How not to pick a constitutional judge: LMP’s choices I

Parties of the democratic opposition are up in arms. They are outraged at the assistance LMP extended to Fidesz to score an important parliamentary victory, the approval of four new judges for the Constitutional Court.

MSZP in the last minute tried to delay the inevitable by instructing its representative on the nominating committee to resign ahead of the vote. With his resignation the committee, which according to house rules must have at least nine members, no longer had a quorum. The MSZP tactic might have been clever, but the socialists didn’t count on Fidesz’s total disregard for rules and regulations. The majority party could have opted to get another member to replace MSZP’s representative and, let’s say a week later, finalize the nominations. No, they simply went ahead. This time not even Gergely Gulyás, Fidesz’s legal magician, could give a half-believable explanation for the vote’s alleged legality. Because of the decision to go ahead with the nominations despite the lack of a quorum, the opposition parties consider the entire procedure by which these four people were appointed illegitimate.

The Károly Eötvös Intézet, the liberal legal think tank, hasn’t changed its opinion in the last year. Just as in January, the legal scholars working there consider LMP’s decision the worst possible move. Their position is that the Constitutional Court ever since its enlargement with four Fidesz-appointed judges has not been an independent court but an arm of Fidesz’s political will. It no longer fulfills its function. As it stands, there are seven judges who will always vote in favor of the government while four on occasion will express a contrary opinion. The four new judges, considered to be “conservative,” will make the situation even worse. And no judge will have to retire from the court before 2023.

That leads me to the problem of vetting nominees. It has happened in the past, when all parties participated in the nominating process, that the socialist-liberal nominee turned out to be much more conservative than anticipated. One reason for these “mistakes” is the lack of a body of legal work on the basis of which the candidate’s legal philosophy could be judged. A good example of this was the choice of Mihály Bihari by MSZP and SZDSZ. Although he had a law degree, he had worked as a political scientist. There was no reliable way to assess his legal views. A somewhat similar situation occurred when Fidesz nominated István Stumpf, again a political scientist, to the court in 2010. Judging by his past, he should have been an absolutely safe choice from Viktor Orbán’s point of view. After all, Stumpf served as Orbán’s chief of staff between 1998 and 2002. But he turned out to be much less reliable than expected. The same problem exists with people who have been practicing judges and have no published work on the basis of which one could assess their legal thinking. Among the new appointees Ildikó Marosi falls into this category. She has been working as a judge, dealing with administrative and labor cases.

Although all opposition parties are highly critical of LMP’s role in this affair, the Demokratikus Koalíció is the most outspoken in its condemnation of the party. Csaba Molnár, one of the deputy chairmen of DK, tore into Ákos Hadházy on ATV’s “Szabad szemmel” (Open eyes). It quickly became apparent that Hadházy had not the foggiest idea about the legal views of the nominees his predecessor, András Schiffer, had picked.

molnar-hadhazy2

Csaba Molnár and Ákos Hadházy on ATV’s “Szabad szemmel”

A lot of people, including me, hoped that under the leadership of Hadházy LMP would be more willing to cooperate with the other opposition parties. I remember vividly when he announced that any kind of a deal or coalition with Fidesz is absolutely out of the question as long as he is the co-chairman of LMP. Hadházy normally makes a very good impression on people. He comes across as a modest, earnest, idealistic man who isn’t quite at home in the world of politics. Unfortunately, he is also naïve. He doesn’t seem to understand how differences in legal philosophy shape how judges interpret the constitution. When Molnár tried to explain to him that at least three of the nominees come from the conservative legal camp, which would further strengthen the pro-Fidesz majority, Hadházy naively shot back: “And conservative people cannot be honest?”

In any case, poor Hadházy was demolished under the weight of the facts DK gathered on the legal and political past of the nominees. Hadházy could only mumble: “Well, I didn’t know that, I will have to check on this.” This was Hadházy’s answer to Molnár’s claim that Bálint Schanda’s views on abortion are so extreme that, if it depended on him, he would forbid pharmacists to fill valid prescriptions signed by a physician for the morning-after pill.

The fact is that Schanda writes almost exclusively on legal questions concerning religion. The list of his publications is a mile long, and some of them are available online. If it depended on Schanda, stores would be closed on Sundays because believers (Christians) should have the opportunity to follow the Scripture, which forbids any kind of work on the Sabbath. This is part of the freedom of religion in his opinion.

He can be critical of the government, but his criticism comes from his religious convictions and his special interest in the defense of the family. For example, he didn’t like the idea of keeping children in school all day long, which he considers to be a “left-wing notion” popular in Western Europe. That’s why he was surprised to learn that the conservative Fidesz government had decided to introduce such schools. He finds the idea of the state’s taking over the “nurturing” of children from the family unacceptable. Church schools, however, are different because the parents expressly grant the church the task of educating their children.

Schanda also liked the idea of “family electoral law.” That is, that parents, depending on the number of children they had, could have multiple votes. Admittedly, he doesn’t want Hungary to rush into being the first country in the world to introduce such a law, but “this question cannot be a taboo; it would be foolish simply to discard it without seriously considering it.” In the article he practically suggests starting preparatory work for such a piece of legislation to be introduced later. Perhaps if Ákos Hadházy took the time to read a couple of Shanda’s articles he would better understand the impact of legal philosophy on people’s daily lives.

Finally, Csaba Molnár brought up an article by Schanda that he published in Magyar Kurir, which is the official newspaper of the Conference of the Hungarian Catholic Bishops. The short article’s title was “Pope Francis and zero tolerance.” It was about the vexing question of pedophilia. Schanda explains that there is nothing new in Pope Francis’s announcement because the church has had strict laws concerned pedophilia since 2001. Zero tolerance in this case simply means that a priest accused of this particular crime is immediately suspended, which he approves of. He cautions, however, about exaggerating the problem “because according to American studies pedophilia among Catholic priests in comparison to lay teachers is infinitesimal.”

The only study on pedophilia among Catholic priests I found was from 2004. The John Jay College of Criminal Justice published a comprehensive study in which it was claimed that 4% of Catholic priests in the U.S. had sexually victimized minors in the past half century. This seems to be somewhat lower than school teachers during the same time frame. Well, “somewhat lower” is not “infinitesimally” less. Moreover, it is very possible that victims of priests are less willing to confront church authorities than victims of teachers are to go to civil authorities. But this is a small point and not an important one. What, on the other hand, I found disingenuous was his claim that “in the former socialist countries the proportion of such acts in comparison to western countries is much lower.” At this point I had to laugh. What makes Polish, Hungarian or Slovak priests less prone to committing such crimes? Their countries’ socialist past? Or, perhaps something else, like a lower rate of reporting and a higher rate of covering up cases. Schanda even tries to cast doubt on the seriousness of the very few stories that emerged in the last few years in Hungary by saying that the media used these cases to incite anti-church sentiment in the population. Moreover, he claims that these cases were exploited by political parties. Obviously, the socialist-liberal parties.

In the summer of 2011 I devoted four posts to the four Fidesz-picked judges, asking “how qualified will the new judges in the Hungarian Constitutional Court be?” I’m planning to do the same this time.

November 23, 2016
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Gabor Toka
Guest
It is sad that LMP cannot afford preparing their representatives for a tv appearance, but it is not that they did not have some defensible considerations. They failed to put them forward in the debates with the left and now Gyurcsany and co. can fully indulge in whipping them for going to bed with Fidesz etc etc. I would not think that too many LMP voters will be impressed by that argument – my sense is that it is very rare for someone who can conceivably stomach Gyurcsany or MSZP as the remedy for Orban to vote for LMP -, but it is sad to see both LMP so hapless and DK so single-mindedly interested in creating a monopoly to speak for “democracy” rather than actually achieving something in fighting Orban. To my mind the biggest mistake of LMP in this story was to trust Schiffer with the negotiations. Schiffer follows his own (or in this case probably the conservative Christian Solyom’s) peculiar agenda and could not be trusted with communicating the LMP line on the issue – it is in fact still a plus that an unprepared Hadhazy went to this TV debate instead of the very well prepared… Read more »
Observer
Guest

I find it difficult to stomach the supposedly democrats dancing under the fidesz tune and rationalizing these actions.
At every decisive moment Schiffer did so. The anti refugee referendum was the first exception, after Schiffer, but here is the step back.

I wonder what kind of “achievement” do G.Toka and co expect from the strapped and starved opposition. Perhaps ha can help with a couple if frequencies, or buy them a print media outlet?

Aki Gyurcsányozik … is assisting orban.

Gabor Toka
Guest

In my humble view our Lord cannot be beyond criticism. Come on, Observer, you can do better than this, and so we should all. Do not start with anger but with attention: you may notice that I am not taking the side of Schiffer. And if you wish to beat me, do not do it WITH [words] but IN [something useful]; e.g. you may want to match or even better overdo what I do for the existence of a strapped and starved opposition media:)

Observer
Guest

G.Toka
I’m doing my humble bit in support of democracy ebben a k orszàgban.
I know politics well hence the above by which I stand.
In my book top performance scores go to GyF, Juhàsz P., Kuncze, Lendvai, Mirkoczky, Vona, Timea, Bokros. This IS the Hungarian reality, like it or not, and I support them. If you know better ones help launch them, would support them too. But until then nincs gyurcsányozás and bitching.

becky
Guest
LMP is now a conservative and right wing party. LMP is thus a natural ally of Fidesz. Right wing parties rarely help left wing parties but very often help other right wing parties. This is what happened. The Hungarian liberals and left wing parties need to amass the majority or close to majority of voters behind them in order to defeat Orban. This is what they must focus on and not on ATV debates watched by a few intellectuals (3-4% of the voters and mostly in Budapest). Nobody cares about debates. Trump lost all three TV debates, the first one by far the biggest margin since such debates have been held. Didn’t matter. He had a clear massage, had clear values and communicated directly with the voters who adored him. Who adores any Hungarian left wing or liberal politician? Orban will always be able to count on Jobbik and LMP. Jobbik at this time decided not to deal with Fidesz but rest assured it will have ample opportunity to do so in the future. And many times Jobbik, just like LMP did, will cut a deal. Orban and the Orban System have huge reserves in Hungary and the left wing… Read more »
webber
Guest

So Orban’s Fidesz will lose votes to both Jobbik and LMP. Congratulations. Great strategy. (Becky, are you writing from Russia? There’s something about your style…)

Guest

webber, please!
becky is right imho – the ability to choose between Jobbik and LMP as “coalition partners” is a godsend for Fidesz.

Totally OT:

Martin Schulz, president of the European Parliament, will leave Brussels (he can not be reelected – the EPP wants the job) and return to Berlin, he might become a member of the next government after the German elections next year. The Social Democrats have high hopes – but Fidesz will not be amused to have their “best enemy” in Berlin now …

Observer
Guest

Not OT all, Merkel kept Orban afloat with political and financial support.
Re next year elections results, who knows ..can be anything, but there’ll be no clear winner and a coalition would not have the time to deal with Orban, unless there is some general action against corruption or fascism.

webber
Guest

Wolfi,
all I can say is that you missed the subtext of “Becky”‘s post. There is a bit more there than meets the eye. This is a new form of Fidesznik triumphalism (not the first time I’ve heard it – from different people). Look again, and maybe you’ll see it.

pappp
Guest

It’s much better that the right wing votes are divided between Fidesz-Jobbik-LMP compared to a scenario in which Fidesz had all those votes.

But I have no illusion that Fidesz could continue to wheel and deal with Jobbik and or LMP while keeping Orban’s power intact.

Just as Fidesz basically fooled LMP and LMP actually believes it was so smart, Fidesz can do this with Jobbik too.

The thing is that since the right wing/conservative constituency is significantly bigger than the leftist one Fidesz can afford to lose some votes to other contestants compared to 2002 or 2006.

If that Corvinus research is indeed to be believed than 59% of the people self report being rightwing/conservative/civic and a further 22% are conservative left-wing (who may be open to Jobbik in my view). This is a terrible situation for the left wing to work from but a great one for Fidesz unfortunately.

syindicate
Guest

The Corvinus research showed that only 3 percent of Hungarians consider themselves liberal. Why they should have such a disproportionate say on left wing parties in Hungary is beyond me. We have four social liberal parties in Hungary and neither can get anywhere.

Observer
Guest

Becky,
In the fascist regime there are no right/left parties really. For Orban there are minions/supporters (eg the bunch of MSZMP commies around him) and enemies, clean and simplistic. And he strives to destroy the latter whatever their former positioning, eg. the vicious campaign against Vona.
So in the current circumstances LMP (or Jobbik for that matter) should be judged against this criteria first and foremost. The third way/position is just a rouse to chip off votes Fidesz cannot get anyway, eg. the dozens of new “parties” campaigning on tax payers money in 2014.

Guest

Totally OT but maybe important from portfolio.hu (available only for subscribers?):
http://www.portfolio.hu/en/economy/lets_be_clear_hungarys_competitiveness_worsened_dramatically.32140.html
An introduction:
In the current uncertain environment (elections in Europe, the Trump presidency in the United States) Hungary needs to fortify itself, but the strengthening of national sovereignty also means “more Europe” not less, János Lázár told a conference on EU funds on Thursday.
It is now possible to address not only Hungary’s strengths but also its weaknesses, for political stability is greater, Lázár said.

The only natural ally for Germany in the weakening Europe is our region.
Capital shortage is a weakness of the Hungarian economy. This is a grave problem that we cannot resolve from own resources therefore we will be dependent on external funding in the next 25 to 30 years, and EU funding can offer only a partial solution.

Observer
Guest

Again, very much OnT.

I thought, what the fu.. is going on here with this “more Europe not less”, but then came the “conference on EU funds” bit which explains it – a bit of the peackock dance to ease the money flow.

Competitivness and productivity is down, we know, so is growth (cohesion funds considered). The gang knows that.much and relies on credit to keep it afloat. Any international financial storm will reveal how ricketty this ship is, where the bondholders will jump off quickly and leave it to the locals to struggle.

petofi
Guest

I predict that when the time goes to ‘pull the plug’, it will be Orban, his royal self, who will do it with glee.
As a comparison, he’s no less the violinist than Nero…

petofi
Guest

“goes”=”comes”

petofi
Guest

Times are so bitter and bleak…so, in remembrance of great Leonard Cohen (who, indeed, was very sick before he died) I’m passing on the suggestion that readers access utube and K.D.Laing’s rendition of Hallelujah…great Canadians both-

petofi
Guest

re: quorum

It’s clear that Orban’s wishes supercedes legal principles…Ahh, the pleasures of the New World!

Observer
Guest

The cliche is “the Brave New World”, but Orban’s is neither new nor brave in any way, although it takes some gall to steal that much (without fearing the eventual consequences).

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