Appointment of constitutional judges in a comparative perspective — with a proposal for a new model for Hungary (original) (raw)
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Paper presented at the First Italian-Hungarian Comparative Law Workshop held in at the Hungarian Academy of Sciences in Budapest, 2013
""This paper discusses the different models of appointment applied for constitutional judges in Europe, taking into consideration also the appointment procedure of the two European regional courts. It offers an account and a comparative analysis of the three appointment models: the split, the collaborative and the parliamentary model, discussing their practical application and shortcomings. In particular, the paper deals with the question of how to avoid standstills in the different appointment procedures and with the publicity of these procedures. The author concludes with a proposal for the Hungarian Constitutional Court, arguing that the split model is the one that ensures better that the composition of the Court expresses a balance between the branches of government.""
Hungarian judicial selection has been characterised by meritocratic and nepotic elements since the 1990 regime change which are indirectly distorted by change, albeit to a relatively reduced extent, to political aspects. Scores of Hungarian and foreign experts have evaluated the measures of the justice reform put in place after the 2010 change of government as being about a series of successive measures to politicise the judiciary from the creation of the new constitution to legislation regarding the justice system. In this study it has been demonstrated that regarding the initial phase of judicial selection the gradual strengthening of meritocratic elements may be observed, which continued after 2010 as well. First and foremost, it may be traced in the more objective system of evaluating judicial applications. The possibilities for discretionary decisions by heads of administration have been considerably restricted in the selection of judges. At the same time, however, the competences of heads of administration entitled to make appointments have been broadened upon filling court management positions.
COMPOSITION AND STRUCTURE OF THE EAST-CENTRAL EUROPEAN CONSTITUTIONAL COURTS
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The present paper is going to deal with the composition, the recruitment base, the operational mechanisms and the innen structure of the constitutional courts in the course of constitutional adjudication of eight East-Central European countries (in alphabetical order: Croatia, the Czech Republic, Hungary, Poland, Romania, Serbia, Slovakia, Slovenia), from a comparative law perspective. Despite their partially different historical past and the distinctions in the existence of predecessor institutions (or the lack therof), the inner organizational arrangements of the constitutional courts of the states analyzed and the rules of recruitment of constitutional judges therein show considerable similarity across the region.
The Position and Activity of the Constitutional Court of Hungary: 2011-201
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The Constitutional Court has functioned in Hungary since 1989. Its activity shaped the frame of democratic state of law and influenced the constitutional order in Hungary. In 2011 the National Assembly passed the new Act on the Constitutional Court that replaced a previous one from 1989. The provisions of the Act and the Fundamental Law reduced the role and position of the Court as a separated body in the tripartite power division. The reduction of competences is accompanied by the diminishing of the concluded cases as well. Streszczenie Pozycja i działalność Sądu Konstytucyjnego Węgier w latach 2011-2019 Węgierski Sąd Konstytucyjny został ustanowiony w tym kraju w 1989 roku. Jego działalność pozwoliła na ukształtowanie podstaw demokratycznego państwa prawa i porządku konstytucyjnego Węgier. W 2011 roku węgierski parlament przyjął nową ustawę o Sądzie Konstytucyjnym, która zastąpiła pochodzącą z 1989 roku. Przepisy nowej ustawy oraz Fundamentalnego Prawa ograniczyły rolę i pozycję Sądu Konstytucyjne
Changes of the Judicial Structure in Hungary
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In 2018 the populist right-wing authoritarian Fidesz, after eight years of dismantling the rule of law and democracy, won the parliamentary election by two-thirds, in a greatly unfair election. The release from authoritarianism through elections organized by the authoritarian forces is unlikely. Due to the lack of an effective counterbalance for the government, this political situation undoubtedly affects the judiciary, as well as the entire construction of the rule of law from several perspectives. This contribution thoroughly analyses the mechanisms that were instrumental in making the non-rule of law situation, as well as the reasons for this perplexing situation, with particular emphasis on the general peculiarities of the new Hungarian authoritarianism. In its concluding chapter, the article discusses the changes of the judicial structure in Hun-gary, in particular. In this respect, the development in Hungary has been characterized by continuous failure, and periodic setbacks.
The recent reforms of the Polish Judiciary have sparked a lively debate in Europe on the importance of judicial independence. This Article deals with the new Polish system of selecting and appointing judges and critically assesses it in the light of European standards for judicial appointments. It then compares the new Polish system to the German system of selecting judges, which has been advanced as a point of reference for the reform by the Polish government. Finally, the Article reconsiders and challenges some of the established concepts of German constitutional law as to the selection of judges and judicial legitimacy.
The Hungarian Constitutional Court: A constructive partner in constitutional dialogue
in: Pócza, Kálmán: Constitutional Politics and the Judiciary: Decision-making in Central and Eastern Europe (London/New York: Routledge, 2018), pp. 96-125.
Following the landslide victory of the Fidesz party in 2010, the new government, backed by a two-thirds majority in the parliament, started quickly transforming politics and to some extent the polity of Hungary as well. Due to the high international reputation of the Hungarian Constitutional Court, attacks against the Court became widely followed in the international scientific and laic community. Several volumes and articles dealt with the transformation of constitutional adjudication after 2010, but no one focused on the question of whether the backlash against the Court had any ground in the practice of constitutional adjudication in Hungary. This chapter will explore to what extent has the HCC has really constrained the room for manoeuvre of the legislator in Hungary after the democratic transformation process, and examine whether the narrative of a Court unduly entering the political field and, consequently, constraining too heavily the democratically elected parliamentary majority might prove true. We will argue that the practice of the HCC and its position within the system of separation of powers might be best described as a partner in a constitutional dialogue. In this position, the HCC signalized quite frequently that the legislator departed from the path of constitutionality but, at the same time, it developed a highly refined instrumentarium not to constrain too heavily the legislator. Thus, the attitude of the court towards the legislator has been rather cooperative and partnerial rather than confrontative.
Judges and Representatives of the People: a Polish Perspective
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Relations between the judiciary and the elected authorities (i.e. the legislative and the executive) in each country and at all times are among the most sensitive from the point of view of statehood. The present paper undertakes a problem of the constitutional backsliding in Poland in and after 2015. It briefly summarises the problem of the independence of judges and courts from the perspective of both the Polish Constitution and international law and questions the argument that state sovereignty enables the political majority to impose unlimited change on the judicial system. The decline of constitutional review shows the disintegration of the discursive community of law in a country once treated as a model of the successful democratic transfromation. Polish judges found themselves in a hopeless position between the need of the constitutional obedience and the rising political pression. The strategy of the Polish government, quite different from the Hungarian one, highlights the need for a debate about the sources of legitimising the judiciary. Not in every country and under every political circumstance that the form of judges’ participation in public discourse can be limited to only typical judicial activities. The democratic crisis in Poland reveals a dramatic need for judges as educators and members of society to be active also outside the courtroom. Otherwise, it might not be possible to bolster the level of social confidence in the judiciary, and thus to strengthen its legitimacy, which has never been high and has been further reduced in recent years, mostly as a result of the progressing global socio-political crisis, which manifests itself in Poland and other Eastern European countries in a return to authoritarianism. A well-expressed but firm opposition to limitations placed on the constitutional competences of the judiciary by political authorities – the latter claiming to have the necessary democratic mandate – is not a form of political activity that is prohibited for judges, but is rather one of the legitimate instruments of participation in the debate. Even more than that, it is a manifestation of the judges’ implementation of their mandate towards the nation, which has constituted the judiciary as one of the authorities by which to express its will.
Central European Judges Under the European Influence : The Transformative Power of the EU Revisited
on Law in Economy and Society (ed Max Rheinstein , trans E Shils) (Harvard University Press , 1969). 9 This distinction is a refl ection on our observation that authors do not always recognize that formalist judicial style does not necessarily equal to the rule based decision making. Judges many times only pretend that they decide on the basis of the text of the law. In these cases they only justify their decision by the text of the law. For a classical example of ignoring this distinction see HLA Hart , The Concept of Law (Oxford University Press , 1994) 124-54. 10 Schauer (n 3) 511.