Juridical Review of Unconstitutional Constitutional Amendments

I repeat here that, in its Decision 12/2013 (V.24) CC, the Constitutional Court states 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 its adoption and enactment (in cases of procedural error).

I have argued elsewhere that the arguments of political philosophy might make it possible to justify the review of constitutional amendments. It is easier to do this justification if we accept—what I accept in this chapter revising my earlier stand­point—that the original constituent power can be differentiated from the amending power. I claimed, however, that this justification may be possible even for those who cannot be convinced about the said differentiation.^[1022] I also concluded that the Hungarian case law uses famous foreign examples to show the stability of the Constitution and to substantively reply to the constant amendments of the Constitution and later to the Fundamental Law after 2010, but the decisions are not clear.^[1023] Here, the necessary comparative context is already provided by my learned colleagues,^[1024] and so I prefer to argue that again a legal method of interpretation is capable of verifying that the Hungarian Constitutional Court—and I believe in the general force of this interpretation—has the right and the constitutional duty to substantively review constitutional amendments upon petition.

Article 24 of the Fundamental Law gives competence to the Constitutional Court to review any piece of legislation for conformity with the Fundamental Law. However, Article 25(5)—adopted by the Fourth Amendment to the Fundamental Law in 2013—declares that “the Constitutional Court may only review the Fundamental Law and any amendment thereof for conformity with the procedural requirements laid down in the Fundamental Law with respect to its adoption and promulgation. Such a review may be initiated by the President of the Republic in respect of the Fundamental Law and any amendment thereof, if adopted but not yet published, or by the Government, a quarter of the Members of Parliament, the President of the Curia, the Supreme Prosecutor or the Commissioner for Fundamental Rights within thirty days of publication.”

On first reading, we see that there is an explicit desire formulated in the Fundamental Law that amendments shall be reviewed only on procedural grounds. On second reading, however, the situation is more complex than this. What amounts to be a procedural requirement?

Procedure has different understandings in legal doctrine. Both rules on compe­tence and rules on procedure are necessary so as to be able to adopt a certain amendment irrespective of its substance. There is no procedure without compe­tence. Rules on competence could therefore be interpreted as procedural require­ments. As has earlier been argued, amending provisions not being able to contradict the unamendable parts of a constitution can be justified. The amending power does not have competence for these amendments. If we accept that the constitution has unamendable parts as I have argued above, the Fundamental Law allowing for quasi-substantive reviews of amendments can be justified if the petition claims that the amending provisions violate the unamendable core issues of the Hungarian Fundamental Law. Procedural guarantees might equal substantive guarantees with regard to the protection of the Constitution, because the amending power does not have competence to violate the unamendable parts of the Constitution due to a lack of competence. Moreover, the reviewing competence is hardly possible without reviewing the substance.^[1025]

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