In recent years, we have seen numerous attempts by governments to sideline independent judges. A submission by the President of the Kúria challenging the Code of Ethics is now part of this series.
We have previously written about the new Code of Ethics adopted in March by the National Judicial Council (NJC), the main representative body of judges. The Code is an internal rule that guides judges to be irreproachable not only professionally, but also morally, and thus helps to maintain and (re)strengthen public confidence in the courts.
An important innovation of the Code is the provision that judges may attend public events, except events of political parties, and freely express their views on the legal system or the administration of the courts. In addition, it sets out more detailed ethical standards for court leaders (requiring them to respect judicial representative bodies or not to speak on behalf of judges working in their courts).
The Code was, in our view, a step towards overcoming the chilling effect among judges and the free expression of judges’ opinions, which would be important for strengthening judicial independence in the country.
András Zs. Varga, president of the Kúria (and in this capacity member of the NJC) did not participate in the adoption of the Code. In fact, he indicated already in early April that he was considering challenging it before the Hungarian Constitutional Court (HCC).
The consideration was not without results: Varga challenged both the Code of Ethics, which has not yet entered into force, and the law that allows the NJC to adopt it. It is instructive to go through the submission of the President of the Kúria, because it shows how he – who, incidentally, was put on the bench as Chief Justice without having previously adjudicated as a judge and the overwhelming majority of the NJC opposed his election – is using convoluted and sometimes absurd legal arguments to try to hinder the NJC and thus limit the freedom of expression of judges.
First, he argues in his submission that the text of the law says that the NJC “shall adopt the Code of Ethics for judges”, but that this, in his interpretation, was a one-off possibility in 2014 (when the previous Code was adopted) and does not mean that the NJC can later amend the Code or adopt a new one.
This is a fascinating argument, since, to take it further, the Parliament could not amend the central budget mid-year either, since the text of the Fundamental Law states that “the Parliament shall adopt the central budget”. The Code of Ethics is thus considered by the President of the Kúria to be at least as “permanent and eternal” a testament as some other granite-solid wills, which have already been amended ten times [such as the Fundamental Law itself].
Secondly, writes Varga, the Code is also unconstitutional because it omits the reference to the Fundamental Law. He concludes, by a convoluted legal reasoning, that this amendment somehow results in “detaching the judicial profession from the Fundamental Law” and would impose different values on judges than the Fundamental Law.
The NJC took the reference to the Fundamental Law out of the text because the Code is not a piece of legislation but a set of ethical standards, and there was no mention of it going against the Fundamental Law. Varga has also been a fierce defender of the Fundamental Law in the past, most recently when he wanted the NJC to join the letter of the President of the HCC calling on Viktor Orbán, László Kövér and János Áder to defend the Fundamental Law.
More serious and concerning is where Varga’s submission attacks the parts of the Code that clarify and allow judges’ freedom of expression. According to the submission, the Code contains more permissive rules than the Fundamental Law.
On the one hand, the President of the Curia refers to the existence of “civil aspirations” which seek to disrupt the “institutional cohesion” within the courts and, therefore, to the fact that the Code no longer contains the provision that “judges may not support any business, charitable or non-governmental organization which may be linked to political activity”.
Without making it clear who these NGOs are (we have our guesses), it states that it is at least as important to keep them away from judicial organizations as it is to keep them away from political parties. The deliberate conflation of NGOs with political parties is a long-standing tactic among those who are disturbed when NGOs express critical views on the state of the rule of law and the judiciary in Hungary.
Nor does Varga like the fact that the Code of Ethics makes it clear that judges are free to express their opinions about the law, the legal system, and the administration of the courts. He is of the opinion that judges are prohibited from criticizing the legislation.
Perhaps Varga could turn his attention here to the case of his predecessor in office, Chief Justice András Baka, who was sacked from his post precisely for criticizing the 2011 ‘judicial reform’, and whose sacking was found by the European Court of Human Rights in Strasbourg unlawful. In line with international standards, judges not only have the right but also the duty to speak out and express their opinions in defense of judicial independence, we add quietly.
It is also an interesting ‘legal argument’ that ethical rules for judicial leaders (e.g.: “the judicial leader shall refrain from insulting the self-governing bodies and bodies representing the judges, from discriminating against its members, and shall respect their legitimacy”) would somehow hinder the functioning of the courts because of their overly detailed nature.
Lastly, the President of the Kúria argues that the Code should be annulled because – brace yourselves – the NJC has circulated the text of the draft to the judges only in one round! It would be great if the President of the Kúria were also to speak out when the government does not consult judges before passing laws affecting the courts.
Varga also writes that it is not really a bad thing if, as in 2016, the HCC finds that the Code of Ethics is not a piece of legislation and therefore does not deal with it in merits. This would mean that the so-called service courts deciding on disciplinary matters against judges could ignore the Code of Ethics.
In fact, the President of the Kúria is calling into question the legitimacy of the NJC and thus the independence of the judiciary itself since after all we are talking about the NJC, an organization made up of judges’ representatives and its Code.
As one of the last bastions of rule of law in Hungary, it is important for judges to be able to act freely in defence of judicial independence. This is important not for their own sake, but to ensure that our cases are always judged in an independent and impartial process. So, the stakes are very high as to what the Constitutional Court will come to in this case.