After the fall of authoritarian communist regimes and emergence of constitutional governments, constitutional review systems were designed in Central and Eastern Europe. Post-communist systems mostly followed the French and German models of abstract and concentrated review, with courts’ powers stemming from the Constitution and determined by the legislator. How can constitutional courts limit governmental power, and to what degree can they resist political attempts to alter their competence—these are the questions to which answer are sought referencing two recent Hungarian and Romanian constitutional court decisions. The two courts had to face different challenges and go down different paths—significantly departing even from their respective “traditional” stances—and they both arrived at controversial findings. This paper argues that it has not been primarily a problem of constitutional design, but rather contextual factors that have amplified the weaknesses of the system and consequently led to growing disenchantment and diminishing trust in the guardians of constitution.
In Chief Justice Marshall’s famous words: “It is, emphatically, the province and duty of the judicial department, to say what the law is.” Marbury v Madison, 5 U.S. (1 Cranch) 137(1803).
PL-x nr. 134/2012, available at http://www.cdep.ro/pls/proiecte/upl_pck.proiect?idp=12702 PL-x nr. 283/2012 available at http://www.cdep.ro/pls/proiecte/upl_pck.proiect?idp=12794.
Emergency Ordinance no. 38/2012, Official Gazette no. 445/2012.
Law CXIX of 2010 for the modification of Law XX of 1949 on the Constitution of the Hungarian Republic. Law CXX of 2010 for the modification of Law XXXII of 1989 on the Constitutional Court.
Sadurski, W.: Constitutional Review in Europe and in the United States: Influences, Paradoxes and Convergences. Sydney Law School Legal Studies Research Paper, (2011) 11/15, available at
Sadurski W., 'Constitutional Review in Europe and in the United States: Influences, Paradoxes and Convergences' (2011) 11Sydney Law School Legal Studies Research Paper: 15-.
Sadurski W.Constitutional Review in Europe and in the United States: Influences, Paradoxes and ConvergencesSydney Law School Legal Studies Research Paper20111115)| false
Report of the Presidential Commission for the analysis of the political and constitutional regime — To consolidate the rule of law, 2008, available at: http://www.presidency.ro/static/ordine/CPARPCR/Raport_CPARPCR.pdf.
In this paper the term “government” is used as synonym for the executive body.
Veys, M (2008): Analysis of the ECPRD correspondents’ replies. In: Igot, N.- Rezsohazy, A.- Van Der Hulst, M.: Parliament & Judiciary. ECPRD Seminar, Belgian House of Representatives and the Belgian Senate. 2008, 223–233. available at:
Veys M., '', in Parliament & Judiciary, (2008) -.
Veys M.Parliament & Judiciary2008)| false
Decision no. 727 of July 9, 2012.
As a telltale of the constitutional tangle caused by the overlap of legislative and executive lawmaking, it has to be remarked, that on the very same day that it found the first bill unconstitutional, the Court ruled upon two complaints lodged against decisions of the Chamber of Deputies and the Senate to revoke their presidents. Awkwardly enough, the Court found that it had no jurisdiction to rule upon the decisions of revocation. The argument rested on the fact that even if the bill that altered its jurisdiction and excluded from its competence non-legislative decisions of Parliament was found unconstitutional, the emergency ordinance, with the same content was still in force, therefore, “in order to maintain a state of constitutionality”, it had to reject the complaints. Decisions no. 728 and 729 of July 9, 2012.
PL-x nr. 283/2012
Decision no. 727 of July 9, 2012.
Decision no. 799 of June 17, 2011, on the legislative proposal for the revision of the Constitution of Romania.
Decision no. 738 of September 19, 2012.
Law no. 47/1992 on the organization and functioning of the Constitutional Court.
The Court uses the term “valen??” (valence) in its figurative sense: value, significance.
Ionescu, C.: Despre atributia Curtii Constitutionale de a examina constitutionalitatea hotararilor Camerelor legislative si ale Parlamentului. Curierul Judiciar, (2012) 8. 467.
Ionescu C., 'Despre atributia Curtii Constitutionale de a examina constitutionalitatea hotararilor Camerelor legislative si ale Parlamentului' (2012) 8Curierul Judiciar: 467-.
Ionescu C.Despre atributia Curtii Constitutionale de a examina constitutionalitatea hotararilor Camerelor legislative si ale ParlamentuluiCurierul Judiciar20128467)| false
According to Decision no. 1257 of October 7, 2009, fundamental institutions of the state are those enumerated by the Constitution.
Interestingly enough, the Court did not find it necessary to dwell upon the unorthodox practice of legislation through (emergency) ordinances, stating merely en-passant that the act under scrutiny was at odds with the constitutional reasons that could justify the urgent character of the act, constituting, therefore, an abuse.
Decision no. 421 of May 9, 2007. It must be noted that according to the original version of the Constitution (adopted in 1991), decisions of unconstitutionality in the ex-ante review procedure could have been overruled by Parliament, through a qualified majority vote. This provision though, was deleted from the 2003, revised, version of the Constitution.
Decison AB 184/2010. The tax was aimed at reclaiming 98% of those severance payments made to public sector workers that were higher than HUF 2 million.
Law no. CXIX of 2010 for the amendment of Law no. XX of 1949 on the Constitution of the Hungarian Republic, and Law CXX of 2010 for the amendment of Law no. XXXII of 1989 on the Constitutional Court.
It must be noted that Hungary recently adopted a new Constitution (Fundamental Law), which has been in force since January 1. 2012.
L.C. Golak Nath and Others v State of Punjab AIR, 1967 SC 1643.
Kesvananda Bharati v Statel of Kerala, 1973 SC 1961.
Decision AB 61/2011.
Halmai, G.: op. cit.
Rooted in Decision AB 239/B/1994
Dixon, R.: Transnational Constitutionalism and Unconstitutional Amendments. The University of Chicago Public Law and Legal Theory Working Paper, (2011) 349, 12–15, available at:
Dixon R., 'Transnational Constitutionalism and Unconstitutional Amendments' (2011) 349The University of Chicago Public Law and Legal Theory Working Paper: 12-15.
Dixon R.Transnational Constitutionalism and Unconstitutional AmendmentsThe University of Chicago Public Law and Legal Theory Working Paper20113491215)| false
Scheppele, K. L.: Democracy by Judiciary. Or, Why Courts Can be More Democratic then Parliaments. In: Czarnota, A.- Krygier, M.- Sadurski, W. (eds): Rethinking the Rule of Law after Communism. CEU Press, (2005), 25–61.
Scheppele K. L., '', in Rethinking the Rule of Law after Communism, (2005) -.
Scheppele K. L.Rethinking the Rule of Law after Communism2005)| false
Former art. 145 para. 1 of the Constitution required a 2/3 majority in both chambers of the Parliament to override a decision of the Court
Gilia: op. cit.
Halmai: op. cit.
Rosenfeld,.: Constitutional Adjudication in Europe and the United States: Paradoxes and Contrast (working paper). International Journal of Constitutional Law, 2 (2004) 4, available at
Rosenfeld , 'Constitutional Adjudication in Europe and the United States: Paradoxes and Contrast (working paper)' (2004) 2International Journal of Constitutional Law: 4-.
Rosenfeld Constitutional Adjudication in Europe and the United States: Paradoxes and Contrast (working paper)International Journal of Constitutional Law200424)| false