Hungarian Government postpones the introduction of administrative courts due to international pressure

In a surprise move last Thursday, the Hungarian government scraps the idea of the administrative courts - or at least postpones it until the disputes settle around the new court system that  was set to start its operation in 2020 and would have been supervised by the Minister of Justice, which is why it raised major concerns about the separation of judicial and executive powers in Hungary. The legislative proposal to repeal the act introducing the courts was submitted to the Parliament the same day.

As announced by Chief of Staff Gergely Gulyás at his press conference last Thursday, the Hungarian government decided to repeal the act passed last December that would have introduced the separate administrative courts to the Hungarian judicial system. The proposal to repeal the law stipulates that all statements made in connection with the administrative courts are null and void: this means that amongst others, the judicial transfer requests to the administrative court system have been abolished as well. 

In March, the European Commission's advisory body, the Venice Commission assessed that the new system in which the Justice Minister would have had significant powers over the judicial branch lacked the necessary checks and balances, noting that it is within the scope of state sovereignty to enact such changes to a country's judicial system. Most critics condemned the new court system because the judges hearing the cases concerning (often politically sensitive) state decisions would have depended on a member of the government, and that would have called judicial independence into question. The government denied that the Minister of Justice would have been in a position to influence judicial decisions.

The law establishing the new courts had even been amended by the Parliament once due to the international criticism, but even that failed to address the hazy details of the new system. Back then, the Ministry of Justice promised that an omnibus bill would settle these matters during the summer.

Why did the Government retreat so suddenly?

When asked why did the decision to scrap the constitutional courts came just days after the European elections, Gulyás told journalists at his weekly press conference last Thursday that countries opposing immigration have to withstand doubts concerning their rule-of-law situation, while "interestingly, rule-of-law is always alright in pro-immigration countries." The Chief of Staff added that the Government does not want to expose Hungary to an infringement procedure similar to the one currently in progress against Poland concerning the changes made to their judiciary.

As we have extensively covered before, the European People's Party suspended the membership of Fidesz in March after 13 member parties initiated a procedure to expel the Hungarian governing party from the political group. It was not without precedent, the European People's Party had set many red lines for Viktor Orbán's government in the previous years concerning antidemocratic policies, red lines which Fidesz proceeded to cross multiple times without consequence. Despite what Gulyás says, the surge of the "patriotic right" at the European Elections which Orbán hoped for when meeting Heinz-Christian Strache and Matteo Salvini failed to happen, and now Fidesz is most likely in the need of making amends to the EPP, as the three-member evaluation committee of the group is still monitoring Fidesz to make sure they comply with the fundamental values of the EPP and of the European Union.

The explanatory memorandum attached to the proposal to repeal the Act on Administrative Courts states:

The goal of this proposal is to make sure that the continued progress in the establishment of the separated administrative court system does not hamper the efforts of reassuringly settling the disputes about the unfounded criticisms against Hungary's rule-of-law situation.