The importance of the Constitutional Court

I always had the distinct feeling that Hungarian political parties, especially the MSZP, didn’t realize the importance of this new institution. After all, between 1867 and 1944 the court system was organized in a four-tiered hierarchy at the top of which stood the kúria (Supreme Court), the highest court in the land. In 1950, after the communist takeover, this system was abolished. Although the járás (a unit smaller than a county) remained for a while, at least in name, the courts serving these geographical areas were abolished. The kúria was renamed Legfelsőbb Bíróság. And the lower appellate court, the ítélőtábla, was also abolished. Thus, for a number of years there was only a two-tiered system, which resulted in an overburdened Supreme Court.

In 1990 the people responsible for designing and putting into practice a new judicial system opted for a separate constitutional court, following the German model, instead of leaving the interpretation of the constitution in the hands of the Legfelsőbb Bíróság. Apparently the democratic opposition, who were responsible for this decision, greatly distrusted the highest court of the socialist regime. As it turned out, not without reason. Thus they set up an institution quite separate from the normal judicial system. The judges of the constitutional court don’t go through the usual steps of starting as a clerk for some well known judge, later perhaps working as a lawyer, then getting a prestigious job as a judge, and slowly moving up until they reach the peak due to their judicial excellence. No, the Hungarian constitutional court’s judges are "scholars" who come from the nation’s law schools. Their names are put forth by the different parties, and parliament must approve them by a two-thirds majority. A lot of people claim that this practice leads to choosing mediocre judges because if you aspire to a job on the Constitutional Court you’d better not offend anyone.

The present situation shows how important the constitutional court is. In many ways, more important than the government. After all, a bad decision by the court which, for example, allowed holding a referendum on questions that should not have been decided by plebiscite caused a huge political turmoil and put the country into a most precarious situation. MSZP politicians claim that they pay serious attention to choosing judges for the constitutional court. Yet in spite of both sides having a say in the composition of the court, it seems that one side, that is the Fidesz, pays a great deal more attention to the constitutional court than does the MSZP. After all, the court as it stands now is solidly on the right. The most interesting case is perhaps the "retiring" chief justice, Mihály Bihari, whose name was suggested by MSZP.

I’m not surprised that the MSZP suggested Bihari. After all, he was a long-time member of the MSZMP and one of the editors of Társadalmi Szemle, the scientific monthly of the party’s central committee. It’s true that because of his deviant thoughts he was kicked out of the party in the 1980s, but that might have been perceived as a plus. Admittedly, in 1989 he was close to the MDF instead of lending a helping hand to the reform wing of the MSZMP in the establishment of a new socialist party. But surely the party leaders thought that Bihari was a decent candidate and that Fidesz would not object. As it turned out, Fidesz can be grateful to Bihari. After all, the Bihari court delivered a wonderful political gift to Fidesz in form of the plebiscite. Yet, according to rumors, the opposition party is not grateful. They won’t support his reelection. Neither, of course, will MSZP or the liberals.

Another departing judge of the eleven-member court is István Kukorelli, who most likely will step down in June. Thus two people must be found. Apparently, the socialists and the liberals would like to present only one person and they even found someone who seemed suitable, but the person wouldn’t accept the nomination. Fidesz still has no candidate.

This time, I’m very much hoping a better qualified man will replace Bihari, whose narrow interpretation of the constitution is criticized even by other constitutional scholars. Also, one can only hope that the court’s composition will not be as one sided as it is now.

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Finally I can find a good tactical reason for MSZP to hang on to power for some time more, the election of 2 Constitutional Court Judges (CC).
If Fidesz have a 2/3-majority in the Parliament, they will get the “right” CC Judges. If the Party is lucky the elected CC Judge will “defend” the Party’s ideas for many, many years to come, regardless of future election results. A bit of the US situation.
The tactical move from Fidesz will of course be to block any name that is not 100% “their” guy, waiting for their looming parliamentarian 2/3-majority. To obstruct the working of the country, by not appointing new CC Judges, have never seem to be a problem for Fidesz before.
Quoted from the CC:
“Members of the Constitutional Court shall be nominated by the Nominating Committee which shall consist of one member of each political party represented in the Parliament”. It will be a bit ridiculous if a new Parliament consist of 2 parties only…