In his essay Neil MacCormick is experimenting wich such an interpretation of sovereignty, according to which the external sovereignty of a state is dividable within among the organs of state; in such a way that none of them can legally exercise plenary power or competence finally to define its own competence. This discipline of 'divided sovereignty' is related to the institutional system of the EU, completed with the principle of subsidiarity. "The doctrine of subsidiarity requires decision-making to be distributed to the most appropriate level. In that context, the best democracy - and the best interpretation of popular sovereignty is one that insists on levels of democracy appropriate to levels of decision-making."
The essay of András Sajó considers the constitutional dimension of EU accession in the accession countries. The first part of his article reviews the constitutional conditions and requirements of accession (including the problem of sovereignty). The resulting process of constitucion-amending and entry ratification and the referendum are discussed with emphasis on sovereignty and legitimacy. The second part of Sajó's article deals with the unsettled constitutional problems of the relation of new member states to the EU. Here the supremacy of EU law and potential conflicts with constitutional courts; constitutional problems of implementation; as well as the constitutional mechanism handling future amendments to the EU treaty are considered. Finally the impact of accession related national constitutional changes on the domestic separation of powers is evaluated.
In his writing Pál Sonnevend is seeking an answer to the question, how the protection of fundamental rights of all those falling under the territorial effect of the Hungarian Constitution is affected by the sovereignty transfer resulting from the accession to the EU. Whether the level of protection guaranteed by the Constitution and the European Convention of Human Rights remains unaffected in those cases, where the European Union exercises public power over Hungarian inhabitants by legislation or special decisions; or where the exercise of the public power of Hungarian organs is based on a legislation of the EU.
To answer these questions the author examines three fields of interest. Firstly, how the protection of fundamental rights is carried out in the European Union. Secondly, the relationship of European Union law and the Convention; and then the most important question, that is, the relationship of the Hungarian constitutional guarantees and community law. Since many thorough evaluations have been published about the success of fundamental rights within the European Union, the author is preoccupied with the level of legal protection, and the changes resulting from the EU Charter of Fundamental Rights.
In his essay "The Limits of the Sovereign" Boldizsár Nagy compares the regulations of migration in Hungary and the European Union, in order to examine the possible changes resulting from the accession. He emphasizes, that Hungary is already a state with limited sovereignty before accession, her policy concerning migration is determined by international treaties, and this will not change after the accession, either. "Although great and important changes are in prospect, which are going to change our lives, these cannot mean an unknown way of miming Hungarian sovereignty, neither from a legal, nor from a constitutional point of view."
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In this column Gábor Halmai is interviewing Bruce Ackerman, the famous constitutional scholar of the American Yale University, about the relationship of the Constitution and legitimacy. According to Ackerman there would have been a possibility, and indeed need for the adoption of a new Constitution in Hungary at the beginning of the political transition, which would have solved the legitimacy deficit of the transition, similar to the German Basic Law (Grundgesetz) of 1949. Without this, however, even the achievement of the Constitutional Court led by László Sólyom, concerning constitutionalizing fundamental liberal democratic values can be endangered. On the other hand Ackerman is of the opinion that a great deal of the legitimacy deficit will be taken up by the European Union. In the second part of the interview Ackerman discusses the means of establishing democracy in the United States, and thus the way of avoiding the establishment of a military empire even under the rule of a bad government.
In his writing Péter Paczolay is trying to find an answer to what the place and role of the Hungarian Constitution is going to be in the legal system of the European Community. He states that the necessity of a general accession clause did not result directly from the jurisprudence of the Hungarian Constitutional Court, It was rather due to the idea that after accession the requirement of democratic legitimacy should be fulfilled in relation to the exercise of public power of the European Community, by a clause of integration giving authorization to accession in general. Relating to the European Constitution he declares that two points of view are contesting: according to the European Court of Justice the European Union has a Constitution, and this is the Treaty Establishing the European Communities. According to the European Parliament, however, the Union has no Constitution, although it would need one. The debate is yet undecided, but "the process of turning from a traditional sovereignty of a national state into a federation seems irreversible".
József Petrétei and Nóra Chronowski think, that the Constitutional Treaty under creation is halfway between a Constitution connected to a state in the classical sense, and the classical international treaties. The Convent cannot be viewed as a real constitutional power, since the founding treaties of the integration do not constitute it, and they do not incorporate the formal and content rules of constitutionality. They expect that the European Constitutional Treaty will not mean a state-forming actor a radical move towards federational structure. As a result no sovereign entity can be formed, but the sui generis characteristics and supra nationality of the integrational system can be reinforced.
Reflecting on the constitutional structure of the enlarged EU András Hanák states that Europe is at the same point as the thirteen states uniting in confederation stood in 1787. The cart, as Madison urged in 1787, now has to be directed into a somewhat federal direction, and its institutional system has to be worked out. Not the first, but certainly a symbolic sign of this is, that in the first clause of the draft of the EU Constitution "F" is already embedded: that is, that certain common competences are settled on a 'federal basis' by the nations of the Union. Part of this constitutionality will possibly be, at least partly, the settlement of the relationship between the Constitution of the Union (and human rights), and the Constitution of the member-states (and human rights).
According to Gábor Kardos the adoption of the EU Charter of Fundamental Rights means that now the previously missed human rights catalogue of European
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Union law is born. With respect to the fact that with the recommendation of the constitutional convent this catalogue can become part of public law, we can easily conclude that the European Union has stepped on the way of transforming into a certain entity, which can be described by the categories of constitutionality[7] as resembling federation. It seems that with the Charter the basic law of the Constitution of the EU has been born. This feeling is especially strengthened by the "constitutional" rhetoric, which seems to be talking about the establishment of institutions like permanent presidency for years. At the same rime, if we examine this question from the aspect of the Union's protection of fundamental rights, we have to see it clearly that the latest amendments of the Rome Treaty - namely the Amsterdam Treaty and the Nice Treaty - have brought about changes that are contrary to the developments recalling the formation of the former North American federative state. The changes in question are based on a model of control over the member states, within international institutions, and which are barely imaginable within a federative structure.
Examining the problems of self-adjustment of Union and member states law in his writing Géza Kilényi states that according to the present "division of roles" the European Court of Justice is the guard of legality and the hierarchy of the source of law, and the Constitutional Court of the Union at the same time. As the latter it can do many things, except one. It cannot throw away such universal basic values worked out by the legislatives and Constitutional Courts of member states, as legal security, and in connection to this the protection of rights and reversions gained and practiced bona fide, or the compromise between legality and legal security in administrative procedural law.
In a writing Petra Bárd emphasises that the incorporation of the Charter into the EU Constitution, and the legally binding of the document is essential for human rights to accomplish themselves in the Union. The Charter can also be handled as an independent document in form, which treaties could refer to in relation to the protection of human rights; in addition, it could also function as a supplement to these treaties; it could also become part of the Constitution being born, or even be the supplement or supplementary protocol of this Constitution, but the fifty-four articles can also directly be incorporated in the text of the Constitution.
In his comment on the previous issue of Fundamentum Mátyás Bódig evaluates the political philosophical and legal historical connotations of the political transition. He claims that modern political communities do not rely on political relations, which are based on "common material values"; but modern democracy is the complex of "procedural conditions". "Modern political communities have to create the necessary level of loyalty and solidarity within the conditions of rational pluralism," In Bódig's opinion the political transition has created this framework in Hungary.
In a joint essay Tamás Kende and Petra Jeney examine some basic institutional and legal procedures of the constitutional proceedings of the Union. They conclude that the constitutional convent can only be successful if it places a document full of compromises on the table of the Thessaloniki summit. This compromise would mean that several or all of the standing points could prevail (like in the Council, where it seems there will be a president, a management at the lower level, and also a three-member rotating management at the higher level, although we do not know yet, what its duty would be); and it would also mean that one of the institutional reforms would not be accomplished in order to be
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able to accomplish another (like the reform of the Committee in the light of the reform of presidency); and also that the institutional structure they are not able to carry out would be carried out a cycle later (probably just like the Committee with fifteen members).
Gábor Halmai in "Hate Speech and Accession lo the Union" is preoccupied with the skeleton law proposal that the European Council wishes to pass about the fight against racism and xenophobia. The author is trying to find the answer to the question how the proposed community legal prohibitions relate to Article 61 of the Hungarian Constitution on the freedom of expression, which is interpreted rather inclusively by the Constitutional Court.
In this column we present reflections on the conception of the Act of Equal Treatment and on Equality of Opportunity, of the Ministry of Justice. Lilla Farkas, András Kristóf Kádár and József Kárpáti criticize the range of persons obliged by the proposed Act to keep equal treatment, since in their opinion it is not sufficiently worked out. While agreeing with the drawing of boundaries of this circle, they are of the opinion that the conception gives no adequate theoretical basis to it. In relation to the reversal of the burden of proof they propose that the party suffering the legal violation should be compelled to render the legal violation verisimilar, whereas the party accused with the legal violation should have the possibility of a rescuing verification. They argue that the status of the Equal Treatment Commission proposed to establish the provisions of the Act is unclear; the system of sanctions of the Act requires further modifications.
János Zlinszky draws attention to the fact that the requirement of equal treatment can in no way be extended to the private sphere; securing it can only be made the duty of the public sphere. At the same time he is strongly for the programmes of equal treatment, since in his opinion not sanctioning, but information can help the establishment of equal treatment better.
János Bársony misses criminal law sanctions from the conception, at the same time arguing that it had chosen an inefficient goal, when aiming at the harmonization of EU Directives. In relation to the institutional system Bársony thinks that we could act against discrimination efficiently with the financial help of the civilian sphere.
In this column we present the latest decisions of the European Court of Human Rights, together with a short commentary, and we also sum up the decisions of the Hungarian Constitutional Court in relation to euthanasia, the sphere of authority restricting human rights of public place supervisors, and those concerning the preliminary constitutional review of questions raised in referendum.
This time we introduce Argus Yugoslavian Hungarian Minority Civilian Society in Novisad. One of its leaders, Antal Bozóki in his writing examines the way the Yugoslavian government (today the government of Serbia and Montenegro) tried to settle human and minority rights according to international legal principles. The author examines five legal instruments, three of which are part of
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domestic law; two belong to international multilateral law, and one to bilateral law. At present these five give the constitutional and legal framework of human and minority rights in Serbia and Montenegro. The lawyer-author emphasizes the further need for rights and freedoms put down in the charter of human and minority rights and the other documents of minority protection to find a place in the new Constitution of the two member states, and be realized in practice as soon as possible.
In this column we recommend the following books on human rights: Antal Bozóki: Our Human and Minority Rights; the Report of the Legal Defence Bureau of National and Ethnic Minority Rights; the White Book of 2002; and the volumes of essays: Our Protected Data; Answers to Terrorism; Going or Staying? Nations in the Light of Each Other; Where Does the Road Take Us? ■
Visszaugrás
