I was always somewhat baffled about how haphazard the selection of judges for the Constitutional Court in Hungary was. I was accustomed to the American practice of close scrutiny of the proposed candidate by the Senate. Normally a large staff works on the candidate's judicial philosophy. Then come lengthy and often unpleasant hearings in which the candidate is grilled on anything that might give an opening to those who are not entirely happy with the president's choice.
Admittedly sometimes there are surprises: the allegedly conservative candidate nominated by a Republican president turned out to be a liberal. But it rarely happens. In Hungary, on the other hand, judges nominated by MSZP often surprised the party: they became what we in this country call "strict constructionists." That is, they held quite conservative views on the constitution and its application. Or, alternatively, they came up with obviously political decisions.
Way before I started this blog I struck up a correspondence with a few liberal and socialist politicians with whose views I sympathized. In one instance I brought up this problem of nominating the "wrong" judges. I called his attention to the American practice and suggested a much more serious investigation of the nominee's judicial philosophy. I was told not to worry, they are terribly careful. Well, that wasn't the case and the superficial investigation of judges' past activities continued.
Well, that was the past and I can assure everybody that in the future opposition parties don't have to worry about thoroughness. Currently, there are five places to be filled and although both MSZP and LMP came up with some names, only four Fidesz nominees and one KDNP nominee received the blessing of the committee on constitutional matters.
It is somewhat ironic that in the last twenty years when the parties had to agree on the nominees no professional organization felt the need to publish studies on the qualifications and judicial philosophy of the candidates. Now that it really doesn't matter, TASZ (Társaság a Szabadságjogokért) and EKI (Eötvös Károly Intézet) together published their findings on the nominees. TASZ is the Hungarian equivalent of the American Civil Liberties Union while EKI is a liberal legal think tank.
One of the most controversial candidates is Béla Pokol, about whose judicial philosophy we unfortunately know a lot. He doesn't believe in the "separation of powers" but extols the ideal of the "unitary state" which he mistakenly finds in the British political system. He thinks that a separation of powers results in a weak state. For him the parliamentary opposition and the free press are enough to limit the excesses of power concentration, and therefore the Constitutional Court as it was conceived is superfluous.
Pokol considers the currently valid constitution illegitimate and therefore he finds nothing wrong with limiting the powers of the Constitutional Court. In fact, he would go further: the judges should be responsible to parliament. In his view the Constitutional Court shouldn't serve as a watchdog over the constitutionality of parliamentary legislation but instead should assist parliament in its work. He would certainly qualify as a strict constructionist when, for example, he criticizes the Sólyom Court (1989-1998) for abolishing the death penalty when the constitution didn't contain a reference to it.
This is bad enough, but Pokol's ideas on "political morality are unacceptable," as the TASZ/EKI study bluntly states. Here is an example. An anti-discriminatory law was adopted in 2003 which doesn't suit Pokol's taste. He would add that "if in a given community a national or ethnic minority's behavior leads to a higher crime rate the principle of equal treatment might be discarded."
The authors of the study also outline what one might expect from Béla Pokol as a constitutional judge. They base their opinions on published material by Pokol himself. As long as Fidesz is in power the "professor"–Pokol teaches at Szeged and at Károli (Hungarian Reformed Church) University–will be passive but most likely will support parliament's decisions in cases of controversial legislative work. Since he wrote extensively on the Holy Crown's role in Hungarian jurisprudence, it is possible that Pokol will also pay some attention to the so-called "historical constitution," a rather nebulous judicial concept.
What would the lawyers of TASZ/EKI ask Pokol at his hearings? They would concentrate on Pokol's attitude to earlier decisions of the Constitutional Court. If he finds the current constitution illegitimate, surely one ought to know how Pokol would reconcile his future role as a judge on the Constitutional Court with his general view of the illegitimacy of the current constitution. They would ask him about basic human rights. Is there any right that parliament can deprive an individual of? Considering that Pokol thinks that the opposition and the media are sufficient counterbalances to the possible excesses of the government, what does he think now about curtailing the rights of the opposition by the current government? Or what does he think of the strict supervision of the media by the Media Council? So, there could have been several questions asked, but I'm sure that the Fidesz members of the committee didn't want to know the details of Pokol's philosophy. I must say that the two Christian Democratic members of the committee at least had the decency to abstain on his nomination.
By the way, "pokol" in Hungarian means "hell." His critics often talk about "Hell's hellish ideas" (Pokol pokoli ötletei). Until now he spread his hellish ideas only in legal publications, but from here on his extreme ideas will have a much greater impact. Especially since he will be elected for twelve years.