HUN-1998-1-001

a) Hungary / b) Constitutional Court / c)  / d) 09-02-1998 / e) 1260/B/1997 / f)  / g) Alkotmánybírósági Közlöny (Official Digest), 2/1998 / h) .

Keywords of the Systematic Thesaurus:

01.03.05.03

Constitutional Justice - Jurisdiction - The subject of review - Constitution.

03.01

General Principles - Sovereignty.

03.10

General Principles - Certainty of the law.

Keywords of the alphabetical index:

Act, amending Constitution, quality.

Headnotes:

According to the constitutional provisions and laws concerning the jurisdiction of the Constitutional Court, the competence of the Court does not extend to the examination of the constitutionality of the Constitution itself and laws amending the Constitution. Nor does the Constitutional Court have jurisdiction to examine legal provisions giving effect to new constitutional provisions.

Summary:

On 14 October 1997, the Parliament approved the Act on the Amendment to the Constitution. As a result of this amendment, the constitutional provisions concerning elections for Parliament and for local governments were changed. Previously, under Article 20 of the Constitution, Parliament was elected for a term of four years. According to the recently enacted amendment, however, elections for Parliament shall be held in April or May of the fourth year as from the previous election. The Act on the Amendment to the Constitution contained a similar provision concerning local government elections. The members of the representative body and the mayor shall be elected in October of the fourth year as from the previous election. Under Article 6.1 of the Act, the above-mentioned changes entered into force on the day of its promulgation. According to Article 6.2, in 1998 the parliamentary elections shall be held in May, and the elections for local governments shall be held in October.

The petitioner contended that Article 6 of the Act is unconstitutional because the regulation concerning the election of 1998 violates the principles of sovereignty and certainty of the law as guaranteed by Articles 2.1 and 2.2 of the Constitution. In the petitioner's view, giving effect to the constitutional amendment on the day of its promulgation led to a reduction of the term of Parliament, the representatives of local governments and also the mayor, and changed the conditions of the elections of 1994 retrospectively.

The Constitutional Court in its current decision examined first whether it was competent to review the constitutionality of the Act on the Amendment to the Constitution. Under Articles 1.b and 1.c of Act XXXII of 1989 on the Constitutional Court, the Constitutional Court has jurisdiction to examine the constitutionality of legal rules and other legal means of State control as well as the conformity of legal rules and other legal means of State control with international treaties. Based on this, the Constitutional Court does not have competence to examine, amend or change constitutional provisions and therefore to review the constitutionality of legal regulations amending the Constitution. Since the challenged provisions are not a part of the text of the Constitution, the Court had to examine separately its competence concerning these regulations.

In the case of amendments to the Constitution, the legal provision which regulates the effect of the Act in question does not become part of the Constitution. However, it is precisely this kind of provision which is crucial to the amendment. Without this provision the amendment cannot be implemented, and thus the provision is inseparable from the normative part of the Act. As a result of this strong connection between the legal provision giving effect to the Act and the legal norms which became a part of the Constitution because of the amendment, the Court does not have jurisdiction to examine the constitutionality of these legal provisions. If the Court annuls these provisions, the normative part of the Act on the Amendment to the Constitution would also be null and void, and thus the Court would act as a legislative power. In theory, in some cases it is possible to review legal provisions that give effect to the Act on the Amendment, but only in the case where annulling these provisions does not result in changing the Constitution.

As concerns Article 6.2 of the Act, the Court stated that since this provision contains regulations concerning the elections to be held during 1998, the Court is competent to examine the unconstitutionality of this legal rule. Since this provision regulates the dates of the parliamentary elections and the elections for local governments and the mayor in accordance with the new constitutional provisions which already entered into force in October 1997, the Court held that the petition contending that this provision was unconstitutional was unfounded.

Supplementary information:

One of the judges wrote a dissenting opinion, stating that the Court should have examined the constitutionality of Article 6.1 of the Act because the legal rule which gives effect to the Act does not become a part of the Constitution. There is no constitutional reason for handling the legal rules giving effect to the Act on the Amendment to the Constitution differently from other legal regulations, since under Article 1 of the Act on the Constitutional Court, the Court should examine the constitutionality of every kind of legal rule and other legal means of State control. According to this judge, the reduction of the term of MPs is not unconstitutional, since under Article 28.2 of the Constitution, Parliament may proclaim its dissolution even before the expiry of its mandate. However, reducing the term of representatives of the local governments and the mayor violates the Constitution. Since Article 6.1 of the Act deprives the representatives of the local governments elected in 1994 of their mandate before the expiry of their mandate, it is against the Constitution.

One judge attached a concurring opinion, according to which the Court does not have competence to examine legal provisions giving effect to the Act independently of the question whether this provision puts this Act into force ex nunc or pro futuro.

Languages:

Hungarian.