The Hungarian judiciary hits back but it is most likely too late

It was only a week ago that I wrote an article about the possible repercussions of the Orbán government’s plans to revamp the Hungarian judiciary system. At that time it was already quite obvious that the government means business: it wants to reshape the judiciary by being able to appoint its own favorites to high posts.

The first warning sign that Viktor Orbán–because let’s not pretend otherwise, he is the one who makes all the decisions in the party and the government–had had enough of judicial independence came months ago. First, there were verbal attacks on Hungarian judges who, according to Fidesz, didn’t rule properly in cases against violent demonstrators on October 23, 2006. Then, the decision was made, which parliament enacted into law, that rendered certain verdicts reached in these cases null and void.

Later it became apparent that the government was dissatisfied with the current practice of having an independent judiciary council nominate judges. Hungary at least until now had a unique system. Personnel decisions lay with a judiciary council that was comprised of top-level judges plus the minister of justice and the chief justice. This body was solely responsible for nominating new judges and promoting others. In the new constitution there is no mention of the judiciary council. From here on the minister of justice will nominate judges and parliament will approve them with a two-thirds majority. There is no question who will be nominated and approved.

Then came the startling news that judges will have to retire at the age of 62 instead of 70 and that this change will be included in the new Hungarian constitution. One doesn’t have to be a constitutional expert to know that such details have no place in a constitution. So why put it there? The answer is actually quite simple.

If this new provision were not included in the constitution it would surely be found unconstitutional on many grounds. Here I’ll mention only two. Someone who began his career as a clerk to a judge and who decided to remain within the system in the last twenty to twenty-five years has been doing his financial planning based on the fact that he can work until the age of seventy. Let’s say that someone is sixty years old and just married for the second time. He bought a house for his new family and is still paying the mortgage. He thought he had ten more years with the judiciary with a pretty good salary. Now, out the blue, he’s just learned that in two years he will be out on his ears. The constitutional court has handed down rulings in the past that would serve as clear precedents for declaring this change in the retirement age unconstitutional–that is, if the constitutional court had anything to do with it.

But there is at least one other reason why the constitutional court would throw out this provision if the government didn’t smuggle it into the constitution. One cannot just arbitrarily lower the retirement age of judges when the retirement age of prosecutors and diplomats remains untouched at seventy. In the last minute it seems that this problem became evident to János Lázár, leader of the Fidesz delegation in parliament, whose unpleasant task it was to turn in this amendment in the last minute. He announced that eventually they will also lower the retirement age for prosecutors, diplomats, and politicians. You may recall that last summer the government changed the law concerning the retirement age for diplomats so that György Szapáry, who was seventy-two years old, could serve as Hungarian ambassador to the United States. In brief, this government tinkers with the retirement age in any old way it suits them.

The first reactions from the judges were muted, but this morning we learned that the pussy-footing around had come to an end. The top leadership of the Hungarian judiciary system almost unanimously rose up against lowering the retirement age. All the members of the Supreme Court, the chairman of the judiciary council, and the chief justices of the county courts published a communiqué that was addressed “to the public of the country and the European Union.” From the communiqué we learn that the retirement age was fixed in 1869 (1869:IV) and hasn’t been changed since! At that time the average life expectancy in Hungary was under forty. The judges rightly point out that this decision goes against the trend that in fact raises the retirement age almost everywhere in the developed world.

But that is the least of the judges’ problem. They find the new provision discriminatory and contrary to the theory of judicial independence. At last the judges dared to say that the decision to include this change in the constitution is based on the full knowledge of the government that this new law is unconstitutional. The judges also decided that they will announce what until now they didn’t want to bring up: the change serves only political ends.

The best was left for last. The judges find it incredible that twenty-one years after the change of regime from a one-party system to a pluralistic democracy they have to fight for the minimal values of democracy in a country that is currently holding the rotating presidency of the European Union. They “would have never thought that in our country we will have to stand together in the defense of constitutionality and democracy against those politicians, some of whom in those days actively worked to end the dictatorship and establish a democratic state.”

Twenty-one judges, including almost all the chief justices of the county courts and the heads of the appellate courts, signed the communiqué. There were only three county chief justices who didn’t. One refused to say why not while the other two claimed that in their own district very few judges are close to retirement. Naturally that cannot be their real reason for not signing. One suspects that these people think that soon enough they will occupy some of the higher places in the hierarchy that the signers of the communiqué will involuntarily vacate.

The liberal opposition greeted the communiqué enthusiastically but some think that it came far too late. Next Monday the constitution will most likely be approved by the Fidesz-KDNP two-thirds majority. MSZP, LMP, and Jobbik will not vote for it, and the two independent MPs also announced that they cannot sign the document.

As mentioned earlier, the communiqué is addressed to the public of the country and the European Union. But what can the European Union do? Perhaps the Hungarian judges know more than we do. Let’s hope so.

April 15, 2011