2012. december 28., péntek

Judicial Tentacles

Judicial Tentacles

Towards the end of my last written post, I briefly mentioned the Hungarian Constitutional Court.  I stated that it is “controversial” and “a special branch of the judiciary which is responsible for reviewing the acts of the Parliament.”  This post will begin a short series on the Constitutional Court and the Hungarian Judiciary in relation to the proceedings against Miklós Hagyó.  To start things off, I would like to describe a bit of the Constitutional Court’s history, structure, and its role in modern Hungarian life.
The notion of a Constitutional Court was first put forth in January 1989.  The newly democratic Hungary, essentially their Parliamentary Ministers, had decided it was appropriate to concoct such an institution that would be “one of the guarantees of the rule of law by practicing constitutional review of legal provisions.”  In other words, the Court would determine if Parliament’s legislation is permitted within the constitutional framework.  After a few permitting additions to the freshly devised Hungarian Constitution, the first five Constitutional Court members were elected by Parliament in November 1989.  The court, itself, was functional in January 1990; exactly one year after the idea had been formulated.  Sometime in mid-1990 an additional five judges were chosen to serve on the Court by the newly elected Parliament.  The elected judges were a sovereign, independent body separated from the ordinary judicial system.  They had their own budget, and they were responsible for organizing a secret ballot in which a president would be elected.  Finally, the president would appoint one or two vice presidents who would assume the presidential responsibilities in the case of his absence.  During the next 21 years, according to the Constitutional Court’s website, it had “an outstanding role in the protection of individual fundamental rights,” listing decisions of cases involving abortion and euthanasia, among others.
Some changes to the Constitutional Court were made in 2011, which were part of the new Hungarian Constitution, dubbed by its Fidesz creators the Fundamental Law: As of September 2011 the allotted number of judges changed from 11 to 15; the Court’s president, historically elected by the judges, is now appointed by Parliament; the President of the Constitutional Court, who previously served a term of three years, is now elected to office for 12 years.  Although, the new structure of the Constitutional Court does not permit it to rule on financial matters, the Court is still considered the main organ for the protection of the Hungarian Constitution.
You may wonder how these changes to one particular judicial branch, whose sole responsibility is to determine the constitutionality of legislation, is related to the current Hungarian political environment?  Like everything else that has occurred under the governing Fidesz party, these changes essentially permit further consolidation of judicial power; just one mechanism within the Fidesz centralization apparatus.  In doing so, Viktor Orbán and his party undermine their opposition’s ability to contest the current authoritarianism bureaucratically sweeping through Hungary’s administration, and, more importantly for those who oppose the Fidesz Party – such as Miklós Hagyó, the Constitutional Court reforms give Fidesz much longer influence into happenings of the Court.
For example, the current Parliamentary body comprises two-thirds of Fidesz members, and the remaining one-third consists of 5 different parties.  In different terms a supermajority of 226 Fidesz while the other 5 parties combine a total of 160 members of parliament.  For the Fidesz, numbers like that facilitate successful legislation and promoting allies to influential positions, perhaps new judges or even the President of the Constitutional Court.  Conveniently, new judges and a new president REQUIRE votes from exactly two-thirds of the parliament in order to take office.  As I mentioned earlier, that new president will now oversee the Constitutional Court for 12 years! So, the two-thirds Fidesz parliamentary super-majority elects the President of the Constitutional Court, they elect the judges which sit on the court, and as I said, they increased the size of the Court from 11 members to 15.
Some may say, what is wrong with that?  It is normal for a political party to chase influence, if not direct power, is it not?  Of course it is.  This happens all over the world, including within the major democratic states of the world.  But the Hungarian Constitution, or the Fundamental Law, was devised by Fidesz, voted acceptable by the two-thirds Fidesz supermajority, and now they spreading their tentacles in the Constitutions major protector, the Constitutional Court.  As the memory of the communist regime still lingers within the Hungarian populace, parallels are not difficult to observe.

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