a) Hungary / b) Constitutional Court / c) / d) 29-12-1997 / e) 66/1997 / f) / g) Magyar Közlöny (Official Gazette), 120/1997 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Constitutional jurisdiction - Relations with other institutions - Legislative bodies.
Constitutional Justice - Types of claim - Claim by a public body - Legislative bodies.
Constitutional Justice - Jurisdiction - Type of review - Preliminary / ex post facto review.
Sources - Techniques of review - Historical interpretation.
General Principles - Separation of powers.
General Principles - Certainty of the law.
Institutions - Head of State - Powers.
Institutions - Legislative bodies - Relations with judicial bodies.
Keywords of the alphabetical index:
Minority, parliamentary, right to preliminary review.
Article 32/A of the Constitution on the competence of the Constitutional Court contains regulations concerning ex post facto review of the constitutionality of legal provisions, but does not include preliminary review. The reason for the fact that only the most basic competencies were incorporated into the Hungarian Constitution may be found in the circumstances of the constitution-making process. The above-mentioned however refers to other functions which may be performed by the Constitutional Court if it is determined by law, but the incorporation of other jurisdictions into the Constitution would be required.
Upon the motion of fifty Members of Parliament, the Constitutional Court examined Article 1 of the draft of the Bill on Amending the Act on the Constitutional Court, according to which the Section of this Act under which Parliament, its Standing Committee or fifty MPs are entitled to initiate preliminary review is invalid. According to the petitioners, this provision is against the separation of powers, since only the president would have the right to submit a motion for preliminary review, and there is no possibility for the preventive control of the constitutionality of legal provisions regarding the bills initiated by the President of the Republic. As a result of this regulation, in the petitioners' view, the constitutional balance between the legislative and the executive power is upset. Besides, the petitioners contend the provision in question violates the principle of legal certainty because there will be no possibility for MPs who are in the minority to prevent the legislature from making unconstitutional rules.
The Constitutional Court did not find the petitions to establish the unconstitutional character of Article 1 of the Bill justified, and declared that the competence of the Constitutional Court for preliminary review does not derive directly from Article 32/A of the Constitution. The legislator based upon the authorisation given by the Constitution can establish other jurisdictions for the Court and it can also limit the scope of the Court's competences. However, the legislator shall not ignore the jurisdiction of the Court determined by the legislative power itself, and does not prevent the Constitutional Court from completing its tasks defined by the Act on the Constitutional Court. The Court stated that abrogating the provisions in question by Article 1 of the Bill does not violate Article 32/A of the Constitution, since the competence of preliminary review initiated by Parliament, its Standing Committee or fifty MPs does not come from this provision.
Concerning the petitioners' second argument, the Court did not hold it to be unconstitutional that in the future the right of the Parliament, its Standing Committee or fifty MPs to initiate preliminary review would disappear, since the President can submit a motion to the Constitutional Court for a preliminary review of a legal rule initiated by the President himself. There is also one more possibility to initiate constitutional review of a regulation initiated by the President: the ex post facto review, which is open to anyone.
In its present decision the Court also examined ex post facto the constitutionality of the provision of the Act on the Constitutional Court currently in force, according to which fifty MPs can submit a motion for a preliminary review on the basis of which the Court shall proceed. In the petitioners' opinion, the right of fifty Members of Parliament to initiate preventive norm control is contrary to the principle of legal certainty, since this right can be used for obstructing legislation.
According to the reasoning of the Court, the aim of the right of fifty MPs to initiate preliminary review of laws before their enactment in general is not to delay the legislative process, but to take into account constitutional requirements before Parliament votes on the final text of the law. It is obvious that the possibility that the petitioners intend to obstruct the legislative procedure cannot be excluded, but this possibility itself does not make this right unconstitutional.
Decision no. 4 of 1997 (I. 22.), Bulletin 1997/1 [HUN- 1997-1-001].