Mandatory retirement of judges declared unconstitutional

A centrist commentator emphasizes that the Hungarian Constitutional Court, by invoking Hungary’s ’historical constitution’, found a weapon against the government’s attempts „to govern through constitutional changes.” The pro-government media mostly passed over the July 16th decision, while liberal commentators pointed out that six of the seven dissenting judges were Fidesz-appointees.

In its July 16th ruling, the Constitutional Court declared unconstitutional and retroactively nullified the statute requiring judges to retire at 62 (the current retirement age). The compulsory retirement age in the public sphere has since been set at 62, but there are exceptions, including university professors and medical staff. The Court argued that the mandatory retirement age of judges should have been cut back from 70 to 62 in a „cardinal”  law (requiring two-thirds majority) and more importantly, ’the historical constitution’ of Hungary would only allow for a gradual lowering of the retirement age, in order not to conflict with the principle of the irremovability of judges.

Véleményvezér, echoing other expert commentators, finds it clever that the Court invoked  the ‘historical constitution’.  This was a way to circumvent the government’s practice of enshrining controversial rules in the fundamental law. Now, by invoking the historical tradition of Hungarian constitutionality, the Court found a framework of interpretation that is difficult to reject for Fidesz, who themselves introduced the notion of historical continuity in the Preamble.  This is not exactly a declaration of war – the blogger concludes – but the Court has shown that the government miscalculated the potential consequences of its own insistence on the continuity of Hungarian statehood.

In Hvg.hu, Péter Szegő , one of the seven dissenting judges, a former minister of justice and right-wing MP. He quotes Balsai’s opinion according to which the Constitutional Court should not interpret constitutional clauses in opposition to the constitutional order that it is meant to protect. Szegő notes that it would have been briefer as well as more honest of Balsai simply to write that the Constitutional Court should never get in the way of Fidesz’ plans.

Three of the dissenting judges – Barnabás Lenkovics , Péter Szalay and István Stumpf objected to the majority ruling by arguing that under the constitution the judges must retire when they reach the general retirement age. They agree that this rule is not easy to reconcile with other passages in the fundamental law or with the ’historical constitution’, but the Court is not entitled to favour one constitutional paragraph over another, they believe.

Tags: constitution, judiciary