Unconstitutional Constitutional Amendments: Constitutional Courts as Guardians of the Constitution?

2 Constellations, 2012

34 Pages Posted: 15 Mar 2015

See all articles by Gábor Halmai

Gábor Halmai

European University Institute - Department of Law (LAW)

Date Written: 2012

Abstract

A great number of petitions reached the Hungarian Constitutional Court concerning the November 2010 constitutional amendments that sought to curtail the Court‟s powers and allow for the possibility of implementing a tax measure with retroactive effect. In their decision 61/2011. (VII. 13.), which was accompanied by three dissenting and three concurring opinions, the judges of the Court refused to perform a review of the substance of these amendments. At the same time, however – and this was a first in the Court‟s judicial practice –, they undertook an investigation concerning the question whether these amendments were valid constitutionally in terms of the procedure that led to their adoption, even if they did not find that the petition was well-grounded in this regard. The three dissenting judges, however, believed that an examination of the merits was also necessary, and two of them would have nullified the impugned constitutional amendments, which they thought – albeit to differing degrees – unconstitutional.

Keywords: Constitution-making, constitutional amendments, judicial review of constitutional amendments

Suggested Citation

Halmai, Gábor, Unconstitutional Constitutional Amendments: Constitutional Courts as Guardians of the Constitution? (2012). 2 Constellations, 2012. Available at SSRN: https://ssrn.com/abstract=2577887

Gábor Halmai (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY
39-055-4686-401 (Phone)

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