ÑAMIENTO EDICIÓN/ EV ALUACIÓN IMPLEMEN TA

Under the 1989 Constitution, the Constitutional Court responsibility was to maintain the integrity of the Constitution, and to annul and remove all norms that fell outside the frames of the Constitution. Anyone could challenge the constitutionality of a law or provision, and request the review of legislation if it was considered unconstitutional (Fröhlich and Csink, 2012: 435). The competence of Actio Popularis was imbedded in the Constitution, and despite the fact that this jurisdiction was rather unusual in Europe, it became an effective way to keep

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the government in constitutional line in Hungary. Furthermore, it made the Constitutional Court of Hungary one of the most powerful courts in the world (Fröhlich 2013 [interview]). Though, the Basic Law of 2012 eliminated the Actio Popularis jurisdiction and substituted it with a constitutional complaint based on the German model. The new system allows individuals to challenge laws only if the laws affect them personally (Bánkuti et al., 2012a: 142).26 The change from the abstract posterior review of legislation to the examination of individual complaints was the most apparent change in the field of state organization. The Basic Law of 2012 further allowed for both laws and judicial decisions to be challenged in the constitutional complaint proceedings. The ability of the Constitutional Court to review laws in the abstract is further limited by the fact that the range of initiators who have the competence to take the case to the court for abstract review are restricted to apply only to the Government, one-fourth of the MP’s, the President of the Curia, the Prosecutor General, or the Commissioner for Fundamental Rights. Even the President of the Republic no longer has this power. As the Basic Law of 2012 abolished Actio Popularis and restricted the range of initiators, the importance of abstract review is reduced (Fröhlich and Csink, 2012: 435). By building restrictions on the Court’s competence into the formal framework of the court, so that the formal regulation of the court’s jurisdiction changes, judicial authority was weakened. Nonetheless, the elimination of Actio Popularis was a rational measure that can be defended. The workload was too burdensome, and caused delays in legal proceedings (Polgár 2013 [interview]). Two-thirds of the petitions that the Court received came through the competence of Actio Popularis, and in the two first decades of the court, this was the main feature of judicial review. The caseload before the removal could reach 1500 cases per year. Now, the caseload has decreased to a minimum (Kovács 2013 [interview]). The removal of the competence can therefore be justified as a measure that decreased the heavy workload that the competence caused the Court, and caused a more efficient Court (Polgari 2013 [interview]). The Hungarian people can still approach the court, but as the abstract review is restricted to the institutions mentioned above, they will have to use these institutions as intermediaries in order to do so (Fröhlich 2013 [interview]). That can improve the legal character of the complaint, and give it the expected judicial expression (Csink 2013 [interview]). However, that implies that the few institutions that now have the right to turn directly to the Court are willing to do so. It is worth noting that currently it’s not that easy to challenge the government

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before the Court. So far, the right of abstract review has been applied to the minimum. The problem is the political context. The opposition is basically nonexistent, and far from unanimous enough to write a common petition to the Constitutional Court under present conditions (Csink 2013 [interview]). The chances of consensus building are unlikely (Uitz, 2013: 32). The previous commissioner was very active and constantly challenging government policy and legislation. It was assumed that this was a result of the unlikeliness that he would ever be re-elected, and that he therefore knew that he had nothing to lose by being active (Kovács 2013 [interview]). Though, the incumbent commissioner, who was elected in 2013, has yet to introduce any petitions to the court. The Hungarian people are paying close attention to the new commissioner, and the fear is, considering that he is believed to be close to governing majority, that he won’t use the right at all (Polgari 2013 [interview]).

While the heavy workload caused by Actio Popularis was a negative feature, some people argue that an elimination of the competence was not the only solution. The Constitutional Court had the possibility to introduce a filtering system, similar to the system used in Strasbourg. “It was the Court’s responsibility to increase the efficiency of the court – not the government’s responsibility” (Kovács 2013 [interview]). The government chose to remove the competence, based on reasons claiming that the measure would make the Court more effective in the every-day work (Kovács 2013 [interview]). It has further been claimed that members of the Court supposedly proposed the removal of the competence, in order to reduce the workload and increase the efficiency (Mázi 2013 [interview]). This is true to some extent. The present chief justice of the Court wrote articles suggesting that there should be some form for eligibility criteria for the petitioner, in order to ease the workload, “but as far as I know, there were never any explicit request from the Court to remove Actio Popularis” (Fröhlich 2013 [interview]).

“Actio Popularis was a positive competence that motivated the Hungarian people to participate in the constitutional process. My personal opinion is that the government wanted to avoid that people turned the court, asking for judicial reviews of laws and regulations”

(Kovács 2013 [interview]) The competence of Actio Popularis caused an active and powerful Court, and several of the judgments carried out by the Court in the 1990s came with political costs for the government

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(Uitz, 2013: 8-10). “The Court overacted their role” (Mázi 2013 [interview]). It was argued that the Court interfered too much in political issues, and the government therefore saw the need to regulate and limit the activity of the court (Mázi 2013 [interview]). Constitutional amendments changed the formal framework of the Court, and restricted its jurisdiction. The consequence was a limitation in the formal authority of the Court. This can be seen in relation to the pendulum effect, in which I refer to in the theoretical chapter: when the manifest judicial independence is high, there is an increased likelihood that authorities will attempt to reign in the judiciary through reforms and measures limiting their formal authority and/or independence (Garoupa and Ginsburg, 2009).