Concluding Remarks

Many argue that the Ewigkeitsklausel or implicit unamendability as judicial dis­covery is not eternal because law as a social construct cannot be eternal, the constituent power cannot burden future generations.^[1026] What is more, as Ackerman points out, constitutions sometimes change independently of changes in the text of a constitution, and these changes are sometimes more significant than the formal amendments.^[1027] What is then the relevance of our discussion?

Constructing formal or informal unamendability means that, within one con­stitutional system, it is not possible to amend the constitution either by constitu­tional amendment or by interpretation, by denying the nature of constitutional democracy.

Naturally, unamendable norms are unamendable only from the point of view of a normative legal order, they are unamendable only in law and by law, their status belongs to a given constitutional order created by society for ensuring stability, democracy and freedom, limited government and fundamental rights protection. A given constitutional order is over if its unamendable norms change. As a result, a new order is created.^[1028]

In Hungarian legal literature, it is Andras Bragyova, a former judge of the Constitutional Court, who formulated the most convincing arguments that justify the unamendability of certain provisions of the Hungarian Constitution and the Hungarian Fundamental Law, although neither includes unamendable provisions explicitly. He expressed this view not only in legal scholarship but in his concurring and dissenting opinions in Constitutional Court case law.

But all Members of the European Union should know the limits of amendability of their own constitutions. Intense disputes have emerged on the topic of una­mendability with regard to the limits of transfer of state sovereignty to the European Union. The absolute limits of such transfers lie in the unamendable norms or in the otherwise defined unamendability of the constitutions of the Member States. Pure political consensus, for example, cannot consent to certain EU developments if they are in contradiction with the unamendable parts of a constitution.^[1029] The unamendability of a single provision of a single national constitution alone can influence the limits of EU law because the consent of all the Member States is necessary to be able to amend the EU ‘constitutional’ order.

What are the consequences of this interpretation for the Hungarian constitutional order? So far, both the amending power, the two-thirds majority of the Parliament and the Constitutional Court agree that procedural reviews of constitutional amendments are unavoidable so as to check whether an amendment has been adopted at all. If the Fundamental Law has unamendable norms, and I have argued in line with Judge Bragyova that there are norms and principles that are una­mendable, the judicial protection of the Fundamental Law must include protection against the violation of these unamendable norms. I have argued here that Article I paragraphs (1) and (2) of the Fundamental Law contain unamendable norms, and that, furthermore, a different type of unamendability can also be discovered by judicial methods of interpretation. The principles of democratic constitutionalism stipulated during the democratic transition of 1989-1990 in the Preamble of the former Constitution, such as multiparty democracy, rule of law, social market economy and parliamentary democracy, can be regarded as such unamendable norms. In addition, the principles of coherent (rational, logical) legal interpretation, the protection of the basic structure, and the constitutional order of values may be regarded as judicial innovations of the Hungarian Constitutional Court that could lead, through judicial application, to a formal checks and balances constitutional change with the purpose of protecting the democratically settled constitutional order.^[1030]