It’s not sure whether Orbán designed the new labor law with its incensing overtime rules with the intention to draw attention away from the new law setting up a parallel court system, but it certainly worked that way. The whole world is busy sharing images of the protests against the new labor law, while only a few remembered a much bigger issue – the new law creating the so called administrative courts being passed the same day – eliminating the remaining independence of courts and blurring the boundary between executive and judicial power.
Orbán has announced the move the day after his reelection in April – alongside a few more other plans to eliminate privacy, the freedom to assembly, and cracking down on civil society. The most relevant is perhaps the attack on the remaining independence of the judicial system by setting up a parallel court system to deal with politically sensitive cases, such as public procurement cases or elections.
Until now, the judiciary has been only partially broken in by Orbán. His government did lower the retirement age for judges and refilled the newly vacant positions with loyalists. He had stuffed the constitutional court with similarly loyal judges. He also set up a new administrative body whose job was to assign cases to certain judges – regardless of logic or geography – that was used to make sure that politically sensitive cases land on the desks of loyal judges.*
But stubborn judges still exist and they have put up a fight against the overseeing body ever since. The only reason the courts are still relatively independent is that Fidesz lost its supermajority mid-term in 2015, and couldn’t push the motion through in 2016. This is why there were still judges granting freedom of information requests to journalists, and ruling that government media keeps lying. Symbolic things, without any risk to Orbán’s reign, but his patience with even the appearance of limitations on his power has long run out.
With this new piece of legislation, however, this old sore of Orbán will be eliminated. courts will be circumvented by setting up a parallel court system called Supreme Administrative Court where all the politically sensitive cases (and cases where the government is involved) will be handled by newly minted Fidesz judges.
If you happen to talk to a government spokesperson, he will not hesitate to tell you that this is a great triumph against communism, because there used to be an admin court system before 1949, and the nasty communists did away with it. Nevermind that communists used the courts exactly as Orbán does – whatever the name.
Orbán had been complaining about activist judges – even though the degree of their activism really only means that they grant the errant freedom of information request. Orbán calls it “judicial governance“, by which he means that court decisions are above him and that must not happen because he is the will of the people. The separation of powers does not even feature in his rants.
When the court ordered some toothless recounts in elections in the most egregious cases of apparent miscounting in Fidesz’ favor, Orbán was furious.
„I think the Curia has taken a mandate away from our constituents with this decision, and the Curia has clearly and gravely intervened in the elections. While studying the doctrine of the Constitutional Court, it is obvious: the Curia was not intellectually up to its task.“
–PM Viktor Orbán about the court decision about absentee voting
It is easy to see why Orbán wants himself the power to rule over election results and public money theft, putting them under a government-controlled court system. Executive and judicial power will no longer be separated. No wonder the Hungarian Helsinki Committee (HHC) called the new courts are another “serious threat to the rule of law in Hungary.”
* As Zoltán Fleck aptly summarized: “Ever since taking power in 2010, Orbán has systematically undermined the constitutional system of checks and balances, and weakened the rule of law in Hungary. One part of this long story is the subjugation of the administration of the judiciary. Soon after taking power, the Fidesz government disbanded the existing judicial council and replaced the autonomy of the judiciary with a strictly centralized body of judicial oversight. According to the Act on the Organization and Administration of Courts (CLXI of 2011) the President of the National Office for the Judiciary exercises all the authorities of central administration. The President is elected by the Parliament among judges by a two-thirds majority for 9 years. The government nominated and the parliament electedTünde Handó, the wife of a Fidesz Member of European Parliament, one of the leading figures of the party and a family friend of the Prime Minister. … Her most important competence is to appoint the presidents of regional courts and courts of appeal and supervise their activity. From 2012 until present the entire administrative staff was replaced, helped by the Act on the status of judges which modified the compulsory retirement age of judges, in order to align the office’s the politically elected president’s aspects and “philosophy”. After fierce criticism Handó’s powers were somewhat cut, but the essence did not change: It is she who decides who gets to take administrative functions in the judiciary or even become a judge. The Judicial Council has a veto power in appointing court leaders but Handó still has the right to appoint whomever she wants. The most important means for this is to declare applications ineffective, annulling and restarting the application process.”