Judicial self-perceptions and the separation of powers in varied political regime contexts: the constitutional courts in Hungary and Slovakia

ABSTRACTThe study of constitutional courts (CCs) of post-communist Europe typically entailed the belief in CCs’ transformative potential for the consolidation of democracy. Recently, this belief has been questioned, albeit the knowledge of why at least some CCs in the region failed to prevent the rise of non-democratic regimes remains limited. This article addresses this gap via the cases of Hungary and Slovakia, which have taken a different trajectory post-2010: the Slovak CC (SCC) remains an independent institution, while the Hungarian CC (HCC) has been packed by the executive. By combining contextual case law analysis of judgments referring to democracy and semi-structured interviews, the article shows that, during critical moments, the HCC did not perceive itself as responsible for Hungarian democracy, which resulted in its self-marginalisation. The SCC was largely spared from similarly critical moments, which, however, facilitated particular self-perceptions of its responsibility (or lack thereof). These findings offer empirical support for institutionalist scholarship that emphasizes the impact of ideas in calibrating the self-perceptions of political institutions and their positioning in the political system. Constitutional courts remain inseparable from the political regimes they are located in.KEYWORDS: Constitutional courtsilliberalizationdemocracy protectionHungarySlovakiacontextual case law analysis Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 For example, in an article titled ‘Constitutional courts and parliamentary democracy’, Stone Sweet (Citation2002) mentions the term ‘democracy’ merely twice.2 Dworkin’s ‘conceptions’ are preferred over ‘meanings’ as the subjective articulations of ‘understandings’ of the concept. On ‘meanings’ versus ‘understandings’, see Osterberg-Kaufmann et al. (Citation2020).3 Since only one keyword is used, the difficulties associated with correct results based on the search of compound terms (Sebők et al., Citation2023, pp. 9–11) do not arise.4 The complete dataset covering cases referring to democracy in connection with other fundamentals (such as fundamental rights and political participation) and separate opinions (not analyzed here due to space restrictions) is part of a broader project (Steuer, Citation2019b, pp. 51–52 [Figures 5 and 6]). The total number of opinions included in the dataset (available upon request from the author) is 220 for Hungary and 231 for Slovakia, meaning that the opinions related to the separation of powers represent 17.7 per cent of all Hungarian and 13.4 per cent of all Slovak CC opinions from the dataset.5 Indeed, readers versed in the two CCs’ case law may be surprised by not seeing some of the well-known cases in the empirical analysis, for example, the SCC’s interpretation of the presidential appointment powers of the attorney general. This is because the keyword search did not flag them as referring to democracy.6 Not unlike Richard Albert (Citation2010, pp. 228–235) through the notion of ‘fused powers’, although in a less nuanced manner.7 The essence of the argument was that with such an interpretation, decrees would be more protected than primary legislation at the state and territorial state-government levels, which is ‘not acceptable in a representative democracy’ (PL. ÚS 17/2014, p. 43).8 While the Court did enhance procedural guarantees in its fourth term, the slowness of doing so in the early years of this term has further removed barriers on virtually unconstrained fast-track legislation, even in cases of constitutional amendments (Šipulová & Steuer, Citation2023).9 In PL. ÚS 10/05, the reference appears in copying the text of the petitioner to the case law on the ‘constitutional control and cooperation’ between the three branches of government mutually (p. 134) but the principle of the ‘democratic state under the rule of law’ is highlighted several times (without any coherent pattern though). In PL. ÚS 102/2011, the petitioners (p. 66) refer to the ‘plea for courts and democracy’ that had appeared in II. ÚS 28/96 (discussed above), and twice in the judges’ justifications. A novelty is the declaration that, in post-transitional democracies, the exact shape of the judiciary is a process of ‘searching’ by the legislature via ‘trial-and-error’: ‘[the legislature] reacts to the weaknesses it had identified in the previous regulation’ (p. 107). A second, more minor reference (p. 137) embeds the courts in the ‘normative space of law and democracy’ to justify the need for transparency in publicizing judicial decisions.10 For example, in Hungary, the constitutional review cases pertaining to the COVID-19 pandemic do not signal engagement with key political concepts and rather appear to search for reasons to dismiss constitutional constraints on the executive (for a similar early assessment of the COVID-19-related case law, see Szente & Gárdos-Orosz, Citation2021, pp. 169–170). In December 2022, the SCC, while invalidating several legislative provisions due to violation of procedural rules of lawmaking, still kept the distinction between democracy ('elected representatives', 'voting') and the rule of law ('constitutionally and legislatively determined procedure', 'proposed legal provisions that become laws') in its otherwise rich reasoning (PL. ÚS 13/2022, 122).Additional informationFundingEarlier versions of this article were presented at the 2019 Canadian Political Science Association Annual Conference, the Stanford Program in Law and Society's Sixth Conference for Junior Researchers and the Ninth Annual Doctoral Scholarship Conference at Yale Law School. Comments by Professor Darina Malová, the participants of the above academic events, the guest co-editors and reviewers of European Politics and Society are gratefully acknowledged, as is the valuable input of the interviewees. This research was supported by The Ministry of Education, Science, Research and Sport of the Slovak Republic under the grant number VEGA-1/0658/23 and the SYLFF Research Grant 2022–484. All translations from Slovak and Hungarian are the author’s, unless indicated otherwise. The usual disclaimer applies.