How to Evade the Constitution: The Case of the Hungarian Constitutional Court’s Decision on the Judicial Retirement Age

Kim Lane Scheppele, Princeton University

Part One: The Decision

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 ...

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