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Gábor Attila Tóth
status in the hierarchy of rights also applies to the freedom of religion, because
“in a certain sense, religion is part of human dignity.”
34
Contrary to the critical review of the constitutional text and the aristocratic
self-image, which had a direct effect on the decision-making, the hierarchy
of the fundamental rights served mainly as a symbol: in any given case the
Court never reached a conclusion based only on the hierarchical ranks of the
competing rights, nor did the case law classify a whole system of rights in a
hierarchical order.
Adjudication in constitutional courts is elite-driven in the sense that it is
decision-making by the highest-ranking judges. The hierarchical and aristo-
cratic methodologies of the invisible constitution doctrine may be linked with
elitism, to be sure, but we should bear in mind the dissimilarities too. The
Court demonstrated a superior attitude associated with the political elite, that
is to say that representative government was the target of devaluing judicial
assessments. This means that the Court as a privileged legal unit of the estab-
lishment expressed ambivalent, antiestablishment attitudes toward the politi-
cal elite. We may say that this phenomenon is an atypical, descending theme
of antielitism, as opposed to the widespread, ascending antielitism stemming
from depressed social groups.
Moreover, under the 1989 Constitution, the methods and procedures of
the Court were not per se elitist. Anyone was entitled to bring an action with-
out limitation; there were no deadlines to be observed, nor was the applicant
required to show any impact or other legally protected interest due to the
procedural rules of actio popularis. In the first two decades, the great majority
of the proceedings fell in this category. This mechanism made it possible to
eliminate many unconstitutional laws, the death penalty included, from the
legal order. In sum, if we intend to label the invisible constitution doctrine as
elitist, it is worth adding that that is an aristocratic variant of elitism.
19.2.3. Substance: Partial Application of the Principles
Despite the flourishing clarification of dignity-based constitutional freedoms
and equality, the Court had a Janus-faced constitutional adjudicatory role,
especially when it was not able to escape from inappropriate political expecta-
tions or rigid social attitudes.
The Court never declared unconstitutionality based upon suspect classi-
fication or special needs of vulnerable groups for protection. It did not clash
34
Judgment 4/1993 (II. 12.) HCC.
Lost in Transition
553
with the legislature in order to support women’s rights. It found gender-based
discrimination affecting mostly men.
35
In a similar fashion, the Court slightly
preferred a pro-life approach in abortion cases. Although, not going against the
rather pro-choice public opinion, it maintained in practice an intermediate
regulation between the conflicting alternatives, the Sólyom-led Court recom-
mended the Parliament introducing criminal sanctions against those women
who terminate their pregnancies even in the first trimester (Abortion Case II).
36
The reasoning envisaged that the extension of human rights protection to the
embryo and fetus “would be comparable only with the abolition of slavery, or
would be greater than that” (Abortion Case I).
37
As to same-sex couples, the landmark judgment implicitly established the
category of separate and unequal. Even though the decision required legal
recognition of same-sex partnerships, it emphasized that same-sex couples
might not get married; moreover, when it comes to regulating their partner-
ship the differences between such relationships and marriage, flowing from
“nature” as well as from traditions, was to be maintained.
It is well known that many hundreds of thousands of Roma living in Hungary
have to face social difficulties, prejudice, and segregation. Despite several peti-
tions, however, the problems relating to the exclusion and discrimination of
Roma remained absolutely hidden.
38
In one case, the petitioner argued that in
the course of employment she found herself in an unfavorable situation due to
the fact that her name revealed her mother’s Roma origin. The Chief Justice
of the Court dismissed her petition on procedural grounds since she did not
question explicitly a specific legal rule, but only the application of a legal pro-
vision in a concrete case. According to the procedural order that dismissed the
claim, the law on changing names “has no relevant constitutional relationship
with the right to work and non-discrimination clauses” of the Constitution.
39
Thus, the discriminatory nature behind the, on the surface of it, neutral law
could not be unveiled.
In another case a nongovernmental organization protecting minorities,
the Otherness Foundation, challenged a local government resolution, which
provided: the local representative body “with respect to the future declares
those people persona non grata who do not fit in the life of the community,
violating and endangering the public security and in the future, with all legal
35
K. Kovács, “Think Positive, Preferential Treatment in Hungary” (2008) 5 Fundamentum 48.
36
48/1998 (XI. 23.) HCC.
37
64/1991 (XII. 17.) HCC.
38
In detail, see G. A. Tóth, “Unequal Protection: Historical Churches and Roma People in the
Hungarian Constitutional Jurisprudence” (2010) 51 Acta Juridica Hungarica 122.
39
Order 924/I/1996 HCC.
554
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