When, in October 1990, the Hungarian Constitutional Court, established less than a year earlier, was bold enough to abolish capital punishment at the stroke of a pen, even some of the abolitionists who had initiated the plea before the Court were worried. Many members of the Death Penalty Opposition League assumed that the Hungarian legal system would remove the gallows by a legislative act, after the matter had been debated in Parliament.¹ The velvet-robed judges of the Constitutional Court, however, found two related passages in the Constitution, one which would deny the use of the death penalty, and one which would allow it; notwithstanding the remonstrations of Judge Péter Schmidt, the Court’s doyen, the Court voted 8 to 1 to decree the first the "more constitutional". That is, the Constitutional Court wasted no time in removing the legal system’s most serious punishment in war and peace alike, without allowing the Parliament the option (as Judge Schmidt tried to urge) to choose between the contradictory clauses.

The decision was both reckless and provocative. Only the argument of László Sólyom, the President of the Court, which could serve as an ars poetica of a constitutional judge, was more astonishing than the implementing clauses themselves. "Parliament can maintain, abolish or restore the death penalty as it

pleases, until the Constitutional Court says the final word on the constitutionality of this penalty," declared the former professor of civil law in his parallel opinion (an opinion in agreement with the decision but adducing a different argument). Indeed, in order to avoid all possible misunderstandings, the President also declared that through its decisions the Constitutional Court in practice wishes to formulate an "invisible constitution", superior to the Constitution in force, which would in due course serve as a benchmark for the codification of the new constitution.² The message was crystal clear. At that time and place the Constitutional Court, or more precisely the President, stated its intention to replace its role of guarding and interpreting the Constitution by the role of drafting it.

[...]

Yet one must remember that the Budapest-based Constitutional Court has special legitimacy for its much-criticized and much-applauded uncurbed activities (which many analysts see as outstripping even those of the German Constitutional Court). At the time of the 1989 changes, in order to counterbalance the expected dominance of the successor party to the former state party, it was the opposition parties themselves which urged the formation of the Court, together with its extremely wide scope. Thanks to this, the Court became one of the most powerful constitutional courts in history. "Of the world’s currently operative constitutional courts, or normal courts entrusted with guarding a constitution, the Constitutional Court of the Republic of Hungary has the widest-ranging brief and related legal armory for putting the Constitution into practice," noted one of the judges as early as autumn 1991.⁷ The Court has meanwhile begun to develop a kind of mythical reputation: President Sólyom, for example, fondly described the Court as entrusted with the inheritance of the Opposition Round Table, and as the first-born institution of the new Hungary. In one of its decisions, the Court painted a picture of itself as the "official" trustee of the constitutional revolution, and almost as the conscience of the change of regime itself.

[...]

The interpretation of its role, its activism, and the provocative programme of its President (read: invisible constitution) have all necessarily pitted the Constitutional Court against the prevailing government. Between 1990 and 1994 a major confrontation with the centre-right Antall government concerned its veto of the laws on compensation, restitution and legal redress. Nothing is more characteristic of those embittered debates than the fact that in 1993 one of the leading constitutional lawyers of the largest government party, László Salamon (who in 1989 fought on the same side as László Sólyom as an MDF politician at the National Round Table), publicized proposals for the abolition of the Court.

In the parliament it was the "running over" of the Bokros economic shock therapy package of 1995, and an electoral decision in 1997 that favoured the right-wing opposition, that produced serious tension between the centre-left Horn administration and the Court. In these two cases the Court contradicted not only the interests of the government but its own previous judgments.¹⁶ This partly explains why many began to see political bias in their operation from the mid-nineties onwards. This presumption was only strengthened in the spring of 1995 by the (albeit unsuccessful) wishes of the centre-right opposition to nominate President Sólyom as a candidate for the Presidency of the Hungarian Republic. In the light of all this, there was no chance of László Sólyom receiving the two-thirds majority required for him to grant a further nine-year mandate. The 23rd of November 1998, the end of the President’s term of office, also signalled the end of this heroic period in the history of the Constitutional Court.

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The First President of the Court

Tendo-synovitis was all it took for Hungary to lose a pianist and gain a legal theorist who established a school of legal thinking. Although the first President of the Hungarian Constitutional Court did indeed attend a conservatoire, his tendo-synovitis forced him to end any thought of becoming a professional musician, and he chose to study law instead. On one occasion László Sólyom reported that "in my first book, there were numerous musical composition tricks, which no one else knows of." Indeed, in the last nine years, as the head of the body guarding the Constitution and the fourth in precedence amongst Hungarian dignitaries, he had continued to show one or two "composition tricks". When he retired in November last year, the 57-year-old judge had left an exceptional legacy on the constitutional structure of the new Hungarian state. Even at the helm of the Constitutional Court he remained the intellectual radical he was as a professor of law, and even the mistakes he made are worthy of the attention of students of constitutional law and political science.

Sólyom’s was not exactly a conventional university career. Trained in librarianship as well as in law, he was about to make his way at the foreign-language Gorkij Library in Budapest when an unexpected opportunity arose to teach civil law at the Friedrich Schiller University in Jena. In the following fifteen years, hidden from the outside world, Sólyom studied and worked with the tenacity of a scholar monk. Whatever importance his years of study in Germany would later take, they were against a background of straitened family circumstances. "It was there that we began our life together, and that is where our son was born. We were housed in wooden barracks left over from the war. The only room with running water was an unheated shared bathroom, we had to heat the baby’s bath-water and to wash his nappies on the iron stove. In the corridors Arab scholarship students grilled meat on embers in buckets." This is how Sólyom later described his time in Jena, where he was the only non-Party member of the staff.¹⁷ After being examined on his dissertation in 1969, he took a train out of the German Democratic Republic that same night.

Before being appointed to a full professorship at the relatively early age of 41 (in 1983), Sólyom was a living-breathing Stubengelehrter: He worked at the Political and Legal Studies Institute of the Hungarian Academy of Sciences and also at the Parliamentary Library. His specialist fields were the law of compensation, human rights and environmental law. It was only with this full academic weaponry at his disposal, with a professor’s chair to sit on, and after publishing a number of monographs, that he began to apply his theories in practice. In 1984 he became the legal adviser to the Danube Circle, which was battling against the construction of the dam at Nagymaros; he stood for the legalist side of the movement, all those who sought to keep its activities within the law. In 1985, in a test case, he appeared for a man who wanted to undergo a vasectomy. They lost the case, but it was a turning-point in Hungarian legal practice. In an article published in the journal Valóság he first set out his position that everything was lawful that was not prohibited by law. "The article was talked about even at the Party Committee of Budapest’s First District, and at the Legal Studies Institute they held a Party meeting, where they debated the ideas raised by me. The Institute’s Party establishment supported my position. Today it seems comic that Party approval was given to the severance of the spermatic duct, but this was fairly characteristic of the situation in 1985." This was how, in 1990, he described one of the more interesting moments of the "sloppy dictatorship".¹⁸ From the middle of the eighties, he received an increasing number of invitations to various university clubs, student residences and student summer camps. He lectured on many occasions at the Lawyers’ College on Ménesi út, now considered the nursery for FIDESZ, today the leading party in the government coalition.

From February 1989 he participated, first as an observer and later as an adviser, in the work of the Opposition Round Table (EKA), under the colours of the Independent Lawyers’ Forum. (The Opposition Round Table negotiated the conditions of the transition to free elections under a multi-party system) From April to November he was a member of the executive council of the strongest opposition body, the Hungarian Democratic Forum (MDF). On 24 November 1989, at the suggestion of the MDF, Sólyom was appointed to the Constitutional Court by the last session of the party-state’s "feudal parliament", as the nominee of the EKA. He headed the Court for nine consecutive years, being elected to the position by his fellow judges.

The Sólyom Court played a not inconsiderable role in making sure that the character of Hungary’s transformation over the last decade be that of a "forward flight" (defending by attacking) rather than restoration. The constitutional judges used their decisions to help create a modern, Rechtsstaat along Western lines, that is a political order based on the rule of law; this is why they decided against the restoration of the property relations of 1946–7, that is, reprivatization. "We have ensured a level of freedom of speech higher than the European average, and on questions of environmental and data protection we have gone further than the law in the United States," was how the Chief Judge described some other fields of the Court’s activities.

László Sólyom’s father was the first in the family to receive a higher education. Despite his degrees in Law and French, he was forced in the fifties to support his family as a forestry worker. In his youth Sólyom was not particularly interested in appearances, as Chief Judge of the Constitutional Court, however, he was conspicuous in attributing great significance to status symbols. A residence to fit the office, bodyguards, elegant Rover cars, an impressive office building in the area below the Castle District in Budapest, a state security patrol—step by step Sólyom brought to the Constitutional Court the trappings of power, which would help raise the profile of this brand-new legal institution in the state hierarchy. In actual fact, however, the Court has attracted genuine respect because of its rulings. "We are professional idealists in a pragmatic world. We represent the abstract values of the Constitution, and one of our most important functions is reestablishing the law’s tarnished reputation. I think this is the fulcrum which will allow us to lever the old world out of its place." This is how Sólyom once described the mission of the body defending the Constitution, in his accustomed prophetic tone.¹⁹

Notes