Anna GeraI. Introduction
The Fundamental Law of Hungary, adopted by the majority votes of conservative parties twenty years after the democratic regime change in 1989, contains an article that provides the following: “The provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal contained therein and the achievements of our historic constitution.”[1] As the Fundamental Law is regarded to be the constitution of Hungary, this rule creates a strong bond between the historical legal tradition and the legislation in force, and does so with a concept of “the achievements of our historic constitution” which is yet to be defined. Although the fact that the probable intention of the constitution-drafter Parliament can be identified by reading the preparatory works, the current practice faces challenges in interpreting the aforementioned constitutional provision.
In this paper, my aim is to reflect on this special bond between constitutional tradition and the current practice by presenting my findings on what role the “achievements of the historical constitution” play in the Hungarian constitutional law in the present days, to identify the main advantages and disadvantages of making arguments referring to the legal history, and to propose a possible solution for the identified problems by creating a consistent practice in accordance with the current regulatory surrounding.
Therefore, my article identifies firstly the definitions of the historical constitution in Hungarian, and the achievements in European context, and reflects on what might have been the intention of the constitution-drafter parliament when the two expressions were linked to each other. Secondly, I examine the practice of the Hungarian Constitutional Court regarding the frequency and the substantive aspects of it quoting the provision referring to that. Finally, I propose my theory on how the practical issues can be solved by introducing a definition for the “achievements of the historical constitution” and the two-part test that, if followed, would contribute remarkably to the coherent practice of the Hungarian Constitutional Court.
II. The concept of “achievements”, “historical constitution” and “the achievements of the historical constitution”
The Fundamental Law was adopted shortly after the democratic transition of power in 1989, making the end of the soviet occupation and the socialist regime. Until 2011, the parties could not agree on whether it is necessary to adopt a new constitution, or if it is suitable to make (fundamental) changes in the previous one, which was originally adopted in 1949, during the occupation. However, in 2010, conservative parties gained the majority of the votes, and were able to therefore adopt a new legal document with the name of Fundamental Law of Hungary.
The name of the document itself has a significance, as it does not reflect on the norm as the constitution, however, the Constitutional Court, the body which is competent in interpreting the document, has the term “constitution” in itself. The Constitutional Court is also responsible of interpreting the provisions of the document in accordance with the achievements of the historical constitution, which implies that the Hungarian constitution is a broader concept than the Fundamental Law, it also includes certain parts of the historical constitution.
The traditional definition of the historical constitution in Hungarian context describes the concept as constitution which is not embodied in a single document but is expressed in customs and regulations created in different periods of time.[2] This constitution is therefore vivid and constantly changing until the adoption of the first written constitution, which complies all the accepted elements of the historical constitutions as well as created new regulations overruling the previous practice. Based on the dogmatic understanding, uncodified and codified constitution cannot exist at the same time, and historical constitutionalism describes the legal system before the adoption of a written constitution.[3]
However, in Hungary, the concept of “achievements” in legal context was only used referring to the European “acquis communautaire,” which describes the constantly evolving body of common rights and obligations that are binding on all European Union (EU) countries, as the members of the European Union. This concept is broader than the textual legal sources of the EU, as it also includes political objectives and non-legal measures. However, in Hungary, the concept was meant to codify a selection mechanism that narrows down the complete content of the historical constitution to the rules that are still applicable, as they reflect the values expressed in the Fundamental Law.[4]
The concept of the “achievements of the historical constitution” therefore originally aimed to refer to a selected amount of traditional principles and rules that reflect the values of the Fundamental Law. However, this direct link that allowed some parts of the historical constitution to be applicable besides the Fundamental Law, which generally appeared as the first legitimate written constitution, created a diffuse constitutional regime where the historical and the written constitution had to be applied in constitutional questions simultaneously. This was difficult to put into practice as according to the traditional definition, it is not possible that both exist at the same time.
III. The practice of the Constitutional Court
In Hungary, the Constitutional Court is competent primarily in interpreting the constitution, therefore the Fundamental Law and the achievements of the historical constitution when answering questions that arose regarding internal constitutional problems or external problems in the field of international and EU law. Because of this, it was the responsibility of this body to find the correct interpretation of Article R) paragraph (3) and after that, apply it during the interpretation of the other provisions of the Fundamental Law.
Using the searching software of the Constitutional Court’s official website, I was able to identify 85 decisions published between 2012 and 2021 April, in which the body reflected clearly on constitutional and legal history. Among these, there were 34 cases where the court explicitly identified an achievement of the historical constitution, in other cases, it generally reflected on the article R) paragraph (3). My research focused on these 34 decisions, in this section, I present firstly my qualitative analysis on the most important ones, and then I focus on the quantitative analysis of every decision.
The first decision reflecting explicitly on the achievement of the historical constitution was Decision 33/2012. (VII. 17.), which defined these achievements as narrower than the historical constitution itself and said that among these fundamental values there is the principle of impartial and independent judiciary, as well as a certain “legislative attitude” which regards judges with respect. The court also reflected shortly on multiple traditional legal sources, however, it did not make a thorough analysis on why these particular legal instruments were selected, and why these principles can be regarded as the achievements of the historical constitution. This was heavily criticised as the Hungarian legal system follows a rather positivist regime where knowing the exactly phrased rules is regarded to be crucial to achieve legal certainty, which is deemed to be one of the defining concept of the rule of law.
In the subsequent years, the Constitutional Court indeed showed a more careful approach towards applying article R) paragraph (3). It usually referred Decision 33/2012 (VII. 17.) and the achievements and legal sources mentioned in it. It was particularly interesting however, that the body started soon to reflect on the previously analysed traditional legal sources as achievements,[5] which evoked even further criticism, as it carried the risk of having to apply either repealed and effective legal sources at the same time when solving a constitutional problem.[6] In accordance with this, the court refrained from grounding its decision solely on historical sources, instead, only referred to them as a supplementary argument in favour of the decision based on the legal sources in force.
Decision 22/2016. (XII. 5.) was the next one that carried particular importance in the Hungarian legal system, as it addressed the problems regarding the relations between the Hungarian national identity and the EU legislation. According to Article 4. paragraph 2 of the Treaty on the European Union, the EU shall respect the national identities of the member states, and in this decision, the Hungarian Constitutional Court linked the Hungarian national identity with the historical constitution, moreover, identified multiple principles both as the part of the national identity and an achievement of the historical constitution. As later this decision was implemented in the text of the Fundamental Law by the seventh amendment,[7] the achievements of the historical constitution became particularly important in identifying the elements of the Hungarian national identity.[8]
However, the quantitative analysis of the court’s practice indicates that the coherent interpretation and application of article R) paragraph (3) is still to be elaborated. The court identified 7 regulations and 22 principles as “achievements”, which itself indicates a careful practice, besides, it is still a question that how this identification is made. As the Hungarian legal system follows a dogmatic and positivist approach, it is difficult to accept a practice which does not provide thorough reasoning regarding the selection of applicable rules and principles.
A further problem is that it is often debated even among the constitutional judges whether an achievement needs to have a direct link to the core of the constitution (as the achievement of equality),[9] or it is not required (as in the case of the achievement of protecting the woods).[10] It is also a question that what is the earliest and the latest point of Hungarian legal tradition that can be referred as a principle: for instance, Béla Pokol, a previous member of the court claimed that only the uncodified rules should be considered,[11] while Imre Juhász, a current constitutional judge argues that even the Constitutional Court rulings issued before the adoption of the Fundamental Law might be classified as achievements.[12]
Finally, based on the case law, it can be concluded that the original aim of the constitution-drafter parliament, to establish a constitutional system where the historical and the written constitution is both applicable, is unreachable. The court generally refrains from referring to the Hungarian constitutional tradition, and even when it does not, the arguments only contribute to the justification of a decision which is made based on the legislation in force, particularly the Fundamental Law.
However, it is important to note that there are also multiple advantages of reflecting substantially on the constitutional development. This can serve as the basis of established legal arguments that take into account the changes in the tradition and reflect on the meaning of different concepts in different eras (like the court did in the case of “home”),[13] and the national history can indeed form the national identity. Although this approach is not dominant in the court’s practice, it is present, therefore it has the capacity to shape the current system.
IV. Defining, identifying and applying: a potential solution for a coherent practice
In my opinion, the main problem regarding the current practice is that not knowing what achievements to apply, how to find, and how to apply them is hardly understandable in a legal system based on dogmatic clarity and legal positivism. Due to these reasons, the solution I propose involves three parts: the definition of the term, a test for identifying the applicable achievement, and rules to consider when applying it.
I believe the term “achievements of the historical constitution” can be best described by “legal principles that evolved throughout the history of our homeland and constitute the basis of its democracy.” The achievements are legal principles, because it would violate the legal certainty if historical and current rules had to be applied simultaneously to resolve an issue. Describing them as principles that evolved throughout the history emphasises the importance of noticing the dynamic change of these concepts though different eras, and referring to Hungary as homeland intentionally restrains claiming the applicability of the concepts developed only in a certain period of time when the country had a certain name. Reflecting on democracy honours the aim of the original constitution drafter parliament that intended to establish continuity with the legal tradition before the socialist regime and claiming that these principles serve the basis of it requires a strong connection between them and the core of our current democratic constitutionalism.
For the identification of the applicable achievements I propose the following test: The achievement has a substantive connection with the given constitutional problem, is reflected in historical regulation concerning fundamental rights or the basic institutions of the state, and provides a relevant new argument regarding the problem. The substantive connection contributes to narrowing down the potential sources, requiring the naming of traditional legislative acts ensures that the sources can be recognised in their entirety, reflecting on fundamental rights and basic institutions ensures the close relation between the achievement and the core of constitutional legislation, and finally, relevance ensures the substantivity of the application.
Finally, regarding the application, I propose the following rules: Interpreting it in a traditional context which reflects the historical specificity of the given era, the special meaning of the concept at that time as well as its evolution, and using this as a secondary means of interpretation. Interpreting in traditional context is different from interpreting legislation in force, it requires knowing the history of the era, as well as the evolution and the special meaning of concepts, which ensures the thorough understanding of the principle. Only allowing to use this method as a secondary mean further emphasises the importance of primarily basing the argumentation on codified legal sources in force, which is crucial in a positivist legal system.
V. Conclusion
In this paper, my aim was to give a short introduction to the theoretical background and the practical application of the “achievements of the historical constitution” in Hungary. As the corresponding provision of the Fundamental Law implies, the Hungarian constitutional system tries to include elements of the codified and the historical constitution simultaneously, which is an internationally unique approach. Although there are several deficiencies in the current practice, this legislation carries the potential to be the basis of historically conscious decision-making and identifying the core concepts of the Hungarian national identity, therefore it is important to develop further the definition, identification and application of the achievements of the historical constitution. With my research findings and recommendations, I hope to contribute to these long-term endeavours.
__________________________________________________________
[1] The Fundamental Law of Hungary, Article R) paragraph (3)
[2] Barna Mezey (ed): Magyar alkotmánytörténet [Hungarian constitutional history]. Budapest., 1995, Osiris, 207
[3] László Salamon: Az alaptörvény két fajtája: a történeti és a kartális alkotmány. [The two types of the fundamental law: historical and codified constitution]
[4] Bálint Ablonczy: Az alkotmány nyomában. Beszélgetések Szájer Józseffel és Gulyás Gergellyel. [Finding the constitution. Discussions with József Szájer and Gergely Gulyás] Budapest., 2011, Elektromédia Kft. 82.
[5] Decision 21/2014. (VII. 15.) of the Constitutional Court of Hungary
[6] Imre Vörös: A történeti alkotmány az Alkotmánybíróság gyakorlatában. [Historical constitution in the Constitutional Court’s practice] In: Közjogi Szemle, 2016/4., Budapest. 46.
[7] National Avowal: „We hold that the protection of our identity rooted in our historic constitution is a fundamental obligation of the State.”
[8] Tamás Sulyok – Gergely Deli: A magyar nemzeti identitás az Alkotmánybíróság gyakorlatában. [Hungarian national identity in the Constitutional Court’s practice] In: Alkotmánybírósági Szemle, 2019/1., Budapest., 57-59.
[9] Decision 22/2016. (XII. 5.) of the Constitutional Court of Hungary
[10] Decision 14/2020. (VII. 6.) of the Constitutional Court of Hungary
[11] Decision 28/2013. (X. 9.), of the Hungarian Constitutional Court, concurring opinion of Béla Pokol,
[12] Decision 28/2013. (X. 9.), Decision 7/2014. (III. 7.), concurring opinions of Imre Juhász,
[13] Decision 3100/2015. (V. 26.) of the Constitutional Court of Hungary
__________________________________________________________
The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.