EUR;CoE;EU;CECC;JCCJ;WCCJa) Hungary / b) Constitutional Court / c) / d) 24-02-1999 / e) 1/1999 / f) / g) Magyar Közlöny (Official Gazette), 14/1999 / h) .
Keywords of the systematic thesaurus:
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Constitutional Justice - Types of claim - Claim by a public body.
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Constitutional Justice - Jurisdiction - Type of review - Preliminary / ex post facto review.
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Constitutional Justice - Jurisdiction - The subject of review - Quasi-constitutional legislation.
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General Principles - Rule of law.
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General Principles - Certainty of the law.
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Institutions - Legislative bodies - Powers.
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Institutions - Legislative bodies - Law-making procedure - Quorum.
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Institutions - Legislative bodies - Law-making procedure - Majority required.
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Institutions - Legislative bodies - Law-making procedure - Right of amendment.
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Keywords of the alphabetical index:
Headnotes:
In the case of a qualified majority act, passing the statute by a vote of two-thirds of the Members of Parliament present is not only a procedural requirement, but a constitutional guarantee, the essence of which is the broad consensus of the parliamentary representatives. An act passed by a qualified majority shall not be amended or annulled by an act passed by a simple majority.
Summary:
Several provisions of the anti-mafia law amending the Police Act, the Act on Border Guards, the Act on Asylum, the Act on Foreigners and the Act on Travelling Abroad were challenged by the President of the Republic upon the request of the Prime Minister of Hungary before the promulgation of that law. The President asked the Court to review some parts of the law for its conformity with both the Constitution and decision no. 4/1993 (II.12.) of the Constitutional Court (Bulletin 1993/1, p. 16 [HUN-1993-1-002]) and to examine whether each amendment of the above-mentioned qualified majority acts needed a two-thirds majority. In the instant case, the Court had to decide whether the later act passed by a simple majority circumvented the procedural conditions necessary for amending a two-thirds act.
As a result of the preliminary review of constitutionality, the Constitutional Court held that those acts which were passed by a two-thirds majority shall not be amended by a vote of the simple majority of the Members of Parliament present. Even if Parliament wished to amend only details or regulations or to strengthen the implementation of the given fundamental right, the honoured procedure is a constitutional requirement. The Court also emphasised that it is for the legislature to decide separately in each case what to include in a two-thirds act. The Court, however, recalled one of its previous decisions, no. 4/1993 (II.12.), in which the Court declared that from the text and structure of the Constitution, it did not follow that only acts requiring a qualified majority of two-thirds could dispose of all aspects of the fundamental rights or that for acts concerning fundamental rights the Constitution ordains a qualified majority. The pre-requisites for such an act do not exist for every legal regulation concerning fundamental rights. Regulations aimed at building further guarantees relating to fundamental rights and making more effective the given institution or organisation do not require a two-thirds majority. According to the Court, Parliament shall not amend an act requiring a two-thirds majority or any provisions of that act by a separate act passed by a simple majority or a new act which does not require a qualified majority, since this way the qualified majority laws could easily lose their importance. There is scope for further examination of the question whether by amending a two-thirds act by a simple majority act clearly leads to this. However, in order to decide on that issue a substantive case is needed.
Supplementary information:
One of the judges attached a dissenting opinion in which the judge pointed out that the qualified majority is not only a formal, procedural constitutional requirement, but it has substantive elements too. These substantive criteria could be defined only on the basis of the Constitution, and this is within the jurisdiction of the Constitutional Court.
In the opinion of the judge, the Constitutional Court should have examined the constitutionality of each amendment of the challenged law from the point of view of whether each provision requires a qualified majority.
Cross-references:
Decision no. 4/1993 (II.12.) Bulletin 1993/1, p. 16 [HUN-1993-1-002], to be published in the Special Bulletin - Freedom of religion and beliefs.
Hungarian.