Volume 8 Numbers 4

Fall 1999

 

The New Hungarian Constitutional Court
Kim Lane Scheppele

A state under the rule of law is often described as one with a government of laws rather than of men. But even in such a state, particular men in power make a difference.

For close to a decade, the Hungarian Consti-tutional Court has been perhaps the most powerful court of its kind in the world. It has now undergone a complete turnover of judges in the span of three years. Of the eleven judges on the Court in the fall of 1999, eight were elected between March 1998 and June 1999. The most senior judge, Andras Hollo, was elected only in November 1996. When the widely acknowledged intellectual leader of the Court, former president Laszlo Solyom, left the Court in the fall of 1998, Janos Nemeth, professor of civil procedure and chair of the National Election Committee, was elected president.

The first major decisions announced under the new president with his nearly new Court reveal that the new judges have views very different from those of the departing judges who shaped the Court in its initial nine years. It is still early, of course, and recent decisions are not definitive proof of a new attitude at the Court. Still, two important decisions in the opening months of 1999 indicate that the Court has taken a formalist turn, thereby increasing the government's and parliament's room for maneuver.

From the Solyom to the Nemeth Court

Most observers of the Constitutional Court recognize the enormous influence that former president Laszlo Solyom exercised over the tone and direction of the Court's decisions in its first nine years. Solyom was one of the five initial judges whose names had been agreed on at the 1989 national Roundtable Talks, and, as president, he wrote many of the Court's most sweeping decisions. (A volume of English translations of the Court's major decisions, edited by Solyom, will soon be published by the University of Michigan Press.)

Offering far-reaching human-rights protection, the Solyom Court actively used its power to declare that parliament was acting "unconstitutionally by omission," and struck down as unconstitutional roughly one out of three challenged laws in its early years. Solyom was known for advocating an "invisible constitution" and for talking about a "common constitutional law of Europe," even though neither concept ever appeared in a majority opinion. Both concepts, however, authorized an expansive jurisprudence in which little deference was accorded to parliament. Substantive answers to a number of policy questions were given by constitutional interpretation. Solyom was committed to the idea of an activist court that based its decisions on a coherent jurisprudence of principle that left relatively little room for politics.

The Hungarian Constitutional Court's ideas about constitutional interpretation depended on its particular judges. Hungarian Constitutional Court judges serve nine-year terms, renewable only once. As the Court's first nine-year anniversary approached, the question arose whether President Solyom and justices Geza Kilenyi and Antal Adam would be renewed when their terms expired in November 1998. Out of the original five appointed in 1989, they were the three who remained.

In deciding this question, the parliamentary factions split. Meetings between the senior judges and the political leadership under both the Horn and Orban governments failed to produce an agreement either to renew or extend the judges' terms. Faced with the prospect of an almost complete turnover of personnel, President Solyom proposed that the Constitution be amended to extend the terms of all judges, including the sitting judges, to 12 years without renewal. But this proposal failed. In the end, justices Solyom, Kilenyi, and Adam had to step down when their original nine-year terms expired.

Additional vacancies also occurred. Two other justices, who had also served on the Court since its first year, Andras Szabo and Janos Zlinszky, had left the Court in the spring of 1998, when they reached the mandatory retirement age of 70. To these two vacancies must be added three others, which had opened up earlier: Justice Peter Schmidt retired in December 1996, and two new judgeships were created following the second general election in 1994. (Originally, the Constitution envisioned that five new judgeships would be created after the second election, but the Court sought and won a constitutional amendment limiting the number to two.) Throughout this period, parliament was slow in filling open seats. As a result, a large rush of judgeships were left to be named toward the end of the first nine-year term when all sitting judges faced renewal or departure.

The departure of President Solyom and six of his fellow justices in rapid succession, plus the creation of two new judgeships, produced a vacuum of leadership and experience within the institution. The three more experienced justices remaining after President Solyom's departure—justices Imre Voros, Tamas Labady, and Odon Tersztyanszky—served only until June 1999. This confluence of events means that the Hungarian Constitutional Court was emptied out and restaffed by an entirely new complement of judges within a three-year period.

After Solyom left the Court, Janos Nemeth was elected president by his colleagues in the fall of 1998. For a few months, the Court was quiet, and no major decisions were issued while an internal reorganization unfolded. But then, two important cases in February and March gave the first firm evidence that President Nemeth and the other new judges were likely to adopt a quite different approach to constitutional jurisprudence than the one prevailing from 1989 to 1998.

The new Hungarian formalism

The two recent and significant cases are Decision 1/99 (II.24) on the "two-thirds laws" and Decision 4/99 (III.31) regarding parliament's house rules.

The first case arose when parliament amended the Law on the Police in a variety of relatively minor ways. The problem was that the law was one of parliament's "constitutional laws," which require a two-thirds vote. The government, however, took the position that the law demanded only a simple majority to amend since the changes were minor.

The requirements of the two-thirds laws, also called "laws with the force of the Constitution," had been defined as part of the constitutional regime that went into effect along with the sweeping 1989 constitutional amendments. Once a subject was included in the framework of constitutional laws, it then required a two-thirds vote. But in 1989, nearly all subjects within ordinary legislative competence came under the two-thirds requirements. Such a high threshold was unworkable in daily governance and, consequently, a pact between the Hungarian Democratic Forum (HDF) and the Alliance of Free Democrats (AFD), in 1990, restricted the so-called two-thirds laws to those subjects explicitly requiring legal regulation under the Constitution. Most of these subjects affected the limitation of fundamental rights, and the police law was one of these. Such laws require for approval a two-thirds vote of those members of parliament who are present, while constitutional amendments require a two-thirds vote of all elected members of parliament.

The 1999 amendments to the police law were challenged in the Constitutional Court on the grounds of legal validity. If a law needs a two-thirds vote to be valid in the first place, then an amendment to the law surely needs the same two-thirds vote, the challenge argued. This was not the first time the Court had dealt with this subject.

A decision of the Solyom Court—Decision 4/93 on the restitution of church property—had dealt with the introduction of new content into a two-thirds law. In that case, the Court had held that any subject requiring a two-thirds law needed supermajority support only for those parts of the subject that pertained to its essential content. Regulations regarding less important matters on the same subject could be passed by a simple majority in a new law. According to the logic of Decision 4/93, some core aspects of freedom of religion required a two-thirds vote, while other less crucial parts could be regulated with a simple majority. In particular, the Court held that the restitution law did not require a two-thirds vote. On the general question of the two-thirds voting procedure, however, once parliament had decided that something should be in a two-thirds law, it could not change its mind and take a provision out of the law, according to the Court. On the other hand, if parliament had not yet put a provision into a two-thirds law, then the new provision might be separately regulated under a new law passed by a simple majority. This would be so, even if the provision concerned the same subject matter as the two-thirds law, so long as it was about some nonessential aspect of the subject. In either case, parliament had to make the substantive judgment about whether the proposed regulation did or did not belong as an intrinsic part of a two-thirds law. For the Solyom Court—in 1993—a two-thirds law was defined by its content and not by its form.

In the police-law case of 1999, the Court could have addressed the substance of the amendments first, deciding whether they were, properly speaking, subjects for a two-thirds law. Subsequently, the Court could have addressed whether they were essential (and therefore required a two-thirds vote) or whether they were minor (and therefore could be introduced in a separate law requiring only a simple majority). At least, this was what critics of the Court's decision believed the precedent of the 1993 decision required. But the new Court took a different tack.

The new Court reached its conclusions, in Decision 1/99, without asking whether fundamental rights were substantively affected by these amendments. Instead, it adopted the more formalist view that any provision of a two-thirds law required a two-thirds vote to amend it, regardless of how minor the changes were and regardless of whether a fundamental right was affected. The Court's majority said nothing about the substance of the amendments and whether they were essential or not. The Court simply found that parliament had engaged in an unconstitutional amendment procedure because all amendments to two-thirds laws must be passed by a two-thirds vote.

Critics of the Court immediately charged that the decision was too formalist, that it disregarded available precedent, and that it made it too easy for parliament to evade the Court's scrutiny. According to these critics, the Court should have made a substantive decision, determining if the provisions were major (requiring a two-thirds vote) or minor (amendable by simple majority). If the provisions were major, they would have to be passed by a two-thirds vote regardless of whether they came in the form of an amendment to the current law or as a new law altogether. If the provisions were minor, they were within parliament's competence to enact by simple majority. Critics and the Court alike agreed that parliament could not amend a two-thirds law by a simple majority, so critics did not challenge the decision as far as it went. But they did argue that the decision did not go far enough and failed to apply the correct methodology. The critics thought that the test for the constitutionality of the police provisions was whether they met the substantive test for being in a two-thirds law in the first place, and not only whether they met the formal test of correct procedure. The Court focused only on procedure.

Defenders responded that the Court had not criticized or overruled Decision 4/93. They claimed instead that the Court left that reasoning intact and had decided the present case on simpler grounds because the present case presented a simpler problem. In the previous case, the law under constitutional review was not passed as a two-thirds law. It was a wholly new law but on a topic that might be considered a two-thirds topic. So the question of directly amending a two-thirds law did not arise in the earlier case. Decision 1/99, however, raised exactly that question, the Court's defenders argued, and so the decision did not have to determine whether the substance of the new enactment affected a fundamental right with the further consequence that a new law on the subject would need to be passed under the two-thirds rule. If parliament took the provisions of the police law out of the two-thirds law and enacted them in a separate, free-standing law, certainly the Court would then have to confront the question of whether the substance of this new law affected any fundamental rights. At that point, the 1999 Court would be in the same position as the 1993 Court in having to determine whether new provisions, enacted outside the framework of the two-thirds laws, were constitutional. But that was a question for a later day.

Critics of the Nemeth Court pointed out that the Solyom Court probably would have taken up, at the first opportunity, the substantive question of whether the amendments affected fundamental rights and would not have let the case be decided on the basis of a procedurally formalist logic. The Solyom Court would probably have told parliament what its limits were and would have identified the issues regarding rights about which parliament should be especially careful. But defenders of the Nemeth Court argued that there was no reason for the Court to decide what were now hypothetical questions (depending on whether parliament went on to reenact the provisions as part of ordinary law). In general, the defenders of the Nemeth Court were more inclined to trust parliament to make reasonable judgments about the matter. They thought it was important for the Court not to intrude on parliament's lawmaking function.

This decision, taken alone, might not signal a major shift in the Court's thinking. After all, both critics and defenders of the Court's decision agreed that parliament could not amend a two-thirds law by a simple majority. This decision might only be displaying a tendency in the new Court not to decide today what might be put off until tomorrow, unlike the Solyom Court, which wanted to decide everything at the first opportunity.

But the next major decision (4/99, on the house rules of parliament) revealed the same formalist bent and provided additional evidence for those who anticipated that the turnover in personnel would make a great difference in the Court's jurisprudence. This decision concerned a government proposal to reduce the number of plenary sessions that parliament would hold, from two days each week to only five days every third week. The Court was asked whether parliament's sessions could be so rearranged and cut back by the government.

While this question had not arisen before, it is easy to imagine how the Solyom Court might have responded. The Solyom Court would almost surely have found the proposal unconstitutional, because a democratic government requires a strong parliament, and a parliament that is in session only one week out of three cannot be strong. The Solyom Court, in one of its last major decisions in June 1998, in a case involving the status of the Hungarian Truth and Life Party's parliamentary faction, ruled that parliament could not exploit its house rules to restrict the ability of a party that had passed the 5 percent representation threshold to participate in parliamentary committees (see Decision 27/98 [VI.16]). Surely, restricting participation of all of the elected members of parliament in a plenary session could not be acceptable either. It is hard to imagine that the Solyom Court would have allowed such a restriction to be placed on the sessions of parliament. Probably, it would have responded either by adding substantive content to the provision that "Hungary is a Republic" (Art. 1 of the Consti-tution) or by reading the requirement of frequent meetings into the article on the powers of parliament (Art. 19.2), or by reading the requirement of a relatively continuous session into the provision that parliament shall meet from February 1 to June 15 and from September 1 to December 15 (Art. 22.1).

In its deliberations, the Nemeth Court did not arrive at the substantive question of whether limiting the number of sessions was constitutional but decided the petition on a more formal basis. As it turns out, the house rules did not specify at all how often parliament was supposed to meet. For this reason, the Court declared that the rules contained an unconstitutional omission. The Court ordered parliament to remedy this gap by passing at least some rule about how often parliamentary sessions should be held. It took no position on whether cutting back the number of plenary sessions from its traditional number was a constitutional violation. The constitutional violation, so far as the Court was concerned, consisted in the absence of formal rules about meeting times, not in the presence of customs about meetings that were now being changed by the government parties. The Nemeth Court did not attempt to infer a substantive constitutional requirement that would have provided limits beyond which the parliamentary sessions could not be cut back or find that the government's proposal was in violation of some theory of democratic representation, such as the one used in Decision 27/98.

These two decisions seem to indicate that the Nemeth Court will seek, wherever possible, to rest its judgments on a formal basis first before it examines violations of substance. Perhaps this approach should not be surprising in light of the new cast of characters and their backgrounds, particularly that of the new president himself, whose specialty is civil procedure.

The new cast

The two-thirds case and the house rules case were decided by a Court consisting of eight new judges and three of the more senior members who had been present from the Court's first year of operation. Justices Tamas Labady, Odon Tersztyanszky, and Imre Voros were still on the Court and decided these cases with President Nemeth and the seven new judges.

President Nemeth is best known in the Hungarian legal world for his work in the area of civil procedure. He taught in the Department of Civil Procedure at Eotvos Lorand Tudomanyegyetem (ELTE) since 1957, heading the department for 15 years and also serving as vice rector of ELTE from 1993 to 1997. He served as chair of the Hungarian National Electoral Commission from 1990 to 1997. Because of his professional expertise in procedure and his personal acquaintance with all major Hungarian politicians through his work on the Electoral Commission, it is perhaps not surprising that a Nemeth-led Court would emphasize procedural regularity and a basic trust of elected officials. He was also a Humboldt Fellow, is fluent in German, and is an admirer of the German Constitutional Court, as was Solyom. Born in 1933, Nemeth will have to retire from the Court when he reaches the mandatory retirement age of 70 in 2003.

Justice Andras Hollo (born in 1943), the Court's new vice president, now possesses the most detailed historical memory on the Court. General secretary of the Court from 1990 until his election to the Court in November 1996, Hollo was the only nonjudge to attend all of the Court's plenary sessions from its early days since it was his job to record the minutes. He has written a substantial body of work on Hungarian constitutional and administrative law and has taught on the law faculty at Miskolc.

Justice Arpad Erdei (born in 1939) was elected to the Court in March 1998, after being a professor of criminal procedure and head of that department at ELTE. He worked previously as a simultaneous interpreter, for legal matters between English and Hungarian.

Justice Istvan Bagi (born in 1942) practiced law for much of his career before taking up teaching at the law school in Pecs and at Peter Pazmany Catholic University Law School in Budapest. He specializes in real-estate law and has served as an expert for the codification committee of the Ministry of Justice before his election to the Court in June 1997.

Justice Janos Strausz (born in 1934) spent his career as a judge. He handled a great many of Hungary's more notorious criminal cases, through which he became both well known and popular. After serving as a trial judge, he became a judge on the Court of Appeal and head of one of the Court's chambers. He maintains a strong interest in legal history. He was elected to the Constitutional Court in December 1998.

Justice Otto Czucz (born in 1946) came to the Court from a professorship at the law school in Szeged, where he specialized in social security and labor law and was head of the Department of Labor Law. He has been a research fellow in Munich and Geneva. He is fluent in English, French, and German and was elected to the Court in December 1998.

Justice Laszlo Kiss (born in 1951) was a professor of law in Pecs, where he specialized in public and administrative law, and headed the Department of Constitutional Law. His expertise is in local-government issues. He also served as a Humboldt Fellow before being elected to the Court in March 1998.

Since those decisions were made, four new judges have joined the Constitutional Court.Justice Attila Harmathy (born in 1937) was not yet serving on the Court when the cases discussed in this essay were decided though he was elected in December 1998 when he was vice president of the Hungarian Academy of Sciences. He was one of the major contributors to the draft recodification of the Hungarian Civil Code and specializes in contract law and Roman law. He is widely published in several languages.

Justice Mihaly Bihari (born in 1943) studied law, political science, and sociology before he joined the law faculty at ELTE, where he was director of the Department of Political Science in the law faculty. He is a former president of the Hungarian Political Science Association and the former director of the Political Science Institute of the Hungarian Academy of Sciences. He was a member of parliament from the Hungarian Socialist Party from 1994 to 1998 and served on parliament's Constitutional Committee.

Justice Istvan Kukorelli (born in 1952) served as head of the Department of Constitutional Law at ELTE and has written the most widely read textbook on Hungarian constitutional law. He was a founding member of the Independent Lawyers' Forum, which organized the Opposition Roundtable in 1989. He was a member and later chair of the National Election Committee, until his election to the Court.

Finally, the first woman justice on the Court uses both her own name and her husband's name in her formal title, making her Dr. Eva Vasadi, Dr. Mrs. Odon Tersztyanszky, when translated rather literally from Hungarian. Born in 1936, she received her law degree from ELTE and worked in the legal department of Hungary's largest consumer bank for many years. When the Constitutional Court started operating in 1990, she began work there as a Constitutional Court counselor (professional clerk). She is also the wife of former justice Tersztyanszky, whose office she now occupies. More recently, Justice Vasadi taught finance law at Peter Pazmany Catholic University Law School, where she was also deputy dean for finance.

The future of the Hungarian Constitutional Court

These new judges and the apparent shift in tone of these recent decisions suggest that the Hungarian Constitutional Court is passing through a major institutional transformation. While it is too soon to estimate the depth or permanence of the changes, the Nemeth Court seems to be clearly pulling away from the activist stance of the Solyom Court. Given the new president's expertise in procedure, it was perhaps predictable that there would be a distinctly procedural tone to the new decisions. Solyom's expertise was in tort law, where a few principles of high theoretical generality are woven into a general theory of law. His leadership of the Court reflected this general approach, and it appears that President Nemeth's expertise also guides his leadership.

Admittedly, it is still very early to be extrapolating major trends. The Court's output, more than 200 published cases per year at its peak, has dropped and, in the first 11 months of 1999, less than 50 cases were decided. Clearly, the new judges needed some time to learn their jobs and to sort out the backlog of cases, even as that backlog grows dramatically day by day. But the major decisions that have emerged so far give some indication that the Constitutional Court is not the same institution it once was.

Observers of the Court are left wondering why these new decisions seem so different from the previous ones. Perhaps all of the knotty constitutional problems of transition have been sorted out, so that the Court now needs merely to keep a general watch over the political branches while allowing them more room to maneuver. Perhaps, as President Nemeth explains, the days when judicial activism was required to weed out the old unconstitutional laws are over. According to this explanation, the new Court's jurisprudence reflects changing times rather than a change in personnel.

But some Court observers suspect that the changing personnel are more important than the changing times. They believe that the latest judges on one of the world's most powerful courts have decided to exercise a new kind of judicial restraint, limiting judicial review to a series of tests of procedural regularity out of a newfound deference to the political branches. Of course, since these two major cases were decided, early in 1999, four new judges have been brought onto the Court so perhaps even more changes can be expected. The swiftly changing composition of the Constitutional Court makes its future approach to judicial review especially unpredictable.

In any case, for those who supported the Solyom Court's substantively rich jurisprudence, the new Court's first decisions have proved a disappointment. For critics of the Solyom Court who believed that the 1989-1998 Constitutional Court was too activist, however, a change in legal philosophy was long overdue. Which style of constitutional adjudication will prevail in the long term remains to be seen.

***

Kim Lane Scheppele is professor of law and sociology at the University of Pennsylvania and visiting senior scholar at the National Constitution Center, Philadelphia

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