The embattled Hungarian Constitutional Court fights back

Originally I wanted to write about the excitement over rumors that Péter Erdő, head of the Hungarian Catholic Church, might be a serious candidate to become the next pope. Not because I believe for a moment that Erdő has a chance but because devoting a post to him would give me an opportunity to spend some time on the state of the Hungarian Catholic Church under his leadership.

But then a barrage of legal news arrived. So today I would like to concentrate on two recent issues: the precarious position of the Hungarian Constitutional Court and its latest decisions.

Let’s start with the issue of the red star. The European Court of Justice ruled twice in the past few years on the display of the red star. In the early days of the Third Republic the use of symbols representing dictatorships, e.g. the red star on the one hand and the swastika or the symbol of the Arrow Cross Party on the other, was deemed a criminal act. At least two individuals tested the legality of the law by displaying the red star and being found guilty. When they exhausted all appeals  they went to Strasbourg. In both cases the European Court of Justice ruled in favor of the plaintiffs and the Hungarian state had to pay a few thousand euros to them by way of compensation. At this point even Tibor Navracsics, the minister of justice, thought that it was futile to stick with the original passage in the criminal code because time and again Hungary would lose in the European Court of Justice.

So, the Constitutional Court took the case and handed down an unexpected decision. They ruled that not only should the display of the red star be legalized but also symbols of far-right dictatorships. I guess the judges wanted to save themselves from the uncomfortable position of  repealing only half of the law, the one related to the communist symbol.

People who argue that the red star should be legalized while the swastika, for example, shouldn’t, claim that the red star was originally the symbol of the working class movement and social democracy and not the symbol of Soviet dictatorship. Only later were the red star and the red flag expropriated by a cruel dictatorship that had little to do with the original idea. Moreover, these people add that the far-left ideology is practically nonexistent in Hungary today and thus poses no threat to democracy.

On the other hand, goes the argument, the Hungarian far right is strong and poses a threat. Moreover, while in the Hungary of  the pre-war years the Hungarian communist party was a negligible organization, the Hungarian far right was strong. Thus, the swastika and the symbol of the Hungarian Arrow Cross Party should be banned because of the history of far-right movements and their present strength in the country.

Political reactions to the Constitutional Court’s decision are telling. The first party to respond was the Christian Democratic Party. MTI reported that the party accepts the decision but “it regrets that from here on anyone can march with an emblem depicting the hammer and the sickle or the red star on May 1.” Then Antal Rogán expressed his regret that “anyone can loiter on the streets with a swastika, the red star, or an SS badge.” He considers this situation untenable and brought up the possibility of another amendment to the constitution that would forbid the display of these symbols.

But, of course, the last word is Viktor Orbán’s and he announced a couple of days ago that the law forbidding the use of these symbols must stay. He announced his opinion on the day that was devoted to the victims of communism. The communist symbols, as we know, bother him more than those of the far right. After all, Orbán makes every effort to appease the far right and therefore glosses over the past and present sins of the Hungarian Nazis.

A more important decision of the Constitutional Court is the ruling on the disputed church law. Today the Court repealed parts of the law and told parliament to work out new rules on the status of churches. I have written fairly extensively on the issue; one can read some of the details here. The decision is retroactive, which means that the seventeen churches that were stripped of their status as bona fide churches will regain their former legal status.

This decision was hailed by practically everybody as a great victory for Hungarian democrats and a serious defeat for the Orbán government. See, for example, the quick response to the law by Bloomberg. I would wait, however, before rejoicing. Again the first government politician who responded to the decision was a Christian Democrat, Tamás Lukács, a not so bright lawyer, who pointed out that the parliament at the moment is working on the new amendments to the constitution and if these amendments are approved (and who doubts that they will be approved) the Court’s decision might have to be re-examined.  This doesn’t sound too promising. Even less promising is what Antal Rogán had to say a few minutes later. In his opinion the amendments to the constitution “will solve the problem.” But he added that they will carefully study the matter and they will respect “whatever possible” of the decision. And naturally there will be parts they will ignore.

And finally, which I can touch on only very briefly here, there is the Orbán government’s decision to further strip the Constitutional Court of its already greatly curtailed powers. A few days ago we learned that the plan is to annul all Court decisions of the last twenty-two years. Zoltán Fleck, a professor of law, considers such a step a “liquidation of our twenty-year-old constitutional development and our legal culture.” However, according to an MTI report today, “ruling Fidesz lawmakers … will reconsider [their] earlier proposal to strip the Constitutional Court of its right to refer to its previous decisions when making a ruling.” Apparently, in the parliamentary committee on the constitution the legislators are contemplating another version of the proposal that would allow the Court to make decisions identical to its earlier rulings and/or make decisions contrary to earlier decisions.

The country is in legal limbo but probably not for long. Orbán has appointed a new judge who used to be a Christian Democratic member of parliament. He will join the five earlier appointees who vote together and always in the government’s favor. Within a few months another judge will be appointed. Soon enough, the Constitutional Court will also be Orbán’s plaything.