EurActiv: Győri Enikő EUállamtitkár cikke nyomán vitatkozom Sceptic közszolgával

Győri Enikő EU-államtitkár ( http://www.kormany.hu/hu/kulugyminiszterium/eu-ugyekert-felelos-allamtitkarsag/az-allamtitkar/gyori-eniko-eletrajza ):
Hungary’s critics should check their facts http://www.euractiv.com/future-eu/verhofstadt-gets-papers-analysis-519203

Vita:

Sorry state minister Győri but you try to trick EU, cf. http://krugman.blogs.nytimes.com/2013/04/08/guest-post-hungary-the-public-relations-offensive/

“[…] Because of strong international criticism, Fidesz officials’ public relations blitz routinely includes a defense of what they have done to Hungary’s churches, since hundreds of churches lost their official status through a law that went into effect on 1 January 2012. Now every church that seeks official recognition has to be approved from scratch by a special two-thirds vote of the Parliament. If a church can’t get that, it is confined to the legal category of a civil association without tax exempt status, assuming that the church can make it through the onerous re-registration process. The Constitutional Court struck this system of church registration twice – once on procedural grounds in December 2011 (in Decision 164/2011 (XII. 20)) and again on substantive grounds in February 2013 (in Decision 6/2013 (III. 1)). But the Fourth Amendment inserts the same unconstitutional system back into the constitution again.
Fidesz defends church registration by claiming that many of those now-deregistered churches were fraudulent. But Mr. Martonyi proclaimed to the European foreign ministers that “the exercise of religion and confession of faith is [sic] not restricted by law.”
David Baer of Texas Lutheran University has studied in detail what happened to these legally demoted churches, and his results strongly challenge Mr. Martonyi’s statement. The Catholic Church may have abolished limbo for its faithful, but the Hungarian government restored it in the form of a legal insecurity that has gripped many legitimate churches for nearly 16 months. The legal changes have forced a number of them into moving, closing or agreeing to requirements that violate their faith by making them adopt specific internal structures of governance that are contrary to their beliefs.
Mr. Martonyi, however, assured his fellow European foreign ministers that the Fourth Amendment adds procedural guarantees to the church registration process, explaining that “an individual review of such decision can be sought before the Constitutional Court.” But a closer look reveals that this review is actually a trick.
How does this trick work? The Fourth Amendment provides (in Article 4) that “The provisions of cardinal Acts concerning the recognition of Churches may be the subject of a constitutional complaint.” Translated from legal language to ordinary language, that means that only laws can be challenged before the Constitutional Court only by those parties who are directly affected, who are the only ones who can bring a constitutional complaint.
But when a church applies to be recognized by the Parliament, the law is only modified if a church wins recognition. In such cases, the law is amended to add the name of the church to the list of recognized churches, which are all explicitly named. But if a church is rejected by the Parliament, the rejection comes in the form of a parliamentary “order” (határozat) and not an amendment to the “law” (törvény). And orders of the Parliament cannot be challenged before the Constitutional Court. So if a church is successfully added to the list of official churches, it has a remedy at the Constitutional Court when it doesn’t need one. But if a church is turned down and would benefit from judicial review, the appeal to the Court is barred. It’s a trick that makes it appear that the government has provided an avenue of legal redress to a church that has lost official recognition. But it doesn’t.
As a result, the Fourth Amendment perpetuates an unconstitutional situation because the Parliament can determine the fate of any church with no rules, evidentiary standards, or appeal when there is a rejection. The amendment simply overrules the Constitutional Court’s decision of a few weeks ago because it does not provide a real remedy to the problem identified by the Court — that there were no meaningful standards of procedural fairness in the church registration process.
Mr. Gulyás and Mr. Martonyi defend other aspects of the new Fourth Amendment as part of a common chorus of responses from other Fidesz loyalists. Mr. Gulyás claims that the Hungarian Constitutional Court “specifically mandated” that the Parliament pass this the Fourth Amendment to fix an unconstitutional situation. Mr. Martonyi says that the Fourth Amendment’s very purpose is “to implement” a decision of the Constitutional Court.
It is true that the Court annulled on purely formal grounds a number of purported constitutional amendments in its decision on the Transitional Provisions in December 2012 (45/2012 (XII.28)) because permanent changes were made not in the constitution itself but only to a constitutional annex. But the Court did not ask that the constitution be amended again to include the same provisions that were struck.
Mr. Gulyás asserts that failing to reenact the unconstitutional constitutional amendments would have been a problem because “Parliament had a constitutional responsibility to re-regulate these matters, otherwise an ex lex situation would have created complete legal uncertainty.”
It’s a touching concern. But again misleading. Mr. Gulyás fails to mention that almost all of the unconstitutional provisions struck down in the Transitional Provisions were duplicated in existing cardinal laws, so the nullification of the constitutional amendments changed very little on the ground and certainly did not cause legal insecurity. If the Parliament were deeply worried about legal uncertainty, perhaps it should not have annulled overnight more than 20 years of constitutional case law through the Fourth Amendment, something that really does create legal uncertainty.
Since the new constitution went into effect, Constitutional Court did declare a number of other laws unconstitutional as substantively inconsistent with the principles of the new constitution, including two of the now-nullified former constitutional amendments. But, far from implementing these Constitutional Court decisions, the Fourth Amendment simply overrode them by inserting the unconstitutional laws directly into the constitution without attempting to fix them. It’s true, as Mr. Martonyi says, that the government refrained from reintroducing into the constitution a requirement that each voter register anew before each election, after that requirement was declared unconstitutional. He fails to mention to the foreign ministers of Europe, however, that the Fourth Amendment did override most of other the important Constitutional Court decisions that went against the government in the last 16 months, a fact which gives a very different impression.
Here are the substantive Constitutional Court decisions that were explicitly overruled in the Fourth Amendment:

  • A Constitutional Court decision declared unconstitutional the law that defined the family as consisting of a heterosexual couple and its descendants (Decision 43/2012 (XII. 20.)). But that decision is now overruled through Art. 1 of the Fourth Amendment.
  • A Constitutional Court decision declared unconstitutional the procedure through which the Parliament votes on the official status of each church (Decision 6/2013 (III. 1).). But that decision is now overruled through Art. 4(1) of the Fourth Amendment.
  • A Constitutional Court decision declared unconstitutional on free speech grounds the restriction of political advertising during election campaigns (Decision 1/2013 (I.7.)). But that decision is now overruled by Art. 5(1) of the Fourth Amendment.
  • A Constitutional Court decision declared unconstitutional on grounds of freedom of movement the requirement that students be forced to seek employment only in Hungary after their university degrees have been paid for by the state (Decision 32/2012 (VII. 4.)). But that decision is now overruled by Art. 7 of the Fourth Amendment.
  • A Constitutional Court decision declared unconstitutional the law that creates a system of administrative fines for homelessness because it violates the human dignity of the very poor (Decision 38/2012 (XI. 14.)). But that decision is now overruled through Art. 8 of the Fourth Amendment.

(In case you want to check this, the official English translation of the Fourth Amendment is here, but it can only be fully understood by cross-referencing the constitution here. Unfortunately, the Court decisions are only in Hungarian.)
And, of course, the Fourth Amendment indiscriminately nullifies ALL of the decisions that the Constitutional Court made between 1990 and 2011.
Fidesz officials say that critics have exaggerated the significance of the nullification of all of the previous Constitutional Court case law because, as Mr. Martonyi notes, the prior decisions’ “legal effect would remain intact.” But one needs to understand the meaning of “legal effect” to see how limited a claim this is. When the Hungarian Constitutional Court declares a law unconstitutional, the law is nullified. That is the legal effect: the law disappears from the law books. Mr. Martonyi’s assurance only means that once-nullified laws don’t automatically return when the decision that nullified the law is itself nullified. But everything else that gave Hungarian constitutional law its stability through reasoned Court judgments – the guarantees of checked powers, the elaboration of rights, and the relationship between Hungarian constitutional law and European human rights law, for example – has disappeared through the government’s nullification of the case law. And that is what critics are objecting to.
As Mr. Martonyi explains, the legal disappearance of all prior case law “strengthen[s] the freedom and autonomy of the Court” because “[t]he Constitutional Court would hence be free to choose between taking its own previous decisions into consideration, referring to them, or simply ignoring them.” Exactly. But this is odd to claim as a benefit.
I ask my readers who live under a Supreme Court or a Constitutional Court outside of Hungary: How would you feel if your high court were “liberated” in this way – by having all of its prior case law indiscriminately cancelled overnight? As Janis Joplin famously sang in the song “Me and Bobby McGee,” “Freedom’s just another word for nothing left to lose.” When the United States adopted its constitution, most of the rights of American citizens were guaranteed in the common law, which was carried over – intact – from the period of colonial rule. In fact, that is typical of constitutional reform around the world: everything else stays the same except those relatively few things that have been explicitly changed. Not so, now, in Hungary.
Critics say that the Fourth Amendment restricts the power of the Constitutional Court, but the government now insists that the Fourth Amendment expands the Court’s power because, for the first time, the constitution permits what the Court has already done – which is to declare constitutional amendments unconstitutional if they are not passed in the appropriate way. Perhaps the government thinks that giving the Constitutional Court a capability it has already used is an expansion of its power, but that is not the usual meaning of the word “expand.” The government cannot deny that it is taking away a power that some judges of the Constitutional Court also claimed (in Decision 45/2012 (XII. 28)) – which was to review constitutional amendments for their substantive conflicts with constitutional principles. The Court had not yet used that power, but it was clear that support was gathering within the Court to do so. Removing from the Court the ability to review the content of constitutional amendments simply means that there is no barrier to the government inserting completely contradictory provisions into the text or overruling any Court decision the government doesn’t like, both of which the government has already done with the Fourth Amendment.
The idea of an unconstitutional constitutional amendment may sound odd. In countries like the US and others where the constitutional amendment process is long and arduous with many checks along the way, there may not be a need for a high court to be able to review amendments. But when the constitution is amended nearly every week and the government is routinely using its supermajority to put controversial laws beyond any check, some power should examine what the government does or else the government simply bursts the bounds of the rule of law. If the Court is not given this power, there must be some other check somewhere in the system – for example, an upper chamber of the Parliament, or an independently elected president, or parliamentary procedure that guarantees that the majority must address minority concerns, or a popular ratification of constitutional amendments. But, in Hungary, none of these options are present. Hungary has a unicameral parliamentary system with no other powerful checks. That is why the Court should have that power or else the constitutional system would – and now has – become a farce.
Mr. Gulyás claims that the Constitutional Court asked to have its power limited in a crucial way, by removing its “actio popularis” jurisdiction that allowed anyone to challenge a law before the Court. True, but misleading. Since the 1990s, constitutional judges have been complaining about the thousands of vague and misdirected complaints they receive through actio popularis petitions. But the Court’s judges (before those added by this government) would never have agreed to have most of their jurisdiction gutted, which has been the overall effect of the new system. (For more detail, see my Helsinki testimony. ) While the open petition system was not the only way that the Court could have been empowered to review important laws, eliminating it without a good substitution has created holes in the Court’s oversight of the constitutional order.
But we should all be careful what we wish for. This month, the ninth judge elected with the Fidesz two-thirds supermajority is joining the 15-member Constitutional Court. (He is one of the few judges to get a multi-party vote since the far-right Jobbik party supported him, too.) The eighth joined last month. Now that the government is practically guaranteed a friendly majority, perhaps Fidesz will offer to restore some of the Court’s powers as a way of showing how flexible they are. A Court that has nine judges who owe their careers to one party and who have been elected for 12-year terms can make it difficult for any non-Fidesz government to govern, even if a new government could be elected against the background of an ever-changing landscape of new electoral barriers that the opposition has to hurdle. Yes, the long terms for constitutional judges mean that the Fidesz judges could (and should) be independent but so far only one of the Fidesz judges has shown serious independence from Fidesz party positions.
Mr. Gulyás tells me I can’t have it both ways – since he claims that I have argued both that no institution can check the powers of this government and also that a future government will be stymied by the ability of these very same institutions to thwart a future government. But that is not what I claim. Fidesz has seized control of all institutions in the Hungarian government through a two-pronged strategy. It has tried to cut the power of institutions it could not yet control – like the Constitutional Court and the central bank. It has beefed up the power of institutions that were in reliable hands – like the National Judicial Office, the Media Board, the Prosecutor’s Office, the State Audit Office and the Budget Council.
As a result, after Fidesz gains control over the personnel of an institution it has previously weakened, then it often “compromises” with critics and strengthens the powers that institution again. The same is true for institutions it needed to capture only for a brief time to accomplish a specific purpose (like replacing 10% of the judiciary at once, including much of the ordinary court leadership). Then it agrees to disperse centralized power. Fidesz can then be very cooperative with its international partners by agreeing either to limit the powers of an office that it no longer needs to control or to strengthen the apparent independence of an institution that is now safely in its hands. But otherwise, strong powers in reliable hands are just what the government has accomplished. And as long as strong-enough powers are in reliable-enough hands, the Fidesz supermajority can rein in any future opposition government that deviates from the Fidesz path. So the very same institutions that have been domesticated by Fidesz can turn fierce when a party other than Fidesz is in charge. To understand what this government is doing, one must always look both at the party background of the occupants of the offices and at the powers of those offices. Am I the one having it both ways – or it is Fidesz?
[…] Fidesz tries to turn all of its critics into agents for the “other side.” But that is a public relations trick. When a party brings all institutions of government under its control and attacks the independent judiciary, we are no longer in the world of normal party politics. Instead, we are in the world where Hungary’s very existence as a state under the rule of law is in question. That is why I have gotten involved. Once Hungarians regain their ability to live in a fully democratic society with depoliticized courts, I plan to go back to the quiet world of scholarship from which I came.”

By : Peter Mazsa – Posted on : 18/04/2013

Sorry Peter Mazsa, your rhetoric falls flat. This article asks intelligent and thoughtful people who care for the truth to read all of the relevant documents before jumping to a conclusion. It argues what you will find when you do. You, on the other hand, cast up assertions that you say contradict the position of the government but there is no authority you can demonstrate. For instance, more than one amendment to a Constitution might be wrong in some circumstances but it also can be right if the purpose is to take account of criticism and Court opinions, which is what is happening in this case.
By : Brian – Posted on : 18/04/2013

Sorry Brian, you appeal to a logical fallacy:) http://rationalwiki.org/wiki/Argumentum_ad_verecundiam#Appeal_to_no_authority AND there is an authority I can demonstrate anyway: http://lapa.princeton.edu/peopledetail.php?ID=432 + http://krugman.blogs.nytimes.com/?s=Scheppele
By : Peter Mazsa – Posted on : 18/04/2013

Here is the “sound evidence” not newspaper articles, the EU relies on this.
Amicus Brief on the Fourth Amendment
https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxhbWljdXNicmllZmh1bmdhcnl8Z3g6NzhhMTFmM2Q5NGM1OWM4OQ
And more documents here:
https://sites.google.com/site/amicusbriefhungary/
By : haemet – Posted on : 18/04/2013

@haemet: thank you. FYI: http://amexrap.org/fal/amicus-velencei-bizottsagnak-az-alaptorveny-negyedik-modositasarol
By : Peter Mazsa – Posted on : 18/04/2013

Dear Haemet and Peter Mazsa:
The opinions you refer to in the Amicus Briefs can be looked at for what they are worth. The same is true of the original documents. Your analysis does not cite any of these documents and does not refer to how the wording of the legislation operaties in the was mentioned. You argued that it was obvious that a number of amendments within a short time was obviously bad. How is this true of necessity? It is not me who is demonstrating logical inconsistency. The article appeals to people to look at original sources and decide for themselves who is correct. You cite only secondary sources and opinions. These should be considered for what they are in light of what is contained in the main documents, including the Court decisions. The arguments and opinions often misrepresent or misinterpret the wording and the meaning of each. I suggest you and others are not referring to the actual wording and meaning of what is written because those direct quotes demonstrate that what you are saying is incorrect or fatally misleadinig.
By : Brian – Posted on : 18/04/2013

Hi,
I can fully symphatize with what Brian is saying for 2 reasons:
1. Secondary sources are important, but more often than not they wil be biased – that’s just human nature. Now there is a degree of tolerable bias and then there is intolerable bias. But wholesale reference to this group’s or that group’s opinion, especially without reading the original text and pondering it, is intelectual slot and emotionally loaded argumentation.
On the other hand, in the EU there is only one institution acting within a carefully balanced “motivational framework” that can be relied on to deliver an impartial assesment cognizant of all possible implications and that is the Commission. Even there you will find some bias, but again, that’s human nature, but one can have a reasonable hope that the final assessment will not be intolerably biased
2. If I have to read all this legal stuff, you shouldn’t be spared either 🙂
As for the biases creeping in – I make clear my bias in the disclamer. The same is not true of many scholars, legal professionals, judges but also journalists and businesses etc whose interests or even egos have been hurt in one way or another by the current government. It is a natural response for them to see then at every possible juncture the worst motivations behind an act, whereas in the absence of the bias, one might conclude in a more neutral way. (Politicans like Verhofstadt are a completely different matter, their motivations should be clear for any reasonable individual who is not biased beyond redemption against Orban.)
Finally, this is not to say that this government is free of errors. It may not even be completely free of some of the intentions it is accused of. But it is certainly a far cry from the overall emerging picture of a ruthless autocracy in which freedoms are curtailed and abuses are inflicted upon a poor, passive population. Verhofstadt and co. are playing with fire when they cry wolf in the presence of a noisy and perhaps sometimes clumsy dog
disclaimer: I am a civil servant working for the Hungarian government
By : Sceptic – Posted on : 18/04/2013

In the spirit of Sceptic, I should reveal my disclaimer as well. I am from North America, where I received rigorous training as a lawyer and in economics. In my legal practice I specialised in company law, constitutional law, government administration, corporate finance and international trade. I have worked as an advisor to governments in more than eight countries and as a legal advisor and Deputy Chairman of a public company active in North America. I am not a member of any political party in any country and currently do not work for any government, news organisation, NGO or academic organisation. I am fascinated by the ructions happening within the E.U.
By : Brian – Posted on : 18/04/2013

Dear Brian,
you wrote: “You argued that it was obvious that a number of amendments within a short time was obviously bad. How is this true of necessity? It is not me who is demonstrating logical inconsistency.”
I don’t think so that a number of amendments within a short time would be bad: I think it is one of the main signs of a sub-optimally designed constitution. I like the fact that the communitarian http://plato.stanford.edu/entries/communitarianism/ constitution of Orban is very poorly designed because it reduces its life expectancy to 9 years, cf.

http://amexrap.org/fal/wp-content/uploads/2011/04/Untitled-1.jpg and http://www.amazon.com/dp/0521515505
Dear Sceptic,
you wrote: “it is certainly a far cry from the overall emerging picture of a ruthless autocracy in which freedoms are curtailed and abuses are inflicted upon a poor, passive population”
I’m sure you read Huxley as well: http://www.highexistence.com/amusing-ourselves-to-death-huxley-vs-orwell/ The relevant situation is this:

“This paper compares electoral outcomes of the 1999 parliamentary elections in Russia among geographical areas with differential access to the only independent from the government national TV channel. It was available to three-quarters of Russia’s population and its signal availability was idiosyncratic conditional on observables. Independent TV decreased aggregate vote for the government party by 8.9 percentage points, increased the combined vote for major opposition parties by 6.3 percentage points, and decreased turnout by 3.8 percentage points. The probability of voting for opposition parties increased for individuals who watched independent TV even controlling for voting intentions measured one month before elections.”

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1367046
and this:

“The problem does not derive from the abuses group persons [e.g. states] actually commit. It comes from the fact that even if they do not practice any abuse, they retain relatively unconstrained powers of inference, which are not always subject to effective measures of prevention or deterrence.
When one agent has an asymmetrical power of interfering with force, coercion, or manipulation in another’s choices, […] the regime of respect is compromised. And this is so even if that power is not actually exercised. Respect is possible between persons only if neither has an influence on the other that undermines the other’s can-do assumptions in suitable choices, rendering them untrue or unthinkable. The existence of asymmetrical powers of inference, even unexercised ones, can undermine such assumptions.
Suppose an agent thinks he or she has a choice between options x, y, and z but another has a power of interfering with this choice. Then the first agent’s choice is really between the options: x-if-the-other-allows-it, y-if-the-other-allows-it, and z-if-the-other-allows-it. When choosing, the agent chooses by the others grace: cum permissu, as the old complaint put it. The very presence of the other means that the options are different from what they would be otherwise.
This problem is exacerbated if the agent becomes aware of the other’s power to interfere […]: the agent knowingly faces not the simple option x, y, and z but only their modified counterparts.”

http://www.amazon.com/dp/0199591563 pp. 182-3.
By : Peter Mazsa – Posted on : 18/04/2013

FYI: http://mazsa.com
By : Peter Mazsa – Posted on : 18/04/2013

Dear Sceptic and Brian,
If you read the amicus brief, you will see that it refers directly to the wording of the Constitution on each point. Moreover, even if you choose to read only the Constitution, you will immediately see how the document, and especially the 4th Amendment, is in great violation of the basic principles of the rule of law. Without any interpretation, you can see that the 4th Amendment gives the Speaker of the Parliament control sole control of a private army of 350 guards, as well as the sole power to remove deputies from the chamber by force. It is written, in plain language, that the 20 years’ worth of legal precedent is erased. Things that the top court in the land– which should determine the law of the land– ruled unconstitutional are incorporated into the 4th amendment. I could go on, but you can read it yourselves.
This is not a matter of personalities or motivations. Every single person who wrote the amicus brief speaks Hungarian and is a top expert on Hungarian law. This is about the future of Hungarian democracy, and if talented and well-intentioned individuals such as Ms. Gyori fail to realized that we are really in a lot of trouble.
By : Skeptic, in a different way – Posted on : 18/04/2013

Source: http://www.kormany.hu, the official website of the Hungarian government. The official translation of the Fundamental Laws (new Hungarian Constitution – 4th Amendment included)
http://www.kormany.hu/download/e/2a/d0000/THE%20FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf#!DocumentBrowse
Let me quote word by word :

“(9)31 The security of Parliament shall be provided by a Parliamentary Guard. The Parliamentary Guard shall operate under the authority of the Speaker of Parliament.”
“(3) In order to protect public policy, public security, public health and cultural values, an Act or a local government decree may, with respect to a specific part of public space, provide that staying in public space as a habitual dwelling shall be illegal.”
“(3)20 An Act may provide that financial support of higher education studies shall be subject to participation for a definite period in employment or to exercising for a definite period of entrepreneurial activities, regulated by Hungarian law.”
“(3)15 For the appropriate dissemination of information necessary for the formation of democratic public opinion and to ensure the equality of opportunity, political advertisements may only be published in media services free of charge. In the campaign period prior to the election of Members of Parliament and of Members of the European Parliament, political advertisements published by and in the interest of nominating organisations setting up country-wide candidacy lists for the general election of Members of Parliament or candidacy lists for the election of Members of the European Parliament may only be published by way of public media services and under equal conditions, as provided for by a cardinal Act.”

By : haemet – Posted on : 18/04/2013

Dear Mazsa,
while I thoroughly enjoyed the “infographic” (?) on the link you provided (and will make an attempt to take up the whole site in my regular reading), and your quotes are thought provoking, I fail to see their relevance to the situation at hand:

  • Orban’s Hungary is not being accused of creating a Huxleyan distopia, but an Orwellian one (which totally contradicts my everyday experience)
  • if anything, Hungary may be becoming more like a Huxleyan distopia, but, at trisk of repeating myself, that is not what the Verhoftsadts and Redings etc. of this world are claiming, and perhaps more importantly, it is not Orban’s fault and it didnt start in 2010 and it is not happening only in Hungary. We are talking about a systemic problem and risk there of the whole western civilization, which is a great discussion topic but I’d hate it if Hungary were singled out somehow in that debate.
  • the specific study you refer to about Russia seems to be irrelevant because Russia is so different from Hungary due to its size, its poor infrastructure, its cultural variety, etc. The situation that the study actually seems to exploit to conduct a real life experiment (comparing voting behaviour in areas with and without access to independent media) couldnt even be recreated in Hungary with its abundance of free, independent media
  • furthermore, one of the main criticism against Hungary nowadays is about limiting political advertisments to the public media, so the availability of private media is not even a question there. The question will be whether and how the public media will fulfill its mandate of providing free of charge airtime for political ads on an equal footing to all national parties. But it is simply too early to cry wolf now and claim the whole system is antidemocratic, as the Verhoftsdas etc are doing
  • your final quote from ‘group agency’ describes a generic situation that’s inherent in mankind’s societies. I am not saying thoughtful people should ponder this and try ways to change it, all I am saying is that it is not relevant. If you think Hungary has somehow become worse in this respect, that’s fine, but let’s not lose perspective – it is not Orban’s making, and I cant see a pre-Orban wonderland and a post-Orban wasteland in this respect.

By : Sceptic – Posted on : 19/04/2013

Dear other Scpetic and Haemet,
you need to do a bit more of explaining because I dont see your arguments.

  • On guards and all, it would be interesting to see a comparison of the practice of other Parliaments. In itself the legal provision seem to me to make sense – security must be provided, and the security services should be ultimately controlled by an authority that is somehow responsible to the group on whose behalf it is provided. I dont know how it used to be, and again I dont know how it is done in other parliaments. Yet even if this would be unique practice, you need to explain why it is a problem.
  • The remark about “Things that the top court in the land– which should determine the law of the land– ruled unconstitutional are incorporated into the 4th amendment” bleeds from many wounds:

A. If you are Hungarian, or read Hungarian, you know very well that most of these stipulations were ruled unconstitutional on technical grounds. Some that were ruled unconstituional on substance were not taken back (e.g. electoral registration.) And some were taken back to make them constitutional. You see, something being “unconstitutional” is not the equivalent of being “forbidden by God”. The HU parliament is the constitutional power and has the right to change the constitution. You may not like the changes they make, but that in itself doesnt make them anti democratic or violating human rights.
B. This brings me to my next point: you are completely mistaken, wandering in legal cloud-cuckoo land if you think that the top court “should determine the law of the land”! The HUngarian people are the source of all sovereignity and they exercise their sovereignity through the Parliament. The top court is important, but it should be no means determine the law of the land. To give you an example of the probelms when it does, just check out Roe vs. Wade in the US and the chaos and partisan bickering in its wake. And just to shock you: if there was the required majority in the US Congress and the states (just like Orban’s party DOES have it in HU), Roe vs Wade could simply be overturned by inserting a clause in the US Const. to the effect that abortions are illegal. That’s it. Now it wont happen because there is no majority for it. But everything that happened in HU had a proper constituiona majority for it – even if it wasnt to your liking.
The question arises: could then Orban’s party make torture, the death penalty, the “Droit du seigneur” and other assorted vices constitutional? Yes they could. But did they do it? NOOO! And that’s the point.

  • Precedent: the legal effect is not erased, and the court is free to come to the same conclusion, it is only forced by this to come to the conclusion on the basis of the new text. Perhaps understandable, if there is a new text, use that, that is THE LAW OF THE LAND. Teh Court is not making the law, it is upholding it. Again, you might not like it, but is it antidemocratic?

By : Sceptic – Posted on : 19/04/2013

One more thing on the above: did the majority pass a lot of stuff not to the liking of the socialist and liberal elite and their supporters? Absolutely, big time.
However, given their abysmal performance up until and including in the free and fair elections in 2010 that gave Fidesz the 2/3s majority, there is only one thing I can suggest to them: “learn to live with it, thank yourself for it and always be reminded of your shame by it.”
And if I want to be a bit more cosntructive: “shed your zombies, build a proper party/coalition by 2018, win the elections with 2/3s and change it back, or change it “forward” in whatever way you think is right.”
By : Sceptic – Posted on : 19/04/2013

Sceptic,
I may be very conservative, or very liberal, but that does not change my perspective on the Constitution and the 4th Amendment. If you think that winning a two thirds majority permits the government to do whatever it likes, you really do need to check the definition of “democracy” in the dictionary. And of course the top court should determine the law of the land– any democratic society needs an independent body to act as a check on the government. Yes, Constitutional amendments are sometimes needed as societies evolve, but Constitutions which take power away from independent institutions and annul years of human rights case law are simply not acceptable. This will be my last post here, but I do want to leave you with some words of advice: first, please read the Constitution. And second, as a civil servant, please take your responsibility to the Hungarian people seriously. It may be your job to comment here, or perhaps you are just interested, but either way you still have the power to look beyond government propaganda.
By : Skeptic, in a different way – Posted on : 19/04/2013

Dear Sceptic,
you wrote: “The situation that the [Russian] study actually seems to exploit to conduct a real life experiment (comparing voting behaviour in areas with and without access to independent media) couldnt even be recreated in Hungary with its abundance of free, independent media”
:))) Orban tries his best to recreate the situation above: “in Hungary, with its abundance of free independent media” he has a de facto monopoly in news. E.g. in february 2013, based on official (government) data: Government+LocalNazis = 8025sec (93%), OtherParties = 593sec (7%). Or: AllWhoIsOrban=7408sec (84%), AllWhoIsNotOrban: 1210sec (16%)

(original, in Hungarian: index.hu/kultur/media/2013/03/27/mintha_csak_orban_beszelne_a_hirmusorokban )
With regards to your other arguments: Orban is completely democratic (in a sense like Hitler was in 1933 https://en.wikipedia.org/wiki/German_federal_election,_March_1933 ) but perfectly antirepublican at the same time. This is not a contradiction, cf. e.g.

E.g. this is how he defines his System of National Cooperation:

http://amexrap.org/fal/wp-content/uploads/2013/01/System-of-National-Cooperation.png
By : Peter Mazsa – Posted on : 19/04/2013

Other Scpetic
do I think that “winning a two thirds majority permits the government to do whatever it likes” – NO, hence my example of torture, “right of the first night”, etc. If the Parliament (not the govt!) passed sg like that, it would be undemocratic and trampling human rights by contemporary standards. But thats exactly the core of the debate: it can be established that the process of the “overhaul” of the country was not antidemocratic. The question then is the outcome, the product – is there anything antidemocratic, anti human rights etc there, as many would have you believe. I believe that it is OK. Btw, the Venice Commission in 2011 said the same about the new constituional order: while they did formulate a number of criticisms (what is perfect, after all) they clearly stated that the new HU constituition corresponds to the requirements of democracy and the rule of law.

  • “And of course the top court should determine the law of the land– any democratic society needs an independent body to act as a check on the government” Now I must ask you to check the definition of democracy. Is it the “power of the judges” or the “power of the people”. If you disagree, you disagree with Hungary’s pre-2010 constitution and with the decisions of the pre-2010 constittuional court. Ask someone more knowledgeable around you, I am not going to write down again how that works.
  • “Constitutional amendments are sometimes needed as societies evolve” Orban and Fidesz made the political choice that we need one now because we evolved since 1989. You and I may disagree, but you and I didnt manage to get the absolute, overwhelming majority of voters behind us. He did. Again, every democratic country’s constituion says that the final source of power is the people, and they exercise this power in the majority of cases through elected representatives.
  • “Constitutions which take power away from independent institutions and annul years of human rights case law are simply not acceptable ” you need to prove this, as I already asked but you dont seem to care. The pre-2010 CC. laid out clearly, in several decisions, that it does not have the power to overrule the constitution and the acts of the constitutive power (e.g. Parliament). Thats because they, as opposed to you, knew what democracy is.
  • I strongly believe that a fact based debate and fair criticism (there is so much to criticise!) would do a whole lot good to the Hungarian public. Alas, it is not happening, and to a large degree the critics (and there bombastiuc but shallow arguments) are to blame.

By : Sceptic – Posted on : 19/04/2013

Dear Peter,
to be honest, if your last picture is not a joke then I think you should see a doctor.
Now, to look at your data: it is a well known fact (and shortcoming) of modern democracies, with complex and all encompassing governments, that simply by virtue of the media focusing on “acts”, on “change”, on “effect on the people”, at any given time the ruling party (being the motor behind many of the government’s acts) will enjoy a publicity bonus. Now, I think it shouldnt surprise anyone that a hyperactive supermajority that is basically overhauling the country (thus profoundly affecting the lives of basically everyone) gets a huuuge publicity bonus. For proof of how that is “normal” to a large degree, look no further than the ATV figures – if even they cannot help featuring Orban and Co. more than 50% of the time, then it seems unavoidable.
Add to that the the opposition (quite sadly) is a bunch of lame ducks, seemingly unable to formulate positions and create “stories” that would be relevant for the people, and Fidesz has a dominance in airtime because they supply the news… Now I wouldnt contest that the public media is rather subservilent to the government, but let’s stop for a moment – is there anything qualitatively new there? Nope, it has been like tthat for much of the past 20 years. But with a thriving media landscape, public media certainly dont have a monopoly on what kind of info reaches the people.
Regarding your distinction b/w democracy and republicanism – Orban is guilty there. He is indeed just as democratic as Hitler in 1933, or Hollande in 2012, or Obama in 2012 and as much anti republican as the latter two. But not as Hitler. And thats my point all through – he is being accused of being sg he is not. He is another shade of our imperfect, corporatist, wishy washy governments of today’s West. I admit he may even be further to the statist, anti republican end of this democracy than many others. But he is still playing in this field, and not in the field of the history’s Chavezes, Putins or Hitlers.
So if your problem with him – as I seem to understand it – comes from a sort of libertarian persuasion, I grant you that you are right. But then be even handed – you should (and I know you do :)) have a problem with any western democracy…
By : Sceptic – Posted on : 19/04/2013

Nullum magnum ingenium sine mixtura dementiae fuit:)
No, I’m not a libertarian – but definitely not a communitarian like Orban either. Ok, I think we both discussed what we wanted: have a good life.
By : Peter Mazsa – Posted on : 19/04/2013