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Two Eras of Hungarian Constitutionalism: From the Rule of Law to Rule by Law

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Abstract

Developments in Hungarian constitutional law after 2010 suggest that the era in Hungarian constitutionalism characterized by a commitment to the rule of law has been replaced by an era where the law is regarded as an instrument available to government to rule. Under the new Fundamental Law, which places alike the 1989 Constitution the rule of law at the centre of the constitutional order, the constraints which follow from the rule of law have been habitually overridden or ignored by the government acting in parliament. The Constitutional Court’s attempts to continue the legacy of pre-2010 constitutionalism were reproached by the government delimiting the powers of the Court or overruling its decisions in formal amendments of the constitutional text. In the domain of economic regulation, the differences in how the Constitutional Court and European judicial fora assess the legal measures which have restructured entire markets give a clear indication that the rule of law in Hungary has lost its previous enjoyed position in the Hungarian constitutional order.

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Notes

  1. The official English translation of the Fundamental Law (consolidated version after the Fourth Amendment) is available at <http://www.mfa.gov.hu/NR/rdonlyres/8204FB28-BF22-481A-9426-D2761D10EC7C/0/FUNDAMENTALLAWOFHUNGARYmostrecentversion01102013.pdf>. Accessed 14 September 2016.

  2. As László Sólyom, the first president of the Constitutional Court outlined ‘Even the traditional difference between the formal and the substantial concepts of the Rechtsstaat […] was revived and had to be reinterpreted. […] The Court made both the politicians and the population conscious of the secure protection constitutional rights […] and aware of one of the most important characteristic of the rule of law: political intentions can only be implemented lawfully and within the framework of the Constitution – not vice versa, as before, when the law was conceived as merely a political tool. […] The Court, moreover, developed a moral explanation of its position. It introduced the paradoxical phrase “revolution under the rule of law”.’ (Sólyom 2000, p. 38).

  3. Petrétei (2009), pp. 139–159.

  4. Győrfi and Jakab (2009), p. 174.

  5. Sólyom (2015), pp. 6-7.

  6. Decision 11/1992 of the Constitutional Court.

  7. Tóth (2009), p. 147.

  8. For example, the Constitutional Court never paid much attention to the concept of democracy and to its relevance in constitutional interpretation, see, Minority Opinion of Judge Kiss in Decision 39/1999 of the Constitutional Court.

  9. Act 1949:XX on the Constitution of the Republic of Hungary as revised in 1989–1990, in force until 31 December 2011.

  10. Article 2(1) of the 1989 Constitution.

  11. Decision 11/1992 of the Constitutional Court.

  12. Ibid.

  13. Ibid.

  14. Ibid.

  15. Decision 9/1992 of the Constitutional Court.

  16. Decision 11/1992 of the Constitutional Court.

  17. Győrfi and Jakab, n. 4, p. 156.

  18. Ibid., p. 156.

  19. Ibid., p. 163.

  20. Ibid.

  21. Decision 288//B/2002 of the Constitutional Court.

  22. Decision 56/1991 of the Constitutional Court.

  23. Decision 2/2000 of the Constitutional Court.

  24. Decisions 317/E/1990 and 6/1999 of the Constitutional Court.

  25. Decisions 72/1995 and 10/2001 of the Constitutional Court.

  26. Decision 9/1992 of the Constitutional Court.

  27. Decision 29/1997 of the Constitutional Court.

  28. Decisions 34/1994, 15/1999 and 47/2003 of the Constitutional Court.

  29. Decision 45/2001 of the Constitutional Court.

  30. Decision 8/2005 of the Constitutional Court.

  31. Decision 28/1993 of the Constitutional Court. See also the nullum crimen, nulla poena sine lege principles.

  32. Decisions 35/1991, 11/1992, 26/1992, 21/2001 and 8/2003 of the Constitutional Court.

  33. Decision 32/1991 of the Constitutional Court.

  34. Decision 28/1992 of the Constitutional Court.

  35. Ibid.

  36. Decisions 11/1992, 62/1993 and 43/1995 of the Constitutional Court.

  37. Decisions 11/1991, 42/1997 and 16/2002 of the Constitutional Court.

  38. Győrfi and Jakab, n. 4, p. 192.

  39. Only the preamble of the now repealed act on the Constitutional Court took mention of the principle (Act 1989: XXXII, in force until 1 January 2012). (Chronowski et al. 2011, pp. 307–308.

  40. Decision 30/1998 of the Constitutional Court.

  41. Decision 31/1990 of the Constitutional Court.

  42. Decision 28/1995 of the Constitutional Court.

  43. The state of constitutionalism and the rule of law in Hungary has become since 2011 a subject-matter for constant debate and contestation in the European Union. See the triple-infringement procedures initiated by the Commission against Hungary in 2012 on constitutional matters, <http://europa.eu/rapid/press-release_IP-12-24_en.htm?locale=en> (accessed 14 September 2016), and the ensuing judgments, Case C-286/12 Commission v Hungary ECLI:EU:C:2012:687 and Case C-288/12 Commission v. Hungary ECLI:EU:C:2014:237. The European Parliament has hosted regular debates on democracy and the rule of law in Hungary. It is evident that the Commission Communication on ‘A New EU Framework to Strengthen the Rule of Law’ was inspired, in part, by Hungarian developments, <http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf>. Accessed 14 September 2016. The Council Conclusions on ‘Ensuring respect for the rule of law’ adopted in response are careful not to refer to individual Member States, <http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/genaff/146348.pdf>. Accessed 14 September 2016.

  44. See above, n. 3.

  45. This was also the case with the 1989 Constitution.

  46. See, the reaction to the Court’s annulment in Decision 45/2012 of the provision in the Transitional Provisions to the Fundamental Law on the ability of the government to impose extra taxes so as to meet obligations resulting from rulings by the Constitutional Court or by the Court of Justice of the EU of raising this rule to the constitutional level by means of the Fourth Amendment, which was repealed eventually by the Fifth Amendment after the Commission had raised the matter with the government. See also the circumstances of delimiting the review powers of the Court in n. 55.

  47. There are a number of instruments which are capable of conserving the constitutional text, such as including unchangeable provisions, requiring a referendum to approve certain amendments, or the requirement to obtain the approval of two consecutive parliaments.

  48. The sixth amendment (new, relaxed rules on introducing special legal order in case of a terror threat) is on the political agenda in 2016. For a scholarly analysis of the amendments, see Sonnevend et al. (2015), Vörös (2014), Zeller (2013).

  49. Such as cementing the model of limited constitutional review, breaking the continuity in the jurisprudence of the Constitutional Court under the 1989 Constitution and under the Fundamental Law, imposing restrictions on the exercise of the right to vote and the freedom of expression, and perpetuated practice of overruling the Constitutional Court’s decisions by means of constitutional amendments.

  50. See the EU’s involvement in above n. 43.

  51. <http://www.venice.coe.int/webforms/documents/?country=17&year=all>. Accessed 14 September 2016. The opinion providing a comprehensive assessment of the new Fundamental Law, while welcoming the Hungarian attempt at constitutional consolidation, formulated substantive criticisms of the new constitutional order, <http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282011%29016-e>. Accessed 14 September 2016.

  52. <http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2013)012-e>. Accessed 14 September 2016.

  53. The ‘repeal’ of its jurisprudence under the 1989 Constitution and the confirmation that its review powers are limited in matters affecting public finances.

  54. Sólyom, n. 5, pp. 7–10.

  55. The limitation of the review powers of the Constitutional Court was a political reaction by the government to a preceding decision by the Court annulling an act which imposed as intended by government retroactive tax obligations (Decision 184/2010 of the Constitutional Court). The quasi nationalisation of the entire private limb of the compulsory pension system followed the introduction of the limitation very shortly, the challenges against which were al declared as inadmissible by the Court on the basis of its new jurisdictional rules in Decisions 3291/2012, 3292/2012, 3293/2012, 3294/2012, 3295/2012, 3296/2012 and 3243/2012.

  56. Act 2010:CXIX.

  57. Disapproved by the Venice Commission in its comprehensive report on the Fundamental Law, above n. 51, and on the Fourth Amendment, supra n. 44, and in the opinion on the new act on the Constitutional Court, <http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282012%29009-e>. Accessed 14 September 2016.

  58. The violation of procedural rules in the legislative process, as it follows from the legal certainty principle, may also give rise to review by the Constitutional Court.

  59. ‘As long as state debt exceeds half of the Gross Domestic Product, the constitutional Court may, within its competence set out in Article 24(2)b-e), only review the Acts on the State Budget and its implementation, the central tax type, duties, pension and healthcare contributions, customs and the central conditions for local taxes for conformity with the Fundamental Law or annul the preceding Acts due to violation of the right to life and human dignity, the right to the protection of personal data, freedom of thought, conscience and religion, and with the rights related to Hungarian citizenship. The constitutional Court shall have the unrestricted right to annul the related Acts for non-compliance with the Fundamental Law’s procedural requirements for the drafting and publication of such legislation.’

  60. Varju 2012, p. 325.

  61. As Szente assesses, ‘the elimination of constitutional review of the public finance legislation […] creates the impression that the constitutional constraints of the executive power can be put aside in economically difficult times’, Szente 2015, p. 195.

  62. See on this G. Halmai and K.L. Scheppele, ‘Amicus Brief for the Venice Commission on the Transitional Provisions of the Fundamental Law and the Key Cardinal Laws’. <http://halmaigabor.hu/dok/426_Amicus_Cardinal_Laws_final.pdf>. Accessed 30 November 2013.

  63. Petition of the Ombudsman to the Constitutional Court concerning the Transitional Provisions, <http://www.ajbh.hu/en/web/ajbh-en/press-releases/-/content/14315/26/petition-of-the-ombudsman-to-the-constitutional-court-concerning-the-transitional-provisions-of-the-fundamental-law>. Accessed 30 November 2013.

  64. Decision 45/2012. The governing party declared immediately after the decision that the annulled provisions will be inserted into the Fundamental Law by way of a constitutional amendment.

  65. The Court in Decision 12/2013 acting in the review of the Fourth Amendment, although it rejected the admissibility of the application, made similar references to international and European constitutional achievements.

  66. Before the Fourth Amendment, the Court followed the practice of revisiting its previous jurisprudence adopted under the 1989 Constitution in case the text of the constitutional provisions was the same in the two documents, see Decision 22/2012. Decision 12/2013 on the Fourth Amendment established that under strict circumstances the previous jurisprudence may indeed be considered.

  67. This, in a sense, confirms Uitz’s argument that basic comparative analysis is able to point to the gradual decline of a constitutional system, Uitz 2015. While the narrative of a dialogue between Hungarian and EU law, or even of a learning curve’ could, in principle, be used to explain these developments, the contrast between the approaches followed domestically and at the European level suggests that, instead, we need to talk about what Uitz called ‘defiance’ by local actors.

  68. Tobacco retail: Acts 2012:CXXIV, 2014:XCV, 2014: XCIV; food retail: Acts 2014:LXXIV, 2014:CXII, 2012:CLVII; advertising and media: Act 2014:LXXIV; gambling (slot machines): Acts 2011: CXXV, 2012: CXLIV, 2013: CXXVI and CLXXXV; the tax-free remuneration vouchers market: Act 2011: CLV and Government Regulation 55/2011; the private-pensions market: Acts 2010: C and CI, 2011:CXCIV, Act 2010:CLIV.

  69. For an analysis of the balance found between policy effectiveness and constitutional protection in these measures, see Varju and Chronowski (2015).

  70. On how these decisions shaped economic constitutionalism under the new Fundamental Law, see Varju and Chronowski, n. 69. The protection of acquired rights and of legitimate expectations seems have disappeared completely, see Decisions 23/2013 and 26/2013 of the Constitutional Court. In general, in the new constitutional complaint procedures, which now take up the majority of the time of the Court, only the most visible violations of the rule of law are investigated, such as the prohibition of adverse retroactive effect, Order 1140/D/2006 of the Constitutional Court.

  71. Decisions 3062/2012, IV/03567/2012, 3194/2014 and 20/2014 of the Constitutional Court.

  72. See above ns. 21-26. From the pre-Fundamental Law jurisprudence, see, especially, Decisions 32/1991, 35/1991, 21/2001, 11/1992, 26/1992, 28/1992 and 8/2003 of the Constitutional Court.

  73. Decision 3062/2012 of the Constitutional Court.

  74. Decision IV/03567/2012 of the Constitutional Court.

  75. Decision 3194/2014 of the Constitutional Court.

  76. Decision 20/2014 of the Constitutional Court.

  77. Decision 34/2014 Constitutional Court. See also Decision 2/2015 of the Constitutional Court which confirmed the grounds decided in Decision 34/2014.

  78. Case C-26/13 Kásler ECLI:EU:C:2014:282.

  79. Para. 33, Vékony v. Hungary, Judgment of 13 January 2015, Appl. No. 65681/13, nyr.

  80. Ibid., para. 34.

  81. Ibid.

  82. Ibid., para. 35. It also emphasised that ‘the measure was introduced by way of constant changes of the law and with remarkable hastiness, the loss of the old licence was automatic, and the non-acquisition of a new one was not subject to any public scrutiny or legal remedy.’

  83. Ibid., para. 36.

  84. Case C-179/14 Commission v. Hungary ECLI:EU:C:2016:108.

  85. The way the court established the violation of EU law does include an indirect assessment of the legal circumstances of regulatory intervention: the risk of violating EU obligations must have been known, the provisions were clearly discriminatory, and the case involved clear regulatory favouritism to the advantage of local undertakings and to the disadvantage of their foreign competitors.

  86. Para. 174, C-179/14 Commission v. Hungary, above n. 84, in particular, the failure to grant a genuine transitional period, and the use of tax legislation to force incumbent economic operators out of the market.

  87. Ibid., paras. 69, 92-94, 115-116, 171-173, in particular, the interest of sufficient integration into the local economy, the availability of sufficient experience and infrastructure, and the availability of sufficient guarantees to consumers and creditors.

  88. Ibid., paras. 167–170. The rejection of the social policy grounds, as laid down in Act 2012:CIII, was the most painful to the government which seemed convinced that the measure had been adopted within social policy competences.

  89. Para. 56, Case C-98/14 Berlington EU:C:2015:386.

  90. Ibid., paras. 74–91, especially, paras. 85 and 87.

  91. Above n. 79.

  92. IP-15-5375 and IP-15-4598.

  93. Paras. 37–41, Case C-385/12 Hervis EU:C:2014:47.

  94. Decisions SA.41187, SA.39235 and SA.40018.

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Authors and Affiliations

  1. Hungarian Academy of Sciences, Institute of Legal Studies and ELTE, Faculty of Law, Budapest, Hungary

    Nóra Chronowski

  2. Hungarian Academy of Sciences, Institute of Legal Studies and University of Debrecen, Faculty of Law, Debrecen, Hungary

    Márton Varju

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  1. Nóra Chronowski
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  2. Márton Varju
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Correspondence to Márton Varju.

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Chronowski, N., Varju, M. Two Eras of Hungarian Constitutionalism: From the Rule of Law to Rule by Law. Hague J Rule Law 8, 271–289 (2016). https://doi.org/10.1007/s40803-016-0037-7

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