Statement of president Péter Paczolay on constitutionality, aims and instruments, and on scapegoat-creation30 January 2013
The term “fundamental law” reflects a constitutional approach whereby constitutionality refers to more than merely the text of the Fundamental Law of Hungary: the Hungarian constitutional traditions, including the Constitutional Court’s practice accumulated in the past more than twenty years, as well as the European culture of constitutional law and its principles clearly manifested in international documents all form part of the Constitutional Court’s standards – said Mr. Péter Paczolay, the president of the Constitutional Court, to the MTI.
The incorporation of the Hungarian constitutional traditions into the Constitutional Court’s practice is a new element, required by the Fundamental Law. For example, it was applied in the decision adopted in the summer on the retirement of judges; in the annulment of the regulation, in the context of the living roots of judicial independence in the Hungarian law, the Constitutional Court also referred to a more than 150 years old Act of Parliament passed in the year 1869. The principle of the division of powers elaborated in the past two decades in the Hungarian Constitutional Court’s practice is enshrined in the new Fundamental Law that can only be interpreted together with the legal principles generally accepted in today’s Europe, and the constitutional traditions developed through one and a half centuries of the history of civilian Hungary – underlined the president of the Constitutional Court.
With regard to the annulment for formal reasons of the transitional provisions of the Fundamental Law at the end of last year, Dr. Péter Paczolay stressed that the main duty of the Constitutional Court is safeguarding the Fundamental Law. The transitional provisions were evaluated in this respect, and the annulment of the transitional provisions cannot be regarded as impairing the Fundamental Law, indeed it was necessary for protecting it, with due account to long term constitutional considerations. The president of the Constitutional Court pointed out that the original text of the Fundamental Law was not affected by the decision.
About the decision on electoral registration adopted this year following the petition that had been filed by the President of the Republic, Dr. Péter Paczolay explained: it may be necessary to apply registration concerning Hungarian citizens living abroad, but it does not justify the general and mandatory introduction of this legal institution regarding those who have a Hungarian place of residence. The Constitutional Court examined the constitutionality of the instrument used for achieving the objective and not the aim itself.
As pointed out by the president of the Constitutional Court: the same happened in the case of the decision on homeless people. Of course the problem of people living on public ground must be solved, but it can only be done by using constitutional instruments. The Constitutional Court did nothing else but annulled a legal regulation that violated the Fundamental Law. The Constitutional Court should not be blamed for a mistake made by the legislator. The decision leaves a wide scope of discretion for the legislator to settle this problem in a satisfying and constitutional manner. The mistakes made in the legislation were also pointed out by charity organisations (for example the Maltese Charity Service) that have extensive experience in providing services for homeless people. Accordingly, the assaults targeting the Constitutional Court are unfounded and they can only be used to deteriorate the reputation of the Constitutional Court – underlined Dr. Péter Paczolay.
The decisions of the Constitutional Court may have political consequences, but this does not make the Court a political actor – explained the president. There are examples in many countries for conflicts between the legislation determined by the power relations of the political parties and the constitutional court functioning on a professional basis.The real question is how the politicians react to the decisions they do not like: by narrowing down the constitutional court’s scope of competence, by amendments of the constitution or by paying respect to the decisions. In Slovenia, for example, they tried to throttle the constitutional court in the tide of cases, and in Ukraine the legislation did not allow the elected judges of the constitutional court to take their oath and start the work. In Western Europe, however, the politicians accept and implement the decisions of the constitutional court – even if the decision is not the one they prefer –, and they do not attempt to obstruct the operation of the institution by way of various tricks. In the developed democratic countries under the rule of law, respecting the decisions of the constitutional court is an indisputable element of the constitutional culture – said the president.
There is a huge temptation for the political power possessing the constituent authority to show a routine reaction for the constitutional court’s decisions they don’t like by distracting certain questions out of the court’s scope of competence and putting them under a constitutional protection, as it happened in Hungary in the past two years, for example after the annulment by the Constitutional Court of the extraordinary tax or of certain provisions of the Act on Criminal Procedure – recalled President Péter Paczolay, who disagrees with the almost complete elimination of the Constitutional Court’s control over the subjects of finances and taxation.
He added that in other cases the political powers may put the Constitutional Court into a difficult situation by not undertaking the responsibility vested on them to make a decision in a given question, shifting the problem instead to the desk of the Constitutional Court.
With regard to the Constitutional Court’s scope of competence, the president underlined that although the former actio popularis, the right of every citizen to turn to the Constitutional Court, was abolished, the consequences of it are not as negative as it have been feared by many; the important cases still find their way to the Court. It happened so in the cases related to the Acts on the Churches, the students’ contracts or the retirement of judges. He emphasized that the Constitutional Court’s function of controlling the legislation is still in operation.
According to the present regulations, the ombudsman’s right to turn to the Constitutional Court is one of the fundamental legal institutions of the constitutional system. It prevents the tide of petitions of varied professional quality that might be filed by individuals, as it could inevitably jeopardise the efficient operation of the institution. The Commissioner for Fundamental Rights and his office are able to identify – with sensitivity and knowledge of the reality rooted in the mission of the institution – the gravest constitutional dilemmas, and to submit the relevant petitions to the Constitutional Court after careful professional preparations. Last year the ombudsman filed 24 petitions to the Constitutional Court for posterior norm control – summarised Dr. Péter Paczolay.
MTI 27 January 2013 – András Jobbágy