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THE ROLE OF THE CONSTITUTIONAL COURT
IN THE CONSTITUTIONAL CONTROL OF LEGISLATION
——o—
ISTVÁN STUMPF"
DEFINITION OF INVALIDITY UNDER PUBLIC LAW, THE CASE-LAW
OF THE CONSTITUTIONAL COURT
In a constitutional democracy, it is a basic requirement that in the legislative
procedure only by respecting the rules of the legislative process can valid law
be created. The norm created in an unconstitutional procedure is “invalid under
public law”. With regard to the invalidity under public law, the Constitutional
Court has established in several decisions that the procedural guarantees of
legislation stem from the principles of the rule of law and legal certainty, thus valid
legislation can only be enacted by observing the rules of the formalized procedure.
Invalidity under public law can be established on several grounds. The law has
to be created by a competent organ, the legislative organ shall not go beyond the
limits of its authorization, it shall create a legislative norm that is at the appropriate
level in the hierarchy of norms,’ it shall comply with the rules of the legislative
procedure and, finally, it shall promulgate the law adequately.
Prior to the entry into force of the Fundamental Law , the Constitutional
Court summarized its position on the invalidity under public law in the Decision
No. 164/2011. (XII. 20.) on the constitutional review of the revised first Church
Act? (Constitutional Court Decision 1). According to its well-established case-law,
the Constitutional Court is authorized to examine the observance of the guarantee
rules of the legislative process and, thus, to annul a law adopted in a seriously
formally erroneous legislative procedure on the grounds of invalidity under public
law. The Constitutional Court has already stated in its Decision No. 11/1992. (III.
5.) that: “Procedural guarantees stem from the principles of the rule of law and
legal certainty. (...) Valid legislation can only be enacted by observing the rules
! University Professor, researcher, Széchenyi Istvan University, Győr, National University of
Public Service, Budapest, Hungary
? See the wording of Decision No. 29/1997. (IV. 29.) of the Constitutional Court, Decisions
of the Constitutional Court 1997, 122. A law being invalid under public law corresponds
to procedural unconstitutionality.
3 See Article I (3) of the Fundamental Law: “The rules relating to fundamental rights and
obligations shall be laid down in an act of Parliament.”
Act C of 2011on the Right to Freedom of Conscience and Religion, and on the Legal Status
of Churches, Religious Denominations and Religious Communities.
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