Special Section: Populism and Constitutionalism
The Twin Challenges to Separation of Powers in Central
Europe: Technocratic Governance and Populism
David Kosař*, Jiří Baroš** and Pavel Dufek***
Separation of institutions, functions and personnel – Checks and balances –
Hungary, Poland, Czechia, Slovakia – Short tradition of separation of powers
in Central Europe – Fragile interwar systems of separation of powers –
Communist principle of centralisation of power – Technocratic challenge to
separation of powers during the EU accession – One-sided checks on the elected
branches and empowering technocratic elitist institutions – Populist challenge to
separation of powers in the 2010s – Re-politicising of the public sphere, removing
most checks on the elected branches, and curtailing and packing the unelected
institutions – Technocratic and populist challenges to separation of powers
interrelated more than we thought
Until the 2010s, Central Europe was routinely depicted as an unequivocal
success story of the post-communist transition to constitutional democracy.1
It seemed that the peoples of Central Europe would live happily ever after.
Given this optimistic outlook, recent developments in Central Europe must
*Head of the Judicial Studies Institute (JUSTIN) and Associate Professor, Faculty of Law,
Masaryk University; email: david.kosar@law.muni.cz. We are grateful to Paul Blokker, Francesco
Clementi, Silvia Steininger, JUSTIN members, EuConst editors, two anonymous reviewers, and
often anonymous audiences in Heidelberg, Milan, Münster, Oslo and Prague for their suggestions
and comments that significantly improved the original manuscript. The research leading to this
article has received funding from the European Research Council (ERC) under the European
Union’s Horizon 2020 research and innovation programme (grant no. 678375-JUDI-ARCHERC-2015-STG)
and from the Czech Science Foundation (grant no. 19-11091S).
**Assistant Professor, Faculty of Social Studies, Masaryk University; email: baros@fss.muni.cz.
***Assistant Professor, Faculty of Social Studies, Masaryk University; email: dufek@fss.muni.cz.
European Constitutional Law Review, 15: 427–461, 2019
© 2019 The Authors doi:10.1017/S1574019619000336
1
The only exception was Slovakia during Mečiar’s regime in 1993–1998, which was referred to
as a ‘laggard’ (A.C. Janos, East Central Europe in the Modern World: The Politics of the Borderlands
from Pre- to Postcommunism (Stanford University Press 2000)) and a ‘troubled democracy’
(H. Kitschelt, Post-Communist Party Systems: Competition, Representation, and Inter-Party
Cooperation (Cambridge University Press 1999) at p. 42).
427
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have come as a surprise to many. Hungary started drifting toward ‘illiberal
democracy’2
in the early 2010s,3
Poland has witnessed the same turn since
2015,4
and Czechia may follow suit as a consequence of the 2017 parliamentary
elections and the 2018 presidential elections.5
Slovakia, a political laggard in the
1990s6
and the least ‘democratically experienced’ state in the region, all of a
sudden became the only country in the region that is not, for now, on the clear
‘reverse transition’ track.7
As Hanley and Vachudová put it, ‘the narrative of
progress in the region is dead, replaced by democratic backsliding – and even
sliding into authoritarianism’.8
The majority of scholarly reflections on recent Central European developments
have been framed as the deterioration of the rule of law or as an attack on liberal
democracy and constitutionalism.9
We find these works illuminating. However, we
argue that the separation of powers sheds further light on both the sources and the
layers of the difficulties contemporary Central European democracies are facing.
First, the concept of separation of powers provides a more concrete and
fine-grained analytical tool to assess current developments in Central Europe than
all-encompassing and abstract notions such as democracy, constitutionalism, and
2
Note that this concept is contested, as populism may represent both a democratic corrective
and a threat to democracy. See J.-W. Müller, What is Populism? (University of Pennsylvania Press
2017) at pp. 56-57; C.R. Kaltwasser, ‘The ambivalence of populism: threat and corrective for
democracy’, 19 Democratization (2012) p. 184.
3
See M. Bánkuti et al., ‘Hungary’s Illiberal Turn: Disabling the Constitution’, 23 Journal of
Democracy (2012) p. 138.
4
See W. Sadurski, Poland’s Constitutional Breakdown (Oxford University Press 2019).
5
See S. Hanley and M. Vachudová, ‘Understanding the illiberal turn: democratic backsliding in
the Czech Republic’, 34 East European Politics (2018) p. 276.
6
See supra n. 1.
7
Even this claim could be disputed after the assassination of the investigative journalist Ján
Kuciak and his girlfriend in February 2018. However, the victory of a liberal anti-corruption activist
Zuzana Čaputová in the 2019 presidential elections shows that Slovakia is currently more immune
to the populist spell than its Visegrad neighbours.
8
See Hanley and Vachudová, supra n. 5. The same phenomenon is emphasised in this issue by
P. Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism’, p. 519,
M. Krygier, ‘Institutionalisation and its Trials. (Anti-)Constitutional Populism in
Post-Communist Europe’, p. 544, S. Suteu, ‘The Populist Turn in Central and Eastern Europe:
Is Deliberative Democracy (Part of) the Solution?’, p. 488.
9
See e.g. G. Halmai, ‘From the “Rule of Law Revolution” to the Constitutional CounterRevolution
in Hungary’, in W. Bedenek (ed), European Yearbook of Human Rights (Intersentia
2012) p. 367; L. Pech and K.L. Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the
EU’, 19 CYELS (2017) p. 3; A. von Bogdandy et al., ‘Guest Editorial: A potential constitutional
moment for the European rule of law – The importance of red lines’, 55 CMLRev (2018) p. 983;
K.L. Scheppele, ‘The opportunism of populists and the defense of constitutional liberalism’, 20
German Law Journal (2019) p. 314.
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the rule of law.10
Second, our disaggregation of the separation of powers into clearly
defined components allows us to identify different sources of erosion of the
separation of powers throughout the entire modern history of Central Europe,
which components were attacked and in what sequence.11
Third, in comparison
to the abovementioned abstract notions, understanding the recent developments
in Central Europe in terms of separation of powers is much closer to the thinking
of ordinary people and their everyday political experience. Quite simply, Central
European citizens are more familiar with the language of separation of powers12
than with rather technical concepts such as rule of law, or constitutionalism, which
are embedded in the specialised jargon of lawyers, often incomprehensible to
ordinary people, and too remote from the people’s everyday exposure to politics.
Finally, many scholars engaging with populism touch upon separation of powers,13
but even the most recent contributions14
to this debate do not treat separation of
powers as the central focus of their analysis.
In this regard, Central Europe serves as a sort of magnifying glass for the
challenges to the separation of powers that take place in other parts of the world
as well. More specifically, given the recent assaults on the separation of powers in
the region, we have at our disposal a wealth of examples for theorising about the
goals and strategies of populist leaders with respect to the constitutional democratic
framework. Be it Viktor Orbán’s ‘constitutional Blitzkrieg’ against the judiciary
and other independent agencies, Jarosław Kaczyński’s packing of the Polish
Constitutional Tribunal and purging of the Supreme Court, or similar tendencies
on the part of R´obert Fico in Slovakia and Andrej Babiš in Czechia,15
we have on
our hands a real-world laboratory of the limits and cracks of separation of powers.
We show that all of these charismatic leaders, to varying degrees, perceive a
functioning separation of powers as a major obstacle which prevents them from
10
For a similar claim see C. Möllers, ‘Separation of Powers – A Short Manual for the Perplexed’,
in H.-M. Napel et al. (eds.), The Powers That Be: Rethinking the Separation of Powers. A Leiden
Response to Möllers (Leiden University Press 2016) at p. 324-325.
11
This exercise would again be extremely difficult to do with concepts such as the rule of law,
liberal democracy or liberal constitutionalism, which (in contrast to separation of powers) had much
less traction in Central Europe before WWII and under communist rule.
12
It is common sense that too much power concentrated in the hands of one person or group
(no matter whether it is a politician or a boss in your company or a family member) sooner or later
leads to the abuse (or at least arbitrary use) of power. Such basic common sense about what the rule
of law or liberal democracy or constitutionalism entails arguably does not exist.
13
See infra nn. 150-155.
14
See 2019 ICON Symposium on ‘Public Law and the New Populism’ (ICON, Vol. 17, Issue 2)
and the twin German Law Journal special issues on ‘Public Law and Populism’ (2019, Vol. 20,
Issue 2) and on ‘Populist constitutionalism: Varieties, complexities, and contradictions’ (2019,
Vol. 20, Issue 3).
15
See below.
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centralising power and running their countries smoothly. They share the same
playbook, even though Orbán and Kaczyński went further than their Czech
and Slovak counterparts and actually managed to dismantle virtually all
(Orbán) or many (Kaczyński) institutional barriers to pursuing their will.
At first sight, it might seem puzzling that these political leaders faced so little
resistance from the relevant institutions and managed to push through their
centralisation agenda without much public disapproval. In fact, the majority
of the people seem to be at best indifferent to, if not supportive of, their actions.
However, on closer inspection, these developments are not that surprising. We
show that the separation of powers is at best a flimsy and certainly not a particularly
longstanding tradition in Central Europe and that this path-dependence has
substantial ramifications for present-day political developments. Contrary to many
contributors to the ongoing debate on the state of the rule of law in Central Europe,
we thus emphasise the embeddedness of the current problems in the history and
legal cultures of the region. In other words, the history of the separation of powers
and the abuse thereof plays a significant role in understanding the current
predicament of Central European countries.
Our argument is threefold. First, we argue that the fragile interwar systems of
separation of powers in Central Europe were further disfigured during communist
rule, and subsequently by the EU’s technocratic ‘let the experts rule’ approach to the
separation of powers. This made it easier for populists to attack the separation of
powers and in particular its checks and balances component. Second, with an
overview of the Central European trajectory in this area, we argue that the two
major recent challenges to the separation of powers in the region – the rise of
the unelected and the wave of populism – are more interrelated than usually
thought and that the former has greatly contributed to the latter. In fact, it can
be understood as a direct precursor to, and an important part of the triggering
mechanism of, recent populist expansion. We construe this series of developments
and the related phenomena as an ‘overreaction’ to an ‘overreaction’. The accession
period overreacted to the communist past by extreme depoliticisation of the public
sphere, installing one-sided checks on the elected branches and empowering
technocratic elitist institutions (especially the judiciary). This, in turn, led to
populist overreaction, which swung the pendulum back to the other extreme by
the re-politicising of the public sphere, removing most checks on the elected
branches, and curtailing and packing the unelected institutions (in particular the
judiciary). Third, we show that each Central European regime attacked some
components of separation of powers more aggressively than others.
The article proceeds as follows. In the next section, we briefly explicate the
internal logic of the separation of powers and unpack it into four key components:
separation of institutions, separation of functions; separation of personnel; and
checks and balances. Subsequently, we explain the peculiar Central European
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understanding of separation of powers in the pre-WWII era as well as the
communist principle of ‘democratic centralisation’ of power. We thus set the stage
for a discussion of the two current major challenges to the separation of powers in
Central Europe – technocratic governance and populism. Finally, we argue that
the problems of the separation of powers in Central Europe are greater than any
quick institutional fix could remedy.
T   :      
 
The concept of separation of powers is notoriously vague and controversial.16
Moreover, we usually only realise what separation of powers is, and what value
it is to us, once we have lost it. Therefore, in order to understand the extent
to which actions by populist leaders in Central Europe have impacted upon
the separation of powers, we need to conceptualise this principle carefully. In
order to do so, we will unpack it into four constitutive components.
For the purposes of this article, we construe the separation of powers so as to
include both the three core components of the principle of ‘separation’ (separation
of institutions, functions and personnel) as well as the principle of checks and
balances.17
In other words, we combine the ‘pure’doctrine of separation of powers
(which consists of the first three components)18
with the older doctrine of
‘mixed constitutions’ which ultimately transformed into the modern principle
of checks and balances.19
While the coexistence of the separationist and balancing
16
See e.g. E. Carolan, The New Separation of Powers. A Theory for the Modern State (Oxford
University Press 2009); C. Möllers, The Three Branches (Oxford University Press 2013);
J. Waldron, Political Political Theory (Harvard University Press 2016).
17
This is in fact a standard account in the separation of powers literature (see e.g. Möllers, supra n.
10, p. 43-49; A. Kavanagh, ‘The Constitutional Separation of Powers’, in D. Dyzenhaus and
M. Thorburn (eds.), Philosophical Foundations of Constitutional Law (Oxford University Press
2016) p. 221 at p. 233-234, Waldron, supra n. 16, p. 49; A. Saj´o and R. Uitz, The Constitution
of Freedom. An Introduction to Legal Constitutionalism (Oxford University Press 2017) at p. 129-
139; and D.B. Maldonado, ‘The Conceptual Architecture of the Principle of Separation of
Powers’, in D. Bilchitz and D. Landau (eds.), The Evolution of the Separation of Powers Between
the Global North and the Global South (Edward Elgar 2018) at p. 150-156).
18
M.J.C. Vile, Constitutionalism and the Separation of Powers (Liberty Fund 1998) at p. 14. For
criticism of the pure doctrine from a historical perspective see in particular N. Matteucci, Lo Stato
moderno (Il Mulino 1997) at p. 147-157; M. Troper, La separation des pouvoirs et l’histoire
constitutionnelle française (L.G.D.J. 1980).
19
A. Somek, The Cosmopolitan Constitution (Oxford University Press 2016) at p. 38ff. and 57ff.;
Vile, supra n. 18, p. 79.
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components has turned out to be rather uneasy in practice,20
as their underlying
logics pull in opposite directions,21
we believe that these four components capture
the core of the principle of separation of powers22
on the domestic level.23
As regards the three key ‘separationist’ components, the separation of institutions
‘counsels against the concentration of too much political power in the hands of any
one person, group, or agency’.24
Among institutional expressions, we find imperatives
such as no overlap with and no accountability to other branches, or the formal
separation of government and Parliament. Because powers in a constitutional state
are not ‘allocated to different branches on a random basis’,25
separation of institutions
must be linked to the prior idea of specific functions. The separation of functions
stems from the idea that all government acts ‘can be classified as an exercise of
the legislative, executive, or judicial function’,26
which should be entrusted solely
to the corresponding branch of the government (‘institution’). Even though in practice
these functions do not always fully overlap with institutions (branches),27
there is
nevertheless something intuitively plausible about wanting the legislature to create
laws, the executive to carry them out, and courts to adjudicate on them, each avoiding
excessive ‘contamination’ by practices alien to the respective functions.28
Finally, the
20
M.E. Magill, ‘The Real Separation in Separation of Powers Law’, 86 Virginia Law Review
(2000) p. 1127 at p. 1130.
21
R. Guastini, Leçons de théorie constitutionnelle (Dalloz 2010) at p. 155-161.
22
We explain our conceptual approach in more detail elsewhere: see J. Baroš et al., ‘Unpacking
the Separation of Powers’, in A. Barraggia (ed.), New Challenges to the Separation of Powers (Edward
Elgar forthcoming). See also supra n. 17.
23
Due to space constraints, we cannot engage here with the EU’s division of competence
literature. See e.g. H.-M. Napel et al. (eds.), The Powers That Be: Rethinking the Separation of
Powers. A Leiden Response to Möllers (Leiden University Press 2016); S. Garben and I. Govaere
(eds.), The Division of Competences Between the EU and the Member States (Hart Publishing 2017);
R. Schütze, European Union Law, 2nd
edn (Cambridge University Press 2018).
24
Waldron, supra n. 16, p. 49. Waldron treats the principle of dispersal of powers independently
of the principle of separation of powers. Because we pursue slightly different aims, we ‘spread’
dispersal of power across the three types of separation.
25
Kavanagh, supra n. 17, p. 230.
26
Vile, supra n. 18, p. 17.
27
Examples of such mingling include judicial law-making, the existence of quasi-judicial bodies and
administrative agencies (that engage in court-like behaviour), courts acting as administrative organs,
parliaments acting as administrative organs or as courts, delegated legislation by the executive, or
administrative legislation. Some scholars even challenge the assumption that each branch is endowed
with one core function (see e.g. Kavanagh, supra n. 17, p. 226-227); but cf H. Kelsen, General Theory
of Law and State (The Lawbook Exchange 2011) pt III; and Carolan supra n. 16.
28
Waldron, supra n.16, p. 66ff. Of course, the tripartite division itself has always been controversial,
and various authors either reduce the number of branches to two or expand it to four, five or even
more (see e.g. G. Bognetti, Dividing Powers. A Theory of the Separation of Powers (Wolters Kluwer
2017); and Carolan, supra n. 16), with the extra branches provided by administration, media,
constitutional courts or external (international) actors.
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third separationist component, the separation of personnel (or personal incompatibility)
then stands for the idea that one person should not sit in more than one branch of
government. Again, the pure imperative of strict separation of personnel turned out to
be too demanding. Especially in parliamentary systems, being simultaneously an MP
and a minister is considered appropriate, and many believe that the independence of
courts is not necessarily undermined even if judges become members of the upper
chamber of the legislature.29
This component thus has been understood as mostly a
general recommendation. One exception is the adjudication of cases where interests
of other branches of government are at stake; in such cases, strict independence of the
courts is required.30
The fourth component of separation of powers, checks and balances, deserves
more attention, as it renders the pure doctrine of separation of powers
significantly more complex and, as we will show below, its understanding has been
the main battleground in Central European democracies. Checks and balances are
usually taken as a typical expression of the modern idea of constitutionalism,31
and not seldom synonymised with the separation of powers as such. However,
that would be a mistake, because in order to even entertain the idea of mutual
control and purposeful mingling of certain functions of the respective branches
there has to be an institutional or functional separation in the first place, logically
speaking.32
At any rate, in order to curb the looming arbitrariness and abuse of
power, separation needs to be combined with supervision.33
This is why each
branch is granted the power to exercise some of the functions of other branches
as well as a certain degree of control over them.
The checks and balances component is an internally complex one and, unlike
the three separations, it is difficult to state with much precision which instruments
and mechanisms fall under this component of separation of powers.34
In fact, the
29
See e.g. J. Waldron, ‘Separation of Powers in Thought and Practice’, 54 B.C.L. Rev. (2013)
p. 433; and Kavanagh, supra n. 17, p. 233. The typical example of such institutional design was
the Appellate Committee of the House Lords until the 2005 constitutional reform (see e.g.
D. Woodhouse, ‘United Kingdom. The Constitutional Reform Act 2005 – defending judicial
independence the English way’, 5 ICON (2007) p. 153).
30
But see ECtHR, 22 June 2004, Case No. 47221/99, Pabla Ky v Finland.
31
See e.g. S. Calabresi and K. Rhodes, ‘The Structural Constitution: Unitary Executive, Plural
Judiciary’, 105 Harvard Law Review (1992) p. 1153 at p. 1156; E. Barendt, ‘Separation of Powers
and Constitutional Government’, 5 Public Law (1995) p. 599; M. Loughlin, Sword and Scales (Hart
2000) at p. 224-225; F. Vibert, The Rise of the Unelected: Democracy and the New Separation of
Powers (Cambridge University Press 2007) at p. 92; and Saj´o and Uitz, supra n. 17, p. 128-139.
32
See Guastini, supra n. 21, p. 154.
33
See e.g. Kavanagh, supra n. 17, p. 233.
34
For a similar lament see Möllers, supra n. 10, p. 46-47.
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existing literature remains mostly silent or ambiguous in this regard. That said, we
think that Nicholas Barber’s distinction between swords and shields35
is of considerable
help here. Both are instruments wielded by the respective branches that
allow them to ‘keep each other in their proper place’.36
Swords are sanctions
or threats that one institution can actively use against another in order to induce
it to act (or not act) in a certain way.37
For instance, an executive faced with a
legislature that consistently refuses to support its policies may be able to dissolve
the parliament and call fresh elections. Vice versa, a legislature that believes that its
executive has diverged too far from its mandate may be able to cut the executive’s
funds or initiate a vote of no confidence. Swords also include instruments such as
veto power, the impeachment of judges or members of the executive by the legislature,
judicial review of legislation over the acts of the legislature, and packing
the courts by the executive with new judges (sometimes with the agreement of the
legislature).38
Within the present framework, we suggest construing swords as
instances of checks, for they allow intervention in the affairs of other branches.
In contrast, shields protect one body from another. According to Barber, shields
are ‘immunities that serve to protect institutions, or officials within those institutions,
from the unwarranted attentions of other bodies’.39
They may
include immunity of heads of state from prosecution, insulation of parliamentary
debate from certain parts of civil and criminal law, the royal prerogative,
immunity of MPs, the protection of judicial salaries from the parsimony of other
branches, the exemption of certain administrative acts (such as the award of
citizenship) from judicial review, or judicial self-governance that gives judges a
significant say in the appointment and promotion of their peers.40
With respect
to the standard model, we interpret shields as tools of balancing.
It might be objected that shields follow the logic of separation and should be
therefore linked to the three modes of power separation. Nevertheless, even if we
grant the separationist logic of shields, it makes sense to categorise them
separately. First, both shields and swords fall ‘outside of the normal requirements
of the separation of powers’.41
Second, we suggest construing shields as a kind of
second-level remedy: logically speaking, they are preceded not only by the three
35
See N. Barber, ‘Self-Defence for Institutions’, 72 Cambridge Law Journal (2013) p. 558; and
N. Barber, Principles of Constitutionalism (Oxford University Press 2018) p. 79-82.
36
J. Madison, ‘No. 51’, in C. Rossiter (ed.), The Federalist Papers (Penguin, 1999) at p. 288-293.
37
See Barber (2013), supra n. 35, p. 561-564 and 577.
38
Most of these examples are taken from Barber (2013), supra n. 35, pp. 561-562.
39
Barber (2013), supra n. 35, p. 560.
40
Most of these examples are taken from Barber (2013), supra n. 35, p. 560-561. On judicial
self-governance see D. Kosař, ‘Beyond Judicial Councils: Forms, Rationales and Impact of
Judicial Self Governance in Europe’, 19 German Law Journal (2018) p. 1567.
41
Barber (2018), supra n. 35, p. 79.
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separations but also by the subsequent (possibility of) encroachment of the
respective branches of government upon the others’ exclusive competences.
The purpose of shields is then to rebalance these encroachments, which is why
we subsume them under the fourth component of the principle of the separation
of powers.
One may further object that the checks and balances also include the free media,
the pluralistic civil society and regulatory agencies,42
which might be just as
important as more formal swords and shields in guarding against the abuse of
public power.43
We agree that the impact of these actors on the functioning
of the separation of powers might be significant. However, we consider these
factors merely as contingent circumstances or additional requirements44
that
might influence whether a given system of checks and balances between the three
branches will be observed and will bring about the desired set of results, rather
than essential components of the principle of checks and balances
itself.45
Therefore, we will focus primarily on the interaction between the three
traditional branches of power46
and refer to the abovementioned additional
requirements only if it is necessary for understanding developments in Central
Europe.47
In what follows we show how different regime types in Central European
history have treated our four components of the separation of powers. We will
first analyse the pre-communist era and then the impact of the 40-year-long rule
of the communist regimes. Subsequently, we zero in on the post-Cold War era
and the key challenges to the separation of powers in the late 1990s, 2000s
and 2010s.
42
We are grateful to an anonymous reviewer for stressing the importance of these actors.
43
Note that there are also other meanings of separation (such as separation of the armed forces
from the political branches, the separation of secular from religious authorities, and the separation of
centres of political power from those in control of commerce and business); see P. Pettit, On the
People’s Terms: A Republican Theory and Model of Democracy (Cambridge University Press 2013)
at p. 222.
44
See, mutatis mutandis, M. Philp, ‘Delimiting Democratic Accountability’, 57 Political Studies
(2009) p. 28 (regarding the concept of accountability).
45
See also supra n. 17.
46
Note that tripartite separation of powers is still a prevailing account in the separation of powers
literature (see e.g. Vile, supra n. 18, ch. 4; Kavanagh, supra n. 17; Möllers, supra n. 10, p. 80-106,
Maldonado, supra n. 17, p 150-156; Barber (2018), supra n. 35, p. 56-70.
47
Note that we do not have the ambition in this paper to look at the totality of society, nor to
provide a full-fledged sociological theory of separation of powers that would incorporate all the
potential influences on the exercise of state power. For a similar point, see Möllers, supra n. 10,
p. 324-325.
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H       
   
It is often claimed that once upon a time there was a Golden Age of classical
separated powers, in particular within constitutional nation-states of Europe
and that today this classical system has been eroded. We agree with
Carolan48
and Möllers49
that this is a myth. The situation on the ground has
always been messier than the often rosy historical accounts, and the political
exigencies never held fully to the prescriptions of the tripartite model of
separation of powers. Therefore, virtually all states, to a lesser or greater extent,
departed from the tripartite model in their daily functioning. However, we will
show that Central European countries went particularly far, especially but not
only in the communist era.
Pre-communist era
While most50
Central European countries witnessed glorious eras of
self-governance,51
none of them enjoyed democratic self-rule between the
Enlightenment era and WWI.52
Moreover, with the exception of Hungary,
Central European countries had little experience even of genuinely independent
statehood in this period. Czech lands were under the control of the Habsburg
Empire for almost three centuries after the Thirty Years War (1618–
1648). Poland faced a similar fate a century later. The Polish-Lithuanian
Commonwealth started to decline in the mid-17th
century and the three regional
powers – the Russian Empire, the Kingdom of Prussia and the Austrian Habsburg
Monarchy – eventually partitioned the Polish territory in 1795. As a result, no
truly independent Polish State emerged until 1918. Slovaks were the worst off, as
they never ran their state prior to 1918 and the Hungarian rule suppressed any
signs of the Slovak culture rather harshly. Hungary is thus the only outlier, as
Hungarians enjoyed significant autonomy after they had forced the Habsburgs
to create the dual monarchy of Austria-Hungary in 1867.
48
Carolan, supra n. 16.
49
Möllers, supra n. 16.
50
Slovakia is an exception since (apart from a short spell under Hitler’s tutelage during WWII) it
had not experienced autonomous statehood until the split of Czechoslovakia in 1993.
51
However, these glorious times date back mostly to the Middle Ages and the Enlightenment. See
e.g. Z. Rau et al., Magna Carta: A Central European Perspective of our Common Heritage of Freedom
(Routledge 2016).
52
Note that, in the depth of the Middle Ages and the early modern era, the Czech Kingdom
(1198–1618), the Polish Kingdom (1025–1569) and the Polish-Lithuanian Commonwealth
(1569–1795) were autonomous and influential players in European politics.
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However, Hungary had a different vision of monarchy to its Austrian
counterpart. While the Austrian part of the Empire as well as Bismarck’s Germany
in the late 19th
century developed into constitutional monarchies that created a
certain room for the separation of powers53
and the Rechtsstaat principle54
the
legacy of which ultimately proved critical for the post-WWI and post-WWII
development in Austria and Germany,55
Hungarians ran their own version of
monarchy in which absolutist elements prevailed.56
To be sure, Hungarians, as
well as Czechs, Slovaks and Poles, were exposed to the Austrian and German
constitutional regimes, but these monarchies were under the control of
Germans and Austrians and their solutions found limited traction among the
Hungarian, Czech, Slovak and Polish elites.57
The interwar period does not paint a rosy picture either. While the Hungarian
Democratic Republic and then the Hungarian Soviet Republic were briefly
proclaimed in 1918 and 1919 respectively, Hungary soon returned to a
monarchical regime – the so-called ‘Regency’ of 1920–1944, in which the
Regent Mikl´os Horthy de facto ruled as a dictator instead of the formal head
of state, King Charles IV.58
Poland and Czechoslovakia did slightly better after WWI. They abandoned the
monarchy and, guided by the principle of separation of powers, adopted
constitutions that guaranteed judicial independence and entrenched a solid
system of checks and balances.59
However, the reality ‘on the ground’ was far from
the paper ideal.
53
The principle of separation of powers was explicitly recognised in the Austrian basic laws of
December 1867. See Basic Law No. 141/1867 Reichsgesetzblatt (Official Journal of Laws of
Austrian Empire, hereinafter ‘RGBl’) on the Legislative Power, No. 145/1867 RGBl on the
Executive Power and No. 144/1867 RGBl on the Judicial Power.
54
R.A. Kann, A History of the Habsburg Empire 1526–1918 (University of California Press 1974);
C. Schmitt, Constitutional Theory (Duke University Press 2008); Z. Kühn, The Judiciary in Central
and Eastern Europe: Mechanical Jurisprudence in Transformation? (Martinus Nijhoff 2011).
55
Kelsen, supra n. 27; P.C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional
Law: the Theory & Practice of Weimar Constitutionalism (Duke University Press 1997);
M. Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism (Oxford
University Press 2015).
56
For further details on the Hungarian monarchy see L. Valiani and M. Secker, The End of
Austria-Hungary (Alfred A. Knopf 1973); P.M. Judson, The Habsburg Empire: A New History
(Harvard University Press 2016).
57
I. Bib´o, ‘The Distress of the East European Small States’, in K. Nagy (ed.), Democracy,
Revolution, Self-determination: Selected writings/ Istvan Bibo (Columbia University Press 1991) p. 13.
58
For further details see Y. Merkin and M. Merkin, Crosscurrents: Navigating the Turbulent Politics
of the Right During The Horthy Era in Hungary, 1920-1944 (CreateSpace Independent Publishing
Platform 2017).
59
G. Papuashvili, ‘Post-World War I comparative constitutional developments in Central and
Eastern Europe’, 15 I•CON (2017) p. 137.
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Poland enjoyed democratic politics for only seven years (1919–1926). In May
1926, Field Marshall J´ozef Piłsudski staged a military coup d’état and ruled
Poland until his death in 1935. His ‘Sanation regime’, which lasted until
Hitler’s invasion of Poland in 1939, openly employed authoritarian techniques.
Piłsudski circumscribed the powers of the Polish Parliament (Sejm), ruthlessly
prosecuted opposition, and fostered a cult of personality.60
Finally, although the 1920 Czechoslovak Constitution contained a nuanced
system of separation of powers,61
this principle was sidelined in national political life.
Most importantly, the first president of the country and a towering figure during the
entire interwar period, Tomáš Garrigue Masaryk, was deeply distrustful of political
parties, parliamentary leaders and the Parliament itself. He created an informal political
organisation known as Hrad (‘The Castle’), a powerful coalition of intellectuals,
journalists, businessmen, religious leaders and WWI veterans.62
Due to his charisma,
the fractured political scene and support of the ‘Castle’, Masaryk de facto set the
country’s political agenda until his death in 1937. He also built a cult of personality
around himself,63
albeit of a different sort from Horthy’s and Piłsudski’s. As a
counterweight to Masaryk’s ‘Castle’, the leaders of key political parties created their
own informal group, the so-called Pětka (‘The Five’), which made important decisions
outside the parliament and further weakened the legislature as well as the overall
system of separation of powers.
Both Masaryk and the Pětka thus prioritised informal institutions and craved for
an accumulation of power in their own hands. Some politicians even meddled with
judicial independence. It is telling that Czechoslovak interwar judges complained of
interferences unheard of in the Austrian era.64
Other important safeguards of the
separation of powers envisaged by the 1920 Constitution, such as the Czechoslovak
Constitutional Court, were dysfunctional.65
In sum, while Czechoslovakia did
maintain a basic system of separation of powers until WWII,66
it was far removed
60
For further details of the life of Pilsudski see P. Hetherington, Unvanquished: Joseph Pilsudski,
Resurrected Poland, and the Struggle for Eastern Europe (Pingora Press 2012).
61
Some commentators have even claimed that it was too nuanced and contained so many checks
and balances that it could hardly function in practice. See J. Osterkamp, ‘Ústavní soudnictví v
meziválečném Československu’, 146 Právník (2007) p. 585 at p. 616.
62
A. Orzoff, Battle for the Castle: The Myth of Czechoslovakia in Europe, 1914–1948 (Oxford
University Press 2009).
63
Ibid.
64
See Kühn supra n. 54, p. 11 ff.
65
Osterkamp, supra n. 61; T. Langášek, Ústavní soud Československé republiky a jeho osudy v letech
1920–1948 (Aleš Čeněk 2011).
66
For further details see A. Innes, Czechoslovakia: The Short Goodbye (Yale University Press 2001).
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from the ideal of the lone democratic outpost in the East,67
which was guided by
the principle of separation of powers.68
After the interwar intermezzo (1918–1938), which was not all that conducive
to the idea of separation of powers anyway, WWII brought an abrupt end to any
prospect of democratic development. The Czech lands and Poland were annexed
by the German Third Reich, while Hungary and Slovakia launched clero-fascist
regimes under Hitler’s tutelage. The post-WWII democratic period in Central
Europe was too short and too preoccupied with retribution69
and state
rebuilding70
to reinstall and cultivate a functioning system of separation of
powers. As if that was not enough, the communist coups d’état in the late
1940s put another nail in the coffin.
In sum, the pre-communist period was characterised by constant assault on the
separation of powers, particularly on its crucial separation of institutions component.
This is typical of non-democratic political regimes in general, which actively
suppress diffusion of political authority among several centres of decision-making.
As we have seen, even in the (for many people paradigmatic) First Czechoslovak
Republic, there was a strong tendency towards centralisation of power, which
eroded the formal architecture of separation. Nevertheless, a much deeper imprint
on understanding the separation of powers in Central Europe was left by the
communist rule, and it is to this period that we now turn.
Separation of powers dismantled: the communist way of concentrating power
The central feature of communist regimes was centralisation of power based on
the Marxist socialist concept of the ‘unity of power in the assembly’,71
coupled
with socialist economic planning and thorough regulation. Lenin’s principle of
‘democratic centralisation’ meant that discussion within the Party about the
policies of the state was permitted, but once the discussion was concluded,
state and Party institutions had to adhere rigidly to these decisions.72
As a
result, all three branches, including the judiciary, were under the tight control
67
Masaryk and Beneš portrayed Czechoslovakia as the ‘Switzerland of the East’. See Orzoff,
supra n. 62.
68
M. Heimann, Czechoslovakia: The State That Failed (Yale University Press 2011); Orzoff,
supra n. 62.
69
See e.g. B. Frommer, National Cleansing: Retribution Against Nazi Collaborators in Postwar
Czechoslovakia (Cambridge University Press 2005).
70
See T. Judt, Postwar: A History of Europe since 1945 (Penguin Press 2005) at p. 13-240; and
L.R. Johnson, Central Europe: Enemies, Neighbors, Friends (Oxford University Press 1996).
71
J.A. Hazard (ed.), Soviet Legal Philosophy (Harvard University Press 1951) at p. 95.
72
See A. Brown, Rise and Fall of Communism (Vintage 2009) at p. 107-111.
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of the Communist Party, which uniquely represented ‘the people’ in its
ideal form.73
While communists soon realised that they needed all three branches,74
separation of institutions, even if formally anchored in constitutional texts,
was an illusion. Pretty much all institutions were connected with and subordinate
to the Communist Party leadership. Communist regimes in Central Europe also
quickly got rid of any remnants of a system of checks and balances. Most importantly,
they abolished constitutional and administrative courts, stripped courts of
jurisdiction in commercial affairs and vested it in the state arbitrage courts, packed
the judiciary with lay judges, installed trusted comrades in the Supreme Court
and as presidents of ordinary courts, and subordinated courts to the General
Prosecutor.75
Given their control over all state institutions, communists did not need to
tinker with separation of functions and personnel that much. Nevertheless, they
still breached them. The General Prosecutor, the guardian of the socialist legality,
embodied the merger of legislative, executive and judicial functions. He
exercised all three of them, as he was heavily involved in the legislative process
(legislative function), represented public prosecution in criminal trials and took
various administrative decisions (executive function), attended the deliberations
of judges, reviewed judicial decisions and could challenge any decision he
deemed inappropriate through extraordinary appeal (judicial function).76
Apex courts in communist regimes not only decided ‘cases and controversies’,
but also issued ‘interpretative guidelines’ with no relation to any real-life
pending case. While the official purpose of these guidelines was to unify the
divergent case law of the lower courts,77
their real aim was to prevent deviations
from the Party line. The communist regimes also stripped ordinary courts of
jurisdiction over commercial law cases and created a specialised system of state
73
Hazard, supra n. 71, p. 35-68. We are aware that we cannot do justice to the nuances of
democratic centralisation and socialist legality and that all the theory behind these concepts was
not laughable, but we do not have the space to engage with the communist theorists here.
74
See Barber (2018), supra n. 35, p. 76-77.
75
See Kühn, supra n. 54; S. Frankowski, ‘The Independence of the Judiciary in Poland:
Reflections on Andrzej Rzeplinski’s Sadownictwo v Polsce Ludowej (The Judiciary in People’s
Poland)’, 33 Ariz. J. Int. Comp. L. (2015) p. 40; A. Bröstl, ‘At the Crossroads on the Way to
an Independent Slovak Judiciary’, in J. Přibáň et al. (eds.), Systems of justice in transition:
Central European experiences since 1989 (Ashgate 2003) p. 141.
76
See Hazard, supra n. 71, p. 110-112 (discussing the original Soviet model of prokuratura); and
Kühn, supra n. 54, p. 43-45 (discussing the Central European modifications of the Soviet model).
77
See e.g. Z. Kühn, ‘The Authoritarian Legal Culture at Work: The Passivity of Parties and the
Interpretational Statements of Supreme Courts’, 2 Croatian Yearbook of European Law and Policy
(2006) p. 19.
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arbitrage courts, which exercised policy, planning and adjudicatory functions at
the same time.78
Ruling communist parties also soon realised that the original Marxist prophecy
of the state and law ‘withering away’ was not about to materialise soon. On the
contrary, law became critical in preserving communist power.79
This instrumental
view of law, which pushed communist societies away from the ideal of the rule of
law towards ‘rule by law’ or ‘rule through law’,80
has remained deeply embedded in
the minds of Central European political leaders.81
Four decades of communist
indoctrination led in turn to a certain mental path-dependence in thinking about
the separation of powers among Central European judges and politicians.82
First,
there was no growing ground for a robust civic political and legal culture. Second,
while the most visible communist institutions, such as the leading Communist
Party, the omnipotent prokuratura, or the state security services, were dismantled
or reformed after 1989, the communist legacy and subservient mindset have not
gone away.83
T        1989
The Central European communist regimes started to fall apart in the 1980s and
eventually collapsed in 1989. This sparked Central European peoples’ interest in
public affairs and resulted in unprecedented civic engagement. This was an era,
however short, of genuine debate on restructuring the state and its functioning.84
To be sure, the pace, as well as the particular shape of democratic transitions, varied
widely. As Václav Havel put it in November of 1989, just a week after the Velvet
78
See e.g. R. David and J.E. Brierley, Major Legal Systems in the World Today: an Introduction to
the Comparative Study of Law (Stevens and Sons 1985) at p. 251-261.
79
A. Vyshinsky, The Law of the Soviet State (Macmillan Company 1948) at p. 303 ff.
80
S. Holmes, ‘Lineages of the Rule of Law’, in J.M. Maravall and A. Przeworski (eds.), Democracy
and the Rule of Law (Cambridge University Press 2003) at p. 22-23. See also T. Ginsburg and
T. Moustafa, Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University
Press 2008).
81
For a thorough analysis of the ‘rule through law’ in a post-communist setting see J. Kahn, ‘The
Search for the Rule of Law in Russia’, 37 Georgetown Journal of International Law (2005) p. 353; and
M. Popova, ‘Putin-Style “Rule of Law” & the Prospects for Change’, 146 Daedalus (2017) p. 64.
82
M. Bobek, ‘The Fortress of Judicial Independence and the Mental Transitions of the Central
European Judiciaries’, 14 European Public Law (2008) p. 99. Path-dependence in thinking, as well
as the structural importance of persistence of informal practices and structures from the past in the
new democracies of Central Europe are emphasised by Krygier, supra n. 8.
83
The typical example of the communist institutional legacy is Kaczyński’s 2016 reform of the
public prosecution (see infra n. 204). Some scholars even claim that socialist legal tradition is still
alive; see A. Uzelac, ‘Survival of the Third Legal Tradition?’, 49 S.C.L.R. (2010) p. 377.
84
P. Blokker, New Democracies in Crisis? A Comparative Constitutional Study of the Czech
Republic, Hungary, Poland, Romania and Slovakia (Routledge 2013).
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Revolution, ‘[i]n Poland [the revolution] took ten years, in Hungary ten months, in
East Germany ten weeks: perhaps in Czechoslovakia it will take ten days!’.85
The
mode of transition differed as well. Poland and Hungary witnessed smooth transitions
of power orchestrated at roundtable talks that led to many compromises, while the
Czechoslovak communist regime, the harshest one in Central Europe, had to yield to
pressure from the streets, without significant concessions to the communist
leadership.86
Nevertheless, all four Central European states shared an essentially similar87
post-communist trajectory in the 1990s. They strove for democratisation, adopted
wholesale constitutional reforms, built new institutions, and abandoned their
state-planned economies in favour of free markets. Amid heated debates they chose
their frameworks of government, often returning to the interwar arrangements, and
entrenched their own conceptualisation of the separation of powers. When
amending or adopting new constitutions, the obvious main goal of the separation
of powers was to prevent the restoration of the now-defeated communist regimes by
means of blocking the natural tendency of concentration of power and corruption.
The deeply-rooted desire that power should be exercised in a different way from in
the past reflected ‘the fears originating in, and related to, the previous political
regime’,88
in which power was monopolised by communists. Moreover, all four
Central European states also yearned to join the European Union. In their desire
to become EU members, they happily embraced the 1993 Copenhagen Criteria89
and initiated the cumbersome accession process.90
As we show below, the accession
process contributed91
to the first and often overlooked technocratic challenge to the
separation of powers in Central Europe, one that served as a prequel to the current
populist attacks. In this sense, it was the first overreaction that prepared the ground
for the next.
85
Cited from T.G. Ash, The Magic Lantern: The Revolution of '89 Witnessed in Warsaw, Budapest,
Berlin, and Prague (Vintage Books 1993) at p. 78.
86
See e.g. S. Huntington, The Third Wave: Democratization in the Late Twentieth Century
(University of Oklahoma Press 1991).
87
Slovakia under Mečiar’s semi-authoritarian rule (1993–1998) was an exception. See supra n. 1.
88
A. Saj´o, Limiting Government (CEU Press 1999) at p. 2.
89
The Copenhagen criteria (after the European Council in Copenhagen in 1993 which defined
them) are the essential conditions all candidate countries must satisfy to become EU member states
(see Presidency Conclusions, Copenhagen European Council 1993).
90
D. Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in
the Fields of Democracy and the Rule of Law (Kluwer Law International 2008).
91
Note that the Council of Europe and in particular the Venice Commission also played a key
role in this technocratic challenge, especially in the early 1990s. For a critical assessment of the
Venice Commission’s impact on Central Europe, see B. Iancu, ‘Quod licet Jovi non licet bovi?:
The Venice Commission as Norm Entrepreneur’, 11 Hague J Rule Law (2019) p. 189.
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Separation of powers distorted: the rise of the unelected during the EU accession
process (technocratic challenge)
While the EU accession process in the late 1990s and early 2000s arguably brought
about many positive effects,92
it had long-lasting distorting effects on separation of
powers in Central Europe. As mentioned above, Poland, Czechia, Slovakia and
Hungary were able to choose their preferred model of separation of powers –
one that reflected their historical, political and social legacies as well as the new
challenges – immediately after the collapse of communist rule. However, their
room for manoeuvre was greatly diminished in the accession period as any
constitutional reform was constrained, and sometimes even driven, by the so-called
‘EU conditionalities’.93
During the accession process, the EU, often relying on Council of Europe
standards,94
pushed for the same template in all four Central European
countries,95
one that aimed at depoliticising the process of governance and vesting
various powers with experts and other non-elected agents.96
This template
included, among other things, strong constitutional courts,97
autonomous judicial
self-governance via judicial councils,98
as well as numerous other autonomous
public bodies99
that were empowered at the expense of political institutions.
Central European countries, desperate to ‘return to Europe’, adopted virtually
all requirements of this Pan-European template without much resistance.100
The
92
See H. Grabbe, The EU’s Transformative Power: Europeanization Through Conditionality in
Central and Eastern Europe (Palgrave Macmillan 2006); and F. Schimmelfenning and U.
Sedelmeier, The Europeanization of Central and Eastern Europe (Cornell University Press 2005).
93
See e.g. Grabbe, supra n. 92; E. Gateva, European Union Enlargement Conditionality (Palgrave
Macmillan 2015); and Kochenov, supra n. 90.
94
See e.g. D. Kosař and M. Bobek, ‘Global Solutions, Local Damages: A Critical Study in Judicial
Councils in Central and Eastern Europe’, 15 German Law Journal (2014) p. 1257 (regarding
judicial councils).
95
Kochenov, supra n. 90. Note that the EU was not always successful in implementing the
uniform standard regarding each requirement, but by and large it succeeded in Central Europe.
96
S. De Somer, Autonomous Public Bodies and the Law: A European Perspective (Edward Elgar
2017). On the EU impact see also Suteu, supra n. 8, p. 6-7.
97
See W. Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of
Central and Eastern Europe (Springer 2014).
98
C. Parau, ‘The dormancy of parliaments: The invisible cause of judiciary empowerment in
Central and Eastern Europe’, 49 Representation (2013) p. 267.
99
De Somer, supra n. 96.
100
See Parau, supra n. 98. For an account of Czechia’s unique resistance to the idea of a judicial
council see D. Kosař, Perils of Judicial Self-Government in Transitional Societies (Cambridge
University Press 2016).
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EU thus de facto imposed its own understanding of separation of powers on its new
Central European members.101
The first typical feature of the peculiar functioning of the separation of powers
in Central Europe during the accession process was a super-strong constitutional
court not responsive to the electorate and unreflective of the views of the majority
of the population. The main example was the Hungarian Constitutional Court
under the presidency of Lászl´o S´olyom (1990–1998). During the 1990s, it styled
itself as the guardian of the country’s complex legal and social transformation.102
The Hungarian Constitutional Court proceeded in a highly activist fashion with
respect to the economic and social policies of government by limiting what the
government could do at its own discretion. To fulfil this role, the Hungarian
Constitutional Court availed itself of the substantial competencies granted to
it, especially in terms of the abstract review of legal norms. In its position
as the most vehement negative legislator in the region, the Hungarian
Constitutional Court generally endeavoured to modernise Hungary’s legal system
and purposefully sought to introduce into the country the standards of legal
thinking typical of Western democracies.103
It was, however, not only the Hungarian Constitutional Court that was an
active player during the transition to democracy in Central Europe. According
to Hermann Schwartz, almost all the courts in Central Europe were ‘remarkably
independent – astonishingly so in some cases – and quite ready to challenge and
overturn important statutes, bills and regulations’.104
As such, they grew into
‘important “veto players” in the politics of post-communist Europe’.105
In
comparison to the Hungarian Constitutional Court, the Polish Constitutional
Tribunal was perhaps more willing to help the government in achieving the
transformation, rather than to put obstacles in its way. Nonetheless, in the context
of a multi-party system where various compromises proved very difficult to
101
One could object that certain features of the Pan-European template of separation of powers
were already in place when the accession process started. This is correct, but the accession process
significantly deepened the rise of the unelected and, moreover, made it impossible to revise the early
post-Cold-War policies and strike a new reasonable balance between the three branches of
government.
102
R. Procházka, Mission Accomplished. On Founding Constitutional Adjudication in Central
Europe (CEU Press 2002) at p. 113-139. See also G. Halmai, ‘The Hungarian Approach to
Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional
Court’, in W. Sadurski (ed.), Constitutional Justice, East and West (Kluwer Law International
2002) p. 189.
103
H. Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (The University of
Chicago Press 2000) at p. 106.
104
Schwartz, supra n. 103, p. xi.
105
B. Bugarič and T. Ginsburg, ‘The Assault on Post-communist Courts’, 27 Journal of Democracy
(2016) p. 69 at p. 71.
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achieve, the Polish Constitutional Tribunal still gradually built up a relatively
strong position for itself.106
In the end, although the number of statutes declared
unconstitutional was far from small,107
‘the Court itself and the Parliament have
learned to shape their mutual relations’despite the occasional conflict.108
Later on,
however, the period after the rise of Kaczyński brothers to power in 2005 was
marked by frequent and much more serious conflicts between the government
and the Polish Constitutional Tribunal.109
The Kaczyński brothers lost this battle,
but this episode is crucial for understanding why Jaroslav Kaczyński attacked the
Polish Constitutional Tribunal so ferociously when he came to power again in
2015. He simply viewed his 2005-2007 failure as injustice which was condoned
by the Polish Constitutional Tribunal and came to the conclusion that in order to
realise his policies he needed to paralyse or capture the Polish Constitutional
Tribunal.
The Czech Constitutional Court also gradually became a politically visible
player, especially in the era of the ‘opposition agreement’ between the two leading
parties, which enabled the Czech Social Democratic Party to govern with the
support of the oppositional Civic Democratic Party (1998–2002). Afterwards,
the most significant cases concerned key government policies of Mirek
Topolánek’s (2006–2009) and Petr Nečas’s governments (2010–2013).110
The
most controversial decision of the Czech Constitutional Court to date came
in 2009, when it accepted the doctrine of unconstitutional constitutional
amendment and struck down the constitutional law111
that was supposed to solve
a long political crisis by cutting short the fifth term of office of the Chamber of
Deputies, thus seeking the quickest path to snap elections.112
106
Procházka, supra n. 102, p. 83 ff. See also M. Brzezinski, The Struggle for Constitutionalim in
Poland (Macmillan 1998) at p. 165-175.
107
Especially after the 1997 constitutional reform, the ratio of the findings of unconstitutionality
(excluding constitutional complaints) increased rapidly (for instance, in 1999 the ratio was higher
than 40%).
108
L. Garlicki, ‘The Experience of the Polish Constitutional Court’, in Sadurski, supra n. 102,
p. 265 at p. 281-282.
109
D. Robertson, The Judge as Political Theorist. Contemporary Constitutional Review (Princeton
University Press 2010) at p. 99-107.
110
These policies concerned, among other things, reducing social benefits and introducing health
care fees in the wake of financial crisis. See e.g. Judgment of the Czech Constitutional Court of
20 May 2008, Pl. ÚS Health Care Fees; and Judgment of the Czech Constitutional Court of 23
April 2008, Pl. ÚS 2/08 Sickness Benefits.
111
Constitutional Act no 195/2009 Coll.
112
Judgment of the Czech Constitutional Court of 10 September 2009, Pl. ÚS 27/09 Melčák. For
further analysis see also Y. Roznai, ‘Legisprudence Limitations on Constitutional Amendments?
Reflections on the Czech Constitutional Court’s Declaration of Unconstitutional Constitutional
Act’, 8 ICL Journal (2014) p.29.
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In contrast, the activism of the Slovak Constitutional Court throughout the
1990s can be best explained by reference to violations of the rules of the
democratic game committed by Vladimír Mečiar’s government (1994–1998).
The opposition, as well as President Michal Kováč, therefore relied on the
Slovak Constitutional Court, which became an important counter-majority
force.113
Later on, the Slovak Constitutional Court helped re-establish
institutional stability in Slovakia and became less involved in public life.
However, the accession period strengthened its position. In no other country
in Central Europe was the influence of external factors greater in the process
of adopting Pan-European constitutionalism than in Slovakia.114
The second example is the Pan-European template of judicial councils
imposed on Central European countries.115
A judicial council is an independent
intermediary organisation positioned between the judiciary and the
politically responsible administrators in the executive or the parliament,
one that has significant powers primarily in appointing, promoting and
disciplining judges.116
It may also play a role in the areas of administration,
court management and budgeting for the courts, but these powers are only
secondary to its ‘personal competences’ regarding the careers of individual
judges. Judicial councils exist in many European countries such as Italy,
France and Spain.117
However, the Pan-European judicial council model
advocated by the EU (with the help of the Council of Europe) during the
accession process was a very peculiar version of a judicial council, which
has few, if any, equivalents in Western Europe,118
since it required the
entrenchment of a judicial council in the Constitution, granting judges at least
parity in that body, vesting the real decision-making power with that body,
transferring most ‘personal competences’ regarding a career in the judiciary
to that body, and selecting the Chief Justice or its equivalent as the chairman
of the judicial council.119
113
Procházka, supra n. 102, p. 168 ff.
114
Blokker, supra n. 84, p. 145 ff.
115
See Kosař and Bobek, supra n. 94; Parau, supra n. 98; and Kosař, supra n. 100.
116
N. Garoupa and T. Ginsburg, ‘Guarding the Guardians: Judicial Councils and Judicial
Independence’, 57 American Journal of Comparative Law (2009) p.103.
117
See Kosař, supra n. 40.
118
Even the Italian judicial council (Consiglio Superiore della Magistratura), which served as a
template for the Pan-European model, differs in several aspects and, more importantly, its success
has always depended on many endogenous and exogenous factors. See S. Benvenuti and D. Paris,
‘Judicial Self-Government in Italy: Merits, Limits and the Reality of an Export Model’, 19 German
Law Journal (2018) p. 1641.
119
See Kosař and Bobek, supra n. 94; and Kosař, supra n. 100.
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This design of Pan-European judicial councils, which was eventually implemented
in Hungary, Slovakia and, partly, also in Poland,120
de facto insulated the judicial
branch from the political branches as well as from the general public. In Barber’s
terms, judges were awarded impenetrable shields against any leverage by politicians,
and at the same time, politicians were denied all swords against the judiciary.121
This,
in turn, led to the corporatisation of the judiciary and various accountability perversions,
singled out judges as a special caste which could remain totally isolated from the
wishes of the electorate,122
and further reduced the already weak democratic
legitimacy of the Central European judiciaries.123
We will show below that this
one-sided empowerment and detachment of the judiciary made it easy for the populist
leaders to delegitimise judges in the eyes of the ordinary people, pack the judicial
councils with their protégés, and later on to use them as weapons against their critics
within the judiciary.124
Viewed through these lenses, it is not surprising that the
strongest judicial council, the one in Hungary, was attacked most ferociously,125
while
120
On why Czechia resisted the Pan-European judicial council model see Kosař, supra n. 100; and
A. Blisa et al., ‘Judicial Self-Governance in Czechia: Europe’s Black Sheep?’, 19 German Law Journal
(2018) p. 1951.
121
See supra n. 40.
122
For instance, the former chair of the Polish Association of Judges called the judges a ‘special
caste of people’, a term which Law and Justice immediately started to use, in a pejorative sense, to
describe the Polish judiciary; see A. Czarnota, ‘Rule of lawyers or rule of law: On constitutional crisis
and rule of law in Poland’, in B. Iancu and E. S. Tănăsescu (eds.), Governance and Constitutionalism:
Law, Politics and Institutional Neutrality (Routledge 2019) p. 51 at p. 53. On the Law and Justice
media campaign against the judiciary, see also F. Zoll and L. Wortham, ‘Judicial Independence and
Accountability: Withstanding Political Stress in Poland’, 42 Fordham International Law Journal
(2019) p. 875 at p. 904-907.
123
See Z. Fleck, ‘Judicial Independence in Hungary’, in A. Seibert-Fohr (ed.), Judicial
Independence in Transition (Springer 2012) p. 793 (on Hungary); Kosař, supra n. 100; and
S. Spáč et al., ‘Capturing the Judiciary from Inside: The Story of Judicial Self-Governance in
Slovakia’, 19 German Law Journal (2018) p. 1741 (all on Slovakia); A. Śledzińska-Simon, ‘The
Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic
Transition’, 19 German Law Journal (2018) p. 1839 (on Poland); and Parau, supra n. 98 (on
Central Europe in general).
124
See P. Kingsley, ‘After Viktor Orban’s Victory, Hungary’s Judges Start to Tumble’, The New
York Times, 1 May 2018, 〈www.nytimes.com/2018/05/01/world/europe/hungary-viktororban-judges.html〉,
visited 22 August 2019; and B. Novak and P. Kingsley, ‘Hungary Creates
New Court System, Cementing Leader’s Control of Judiciary’, New York Times (12 Dec 2018),
〈www.nytimes.com/2018/12/12/world/europe/hungary-courts.html〉, visited 22 August 2019
(on Hungary); and Śledzińska-Simon, supra n. 123 (on Poland).
125
Ibid. See also Fleck, supra n. 123; and D. Kosař and K. Šipulová, ‘The Strasbourg Court
Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law’, 10 Hague J Rule Law
(2018) p. 83.
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the Czech judiciary, which did not follow the judicial council model,126
has been left
largely intact.127
Third, other independent expert and regulatory agencies also played an
inappropriate role during the process of the post-communist transition. The
foremost examples are the Central Banks which, according to Juliet Johnson,
committed two basic sins of ‘commission’ and ‘omission’.128
The first and for
our purposes more important sin consisted of the distorted interpretation of
the Central Banks’ independence, which found its expression in a lack of
cooperation with governments. The second sin concerned the relative neglect
of banking supervision, i.e. unsatisfactory fulfilment of one of the most important
functions of Central Banks. The separation of powers itself was, however, more
affected by the lack of coordinated action between Central Banks and the political
branches of government in the joint enterprise of governing during a turbulent era
of economic, political and social transformation. In the end, the assertion of
institutional independence of Central Banks was compounded by their unwillingness
to take into account the actions of governments, as well as by unilateral
pursuit of their own vision of economic policies.
Of all these actors the most important was certainly the judiciary, especially
constitutional courts. Some scholars have even claimed that a ‘courtocracy’ – a
democracy run by the judiciary – is a new and superior form of governance.129
Emboldened by such intellectual support, the judicial branch in Central
European countries embarked on a wide-ranging reinterpretation of the
constitution – striking down constitutional amendments, reducing the discretion
of the political branches, and judicialising virtually every aspect of political life.130
Expert organs in other spheres of public life such as ombudspersons and data
protection agencies followed the same depoliticising pattern.131
126
See supra n. 120.
127
It is difficult for the Czech President, Miloš Zeman, who appoints all Czech judges, and for the
Czech Prime Minster, Andrej Babiš, whose Government nominates all candidates for judicial office
to the President, to criticise the Czech judiciary for its lack of democratic legitimacy and to blame
judicial self-governance for bad personal decisions.
128
J. Johnson, Priests of Prosperity: How Central Bankers Transformed the Postcommunist World
(Cornell University Press 2016).
129
K.L. Scheppele, ‘Democracy by Judiciary (Or Why Courts Can Sometimes Be More
Democratic Than Parliaments)’, in W. Sadurski et al. (eds.), Rethinking the Rule of Law in
Post-Communist Europe (CEU Press 2005) p. 25.
130
Sadurski, supra n. 97.
131
See e.g. M. Bánkuti et al., ‘From Separation of Powers to a Government Without Checks:
Hungary’s Old and New Constitution’, in G.A. Töth, Constitution for a Disunited Nation: On
Hungary’s 2011 Fundamental Law (CEU Press 2012) p. 248-249.
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Despite its appeal, this ‘catching up’ with the West132
was not a natural
development. The Pan-European template significantly altered the existing separation
of powers in Central Europe, while denying the opportunity for proper
deliberation and local fine-tuning.133
Instead, it opted for a ‘one size fits all’
solution.134
Some of the suggested institutions, such as judicial councils, were
even alien to the Central European legal culture as they ignored the German
and Austrian roots of the Central European systems of court administration.135
All this resulted in a one-sided emphasis on technocratic institutions staffed by
experts, at the expense of representative institutions and civic engagement.136
To apply the conceptual separation of powers toolbox discussed above, the
Pan-European ‘separation of powers template’ stressed insulation of the judicial
branch and independent agencies, instituted one-sided judicial checks upon
elected branches,137
and suppressed the ‘balances element’ of the principle of
checks and balances. Besides carving out a prominent role in the standard
framework of the separation of powers, courts were thus given several swords
as well as shields,138
whereas the other two branches were deprived of virtually
any say over the judicial branch. Two mutually reinforcing developments were
thus taking place. On the one hand, Central European courts judicialised virtually
every aspect of politics,139
constitutional courts overacted to the slightest change
in judicial salaries (even if the cuts reflected widely accepted difficulties such as
floods or financial crises),140
and most powers regarding the careers of individual
judges were transferred to judicial councils, which were composed primarily of
judges themselves.141
On the other hand, the impeachment of judges was considered
chutzpah and the political branches gradually lost control over judicial
132
See J. Komárek, ‘The Struggle for Legal Reform after Communism: A review of Zdenĕk Kűhn,
The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation
(Martinus Nijhoff 2011)’, 63 American Journal of Comparative Law (2015) p. 285 at p. 288-289.
133
B. Puchalska, Limits to Democratic Constitutionalism in Central and Eastern Europe (Ashgate
2011) at p. 91-122; C. Parau, Transnational Networks and Elite Self-Empowerment: The Case of
Judiciary in Central and Eastern Europe (Oxford University Press 2016).
134
B. Bugarič, ‘A crisis of constitutional democracy in post-Communist Europe: “Lands
in-between” democracy and authoritarianism’, 13 I·CON (2015) p. 219 at p. 241; Parau, supra
n. 98; Kosař and Bobek, supra n. 94.
135
Kosař, supra n. 100.
136
Blokker, supra n. 84. For a complex view on civic engagement see also Suteu, supra n. 8, p. 10.
137
See Vibert, supra n. 31, p. 3.
138
See supra nn. 35-40.
139
Sadurski, supra n. 97.
140
Note that the Czech Constitutional Court has already issued 16 judgments regarding judicial
salaries and that the Slovak Constitutional Court has rendered seven such judgments (both courts
almost always rule in favour of judges).
141
See supra nn. 115 and 123.
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appointments as well as judicial promotions.142
At the same time, the immunity
of MPs had been shrinking.143
This Pan-European template distrusts politicians and voters,144
relies on an independent
elite (experts) to identify the common interest and the appropriate solution,
suppresses pluralistic views of society and politics, prioritises one-size-fits-all solutions,
and dispenses with the accountability of unelected institutions.145
It praises expertise,
puts emphasis on outputs and efficiency, derives its legitimacy from rational
speculation and (quasi-)scientific procedures,146
avoids engaging with the people,147
and neglects constitutional sentiments148
and symbolic narratives. These depoliticising
effects of the EU accession process contributed to the current democratic malaise in
Central Europe.149
More specifically, we argue that this overemphasis on technocratic
institutions prepared the ground for the recent populist attacks on separation of
powers, to which we now turn.
Overreaction to overreaction: populist leaders take the stage (populist challenge)
In response to current developments in Central Europe, lawyers have recently
joined political theorists in their study of populism as a political phenomenon150
and grappled with the relationship between populism and constitutionalism.151
While the majority of scholars accept that populism has a problematic
142
Ibid.
143
See also ECtHR [GC] 17 May 2016, Case No. 42461/13 and 44357/13, Karácsony and Others
v Hungary; and Judgment of the Czech Constitutional Court of 16 June 2016, No. I. ÚS 3018/14.
144
See A. Seibert-Fohr, ‘Judicial Independence in European Union Accessions: The Emergence of
a European Basic Principle’, 52 German Yearbook of International Law (2009) p. 405; and Kosař,
supra n. 100. See also R. Unger, What Should Legal Analysis Become (Verso 1998) at p. 72-73 and
J. Waldron, ‘Dirty Little Secret’, 98 Colum. L. Rev. (1998) p. 510.
145
See D. Caramani, ‘Will vs. reason: the populist and technocratic forms of political representation
and their critique to party government’, 111 Americal Political Science Review (2017) p. 54. See also C.
Bickerton and C. Invernizzi Accetti, ‘Populism and Technocracy’, in C. Rovira et al. (eds.), The Oxford
Handbook of Populism (Oxford University Press 2017); and Müller, supra n. 2, p. 97.
146
Caramani, supra n. 145.
147
Blokker, supra n. 84.
148
A. Saj´o, Constitutional Sentiments (Yale University Press 2011).
149
P. Dufek and J. Holzer, ‘Debating Democracy in East Central Europe: The Issues and their
Origins’, in J. Holzer and M. Mareš (eds.), Challenges to Democracy in East Central Europe
(Routledge 2016) p. 15 at p. 20ff.
150
For a more thorough characterisation of populism see infra nn. 152-155. See also L. Corso,
‘When anti-politics becomes political: what can the Italian Five Star Movement tell us about
the relationship between populism and legality’, in this issue, and the sources cited therein.
151
See also the joint I-CONnect/Verfassungsblog mini-symposium on ‘Populism and constitutional
courts’ (2018, 〈www.verfassungsblog.de/category/focus/constitutional-courts-and-populism/〉, visited
22 August 2019).
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relationship with constitutionalism152
and erodes certain pillars of constitutional
democracy,153
some have recently argued that populism contains a specific
constitutional theory, a kind of ‘populist constitutionalism’. Read this way, populism
adopts a particular conception of constituent power (ascribing absolute
primacy to the constituent power vis-à-vis the constitution and the rules and
powers derived from it), a specific interpretation of popular sovereignty (with the
real – empirical – people representing the unity), and a concept of constitutional
identity often backed by (mythical) historical narratives of ancestral greatness.154
Despite these nuances, there is overwhelming scholarly agreement that populism
is hostile to the principle of separation of powers, which is rejected by populists for
being cumbersome, artificial and constraining of the true political will of the
people.155
We agree that populism does pose a significant challenge to the separation
of powers, but we go beyond the existing scholarship which rarely differentiates
between the four components of separation of powers. Accordingly, we now show
that populism targets some of these components more aggressively than others, and
explain why it was so easy for populist leaders in Central Europe to do so. To be able
to do that, however, we must first finish our story of the separation of powers in
Central Europe by analysing the developments of the last decade.
After Viktor Orbán’s Fidesz gained a constitutional majority in 2010, its
one-party government embarked on a quest against independent institutions that
stood in its way. It adopted a brand new constitution which has completely altered
the constitutional landscape.156
Among other things, the new constitution curbed
the powers of the Hungarian Constitutional Court, increased the number of
justices, and changed the appointment procedure.157
These changes allowed
Orbán to pack the Hungarian Constitutional Court with his protégés.158
152
N. Urbinati, Democracy Disfigured: Opinion, Truth, and the People (Harvard University Press
2014); C. Mudde, ‘Europe’s Populist Surge: A Long Time in the Making’, 95 Foreign Affairs (2016)
p. 25; Müller, supra n. 2; H. Kriesi, ‘Revisiting the Populist Challenge’, 25 Czech Journal of Political
Science (2018) p. 5.
153
C. Pinelli, ‘The Populist Challenge to Constitutional Democracy’, 7 EuConst (2011) p. 5.
154
L. Corrias, ‘Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and
Constitutional Identity’, 12 EuConst (2016) p. 6; and P. Blokker, ‘Populist Constitutionalism’,
in C. de la Torre (ed.), Routledge Handbook of Global Populism (Routledge 2018) p. 113.
155
Blokker, supra n. 8. See also Krygier, supra n. 8.
156
A. Jakab and P. Sonnevend, ‘Continuity with Deficiencies: The New Fundamental Law of
Hungary’, 9 EuConst (2013) p. 102; K. Kovács and G. T´oth, ‘Hungary’s Constitutional
Transformation’, 7 EuConst (2011) p. 183.
157
Halmai, supra n. 9; D. Landau, ‘Abusive Constitutionalism’, 47 University of California Davis Law
Review (2013) p. 189 at p. 208-211; M. Tushnet, ‘Authoritarian Constitutionalism’, 100 Cornell Law
Review (2015) p. 391 at p. 433-435; R. Uitz, ‘Can you tell when an illiberal democracy is in the making?
An appeal to comparative constitutional scholarship from Hungary’, 13 ICON (2015) p. 279.
158
Ibid. See also P. Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’, 15
EuConst (2019) p. 48 at p. 56-57.
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When it came to the ordinary courts, Orbán removed the sitting Chief Justice of
the Supreme Court and replaced him with his appointee;159
prematurely terminated
the term of office of the Supreme Court Vice-President, Lajos Erményi, by statute,
allegedly on the grounds of the reorganisation of the Hungarian judiciary;160
got rid
of most senior judges (who often sat on the Supreme Court or held critical court
president positions) by abruptly reducing the compulsory retirement age for
judges;161
hollowed out the powers of the judicial council; and transferred judicial
appointments to a newly created body staffed by Fidesz people.162
Yet Orbán did not stop there. He also captured the State Audit Office, the
National Media and Telecommunications Authority, election commissions and
other independent agencies.163
This ‘constitutional Blitzkrieg’ ultimately
eliminated any resistance on the part of the Constitutional Court, the ordinary
courts as well as numerous other independent agencies.164
Poland witnessed a similar scenario after Jaroslav Kaczyński and his Law and
Justice (PiS) party won the 2015 Polish parliamentary elections. Kaczyński
launched an attack on the Polish Constitutional Tribunal. As he failed to muster
a constitutional majority in the 2015 parliamentary elections, he had to resort to
dubious amendments to ordinary laws concerning the Polish Constitutional
Tribunal and to employ the non-implementation technique in order to ‘contain’
the Polish Constitutional Tribunal before he could pack it with loyal judges.165
Nevertheless, he got eventually his way. He proceeded in five steps. First,
President Andrzej Duda refused to swear in three judges rightfully appointed
by the previous parliamentary majority in the lower house of parliament
(Sejm) before the 2015 elections.166
Second, the new Sejm after the 2015
159
Kosař and Šipulová, supra n. 125.
160
Ibid.
161
See T. Gyulaváriand and N. Hős, ‘Retirement of Hungarian Judges, Age Discrimination and
Judicial Independence: A Tale of Two Courts’, 42 Industrial Law Journal (2013) p. 289; and U.
Belavusau, ‘On Age Discrimination and Beating Dead Dogs: Commission v. Hungary’, 50 CMLRev
(2013) p. 1145.
162
N. Chronowski and M. Varju, ‘Two Eras of Hungarian Constitutionalism: From the Rule of
Law to Rule by Law’, 8 Hague J Rule Law (2016) p. 227; Kosař, supra n. 100, p. 134.
163
Halmai, supra n. 9; Uitz, supra n. 157; and Castillo-Ortiz, supra n. 158.
164
See A. Vincze, ‘Hungary: Regulatory bodies in an illiberal democracy’, in B. Iancu et al. (eds.),
Governance and Constitutionalism: Law, Politics and Institutional Neutrality (Routledge 2018)
p. 119; and Castillo-Ortiz, supra n. 158, at p. 65.
165
See L. Garlicki, ‘Disabling the Constitutional Court in Poland’, in A. Szmyt and B. Banaczak
(eds.), Transformation of Law Systems in Central, Eastern and Southeastern Europe in 1989-2015
(Gdansk University Press 2016) p. 63; T. Koncewicz, ‘Of institutions, democracy, constitutional
self-defence and the rule of law: The judgments of the Polish Constitutional Tribunal in Cases K 34/
15, K 35/15 and beyond’, 53 CMLRev (2016) p. 1753; and Sadurski, supra n. 4.
166
Ibid.
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elections, already under Kaczyński’s control, nominated five instead of two
Justices to the 15-member Polish Constitutional Tribunal.167
By doing so
Kaczyński filled not only the two new vacancies but also three vacancies ‘created’
by Andrzej Duda. Third, after Kaczyński met with resistance from the sitting
president of the Polish Constitutional Tribunal (Andrzej Rzeplinski), who refused
to let three ‘unlawful PiS justices’ into the building of the Polish Constitutional
Tribunal, he paralysed the Polish Constitutional Tribunal by refusing to allow the
publication of the Polish Constitutional Tribunal’s judgments in the Official
Journal, thus depriving them of legal effect, and by increasing the Polish
Constitutional Tribunal’s quorum for adopting plenary judgments.168
Fourth,
once Rzeplinski’s term had come to an end in December 2016, Kaczyński
adopted a law which created the new position of ‘acting president’ of the
Polish Constitutional Tribunal. Subsequently, President Andrzej Duda quickly
appointed Julia Przyłębska, one of the two justices lawfully elected in 2015.
Przyłębska immediately brought in the three unlawful PiS judges who were
previously rejected by the former president of Polish Constitutional Tribunal
Rzeplinski and called a general assembly of judges, where her PiS colleagues
elected her the President of the Polish Constitutional Tribunal.169
Fifth,
Kaczyński arranged a deal with Justice Andrzej Wr´obel, who voluntarily resigned
in January 2017.170
This allowed the governing PiS party to appoint the eighth
Justice and finally gain a majority on the 15-member Tribunal. By June 2017 the
Polish Constitutional Tribunal was under the firm control of Kaczyński as his PiS
had appointed nine out of the fifteen Justices.
Kaczyński also tightened his control over ordinary courts, hitting lower courts
as well as the Supreme Court. Like Orbán, Kaczyński first took control over the
selection, promotion and disciplining of judges. He did so by packing the
National Council for the Judiciary, which has significant power over: (1) the
assessment, promotion and disciplining of sitting judges’ (2) the appointment
of new judges; and (3) the selection of court presidents.171
More specifically,
he prematurely terminated the terms of 15 judges sitting on the 25-member
National Council for the Judiciary, changed the election rules so that 15 new
judicial members of the National Council for the Judiciary were elected by
167
Ibid.
168
Ibid.
169
Ibid.
170
See E. Siedlecka, ‘Sędzia Andrzej Wr´obel odchodzi z Trybunału Konstytucyjnego. PiS obsadzi
kolejne miejsce’, Gazetta Wyborcza, 25 January 2017, 〈wyborcza.pl/7,75398,21289466,
sedzia-andrzej-wrobel-odchodzi-z-trybunalu-konstytucyjnego.html?disableRedirects=true〉, visited
22 August 2019.
171
See Śledzińska-Simon, supra n. 123, especially p. 1847-1855; and Zoll and Wortham, supra n.
122, p. 896-898.
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parliamentary majority rather than by their peers, and then appointed his protégés
to the vacant posts. As a result, 21 out of 25 members of the National Council for
the Judiciary were appointed by the legislature controlled by Kaczyński and his
PiS. This capture of the National Council for the Judiciary allows Kaczyński to
control judicial appointments and exercise pressure on sitting judges with threats
of discipline or denial of promotion.172
Furthermore, Kaczyński knew that lower court presidents and vice-presidents
could be very important players in Central European judiciaries.173
He thus gave
his Minister of Justice, Zbigniew Ziobro, a six-month window which allowed
Ziobro to dismiss court presidents and appoint new ones without consultation.
Ziobro fully exploited this ‘window of opportunity’ and replaced 160 court
presidents and vice-presidents.174
Only then did Kaczyński target the Polish Supreme Court. He again took a
page from Orbán’s playbook and reduced the compulsory retirement age for
judges from 70 to 65 years,175
which ‘by accident’ also applied to the Polish
Supreme Court President, Małgorzata Gersdorf, who turned 65 in 2017 and
whose constitutional term of office was only supposed to end in 2020, and to
more than one third of the Supreme Court judges.176
At the same time, he
increased the number of judges on the Supreme Court from 81 to 120.177
The cumulative effect of these two measures was that Kaczyński, having the
National Judicial Council already under control, could in theory in one fell swoop
appoint 70 out of 120 Supreme Court judges, including the new Supreme Court
president. However, in November 2018 the European Court of Justice stepped in
and ordered the suspension of the new law that had lowered the compulsory
retirement age for Polish judges.178
Not without hesitation, Poland reversed that
172
Ibid.
173
See Kosař, supra n. 100. For the role of court presidents in comparative perspective see A. Blisa
and D. Kosař, ‘Court Presidents: The Missing Piece in the Puzzle of Judicial Governance’, 19
German Law Journal (2018) p. 2031.
174
Zoll and Wortham, supra n. 122, p. 898-899.
175
In fact, Kaczyński killed two birds with one stone; by reducing the compulsory retirement age
he got rid of not only Chief Justice Gersdorf, but also of approximately one third of the Supreme
Court judges (M. Wiewi´ora, ‘The new Act on the Supreme Court in Poland’, Duel Amical,
27 February 2018, 〈www.duelamical.eu/en/articles/new-act-supreme-court-poland〉, visited
19 August 2019).
176
Zoll and Wortham, supra n. 122, p. 894-896.
177
See ‘Where the law ends. The collapse of the rule of law in Poland – and what to do’, European
Stability Initiative, 29 May 2018, Berlin – Warsaw, 〈www.esiweb.org/index.php?
lang=en&id=156&document_ID=190〉, visited 19 August 2019.
178
ECJ, Order of the Vice-President of the Court in Case C-619/18 R, Commission v Poland.
454 Kosař, Baroš & Dufek EuConst 15 (2019)
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law by enabling forcibly-retired judges to return to work; the damage to the
Supreme Court had, however, already been done.179
In the meantime, Kaczyński started his crackdown on independent agencies
and media boards.180
Kaczyński is thus following the same playbook as Orbán
in Hungary, perhaps even more shamelessly. The only difference is that
Kaczyński, in contrast to Orbán, does not have a constitutional majority and
has to resort to changes through ordinary statutes.181
With the help of his
protégé, the Polish president Andrzej Duda, this strategy has worked so far, even
though he did not manage to silence all pockets of resistance; some independent
agencies such as the Polish ombudsman remain active despite their vocal criticism
of Law and Justice reforms.
Slovakia and Czechia have fared slightly better, but they too show signs of
disregard for the separation of powers. Slovak Prime Minister R´obert Fico and
his Smer managed to fill the Slovak Constitutional Court with loyal Justices
and thereby de facto immunised Smer’s policies from judicial review. Only
Fico’s unexpected defeat to an independent candidate, Andrej Kiska, in the
2014 presidential race prevented him from completely controlling the Slovak
Constitutional Court182
because it forced Fico to cooperate with the new
President on new constitutional court justice appointments.183
Although Fico
had to step down as Prime Minister amid mass protests following the assassination
of investigative journalist Ján Kuciak and his girlfriend in February 2018, he
still has a tight grip on Slovak politics. In October 2018, he almost managed
to orchestrate a constitutional amendment that would exclude the Slovak
President from the selection of judges for the Slovak Constitutional Court,
but he eventually lost out in a dramatic late-night parliamentary session.184
179
See e.g. L. Pech and S. Platon, ‘The beginning of the end for Poland’s so-called “judicial
reforms”? Some thoughts on the ECJ ruling in Commission v Poland (Independence of the
Supreme Court case)’, EU Law Analysis, 8 July 2019.
180
For instance, the new law allowed him to dismiss all the boards of public-service broadcasters
and vest their control with the Treasury Ministry. See J. Fomina and J. Kucharczyk, ‘Populism and
Protest in Poland’, 27 Journal of Democracy (2016) p. 58 at p. 63.
181
See also Krygier, supra n. 8, p. 5.
182
See Venice Commission, ‘Slovak Republic – Opinion on questions relating to the appointment
of judges, adopted by the Venice Commission at its 110th Plenary Session (Venice, 10-11 March
2017)’, CDL-AD(2017)001.
183
See ibid.
184
See e.g. M. Sliz, ‘Koalícia neschválila zmeny ústavného súdu. Odskočili od nej kotlebovci’,
Aktuality.sk, 24 October 2018, 〈www.aktuality.sk/clanok/635231/koalicia-neschvalila-zmenyustavneho-sudu-odskocili-od-nej-kotlebovci/〉,
visited 19 August 2019.
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Later on, Fico himself ran for the President of the Slovak Constitutional Court,185
but he has failed to secure that post.186
Even Czechia, widely considered the most resistant among Central European
countries to attacks on the separation of powers, is far from immune. The winner
of the 2017 parliamentary elections and current Prime Minister, Andrej Babiš,187
not only prefers to ‘run the state like a firm’,188
implying that checks and balances,
as well as complex procedural rules, are nothing but a nuisance,189
but has also
pledged to abolish the upper chamber of the Parliament (Senate), reduce the number
of MPs in the lower chamber from 200 to 101,190
and abolish municipal assem-
blies.191
In other words, Babiš aims for a centralisation of power by strengthening
the majoritarian elements of Czech parliamentarism, and for a weakening of checks
on his powers and policies. The recently re-elected President, Miloš Zeman, fully
supports such views. According to several judges of the Czech Constitutional
Court and the Supreme Administrative Court, Zeman went even further as his envoys
have allegedly attempted to persuade judges of these two courts to decide high-profile
political cases in line with Zeman’s preferences.192
More recently, the dubious
185
See V. Prušová and M Kern, ‘Fico kandiduje na Ústavný súd’, Dennik N, 7 January 2019,
〈dennikn.sk/1343550/fico-kandiduje-na-ustavny-sud/〉, visited 19 August 2019.
186
His candidacy sheds new light on the October constitutional amendment bill – Fico
apparently had a personal motive in passing this amendment as he intended to run for the office
of constitutional justice and suspected that President Kiska would have never nominated him.
187
See T. Haughton et al., ‘Czech elections have become really volatile. This year was no exception’,
Washington Post, 24 October 2017, 〈www.washingtonpost.com/news/monkey-cage/wp/2017/10/24/
czech-elections-have-become-really-volatile-this-year-was-no-exception〉, visited 19 August 2019.
188
See e.g. J. Jandourek, ‘Babiš chce řídit stat jako firmu. To asi nepůjde, stát není firma’, Reflex
on-line, 6 September 2013, 〈www.reflex.cz/clanek/info-x/51716/babis-chce-ridit-stat-jako-firmuto-asi-nepujde-stat-neni-firma.html〉,
visited 19 August 2019. For a scholarly analysis of Babiš’s
entrepreneurial party see L. Kopeček, ‘I’m Paying, So I Decide – Czech ANO as an Extreme
Form of a Business-Firm Party’, 30 East European Politics and Societies (2016) p. 725; V.
Hloušek and L. Kopeček, ‘Entrepreneurial Parties: A Basic Conceptual Framework’, 24 Czech
Journal of Political Science (2017) p. 83.
189
See e.g. R. Lyman, ‘The Trump-Like Figures Popping Up in Central Europe’, New York Times,
24 February 2017, 〈www.nytimes.com/2017/02/24/world/europe/zbigniew-stonoga-andrej-babis.
html〉, visited 19 August 2019.
190
This change would seriously skew the electoral rules against smaller political parties. Viktor
Orbán actually did the same in Hungary (see literature supra n. 3).
191
See A. Babiš, O čem sním, když spím: Vize 2035 pro Českou republiku, pro naše děti (Czech Print
Center 2017).
192
See O. Kundra, A. Procházková, ‘Mynář se pokusil ovlivnit vysoce postavené soudce’, Respekt,
6 January 2019, 〈www.respekt.cz/politika/mynar-se-pokusil-ovlivnit-vysoce-postavene-soudce〉,
visited 19 August 2019; R. Kalenská, ‘Soudcova výpověď o Zemanově útoku na justici:
Dával mi jasně najevo, jak máme rozhodnout, říká Baxa’, Deník N, 16 January 2019,
〈denikn.cz/54570/soudcova-vypoved-o-zemanove-utoku-na-justici-daval-mi-jasne-najevo-jak-mamerozhodnout-rika-baxa/〉,
visited 19 August 2019.
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resignation of the Minister of Justice, who abruptly resigned after the Police
recommended prosecution of the Prime Minister Babiš, further intensified concerns
about judicial independence and led to massive public protest.193
To be sure, neither Orbán nor Kaczyński (nor Babiš nor Fico) are
anti-institutionalists in an unequivocal sense.194
They like institutions as long as those
institutions pursue their agendas,195
or at least behave in a neutral way and do not put
up unwelcome obstacles. As Müller notes, populists ‘only oppose those institutions
that, in their view, fail to produce the morally (as opposed to empirically) correct
political outcomes’.196
Hence, their goal is not necessarily to abolish the existing
institutions, merge them, blur the boundaries between their functions, or occupy
several offices at once. In fact, even Kaczyński does not reject the separation of powers
as such (note that he prefers to stay in the background as an ordinary MP rather than
becoming Prime Minister, which would openly concentrate power in his hands) and
he ‘merely’ pushes his own vision of separation of powers.197
To be more precise, these populist leaders in the first place seek to immunise
their governments’ actions from external review and to silence their critics.
Therefore, their primary target is the principle of checks and balances, and
especially its ‘checks’ element. They want to take swords away from agencies they
do not control and reduce the shields these institutions have vis-à-vis the
democratically elected branches.198
That is why both Orbán and Kaczyński have
ended up in a head-on collision with constitutional tribunals199
and ordinary
courts200
– the institutions that are most resistant to abrupt changes in the
political mood.201
Interestingly, once they captured the courts, they vigorously
193
See H. de Goeij and M. Santora, ‘In the Largest Protests in Decades, Czech Demand
Resignation of Prime Minister’, The New York Times, 23 June 2019, 〈www.nytimes.com/2019/
06/23/world/europe/czech-republic-protests-andrej-babis.html〉, visited 19 August 2019.
194
In this issue, the relationship of populists to political institutions is analysed by Blokker, supra
n. 8, p. 7; Suteu, supra n. 8, p. 10-11; and Krygier, supra n. 8, p. 22-23. See also the discussion on
how populists use law for their own purposes in Corso, supra n. 150, p. 10-12.
195
For a good analysis of how they (ab)use constitutional courts once they take control of them, see
Castillo-Ortiz, supra n. 158, p. 67-71.
196
Müller, supra n. 2.
197
See e.g. the Polish response (UNHRC, 6 June 2018, A/HRC/38/38/Add2, p. 4) to the Report
of the Special Rapporteur on the independence of judges and lawyers on his mission to Poland
(UNHRC, 5 April 2018, A/HRC/38/38/Add1).
198
On swords and shields see supra nn. 35-40.
199
See Castillo-Ortiz, supra n. 158.
200
See supra nn. 159-162 and 171-179.
201
A crackdown on independent agencies soon followed (see supra nn. 163-164 and 180). Note
that given the fact that both Hungary and Poland are parliamentary systems, the executive enjoys
the support of a parliamentary majority (and both Orbán and Kaczyński have secured pliant
Presidents) and thus that the major battleground is between political branches and the judiciary,
and not government-parliament relations.
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started defending and exploiting them.202
Sometimes they even established a
brand new judicial check, e.g. the system of administrative courts in Hungary.203
However, the ramifications of their actions go deeper and have an impact on other
components of the separation of powers as well. For instance, one of Kaczyński’s first
steps after his 2015 electoral victory was to reform public prosecution by merging the
Office of the Public Prosecutor General with the Minister of Justice.204
In combination
with other judicial reforms, this means that the Polish Minister of Justice has
extensive power over both those who prosecute and those who hear the cases being
prosecuted.205
This arrangement not only interferes with the separation of institutions
component but also reminds us of the communist model of prokuratura.206
Viktor
Orbán, due to three consecutive electoral victories which gave him constitutional
majorities, has not had to interfere with the separationist components so far.
However, as during communist rule,207
the separation of institutions, even if formally
anchored in the new Hungarian constitution, is an illusion; pretty much all institutions
are now subordinate to Orbán’s Fidesz and their supporters. That said, we do not
know whether Central European populist leaders will remain content with upholding
the separationist components or whether, when under threat of political defeat, they
will decide to follow the example of their non-European counterparts who have not
shied away from shameless violations of the separation of institutions and separation
of functions.208
CONCLUSION: WHY INSTITUTIONAL TWEAKS ARE
NOT ENOUGH
The rise of political leaders such as Viktor Orbán and Jarosław Kaczyński and their
respective actions have forced us to rethink what has gone wrong with Central
European democracy. We have argued that analysing their actions from the
202
See Castillo-Ortiz, supra n. 158, at p. 67-71.
203
See R. Uitz, ‘An Advanced Course in Court Packing: Hungary’s New Law on Administrative
Courts’, Verfassungsblog, 2 January 2019, at 〈verfassungsblog.de/an-advanced-course-in-courtpacking-hungarys-new-law-on-administrative-courts/〉,
visited 22 August 2019.
204
Zoll and Wortham, supra n. 122, p. 891-892.
205
Ibid. On the top of that, as was shown above, he enjoys great discretion in selecting court
presidents.
206
See supra n. 76.
207
See supra nn. 77-78.
208
One recent example is the Venezuelan Supreme Court which, under orders by President Maduro,
transferred to itself (‘or to the entity that the Court decides’) all the powers enjoyed by Parliament, officially
‘in order to preserve the country’s rule of law’. See J. Couso, ‘Venezuela’s Recent Constitutional
Crisis: Lessons to be Learned from a Failed Judicial Coup D’etat’, Int’l Journal of Constitutional Law
Blog, 12 April 2017, at 〈www.iconnectblog.com/2017/04/venezuelas-recent-constitutional-crisislessons-to-be-learned-from-a-failed-judicial-coup-detat-i-connect-column/〉,
visited 22 August 2019.
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perspective of separation of powers produces valuable insights that would
otherwise have remained obscure if we had inspected them only through the more
common prism of the rule of law. In order to achieve this, we unpacked the
concept of separation of powers into four key components and examined how
Central European regimes between WWI and the end of the Cold War treated
separation of powers in practice.
We have shown that Central European leaders have always gravitated towards a
centralisation of power (often culminating in a cult of personality) and that basic
imperatives of the principle of the separation of powers were sidelined even during
the occasional democratic periods in these countries’ histories. Moreover, the interwar
regimes left little room for an active and pluralistic civil society and the communists
openly suppressed it. These historical legacies of Central European countries, a strong
push toward centralisation and a lack of a robust civic political and legal culture, have
left a deep imprint on the Central European mindset.
Of course, all that is meant to enable a better understanding of the current
state of affairs. We argue that the post-1989 era is best explained as a series of
‘overreactions to overreactions’. The largely understandable desire to prevent
the re-establishment of a communist-style centralisation of power encouraged
the adoption of a Pan-European template exhibiting clear depoliticising logic,
which was significantly boosted by the EU accession process.209
This PanEuropean
template prioritised unelected actors, especially constitutional courts,
judicial councils and agents of technocratic governance. Not surprisingly, they
happily ruled the day. With the benefit of hindsight, we argue that this distortion
of the separation of powers proved detrimental to greater civic engagement.210
As
such, it helped pave the way for the populist backlash against ‘elitism’ of whatever
sort (be it ‘Brussels’, George Soros, or social scientists), and generally against any
‘limitations on the expression of the general will, most notably the constitutional
minorities and the independence (from politics, and therefore from democratic
control) of key state institutions (e.g. the judiciary, the central bank)’.211
To
put it simply, the two major recent challenges to the separation of powers in
the region – the rise of the unelected and the wave of populism – are more
interrelated than usually thought, and the former has greatly contributed to
the latter.
Regarding the individual components of separation of powers, we have shown
that each Central European regime has attacked some components of separation
of powers more aggressively than others. Totalitarian and authoritarian regimes
209
Even though many standards of the Pan-European template have been developed primarily
within the Council Europe and only then adopted by the European Commission.
210
See Blokker, supra n. 84; and Czarnota, supra n. 122, at p. 54 and p. 62-63.
211
C. Mudde, ‘The Populist Zeitgeist’, 39 Government and Opposition (2004) p. 541 at p. 561.
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first dismantled virtually all checks on their power and then resorted to more
straightforward violations of the three separationist components (especially the
separation of institutions element). In contrast, the major battleground after
1989 has been the checks and balances component. While the Pan-European
technocratic template erected one-sided judicial checks on elected branches
and suppressed the ‘balances element’, the populist leaders swung the pendulum
back, removed most checks on the elected branches and packed the unelected
institutions. Only the future will tell whether Central European populists will
stop here or whether they will just maintain the facade of constitutional democracy
for now while remaining ready to tinker openly with the separationist
components as well.212
Given all the institutional and mental path-dependencies as well as the often
neglected deleterious effects of the rise of the unelected, it is now easier to
understand why populist leaders in Central Europe have had so little difficulty
in dismantling the separation of powers. That said, it is still frightening that the
judicial branch has been unable to tame anti-constitutional forces and protect the
Central European Rechtsstaat. Forget for now the fact that Central European
judiciaries might have called this fate upon themselves.213
The lesson to be learnt
is that the judicial branch turned out to be surprisingly weak once the struggle
became real.214
The Pan-European template of separation of powers thus worked reasonably
well in good times, but it failed once storm clouds appeared on the horizon,
most probably because it had little tradition in Central Europe and
because it did not enjoy enough political and societal support.215
This finding
has three repercussions for the future. First, mere institutional tweaks to the
constitutional framework are not themselves capable of righting the ship in
Central Europe. The foundations of the separation of powers are political
in nature and require broad consensus on a set of values that underpins it.
Therefore, what we need is to combat bad mental path-dependencies and
incentivise a willingness to engage in respectful interaction, be it deliberation
or bargaining – so that ‘the norms of political equality, individual liberty, civic
tolerance, and the rule of law’ become a staple among the major ideological
212
The latter route would suggest that populists simply attack different components of the
separation of powers at different phases of their development (see also the Venezuelan populist
regime discussed supra n. 208).
213
See e.g. Czarnota, supra n. 122, at p. 58-59; see also example mentioned supra n. 122.
214
For a similar conclusion see K. Kovács and K.L. Scheppele, ‘The fragility of an independent
judiciary: Lessons from Hungary and Poland – and the European Union’, 51 Communist and
Post-Communist Studies (2018) p. 189. See also Krygier, supra n. 8.
215
See e.g. Czarnota, supra n. 122.
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players in Central European politics.216
Second, the separation of powers
needs someone (other than one of the three branches) who will defend it when
it is under pressure. The Pan-European template relied almost exclusively on
the judicial branch, which might suffice against ordinary challenges. However,
when the judicial branch itself is under frontal attack, civil society, the free
media and other ‘contingent circumstances’217
become at least as important
as the formal mechanisms to maintain the balance of power. Third, it is dangerous
to rely primarily on the European Court of Justice and think that it will
single-handedly be able to rescue Central Europe and restore a functioning
separation of powers.218
While the European Court of Justice surely plays
an important role, especially in the current developments in Poland,219
the
failure of the Pan-European template shows that a top-down approach to
the separation of powers does not work in Central Europe and that any
long-term solution must have the broad support of the people.220
216
J. Dawson and S. Hanley, ‘What’s Wrong with East-Central Europe? The Fading Mirage of the
“Liberal Consensus”’, 27 Journal of Democracy (2016) p. 21.
217
See supra n. 44.
218
See e.g. The Editorial Board, ‘EU’s top court shows how to tackle autocrats’, Financial
Times, 27 June 2019, 〈www.ft.com/content/836095aa-9821-11e9-8cfb-30c211dcd229〉, visited
19 August 2019; Pech and Platon, supra n. 179.
219
See e.g. M. Bonelli and M. Claes, ‘Judicial serendipity: how Portuguese judges came to the
rescue of the Polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos
Juízes Portugueses’, 14 EuConst (2018) p. 622; M. Krajewski, ‘Who is Afraid of the European
Council? The Court of Justice’s Cautious Approach to the Independence of Domestic Judges:
ECJ 25 July 2018, Case C-216/18 PPU, The Minister for Justice and Equality v LM’, 14
EuConst (2018) p. 792; and L. Pech and S. Platon, ‘Judicial independence under threat: The
Court of Justice to the rescue in the ASJP case’, 55 CMLRev (2018) p. 1827.
220
Note that some scholars argue that the people had been deeply disappointed with the
pre-populist governance framework, even if they disagreed with the subsequent actions of
Central European populist leaders and thus that the return to the status quo ante would not solve
the current problems; see e.g. Czarnota, supra n. 122, p. 62-63 (on Poland).
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