Oldal 427 [427]
THE ROLE OF THE CONSTITUTIONAL COURT IN THE CONSTITUTIONAL CONTROL OF LEGISLATION
1. In the opinion of the Constitutional Court, the Transitional Provisions cannot
be considered an amendment to the Fundamental Law either formally or on the
basis of its content, and that is because regardless of its adoption by a two-thirds
majority of the members of parliament, it was not adopted on the basis of the rules
applicable to the amendment of the Fundamental Law. [The Parliament did not
adopt the Transitional Provisions on the basis of Article S) of the Fundamental Law,
but on the basis of Section 2 of the Final Provisions.] In addition, the denomination
of the Transitional Provisions does not formally comply with the constitutional
provision on the denomination of an amendment to the Fundamental Law [Article
S (4) of the Fundamental Law]. (...) According to the Constitutional Court, the
Transitional Provisions went beyond this authorization both in substance and in
time, as it is a “mixed-subject” legislation that contains also provisions that are
not transitional. These latter provisions were created by exceeding the scope of
authorization set forth in the Fundamental Law and were not incorporated into
the Fundamental Law, therefore they cannot be considered as amendments to
the Fundamental Law. The transitional provisions remaining within the scope
of authorization are also not rules amending the Fundamental Law, as they are
“transitional” in accordance with the authorization and not provisions incorporated
into the Fundamental Law, they do not amend or supplement the Fundamental
Law, but ensure its implementation, the transition from the Constitution to the
Fundamental Law. In view of all this, the Constitutional Court has established that
the Transitional Provisions cannot be considered as amending or supplementing
the Fundamental Law. (Reasoning [68])
2. In a constitutional state governed by the rule of law, it is a requirement that
the constitutional authority formulates its will in the constitution (Fundamental
Law) and that it appears in the text of the constitution. Constitutional amendments
incorporated into the text of the constitution also express the will of the constitutional
authority. The will of the constitutional authority cannot appear in mixed-subject
legislation where the level of the sources of law is uncertain. (Reasoning [75])
3. The Constitutional Court points out that in a state governed by the rule of
law it is a requirement that the scope and content of the current Fundamental
Law can be clearly determined at any time. This requirement applicable in a state
governed by the rule of law must also be respected by the constitutional authority.
(...) Serious constitutional legal uncertainty can be caused if the content and scope
of the current Fundamental Law is uncertain or can be determined in several
ways.” (This is called “constitutional clarity”.)
4. It follows from the obligation of the Constitutional Court to protect the
Fundamental Law, but also from the objective and constitutional purpose of the rule
” Reasoning [76], [78]
+ 425 +