Justice ministry proposal to set up new courts a threat to judicial independence

August 25, 2016

bírósági-döntésA Justice Ministry proposal to create new courts to adjudicate government procedural matters would violate the principle of separate of powers, reports 444.hu.

The separation of powers is essential to the rule of law.  Historically intended to obstruct tyranny, today it works as an indispensable part of democracy.

But not in Hungary.  Or at least in many instances it does not work adequately.  On numerous occasions the National Tax and Duty Authority (NAV), the Competition Authority, the Media Authority, the Public Procurement Committee (KDB), the National Election Committee (NVB), and, in particular, the head prosecutor’s office have ruled in the government’s favor on controversial matters.

The courts, on the other hand, have occasionally demonstrated their willingness to hand down decisions unfavorable to the government.

However, a recent proposal from the Ministry of Justice would entrust the adjudication of government procedural matters to special courts, apparently to be administered by András Patyi, the rector of the Public Service University and the chairman of the National Election Committee.

The ministry is proposing to create a new body called the government procedural court to decide matters pertaining to the National Bank of Hungary, the Media Council, the Public Procurement Committee, and a number of other state institutions, including ones responsible for administering elections.  The new court would also decide what to keep secret from citizens and would have jurisdiction over cases falling under the Freedom of Information Act.

Critics of the proposal point out that had such a court been created under the Second Orbán government, scandalous expenditures on the part of the MNB foundations or the Hungarian National Trading Houses (MNKH) probably would not have come to light.

Where laws currently provide for the decisions of certain authorities to be appealed in existing courts, the proposal would provide for the new courts to preside over cases involving governmental administrative procedure.  “It is not hard to imagine the enormous power that would be transferred to the new body”, writes 444.hu.

Have they already chosen a director?

In professional circles they are saying that the new organization is to be headed by András Patyi, the Rector of the Public Service University and the chairman of the National Election Committee who “unequivocally demonstrated after the February (election office scandal) that he can he can render decisions that serve the government’s political interests” writes 444.hu.

The independent online daily believes the post described in the proposal appears created directly for Patyi.  Patti only served as a judge for two years, which may explain why the proposal only require that the head judge have sat on the bench for two years, whereas 20 years legal experience in matters of government procedure is required.

Critics point out that the new court is not to be run by judges but rather jurists working in government procedure.  This means that the new courts would be presided over by an assembly of government officials–a clear violation of the separation of powers.

The Justice Ministry reportedly distributed the proposal to a narrow circle led Tünde Handó, the wife of Fidesz politician and MEP József Szájer, during the summer recess in a deliberate attempt to push the matter through.  The National Judiciary Authority (OBH) has yet to officially support the plan, reports 444.hu.

444.hu reports that OBH has told the ministry that the proposal threatens the rule of law and judicial independence, and that entrusting people coming from the executive branch of government with judicial powers was a recipe for corruption.