Constitutional experts speak out over Lenkovics appointment

December 5, 2014

Lenkovics Barnabás

Hungarian constitutional experts Kim Lane Scheppele and Gábor Halmai react to the election of justice Barnabás Lenkovics to replace Péter Paczolay as president of the Constitutional Court on February 25, 2015.

What are some of the most significant changes to affect the Constitutional Court since the adoption of the Fundamental Law? 

Halmai: The most significant changes occurred even before the adoption of the Fundamental Law in April 2011. Among the first statutory amendments to the constitutional system adopted by the Fidesz-KDNP two-thirds parliamentary majority elected in 2010 changed the system for nominating the judges of the Constitutional Court.

As a result of the changes, the governing majority provided itself with the opportunity to nominate and then elect judges without consulting the opposition. Consequently, the governing majority immediately filled two positions on the Court that had previously gone unfilled for two years because of Parliament’s inability to reach a consensus. The new judges were nominated and elected without a consultation involving the other parties in Parliament. April 2011 saw the adoption of the Fundamental Law, which increased the number of judges on the Court from 11 to 15. This change allowed for the election of five new associate judges on the court, since another judge’s term of office had expired in October 2010. Moreover, the newly elected judges’ term is 12 years rather than the previous nine (which remained the rule for the ‘old’ justices, including Péter Paczolay, the current President), thus spanning three parliamentary cycles.

The president of the Court was previously elected by the associate judges for a three-year term, but pursuant to the new rules he/she is selected by Parliament for the duration of his/her entire term on the Court. As a result, at the point when the new constitution entered into effect, there were seven judges on the Court who had been selected without any effort at reaching a consensus. February 2013 saw the election to the Court of a governing party Member of Parliament who had chaired the Constitutional Affairs Committee, but since he replaced another Fidesz nominee, the judges selected exclusively by the governing party still did not constitute a majority on the Court. Finally, April 2013 saw the realization of a majority that had been exclusively selected by the governing party when another Fidesz-KDNP nominee was elected over the protests of the democratic opposition in Parliament, though the candidate did enjoy the support of the extreme-right Jobbik party.

Regarding the jurisdiction of the Constitutional Court, the major change occurred in October 2010, also before the enactment of the new Fundamental Law. An amendment to the old constitution restricted the Constitional Court’s right to review financial laws.  From that time forward the Constitutional Court may only review financial laws from the perspective of those rights (the right to life and human dignity, protection of personal data, freedom of thought, conscience and religion or the right to Hungarian citizenship) that typically are not breached by financial laws.

This withdrawal of the right to review financial laws created a solution found nowhere else in the world, since there is no other institution functioning as a Constitutional Court whose right of review has been restricted on the basis of the object of the legal norms to be reviewed. Therefore, in the case of laws that are not reviewable by the court, the requirement that the Constitution be a fundamental law, and that it be binding on everyone, is not fulfilled.

Scheppele:  The role of the Constitutional Court in the Hungarian system of government has been completely changed.   The Court used to be the primary check on electoral majorities and it was easy to access because literally anyone could challenge a law before the Court for its potential unconstitutionality.  As a result, the Court became guarantor of rights as well as the guarantor of the limits on majoritarian power.   Under the new constitution, however, the court has been weakened and packed with people who have approved nearly everything that this government has done, so it has ceased to be a check.

Crucial to the Constitutional Court takeover was the change in the system for appointing judges.  As soon as Fidesz came to power in 2010, even before the new fundamental law, their parliamentary two-thirds majority amended the old constitution to say that  a simple two-thirds of the parliament was sufficient to put someone onto the Court.  A judge used to require a majority of parliamentary parties to back the nomination and THEN a two-thirds vote, but that first step was conveniently removed to give the governing party the absolute say in who was put onto the Court.  Then the number of judges was expanded so that Fidesz immediately had more seats to fill.   By spring 2013, in just three years, the Court had a reliable majority of Fidesz judges and now the Court hardly ever rules against the government, even in egregious matters like the new municipal election law.

Also, significantly, the jurisdiction of the Court was changed so that the general right of the people to bring cases to the Court was removed.   Now only those specific individuals who have been concretely injured by the application of a potentially unconstitutional law can bring cases to the Court – and only then after they have gone all of the way through the ordinary courts first.   Many of the problems with the new constitutional order cannot be challenged this way because people cannot demonstrate that they’ve been concretely and personally harmed by the relevant laws.

There are constitutional problems with having all of the judges in the country (except constitutional judges) appointed by one person hand-picked by the governing party – but it is hard for any individual to demonstrate the sort of concrete harm with this arrangement that would allow a constitutional review of this politicization of the judiciary.    There are constitutional problems with having the electoral laws – for both the parliamentary election and the municipal election – written by precisely the party that stands to benefit from those laws – but it is hard for any individual to demonstrate specific harm to herself through these laws.   That’s the sort of problem I see with the new jurisdiction.

The old system of constitutional review, in place before the new fundamental law, permitted a much broader review of the laws.  Every case was a case of “abstract review” – which is the review of a law in the abstract without a concrete case with its specific facts to use to test the law.  Someone – anyone! – could just ask the Court to review the system for appointing judges or the election law’s method of drawing districts or allocating compensation votes or registering voters abroad and the Court would have to answer that question as a general matter.   Now abstract review can only be invoked by a very few political actors, and all of those who can ask for that sort of review just happen to be hand-picked by the governing party.  One quarter of the Parliament could also bring a petition for abstract review, but given the composition of the parliament since 2010, this would require Jobbik to work with the Socialists and that is not going to happen.   So there is no practical avenue for asking that unconstitutional laws be reviewed.

Through these many changes, the Constitutional Court has been stripped of its critical power and it no longer stands as the guardian of the constitution against the excesses of majoritarian power.

How did subsequent amendments to the Constitution alter the Constitutional Court?

Halmai: Instead of removing the limitations on the competence of the Constitutional Court to review potentially unconstitutional legislation, the Fundamental Law perpetuated this system which shields potentially unconstitutional laws from constitutional review even when this does not involve budgetary issues.

A series of provisions of the Fourth Amendment enacted in April 2013 reacted to earlier Constitutional Court decisions by ‘constitutionalizing’ provisions declared unconstitutional. This amendment also annulled the earlier case-law of the Constitution Court, and with this removed the possibility of the Court to base itself on these decisions.

Scheppele: The Fourth Amendment to the constitution in spring 2013 abolished the entire jurisprudence of the Constitutional Court from 1990-2012.   Decisions that everyone relies on to protect basic rights – rights that formally stayed the same from one constitution to another so that the case law protecting them could still be valid – were suddenly vaporized.   Now we don’t know precisely how rights are protected any more.   This change generated sudden and massive legal insecurity.

In addition, the Fourth Amendment added directly to the constitution a whole series of laws that the Constitutional Court had declared unconstitutional because they conflicted with parts of the new constitution.  Now the constitution contains completely inconsistent provisions. So the constitution promises freedom of religion and yet puts the parliament in charge of naming official churches.  Or the constitution guarantees a fair trial and yet gives the power to name ordinary judges to one political appointee, who also has the power to promote, demote, reassign and discipline any judge in the system.   The power to sort out these contradictions by allowing the Court to review constitutional amendments for constitutionality was taken away from the Court at the same time.

And that was not all.  The Fourth Amendment made permanent a key restriction on what the Court can review.   The Court is barred from reviewing any budget law for constitutionality  while the national debt is high (which it will be for the foreseeable future), unless the budget law breaches a few named rights.   But the rights named are not the ones most likely to be infringed by budget measures.   So now, for example, Hungarians may believe that they have right to be protected from arbitrary discrimination or even a right to property  — but those rights can now be infringed by any budget law passed by the Parliament.

So, after the Fourth Amendment, what does it mean to have rights?  We really no longer know if basic rights will be protected by any institution if the governing party chooses to infringe them.   The new basic law gives Hungarians rights with one hand while it takes the system for protecting rights away with the other.

How will the new rules governing the Constitutional Court impact the court’s direction in years to come?

Halmai: The Court has been packed since April 2013 by which time the majority of judges had been elected without any consent by the opposition parties. When Péter Paczolay leaves the Court in February 2015, there will be 12 out of the 15 justices who have been elected by the governing Fidesz-KDNP political alliance. These new justices serve for 12 years, and due to another amendment to the rules if elected prior to their 70 years of age, they can stay till their extended term is over.  So long as this majority lasts, even if there were to be a change of government, there is no hope that this Court will decide against the political interest of the current Fidesz-led government.

Scheppele: Even if the Court were not reliably filled with governing party loyalists, the Court would have a hard time maintaining the standard of constitutionality that the prior constitution and prior Court had guaranteed.

How does Lenkovics’ election to become Chief Justice of the Constitutional Court differ from that of his predecessors?

Halmai:  Between 2010 and April 2013 the current President, Péter Paczolay, tried to save the independence of the Court and in some politically important cases the Court under his leadership decided against the government, as in the case of the Transitional Provisions of the Fundamental Law or on the planned voter registration.  In 2010 Barnabás Lenkovics, who was nominated by Fidesz as an associate judge in 2007, joined the ‘new justices’ elected without any consensus in all politically crucial decisions. He has been more pro-Fidesz than some of the new justices, such as István Stumpf. For instance he joined the new judges, not yet in majority in 2011 regarding the mentioned case on the Transitional Provisions of the Fundamental Law, and on the voters registration, and even on the independence of the judiciary.

Scheppele: Both Lenkovics and the outgoing Chief Justice Paczolay are conservative judges, appointed with Fidesz’s backing before the new constitution was written.  Paczolay joined the Court in 2006 and Lenkovics joined the Court in 2007. Both were named as a result of the usual sort of “logrolling” deal that the parliament typically made under the old rules when it came to constitutional judges.  Because the old rules required a majority of parliamentary parties PLUS a two-thirds majority of the MPs to approve a judge, the minority parties (like Fidesz in 2007) could insist that their candidates be named along with candidates for the majority party.    That old system, by the way, was one of the reasons why the Court had not been captured by any one political party before 2010.  Removing the requirement that a majority of parties in the parliament had to approve each judge has meant that the Court could be captured by one party with a two-thirds majority.

As the constitutional dismantling project became clear after 2010, Paczolay’s conservatism (in the best sense) came over him, and he led almost all of the previously appointed judges to preserve and maintain the old constitutional order against the incursions of the new one.   A true conservative, to my mind, would protect the hard-won legacy of rights protection and constitutional governance that the prior Court had attained and that’s what Paczolay did.   Paczolay mobilized almost all of the judges who had been appointed before 2010 to defend what the Court had done.  All except Lenkovics.   Lenkovics was the only one of the judges appointed before 2010 who went over to the new Fidesz side.  Lenkovics has been a reliable vote for the new Fidesz constitutional system and he has voted with the new Fidesz judges in almost every case since 2010.   So, in taking advantage of the end of Paczolay’s term, the government now has a reliable ally in the Court president’s office.

Is Lenkovics qualified to preside over the Constitutional Court?

Halmai: Lenkovics is a professor of civil law at the Law School of ELTE. His appointment as professor in 2000 was highly contested due to the shortage of his academic performance, especially the lack of the foreign language publications. As a legal scholar he became famous as a militant opponent of abortion. Before becoming a judge at the Constitutional Court, he served as ombudsman of the parliament for fundamental right, also without expertise in human rights issues.  As an ombudsman he famously argued for a new jurisdiction of his office regarding private media and banks (see his interview in the 2004/2 issue of Fundamentum, the quarterly of human rights).

As an associate justice of the Constitutional Court in his opinions he argued that the financial crisis also means the crisis of democracy, rule of law and must cause the redefinition, limitation and even withdrawal of some fundamental rights, especially the freedom of the press, and a new concept of checks and balances, in which the different branches work closely together.

Scheppele: Before going onto the Court, Lenkovics was not a professor of constitutional law, so this is not the field in which he had the most academic experience.   Instead, he was a professor of civil law at ELTE.  He was also for a time the general ombudsman but did very little that was notable while in office.  In general, Lenkovics has not revealed a deeply constitutional sensibility or a strong public personality.

What are the broader implications of Lenkovics’ election as Chief Justice of the Constitutional Court?

Halmai: In two recent academic articles I argue that judicial review ceased to exist in the sense that it would represent any limitation of the legislative and the executive power.  In the piece In memoriam magyar alkotmánybíráskodás (“In memoriam Hungarian judicial review”) I analyse the jurisprudence of the Court since April 2013, when the Fidesz elected justices form the majority in decisions that serve the political interests of the government, without any constitutional consideration. Két választás (“Two elections”) discusses the two decisions of the Court on the parliamentary and the municipal elections, arguing that the majority (with Lenkovics’s vote) legitimated the constitutionally highly problematic results of the election, contributing to keep the government’s two-third majority in the parliament and in the Budapest municipal council. This political character of the Court will be even more apparent after the election of Mr. Lenkovics, and won’t necessarily end, even with the unlikely but possible loss of Fidesz’s governing majority.

By the way, according to current rumours in the first count of the votes in today’s election, Mr. Lenkovics failed to get the necessary votes, and it was only in the second count when the 132 vote has been ‘found’.

Scheppele: The Court is already functionally dead, if by “living” one means that the Court had a serious chance of engaging in independent review of the laws that are challenged before it.   So I don’t anticipate that things will change very much.  The big change occurred in 2013 when Fidesz got a reliable majority on the Court.    Now that they also have a friend in the President’s office, they can also be quite certain that no views dissenting from the Fidesz line will emanate from that quarter.    Paczolay gave a number of press interviews highly critical of the governing party, and one can expect that the new president will not repeat that practice.