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The Role of the Hungarian Constitutional Court
Institute on East Central Europe
March, 1997
The Hungarian Constitutional Court is the only constitutional court in East Central Europe to have played an active role in shaping the legal framework of the economic and political transition after state socialism. For example, in a landmark decision in 1995, in which it interpreted "social rights" guaranteed by the Hungarian Constitution to mean that certain employment and maternity benefits could not be cut without due compensation, it struck down major portions of the Economic Austerity Package proposed by the Finance Minister. In this way, the Court largely modified the path of Hungary's economic restructuring. In another example, the Court, seeking the guarantee of public access to impartial information, insisted on the passage of a media law which eventually led to the creation of public television and radio stations which are to be independent from the state as well as from private economic influence. In this essay, I seek to address the landmark decisions of the Court that have fundamentally affected the economic trajectory of Hungary since 1989. Thereafter, I will assess these decisions with respect to their likely effect on democracy as well as to current developments in constitutional law.
Stepping back a bit, one can evaluate the activity of the Hungarian Constitutional Court in two ways, with respect to its internal consistency and its societal impact. With respect to the latter, the Court has definately played a positive role. As a result of its rigorous interpretation of civil rights as well as its insistence on legal security, a sense of fairness has become part of the everyday assessment of public and private acts, and administrative arbitrariness has been curbed. On the other hand, the Court's treatment of social rights as entitlements to publicly provided benefits has rendered the transformation of the wasteful social security system extremely difficult. Furthermore, although the Court promoted public discussion of political issues by insisting on free access to public media, broadly based deliberations over public issues in the form of a strong civil society remain, at this point, an illusion. 1 Finally, the Court's decisions have awakened politicians to the reality that rights are not merely words that can be wantonly showered upon their constituencies. On the eve of adopting a new Constitution, this insight gains eminent importance and places huge burdens on the "Founding Fathers." 2
The Hungarian Constitutional Court
Like most political institutions of post-communist Hungary, the creation of a constitutional court was decided in the summer of 1989 during the Roundtable Talks between the Communist elite and the emerging opposition. Initially the Court had five members, two delegated by the Communists, two by the opposition, and one judge who was the joint candidate of both sides. The final number of Judges was set at 11. 3
The law on the Constitutional Court 4 indicates in its preamble that the main tasks of the Court are the construction of a state governed by the rule of law, the protection of fundamental rights and constitutional order, and the creation of a balance between the branches of government. To accomplish these tasks, the Hungarian Constitutional Court was given the following powers:
Everyone has the right to file a petition to the Constitutional Court requesting an investigation. 8 The petition should meet formal requirements; that is, it should indicate the contested legal rule as well as the constitutional principle which, in the petitioner's opinion, it violates. 9 There is no requirement of a violated interest on the plaintiff's side, thus the issue of "standing" does not apply here. 10
With respect to the actual functioning of the Constitutional Court, the following characteristics should be noted. There are no parties present during a Constitutional Court "trial"; the General Secretary of the Court rejects, without trial, petitions not meeting formal criteria; 11 the Court renders its decisions with simple majority voting; sessions are not open to the public; and there is no appeal against the Court's decisions.Currently, members of the Court are elected by a parliamentary consensus. 12 This is the legislative branch's only control over the Court's activity. The Court itself determines its docket 13 as well as its budget, 14 and its members are not allowed to pursue any other activity save academic and scholarly duties.
A comparison of the characteristics of the Hungarian Constitutional Court to those of the U. S. Supreme Court would facilitate an understanding of the institutional setup of the former. The main difference is that the Supreme Court, being the highest court of appeal, decides actual cases based on actual laws. This way, it can evaluate a law in a "contextual framework," that is, seeing the application of the law in the setting of a lawsuit. The Hungarian Constitutional Court, on the other hand, compares laws to the articles of the Constitution and repeals those that it finds in violation of the Constitution. Further institutional variations result from this fundamental difference.
While the Supreme Court decides which cases it will review, the Hungarian Consti-tutional Court chooses those that meet formal criteria from among the petitions it receives. In Supreme Court procedure, there is a "regular" trial with a plaintiff, defendant, prosecutor, and defense lawyer, while the Constitutional Court's deliberations are closed to the public. 15 The former is certainly more conducive to public transparency, although the latter may be defended as a better institutional setup for a "battle of reasons" due to its secretiveness and collective responsibility for the decision. 16 A further advantage of the first arrangement is that the parties can present experts on topics where the expertise of the judges may not be sufficient.
With respect to the election of the judges, there are two differences. Supreme Court judges have life tenure, while Hungarian Constitutional Court judges are only allowed to serve two nine-year terms. 17 Further, the election of judges seems to be more of a political bargain in Hungary than in the United States, due probably to the double filter of committee delegation and parliamentary approval, where the committee representation differs from the overall proportion of votes in the Parliament. One could conclude that the Hungarian Constitutional Court enjoys a unique independence from Parliament and has a set of powers which render it quite powerful. Passing judgement on these powers at this point would be premature, since we should first learn about the substantive decisions of the Court.
The Role of the Constitutional Court in the Economic Transition of 1990-1995
In its deliberations over economic issues between 1990 and 1995, the Court inter-preted such pillars of a market economy as property, entrepreneurship, contracts, and pub-licly provided social security benefits. The particular form these institutions assume is rele-vant in a country in transition from a centrally planned to a modern market economy. Among these conditions, the extent of the immunity of owners of property from external constraints and the security of contractual relations are among the most important deter-minants of individual economic decisions. The regulation of the retirement and health care system, as well as that of publicly provided services such as education and employment training, strongly affects the quality of life and career opportunities of individuals.
In the early 1990s, the economic reforms of the Hungarian government included centrally managed privatization, which served multiple purposes. Aside from creating private property, the government set aside strategic industries which were to remain in public hands and sought to establish an electoral base among the agricultural population. In contrast to privatization, the system of social services did not undergo a major overhaul in the first four years. Although pension and health care funds were set apart from the state budget and became a self-governing system run by representatives of employees and employers, the funds could rely on state support if they fell into insolvency. By 1993, the fund started to amass a record deficit, despite the extraordinarily high rate of the social security contribution from wages. 18
As the democratically elected governments sought to transform Hungary's economic structures, the legislation passed by the Parliament faced tough scrutiny by the Constitutional Court. In some cases, most notably Finance Minister Lajos Bokros' austerity package, the Court struck down legislation aimed at reigning in the skyrocketing budget deficit. Such decisions had important consequences and stirred critical reactions. Although most critics agree that the Court should be independent from political pressures (and for this reason enjoys the institutional guarantees that it does); the Court's "active" role in interpreting the constitutionality of economic legislation has led some more recently to consider imposing limits on the Court. 19
Right to Property
The interpretation of the property clause of the Constitution 20 is especially important in a country where private property was virtually non-existent for the last 40 years. Under the state-socialist regime, industrial productive assets were owned by the state and labeled "public property." Agricultural assets were owned mainly by cooperatives. Part of the available housing was council housing where tenants enjoyed quasi-ownership, while individuals were also entitled to own one flat and one holiday resort cottage.
Private property was seen as the basis of the capitalist system, and its introduction was interpreted by many as the key to a successful market economy. The transformation of a system based on public property to one based on private property proved to be a much more arduous task than anyone had envisioned. Although on an ideological level, private property is treated as the sacred foundation of capitalism around the globe, widely accepted limitations on the discretion of the property owner are the rule, not the exception. Thus, the lack of a globally accepted precise interpretation of private property had to be reconciled with local reasons of economic efficiency and the wishes of the business community. Furthermore, the claims for a secure existence and insistence on compensation for past grievances were also major issues.
In dismantling public property, the Hungarian government opted for a centrally coordinated privatization strategy based on market prices, 21 as well as a limited compensation for damages resulting from nationalization in the 1940s and 1950s. The substantive issues over property concerned the assets of cooperatives and the selling of council (local government) housing. The theoretical issues focused on the extent of legal limitation on private property that is permissible without compensation. In the following, I will briefly describe the Court's decisions on these issues, and how its approach shaped property relations.
In its first decision involving property, the Court had to decide whether the government had the right to confiscate, without compensation, the property of cooperatives and to use that property in its compensation policy. It is important to understand the origin and role of cooperatives in Hungary. Historically, compulsory cooperative membership was violently introduced following the Soviet model of agricultural organization. Its purpose was to increase central (Party) control over the agricultural population by supervising even the everyday decisions of production. After 1989, dismantling cooperatives was a prime target of the popularly elected government. Aside from ideological reasons, the government also wanted to create its electoral base among agricultural smallholders. 22
In decision 21/1990 (X. 4.), 23 the Court struck down the government's attempt to confiscate assets of cooperatives, stating that it violated SS 13. of the Constitution, since property could only be confiscated with "immediate, unconditional and complete compensation." 24 Here the Court endorsed "a private law-based" interpretation under which property enjoys absolute protection. 25 Three months later, the Court accepted two modifications in its interpretation of property. In a renewed version of its compensation policy, the government intended to distribute the assets of cooperatives among members of cooperatives. Thus, an exclusive right to purchase cooperative assets was conferred on members of cooperatives. This limitation imposed a burden on cooperatives, since they were severely constrained in their discretion over selling their assets. Furthermore, cooperatives were required to accept compensation vouchers at their nominal value in exchange for their assets. This further constrained cooperatives, since there was a wide gap between the real and the nominal value of compensation vouchers. 26
In its decision, 27 the Court gave the following reasons for accepting such limitations on property. With respect to the exclusive right to purchase cooperative assets conferred on cooperative members, the Court drew a distinction between confiscation of property and limitation of property. For example, nationalization of property would belong to the first category, while adherence to zoning and safety requirements during construction in a densely populated area would not. While confiscation of property without compensation is unconstitutional, the limitation of it, is not. 28 The Court justified the compulsory acceptance of compensation vouchers in exchange for cooperative assets by pointing out that in dismantling the system based on public property, the government is justified in imposing the burdens of this process on those who freely received assets in creating the system in the 1950s.
In this case, the Court developed a constitutional framework for the treatment of property rights. Within the framework, the Court sought to tackle two requirements. First, it attempted to accommodate historical justice by acknowledging the constitutionality of reparations for damages on property taken away without compensation. Second, limitations were couched in a language based on the absoluteness of private property, as the strict prohibition of confiscation attests. This was motivated by the significance attributed to private property in underpinning a modern market economy. Responding to these two requirements, the Court made its initial steps toward a sophisticated interpretation of private property, drawing on the distinction between ownership of and disposal over property. Ownership referred to the possession of property and its disposal to the possible acts of the property owner. Through this distinction, the Court provided a response to the contradictory requirements.
During the selling of council flats, similar issues of limitation on property arose. In order to create locally based counterweights to the central government, former councils (municipalities) were transformed into local governments headed by democratically elected representative assemblies and mayors. To buttress the independence of local governments, 29 the ownership of former council flats was conferred upon them. Short of resources, the local governments were intent on selling these flats, while the majority of tenants were willing to buy them. The law conferring ownership of council flats on local governments, however, imposed limitations on the discretion of local governments in the sale of these flats. This issue was tackled by the Constitutional Court in two decisions.
Before proceeding, a brief caveat on tenancy. In state-socialist Hungary, tenants living in council flats enjoyed significantly more protection than did tenants in the West, and in many respects, their position was similar to that of an owner. A tenant living in a council flat was non-removable, and he could bequeath the flat. The rent was significantly lower than the market rate and in principle the council was responsible for repairs (in reality, though, it was the tenant who usually did the repairs). The first two features are characteristics of ownership, while the latter two belong to those of tenancy. Over the years, a lively market developed in council flats, on which a square meter in such a flat was worth half that in a private flat. 30
Briefly, the dilemma could be summarized in the following manner. In a strict legal sense, the local governments owned these flats, thus they should have had complete discretion to whom and for how much they could sell them. Furthermore, creating strong local governments independent from the central government was seen as a democratic value in itself. On the other hand, individuals paid huge sums to become tenants in council flats and saw tenancy as a permanent arrangement. Weighing the issues, it appears that local governments should have been much more strongly circumscribed in their discretion over the price of council flats. Without regulation, the savings accumulated over long years and invested in council flats could have been wiped out at the whim of local governments. 31 Even with regulation, the sale of council flats created huge inequalities, since local governments found ways to circumvent the rules. There was widespread variation in prices (certain locations local government asked 10 percent, others asked 100 percent of the market price), and local governments withheld some flats from purchase.
In Decision 28/1991 (VI. 3.), 32 the Court agreed that local governments were required to accept compensation vouchers for former council flats. Local governments therefore suffered losses since the market value of such vouchers was significantly lower than their nominal one. In its decision, the Hungarian Constitutional Court used the same constitutional arguments as in the case of cooperatives: those who freely receive property are required to accept the burdens arising from the creation of the particular piece of property they came to own. 33 In Decision 64/1993 (XII. 22.), 34 the Court had to decide whether an exclusive right of the tenant to purchase the local government flat he was living in violated the right to property. As in the previous decision, here the Court also opted to limit the property rights of local governments by agreeing that they must allow the current tenant's first bid in buying his flat. In its decision, the Court first outlined the basis of the constitutional protection of property. It claimed that "the right to property serves as the traditional material basis of the autonomous action of the individual." 35 Furthermore, "the Constitutional protection of property should follow the changes in the social role of property." 36
In these decisions, then, the Court interpreted property as the basis of individual autonomy, and insisted that property should enjoy a protected status to the extent that it serves this purpose. A hint at the later interpretation of publicly provided benefits as property is to be found here: "when it concerns the protection of individual autonomy... protection also covers assets taking over the former role of property as well as public law claims (for example social security claims)." This idea would receive its final form in the social rights cases.
On the other hand, the Court argued that the social functions or embeddedness of property justifies its limitation: "social binding of property makes constitutionally possible the strict limitation of the autonomy of the property owner." 37 Furthermore, property or its "constitutionally protected function" could be replaced, as in compensation for the confiscation of property for public interest. Thus, "the limit of the constitutional guarantee of property is the value of property." 38 The Court also noted a world-wide trend toward increasing restrictions on property in what is deemed "the public interest," severely constraining the property owner without compensation. The final conclusion of the Court was that whether a given restriction is constitutional or whether it requires compensation should be decided by the Constitutional Court itself, based on the restriction's effect in serving the public interest and on the fairness of the limitation. The Court, however, failed to indicate any criteria of the public interest. In the particular case of the sale of council flats, the Courts decided that local governments are eligible for compensation by the national government to make up for their losses.
Thus, balancing between the normative pressure for safeguarding private property and the exigencies of the transition, which sometimes called for its limitation, the Court forged an interpretation of property that met these contradictory requirements. In this interpretation, the Court made a distinction between ownership of and disposal of property. The first was seen as absolute, while the act of assessing constitutionality of restrictions on the second was delegated among the powers of the Court. The Court's decisions on property have provided "fine tuning" for a standard on property rights and thus have fundamentally influenced the economic transition. We should nonetheless see that the Court deftly conferred the final say on limiting the discretion of property owners on itself.
The Right to Entrepreneurship
The right to be an entrepreneur is usually not regarded as a cornerstone of a modern market economy. This should be attributed to the fact that various liberties provide enough freedom for individuals to work as entrepreneurs. However, if we see the issue as a right to work in a particular occupation, we could appreciate the importance of extending constitutional protection over this particular freedom. There are many ways in which individuals are prevented from entering various occupations. Some of the obstacles are natural, some social. Therefore, the Court's task was to create a framework in which the constitutionality of these obstacles could be assessed.
The right to entrepreneurship was tackled following a petition to the Constitutional Court that challenged a decree of the local government of Budapest. In this decree, the city sought to limit the number of taxis in Budapest, arguing that an oversupply had led not to the stabilization of market-based fares, but to the skyrocketing of fares and the exploitation of passengers, especially foreigners. 39 In its decision, 40 the Court struck down the decree as unconstitutional, since it limited the freedom of occupation. The Court interpreted the right to entrepreneurship as well as the possible limitation of it.
The Court derived the right to entrepreneurship from the right to work. 41 This is a remainder from the Stalinist Constitution of 1949, since full occupation was one of the basic tenets of the state-socialist regime that survived the 1989 modification of the Consti-tution. The Court claimed that there are subjective and objective limits to the exercise of a particular occupation. Subjective constraints are the specific requirements of a particular profession (such as licences, educational credentials, or age), while objective constraints externally restrict the number of those who could be employed in a particular profession. Thus, a requirement of a bar exam to work as a lawyer would be a subjective constraint, but limiting the number of lawyers in a country would figure as an objective one. Similarly, placing certain requirements on taxi drivers is constitutional, but an outright limitation of the number of taxi permits, as in New York City, is unconstitutional. A case concerning taxis in Budapest was tried and we can analyze the decision as a case of constitutional inter-pretation. It is obvious that the dual interpretation of the right to work is largely the product of the Court, since no indication of subjective and objective rights to entrepreneurship are found in the Constitution. However, by creating this distinction, the Court actively shaped the new post-communist understanding of the right to an occupation: no direct limitation of the number of individuals who could work in an occupation is accepted, but indirect limitations, such as educational requirements or state-sanctioned exams, are constitutional.
Although this was the Court's only decision on entrepreneurship, it was an important decision because it found unconstitutional an important instrument of public authorities to constrain competition to be unconstitutional. In its decision, the Court sought the path of most market economies, where such direct "capping" of the number of practitioners in particular occupations rarely occurs. Even under state-socialism, the majority of the population was "free" in its choice of occupation. 42 The constitutional category of "subjective constraint," however, seems quite broad. Modern guild-like organizations, such as law, medicine, or academia, where practitioners themselves restrict competition (supported by state financed education and exams) will surely pose constitutional issues in the future.
Freedom of Contract
As with property rights, the freedom of contract is one of the most important foundations of a market economy. It involves the prohibition of interference with private contracts as well as the retroactive alteration of their terms. Nonetheless, even in the United States after the New Deal, private contracts must meet certain requirements, such as the minimum wage, maximum hours, and safety; thus some limitations of contracts have come to be viewed as inevitable in curbing the inequalities of a market economy.
The issue of the freedom of contract arose in post-communist Hungary through contracts that were made between citizens and the state with the mediation of a savings bank, which benefited from a monopolistic situation. 43 These contracts were part of the housing policy of the state, thus they differed from private contracts because they pitted individuals against the state. After 1989, the costs of these subsidized loans skyrocketed, and subsequently the state sought to raise the interest rate on such loans. In the controversy over these contracts, issues such as the stability of the state budget and redistributive fairness (subsidies are a form of redistribution) came to the fore, colliding with the security of contractual relations.
The Court addressed the freedom of contract in three distinct decisions. In the first decision, 44 the National Savings Bank unilaterally intended to alter certain contractual terms on deposits. The bank cited runaway inflation and increased competition as a justification for its intended steps. The bank's decision was connected to a state policy aimed at imposing an "interest rate tax" (surcharge) on the interest rate of property mortgages. The move was justified by pointing to the wide gap between the interest rates on mortgages (three percent) and the rate of inflation (standing at 25 percent).
In its decision, the Court declared the freedom of contract a fundamental right, ruling that "by consensus, the parties can diverge from the by-laws regulating contracts." 45 On the other hand, it insisted that laws could determine certain terms of the contract which always remain part of the contract, even if the parties diverge from it. Furthermore, it also ruled that among exceptional conditions the state could retroactively alter the terms of a contract. Nonetheless, in this case the Court ruled that neither the competition between financial institutions, nor the considerable level of inflation could justify retroactive alteration of contracts.
A year later, in 1991, the government passed a legal rule to raise the 3 percent interest rate on mortgage loans to 15 percent. These loans were provided by banks on the condition that the state compensate them for the difference between the market interest rate and the subsidised one. With the high rate of inflation, the state's expenses after these loans sharply increased. Aside from the burden imposed on the national budget, the minister of finance also indicated that these highly subsidised loans conferred large financial gains on those who received them, compared to those who had to pay the market interest rate. Furthermore, the contested legal rule provided the opportunity to those who pay back their subsidised loans immediately to pay only half of the loan.
In its decision, the Court referred to the international trend toward increasing involvement of public law in private law contracts, attributing it to changes in economic life. 46 The Court indicated its reasons for finding the government's interest rate legislation constitutional, which empowered the state to alter the terms of contracts retroactively in exceptional cases. Significant economic, political, financial, and other social changes (war, crisis, inflation, political risks, and economic insolvency), which alter the situation of the contracting parties to an unanticipated extent, render possible the alteration of the terms of a contract -- either through the judiciary, in case of individual contracts, or through legal rules in the case of massive alterations, as in this case. Furthermore, every contract that is not immediately acted upon carries with it certain risks. The Constitutional Court thus came to the conclusion that under the extant conditions the alteration of the terms of long-term mortgage contracts was constitutional.
In 1995, the parliament once again sought to alter the interest rate (from 15 to 25 percent) on long-term mortgages. On this occasion, 47 the Court rejected the retroactive intervention in the terms of the contracts for two reasons. First, the Court claimed that compared to 1991, economic conditions did not justify such a raise. 48 Furthermore, as a result of the alternatives presented in the 1991 mortgage interest rate raise, those who chose the alternative of paying an extended 15 percent on the entire loan were discriminated against, while those who opted for immediate repayment of the loan received better terms. 49 The former could reasonably assume that after their decision, the terms of the contract would not change again.
These decisions were among the Court's most controversial decisions, and instantly became the subject of heated debates. From a strictly formalist point of view, such diver-gent decisions concerning seemingly similar state policies are obviously suspect. If we hold consistency in constitutional interpretation to be an important value, then the Court's decisions were questionable. Furthermore, there were also political implications, since the third decision was rendered against a reform-communist government which was already un-popular for its austerity package. 50 The act of striking down the mortgage interest raise showed the Court to be a defender of the population against an insensitive government. This decision was also the final act in a series of decisions against the austerity package. Playing the populist role of repealing harsh economic reform laws, while not being democratically accountable, is only permissible if the economic reform laws are clearly unjust. Whether this was the case is extremely difficult to decide. For many impoverished families, even the 15 percent interest rate was devastating; an increase to 25 percent would have been fatal.
Consistency in constitutional interpretation, deference to the democratically elected assembly, and considerations of economic reasons would have prompted the Court to accept a raise in the mortgage interest rate. Social and moral reasons, as well as strategic considerations, however, led the Court in the other direction.
Social Rights
The Constitutional Court's interpretation of social rights with respect to the economic stabilization package of Finance Minister Lajos Bokros probably attracted the most widespread attention. In order to understand the vehemence of the popular reaction, we have to understand the climate of public opinion situation before the package. Hungarians were immune to the major economic shocks occurring in Poland, because the first democratically elected government recoiled from introducing economic shock therapy in the early 1990s. There are many reasons why the Hungarian Democratic Forum (MDF) government opted for an irresolute economic policy that was often at cross-purposes. One reason is that the fledgling Hungarian opposition in the 1980s never enjoyed popular backing similar to that of the 10 million Poles organized in the Solidarity movement. Thus, the new political elite did not have a clear picture of the real extent of its popular support. Second, Hungarians generally experienced higher living standards than their Central and Eastern European counterparts, thus it would have been more difficult to make them accept a worsening of their economic conditions. A further reason could be that private enterprise was already part of the Hungarian economic landscape in the 1980s, and the government could have perceived that no fundamental reforms were required. A fourth reason was the humanistic-historical inclinations of the new political elite, which saw economic problems as secondary.
The government was especially cautious in the domain of social services. In the year preceding the second general elections, the MDF government followed a pro-growth economic strategy coupled with a loose monetary policy, which resulted in rising living standards. Despite this improvement, Hungarians elected the post-communist Hungarian Socialist Party, (MSZP), which based its campaign on heightened economic security. For a year, the new government did not introduce any major changes to the lenient management of the economy bequeathed by its predecessor. Between 1993 and 1995, the macro indices of the Hungarian economy suffered serious setbacks and Hungary generally lost its image as the leading economic reformer in the region. The consequent introduction of the Economic Stabilization Package, although anticipated by those familiar with the economic situation, represented a cruel blow to the majority.
The package was introduced to counter record levels of trade and budget deficits. Its most important items were a 10 percent interim tariff as well as a raise in the tax on luxury goods and in the value added tax (VAT). Transformation of the system of social benefits (family allowances, maternity leave, sick pay), 51 an increase in the subsidized mortgage interest rate, and the introduction of university tuition fees were generally struck down by the Constitutional Court. The package, nonetheless, had enormous impact and was received with almost unanimous contempt at the same time. As an economic policy, it was highly successful: it stabilized the Hungarian economy, launched a debate on the reformation of the pension and health care systems (reaching its completion now after almost two years of bitter struggle), and targeted such sensitive social issues as low university fees, universal health care, and insurance funds in pension savings that no Central or Eastern European government had yet dared to address.
The concept of social rights, however, was addressed not only in relation to the Bokros package, but also throughout the activity of the Court. Within the Court, there were two markedly different interpretations of social rights stipulated by SS 70/E. 52 of the Constitution. This article stipulates that the citizens of Hungary have the right to social security. One interpretation of this constitutional article claimed that it is not a classical right that provides one with concrete claims that could be enforced by the judiciary; instead it is no more than a general declaration of a state goal. 53 The other interpretation claimed that this article gives citizens the right to a definite level of social services. In this interpretation, this definite level was formulated as the level acquired under state-socialism.
In Decision 26/1993 (IV.29.), 54 the Court had to decide whether it was unconstitutional to set a limit on the increase of high pensions. More specifically, a legislator intended to increase pensions with a given percent, but to limit the resulting increase in the case of higher pensions. The Court had to decide whether this move was discriminatory against those enjoying higher pensions. The Court did not find the limitation unconstitutional since it claimed that the primary responsibility of the state was to secure social services (pensions). This assertion came from the fact that social security institutions perform two functions: that of insuring and that of providing help. The Court also stipulated that the level of pensions is always connected to the current state of the economy and to social security institutions.
In 1995, the Court addressed various parts of the Economic Stabilization Package. In a unanimous decision, 55 the Court repealed those sections of the package that modified the conditions of family allowances from a general policy to a needs-based one, reducing the length and amount of various child care benefits. The Court argued that legal security requires that any modification of social services which had been provided for a long period of time should be implemented with an eye to the expectations of the recipients of these social services. The Court claimed that as a result of the long history of receiving such services, the beneficiaries had acquired a right to these services.
In Decision 44/1995 (IV.30.), 56 the Court repealed those sections of the economic stabilization package that modified the conditions of sick pay. Here the Court used a different argument that also relied on the concept of acquired rights. The Court argued that those who had for a long time contributed to a form of social insurance have the right to the conditions under which they made their contribution.
In the two later decisions, the Court introduced two major ideas. The rights to social security benefits (such as sick pay) purchased by social security contributions were inter-preted as property. The significance of this interpretation is that the status of property makes the modification of these benefits much more difficult. The other idea was that receiving non-purchased social benefits (family allowance and paid maternity leave) were interpreted as a right. The reasoning was that the principle of legal security (an aspect of the concept of the rule of law) 57 required that benefits schemes playing a part in the calcula-tions of life strategies of individuals be protected in the sphere of social services. Legal security was the concept in which these two interpretations of social rights (general state goals or judicially-enforceable rights) could be integrated into a unified set of requirements that should be met in reforming the system of social services developed under the state-socialist regime.
It is extremely difficult to evaluate the decisions of the Court concerning social rights. On the one hand, these benefit schemes did play a significant role in the life of individuals, and many saw their termination as another cruel blow by an elite estranged from the difficulties of everyday life. Furthermore, the proposed modifications in social services were admittedly partial and were a far cry from a complete overhaul of the social security system. On the other hand, the Court made a highly populist decision which thwarted the efforts of the government to at least partially reform a corrupt and wasteful system -- where evasion of contribution is widespread, no rational incentive to contribution is offered, the burden of financing is imposed almost exclusively on certain strata, and which conserves a pension and health-care system that is highly unjust. Furthermore, ren-dering citizens once more dependent on state-provided services in highly important life spheres, the Court's avowed mission of creating an autonomous citizenry seems a farce.
Conclusion
In evaluating the cause and effect of the decisions of the Hungarian Constitutional Court, one faces the difficulty that there is no established scale on which products of constitutional courts can be "measured." Constitutional courts reside at the nexus between two societal domains, law and politics, and are confronted with the cacophony of concepts and values in each of these domains. To address these difficulties, I propose the following scheme as a framework for evaluation.
I will distinguish between three levels in addressing the activity of the Hungarian Constitutional Court. 58 The first is an "internal" approach to constitutional interpretation. Internal here indicates that decisions are assessed within a constitutional law framework. Decisions are treated as products of constitutional language and the contenders in the debate take positions on the issue of interpretation. Thus, decisions are seen as isolated within the problématique of constitutional interpretation, and questions of societal impact or legiti-macy are not recognized. There are two fundamental positions in the debate. Formalists assert that in applying the Constitution there is no need for interpretation. The Constitution clearly states what the right decision in a given case is. Critics of this idea, on the other hand, insist that the interpretation of the Constitution necessarily relies on background prin-ciples, and that denial of this fact amounts to the endorsement of one particular set of such principles. Debates surrounding these principles lead us to the second level of evaluation.
Judicial review recognizes the conflict between the democratically elected repre-sentative assembly and the judiciary. More broadly, on this level a quest for the right interpretative principles and a matching institutional form of judicial review is the main issue. On the legal side, there are three distinctive positions that address the actual practice of interpretation and the role of principles in this process. Legal realists assert that the only role of principles is to conceal the use of sheer discretion by the judges for indiscriminate goals. The goals could sustain a particular interpretation of a constitutional article, serving the interests of a societal group, or simply self-aggrandizement. Legal positivists 59 insist that judicial decisions are largely covered by laws and traditions and that indeterminacies lie only on the fringes. Finally, Ronald Dworkin 60 claims that principles which are anchored in the particular constitutional tradition of a country influence decisions even in hard cases where no accepted constitutional article clearly covers the case. Each perspective reveals a different picture of the desirable relations between the judiciary and the legislative.
In current debates, the relationship between the judiciary and the legislative branch is conceptualized in the notion of "judicial activism." Judicial activism denotes the fact that constitutional courts tend to encroach increasingly on the territory of the legislative. While legal realists and positivists usually endorse judicial passivism, Dworkin and his followers are associated with judicial activism. The question of judicial activism indicates the third level of evaluation
This is the level of democracy and constitutionalism. The question of the right relationship between the judiciary and the legislative branch signals debates over democracy and constitutionalism, the fundamental interpretation of the economic system, and the type of democracy that is desirable. With respect to constitutionalism and democracy, we should realise that these two concepts basically endorse opposite ideas. While democracy is based on the superiority of the majority's decision, constitutionalism endorses certain values that cannot be overruled by the majority. Fundamental economic issues include the interpretation of property and contract that serve as the pillars of a market economy. Two interpretations of democracy currently exist. One sees democracy as driven by private interests, where majority decisions are a compromise between various private interest groups. The other insists, however, that there is a public interest that could be realized and asserted through rational debate. This is labeled deliberative democracy, where representatives are not seen as lobbyists of various private groups, but as rational humans, able to argue for policies serving the public good. In this second version, constitutional rights serve as the institutional underpinnings of rational debate.
My aim here is to evaluate the major decisions of the Hungarian Constitutional Court with respect to the above elaborated levels. As already indicated, the Court is the only such institution in the region to have played an important role in establishing standards that will fundamentally affect future economic events within the country. Its decisions will now be subjected to evaluation on the level of interpretation, judicial review, and democracy.
On the level of interpretation, the Hungarian Constitutional Court's treatment of the actual text of the Constitution was loose, to say the least. Bearing in mind the accidental nature of the drafting of the current "interim" Constitution, 61 this looseness is nonetheless understandable. On the other hand, the Court engaged in an innovative interpretation of the text of the Constitution. The clearest manifestation of this was a legendary concurring opinion by the President of the Court, Judge Sólyom, 62 in which he presented the concept of an "invisible constitution," underlying the actual text. In his view, "the invisible constitution" is based on the enduring values found in the community. This invisible constitution goes beyond the current Constitution that is often modified for short-term political goals. In his view, the Constitutional Court is not affected by public pressure or majority legislative decisions in interpreting the Constitution. Furthermore, the Court asserted two values that it claimed were more fundamental than others. One of them is the idea of the "rule of law," the other, the right to free speech.
If one accepts the idea of formalism, the record of the Hungarian Constitutional Court is fairly poor. In the decisions presented here, for example, property was allowed to be confiscated without compensation, while in the Constitution it enjoys an absolute status. On the other hand, with regard to historical justice, depriving families of their council flats in which they had invested savings and spent huge sums on repair would be clearly unjust, although the owners of these flats, the local governments, were obviously deprived of their absolute ownership rights. Furthermore, neither contracts nor entrepreneurship are mentioned in the Constitution. The only remote reference notes that Hungary shall be a "social market economy." But the popularly supported goal of a developed market economy requires the institution of contract and the free choice of occupation as its obvious underpinnings. For a more complex picture, one should focus on the application of these principles to the relationship between the judiciary and the legislative.
In my view, the Hungarian Constitutional Court is a fairly activist court. It struck down a record number of legislative acts, among them fundamental economic and political policies. For a non-elected judiciary which bears neither political nor legal responsibility for its acts, this seems to be an over-ambitious enterprise. On the other hand, among the tumultuous conditions and economic exigencies of the transition, rash legislation was often passed, as parts of the economic austerity package illustrate. Under these conditions, the fact that the Court established rigorous constitutional standards was clearly salutary. In this way, legislators became sensitive to the possible unconstitutionality of certain acts.
I believe that because of the Constitutional Court's rulings, a strong sense of rights emerged in Hungary, a general sense of standards that cannot be violated even by the majority. Subsequently, parliamentary representatives became aware of constraints that cannot be overlooked. On the other hand, Central and Eastern European democracies demonstrate weak control over a fragmented and often arbitrary state apparatus. This issue was not addressed in the Court's decisions. Although the Court declared free speech a fundamental right as the basis of public deliberation, it seems that civil control over the state remains fragile. A more rigorous investigation of the effects of legislation on various societal groups could be the first step towards amending this situation.
Footnotes
Note 1: This is obviously not the Court's fault, since constitutions can only serve as broad guarantees of a country's political institutions, but cannot generate on their own the finer points of its political culture. Back.
Note 2: The current Constitution of Hungary declares itself an interim constitution in its preamble. It is a revision of the former, Stalinist constitution that was worked out during the Roundtable Talks in 1989. It was envisioned that a new Constitution would be drafted after the first free elections. As earlier efforts have failed, it has taken six years to draft the new Constitution. In May 1996, however, the governing Socialist party rejected the carefully elaborated draft which had enjoyed the support of five (out of six) parliamentary parties. Back.
Note 3: Five more judges were later elected, but one resigned after becoming member of the European Court. The number of Judges was first set at 15, then reduced to 13, then eventually to 11. Back.
Note 4: Statute XXXII/1989. Back.
Note 5: Preliminary constitutional investigation takes place either before the final vote on a bill or after a bill is passed by the Parliament, but is not yet promulgated by the President. The President has no discretion (no veto power) over promulgating a statute, except for constitutional doubts. The timing of the preliminary investigation is crucial for the following reason as well: Statute XXXII/1989 does not indicate the exact timing for a constitutional investigation in the legislative process. In Decision 16/1991 (IV. 20), 52 members of Parliament submitted a petition to the Court requesting an investigation of a bill being debated in the Parliament. The Court rejected the petition and emphasized that only the final version of a bill could be the subject of a preliminary constitutional investigation. Insisting on keeping its distance from the legislative functions, the Court sought to prevent the emergence of a "Constitutional Court governance." As it put it in the decision, "the Constitutional Court is not the counsellor of the Parliament, but the judge of the result of its legislative efforts." László Sólyom and András Holló, eds., Alkotmány Bírósági Határozatok (hereafter ABH) (Budapest: Közlöny- és Lapkiadó, 1990-1995). Back.
Note 6: Abstract interpretation indicates a request to the Court to interpret a constitutional article with respect to a specific problem. In Decision 31/1990 (XII. 18.), the Minister of Finance presented alternative versions of a new statute and requested that the Court decide which of the alternatives are constitutional. In its decision, the Court rejected the petition and indicated that such a broad rendition of the abstract interpretation would necessarily make the Court part of legislation, since an abstract constitutional interpretation would be requested even before ministerial decrees. This could rekindle the fear of "Constitutional Court governance," since the Court would assume legislative responsibility. This situation would sharply contradict the structure of the division of power contained in the Constitution. Back.
Note 7: Constitutional complaint means that the losing party to a lawsuit that reached the highest possible appeals court (in Hungary, this means the Supreme Court) appeals to the Constitutional Court, claiming that the law that served as the basis of the decision in the case is unconstitutional. Although the Constitutional Court could repeal the law if it found it unconstitutional, it cannot interfere with the decision of the Supreme Court, which is final. This distinction serves the purpose of separating the two Courts. Back.
Note 8: This right is quite general, citizens as well as non-citizens have the right to do so. Back.
Note 9: In the case of preliminary constitutional investigation of a bill as well as in conflict between Hungarian laws and international treaties, the requirements are more strict. On these occasions, the petitioner should either be the President of Hungary, 50 members of Parliament, or the Prime Minister. Furthermore, there is no charge for submitting petitions to the Constitutional Court. Back.
Note 10: "Standing" refers to the problem of violated interest that could be the subject of litigation. In the first half of the century, a violated interest referred to damage to property. This issue recently gained importance with respect to public entitlements, that is, whether the termination of a type of social benefit provided by the state violated propertied interest. If it did, then the damaged party would have the right to invoke courts. See Cass Sunstein, After the Rights Revolution (Cambridge, MA: Harvard University Press, 1990). Back.
Note 11: These procedural steps are also the subject of criticism and various amendments have been suggested. One of them would connect the right to file a petition to violated interests on the part of the petitioner. Another was indicated by the President of the Court in a recent interview. He would render legal representation compulsory in order to "defend the Constitutional Court from the noble passions of messiahs." Magyar Hirlap, Spring 1996. Back.
Note 12: In the political skirmishes preceding the new constitution's acceptance, the following groups campaigned for a mandate to delegate Judges: the President of the Republic, the legal profession, the civil sphere, and the Court itself. It is, however, highly unlikely that the Parliament would forgo its power to elect Constitutional Court Judges. Back.
Note 13: There was recently a debate between the parliament and the President of the Constitutional Court about the docket of the Court. Members of the legislative branch intended to pass a law on the determination of the docket of the Court, which would have given the legislative branch some influence over the Court. In arguing for the new law, the MPs reasoned that the Constitutional Court is the only institution in Hungary which functions without any external control. In his answer, the President of the Court rejected the bill and insisted that the Court's freedom to determine its own docket is one of the guarantees of its independence. Furthermore, he told MPs that if the new law is passed, the Constitutional Court will then launch an investigation concerning whether the new law is unconstitutional and repeal it if it finds so. Back.
Note 14: More precisely, the Constitutional Court determines its budget and then presents it to the Parliament. Back.
Note 15: In important political cases, however, the political actors filing petitions have always publicized their stances, since they are part of their position on the issue. The majority of the politically important issues were thus known to be challenged by petitioners. Still, fears of manipulation of the Constitutional Court's docket due to the wider discretion of the Court in setting its agenda, as well as the possibility of "self-programming," are not entirely unfounded. Back.
Note 16: See András Sajó, "Az alkotmánybíráskodás a diskurzuselmélet fényében," Állam és jogtudomány (1-2/1994), who builds on deliberative democracy and deliberation following Jürgen Habermas, Between Facts and Norms (Boston, MA: MIT University Press, 1996). Back.
Note 17: This issue takes on importance with respect to reelection. There are fears that judges close to the end of their term would seek favor with the government and be more lenient toward the parliamentary majority. The elimination of reelection would solve this problem. Life tenure in the Hungarian circumstances would seem a bit ambitious, considering the accidental nature of the determination of the Constitutional Court's power and the lack of a 200 year-long tradition of "cohabitation" between the Court, the executive, and the legislative. Back.
Note 18: Deficit-ridden social security funds coupled with an extraordinarily high rate of social security contribution are common in Central and Eastern Europe. There is widespread evasion of paying the contributions, which have unreasonably high rates. No countries have yet dared to introduce structural changes in the financing of their pension or health-care systems, although in some places private pension funds coexist with the general fund. Back.
Note 19: See Gábor Halmai, "Gazdasági alkotmányosság," manuscript, 1996, and András Sajó, "Szociális jólét és rossz közérzet," Magyar Jog, 4/1996. Back.
Note 20: SS 13. par. (1): The Republic of Hungary shall guarantee ownership. Par. (2): Expropriation of property shall be allowed only exceptionally and for public interests, in cases and ways determined by law and with full, unconditional and immediate compensation. Back.
Note 21: See David Stark, "Privatisation in Hungary: From Plan to Market or from Plan to Clan?" East European Politics and Societies Vol.4, No.3 (Fall 1990), 351-92, and Stark, "Path Dependence and Privatisation Strategies in East Central Europe," East European Politics and Societies Vol.6, No.1 (Winter 1992), 17-51, for an excellent typology of Central and Eastern European privatisation strategies and the debates surrounding the Hungarian centrally managed privatisation policy. Back.
Note 22: Since 1989, the contraction of agricultural production in Hungary is regularly attributed to the aborted dismantling of cooperatives or to the short-sighted devastation of them, depending on one's point of view. Not being an expert on agricultural production, I do not feel secure in passing a judgement on the issue. Nonetheless, I would attribute the contraction to such causes as difficulties in agricultural financing, the lack of an agricultural collateral system, the demise of the huge Comecon agricultural market, and oversubsidized Western European agriculture. Back.
Note 25: Until the New Deal period, property was interpreted in the decisions of the U. S. Supreme Court as inviolable. The rationale for such a view was that privately held property was seen as a natural, pre-legal entity, the particular distribution of which was deemed to be a result free from state intervention. Subsequently, state intervention in its prevailing distribution was seen as an impermissible interference with nature. Only when it was realized that property relies on criminal and civil law guarantees enforced by the state could the call for interference with private property be realized. The "privately law-based" view of property refers to the pre-New Deal period, where it was a benchmark for evaluating the constitutionality of legislation. Back.
Note 26: The limited compensation scheme of Hungary was based on compensation vouchers which were distributed in a regressive manner to those whose property was nationalized under the communist regime. Even though it was limited, the compensation created huge problems. It was unclear what kind of grievances should be compensated for (only property, or other damages as well, like unlawful prison sentences, ejection from higher education for ideological reasons, or years spent in Russian labor camps), which period they addressed (Hungarian Jews whose life and property was taken away under World War II, or the various waves of nationalization in the 1940s and 1950s), what should happen to earlier partial attempts at compensation (certain families had recovered their property), and how to handle the general lack of documentation. Compensation vouchers were designed for the purchase of public property, but quickly lost their value, since they depended on the available property offered for privatization by the government at a particular point. Back.
Note 27: Decision 16/1991 (I. 20.); ABH, 1991, 54. Back.
Note 28: The constitutionality of non-compensated limitation of property will be extensively discussed with respect to the limitations on selling council flats. There the Court sought to provide criteria for the constitutional extent of limitation. It created the concept of the disposal right of a property owner over his property, the limitation of which should be subjected to constitutional criteria. Ownership was distinguished from disposal. Back.
Note 29: Although local governments have the right to impose various types of local taxes, to a large extent they remain dependent on the central government, since their main revenue is a slice of the income tax as well as various allotments to cover the services they are required to perform. This situation, where local representation exists, but local representatives are not responsible for imposing taxes that cover locally provided services, puts local governments in an unsound position. Local representatives are constrained in their actions, and at the same time irresponsible in their promises. The result is a general lack of accountability. Back.
Note 30: The existence of market transactions in a commodity signals that the market participants accept the legal or customary guarantees of the commodity. Applying this to the market in tenancy in council flats in state-socialist Hungary shows that such tenancy was seen by the population as a stable commodity. Back.
Note 31: The 1989 transition was carried out without a legal tabula rasa that would have required that laws passed under state socialism and private assets accumulated in that system would be completely erased. Instead only those laws were repealed that were unconstitutional under the modified Constitution. Thus, a tabula rasa with respect to council flats would have been unjust. Back.
Note 33: In a dissenting opinion, this decision was sharply criticized by Judge Vörös, who insisted that this measure constrained the disposal of local government over their property to an extent that practically equaled confiscation. He also stated that it will "create uncertainty with respect to property, deprive the owner of the most important aspect of property and would serve as the basis of a long series of restrictions on property." Ibid. Back.
Note 34: ABH, 1993, 373. Back.
Note 37: ABH, 1993, 373. Back.
Note 39: Economically speaking, this was a rather interesting phenomenon. In standard economic theory, oversupply should lead to reduced prices, as some of the competitors go bankrupt when earnings no longer cover costs. Subsequently, supply and demand reach an equilibrium. In the case of taxis, drivers had only one or two rides a day, but charged enormous fares for them. There must have been many non-economic reasons for the prolonged oversupply. Among them are cartels on certain routes, notably the one between the airport and the city center, as well as the fact that many drivers only work as taxi drivers to conceal criminal activities. Back.
Note 40: Decision 21/1994 (IV. 26.); ABH, 1994, 117. Back.
Note 41: Although over 80 percent of the current Constitution is new, populist ideologues aiming to discredit the current institutional setup, still refer to it as the Stalinist Constitution, as it was drafted under the regime of Mátyás Rákosi in 1949. With respect to the right to work, it is interesting to note that there has never been a constitutional case based on the right to work, even though Hungary's unemployment rate reached almost 13 percent after 1989. This fact simply shows that the Court assumes that the right to work is an accidental vestige of the previous regime and that its intended meaning is obsolete. I emphasize it as an illustration of the role of principles and background understanding in constitutional interpretation. Back.
Note 42: We could better appreciate the significance of the decision if we recall the practice of royal privileges from the pre-capitalist era, where a royal privilege was required in order to engage in commerce or carry out particular commercial activities, such as trade or mining. Back.
Note 43: In the state-socialist era, Hungary had two banks and numerous regional savings cooperatives. The Hungarian National Bank served as the commercial as well as the central bank (similar to the Federal Reserve). As a commercial bank, it handled the accounts of the 10,000 or so economic units (companies) of the country. This arrangement facilitated redistribution, the main characteristic of the socialist economic system: surpluses were taken from the account of more successful companies and transferred to those of wasteful ones. The arrangement, combined with the lack of personal income tax (employees were taxed indirectly through low salaries), preempted the creation of a Tax Authority. For non-legal entities, the National Savings Bank offered its services, which, drawing on its monopoly position, made huge profits that were used for social engineering purposes by the state. Back.
Note 44: 13/1990 (VI. 18.); ABH, 1990, 54. Back.
Note 46: Compare the famous cases of Lochner v. New York, 198 U. S. 45 (1905) to West Coast Hotel v. Parish, 300 U. S. 379 (1937). In the first case, the Supreme Court found unconstitutional a New York law that limited the number of hours that bakers were allowed to work a week to 60 hours. The Supreme Court found such interference with the freedom of contract clearly unconstitutional. In the latter case, minimum wage legislation for women was ruled constitutional under the pressure of the New Deal. It is interesting to note that in the first case, the Supreme Court ruled that interference with contracts would impose the burden of subsidy for bakers on the employer and that such redistribution is prohibited. In the second case, the Supreme Court found that without the minimum wage, women were unable to earn enough to secure their self-subsistence. Since the burden of supporting women's subsistence fell on the public, this was clearly a subsidy from the public to the private employer, and such redistribution was prohibited by the Constitution. Back.
Note 47: Decision 66/1995 (XI. 24.); ABH, 1995, 333. Back.
Note 48: This decision was heavily criticized for numerous reasons. One of the claims was that the Court, not being made up of an economic experts, made a mistake in choosing the rate of inflation as the indicator of the economic situation. Back.
Note 49: The following two alternatives were presented in 1991: one either pays 15 percent on the entire loan, or repays the loan immediately, in which case one must only pay back half of the loan. The Court saw further discrimination in that those who did not have enough mobile assets to pay back their loans were probably in the poorer stratum, and now faced a new burden with the 25 percent rate. Back.
Note 50: The Court's harsh treatment of the austerity package will be discussed in the section on social rights. The political implications of the decisions of the Hungarian Constitutional Court will be briefly addressed in the conclusion. Back.
Note 51: The system of social services was quite generous in Hungary. The scheme of family allowances were similar to the German Kindergeld: after each child, a certain amount was added to the father's salary. After 1989, inflation wiped out part of the value of the family allowance, since raises never caught up with the rate of inflation. Still, for many impoverished families this was an important source of income. We should also see that the package did not intend to terminate the family allowance, but to transform it into a need-based system, for which roughly 80 percent of the population would have been eligible. The emotional impact of the move, coupled with opposition claims that it represented an attack on children and the nation's future, contributed to the vehement rejection of the proposed policy by the general population. Maternity leave was also quite generous: it consisted of three years paid leave after each child, although here also inflation wiped out part of the benefit's value. Back.
Note 52: SS 70/E. par. (1). The citizens of the Republic of Hungary shall have the right to social security; they shall be entitled to provision necessary for subsistence in case of senior citizens, illness, disablement, widowhood, orphanhood, and unemployment owing to circumstances beyond his control. par. (2). The Republic of Hungary shall realise the right to provision through social insurance and the system of social institutions.Also SS 17 stipulates: "The Republic of Hungary shall provide for the needy through extensive welfare measures." Back.
Note 53: This interpretation was most clearly presented in the concurring opinion of the President of the Court to Decision 31/1991 (X. 18.); ABH, 1991, 200. He claimed that SS 70/E does not give anyone the right to social security. He argued that such a general and nebulous stipulation cannot be the basis of a legal claim. It then represents a state goal, the exact amount of which is left to the legislator to decide. Back.
Note 54: ABH, 1993, 196. Back.
Note 55: Decision 43/1995 (IV. 30); ABH, 1995, 188. Back.
Note 56: ABH, 1995, 203. Back.
Note 57: The rule of law is one of the most cherished concepts of the Court. The Court ultimately seeks to justify its decisions as propelling Hungary from a state-socialist country toward a rule of law state. Legal security is interpreted as an aspect of the rule of law. It stipulates that laws should be clear, unambiguous, and known to everybody. Many laws were struck down as not meeting this requirement. The novelty here was that it was introduced in a new setting, social services, and given a brand new interpretation. Back.
Note 58: Sunstein, After the Rights Revolution; Sunstein, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993); Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977); Habermas, 1996. The typology of possible approaches is an effort on my part to provide a synthesised framework for approaching constitutional courts and constitutional politics. Back.
Note 59: H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961). Back.
Note 61: The current text of the Constitution was worked out in a subcommittee of the Roundtable Talks. This subcommittee was largely made up of young lawyers. The asserted goal of the subcommittee was merely consultation and not negotiation between communist and opposition experts. Halfway through the discussion, the subcommittee was notified that a new interim constitution would be passed in the Parliament. The Constitution was then hastily drafted and passed in the communist controlled Parliament, without modification. Back.
Note 62: Concurring opinion, to Decision 23/1990 (X. 31.) on the death penalty; ABH, 1990, 96. Back.
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