Kim Lane Scheppele: Let them Eat Principles!

I’m very grateful to Professor Kim Lane Scheppele of Princeton University for sharing her analysis of the ruling of the Hungarian Constitutional Court on the judicial retirement age. The decision was announced on Monday, July 16, 2012.

The Hungarian Constitutional Court’s Decision on the Judicial Retirement Age

On Monday (16 July), the Hungarian Constitutional Court handed down its biggest decision of the year. It held that the sudden lowering of the retirement age for judges is unconstitutional because it gave the judges no time to prepare for the change and because it created an unclear framework in which different people were set to retire at different ages.

The decision appears to be a major defeat for the government, delivered by a Constitutional Court that Prime Minister Viktor Orbán had packed with new judges. Could it be that the Constitutional Court has remained an independent voice in today’s Hungary after all?

The decision contains both good news and bad news for those who hope that the Constitutional Court survives Orbánization. It’s good news because the Court reached the clear constitutional right answer, defending both the rule of law and the constitution. It’s bad news because the Court waited so long to make the decision that most of the judges have already been fired, and the Court provides no sure way for them to recover their jobs. The judges who brought the case now have rights but their remedies are unclear.

The Constitutional Court engaged in what I’ve called elsewhere “new judicial deference.” In practicing new judicial deference, a court makes a brave decision on the law but then fails to give the claimant the relief she sought. The claimant wins big on principle. But if you are actually the claimant who brought the case seeking some change in your situation, you discover that you got only words. The claimant wins the principle but the other side wins the situation on the ground that the claimant went to court to change. It’s as if the Court is saying: Let them eat principles!

Chief Justice Péter Paczolay whose vote decided the issue

The judges’ actual fate in the retirement age dispute is important. The lower retirement age has been a central element in Orbán’s plan for remaking the judiciary. Introduced in the new pension law, which went into effect on 1 January, this sudden drop in the retirement age removed nearly 10% of all of the judges in the country in the first half of 2012, giving the Orbán government the chance to name their replacements. Hungary’s judicial system, like most of the judiciaries in Europe, has a civil-service-style promotion system in which judges enter the system in lower posts and work their way up the promotion ladder as they age. So a cut in the retirement age decapitates the leadership structure. Fully one quarter of Supreme Court (Kuria) judges as well as nearly half of both the appeals court presidents and the county court presidents were among the roughly 300 judges to be removed from office this year.

The change in the retirement age occurred against a backdrop of institutional change. A newly created National Judicial Office (OBH), headed by a close friend of the Orbán family, now has the power to name judges virtually without constraint. And that office wasted no time selecting new recruits, most of whom now start their judicial lives on probation, which means that true job security does not kick in for years after the initial appointment. A probationary period before an appointment is final keeps judges on edge and attuned to the political environment in which they are judging if they want to keep their jobs. In the meantime, the National Judicial Office moved up into higher ranks their own hand-picked judges who now owe their premature advancement to Fidesz.

The Venice Commission (an expert body formally known as the European Commission for Democracy through Law) has been sharply critical of the whole plan for remaking the judiciary, saying that the changes “not only contradict European standards for the organisation of the judiciary, especially its independence, but are also problematic as concerns the right to a fair trial.”

The European Commission made the reorganization of the Hungarian judiciary one of its top issues in its ongoing struggle with the Hungarian government. It started an infringement proceeding at the European Court of Justice, asserting that the suddenly changed retirement age violates European Union law. In the meantime, more than 100 of affected judges have lodged complaints with the European Court of Human Rights over the issue.

Against this background, the Constitutional Court decision appears to put the brakes on the relentless drive of the Orbán government to control the judiciary. The Court not only found that the new retirement age was constitutionally dead on arrival, but it said that the law had been dead from the moment it came into force on 1 January 2012. Constitutionally speaking, it was as if the law never existed. Poof! Gone!

Even though this should have been an easy case on the Court’s own precedents, the 15-member Court split 7-7 with one judge (Justice Bihari) not participating. Under the Court’s rules, when there is a tie, the opinion joined by the president of the Court controls. All of the new Orbán appointees dissented from the holding; the opinion was carried by those who were already on the Court when the Orbán government took office. That said, some of those who joined the controlling opinion have generally been thought of as conservatives likely to side with Fidesz on issues of substance. In that regard, the decision was not a predictable line-up.

The court ruled that the lowering of the retirement age violated the independence of judges, because such a sudden change in the ground rules for their continued service smacked of arbitrariness. Without allowing for a longer phase-in period, so that the judges would have time to plan and adjust their lives to a new term of office, the change in the retirement age constituted an interference with the judges’ independence. Moreover, the change in the judicial retirement age was made not in the cardinal law on the judiciary but instead in an unrelated law on pensions that did not have the same constitutional entrenchment. And the retirement age, though generally forcing judges to retire at age 62 instead of at age 70, was different for different categories of people.

The court added that the principle of judicial irremovability is a long-standing one in Hungarian law, pointing out that judicial protection from arbitrary dismissal had been guaranteed starting with the first judiciary act of 1869. In that law, interestingly enough, the retirement age for judges had been set at 70 and had never been altered until now.

The dissenters wrote a number of separate opinions explaining their views. Some (Justices Balsai and Dienes-Oehm) argued that judicial independence only guarantees independence of decision making in the concrete case and not the guarantee of a judicial appointment. As a result, judges may never be removed from particular cases but they could be removed from their positions by a general law. Others (Justices Szívós, Lenkovics and Szalay) noted that the retirement age was lowered both in the cardinal law on the judiciary and also in the transitional acts which have since been incorporated into the constitution, and the fact that the rule is also in the constitution itself means that the Court cannot review it. Still others (Justices Pokol and Stumpf) argued that the judges had no standing to bring the case in the first place either because they should have gone first to the labor courts (Pokol) or because they had already been fired and so their cases were moot (Stumpf).

But now that the law under which the judges have been fired has been struck down, what then? In his reaction to the Constitutional Court decision on Monday, Prime Minister Orbán said that he would ask the parliament to harmonize the laws so that the constitution, the judiciary act and the pension law were not in contradiction. Just what he meant is unclear; he did not say in which direction he would push their harmonization.

In any event, he may not have had to worry because the Court did not outline a clear path through which the fired judges could be returned to their jobs. The Court nullified only the part of the law on pensions that set the new retirement ages. It could not nullify the presidential orders through which the judges were fired. Those orders still stand even while the law that these orders carried out has been voided. In an ideal world, President Áder should respond by withdrawing the orders to comply with the Court’s decisions. But so far, this has not happened. If he does so, then the Court will have accomplished something that is very important. We must wait and see.

Today, the head of the National Judicial Office responded to the Constitutional Court decision by telling the fired judges that they could appeal their dismissals through the labor courts. One would think that, since the law on the retirement age was the only reason for the judges’ dismissals, a labor court would find that there was now no reason for them to be fired because the law is gone. But labor law experts are divided on the question of whether the labor courts have jurisdiction to rule on presidential orders. The law does not explicitly say that they can. Therefore, conservative judges may rule that they cannot. If the labor courts claim that they do not have the power to rule on presidential orders, this avenue for redress will lead nowhere.

What then? Well, if the president does not withdraw the orders and the labor courts say that they have no jurisdiction, the fired judges will have a right but no remedy, Hungarian law has an answer to that: the Constitutional Court must provide one. The aggrieved judges must then return to the Constitutional Court, claiming a constitutional violation because there is no legal remedy for a legal wrong. The Court would then have to take up the matter again. But what will the Court do in a case where the obvious remedy is beyond the Court’s competence because it does not have the power to annul presidential orders? We don’t know.

Most crucially, however, it will take some time for the fired judges to find out if the labor courts will give them a remedy and then, if the labor courts don’t, it will take some time for the Constitutional Court to decide the case when it comes back to them. By that time, all of these fired judges will have been long replaced by new judges, making it even harder to reinstate the former judges even if it is their legal right.

This whole problem could have been avoided if the Constitutional Court acted sooner. The reduction in the judicial retirement age was known long before 1 January, while the Constitutional Court still had the jurisdiction to rule on an abstract challenge to the law. Before the president started removing judges, then, the Court could have nullified the law, which was challenged before them in a petition to the Court. But the Court allowed the clock to run out on this power and the law went into effect 1 January with their silence.

Some of the fired judges challenged the law immediately after it went into effect, and there too the Court could have acted quickly. But again the Court waited. The Court has the power to suspend the operation of a potentially unconstitutional law pending a decision, before a law could cause more harm. But the Court did not invoke this power. The Court could also have decided the case quickly to prevent more judges from being fired. But instead, the Court waited an additional seven months as the judges were pushed off the bench.

By the time the Court issued this opinion on the last day of its term, 228 judges had already been removed from office with only 46 judges left on the hit list for 2012. It is much harder to fix a constitutional train wreck after it has already occurred. By now, so many judges have been fired and so many replacements have already been hired that it is hard to know what to do if any judge is ordered reinstated. But that disaster lies at the feet of the Constitutional Court, which could have stopped the judicial firings long before the situation got to this point.

So who won on Monday? Perhaps Viktor Orbán won the biggest victory of all. He can now say to his critics that he has an independent Constitutional Court, one that is prepared to rule against him on a crucial element of his judicial reform plan. But in fact, the decision may have come too late to make any difference to the composition of the judiciary as the Orbán government has already won the facts on the ground.

UPDATE:  A detailed analysis (in Hungarian) of this Constitutional Court decision by a knowledgeable Hungarian constitutional law scholar appears here.     http://www.szuveren.hu/jog/eszkoztelen-alkotmanybirosag

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petofi
Guest
petofi
July 18, 2012 8:23 pm

Orchestrated nonsense!
Let’s not get too excited about the apparent independence of some of the constitutional judges. I wouldn’t be surprised if the Felcsutian dreamed up the whole scenario to give the verisimilitude of independence–a little ‘show-and-tell’ for the benefit of the IMF and the EU. The net result will be to invite even stricter laws to bring everything ‘into line’ as the soccer nut has said.

The real world has no idea of the indignities Hungarians can stoop to.

Member
July 18, 2012 8:46 pm

I wouldn’t hold my breath for Ader to withdraw the orders. He is Orban’s pet.

I’m wondering what will happen when the labor courts will decide in favor of the dismissed judges. The new judges have to be let go, but then they will go to the labor court too? Compensation on tax payer money? Cute.

I don’t think it is a “conservative” view not ruling against the presidential orders. Not in the sense of honoring tradition. This is Hungary not the US. There is no tradition. Those politely called “conservatives” will make a decision from fear for their careers.

petofi
Guest
petofi
July 18, 2012 9:21 pm

Mutt Damon :
I wouldn’t hold my breath for Ader to withdraw the orders. He is Orban’s pet.
I’m wondering what will happen when the labor courts will decide in favor of the dismissed judges. The new judges have to be let go, but then they will go to the labor court too? Compensation on tax payer money? Cute.
I don’t think it is a “conservative” view not ruling against the presidential orders. Not in the sense of honoring tradition. This is Hungary not the US. There is no tradition. Those politely called “conservatives” will make a decision from fear for their careers.

I agree, Mutt: no independence or precedent in Hungary.
And imagine, the chief justice rules against Orban and it’s NOT
set-up? Gimme a break-

Andrew Arato
Guest
Andrew Arato
July 18, 2012 9:58 pm
I find the post outrageously one sided. The author has earlier predicted that Hungarian constitutional judging is now defunct. While the jurisdiction has indeed ben tampered with, and the Constitutional Court was badly packed nevertheless much of the power formally survived. the history of packed courts from elsewhere also indicates that even political appointments cannot always be relied on. The author was told all this repeatedly, but she persisted in making the most extreme claims over and over again. Now comes a major CC decision against the Orban government, and she tries to entirely explain it away. Only the principles won, not the litigants. They are moreover devalued by being put in the position of Marie Antoinette’s “cake” (as in let them eat…) But the business of the Hungarian Constitutional Court is above all principles, and it is other instances that must come up with the remedies. On the level of principles, on a very preliminary reading the HCC did two remarkable things. First, it applied the historical constitution so-called whose presence in the Basic Law many have rightly objected to as vague and traditionalist in an explicitly liberal manner. Since Hungary had judicial independence in the 19th Century already,… Read more »
An
Guest
An
July 18, 2012 10:24 pm

Well, the Constitutional Court deliberated for seven months and finally made the decision two weeks AFTER the judges were fired. Professor Scheppele has rightly pointed out that the Court did not use its power to declare the law unconstitutional and thus avoid this blatant political meddling with the judiciary. And this is not the first time the Constitutional Court acts like this… similar was the case with their decision on the pension funds. They only make their decisions only after the political decision practically cannot be reversed.

Now, this may be a coincidence or may be that the judges brought in by Orban to the Constitutional Court successfully stall the cases up until this point. Orban is the clear winner in this case, as he can maintain the facade of a functioning democracy, yet he can still change the institutional setup to his favor. He can “constitutionally” dismantle democracy. It doesn’t get any better than that.

I think it is a shame that the Constitutional Court is not willing to see this and act to save the country’s democratic institutions… whatever their reason may be.

Member
July 18, 2012 11:25 pm

Andrew! Are you saying that Marie Antoinette wasn’t totally oblivious to the suffering of the peasants? It wasn’t her job to feed their children anyway. Instead she just contributed to their education with fine examples of the French gourmet bakery tradition. I think she visited them again during the next famine to talk about the Galette des Rois … Yum!

gdfxx
Guest
gdfxx
July 18, 2012 11:52 pm

The principles cannot win without the practical consequences.

If the US Supreme Court had to decide on the constitutionality of a method of execution in a death sentence, and the decision was made after the execution, the dead person is not having any benefits of the decision.

As Prof. Scheppele points it out, the court had the power to suspend the process (as far as I know – although I am not a lawyer – in the US all disputed actions are suspended if possible – unless the case started as a reaction to an action – when the Supreme Court accepts a case). But it did not use its power and thus 228 judges had been replaced unconstitutionally.

And when one reads the description of what it would take to reverse these firings after they were declared unconstitutional, one thinks that this is happening in a Kafka novel.

petofi
Guest
petofi
July 19, 2012 6:12 am

gdfxx :
The principles cannot win without the practical consequences.
If the US Supreme Court had to decide on the constitutionality of a method of execution in a death sentence, and the decision was made after the execution, the dead person is not having any benefits of the decision.
As Prof. Scheppele points it out, the court had the power to suspend the process (as far as I know – although I am not a lawyer – in the US all disputed actions are suspended if possible – unless the case started as a reaction to an action – when the Supreme Court accepts a case). But it did not use its power and thus 228 judges had been replaced unconstitutionally.
And when one reads the description of what it would take to reverse these firings after they were declared unconstitutional, one thinks that this is happening in a Kafka novel.

As I have said before, Hungary is becoming, more and more,
what a Kafka nightmare must have been like…

petofi
Guest
petofi
July 19, 2012 6:18 am
Andrew Arato : I find the post outrageously one sided. The author has earlier predicted that Hungarian constitutional judging is now defunct. While the jurisdiction has indeed ben tampered with, and the Constitutional Court was badly packed nevertheless much of the power formally survived. the history of packed courts from elsewhere also indicates that even political appointments cannot always be relied on. The author was told all this repeatedly, but she persisted in making the most extreme claims over and over again. Now comes a major CC decision against the Orban government, and she tries to entirely explain it away. Only the principles won, not the litigants. They are moreover devalued by being put in the position of Marie Antoinette’s “cake” (as in let them eat…) But the business of the Hungarian Constitutional Court is above all principles, and it is other instances that must come up with the remedies. On the level of principles, on a very preliminary reading the HCC did two remarkable things. First, it applied the historical constitution so-called whose presence in the Basic Law many have rightly objected to as vague and traditionalist in an explicitly liberal manner. Since Hungary had judicial independence in the… Read more »
Marcel Dé (@MarcelD10)
Guest
July 19, 2012 6:55 am

The post and the comments are a pleasure to read and think about.

If I’m not wrong, the articles Mr. Arato is referring to are to be found here.

alkalmilag-rendes
Guest
alkalmilag-rendes
July 19, 2012 8:38 am

Little patience old-timers!
Even Eva is tempted to be a little harsh with some of the contributors.
Andrew Arato, Kovach and me are sometimes in a hidden agreement with the Petofis and Some1s etc., and there is a need for a friendly communication to hammer out a clarified agreeement.

The exchange has to remain friendly, and civil.

Thanks for all’s understanding.

Member
July 19, 2012 8:56 am

alkalmilag-rendes :
Little patience old-timers!

I think the posters were very patient. Considering that Andrew is telling us to appreciate a disfunctional, useless, pussy constitutional court, while the 300 judges are canned right in front of our eyes.

Andrew Arato
Guest
Andrew Arato
July 19, 2012 9:10 am

The level of this blog is below contempt. Please do not send me this thrash anymore.

Andrew Arato

LwiiH
Guest
LwiiH
July 19, 2012 9:07 am

Mutt Damon :

alkalmilag-rendes :
Little patience old-timers!

I think the posters were very patient. Considering that Andrew is telling us to appreciate a disfunctional, useless, pussy constitutional court, while the 300 judges are canned right in front of our eyes.

Isn’t this fun? Who’s right? Clearly the rules are dysfunctional so was the ruling from an independent court or contrived… Given that Judges, when put into these powerful positions often rise above politics, then this ruling was independent… sometimes good comes from something that broken

An
Guest
An
July 19, 2012 9:46 am

Oh, well, maybe the comments are not on par with academic discourse…. what a surprise. Nice attitude, Professor Arato.

Andrew Arato
Guest
Andrew Arato
July 19, 2012 9:49 am

Whatever. Just dont send them to me. I have been trying desperately to cut them off, but I cannot.

Kim Lane Scheppele
Guest
Kim Lane Scheppele
July 19, 2012 10:09 am
Let me say something in defense of parts of Arato’s post. He is right that the Constitutional Court can still be an important institution in Hungary and that its decisions have a certain moral force, both for the other courts in the Hungarian system and also for the European courts. It really is nothing short of a miracle that the Court was able to do as much as it did in Monday’s decision, given that there is a clear majority of justices on the Court now who are publicly affiliated with the governing party and given that the government has tried repeatedly to sideline the institution. As Arato points out, I have gone on record as predicting that once the Court was packed with new judges, it would be unable to do anything. And I have been wrong on a number of occasions. The Court has actually made important non-politically-correct rulings in several cases over the last eight months: the media, churches and prosecutor cases last December and now the student fees and judicial retirement cases in the last few weeks. In all of those cases, the Court ruled against the government policy and required the government to change its… Read more »
An
Guest
An
July 19, 2012 10:11 am

Andrew Arato :
Whatever. Just dont send them to me. I have been trying desperately to cut them off, but I cannot.

You probably hit the “follow” button in the right bottom corner of the page and WordPress started to send you email updates of the blog. Now, if you have the first email from WordPress confirming that you started to follow this blog, at the bottom of the email there is a link that says “Modify your Subscription Options.” That will take you to the page when you can delete your subscription to this blog.

I’d assume there should be a similar link at the bottom of all emails you receive.

Louis Kovach
Guest
July 19, 2012 10:16 am

At some point Ms Scheppele has to decide if she writes as a constitutional scholar or as a biased journalist. In my opinion the posting is in the latter category.

Pete H.
Guest
Pete H.
July 19, 2012 10:22 am

I was happy to hear a different perspective from Arato. However, he must realize that this is a blog and anyone can post on it. Some people will respond with more or less civility. Arato needs to grow a thicker skin if he wants to engage in the wider range of discourse one expects to find on a blog.

Dr. Scheppele thanks for your insights on the Hungarian system and Eva for your detailed posts over the last few months.

Pete H.
Guest
Pete H.
July 19, 2012 10:36 am

Louis Kovach :
At some point Ms Scheppele has to decide if she writes as a constitutional scholar or as a biased journalist. In my opinion the posting is in the latter category.

She obviously writes as a constitutional scholar. Her understanding of the Hungarian judicial system is far above any journalists perspective. Her detailed analyses have applied constitutional theories to the present system and she objectively comes to the conclusion that the Fidesz government has weakened the judicial system. She is also willing to concede when she is wrongs as she did in comment #20 and to clarify her statements when challenged by other experts. This is not the type of behavior that is typically engaged in by a “biased journalist”.

It is my opinion that your negative opinion of Dr. Scheppele is due to your personal bias and your discomfort with criticisms of the current Hungarian government.

Louis Kovach
Guest
July 19, 2012 11:29 am

Pete H. “It is my opinion that your negative opinion of Dr. Scheppele is due to your personal bias and your discomfort with criticisms of the current Hungarian government”

You are wrong. Ms. Scheppele appears to promote “activist” judgeship. I do believe that courts should not be encroaching on the legislative process.

Member
July 19, 2012 12:23 pm

Louis Kovach :
Ms. Scheppele appears to promote “activist” judgeship. I do believe that courts should not be encroaching on the legislative process.

Louis, what part of Professor Scheppele’s assestment did lead you to the conclusion that she’s promoting judicial activism?

This “encroaching on the legislative process” is the main hat trick of the Orbanites. Alea iacta est, now bugger off. This is what An was talking about: destroying democracy “constitutionally”. Somebody throws a wrench into the gears and by the time the Honorable Justices wake up it’s all done. Then all you get is a picture of a brioche (principles).

The constitutional court is supposed to have effect on the legislative process. That’s the idea! This is not activism. I’m sorry Andrew, but there is nothing sacred about these guys right now.

petofi
Guest
petofi
July 19, 2012 1:02 pm

Louis Kovach :
At some point Ms Scheppele has to decide if she writes as a constitutional scholar or as a biased journalist. In my opinion the posting is in the latter category.

Mr. Louis,

Do you itch a lot?
Because stupidity seems to be breaking out all over you…

petofi
Guest
petofi
July 19, 2012 1:08 pm

Louis Kovach :
Pete H. “It is my opinion that your negative opinion of Dr. Scheppele is due to your personal bias and your discomfort with criticisms of the current Hungarian government”
You are wrong. Ms. Scheppele appears to promote “activist” judgeship. I do believe that courts should not be encroaching on the legislative process.

Not so simple, Mr. LK. Judges interpret law when necessary. That act is subject to interpretation itself depending on how far the judge(s) deviate from the norm. If I remember right, constitutional judges both follow and lead. It’s a complex process.

petofi
Guest
petofi
July 19, 2012 1:16 pm

alkalmilag-rendes :
Little patience old-timers!
Even Eva is tempted to be a little harsh with some of the contributors.
Andrew Arato, Kovach and me are sometimes in a hidden agreement with the Petofis and Some1s etc., and there is a need for a friendly communication to hammer out a clarified agreeement.
The exchange has to remain friendly, and civil.
Thanks for all’s understanding.

Well, transplant yourselves from Canadian society to Hungary and, though you speak the language, find your rights systematically pulled from you like chicken feathers from a chicken….and see how mellow you’d be. My anger issues from the sheer lunacy of the
average Hungarian who still backs a government that is hell-bent on destroying the country.
Another source of anger is to find that in the 21st century a country exists in central europe
that mocks the judeo-christian heritage and civilities for no ostensible reason. Don’t people
know any history? Hasn’t pre-war II Germany gone down this road already?

Louis Kovach
Guest
July 19, 2012 2:21 pm

Petrovics: “Do you itch a lot?
Because stupidity seems to be breaking out all over you…”

You are so adroit in addressing the topic. With this type of behavior do not be surprised that the “people” do not like you and your theories.

Justin
Guest
July 19, 2012 2:32 pm

Whether the judges leave now or in 8 years when they retire, they will eventually be gone. At that point, the Hungarian judiciary will be clear of judges that swore allegiance to an undemocratic regime.

petofi
Guest
petofi
July 19, 2012 2:43 pm

Louis Kovach :
Petrovics: “Do you itch a lot?
Because stupidity seems to be breaking out all over you…”
You are so adroit in addressing the topic. With this type of behavior do not be surprised that the “people” do not like you and your theories.

Louis Kovach :
Petrovics: “Do you itch a lot?
Because stupidity seems to be breaking out all over you…”
You are so adroit in addressing the topic. With this type of behavior do not be surprised that the “people” do not like you and your theories.

So, Louis, you are now the spokesman for ‘the people’, are ya?

Member
July 19, 2012 2:44 pm

Justin :
Whether the judges leave now or in 8 years when they retire, they will eventually be gone. At that point, the Hungarian judiciary will be clear of judges that swore allegiance to an undemocratic regime.

We don’t have the right to question their integrity based on their age.

petofi
Guest
petofi
July 19, 2012 2:47 pm

Regarding ‘being liked’….I don’t care if I am. I do care if I can get people to think about
things.

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