Requirements of the legitim operation of the NJC
According to the number, operation and administration of the NJC the Act CLXI of 2011 on the Organization and Administration of the Courts (Bszi.) enacts the followings:
Section 88 (3) OBT is comprised of fifteen persons, including the President of the Kúria and fourteen judges.
Section 91 (1)Members of OBT are elected by the conference of delegates from among the delegate judges, including one court of appeal judge, five general court judges, seven district court judges and one administrative and labor court judge.
(2) Simultaneously with electing the judge members of OBT, the conference of delegates shall also elect fourteen judges, as provided for in Subsection (1), from among the delegates - by setting up a sequence according to the number of votes so as to prevent a tie - as alternates.
Section 92 If the number of alternate members drops below five, in consequence of which OBT can no longer function properly or the upper limits referred to in Subsection (1) of Section 91 cannot be ensured, a new election shall be arranged to elect replacements to bring the number of alternate members back up to fourteen.
Section 105 (3)OBT shall have a quorum when at least two-thirds of its members are present.
Thus for the legitim operation of the NJC not only the enacted number of the members is required but the members must represent the different levels of the jurisdiction in the number enacted by the cardinal law.
The legislator supposed to guarantee the proper operation with enacting the election of the proper number of alternates. However, according to section 91 (2) the members cannot be changed by the alternates automatically but can be changed by the alternates from the same level only.
Right now, both the number of the members and the number of the alternates are missing for the legitim operation:
• both the administrative and labour court member and alternate quited thus the NJC has no member and alternate from this level;
• due to the withdrawal of the district court members and alternates the NJC has only 6 district court members instead of 7 without any alternates from this level.
Thus the legitim operation of the NJC is not guaranteed because the number of the members is above 15 (right now it has 13 members). The empty positions cannot be filled with alternates because the administrative and labour court level has no further alternates. Thus the administrative and labour court level is not represented at all right now.
Relating to this it cannot be acceptable that the operation is legitim until – with analog interpretation of section 48 subsection (4) of the Act CLI of 2011 on the Constitutional Court – under the section 105 (3) of the Bszi. the NJC has a quorum (the two-thirds of its members are present).
The reason behind this is until the legal status of the judges of the Constitutional Court is the same, the legal status of the NJC members is different because they represent the different levels of the jurisdiction. This is the reason for that NJC members can be replaced by alternates from the same level only.
On the other hand, if we accept this reasoning it would mean that even a few members (ad absurdum even only 1) could claim that the NJC has a quorum if two-thirds of its members are present.
For example if the number of the NJC members decreased to 3, even 2 members could claim that the NJC has a quorum if they are present.
The Constitutional Court could have jurisdiction to decide on this question under the procedure enacted in section 38 of the Act CLI of 2011 on the Constitutional Court (interpretation of the Fundamental Law):
Section 38 (1) On the petition of Parliament or its standing committee, the President of the Republic, the Government, or the Commissioner of the Fundamental Rights, the Constitutional Court shall provide an interpretation of the provisions of the Fundamental Law regarding a concrete constitutional issue, provided that the interpretation can be directly deduced from the Fundamental Law.
(2) If the concrete constitutional issue arises in connection with the legal status, operation, tasks or competences of a state organ, the Constitutional Court shall carry out the interpretation of the provisions of the Fundamental Law pursuant to paragraph (1) if the constitutional issue makes the operation, the execution of tasks and the exercise of competences in accordance with the Fundamental Law impossible, or if the uncertainty of interpretation is endangering legal certainty.