a)  Hungary / b)  Constitutional Court / c) / d)  26-09-1991 / e)  48/1991 / f) / g)  Magyar Közlöny (Official Gazette), 103/1991 / h) .
Keywords of the systematic thesaurus:
General Principles - Separation of powers.
Institutions - Head of State - Powers - Relations with legislative bodies.
Institutions - Head of State - Powers - Relations with the executive bodies.
Institutions - Head of State - Powers - Powers with respect to the armed forces.
Institutions - Head of State - Status.
Institutions - Head of State - Status - Liability.
Institutions - Head of State - Status - Liability - Legal liability.
Institutions - Legislative bodies - Powers.
Institutions - Executive bodies - Powers.
Institutions - Armed forces, police forces and secret services - Armed forces.
Keywords of the alphabetical index:
Army, governing function / Army, commanding function.
The current separation of powers over the armed forces under the Constitution was the natural result of every parliamentary system. Both governing and commanding functions over the armed forces were activities directed at their successful operation: the governing authority stood outside the forces while the commander was situated inside being not only the head but also part of the organisation. The relative independence of the armed forces within the executive branch and the establishment of governing authorities which fell outside the executive power's jurisdiction were political rather than constitutional questions for which the Constitution set the framework.
The petitioners sought an advisory opinion on the interpretation of the Constitution in relation to the position of the President of the Republic vis-à-vis the armed forces.
The first petitioner, the Minister of Defence, requested the interpretation of those constitutional provisions on the governance of the activities of the armed forces and sought to establish the interrelation between the institutions of the President, Parliament and Government as laid down in Article 40/B.3 of the Constitution with regard to their authority on governance of the armed forces. He submitted that the governance, in peacetime, of the armed forces was for the exclusive authority of the Government; the President or Parliament could not determine directly the forces' activities outside the area specifically assigned to them by law.
The second petitioner, the Parliamentary Committee on Cultural, Educational, Scientific, Sport, Television and Press Affairs requested the interpretation of the question of the President's power of appointment pursuant to the various statutes governing appointments adopted in accordance with Article 30/A.1.m of the Constitution. They further requested the interpretation of the question of ministerial countersignature pursuant to Article 30/A.2 of the Constitution, with particular reference as to whether the President:
a.   could refuse the appointment of a duly-submitted nominee;
b.   could challenge the grounds of the position to be filled;
c.   had to take into account the view expressed by the parliamentary committee which interviewed the nominee; and further
d.   whether the President's consideration had to include practical and political purposes besides considering the existence of the necessary legal conditions; and
e.   at what stage did Government responsibility commence when countersigning the President's action.
The third petitioner, the Minister of Justice, submitted for interpretation Article 31/A.1 of the Constitution and sought particularly guidance on the President's personal inviolability (i.e. to be protected from criminal prosecution) including, narrowly speaking, the strengthened criminal protection of his life and personal safety or, broadly speaking, the protection of his reputation and dignity.
Under Article 40/B of the Constitution, the Parliament, the President and the Government had the sole right to participate in governing the armed forces according to their respective constitutionally-established powers and without infringing those of the other two institutions. Therefore, according to the Court, no command role could be established under the Constitution independent of the governing powers stipulated for the three institutions. The commander-in-chief of the Hungarian Army might exercise his commanding powers exclusively in accordance with the governing actions of the said institutions and within the limits of the established rules.
Parliament could establish new, unspecified powers for governing the armed forces without amending the Constitution only where such a constitutional Act of "power creation" did not infringe the governing powers vested in the other institutions in Article 40/B of the Constitution. However, were Parliament to seek to redistribute the various powers provided for in the Constitution, it would then be necessary to amend it.
Under Article 29.2 of the Constitution, the President was vested with the authority of a traditional commander-in-chief of the armed forces. This supreme command function was a constitutional one and did not thereby give him a rank or post in the Hungarian armed forces. Since the commander-in-chief was outside the structure of the forces, being its leader but not chief commanding officer, he therefore did not act as superior officer in respect of the armed forces since the commands (which had to be issued in accordance with his governing authority/action) were issued by the commander of the Hungarian Army and of the Border Guard. The President's governing authority over the armed forces, being exclusively determined by the Constitution and legislation enacted there under, was similar to those which he possessed in respect of other institutions in the exercise of the powers of appointment, approval and confirmation.
The government was the sole executive branch which possessed all governing authority over the armed forces accorded to it under the Constitution and which did not fall within the competence of the President or Parliament. Thus, under Article 35.1.h of the Constitution, it had the power to regulate and supervise the operation of the armed forces. Although no law could deprive the Government of its supervisory authority in the field of the armed forces, it was still theoretically possible to widen the authority of the President or Parliament.
The President's governing actions in respect of the armed forces during peacetime were all subject to countersignature. In fact all appointments and approvals effected by the President according to the Constitution or other laws (except appointing judges) were subject to the countersignature of the Prime Minister or the relevant competent minister. Such countersignature validated the President's action, on the one hand ensuring that this action would not conflict with government policy while on the other hand making the government assume political responsibility for such action before Parliament.
The President was required to reject the appointment or approval if he were of the opinion that the necessary legal preconditions for such appointments were absent. Such prerequisites included Hungarian citizenship; professional qualification; age; or procedural conditions which included, inter alia, the interviewing of the nominee by a competent organ, e.g. the relevant parliamentary committee. Both the interview and opinion of such an organ/committee amounted to procedural validating instruments. Indeed the President, if legislation expressly so determined, was required to take the opinion into consideration in his deliberations but it did not bind him in his decision.
In other situations, the President might reject the appointment of a candidate on the grounds of merit only if he came to a well-founded conclusion that his compliance with the proposal could seriously endanger the democratic functioning of the State according to Article 29.1 of the Constitution. By rejecting a formally correct nomination, the President directly intervened in the merits of the case, thereby preventing the politically responsible organ from fulfilling its duty without his assuming that responsibility. His refusal served as a final guarantee, an extraordinary measure the exercise of which was to be based on grounds similar to those which lead to the extraordinary convening or dissolving of Parliament.
As part of his constitutional status, the inviolability of the President expressed the principles that he bore no political responsibility before Parliament and that his legal responsibility was limited; moreover his protection from criminal prosecution, according to Article 31.1 of the Constitution, was to be provided for in separate legislation. According to Articles 31, 31/A and 32 of the Constitution, the President was legally responsible for his actions while in office which amounted to a premeditated breach of the Constitution or other legislation. For acts committed outside his official activities, he might be held criminally responsible after the end of his term in office. Consequently his complete non-responsibility existed only vis-à-vis acts committed while in office but being of a non-official type. As regards his immunity from criminal prosecution, it was for Parliament to decide on the scope of such protection with regard to his life, good health, honour and dignity and to the extent thereof including severity or leniency of the punishment.
Supplementary information:
Three of the Justices attached separate opinions to the decision and six Justices wrote concurring opinions to the current decision.