Kim Lane Scheppele, Princeton University
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 judges were set to retire at different ages. (Decision 33/2012. (VII. 17.) AB határozat.)
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?
In the 1990s, the Hungarian Constitutional Court was one of the most powerful courts in the world and successive Hungarian governments always tried to follow its decisions (though sometimes it took a while to muster the relevant 2/3rds majorities). In a unicameral parliamentary system, the Constitutional Court was the primary check on legislative majorities.
Now, as Prime Minister Viktor Orbán rushes to consolidation his power, the Constitutional Court has been a key target. First, the procedure for electing judges was changed, so that the votes of Orbán’s Fidesz party alone were enough to put judges on the bench without the support of any opposition parties. Then, the number of judges was expanded from 11 to 15 which, combined with the opportunity to fill some scheduled vacancies, permitted the Orbán government to name seven of the judges in its first year and half in office. Finally, the old actio popularis jurisdiction was eliminated and a German-style constitutional complaint was instituted with very limited options for abstract review outside that framework. While this allows individuals to challenge the constitutionality of concrete judicial decisions for the first time, it also reduces the primary leverage the Court used to have – which was to act immediately in abstract review proceedings to nullify laws before they did much damage. Admirable though the constitutional complaint mechanism is, the Court’s new jurisdiction makes it much more difficult for it to reach constitutional issues involving separation of powers, independence of expert bodies and issues of institutional structure.
Given that the Court’s competence had been changed so much and the new judges had not yet proven their independence from the government’s agenda, the decision on judicial retirements was surprising. Most observers thought that the government’s judges could block any challenge to crucial pillars of the Orbán centralizing program. Politics aside, this case should have been easy given the Court’s own precedents, since the Court had ruled on a number of previous occasions that the legal security implied in the concept of the rule of law required that major legal changes affecting the life plans of individuals be phased in gradually.
In the judicial retirement case, 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. Some of those who joined the controlling opinion have generally been thought of as conservatives likely to side with Fidesz on issues of substance even if they did not owe their appointment to the Orbán takeover, so this outcome was not obvious in advance.
The decision on judicial retirements 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 the rule of law, the constitution and its own precedents. The Court not only found that the new retirement age was constitutionally dead on arrival, but it said that the law was unconstitutional from the moment it came into force on 1 January 2012. Constitutionally speaking, it was as if the law never existed. That would seem to be a total victory for those who have opposed Orbán’s attempt to control the ordinary judiciary.
But the decision is also bad news because the Court waited so long to make it that most of the judges have already been fired, and the Court decision provided no sure way for them to get their jobs back. Now the judges are set to begin an arduous process to claim their victories, with no guarantees that they can resume the jobs from which they were unconstitutionally fired. In fact, the government has already shown every sign of evading the decision of the Court in practice.
First, I’ll explain the decision. Then, I’ll explain the evasion.
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 sudden 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, which the constitution required with regard to the key features of judicial appointments. Finally, the retirement age, though generally forcing judges to retire at age 62 instead of at age 70, was different for different categories of judges in the pension law and there had been no adequate explanation for why judges should be treated differently, depending on their prior expected dates of retirement.
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 long 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 it had never been altered before now. The argument about the 1869 law was fascinating because the new constitution instructs judges to consider the “historic constitution” in interpreting what the constitution means. This was the first decision in which the new Hungarian Constitutional Court did so. It is an admirable reading of Hungarian history, which has many elements that should lead contemporary Hungarian constitutionalists to be rightly proud. (Perhaps, however, this was not what the government meant when it referenced the historic constitution in the new constitution’s preamble. )
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 continuing judicial appointment. As a result, judges may never be removed from particular cases, but the constitution does not protect them from being removed from their positions by a general law. As a statement of what judicial independence requires, this is actually quite shocking. But can judges be independent if they are faced with sudden removal from office as soon they leave their courtrooms, as long as no one removes them from a specific case while the case is going on? This seems to imply that the government is not violating judicial independence as long as the state official bearing the firing notice is waiting outside rather than inside the courtroom.
Others (Justices Szívós, Lenkovics and Szalay) noted that the retirement age was lowered both in the pension law and also in the transitional acts on the constitution, which have since been incorporated into the constitution itself. They said that the fact that a reference to the new judicial retirement age was put into the constitution itself means that the Court cannot review it. These justices had a point: different sources of law said different things on the retirement age. But the constitution only says that judges must retire by the “general retirement age” and that is precisely what the Court’s controlling opinion said was inadequately justified in the new pensions law because in fact no retirement age was “general.”
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). Justice Pokol may have had a point about the new constitutional complaints procedure which requires exhaustion of remedies before it can be invoked; that said, had judges waited to go through the labor courts first, the labor courts had no jurisdiction to declare this clearly unconstitutional law unconstitutional – so the labor court judges could have done nothing to remedy the situation except refer the case to the Constitutional Court in any event. Justice Stumpf took the position that the damage was done already so there was no case to answer. That is truly a scary argument that one hopes we will not see again.
So, the judges who hit the precipitously early retirement age won. But what exactly did they win? The law under which they were fired has been declared unconstitutional from the first day of its operation. But the judges are all still out of their jobs.
On the question of remedies offered by the Court decision itself, 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 any meaningful relief. 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. In the judicial retirement age case, the Court did not have the power to nullify all of the presidential orders through which the judges were fired, but it could have done so in the specific cases under review. The Court did not even do that. Those orders – and all of the others – still stand even while the law on which the orders were based has been voided. The Court provided no meaningful remedy in its opinion, not even to those directly involved in the case, even though it could have granted at least those judges some relief.
The judges’ actual fate in the retirement age dispute is important – and not just for the judges themselves. 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 its first year in operation, 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 nearly 300 judges removed from office this year.
The change in the retirement age occurred against a backdrop of broader institutional change in the ordinary judiciary. 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, who now start their judicial lives on probation, which means that true job security does not kick in for some time 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 head of the National Judicial Office moved up into higher ranks hand-picked sitting 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 has 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. After the Constitutional Court’s decision, the European Commission asked the ECJ to expedite the case which the ECJ has agreed to do. 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 appeared to put the brakes on the relentless drive of the Orbán government to control the judiciary. But once the law under which the judges have been fired has been struck down, what then? In his immediate reaction to the Constitutional Court decision, Prime Minister Orbán said defiantly that “the system remains.” In short – nothing about the judicial reorganization would change fundamentally as a result of the Court’s decision.
Perhaps Orbán already knew that he did 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 and not any presidential orders through which the judges had been fired. In an ideal world, national President János Áder should respond by withdrawing the orders to comply with the Court’s decisions because the legal basis for those decisions has disappeared. But the president has so far refused to do to so.
Worse yet, there are signs that the Orbán government was tipped off to the decision of the Constitutional Court before it was made, as has occurred before. Back in December when the Constitutional Court issued three decisions against the Orbán program, the Orbán government acted preemptively, withdrawing one of the unconstitutional laws – which it then reenacted it after Court’s jurisdiction to review it had lapsed. The government also amended the constitution to avoid the sting of another decision, putting the provision beyond the Court’s further review. Only one of the Court’s three December decisions, therefore, actually had any bite. In advance of the judicial retirement decision, the government also acted preemptively to avoid the most obvious consequences of the Court’s decision. President Áder issued orders on 7 July prospectively firing all judges who would hit the retirement age through 31 December under the staged introduction of the new upper age limits. In short, Áder prospectively fired the last of the judges crucial to the Orbán plan right before the Court decision was handed down. And even though those newly fired judges are still in office now, Áder is refusing to retract the orders under which they were prospectively removed from their jobs.
In short, according to the President of Hungary, “the system remains.”
On 18 July, the head of the National Judicial Office, Tünde Handó, responded to the Constitutional Court decision by telling the fired judges that they could appeal their individual dismissals through the labor courts. One would think that, since the law on the retirement age was the only reason for the judges’ dismissals, labor courts would be able to reinstate them. 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, especially now that Handó has the unilateral power to reassign all of the labor court judges to worse jobs without having to give any reasons for doing so. If the labor court judges claim that they do not have the power to rule on presidential orders, then the fired judges will get nothing even though they won at the Constitutional Court.
But suppose that the labor courts do give the judges their jobs back. Handó issued a statement on 24 July that reassured the new judges hired and promoted in 2012 that, regardless of what the labor courts decide, the new judges would be able to keep their jobs. So even if the fired judges win their cases at the labor courts, they will not be reinstated to the same jobs they left, which have already been filled with Fidesz appointments. Instead, under the new judiciary acts, Handó will have the power to assign any reinstated judges wherever they are needed – which could well be to irrelevant courts in the boonies. Or they could go onto their old courts but be assigned no cases at all, because her appointees control the assignments of cases. In short, there is every sign that Handó intends to carry out Orbán’s edict rather than the spirit of the Constitutional Court decision. And so, “the system remains.”
While the government bears the chief responsibility for failing to carry out the spirit of the Constitutional Court decision, this whole problem could have been avoided if the Constitutional Court had 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 voided the pension law, which was already 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.
Some of the fired judges challenged the law as soon as it came into force, using the new constitutional complaints procedure. There too, the Court could have acted quickly – but it did not. 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 more and more judges were pushed off the bench.
By the time the Court issued this opinion on the last day of its term in July, 228 judges had already been removed from office with only 46 judges still left on the hit list in 2012. And, perhaps because he had been tipped off to the Court’s judgment, President Áder issued the order firing the remaining 46 judges a week before the Court’s decision became public. By the time the Court decided, then, all of the judges slated for immediate removal in 2012 were already fired and most of their replacements were already hired. Even a rule-of-law-respecting government would have been hard-pressed to come up with a solution that did not disrupt the careers of either the new or the old judges. This disaster – waiting until the damage was done before issuing a ruling – lies at the feet of the Constitutional Court, which could have stopped the judicial firings before they ever occurred. The Constitutional Court, in short, practiced, “new judicial deference” to the detriment of the fired judges –and so to the independence of the judiciary as a whole.
So who won in the judicial retirement age decision? 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 crucial elements of his program. But the decision came too late to make any difference to the composition of the judiciary. In fact, Orbán’s first reaction to the Court decision is the one that has been carried out by all of the officials of his government. Despite the Constitutional Court’s ruling, “the system remains.”