Gusztav Kosztolanyi

"The Constitutional Court's decision is a painful one because we are losing valuable time and now - given the fact that this set of amendments was ultimately intended to serve the aim of suppressing organised crime and improving the safety of citizens - we shall have to pursue the same ends using different means. [...] The opposition is not the government's partner in the fight against organised crime". This was the Hungarian Prime Minister's scathing conclusion in his response to the ruling by the Constitutional Court which rejected as unconstitutional the package of laws designed to tackle the scourge of organised crime leagues that had been presented to Parliament for voting.

The PM made this statement on Hungarian radio on 24 February. Since then, the way has been paved for a compromise that will most probably allow the revamped set of changes, dubbed in the Hungarian press as the "anti-Mafia law", to be adopted before the summer recess. The story behind the new consensus is instructive from a number of points of view and demonstrates a greater tactical maturity on the part of the government coalition, anxious to shed its unwelcome reputation as high-handed and arrogant.

Growing unease amongst the population at large following a number of spectacular bombings and hits on Mafia members inspired Mr Orban's election manifesto promise to clamp down on organised crime. Anxious to deliver the goods, the coalition presented a package of laws intended to tighten up existing provisions. Progress was obstructed initially due to procedural objections, as the proposals were all contained within a single bill, although strictly speaking certain elements required different majorities in the actual vote. Whereas the bulk of the contents could be adopted on the basis of a simple majority, many that were adopted during the course of the first reading ought to have been subjected to the two-thirds majority rule, which unleashed a storm of protest from the ranks of the opposition. To put an end to the bickering that ensued, the cabinet decided to turn to the President, Arpad Goncz, requesting that, instead of appending his signature to the law (which would have meant that it would enter into force), he seek the opinion of the Constitutional Court on the matter.

The Court had indeed taken a decision on a similar matter in the past, stating that technical adjustments or revisions that do not radically change the substance of legislation may be passed without further ado by simple majority, so a precedent did exist for tabling a proposal such as the anti-Mafia law. Although it felt that it had not acted improperly, the government chose to invoke the President's right to launch "normakontroll" at the Court (checking that the proposed law did indeed fit in with the principles enshrined in the constitution), a right that the Parliament itself has not enjoyed since 1997.

In many ways this was an interesting test for the Court which has come under fire in the past for concentrating exclusively on the letter of the law and failing to take sufficient account of the social concerns of the day, (these criticisms were at their most apparent in respect of the findings of the Court on abortion). The Court's composition is not the same as it was, with the founding members in a minority for the first time. Would it continue to stick to its old principles? Prudence and tact would be needed to avoid treading on the political landmines inherent in the subject matter, and to seem less remote from the concerns of ordinary citizens.

A strict interpretation of the constitution carried the day, with the two-thirds majority rule portrayed as a guarantee, the essence of which is to ensure a broadly-based consensus amongst members of Parliament, elevating it beyond the status of a mere formality. Moreover, the rule applies to the entire legislative cycle, covering not only the moment of creation of a piece of legislation, but also its amendment, any additions made to it and to its abrogation. As far as the fate of the anti-Mafia package was concerned, amendments to law relating to the police, regulating the admission and residence of foreigners, the activities of frontier guards, asylum applications and travel abroad all should have been dealt with according to the two-thirds rule and their adoption was deemed unconstitutional. Even if only the details of implementation were involved and even if the sole aim of the modifications was to bolster existing legislation by furnishing the implementing authorities with more effective instruments in the fight against crime, the constitution still had to be respected in full. Every paragraph of the anti-Mafia law as voted on which should have come under the two-thirds rule was therefore automatically declared null and void. Three of the judges disagreed with the ruling, protesting that the whole package should have been subjected to far closer scrutiny, checking the contents in detail to determine their constitutionality, instead of making do with a pronouncement on the procedural niceties.

What of the actual contents of the package? Under the proposals, rules on preventive surveillance of suspected individuals would have been tightened up. For example, if someone had been sentenced to at least two years' imprisonment for a premeditated crime, they could, on release have been kept under surveillance by the police (the police would be permitted to enter the person's home). This does not represent a departure from current practice, the difference would have been that observation of a person's movements would have to be carried out in such a way as to avoid their rehabilitation into society being put at risk, in other words, the operation would have to be as discreet as possible and could only take place at the instigation of the courts rather than at will by the police.

Likewise, the Minister of Home Affairs would have been granted new powers to authorise preventive surveillance and pass enabling decrees to allow secret-service style methods of intelligence-gathering to be utilised where he deemed it appropriate.

The police would also have been given greater powers to access medical and sickness insurance records as well as being able to obtain information from the tax authorities, telephone companies and banks without the prior consent of lawyers in cases where the suspect is thought to be implicated in perpetrating acts of terrorism, trafficking in drugs or arms or being involved in money-laundering.

As regards foreign nationals in Hungary, the proposals would have extended the deadline within which applications for residence permits could be examined from 8 to 15 days (motivated by the government's wish to carry out more detailed investigations into each applicant's credentials to sift out undesirables); organisations other than the police would have been entitled to monitor the activities of foreigners in order to uncover any breaches of the law committed by them (at present only the police have the right to enter private dwellings) and illegal immigrants could be locked up in jail instead of housed in temporary accommodation whilst their files were being looked into.

The government's initial response to the Court ruling is neatly summarised by Jozsef Szajer, leader of the Fidesz group in Parliament, who stated that whilst it was unfortunate that Parliament had adopted law that subsequently proved to be unconstitutional, the Court had concentrated exclusively on the procedures to be applied rather than the contents of the bill itself [the Court in so doing neatly side-stepped the issues at stake, avoiding much of the flak they would otherwise have taken regardless of what stance they adopted]. At the same time, he voiced his satisfaction that the government had demonstrated its sensitiveness to the importance of constitutionality, given that it was none other than the cabinet that had taken steps to raise the vexed question of constitutionality. Now that this had been resolved, it was high time that the opposition abandoned its negativity and co-operated in passing the legislation so that crime could be tackled more effectively.

It was here that the government displayed a greater degree of political shrewdness than it has done in recent months: far from bulldozing through unpopular rules and regulations, it was seen to be doing the right thing, depriving the opposition of the opportunity to accuse it of acting in a dictatorial spirit whilst at the same time absolving itself from blame if the bill had foundered altogether. The Socialists and Free Democrats, rather than appearing as the champions of civil liberties have been made to look as if they were indulging in fractious obstructionism, allowing the government to gloat over their moral bankruptcy, whilst enhancing its own prestige. Nor will the opposition be able to take the credit for the package that emerges from the vote. Indeed, the Socialists seem to be conniving at undermining their credibility, as this latest bout of petulance follows hot on the heels of their delaying tactics over NATO membership, particularly counterproductive since Mr Laszlo Kovacs had put years of personal effort into paving the way for it whilst foreign minister only to throw a spanner in the works when it came to ratification. In the end, Hungary joined in the nick of time (immediately before the Kosovo actions), with the government basking in the glory of the achievement and the opposition left to savour the taste of sour grapes.

The only question which remains to be answered is the extent to which Hungary actually needs these new laws. According to Mr. Valer Danos, an eminent criminologist, the social mindset that decides that criminals who do not commit murder should be let off the hook or even envied is self-destructive. A distinction must be drawn between the home-grown Hungarian organisations and international bands that have set up "subsidiary" operations in the country. Mr. Danos feels that a local Mafia has only reached a rudimentary stage of development and can not yet be said to have evolved to a level where its members had penetrated the executive. By contrast, the Russian, Ukranian and Asian mafias maintain a fairly strong presence, though their activities would pale into insignificance if a fully-fledged Hungarian syndicate were to muscle in on their act.

Money laundering is the bread and butter of Hungarian illicit operations, with dizzying sums being turned over every day. Monetary authorities must be turning a blind eye to this somewhere along the line. The spate of hired killings that inevitably hit the headlines usually occur around the first quarter of the year, the juncture at which clearance of accounts leads to settling of scores as irregularities come to light.

In spite of all this, not one shred of evidence has been found to suggest that a true Mafia - the hallmark of which is the phenomenon of infiltration of Mafia members into the police, the judiciary, politics and the media - has yet been uncovered. Mr. Danos is particularly concerned about the prospect of interference with the presentation of facts in the press. His reasoning is sound: why would the Mafia voluntarily pass up an opportunity to manipulate public opinion and play down its own role, desensitising the nation towards the evils of crime and influencing the judicial system subconsciously in the minds of judges, witnesses and juries?

In the meantime, the opposition parties look set to back down, having won a number of guarantees against excesses. For example, although the police would be free to employ secret-service style undercover tactics in urgent cases they must inform lawyers that they have done so and keeping tabs on the movements and lifestyle of foreigners will henceforth only be permitted over a certain period of time stipulated by law instead of indefinitely. Political posturing has been set aside in favour of a truce in recognition of the old adage that prevention is better than cure.

Gusztav Kosztolanyi, 30 March 1999