According to the Hungarian Constitution (Article 32/A §4) it is Parliament that elects members of the Constitutional Court. Furthermore Act XXXII of 1989 stipulated the details of the election of the judges whose number was fixed at eleven. The nominating committee consists of one representative from each parliamentary party. It is true that a two-thirds majority is required for a candidate's acceptance and often that was difficult to attain, but at least the opposition parties could participate in the selection of the judges. Now because of a legislative proposal (T/190) by Márta Mátrai this situation may change.
Márta Mátrai has been a faithful Fidesz sympathizer. She joined Fidesz when it was a radical liberal party in 1989. In fact, she started the local Fidesz organization in Kaposvár although she was over age. At the time only people under the age of 30 could join the party and Mátrai was already 41. But four years later, at the earliest opportunity, she joined the party and in 1998 became a member of parliament. She has been one of the vice-chairmen of the Fidesz caucus ever since.
Mátrai has legal training and therefore over the years she was often a member of the judiciary committee. Therefore it is not surprising that she was the one to submit the proposal affecting the nomination process for members of the Constitutional Court. But no one should make the mistake of thinking that proposals submitted by individual Fidesz members are not the result of a centralized plan worked out well ahead of time.
Mátrai's proposal sounds innocent enough on the surface. First, she points out that the experience of the last twenty years shows that the current nominating practice "does not provide for the continuous and uninterrupted functioning of the institution." It is indeed true that instead of eleven members there are often only nine, as is the case right now, because no nominee manages to get the necessary two-thirds majority of the votes.
So, this proposal suggests that an eight-member nominating committee should be established. "The composition of this committee should follow the parliamentary proportions as they were willed by the electorate." In plain language Fidesz-KDNP should have two-thirds of the members. (If my figures are correct, I think that would round up to six.)
One could ask why this change is necessary if Fidesz-KDNP has a two-thirds majority and therefore the government party will have the final say anyway. Yes, this is true, but at least the opposition parties could name their own candidates and see how these nominations would fare in the chamber. Admittedly, sometimes there was no agreement and hence the unfilled positions but from here on if Mátrai's proposal is passed (and why shouldn't it pass?) liberal judges will not even get to the point of being rejected. Fidesz will come up with candidates whose judicial philosophy is close to that of the party and the two-thirds Fidesz-KDNP majority will vote on it in two seconds.
The Constitutional Court as it stands now already leans toward the Right. It can easily happen that a nominee of MSZP once he is a member of the court turns out to be a devoted right-winger. How can that happen? Easily. None of the Hungarian judges at the Constitutional Court have had any practical experience. They are former academics and it seems that it is almost impossible to ascertain from their academic writings whether they tend to hold conservative or liberal views of the law.
As soon as MTI reported that Márta Mátrai had proposed this change in the law every conceivable civic organization raised its voice, from the Hungarian Helsinki Committee to Transparency International. They all argued that the Constitutional Court exercises control over Parliament and therefore it is essential that the members of the Court should be nominated and elected by a wide consensus. Mátrai's proposal would "undermine the independence of the Constitutional Court." Indeed, it seems that the governing party will be able to "interpret the Constitution" and could have its own men in place to make sure that the Court comes up with the right decisions.
Americans might find the great opposition to Mátrai's proposal somewhat strange because they are used to the American practice where members of the Supreme Court are nominated by the President and confirmed with the "advice and consent" of the Senate. The "advice and consent" clause means a simple majority vote. It is natural that the president will nominate judges who are close to him politically, and once they are elected they are there for life.
But in Europe the practice and legal philosophy is different, and therefore if Mátrai's proposal is accepted Hungary's political system will move farther away from the ideals of liberal democracy.
There might be widespread protests, but I believe that the proposal will fly through. Soon after the passage of this bill the two vacant positions will be filled and the Constitutional Court whose decisions in the past, especially since László Sólyom became president, usually went against the legislation passed by the socialist-liberal majority will from here on be a rubber stamp. The members will find all legislative acts just as constitutional as they can be.