• Nem Talált Eredményt

Constitutional remedies The Constitution

In document andCENTRAL EUROPE (Pldal 93-100)

Legal Culture as a Feature o f Hungarian National and Cultural Identity

VII. Constitutional remedies The Constitution

Instead of entering the debate on an entirely new constitution, Parliament decided to introduce a series of amendments in 1989 and 1990. The patchwork which resulted from this process virtually altered all of the communist-era constitution. Many legal experts found its wording vague. As László Sólyom, the former President of the Constitutional Court, expressed in an interview

“undoubtedly, the Constitution is not a fully coherent document” [Mink, 73].

This situation led to jurisdictional conflicts among government institutions and offices. In 1995, a newly-formed constitutional committee reached agreement on procedural rules for drafting and approving a new constitution. The coalition parties agreed that the opposition would contribute substantially to the process. The coalition also agreed that the constitutional committee would have 24 members, or four members from each party

represented in the parliament. The National Assembly then amended the constitution to state that the new rules in the Standing Order could only be enforced by a four-fifths majority. A new draft constitution has yet to be approved. [Karatnycky, 287]

The constitution declares that the state is responsible for ensuring the observance of Human Rights. Individual and human rights, freedom of speech and assembly, and social and property rights are extensively covered in the constitution. In 1996, the National Assembly passed a number of Penal Code amendments, including laws regulating freedom of the press , defamation, and the defense of minorities. Especially laws governing business and property rights quickly adapted to Western standards [Karatnycky, 287].

On July 7, 1993 the parliament passed Act No. LXXVII on National and Ethnic Minority Rights after nearly two years of preparatory work and several draft texts. The law bans discrimination against minorities, whose rights to national and ethnic self-identity are considered to be universal human rights and basic freedoms. The law recognizes all ethnic peoples who have lived in Hungary for at least a century and who are Hungarian citizens with their own language, culture, and traditions. These groups include Armenians, Bulgarians, Croations, Germans, Greeks, Poles, Roma, Romanians, Ruthenians, Serbs, Slovaks, Slovenes, and Ukrainians. Nevertheless, Hungary’s estimated 500,000 Roma continue to suffer severely from the effects of the economic restructuring of the country. They have also been the victims of attacks by skinheads and vigilantes.

In March 1996, after the acquittals of a number of perpetrators of hate crimes Parliament passed a penal code amendment that provides for up three years of imprisonment for anyone who incites hatred or acts in any other way that is capable of inciting hatred against the Hungarian nation or any other national, ethnic, or religious minority or race [Karatnycky, 289].

Constitutional C ourt

In 1989, Parliament modified the constitution of 1949. Formally, the constitution of 1949 was not suspended but rather modified in essential parts in order to abolish the totalitarian past. It turned out to be a pragmatic solution in the light of the deep cleavages between political parties. The formulation of an entirely new constitution would have led to lengthy disputes on highly charged issues such as the abolition of the death penalty which Parliament might not have been able to resolve [Int. Prof. Herczegh].

After the political turnover of 1989 the constitutional court (alkotmánybíróság) played a major role. In a country with a long positivist tradition of jurisprudence, constitutional pinciples introduced a new element [See introduction to this report]. According to the European Community Studies Association (ECSA) (1993:33):

“In the Hungarian case, the most important change has undoubtedly been the establishment of an independent Constitutional Court, which began to work at the beginning of 1990. The Court’s competences are widely defined: it can examine the constitutionality of all pieces of parliamentary legislation as well as secondary legal regulations, and, in certain cases, individual decisions by governmental and administrative institutions.

Importantly, the Court can exercise both different forms of ex-post concrete control and an abstract control of norms. The Court can annul a piece of legislation, a secondary legal act or a governmental or administrative decision, where it finds that it violates the Constitution.”

Constitutional review of parliamentary legislation as well as secondary legal regulations is especially important in a period of transition. The Constitutional Court not only decides whether legislation violates the constitution; it also declares it “not in agreement with the constitution with instance of omission (mulasztás).” In this vein it returned 40% of all pieces of legislation to Parliament for revision within certain limits of time. In many cases, political differences were so fundamental that Parliament could not fulfil this task.

Apart from the legislative function, the Hungarian Constitution grants the court an extensive right of constitutional complaint to everybody affected by Hungarian law [Act XXXII of 1989 on the Constitutional Court, 48 §]. The formal prerequisite is a 60-day period after exhaustion of all legal remedies. As a consequence of this very wide definition of access, the court is loaded with a high number of constitutional complaints.

The first president of the Constitutional Court, László Sólyom, who fulfilled this position from 1989 until 1998 played a very active role which brought him and the court into many a principled conflict with legislative politics. At the same time, the first president of the Supreme Court, Pál Solt, was pushing for the supremacy of positive law in regular courts [Council of Europe, Nat. Report, Hungary, 213-219]. President Sólyom set his stakes high by constantly correcting legislation of Parliament. Forty percent of all new statutes were sent back, partly on minor points. The new president, János Németh, has the reputation of sticking more positively to the letter of the law.

Most important among the qualifications for being appointed to the Constitutional Court are professional merits. Most of the judges have been university professors. As a rule, the political antecedents of the nominee are

examined - lustration ( átvilágítás)as it is called. This principle was not applied to the first five judges. The members of the Constitutional Court are nominated

for a period of nine years. A judge can cease to perform his duties after being declared unqualified by his peers. Judges should not be above the age of 70 at the time of their appointment.

At present the Constitutional Court has 14 members, of which eleven are judges and three are attorneys. They are elected by a two-thirds majority vote of all members of Parliament. The president of the Constitutional Court is elected by the members of the Constitutional Court itself. The president is elected for a period of three years and can be re-elected once [Napi Magyarország, 1999, 23 June].

On the average, the court rules on approximately 150 cases annually. Of these, about 35 percent find some grounds for constitutional reclamation [Karatnycky, 267].

In view of the many objections to new legislation the question has been raised whether there should not be more prior consultation with Parliament. This, however, was rejected, because it would muddle the functional separation of powers: constitutional review has to remain limited to concrete questions, it cannot be consulted for an entire statute [int. Paczolai]. Among conventional jurists it is generally felt that the statute on the Constitutional Court, by wording its authority too abstractly, granted too much discretion. Importing the constitutional jurisprudence of other European countries often surprised professors and justices by novel interpretations.

Concluding Rem arks

Above I have presented some aspects of the Hungarian legal culture. We have observed that aspects of legal culture have been restored extremely quickly in the past decade and that the judiciary is represented by an independent organ, the National Judiciary Council. One could argue that the NJC has been established as a strong reaction to the experience of political dependence of the justices during the communist period. This might be true but this does not explain why Hungary did not follow the Western practice where the Ministry of Justice strongly determines the organization of the judiciary.

It is my contention that an explanation for these observations can be given in terms of the national culture and identity of the Hungarians. Legacy and constitutionalism have been a basic feature of the Hungarian national identity [Bibo, 155]. Until 1946 when the Hungarian kingdom was abolished the principle of the Hungarian Holy Crown has been operative. It would lead too far to discuss this principle in the context here. The reader is referred to Kocsis (1995) and Molnár et al (1999) for more extensive discussion. In short, this principle states that the Hungarian Holy Crown incorporated among others all the institutions of state power, the executive power, the legislature, the judiciary, the king, all the citizens of the state, and the territory of the state [Molnár et al, 276]. Because of the fact that the principle of the Hungarian Holy Crown became the constitution the distribution of power in Hungary was guaranteed. It

became impossible to bundle absolute power in one and the same person, even the king could not govern with absolute power [Kocsis, 110].

The independence of judiciary has a long tradition in Hungarian political thinking. This is illustrated for example by paragraph 1 of Act VIII of 1871 stipulating that judiciary is independent of the executive branch of power and the paragraphs 8, 15, 16, 19-21 of the same Act stipulate the independence and the responsibility of the judges. According to paragraph 8, a judge cannot be member of parliament; cannot be an attorney; and cannot be appointed in another function of legislature or the executive power.

Of course, nowadays the principle of the Holy Crown is not operative, although at January the First of 2000 the Hungarian Holy Crown has been placed in the main hall of the Parliament stressing the fact that it is an important symbol of Hungarian national identity in the new Hungary as well. One might state however that the independence of the judiciary has become a feature of the Hungarian national identity, political genius, as has been expressed by Count Apponyi Hungarian statesman in the Interwar period, during his visit to the Netherlands in 1927:

“Seit 6 Jahrhunderten ist diese grundlegende Auffassung des ungarischen Staatsrechtes, die im XIV. Jahrhundert zum Auffinden ihrer Formel herangereift war, eine unbezweifelte juristische Tatsache und sie ist heute ebenso lebendig, wie zur Zeit ihrer ersten Blüte. Die Seele der Nation blieb von ihr durchdrungen, die einfachsten Intellekte begreifen sie und jeder fühlt sich stolz durch ein Königtum, in dem er sich selber wiederfindet, als Teilhaber seiner Macht und seines Ansehens. Ich glaube nicht, dass der politische Genius irgend einer Nation je schöneres und gleichzeitig dauerhafteres geschaffen habe, als die Lehre von der Hl.

ungarischen Krone; denn sie vereinigt die Bedingungen einer wirksamen Organisation der Macht mit reellen Garantien der Freiheit und sie besitzt jenes mystische Element, dessen Volksseele überall und jederzeit bedarf.”

[Apponyi, 15],

In sum, the independence of the judiciary, the distribution of power is deeply rooted in Hungarian national identity and has been implemented in the post­

communist period in the establishment of the National Judiciary Council.

References

Állam- és Jogtudományi Kar Jogi Továbbképző Intézet, Eötvös Loránd Tudományegyetem Budapest (1999) Órarend-Tanrend, 1998/99.

Apponyi, A. Dr. Graf (1927) Die Verfassungsrechtliche Entwicklung Ungarns, Drei Vorträge gehalten anfang april 1927 an den Universitäten von

Leyden und Amsterdam, und in Haag von Dr Graf Albert Apponyi, Budapest.

Bibó, I (1936) ‘A mai külföld szemlélete a magyarságról’, in válogatott tanulmányok 1935-1944, Budapest.

‘Council of Europe Legal Co-operation with Central and Eastern European Countries, Compendium of Legal Practice for Lawyers in Central and Eastern Europe’ (1995), 7-111 in National Report, Hungary, Council of Europe Publishing.

‘Council of Europe Legal Co-operation with Central and Eastern European Countries, Judicial Systems in a Period of Transition, Multilateral Meeting Organized by the Council of Europe and the Hungarian Supreme Court, Budapest, 25-27 October 1995’ (1995), 213-219 in National Report, Hungary, Council of Europe Publishing.

‘Crime and Corruption after Communism’, An Interview on Crime with Geza Katona, Police Research Institute, Budapest (1997) East European Constitutional Review 6,4.

Galligan, J.D. and D.M. Smilov (1999) ‘Chapter 5 Hungary’, 115-139 in Administrative Law in Central and Eastern Europe 1996-1998, Budapest:

Central European University Press.

Human Rights Watch/Helsinki (1996) Rights Denied, The Roma of Hungary, New York.

International Helsinki Federation for Human Rights (1999), 121-129 in Annual Report 1999, Human Rights Developments in 1998, Hungary, Vienna.

Interview with Dr. Judit Fridii, director of the Hungarian Civil Liberties Union, (1999, 22 July; 1999, August), Budapest.

Interview with Dr. György Gátos, employee of the Hungarian Ministry of Justice (1999, 19 July), Budapest.

Interview with Prof. Katalin Gönczöl, National Ombudsman (1999, August), Budapest.

Interview with Géza Herczegh, Judge at the International Court of Justice in The Hague (1999, 28 June), The Hague.

Interview with Dr. Lipót Höltzl, Deputy Secretary of State, Hungarian Ministry of Justice (1999, August), Budapest.

Interview with Erika Muhi, legal expert of the Legal Defence Bureau for National and Ethnic Minorities (1999, 14 June), Soesterberg.

Interview with Dr. Péter Pacolai (1999, August), Budapest.

Interview with Attila Tari, lawyer, (1999, 14 June), Soesterberg.

Interview with Dr. András Zs. Varga, Secretary of the Office of the Hungarian Ombudsman (1999, 19 July), Budapest.

Interview with prof. Csaba Varga, law professor Péter Pázmány Catholic University (1999, August), Budapest.

Interview with Prof. Dr. István Vavró, employee of the Hungarian Ministry of Justice (1999, 19 July), Budapest.

Interview with P. Zsombay, law student (1999, August), Budapest.

Karatnycky, A., A. Motyl and C. Graybow (eds.) (1998) ‘Civil Society, Democracy and Markets in East Central Europe and the Newly Independent States, Hungary’ 278-297 in Nations in Transit 1998, New York: Freedom House.

Kengyel, M. (1999) ‘Jogászképzés a rendszerváltás után’, Magyar Jog, 46, 2 Letter of the Hungarian Bar Association (1999, 1 July), Budapest.

Kocsis, I. (1995) ‘A szent korona tana’, múltja, jelene, jövője’, Budapest.

Máthé, G. (1996) ‘Jogászképzés, szakvizsgarendszer, vitafórum’, Magyar Jog 43,3.

Mink, A. (1997) ‘Interview with László Sólyom, President of the Hungarian Constitutional Court’, East European Constitutional Review 6, 1: 71-76.

Molnár, T., G. Pap, F. Pecze, J. Tóth Zoltán, Cs. Vass, J. Zlinszky (1999), ‘A magyar szent korona és a szentkorona-tan az ezredfordulón’, Budapest.

Napi Magyarország, newspaper articles.

Népszabadság, newspaper articles.

State Audit Office of Hungary (1998), Budapest.

State Audit Office of Hungary (1998) ‘Operation Strategy of the State Audit Office of Hungary’, Budapest.

State Audit Office of Hungary (1999) ‘Corruption and the Possibilities of Repressing Corruption, from the view point of the Hungarian State Audit Office, Budapest.

Timon, Á. (1920) ‘A szent korona elmélete és a koronázás’, Budapest.

Varga, C. (1995) ‘Transition to rule of law’, Budapest

Vavró, I. (1999) A végrehajtás adatai 1998, Igazságügyi Minisztérium, Kodifikációs Elemző és Statisztikai Főosztály, Budapest.

(This study was originally published: László Marácz, Hungary In: “A Legal Culture in Five Central European Countries", WRR, Dutch Scientific Council for Government Policy, W i l l , The Hague, December 2000, 119-136 pp.)

Ferenc Gereben

The National Identity o f Hungarians in Hungary

In document andCENTRAL EUROPE (Pldal 93-100)