Tag Archives: Bálint Schanda

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.

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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