FAKTAPOHJAISEN JULKISEN KESKUSTELUN PUOLESTA

    Orbán seems confused on the Rule of Law

    28.08.2019 Toimitus

    On the 27th of July, during an event held in Băile Tușnad (Romania), Hungarian Prime Minister Viktor Orbán has delivered a speech in which he questioned Finland’s role in judging Hungary’s adherence to the Rule of Law. This statement is based on some features of Finland’s institutional system as reported by Orbán. 

    In particular, the Hungarian Prime Minister criticizes Finland because in that country «there is no constitutional court», «the defence of the Constitution is delegated to a special parliamentary committee set up for that purpose» and «judges are appointed by the President of the Republic, on the recommendation of the Minister of Justice».

    According to Orbán, all these features would impair Finland’s credibility in assessing the situation of the Rule of Law in Hungary.

    But what is the Rule of Law? Is Orbán’s description of Finland’s legal system accurate? Are the elements mentioned by Orbán fundamental to the Rule of Law?

    Thanks to the  TrulyMedia platform, Pagella Politica and Faktabaari – two fact-checking organizations that collaborate together via SOMA (the Observatory that the EU has enabled to fight disinformation) -  have been able to work together to give an answer to all of these queries.

    What is the Rule of Law?

    Before starting to fact-check Orbán’s statement let’s take a look at what the Rule of Law is.

    According to the European Commission, the Rule of Law it’s the idea that all subjects (public and private) of a country are bound to the respect of the law, under the control of independent courts irrespective of political majorities. It represents one of the core values that international organizations such as the EU and the Council of Europe protect and enforce.

    Even if experts haven’t come up with a shared theoretical definition, both of the organizations mentioned above have identified five necessary principles that law systems need to comply with to uphold the Rule of Law.

    According to the Council of Europe and the EU these are: 

    1. Legality, which means that state and public authority power need to be defined by the law; 
    2. Legal certainty, namely the idea that law, sanctions and court orders must be easily accessible, while the law and its consequences need to be clear and foreseeable; 
    3. Prevention of abuse/misuse of powers, meaning that power mustn’t be exercised arbitrarily or contrary to the law; 
    4. Equality before the law and non-discrimination, which means the law needs to avoid different treatments according to any ground; 
    5. Access to justice, which means that the judiciary system needs to be politically independent and impartial.

    As mentioned by the EU, all of these principles need to be enforced in a formal and in a substantive way for the Rule of Law to be respected. In other words, simply having constitutional provisions that organize the legal system according to these tenets it’s not enough. Public authorities need to actively take action in order to guarantee that the Rule of Law is upheld, regardless of the way in which their country’s institutional system is designed.

    The constitution is safe (even with no constitutional court)

    When it comes to describing the Finnish institutional system Orbán is sticking somehow to the facts (even though his interpretation of judicial appointments is not totally correct). 

    On the one hand, Orbán correctly reports that Finland doesn’t have a constitutional court and that laws’ adherence to the constitution is (in part) supervised by a special parliamentary committee. According to article 74 of the Finnish constitution, the Parliamentary Constitutional Law Committee checks that any draft legislation it’s in line with the constitution before it comes into force. 

    On the other hand, this doesn’t imply that laws’ adherence to the constitution is interpreted according to the will of the political majority in power at any given time. On the contrary, the committee is formed of both government and opposition representatives and is assisted by external legal experts.

    Most importantly, the Constitutional Law Committee acts only before enacting a bill. It is then the Courts’ job to check and rule out any law that is in conflict with the constitution, as stated by article 106 of Finland’s constitution. Every court level has the right to review constitutionality in any given case. 

    In other words, Finland has set up a system by which constitutionality is enshrined in the practice of law. Thus courts act as a balancing system to the parliamentary one.

    In addition, Finland has established a Supreme Court that has the last saying on matters of constitutionality. However, the Supreme Court –  contrary to a constitutional court – isn’t an entity entrusted solely with reviewing the constitutionality of laws and can judge on these issues only when judging concrete cases.

    In conclusion,it is highly misleading to depict Finland as a country in which the Parliament is the only entity in charge for checking constitutionality.

    Is a constitutional court mandatory?

    So far we’ve seen that Finland doesn’t’ have a constitutional court, but a Supreme Court that review constitutionality of laws when appealed. However, Finland is not the only country in the world to lack a constitutional court.
    But why?

    «If a country comes with or without a constitutional court is a matter of political and legislative history and culture. Constitutional courts were established in certain federations like Germany and Austria, in certain Southern European countries after the end of military dictatorships and in Eastern Europe after the collapse of the Soviet Union» Martin Scheinin, Professor of International Law and Human Rights in European University Institute explains.

    Therefore, not all countries have a constitutional court created with the only purpose of checking adherence of laws to the constitution. This is, for instance, the case of Finland, Iceland, Norway and Sweden, countries that – given their cultural ties – present a similar institutional framework in which judicial review is undertaken by courts when appealed.
    However, countries are not obliged to have a centralized constitutional court, such as the ones that Italy and Hungary have. Even if the Council of Europe recommends such a model, it doesn’t see having a constitutional court as a mandatory requirement for respecting the Rule of Law.

    Orbán is wrong on Finnish judges’ appointments

    According to Orbán, another criticism of Finland’s ability to guarantee the Rule of Law would stem from the fact that judges in Finland are appointed by the President of the Republic on the recommendation of the Minister of Justice. 

    However, the role of the President of the Republic in appointing judges is merely formal. For the appointment of all the judges the recommendation comes from the courts or from the independent Judicial Appointment Board, formed by representatives of the courts, of the civil service, of the academic world and of the legal profession. 

    All judges positions are filled in by an open competition and the recommendations from the courts are based on merit and not on political connections. The legality of the recommendations is checked by the Ministry of Justice.

    As said before, the President of the Republic of Finland is involved only in a formal way. He is, indeed, the authority – following the initiative of the Government – to formally appoint the judges. 

    However, that does not mean that the President is entrusted with picking up any judge he prefers. On the contrary, the President of the Republic can typically only appoint judges that have been recommended by the Government. President can either appoint according the recommendation or send initiaitive back for another round of preparation.

    In conclusion,Orbán statement is misleading because it purports a scenario – the possible influence of the President of the Republic on the justice system – that it’s not real in practice.

    The Rule of Law it’s not (only) a matter of institutional design

    So far we’ve seen that Orbán misrepresents the way in which Finland guarantees that laws respect the constitution and he’s wrong on judges’ appointments. 

    In addition, Orbán’s line of thoughts is particularly incorrect because the Hungarian Prime Minister seems to believe that respect of the Rule of Law totally depends on the way in which the institutional system of a country is designed.

    However, international institutions such as the EU have clearly stated that respect of the Rule of Law is a matter of rules as much as actions. That is, public authorities need to take substantive (and not just formal) measures to ensure that the five principles are enforced in the legal system.

    This means that two countries with identical constitutions could perform differently in terms of Rule of Law enforcement if one is better than the other in actively guaranteeing the principles that inform the concept. 

    That’s the reason why, as we’re going to see next, Italy performs better than Hungary in respecting the Rule of Law even if both countries have a constitutional court and judges non-appointed by the president of the Republic. And this is also the reason why Finland beats both countries on this dimension: not because it has a better institutional design, but thanks to the way in which its public authorities actively guarantee the respect of the Rule of Law.

    The World Justice Program doesn’t agree with Orbán

    In order to assess which country performs better in terms of adherence to the principles of the Rule of Law, we will rely on the data of the World Justice Program (WJP), an American NGO that evaluates the respect of human rights and the Rule of Law in 126 countries.

    In order to do that, WJP has created the Rule of Law Index, an indicator that combines together 8 different aspects (constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice and criminal justice) to evaluate how countries position themselves in terms of respecting the Rule of Law.

    According to their data, in 2019 Italy is performing better than Hungary in terms of respect of the Rule of Law (28th position against 57th). Hungary beats Italy only when it comes to Order and Security, outperforming on this dimension most of the 126 countries analyzed by the WJP (ranking in 9th position).

    At the same time, Finland holds the 3rd position in the WJP ranking behind Denmark and Norway, which beat Finland on any aspects other than “Fundamental rights” and “Criminal Justice”.

    Therefore, there is no evidence pointing at Hungary overperforming with respect to Finland when it comes to respecting the Rule of Law.

    In conclusion

    As we’ve seen Orbán critique towards Finland’s institutions isn’t accurate. Countries respect to the Rule of Law depends only in part on the way in which the constitution is reviewed or the procedure by which judges are appointed. 

    These aspects need to be combined together with public authorities actively supporting constitutional order and respecting the division of power between the different branches of the State. It is exactly because of the way in which checks and balances work in practice that Finland is better than Italy and Hungary in upholding the Rule of Law (as reported by the World Justice Program).



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