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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77 comments

  1. Louis Kovach :
    Dr Balogh; “Mr. Arato, I was expecting more from you. No one is sending any trash to you. Moreover, I take exception of anyone calling Hungarian Spectrum and thus indirectly me “trash.”
    Well, Prof Arato has reasonably good credentials, somewhat better than the blog participants. :http://www.newschool.edu/nssr/faculty.aspx?id=10212

    Just out of curiosity Kovach.. How do YOU know what credentials the participants of this blog have? You are creeping me out now. WHere are you getting your information that YOU always have the data, historical info (right or wrong). I think you just underscored why people are reluctant to disclose their real names and credentials here. Was this a slip up or you really do know even under our “disguises”?

  2. Mutt Damon :
    Professor Arato should apologize and come back to comment on this blog by accepting us as we are. I believe I speak for all of us.

    Mutt, at this time you do not speak for me. Frankly, I was reading with interest Mr Arato’s point of view even though I do not share his opinion. I never did like “scholars” trying to gain points by talking a language that would separate them from those who they are taking to. At this blog I found a diverse group of participants with various backgrounds, from various demographics, like REAL life. Hungary is not created for scholars or for lawyers, but for people who sell shoes, and vegetable, who harvest the land, who make movies and write books, and so forth. Suggesting that only those who have the same scholarly background that Mr Arato should participate in a public discussion that Mr Arato participates in is not only rude from Mr. Arato, but shows the kind of ubermensch disposition the whole Orban government represents. It is like saying that people who did not studied cinema should not express their opinion about a movie, or point out that the camera was out of focus.
    Mr Arato’s arrogance is not something he should apologize for. Simply he is arrogant, and I do not feel the need to engage him in any way. Maybe about cooking (although I am an amateur) or about movies, because I know more about that than he does for sure!

  3. President Ader’s office announced today that the president refused to withdraw the orders. He will not comply with the Court’s decisions.

    Of course not. He himself signed already 40 of the pink slips.

  4. Mutt Damon :

    President Ader’s office announced today that the president refused to withdraw the orders. He will not comply with the Court’s decisions.

    Of course not. He himself signed already 40 of the pink slips.

    Of course, he refused. I didn’t expect anything else. I wonder when these guys will have the guts to turn against this man whose mental state by now can be seriously questioned.

    Anyone who knows Hungarian, please watch Gábor Fodor on Egyenes beszéd. I must mention first that Fodor is not one of my favorites but this time I was impressed. He is outraged what Orbán said today about the economic crisis that might not be handled by a democratic regime. The very fact that such things even occurs to him is outrageous. I have never seen Fodor that passionate. Normally he is milk toast. But this time. He was passionate and fired up. Here is the link: http://atv.hu/cikk/video-20120726_fodor_gabor

  5. Mutt Damon :
    President Ader’s office announced today that the president refused to withdraw the orders. He will not comply with the Court’s decisions.
    Of course not. He himself signed already 40 of the pink slips.

    I would be curious to read Prof. Arato’s comments to the news.

  6. gdfxx :

    Mutt Damon :
    President Ader’s office announced today that the president refused to withdraw the orders. He will not comply with the Court’s decisions.
    Of course not. He himself signed already 40 of the pink slips.

    I would be curious to read Prof. Arato’s comments to the news.

    On the basis what I learned about the man he would never admit that he was wrong.

  7. I think it’s unfortunate Prof. Arato was so–in my view, unnecessarily–offended by the dissenting views expressed here. This is an open blog and as such there will be a wide variety of opinions and levels of articulateness. It certainly in no way merits the designation of “trash”. That was truly unfortunate. I know that without this blog I would not be up to date as much as I am in terms of what is going on in Hungary– sometimes I just don’t have the energy to plow through the articles in the Hungarian press and thus really appreciate the clear updates. I would imagine it must take an enormous amount of time and effort to keep this blog going.

    At the risk of repeating myself, I would remind Mr Arato that this is not a forum exclusively for “scholars”, let alone constitutional ones. Some of the comments tend to be humourous, but I have observed myself people in Hungary falling back upon that time-honoured Eastern European coping strategy, humour, in these intensely difficult times. Also, I would just state that it is one thing to examine laws on paper and another to be living in a society. Things are more grim now in Hungary than I personally have ever seen them; people’s rights have clearly shrunk with alarming speed to much less than the minimum. Most of my friends are terrified to sign petitions as they know they for a fact they will be fired from their jobs the very next day. More than a few people have told me–and these are no socialists–that things were actually much better during the Kadar years.

    I am not compotent to address any of these constitutional issues in depth, but think I can safely observe that the Orban government has played fast and loose with constitutional law, and it is to Professor Scheppele’s credit that she has been trying to bring this to the attention of the wider Anglophone public.

  8. I would also just add that the legislative specific pattern that played out in this case–in which a very bad constitution/legislative decision is enacted, then retracted, but only well after the damage is done–is one I have observed on a micro-level in Orban’s Hungary countless times. This pattern deserves attention.

    To cite one brief example: people are hit with a “tax” out of the blue–say, for something like having a parking space in a garage (this actually happened to friends of mine)–but this “tax” also comes with a five-year retroactive validity, so that out of nowhere people are presented with a huge tax bill. Well, in this case, my friends fought it, and ultimately did not have to pay the “garage tax”, but quite a few people did pay and after the decision was rescinded, of course, they never got their money back.

  9. London Calling!

    Hongorma: You are so right – we are lucky to have this ‘Anglophone’ blog – even if it is for differing reasons. For me it gives an insight into the country of my partner – and it helps with my understanding of the Hungarian psyche and the country! (And boy! does it need understanding!)

    And your contributions too are very illuminating from a ‘man-on-the Győr-omnibus’ perspective.

    Regards

    Charlie

  10. Thank you, Charlie. This blog, I might add, is one of the very few at all where civilized discussion takes place around some very wrenching issues that really polarize people. Which made Prof. Arato’s unkind comments even more shocking, actually.

    Disclaimer: I once attended a few lectures by him. Seemed an eminently civilized and charming individual. I am mystified and dismayed.

  11. Dear Hongorma and CharlieH,
    even Han Solo got bored sometimes in star wars, so Prof. Arato might just have had a difficult day.

    What seems to be more factual, not commenting now on the legisnative level is what is included and excluded in and from the basic-fundamental law – let alone a “Constitution”. As far as I can remember, Chief Justice Marshall teaches us that it is up to the Constitutional Court (as the final interpeter) to say what the ‘law’ is:

  12. London Calling!

    Lou Reed’s solo version on Transformer is the only version.

    Regards

    Charlie

  13. Lupus from Woodisch calling Charlie.
    It might the case, a ‘well-roared, lion!-case’, but then you might miss the interpretation clause (you make it what it is) at the end of the video i linkedin. Ceterum censeo: varietas delectat.

  14. Lupus,

    with this Latin proverb you indirectly refer to Saint Stephen’s written legacy to his son, count Emerich? Did he mean ‘e pluribus unum’ or something similar?

    You seem to be as foggy as the air over the Danube in Budapest in the fall or winter. Could you clarify this two-fold Latin sentence you wrote down? Thanks.

    Best,

    TD

  15. Dear timeodanaos,

    it was a nice try, but Vergil and the Vatican Museum taught me to handle such gift-questions with utmost care.

    I have no idea what was in Stephen’s mind when he wrote that. And i cannot follow your ‘e pluribus unum’ association. Would you explain that?

    So, until then, I cannot answer your question. Btw: the sentence you mentioned just came into my mind without much thinking.

    Best,

    Lupus

  16. Lupus :

    I have no idea what was in Stephen’s mind when he wrote that.

    I was following the discussion only superficially, but I think you are talking about St. Stephen’s reference to a strong country that is multi-ethnic and multi-lingual.

    I suggest a very simple explanation. As you perhaps know Stephan invited all sorts of foreigners into the country. For example, Bavarian knights whom he gave very generous gifts of lands and bestowed on them all sorts of privileges. He also depended on foreign priests from Italy, from Moravia, and elsewhere.

    I suspect the Hungarian clans didn’t like that influx of foreigners and their new and different ways. Therefore, I guess, the king had to give some kind of explanation for his importations of foreigners into the country. So, he came up with this “excuse.”

    Later, in the nineteenth and twentieth centuries, this one sentence in Stephen’s “Remonstrances” to his son came handy as a propaganda tool for Hungarians for the justification of Hungarian supremacy within Greater Hungary.

  17. Dear Eva S. Balogh,

    to quote a classic: ‘how absurdly simple’. Thank you for your illuminating explanation. This is a precious gift, not a Trojan horse.

  18. The arguments are moot. The CC will be soon packed with two other judges and the majority will be ensured. Sure, they will from time to time prick the government a little, so as to not look prejudicial (they want to show that not just to the outside world but they also need the personal phantasy of being independent of the revered Orban) but will not act against the present government in any serious manner.

    [It's academic now, but look for the decision of prior voters' registration. I am predicting that the restrictions will either completely accepted or in a minor part struck down which again will show how strong and independent the court is, while leaking the planned repeal so that Orban can amend the constitution the next day the resolution comes out, to override the minor repeal. This way the court's prestige will remain (they think, but the general public has no idea anyway) but in practice no power constituent (mostly Orban) will be worse off. They will ensure the Orban will have a shot wit his own gerrymandered districts, restricted voter base etc. etc.]

    In addition, any new government (even if it possessed a 2/3 majority) will be quickly castrated if it wanted to even govern or wanted to change the present constitutional set up (especially if a new government would give back the now lacking jurisdiction – however no sane new government would give back any jurisdiction to a court that is fiercly loyal to Orban’s commands, where leaking of info to party media is rampant etc.).

    This decision was an anomaly, not something that proves how healthy the the CC is. I agree with the point that Orban can now ‘prove’ to people not acquainted with the realities how independent the judiciary is, when in fact he will continue to have complete control over it even in opposition.

    This Arato guy is a bit pompous, but whatever. He sounds pretty coopted to me who looks the Hungarian situation from afar while sipping double lattes in a Fifth Avenue cafe.

  19. Dear Nutty Prof,

    On the contrary, I think the arguments are riper than ever. The CC at the end of its decision openly claimed that it has jurisdiction to review constitutional amendments [incorporating judge Bragyova's and Kiss' dissenting opinion in 61/2011. (VII. 13.) AB Decision], so the second amendment is no cure for Orbán’s attack against the judiciary.

    Moreover, the amendment only deals with the time-factor (not remedying the above-65-judges-claim), does not address the property and the right to bear public official issues. Moreover, on Tuesday, the ECHtR handed down a right to be heard decision that can be applied to the Hungarian judiciary’s situation.

    I am also aware that next year two or three (what if the ombudsperson will a current CC judge elected before 2010? Westerners, including the Union and the Venice Commission will have no room to complain, yes, that would be tricky as Run DMC raps) new CC judges will enter office. But, in politics, one year or even half a year might change a lot. Tum spiro spero.

    Especially, knowing that Strasbourg and Luxemburg courts are not seated in Hungary.

  20. Dear Lupus, I believe that you are being very optimistic. The problems with the Hungarian CC run much deeper than this single judgment, therefore optimism is by no means warranted. Re the judiciary case, one might indeed expect some (though maybe even conflicting) resolutions coming from various other courts, but will the dismissed judges work again? Or will the process look like the IMF ‘negotiations’? Meanwhile time is running out (obviously this is a strategy) and the judges get older, effective remedy is a big question. But most of all, will the CC look as a court which is able to deliver effective legal remedy?

    When something is being said the question always is what is it that is not being said? (Although I guess Freud mean this in a different way). While everyone is dealing with the consequences of this single judgement, no attention is being paid to other – more pressing and more fundamental – issues (or even concrete cases) related to the CC. The ridiculous quality of the constitution, the astonishingly low professional quality (as reflected by the dissenting opinions) of a significant number of judges (but soon they will be the majority), the number of judges (15 for a country like Hungary where there are only 9 judges in the US and the deal with statutory issues as well) which is very difficult to manage and thus work out a coherent jurisprudence [and what do all of these facts reflect?] etc. etc.

    The complete rearrangement of the 1989 constitutional setup which constitution in no way hindered effective government and of course was not ‘stalinist’ (as claimed in a blatant political lie by the present government) was completely unwarranted. However, obsessive dealing with power issues (for which the lawyer-heavy Fidesz has arguably more affinity) as opposed to policy issues, resulted in the current chaos. And the chaos, I am afraid, will only grow.

    Try as they might (though they did not even try), the economy will not improve and thus unemployment (real, not the bogusly calculated) and frustration will grow. What this leads to is anyone’s guess, but I predict huge – economic and constitutional – changes within 4 years (the economy might survive the next two years without changes, though by getting into bigger recession, but beyond that it is not possible to delay the day of reckoning).

  21. You paint a scary picture here, dear prof – let’s hope (in the interests of all Hungarians) that it won’t be that bad …

    I’m still hoping – but I really don’t know for what. Or should we just say Après nous, le déluge ?

  22. Dear wolfi nutty prof.,

    i completely agree with nutty prof.’s analysis, but as a lawyer i cannot presume anything else, but that the CC will treat its decision promuncing its authority to quash unconstotititional constitutional amendment as a precedent. hope it is not a quadi court yet.

  23. Well, I am also afraid that the CC will quash amendments to the constitution especially if it came from a new government or a coalition with 2/3 of the votes.

    In other words, if there would be a wholesale amendment of the current constitution (e.g. like the one linked here: http://www.tordaicsaba.hu/12-31-alkmod.pdf, which by the way I have not reviewed at all) just to quickly make it such that a non-fidesz government could live with it (i.e. not a new constitution but really the minimum jut to make it coherent), I am pretty sure that the president – instead of signing of the bill – would quickly send the whole amendment to the CC which would duly declare it unconstitutional on variosu grounds and order a complete rework. First, the decision would come in months (the CC could play with this if they sat on it for 5-6 months – especially if the bill is long enough) and until such time the government would be completely shackled (when any new government has only a few precious months in which to go ahead with any politically necessary but unpopular moves) but secondly, the CC surely would make it almost impossible to change the set up and govern.

    Thus the fist step would be a constitutional amendment which would take away the right of the president to send the bill the CC before signing it (he could still have the right to send it afterwards). The way to do it is to refermulate the entire section so that the list does not contain this right any more (instead of just deleting this right with a one line amendment).

    Unfortunately, this is too powerful a weapon given the fidesz-packed CC and the president who is personally interested in the survival of the current set up as he was a primary architect of many of the main new laws (such as that on the judiciary) and he sacrificed his entire carrier on serving his master (Orban). In addition, Orban’s personnel policy is such that there is no way in hell he would let anybody in a position of any concievable power if he (Orban) did not have a 100% trust in such appointee that – in major issues – he will follow the fidesz party line (as determined exclusively by Orban).

    Ader – realising the problem – would probably send this amendment to the CC, but I am not sure how the Hungary could be forced with a straight face to have this rule (in case the CC would say that this constitutional veto is so essential that not even a constitution can contain such a rule or even the lack of such right) where in many other countries this lack of right is not an issue.

    Sure the CC could say that the president has this inherent right but I believe it would be the crossing of the Rubicon to choose the president of their own party (I refer to the majority of the CC members, who overtly or covertly have extremely strong ties to the fidesz party and its possee) instead of the newly elected 2/3 majority (i.e. the above is based on the assumption of course that a coalition could be put together to amend the constitution, though not necessarily to govern). Should the CC side with the president, which it could do only on the most frivolous of grounds, the entire CC should be replaced with a completely new one (obviously this is not easy and not desirable). One needs to look at the current fidesz-delegated monetary council members who – against and contrary to the clear statutory obligations – are in effect puppets of the government in setting the base rate (and letting the inflation to rise). This is what we can expect from the CC going forward.

    Anyway we look at it, the current CC (with the next 2-3 members at least) is a creation of Fidesz and as such it has lost its professional respect (perhaps except for a few members, but they also made a number of unmitigatable compromises). Effectively, the CC became a fidesz dominated second chamber, a fidesz dominated/controlled senate, if you will, to the main (first) chamber of the Hungarian parliament. The issue is: will it act prudently or act as a political squad deployed by fidesz to continue to fight while they (fidesz) retreat?

    In any case, the CC unfortunately will never get back its previous powers because nobody is interested in it, and especially the current CC should not have the power to gut the efforts of a new non-fidesz government.

  24. Since, fortunately, I cannot look into the pshyces and minds of the Cc judges, I cannot tell whether they will be able to ‘step over their shadow’ – as they say in Hungarian – and come up to the minimal professional expectations. The older somebody gets, the harder this task might be – and not because of age, rather due to – as you mentioned, dear nutty Prof. – the high or growing number of ‘unmitigatable compromises’.

    As to reviewing amendments, the decision on the ‘transitional provisions ‘ of fundamental act will be more than telling.

    May I correct you in only one respect. Under the fundamental act (Section 6) and new internal rules of the CC (S. 47.), the Cc does not too much room to play with when it comes to ex ante review: according to fundamental act, it has thirty days to render the decision.

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