Ladies and Gentlemen!
Distinguished Colleagues!

In many countries of Europe, 2009 has been an anniversary year, and in years to come the democratic changes of 20 years ago will be remembered in a great many places. The reason for the current wave of anniversary commemorations is not only the  better vantage point that we now have when looking back on the past two decades of history than say, ten years ago, but also the fact that 20 years is almost a generation’s worth of time. In that time, a generation that did not actually experience the regime change has grown to adulthood. This generation cannot understand the attitude and feelings of its older compatriots and will eventually come forward with its own personal interpretation. Meanwhile, that older generation is hard at work to establish a canon, an essential image of the regime change that posterity will revise, albeit slowly.

The question, after 20 years is – to whom does the past belong? Perhaps our international guests can garner an idea of what I mean if I point out that Hungary held major commemorations of various highlights of the change – ranging from the dismantling of the Iron Curtain to the opening of the border to the East Germans – emphasizing the merits of the predecessor to the currently governing Socialist party at some, and of civil society and the opposition at others. This is more than a personality issue – or a question of the illustrious or not so illustrious roles played by Hungarian Foreign Minister Gyula Horn, Prime Minister Miklós Németh, German Chancellor Kohl, Soviet Premier Mikhail Gorbachev, Poland’s Lech Walesa, or British Prime Minister Margaret Thatcher.

The matter of principle, the really decisive question that we in Hungary ask each other is the issue of continuity. Was the regime change really a fundamental turning point, a true revolution despite the peaceful and objective course of events? Whose objectives were met twenty years ago? Emotionally speaking, the honour of the regime change is at stake.  Even if we approach it objectively, the stakes are the underpinnings of the new regime, the principles on which it is founded, and their accountability and practical consequences. These questions all touch on the essence of the Constitution and the Constitutional Court.

The reform communists claim that the current state, governed by rule of law, evolved from their reforms. And, of course, that there is a continuity between the two systems. The opposition cites the Roundtable Negotiations and the minutes of the Political Committee of the Hungarian Socialist Workers’ Party to prove that the socialists had not wanted to move as far as the actual fault line and had wanted to retain the leading role of the party. The opposition of the era forced a true regime change to come about. This dispute is currently underway amidst a social atmosphere in which a broad segment of the public is charging that the reason behind their current poor economic and social situations is that there never was a real regime change. And the current situation is truly one in which there is a huge gap between reality and the opportunities offered by the regime change and in which there has been a downturn not only in the economy but in rule of law as well.

Ladies and Gentlemen!

How come the Constitutional Court has been left out of this dispute? How come it has been left out, knowing that the story leading to the establishment of the Constitutional Court and its rulings and statements of principle regarding this very issue could turn it into the key witness; the Key Witness against the continuity argument.

The socialist proposal for a constitutional court is common knowledge. That proposal would not have brought about a true high court, for their constitutional court would not have been empowered to reject laws, only lower level legal rulings. They also aspired to retain power over the court by having organizations under the party’s influence appoint the constitutional court justices and parliament appoint the court president prior to free elections. It was the opposition that insisted that the court receive the authority making it a real Constitutional Court, the right to reject laws just as it insisted on the rules allowing greater independence in choosing the justices and the court president.

In fact, the Constitutional Court itself has repeatedly taken the position that there is no continuity between the two regimes, doing so at the time when the fundamental practical issues of the regime change depended on their rulings, and not over concern about what the national memory will comprise. The Constitutional Court has repeatedly confirmed that there was no rule of law in Hungary prior to the regime change and that the constitutionality of earlier laws had to be measured against the new Constitution. In fact, the Constitutional Court very recently had to deal with this matter, when it clearly declared that the order of values of the 1956 revolution was the foundation of the Republic of Hungary – which again contradicted the argument of relativity that alleges the absence of an absolute break between the 1956 revolution and the Kádár regime, and between that regime and today’s democratic country, governed by rule of law.

Of course, today’s disputes regarding the interpretation of Hungary’s regime change, the canon, and ownership of the past are just one consideration on this, the twentieth anniversary of our Constitution. But, whether the Constitutional Court has a place in that history, and what that place will be is very important indeed. Will we see a consolidation, a finalization of the achievements allowing Hungary – as a result of Constitutional Court decisions – to become a true member of the European community of values and to contribute to that community with its own higher level demands?

As once – to put it in Tocqueville’s words – the extraordinary power of the American judge remained hidden from the public behind the concrete cases, in Hungary only some Constitutional Court rulings reach the perception threshold of the political class and the media, and their responses are in line with the direct political benefit or cost of the decision. At the same time, the role of the Constitutional Court in shaping the legislative system ever since the regime change is almost invisible, as we will realize when looking at the writings on recent history we are beginning to see, the commemorations of the past 20 years. Actually, they would do well to cite international studies that have noticed and recognize the performance of our Constitutional Court, and have also pointed out that the Constitutional Court played the dominant role in the regime changes of Hungary and South Africa, while elsewhere the parliament, the president or the military were more important.

Ladies and Gentlemen!

We are of course well aware of the relationship between the three generations of European constitutional courts through the three major democratic changes of the post-1945 era. The German and Italian high courts came first, followed 20 years later by the Spanish and Portuguese ones and another 20 years later, by the constitutional courts of the former socialist countries. Each was established following the collapse of totalitarian regimes. None came about because of popular demand. Instead, each was born of the mistrust in institutions of majority representation that had discredited themselves. The attitudes and security of these high courts were nurtured by their identification with the regime changes. We should remember that it was the momentum of the initial period that raised the German Federal Constitutional Court above the other specialized federal courts, when it established the institution of the complaint on constitutional grounds. The Hungarian Constitutional Court was fuelled by the powerful ambition of the initial years, when in a period of five years it aspired to interpret the entire constitution, meaning every single component, and when it set the method of interpretation and the content of the various rights into regulations of principle. Throughout the world, the 1990s were a decade of constitutional court prowess and a march of triumph for the high courts. As the democratic transitions were taking place in Europe and elsewhere, the common backdrop was the successful human rights movement that had been underway since the 1950s, sometimes demanding natural rights, and sometimes other rights, but always with its well-founded moral demands.

The often tempestuous histories of some new constitutional courts, in interaction with the evolvement of the character of the new regimes – such as suspension of the Russian Constitutional Court, clipping the authorities of the Constitutional Court of Kyrgyzstan, and the resignation of the entire Constitutional Court of Belarus – have become part of the past. Another part of the past is the period of democratic transition in the strict sense of the term. Constitutional Courts ruled on the unavoidable matters related to the regime changes everywhere, such as what to do with private property nationalized in the past, retroactive criminal laws related to the political crimes of the former regimes, and the issue of lustration. However, the performance of the high courts, acting in keeping with their talent and opportunities to build up the tools to protect liberties and legal security, was not of the past. Their contribution to the letter of public law and the culture of the rule of law is not of the past. And their organization into an international network and their adoption of a common constitutional tradition and dissemination throughout Europe is very much of the present.

In the meantime, it has also become clear that some of the major dilemmas related to regime change really are eternal practical issues related to protecting fundamental liberties. In the first decades, the constitutional courts grappled with the question of whether exceptional historical circumstances (the regime change itself) could justify the setting aside of basic constitutional guarantees, for instance, could it ignore the statute of limitations on crimes. However, today’s politics is making the same demands today in the fight to combat terrorism that it made before the changes, for instance during the time of the Rote Armee Fraktion. And preventive data collection is not at all an easier question than the political crimes of the communists were. Similarly, the conflict between justice and formal legal security was not only a constant issue during the regime change, just as the boundaries between individual liberties and protection of the interests of the political community have been a constant topic. In the new democracies it appeared particularly difficult to strike a balance between political liberties including the rights to freedom of expression, association and assembly with the demand that they be as extensive as possible following years of oppression, and the “self-defence” of democracy (wehrhafte Demokratie, also known as Militant Democracy, a term coined in 1937).

Ladies and Gentlemen!

Twenty years ago, many constitutional courts found themselves with common problems as the regimes of their countries changed. In today’s Europe, the common problem appears to be the exercise of certain components of national sovereignty within the integrated European Union, and the relationship to European law. How many constitutional courts have had to rule on the Lisbon Treaty?! Is Wie lange noch continuing as contest between protection of common European liberties and national defences. Dialogue with the European Court, however, has contributed to evolving and reinforcing the fundamental liberties of the community. With the Charter of Fundamental Rights entering into force it is obvious that the public power actions of the European Union are under the same stringent, polished and reliably tight controls as the ones that operate in the member states. In fact, the Charter protects many rights that are not included among the basic liberties of all member states. There can be two advantages to this. On the one hand, obstacles to intensifying the integration in the area of penal law will be overcome, for it is easy to see that without indubitable EU protections of basic rights, penal law integration would keep the national constitutional courts busy continuously, and that would create uncertainty. This point is reflected in the fact that the most important achievement of cooperation in penal law, the European arrest warrant and the issues related to it have been taken up for scrutiny by many constitutional courts, including Hungary’s. At the same time, European court practices based on the Charter of Fundamental Rights can become part of the common process of European constitutional court procedure as a permanent partner of equal standing. This precludes even accidentally evaluating the relationship between the national constitutional courts and European law as conflicting.

Ten years ago it was already possible to clearly describe the trend in which the Hungarian Constitutional Court began attempting to tame its sanctions against unconstitutional actions for instead of immediately nullifying laws, it began to offer to cooperate with the legislature. The move is of course, Kelsenian and a rational move on the part of a court that is responsible for an abstract control of norms. In fact, it has evolved a rich, interactive network of tools. At this time I an choosing to comment on the “career” of the constitutional violation incurred only because of the legislature’s neglect. Ten years ago the Constitutional Court had reached the point in which it could charge that a “constitutional violation incurred because of the legislature’s neglect in any case, including when a law was adopted but it was a poor one. If there was disagreement within the Court, a good compromise was to declare a minimum of “legislative failure.” The career of the unconstitutional failure has continued on the high court to this day although the quantitative aspect has changed. What is worrisome is that parliament has not proved to be a partner in cooperation. In other words, it has been in no hurry to make up for its failures within the deadline set by the Constitutional Court. Legislative failures are accumulating. Some are several years old and often they affect basic issues of democracy.

In other words, it is not a good idea for a Constitutional Court to easily put aside its most powerful sanction, the one that is the essence of its existence – the right to nullify a law. This tool is able to truly force parliament to legislate, and in this case the Constitutional Court can set the constitutional requirements for the new law. Nullifying a law does not contradict the issue of cooperation with parliament, or the “constitutional compromise” so strongly approved by international literature. For there to be a compromise, both sides have to offer something. In the early days of its operation, when the Constitutional Court nullified a law, the same law was returned to the high court several times, until a constitutionally acceptable version evolved.

Ladies and Gentlemen!

Ten years ago, its relationship with lower courts was an important Constitutional Court issue as was retaining its monopoly on the final interpretation of the constitution. Since then, the Constitutional Court has issued a decision declaring that the Supreme Court has the authority to investigate decisions for compliance with the law. The courts have accepted this and the issue has been settled.

Today, I would like to call it to your attention that the circle of constitution interpreters, whose interpretation can have the power of establishing norms in practice, has become wider. Sadly, the constitution has not become a more integral part of the arguments offered in the lower courts. However, not surprisingly, the body of ombudsman recommendations is growing and becoming more serious in more ways than one. Although the recommendations of the parliamentary commissioners (ombudsmen) are not mandatory, if they are thoroughly elaborated they can operate as “soft law.” They provide the concrete cases missing from Constitutional Court rulings. When preparing the recommendations they prepare satisfactory generalizations to go with their case-law opinions. In addition, the ombudsmen actually read the decisions of the Constitutional Court. It would lead to fruitful cooperation – perhaps it would even be sufficient – if just the reading were mutual. Hungarian constitutional law would certainly be a winner.

At the same time, we need to realize that the monopoly in interpretation of the constitution is not merely a power issue. The entity providing the final interpretation must bear the burden of the unambiguity and clarity of the system. This requires conscious sustenance of the aspiration existing from the very beginning, that when the Constitutional Court writes a ruling it is composing rules for the entire legal community. In other words, whenever possible, it must not simply state that decisions should be made on a case-by-case basis, depending on the given circumstances.  It can state this – but it also has to set the criteria.

Ladies and Gentlemen!

Self-reflection has been part of Constitutional Court activity for the past 20 years. Constitutional Court justices have analyzed many matters of detail in their publications, and they have also prepared comprehensive reviews. I am happy to see that one such work has seen the light of day at the end of the second decade. This time it is not the writing of a high court justice but of a scientific staff member of the court, Gábor Attila Tóth. The reason I am citing the book here is because its leading thesis is that the constitution has a moral nature. And I believe that the Hungarian Constitutional Court has, to date operated on the basis of this moral plane, which is the reason for its success. I also believe that the key to the future of Hungarian Constitutional Court decision-making is to retain this attitude.

Ladies and Gentlemen!

A generation is sufficient time to prevent the over-evaluation of the positive or negative features of one or another year and to learn to trust time and realize that if we maintain the fundaments we have nothing to fear.  The Constitutional Court has fulfilled its calling and continues to do so. Its work has made it obvious that the Constitution has definite and practical value and that the stipulations in it make up a system which of itself is a value. When, as president of this country, I spoke out in crisis situations, I knew what I was relying on when I said that sustaining the Constitution and fundamental liberties are the final refuge and guarantee. The Constitutional Court has made it tangible to all as well as certain that there is a common basic norm on the grounds of which the Republic of Hungary will be able to freely continue to live its rich and diverse heritage within the framework of a state, In other words, we will be able to enjoy and sustain our character as a Hungarian nation as well as our individual human dignity. The structure, the “constitution” is firm and solid. Sustaining it is a huge responsibility that requires legal and emotional maturity to bear.