Tag Archives: Mihály Bihari

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

The newest judge of the Hungarian constitutional court: A man jointly supported by Fidesz and Jobbik

You may recall that Viktor Orbán “packed” the Constitutional Court in July 2011. He nominated and parliament approved four new judges, increasing the size of the court from eleven to fifteen. Since then there was another Fidesz-KDNP appointee, László Salamon, who replaced Mihály Bihari who had to retire because he reached the age of seventy. László Salamon prior to his appointment was a KDNP member of parliament. So much for even the semblance of impartiality and independence. Another sitting judge, András Holló, will turn seventy in April, which provided an opportunity to further tip the Constitutional Court in Orbán’s favor.

The earlier Orbán appointments were criticized because the appointees didn’t have the necessary qualifications. Moreover, it was clear that these people were fully committed to the current government. Indeed, for the most part these four new judges have voted as a bloc in favor of the government’s position.

Imre Juhász / MTI, Photo László Beliczay

Imre Juhász / MTI, Photo László Beliczay

The new appointment, announced on March 19 and voted on the next day, is perhaps the most unacceptable of all. It looks as if Fidesz-KDNP and Jobbik struck a deal to appoint Imre Juhász, who is considered to be close to Jobbik. Here are some headlines that tell a lot about the general perception: “The right hand of Krisztina Morvai will be the new judge of the Constitutional Court,” “Fidesz and Jobbik made a deal,” “Imre Juhász is only a gesture to Jobbik.”

So, who is this Imre Juhász? Yes, he has a law degree. Shortly after graduation in 1986 he started teaching civil procedure at his alma mater, ELTE’s law school. First as a T.A. and from 1992 on as an assistant professor and later as an associate professor. Eventually he received a doctorate in law.

He became well known not because of his teaching activities but because he was one of the founding members of the Civic Legal Committee (Civil Jogász Bizottság). The committee’s shining light was Krisztina Morvai, who later became a prominent member of Jobbik and today serves as one of the party’s members of the European Parliament. I might add that the second star of this committee was Zoltán Balog, currently minister in charge of education, health, culture, sports and everything else under the sun. This unofficial far-right “committee” was set up to investigate the events of the September-October 2006 riots, especially the activities of the police. There was also an official investigating committee comprised of former police chiefs, sociologists, lawyers, and historians under the leadership of Katalin Gönczöl (Gönczöl Bizottság) that arrived at a critical but balanced assessment of the events.

Not so Morvai’s committee, whose seemingly sole purpose was to assist Viktor Orbán in discrediting Ferenc Gyurcsány and his government. I must say that they were very successful. They managed by repeated and noisy accusations to falsify the history of those days. Moreover, by now most people, including liberals and socialists who ought to know better, swear that there was a concerted police attack on innocent bystanders.

Balog already received his much deserved reward for services rendered. He is one of the most powerful ministers in Orbán’s government and perhaps the closest to the prime minister. Since Krisztina Morvai joined Jobbik, she cannot be openly supported by the present government, but surely Viktor Orbán must be grateful to her for the terrific job she did. The book the committee published was translated into English, and I understand that it was one of the two books Gergely Gulyás handed to Senator Ben Cardin at the U.S. Helsinki Commission’s hearing the other day. And now Imre Juhász receives a top job from the grateful Viktor Orbán.

MSZP, DK, and PM (Párbeszéd Magyarországért) boycotted the parliamentary committee that considered Juhász’s nomination. Only Fidesz, KDNP, and Jobbik MPs were present, and they enthusiastically endorsed Juhász. Tamás Gaudi-Nagy (Jobbik) explained that his party didn’t have an official candidate, but they can heartily endorse Juhász. Indeed, it would have been strange if they didn’t.

From what Juhász said in his hearing before the committee, we can have no doubt that he will be an obliging appointee. He doesn’t have any problems with the new restrictions on the constitutional court. If earlier decisions cannot be used, no problem. One must follow the new constitution without considering any legal renderings of the past. He also seems to be enamored with the “historical constitution,” which should receive much greater emphasis than it does currently. As far as the limits of the constitutional court are concerned, Juhász endorses the absolute supremacy of parliament. As we know from Kim Scheppele’s argument, this means the elimination of checks and balances and can lead to tyranny. He talked about his plans to defend the rights of Hungarians in the neighboring countries, something that I find difficult to comprehend. He as a member of the Hungarian Constitutional Court has no jurisdiction across borders. If Juhász actually means what he said to the committee, we may well be faced with a lot of unpleasantness between the Hungarian government and its neighbors.

Another hobbyhorse of Juhász is the repeal of the so-called Beneš doctrine. In his curriculum vitae Juhász called attention to his efforts when he referred to the two petitions he delivered to the European Parliament. The first in 2007 and the second in 2012. He handed in the more recent one jointly with Alida Hahn-Seidl, the representative of the Hunnia Baráti Kör (Hunnia Fraternity).

Gergely Bárándy, MSZP’s legal expert, called the nomination a hoax (kutyakomédia) in which his party will not participate. Gergely Karácsony announced that PM members will not pick up their ballots. DK announced the boycott even earlier. So, when it came to the final tally there were only 298 members present, of whom 286 members voted for Juhász and 12 voted against him. As far as I know, LMP remained in the chamber. And, by the way, over the weekend LMP decided that they will not negotiate with Gordon Bajnai’s Együtt 14 or any other opposition party.