The Constitutional-Judicial Control of the Legislative and Executive Powers in Central and Eastern European Countries

This project looked at the nature, contents, methods, means and legal and political effects of the influence that constitutional courts exercise upon the legislative and executive powers in the newly established democracies of Central and Eastern Europe. The basic hypothesis was that these courts work to provide a limitation of political power within the framework of the principal constitutional values and that they force the legislature and executive to exercise their powers and duties in strict accordance with the constitution. Following a study of the documentary sources, including primarily the relevant constitutional and statutory provisions and decisions of constitutional courts, Mr. Cvetkovski prepared a questionnaire on various aspects of the topics researched and sent it to the respective constitutional courts. A series of direct interviews with court officials in six of the ten countries then served to clarify a large number of questions relating to differences in procedures etc. that arose from the questionnaires. As a final stage, the findings were compared with those described in recent publications on constitutional control in general and in Central and Eastern Europe in particular. The study began by considering the constitutional and political environment of the constitutional courts' activities in controlling legislative and executive powers, which in all countries studied are based on the principles of the rule of law and the separation of powers. All courts are separate bodies with special status in terms of constitutional law and are independent of other political and judicial institutions. The range of matters within their jurisdiction is set by the constitution of the country in question but in all cases can be exercised only with the framework of procedural rules. This gives considerable significance to the question of who sets these rules and different countries have dealt with it in different ways. In some there is a special constitutional law with the same legal force as the constitution itself (Croatia), the majority of countries allow for regulation by an ordinary law, Macedonia gives the court the autonomy to create and change its own rules of procedure, while in Hungary the parliament fixes the rules on procedure at the suggestion of the constitutional court. The question of the appointment of constitutional judges was also considered and of the mechanisms for ensuring their impartiality and immunity. In the area of the courts' scope for providing normative control, considerable differences were found between the different countries. In some cases the courts' jurisdiction is limited to the normative acts of the respective parliaments, and there is generally no provision for challenging unconstitutional omissions by legislation and the executive. There are, however, some situations in which they may indirectly evaluate the constitutionality of legislative omissions, as when the constitution contains provision for a time limit on enacting legislation, when the parliament has made an omission in drafting a law which violates the constitutional provisions, or when a law grants favours to certain groups while excluding others, thereby violating the equal protection clause of the constitution. The control of constitutionality of normative acts can be either preventive or repressive, depending on whether it is implemented before or after the promulgation of the law or other enactment being challenged. In most countries in the region the constitutional courts provide only repressive control, although in Hungary and Poland the courts are competent to perform both preventive and repressive norm control, while in Romania the court's jurisdiction is limited to preventive norm control. Most countries are wary of vesting constitutional courts with preventive norm control because of the danger of their becoming too involved in the day-to-day political debate, but Mr. Cvetkovski points out certain advantages of such control. If combined with a short time limit it can provide early clarification of a constitutional issue, secondly it avoids the problems arising if a law that has been in force for some years is declared to be unconstitutional, and thirdly it may help preserve the prestige of the legislation. Its disadvantages include the difficulty of ascertaining the actual and potential consequences of a norm without the empirical experience of the administration and enforcement of the law, the desirability of a certain distance from the day-to-day arguments surrounding the political process of legislation, the possible effects of changing social and economic conditions, and the danger of placing obstacles in the way of rapid reactions to acute situations. In the case of repressive norm control, this can be either abstract or concrete. The former is initiated by the supreme state organs in order to protect abstract constitutional order and the latter is initiated by ordinary courts, administrative authorities or by individuals. Constitutional courts cannot directly oblige the legislature and executive to pass a new law and this remains a matter of legislative and executive political responsibility. In the case of Poland, the parliament even has the power to dismiss a constitutional court decision by a special majority of votes, which means that the last word lies with the legislature. As the current constitutions of Central and Eastern European countries are newly adopted and differ significantly from the previous ones, the courts' interpretative functions should ensure a degree of unification in the application of the constitution. Some countries (Bulgaria, Hungary, Poland, Slovakia and Russia) provide for the constitutional courts' decisions to have a binding role on the constitutions. While their decisions inevitably have an influence on the actions of public bodies, they do not set criteria for political behaviour, which depends rather on the overall political culture and traditions of the society. All constitutions except that of Belarus, provide for the courts to have jurisdiction over conflicts arising from the distribution of responsibilities between different organs and levels in the country, as well for impeachment procedures against the head of state, and for determining the constitutionality of political parties (except in Belarus, Hungary, Russia and Slovakia). All the constitutions studied guarantee individual rights and freedoms and most courts have jurisdiction over complaints of violation of these rights by the constitution. All courts also have some jurisdiction over international agreements and treaties, either directly (Belarus, Bulgaria and Hungary) before the treaty is ratified, or indirectly (Croatia, Czech Republic, Macedonia, Romania, Russia and Yugoslavia). In each country the question of who may initiate proceedings of norm control is of central importance and is usually regulated by the constitution itself. There are three main possibilities: statutory organs, normal courts and private individuals and the limitations on each of these is discussed in the report. Most courts are limited in their rights to institute ex officio a full-scale review of a point of law, and such rights as they do have rarely been used. In most countries courts' decisions do not have any binding force but must be approved by parliament or impose on parliament the obligation to bring the relevant law into conformity within a certain period. As a result, the courts' position is generally weaker than in other countries in Europe, with parliament remaining the supreme body. In the case of preventive norm control a finding of unconstitutionality may act to suspend the law and or to refer it back to the legislature, where in countries such as Romania it may even be overturned by a two-thirds majority. In repressive norm control a finding of unconstitutionality generally serves to take the relevant law out of legal force from the day of publication of the decision or from another date fixed by the court. If the law is annulled retrospectively this may or may not bring decisions of criminal courts under review, depending on the provisions laid down in the relevant constitution. In cases relating to conflicts of competencies the courts' decisions tend to be declaratory and so have a binding effect inter partes. In the case of a review of an individual act, decisions generally become effective primarily inter partes but is the individual act has been based on an unconstitutional generally binding normative act of the legislature or executive, the findings has quasi-legal effect as it automatically initiates special proceedings in which the law or other regulation is to be annulled or abrogated with effect erga omnes. This wards off further application of the law and thus further violations of individual constitutional rights, but also discourages further constitutional complaints against the same law. Thus the success of one individual's complaint extends to everyone else whose rights have equally been or might have been violated by the respective law. As the body whose act is repealed is obliged to adopt another act and in doing so is bound by the legal position of the constitutional court on the violation of constitutionally guaranteed freedoms and rights of the complainant, in this situation the decision of the constitutional court has the force of a precedent.

The Sociolinguistics of Hungarian Outside Hungary

This study describes the sociolinguistic situation of the indigenous Hungarian national minorities in Slovakia (c. 600,000), Ukraine (c. 180,000), Romania (c. 2,000,000), Yugoslavia (c. 300,000), Slovenia (c. 8,000) and Austria (c. 6,000). Following the guidelines of Hans Goebl et al, the historical sociolinguistic portrait of each minority is presented from 1920 through to the mid-1990s. Each country's report includes sections on geography and demography, history, politics, economy, culture and religion, language policy and planning, and language use (domains of minority and/or majority language use, proficiency, attitudes, etc.). The team's findings were presented in the form of 374 pages of manuscripts, articles and tables, written in Hungarian and English. The core of the team's research results lies in the results of an empirical survey designed to study the social characteristics of Hungarian-minority bilingualism in the six project countries, and the linguistic similarities and differences between the six contact varieties of Hungarian and Hungarian in Hungary. The respondents were divided by age, education, and settlement group - city vs. village and local majority vs. local minority. The first thing to be observed is that Hungarian is tending to be spoken less to children than to parents and grandparents, a familiar pattern of language shift. In contact varieties of Hungarian, analytic constructions may be used where monolingual Hungarians would use a more synthetic form. Mr Kontra gives as an example the compound tagdij, which in Standard Hungarian means "membership fee" but which is replaced in contact Hungarian by the two-word phrase tagsagi dij. Another similar example concerns the synthetic verb hegedult "played the violin" and the analytic expression hegedun jatszott. The contrast is especially striking between the Hungarians in the northern Slavic countries, who use the synthetic form frequently, and those in the southern Slavic countries, who mainly use the analytic form. Mr. Kontra notes that from a structural point of view, there is no immediate explanation for this, since Slovak or Ukrainian are as likely to cause interference as is Serbian. He postulates instead that the difference may be attributable to some sociohistoric cause, and points out that the Turkish occupation of what is today Voivodina caused a discontinuity of the Hungarian presence in the region, with the result that Hungarians were resettled in the area only two and a half centuries ago. However, the Hungarians in today's Slovakia and Ukraine have lived together with Slavic peoples continuously for over a millennium. It may be, he suggests, that 250 years of interethnic coexistence is less than is needed for such a contact-induced change to run its course. Next Mr. Kontra moved on to what he terms "mental maps and morphology". In Hungarian, the names of cities and villages take the surface case (eg. Budapest-en "in Budapest") whereas some names denoting Hungarian settlements and all names of foreign cities take the interior case (eg. Tihany-ban "in Tihany" and Boston-ban "in Boston). The role of the semantic feature "foreign" in suffix-choice can be illustrated by such minimal pairs as Velence-n "in Velence, a village in Hungary" versus Velence-ben "in Velence [=Venice], a city in Italy", and Pecs-en "in Pecs, a city in Hungary" vs. Becs-ben "in Becs, ie. Vienna". This Hungarian vs. foreign distinction is often interpreted as "belonging to historical (pre-1920) Hungary" vs. "outside historical Hungary". The distinction is also expressed in the dichotomy "home" vs. "abroad'. The 1920 border changes have had an impact on both majority and minority Hungarians' mental maps, the maps which govern the choice of surface vs. interior cases with placenames. As there is a growing divergence between the mental maps of majority and minority Hungarians, so there will be a growing divergence in their use of the placename suffixes. Two placenames were chosen to scratch the surface of this complex problem: Craiova (a city in Oltenia, Romania) and Kosovo (Hungarian Koszovo) an autonomous region in southeast Yugoslavia. The assumption to be tested was that both placenames would be used with the inessive (interior) suffixes categorically by Hungarians in Hungary, but that the superessive suffix (showing "home") would be used near-categorically by Hungarians in Romania and Yugoslavia (Voivodina). Minority Hungarians in countries other than Romania and Yugoslavia would show no difference from majority Hungarians in Hungary. In fact, the data show that, contrary to expectation, there is considerable variation within Hungary. And although Koszovo is used, as expected, with the "home" suffix by 61% of the informants in Yugoslavia, the same suffix is used by an even higher percentage of the subjects in Slovenia. Mr. Kontra's team suggests that one factor playing a role in this might be the continuance of the former Yugoslav mentality in the Hungarians of Slovenia, at least from the geographical point of view. The contact varieties of Hungarian show important grammatical differences from Hungarian in Hungary. One of these concerns the variable use of Null subjects (the inclusion or exclusion of the subject of the verb). When informants were asked to insert either megkertem or megkertem ot - "I asked her" - into a test sentence, 54.9% of the respondents in the Ukraine inserted the second phrase as opposed to only 27.4% in Hungary. Although Mr. Kontra and his team concentrated more on the differences between Contact Hungarian and Standard Hungarian, they also discovered a number of similarities. One such similarity is demonstrable in the distribution of what Mr. Kontra calls an ongoing syntactic merger in Hungarian in Hungary. This change means effectively that two possibilities merge to form a third. For instance, the two sentences Valoszinuleg kulfoldre fognak koltozni and Valoszinu, hogy kulfoldre fognak koltozni merge to form the new construction Valszinuleg, hogy kulfoldre fognak koltozni ("Probably they will move abroad."). When asked to choose "the most natural" of the sentences, one in four chose the new construction, and a chi-square test shows homogeneity in the sample. In other words, this syntactic change is spreading across the entire Hungarian-speaking region in the Carpathian Basin Mr. Kontra believes that politicians, educators, and other interested parties now have reliable and up-to-date information about each Hungarian minority. An awareness of Hungarian as a pluricentric language is being developed which elevates the status of contact varieties of Hungarian used by the minorities, an essential process, he believes, if minority languages are to be maintained.