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The supposed erosion of Hungary’s checks and balances vis-á-vis the curtailed power of the Constitutional Court is a central element of the heated debate about the quality of Hungarian democracy. Nonetheless, the opinions of the Constitutional Court justices, who could offer a genuine first-person account of these changes, are woefully neglected in this highly partisan dispute.
It is often retorted that the Constitutional Court itself is not immune to showcasing partisan sentiments as the Justices are selected by parties and have their own social and political beliefs. It should not be forgotten, however, that being nominated as a Justice means first and foremost professional recognition awarded only to the the most distinguished practitioners of constitutional law. It can also be observed that over time the new Justices conform to the majority opinion of the Court and in doing so they might even rule against the political agenda of their nominating parties.
Even with curtailed powers, the current Constitutional Court is still stronger that many of its counterparts in Europe. What is unique about its decreased political influence is the decrease itself. So far, no other European country has opted to curb the powers of its Constitutional Court after transitioning to democracy. Under the present circumstances, Hungary’s Constitutional Court cannot deal with budgetary issues, which grants the government greater leeway in terms of economic maneuvering. In the past, the Court acted prudently when it came to financial and fiscal issues, and acknowledged that to a large extent they should be handled by the legislature and the executive–the reason why Justices resented the decision to remove budgetary issues from their circle of influence.
Interestingly, the removal of actio popularis from the Constitutional Court’s sphere of competence shows that curtailment of power is not negative per se. The old system allowed every Hungarian citizen to ask the Constitutional Court to review whatever law that the person in question suspected to be unconstitutional without proof of individual interest in the case. This practice overburdened the Court as it was legally obliged to examine all of the petitions. As a counter-example, the European Court of Human Rights only accepts individual applications if there is evidence of significant personal disadvantage (although exceptions can be made in important human right cases).
It has to be highlighted that checks and balances are not only internal, within the existing constitutional order, but external as well. The Hungarian legal system does not exist in a vacuum; rather, it is part of the European tradition. Hungary is also a party to numerous international agreements and is bound to respect the rights and obligations that these treaties confer upon the country. Nevertheless, Hungary also has a legal history, which has not disappeared with the introduction of the new Basic Law. The old rulings of the Constitutional Court–based on the interpretation of the old, amended Communist Constitution–has not lost effect, similarly to the civil and penal code introduced in the era of Communism, which have been kept, but amply amended to suit our modern democratic needs.
All in all, Hungary’s checks and balances are alive and functioning thanks to a still relatively strong Constitutional Court and the existence of external guarantees of human and political rights. The Court has, after all, retained its ability to oversee (and annul) the laws passed by the parliamentarian majority–its most important tool to act as a check on government decision-making.
–Zsófia Göde is a Leadership Fellow and Program Associate at the Common Sense Society in Budapest.
*The above summary arguments were discussed at an event hosted by the Common Sense Society in Budapest on May 31, 2012, featuring Constitutional Court Justice Dr. Péter Kovács and constitutional law scholar Dr. Sándor Udvary.