Implicit Unamendability in the Fundamental Law of Hungary Discovered by Applying Different Legal Methods
I argue, on the pages that follow that the struggle of the Hungarian Constitutional Court suggests that some sort of unamendability belongs to the nature of a constitutional order, even when a constitution does not contain unamendable provisions.
In the following part of my chapter, I shall try to near Hungarian unamendability using the legal methods of judicial interpretation. I shall examine in more depth the ways that these said limits on constitutional amendments could be justified. As a result of this examination, inspired by the argumentation of Judge Andras Bragyova, I discover several constitutional principles and one concrete unamendable provision in the Fundamental Law.3.1 The Discovery of Unamendability by Purposive Interpretation
The unamendability of a constitution cannot be explained without taking a stand on how I understand the constitution. When I talk about the Constitution of Hungary in this text, I refer to the Constitution as the supreme law that defines the validity of all the norms of the legal system, the Constitution included.[988] Although adopting a constitution (the constitutional moment) is undoubtedly a political act,[989] constitutional democracy in Hungary, after the transition of 1989-1990, was based on the concept of legal constitutionalism.[990] The Austrian-German heritage of public law[991] had had a very strong effect on the Hungarian constitutional transition of 19891990, and the political elite followed the Hungarian Constitutional Court’s view on a legally normative constitution.[992] In this Kelsenian concept, a constitution contains legal norms at the top of a legal system that legally defines the validity of the legal system. This approach was widely accepted not only by the members of the Constitutional Court but also by political actors and most constitutional law scholar.
This approach was anticipated as a new level of constitutional development, where a limited government and the protection of fundamental rights are central values.[993] The review power of the Constitutional Court being strong and the activism of lawyers forming a judicial body were also widely accepted by both the political elite and legal scholars because, according to this concept, the constitution can only be part of a normative order if it is interpreted and enforced by the state through constitutional adjudication. Amendments to a constitution are also part of this socially constructed normative order.[994]A constitution as a special norm contains provisions on the possibility and the limits of its own amendment.[995] These provisions are very special, and the creator of these rules, the constituent power, ceases to exist at the very moment of the adoption of a constitution.[996] Agreeing with Alf Ross, one can suppose that, since the constitutional moment, the final source of law is in the system.[997] Similarly: the source of the legitimacy of a constitutional state is neither with the people nor with the constituted state, but rather in a balanced relation between the normative order, as the ideal of constitutionalism, and governmental action.[998]
In modern constitutions, it is usually the people or the nation[999] who are entitled to be the source of power, but whichever it is, it is the constitution that normatively makes them bear this nature. Without a normative constitution, we cannot identify the source of state power and the limits of government, and we are also not capable of describing the limits of constitutional change, and unable to define unamendability. The normative nature of the constitution implies that the rules on amending the constitution and the limits thereof are open to interpretation.
Depending on their interpretation, constitutional amendments can be of two types.
One type is when an amendment does not ruin the meaning of the original provisions but rather complements them. The other is when a new provision is contradictory to the old ones, and so they cannot be valid at the same time. These are unconstitutional constitutional amendments. Whether a new provision belongs to the first or the second category can be decided only by interpretation. Is it, however, possible for a constitutional amendment to be unconstitutional?Hungarian scholars often argue that the concept of unconstitutional constitutional amendment is not sound, because the sovereignty of the people is unlimited and unique as stated in Article B) paragraph (3) of the Fundamental Law: “The source of public power shall be the people.” As “Article 1(2) a) of the Fundamental Law declares that the Parliament shall adopt and modify the Fundamental Law of Hungary”, the constitution-making power and the amending power is, therefore, unlimited. This logically implies that there can be no contradiction between the provisions of a constitution, because a later amendment simply either completes or overrules the former rules should we interpret them together. Unconstitutionality is, therefore—nonsense.[1000] Furthermore, neither international nor EU legislation can constitute a limit to constitutional change, given that the Constitution is the source of the binding force of both international and EU law.
I shall argue against this interpretation on the basis of the Fundamental Law and in line with other Hungarian scholars.[1001]1 claim that this view confuses the notion of sovereignty with the notion of the constituent power. Popular sovereignty itself is a highly debated concept in modern constitutional thought and is definitely very far from empowering a concrete ensemble of people.[1002]
Amending a constitution in a procedure established by the constitution itself is far from being an act of an unlimited and unique sovereign. Sovereignty forms a constant part of each democratic order, while the existence of the constituent power is limited to the constitutional moments of constitutional democracies.
The constitution itself creates a normative ground for the will of the people (constituent power) in order for the constitution to gain legitimacy. The logic of popular sovereignty as a construction of political thought is, on the other hand, that the people as the source of state power are always present in state administration, which makes the government always limited and representatives of the people never completely independent. The constituent power is unlimited at a constitutional moment, while the constitutional concept of popular sovereignty does not mean the concrete, unlimited exercise of the power of the people during the lifetime of a democratic order.[1003]In Hungary, the 1989-1990 democratic transition and the above mentioned general amendment to Act XX of the 1949 Constitution of the Republic of Hungary was certainly a constitutional moment. A socialist constitution became the constitution of a rule of law democracy. I further argue that the Fundamental Law of 2011 was not born in a constitutional moment, and that it was not an act of the constituent power, but a general amendment to the Constitution although adopted in the form of a new text. As I have already mentioned when citing the provisions of the Fundamental Law, the Fundamental Law itself finds its grounds in the Constitution when it declares that the adoption of the new Constitution is the fulfilment of the requirement of the Constitution to adopt a new text which is necessary to finalise the democratic transition.[1004]
Because of this specificity, the special circumstances of the adoption of the Fundamental Law, the fact that, from a legal point of view, the adoption was not an original constitution-making process, I shall argue that the new Constitution, the Fundamental Law, cannot contradict the unamendable provisions of the former Constitution. Accordingly, the question is whether there was any unamendability in the former Constitution the force of which was binding for the new Constitution, the Fundamental Law.
Although my approach is purely doctrinal in this text and I do not evaluate constitutional change, I should explain here that originally, in 2011, the constitutional two-thirds majority did not have outstandingly revolutionary constitutional thoughts, and that, in spite of important criticisms of certain parts of the text,[1005] many acclaimed scholars qualified the Fundamental Law as a consolidated version of the former Constitution.[1006]
I must mention another doctrinal argument so as to buttress the dependent nature of the Fundamental Law. The argument, in a normative sense, says that one constitution cannot bind a subsequent constitution. If a new constitution is created according to the rules of a former constitution as it happened in Hungary, the new constitution cannot be the result of an original constitution-making process.
I argue that, first of all, the old Constitution set limits to the new Fundamental Law in its Preamble. The Fundamental Law is embedded in the constitutional transition of 1989-1990. The legal relation between the old and the new constitutions is—continuity. The Preamble of the Constitution is often referred to by politicians and scholars alike as proof of the temporary and transitory nature of the Constitution of the transition.[1007] It declares (again) that “in order to facilitate a peaceful political transition to a constitutional state, to establish a multiparty system, parliamentary democracy and a social market economy, the Parliament of the Republic of Hungary hereby establishes the following text as the Constitution of the Republic of Hungary until the country’s new Constitution is adopted.”
According to the Preamble, the Constitution was created to reach a certain level of constitutional democracy. The transition was, therefore, not just any transition, but a transition with well-defined aims and values.[1008] According to the Constitution, the text of the Constitution was created in order to reach a certain level of development of constitutional democracy by requiring the adoption of a new constitution based on the said fundamental values.
This was the original intention of the constituent power of 1989-1990.The level of development that had to be reached can be defined by four constitutional requirements: multiparty system, parliamentary democracy, rule of law and social market economy.[1009] Are these provisions of the Preamble amendable by a simple procedure of adoption of a new constitution within the competence of the Parliament granted by Article 19(3)(a) of the Constitution (“the Parliament adopts the Constitution of the Republic of Hungary”)? Or does this represent a substantive, unamendable requirement that cannot be overruled by the Fundamental Law as a derived constitutional act? Besides the above-mentioned values, is the republican form of government also binding on a general constitutional amendment if it is based on the Preamble of the former Constitution?
A purposive interpretation suggests that, if the new constitution is adopted on the basis of the former constitution referring both to the transitory nature of the former constitution and the aims of the democratic transition so as to create a new constitution, the essence of the purpose of the new democratic constitutionalism cannot be transformed. This does not mean the duty to observe the same understanding of the said value statements, but rather that these are unamendable in a sense that cannot be eliminated, completely overruled within the same constitutional order.
A multiparty democracy and the republic were already immediately established with the transition, but the other values are constantly changing in Hungary’s constitutional democracy. These are never completely settled, and their implementation requires the state’s ongoing efforts.
I do not analyse here the rule of law index of Hungary after 2012. Many works published also in English show in great detail the deficiencies of Hungary’s constitutional democracy.[1010] My aim here is modest. I wish to argue that these values are implicitly unamendable because the Fundamental Law itself defined its origins in the Preamble and in certain provisions of the former Constitution, thus making these substantive and procedural provisions binding for the complex amendment that created the Fundamental Law. But, will they be binding forever?
3.2 The Discovery of Unamendability by Structural Approach
Some constitutional provisions remain binding on constitutional change forever within the same constitutional system. This is a logical outcome if we accept the approach of Alf Ross or Martin Loughlin cited above. If we accept that a constitutional democracy is an order, a system, and that the legitimacy of the constitutional democracy is in the system, we must follow the argument that the entire system must have a guiding rule. If there was no such rule, we would be talking about anarchy and not about a constitutional order. Introducing the case law of the Hungarian Constitutional Court, I have argued that judicial interpretation in Hungary tends to accept that the amending power is limited because the judicial interpretation that will finally lead to the implementation of the disputed provisions will take into account the entire system. None of the constitutional provisions have a separate meaning, all are interpreted jointly. So what exactly is unamendable, which provision?
The Hungarian Constitutional Court does not tell us. The 2014 decision of the Czech Constitutional Court on striking down the constitutional amendment on the new definition of the House of Representatives was heavily criticised, because the content of unamendability that it referred to was (undefined and) open (to interpretation), thus allowing judicial interpretation to define constitutional violations on a case-by-case basis.[1011]
The Hungarian coherent interpretation, the basic structure or the constitutional identity arguments are limited in competence. They cannot tell precisely in advance and in abstracto what will amount to be unconstitutional in a future case.[1012] All they recognise is the nature of constitutionalism, a fight against arbitrariness, against state capture, against undue influence by courts, empowering judicial interpretation with setting limits in concrete cases through the application of the constitutional text. These concepts believe in structures, such as communication, balance, cooperation, negotiated values and structured procedures.
Legal interpretation is regarded as yet another procedure to secure justice in a constitutional democracy.[1013] It is in line with the original purpose of modern legal interpretation.[1014]
Within the concept of legal constitutionalism, when the constitution is part of the normative order like in Hungary, unamendability is perceived as a special pillar of the constitutional construction. If the unamendable norm is amended, all the other norms in the constitution become invalid, the construction collapses.
A coherent, structural interpretation, therefore, primarily helps to avoid this scenario by finding the pillars of the construction. The entire construction must have at least one pillar. Constitutional courts make sure that this pillar remains stable, and invalidate all acts of amendment that try to eliminate it.
It is pure logic that unamendability also applies to the amendment of unamendability rules, otherwise the constitutional construction is not safe.[1015] These rules can be both explicit and implicit in a constitution. I shall present a concrete, implicitly unamendable provision of the Hungarian Fundamental Law in the next subchapter.
3.3 Unamendability by Textual Interpretation
I have shown so far, through analysis, that the Hungarian Fundamental Law has unamendable norms according to certain rules of interpretation. I argue here that, as far as the basic provisions of the Fundamental Law on fundamental rights protection are concerned, discovering their unamendability based on a purely textual interpretation of the provision is even less problematic. Since this idea is not the mainstream position in Hungarian legal thought,[1016] it needs further clarification. Article 1(1) of the Fundamental Law rules that ‘the inviolable and inalienable fundamental rights of Man shall be respected. It shall be the primary obligation of the State to protect these rights’. In paragraph (2), we read that ‘Hungary shall recognise the fundamental individual and collective rights of Man’.
This provision is very similar, almost identical in terms of its merits, to the one of the former Constitution expressed in Article 8(1). As Andras Bragyova already explained in his study in 2003 and his thesis can be applied for understanding the Fundamental Law, there are several essential declarations in these provisions that back up their unamendability.[1017] These provisions have three main elements: (1) the provision in the Fundamental Law talks about ‘the right of Man’, (2) these rights are ‘inviolable and inalienable’, and (3) Hungary ‘recognises these individual and collective rights’.
That human rights, called fundamental rights in the text of the Fundamental Law, are inviolable and inalienable comes not only from copying the text of international treaties but also from the philosophy of human rights. This defines the constitutional nature and the source of validity of these human rights. Inalienable means that the Fundamental Law and the State cannot take these rights away; these are, by nature, immune to state capture. The Constitution prohibits, itself included, the violation of these rights. Therefore, an elimination of these provisions would invalidate the Constitution itself, since a constitutional amendment is validly not capable of eliminating binding rules, which are binding on the amendment as well. Should this happen and should nobody invalidate the amendment, the constitutional system becomes invalid as a whole. (I shall talk about the unamendable nature of constitutional review related to this argument in the next point of this subchapter.)
We can argue that paragraph (3) of the same provision of the Fundamental Law is a necessary consequence of this interpretation. It says that a ‘fundamental right may only be restricted in order to allow the exercise of another fundamental right or to protect a constitutional value, to the extent that is absolutely necessary, proportionately to the objective pursued, and respecting the essential content of such a fundamental right’.
This Wesensgehaltgarantie also applies to constitutional amendments with regard to fundamental rights, because this basic constitutional guarantee is, by textual interpretation, immune to constitutional change. Even if the Constitution were changed so as to disregard human rights, human rights would continue to exist. In other words, according to the Hungarian Fundamental Law, the ‘essential content of fundamental rights’ cannot be further derogated by the State. These are unamendable by the national Constitution.
The third element of this provision of the Fundamental Law states that Hungary ‘recognises’ these rights. The wording of the provision suggests that these rights are not part of positive law, but exist independently. This independence means that it is not the national Constitution which describes the content of these rights, but that they are developed independently. Accordingly, it is also possible that a new right or a different understanding of a right becomes part of the Constitution, and Hungary shall recognise this. This is what recognition is in the Fundamental Law. Thus, these norms have a dual status: (1) they are part of the Fundamental Law as fundamental rights and (2) they are also valid independently of the Constitution.
I believe that the Constitutional Court’s Decision 12/2013 (V.24) CC explains the above in detail, emphasising the need to accept the international ius cogens in any situation, independently of the national Constitution.[1018]
This does not, however, mean that the amending power cannot carry out constitutional change concerning these provisions. Quite the contrary, these provisions on fundamental rights can also be changed by amendments. The guarantee of unamendability requires solely that the essence of these provisions be taken in due account when amending the Constitution. I conclude, in line with Bragyova, that the Hungarian case is very similar to the German one regarding its outcome, although the Fundamental Law does not say so explicitly.[1019]
3.4 Unamendability by Logical Interpretation
Following Judge Andras Bragyova’s concurring opinion,[1020] I must finally highlight one of the strangest constitutional amendments in Hungary since 2010 in order to demonstrate a further point of unamendability.
I argue that, once it is established, constitutional review as such is unamendable in legal constitutionalism. Once a constitution implements constitutional review, in case of conflict, the instrument of constitutional review is of ultimate necessity to tell if a piece of law is contradictory to the constitution or not. There is no validity without a potential review. It is necessary to accept, based on pure logic, that constitutional review as such cannot, accordingly, be validly eliminated from the constitutional order.
In Hungary, the Constitutional Court is empowered to review and strike down all pieces of law that do not conform with the Fundamental Law. However, Article 37 (4) of the Hungarian Fundamental Law reads that ‘As long as the level of state debt exceeds half of the Gross Domestic Product, the Constitutional Court may, within its competence, pursuant to points (b) to (e) of paragraph (2) of Article 24, review Acts on the central budget, on the implementation of the budget, on central taxes, on duties and on contributions, on customs duties, and on central conditions for local taxes as to their conformity with the Fundamental Law exclusively in connection with the rights to life and human dignity, to the protection of personal data, to freedom of thought, conscience and religion, or in connection with the rights related to Hungarian citizenship, and it may annul these Acts only for the violation of these rights. The Constitutional Court shall have the right to annul without restriction Acts governing the above matters if the procedural requirements laid down in the Fundamental Law for the enactment and publication of such Acts has not been observed’.
Already in 2010, the Hungarian amending power limited the competencies of the Constitutional Court in response to the Constitutional Court’s uncomfortable decisions. Since then, as has above been described, the legislative power is free to implement any unconstitutional law in the field of financial legislation, because no state body is empowered to judge the validity of these acts. The size of this black hole depends on the interpretation of the Constitutional Court, but the black hole most certainly cannot be completely eliminated by judicial interpretation.[1021]
This example explains that, in a constitutional system, where validity depends on a judicial interpretation of the constitution as part of the normative legal order, the provision on constitutional review is an unamendable part of the constitution, because otherwise the validity of the legal system becomes obscure and undefined, and this opens the door to arbitrariness.
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