Constitutional identity of a member state of the European Union as Hungary is can be examined from – at least – two points of view, with reference to the own constitutional tradition reflected by the Constitution (the Fundamental law in the case of Hungary) and with reference to the European Law. My conviction is that the two approaches may not result in contradictory conclusions, and that in our case there is really no contradiction between them.
I. Constitutional identity of Hungary viewed from inside
1. According to our Fundamental Law, the protection of our identity rooted in Hungary’s historic constitution is a fundamental obligation of the State that applies to all institutions, in particular to the Constitutional Court as the principal organ for the protection of the Fundamental Law[1]. The Constitutional Court has already established about the constitutional identity of Hungary that it is “not a list of static and closed values”. At the same time it is “a fundamental value not created by the Fundamental Law – it is merely acknowledged by the Fundamental Law. Consequently, constitutional identity cannot be waived by way of an international treaty – Hungary can only be deprived of its constitutional identity through the final termination of its sovereignty, its independent statehood. Therefore the protection of constitutional identity shall remain the duty of the Constitutional Court as long as Hungary is a sovereign State”[2].
According to my own supplementing standpoint, “constitutional self-identity is not a universal legal value, it is a specific feature of the different States and of their communities, of the nations, that does not apply (the same way) to other nations. In the case of Hungary, national identity is in particular inseparable from constitutional identity. The constitutional government of the country has been one of the core values. The nation has always stuck to, and that has been a living value even at the times when the whole or the majority of the country was occupied by foreign powers. This legal value has been manifested and presented in (positive) legal regulations: freedoms and the limitation of power (in the Golden Bull), respect for autonomies under public law (in the Tripartitum), freedom of religion (in the Law on religious freedom of Torda), lawful exercising of power (in the Pragmatica Sanctio), parliamentarism, equal rights (in laws of April 1848), separation of powers, acknowledging judicial power, protection of minorities (in laws of the Reconciliation of 1867). These are the achievements of our historical constitution, the Fundamental Law and thus the whole Hungarian legal system is based upon. Since the values that make up the self-identity have come into existence on the basis of historical constitutional development, they are legal facts that can be waived neither by way of an international treaty nor by an amendment of the Fundamental Law, because legal facts cannot be changed through legislation”[3]. This situation of legal facts, the constitutional continuity of statehood of Hungary and the unity of the nation is embodied by the Holy Crown as acknowledged by the National Avowal.
Both the decision of the Constitutional Court and my supplementing standpoint follow the National Avowal, according to which the Fundamental Law shall be a binding legal rule, it shall be the foundation of our legal order, but it shall also be more than that, “it shall be an alliance among Hungarians of the past, present and future. It is a living framework which expresses the nation’s will and the form in which we want to live”.
[1] National Avowal, Article R) (4), Article 24 (1)
[2] Decision 22/2016 (XII. 5.) AB, Reasoning [65], [67]
[3] Decision 22/2016. (XII. 5.) AB, Dissenting opinion [112]