[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The author in this post formed part of a panel on “Towering Judges in Transitional/Non-Liberal Constitutions.” The introduction to the joint symposium can be found here.]
—Gábor Attila Tóth, Humboldt University, Berlin
László Sólyom was the first Chief Justice of the Hungarian Constitutional Court between 1990 and 1998. There is a consensus among constitutional scholars that he was the most dominant jurist in the short-lived Republic of Hungary. There is, however, much less agreement about his achievement. For example, Kim Lane Scheppele endorses the Sólyom-led HCC for its judgments establishing the rule of law and democracy.[i] Bojan Bugarič and Tom Ginsburg are also full of praise for “the strong leadership of liberal Chief Justice Sólyom.”[ii] Bruce Ackerman and Stephen Holmes, by contrast, were doubtful about the initial achievements of the HCC because of its weak democratic legitimacy.[iii] András Sajó warned early in the 1990s that it undermined the rule of law that the judicial activism tended to disregard the written constitution.[iv] Andrew Arato has observed that Sólyom was, on the one hand, an admirer of Hans Kelsen’s legal positivism, while on the other he mobilized a form of constitutional mythology derived from Carl Schmitt.[v]
First movement: A constitutional revolutionary
The year 1989 was the historical turning point for the transformation from a Soviet-type regime to constitutional democracy. The single-party system collapsed through roundtable negotiations between the old regime and the democratic opposition. As a representative of a conservative opposition party, Sólyom was an important roundtable participant. He can be considered as one of the founders of the republic.
In formal terms, the 1989 Constitution was a modification of the 1949 Stalinist Constitution. The new preamble contained a reference to the interim status of the Constitution. In substantive terms, however, the 1989 transition breathed new life into the Constitution. The models were international human rights instruments, as were the constitutions of mature democracies. Hungary followed Western European traditions in establishing a parliamentary system. Constitutional judiciary belonged to the centralized model of judicial review.
László Sólyom claimed that the roundtable constitution was a final one. He argued, that there was no need to complete the constitution making project because the constitutional text fulfilled the requirements of constitutionalism. Although he was very aware of the legitimation problems by admitting that the process “did not originate among the people,” Sólyom characterized the roundtable as a “constituent power.”[vi]
Sólyom expressed another powerful argument on the constitution making authority. He insisted that the HCC has to fulfill its task embedded in history to complete the regime change. Sólyom believed that in the exceptional situation the HCC could replace the constitution-making authority by its principled judgments. Thus, he sought to justify a “revolutionary legitimacy” for the HCC.[vii]
Second movement: Chief Justice without precedent
The 1990 starting point for constitutional jurisdiction meant that neither domestic precedents nor a doctrinal framework elaborated by academics guided the HCC. Chief Justice Sólyom, based on his distinguished expertise and striking judicial ambition, had a chance to dominate the inceptive adjudication period. Substantively, the HCC initiated to create from case to case a coherent system of fundamental rights. Methodologically, the HCC undertook a kind of moral reading of the underlying constitutional principles.
In the absence of domestic precedents, the HCC took international and foreign standards as precedents.[viii] It protected fundamental rights with the help of the proportionality principle imported from the European Court of Human Rights, and the allgemeine Handlungsfreiheit from the Federal Constitutional Court of Germany, as well as a version of the clear and present danger scrutiny derived from the US constitutional adjudication.
The HCC placed human dignity at the center of its judicature in an unprecedented way. In its first landmark judgment, the HCC abolished the death penalty. The interpretation of human dignity, both a moral value and a constitutional right, served as an example for the Ukrainian, Lithuanian, Albanian, and South-African Constitutional Courts. Chief Justice Sólyom emphasized that human dignity is a value a priori and beyond law, a source of liberty and equality rights, therefore the Court’s task is to transform many of its aspects into a true legal right.
Despite the clarification of dignity-based constitutional freedoms and equality, the HCC had a Janus-faced constitutional adjudicatory record. In very crude terms, the case-law has two contrasting aspects: acknowledging the separation of state and church, respect for freedom of speech and other liberty rights on the one hand; and restrictive views on the social role of women, protecting the life of the embryo and denying equal respect to same-sex couples, while privileging traditional marriage and so-called historical churches on the other.[ix]
Third movement: The guardian of the constitution
After the end of his mandate, Sólyom continued his academic career. In 2005 he emerged as a candidate for head of state, nominated by an environmental group and supported by the then-opposition party Fidesz.
President Sólyom sought to expand his authority as the guardian of the constitution during the deep crisis of the republic. His claims to real power as the head of state and the depository of national sovereignty led to constitutional struggles. He was frequently in political conflict with the prime minister. His constitutional maneuvers demonstrated the president’s moral integrity above the ordinary course of political fights between the governing party and the opposition. His critics, however, warned that the head of state had begun to represent an alternative government program: he strongly criticized the government’s economic policy, launched his own foreign policy, and engaged in conflicts with neighboring countries.
During his 5-year term, Sólyom vetoed as many acts as his predecessors had in the previous one-and-a-half decades. The HCC, in line with the presidential motions for ex ante constitutional review, became very active again between 2006 and 2010, declaring an unprecedented number of newly adopted acts unconstitutional. Sólyom, who had formerly represented the view, following Kelsen and Heller, that the guardian of the constitution was the HCC, seemed to borrow ideas of Carl Schmitt in claiming that the head of state (sovereign) had the authority to be the ultimate guardian of the constitution.
Fourth movement: without a happy ending
In 2010, Fidesz won a landslide victory in the parliamentary election and subsequently adopted a range of amendments to the constitution regulating, among other things, the constitutional judiciary and civil liberties. On top of this, prime minister Viktor Orbán announced that a brand new constitution will be adopted.[x]
Sólyom expressed an unfavorable opinion of the constitutional amendments and sent back to parliament for reconsideration several pieces of legislation but did not turn to the HCC in key issues. As he explained, a series of HCC decisions excluded any judicial review of amendments. In 2010, Sólyom did not choose to develop a new standard of review of constitutional amendments. Subordination of both the HCC and the President to the parliamentary majority seemed to be a new direction. In the very final phase of the Republic of Hungary, the guardian of the constitution proved to be powerless.
His critics concluded that in this way the president assisted the adoption of an unconstitutional constitution and the rise of an authoritarian system. Other observers, in contrast, have used Sólyom’s critical statements on the emerging system as a reliable source of analysis. In any case, the ruling party did not seem to be fully satisfied with Sólyom’s presidency, therefore he was not nominated for a second term of office.
Sólyom’s exceptional commitment to constitutionalism is beyond reasonable doubt. It will remain a subject of debate, however, whether he found the best constitutional tools for creating and saving the short-lived republic. I think we should accept that different facets of a complete oeuvre do not necessarily amount to a coherent view. We see parallels and paradoxes rather than a baroque harmony.
Suggested citation: Gábor Attila Tóth, Joint Symposium on “Towering Judges”: László Sólyom’s Constitutional Symphony for the Republic of Hungary, Int’l J. Const. L. Blog, Apr. 3, 2019, at: http://www.iconnectblog.com/2019/04/joint-symposium-on-“towering-judges”:-laszlo-solyom’s-constitutional-symphony-for-the-republic-of-hungary
[i] Kim Lane Scheppele, ‘Constitutional Negotiations: Political Contexts of Judicial Activism in Post-Soviet Europe’ in S.A. Arjomand (ed) Constitutionalism and Political Reconstruction (Brill 2007) 318
[ii] Bojan Bugarič and Tom Ginsburg, ‘The Assault on Postcommunist Courts’ (2016) 27 Journal of Democracy 69–82
[iii] Bruce Ackerman, The Future of the Liberal Revolution (Yale UP 1992) Ch. 6 and Stephen Holmes, ‘Back to the Drawing Board’ (1993) 2 East European Constitutional Review 21–23
[iv] András Sajó, ‘Reading the Invisible Constitution: Judicial Review in Hungary’ (1995) 15 Oxford Journal of Legal Studies 253, 266–267
[v] Andrew Arato, Post Sovereign Constitution Making: Learning and Leigitimacy (Oxford UP 2016) 174
[vi] László Sólyom, ‘The role of constitutional courts in the transition to democracy, with special reference to Hungary’ in Arjomand (ed), Ibid, 283–314, 305
[viii] Catherine Dupré, Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity (Hart 2003) and László Sólyom — Georg Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (The University of Michigan Press 2000)
[ix] János Kis and I have argued that the HCC was determined by a conception of the Second Vatican Council. János Kis, Constitutional Democracy (CEU Press 2003) 295 and Gábor Attila Tóth, ‘Lost in Transition: Invisible Constitutionalism in Hungary’ in Rosalind Dixon and Adrienne Stone (eds), The Invisible Constitution in Comparative Perspective (Cambridge UP 2018) 541–562
[x] Gábor Attila Tóth (ed), Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (New York, Budapest: CEU Press 2012)