Case Law of the Hungarian Constitutional Court on Unamendability

2.1 Circumstances

In Hungary, a one party alliance won a two-thirds majority in Parliament both in 2010 and in 2014. They adopted a new Fundamental Law in 2011, it entered into force in 2012, and was modified six times up to August 2016.^[944] The adoption of the new text was based on the former Constitution of Hungary, on Act XX of 1949 on the Constitution of the Republic of Hungary (Constitution).

Neither the Constitution nor the Fundamental Law contains explicit, eternal or temporary unamendable provisions.

The Hungarian Constitutional Court took important steps towards finding the unamendable core of the Constitution and towards justifying the competence of soft substantive reviews of constitutional amendments. In the end, however—after the Fourth Amendment of the Fundamental Law in 2013, which amended the text of the Fundamental Law regarding the review of amendments^[947] explicitly excluding substantive review from the scope of revision—the Constitutional Court turned back to a very limited competence of procedural review (explicitly allowed by the new constitutional text). This might as well implicate the absence of unamendable provisions.^[948] My thesis is, however, that, in spite of the present majority view of the Constitutional Court, there is unamendability in the Hungarian Constitution and this unamendability can be found and should be enforced by the Hungarian Constitutional Court within its competence.

In this part, I shall first explain the history of the domestic struggle of the Constitutional Court, and then describe a doctrinal framework to understand implicit unamendability in the Hungarian Constitution.

2.2 Assessment of Unamendability Between 1990 and 2010 in Constitutional Court Case Law

After the transition, the newly established Hungarian Constitutional Court had very high legitimacy.^[952] The Court created the principle of the so-called ‘invisible con­stitution’, which led to the development of the detailed norms of the Hungarian constitutional order. This is where basic principles and the discussion about una­mendability first appeared.^[953]

In Hungary, a simple two-thirds majority of all the members of Parliament is required to adopt and also to amend the Constitution. This rule is identical in both the Constitution and the Fundamental Law.^[954]

That the Constitution itself is a democratic value and that, therefore, none of its provisions should be explicitly unamendable was the majority opinion of the Constitutional Court after the democratic transition of 1989-1990. The Hungarian Constitutional Court declared several times that there is no hierarchy between the provisions of the Constitution and that none of the provisions are unamendable. Although already in 1990, in the decision on abolishing the death penalty, the Constitutional Court said that human life interpreted together with human dignity is the basic value of our constitutional order, this finding led neither to the estab­lishment of a basic structure doctrine as in India, nor to a basic order of fundamental values as in Germany.

In Hungarian legal literature, it is commonly accepted that the constituent power forms the basis of constitutional democracy, although it is not a part of it much like the way that other state actors are not.^[957] However, the scope and immunity of this power and its relation to sovereignty have often been debated.^[958] The Constitution, as well as the Fundamental Law, differentiates between the competence of the Parliament to adopt the Constitution and the competence to amend it. One group of scholars argue that this solution proves that both competencies are given to a two-thirds majority of the Parliament, which accordingly means that there is no feature that would distinguish between the constituent power and the amending power in Hungary.^[959] The other group of scholars interprets the same constitutional solution as proof of separation between the constituent power and the derived amending power, as the two competencies and the two functions are mentioned separately in the text of the Constitution.^[960] The Constitutional Court did not arrive at an explicit decision on this fundamental question when it reviewed the consti­tutional amendments adopted between 1990 and 2010, although a decision on this issue is essential to be able to make comprehensive decisions on the matter.^[961] Although there is no explicit verdict on this problem, the decisions of the Constitutional Court suggest that the majority of judges either overlook this problem or do not find the distinction between the constituent power and the amending power important.

The Hungarian Constitutional Court was first faced with the problem of judicial review of constitutional amendments already in its fourth year of existence after the transition of 1989-1990. A 1994 Constitutional Court decision,^[963] in which the Constitutional Court refused to have competence for a substantial review of amendments, was adhered to in its main lines of argument by the Hungarian Constitutional Court until 2011. Criticism was also not very loud at the time because the constitutional amendments were more or less in conformity with the Constitution and, what is more, both legal practitioners and the academia were more or less satisfied with the major directions of Hungary’s constitutional development. The Constitutional Court argued that the Constitution conferred power to the Constitutional Court solely to review ordinary legislation, and amendments to the Constitution do not qualify as ordinary legislation in this sense.^[964] The Constitutional Court stressed that there is no rule in the Constitution that would prohibit another rule from being modified or repealed^[965] and, in the Constitutional Court’s interpretation, the Constitution contained no explicitly or implicitly una­mendable provisions.

In its early jurisprudence, the Constitutional Court also declared that amend­ments belong to the competence of the constituent power and that the text of an amendment will become part of the Constitution regardless of its substance.^[966] The Constitutional Court usually assessed the question of its competence as a classic issue of the separation of powers.^[967] This was the starting point of development.

2.3 Scope and Enforcement After 2010

Although the debate on the necessity of entrenchment, on the necessity of imple­menting eternity clauses should have been more intense during the drafting of the Fundamental Law in 2010-2011,^[968] the Fundamental Law contains neither an explicit rule nor any orientation concerning the same.

Decision 61/2011 (VII.12) of the Constitutional Court was the first to react to the fact that the Parliament codified with a constitutional amendment the possibility of levying a tax which was previously held to be unconstitutional by the Constitutional Court. The Court decided that the Parliament using the Fundamental Law to serve its political interest of the day was highly problematic. It signalised that, from the standpoint of the rule of law, the stability of law and the constitutional order, such conduct is not acceptable. The Court found the way of forming constitutional order by such amendments problematic, primarily because it weakens the democratic legitimacy of the Fundamental Law given that there is no wide social consensus on each and every provision of the Fundamental Law.^[969] However, this strong opinion of the Constitutional Court remained obiter dictum as, according to a majority decision the Constitutional court, it is not authorised to conduct a substantive review of amendments of the Fundamental Law. With this argument, the ratio decidendi basically reinforced the previous standpoint of the Constitutional Court. One slight novelty of the case was, however, that the Court clearly emphasised that, within its competence, it would review whether the Parliament satisfied all proce­dural requirements. Although from 1990 onwards, the Constitutional Court’s view that it is not competent to review whether amendments were adopted in conformity with the procedural rules worded in the Constitution was almost unanimous, as this question was renegotiated on a case-by-case basis and not settled clearly in the constitutional text, it seemed to be important for the Constitutional Court to emphasise this competence again.

As a signal to the amending power, this decision affirmed that the jus cogens of international law, the common principles of constitutional heritage and international law accepted by the Hungarian State, are obligatory for the ‘constituent power’ as well. The Court, in the same part of the decision, concluded that the separation of powers has a primary role in the Hungarian constitutional order and that the Constitutional Court must respect the limits of its competence. Stepping into the shoes of either the legislative power or of the constituent power is not acceptable.^[970] This decision made it clear that the Constitutional Court tackled amendments as acts of the constituent power, and not as acts of the amending power. The Court did not differentiate between original and derived constituent power either.

The reasoning of this decision shows that, in 2011, the separation of powers and deference are still the leading approaches to the question of review. Reading this decision, we must take it for granted that, according to the Court, amendments represent the will of the constituent power and that, therefore, they cannot be reviewed by the Court, although this will has boundaries with regard to merits. There is, however, a contradiction: if the constituent power and the amending power have the same status, it is not that easy to justify the substantive limits of amendments.^[971] The struggle of the Court and the tensions, the contradictions in the decision are caused by its doctrinal deficiencies. In a situation in which the Guardian of the Constitution feels that it is necessary to send signals to the Parliament’s two-thirds majority, a clear and consequent legal interpretation would probably have been more useful in defence of the constitutional order.^[972]

A long year later, after the Fundamental Law of Hungary entered into force on 1 January 2012, Decision 45/2012 (XII.29) of the Constitutional Court ruled that the part on the transition from a Communist dictatorship to a democracy (in the Preamble), many articles of the Transitional Provisions of the Fundamental Law of Hungary, and a separate act adopted in a constitutional amendment procedure on 31 December 2011 are all contrary to the Fundamental Law of Hungary. The Constitutional Court annulled these provisions with a retroactive force as of the date of their promulgation. The Constitutional Court articulated that it is not possible to amend the Constitution with another piece of legislation outside the Fundamental Law even if the legislator calls it a part of the Fundamental Law. This way, the legislator takes the competence of the assumed constituent power, violates the separation of powers and makes it impossible for the Constitutional Court to conduct a substantive review on that piece of legislation.^[973] The decision of the Constitutional Court, however, stayed within the limits of procedural, formal rea­soning, and did not take into account the content of the relevant Transitional Provisions.^[974] In this decision, however, the Constitutional Court obiter dictum, with the aim of signalling, emphasised again that constitutional amendments should conform not only to procedural rules but also to the basic founding principles of the rule of law democracy constituted in the Fundamental Law.

However, following this decision, the two-thirds majority of the Parliament made it clear that it has the intention to amend the Fundamental Law in a normal amendment procedure, with the content of the amendment being more or less the same. By the fourth amendment to the Fundamental Law in 2013, the two-thirds majority implemented similar or identical rules in the text of the Fundamental Law that had earlier been struck down by the Constitutional Court on both procedural and substantive grounds as part of ordinary legislation. This time, the Parliament observed the standard amendment procedure rules.^[975]

A contradiction in judicial intention could here again be emphasised because, although the Constitutional Court declared the amendment null and void on pro­cedural grounds emphasising that it is not competent to review it substantively, it signalled that the limits of constitutional amendments are not only procedural, but also substantive. The Court referred to unamendable inherent value standards that must be met by constitutional amendments.

In the next cornerstone decision on unamendability—more specifically, in Decision 12/2013 (V.24) CC—the Constitutional Court reviewed the constitu­tionality of the Fourth Amendment of the Fundamental Law. The Fourth Amendment introduced a significant change in the constitutional order of Hungary and was criticised by many both national and international constitutionalists.^[976]

The Fundamental Rights Commissioner filed a petition with the Court for review of the constitutionality of certain provisions of the Fourth Amendment to the Fundamental Law. The Commissioner argued mostly on formal, procedural grounds, but he also claimed that, in addition to the narrow interpretation of the violation of procedural requirements for the adoption of the amendment, the amendment is unconstitutional in a broader sense because it creates a discrepancy within the Fundamental Law itself. Amendments which generate incoherence within the Fundamental Law cannot be incorporated in it. In his opinion, the coherence of the Fundamental Law was clearly violated by the Fourth Amendment because it explicitly contradicted previous Constitutional Court decisions.^[977]

The Constitutional Court further stated that, under Article 24(5) of the Fundamental Law, the Court may only review the Fundamental Law and amend­ments to it for conformity with the procedural requirements laid down in the Fundamental Law with respect to their adoption and enactment (in the case of procedural error). The Court highlighted the limits of such competence. It also added that it would not extend its powers to review the Constitution and new norms amending it without express and explicit authorisation in the constitutional text.^[978] The Constitutional Court emphasised that carrying out a substantive review is beyond its competence because the new provisions in the Fourth Amendment to the Fundamental Law explicitly prohibit substantive reviews.^[979]

However, the Court added to these arguments that, when interpreting the Fundamental Law in the future, it will also take into consideration the obligations that Hungary has undertaken in the international treaties it signed or those that follow from EU membership, along with the generally acknowledged rules of international law, and the basic principles and values reflected in them. It stated that these rules constitute a unified system of values which are not to be disregarded in the course of adopting a constitution, adopting amendments or in the course of constitutional review.^[980]

These arguments carry doctrinal problems equally to the former decisions I have mentioned. While interpreting the decision, we may observe that the Constitutional Court mentions substantive limits applicable to amendments. These limits are connected to Article E^[981] and Article Q^[982] of the Fundamental Law, which render the Hungarian constitutional order a part of the EU legal system and part of the international legal world. These limits seem to be interpreted as part of a certain European value system. Although the Constitutional Court is certainly very definitive in eliminating the idea of unamendability from Hungarian constitutional law, when it talks about certain limits to formal constitutional changes, about the constrains created by judicial interpretation, it is, in fact, creating unamendability as a judicial discovery. It is rational enough, as I shall explain in the next subchapter, that if certain limits are constructed by the judiciary, the amending power is no longer unlimited. If it is not unlimited, the judicial interpretation of certain con­stitutional provisions will constitute a burden on change. Principles, such as general respect for the fundamental values of EU law and adopted international law, must take root in the national constitution. If the Constitutional Court states that con­stitutional reviews will respect these values, it practically constitutes some sort of unamendability.^[983] In other words, by having preserved its competence for the “coherent interpretation” of the Fundamental Law, the Constitutional Court declared that its duties are not limited to identifying the text of the Constitution and to interpreting it according to the original intent of the constituent power, and that they will rule in each and every case by autonomously interpreting^[984] the provisions of the Fundamental Law.^[985]

One might, therefore, conclude that, although the Fundamental Law does not contain unamendable provisions and although the Fundamental Law since 2013 explicitly limits the right of the Constitutional Court to review amendments on a substantive basis, the Constitutional Court, by way of interpretation, deducted the right from the Fundamental Law to construct limitations to amendments. Limitations to formal constitutional change mean unamendability.^[986]

Although, as I have shown above, the case law of the Constitutional Court has not been too elaborative on doctrinal grounds relating to the mentioned limits of change,^[987] in the next part of this chapter, I shall try to explain in detail how unamendability could be reconstructed by interpreting the Fundamental Law of Hungary.

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