Constitutional Democracy

1. Introduction

1. Introduction The Hungarian Constitutional Court is the offspring of the 1989 transition. Its creation and the fundamental principles of its operation were agreed upon at the national round table.1 Its objectives, competences and procedural rules were specified by the constitution amended on October 18, 1989 and by the law on the Constitutional Court adopted on the following day.2 The first five justices were elected in the course of the following month, while six justices were delegated by the new Parliament in June 1990. The mandate of the first members of the Court expired by the end of November 1998.3 In June 1999 the other six had also reached the end of their term.4 An era has come to its conclusion. With it, the time of summary assessment has also arrived. The political institutions of the republic are familiar to the Hungarian society. The Parliament is a body with great tradition. The idea of a government responsible to the legislature originates with the revolution of 1848. The institution of the presidency as placed outside the executive and having strongly limited powers with respect to the legislature was first established in 1946, as a republican extension of the April laws of 1848 on constitutional monarchy. The autonomy of local governments is an inheritance from time immemorial. By contrast, constitutional review has no precedents. Hungary did not have a written constitution prior to 1949 and the institution of constitutional guardianship was unknown to it. The socialist constitution adopted in 1949 was a parody of constitutionalism; it was intended by its framers as an ornament that could be at any time dispensed with rather than as a source of individual rights and obligations for the state.5 Political agents had to learn after 1989 what it is for them to live in a constitutional democracy, where all public institutions must act within the constraints of the constitution, and where a court oversees their adherence to the constitution . 120 ⁄ Constitutional Review 1.1. TWO CONCEPTIONS The general public as well as the legal community had, in 1989, such ideas about constitutional review that were for the most part reminiscent of the era that preceded that of constitutional democracies. These ideas were dominated by the traditional notion of the rule of law combined with parliamentary omnipotence. Parliamentary omnipotence. This means that popular representatives are authorized to make laws to bind the state and its citizens, and all other government agencies must act within the constraints of the rules made by the Parliament. The Parliament, on the other hand, is bound by nothing else but the rules that were made for itself by itself and which it may amend at any time by the required majority, at its own will. But the traditional conception combined the idea of parliamentary omnipotence with that of the rule of law, understood as the formal requirements comprised by the notion of Rechtstaat, which had been crystallized by the end of the nineteenth century. On the one hand, a Rechtstaat is a state whose authorities may not act against its citizens or against each other at their arbitrary will. They can enforce only such obligations against private persons that are specified by legal provisions and only if the addressees of such provisions had the chance to learn about these rules. And they may exercise only such powers that were granted to them by universally known provisions of law. On the other hand, the constraints of a Rechtstaat specify only formal procedural requirements; they are silent about the content of rules made and enforced. Any law enacted by the Parliament may be a valid rule if made in conformity to the legislative procedures. A state may oblige its citizens to follow some established religion and still be a Rechtstaat. Should there be no such rule that prohibits this, we may disapprove of the absence of the freedom of religion and of conscience, but our disapproval will be of a purely moral character, and it will not affect our legal assessment of the government’s religious policy.6 Neither the idea of parliamentary omnipotence nor that of a Rechtstaat rule out the possibility of constitutional review as a matter of principle. The omnipotent Parliament has also the power to restrain itself by constitutional procedural rules. It has the power to stipulate, for example, that the amendment of constitutional rules requires some special majority. It has the power to declare that whenever there is a conflict between...