an equitable arrangement, the Strasbourg court will decide on the amount of compensation these churches deserve for the financial loss they suffered as a result of being deprived of their church status. Moreover, the law on churches doesn’t conform to European law and hence must be changed.

It all started rather small

This church started off rather small, after all

Dániel Karsai, the lawyer for some of the churches, was elated. He expressed his hope that “after this great victory the first business of the new government will be to put in order the question of religious freedom.” Well, a year went by and nothing happened. No settlement was reached. Instead of writing a new law, the government decided to appeal the case. I should note that it was the Ministry of Justice and Administration under the leadership of Tibor Navracsics that handled the case in Strasbourg on behalf of the Hungarian government. The same Navracsics who today is desperately trying to distance himself from the Orbán administration and attempting to portray himself as a moderate liberal in his new capacity as a member of the European Commission.

Another five months went by. On September 9, 2014, the Court of Human Rights rejected the appeal of the Hungarian government. The law would have to be changed and the churches in question compensated. The court gave the Hungarian government six months, until March 8, to settle the question of compensation. Well, I just read in Magyar Nemzet that “the government heeds the Strasbourg verdict but does not want to be overhasty.” What an understatement. The government wants to be fair, but at the same time “it doesn’t want to waste the taxpayers’ money” and the sum in question is rather large. According to some estimates, the churches claimed damages amounting to about 20 billion forints. The Magyar Nemzet article indicated that the government finds some of the claims unacceptable. On the other hand, Csaba Tordai, the lawyer for Gábor Iványi’s Methodist church, is optimistic that there will be an agreement within a few weeks. The Magyarországi Evangéliumi Testvérközösség (MET) originally asked for 1.4 billion forints, but that was in 2012. I assume the current claim is at least double that amount.

As far as the law itself is concerned, the government is again in no hurry. Dániel Karsai might have hoped that the new government would immediately take care of the problem, but today Miklós Soltész, undersecretary in charge of social policy in the ministry of human resources, announced that the government is not planning to write a new law because, after all, they already revised the original law once, in 2013. So, there will be only changes in certain points. And, he continued,”we must guard those values [in the law] that assist the spiritual work of the churches in all facets of their activities,” whatever that means. I have the feeling that this is not the end of the story.

Budapest Beacon: A conversation with Gábor Halmai on Viktor Orbán’s Hungary

Many thanks to The Budapest Beacon for permitting me to republish this interview.

One of Hungary’s most distinguished scholars of constitutional law, Gábor Halmai is the director of the Institute for Political and International Studies at Eötvös Lóránd University, Budapest, as well as director of the Hungarian Human Rights Information and Documentation Center. He has published extensively in English, German and Hungarian on problems related to human rights, judicial review, freedom of expression and freedom of association. Former chief counselor to the president of the Hungarian Constitutional Court, László Sólyom (later President of the Republic of Hungary), Halmai has served as vice-chair of the Hungarian National Election Commission. He received his PhD from Eötvös Lóránd University and is currently a visiting research scholar at Princeton University. 

(Note: We apologize to Dr. Halmai for technical problems experienced during the filming of this interview.  When transcribing this interview, we took the liberty of rewording a few of Dr. Halmai’s statements for the sake of clarity, taking care not to change their meaning.  We have also highlighted key terms and expressions used by Dr. Halmai for easy reference. -ed.)

As an expert on constitutional matters, what is happening in Hungary?

Ironically, Prime Minister Orbán himself characterized the development very accurately by saying in a speech this last summer that Hungary is not any more a liberal democracy but an illiberal democracy.  He even proudly claimed that the pursuit of the Hungarian government is not having a liberal democracy. He named as leading examples for the Hungarian government Russia, China, Singapore, even Turkey, countries which certainly are not fulfilling those ideals which are principles of the European Union of which Hungary has been a member state since 2004.   So the paradox in that kind of self-definition by the government of Hungary not being any more a liberal state is a kind of proof that Hungary does not fulfil any more the requirement of a member state in the European Union, which is based on the values of rule of law, democracy, protection of fundamental rights, including minority rights, including religious minority rights . . .

Sounds to me like you’re suggesting that if Hungary were to apply for EU membership now it wouldn’t meet the Copenhagen criteria.

Certainly not.  And this is actually one of the troubles of the European Union now:  How can the European Union actually protect fundamental values of the EU within a member state if the member state is not willing to comply?  Seemingly liberal democracy is not the only path for emerging democracies.  It’s very hard to influence, for instance, Egypt to turn into a liberal democracy.  But a member state of the European Union and a member state of NATO is a different issue.

What is a liberal democracy?  What does that mean?

Liberal democracy certainly has many definitions and many requirements.  As a constitutional scholar, let me define liberal democracy as a constitutional democracy, which is certainly a kind of Western approach of democracy.  But we are living in the Western world, at least here in the US and we in the European Union.  So two major elements have to be mentioned.  One is rule of law, which means, on the one hand, that one kind of separation of power or at least checks and balances, if not the US approach of separation of power, some type of checks and balances has to be provided in liberal democracies.  The other major element is guaranteed fundamental rights in a way that they are not only prescribed in the constitution (which was also given in the 1949 constitution. Almost all the rights which we have now in our constitution were provided in the text of the Stalinist constitution, but no one took it seriously that those rights are guaranteed).  In a rule of law state, institutional guarantees have to be in place: an independent judiciary, in the case of the new member states, new democracies, even an independent constitutional court, certainly some independence of the president in a democratic institutional setting.  And probably some more special institution like the ombudspersons in the new democracies.

So these are very important elements which are less and less provided in Hungary.  And the other element I wanted to mention beside these two major components of rule of law, is a kind ofaccountability of the government, meaning a democratic selection procedure, which means mainly a democratic election system.  Unfortunately, in the last years we not only lack those mentioned checks and balances and guaranteed fundamental rights, for example, freedom of the media, freedom of religion, but we also lack a democratic election system.  So even though the governing party, Fidesz, won the parliamentary election in April with a two-thirds majority, this two-thirds majority was due to some substantial changes, and, I would argue, not democratically enacted changes of the election law.  The two-thirds is certainly a result of several anti-constitutional new elements of the parliamentary election system. Everyone knows that giving the right to vote to those living outside the country and not resident was decisive to getting the two-thirds majority for the governing party.  Also, I can mention, without going into details, the very strange and unique system of giving advantage to the winner by an approach that is really unique in the world: the compensation for the winner.

Halmai7

And it’s not only the parliamentary election system but very recently the municipal elections were, I would say, fraud, because the changes they made to the system were made just four months before the election, which is, in itself, a violation of any kind of legal security or legal certainty, which is a part of the rule of law. Not to speak of the fact that they created the system in order to get a secured majority in the Budapest council, abolishing entirely the direct election of the council members.  So, according to the new system those council members were not elected by the citizens of Budapest. They were just delegated according to the new system, and these delegates are mostly Fidesz candidates.

So these are elements in a constitutional system–lack of separation of power, lack of guaranteed rights, lack of democratic elections–which makes a country an illiberal democracy with very strong elements of an autocratic system.

And it’s not only on the constitutional level.  If you see the orientation of this government.  I mentioned already the speech of Prime Minister Orbán, what are the model countries.  Certainly not only non-liberal democracies, but as potential political or economic partners—Russia, China—which are seemingly crucial to the Hungarian government as a kind of balance against the EU and, in economic terms, the IMF, which makes a conditional kind of contribution to the Hungarian economy.  Those countries–Russia, China–won’t make rule of law or other democratic conditions for their contribution to the Hungarian economy. But they will certainly make political conditions, which makes Hungary really different from the original member state of a value community, namely the European Union or NATO.

When the system change happened, that was the beginning of what many believe was a difficult transition.  What does this latest transition do to the rule of law in a country?

This new constitutional system, and not only the constitution itself, which is not even called a constitution, it’s called the Basic Law, and not even the “Republic of Hungary” which was the case in 1989 when Hungary finally dropped the “People’s Republic” and turned into a real republic.  In 2011, with the new Fundamental Law, Hungary dropped from its name “The Republic”.  This is a very symbolic change, dropping the republican ideal as well, not only the name.  Hungary became a kind of illiberal democracy.  But what worries me even more than this change, which is worrisome enough for a constitutional scholar who is really committed to constitutional democracy, is that the people themselves over the last five years did not seem to care about these changes.

Prime Minister Orbán claimed that some revolutionary events happened during the election in 2010, which was a kind of “revolution of the ballot box”.  Certainly something happened.  And it is not only what I as a constitutional scholar characterize as “backsliding” of constitutional democracy, but certainly, and I have to admit, an acceptance by the population, or at least a significant part of the population, even if it’s not even the majority of the population, because you know in April altogether 26 or 27 percent of the entire Hungarian population voted for the governing party.  But still that meant a two-thirds majority of the seats in the Hungarian parliament due to the disproportionate election system, and so on.  But still they were the decisive political actor in that election, and they can claim that they are in charge of that country.  So, they can certainly argue that the Hungarian voters approved that change of the constitutional system.

So what is wrong?  It seems to be a democratically chosen new way in Hungary, not being a liberal democracy any more. This is a very complicated issue and I do not want to give a very simple answer, because I do not know the very reasons.  I’m here partly to find out what may have happened in Hungary.

One of the reasons (although I do not fully share this view) is that the change in 1989-90 was very much a kind of elite change in the system of government.  The new comprehensively amended constitution in 1989 was a result of some revolution by an elite, both an intellectual elite and a legal elite.  Some scholars even characterize this kind of development as a “legalistic constitutionalism” led by those people who were part of the negotiations with the previous Communist Party, the democratic opposition and the conservative-liberal opposition forces and, on the other hand, the Constitutional Court itself, which, from the beginning of its establishment, very much imposed this new liberal democratic constitutional system.  So this might be one of the elements.

I try to understand why the people were so dissatisfied with this kind of liberal democracy.  Because probably they were not involved in that change.  The kind of civil participation in the constitutional making process in 1989 and 1990 and even later on in the 1990s was probably not enough to be a part of a constitutional thinking and building up a constitutional culture for the people.

In 2010 when the Orbán government came and said, “okay, get rid of this liberal democracy” – they did not admit at that time that they were doing that, but as I said just recently the prime minister openly admitted that this was the very aim of the new revolutionary changes — probably for the people it wasn’t that interesting what kind of constitutional system Hungary has.

This is a very interesting point.  I don’t think it’s been talked about enough. This transition into a liberal democracy – I don’t want to use the term “illegitimate” – but the parties involved in crafting that change, that was not a bottom-up approach, it was a top-down approach, and there was a level of detachment that may have influenced the public’s semse of being involved.

There were some illegitimate elements in that process in the very beginning.  For instance, the so-called roundtable discussions between the Communist Party and the opposition movements,none of them were elected.  They reached the compromise about the democratic transition, and the very result of that compromise was a comprehensive amendment to the constitution.  The decision was made that this will not even be a new constitution voted by a democratically elected parliament.  This was an amendment to the previous Stalinist 1949 constitution which was voted by the Communist parliament.  So the decision was made in October or November of 1989 with a totally illegitimate parliament.  That is why Viktor Orbán from 2010, but also beforehand in his first governmental term, he always argues “come on, we’ve got a Stalinist constitution!”.   So the title of the constitution is still the 1949 constitution and in 1989 it was only an amendment to it.

He knew, of course, because he is a lawyer and an educated guy, that all the major substantive elements of the Stalinist constitution were changed in 1989.  But formally speaking, it was the same constitution.  So he had a very easy time arguing in 2010 “okay, get rid of this communist constitution”.

Of course, if someone wants to substantively argue “come on, this was the constitution on the basis of which Hungary was admitted to the European Union, according to the Copenhagen criteria”.  So everyone knew in Europe this cannot possibly be a dictatorial or Stalinist constitution.  But for the majority of the population, this could have been a very convincing argument.  “We have to get rid of this old stuff and make a real revolution and a real transition.”  This is his terminology:  “There was no transition in 1989-90. This is the transition”.

Is there anything that is defining of the Fidesz constitution, that work as a whole?

I’ve already tried to list all the elements of this kind of illiberal parts of the constitutional system which is, again, not only the fundamental law itself, but together with those so-called cardinal laws and amendments to the constitution as an entire system.  So this is lacking the major crucial checks and balances and the guarantees of fundamental rights.  Let me mention only two fundamental rights which are actually very much limited since the new constitutional system came into force.

One is the freedom of expression and media freedom, with all the institutional system in place where the government actually occupies all the media and all the review of the media.  They can check all of the public and commercial media through the system they introduced.

The other element is the lack of religious freedom.  If you consider that Fidesz managed to de-register more than 200 churches which were registered originally from the start, from the 1990 religion law with a new system which allows the parliament with a two-thirds majority to decide who is a legitimate church, and who can be the partner of the state as a church, with all of the rights of being a church, and all of the advantages: having state supports, state subsidies, having schools or having other social institutions.

These are really major changes in the system of fundamental rights.  There is a very importantnationalist approach in that new constitutional system.  Let’s start with the basics.  Who is the subject of the new constitution?  If you read the preamble of the new constitution, it says all Hungarians irrespective of their citizenship, or irrespective of their residence, which has two implications:  One, that this is a kind of ethnic concept of the nation.  So Hungarians are those who feel themselves as Hungarians.  The negative implication of that is that all those who do not feel themselves as Hungarians despite being Hungarian citizens are not considered as subject of the constitution.

Of course, there is nothing in the text which indicates that they are treated differently.  But if you interpret what does it mean being a subject of the constitution not being Hungarian, then it means Roma people in Hungary who identify themselves as Roma and not Hungarians, or Jewish people who happen to identify themselves as Jewish and not Hungarian do not belong to this notion of ethnic nation.

There are representatives of nationalities in parliament.  For me as an American I didn’t really understand the reasoning behind that. Can you explain that to me?

From the very beginning of the democratic transition in 1989-90, there was a demand for national minorities can be a real part of the nation.  How they can represent themselves in the democratic decision-making process.  And there were different kinds of suggestions, which all failed, as to how to involve ethnic national minorities within Hungary.  I won’t characterize this kind of attempt to involve ethnic minorities as a ridiculous one.  Certainly, the final solution was not satisfactory for any of those ethnic minorities because they failed to reach the threshold for being represented in the parliament.

What is more worrying for me is the overemphasis of the Hungarian nation in the constitution, in the law of citizenship.  Ethnic Hungarians not even willing to reside in Hungary or move to Hungary were provided Hungarian citizenship, mostly in the neighboring countries, who lost their Hungarian citizenship due to the Trianon treaty, with the very suspicious aim of being involved in the Hungarian parliamentary election.  They were also provided voting rights and, as I mentioned, this was decisive in the general election.

So this is also a kind of very troublesome characteristic of the new constitution.  Another one is certainly the emphasis on Christianity and the Christian heritage in the constitution, which, as a historical argument, is totally legitimate.  The question comes what does it mean Hungary being “historically a Christian country” when it comes to the interpretation of religions rights, for religious minorities, for instance.  As you may know, according to the text of the Fundamental Law, these kinds of provisions in the preamble are also the basis for interpretation by the Constitutional Court.

This was an issue with the church law.  There was a very interesting legislative process behind this.  The church law was passed.  It was changed very quickly right before it was voted on.  Then it was passed quickly by the two-thirds (majority).  And then the Constitutional Court strikes it down.  How does a law that is deemed unconstitutional become constitutional in Hungary?

Unfortunately, it happened not only with the church law but with a lot of other laws.  It became a kind of custom in the last four or five years that those decisions of the Constitutional Court—I’m talking about the Constitutional Court before 2013, a more or less independent Constitutional Court between 2010 and 2013—certainly struck down a lot of laws which were enacted by the new majority of the parliament.  And the new governmental majority just introduced a practice which is really not a characteristic of a rule of law country.  They changed the constitution when any of the laws were struck down by the Constitutional Court, just to overrule Constitutional Court decisions. They put new provisions into the constitution saying this will be the new constitutional rule.  The infamous fourth amendment says the Constitutional Court cannot review any constitutional amendment.

That would suggest that any legislative process, even the highest judicial levels, is completely subject to a very political agenda.

I would even argue that this is the loss of constitutionality.  In that moment when a constitutional rule can be overruled just because the Constitutional Court has struck down an unconstitutional law, and the constitution making majority, which is the government majority due to the very unfortunate and disproportionate election system, can just change the constitution.  This means there is no division between constitutional laws and political laws.  All the laws are political, in that respect.  Whatever the government intends to do to follow their political aims is subject to a constitutional amendment.

There are no checks and balances in this process.

And there are no divisions between constitutional and statutory law.

What is the difference between them?

Statutory laws, which, in all rule of law countries, are subject to a legislative majority decision, are subject to a constitutional review, the basis of which is the constitution.  If the legislature can change the very foundation of the review, the constitution itself, then there is no distinction between those statutes and the constitution, because the same rule applies for the statutory legislative procedure and the constitution making procedure.  In that respect, unfortunately, Hungary reached that situation where there is no more constitution as a higher law, higher to any other statutes in the country which should be subject of a review by a constitutional court.  Not to speak about the fact that this constitutional court is not an independent body any more.

It seems to me that one of the dangers that a country would face when it reaches this point is that legislation can be enacted arbitrarily. There is no precedent that would prevent any legislation from being enacted.

They also abolished all of the previous case-law of the Constitutional Court enacted before the new constitution came into force, which is the case even when the new constitution has the same wording as the previous one had.  If the Constitutional Court ruled something in the mid-1990s, according to the constitutional rule which is still part of the new constitution, this decision is null and void.

Where do we stand now?  There is no independence in the Constitutional Court.  Previous case law is out the window.

That means the Constitutional Court became a political institution serving entirely the will of the government.  And if you study all the decisions made by the Constitutional Court, let’s say since April 2013 (I will explain why this date is crucial) these are all political decisions, at least those decisions which are politically relevant and crucial for the government to win.  The 2013 date is important because Fidesz started abolishing checks and balances in the very early stages of 2010.  Already in May they changed the system of the nomination and election of the Constitutional Court judges.  Previously the case was that the nomination of a Constitutional Court judge needed a consensus in the parliament.

What does that mean, “consensus”?

The governing parties needed some kind of approval by at least part of the opposition parties.  So there was a nominating committee which consisted of both governing and opposition parties.  And for the nomination to be valid it needed a majority of all the parties, governing and opposition parties.  The new rule Fidesz introduced in May 2010 meant that the government alone, without any consent from opposition parties, can nominate Constitutional Court judges.  And from 2010 until 2013 all eight, which means the majority, of the Constitutional Court judges were nominated and elected exclusively by the governing party, which means without consensus of opposition parties.

Since that time over the last year or so, twelve of the fifteen judges have already been elected without consensus.

But I’m sure all of these Constitutional Court judges are known for their knowledge of the law.

Unfortunately, not.  They started in 2010 with two nominees who did not fulfill even the legal requirement of being a Constitutional Court judge.

So would that mean that their nomination by the governing party was purely politically motivated?

Purely political.  For instance, one of the justices was previously head of the first Orbán’s government’s cabinet.  Judge Stumpf was nominated despite not being a professor or being a doctor of sciences, which was the legal requirement in the law.  And his nomination went through the two-thirds majority of the government because the government party had that majority.  And new appointments and nominations are following that rule that not even legal requirements are important, not to speak about the political affiliation of those justices.

Are the nominees brought before a committee and then grilled by members of the committee about decisions they’ve made or positions they’ve assumed on certain legal issues?

It’s very interesting. The latest hearing before that nomination committee was a secret meeting.  It was not accessible to the public.  They had a secret meeting.  The reason given by the government was that the privacy rights of those candidates had to be protected.  Seemingly for the past twenty-five years these privacy rights in a hearing were not important.  Of course there is no rule about the protection of privacy rights of a public official who is running for a public position.  So these nominations are just pure political selections of those loyal to the government.

If this process had to happen now, what would be necessary in order for Hungary to get back on the path to becoming a liberal democracy?

Certainly that kind of procedure which happened in 1989-1990 would not be advisable.  Probably an involvement of the public in understanding what a constitutional democracy is about.  Explaining to them what the advantages to being a constitutional democracy are, despite the fact that this also meant being a member state of the European Union, or the Council of Europe, or any other communities.  Showing them what is at stake to being a constitutional democracy as opposed to the slippery slope of first being an illiberal democracy, as is probably the case of Hungary, or even later being an autocracy like Putin’s Russia or China, just for the sake of some advantages, mostly for the political elite,  I’m not an expert in economic issues but I’m afraid the crucial issue here is when the people will understand what a constitutional democracy means for their well-being.  If the Hungarian population will understand that, probably we can start again establishing a constitutional democracy.