HUN-2013-2-005

a) Hungary / b) Constitutional Court / c)  / d) 24-05-2013 / e) 12/2013 / f) On the constitutionality of the Fourth Amendment to the Fundamental Law / g) Magyar Közlöny (Official Gazette), 2013/80 / h) .

Keywords of the Systematic Thesaurus:

03.04

General Principles - Separation of powers.

04.05.06

Institutions - Legislative bodies - Law-making procedure.

Keywords of the alphabetical index:

Constitutional amendment, review / Constitutional Court, competence.

Headnotes:

In terms of the Fourth Amendment to the Fundamental Law, the Court, as the principal organ for the protection of the Fundamental Law, will continue to interpret and apply the Fundamental Law as a coherent system and will consider and measure all provisions of relevance to the decision in a given matter.

Summary:

I. The Commissioner for Fundamental Rights filed a petition with the Court for a declaration of the unconstitutionality of certain provisions of the Fourth Amendment to the Fundamental Law, noting that it is unconventional for the Commissioner to turn to the Court with problems that might result in formal, procedural, and public law invalidity pertinent to the adoption of a constitutional amendment. It is primarily the duty of the President of the Republic to be the guardian of the democratic operation of the state organisation. However, the Head of State – due to his interpretation of this role – had decided not to initiate proceedings before the Court. The Commissioner, in the interests of safeguarding the rule of law, and «as an auxiliary duty», decided to submit the petition.

The applicant explained that detailed debate on the Bill on the Fourth Amendment («the Bill») was held on 25 February 2013. Following the conclusion of the detailed debate and the closing remarks of the proponents of the Bill, the Committee for Constitutional Matters submitted a total of four committee amendment proposals. Two of them were intended to affect the wording of the Bill in a substantive manner, in terms of content. The proposals recommended including the wording «the provisions of a cardinal Act concerning the recognition of churches may be the subject of a constitutional complaint», «and suitability for cooperation to promote community goals» (Article 4.1 and 4.2 establishing the wording of Article VII.4 of the Fundamental Law) and the incorporation of the wording «and social catching-up» into Article 21.1.e of the Fundamental Law.

Parliament placed the Bill back on the agenda. In the absence of any further proposals for amendment of the Bill, no closing debate was held, and Parliament adopted the Fourth Amendment at its next sitting.

The applicant argued that it was incompatible with the constitutional principles of the democratic exercise of power (such as free debate of public affairs in Parliament, thorough and all-encompassing examination of matters in debate, MPs’ right of speech) that the Parliament did not (or could not) debate in plenary session the proposals submitted by the Committee for Constitutional Matters.

The applicant also pointed out that Article 24.5 of the Fundamental Law does not allow for a review of the conformity of the Fundamental Law in terms of content. However, in his opinion, in addition to the narrow interpretation of invalidity under public law, in a broader sense it amounts to invalidity under public law if internal controversy is created within the Fundamental Law as a result of any amendment to it. Amendments which generate internal controversy or dissolve the unity of the Fundamental Law will not be deemed to have been incorporated within it.

In his opinion, the unity of the Fundamental Law was clearly broken where the Fourth Amendment was contrary to previous Court decisions. This was the situation in this case, in terms of Articles 3, 4, 5.1, 6 and 8 of the Fourth Amendment. The applicant requested the annulment of these provisions.

II. Under Article 24.5 of the Fundamental Law, the Court may only review the Fundamental Law and amendments to it for conformity with the procedural requirements laid down in the Fundamental Law with respect to its adoption and enactment (in the case of procedural error). This wording obviously encompasses the proponents of the Bill, the legislative process, the two-thirds adoption, provisions with regard to the designation of the act and the rules of signature and enactment, i.e. observance of the provisions of .

The applicant had contended that those provisions of the Fourth Amendment which were adopted based on the proposals submitted by the Committee for Constitutional Matters following the conclusion of the closing debate were not debated by the Parliament in plenary session. The Court, found that MPs had in fact had the opportunity to express their opinions. They were not prevented from initiating the reopening of the detailed debate and could have submitted amendment proposals prior to the closing debate. There was no closing debate due to the absence of petitions to that effect, since the MPs did not find it necessary to have one. The adoption of the provisions of Articles 4.1, 4.2 and 21.1.e did not, in the Court’s view, infringe the formal requirements laid down in the Fundamental Law for the adoption and enactment of the Fundamental Law.

Regarding the second part of the petition, the Court noted the limitations on its powers in terms of the structure of division of powers; it would not extend its powers to review the Constitution and new norms amending it without express and explicit authorisation to that effect. It resolved therefore only to allow limited judicial review of the Fundamental Law and amendments to it. The changes brought about by the Fourth Amendment to Article 24.5 of the Fundamental Law only actually allow the Court to review the Fundamental Law and any amendments to it for conformity with the procedural requirements laid down in the Fundamental Law in terms of its adoption and enactment.

The Commissioner had placed emphasis on the formal approach of invalidity under public law. In fact, the petition was aimed at having the Court compare the amendments – with regard to their content – to other provisions of the Fundamental Law and to reasoning and requirements defined in prior Court decisions. The Court has no power to do this and it rejected the petition.

It did, however, make the following points. The Court will decide on the constitutionality of statutory regulations to be adopted based on the constitutional authorisation mentioned above. In the exercise of its powers, the Court, as the principal organ for the protection of the Fundamental Law, shall continue to interpret and apply the Fundamental Law as a coherent system and will consider and measure against one another, every provision of the Fundamental Law relevant to the decision of the given matter. The Court will also take into consideration the obligations Hungary has undertaken in its international treaties or those that follow from EU membership, along with the generally acknowledged rules of international law, and the basic principles and values reflected in them. These rules constitute a unified system of values which are not to be disregarded in the course of framing the Constitution or legislation or in the course of constitutional review.

Supplementary information:

The plenary debate on a bill begins with the general debate which is conducted on the concept of the whole bill. The second part of the parliamentary debate is the so called detailed debate. In this debate, MPs can profound their views on the proposed amendments and the parts of the bill affected by the amendments. The last stage of the plenary debate if the closing or final debate. An amending motion can be launched on any kind of previously accepted enactment in case it is considered to be inconsistent with the Constitution or with other laws. The Committee of Constitutional Affairs forms an opinion on it and Parliament holds a final debate which is based on the opinion of the Committee. Then comes the final vote on the whole bill.

Languages:

Hungarian.