HUN-2003-3-007

a) Hungary / b) Constitutional Court / c)  / d) 05-12-2003 / e) 62/2003 / f)  / g) 2003/145 / h) .

Keywords of the Systematic Thesaurus:

01.03.04.02

Constitutional Justice - Jurisdiction - Types of litigation - Distribution of powers between State authorities.

03.04

General Principles - Separation of powers.

04.04.03.01

Institutions - Head of State - Powers - Relations with legislative bodies.

04.04.03.04

Institutions - Head of State - Powers - Promulgation of laws.

04.05.06

Institutions - Legislative bodies - Law-making procedure.

Keywords of the alphabetical index:

Law, reconsideration by parliament / President, legislative veto.

Headnotes:

In relation to the promulgation of Acts, the rights of the President defined in Article 26 of the Constitution represent a counterbalance to the legislative activity of parliament. The institution of reconsideration stems from the principle of the separation of powers. Where the parliament does not secure the right circumstances for a real reconsideration of an Act sent back to it by the President, it is a violation of Article 26.3 of the Constitution, and that Act is null and void. Securing the President's right to participate in and speak at sittings of the parliament and of its committees is a precondition for the validity of an Act that has gone through the process of reconsideration.

Summary:

The parliament enacted Act LXXXIV of 2003 on Some Questions Related to Medical Activities, which came into force on 1 July 2003. It aimed at unifying the rules for doctors and other professionals working in the medical field, and also at identifying special circumstances requiring different types of legislative acts.

On 23 June 2003 the President asked the representatives to reconsider the bill, whereupon the bill was passed on the same date with the same content. Numerous parties, political and professional organisations applied to the Constitutional Court and challenged the constitutionality of the Act. The President of the Republic promulgated the Act, but at the same time filed a petition with the Constitutional Court. As a consequence of the circumstances under which the bill had been passed, the President asked the Constitutional Court to interpret his role in the legislative process.

The President requested an interpretation of matters related to three main issues. Firstly, he requested an interpretation of the way the parliament had to act in order to satisfy Article 26 of the Constitution, which requires a renewed discussion in case of an Act being sent back to it. Secondly, he asked the Court to compare Articles 26.3 and 26.4 of the Constitution in order to determine whether the President, instead of promulgating an Act that had been previously sent back to and reconsidered by parliament, could make a reference to the Constitutional Court for preliminary constitutional review of that Act. Finally, he asked for an interpretation in relation to what partial rights made up the President's right to participate in and speak at sittings of the parliament and its committees, in particular, in the case of the reconsideration of Acts previously sent back to parliament.

According to Article 29.1 of the Constitution the President guards the democratic operation of the State, and the rule of law falls within this. The Court ruled that according to Article 2.1 of the Constitution, the preconditions of the realisation of a democratic state are the separation of powers, the obligation of the separate constitutional bodies to co-operate, their mutual respect for the autonomy of decision making and processes of the others, and also the existence of procedural rules derived from the Constitution and their observance.

As a result of the obligation to co-operate, when sending back an Act, the President must present comments to the parliament that are suitable for starting and conducting the process of the reconsideration of the Act.

At the same time, the constitutional legal status of the President requires that his comments are truly dealt with. Unlike comments of representatives, the parliament may reach a decision concerning an Act only after real consideration of the comments by the President. The parliament, however, is only bound to a real reconsideration of the Act; and it is not bound to accept the comments of the President and, as a result, to amend the Act.

Regarding the reconsideration of the Act, the general and specific provisions of the Standing Order of parliament have constitutional importance. A violation of any of those provisions results in the violation of the nature of the democratic state, set out in Article 2.1 of the Constitution. Legislation made in violation of procedural rules is defective in form and is, as a result, unconstitutional. The result may be that the Act is struck down.

The Constitutional Court stated that the President of the Republic represented the partly political, partly legal control of the legislature through the exercise of his right to send back an Act, and through his right to initiate preliminary review of an Act. These presidential veto powers through which the President may express his disagreement with an Act combine to form a right that may be exercised only once for every piece of legislation. The Constitutional Court found that that resulted from both the grammatical interpretation of the constitutional provisions and the constitutional legal status of the President. If the disagreement of the President with the legislative power were to make a piece of legislation untenable, the President would not represent a counterbalance to the legislative power, but an unjustified limit on that power.

Relating to the President's right to participate in and speak at sittings of the parliament and its committees, the Constitutional Court ruled that this right of the President could not be questioned, even in general. A real opportunity had to be secured for him to participate and speak, including giving him reasonable notice in writing of the time and place. The repeated final voting of the Act cannot take place unless the President has had an opportunity to participate in the meeting of the reconsideration of the Act and to elaborate orally on his reasons in detail. Otherwise, the President's sphere of authority would be devoid of all meaning, just as it would be if the reconsideration were to take place without an opportunity for real debate.

Supplementary information:

Considering the part of the decision holding that the President had an opportunity to use his veto power against the same Act only once, the Constitutional Judges delivered several concurring and dissenting opinions.

In his concurring opinion, László Kiss emphasised the importance of the political neutrality of the President: his further presence in the legislative process would question that neutrality. Ottó Czúcz joined Kiss in his opinion.

István Kukorelli deduced the exclusion of the repeated use of the veto from the historical interpretation of the Hungarian President of the Republic's constitutional position.

In his dissenting opinion, István Bagi elaborated that where the President finds that it is unequivocal that the process of reconsideration has resulted in the Act being adopted in an unconstitutional way, that is to say, it suffers from a patent unconstitutionality that can directly be deduced from the Constitution, then the President must not sign the reconsidered Act, but must instead refer it to the Constitutional Court. That could be directly deduced from the interpretation of Article 29.1 of the Constitution.

In a dissenting opinion, Árpád Erdei pointed out that in a case where parliament amends an Act in the process of reconsideration and the President has reservations as to the constitutionality of those amendments, then the exercise of a constitutional veto could not be excluded.

Attila Harmathy's dissenting opinion also found it worrisome to exclude the constitutional veto in a case of an Act amended during reconsideration.

János Strausz drew attention to the reasons for invalidity during reconsideration. In such cases, the Constitution does make it possible for the President to initiate preliminary review.

Éva Vasadi's dissenting opinion also referred to the text of the Act subject to amendment during reconsideration, and to the fact that the interpretation of the Constitution based on the majority decision might indirectly prevent the President from exercising the right of the political veto.

Languages:

Hungarian.