In 2020, Orbán seems to have completed the Orbanization of the courts – a success that had eluded him for years. The appointment of a new top judge at the head of the Curia for nine years effectively ended the war.
Until now the only branch of power that resisted the Orbanization efforts was the courts. Not that there weren’t any attacks on their independence. But the judges proved to be as good in legalizing as the government was.
The courts were the only place where common sense and the law still prevailed – if the case managed to get there. In reality, politically sensitive cases were regularly bounced back from the police or the prosecutors.
And in one, heartbreaking case, three prosecutors had enough of political pressure and pushed the case of a corrupt local Orbán-loyalist’s case all the way to the court where their boss could no longer reach it. Even a law was changed to legalize the way he played overlord over the local distribution of EU funds – the chief prosecutors admitted that much. But the rebellious prosecutors managed to get the case to the court nonetheless. Two of them were fired, one committed suicide.
Now it looks like their efforts were in vain, as even the courts will be reined in by Orbán.
The only reason the courts have been relatively independent this long is that Fidesz lost its supermajority mid-term in 2015, and couldn’t push its will through as it was blocked by the Constitutional Court in 2016. But when Orbán won again in 2018, he quickly promised to use his third (highly questionable) supermajority to eliminate the pesky courts. Not least because they chipped away at his supermajority by taking away a mandate during count.
The first step was the introduction of 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.
„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
Other leaked plans involved the merging of the Orbanized Constitutional Court and the Curia, a central administration of courts by the Minister of Justice, and the dismissal all of the judges who entered in office before 1990.
Orbán kept complaining about “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.
For context, Orbán has a spotty record of respecting the courts. 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 elected Tünde 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.”
Ultimately, however, the political appointee, Handó, failed to deliver the judges’ headson a platter. So from January 1st, 2020, she has been replaced by a new appointee.
The new top judge lacks any court experience, having once said that he prefers the primacy of the executive branch and the strong, top-down discipline of the prosecution over the autonomy of judges.
He had worked directly under the chief prosecutor for years, who is another important pillar of Orbán’s regime. From there he was sent by the Fidesz supermajority to the constitutional court in 2014, where he got busy publishing paper after paper calling the judiciary “the most dangerous branch of power” that must be reined in “with immediate urgency”.
Without even completing his constitutional court mandate, he won the job of leading the Curia with a program to “rediscover the natural limitations of court independence” and to eradicate court autonomy.
He is against the application of any kind of legal precedent by courts – possibly because court precedents cannot be rewritten by parliamentary supermajorities, while laws can.