The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law (original) (raw)
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in: Pócza, Kálmán: Constitutional Politics and the Judiciary: Decision-making in Central and Eastern Europe (London/New York: Routledge, 2018), pp. 96-125.
Following the landslide victory of the Fidesz party in 2010, the new government, backed by a two-thirds majority in the parliament, started quickly transforming politics and to some extent the polity of Hungary as well. Due to the high international reputation of the Hungarian Constitutional Court, attacks against the Court became widely followed in the international scientific and laic community. Several volumes and articles dealt with the transformation of constitutional adjudication after 2010, but no one focused on the question of whether the backlash against the Court had any ground in the practice of constitutional adjudication in Hungary. This chapter will explore to what extent has the HCC has really constrained the room for manoeuvre of the legislator in Hungary after the democratic transformation process, and examine whether the narrative of a Court unduly entering the political field and, consequently, constraining too heavily the democratically elected parliamentary majority might prove true. We will argue that the practice of the HCC and its position within the system of separation of powers might be best described as a partner in a constitutional dialogue. In this position, the HCC signalized quite frequently that the legislator departed from the path of constitutionality but, at the same time, it developed a highly refined instrumentarium not to constrain too heavily the legislator. Thus, the attitude of the court towards the legislator has been rather cooperative and partnerial rather than confrontative.
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European Journal of Sociology, 2001
Among the happier surprises in the East Central European world since 1989 are the new Constitutional Courts. Herman Schwartz E of the Eastern European countries that democratized in - emerged with a constitutional court or some form of tribunal charged with protecting constitutionality. Most of these were created sui generis during the transition process. Even in comparison with powerful courts in Western Europe, however, the Hungarian court has remarkably broad jurisdiction and extensive authority (Elster et al. , ; Brunner , ; Schwartz , , ). Relying on these 'vast formal powers,' the Hungarian Constitutional Court has become an important factor in the democratic consolidation process (Klingsberg , ; Sólyom , ). Staking out its authority immediately, the court has taken important and controversial decisions on a wide range of issues: the state's control over broadcast media, the relative powers of the president and the prime minister, lustration efforts, the death penalty, abortion, property restitution, economic reform measures, same sex partnerships, and referenda (Elster et al. , ; Paczolay ; Schwartz ; Sólyom and Brunner ). Observers have consequently emphasized the court's role as a 'safeguard' of the transition process and the rule of law (Elster et al. , ; Klingsberg , ; Kulcsár , ; Paczolay , ; Schwartz , ). Not surprisingly, this was not the original intent of the communist regime when it initiated the institution's creation-only 'afterwards [did] they realize that this is a very serious institution' ().
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Why did Hungary witness the development of one of the strongest constitutional courts the world has ever seen, whereas, at the same time and under similar circumstances, nearby Poland decided to subject its Constitutional Tribunal to political review? This article considers how, following the transition from communism to democracy, these two countries developed their constitutional jurisprudence with a special focus on what is called “the accountability function of the courts”, namely on the normative role of the courts in structuring the conditions for democracy and the ability to hold the executive branch of government responsible for making legitimate laws.
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ICL Journal, 2011
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The Rise and Fall of Central Eastern European Constitutional Courts
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The paper describes the development of constitutional judiciary in the region of Central Europe, facing the rise of illiberalism in this region. Constitutional courts and constitutional review are in conflict with illiberalism. Illiberal regimes do not favor constitutional review of legislation because they consider any such control an inappropriate limitation of democracy. In this view, democracy is based on the will of the people and therefore the people should not be constrained by any means, by any institution. It is not likely that constitutional courts will be abolished altogether in Central and Eastern Europe in the foreseeable future. The global rise of constitutional adjudication still controls the mainstream political rhetoric. Even authoritarian regimes do not want to be viewed as autocrats who are off the leash, unrestrained by any checks and balances. But the genuine importance of constitutional courts is nonetheless withering away. Some constitutional courts in the region are now politically loyal constitutional tribunals similar to those operated in the few countries which practiced constitutional review at socialist times prior to 1989 (Poland and Yugoslavia). Keywords Constitutional courts; Constitutional review; The rule of law; Illiberalism; Central Europe * This article was written with the support of the Czech Science Foundation (GA ČR) project reg. no. 19-10723S What unifies current law and what fragments it from the perspective of legal theory and judicial practice? The usual disclaimer applies.
The fragility of an independent judiciary: Lessons from Hungary and Poland -- and the European Union
Communist and Post-Communist Studies, 2018
When the European Union was founded, it was assumed that all Member States admitted as consolidated democracies would maintain their constitutional commitments. In recentyears, Hungary and Poland have challenged this premise as elected autocratic governments in those countries have captured independent institutions and threatened long-term democracy. The judiciaries of these countries have been hard hit. In this paper, we trace what has happened to the judiciaries in Hungary and Poland, showing how first the constitutional courts and then the ordinary judiciary have been brought under the control of political forces so that there is no longer a separation of law and politics. We also explore why the European Union has so far not been able to stop this process. In the end, the European judiciary, particularly the Court of Justice, is attempting a rescue of national judiciaries, but the results are so far unclear.
2019
Over approximately the past decade, a wave of democratic decline has swept across the globe. All around the world, previously stable democracies have suffered illiberal erosion, often at the hands of popularly-elected authoritarian populists. 1 A prototypical example of this trend has taken place in Hungary, a once promising post-Soviet success story that, per human rights groups, is now a democracy in name only. 2 The driving force behind Hungary's decline-Prime Minister Viktor Orbán and his political party Fidesz-took power in 2010, commanding a parliamentary supermajority that allowed Orbán to promulgate a new constitution and institute a number of authoritarian reforms to entrench Fidesz's power. Such reforms include shrinking the sphere of public discourse through media laws, purging political opponents from government agencies, and undermining the independence of courts and accountability bodies. Arguably, the newest front in Orbán's assault on democracy involves the promulgation of a new law establishing so-called "administrative courts," to begin operating in 2020. 3 These administrative courts will possess competency to hear critical cases related to government actions, including oversight of elections and financial matters including taxation. Rights groups and European Union institutions have expressed concerns that these courts will lack independence, stemming largely from the wide latitude that Orbán's administration will have to appoint Fideszfriendly judges to review government actions. This paper argues that European courts-namely, the European Union's Court of Justice (ECJ)-should enforce a "right to an independent judiciary" against Hungary. Such a right has gained burgeoning recognition in recent ECJ cases, with the
Spreading Democracy and the Rule of Law?, 2006
SPREADING DEMOCRACY AND THE RULE OF LAW in which the candidate countries have had to roll back half a century of Leninism and a few years of independent law-making. 2 Other analyses look at the transfer of law from the opposite direction. They ask whether there is a cultural basis for constitutionalism in individual post-Communist countries in general, 3 and for an "EU-constitutionalism" in particular. They do this by studying public opinion 4 or by speculating on the significance of deep cultural legacies, which affect the (non)functioning of today's legal institutions. 5 Such analyses assume that constitutions and laws do not exist in a socio-cultural vacuum. Rather, they work against the background of discourses and practices inherited from the past in various ways, i.e. in the context of what is often called "culture". One area that has so far received only limited attention in this context is the role of the newly established constitutional courts in the region. Their remarkable activity has been studied in various contributions, 6 but the relationship between their jurisprudence and EU Integration has not systematically been researched. This research would have to point out the various ways in which the jurisprudence of the constitutional courts has promoted smooth EU Integration or slowed it down. In this chapter, I am interested in a different, rather more informal way that "Europe" and EU Integration affected constitutional politics in the decade after the regime change and vice versa. I am going to explore an argument formulated by Kim Lane Scheppele, namely that "the success of a constitution depends less on its constitutional pedigree than on the political culture into which the constitution 2