Part I — Situation overview

According to the Constitutional Court’s website the body is in judicial recess until 28 August, yet it has nonetheless been convened for Thursday, 13 August. On the agenda is the motion for ex-post judicial review submitted by the now opposition Fidesz–KDNP MPs, which asks for the annulment of four provisions: the termination of the mandate of former President of the Republic Tamás Sulyok (following the 17th amendment to the Fundamental Law, which entered into force on 19 July), the winding up and taking into state ownership of the public-interest asset management foundations performing public duties — colloquially the “kekvas” —, the termination of constitutional judges’ mandates through the restoration of the age limit of 70, and the limitation of parliamentary mandates to twelve years. The session takes place two days after Parliament, on 11 August, by secret ballot and with 140 votes in favour and 6 against, elected as President of the Republic András Baka, former president of the Curia, who takes office on 19 August.

The legal-technical narrowness of the case follows from the fact that the Constitutional Court may review amendments to the Fundamental Law not on substance but exclusively on procedural — public-law invalidity — grounds. This restriction was in its time built in by the earlier governing majority itself. The petitioners therefore invoke the “breach of the procedural requirements of the Fundamental Law”: on their argument Parliament abused its constitution-amending power, because it used it not to create a norm of general application but to remove a single specific person, that is, to take an individual act of public authority. The submission also moves that, before the decision on the merits, the body initiate a preliminary ruling procedure before the Court of Justice of the European Union. There is also a question whether the session can be held at all: in June a similar motion could not be kept on the agenda because seven of the fifteen constitutional judges declared a ground for exclusion, citing personal and direct concern, and the body ceased to be quorate. The mandate of the members of the body now deciding expires on 1 September. According to the legal scholars Zoltán Fleck and Péter Hack, speaking to 24.hu, the consequences of either outcome may be grave.

MIAK’s reading in this matter is one of principle and symmetrical. Terminating an individual office-holder’s mandate by constitutional amendment is a bad instrument — irrespective of which side applies it, and also irrespective of whether the result in the given case happens to look good. The symmetry here is not abstract: the newly elected head of state was in 2011 removed from his judicial leadership post by this very technique, by constitutional amendment, and for this the European Court of Human Rights in Strasbourg condemned Hungary in 2016. If the procedure was wrong then, by the same yardstick it is wrong today. This is the real character of the problem: the question is not whom the amendment favours, but whether the constitution-amending power may be used to decide individual cases.

Part II — Literature foundation

Before turning to MIAK’s proposals it is worth recording in what conceptual frame the present dispute can be interpreted. In his essay collection The Authority of Law, the Israeli-British legal philosopher Joseph Raz deliberately defines the rule of law as a formal virtue: it is not identical with democracy, with justice or with human rights, but requires that law be capable of guiding the conduct of its addressees — and therefore that particular decrees be subordinated to general, public and relatively stable rules. This formality is the key to the present case: the yardstick is applicable to both sides precisely because it does not depend on the content of the decision. In section 131 of the Second Treatise of Government the English philosopher John Locke formulates the same distinction as the antecedent of modern constitutionalism: the legislative power is bound to govern by “promulgated established laws” made known to the people, not by extemporary decrees. Finally, the official explanatory memorandum to Article 24 of the Fundamental Law of Hungary records that the Constitutional Court is the principal organ for the protection of the Fundamental Law, responsible for constitutional consistency “both as regards the procedure and as regards its result” — that is, procedural review is not a narrower, “second-order” power but the core of the body’s function. The detailed treatment of the literature — author by author, with quotations — can be found in the 6.4 Literature in detail section.

📖 Source: Joseph Raz: The Authority of Law; John Locke: Second Treatise of Government; Fundamental Law of Hungary (text in force and the explanatory memorandum to Article 24)

Part III — MIAK’s concrete proposal

MIAK proposes three measurable measures, each of which applies in the same way to whichever majority is in government — hence to the present one as well.

3.1 An irremovability guarantee in the Fundamental Law (submission within 90 days)

MIAK proposes that within ninety days a proposal to amend the Fundamental Law be put before Parliament stating that the mandate of a constitutional office-holder (President of the Republic, constitutional judge, president of the Curia, Prosecutor General, president of the State Audit Office, Commissioner for Fundamental Rights) may be terminated exclusively on a ground that was already contained in the law in force at the time the mandate came into being. The essence of the guarantee is self-restraint: the rule should enter into force from the next parliamentary term, so that the submitting majority binds itself, not its opponent. This is the point at which the proposal parts company with day-to-day political gain — whoever submits it today will derive no advantage from it tomorrow. The proposal builds on the I10 constitutional stress test and the A6 checks and balances programme points, and in the Razian formal frame (see 6.4.1) it does exactly this: it subordinates the individual decision to a prior, general rule.

3.2 A public exclusion and quorum procedure at the Constitutional Court (30 days)

The June episode — the simultaneous declaration of exclusion by seven constitutional judges, followed by the loss of quorum — shows that at a well-definable point in the body’s operation there is no predictable rule. MIAK proposes that within thirty days the Constitutional Court adopt and publish rules of procedure which (1) typify what counts as “personal and direct concern” — treating separately the case in which the motion touches the legal status of the judges; (2) require the reasoning of a declaration of exclusion to be public; and (3) fix what happens if, because of exclusions, the plenary session ceases to be quorate: postponement, partial adjudication or severance of the case. This is not a loosening of the rule on concern but of unpredictability: today the outcome of the procedure depends on how many judges declare a ground for exclusion and when, which leaves the institution itself exposed.

3.3 An annual constitutional amendment report — part of the constitutional stress test (from the first quarter of 2027)

MIAK proposes that from the first quarter of 2027 an annual public, numerical report be produced on constitutional amendment practice, as a separate chapter of the constitutional stress test described in programme point I10. The report should give four data for every amendment: the number of days between submission and the final vote, whether an impact assessment was made (I3), whether the amendment is a general norm or affects an identifiable specific group of persons, and whether international proceedings were brought because of it. On MIAK’s proposal the preparation of the report is the task of an independent expert body, and the raw data should also appear in machine-readable form. This is the set of indicators from which the drift of constitution-making practice over the years becomes visible — not from the temperature of a single case.

The three proposals are held together by a common principle: the constitution-amending power is also power, and therefore the requirement of operating according to a previously known, general rule applies to it as well. The Lockean distinction (see 6.4.2) says precisely this: the difference between the “established, promulgated law” and the “extemporary decree” is not stylistic but the dividing line of arbitrary exercise of power. MIAK’s proposals make this dividing line measurable.

Part IV — Expected effects and risks

Dimension Expected effect Risk
Public law Filling constitutional offices becomes more predictable; constitutional amendment returns to its role of creating general norms The irremovability guarantee may conserve a badly chosen or unfit office-holder if the range of grounds for removal is not precise enough
Institutional operation The Constitutional Court’s exclusion practice becomes predictable, and the loss of quorum will not be a procedural instrument The typified rule on concern may become rigid and force exclusion even in cases where bias does not in fact exist
Publicity The annual report makes the terms comparable and steers the debate from persons to procedure Numerical indicators say nothing in themselves about the substantive weight of an amendment — the report can be misread as a “quantitative” assessment
International standing A symmetrical yardstick applied to ourselves as well strengthens the credibility of the Hungarian position in EU rule-of-law disputes In the short term the submission of the guarantee can be framed as domestic political weakness if the public does not understand the logic of self-restraint

The most sensitive trade-off lies in proposal 3.1. The irremovability guarantee is the stronger the more narrowly it defines the grounds for termination — yet that same narrowness makes genuinely justified removal difficult (for example in the case of criminal liability or lasting incapacity to perform the duties). The proposal works only if the list of grounds is exhaustive, and if establishing them is not a political vote but the result of an evidentiary procedure. The risk of proposal 3.2 mirrors this: if the rule on exclusion is too broad, the body can be paralysed; if it is too narrow, bias remains within the decision. In both cases the correct solution is procedural: not the tightening of the substantive yardstick but the fixing of who decides, when, and with what reasoning.

Part V — Measurability and summary

5.1 What is worth tracking? (proposed KPIs)

MIAK proposes four performance indicators (KPIs) for tracking, from which in 12–24 months it will be visible whether constitution-making practice has shifted:

  • The number of constitutional amendments with individual effect per year — those amendments which affect an identifiable, individual group of persons. Proposed target: zero.
  • The average lead time between submission and the final vote for amendments to the Fundamental Law — proposed minimum: 30 days, so that time remains for professional and public debate.
  • The number of Constitutional Court plenary sessions cancelled for lack of quorum — proposed target: zero, in the 12 months following the adoption of the 3.2 rules of procedure.
  • The number of Strasbourg condemnations of the Hungarian state in rule-of-law matters — worth tracking, because the effect of the symmetrical yardstick appears here latest, but most reliably.

5.2 Summary

MIAK’s request to decision-makers can be summed up in a single sentence: let the constitution-amending majority bind itself for the case when it is no longer the majority. Concretely: let them submit within ninety days the irremovability guarantee in a form taking effect from the next term, and let the Constitutional Court publish within thirty days its rules of procedure on exclusion and quorum. From the public MIAK asks that Thursday’s decision be read not from the outcome but from the procedure: the question is whether the body delivers a reasoned, followable decision that can be compared with its own earlier practice.

In this matter two of MIAK’s foundational values move together. Ideology-free analysis, because the value of a yardstick lies precisely in the fact that we do not know in advance whom it will favour: whoever considers a constitutional amendment with individual effect bad only when it is directed against them is not using a yardstick but an interest. And accountability, because the predictable filling of an office is the precondition of holding to account — whoever can be removed by rewriting the rules afterwards is kept in position not by the law but by the majority of the day, and thus answers not to the law but to the majority.

Part VI — Justifications and further sources

6.1 The press framing by spectrum

The left-liberal and public affairs band placed the emphasis on the body’s ability to function and on the stakes of the decision. HVG raised the tension between the judicial recess and the placing on the agenda into its headline (“The Constitutional Court convenes during the judicial recess to decide on the fate of its own members”), and presented in detail the June loss of quorum, as well as the fact that some of the judges taking the decision are themselves affected by the restoration of the age limit of 70. By giving voice to two legal scholars, Zoltán Fleck and Péter Hack, 24.hu foregrounded the risks of the outcome, and highlighted separately the procedural detail that the former head of state did not make use of the possibility of prior judicial review but signed the amendment. This band therefore focused primarily on the institutional risk.

The conservative band framed the same day from the legal content of the submission. Mandiner set out the structure of the motion item by item — the 56-page submission, the argument of abuse of power, and the motion to turn to the Court of Justice of the European Union — and in a separate article raised the question of symmetry, comparing the 2011 and the 2026 removal. Magyar Nemzet emphasised the openness of the process (“It is not over yet”), while ATV reported the fact of the placing on the agenda. It is noteworthy that on this occasion the two ends of the spectrum raise the same symmetry question — with opposite signs: the conservative band, invoking the 2011 precedent, expects the present removal to be condemned, while the left-liberal band reads the same parallel as a retrospective justification of the 2011 practice. According to MIAK it is precisely this duality that shows why the yardstick has to be fixed independently of the outcome.

In neither band, however, did the question appear of what general rule could prevent the situation from recurring. The press discusses the outcome of the present case; MIAK’s proposals concern the next one.

6.2 Facts and data

Datum Value Source
Result of the election of the President of the Republic 140 in favour, 6 against (secret ballot) Parliament, 11 August 2026; 444.hu, Portfolio
Day of taking office 19 August 2026 Hungarian Official Gazette, 11 August 2026
Day of the Constitutional Court session 13 August 2026 (within the judicial recess running to 28 August) Constitutional Court; Mandiner, HVG
Number of contested provisions 4 (presidential mandate, kekvas, constitutional judges’ age limit, MPs’ term limit) 24.hu, Mandiner
Number of constitutional judges declaring a ground for exclusion at the June session 7 (of the 15-member body) HVG
Expiry of the mandate of the constitutional judges concerned 1 September 2026 HVG, 24.hu
Length of the submission 56 pages Mandiner
Hungary’s rule-of-law indicator +0.35 World Bank, Worldwide Governance Indicators 2024

The inclusion of the rule-of-law indicator here is deliberate: the World Bank’s value of +0.35 moves on a scale running roughly between −2.5 and +2.5, so Hungary stands in the upper part of the middle field. This is the baseline against which the constitution-making practice of the present cycle can be measured from 2027 — and whose movement is slower than the daily political dispute, and therefore also a more reliable signal.

6.3 Policy dimensions

  • Justice (programme points) — the constitutional stress test (programme point ID: I10) and legislative impact assessment (programme point ID: I3) provide the direct basis for proposals 3.1 and 3.3; the protection of judicial independence (programme point ID: I4) is the wider frame, because the predictable filling of constitutional offices also affects judicial status;
  • Transparency and anti-corruption policy (programme points) — the strengthening of checks and balances (programme point ID: A6), through the institutional independence index, offers precisely the measurability that proposal 3.3 would extend to constitutional amendments;
  • Public administration and e-government (background material) — the stability of the legal status of constitutional office-holders also sets a pattern for the predictability of leadership selection in public administration.

An important conceptual distinction, regularly blurred in the press debate: the Constitutional Court is not an ordinary judicial forum and not a second instance above the Curia. It exercises judicial review, that is, it examines the constitutionality of legal rules — and, in the case of a constitutional complaint, of judicial decisions — rather than conducting a substantive legal review. The present case concerns ex-post judicial review: the examination of provisions that have already entered into force.

6.4 Literature in detail

6.4.1 Joseph Raz: The Authority of Law

In the eleventh essay of the volume Raz deliberately narrows the concept of the rule of law: he identifies it neither with democracy, nor with justice, nor with human rights, because in his view a concept thus inflated loses its usability — if the rule of law means “the rule of good law”, then the expression says no more than that the good must prevail. Instead he traces it back to a single basic intuition: law must be capable of guiding the conduct of its addressees, and from this most of the traditional requirements can be derived — prospective effect, publicity, intelligibility and relative stability. The core of the doctrine is therefore the following relation of subordination:

“What the doctrine requires is the subjection of particular laws to general, open, and stable ones. It is one of the important principles of the doctrine that the making of particular laws should be guided by open and relatively stable general rules.”

In the Hungarian constitutional amendment debate this thesis provides the most precise yardstick. The petitioners’ argument — that the constitution-amending power was used to take an individual act of public authority — asserts exactly the reversal of the Razian relation of subordination: it is not the general rule that guides the individual decision, but the individual decision that puts on the form of a general rule. Raz’s formalism is valuable for MIAK because it is expressly content-neutral: that is precisely why it can be applied in the same way to the 2011 and to the 2026 case.

📖 Source: Joseph Raz: The Authority of Law

6.4.2 John Locke: Second Treatise of Government

In section 131 Locke draws the dividing line that has become one of the foundation stones of modern constitutional thought: the legislative power received from the community cannot extend beyond the common good, and is bound in its form as well. In Locke’s formulation, whoever holds the legislative or supreme power in a commonwealth is bound “to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees”. The criterion, then, is not whether the power is formally entitled to take the decision, but in what form it takes that decision.

The distinction is literally applicable to today’s Hungarian situation. A constitutional amendment is formally the highest-level general norm; if, however, its content is the termination of the mandate of a single, individually identifiable office-holder, then functionally it is an extemporary decree — in Locke’s conceptual frame precisely what the legislative power may not do. MIAK’s proposal 3.1 — the irremovability guarantee — translates this Lockean requirement of form into a legal-technical rule, and does so in a way that, because of its self-binding character, narrows not the opponent’s room for manoeuvre but the submitter’s.

📖 Source: John Locke: Second Treatise of Government

6.4.3 Fundamental Law of Hungary (text in force and explanatory memorandum)

The official explanatory memorandum to Article 24 of the Fundamental Law defines the Constitutional Court as the principal organ for the protection of the Fundamental Law, and expressly records that the body’s responsibility is to secure constitutional consistency “both as regards the procedure and as regards its result”. The memorandum also lists item by item the elements of the system of powers: prior judicial review of adopted but unpromulgated acts, ex-post concrete judicial review of a legal rule applied in an individual case, and the constitutional complaint, as well as — for a defined circle of initiators — ex-post abstract judicial review.

For the present case this has two consequences. On the one hand, procedural review is not some kind of residual power: according to the text of the memorandum the constitutionality of the procedure is an independent, equal-ranking aspect of examination. On the other hand it is visible that the system of powers was originally built on multi-stage protection — the intention of prior judicial review was precisely that a contested provision could be examined before entering into force. When this stage is left out, ex-post examination is inevitably in a more difficult position: it has to decide about a provision that has already entered into force and produced legal effects.

📖 Source: Fundamental Law of Hungary (text in force and the explanatory memorandum to Article 24)

6.5 International comparison

Several legal systems handle the problem of the constitutional amendment with individual effect by procedural means. In Germany, Article 79(3) of the Basic Law — the so-called eternity clause — excludes the amendment of certain fundamental principles, and according to the practice of the Federal Constitutional Court the amending power is not unlimited either. In India the Supreme Court developed the “basic structure doctrine” in the 1973 Kesavananda Bharati case, according to which the constitution may be amended but its basic structure may not. In Austria a “total revision” of the constitution (Gesamtänderung) is subject to a compulsory referendum, which operates as a procedural brake. These solutions differ in technique, but they have in common that they do not judge the content of the amendment on a political balance but set a pre-fixed formal-procedural limit — exactly what the Razian frame (see 6.4.1) requires in theory.

The peculiarity of the Hungarian situation is that here the exclusion of substantive review and the retention of procedural review live side by side. According to MIAK this is not necessarily a problem: the procedural limit is workable in itself if there is a pre-fixed, general rule to go with it. Proposal 3.1 would supply precisely this missing rule — not by widening the body’s powers but by the self-restraint of the constitution-amending power.

Justice

  • I3 — Legislative impact assessment
  • I4 — Protection of judicial independence
  • I10 — Constitutional “stress test”

Transparency and anti-corruption policy

  • A6 — Strengthening checks and balances

Proposed new programme point: An irremovability guarantee for constitutional office-holders — for the Justice area.

6.7 List of sources

Press sources (MIAK press monitor, 12 August 2026 — topic 2):

Knowledge-base references (books):

  • 📖 Joseph Raz: The Authority of Law
  • 📖 John Locke: Second Treatise of Government
  • 📖 Fundamental Law of Hungary (text in force and explanatory memorandum)

Note: the local file path of the books does not appear in the visible text of the blog — only the author and the title. The file path is an internal matter of the generation process, not the reader’s.

MIAK internal materials:

  • MIAK policy area: Justice (programme points; programme point ID: I3, I4, I10)
  • MIAK policy area: Transparency and anti-corruption policy (programme points; programme point ID: A6)
  • MIAK policy area: Public administration and e-government (background material)
  • MIAK press monitor, 12 August 2026 — topic 2, score: 91/100

Additional public data sources:

  • World Bank — Worldwide Governance Indicators 2024 (rule-of-law indicator)
  • Collection of Constitutional Court decisions — abhatarozatok.hu
  • European Court of Human Rights — Baka v. Hungary (2016)

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