3.1 The Convolution of Pouvoir Constituant and Pouvoir Constitué
The circumstances of the activity of the Hungarian Constitutional Court could hardly be more different than those of the CJEU. Out of the past ten years the governing coalition in Hungary had a constitution making majority for about seven years altogether.Footnote 65 This majority did not refrain from amending the Constitution and from 2012 the Basic Law. Between 2010 and 2012 the Constitution was amended eight times. Following the adoption of a new Basic Law, seven different amendment thereto were adopted within seven years. In other words, nine years have seen the adoption of a new constitution (the Basic Law) and fifteen constitutional amendments out of which seven affected the brand-new Basic Law.
Not only the statistics suggest a volatile constitutional environment. Almost all constitutional amendments were borne out of immediate political needs and motivations. With a few exceptions, they served to exclude or reduce the possibility of challenging specific legislative projects before the Constitutional Court or attempted to undo the results of previous Constitutional Court decisions.Footnote 66 Especially the curtailing of the competences of the Constitutional Court in tax matters by what is now Article 37 (4) of the Basic Law and the Fourth Amendment made it clear that the legislative power is ready to use its constitution making power to combat the Constitutional Court.
As regards Article 37 (4) of the Basic Law, the restriction of the competences of the Constitutional Court is certainly a very serious loophole in the Basic Law. This is because Article 37(4) of the Basic Law excludes a wide range of laws on the central budget, on the implementation of the budget, on central taxes, on duties and on contributions, on customs duties, and on the central conditions for local taxes issues from the competence of the Constitutional Court, and only allows for the review of these on the basis of a limited list of fundamental rights, i.e. the rights to life and human dignity, to the protection of personal data, to freedom of thought, conscience and religion, and the rights related to Hungarian citizenship. This language arose out of a conflict between Parliament and the Constitutional Court over a 98% punitive tax charged on severance payments of dismissed civil servants and public employees before the adoption of the Basic Law. In its Decision 184/2010 (X.28) ABFootnote 67 the Constitutional Court declared this punitive tax to be in violation of the right to property, even though Parliament had previously specifically amended the Constitution to cover the impugned legislation. Apparently, Parliament felt it necessary to protect its prerogatives by stripping the power of the Constitutional Court to adjudicate tax matters in the broad sense, and introduced Article 32/A(2) of the Constitution, the language of which was identical to what is today Article 37 (4) of the Basic Law.Footnote 68
The Fourth Amendment was adopted in reaction to Decision 45/2012 (XII.29) AB of the Constitutional Court which had declared the so-called transitory provisions of the Basic Law unconstitutional. Accordingly, the most important part of the Fourth Amendment was that it incorporated those provisions of the Transitional Provisions into the text of the Basic Law that were previously annulled by the Constitutional Court. These reinstated rules included substantive provisions, such as the reallocation of cases by the President of the National Judicial Office (Article 27(4)), the possibility to reduce pensions of former communist leaders (Article U(5)), and the suspension of the statute of limitations for crimes not prosecuted for political reasons in the communist regime (Article U(6)). Besides these, the Fourth Amendment included in Article U(1) of the Basic Law the previous Preamble to the Transitional Provisions, which declared, inter alia, that the Hungarian Socialist Workers’ Party (the communist party before 1989) bears responsibility for different wrongdoings, including ‘the systematic destruction of European civilisation, legacy and prominence’. What is more, the newly inserted Article U(1) also declares that the successor of the Hungarian Socialist Workers’ Party, the Hungarian Socialist Party (MSZP, which is at the present time the strongest opposition), shares the responsibility of its predecessor.
However, the constitution-making power did not stop at undoing one single Constitutional Court ruling. Rather, the Fourth Amendment basically reversed all politically sensitive decisions handed down by the Constitutional Court after the 2010 elections. This was carried out by including specific exceptions to fundamental rights provisions in the Basic Law based on which laws previously annulled by the Constitutional Court can no longer be regarded as unconstitutional.
For example, the Fourth Amendment inserted the following provision into Article L(1) of the Basic Law: ‘Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision, and the family as the basis of the nation’s survival. Family ties shall be based on marriage or the relationship between parents and children.’
This was a direct response to Decision 43/2012 (XII.20) AB,Footnote 69 in which the Constitutional Court annulled section 7 of the Act on Protection of Families. Section 7 had defined family as a system of relations that generates an emotional and economic community of natural persons, based on the marriage of a man and a woman, next of kinship or adoptive guardianship. The Court found this concept of a family too narrow as the state should also protect long-term emotional and economic partnerships of persons living together (for example, those relationships in which the couples raise and take care of each other’s children, or couples who do not have any children or are not able to have any children, grandchildren cared for by grandparents, etc.).
Another reaction to one of the contemporary decisions of the Constitutional Court was the amendment of Article VII(2) and (3) of the Basic Law which authorise Parliament to recognise religious organisations as churches. Just ten days before the adoption of the Fourth Amendment, in its Decision 6/2013 (III.1) AB, the Constitutional Court decided, inter alia, that on the basis of freedom of religion Parliament cannot be authorised to grant church status.Footnote 70 Both of these will be elaborated on in more detail in Sect. 3.2.
Similarly, to reverse a Constitutional Court Decision, Article XXII of the Basic Law introduced an obligation of the state and local governments to strive for the protection of homeless persons but at the same time granted authorisation for the Parliament and the local governments to outlaw the use of certain specific sections of public areas for habitation. This amendment was a reaction to Decision 38/2012 (XI.14) AB,Footnote 71 in which the Constitutional Court reviewed the Petty Offence Act and stated that the punishment of homeless people for living in a public area is in violation of the right to human dignity. In the Court’s view, homelessness is a social problem which the state must handle within the framework of social administration and social care instead of punishment. Ultimately, therefore, the newly introduced Article XXII(3) created an exception to the protection of human dignity concerning homeless people at the level of the Basic Law.
Equally, the Fourth Amendment included a new paragraph in Article IX of the Basic Law which explicitly allows for banning political advertisements from private broadcasting in times of political campaign, thereby reversing Decision 45/2012 (XII.29) AB, discussed above. Besides this, the new Article IX(3) discourages political advertising in private broadcasting by prohibiting media outlets from charging for broadcasting political adverts, should they decide to air these.
What is more, some provisions of the Fourth Amendment relating to hate speech aim to cut back a 20-year-old case law of the Constitutional Court. Between 1992 and 2008, the Constitutional Court found several laws to be unconstitutional that aimed to penalise hate speech.Footnote 72 As an answer to this, Article 5(2) of the Basic Law stipulates that: ‘[t]he right to freedom of speech may not be exercised with the aim of violating the dignity of the Hungarian nation or of any national, ethnic, racial or religious community. Members of such communities shall be entitled to enforce their claims in court against the expression of an opinion which violates their community, invoking the violation of their human dignity as determined by law.’
In general, reversing several decisions of the Constitutional Court by constitutional amendment resulted in a Basic Law packed with specific exceptions to fundamental rights and provisions that are normally at the level of an ordinary law. Not only did this lower the level of protection of fundamental rights, it also had the aim of reducing the possibility of review by the Constitutional Court. And above all, the Fourth Amendment sent an extraordinary strong message to the Constitutional Court that no other power is supposed to control the legislative and at the same time constitution making branch.
Under these circumstances it is fair to ask what role constitutional adjudication can play. Is it at all possible to maintain a meaningful constitutional review, or is the role of the Constitutional Court necessarily reduced to review politically non-sensitive issues? Do we experience the development of a new, special Eastern European type of the well-known political question doctrine? Naturally this ‘new political question’ doctrine would not be a constitutional standard, rather the necessity of judicial self-restraint in matters the actual legislative and constitution making power would deem too important to be decided by anybody else than itself.
I submit that even under these difficult circumstances constitutional review is possible. The Hungarian Constitutional Court had developed tools that are, to a certain extent, capable of limiting the constitution making power or enable the Court to adjudicate irrespective of the existing substantive and competence limitations.
As regards the limitation of the constitution-making power, the identity of the Basic Law as well as international ius cogens serve as a standard (Sect. 3.2). Constitutional adjudication is further possible in the present setting based on international human rights treaties, especially the European Convention on Human Rights (Sect. 3.3).
3.2 Limits of the Constitution Making Power
The concept of an unconstitutional constitutional amendments is equally fascinating and controversial, especially if the substantive limits to constitutional change are impliedFootnote 73 and are not foreseen explicitly by the respective constitution. Declaring a constitutional amendment to be unconstitutional by the constitutional court is not only a harsh interference with popular sovereignty, but also comes dangerously close to to a ‘juristocracy’Footnote 74 and—due to the lacking standards against which constitutional amendments can be reviewed (e.g. an explicit eternity clause)—even judicial arbitrariness. It is therefore tempting for a constitutional court to seek objective and relevant criteria in historic documents or EuropeanFootnote 75 and international law. This temptation may raise questions of legitimacy, but it can help overcoming accusations that the respective constitutional court is inventing standards that do not exist.
It occurs that the case law of the Constitutional Court and ultimately the Basic Law offer two different sets of supraconstitutional norms: the concept of constitutional identity (Sect. 3.2.1) and international law. International law even has a double role to play in this context: it is considered as a binding standard of interpretation of constitutional provisions (Sect. 3.2.2) and constitutional amendments must conform international jus cogens (Sect. 3.2.3).
3.2.1 Constitutional Identity
Constitutional identity is a new phenomenon in Hungarian law. It was first stipulated in Decision 22/2016. (XII. 5.) of the Constitutional Court without an express constitutional foundation and is now codified by the seventh amendment to the Basic Law. The seventh amendment namely included a reference in the Preamble of the Basic Law to the constitutional identity of Hungary. According to this new language, ‘We hold that the protection of our identity rooted in our historic constitution is a fundamental obligation of the State’. This is reinforced also in the operative part of the Basic Law, as a new Article R (4) is included stating that ‘[t]he protection of the constitutional identity of Hungary is an obligation of all organs of the state.’
The contours of constitutional identity are rather vague. Decision 22/2016. (XII. 5.) states that the Constitutional Court ‘unfolds the content of this concept from case to case, on the basis of the whole Fundamental Law and certain provisions thereof, in accordance with the National Avowal and the achievements of our historical constitution.’Footnote 76 There is thus a close link between constitutional identity and the historic constitution, which may be further reinforced by the seventh amendment to the Basic Law declaring the constitutional identity of Hungary to be rooted in the historic constitutions. Yet, there is a strong consensus in academia that the historic constitution of Hungary is an empty shell, the content of which cannot be reconstructed.Footnote 77 What remains at the moment is thus an exemplificatory reference in Decision 22/2016 (XII. 5.) to certain values as part of constitutional identity. These are ‘freedoms, the division of powers, republic as the form of government, respect of autonomies under public law, the freedom of religion, exercising lawful authority, parliamentarism, the equality of rights, acknowledging judicial power, the protection of the nationalities living with us.’Footnote 78
What makes the concept of constitutional identity intriguing is that it seems to have a rank above the Basic Law. This follows from the language of Decision 22/2016. (XII. 5.) according to which ‘the constitutional identity of Hungary is a fundamental value which was not created by the Basic Law, it is merely recognised by the Basic Law’Footnote 79 This clearly suggests the existence of pre-constitutional values which serve as a standard for the actual written constitution, the Basic Law. And because constitutional identity is defined by reference to the historic constitution, and this concept is capable of having a variety of contents and meanings, the Constitutional Court enjoys a considerable discretion in reviewing constitutional amendments on the basis of constitutional identity.
3.2.2 International Law as a Standard of Interpretation of Constitutional Provisions
For a long time, it seemed unclear, whether from the perspective of the Hungarian constitutional order the role of the jurisprudence of the European Court of Human Rights is merely of non-binding, inspiring character, or whether the case law of the Court should be deemed to define the scope and content of the respective rights, and as such have a binding force.Footnote 80
At the beginning, this question was answered almost unanimously in the negative. Representative of this was the view of the first President of the Hungarian Constitutional Court, who argued that reference to the Strasbourg case law is merely of auxiliary nature besides the reasoning of the Constitutional Court, and such reference might also emphasize the importance of a specific rule of the Constitution.Footnote 81 For two decades the Hungarian Court never went as far as to derive binding constitutional standards from the Convention. Only once has the Constitutional Court found that the understanding of the freedom of expression by the European Court of Human Rights is ‘forming and binding the Hungarian jurisprudence.’Footnote 82 Yet this statement had no consequences in later decisions and the Court continued to refer to the practice of the Convention without declaring them to be binding in the interpretation of the Constitution.
This picture seems to gradually change by decisions of the Court that actually give effect to judgments of the European Court of Human Rights. The first instance of this was a consequence of the Judgment Bukta and others v. Hungary.Footnote 83 Here the European Court of Human Rights ruled that the subjection of public assemblies to a prior–authorisation procedure does not normally encroach upon the essence of Article 11 of the Convention.Footnote 84 But when an immediate response, in the form of a demonstration, to a political event might be justified, a decision to disband the ensuing, peaceful assembly solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, amounts to a disproportionate restriction on freedom of peaceful assembly.Footnote 85 Shortly after this judgment the Constitutional Court decided on the constitutionality of the Act Nr. III of 1989 on the right of assembly in its Decision Nr. 75/2008.Footnote 86 This Decision actually comes to the same conclusion as the ECHR. Yet the Hungarian Court merely refers to the Bukta judgment in a brief paragraph, and the same paragraph also quotes the jurisprudence of the German Bundesverfassungsgericht. The substantive argument is solely based on Article 62 para. 1 of the Constitution. It appears that the Court did not want to tie its hands for the future, even if it was ready to follow the path of interpretation drawn by the European Court of Human Rights,Footnote 87 and even if the Constitutional Court is deciding on a statute the application of which was reviewed by the European Court of Human Rights.
The breakthrough came with Decision Nr. 61/2011.Footnote 88 Here the Court declared clearly that it is under an obligation to follow the case law of the Convention in its decisions interpreting the Constitution as long as the language of both corresponds. In the words of the Court: ‘In the case of certain fundamental rights the Constitution sets out the essential content of the fundamental right in the same fashion as an international treaty (i.e. the International Covenant on Civil and Political Rights and the European Convention on Human Rights). In these cases, the level of protection for fundamental rights provided by the Constitutional Court may under no circumstances be lower than the level of international protection (typically elaborated by the European Court of Human Rights). Therefore following from the principle of pacta sunt servanda [Article 7 (1) Constitution Article Q (2)-(3) Basic Law] the Constitutional Court has to follow the Strasbourg case law and the level of fundamental rights protection defined therein even if this would not be necessitated by its previous ‘precedents’.Footnote 89 This statement was later referred to in Decision Nr. 166/2011Footnote 90 and after the entry into force of the Basic Law in Decision Nr. 43/2012.Footnote 91 It occurs therefore that the rights of the Convention as interpreted by the European Court of Human Rights are obligatory standards of interpretation of the rights of the Basic Law at least in the sense that they provide for a minimum of protection.Footnote 92 Absent express provisions to the contrary in the language of the Basic Law this shall help in maintaining European minimum standards domestically.
3.2.3 International Law as a Standard of Legality of the Constitution
The Hungarian Constitutional Court has already relied on international ius cogens to define the eternal core of the constitution of Hungary in two of its decisions. Both decisions were made in the context of a controversial constitutional amendment, yet none of them actually found a violation of international ius cogens.
Decision 61/2011 (VII.13.) AB was made under the 1989 Constitution in a battle between Parliament and the Constitutional Court over a piece of tax legislation. On 22 July 2010, the Hungarian Parliament adopted several economic and financial Acts. The Act, inter alia, introduced a new punitive tax on certain payments for employees of the public sector (civil servants, public servants, etc.) whose employment was terminated. Accordingly, severance payments and other payments related to the termination of employment exceeding a certain amount became subject to a 98% tax. The proposal of the Act justified the punitive tax by reference to the needs of the society to do justice, claiming that under the previous government public employees had been granted immorally excessive severance payments. Although the Act entered into force on 1 October 2010, the punitive tax was to be applied to the relevant incomes starting from 1 January 2010. In order to ensure the constitutionality of this Act, Parliament also amended Article 70/I of the 1989 Constitution by including a new paragraph (2) in the Article that allowed for special taxes.Footnote 93
The punitive tax was challenged before the Constitutional Court within the framework of an actio popularis, and the Court found the relevant provisions of the Act to be unconstitutional in its Decision 184/2010 (X.28) AB, because, inter alia, Article 70/I(2) of the Constitution did not cover the retroactive 98% tax.Footnote 94
In response, Parliament reintroduced the 98% tax with certain modifications. At the same time, Parliament modified Article 70/I(2) of the Constitution allowing for retroactive taxation going back five years from the actual tax year. To prevent the Constitutional Court from reviewing the legislation, a limitation was also introduced in Article 32/A(2)–(3) of the Constitution, the language of which was basically identical with what is today Article 37(4) of the Basic Law.
The Constitutional Court was confronted with this limitation on its powers in Decision 61/2011 (VII.13.) AB where several petitioners challenged the constitutional amendments that made the new Articles 32/A(2) and 70/I(2) part of the Constitution. The Constitutional Court was not ready to find these amendments unconstitutional but indicated that it might be ready to review constitutional amendments on the basis of international law. The Decision stated that ‘norms, principles and fundamental values of ius cogens together form a standard which all subsequent constitutional amendments and the Constitution must comply with.’Footnote 95
In spite of this clear language Decision 61/2011 (VII.13.) AB did not state clearly that the Constitutional Court would possess the power to enforce these standards against the constitution-making power. This came only after the entry into force of the Basic Law in Decision 45/2012 (XII. 29.) of the Constitutional Court.
Decision 45/2012 (XII. 29.) concerned the Transitional Provisions to the Basic Law. The Transitional Provisions were a document separate from the Basic Law but it were, according to Point 3 of the Final Provisions of the Basic Law, to be adopted by Parliament according to the rules of the previous Constitution on constitutional amendments. Since these provisions were also the legal basis of the Basic Law itself, it seemed reasonable to suppose that the constitution-maker intended to attribute to the Transitional Provisions a rank similar to that of the Basic Law. This was reinforced by the First Amendment to the Basic Law which inserted Point 5 in the closing provisions of the Basic Law, according to which the Transitional Provisions form an integral part of the Basic Law.
In its Decision 45/2012 (XII.29) AB, the Constitutional Court declared the Transitional Provisions null and void.Footnote 96 The core of the Court’s argument was that Parliament had overstepped its constitutional authorisation when it implemented regulations in the Transitional Provisions which had no transitional character. It was probably to reduce confrontation with Parliament that the Constitutional Court cautiously framed its ruling as the enforcement of formal rules and emphasised that it did not review the merits of the Transitional Provisions. Still, the Decision also seems to establish the power for itself to review the constitutionality of constitutional amendments in its paragraph 118, which reads as follows: ‘Constitutional legality has substantive criteria besides the procedural, formal, public law ones. [These are] [t]he constitutional requirements of the democratic state under the rule of law, constitutional values and principles acknowledged by democratic communities under the rule of law and enshrined in international agreements, as well the so-called ius cogens, which partly overlaps with these. Under certain circumstances the Constitutional Court is empowered to review whether the substantive constitutional requirements, guarantees and values of a democratic state under the rule of law are consistently respected and included in the constitution.’Footnote 97
It is remarkable that the Court here not only reiterated its findings on the role of international ius cogens as a standard of review of the constitutional amendments, but also claimed the power to carry out a substantive review of norms formally incorporated into the Basic Law.
3.3 The European Convention on Human Rights as a Standard of Review by the Constitutional Court
The Basic Law of Hungary seems to be surprisingly open towards international law. Article Q (2) of the Basic Law provides that ‘Hungary shall ensure harmony between international law and Hungarian law in order to fulfil its obligations under international law.’ Further, according to Article Q (3) international treaties become part of Hungarian Law upon their promulgation by a piece of Hungarian legislation. From these it follows that international treaties promulgated by an Act of Parliament shall take precedence over domestic legislation. This is supplemented by Section 32 of the Constitutional Court Act which specifically entitles the Constitutional Court to review the conformity of domestic legislation with international treaties. Should such a procedure establish a conflict between an international treaty promulgated by Act of Parliament and a domestic piece of legislation, the Constitutional Court is obliged to declare the domestic law null and void. What is more, the already mentioned limitation on the competences of the Constitutional Court in Article 37 (4) in relation to tax laws does not apply to this type of procedure. In effect, the combination of these provisions enables the Constitutional Court to conduct review on the basis of international law.
The real question is who may initiate this type of review. The European Convention on Human Rights was promulgated in the Hungarian legal order by Act Nr. XXXI of 1993, and therefore can be invoked by individuals before ordinary courts. Yet individuals are not listed in Section 32 (2) amongst those entitled to request the review of conflict with international treaties.Footnote 98 Nevertheless concrete, incidental norm control is open under Section 33 (2) of the Constitutional Court Act, which provides that ‘judges shall suspend judicial proceedings and initiate Constitutional Court proceedings if, in the course of the adjudication of a concrete case, they are bound to apply a legal regulation that they perceive to be contrary to an international treaty.’
As a result, ordinary courts are not only bound to apply the applicable Hungarian laws and interpret them in conformity with the Convention as far as possible.Footnote 99 Should a harmonious interpretation not be possible because of the express language of the Hungarian law in question, courts are entitled to call upon the Constitutional Court and ask for a review of the Hungarian piece of legislation on the basis of international treaties, notably the European Convention on Human Rights. In case of a conflict the Constitutional Court is obliged to declare the Hungarian law in question unconstitutional.