The Commissioner for Fundamental Rights proposed that the Constitutional Court interpret Paragraphs (5) and (6), Article 25 of the Fundamental Law of Hungary to solve the constitutional law issue concerning the operation of the National Judicial Council.
László Székely requested the Constitutional Court to answer the following questions by interpreting the Fundamental Law of Hungary:
1. In the case of the National Judicial Council (hereinafter referred to as: OBT) as a judicial self-governing organ, does the earlier conclusion drawn by the Constitutional Court have governing effect, i.e. that democratic legitimacy should be enforced when the members of self-governing bodies are elected?
2. If so, does the requirement of democratic legitimacy involve that all the levels of the judicial system should be represented in the establishment and operation of OBT?
3. As long as a legitimacy issue emerges because of the composition and membership of OBT, is there any such constitutional organ in place which may act in order to ensure the lawful operation of this body?
In his proceedings, the Commissioner for Fundamental Rights is entitled to interpret the provisions of the Fundamental Law of Hungary himself, however, he may do so when his aim is to disclose improprieties that can be traced back to the operation or malpractices of the authorities, or when he examines a certain law from the aspect of the Fundamental Law of Hungary. The interpretation of the law by the Ombudsman is not binding for the legislator or the organs that practice the law, the authentic interpretation of the provisions set out in the Fundamental Law of Hungary that has binding force for everybody is the exclusive competence of the Constitutional Court.
In this case, the specific constitutional law issue that can be investigated into in the context of Constitutional Court proceedings was caused by that, according to a signal from the Chairperson of the National Judicial Council, some uncertainty in interpretation that jeopardizes legal certainty emerged in relation to the operation of OBT, which can only be resolved through the abstract interpretation of the relevant provisions of the Fundamental Law of Hungary, in lack of relevant positive statutory provisions.
The year 2018 saw the resignation of some of the members and alternate members of OBT, no alternate members were elected and at the moment, the levels of administrative and labor courts are not represented in this body. This is why some say that OBT has been operating illegitimately for a longer period of time, while some others think that the representation of all the levels of the judicial system in this body is not a prerequisite for its operation or quorum.
Arising from the principle of the separation of powers, as well as the constitutional requirement of judicial independence, the competence of the Commissioner for Fundamental Rights does not extend to the examination of the judicial practice of the courts, this is why the Commissioner was not in the position to decide whether the operation of OBT, which qualifies as a judicial self-governing organ, can be regarded as lawful. Furthermore, he was not in the position to take a stand on whether the current situation can be regarded as such a constitutional law issue which makes it impossible for OBT to function in compliance with the Fundamental Law of Hungary, or to fulfill its responsibilities and exercise its authority.
Consequently, the Commissioner proposed that the provisions of the Fundamental Law of Hungary be interpreted for the resolution of the constitutional law issue that emerged because of the two sharply contrasting views on the constitutional operation of OBT and this resulted in an uncertainty in interpretation that jeopardized legal certainty.