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15 May 2020

Sovereignty, Constitutional Identity and European Law

"The complex relationships between law and politics have undergone quite remarkable changes over the past few decades. Commentators and researchers have been particularly alerted to the twin phenomena of the politicisation of law and the legalisation of politics. During periods of constitutional legislative effort, the correlation between law and politics is thrust even further into the foreground. Constitutional lawyers and political scientists unanimously agree that erecting a constitution is, eminently, a political issue."

 

The complex relationships between law and politics have undergone quite remarkable changes over the past few decades. Commentators and researchers have been particularly alerted to the twin phenomena of the politicisation of law and the legalisation of politics. During periods of constitutional legislative effort, the correlation between law and politics is thrust even further into the foreground. Constitutional lawyers and political scientists unanimously agree that erecting a constitution is, eminently, a political issue. In this study, I undertake to answer a number of interconnected questions: do we need a constitution marked by national identity, or would a neutral constitution suffice? What are the points of intersection between our Fundamental Law and our national identity? What is the constitutional significance of national identity in this day and age? What role does it play in the conflict between European law and national sovereignty?

  

CONSTITUTIONS AND IDENTITIES

 

A thorough understanding of Hungary’s current constitutional situation should begin with an overview of “constitutional order” in our country during the Communist years. We must then follow by examining the development of constitutional law after the democratic turn. Finally, we will need to look at the new features that enriched our constitutional system upon the adoption of our Fundamental Law.

For centuries, Hungary’s constitution remained an unwritten one, based on common law and certain so-called “cardinal acts”. Formally, these were quite ordinary laws, yet considered to be of the utmost importance from the overall perspective of Hungary’s legal system and tradition.

In the shadow of Soviet occupation in the wake of the Second World War, the Hungarian Workers’ Party consolidated its iron-fisted hold over the entire country, adopting, in August 1949, the country’s first written constitution on the model of the 1936 Soviet constitution. This Constitution introduced a “social order” and “catalogue of values” tailored to suit the Communist conception of the state, the latter obviously informed by Marxist-Leninist ideology. “The armed forces of the great Soviet Union liberated our country from the yoke of German Fascism, and crushed the anti-democratic state power held by landowners and industrialists…” So began the preamble of the 1949 Constitution before entering a lengthy description of the struggle of the working class for Communism. Hungary had been turned into a “people’s republic”, in which all state power was vested with “workers and working peasants”. The Constitution made the life of the economy subject to planning by the people’s state, in science pledged support only “for scientific endeavours serving the cause of the working people”, and the list goes on.

The amendment adopted at the democratic turn, promulgated in the 23 October 1989 issue of the Hungarian Bulletin, purged the former Constitution of Communist dogma to the extent that the new text hardly contained a provision, if any, that had remained unchanged from the original 1949 document.

At the time, the constituent legislators saw the constitution mainly as a means of providing the democratic transition with a legal framework. As such, it accorded a central role to the protection of fundamental rights and to the putting in place of an institutional background capable of supporting the operation of a democratic state based on a multi-party system.

This constitution represented a constitutional identity that was politically neutral. It did not articulate any well-defined symbolic or social values, and was entirely devoid of historical perspective. Not that this approach was anything to be surprised at. In fact, the neutrality of the constitution seemed a downright virtue after decades of Communism when its predecessor text had suffered under a massive ideological burden.

Two decades later, the new legislature formed in the wake of the 2010 general elections – what has become known to Hungarians as the “Revolution in the Polling Booths” – brought along the most radical transformation of the Hungarian legal system since the democratic turn. Indeed, in certain circles there was a concern, before the enactment of the new Fundamental Law, that the constituent legislators might be thinking of declaring Hungary’s historical Holy Crown to be the wellhead of supreme power. The Fundamental Law, however, remained firmly planted in the soil of popular sovereignty and the rule of law of a constitutional democracy. Yet certain major changes had been made on the constitutional level with implications for national identity. On the one hand, the legislature clearly broke with the former approach of favouring political neutrality. On the other hand, it effectively rehabilitated the country’s historical constitution. Ultimately, what this multi-faceted affirmation of values accomplished was to create a normative foundation upon which a constitutional identity could be built.

 

NATIONAL CONSCIOUSNESS AND FUNDAMENTAL LAW

 

The legislators behind the Fundamental Law held that the constitution of a country was more than a corpus of nationwide articles of organisation and operation, and it had to be a document expressing and affirming a sense of identity.

This ambition is reflected from the start, by the Preamble known as the National Avowal, in which the constituent lawmakers attempt in the name of the entire nation, no less – to take tally of the major turning points of Hungarian history, landmarks of heritage, and other values cementing the members of the nation together.

Without pretence to completion, the list includes Hungarian language and culture; Christianity; the geographical location where we live; our commitment to freedom; and our shared responsibility for Hungarian minorities abroad. Thus, in the spirit of the National Avowal, “[w]e commit to promoting and safeguarding our heritage, our unique language, Hungarian culture, the languages and cultures of nationalities living in Hungary, along with all man-made and natural assets of the Carpathian Basin. We bear responsibility for our descendants; therefore, we shall protect the living conditions of future generations by making prudent use of our material, intellectual and natural resources.” Furthermore, “[w]e hold that the family and the nation constitute the principal framework of our coexistence […].”

These values, like several others, are echoed faithfully in many particular provisions of the Fundamental Law. Among them, Article H) paragraph (2) declares that “Hungary shall protect the Hungarian language”. Article L) paragraph (1) defines the notion of “family” and provides for its protection: “Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision, and the family as the basis of the survival of the nation. Family ties shall be based on marriage and/or the relationship between parents and children.”

The Fundamental Law thus embodies and nourishes a sort of national consciousness. However, the options available for protecting this national consciousness are limited – by nature and legally as well. The most important constraint is that national consciousness, understood as the awareness of belonging to a nation (which is in essence none other than the intersection of our sense of political community and of an ethno-linguistic community), and specifically the sentiment of identifying with factors fusing the discrete members of the nation together and with the values embodied in the nation – that all these things constitute an interior, mental construct. As such, this construct remains beyond the direct reach of law. This is a natural limitation, and one that is confirmed by the Fundamental Law in an express provision when it declares, under Article VII) paragraph (1), that everyone has the right to freedom of thought. Furthermore, explicit considerations of national identity are also subject to limitations in education, particularly higher education, the institutions of which are regarded as “autonomous in terms of the content and the methods of research and teaching” under Article X) paragraph (3) of the Fundamental Law.

Having said that, there are certain constitutional means available to bolster and safeguard national consciousness. On the one hand, looking at the proactive options, elementary and secondary education organised by the state provides an opportunity for introducing curricula, classes, and various educational tools geared toward awakening and strengthening national consciousness. On the other hand, from the negative perspective of having to defend that consciousness against external attacks, Article IX) paragraph (5) of the Fundamental Law prohibits the exercise of the freedom of speech from violating the dignity of any nation or nationality, including the Hungarian, and vests individuals belonging to the community of the Hungarian nation with the right, within limits stipulated by law, to go to court to enforce their claims against expressions offending the community or violating their dignity.

  

NATIONAL IDENTITY IN THE EUROPEAN UNION


Compared to the “national consciousness” discussed above, what we call “national identity” is somewhat more tangible as a legal concept. Before an in-depth examination of the issues surrounding national constitutional identity, it is instructive to take a glance at the ways in which the sovereignty of member states is or is not upheld within the European Union. Indeed, the issue of constitutional identity seems particularly timely now as it is intimately related to the sovereignties of individual member states.

Nowadays, the EU is perched on the cusp that separates a legal community from autonomous statehood. It has reached a mass critical enough for it to begin provoking member states to actually demarcate the boundaries of their own sovereignty. The legal system of the EU has become intertwined with that of Hungary, and the threads connecting the two are gradually multiplying as we speak. The perception that we need to broaden this interconnectedness the “integrist” idea makes it incumbent, from the frequently misunderstood and miscontextualised, but nevertheless objectively vital, “sovereigntist” perspective, upon individual member states to redefine how they and their own constitutions are to be positioned relative to the European Union.1

Essentially, the EU is erected on the supremacy of Union-wide law. In practice, this supremacy is based on principles of legal interpretation and practice (such as effet utile, the pre-eminence of community law, the directness of effect and application) derived from the case law of the European Court of Justice (ECJ).2 These rules and principles have all contributed to the ability of the EU to define its own law (and therefore the outlines of its own self) vis-à-vis the laws of member states.3

In this connection, the ECJ proclaimed that member states were not permitted to cite their own constitutional arrangements to justify selective or discriminative applications of Union law.

Yet community law is subject to certain self-imposed restrictions. A major new one was introduced by the Treaty of Lisbon which, of all community documents, had woven the fabric of European integration tighter than ever before. As amended by the Treaty of Lisbon, Article 4 (2) of the Treaty on European Union (TEU) unambiguously allows for an untouchable legal core that each member state is entitled to preserve as part of its sovereignty:

The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

So how is national identity related to constitutional identity? Some argue that the notion of national identity is broader and more political than legal in its essential content, as clearly indicated by the fact that debates in member states over national identity are predominantly political in nature. Others hasten to point out that the concept of national identity assumes legal characteristics over time as it becomes embodied in that of constitutional identity, which is itself a fundamental concept of community law. Of course, the political and constitutional structures safeguarded by the TEU as part of national identity rest upon the institutions and regulations forming that “untouchable” core of individual constitutional identities.4

As jurists researching the subject discovered years ago, one of the most pressing dilemmas of our age has come to revolve around the question of which agency, the ECJ or the court of a given member state should have the competence to decide, in any given context and at any given moment, how to construe the meaning and substance of constitutional identity. From the point of view of supranationalism/ integrism, these powers should rest with the ECJ as the ultimate authority with the privilege to interpret the TEU. Looking at the same dilemma from the other side, it seems equally self-evident that, in the context of Union law versus domestic law, this interpretive competence belongs to the constitutional courts of individual member states. This latter view stands to reason considering that, firstly, member states are granted safeguards for the protection of their own constitutional systems under Article 4 (2)5

and, secondly, simply because the constitutional court of a member state is the authentic, best qualified interpreter of the constitution of that same member state. The stakes involved are far from low, since it is precisely how we construe the notion of national/constitutional identity that will draw the line between the supremacy of Union law and that core of autonomy that the member state is allowed to retain as part of its overall sovereignty. The problem has been addressed by a number of European constitutional courts or their equivalent on the national level, in what is known as the Lisbon Resolutions.

 

THE UNFOLDING OF CONSTITUTIONAL IDENTITY

 

But what really is constitutional identity? How is it to be interpreted by a constitutional court if given a chance? Theoretically, the interpretation of constitutional identity can be approached from several angles. We may focus on our own constitution alone, or compare it with those of other nations. We may stick to the letter of the constitution, or take extratextual factors into consideration. Furthermore, we may choose to scrutinise the current state of our constitution in isolation or also in its broader historical dimensions.

A good example for the comparative approach is the French school of thought, which grasps constitutional identity in the simplest terms, practically defining it by virtue of its uniqueness. According to this view, “[w]e must regard as a feature of constitutional self-identity everything that is essential and has the capacity of distinguishing one country from another”.6

These distinctive features may be legal or even cultural in nature.

If we use the text of the constitution as our vantage point, we will obviously conceive of constitutional identity as a legal identity. Any motif in the text of the constitution may serve as a vehicle of legal identity, although the specific layers of that text may vary in terms of weight and purport. The most pertinent example is perhaps the type of constitutional provision known as an eternity clause, which enacts an entrenched restriction ruling out amendments to the constitution itself.

A case in point that most readily comes to mind is Article 79 paragraph (3) of Germany’s Grundgesetz, which declares two of its own provisions immutable by and immune to any ordinary amendment. These are Article 1, which sets forth the inviolability of human dignity and the principle that human rights must be applied directly in any law to be enacted; and Article 20, which articulates fundamental principles for the state to safeguard democracy, the republic, social responsibility, federalism, and the right of resistance in case of any attempt to overturn this order.

Eternity clauses are closely linked to the problem of constitutional identity in that they are destined to ensure the survival of a previous identity, preventing the system from being stripped of attributes in the absence of which it would be transformed into something entirely different. By ruling out the possibility for anyone to alter the fruit of their work in the future, legislators in essence furnish a guarantee of upholding the current identity in the face of a potentially emerging new identity which they reject.
7

The picture becomes more subtly differentiated the moment we broaden our exploration of constitutional identity beyond the text of the constitution, to involve extratextual factors as well. Here, once again, the role of constitutional culture comes to the fore. The relationships between the text of the constitution and constitutional culture may operate in different directions but will inevitably imply a complex set of correlations.

Constitutional law stems from constitutional culture and reacts back upon that culture in turn. If everything goes well, the codified rules and principles will be duly echoed in the practices and culture of the political community. If a country’s constitution virtually consists of common law rather than being written down, this may suggest that whatever exists constitutionally exists by necessity. In other words, constitutional identity is already in place, “waiting to be discovered”, as it were. Conversely, constitutional identity – whether set down in a text or in common law – may harbour certain ambitions that expressly and intentionally oppose the prevailing social environment. Albeit the text of the constitution may envision a desirable constitutional identity to be attained in an ideal world, this is bound to remain a message of salvation cried in the wilderness if it fails to find expression in the practices followed by the constitutional community. For instance, the core thought behind the Constitution of the Republic of Turkey reflected the secular vision of its founder Kemal Atatürk, but the written provisions never completely succeeded in capturing the true constitutional identity of the entire political community.8

The quest for constitutional identity becomes even more picturesque if we bring in a historical dimension. The constitutional identity of a member state is not something created in a blink of the eye isolated in time. As Zsuzsa Szakály put it, “[i]t therefore goes without saying that the historical perspective can be very helpful for a national constitutional court in deciding what to consider to be of crucial significance for its constitutional identity that is, toward a self-reflexive ‘soul-searching’ concentrating on organic constitutional evolution”.9 The identity represented by the written constitution of the present or indeed any other given period can be cast in a rather different light by past experiences of the political community. As Jacobsohn puts it, what we are is defined to a great extent by the battles of our past, the memory of which continues to linger when a new constitutional attempt is launched, even if that attempt happens to be incorporated in an apparently self-consistent document.10

A historical perspective lends a greater sense of continuity to certain constitutional institutions and underlines the power of the state to uphold and preserve the nation. If we are to properly understand the significance of this historical dimension for the specific case of Hungary, we cannot do without the notion of the “historical constitution”, nor without what that notion meant back then and what it means today.

In the words of Ferenc Deák, “[o]ur constitution is a historical one, in that it was not created in one fell swoop but rather evolved from the life of the nation through a course of adaptation to the needs of the nation and the standards of the age […], undergoing various changes from time to time in both form and substance”.11 In this way, Hungary’s historical constitution is a real, living organism evolving before our eyes, while obviously being called upon to provide the community with a sense of relative stability from generation to generation: “This Hungarian constitution of ours, which has grown gradually from the life of the nation, we have received from our forebears as an heirloom work of the centuries, and it is incumbent upon us to hand it down to our offspring preserving it in a form as unaltered as possible; as it is our duty to provide for safeguards spreading beyond the lifespan of the one mortal soul, which shall, like a solid foundation of law, remain steadfast as it passes from heir to heir.”12

Even though the constitution of Hungary has been of the charter type since 1949, these days the historical point of view has been recognised and incorporated as well. In harmony with Deák’s idea, the National Avowal proclaims that “[w]e honour the achievements of our historical constitution and we honour the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation.” Moreover, a particular clause of the Fundamental Law accords a more specific role to our historical constitution in Article R) paragraph (3), where it declares that “[t]he provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal contained therein and the achievements of our historical constitution”.

The Deákean tradition speaks of the constitution as a document with the power to forge identity. If we have seen the former constitution as the “identity papers of the nation”, then one of the main missions of the new Fundamental Law is precisely to affirm the achievements of the historical constitution as the proper background for interpreting it – a feature missing from the neutral text of the bygone era.13

But what is to be regarded as an achievement of the historical constitution? One trend in jurisprudence is to analyse the concept as follows: “the expression ‘achievement’ means the result attained through struggle and protracted endeavour; i.e. the result of an organic development”. All the while, the author I am quoting points out that “not just any feature necessarily becomes an achievement of the historical constitution just because it happens to form an integral part of that historical constitution. If it did, we would have to draw the category of achievements too broadly.”14 The Constitutional Court has never defined the concept in general terms, but in its various rulings it has classified certain legal institutions, such as judiciary independence, the freedom of religion, and the freedom of the press, as achievements of the historical constitution. Some provisions of the Fundamental Law – specifically under Articles B) and C) – and the quoted passage of the National Avowal which makes explicit mention of the Sacred Crown justify the question whether the range of historical constitutional achievements should also include the distribution of power, rule of law and popular sovereignty, given that the doctrine of the Holy Crown can easily be regarded as the contemporaneous manifestation of these tenets.15

At the stage where the national/constitutional identity unfolds, the most recent, directly relevant development has been the Constitutional Court’s Resolution No. 22/2016 (XII. 5.) in which the body offered an interpretation of the “Union Clause” of the Fundamental Law. This clause [under Article E) paragraph (2) ] provides that “[w]ith a view to participating in the European Union as a Member State and on the basis of an international treaty, Hungary may, to the extent necessary to exercise the rights and fulfil the obligations deriving from the Founding Treaties, exercise some of its competences set out in the Fundamental Law jointly with other Member States, through the institutions of the European Union”. The explanation attached to the ruling makes it clear that “by ‘constitutional identity’ the Constitutional Court of Hungary means the constitutional self-identity of Hungary”. The operative part of the ruling expressly provides that “as part of exercising its powers and in response to a relevant motion, the Constitutional Court may examine whether an act of exercising competences jointly as per Article E) paragraph (2) of the Fundamental Law violates human dignity, any other fundamental right, or Hungary’s sovereignty or self-identity derived from its historical constitution”. The explanation defines the meaning of constitutional identity as something construed on a case-by-case basis in view of specific relevant provisions and the entirety of the Fundamental Law, in harmony with their intended purpose and the achievements of our historical constitution, as set forth under Article R) paragraph (3) of the Fundamental Law.” In other words, what the Constitutional Court affirms in this Resolution is not only the ability of a constitutional identity to set a barrier to the Union’s powers but also its own rightful claim to define the meaning of Hungarian constitutional identity in its own interpretation. Finally, the formulation of the Resolution also leaves no doubt that, in the work of this interpretation, the Constitutional Court will take the historical perspective into account.

I myself found it easy to fully concur with the findings of the Resolution described above. I deem it vital for Hungary to ensure the protection of its national sovereignty and national constitutional identity as it goes about its business as an active member of the EU. Yet I cannot help but remind us that the majority explanation left unanswered a number of specific questions regarding the defence of our constitutional identity. Nor do I pretend to be absolutely certain that the formula quoted above describing the method of defining the constituent parts of constitutional identity has been applied with the utmost consistency in this majority explanation. All this goes to show that the Constitutional Court will continue to face massive challenges of interpretation further down the road, when it comes to cases potentially settled with differing results depending on whether Union law or the provisions of Hungary’s Fundamental Law are applied. Should such a scenario emerge, the conflict will have to be resolved one way or another.

  

EUROPE AND HUNGARY PAST AND FUTURE

 

Breaking free from their ideologically overloaded Communist past that had sought to foist uniformity on all facets of life, the states of East Central Europe joining the EU after the turn of the millennium have entered the current phase of integration, where they are forced to shape and stand up for their constitutional systems, and to have them recognised by the European Union. As Sulyok reminds us, “[i]n the early phase of integration the membership card with which these countries could enter the club of united Europe was contingent upon their tolerance of the primacy of Union law”. Nowadays – particularly after Brexit – the sheer continued operation of the club, including the quality of that operation, is at stake. It is therefore of great consequence for the future of the Union “to what extent it will adhere to the principle of constitutional tolerance and ‘suffer’ the autonomous constitutional identities of member states in the interest of continuing to run a successful club”.16

The constitutional courts of member states play a key role in the work of construing and safeguarding national identities. In case of doubt or debate, it is these institutions that will be called upon to fill the legal concept with meaning, and to enforce its use within that meaning as the case may be.

The great responsibility that comes with such a task of interpretation is not, however, something that the national constitutional courts should shoulder in complete isolation from one another. On the contrary, that work of constitutional interpretation will be performed most efficiently if they collaborate closely and maintain ongoing dialogue with the ECJ.17

In the words of the National Avowal, “[w]e are proud that our king Saint Stephen built the Hungarian State on solid ground and made our country a part of Christian Europe one thousand years ago”. King Saint Stephen made a decision with which the country’s current Fundamental Law affirms its continuity. That this affirmation of continuity is more than just a symbolic gesture will be evident from Article E) paragraph (1) of the Fundamental Law, which declares that “[i]n order to enhance the liberty, well-being and security of the people of Europe, Hungary shall contribute to the creation of European unity”.

Thus, our European identity is undoubtedly part of Hungary’s constitutional identity. Beyond sparing no effort in preserving and safeguarding this identity for the sake of the nation, we must therefore continue to strive to enrich a common European constitutional identity with our own. 

Translation by Péter Balikó Lengyel


 
 

Notes:


1 I am quoting from Márton Sulyok: “Nemzeti és alkotmányos identitás a nemzeti alkotmánybíróságok gyakorlatában” [National and constitutional identity in the practice of national-level constitutional courts] In: Nemzeti identitás és alkotmányos identitás az Európai Unió és a tagállamok viszonylatában [Natonal identity and constitutional identity in the relation of the European Union and its member states]. Szeged, 2014, p. 46.

2 Cf. Costa v ENEL, 15 July 1964, 6/641 [1]; opinion of the Commission’s Legal Service of 22 June 2007.

3 Sulyok, op. cit., p. 47.

4 Ibid., pp. 44 and 49.

5 Ibid., p. 50.

6 Viktor Orbán: Történelmi feladat volt az alaptörvény megalkotása [The enactment of the Fundamental Law as a historical mandate]. Speech delivered at the conference “Dialog and Identity, Budapest, 24 April 2015.

7 Here I am paraphrasing Gary J. Jacobsohn from the Hungarian translation as it appeared: Az alkotmányos identitás változásai [Changes of constitutional identity]. Fundamentum, (2013), pp. 1 and 5.

8 Ibid.

9 Zsuzsa Szakály: A történeti alkotmány és az alkotmányos identitás az Alaptörvény tükrében [Hungary’s historical constitution and constitutional identity as seen through the lens of the Fundamental Law]. Pro Publico Bono – Magyar Közigazgatás, (2015), p. 36.

10 Jacobsohn, op. cit.

11 Ferenc Deák: Adalék a magyar közjoghoz – Észrevételek Lustkandl Venczel munkájára: „Das ungarisch-österreichische Staatsrecht” a magyar közjog történelmének szempontjából [Contribution to Hungarian public law Remarks on the work of Venczel Lustkandl: “Das ungarisch-österreichische Staatsrecht” through the lens of the history of Hungarian public law]. Pest, 1865, p. 88.

12 Draft reply submitted to the House of Representatives on 14 March by Ferenc Deák, in response to the highest royal memorandum. In: Albert Farkas (ed.), Annals of the National Assembly, 1866, 1967. Pest: 1967, p. 227.

13 Orbán, op. cit.

14 Szakály, op. cit., p. 33.

15 István Stumpf: “Constitutional Identity and the Scope of the (Administrative) Implementation of European Decisions”. In Stumpf: Reinventing Government. Constitutional Changes in Hungary. Budapest, 2017, pp. 172–173.

16 Sulyok, op. cit., p. 48.

17 Id., p. 51. 
 


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