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A never-ending story? – Deciphering the elements of Hungarian constitutional identity

In recent years, we have witnessed a revolution of constitutional courts which rocked the authority of the Court of Justice of the European Union (CJEU) and presented new questions about the status of EU law (or Community law). The phenomenon in question is of course due to some constitutional courts in certain European countries declaring that the primacy of European law does in fact have enforceable limits. In many cases (for example the Romanian and the Hungarian Constitutional Courts’ decisions from 2021) the courts – at least partially – relied on the so called National Identity Clause in Article 4 of the Treaty on the European Union (TEU).

Article 4 (2) of the TEU states that the Union shall respect the national identities of Member States. Some constitutional courts interpret this Clause in a way that perceives a Member State’s national (or constitutional) identity as a limit of the primacy of EU law. This means that EU law has to be compatible with a Member State’s constitutional identity in order for it to be applicable in that state. This compatibility, should the occasion arise, could come under scrutiny, potentially resulting in the non-applicability of certain provisions of EU law. Consequently – in protecting legal certainty – the accurate determination of the source of the elements of a Member State’s national identity and the process of their designation is of the utmost importance. Often, this process is quite straightforward, as is the case in Germany and Czechia where the respective Constitutional Courts have considered the constitutions’ eternity clause(s) as the basis of constitutional identity. In constitutional systems without explicit eternity clauses the situation is more complicated, basically leaving the task entirely up to those, who apply and interpret the law. Hungary – perhaps unsurprisingly – has put a further unique spin on the issue, all that in the absence of an explicit eternity clause.

The Fundamental Law of Hungary defines the achievements of the historical constitution as a pivot in constitutional interpretation under Article R). This created a situation where, even though the country now has a written constitution, the Constitutional Court also is obliged to interpret the historical (unwritten) constitution (that was ‘in place’ up until the 1949 Stalinist constitution). Since the Seventh Amendment of the Fundamental Law, it also establishes that the country’s constitutional identity derives from her historical constitution. Hence, the Hungarian Constitutional Court has now declared in multiple decisions [with 22/2016. (XII. 5.) AB still holding the most significant weight regarding constitutional interpretation] that the elements of the Hungarian constitutional identity are achievements of the historical constitution of Hungary. That sounds reasonable enough, but determining what constitutes an achievement of the historical constitution and which of those are elements of the constitutional identity can prove to be quite challenging.

The first question is what exactly the Hungarian historical (or “unwritten”) constitution is. It is a collection of constitutional rules from various periods in the country’s history, which evolve slowly and organically. It may include cardinal acts, customary laws, and principles established by jurisprudence. Cardinal acts are of particular importance. They attained their cardinal status not through declaration but through their content. Histirocally, for a law to have become cardinal (leges cardinals, not identical to the term ‘cardinal law’ now used to designate laws adopted by two-thirds) it had to address constitutional issues such as state structure and liberties, and introduce innovations that would later become a fundamental part of the Hungarian constitutional tradition and culture, or enshrine norms that were already such fundamental elements. These laws were and are considered a part of the historical constitution, even if they are no longer in force or were never formally enacted. Does this mean that in order to identify elements of Hungary’s constitutional identity, one must review approximately 1000 years of legal norms and evaluate each one individually in the current context of the case before the Court that would necessitate such a survey? If so, the task could turn out to be never-ending.

The answer to the question posed at the end of the previous paragraph is both yes and no. It requires a more nuanced explanation. As I have already mentioned, according to the Constitutional Court, the elements of constitutional identity are achievements of the historical constitution. Achievements are a more selected group of norms, often abstractions and legal principles drawn from components of the historical constitution. But what does all this mean in this context?

According to some, the achievements could be considered to be the Hungarian eternity clauses. It is true that the two concepts are similar in the sense that neither of them can be modified by an amendment of the Fundamental Law and both of them enshrine elements of the constitutional system that are of paramount importance. However, eternity clauses specifically serve the purpose of safeguarding crucial components from any alteration within the framework of the existing constitutional system. Some constitutional provisions are thus rendered completely static by the eternity clauses (without the adoption of a new constitution). Although the achievements of the historical constitution cannot be altered by a single decision of lawmakers either, they are not as static as eternity clauses. Their change may be gradual and slow, and may take shape at times even in the course of history, which we may discover in retrospect. One of the key characteristics of the historical constitution is that it constantly evolves in an organic way. Another reason why they (or any norm for that matter) cannot act as eternity clauses is that, according to the Fundamental Law and the case law of the Constitutional Court of Hungary, the constitutionality of the content of constitutional amendments cannot be reviewed by the Court. Therefore, there is practically no place for eternity clauses in the Hungarian constitutional system, given that an inherent feature of eternity clauses is that they prevent the introduction of constitutional provisions that contradict them in the event of a constitutional amendment.

However, some of the achievements of the historical constitution could theoretically be viewed as implicit eternity clauses. Implicit eternity clauses are a set of basic constitutional principles which permeate the constitution as a whole to such an extent that changing them would practically create a new constitutional order, hence they act as components of the core, unalterable identity of the constitution. This definition does sound quite similar to the role achievements of the historical constitution can play when it comes to the issue of the relationship between constitutional identity and EU law. Nevertheless, since the Fundamental Law did not incorporate the achievements into the constitutional system with the same sui generis normative function as itself, the notion of them having the quality of implicit eternity clauses can be debated. Also, even if after the debate, one would come to the conclusion that they do in fact have said quality, the fact that the pouvoir consituant explicitly forbade constitutional review of the content of constitutional amendments still stands.

We have now established that achievements cannot act as eternity clauses. What are they then? It is often said that the inspiration for the category of achievements is the European “acquis communautaire”. Acquis is the accumulated body of EU law and obligations (including decisions, directives, regulations, resolutions, treaties etc.) from 1958 to the present day, which all new members of the Union must accept. While the expression for achievements may derive from acquis, there is a key difference between the two. The acquis includes all EU rules, decisions and practices, whereas the word achievement distinguishes and selects between the norms of the historical constitution based on their content.

Achievements cannot be laws that are forgotten, since one of their main characteristics is that they are accepted as cornerstones of our constitutional system to this day, meaning that what is protected in the Fundamental Law by prescribing compulsory interpretation methods in Article R) and by declaring that Hungary’s constitutional identity stems from the historical constitution is not a set of archaic, outdated, out-of-force rules, but longstanding fundamental principles. It follows from this characteristic that the norms on which the achievements are based should not, as a general rule, be interpreted word for word, but should be evaluated on the basis of the forward-looking, long-standing constitutional principles that they established. This also means that it is possible for certain parts of a law to be achievements while other parts are not.

When evaluating a potential achievement, it seems important to consider whether the relevant legal norm is of a nature which points directly to a forward-looking legal principle. An achievement today may not seem particularly forward-looking or innovative precisely because it has become such a fundamental constitutional principle that we consider it a given, rather than a novelty. Therefore, we should consider the innovation of the idea within the context of the era in which it was first established. This can only properly be done, if in addition to the rule’s existence, the sustainable purpose and the reasoning behind the chosen solution is also available. This theory follows the logic of cardinal acts (understood historically) by assuming a single, innovative source that is distinguishable in time and form, from which the achievement stems. While cardinal acts do play a significant role in the Hungarian historical constitution, it is important to note that they also include elements, the origin of which may not be easy to pinpoint (such as certain customary and jurisprudential principles). Also, some achievements may be abstractions drawn from what Hungarian constitutionalism has always strived for. Consequently, the aspect of the norms’ forward-looking quality may not be of use in all cases.

Whether or to what extent a norm was applied in the age it was born and throughout the ages it existed is also an indicator of it being an achievement. After all, we can hardly call something a longstanding tradition if it was never actually a part of legal practice. However, some achievements may be abstractions drawn from goals that Hungarian constitutionalism consistently strived for but did not always flawlessly deliver in practice, despite forward looking laws and principles (such as the protection of the nationalities living in Hungary). Therefore, this criterion should not be applied too rigidly, but observing it could help us avoid classifying declarations without substance as achievements.

As I have already mentioned, the historical constitution has an immanent, constantly but slowly evolving nature. The slowness comes from the fact that the norms of the historical constitution did not attain their constitutional status from the single decision of the legislative power. In the days of Hungarian history without a written, single document constitution, the National Assembly did not have any special procedures dedicated to raising a law to constitutional status (as opposed to today when a qualified majority of parliament can act as the pouvoir constituant as well as the pouvoir constitué). Instead, they attained their constitutional status on the one hand based on their content and on the other hand based on their established nature through time. This means that, as Pál Teleki, former prime minister from the interwar period, said: our historical constitution is a set of principles “which have passed into the blood of the nation, from which time may erase something, but the action of a single man, a single act of parliament, or even the sentiment of a single generation, never”. This is particularly true in the case of the achievements of the historical constitution, even though the existence of a written constitution naturally alters the situation. A norm of the historical constitution can only be considered an achievement (a category officially created by the written constitution) if it withstood the test of time. In other words: an achievement’s nature excludes situative and promptly vanishing instruments.

These aspects gain particular importance in view of the fact that the concept of constitutional identity also highlights the aspect of continuity and thus age, on which – as we have seen – the historical constitution and its achievements rely. In line with this logic, the Constitutional Court stated in its 32/2021. (XII. 20.) AB decision that the values that make up Hungary’s constitutional identity are legal facts that cannot be waived either by way of an international treaty or by the amendment of the Fundamental Law. Age is also what the Constitutional Court most often examines (for example: 32/2019. (XI. 15.) AB, 14/2020. (VII. 6.) AB, 32/2021. (XII. 20.) AB, 22/2019. (VII. 5.) AB) in practice, by presenting a principle’s history and place in Hungarian constitutional history, thus referring to its continuity and established nature through time.

In its Decision 32/2021. (XII. 20.) AB, the Constitutional Court established that the protection of Hungary’s right to determine its territorial unity, population, form of government and state structure in Article E)(2) of the Fundamental Law forms part of the constitutional identity of the nation. This however does not mean that this or achievements relating to this are the only content of constitutional identity, given that in the same decision and also in its 22/2016. (XII. 5.) AB decision the Court declared some elements of the historical constitution that cannot strictly be fit into the aforementioned categories to be achievements that are part of the constitutional identity of the nation. It also stated that the relevant parts of the Seventh Amendment of the Fundamental Law instituted the identity control described in the Court’s 22/2016. (XII. 5.) AB decision. Thus, the scope of Hungarian constitutional identity remains wide. Nevertheless, it cannot be stated either that all achievements are elements of constitutional identity, although there is no clear way of narrowing things down other than case-by-case analysis. To date, no concrete, universally applicable test has been developed either by the Constitutional Court or in legal literature.

In conclusion, various characteristics can be designated in order to determine what an achievement of the historical constitution is, and thus to somewhat abate the pool of potential sources of the Hungarian constitutional identity. Achievements are not eternity clauses, but they are a narrower, selected part of the historical constitution, which are accepted as cornerstones of our constitutional system to this day but were also applied in previous ages of their existence. They mostly point to forward-looking legal principles, which withstood the test of time and cannot be altered by a single decision. So, as we can see, the process involves more than sifting through a millennium of constitutional rules and cherry picking, but at the same time, by definition, we cannot have an exhaustive list of achievements defined without case-by-case analysis of the same in the most current context that necessitates their examination.

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