Approving President János Áder’s motion, on 13 January the Constitutional Court held the provisions on the administrative high court of the Code of Judicial Administrative Procedure unconstitutional. According to the Constitutional Court, the act adopted by a simple majority would have established a new court in spite of the fact that the organization of courts can be modified only with a cardinal act, which requires the two-third majority support of MPs. The provisions vetoed by the President clearly violated the principle of the rule of law.
The government drafted the bill on the administrative high court back in the summer of 2016, and it originally included the modification of the cardinal Act on the organisation and operation of courts, too. The government did not disclose the bill to the public, it was leaked by the blog post of Így írnánk mi (This is how we'd write). The President of the National Office for the Judiciary, however, had the opportunity to comment on the bill. She criticized several of its points and pointed out that the draft regulation on the administrative high court would endanger judicial independence and undisturbed professional work. At one point she claimed that “the powers and seat of the Administrative High Court as well as the selection process of its president and judges are worrying in the opinion of courts.” In September 2016, however, the National Office for the Judiciary issued a communication endorsing the set-up of the administrative high court.
Eventually, lacking the two-third endorsement, the government integrated the creation of the administrative high court in the Code of Judicial Administrative Procedure, which is adoptable by a simple majority, and it mandated the Budapest-Capital Regional Court with the services of the new court. Bypassing the two-third rule again, these services included among others the legal remedy against the resolutions of the National Election Commission as well as the National Media and Infocommunications Authority.
János Áder did not approve this degree of violation of the principle of the rule of law and refused to sign the act. The Constitutional Court now joined the President and qualified the provisions adopted in an inappropriate procedure as not compliant with the Fundamental Law. The body has explained that ”the requirement of cardinality [the requirement of the two-thirds of votes of MPs pursuant article T) section 4] is related not to the adoption of individual acts but to regulative (legislative) domains.” [39]
Although the provisions on the administrative high court of the Code of Judicial Administrative Procedure may not enter into force in view of the decision of the Constitutional Court, we may not be entirely at ease as we cannot know how the constitutional court will decide if the Government manages to acquire the two-third endorsement to set up the administrative high court. Should the original bill appear anew, it would raise many constitutional concerns. The selection of a large number of judges from among the officials of government-controlled public administration and decision-making in matters of key importance for the government would imply serious intervention into judicial independence.
