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- Author or Editor: Zoltán Pozsár-Szentmiklósy x
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This paper focuses on the theoretical grounds of supermajority, its special relevance in parliamentary systems and the related experiences from Central and Eastern Europe, especially Hungary.
In parliamentary systems, the support of the parliamentary majority is a necessity and sufficient condition for governance – there is no need for supermajoritarian decision-making in issues of daily politics. A qualified majority has a different function and is an internal institutional limit of the legislative power – protecting the minority interests against the unilateral decisions of the majority in the most important issues of the political community.
The Hungarian situation from 2010–2015 demonstrates that minorities cannot influence the decisions where the supermajority represents a one-party opinion. Moreover, decisions of the supermajority can block future modifications of the future parliamentary majority as well. It will be argued in this paper that only a substantive approach to supermajority can support its basic function.
This paper focuses on the principle of proportionality as a unique technique used in arguing judicial decisions dealing with fundamental rights disputes. I will contest that the principle of proportionality offers fixed steps of examination and makes the thought process of the court transparent. With this approach, conflicts of fundamental rights cannot be handled as zero-sum games, but as disputes in which it is possible to find a fair balance. Furthermore, the principle of proportionality offers a plausible method of controlling the quality of judicial decisions. The function of the principle of proportionality can be identified from different perspectives. Its formal function is to promote a valid and proper judgment. However, after closer examination one can argue that the formal function of the method is to support (a) the justifiability of the decision, (b) the correctness of the legal interpretation, and (c) the transparency of the arguments used. Besides, there are convincing arguments that the principle of proportionality has also an important substantive function in (a) offering more effective protection for human rights, (b) deepening the values of the rule of law, and (c) strengthening the democratic character of the decision-making process by the verifiability of the judicial argumentation.
