Formal and Informal Constitutional Amendment in Hungary

Abstract

In this paper, we give a critical overview of the formal and informal constitutional amendments that have occurred in Hungary since the transition. We argue that even though we face terminological difficulties, informal constitutional amendment is not only possible but is actually present in the Hungarian constitutional order in the form of the constitutional interpretation of the Constitutional Court. In certain cases, this exercise is beneficial for the stability of the rule of law, while in others it may have a detrimental effect on the same. We also claim that it is up to the other powers (political branches of government or the constitutional court/high court itself) to decide whether the informal constitutional amendment by constitutional interpretation is legitimate or not. No one can challenge a constitutional interpretation in any legal way in a constitutional democracy; however, it is up to the political branches or the courts to reject or uphold its result. This latter can occur by applying the new content or consolidating it to the text of the constitution. The phenomenon that we call informal constitutional amendment by constitutional interpretation is not only experienced in countries with a rigid constitution but also in states having a rather short constitution with many vague provisions especially concerning certain principles and fundamental rights.

Keywords: constitutional change, formal constitutional amendments, informal constitutional amendments, Hungary