Constitutional identity of a member state of the European Union as Hungary is can be examined from - at least - two points of view, with reference to the own constitutional tradition reflected by the Constitution (the Fundamental Law in the case of Hungary) and with reference to the European Law. My conviction is that the two approaches may not result in contradictory conclusions, and that in our case there is really no contradiction between them.
1. According to our Fundamental Law, the protection of our identity rooted in Hungary's historic constitution is a fundamental obligation of the State that applies to all institutions, in particular to the Constitutional Court as the principal organ for the protection of the Fundamental Law[1]. The Constitutional Court has already established about the constitutional identity of Hungary that it is "not a list of static and closed values". At the same time it is "a fundamental value not created by the Fundamental Law - it is merely acknowledged by the Fundamental Law. Consequently, constitutional identity cannot be waived by way of an international treaty - Hungary can only be deprived of its constitutional identity through the final termination of its sovereignty, its independent statehood. Therefore the protection of constitutional identity shall remain the duty of the Constitutional Court as long as Hungary is a sovereign State"[2].
According to my own supplementing standpoint, "constitutional self-identity is not a universal legal value, it is a specific feature of the different States and of their communities, of the nations, that does not apply (the same way) to other nations. In the case of Hungary, national identity is in particular inseparable from constitutional identity. The constitutional government of the country has been one of the core values. The nation has always stuck to, and that has been a living value even at the times when the whole or the majority of the country was occupied by foreign powers. This legal value has been manifested and presented in (positive) legal regulations: freedoms and the limitation of power (in the Golden Bull), respect for autonomies under public law (in the Tripartitum), freedom of religion (in the Law on religious freedom of Torda), lawful exercising of power (in the Pragmatica Sanctio), parliamentarism, equal rights (in laws of April 1848), separation of powers, acknowledging judicial power, protection of minorities (in laws of the Reconciliation of 1867). These are the achievements of our historical constitution, the Fundamental Law and thus the whole Hungarian legal system is based upon. Since the values that make up the self-identity have come into existence on the basis of historical constitutional development, they are legal facts that can be waived neither by way of an international treaty nor by an amendment of the Fundamental Law, because legal facts cannot be changed through legislation"[3]. This situation of legal facts, the constitutional continuity of statehood of Hungary and the unity of the nation is embodied by the Holy Crown as acknowledged by the National Avowal.
Both the decision of the Constitutional Court and my supplementing standpoint follow the National Avowal, according to which the Fundamental Law shall be a binding legal rule, it shall be the foundation of our legal order, but it shall also be more than that, "it shall be an alliance among Hungarians of the past, present and future. It is a living framework which expresses the nation's will and the form in which we want to live".
2. Thus the constitutional identity of Hungary is a legal fact but it is neither static nor closed. It is a legal fact, what means that it is not a theoretical framework to be freely filled as it is based on laws, namely on the out of force but still valid rules of our historical constitution and on the Fundamental Law. It is a legal fact, which cannot be changed retroactively: everything incorporated into it shall remain there as a part of it. At the same time, it is not a static or closed catalogue of values, what means that its content may be modified with a sovereign decision for the future. These changes shall be added to our identity and they themselves shall become legal facts that cannot be modified retroactively. This is what makes the Fundamental Law a living framework.
For example, the refusal of Ottoman occupation and the fight for the restitution of the constitutional independence of the country torn to three parts are such subsequently unmodifiable elements of our constitutional identity. Also our common constitutional statehood with Austria, enjoyed in its last phase as a part of the Austro-Hungarian Monarchy, is such a subsequently unmodifiable element of our constitutional identity. And also the fact that Hungary has been, since 1st of May 2004, the member of the European Union is such a subsequently unmodifiable element of our constitutional identity. The fact that at different times Hungary has been subject to various rights and obligations based on different international treaties is such a subsequently unmodifiable element of our constitutional identity.
3. When the Constitutional Court exercises its competences, e.g. interprets the Fundamental Law a, it has to take into account the Fundamental Law as a whole,
- 46/47 -
including Article E) on EU membership and Article Q) on respect of international obligations. The Court has to take into account the obligations binding Hungary on the basis of its membership in the European Union and under international treaties. However, the term "take into account" may not - because should not - mean that the Constitutional Court could accept these obligations as more powerful ones than the Fundamental Law. These are parts of our constitutional identity, but not exclusive parts. As they have become parts of our constitutional identity through the sovereign decision of Hungary, they can never result in the full and final surrender of sovereignty.
Therefore the Constitutional Court should take into account the obligations of Hungary that originate from its membership in the European Union and from other international treaties, but it should always interpret them restrictively. This is what is meant by the presumption of maintained sovereignty:[4] if there is a reasonable doubt regarding a competence whether it was assigned to the bodies of the European Union or kept under national authority it should be presupposed the later one, that the competence in case was kept under national authority of Hungary. I stress that this principle can be applied only in case of reasonable doubts. If there is no doubt or if the doubt is not reasonable, this presumption cannot be applied.
The issue of identity and identities is not a new one in the European Union. In 1973 in Copenhagen the nine members states of the European Communities, had formulated for the first time a Declaration on European Identity[5]. That declaration focused on the common part of the identity. Hence during the 20th Century the legal aspects of constitutions grew above the idea of national identities, the emphasis moved from the sociological to legal interpretations, from national identity to constitutional legality, from local aspects to cooperation and international regulations. But the problem of different identities behind the envisaged common identity did not disappear, and court judgments upheld them as important values (firstly by the Solange decisions of the German Bundesverfassungsgericht, followed by a series of other judgments of the Polish, French, Czech, Estonian and finally Hungarian constitutional courts or similar bodies).
A Jogkódex-előfizetéséhez tartozó felhasználónévvel és jelszóval is be tud jelentkezni.
Az ORAC Kiadó előfizetéses folyóiratainak „valós idejű” (a nyomtatott lapszámok megjelenésével egyidejű) eléréséhez kérjen ajánlatot a Szakcikk Adatbázis Plusz-ra!
Visszaugrás
