a)  Hungary / b)  Constitutional Court / c) / d)  24-04-2006 / e)  12/2006 / f) / g)  Magyar Közlöny (Official Gazette), 2006/48 / h) .
Keywords of the systematic thesaurus:
Constitutional Justice - Jurisdiction - The subject of review - Parliamentary rules.
Institutions - Legislative bodies - Organisation - Rules of procedure.
Institutions - Legislative bodies - Status of members of legislative bodies.
Keywords of the alphabetical index:
Parliament, member, privilege, free speech / Parliament, time frame for speech / Parliament, rules of procedure.
A limit on the right of members of parliament to speak may be justified on the grounds of the efficient running of parliamentary business. The time frame for speeches can be designated by Standing Orders of Parliament.
I. A petition was lodged regarding the legality of the Standing Orders of the Hungarian Parliament, and requesting a declaration that an omission was unconstitutional. The Constitutional Court examined the constitutionality of provisions relating to the duration of sittings and the time frames for parliamentary speeches. The petitioner challenged the constitutionality of Decision 46/1994 of the Hungarian Parliament on Standing Orders of the Hungarian Parliament because it did not designate a precise time frame for speeches by individual members of parliament.
Under the disputed provision in the Standing Orders, the House Committee makes a proposal for the time frame for speeches, and parliament takes a simple majority decision. There is no debate. The petitioner also cast doubt over the constitutionality of provisions of the Standing Order relating to the work of Committees, which entitled the Committee to allot the same time frame for speeches to different groups of members.
The petitioner submitted that the right to protest of members of parliament follows from the principle of exercising the sovereignty of the people, the so-called parliamentary right to speak. The regulations governing this right are an important guarantee, as the constitutional functions of parliament cannot be carried out without the members' right to speak. Article 24.4 of the Constitution, under which parliament establishes its procedural rules and orders of debate, refers to a majority of two thirds of the votes of the members of parliament present. Since several provisions of the Standing Orders contain regulations which fetter the right to speak, it could be argued that a two thirds majority vote is needed to decide upon the forms the time frames should take.
II. The Constitutional Court began with an analysis of Hungarian legal history in the field of public law, and various foreign Standing Orders. All Standing Orders contain restrictions on the time for speeches, although the practical arrangements vary considerably. The historical survey and the international comparison show that the regulation of time frames for speeches is based on the need to create a balance between the rights of members of parliament, and the need for the work of parliament to run smoothly. The Court noted that members of parliament can only carry out their constitutional duties properly if they can speak in parliamentary sessions and in committees, and if they have sufficient time to present their views.
The free speech privilege of members of parliament is linked to the freedom of expression declared in Article 61 of the Constitution. This is a fundamental democratic requirement for a democratic state under the rule of law, and the State is under a duty to protect this right.
The Court proceeded to examine the provisions of the Standing Orders in point. It found that there were no normative standpoints for the definition of the time frames for particular speeches of members of parliament relating to the orders of the day of sittings. On the basis of the proposal of the House Committee, parliament decides upon the time limits for speeches by simple majority. Thus it is the prevailing parliamentary majority which defines the time frame for speeches. The Constitutional Court noted that the Standing Orders make no provision for minorities. The protection of parliamentary minorities is important as a guarantee, and so the method of setting time frames for speeches by individual members of parliament is not a straightforward formal question.
The Constitutional Court stated that the legislator had created an unconstitutional situation, by neglecting to regulate the system which guarantees the right to speak of every member of parliament.
The Constitutional Court turned down the petitioner's request for the repeal of the relevant provisions of the Standing Orders, as they could be used to create rules which would in fact protect members' rights. The Court stressed that restrictions on the right of members of parliament to speak can be justified by the need for parliament to operate efficiently and in this regard limits on the times of speeches can be set.
Chief Justice Mihály Bihari gave a dissenting opinion. In his view, the petition should have been rejected, as there were no grounds for stating that unconstitutionality could be manifested in omission. Justice Péter Paczolay concurred in this opinion.
They believed that the starting point for the examination of the petition should have been whether the protection of the right to speak of members of parliament came directly from any particular provision of the Constitution. They drew a distinction between members' right to speak, which means the right to participate in parliamentary debates, and parliamentary freedom of speech. In their view, the direct constitutional protection of the right to speak of members of parliament could not derive from the freedom of speech.
The two justices did not agree with the majority opinion which pointed to the lack of minority protection in the provisions of the Standing Orders relating to the right to speak. Members of the parliamentary party in power and opposition members both faced restrictions on their right to speak. Therefore the question of protecting minorities could not be raised. They took the view that two conditions must be fulfilled if the restriction on the right to speak is to be in line with constitutional requirements. It must be general and all groups of members of parliament must be able to present their views in debates. The Standing Orders fulfilled both conditions. Parliament has great freedom in the creation of Standing Orders. Only a direct and serious breach of the Constitution could justify interference in this process by the Constitutional Court. As a result of this great freedom it is parliament that defines to what extent its operation should be defined in Standing Orders, not every small detail needs to be covered.