How qualified will the new judges in the Hungarian Constitutional Court be?: The case of Béla Pokol

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.

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Paul
Guest

What’s always impressed me about the Supreme Court in the US is that the judges are there for life (I hope I have this right). So, once there, they don’t have to worry about aynone or anything and are free to make whatever judgements they feel are correct.
Obviously this sometimes results in a judge turning out not to be the liberal you might have expected, or perhaps a judge becoming ‘eccentric’ in their views and judgements later on, but I still think, in societies with a written constitution, this is the only way to run the court that safeguards that constitution.
Does the same apply in Hungary – terms for life and no way of politically influencing the judges?

Jano
Guest

I have a friend who graduated from Károli and was taught by Pokol at some point. He claims that Pokol was one of their worst teachers. He taught his own book which you couldn’t find at any bookstores, instead, you could only buy it from him, of course without receipt…
That book was the subject of a lot of jokes, students were sending citations each other on Facebook. Those citations either made no sense at all, or was tragically convoluted. An example for Hungarian speakers:
“Szembesítve tehát Luhmann autopoietikus alrendszereivel a mi elemzésünket: míg ő a specifikus bináris kódon orientálódó kommunikációk cirkuláris láncolatának létrejöttében látja megvalósulni a társadalmi alrendszerek elkülönülését, addig mi a specifikus értékduál szerinti szelekciót domináló helyzetbe juttató tartós struktúrák kialakulásában…”

Paul
Guest

I don’t know – according to Google Translate, it makes perfect sense:
“Luhmann thus face to face with our analysis, we autopoietikus subsystems: while he was in specific communications-oriented circular chain of binaries created to see implemented in the social sub-systems are separated, we had a specific értékduál selection according to the dominant position in the development of permanent structures … “

NINCS-TOVÁBB?
Guest

This is an automatic ticket to a mental asylum:
“Szembesítve tehát Luhmann autopoietikus alrendszereivel a mi elemzésünket: míg ő a specifikus bináris kódon orientálódó kommunikációk cirkuláris láncolatának létrejöttében látja megvalósulni a társadalmi alrendszerek elkülönülését, addig mi a specifikus értékduál szerinti szelekciót domináló helyzetbe juttató tartós struktúrák kialakulásában…”
Deak Ferenc was the best lawyer of Hungary. Every of his words was gold.
All we need is to change all street names from Kossuth to Deak in America, and a Hungarian gold lettered holiday to honor the wise Deak.

Member

Jano and Paul, you should just leave it to Johnny Boy to translate. He is a professional and also very understanding of Fidesz, the preservation of the Hungarian language and the qualifications of it s politicians.

dvhr
Guest

A few additions to Eva’s excellent post.
1. Apparently Pokol is also at the Political Science department of the Eotovos University, i.e., he is concurrently full professor at three universities (at least).
2. Although he graduated at the law school of ELTE, neither of his scientific degrees
(Candidate and Doctor of Sci.) is from law.
3. In an article published at Nepszabadsag, “Az akadémikus kérdés” (March 20, 2010), he suggests, that the Hungarian Academy of Sciences, the highest body of sciences in Hungary, of which he is not a member, should choose its new members solely on the number of citations, and if that number reaches a certain limit, automatically. He adds that this is the method used at most places of the world. Guess how many citation he has.
http://nol.hu/velemeny/20100320-az_akademikus_kerdes

Member

dvhr: “[Pokol suggests that] Academy of Sciences, the highest body of sciences in Hungary, of which he is not a member, should choose its new members solely on the number of citations, and if that number reaches a certain limit, automatically.” It is a scary thought and it is very “unacademic”. Citations can happen for many reasons, on is to argue against non-sense. There are many controversial theories are floating out there, many without any merit Many of those nonsense are referenced on the daily basis to ridicule the idea or to make a counter argument.

Eva S. Balogh
Guest

dvhr: “1. Apparently Pokol is also at the Political Science department of the Eotovos University, i.e., he is concurrently full professor at three universities (at least).”
I found several citations from him in ELTE publications but ELTE wasn’t mention in his biography I consulted. So, I left it out. Thanks for the info. What is interesting that I thought that this practice of teaching full time at several universities at the same time was discontinued. Obviously Pokol is an exception.
I mention here that years ago a young assistant professor of philosophy at Yale was caught having another full time job at a university on Long Island. He immediately lost his Yale job. I don’t know what happened to the one on Long Island.

An
Guest

Every day I wonder: can Absurdistan get any more absurd? And the answer is always yes. Sigh.

Joe Simon
Guest

Nagy Imre and others were hanged on June 16, 1958. You would think that this Spectrum would make a note of this historical anniversary on June 16th. Not a word or reference. It says a great deal about the editor of this blog. You have nothing of importance to say except sending your little, peevish and petulant arrows into Orbán and his government. Insignificant is the name of this Spectrum.

Member

@Joe It took you five days to realize it??

Odin's lost eye
Guest
This country is being surely dragged into the 14th Century by a Bullfrog from the Hungarian Pusta. A man (OV) whose overweening ego and pride is such, that he will acknowledge no one (in the world) his superior. Although he is a very cleaver politician, he uses his abilities to boost his personal power and feed hiis ego. He seems to regard treaties as ‘mere scraps of paper’ to be broken and denied at his mighty will. Out tame troll seems to want a one party state. This bullfrog wants a One Man State! He (OV) is going to be accountable to no one. He has one big problem he is answerable first to some 10 Million Hungarians and then (by treaty) to some 500 million Europeans. One of his (OV’s) new choices for membership of the Constitutional Court appears to be something so ‘off the wall’ that I can only conclude that ‘His Mightiness’ has remembered that in the 14th Century all courts had their Court Jester, so he has appointed one! One day I wish our good hostess has a little time to write a piece on the position of the Marian traditions in Hungary and the “Holy… Read more »
Member

Joe Simon, We did not see you posting on here for remembrance. By the way there were no remembrance about April 4th, March 15, December 24th, January 27th, May 8th, October 5th or November 11th. Imre Nagy has been mentioned on this blog regularly, and many of us show our respect with speaking up for democracy, quite the opposite what the Fidesz does on the daily basis. So remembering one day for Imre Nagy is just a farce.

Member

“[the academy] should choose its new members solely on the number of citations”
I have a better idea: number of facebook friends!

Johnny Boy
Guest

All I see here is disdain towards Pokol based on his political views.
How does that equal to his allegedly insufficient professional knowledge?

Paul
Guest

Nagy Imre worked for a time in Debrecen and there is a plaque commemorating this near the Szinház buszmegálló. So every time I wait there for a 19 I remember Nagy Imre.
Happy now, Joe?

Member

Johnny, have you read that quote? That’s not “insufficient knowledge”. The guy is a moron.
Either way the selection of the supreme court judges has to be based on broad consensus. He has extreme views. Extreme even within the FIDESZ circles. You have to agree with me on this: somebody who thinks that the supreme court should support the parliament doesn’t belong there.

Paul
Guest

“You have to agree with me on this”
Rank optimism, Mutt. You know it isn’t going to happen!

Paul
Guest

Anyone know the answer to my question? (see first post on this thread)

TOVÁBB?
Guest

Deak and Nagy are sorely underestimated in Hungary.
The Nagy Imre Tarsasag under the leadership of Ferenc Donath keeps up the memory.
Last year, I participated in their anniversary visit at the grave of Nagy Imre in the 301st section.
Only the Zalai Hirlap reported our visit.
http://esbalogh.typepad.com/hungarianspectrum/2011/06/how-qualified-will-be-the-new-judges-in-the-hungarian-constitutional-court-the-case-of-b%C3%A9la-pokol.html#comments
Besides Donath, also Tamas Csapody was there.

Paul
Guest

That link is to this page!

Odin's lost eye
Guest
Johnny Boy it is the ideas of Mr Béla Pokol which worry me. Our good Hostess reports) that he extols the ideal of the “unitary state” which he mistakenly finds in the British political system. I can understand the confusion in his weird little mind between the U.K. Government of the day, the executive (civil service), the Monarch and “the Crown”. The big puzzle for him and for most Hungarians would be the “Crown”. The “Crown” is part of the administration whose duties are laid down by parliament. It members reports to various Ministers of the Crown (the Government of the day) who cannot meddle with the “Crown’s” activities but are responsible for seeing that it does its duty. If a government falls or the Monarch dies, the “Crown” goes on with its work as if nothing has happened. Governments and Monarchs are like city busses ‘There will be another one along in a minute’. To demonstrate the problem the Hungarians have with the “Crown”. I receive money from the U.K. The payment orders are signed by ‘H.M. Paymaster General’. “Ah!” said my banker. “This is a military payment”. Then she added “Out of interest who is General Paymaster.?” I… Read more »
Ron
Guest

Paul: Anyone know the answer to my question? (see first post on this thread)
The situation is 5 years and 2/3 voted in by parliament. http://en.wikipedia.org/wiki/Constitutional_Court_of_Hungary

Ron
Guest

As mentioned one or two months earlier, I rather prefer a Senate than a Constitutional Court. The judges needs 20 years of professional experience, but the question is does this qualify them automatically as Constitutional Court Judge.

Ron
Guest

Oopss I made a mistake. The Hungarian Constitution declares that members of the Constitutional Court shall be elected by Parliament. It also determines the rules of such elections. Impartiality is guaranteed by having proposed members of the Constitutional Court to be put forward by a nominating committee consisting of one member each from the factions of parties represented in Parliament and shall be elected by a two-thirds majority of all Members of Parliament. Hungarian law provides that only jurists of outstanding theoretical knowledge or having at least twenty years of legal practice may be elected members of the Constitutional Court. Membership is for a term of nine years and members may be re-elected once. The office of judges of the Constitutional Court comes to an end when they reach the age of 70 years.

Paul
Guest

Cheers Ron. I assume that’s the new constitution?
The phrase “factions of parties” is destined to cause a few disputes!

Eva S. Balogh
Guest

Paul: “The phrase “factions of parties” is destined to cause a few disputes!”
As far as I know there is a separate office that deals with translations of Hungarian government documents. I simply can’t understand how the people who work there managed to get their jobs. In Hungarian a party’s parliamentary delegation is called “frakció” but in English “faction” means 1. a group of persons forming a cohesive, usually contentious minority within a larger group. 2. Conflict within an organization or nation; internal dissension.
However, if the English-Hungarian dictionary is wrong and claims that faction mean “frakció” one mustn’t be terribly surprised. I checked.

Jim
Guest

Well, but professional translators have no business using bilingual dictionaries in general — and certainly not Országh in particular.
“Delegation” or “parliamentary group” — or use a workaround “(the) representatives of (X)”, or sometimes just the party’s name (if the parliamentary context is clear).

Eva S. Balogh
Guest

Jim: “Well, but professional translators have no business using bilingual dictionaries in general”
You are right about that.

kormos
Guest
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