“Achievements enter into the discussion when the text stipulates that the Fun-damental Law shall be interpreted in accordance with the achievements of our historical constitution.” – József Szájer
“I am convinced that the achievements of our historical constitution refresh the present Hungarian legal system. If we were able to accept the European achieve-ments of the invisible constitution, then our historical constitution can indeed corroborate the notion that we have on numerous occasions already been amongst the leading lights of Europe in terms of the enforcement of rights.” – József Szájer.
– The subject of the historical constitution has already been mentioned several times, and the concept has already been defined. Why has this become one of the most important reference points of the Fundamental Law?
József Szájer: Achievements enter into the discussion when the text stipulates that the Fundamental Law shall be interpreted in accordance with the achieve-ments of our historical constitution. This is a novelty to the extent that it originates from EU law; it is the translation of the expression “acquis communitaire”. When Hungary joined the European Union, the acquis communitaire, which contained regulations on the most diverse levels, had to be taken on board. It consisted of rules stipulating a certain degree of protection for basic rights (e.g. prohibiting gender discrimination at the workplace) and competition law. But it also contained the stupid and extremely expensive rule stating that the European Parliament contin-ues to have three official seats. As a result, European taxpayers are stumping up an extra 200 million euros because the European Parliament, like a travelling circus, moves from one country to the other, from Brussels to Strasbourg. Changing this requires consent on the part of all Member States.
The word acquis means apex, which is accurately reflected in the Hungarian translation achievement, which in this sense cherry picks from amongst the rules contained in the historical constitution. So, for example, rules decreeing that the hands of a thief be cut off, or anti-Semitic laws, cannot under any circumstances be construed as achievements on the part of the historical constitution, since the latter eradicated the civic equality before the law proclaimed in 1848 in Hungary, and led to the appalling tragedy of the nation. The meaning of the word “achievement” therefore is as follows: we
“superimpose” the system of the current Fundamental Law on the historical constitution, and then we take a look at what stands out as an achievement or as a virtue that ought to be retained. Nobody disputes that the transformation of the deeply ingrained positiv-ist way of thinking (that has been mentioned several times already) and the restoration of continuity calls for intellectual audacity, yet there is a genuine need for new solutions. I am convinced that the achievements of our historical constitution refresh the present Hungarian legal system. If we were able to accept the European achievements of the invisible constitution, then our historical constitution can indeed corroborate the notion that we have on numerous occasions already been amongst the leading lights of Europe in terms of the enforcement of rights. When we talk about civic equality before the law, not only the achievements of the French Revolution should spring to mind, , but many other elements from the evolution of Hungarian law from the Edict of Torda onwards. If we interpret these events and are proud of them, then what is to prevent the Constitutional Court from replacing a reference to the US Supreme Court in the justification of any of its decisions with a 19th century ruling passed by the Curia?
– But what will ensure that politicians will interpret the parts of the historical con-stitution correctly? Let’s take the example of the term “cardinal act”. Traditionally, this used to be a compilation of the most important rules of Hungarian constitu-tional law, from the order of succession to the April Laws. In the new Fundamental Law, the term “cardinal act” simply refers to laws requiring a two-thirds majority to be passed, which represents a complete transformation of meaning.
Gergely Gulyás: The concept of cardinal acts does have a historical tradition in Hungarian law – albeit differing in terms of the precise majority necessary The concept of cardinal
acts does have a historical tradition in Hungarian law – albeit differing in terms of the precise majority necessary to pass them–
and moreover, “cardinal”
is more expressive and simpler than “two-thirds”.
to pass them– and moreover, “cardinal” is more expressive and simpler than
“two-thirds”.
József Szájer: One of the traditional meanings of “cardinal act” was to regulate the constitutional order of the country. Something similar is happening now too – the laws of greatest importance from the point of view of the State are called cardinal acts: there has been no major change, whereas we have retied the broken thread of continuity with just a slight change in meaning, as we have readjusted one of the classical concepts of the historical constitution to bring it in line with today’s constitutional order.