Hungary’s final communist National Assembly established the Constitutional Court (Alkotmánybíróság) on January 1, 1990 to review newly adopted legislation in order to ensure its compatibility with the constitution. The Fidesz–Christian Democratic People’s Party (KDNP) governing alliance has significantly restricted the authority of the Constitutional Court since coming to power in 2010.
The Constitutional Court is located in Budapest and is composed of 15 judges whom the National Assembly elects by a two-thirds majority to 12-year terms. One of the first acts of the Fidesz-KDNP governing alliance after coming to power was to change the composition of the National Assembly committee that nominates Constitutional Court judges in order to ensure that it would be able to unilaterally propose candidates for membership to the court without support from opposition parties (source in Hungarian).
The Fidesz-KDNP alliance also raised the number of judges on the Constitutional Court to 15 from 11 (source in Hungarian).
As a result of these measures and the retirement of judges, the Fidesz-KDNP governing alliance has been able to unilaterally nominate all 15 current members of the Constitutional Court since coming to power in 2010. Fidesz-KDNP National Assembly representatives have been able to unilaterally elect 11 of the 15 current members the Constitutional Court since that time. The governing alliance required the support of green-liberal opposition party Politics Can Be Different (LMP) to elect the remaining four members of the court in November 2016 after losing its two-thirds majority in the National Assembly as the result of by-elections held the previous year (source in Hungarian).
Restriction of Constitutional Court Authority
The Fidesz-KDNP alliance has curtailed the authority of the Constitutional Court through the Fundamental Law it introduced to replace the communist-era constitution on January 1, 2012 and the Fourth Amendment to the Fundamental Law adopted on March 11, 2013.
The Fundamental Law stipulates that as long as state debt is over half of gross domestic product, the Constitutional Court may review legislation pertaining to the government budget only on the grounds that it may violate the rights to life and human dignity, the freedom of thought, conscience and religion and the right to protection of personal data.
The Fourth Amendment to the Fundamental Law stipulates that the Constitutional Court may review an amendment to the Fundamental Law on procedural grounds only. The Constitutional Court may not therefore review amendments to the Fundamental Law on substantive grounds. The Fourth Amendment furthermore stipulates that Constitutional Court may not refer in its verdicts to any decisions it made between the time of its establishment in 1990 and the coming into force of the Fundamental Law on January 1, 2012. Thus the Constitutional Court may in its decisions refer only to the Fundamental Law and to verdicts that it made after it came into effect.
The Constitutional Court may review laws that do not amend the Fundamental Law on both substantive and procedural grounds.
The Fidesz-KDNP alliance decided to restrict the authority of the Constitutional Court after the court declared the following legislation it had enacted to be unconstitutional (source in Hungarian):
— On October 26, 2010 and again on May 6, 2011: legislation imposing a 98 percent retroactive tax on the portion of severance pay of state employees above two million forints (source A and B in Hungarian);
— On April 5, 2011: legislation permitting state employees to be fired without stated justification (source in Hungarian);
— On July 16, 2011, legislation reducing the mandatory retirement age for judges to 62 years old from 70 years old (source in Hungarian);
— On December 28, 2011, the following three so-called Transitional Provisions of the Fundamental Law: that authorizing the president of the National Judicial Office to transfer legal proceedings from one court to another, that permitting the government to impose special taxes to pay for the cost of financial obligations stemming from court decisions, and that stating that the National Assembly shall identify “recognized Churches” (source in Hungarian);
— On July 3, 2012, legislation requiring university students who receive state scholarships to work in Hungary within 20 years after graduation for a period at least twice as long as the number of years they received such scholarships (source in Hungarian).
— On December 13, 2012, legislation qualifying living in public spaces to be a petty criminal offense (source in Hungarian);
— On January 4, 2013, legislation requiring prior registration to vote in elections (source in Hungarian).
The restrictions that the Fidesz-KDNP alliance imposed on the Constitutional Court via the Fundamental Law and its Fourth Amendment would have made many of the above findings impossible.
Criticism of the Curtailment of Constitutional Court Authority
In July 2013, the European Union approved a report on “fundamental rights” in Hungary known colloquially as the Tavares Report. The report called upon the government Hungary “To fully restore the prerogatives of the Constitutional Court as the supreme body of constitutional protection, and thus the primacy of the Fundamental Law, by removing from its text the limitations on the Constitutional Court’s power to review the constitutionality of any changes to the Fundamental Law, as well as the abolition of two decades of constitutional case law.”
The Venice Commission of the Strasbourg-based Council of Europe also criticized the Orbán administration’s weakening of the Constitutional Court at the body’s plenary sessions in June 2011 and June 2013 (see Venice Commission Criticism of the Fundamental Law and the Fourth Amendment).
In March 2013, the co-chairperson of the International Bar Association’s Human Rights Institute, U.K. House of Lords member Baroness Helena Kennedy, stated on the organization’s website that “Restricting the competence of the Constitutional Court to review proposed constitutional amendments on procedural grounds only, and prohibiting it from referring to its own jurisprudence, is contrary to international standards and the basic notions of judicial independence. We, therefore, call on Hungary’s authorities to fulfill its international rule of law obligations and revoke the Fourth Amendment” (source in English).
Former President of the Republic of Hungary László Sólyom, who served as the president of the Constitutional Court from 1990 to 1998, has criticized the restriction of the Constitutional Court’s authority on several occasions, asserting in February 2014 that “We must see that we have gone back to the place from which the Constitutional Court started in 1989” (source A and B in Hungarian).
On December 30, 2013, Sólyom, who won election to the office of president of the republic with the support of Fidesz in 2005, said that if he had been president of the Constitutional Court at the time of its emasculation “I really hope I would have resigned” (source in Hungarian).
Last updated: May 11, 2018.