Press release regarding the constitutional review of the Fourth Amendment of the Fundamental Law of Hungary

23 May 2013

The Commissioner for Fundamental Rights initiated the declaration of the invalidity under the public law – and therefore the unconstitutionality – of the Fourth Amendment of the Fundamental Law and the nullification of the challenged provisions. The first part of the petition challanged those provisions of the Fourth Amendment where motions to amend were submitted by the Constitutional Committee of the Parliament after the closing of the debate in detail, and their final version, the consolidated text of the bill, were  adopted by the Parliament without plenary debate. According to the Commissioner’s position, although this process formally fulfils  the provisions of the Rules of Procedure of the Parliament, the MPs’ right to define their position on the plenary session was not ensured, which would have been one of the essential preconditions of democratic constitutionalism. The other part of the petition held the challenged regulations invalid under the public law because it caused irresolvable inconsistency in the Fundamental Law.

The Constitutional Court has looked over its previous practice and has examined his competence based on the Fundamental Law, regarding the review of the amendments of the Fundamental Law. Following its previous practice, the Court declared his competence regarding the review of the amendments of the Fundamental Law due to the invalidity under the public law. However, the Court did not extend its competence to review of the content of these amendments. The Constitutional Court emphasized that the Court did not compose and did not modify the constitution that must be used as a standard during the examination of the legal regulations. According to the Fourth Amendment, the Parliament decided that the CC may review any amendments of the Fundamental Law, but only regarding procedural requirements.

In the context of the first part of the petition, the Constitutional Court has declared that the MPs and the Parliamentary Fractions could  have defined their positions regarding the concerned amendments because there was no obstacle to initiate the reopening of the detailed debate or to submit any amendments before the final vote. As there had not been such motion submitted, there was no final debate. Therefore, the Constitutional Court has refused this part of the petition.

In the context of the second part of the petition, the Constitutional Court has observed that the petition requested the comparison of the concerned provisions of the Fourth Amendment – regarding its content – both with the provisions of the Fundamental Law and with the arguments and requirements from former decisions of the Court. In order to comply with this request, content – and not procedural – examination would be needed, but the Constitutional Court has no competence for that. Therefore, this part of the petition has been rejected without examination of the merits of the case.

The decision emphasized, that the detailed rules of the Amendment will be worked out in special Acts and local government decrees. During this legislative process, in order to protect the interrelated system of fundamental rights, the limitations of the legislative and constituent power, rising from obligations of the EU membership, and the assuring of the conformity between the international and national law, must be taken into account. Based on the authorization of the Fundamental Law and after the adoption of these special legal regulations, the Constitutional Court will interpret the concerned regulations of the Fundamental Law during a possible constitutional examination. The interpretations have to form a consistent system. The obligations of Hungary that arise from the international treaties, the EU membership and the generally recognised rules of international law, and the fundamental principles and values compose such a coherent system that cannot be left out of consideration during the constitution-making process, legislation and constitutional examination of the Constitutional Court.

Dr. András Bragyova, Dr. László Kiss, Dr. Miklós Lévay and Dr. István Stumpf judges attached dissenting opinion and Dr. Imre Juhász, Dr. Péter Kovács, Dr. Béla Pokol, and Dr. László Salamon judges attached concurring opinion to the decision.