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Márton SULYOK: Hungarian Footnotes for American Debates on Common Good Constitutionalism – Part II.

Constitutional Case-Law in the Land of (Missed) Opportunities

After the introduction laid out in my earlier post on Hungarian Footnotes to the US CGC debate regarding judicial interpretation and the common good, (here), in the following I will present some of the findings of a term search for the common good (‘közjó’) in the case-law database of the Hungarian Constitutional Court (AB) and the most recent commentary of the 100 most influential AB decisions in the past 30 years (published in Hungarian in 2021, jointly by the Hungarian Constitutional Court (Alkotmánybíróság, AB) and the Social Sciences Research Institute of the Hungarian Academy of Sciences, to which I had the pleasure to contribute as a co-author.)

As the reference to the common good appeared in the Hungarian constitution in 2012 (cf. the Specific Interpretation Clause and its context presented here), it made sense to limit the inquiry to the post-2012 AB case law. As it will be seen, explicit references to ‘the common good’ (as ‘közjó’) do not appear substantially and substantively in majority argumentation (The specific historical, cultural and political factors that might have led to this situation have been detailed here). Concurring and dissenting opinions as well as academic analyses of certain key decisions tend to rely on some or deeper explanations of the common good aspect.

(NB The brief context and fact patterns of the cases can be read in the full version of this paper due to be published in Harvard Journal of Law and Public Policy in this coming semester.)

A closer examination of the sample cases in light of the common good demonstrated that there are not in fact any guiding lines in the past ten years along which any (literal) “common good jurisprudence” could be constructed. Explicit references to the common good in the context of constitutional interpretation

  • are sporadic at best, turning up only once or twice every few years;
  • might only appear in scholarly interpretations or analyses of certain decisions in an attempt to shed light on some of the considerations that the AB did not explicitly put to paper;
  • surface in a variety of unconnected subject matters, ranging from freedom of information through consumer protection in the face of loan contracts to the acquisition of agricultural land and the right to property.

In light of this, I endeavor to identify points of convergence that may to some extent render certain patterns visible, which might – in the future – provide a basis for a Hungarian „common good jurisprudence”.

At first glance, the insignificance of the common good angle in shaping majority points of view of the AB is signaled by the fact that even at the beginning of the “reign” of the Specific Interpretation Clause (2012-2015), only two cases referred to it explicitly. One of these [21/2013 (VII.19.) AB] seems to allude to the role of the state, according to scholarly commentary,[1] regarding an argument that by assuring the broadest possible freedom of information the state definitely serves the common good.

2015 seems to mark the year when considerations of the common good made it to the level of majority decisions. In reference to what I have outlined so far here and above regarding scholarly contexts of the common good, 2/2015 (II.2.) AB makes reference to the state carrying out a public duty “in the interest of the common good, to protect the public interest” (see above). This formulation (i.e., the state protects the public interest in the interest of the common good) seems to be in somewhat of a contradiction with earlier scholarly determinations that the “common good” and the “public interest” are synonymous (cf. here) by clearly separating them and stating that protecting the public interest is necessary to realize the common good. The same decision mentions the role of the state, an angle that is picked up again in a 2016 decision.

In this 2016 decision [3091/2016 (V.12.) AB], a concurring opinion by Justice Ágnes Czine makes reference to the common good, by pointing to an approach in relation to the state’s Schutzpflicht (obligation to protect) of fundamental rights and its scope taken by the BVerfG, the German Federal Constitutional Court: “The decisions, representations, acts of the different levels of state decision-making brought in the name of citizens, fall under the obligation to protect fundamental rights, extending this obligation to all acts of state bodies and organizations, because this realizes the carrying out of such mandatory (public) duties that are intended to serve the common good. […] [T]he state takes charge of tasks entrusted to it for the benefit of individuals and is accountable to them.” (see: para. [72] of the Reasoning) The argument goes no further than this.

Another two years pass and the common good becomes relevant once again in scholarly commentary,[2] tied to a very controversial issue of Hungarian constitutional law, namely the standing and the right of public (state) organs to file constitutional complaints when their fundamental rights are violated [Act CLI of 2011 on the Constitutional Court, § 27 (2)-(3)].

In the case at hand [23/2018 (XII.28.) AB] a public organ ( more specifically the Hungarian National Bank, MNB) filed a constitutional complaint against a judicial decision and this raised many dogmatic problems (and some scholarly eyebrows along with these) in constitutional law, especially because

  • A constitutional complaint is an instrument specifically designed to offer protections for individuals and their organizations against state violations of their fundamental rights protected by the constitution; and
  • The complaint filed by the state organ in the case at hand was admitted for review and the AB annulled the challenged judicial decision of the Kúria.

The relevance of the common good to the interpretation of the law at hand is also touched upon in the above-cited scholarly commentary by Chronowski and Vincze dissecting the meaning of the Specific Interpretation Clause in a similar vein that was presented regarding its implications on judicial decision-making (here). As a reminder: in interpreting certain terms and the intent of the legislator, the Specific Interpretation Clause requires judges to presume (while interpreting a law or the constitution) that they have a purpose that (i) corresponds with common sense and the common good and (ii) is both moral and economical.

Conclusions: Hungary, The Land of (Missed) Opportunities?

Based on the elaboration of the different interpretive contexts of the common good as far as the definition goes in Hungarian scholarship (see: here), and based on the very few occurrences of explicit references to the common good in AB case law (summarized briefly above), especially in the context of the Specific Interpretation Clause, we can deduce that Hungarian constitutional jurisprudence does not provide fertile grounds for references to the common good in constitutional interpretation. In this sense, the argument could easily be made that contrary to the many well-ringing and sweet-sounding provisions of the Fundamental Law contextualizing indicators and elements of the common good, Hungary is the land of (missed) opportunities.

But why is this? In describing underlying factors shaping Hungarian judicial and constitutional interpretation (see: here), I argued that in general and gradually, the notion of the common good was gradually replaced primarily due to the appearance of capitalist structures and the dualism of public and private interests. We can find much more references to other elements of the Specific Interpretation Clause in AB case law, such as ‘common sense’ and ‘moral purposes’, at one point even humor [cf. 14/2019 (IV.17.) AB] appears as an interpretive excursion, but the ‘common good’ frame of reference is very scarce, as has been represented by the five examples found in 10 years of otherwise extensive case law.

Among the very rare substantive or substantial references of the common good, we can find only one, the last from 2022 (cf. above and below), which points to the fact that will most likely not be the AB that will take it upon itself to interpret the constitutional contexts of common good in protecting fundamental rights.

Thus, if Adrian Vermuele’s CGC approach is at any point to be considered in Hungary in judicial interpretation of the constitution on any level, this means that it might not at all become influential despite a specific constitutional reference to the common good, orienting judicial interpretation of the law and of the constitution. In this sense, this is certainly a missed opportunity.

Regardless, we need to be mindful that as an institution designed to protect the constitution, and if necessary, engage in its interpretation under standards defined by the General and Specific Interpretation Clauses, the AB may only engage in such interpretation that does not replace or result in lawmaking, encroaching upon the constitutionally reserved powers assigned to the legislator under the Fundamental Law. Ample case law reinforces this position since the very early years of the Hungarian constitutional jurisprudence, declared – among others – in a case regarding abortion regulation and the legal status of the fetus, to mention just one early example from the mid-1990s.

Most recently, the AB reiterated this stance once again, in 3083/2022 (II.25.) AB, when they declared that creating the balance between individual rights and the common good is typically not a question of constitutional law and therefore subject to adjudication by the AB. It is rather an issue of lawmaking to be handled by the legislator.

At this point, it seems relevant to mention what Casey and Vermuele (cited above) talk about, in terms of an “executive-led separation of powers above other ways of allocating authority”, which they consider advantageous from the point of view of CGC.

In Europe, in those countries that have adopted a parliamentary form of government, over time, an ‘executive-infused’ (if not -led) separation of powers became predominant (termed as ‘fusion of powers’), where actual executive and legislative functions are blended and bound to each other in many respects. In Hungary, this might eventually leave a bit of legroom for the government (headed by the Prime Minister) to influence lawmaking in the service of the common good and not miss an opportunity to do so, e.g. through instructing the ministries (the equivalents of U.S. departments) regarding what values to focus on when preparing regulatory concepts for laws to be adopted by the National Assembly that also help the government realize its working program and legislative agenda.

However, the draft legislative proposals (for Acts of Parliament to be adopted by the National Assembly) still have to go through the bodies of the elected legislature and be deliberated on more than once before being put to a closing vote in the plenary session. The elaboration of these procedural issues, however, is not pertinent to the subject matter of the article on some Hungarian aspects of the American CGC debates.

[1] Kerekes, Zsuzsa: 21/2013. (VII. 19.) AB határozat – a döntés-előkészítő adatok nyilvánossága. In: Gárdos-Orosz Fruzsina, Zakariás Kinga (eds.), Alkotmánybírósági gyakorlat. Az Alkotmánybíróság 100 elvi jelentőségű határozata (Társadalomtudományi Kutató, HVG-Orac 2021), 229-231.

[2] Chronowski, Nóra – Vincze Attila: 23/2018 (XII.28.) AB – Közhatalmi szerv alkotmányjogi panasza. In:  Gárdos-Orosz Fruzsina, Zakariás Kinga (eds.), Alkotmánybírósági gyakorlat. Az Alkotmánybíróság 100 elvi jelentőségű határozata (Társadalomtudományi Kutató, HVG-Orac 2021), 893-894.

Márton Sulyok JD, LLM, PhD is an Asst. Professor (Senior Lecturer) in Constitutional Law and Human Rights at the Institute of Public Law, University of Szeged in Hungary. JD (2007, Szeged), LLM in Anglo-Saxon Law and English Legal Translation (2012, Szeged), PhD in Law and Political Sciences (2017, Szeged). Certified as an American Legal Expert (since 2009) in a joint training program of the University of Toledo College of Law and the University of Szeged Faculty of Law and Political Sciences. Currently, Prof. Sulyok is the Head of the Public Law Center at Mathias Corvinus Collegium (MCC) in Budapest, Hungary. Previously, he sat on the Management Board of the EU Fundamental Rights Agency (Vienna, 2015-2020), and currently he represents MCC on the Board of Directors of the European Public Law Organization (Athens, Legraina, Greece).

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