In the last few days an intense debate has been waged over new constitutional court appointments. Very soon the mandates of three members of the fifteen-member constitutional court will expire; the term of Péter Paczolay, the former chief justice, expired almost a year ago. Therefore, in order to have a full court, four new justices must be appointed.
I don’t think it’s necessary to retell the sad story of a once well-functioning constitutional court that was first packed with Fidesz party loyalists and later stripped of most of its competence. In my opinion, and I’m not alone, the current constitutional court is an empty gesture toward the semblance of democracy.
With the departure of the three judges, all the remaining justices are Fidesz nominees, including two who were jointly nominated by Fidesz and Jobbik and approved by Fidesz’s two-thirds majority. Today, however, Fidesz no longer has the luxury of a super majority and so would like to come to some kind of understanding with the opposition parties. According to information obtained by Index, the original idea was that Fidesz would nominate three judges while an opposition party willing to strike a bargain with the government party would be able to sponsor one judge of its choice. Apparently, Jobbik was approached first. It immediately rejected the idea and proposed that Fidesz nominate two judges, Jobbik one, and the democratic opposition parties one. By early January, Fidesz apparently agreed to the scheme. The reason that Fidesz, or to be more precise Gergely Gulyás, who is the party’s negotiator, was so amenable is that if there is no agreement, the constitutional court will not have a chief justice either. According to the new rules, the chief justice is no longer elected by the other judges. His appointment must now be sanctioned by a two-thirds majority of parliament, which Fidesz no longer has.
Jobbik’s negotiators were naturally pleased, and for a while it looked as if some people in the MSZP leadership were also ready to sit down and negotiate with Fidesz. One MSZP politician, Gergely Bárándy, who has neither the backbone nor the smarts of his father, Péter Bárándy, the former minister of justice, was quite willing to lend his party’s name to this deal. A few weeks ago he told Ildikó Csuhaj of Népszabadság that such an offer shouldn’t be rejected “just because of what has happened in the last six years.” They shouldn’t be offended and boycott the negotiations, because in that case not even one decent judge would sit on the court. But, as usual, the MSZP leadership was split.
It was under these circumstances that the Károly Eötvös Institute (EKIN), a legal think tank, came up with a brilliantly argued piece of writing titled “Should the opposition nominate a judge to the constitutional court?”
Here I will summarize the argument of this NGO. There are three possible alternatives. The first is that the opposition parties accept the offer. The second, that the left-of-center parties turn the offer down and Fidesz makes a separate deal with Jobbik. Third, they simply don’t pick new judges and thereby the court will have only eleven members. In order to have a quorum, at least ten judges must be present.
In the opinion of the Institute, “the reasons for turning down the offer are overwhelming.” All eleven judges are Fidesz appointees, and the majority of them are clearly “government loyalists.” One lone judge nominated by the left makes not the slightest difference. At the same time, the negative consequences are numerous. First, agreeing to participate would give the impression of multi-party consensus. Second, those opposition parties that until this point had criticized the practices of the Orbán regime would lose their right to criticize the constitutional court. Third, by engaging in a negotiation with Jobbik, the democratic parties would go against their declared position never to cooperate with this far-right party. Taken alone, each of these concessions is unacceptable, but together “it is sheer madness both morally and politically.”
If MSZP and other democratic parties represented in parliament refuse to participate, Fidesz would be forced to make a deal with Jobbik, which “would strengthen the illegitimacy of the constitutional court at home and abroad.” If neither the new members nor the chief justice can be installed, it could easily happen that the functioning of the court could be jeopardized. But “because the court today … doesn’t exercise any real control over the government majority, we can’t consider this a real loss.” The only alternative for the democratic parties would be a return to the nominating practice that was in place prior to 2010 and to the reestablishment of the full competence of the court. Surely, Orbán will never agree to this, and therefore “there is no real alternative to the rejection of the offer.”
At this point and for a couple of days later it was unclear what MSZP was planning to do. Then two days ago Ferenc Gyurcsány, chairman of the Demokratikus Koalicíó, on his Facebook page announced that since there is consensus among the democratic parties that Fidesz destroyed the Third Republic, anyone who assists Fidesz in obscuring this fact is an accomplice of Viktor Orbán and a traitor to the democratic opposition’s policies.
Today József Tóbiás made the long-awaited announcement. MSZP will not nominate anyone and will not take part in the ongoing discussions concerning the appointment of the four judges to the constitutional court.
As for LMP, as usual it refuses to join the other democratic parties and is ready to negotiate with Fidesz and Jobbik. András Schiffer, co-chairman, doesn’t agree with EKIN’s analysis of the situation. He sees some differences in the opinions of the judges despite the fact that they are all government appointees. Therefore he believes that the opposition should add its own nominee to strengthen the admittedly very “nuanced” voices. However, he doesn’t want to see a return to the old practice, which simply meant voting down each other’s candidates. He would like to have consensus. He claims that he knows four people who would be acceptable to all parties.
Of course, at this point Schiffer didn’t know whether MSZP was game or not. Since that question was decided today, I wonder how Fidesz-Jobbik on one side and LMP alone on the other side will agree on four acceptable candidates. What other democratic parties think of Schiffer is demonstrated by an open letter of Viktor Szigetvári, chairman of Együtt, in which he expressed his utter dismay at LMP’s decision. He accused Schiffer of “assisting in the consolidation of the illiberal regime” in Hungary. Such a move “is not just a mistake but an unfathomable shame.”
The usually belligerent Lajos Kósa was the first Fidesz representative to respond to the news of MSZP’s decision, and he sounded rather sad. Fidesz will send an invitation to the party even after Tóbiás’s announcement. This tone tells me that EKIN’s analysis was correct and that MSZP made the right decision.