The Invisible Constitution in Comparative Perspective

Communist Europe, puts it as follows:

The amended constitution was necessarily incomplete and marked by inter-

nal inconsistencies. Early on, the Court announced that in order to fill in 

the gaps and cope with the inconsistencies and contradictions, the Court 

would develop an ‘invisible Constitution’, a ‘system of dogma’ principles and 

methodology drawn from contemporary constitutional thinking in leading 

national and international courts around the world.

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Sólyom’s framing of the invisible constitution as ‘above’ the constitution but 

tethered to it appears to demonstrate some conceptual confusion or circu-

larity. However, this tendency to take an expansive approach in constitu-

tional interpretation combined with the broad powers of the Hungarian 

Constitutional Court contributed to that Court becoming one of the most 

active Constitutional Courts in Europe.

87

79 

Decision 23 of 1990: 31 October 1990 On Capital Punishment (Hungarian Constitutional 

Court).

80 

See note 31.

81 

See note 32.

82 

Between 1990 and 1994, the 1989 text was amended ten times: Dupré, Supra note 34, 32.

83 

See note 79.

84 

Decision 11 of 1992: 5 March 1992 On the Retroactive Prosecution of Serious Criminal Offences 

(Hungarian Constitutional Court).

85 

Andrew Arato and Zoltán Miklósi, ‘Constitution Making and Transitional Politics in Hungary’,  

in Laurel E. Miller (ed.) Framing the State in Times of Transition: Case Studies in Constitution 

Making (Washington, DC: United States Institute of Peace, 2010), 369.

86 

Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago,  

IL: University of Chicago Press, 2000), 82.

87 

Georg Brunner, cited in Dupré, Supra note 34, 37.

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Interim Constitutions and the Invisible Constitution 

185

The Hungarian Fundamental Law, which came into force on 1 January 

2012, contained an explicit disavowal of the 1949 Constitution and appeared to 

reject the post-communist era amendments to that law as well. In spite of this 

disavowal, the Constitutional Court’s rulings in the interim era continued to 

have a significant influence on the law of Hungary.

An example of the continued application of principles developed in the 

interim era is seen in a 2013 case where the Court invalidated an Act on Election 

Procedure on the basis that it was unconstitutional. The Court’s ruling included 

reference to numerous cases heard under the previous constitution. In uphold-

ing a particular interpretation of Article 7(1) of the Fundamental Law about 

Hungary’s acceptance of the ‘generally recognised rules of international law’, 

the Court made its decision according to the approach ‘already established by 

the Constitutional Court on the basis of the previous Constitution’ in a 1993 

case and noted that the previous constitution contained the ‘same essential 

content’.

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 In a separate part of the judgment, the Court noted that while the 

two Constitutions contained provisions that were not identical, they were ‘sim-

ilar’ and that ‘therefore the Constitutional Court’s interpretation of the law as 

contained in its previous decisions is to be followed in the course of reviewing 

the present case, too’.

89

 Thus, even though the jurisprudence under the 1989 

Constitution was not only not binding – but disavowed – by the Fundamental 

Law, it continued to have ongoing influence in Hungarian constitutional law. 

This influence has been ended, or severely curtailed, by subsequent amend-

ments to the Fundamental law discussed by Toth in Chapter 19.

The Polish Constitutional Tribunal was established in the communist era 

and commenced hearing cases in 1986. The only body of its kind in the Soviet 

bloc, it lacked the political or legal power to challenge the supremacy of the 

legislature, but even in the communist period the Tribunal was effective in its 

focus on reviewing administrative decisions.

90

 One substantial area of juris-

prudence established in the interim era relates to the Rechtsstaat principle.

The Rechtsstaat principle is embodied in Article 1 of the amended 1952 text 

and states that Poland is a ‘democratic state ruled by law, implementing prin-

ciples of social justice’. Andrzej Zoll, the Chief Justice of the Constitutional 

Tribunal from 1993–7, describes the ‘great deal of freedom’ the Tribunal has in 

88