Vol. 11 No. 2 (February 2001) pp. 83-86.

THE CONSTITUTION FOUND?: THE FIRST NINE YEARS OF THE HUNGARIAN CONSTITUTIONAL REVIEW OF FUNDAMENTAL HUMAN RIGHTS by Gabor Halmai (Editor). Budapest: Indok- Human Rights and Information Documentation Center, 2000. 441pp. No price listed. ISBN: 63-00-3359-3.

Reviewed by Spencer Zifcak, School of Law and Legal Studies, La Trobe University, Melbourne, Australia.

THE CONSTITUTION FOUND? contains the edited proceedings of a major conference held in Budapest in 1999 to assess the contribution of the first Constitutional Court of the Republic of Hungary. The Court has been a remarkable, radical one and this timely collection will enhance the knowledge and appreciation of readers in the U. S. and Europe concerning its very significant judicial activities and interventions. Gabor Halmai, formerly an adviser to the first President of the Court, edited the book. At present he is the Director of Fundamentum, the Hungarian Human Rights Documentation and Information Centre. The authors, both Hungarian and international, are leaders in both academic and professional spheres.

This review of the book, however, is necessarily a limited one. This is because only half of the articles have been translated into English, the other half being in Hungarian. This is a pity as a number of the Hungarian contributors are of considerable stature and judging by titles of their articles many would appear to be of very considerable interest. Without knowledge of the content of these contributions, a full assessment of book's significance and arguments cannot be made. Further, with one or two exceptions, the articles in English focus on specialist areas of the Court's work making it difficult, through these pages alone, to obtain a comprehensive and balanced picture of the Court's jurisprudence and impact. Nevertheless, the articles in English are in themselves educative and it is with them that the remainder of this review is concerned.

The question raised by the collection is made clear from the outset in Gabor Halmai's introduction. Halmai asks plainly whether the appointment of an entirely new second Constitutional Court will mean an end to constitutional activism in Hungary. The first Court ended its term in 1999. The Government then decided, contrary to the wishes of the Court's President and its members, to replace the entire bench. The second Court, then, is an entirely unknown quantity. The suspicion raised by some of the commentators in this book is that it has been chosen because it will be considerably less active and interventionist than its predecessor and consequently less of a thorn in the side of government and parliament. Halmai discusses three concerns in particular: that the new court may be less active; that it may be more literal; and that it may be more restrictive in its reading of its own jurisdiction and powers. He argues that a step in any one of these directions would be retrograde.

The first President of the Court, Laszlo Solyom, takes up these cudgels more

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forcefully and analytically in a lengthy contribution. Solyom has argued the case for his Court extensively and in many different forums before, most notably in his recent book CONSTITUTIONAL JUDICIARY IN A NEW DEMOCRACY (2000). Here he engages not only in a defense of his Court's work but issues direct warnings to his successors that too great a deviation from the path laid down in the first nine years may be destructive of Hungary's constitutional fabric. Solyom begins by restating the Court's major achievements. It gave preference to legal certainty over the uncertain dictates of transitional justice. It created a logically and morally founded hierarchy of human rights. It elaborated the right to human dignity to include a constitutional entitlement to equality and non-discrimination. It defined the powers of the President, executive, legislature and courts in a way that created a democratically appropriate and workable balance between them. It interpreted its jurisdiction broadly so that it could intervene constructively to introduce considerations of constitutional principle in early and sometimes bitter disputation concerning the shape and direction of Hungary's fledgling democracy.

Not everything came easily, however. The former President refers extensively to his battle to assert the Constitutional Court's authority and legitimacy in the face of attacks by the established judiciary. He canvasses important controversies that related to issues of justiciability and the enforceability of the Court's decisions. He candidly reverses his former view that the Court should be confined to abstract review and advocates the adoption of new powers to enable it to hear and determine individual human rights complaints. Also, he defends vigorously the Court's entitlement to order the parliament to rectify unconstitutional omissions.

No matter what one thinks of the substance of the arguments presented (and I am broadly in sympathy with them) this is on any account a remarkable and intelligent defense of judicial activism that bears reading by a much broader audience that that concerned simply with an assessment of the Hungarian Court's contribution to that nation's political and constitutional life. Solyom's message to the Court that followed is clear. Citing the admonition of the Apostle he reaffirms straightforwardly that "the letter kills, the spirit revives." To what extent, if any, there is a retreat from the spirit to the letter in the decisions of the new Court that now follows remains to be seen.

During his tenure, Justice Solyom made it clear frequently in both his judicial and extra-judicial writings that he wished to locate Hungarian constitutional and human rights jurisprudence firmly in the current of comparable international constitutional jurisprudence. It was in this way, he believed, that the Court's contribution could be insulated from the ebb and flow of political sentiment and partiality. A number of other articles in the book seek to elaborate upon this theme by situating the Hungarian Court's jurisprudence in the broader Western European and United States context.

Kim Scheppele's article provides a useful antidote to those who would seek too easily to transpose the Hungarian experience to the U. S. or vice versa. She argues persuasively that there are significant differences between the two countries and these differences must necessarily qualify any general statements of comparison. The Constitutions of the two countries are different, with fundamental rights being elaborated much more extensively in the

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Hungarian document that that of the U. S. In the U. S., constitutional review occurs only in the context of concrete cases. In Hungary, constitutional review is always abstract not having the fact-based quality of U. S. litigation. The Hungarian Court has developed a coherent conception of rights, their hierarchy and interrelationship. In the U. S. rights are elaborated one by one without any overarching theory of their interaction and interpretation. As a result of these differences, she concludes, the Hungarian Court has been far more willing and able than its U. S. counterpart to accord constitutional protection to fundamental human rights.

These difficulties with comparison become less pronounced when the work of the Hungarian court is placed in its European context. The similarity between the treaty obligations of European countries, their constitutional texts, and their interpretative methods are greater. A number of other articles in the collection situate the Court within these broader European currents. George Brunner argues that the Hungarian Court has interpreted the state's duty to protect fundamental rights in a manner similar to that of many other new, central European courts. It has accorded the greatest weight to the protection of civil and political rights, has next been concerned with respect for environmental rights and has been least interventionist in relation to economic and social rights. Catherine Dupre explores the Court's treatment and elaboration of the individual's right to human dignity. The right to human dignity, she observes, has founded a number of constitutionally protected entitlements not explicitly mentioned in the constitutional text such as a general right to self-determination, a right to fulfil one's personality and the right to create and maintain a private sphere of action. The Court's explication of human dignity, she demonstrates, owes much to preceding German constitutional jurisprudence in particular and to the values underlying "modern constitutionalism" more generally. Jeremy McBride compares the approaches adopted by the European Court of Human Rights and the Hungarian Court when considering whether or not to hold that certain restrictions on rights and freedoms are necessary. The tests of necessity adopted by the two Courts he concludes are similar not least because Strasbourg case law has clearly been influential in shaping attitudes to human rights protection throughout the national courts of Europe.

There is finally an extended contribution by Andras Bragyova, which analyses and theorises the Court's approach to constitutional equality and the consequential prohibition of discrimination. In a theoretical vein, he argues that discrimination will be constitutionally legitimate only if it is capable of impartial justification. The requirements of impartial justification will be fulfilled where the measure concerned has a constitutionally admissible purpose, the purpose is achieved by constitutional means, the distinctions adopted are necessary, and any distinctions adopted are applied consistently. Anyone interested in the application of the proportionality test in European jurisprudence should find the article illuminating although its language, whether owing to the complexity of the ideas or the translation, is at times somewhat turgid.

In conclusion, A CONSTITUTION FOUND? is a useful addition to the fledgling literature in English on the work of the first Constitutional Court of Hungary. As will have become apparent, however, its

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major drawback is that the articles in English tend all to be very supportive of the first Court's work. In none is there any significant critical evaluation of the Court's decisions or approach. I suspect that a number of the articles by the Hungarian authors including Janos Kis for example actually redress this balance. However, readers unable to read Hungarian unfortunately will be unable to tell.

REFERENCE:

Solyom, Lazlo and Georg Brunner. 2000. CONSTITUTIONAL JUDICIARY IN A NEW DEMOCRACY: THE HUNGARIAN CONSTITUTIONAL COURT. Ann Arbor: University of Michigan Press.