Part I — Situation overview

On 24 July 2026 fifty members of parliament of Fidesz–KDNP, which has moved into opposition, turned to the Constitutional Court (hereinafter CC — the independent constitutional body that carries out the constitutional review of laws and of certain judicial decisions). According to press reports, in the framework of a posterior judicial review — that is, the constitutional review of an already effective piece of legislation — they requested the annulment of the amendment to the Fundamental Law that terminated the mandate of the President of the Republic with immediate effect. The same group of MPs, in a second petition, also requested the annulment of the legislation needed for the conditions — called “super-milestones” — attached to the disbursement of 5,900 billion forints of EU funds, objecting to the lack of substantive consultation. Meanwhile the governing side would, according to the news, already elect a new constitutional judge on Monday’s sitting day — Amnesty International Hungary criticised this as a “single-party”, unjustifiably hastened procedure.

In public-law terms the situation is composed of several sharply distinct threads, and precisely for this reason it is worth patiently untangling. The first thread is the question of whether a constitutional amendment can be challenged. The CC has no power to review a constitutional amendment substantively; it may examine it only from a procedural standpoint. That is exactly why the petitioners — according to the reports — are challenging not the content of the decision but the procedure: their argument is that the power to amend the constitution is abused if it is used not to create norms of general validity but to terminate the mandate of a single specific person, that is, for an individual public-power decision. The second thread is the judicial review of the legislation tied to the EU funds — this is the subject of an ordinary, statutory-level dispute. The third, and perhaps most important, thread is the procedure for electing constitutional judges: whom, with what level of agreement and at what pace, the legislature elects to the body.

It is important to fix two unavoidable public-law facts, because without them the debate collapses into one. On the one hand, amending the Fundamental Law is tied to a qualified, two-thirds majority — in the 199-member National Assembly this requires the agreement of 133 members; this is therefore not a simple-majority matter. On the other hand, the members of the CC are likewise elected by the National Assembly, with a two-thirds majority, for twelve years — that is, the mandate extends far beyond a single electoral cycle. These two rules are no accident: the purpose of the high threshold is precisely that the most important institutional decisions should rest not on the momentary state of a single political will but on broad agreement.

In MIAK’s reading the nature of the situation is dual. The constitutional testing of a piece of legislation — judicial review — is the ordinary, healthy functioning of the rule of law; it is not in itself a problem but a value that a contested decision can come before the CC. The risk lies not here but where the personnel composition of institutional control is shaped in haste by one side without involving the other. MIAK’s position is consistently power-side-neutral: single-party constitutional-judge election — whichever force does it — in the long term erodes the body’s authority, and thereby weakens the very institution that every future government will need.

Part II — Literature foundation

Before turning to MIAK’s concrete proposals, it is worth fixing the theoretical frame. Montesquieu (the legal philosopher of the Enlightenment, founder of the theory of the separation of powers) formulates the basic thesis of modern constitutionalism in his work The Spirit of the Laws: everyone who holds power is inclined to abuse it, therefore power must be a check to power. From this it follows that the same majority that makes the rules should not also be the sole designator of the institution that watches over it — because control is only control if it does not stem from the same hand. H. L. A. Hart (one of the most influential legal philosophers of the 20th century) shows in his work The Concept of Law that a legal system is held together not only by rules prescribing conduct but also by the so-called secondary rules: these say who, and in what procedure, may change the rules themselves. If it is precisely this “rule of change” that a single majority can shape alone, without limit, the system loses the predictability from which the rule of law flows. The detailed literature treatment — by author, with quotations — can be found in the 6.4 Literature in detail section.

Part III — MIAK’s concrete proposal

MIAK proposes three measurable measures which together ensure that judicial review and the election of constitutional judges strengthen the rule of law rather than serving as the instrument of a momentary power situation. Each of the proposals is power-side-neutral: they speak equally to today’s majority and to any future one.

3.1 Consensual, qualified constitutional-judge nomination and a mandatory public hearing (before the next election)

MIAK proposes that the election of constitutional judges should not be the decision of a single side but the result of genuine, documented consultation. The two-thirds threshold of the Fundamental Law already aims at broad agreement; MIAK would make this substantive with a package of procedural guarantees: the nomination should begin with mandatory, minuted parliamentary consultation, the impartiality and professional suitability of the candidates should be verifiable at a public hearing (where the candidate publicly answers professional and constitutional-law questions), and the body’s membership should reflect the agreement forged in the nomination. This is the practical implementation of programme point A6 (strengthening checks and balances) and of programme point I4 (protection of judicial and constitutional-court independence). The aim is not to slow the election but to ensure that the body’s legitimacy remains solid after the next change of government too — precisely because the mandate runs for twelve years (see 6.4.1).

3.2 Institutionalising the reversibility test: a constitutional stress-test for every major institutional step (on an annual cycle)

MIAK proposes that every step affecting the system of checks and balances — whether it concerns a judicial election, a reallocation of powers or a constitutional amendment — should be tested with a single recurring question: can a future simple or qualified majority reverse it? If a measure can be reversed only with difficulty or not at all by the usual democratic route (like the twelve-year constitutional-judge mandate), then broad agreement is especially warranted for its introduction. MIAK would institutionalise this logic within the I10 constitutional stress-test: an independent expert body annually and publicly assesses whether the state of the institutional system would withstand a hypothetical concentration of power. This yardstick protects in both directions — against today’s majority and against a future one alike (see 6.4.2).

3.3 The sharp separation of norm and individual decision: mandatory impact assessment and procedural transparency (in law-making)

One of the real public-law questions of the ongoing debate — regardless of who raises it — is that the power to amend the constitution serves to create general norms, not an individual public-power decision tailored to a single person. MIAK would fix this at the level of principle, as a rule equally valid for everyone: law-making, especially at the constitutional level, should be tied to a mandatory, public impact assessment (I3) — one that examines whether the proposal really creates a rule of general validity, whom it affects, and to what extent it is reversible. Thus in future it will not be the given political situation but a transparent procedural requirement that decides whether an amendment is a genuine norm or a disguised individual decision. And judicial review — whichever side initiates it — should remain the ordinary constitutional route: the CC adjudicates it impartially, according to its own procedural framework.

The three proposals are bound together by a single principle: the symmetry of checks and balances. Institutional control is credible if it depends not on the momentary majority but on rules and broad agreement — and if the same constraint binds today’s side that we also expect of the next. This theoretical underpinning is provided by the literature foundation (see 6.4 Literature in detail).

Part IV — Expected effects and risks

Dimension Expected effect Risk
Rule of law Consensual judicial election and a public hearing stabilise the CC’s legitimacy across changes of government If the election remains single-party and hastened, the body’s authority is durably harmed — the next side may act in the same way
Institutional trust The reversibility test provides a transparent yardstick; decisions become more predictable The institutional yardstick itself may become politicised if its methodology is contested and not independent
Society Separating norm from individual decision strengthens the sense that the rules apply equally to everyone Rapid steps without consultation create the perception of “the winner takes all”, which erodes public trust

The main deliberative question is the tension between speed and durability. A new majority has an understandable interest in filling its own mandate with institutional decisions as soon as possible — but precisely because of the twelve-year mandate that reaches beyond the cycle, the price of haste is legitimacy. The lesson is symmetrical: the yardstick we apply today to the current side protects the next one tomorrow.

Part V — Measurability and summary

5.1 What is worth tracking? (proposed performance indicators)

It is proposed that the following performance indicators (KPIs, in English Key Performance Indicator — key, quantified result indicators) be tracked over 12–24 months:

  • The share of constitutional-judge elections preceded by documented parliamentary consultation and public hearings: target 100%.
  • The share of persons nominated for CC membership who underwent a public hearing before election: target the whole set.
  • The share of institutional decisions affecting the system of checks and balances for which the reversibility (constitutional stress-) analysis was prepared: target 100% by 2028.
  • The share of constitutional-level legislative amendments accompanied by a public impact assessment and an assessment of the norm/individual-decision character.

5.2 Summary

MIAK’s key message: guardianship over the law is strong if it depends not on who happens to be in power but on the rule and on broad agreement. MIAK asks the decision-maker to precede the constitutional-judge election with genuine consultation and a public hearing, and to leave judicial review as the ordinary, impartial constitutional route. This approach moves two MIAK foundational values together: institutional independence, because it seeks to preserve the CC’s authority independently of power fluctuations, and transparency, because it places the nomination and the law-making under a public, verifiable procedure. These two are decisive precisely here because the stake of the topic is not the outcome of a single case, but that institutional control works the same way under the next government too.

Part VI — Justifications and further sources

6.1 The press framing by spectrum

The conservative-pro-government band (Mandiner, Magyar Nemzet) placed the matter most in the centre. Mandiner detailed the opposition petition (“The keyword: posterior judicial review”), highlighting the procedural argument of the 56-page submission and the fact that the petitioners would also initiate a preliminary ruling procedure before the Court of Justice of the European Union. Magyar Nemzet highlighted the criticism of Amnesty International Hungary, according to which the governing side, following a “single-party” practice, would elect a new constitutional judge with unjustified haste, even though the sixty-day deadline would allow for genuine professional and political consultation.

The public-affairs-left-liberal band (Telex) ran two threads: on the one hand the judicial review of the legislation needed for the 5,900 billion forint EU funds, where the petitioners object to the lack of substantive consultation, and on the other — following Amnesty — the haste of Monday’s constitutional-judge election. This band treated judicial review as a legitimate rule-of-law instrument, while also signalling the problem of the single-party judicial election.

The economic band (Portfolio) focused on the substantive details of the turn to the CC (“It has come to light with what Fidesz turned to the Constitutional Court”) — the full text of the article was not publicly downloadable, so only a headline-level reference is available for it. For MIAK it is instructive that the topic appears in exactly the reverse political configuration from what was previously customary: now it is the opposition that uses the instrument of judicial review, and the governing side the schedule of the judicial election. It is this reversal that most sharply illuminates why institutional guarantees must be power-side-neutral.

6.2 Facts and data

Data Value Source
Challengers of the Fundamental Law amendment 50 (Fidesz–KDNP) MPs, 56-page submission Mandiner 23 July 2026
The challenged provision the point terminating the mandate of the President of the Republic Mandiner 23 July 2026
Nature of the legal argument procedural irregularity (the CC may not substantively review a constitutional amendment) Mandiner 23 July 2026
EU aspect initiation of a preliminary ruling procedure before the CJEU Mandiner 23 July 2026
Subject of the second petition the legislation needed for the 5,900 billion HUF “super-milestones” Telex 24 July 2026 (headline-level)
Criticism of the constitutional-judge election Monday’s election instead of the sixty-day deadline Magyar Nemzet / Amnesty 24 July 2026
Threshold for amending the Fundamental Law two-thirds = 133 mandates in the 199-member National Assembly Fundamental Law

A few public-law facts for precise interpretation. The Constitutional Court is an independent constitutional body; it exercises judicial review, that is, it examines the constitutionality of laws and of certain judicial decisions — it is not an ordinary judicial forum, and it is not a second instance above the Curia. The CC may examine a constitutional amendment exclusively from a procedural (not substantive) standpoint. The members of the CC are elected by the National Assembly with a two-thirds majority, for twelve years. The President of the Republic is likewise elected by the National Assembly — not appointed by the government. Amending the Fundamental Law is tied to a qualified, two-thirds majority; ordinary laws can be adopted by simple majority too, but amending cardinal acts (laws of a distinguished subject requiring the vote of two-thirds of the members present) also requires a qualified majority.

6.3 Policy dimensions

  • Justice (programme points) — the protection of constitutional-court and judicial independence, the constitutional stress-test and the mandatory legislative impact assessment provide the backbone of the proposal;
  • Transparency and anti-corruption policy (programme points) — the strengthening of checks and balances and the measurement of the genuine independence of control institutions provide the institutional background of the proposal;
  • Legal foundations (internal knowledge base) — the precise handling of the separation of powers and of the powers of the institutions is the public-law frame of the entire analysis.

6.4 Literature in detail

6.4.1 Montesquieu: The Spirit of the Laws

Montesquieu ties political liberty to moderate, limited power, and from this derives the necessity of the separation of powers. According to the classic thesis of the work, everyone who holds power is inclined to abuse it, “and to extend his power as far as it will go”; therefore — in the author’s words, rendering the sense of the Hungarian translation — “so that power cannot be abused, it is necessary, from the nature of things, that power should be a check to power”. In the debate over the constitutional-judge election the message of this is that control fulfils its role only if it does not stem from the same hand as rule-making: if the same majority both creates the norm and alone designates the body that watches over it, the check and the balance merge, and the meaning of the constraint ceases.

📖 Source: Montesquieu: The Spirit of the Laws

6.4.2 H. L. A. Hart: The Concept of Law

Hart argues that a developed legal system consists of the layering of two types of rule upon one another. One type prescribes conduct, the other — the secondary rules — regulates how the rules themselves can be recognised, changed and applied. As Hart puts it:

“Rules of the first type impose duties; rules of the second type confer powers, public or private.”

Within this frame the basis of the system is the “rule of recognition”, which says what counts as valid law and in what procedure it can be changed. From the standpoint of the present case this is the most important warning: if it is precisely the rule of change — namely, who and with what agreement may shape the institutional system — that a single majority can turn alone, without limit, then the system loses the predictability and shared acceptance from which the rule of law flows. This consideration underpins MIAK’s reversibility test: the rule for changing the system may be shaped only with special caution and broad agreement.

📖 Source: H. L. A. Hart: The Concept of Law

6.5 International comparison

The international yardstick of the legitimacy of constitutional courts is provided by the recommendations of the Venice Commission (the Council of Europe’s advisory body on constitutional law), which consistently recommend a balanced, consensus-seeking nomination procedure and election by qualified majority — precisely so that the body does not become a function of a single political force. The high threshold on its own, however, is not enough: if a single side reaches the two-thirds even so, a single-party practice can develop even while the formal rule is observed. The German model provides a counter-example, where the election of federal constitutional judges traditionally requires a genuine bargain between the governing and the opposition sides, so that the body’s composition remains accepted independently of political division. The lesson is power-side-neutral: legitimacy is provided not by the existence of the threshold but by the genuine agreement behind the threshold.

Justice

  • I4 — Protection of judicial independence (strengthening of constitutional-court powers)
  • I10 — Constitutional “stress-test”
  • I3 — Legislative impact assessment
  • I9 — Popular-sovereignty audit (law-making with citizen feedback)

Transparency and anti-corruption policy

  • A6 — Strengthening checks and balances
  • A9 — Spin-dictatorship prevention index
  • A7 — Media pluralism as an institutional guarantee

Proposed new programme point: Consensual constitutional-judge nomination procedure — mandatory, minuted parliamentary consultation and a public hearing before every constitutional-judge election — for the Justice and the Transparency and anti-corruption policy areas.

6.7 List of sources

Press sources (MIAK press monitor, 25 July 2026 — topic 4):

Knowledge-base references (literature):

  • 📖 Montesquieu: The Spirit of the Laws
  • 📖 H. L. A. Hart: The Concept of Law

Note: the local file path of the book does NOT appear in the visible text of the blog — only the author and the title.

MIAK internal materials:

  • MIAK policy area: Justice (programme points; programme point ID: I10)
  • MIAK policy area: Transparency and anti-corruption policy (programme points; programme point ID: A6)
  • MIAK policy area: Legal foundations (internal knowledge base)
  • MIAK press monitor, 25 July 2026 — topic 4, score: 80/100

Additional public data sources:

  • Recommendations of the Venice Commission (Council of Europe) on the nomination and election procedure of constitutional courts
  • The relevant provisions of the Fundamental Law on the powers of the Constitutional Court and the election of its members

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