Centrul de Drept Constituțional și Instituţii Politice (CDCIP)

Attila VARGA – An inconvenient Task or a New Perspective for the Constitutional Court

This paper analyses the new task of the Constitutional Court set by article 146 letter e) of the revised Basic Law, namely the resolution of the legal conflicts of constitutional nature. Following the case law of the Court on the topic we advance several hypothesis concerning the impact of constitutional rules on the role of the Courts and, hence, on the system of relations between fundamental public authorities of the State. The assumptions are:

·      The new task gives the opportunity and, at the same time, obliges the Constitutional Courts to perform a profound interpretation of the content of the constitutional rule, so that sometimes the Court is forced to develop the rules of the Basic Law;

·      Solving constitutional legal conflicts in certain situations, as demonstrated in some decisions, may affect the operation of the principle of separation and balance of powers, helping to re-settle relations between State authorities;

·      Originally conceived as a negative legislator, the Constitutional Courts could become positive legislator, who indirectly gives a new interpretation to constitutional texts, or even modifies or adds rules to them;

·       The Constitutional Court is therefore becoming a fourth power in the State;

·       Constitutional regulations in this matter are not sufficiently clear and consistent, therefore a firm option on the place and role of the Constitutional Court is required even by adopting the appropriate constitutional rules which may also mean amendment to the Constitution.

The paper tries to argue these assumptions and provides a range of issues relating to the modification of some concepts of constitutional theory, such as the theory of constitutional interpretation or the concept of solving legal conflicts of constitutional nature, and how all these influence the exercise of this new task of the Court.