Case No. 2/98. Judgment of December 9, 1998; Albania, Case No. 65. Judgment of December
10, 1999; Ukraine, Case No. 11-rp/99. Judgment of December 29, 1999.
Judgment 23/1990 (X. 31.) HCC, concurring opinion by Chief Justice Sólyom.
542
Gábor Attila Tóth
this, it emerged from the status of personal revelation of the Chief Justice to
become the benchmark of Hungarian constitutionalism after the democratic
transition, thanks to some leading judgments under Sólyom’s name.
4
In this chapter I would like to contribute to the analysis of the rise and fall
of the Hungarian constitutionalism and rule of law. I focus particularly on the
dichotomy between visible and invisible constitutions in order to better under-
stand the nature of regime changes, as well as the competing judicial and
scholarly positions. I first summarize briefly the attributes of, as mentioned
above, the “often emended” 1989 Constitution. Then I turn to its correla-
tive by offering an explanation regarding the “theoretical bases” of the invisi-
ble constitution. The question is thus whether it really served as a “coherent
system” and “reliable standard” or not. The second part addresses the new
Constitution, officially the 2011 Fundamental Law. I describe how and why
the prediction that “the invisible Constitution probably will not conflict with
the new Constitution” did not come true.
What I argue for is twofold: although the previous system based upon the
1989 Constitution was – despite its imperfections – a constitutional democ-
racy, and while the new regime based upon the 2011 Fundamental Law can
be seen as a form of incomplete authoritarianism, the notion of the invisible
constitution could not fully justify democratic and liberal constitutionalism
because of its aristocratic aura, religious commitment, and incoherent judicial
application.
5
19.1. The 1989 Constitution: Substance over Form
After the Second World War, Stalinist dictatorships emerged in East Central
Europe. In 1949 the communist-dominated Hungarian Parliament adopted a
constitution – the first charter constitution to enter into force in the country –
which closely followed the Soviet Stalinist Constitution of 1936. The regime
based on legal and extra-legal repression occurred mainly in its first years and
after the failure of the 1956 Revolution. Although the political system became
4
The Constitutional Court of the Republic of Moldova asserted mistakenly that the per curiam
theory of “invisible constitution” follows the German constitutional jurisdiction: judgment of
December 5, 2013, No. 8b/2013, 41b/2013, [77].
5
For a different, praiseful summary, see K. L. Scheppele, “On the Unconstitutionality of
Constitutional Change: An Essay in Honor of László Sólyom,” in Z. Csehi, B. Schanda and
P. Sonnevend (eds.) Viva Vox Iuris Civilis. Tanulmányok Sólyom László 70. születésnapja al-
kalmából (Budapest: Szent István Társulat, 2012), 302–10; for a critical analysis, see A. Sajó,
“Reading the Invisible Constitution: Judicial Review in Hungary” (1995) 15 Oxford Journal of
Legal Studies 253.
Lost in Transition
543
gradually more consolidated, rule of law and constitutionalism were alien to
the soft dictatorship, and the numerous constitutional changes that occurred
during the communist period made little difference in this regard.
Like other communist constitutions, the provisions of the 1949 Constitution
served purely ideological purposes; in other words, as a semantic constitution
it was a political declaration and was never intended to serve as normative
guidance in the actual use of political power, which was determined by the
interests and whims of the Communist Party leadership. The formal constitu-
tional system did not aim to provide genuine protection of fundamental rights
at all, since the 1949 Constitution could not be invoked in court.
The historical turning point for the transformation from authoritarian
regime to democracy was the autumn of 1989. Departing from both the tradi-
tion of revolutionary constitution-making and the models of merely reform-
atory processes, the peaceful, negotiated regime changes in East Central
Europe – along with the previous Spanish and Portuguese experiences – estab-
lished a new type of constitution making, labeled “coordinated transition.”
6
This means that, with the exception of Romania, the single or dominant party
systems collapsed through a series of roundtable negotiations between the old
regime and the democratic opposition.
The 1989 roundtables were meant to regulate the transition from the old
regime to a new one, but they did not have a mandate for constitution making.
In order for their decisions to take legal effect, those decisions needed to be
sent for enactment to the old legislature. The roundtables left the completion
of the process to an assembly with the democratic mandate they were lacking.
7
This constitution-making profile can be characterized as consisting of two
stages. In the first stage, a roundtable agreement determines the ground rules
of preparing and holding free elections. The second stage takes place when a
6
J. Kis, “Between Reform and Revolution: Three Hypotheses about the Nature of Regime
Change” (1995) 1
Constellations 399; A. Arato, “Post-Sovereign Constitution-Making in Hun-
gary: After Success, Partial Failure, and Now What?” (2010) 26 South African Journal on Hu-
Do'stlaringiz bilan baham: 
