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Equality: The Missing Link
- Central European University Press
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Equality: The Missing Link KRisZta KováCs A constitution is much more than a fundamental legal document. It is the basic charter of the political community, which draws on the experience of the past and expresses hopes for the future to create a set of principles that are beyond the power of ordinary legislative majorities to change. The 1989 Constitution of Hungary was a good example of this. It had the potential to facilitate democracy and free markets and to ensure equal protection to all persons. In April 2011 a brand new constitution was promulgated, named the Fundamental Law. It changes the characteristics of Hungarian constitutionalism, abandoning the idea of a secular state based upon liberty, equality and democracy. This article evaluates the equality clause of the 1989 Constitution and the anti-discrimination jurisprudence of the last two decades, and compares the equality provision in the 1989 Constitution with the corresponding part of the Fundamental Law, thereby offering a measure for assessment of the place of equality in the Fundamental Law. The first part of this article provides a detailed analysis of the 1989 Constitution and examines the interpretive practice of the Constitutional Court concerning the three dimensions of the equality clause: prohibition of arbitrariness, a ban on discrimination and affirmative action. The second part describes the main features of the Fundamental Law that focus on the problem of equality, and how the wording of it in many aspects has an anti-egalitarian character. Further, the ban on discrimination marks, like the affirmative action clause, a step back from the level of equality guaranteed by the 1989 Constitution. 172 Constitution for a Disunited Nation The 1989 Constitution The concept of equality The 1989 Constitution did not contain a general equality clause.1 Despite this, it was based upon the concept of a political community of equal persons. This was manifested directly in several constitutional provisions. Article 54(1) ensured the right to human dignity, and Article 70/A(1) stipulated the ban on discrimination. According to this, the Republic of Hungary should ensure the human rights and civil rights of everyone on its territory without any form of discrimination, such as on the basis of race, color, gender, language, religion, political or other opinion, national or social origin, financial situation, birth or any other grounds whatsoever. Paragraph (2) said: “Any kind of discrimination described in paragraph (1) shall be strictly penalized by law.” In addition, the 1989 Constitution expressly ensured equal legal capacity; it provided for equality before the courts and it guaranteed equality of men and women in respect of all civil and political as well as economic, social and cultural rights. Furthermore, the constitution had an “equal pay for equal work” provision, it contained the principle of general and proportionate sharing of taxation, it ensured universal and equal suffrage, and last but not least it had an affirmative action clause.2 The Constitutional Court applied these constitutional norms 1 In constitutional law the general equality clause is a subsidiary rule, which applies when the specific, enumerated fundamental constitutional rights cannot be invoked. A general equality clause does not specify the content of the equality guaranteed, rather it states the postulate that whatever the content of the norms of the legal system, they should treat the subjects of law equally. A good example of this is Article 3 (1) of the German Constitution, according to which “all persons shall be equal before the law.” For more on this see Bragyova, A. “Equality and Constitution” in The Constitution Found? The First Nine Years of the Hungarian Constitutional Review on Fundamental Rights, ed. Halmai, G. (Budapest: INDOK, 2000), 257. It should be mentioned that the Hungarian Constitutional Court used the notion of the general equality clause differently; it construed such a clause to serve as the basis of all constitutional rights. In the present article I am using the term general equality clause in the latter sense. 2 Articles 56(1), 57(1), 66(1), 70/B(2), 70/I, 71(1), 70/A(3). The Hungarian Constitutional Court uses the term “positive discrimination.” In the [3.226.254.255] Project MUSE (2024-03-28 10:47 GMT) 173 Equality: The Missing Link to elaborate the “general equality rule,” according to which the law should treat every person with equal respect and assess their characteristics with equal concern.3 Certainly, rival conceptions of equality provide rival answers to the question of exactly what kind of regulation and distribution the principle of...