Abstract
AbstractThe paper focuses on the democratic rule of law principle as it appeared in the practice of the Hungarian Constitutional Court under the 1989 Constitution and the 2012 Fundamental Law. The rule of law doctrine had a paramount role in the argumentation of the Court in the 1990s as a normative fact and a programme of the Hungarian state. Under the Fundamental Law introduced in 2012, however, it has been somewhat relegated to the background in case law. The study first recalls the main achievements and characteristics of the democratic rule of law state interpretations of the Constitutional Court and then focuses on developments since the introduction of the Fundamental Law. On the one hand, it outlines the constitutional and institutional capacity of the court regarding the protection of the rule of law principle. On the other hand, it reveals the characteristics of the post-FL interpretation through case studies in the field of legal certainty and judicial independence, both of which were representative elements of the pre-2010 constitutional practice from the point of view of the democratic rule of law state doctrine.
Highlights
Under the new Fundamental Law of Hungary, which, like the 1989 Constitution, places the rule of law at the centre of the constitutional order,1 the constraints which follow from the rule of law have been habitually overridden or ignored by the government acting in parliament.2The government’s reaction to the Constitutional Court’s attempts to continue the legacy of pre-2010 constitutionalism has included delimiting the powers of the Court and overruling its decisions in formal amendments of the constitutional text.The Hungarian constitutional transformation since 2010 has attracted widespread attention throughout Europe
The paper focuses on the democratic rule of law principle as it appeared in the practice of the Hungarian Constitutional Court under the 1989 Constitution and the 2012 Fundamental Law
The study first recalls the main achievements and characteristics of the democratic rule of law state interpretations of the Constitutional Court and focuses on developments since the introduction of the Fundamental Law. It outlines the constitutional and institutional capacity of the court regarding the protection of the rule of law principle. It reveals the characteristics of the post-FL interpretation through case studies in the field of legal certainty and judicial independence, both of which were representative elements of the pre-2010 constitutional practice from the point of view of the democratic rule of law state doctrine
Summary
Under the new Fundamental Law of Hungary, which, like the 1989 Constitution, places the rule of law at the centre of the constitutional order, the constraints which follow from the rule of law have been habitually overridden or ignored by the government acting in parliament.. There are, several systemic developments which soon raised doubts as to the above-mentioned commitment of the new constitutional order to sustaining and building upon the legacy of post-1989 Hungarian constitutionalism. These developments include the instability of the constitution which followed from its frequent, politically-driven modifications, the imposition of serious limitations on the constitutional review exercised by the Constitutional Court, and the open struggle between the Constitutional Court and the government acting in parliament for the supreme constitutional authority in the country (2010–2013). The post-2010 case law will be presented with special regard to legislation and legal certainty (Section 4), and judicial independence (Section 5)
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