The new methods of constitutional interpretation

The Constitutional Court

‘ Clientelism, state capture, and the “ Gleichschaltung" of certain social systems (putting them under direct political control), which are also characteristic of populist governments, require the use of legal instruments’ - observes Szentc in the introductory chapter, describing one characteristic of populist constitutionalism identified by the populism literature. Hungarian legal scholarship often argues that the Constitutional Court was captured after 2010, because legal and constitutional changes had a great effect on the Constitutional Court after 2010.s

8 Fruzsina Gârdos-Orosz, ‘Challenges to Constitutional Adjudication in Hungary since 2010’ in Martin Belov (ed.), The Role of Courts in Contemporary Legal Orders (Eleven Publishing 2019) 321.

The Hungarian Constitutional Court was established on 1 January 1990, right after the democratic transition of 1989-1990. In the period after 1990, and in the years following the democratic change of regime, the Constitutional Court, perhaps justifiably open to criticism for its activism,[1] took on a significant role in forming the new constitutional democracy in Hungary after communism. The new constitution of Hungary - the Fundamental Law - entered into force on 1 January 2012 and replaced the previous Constitution that had been revised completely in 1989-1990. The Fidesz-KDNP party coalition, having gained a two-thirds constitution-making majority at the 2010 general elections, envisaged a new role for the Constitutional Court. The new regulation had been adopted in several steps, starting as early as in 2010 with the increase in the number of judges from 11 to 15 (the new members being elected by the new Government majority in Parliament) and the restriction on the competence to review legislation on public finance (occurring well after the 2008 financial crisis). The aim of tire transformation, according to the official reasoning of the Act on the Constitutional Court, was to give more emphasis to the protection of fundamental rights in individual judicial cases by the introduction of tire German-type constitutional complaint and, on the other hand, to abolish the possibility of actio popularis, by which procedure anyone could turn to the Constitutional Court without any particular interest in order to initiate the annulment of a piece of legislation deemed unconstitutional. There were significant scholarly concerns that by these changes tire constitution-making majority was reconsidering the central role of this institution in maintaining the rule of law and liberal democracy in Hungary by effectively reviewing the legislative and the government branches. Although the Constitutional Court, which is structurally separated from the Judiciary, still has the power to annul laws, some of its decisions were overridden by constitutional amendments in the 2010-2013 period, and the number of constitutional review procedures has significantly decreased following the new regulation, because, pursuant to Article 24 of the Fundamental Law, although the Constitutional Court is the principal organ for the protection of the Fundamental Law, it only reviews laws following a proposal by the Government, one-fourth of the Members of the National Assembly, the President of the Kuria (the supreme court), the Prosecutor General or the Commissioner for Fundamental Rights, and according to Article 37 Section (4) of the Fundamental Law, it generally cannot review public finance legislation.

  • [1] 2 Attila Vincze, Péter Csuhâny, Pal Sonnevend, Andras Jakab, ‘Az Alkotmanybirôsâg’ in Andras Jakab (ed.), Az alkotmâny kommentârja (Szâzadvéd 2009) 239-264. 3 Act XX of 1949 on the Constitution. 4 Gabor Halmai, ‘Dismantling Constitutional Review in Hungary’ (2019) Rivista de diritti comparati 18.
 
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