Reading the Invisible Constitution: Judicial Review in Hungary

Abstract

Imagine a music critic who has to review an orchestra performing a symphony. Not only is the music unknown to readers of the criticism, but the symphony is unfinished; not in the sense of Schubert's or Mahler's unfinished symphonies, but where the score is still under composition and the composer is the orchestra itself. The critic must describe both the musical score and the performance, and he knows that he is biased, a major vice in the case of the critic. His bias is internally contradictory. He is proud because there is finally an orchestra worthy of international interest in his provincial concert hall, but at the same time, he has been waiting to listen to its music for so long that the dissonances he notices make him desperate and he is too easily tempted to believe that a false note is intended to betray the sacred idea of music. There was no rule of law in Eastern Europe under communism. Communism did not respect human rights and advocated a unitary or monolithic concept of power. The first reaction to the fall of communism was a total rejection of communist structures. In 1989 there was complete agreement that human rights should be protected unconditionally, although there was ignorance about the technical means of achieving this. Communism was perhaps dead but, like Merlin's laughter, it continued to be heard across the swamp. Communist ideas, patterns of behaviour and institutions still pervade constitutional developments although the extent of the communist presence varies from country to country. Western models of the rule of law were applied out of context; checks and balances and separation of powers were often rudimentary, or misunderstood, or both. Courts and judges often lacked the self-esteem necessary for judicial independence. The new Constitutional Courts must be seen in this context. As in so many post-dictatorial systems in Continental Europe, East Europeans could not trust an autocratic and often politically compromised judiciary trained under communism, to safeguard constitutional liberties. In post-war Germany, too, mistrust of the courts played an important part in the acceptance of the Kelsenian model