The decline of the Constitutional Court

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Over the past six years the Constitutional Court (AB) has become a much softer body. It's now paying the price - hardly anyone is interested in the body any more. For the first time, the AB has suffered a humiliating defeat in its clash with the Supreme Court and it has becoming the plaything of the political parties.

The first AB, led by László Sólyom was much criticised for its activist profile. The court kept unearthing new passages of the "invisible Constitution", and ruled in accordance with them. The Court ruled in cases where the its own members believed it had no business to rule, since they did not fall within the Court's competence. During this period, there were many occasions on which the Court frustrated the efforts of the politicians. Just think of restitution, truth and reconciliation, transparency, identity numbers and the Bokros package. They were all questions in which the Court led politicians in a dance. The Court was often justly criticised: it delivered some rulings which were legally questionable and which would have passed a rigorous examination. But overall, and especially by comparison with what we're seeing now, the first AB had a much more significant role in public affairs than it does now.

The presidents who succeeded László Sólyom deservedly enjoyed great respect, but most of the new judges created a new kind of court. It's hard to find an example during the past six years of the Court obstructing major political initiatives with the toughness it displayed during the first nine years. (Of course you could say that the times are different now - but there were plenty of opportunities for more spectacular rulings during the past six years).

Politicians feared the earlier court, and the press - which likes to report on conflicts - found it exciting. But politicians no longer fear the Court, and the press has lost interest in it. The AB's good intentions, its desire to uphold the law and its defence of existing laws has knocked it into No Man's Land.

This has had serious consequences. First, the AB is now less influential than the Supreme Court in politics and public life, unlike in the early 1990s. Following the changes of 1989/90, the new elite generally trusted the courts, but not the Supreme Court. It was this lack of confidence that meant that the Supreme Court was not given the right to to examine whether laws were constitutional or not. In this they followed the German model of establishing a separate Constitutional Court, rather than the American or British model.