Comparing Courts: The Accountability Function of the Constitutional Courts of Poland and Hungary
Morten Kinander
Abstract
Why did Hungary witness the development of one of the strongest constitutional courts the world has ever seen, whereas its almost neighboring Poland subjected its Constitutional Tribunal to political review at the same time and under similar circumstances? This article looks at how, following the transition from Communism to democracy, these two countries developed their constitutional jurisprudence with special focus on what is called “the accountability function of the courts”, namely on the normative role of courts in structuring the conditions of democracy and the ability to hold the executive branch of government responsible for making legitimate laws.
Key words:
accountability, Central and East Europe Studies, comparative law, constitutional law, court studies, democratic theory, Hungary, judicial review, Poland, transitional law
1. Introduction
Following the transition from Communism to liberal democracy that took place at the end of the 1980s and throughout the 1990s, most countries in Central and Eastern Europe established constitutional courts—as did many Latin American countries in the same period. Constitutional courts seemed to be an inherent ingredient in all “new” democracies. Whether having been ruled by Fascists in Latin America or Communists in Central and East Europe, what they shared was recent and intimate experiences with a form of totalitarian or authoritarian rule by the executive which was inherently and insistently arbitrary—as well as disproportionately harsh in its reactions. These “old” regimes were characterized by a window-dressing parliament and scant opportunities for ordinary citizens to appeal against executive power. And with the apparent lack of a separation of powers, the institutional arrangement had no conceptual space for the doctrine of constitutional review of legislation or executive rule. The arrangement had, in other words, few means with which to hold the executive power accountable.
This article deals with two countries in Central Europe which both established constitutional courts during the late 1980s and early 1990s, and which, to a large extent, share a historical, political, institutional and legal tradition, namely Poland and Hungary. The courts in these countries played, however, different roles in the new two new democracies. Which factors can explain these differences? This article is an attempt to look at what one might expect when establishing new institutions in existing political and legal cultures.
The reasons for selecting these two countries are somewhat manifold:
Poland and Hungary share a common history, traditions, and culture, conceptually in terms of the form and content of their legal structures, and politically in terms of the basic structures of their social and political institutions. In addition to these similar features, they also both took part in the transition which swept across Eastern and Central Europe in the late 1980s from Communism to liberal-political democracy based on a market economy.[1] Both experienced liberalization from the Soviet style of government in the 1980s, and both had the resurrection of civil society as a working policy. The most important reason for selecting these two countries for investigation for the present purposes, however, is that they were front-runners in the transition from Communism to democracy, and in that process they established constitutional courts. The constitutional courts were established for the purpose of monitoring a political process so disdained by years of executive authoritarianism. While they may have been created with similar goals in mind, the courts in these countries developed in very different ways—both in terms of their institutional character and, ultimately, in their influence on the political process.
This article examines the situational and historical factors which had an influence on the development of the courts in Poland and Hungary and tries to answer a number of key questions. Why did they develop in different ways? Which methodological issues does such a comparison raise? In other words, which factors are relevant when studying the development of such institutions?
It is an interesting fact that of the constitutional courts in the region, only the Hungarian Constitutional Court is known for its activism, one commentator having called it “the most active court in the world” at the beginning of the 2000s.[2] What still needs to be explained more than a decade later, however, is the relative status of the courts themselves, in light of their surroundings and traditions.[3] Therefore, we will analyze the conditions which led one of the two courts to take on such an exceptional role, while the other assumed a more modest position vis-à-vis the political authorities. The focus will be on a specific aspect of the courts’ behavior which we can call the courts' “accountability function”, which is explained below. The accountability of courts will inform the selection of cases and will not be discussed explicitly.
1.1. The Accountability Function of Courts
This study is not a guide to the general decision-making of the constitutional courts of Poland and Hungary with respect to substantial, or material, law;[4] rather, the focus is on a specific function of constitutional courts which goes beyond merely interpreting and protecting the constitution as a legal document: namely, what is sometimes referred to as the accountability function of courts. This can be defined as a court's willingness and ability to hold those with political power accountable for attempts to overstep their mandate and to shape the democratic process.[5] We expect courts in a liberal-democratic state not only to interpret the laws which elected politicians create but, also, to protect the constitution, broadly understood. This means, inter alia, that we expect courts to implement, and have as an interpretive background, the very ideas which informed the creation of the constitution itself. And those ideas, although manifold and diverse, can be summed up as true representation, separation of powers, freedom of expression, and the checking and balancing of power.
More specifically, as to the values to which we expect courts to pay particular attention within the context of liberal democracy, the author of this work follows Robert Dahl in expecting attention to be drawn to the following attributes: (1) that officials are elected; (2) that elections are free and fair; (3) that suffrage is inclusive; (4) that all citizens have the right to run for office; (5) that there is freedom of expression; (6) that there is alternative information; and (7) that there is associational autonomy. This leads to a definition of democracy as a condition in which all citizens are “equally qualified to participate in the process of making decisions about the policies the association will pursue”.[6] These features are—to varying degrees—what a normative concept of democracy entails for the purposes of studying the accountability of courts as understood in this article, and they inform the selection of case material at which we will look.[7]
In the international literature on democracy and democratization, the concept of 'accountability' has been the object of increased attention since the mid-1990s.[8] Political accountability concerns the relationship between the governed and the governors—or citizens and the rulers.[9] This relationship involves both responsibilities, on the part of rulers, and the possibility of citizens applying sanctions as the basis for legitimate rule, and revolves around the notion that elected officials are expected to explain and justify the decisions they make on behalf of their constituency. If an official fails to comply with these legitimate normative expectations, the citizens can impose predetermined sanctions.[10] They can demand investigations of suspected misbehavior or can sue for breaches of legal rules which restrain executive power.
As such, “[i]t is … a specific variety of power: the capacity to demand someone to engage in reason-giving to justify her behavior, and/or the capacity to impose a penalty for poor performance”.[11] That predetermined power is, among other things, the power to remove the rulers through elections. This means that “political accountability in a democratic context refers to a hierarchical relationship in which the people have the power to challenge, remove, and replace the ruler”.[12] This is a classic statement of vertical accountability, mainly represented through the electoral channel. Another form of accountability—and a more recent object of focus and debate—is the horizontal form of accountability. Horizontal accountability concerns the relationship not directly between the governed and governors, but between different state organs, summed up in keywords such as “checks and balances”, “intrastate control mechanisms”, and “judicial review”. The theoretician who coined the term, Guillermo O’Donnell, defined horizontal accountability in 1999 as “[t]the existence of state agencies that are legally enabled and empowered and factually willing and able, to take actions that span from routine oversight to criminal sanction or impeachment in relation to actions or omissions by other agents or agencies of the state that may qualify as unlawful”.[13] This involves the execution of certain functions by ombudsmen, human rights commissions, supreme audit institutions, and—especially in our case—courts.[14] This article deals with both forms of accountability in the selection of cases.
In studying the accountability function of courts, the article will discuss cases where the courts have resolved issues of the control over the state apparatus, the structuring of the democratic process, and where general issues of democratic legitimacy were of importance.[15] This includes, but is not limited to, the concept of judicial review.[16] It also includes a discussion of the institutional and contextual framework within which the courts have operated. The article will not look at the entire period since the end of Communist rule but, more specifically, at how the courts functioned in the first ten or so crucial years of the construction of national, liberal democracy.
1.2. Methodological Considerations About the Study of Courts in General
Studying and comparing two constitutional courts requires a robust methodology which neither reduces the study of courts to individual behavior nor tries to draw concrete conclusions from general historical and political determinist theories. And the discipline of court studies is ripe with examples from both trenches. Therefore, this article studies these two courts from a threefold methodological perspective which steers clear of the pitfalls of pure individualism and pure collectivism. Social behavior is too complex to be reduced to either a product of rational individuals or the mere reflection of history. This article, therefore, also makes a general negative methodological claim, namely that courts cannot be meaningfully studied exclusively according to methodological approaches of rational-choice theory,[17] according to institutional design, or according to historico-deterministic theories. In short, the author of this work contends that legal decision-making cannot be explained according to monocausal theories. More specifically, a study of courts like the one undertaken in this article implies a critique of monocausal explanations of court behavior which focus exclusively on: (a) political and legal culture; (b) institutional design; or (c) actor-based behavior. Explanations for behavior made on the basis of political and legal culture obviously fail in the context of two similar—if not almost identical—legal-institutional cultures[18] to explain developmental differences. Explanations made on the basis of institutional design fail mainly for the same reasons, since identical Communist institutional designs cannot explain the differences in behavior following the transition, while actor-based theories—in particular rational-choice theories—which explain the outcome of legal decision-making by reference to the political preferences of the judges find little support in the practice of the Polish and Hungarian courts. The legal insiders of these post-transitional regimes were not recruited from any specific political group and had tenures sufficiently long to prevent strategic decision-making at a sufficiently high level to be of explanatory force. The nominations of judges to the constitutional courts were highly consensual and were so politically uncontested that personal political preferences cannot explain much. Rather, a comparative explanation of court behavior must undertake a multicausal, hermeneutical approach, drawing on all three types of explanations and allowing for their relative influence in different contexts—especially focusing on what is often left out of actor-based or political and historical explanations: the law.[19]
This article is the offspring of a larger project which was developed in the monograph Courts and Power in Latin America and Africa[20] which had three basic aims: (1) to explore and clarify the often blurry distinctions between so-called “horizontal “and “vertical” accountability in the international literature; (2) to offer a conceptual framework for exploring the behavior of courts and to test existing explanations of judicial behavior; and (3) to offer empirical evidence for the multifaceted approach across ten jurisdictions laid out in so-called thick descriptions.[21]
The countries of Central and Eastern Europe were the subject of an onset of judicial-reform proposals following the breakdown of Communist rule, fostered by various international institutions and NGOs, which all tended to be exclusively concerned with only one variable for explaining and predicting court actions: namely, institutions. The idea was that, if only the right institutions were in place, the rule of law naturally would follow.
The analysis conducted in this article—and in the background framework laid out in Courts and Power in Latin America and Africa—assesses the effects of the historical, political, and institutional factors creating the opportunity structure with which judges operate. In doing this, we shall take into account political and legal traditions and cultures, ask to what extent appointment procedures for judges or the resource situation of courts matter, as well as ponder whether the rules of standing and access to the courts have any impact on the accountability function and discuss the types of cases which are heard by the courts. It is also important to recognize the impact of the individuals within the legal system (e.g., the judges), and to ask what kind of standing and social opportunities their careers as judges represent. Finally, courts are concerned with questions of democratic legitimacy, and what role their decisions and functions play within the larger context of civil society. Therefore, the concept of civil society and democratic movements also must be taken into account when studying and interpreting a court in a particular jurisdiction.
1.3. Studying the Accountability Function of Courts
The study of courts in general poses complex normative and analytical questions. A study of the accountability function of courts, however, poses more methodological questions than usual, since we are comparing the performance of the courts according to an explicitly normative concept, namely accountability. It is not a given that courts should perform this function in modern liberal democracies since we are concerned with an essentially contested concept.[22] The analysis of Hungarian and Polish courts, therefore, will hinge on the normative attractiveness of the definition and explication of the accountability function of courts. Importantly, the accountability function depends on how we describe and conceive the necessary and legitimate functions of courts in general. If we describe courts as solely an arena of dispute resolution, much of what is said in this article would not make as much sense as if we expect—as the author does—the courts to exercise accountability as defined herein. A few words about the normative idea which influences the descriptive analysis, therefore, are in order, spelling out which ideas are most important for a democratically significant court to entertain and protect in the performance of its functions: