HUN-1994-3-017

a) Hungary / b) Constitutional Court / c)  / d) 10-10-1994 / e) 55/1994 / f)  / g) Magyar Közlöny (Official Gazette), 111/1994 / h) .

Keywords of the Systematic Thesaurus:

03.04

General Principles - Separation of powers.

03.10

General Principles - Certainty of the law.

04.05.11

Institutions - Legislative bodies - Status of members of legislative bodies.

Keywords of the alphabetical index:

Office, incompatibility.

Headnotes:

Compulsory rules of incompatibility cannot be drawn from the principle of separation of powers. The principle of separation of powers finds expression historically and in every country in different institutional systems. The most important cases of incompatibility of the office of Member of Parliament are listed in the Constitution, which also entitles the legislature to determine further cases of incompatibility. This includes the right to abolish cases of incompatibility.

The incompatibility of the offices of Member of Parliament and Mayor is not regulated by the Constitution. Therefore, its abolition does not violate the Constitution.

Summary:

Act no. LXVII of 1990 on specific questions of the office of mayors declared the incompatibility of the office of mayor and Member of Parliament. After the elections in spring 1994, Parliament amended the law by abolishing the incompatibility of the two offices (several mayors became Members of Parliament as a result of the elections). Claims stating the unconstitutionality of the amending provision focused on two points: first, it violates the principle of separation of powers that public officers, members of the executive, can become members of the legislature. Second, it offends the principle of legal certainty that the respective rules were amended after the parliamentary elections. The Court rejected the claims, and upheld the constitutionality of the law. Besides the above cited interpretation of the separation of powers principle, the Court stated that the mayor is not a member of the administrative branch or a public servant; mayors exercise those functions only exceptionally. As the law became valid on the day of its promulgation, it did not have retroactive effect, thus it did not violate the principle of legal certainty.

The decision was achieved by a slim majority. Four out of the nine judges wrote a strong dissent. The dissent cited previous decisions of the Court, and determined that the incompatibility can be derived from the constitutional text itself.

Languages:

Hungarian.