For about a week there have been rumors that "there might be changes in the composition of the judiciary." First there was talk about the chief justice of the supreme court, András Baka. Commentators considered the renaming of the supreme court to "kúria" an opportunity to get rid of Baka, a László Sólyom nominee. Then came news about a possibly much more sweeping change. Magyar Hírlap reported that in the new constitution there might be a provision by which any judge who served as a judge before 1989 would be dismissed. In another version of the rumor all current judges would have to reapply for their jobs and in each case a decision would be made about his or her acceptability. Surely, on political grounds.
As it turned out, the rumors were not quite accurate. The lawmakers are contemplating a paragraph to be included in the constitution that would lower the compulsory retirement age of judges from 70 to 62. That would mean that 6-8% of all judges would have to retire.
It is possible that the earlier reports on recalling all judges who served in the old regime were actually accurate but that the "careful and wise" lawmakers subsequently realized that 72% of all current judges were appointed to their posts before 1990 and getting rid of 72% of all the judges would be too drastic even for the Orbán government.
Then came the latest move to reduce the retirement age. While everywhere in the developed world the retirement age is being raised due to demographic changes and while, for example, the retirement age for Hungarian prosecutors remains 70, the judges with the most experience must retire at a ridiculously early age. All that because Viktor Orbán finds the courts and the judges still far too independent. The prosecutors have been willing accomplices of Fidesz in the last ten years or so; now Orbán wants to have "fresh Fidesz blood" injected into the judicial system.
The news hit the judges hard. As András Baka said today, "there is great unease and indignation among judges" as a result of the latest suggested addition to the text of the new constitution. Baka added that "they all worry about the independent judiciary, which is the basis of democracy." And, practically speaking, as a result of this new law about 300 judges who are handling thousands of cases at the moment would be fired. These cases would have to be passed on to someone else. The whole procedure would further slow down court procedures that are sluggish enough as it is.
Baka pointed out that in 1990 90% of the judges were under the age of 55, which precluded their active participation in the illegal activities after 1956. In 1990 parliament decided that the judges even in the second half of the Kádár regime did a creditable job given the circumstances. If that was the case in 1990, why it is necessary now, twenty years later, to review the Hungarian judiciary "on political grounds?"
Yesterday in committee István Balsai (Fidesz) announced that the original suggestion to lower the retirement age to 62 might not be entirely satisfactory. According to him "a new element" of the question surfaced and therefore the amendment must be reworked. Most people suspect that the "new element" is Viktor Orbán's insistence on getting rid of Chief Justice András Baka under any circumstances, and Baka is only 59 years old.
Apparently the leading judges of the Supreme Court are inclined toward compromise: to work out the problem with the government. I personally think that if Viktor Orbán decides that he wants to get rid of someone then there is no compromise. He will not move an inch. The other possibility is to bring the dirty linen to an international forum, the European Network of Councils for the Judiciary.
About András Baka. I wrote about Baka a lot in the past. Not so much about his career and judicial philosophy but about László Sólyom and his obstinate way of appointing officials. Sólyom refused to inquire from the parliamentary parties whether his nominees were acceptable to them. As a result he often fell on his face. His original nominee for the post of the chief justice was András Baka, who wasn't even recommended by the fourteen-member National Jurisdictional Committee because of his lack of experience in Hungarian jurisprudence. He had spent seventeen years as one of the judges of the European Court of Human Rights. The rejection of the Council didn't deter Sólyom, who went ahead with the nomination. Needless to say, Baka was rejected by parliament.
After trying another candidate twice, Sólyom came back with Baka a year later; with the reluctant support of MSZP he was elected to be chief justice. That was in the summer of 2009. Now it seems that András Baka will most likely not serve out his term that ends in 2013. If he is too young, I'm sure Viktor Orbán will find some other way of getting rid of him.
For the time being Baka and his fellow judges seem to be in a fighting mood as are some others who are under attack without any justification. One of the accused in the Sukoró land deal is quite openly talking about the political pressure put on him to testify falsely against former prime minister Ferenc Gyurcsány. More and more people compare the present situation not to the Kádár regime but to the horrific days of Mátyás Rákosi. Fortunately some of them are standing up and refusing to play the government's game. I can only applaud this civil courage.