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  • 1 the University of Arst Tg. Mures Ernei, jud. Mures, nr. 799 547215 Targu Mures Romania

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.

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  • 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).

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  • 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.

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  • I will return to this aspect later on.

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  • In this paper the term “government” is used as synonym for the executive body.

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  • 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.

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  • According to Decision no. 1257 of October 7, 2009, fundamental institutions of the state are those enumerated by the Constitution.

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  • 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

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