Vol. 10 No. 8 (August 2000) pp. 457-459.

CONSTITUTIONAL JUDICIARY IN A NEW DEMOCRACY: THE HUNGARIAN CONSTITUTIONAL COURT, by Laszlo Solyom and George Brunner. Ann Arbor: University of Michigan Press, 2000. 510 pp. Cloth $79.50.

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

For those with an academic or professional interest in the work of the new constitutional courts of Central Europe, this book will be indispensable. Written by the first President of the Hungarian Constitutional Court, Laszlo Solyom, in collaboration with Professor George Brunner from the University of Cologne, the book combines a detailed commentary on the work of the Hungarian Court with a selection of the reported judgments chosen from its first ten years. In and of themselves,
the publication of the translated judgments would be of major significance. When joined with the commentary, the book becomes a source document of very
great value indeed.

The Hungarian Constitutional Court was established following the Round Table discussions that took place in 1989 between representatives of the former communist regime and those of the then united democratic opposition. It was these discussions that facilitated the peaceful transition from autocracy to democracy in the country. Among the most important items considered at the Round Table was how to constitute an independent and effective constitutional judiciary. The existing judiciary could not be trusted to take the democratic project forward, being thoroughly compromised by its association with the communist regime. Some
new institution needed, therefore, to be created to act as the guardian of the amended, democratic constitution. Taking as their model the Constitutional Court of Germany, the opposition representatives, of which Laszlo Solyom was one, pressed the establishment of a Constitutional Court upon on their co-participants. As part of the wider post-communist constitutional settlement their demand in this regard prevailed. The first five members of the new Court were appointed shortly thereafter, and it began its work in earnest in early 1990.

From the outset, the Court received a deluge of applications for constitutional review. This deluge was the product of the ACTIO POPULARIS that permitted any person to bring forth a request for constitutional review on any matter without restrictions as to interest or standing. Further, constitutional review was abstract rather than concrete. In other words, it did not require a concrete case to be litigated before the court. A simple petition requesting the Court to accord specific meaning to some provision of the Constitution, whether lodged by the president, parliament, politicians or private citizens, was sufficient to attract its jurisdiction
and attention. The effect, as George Brunner observes in his clear and comprehensive outline of the procedural aspects of the Court's functioning, was to enable the Court, in the early stages of the new democracy, "to review almost the entire legal order for unconstitutionality and to establish guiding standards for the Hungarian constitutional state."

From the outset the speed and scale of the Court's work was quite breathtaking. Complex and contentious

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matters that, under normal United States and European legal conditions, would take many years to percolate up through successive levels of appeal and many more, through painstaking judicial deliberation, to be resolved, arrived at the Hungarian Court one after the other in rapid succession. An inexperienced Court, therefore, faced the full sweep of constitutional decision-making very early in its tenure. The twenty-seven cases published here for the first time in English give some indication of the Courts' approach and reasoning. Former Justice Solyom's extended commentary on the work of the Court offers further, insightful and first-hand accounts of the context and politics within which this decision-making took place.

It is unsurprising that the first few years of the Court's term should have been preoccupied with issues concerning human rights and regime transition. The Court approached the first of these tasks with a system and rigor that was deeply impressive. It sought from the beginning to establish a hierarchy of rights that would allow it to build a cohesive framework in which separate rights could be accorded their individual scope and weight and in which hard cases that required one right to be weighed in the balance against another might reasonably be resolved. The individual's rights to life and human dignity formed the centerpiece of this schema.
Upon their elaboration, decisions upon abortion, capital punishment and the entitlement to a healthy environment were based. From that foundation, new
understandings of closely related rights such as freedom of thought, religion, speech, information and the protection of privacy were derived. Similarly, from the right to property, the Court sought resolve difficult cases concerning nationalization, restitution, compensation, protection of social insurance and the provision of minimum levels of social security. The key cases with respect to all of these issues are reported here and Western observers from the Hungarian Court's reasoning can learn much.

The highly political questions arising from the transition from communism democracy constituted the second major thread in the Court's initial work. On what basis, for example, should property confiscated by the former regime be restored to its former owners? And how should those whose property or other assets that could not be returned be compensated? Two major cases concerning these questions are extracted here and the former President's observations on the difficulties associated with their resolution make clear both the political complexity of the task and the necessity for continuing judicial revision and refinement in response to
changing economic and social circumstance. Reported here too are the critical cases in which the Court was required to determine how those implicated in the crimes of the former regime should be dealt with in accordance with new, democratically founded understandings of the rule of law. In his commentary Solyom identifies two competing approaches to the question:

"There were two ways in which system change could be adhered to: on the one hand, a rather value-neutral formalistic approach might have been adopted, emphasizing procedural guarantees, legal continuity and, above all, legal certainty; and on the other hand there was substantive justice, allowing exceptions to formal guarantees of rights under exceptional circumstances and emphasizing a total break with prior law" (p. 38).

The Hungarian Court lent towards the former and in doing so made decisions that upset many who wished former

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communist officials to be brought immediately to trial for their crimes and misdemeanors. The Court was willing to countenance such criticism in the interests of ensuring, among other things, that no one should be tried or penalized for activities that, when undertaken, did not constitute an offense against then existing law.

There were other important areas too, in which the Court faced formidable challenges. In its early years it was required to rule on the proper constitutional interrelationship between the principal institutions of state. In this regard, it produced important decisions on presidential power, judicial independence, the status of referenda and the entitlement of citizens to seek judicial review of administrative action. Somewhat later, it embarked on a consideration of the nature and justiciability of constitutional economic and social rights. In this contested terrain the Court appeared sometimes to lose its way with judges in constant disagreement. However, here again, this should not surprise, as this is terrain which few courts anywhere in the western world have had to traverse. Consequently, from the Hungarian Court's experience in this regard, judges and lawyers everywhere can learn much.

A careful reading of both case law and commentary yields further illuminating insights into the nature of constitutional interpretation, the place of comparative jurisprudence, the role of value and principle in the resolution of hard cases and the place and appropriateness of judicial activism. In his latter regard there has been an unfortunate trend in some recent constitutional commentary to argue that judicial activism should not be countenanced, that it is by its nature anti-democratic. In his commentary former Justice Solyom argues persuasively that the merits and demerits of this argument need to be considered contextually and that, in the specific context of Hungarian system change, the activism of the Hungarian Court was a necessary counterbalance to wider anti-democratic forces that existed in government, parliament and society.

Such criticisms as I have are minor. Some very important cases that are dealt with in the commentaries are not reported in the text. Further, in some cases that are reported, significant dissenting opinions have not been included. At times, the commentaries can read like an extensive defense of the Court's first term against those in government and the press who, in the aftermath of that term, were successful in removing all the initial judges and replacing them with others who may yet prove more pliant in the face of governmental criticism.

However, taken overall this book stands nevertheless as the primary and most valuable source concerning the work of the Hungarian Constitutional Court presently available in English. It cannot be more highly recommended to scholars in law and political science with an interest not only in this Court but also in constitutional courts more generally.