US Supreme Court Justice Anthony M. Kennedy on Judicial Reform Issues

On July 14, Central European University together with the Embassy of the United States in Budapest hosted US Supreme Court Justice Anthony M. Kennedy at an event entitled “Roundtable Discussion on Judical Reform Issues.” Justice Kennedy participated in the roundtable discussion on Hungarian judicial reform and its implications on judicial independence, together with representatives of the judiciary, civil society and academics. The discussion was moderated by Karoly Bard, Pro-Rector, Hungarian and EU Affairs, CEU.

In his opening remarks, Justice Kennedy emphasized the need for finding the balance when choosing and appointing judges, and the importance of public respect towards the judiciary.  The power and prestige of the judiciary depend on the respect of the public for court judgments, and judges must remember that the Constitution and the legal rules belong to the people. In Justice Kennedy’s view, independence implies a strong responsibility from judges, and also an institutional structure that provides the judiciary with the possibility to perform its genuine task. Judicial work does not go–in his opinion–without checks: the law itself and reasoned judicial decision-making serve as checks on the judiciary. Without properly reasoned judgments judicial independence is not justified.

The roundtable discussion was focused on two particular and very actual issues widely discussed in Hungary: the nomination process of Constitutional Court judges and the independence and administration of ordinary courts. Agnes Bathory, Associate Professor/Research Fellow, Department of Public Policy, CEU/President, Transparency International, and Peter Hack, Advisory Board Member, Transparency International/Assistant Professor, ELTE, Department of Criminal Procedural Law, drew attention to the outstanding role the Constitutional Court played in the transition to parliamentary democracy and the faith and trust the public has in this institution. Many fear that this public support is put in danger with the new nomination procedure for constitutional judges, which gives the power to the governing party to nominate and elect justices to the Court without seeking the support of the opposition. Some of the panelists, however, did not share this concern. They stressed that the Parliament has the authorization to amend the Constitution and change the rules of nomination for the Constitutional Court. Renata Uitz, Chair, Comparative Constitutional Law Program, Department of Legal Studies, CEU, raised the issue of international control and the impact of international standards: she opined that judicial independence as such does not seem to be a strong priority for the international community. In the years of transition several international bodies monitored the Hungarian legal system, but with the accession to the main international and supranational bodies (Council of Europe, NATO, EU) this external check diminished. As Petra Bard, Head, Criminal Law Division, National Institute of Criminology/Researcher, Center for Ethics and Law in Biomedicine, CEU, emphasized, it is not reasonable to expect–even under the Lisbon Treaty – the European Union to intervene in order to protect judicial independence as such. With regards to the independence of ordinary trial courts, the participants agreed with Justice Kennedy that the cornerstone of independence–apart from the freedom from external, often governmental pressure–is the personal independence of the judges or as Justice Kennedy put it, the ability of the individual to rise above (political) fractions. Judge Agnes Galajda, Supreme Court of Hungary, highlighted the importance of accountability and the need for life-long education, while Andras Kadar, Co-Chair, Hungarian Helsinki Committee, suggested that before their appointments judges should serve as attorneys in order to guarantee more effective respect for defendants’ rights and thus ensure an equality of arms. Both continuing education and prior practical experience are essential for a good judge–Justice Kennedy emphasized. He reminded all the participants that there are judicial heroes out there and even if the conditions are harsh, they will retain their professional ethos. In her closing remarks, HE Eleni Tsakopoulos Kounalakis, Ambassador to Hungary, United States of America, with regard to the external control and pressure, expressed that tensions and conflicts which naturally arise in democracies have to be primarily solved internally.

Photograph taken by Attila Nemeth, Embassy of the United States of America