József Szájer – Checks and balances

József Szájer – Checks and balances

2012. 02. 01.

Taking their cue from the Ambassador of the United States, many individuals, be they journalists, bloggers or politicians, have picked up on and started using this concept, hitherto unknown in Hungarian public debate. Yes indeed, they were unaware of it thus far, but it has in the meantime dawned on them that Mr. Orbán’s constitution does away with the system of checks and balances, which in their view is Hungary’s biggest problem today. Well, if we are optimists, we might say what a qualitative leap that represents, how much better it sounds than the previous scratchy old record put on again and again in spite of being worn out, which played the tune of dictatorship and the revival of fascism. Unfortunately, however, this is not an accurate reflection of the reality, because those who bandy about the phrase use it exactly the same way, to mean exactly the same thing. And since, apart from a few philosophers and legal luminaries, nobody knows what the concept actually involves, it is possible to shape its meaning in the realm of public discourse however the person using it sees fit. It doesn’t matter that you don’t have the foggiest idea what checks and balances really implies, it is enough for you to get the feeling that trouble is brewing for the Government big time.

It is all very well that the accusation seems to be of a different calibre to its predecessors: appearances can be deceptive and such a conclusion does not stand up to scrutiny. You can accuse the new Hungarian Constitution of a lot of things, but the charge that checks and balances are missing from it is not one of them.

The core tenet of the liberal theory of power as devised by Montesquieu is that power should not be unitary, but separated into different branches. Montesquieu himself listed three branches of power: the executive, the legislative and the judiciary. The theory represented a radical break with the contemporary feudal or rather absolutist understanding according to which “la loi c’est moi”. If the king himself is synonymous with the law, then he must draw it up, he must amend it, he must enforce it and ultimately, he must decide whether it is just, which is despotism pure and simple. If instead, laws are drawn up by Parliament, the government implements them and the judge enforces them, despotism may be precluded. None of the individual branches has a monopoly on power, but they are separated from each other. There is more to it than this, however: they are not merely separated from each other, but each exercises control over the other, by which they keep each other in check and engage in mutual monitoring. These reciprocal rights of scrutiny are called “checks and balances”. How it works in America is that the President (the executive) may veto the laws adopted by Congress (the legislature). Another example is when the legislature does not adopt the budget and in so doing paralyses the executive, which is not able to pay its own staff. But a further example is to be found when, by virtue of its powers of judicial interpretation, the court in certain of its decisions interprets the meaning of the laws adopted by the legislature in practice. This is where perhaps the most important instrument of reciprocal scrutiny enters into the equation, namely that of regulating appointments. An important rule is that a branch of power should not become incestuous; hence the members of the US Supreme Court are nominated by the President and appointed by the legislature for life. The length of term of office, the possibility of re-election or absence thereof may act as a significant counterbalance.

Over the centuries the system of checks and balances has accumulated a rich array of instruments. The constitutional system of modern liberal democracies may be broken down into considerably more components than was the case in former times. So much so that these days we are entitled to talk about a system which has more to it than simply three branches of power holding each other up to mutual scrutiny. Above and beyond all of this, citizens’ inalienable rights form an important part of the system and they also place limits on the exercise of power.

If we examine Hungary’s new Fundamental Law, it complies with the principles expounded above in every respect. Right at the beginning our Fundamental Law declares: “The functioning of the Hungarian state is based on the principle of the separation of powers”. This did not feature in the previous constitution. The new Hungarian Constitution, unlike its predecessor, defines citizens’ rights at the beginning, only subsequently moving on to the state, a further means by which it articulates that the source of state power lies in the community of citizens and their rights. The Fundamental Law regulates the distinct branches of power in detail and their relationship to one another. The new Fundamental Law defines the rules pertaining both to modern democracy and to checks and balances more broadly than has been the custom in Europe, indeed it considerably expands them. In many countries, the public prosecutor’s office is under the supervision of the executive, or the courts are managed by it, or numerous media regulatory powers are in its hands. In Hungary, a model has been selected – and this applies equally to the public prosecutor’s office, the courts and the media regulatory authority – which substantially reduces the scope for the executive to bring its influence to bear, as, independent of the government, each institution enjoys autonomous powers and is headed by an individual elected by a qualified majority in Parliament.

In order to safeguard the separation of powers and the system of checks and balances, the new Constitution creates a brand new institution, the Budgetary Council, and its right of veto. The Budgetary Council, as a constitutional institution, is composed of three members, the Presidents of the State Audit Office, the Hungarian National Bank (whose mandates are conferred by the Parliament and whose independence is guaranteed by law) and the Chairman appointed by the President of the Republic. This institution is vested with hitherto unprecedented rights of intervention in relation to Parliament’s sacrosanct and thus far exclusive power of adopting the budget: it enjoys a right of veto if the rules related to the so-called debt brake (the fiscal deficit is not allowed to grow until such a stage as it has dropped to below 50%) were not to be respected by Parliament. Montesquieu would be delighted if he could see with what ingenuity his theory has been further developed! New branches of power, new mandates for reciprocal scrutiny! Even the most fundamental powers of Parliament are not exempt. Let us repeat for the benefit of those who are slower on the uptake: “The functioning of the Hungarian state is based on the principle of the separation of powers”. More than just a fundamental principle, this quite literally means putting our money where our mouth is.

A further new “counterweight” compared with the previous constitution is the new power accorded to the Constitutional Court in relation to the lower courts, which enables it to revise rulings incompatible with the constitution. Thus courts too are subject to a constitutionality check.

The terms of office of the heads of the individual constitutional institutions have been fixed for a longer period in the new constitution compared with the previous version. This too has led many to attack the Constitution, although it is completely absurd to do so given that in modern constitutional systems, the longer mandate of institutions that place restrictions on the executive is their very guarantee of independence.  To take an American example, it makes no difference that we know in relation to practically every member of the federal Supreme Court to which party they owe their mandate: nobody can tell them how to decide because the very fact that they are allowed to stay in office for life by definition makes them independent. We in Hungary, having learned from the unpleasant experiences of the recent and more distant past feel an aversion towards lifelong tenure, but we appreciate that longer mandates mean greater independence and thereby stronger checks and balances!

The main beneficiary of the extension of the term of office is the Constitutional Court, as the short mandate accorded to its President, a function which has frequently changed hands since the collapse of Communism, has now been prolonged considerably, which boosts the institution’s independence.

 The section of the Constitution which deals with the state, in particular the passages setting out the rules pertaining to the individual institutions operating independently of the executive is ripe with further examples of the pervasiveness of checks and balances. All of these examples came into being in order to ensure that the constitutional system would be capable of preventing any one side from accumulating an excessive concentration of power. Anyone who actually reads through and understands Hungary’s new Fundamental Law will not be left with the tiniest shred of doubt that the accusation according to which checks and balances are allegedly missing from it is entirely baseless.

József Szájer