Un-faking the government’s claims on administrative courts
The Hungarian Government proposes to establish a new administrative court system. There are no professional reasons behind setting up a new administrative court system and the government has also failed to provide any professional arguments. The decisions on the new court system are made behind closed doors which violates the public’s right to know. Stakes are high. If implemented, the reforms pave the way for political interference into the work of judiciary in tax-cases, public procurement or elections-related matters.
Administrative courts are important in every jurisdiction. Tax-cases, public contracts and government orders are overseen by judges sitting in this branch often deciding the fate of millions of euros of public money. In some jurisdictions, administrative courts even watch over democracy and they decide election disputes, freedom of information requests and other high profile public cases.
The Hungarian Government is on its way to establish a new administrative court system by 2020 without thoroughly explaining the need to do so. Many, including the Hungarian Helsinki Committee, fear that the reform will be an opportunity for the government to appoint loyal judges and to dismantle the independent judiciary, one of the last real checks on government power. Already in June, the Hungarian Helsinki Committee published its concerns regarding the Government’s plans. The paper, which was developed with the help of members of the academia and independent experts, is available here.
The Cabinet Office of the Prime Minister recently published a summary of its arguments for a separate administrative judiciary. In this blogpost we would like to offer our position on the Government’s remarks and to underline inaccuracies and, in some cases, straightforward lies in the text.
There are no professional reasons behind setting up a new administrative court system and the government has also failed to provide any professional arguments
The most pressing issue is the lack of reasoning on the government’s part. Government officials failed to give persuasive arguments why it is necessary to establish administrative courts. The government claims a mix of three reasons in its statements: special administrative courts were functioning in the first half of the twentieth century; their performance is substandard now; and that new courts would work much better.
1. Justice Minister László Trócsányi and others have claimed that administrative courts are important because these were abolished by Communists and the government needs to restore some historic justice. Although this argument might sound compelling politically, it is not a real one: many aspects of public life have not been restored to its pre-1940s state. A mere reference to history is not a reason for change.
In 2016, when first reports of the reform emerged, the National Judicial Office (NJO) criticized heavily the government’s plans to establish separate administrative courts. The Office asked the same question: why is it necessary and why did the government not provide reasons to change the judicial landscape to such a great extent? To date, we have not heard any arguments on why we need to restore a system that existed prior to the 1940s.
2. No serious specific issues or problems have arose with regards the current courts that are dealing with cases of public administration. According to a 2018 Council of Europe report on the judiciary of its member states, Hungarian courts are effective and comparably quick in deciding administrative cases on the first, second and the supreme level of courts. The present court system also provides for the judicial oversight of major decisions made by the public administration. The government also did not provide any statistics why the current system needs to be completely redefined. The NJO, in its cited report, concluded that “separate administrative courts are not needed, only the development of the field may be a topic for discussion”.
3. The government argues that new courts might work better, as they will have a more specialized knowledge. This is not the case. Courts currently have special arrangements and working groups for analyzing administrative issues and provide answers to them. A group of judges has specialized in trying administrative cases and has accumulated significant experience and knowledge in the past decades. With this thirty years of experience, courts are well equipped to provide justice to citizens. Some fear that under the government’s argument, a great number of previous employees of the public administration will enter the judiciary once special courts are established. This would pose a great challenge to working ethics, as being a judge requires a different mindset than being a public servant. A judge has to be independent, while loyalty is demanded from a government employee. If a great a number of former state officials flood the newly established courts, an unhealthy government-friendly attitude might emerge and the actual substantial oversight of decisions of the public administration may be jeopardized.
The government further suggests, although not explicitly, that there is no judicial remedy against all administrative orders. This is not the case: the Constitutional Court ruled as early as in 1990, that judicial remedy should be available against all administrative decisions. This early decision (taken only one year after the fall of Communism), and subsequent practice of the Constitutional Court have made sure that judicial control over administrative acts is full. There is, therefore, no need to establish separate administrative courts to achieve this end – because it is already accomplished.
Decisions made behind closed doors -the government violates the public’s right to know
A further major concern is that there is no public consultation on the draft laws. The Justice Minister claimed that the concept of the new law had been adopted by the government, however, it is not publicly available. A working group of external lawyers was established to be consulted on the topic, however the sessions of the group, or the conclusions of these meetings were withheld by the government despite the Hungarian Helsinki Committee’s freedom of information request. Access to attend a scientific conference co-organized by the Ministry of Justice at a university was denied to the Hungarian Helsinki Committee without explanation.
A complete restructuring of such an important aspect of the judiciary requires strong reasons and widespread consultation: the government fails on both aspects. With the track record of taking over independent institutions, the media or retaliating judges for criticism, the lack of real reasons and public consultation by the government do not alleviate serious concerns.