The Government of Hungary wishes to amend the Act on the Constitutional Court and set out that the mandate of Constitutional Court judges, including the mandate of the current ones, shall not terminate when they turn 70 years old, but they shall remain in their seats until the end of their 12-year term. The rule that the mandate of Constitutional Court judges shall terminate when they turn 70 years old has not been revised and has been applied since the Constitutional Court of Hungary was set up. In the view of the three NGOs, this amendment may not be justified from a constitutional perspective that essential conditions of fulfilling a judicial mandate are amended “along the way”, thus also affecting those who are currently in office.
Abolishing the upper age limit is clearly another step of the Constitutional Court’s political occupation. The governing party has already amended the rules of nominating Constitutional Court judges in 2010, where it enabled itself to nominate judges without the support of any of the opposition parties. Upon adoption of this rule, István Stumpf, former Minister of the First Orbán- government between 1998-2002 was elected as a judge, alongside Mihály Bihari. Later on, as of 1 September 2011, the number of the members of the Constitutional Court was increased to 15 from 11, and, thus, five new judges were nominated and elected by the governing party. This year, the mandate of two judges were terminated (including that of Mr Bihari), who were subsequently replaced by nominees of the governing parties. This resulted that the majority of the current members of the Constitutional Court were elected in a procedure where nomination rules ensured that exclusively those favoured by the governing parties have been elected.
According to the proposed new rule, the mandate of five of the newly elected judges will not terminate when they turn 70 years old. The mandate of István Balsai will be extended with 6 years and 5 months, the mandate of Egon Dienes-Oehm with 8 years and 8 months, the mandate of Béla Pokol with 3 years and 4 months, that of László Salamon with 7 years and 2 months, while the mandate of Mária Szívós will be extended with 3 years and 9 months.
The current governing majority, having two-thirds of the seats in the Parliament, terminated the mandate of almost 300 ordinary judges before they turned 70 years old in a similar way; only that in their case their retirement age was lowered by amending the respective laws. Whilst the Constitutional Court judges, elected exclusively by the current governing party for 12 year services, will be able to decide on cases even when they will be close to 80 years old.
Accordingly, the Fundamental Law of Hungary, which was adopted with only the support of the governing parties, and without political or societal support, will be interpreted and applied in the upcoming parliamentary periods by Constitutional Court judges who were elected without political consensus, and who will be held in their seats after reaching the age originally set out by law due to one-sided political considerations.
The joint opinion of the three NGOs is available here in English.