When examining the amendment to the Fundamental Law that terminated Tamás Sulyok’s term as President of the Republic, essentially two questions were brought before the Constitutional Court: (1.) whether there are any legal limits on a two-thirds parliamentary majority, and (2.) whether the Constitutional Court may review compliance with these limits when considering an amendment to the Fundamental Law. According to the majority opinion of the court, there are no legal limits on a two-thirds parliamentary majority, and in any case, the court would not be able to review compliance with such limits. At the same time, different views on the potential limits to a two-thirds parliamentary majority emerge in the majority decision, as well as in the concurring and dissenting opinions.
In its majority decision, the Constitutional Court held that “the Fundamental Law contains no provisions deemed unalterable by the constituent power that must be taken into account as a constitutional standard.” Provisions that cannot be amended through a constitutional amendment process are referred to in constitutional law as eternity clauses. The first provision of this kind appeared in the Norwegian Constitution of 1814, but probably the most famous eternity clause is found in the German Basic Law (Grundgesetz). However, as Constitutional Court Justice Zoltán Márki noted in his concurring opinion, an eternity clause “will not become eternal through Constitutional Cour’s interpretatione,” but through a decision of the constituent power. And as the majority opinion pointed out, the Hungarian Fundamental Law does not contain an eternity clause.
Constitutional Court Justice Dr. Réka Varga also supported the rejection of the motion under review; however, in her concurring opinion, she noted that she did not agree with the assertion that the Hungarian Fundamental Law does not set forth specific standards for the constituent power. In her view, the scope of the constituent power is not entirely unlimited, even if in the absence of an eternity clause in the Fundamental Law, and even if the Fundamental Law does not provides for legal accountability for violations of the limits she identified. As a counterexample, she cited the generally recognized rules of international law (so-called ius cogens), which are expressly mentioned in Article Q, paragraph (2), of the Fundamental Law.
Constitutional Court Justice Dr. Attila Horváth also argues that the Fundamental Law does contain limits, and, in his view, the legislature can be held accountable for compliance with them—and thus he could not support the majority decision. To underpin this position, he drew on Article R(3) of the Fundamental Law, according to which the provisions of the Constitution must be interpreted in light of their purpose, the National Creed contained therein, and the achievements of the historical constitution. In his view, it follows from this provision, taken together with the historical constitution, and the Constitutional Court’s case law, that certain constitutional standards also serve as limits on the power to amend the Constitution. These standards “constitute the foundation of Hungary’s constitutional order and form a set of values whose existence cannot be derived from the text of the Constitution as it currently stands.”
Constitutional Court Justice Dr. Ildikó Hörcher Marosi supported the majority’s decision, however, regarding the question of the limits of the constituent power, she went beyond this legal debate and drew attention to an important political-philosophical point. In her view, the rules of international law mentioned above and the decisions of the Constitutional Court serve “merely as safeguards” of the limit on the constitutional majority; the “true limit lies in constitutional culture itself” (paragraph 98 of the decision). Constitutional democracy cannot exist without the support of the relevant political community; in other words, establishing such limits would require the agreement of opposing political camps. According to Dr. Ildikó Marosi, the 1989 regime change can be considered complete in a constitutional sense only when the ruling constitutional majority itself accepts the self-limiting logic of constitutionalism.
In summary, Constitutional Court Decision No. 1385/2026 reaffirmed that the parliamentary two-thirds majority is not subject to any legal restrictions. Therefore, perhaps the most significant constitutional question in the planned constitutional drafting process will be whether the two-thirds parliamentary majority will remain free from such restrictions.
