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!
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