Page 427 [427]
OCR
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 +
