Informal Concentration of Powers in Illiberal Constitutionalism: The Case of Hungary

Abstract

Classic and new concepts of the separation of powers doctrine focus on the control of central political power. Institutional checks and balances are classic legal instruments of this control, especially the activity of independent state organs. In those countries where the political system is dominated by a populist government, the institutional checks and balances and independent institutions are under constant pressure. In a consolidated political system that has already departed from liberal constitutionalism and where constitutional institutions do function only in a formal sense (illiberal constitutionalism), institutional checks and balances lose their significance. However, in addition to the exercise of powers by independent branches of government, other legal institutions or actions can also have a significant impact on relations between branches of government, even informally. Therefore, the system of checks and balances can be described as a multi-layered structure with formal (classical) and informal elements. The article analyses in detail, how the use of informal constitutional amendments and national referendums—as additional institutions belonging to the complex system of separation of powers—instead of controlling the central political power, has contributed to the informal concentration of government power in Hungary in recent years.

1 Introduction

The principle of the separation of powers is particularly vulnerable in political regimes that have deviated to some extent from the requirements of constitutional democracy. In such polities, the central political power has an interest in strengthening its own position by weakening the independent checks and balances that have historically provided an effective counterweight to the government. Similarly, governments in such polities often tend to use extralegal (informal) means rather than formal law to exercise their powers, in order to avoid potential formal judicial review of their actions.

The article examines the peculiarities of the concept of the separation of powers as a complex system in which, in addition to the norms relating to the status and powers of state organs, various additional legal institutions and actions may serve the very function of the doctrine itself, i.e. to control central political power. In political regimes dominated by populist politics and the frequent use of informal law, the control effect of these additional legal institutions and actions is crucial: they have the potential to constrain the government even under special circumstances. On the other hand, a consolidated and powerful political regime that departs from the requirements of constitutional democracy can neutralise this check.

The article analyses two legal institutions that can have such a controlling effect: informal constitutional amendment and direct democracy. After describing their basic characteristics and their ability to control the central political power within the complex system of the separation of powers, the practice of these institutions in Hungary is analysed in detail. The concept of illiberal constitutionalism¹ is a plausible explanation for the current state of Hungary’s constitutional and political system. The populist government is in a dominant position,² it has significantly weakened independent institutions of control and frequently uses elements of informal law related to governance. This is a consolidated regime that has in practice deviated from the key requirements of constitutional democracy, including an effective system of institutional checks and balances. Therefore, it is worth examining whether informal constitutional amendments and national referenda can, to some extent, control the central political power in the regime of illiberal constitutionalism in Hungary. The analysis shows that the government has managed to neutralise this check through formal and informal legal means and actions, and even to turn this effect into a strengthening of its own power.

2 The Separation of Powers and Illiberal Constitutionalism

2.1 The Double Effect of Populist Politics and Informal Law on the Functioning of the Separation of Powers

As many scholars focusing on populism³ have noted, a key feature of populist politics, especially that of populist governments, is that populist politics aim to weaken the governing power’s institutional constraints.⁴ In other words, in political regimes dominated by a populist government⁵ checks and balances targeted at controlling the government are weakened, and the effective functioning of the classic constitutional principle of the separation of powers is therefore put at serious risk.⁶ Populist government politics often directly attack constitutional and ordinary courts⁷ both by formal⁸ and informal⁹ means. As a result, the activity of constitutional courts and judges can no longer be effectively safeguarded against the centralized political power. In certain cases, these institutions can face direct or indirect political influence, and their independence is challenged. In an even worse scenario, judges themselves can turn to the tool of judicial populism.¹⁰ One can add that in consolidated populist political regime such as illiberal constitutionalism, the functioning of independent institutions is merely formal.

The extensive use of informal law¹¹ and informal tools of populist governance¹² also affects the systemic functioning of the separation of powers in illiberal regimes. As Paul Blokker indicates, ‘the populist understanding of the law denies the idea of a closed, self-sufficient and self-referential legal system, which imagines its own functioning through the specialist language of law’. Furthermore, ‘in the populist view, the law becomes inseparable from extralegal sources, such as political power and the societal community’.¹³ Accordingly, for a populist government, formal legal provisions are not real constraints on their activity; this is why these governments tend to exercise their powers alongside formal legal provisions by means of informal law and other extralegal ways that are capable of expressing (in a symbolic way) the government’s commitment to reflecting the popular will.¹⁴ Elements of informal law, as well as other extralegal means of exercising power, are evidently not the subjects of judicial (constitutional) review.¹⁵ On the other side, ‘informal changes benefit from no special legal protection’,¹⁶ therefore, these can be changed quickly, simply based on political will.

Both trends—that is, the weakening of institutional checks and balances and independent organs, as well as the government’s extensive use of informal law and other informal means—undermine the proper functioning of the separation of powers in an illiberal regime. One can add that in illiberal constitutionalism other classic constitutional principles, such as rule of law and the effective protection of human rights are also relativized, especially in politically sensitive cases.¹⁷

2.2 The Separation of Powers as a Complex System¹⁸

Compelling arguments are demonstrating that the classic approach to the separation of powers is incapable of countering the challenges illiberal regimes pose to constitutional democracy. Moreover, by using the terms and requirements related to the classic concept, the practice of illiberal governments cannot be analysed appropriately. Therefore, a complex approach to the separation of powers is needed to better understand the functioning of this principle in illiberal regimes.

The classic principle of the separation of powers is occasionally the subject of reconsideration. There are no clear definitions of the doctrine in the legal literature,¹⁹ and it ‘has not been wholly reproduced in the institutional architecture of any modern state’.²⁰ Moreover, new social and political phenomena pose new challenges for constitutional law and call for new interpretations of the separation of powers. Novel approaches to the doctrine mostly focus on selected aspects of the relations and activities of state organs.²¹ However, none of these various approaches are exclusive, and their significance depends on the particularities of the examined theoretical problem or the legal dispute in question. Moreover, many of these approaches can be considered jointly. It is thus more appropriate to depart from the ‘pure doctrine’, as well as from its alternatives to some extent, and view the concept of separation of powers as a complex system that comprises different dimensions, levels and layers and is interdependent with other principles. With this approach, the cooperation between state organs, their impact on each other, their legitimacy as well the relation of the doctrine with other constitutional principles (e.g., the rule of law) can be also taken into consideration.

There is another relevant aspect that is rarely discussed in scholarly works: the function of the doctrine itself. The classic (Montesquieu’s theory) and simplified understanding of the doctrine’s function can be summarized as ‘a bulwark against the abuse of state power and the threat of tyranny’.²² When considering the constitutional values to protect when preventing tyranny, two interrelated principles come to light in classic interpretations: ‘limited government’ and ‘individual liberty’.²³ Alongside the prevention of tyranny, the doctrine can serve other aims as well.²⁴ However, additional objectives, together with the general purpose of the prevention of tyranny and underlying constitutional values, are all linked to the exercise of political power.

The difference between motivations that determine the political branches’ activities and those of the judicial branch (‘the least dangerous branch’) is widely accepted in legal scholarship.²⁵ Important analyses remind us that in reality there is a gap between the judiciary and the ‘political organs’²⁶; the separation of powers principle is an instrument for constituting and restraining political power,²⁷ and the division of powers is needed to avoid ‘excessive concentrations of political power’.²⁸ All these arguments support the conclusion that controlling and limiting political power (especially majoritarian, centralized political power) is a core function of the separation of powers.

The diversity of concepts and interpretations of the separation of powers lead to the conclusion that when examining the proper functioning of this principle, the design of state institutions and their formal powers should not be considered alone. A number of legal institutions, procedures, doctrines and actions have primary functions that are not explicitly related to the separation of powers system, but which could have a significant, even informal secondary impact on relations among state organs, especially on the majoritarian political power’s room for manoeuvring. Certain tools of direct democracy (citizens' initiatives, referenda initiated by a minority); internal limits on legislative power (open debate, supermajority requirements); the application of certain doctrines developed in constitutional interpretation (informal constitutional amendments, doctrines related to substantive constitutional unamendability); the exercise and judicial enforcement of political rights (the right to vote, freedom of expression, freedom of assembly); and certain norms and actions performed under international legal orders (dispute resolution before international fora) can limit the sphere of state organs’ actions, especially those of the majoritarian political power.²⁹ If we accept the limitation on the exercise of the central (majoritarian) political power as the basic function of the doctrine, these effects can be considered within the complex frame of the separation of powers as control mechanisms, as ‘invisible checks and balances’. Of course, the central political power can react to the limiting effect of these institutions; counteractions are unnecessary but are likely to occur.

Elsewhere, I have argued that the effects of these legal institutions, procedures, doctrines and actions on the limitation of the central political power could be more significant in countries where state practice based on the classic constitutional principles (including the separation of powers) has no long-standing tradition. Moreover, in times of constitutional or government crises, these effects could be even more powerful. In other words, if the core components of the separate powers system (formal checks and balances) do not function properly, it is useful to examine whether other legal tools could play a role in limiting the central political power.³⁰

The above arguments can be even more specific when considering the particularities of illiberal constitutionalism. As mentioned above, weakening institutional checks and balances and independent organs, and extending the government’s use of informal law and other informal means undermines the proper functioning of the separation of powers in illiberal regimes. On the one hand, effective institutional control conducted by independent institutions can be neutralized by populist governments, and on the other, when the government operates with informal law and other informal means, it rules out the possibility of the constitutional review of its acts. Therefore, in illiberal regimes, institutional checks and balances cannot efficiently serve the core function of the principle of separation of power – that is, the control of the central political power.

As a consequence, those entities that intend to counterbalance the central political power (e.g., supranational organizations, parliamentary minorities, independent institutions, political and civic groups, citizens) can more effectively turn to legal institutions and doctrines described above as ‘invisible checks and balances’. Many of these legal institutions are also informal in their nature: the conditions related to their use, particularities and effects, in many cases are not specified in the form of explicit, written legal norms. In other words, in illiberal regimes, the concentration of power in the central political power, which weakens the independence of control institutions and the effects of formal law, can be counterbalanced in a more effective manner by multiple actors and by means that belong to ‘invisible checks and balances’. However, the central political power can also react to these ‘invisible’ or ‘informal’ checks and balances aiming at neutralizing them in order to defend its political power. In a consolidated political regime marked by illiberal constitutionalism it is more likely that the Government can counterbalance these, evenmore, to have a significant impact on the use of these institutions in a way which finally strengthens its own position.

2.3 Informal Constitutional Amendment as a Potential Counterbalance of the Central Political Power

Informal constitutional amendments are usually examined in the broad context of constitutional change,³¹ although their definition can be articulated more precisely: the change of a constitution’s meaning resulting from a non-formal procedure³²—in most cases, by way of judicial interpretation in specific fora (constitutional or supreme courts), which can issue authentic interpretations of the constitution.

The possible interactions between the judicial forum entitled to issue legitimate interpretations and the constitution-amending power itself are diverse. The court can informally amend the text of the constitution on its own; however, it often happens that the court only signals the possible new meaning of the constitution, which leads to the formal amendment of the instrument based on the cooperative action of the constitution-amending power. It can also happen that the constitution-amending power counteracts the court’s interpretation by way of overwriting the constitution.³³ Moreover, it is not only the constitutional or supreme court that can craft informal constitutional amendments; the legislative and executive powers can also do so by developing a practice that contradicts the constitution’s provisions.

Informal constitutional amendments can be considered part of the ‘invisible layer’ of the complex system of the separation of powers system, linked to a non-political organ (in most instances, the constitutional or supreme court), which is not authorized to enact formal constitutional amendments. In this way, an informal constitutional amendment can serve to limit the capacity of the formal constitution-amending power (a political power) to manoeuvre. This power often reacts to this challenge with a diverse array of counteraction. Evenmore, in the case the court that formulates the informal constitutional amendment does not function in a genuinely independent manner, but rather supports the interests of the central political power (as a radical form of judicial populism), the use of informal constitutional amendments can also contribute to strengthening the central political power.

2.4 National Referendum as a Potential Counterbalance of the Central Political Power³⁴

Among the various approaches to direct democracy³⁵ those have special relevance from the point of view of the separation of powers that take into account the initiation of the referendum question. Silvano Moeckli differentiates between the notions of minority direct democracy and plebiscitary direct democracy. When exercising minority direct democracy, citizens or a minority of members of parliament can pose a question to the political community against the will of the majority. On the contrary, when exercising plebiscitary direct democracy, the political majority organises a referendum on a question on which it could otherwise reach a final decision on its own.³⁶

Minority direct democracy can be taken into consideration within the complex system of the separation of powers. The initiators of the referendum represent a political alternative to the will of the Government in the given issue, while the decision-making of the people at the referendum is separated from the legislature. The purpose of the initiative is to influence legislation in a topic on which there is disagreement. In the case of success of the initiative, the Government will be limited in its room for manoeuvre in the given issue. The legislature can also counterbalance minority direct democracy as it can regulate the modality of initiation as well as the way of organizing referenda. Accordingly, the exercise of minority direct democracy can be considered as effective control of the political (majoritarian) power, belonging to the ‘invisible checks and balances’.

By contrast, in the case where the legislative or executive state organs initiate a referendum, direct democracy cannot counterbalance the governance.³⁷ In such a case, people participate in a decision-making process according to which parliamentary majority and government are already in a position to make a final decision in they own. Moreover, these state organs are exclusively shaping the whole political decision-making process by legal means as well as the communication about their preferred decision alternative. Therefore, direct democracy is no longer a counterbalance to them, rather a tool to strengthen their existing political power.

As a consequence, while minority direct democracy can effectively counterbalance the central political power, plebiscitarian direct democracy can significantly contribute to the informal concentration of power of the government.

3 The Practice Related to Informal Constitutional Amendments and National Referenda in the Context of Illiberal Constitutionalism in Hungary

3.1 Particularities of Illiberal Constitutionalism in Hungary

In Hungary, the transition from the state-socialist period to a constitutional democracy was marked by peaceful negotiations at the so-called ‘National Roundtable’, where the Hungarian Worker’s Socialist Party (the state party), the opposition political movements and civic organizations³⁸ were present. The roundtable members’ minimum objective was to reach a compromise on the conditions for organizing free elections while their decisions were formally enacted by the (one-party) parliament.³⁹ However, as a result of the roundtable discussions, the formal, comprehensive amendment to the 1949 Constitution, which entered into force on 23 October 1989, produced a new constitutional system, which was in line with classic constitutional principles. The first free elections were held in the Spring of 1990, but for various reasons, neither that elected National Assembly nor any of its immediate successors produced a new constitution, and therefore, the provisional ‘1989 Constitution’ was in force for twenty-one years.

The Fundamental Law, Hungary’s new constitution, entered into force on 1 January 2012. In the National Assembly elected in 2010, the governing Fidesz-KDNP coalition⁴⁰ had a two-thirds majority (dominated by the Fidesz party). The Fundamental Law was promulgated with the unilateral votes of representatives of the governing parties according to the procedure prescribed in the 1989 Constitution, which required a two-thirds majority vote of all the MPs.⁴¹ Since then, the governing Fidesz party incorporated populist politics into the government’s daily operations and managed to win three consecutive elections (2014, 2018, 2022) based on the new electoral laws enacted with the exclusive support of the governing party.

Both constitutions created completely new constitutional and political regimes, which differed from the previous regimes in several key aspects. The 1989 Constitution was the basis of a liberal democracy, which sharply contrasted with the previous one-party-dominated state-socialist period, while the 2011 FL became the foundation of a populist governance, especially in the modality of its functioning.⁴²

Among the many explanations of the Hungarian political and constitutional system built up after 2010, dominated by the Fidesz party and prime minister Viktor Orbán,⁴³ the concept of illiberal constitutionalism, elaborated by Tímea Drinóczi and Agnieszka Bień-Kacała seems to be the most plausible one for the purpose of this analysis. The authors take into account the existence of the populist political majority that showed no self-restraint when building up a new political regime, the previous experience of liberal democracy and the formal functioning of institutions related to constitutional democracy. In the author’s view, in illiberal constitutionalism constitutional democracy functions only in the formal sense while the related values (rule of law, democracy, human rights) are relativized.⁴⁴ In other words, illiberal constitutionalism is a transitional position of a constitutional system which cannot be considered liberal constitutionalism anymore, but it still cannot be described as an authoritarian regime.

When analyzing the possible formal constraints on the political power in this regime, Tímea Drinóczi and Agnieszka Bień-Kacała state that in Hungary the populist political majority ‘captured independent institutions of checks and balances’, including the Constitutional Court, therefore these cannot be considered significant. The authors rather underline that the EU membership and the everyday application of EU Law can be considered as a functioning restraint on the public power.⁴⁵ Following this argumentation, because in illiberal constitutionalism the effective functioning of formal institutional constraints on the government is limited to the application of EU Law, it is of special relevance to examine whether instruments belonging to the ‘invisible checks and balances’ can significantly constraint the central political power.

3.2 Informal Constitutional Amendments in Hungary Between 1989 and 2010

Neither the 1989 Constitution nor the 2011 FL contained ‘eternity clauses’, and the amendment procedure itself required the support of at least two-thirds of all the MPs.⁴⁶ Consequently, both constitutions were relatively unstable and easy to amend. Further, both constitutions’ drafting and enacting processes followed the then-existing formal rules, and thus there was no rupture in the formal legal continuity of the modern Hungarian state.

Inexplicit and informal constitutional amendments have been part of the Hungarian Constitutional Court’s practice since its inception in 1990, even not named in this way. The Court interpreted the Constitution in a way that altered its meaning in a total of seven cases between 1989 and 2010.

In the landmark decision on the abolition of the death penalty (1990), the Constitutional Court interpreted human dignity as an inviolable human right being a core value of other rights and a foundation of the legal system.⁴⁷ When interpreting the provisions of the 1989 Constitution on market economy as well as the Preamble, the Court established in 1991 the freedom of contract as a new constitutional right, as well as the doctrine of ‘economic neutrality’.⁴⁸ In a set of decisions on the interpretation of certain powers of the President of the Republic (the head of the state) and the relations between the President and the Government, the Court established new presidential powers, such as refusing the appointment of certain state officials based on the proposal of the Government as well as refusing awarding prizes in the name of the state.⁴⁹ In a landmark decision on the freedom of speech (1992), the Court established the principle of proportionality as the standard requirement related to the limitation of fundamental rights.⁵⁰ When interpreting the provisions of the Constitution related to direct democracy, the Court declared in 1993 that it is prohibited to organize national referenda in any question which would result in a formal amendment to the Constitution.⁵¹ In 1994, by interpreting the provision of the Constitution on the right to healthy environment, the Court deduced the duty of the state not to reduce the level of protection of environment which it has already legally ensured.⁵² The Court also created ‘the right to name’ as a new right in 2001, based on the interpretation of human dignity.⁵³

One can conclude that the Constitutional Court amended informally the Constitution aimed at creating a more effective protection for fundamental rights as well as safeguarding the balanced functioning of constitutional organs, mostly in the first decade of the establishment of constitutional democracy. The legislature and the constitutional-amending power in most of the cases tacitly accepted these informal amendments.⁵⁴

3.3 Informal Constitutional Amendments in Hungary after 2010

After the stabilization of the regime of illiberal constitutionalism—also in strong relation with the new composition of the Court and the changes in its competences⁵⁵—when exercising its powers, the Constitutional Court showed a more deferential approach to the political branches, especially in politically sensitive cases.⁵⁶ In contrast, when examining constitutional complaints, the Court started to function as a strict counterbalance of the judicial branch.⁵⁷

Due to its passive role taken, the Court issued only two informal constitutional amendments after 2013. The first intended to function as a counterbalance against the Government, which later was neutralized by the constitution-amending power, while the second was the result of informal cooperation with the Government, even supporting strengthening the position of the central political power.

3.3.1 Transitory Provisions (2011–2013)

The Fundamental Law, which was promulgated on 25 April 2011, contained a provision prescribing that its related transitory provisions had to be enacted in a separate legal act, in a procedure identical to the enactment of the FL.⁵⁸ The National Assembly enacted the Transitory Provisions on 31 December 2011, one day before the Fundamental Law entered into force. This legal act declared that it is part of the 2011 Fundamental Law, while the constitution did not clarify its legal status. The Transitory Provisions contained political declarations that strengthened the politically exclusive, unilateral nature of the Fundamental Law, and provisions that overwrote the Constitutional Court’s prior decisions.⁵⁹

Soon after their enactment, the Ombudsman turned to the Constitutional Court, initiating the posterior norm control⁶⁰ of the Transitory Provisions. Alongside claiming the uncertain legal status of the Transitory Provisions, the Ombudsman argued that due to the fact that the legislature included in this legal act pieces of legislation that were previously found unconstitutional by the Constitutional Court, it also weakened the proper functioning of constitutional adjudication and the separation of powers.

In the reasoning of its decision,⁶¹ the Constitutional Court emphasized the requirement of the ‘unity of the constitution’ as a new constitutional concept. According to this approach, the written constitution must take the form of a singular document that includes all the norms of constitutional rank. As this concept can function as a normative requirement related to the constitution’s text and its future amendments, without having any formal legal basis, it can be considered an informal constitutional amendment. Moreover, the Court declared that the constitution can only contain provisions connected to its very function. Consequently, the Transitory Provisions, which contained norms of a transitory nature as well as other provisions, cannot be considered part of the Fundamental Law. The Court declared the provisions included in this legal act unconstitutional, with retroactive effect. Therefore, it explicitly limited the room of manoeuvre of the constitution-amending power.

From the perspective of the functioning of the ‘invisible layer’ of the separation of powers, it is also important to examine the interactions between the constitution-amending power and the Constitutional Court, as they relate to this case.

One of the Ombudsman’s main arguments in his motion was the uncertain legal status of the Transitory Provisions—specifically, their ‘self-legitimizing’ nature. During the time when the Constitutional Court examined the case, the National Assembly—with the intent to weaken the argument expressed in the Ombudsman’s motion—promulgated the First Amendment to the Fundamental Law,⁶² which supplemented the constitution’s text by explicitly declaring that the Transitory Provisions are part of the Fundamental Law.

The Fourth Amendment to the Fundamental Law,⁶³ enacted after the publication of the Constitutional Court’s decision on the unconstitutionality of the Transitory Provisions, was a more direct reaction to the case. With this amendment, the National Assembly incorporated the Transitory Provisions’ norms that the Constitutional Court had declared unconstitutional, into the text of the Fundamental Law. Ironically, the reasoning of the draft legislative proposal indicated that the National Assembly had included those provisions in the constitution with the aim of complying with the Court’s requirements articulated in the opinion. In other words, overwriting the decision of the Court was presented as a necessary step, which followed from the Court’s reasoning.

Moreover, the Fourth Amendment contained a new provision, which can also be considered a response to the Court’s decision. According to this, the Constitutional Court can review the fulfilment of procedural requirements related to the enactment of constitutional amendments but only in the form of an ex ante (preliminary) review or within a short period after enactment. The provision’s wording excludes the possibility of a substantive review of future constitutional amendments.⁶⁴ It is remarkable that, prior to this amendment, the Constitutional Court had no explicit authorization to review constitutional amendments. However, there were signs that the Court might be open to the future acceptance of a doctrine of substantive constitutional unamendability due to the frequent overwriting of its decisions.⁶⁵ Therefore, based on the wording of the Fourth Amendment, the Constitutional Court is not entitled to elaborate on any doctrine of substantive unamendability.⁶⁶ The National Assembly excluded this theoretical possibility by limiting the Court’s competence to procedural review—that is, to examine whether the procedural requirements related to the formal enactment of an amendment were respected.⁶⁷

Alongside the above-mentioned reactions to the Constitutional Court’s decision, the Fourth Amendment contained a provision with extremely robust symbolic power: it repealed all of the Court’s decisions published before the Fundamental Law entered into force.⁶⁸ It is worth noting here that the Constitutional Court’s practice based on the 1989 Constitution (1990–2011) can be considered the most important factor in expanding constitutional democracy: the notions of the people’s sovereignty, the separation of powers, judicial independence, the rule of law, legal certainty, dignity and equal treatment, as well as the requisite protection of fundamental rights, were explained in the Court’s detailed reasoning related to concrete legal disputes.⁶⁹ These interpretations of the Constitutional Court’s opinions were widely accepted and referenced in legal practice and thus became part of the ‘living law’. By repealing these decisions, the National Assembly strengthened the narrative⁷⁰ of the regime’s rupture with the previous liberal democracy and its core values.

As a consequence, in this case, the informal constitutional amendment formulated by the Constitutional Court can be considered part of the complex system of the separation of powers as a counterbalance against the central political power. According to the informal constitutional amendment, there was no future possibility to ‘constitutionalize’ any legislative topic outside of the constitution per parliamentary discretion. The Court’s decision led to the constitution-amending power’s counteractions. Initially, through the enactment of the First Amendment, which created the constitutional basis for the Transitory Provisions. As an extreme counteraction, with the enactment of the Fourth Amendment, the constitution-amending power even nullified the limiting effect of the Constitutional Court’s decision. Furthermore, the Fourth Amendment limited the Constitutional Court’s competence to control the enactment procedure of future constitutional amendments by excluding substantive review and weakened the Court in symbolic terms by repealing the Constitutional Court’s prior decisions.

As a result, the position of central political power was significantly strengthened, while the effect of the informal constitutional amendment as part of the ‘invisible checks and balances’ system was completely neutralised.

3.3.2 Constitutional Identity (2016–2018)

Another important informal constitutional amendment in the regime of illiberal constitutionalism concerns the concept of constitutional identity.⁷¹ Following invalid national referendum on ‘migrant quotas’ in 2016 (see below for details), the government initiated the Seventh Amendment to the Fundamental Law. The proposal included the duty of the state to protect the constitutional identity of the country, the related amendment of the ‘EU clause’ of the constitution, as well as the prohibition of the ‘resettlement of foreign population’. The government’s arguments referred to the ‘new unity of the nation’ (expressed in the invalid referendum) and the ‘politically binding nature of the referendum’.⁷² The government’s proposal did not receive the necessary support in the National Assembly because the ruling parties lost their constitution-amending majority between 2015 and 2018.

Prior to the failed seventh amendment to the Fundamental Law, the Ombudsman initiated an abstract interpretation of the Fundamental Law before the Constitutional Court in relation to the ‘EU-clause’, as well as in relation to the prohibition of collective expulsion.⁷³ According to the Ombudsman, it was not clear whether this prohibition also referred to the mechanism to be introduced by the EU, according to which Member States would have to take over asylum seekers from the countries which were heavily affected by migration (Italy and Greece).⁷⁴ The Constitutional Court issued its decision based on the initiative of the Ombudsman in December 2016,⁷⁵ two months after the invalid referendum. The Court declared that it can examine whether the joint exercise of the state competences with EU bodies or other member states is in accordance with (a) the protection of dignity and other fundamental rights included in the Fundamental Law, (b) the sovereignty of the country, or (c) the constitutional identity of the country based on its historic constitution.

The fact that the Constitutional Court introduced a new concept into the Hungarian constitutional order of (changing the meaning of the EU-clause of the Fundamental Law) and created a new competence for itself (that of examining whether the joint exercise of state competences is in accordance with the values mentioned) means that the decision can be regarded as an informal constitutional amendment. The similarity between the concept of constitutional identity elaborated by the Court and that contained in the failed Seventh Amendment is easy to see. Moreover, the Fidesz government, after regaining its constitutional amendment majority in the National Assembly, formally enacted the Seventh Amendment to the Fundamental Law in the first period of the 2018–2022 parliamentary cycle,⁷⁶ in line with its previous (failed) proposal as well as the arguments expressed by the Constitutional Court.⁷⁷ Later, the National Assembly referred to constitutional identity in two other formal amendments to the Fundamental Law,⁷⁸ while the Constitutional Court interpreted the concept in two new decisions.⁷⁹

Thus, in the case of the concept of constitutional identity, the informal constitutional amendment did not function as a counterbalance against the formal constitution-amending power, but rather it was the result of informal cooperation between the government and the Court (and to some extent, the Ombudsman). In practice, the need to protect sovereignty and constitutional identity is often invoked by the government in the context of legal and political disputes with the institutions of the European Union.⁸⁰ It can be reiterated that in the regime of illiberal constitutionalism, the functioning of the EU law can be considered as the only functioning formal limitation of government power.⁸¹

The Court’s reasoning also mentiones that the constitutional identity of the country is a fundamental value which is not created by the constitution, but which the constitution recognises.⁸² From this statement can be deduced the requirement that future constitutional amendments must be consistent with constitutional identity. In other words, by way of informally amending the constitution in close cooperation with the government, the Constitutional Court also established an implicit eternity clause of the Fundamental Law. Therefore, the concept of constitutional identity could be invoked in the hypothetical case of future constitutional amendments aimed at restoring liberal constitutionalism. In other words, in the system of illiberal constitutionalism, the concept of constitutional identity could serve anti-democratic purposes in the future.⁸³

One can conclude that the informal constitutional amendments between 1989 and 2011, by extending the level of protection of fundamental rights and by balancing the relations between state organs, functioned as a counterbalance to the constitution-amending power within the paradigm of liberal constitutionalism, and can be considered as part of the ‘invisible checks and balances’ in the complex system of separation of powers. In contrast, informal constitutional amendments after 2011 contributed to the strengthening the central political power. The 2011 informal constitutional amendment (Transitory Provisions) originally limited the scope of the constitution-amending power, but the supermajority in the National Assembly managed to neutralise this effect and even to significantly weaken the Constitutional Court. The informal constitutional amendment of 2016 (constitutional identity) turned out to be the result of informal cooperation between the constitution-amending power and the Court and contributed significantly to strengthening the central political power, also in the context of EU membership.

3.4 Direct Democracy in Hungary Between 1989 and 2010 ⁸⁴

The classic tools of direct democracy are relatively new institutions in Hungary, introduced immediately after the fall of the ‘state-socialist’ regime in 1989. In the new, democratic regime, the most important instruments used at the national level were referendums and the institution of popular initiative (i.e. a legislative proposal formulated by the people). Minority democracy and plebiscitary direct democracy were also present in practice during this period.

In the period between 1989 and 2010 citizens took part in six national referendums to express their opinions on a total of twelve questions. During the transition period, national referendums were closely linked to political issues of democracy building. In the autumn of 1989, a national referendum was organised on four symbolic transitional questions,⁸⁵ initiated by opposition movements,⁸⁶ in order to contrast themselves with the ruling state socialist party and the strongest opposition party before the first free elections. The majority of the electorate supported these initiatives and the National Assembly took the necessary legislative steps (also in accordance with the compromise between the main political forces). In the summer of 1990, on the initiative of an independent member of parliament, a national referendum was held on the method of electing the president. However, the referendum was not valid due to the low turnout.⁸⁷ The national referendums on NATO membership (1997) and EU membership (2003) were initiated by the government and concerned the country’s most important strategic goals on which there was a national and political consensus. Accordingly, the overwhelming majority of the votes were in favour of these initiatives. Since 2004, however, the national referendum has become an outsourced instrument of the political struggle between the government and the opposition. The 2004⁸⁸ and 2008⁸⁹ referendums were initiated with the support of the then opposition parties⁹⁰ and targeted symbolic government policies. While the 2004 referendum was invalid due to the low voter turnout, the 2008 ‘social referendum’ was particularly successful from the point of view of its initiators. As a result of it, the ruling party lost its coalition partner, and the leading opposition party (Fidesz) started to build up a very strong support among the voters.⁹¹

The issues put on the agenda of the National Assembly as a result of successful popular initiatives (collection of at least 50.000 supporting signatures) show a variety of the topics based on the actual interests of the initiators. Between 1989 and 2010, the National Assembly dealt with a total of 16 issues based on popular initiatives, in four cases deciding in favour of the initiators’ original proposal.

The Constitutional Court interpreted the relationship between representative and direct democracy in two important decisions during this period. On the basis of these decisions, the Court stated that ‘in the constitutional order of Hungary the primary form of exercising the sovereignty of the people is representation’,⁹² and that ‘in exceptional cases, when it is actually implemented [direct democracy] is superior to the exercise of power by representatives.’⁹³ Accordingly, the Court’s assessment also underlines the capacity of direct democracy to limit and counterbalance the legislature as a political organ. According to the Court, the ‘pure form’ of direct democracy is the national referendum initiated by the citizens and enforceable⁹⁴ (in the case of which the parliament is obliged to order the referendum and to take legislative steps in accordance with the decision of the valid referendum).

3.5 Direct Democracy in Hungary After 2010

The Fundamental Law and the related laws changed the modalities of the functioning of direct democracy in Hungary in important respects. A new turnout requirement was introduced: national referendums are valid (i.e. have legal significance) only if the majority of the voters cast valid votes.⁹⁵ The initiation of national referendums was also changed: whereas under the previous regulation a quarter of the members of parliament (as a political minority) could also initiate national referendums, in the Fundamental Law this possibility was left only to the President, the government and the people (100.000 citizens as a minimum requirement). In contrast to the previous system, which allowed for the organisation of consultative referenda (which were not binding on the legislature), according to the provisions of the Fundamental Law, the results of valid referenda are always binding on the legislature. Therefore, the legislature is obliged to take legislative steps in accordance with the will of the people expressed in the referendum. As a result, although the relationship between representative and direct democracy has remained unchanged in the Hungarian constitutional order (as explained above with reference to the decisions of the Constitutional Court), it has become more difficult to initiate and organise valid national referendums, especially from the point of view of political minorities. Moreover, the popular initiative is no longer part of the legal system.

In the new political regime of illiberal constitutionalism, two national referendums took place (2016, 2022). Both referendums were initiated by the government, so they can be considered as classic instruments of plebiscitarian direct democracy.

It can be added that during this period, national referendums were also initiated in many cases by political minorities (opposition parties, civil movements), but none of these initiatives led to the organization of national referendums, for two reasons. Firstly, the state bodies responsible for examining whether the referendum question complies with the legal requirements (the National Election Commission, the Constitutional Court and the Curia – the Supreme Court of Hungary) usually take a restrictive approach in the case of opposition or civil initiatives. Secondly, in the case of minority initiatives, after the conformity of the referendum question with the legal requirements has been verified, it is also necessary to collect supporting signatures from the citizens within a period of four months. If at least 100,000 supporting signatures are collected, the National Assembly can freely decide whether or not to order the referendum.⁹⁶ If at least 200,000 signatures are collected, the National Assembly is obliged to order the referendum. In other words, while the government can rely on the cooperative attitude of state organs in the case of its own national referendum initiatives and does not face procedural obstacles, minority initiatives are treated strictly by state organs and the organisers have to build up a large public support in a short period of time.

3.5.1 The ’Migrant Quota’ Referendum (2016)

The 2016 national referendum was linked to the government’s political agenda on migration. Since 2015, when millions of people fled the civil war Syria and headed for Europe, the government started to build up an intensive anti-migration communication campaign, despite the fact that Hungary was not a destination country, but rather a transit country. As the European Union was planning to introduce the aforementioned mechanism, according to which member states would have to accept asylum-seekers from European countries which were heavily affected by migration,⁹⁷ this issue became central to the Hungarian government’s political agenda. The national referendum was initiated by the government with the aim of opposing the EU plan of ‘forced relocation of migrants’ and ‘migrant quotas’. Despite the fact that the referendum question⁹⁸ did not relate to the competences of the Hungarian Parliament⁹⁹ (but rather it was subject to EU regulation) and was closely related to at least one issue on which it is prohibited to organise a national referendum under the provisions of the Fundamental Law,¹⁰⁰ the National Election Commission¹⁰¹ and the Curia¹⁰² validated the question, so there was no legal obstacle to organising the referendum. In May 2016, the National Assembly ordered the referendum¹⁰³ on the question of ‘migrant quotas’ which was organised on 2 October 2016.

41.32% of the electorate cast valid votes in the national referendum, so according to the provisions of the Fundamental Law, the referendum was not legally valid: it had no legal consequences and the National Assembly was not obliged to take legislative steps in accordance with the result of the referendum. However, given that 98.36% of the electorate voted in favour of the option supported by the government,¹⁰⁴ the prime minister expressed in his speech to the National Assembly that the ‘new national unity’ had been formed on the basis of the referendum, and so, as mentioned above, the Seventh Amendment to the Fundamental Law was initiated in Parliament, which ultimately failed.¹⁰⁵ Two months later, the Constitutional Court issued its decision on the abstract interpretation of the Fundamental Law which introduced the concept of constitutional identity,¹⁰⁶ in line with the failed seventh amendment (see above).

One can conclude that the 2016 plebiscitary national referendum was deliberately used by the government as a political tool in order to strengthen its public support.¹⁰⁷ The issue of ‘migrant quotas’ did not fall within the regulatory competence of the Hungarian National Assembly and that of the national referendum. Theoretically and practically, this plebiscitary national referendum was not able to counterbalance the government. Rather, it supported the government’s informal concentration of power, even though it was not legally valid because of the relatively low turnout. Moreover, the national referendum served as a political reference for the Seventh Amendment, which—together with the abstract interpretation of the Fundamental Law by the Constitutional Court—later further strengthened the central political power.

3.5.2 The ‘Child Protection’ Referendum (2022)

The 2022 national referendum also took place in the context of the political agenda formulated by the government. This political communication targeted sexual minorities and was presented as ‘anti-pedophile’ and focused on the ‘protection of the children’. In 2020, the Ninth Amendment to the Fundamental Law¹⁰⁸ introduced the duty of the state to protect ‘the right of the children to a self-identity corresponding to their sex at birth’, while in 2021 a new, ‘anti-pedophile’ and ‘child protection’ law¹⁰⁹ was enacted. Among other things, the law banned the broadcasting of media content that differs from the ‘self-identity corresponding to the sex at birth’ for people under the age of 18, as well as restricting the conditions for organising informative events in public schools focusing on sexual education. Unsurprisingly, the law was heavily criticised by NGOs and international bodies.¹¹⁰ That criticism was presented by the government as an ‘attack on the values protected by the Fundamental Law’.

The government initiated national referendums on five related questions in the summer of 2021.¹¹¹ The National Election Commission validated each of the questions: it declared that they complied with the provisions on national referendums contained in the Fundamental Law and the Referendum Act..¹¹² The Curia, in exercise of its review function, confirmed the decisions of the National Election Commission, with one exception. In the case of the issue of gender reassignment treatment, the Curia stated that, on the basis of the referendum, the National Assembly would have to adopt a law that would contradict the very essence of the right to self-determination, and would be detrimental to human dignity.¹¹³ Later, on the basis of the constitutional complaint filed by the Government, the Constitutional Court declared that the aforementioned negative decision of the Curia violated the Government’s right to a fair trial, and therefore ordered the Curia issue a new decision on the matter under discussion. As the Curia did not issue a positive decision in time, finally the national referendum was finally organised only on the remaining four questions.

The National Assembly ordered the referendum in November 2021.¹¹⁴ In the same month, it amended the relevant laws¹¹⁵ to make it legally possible to organise parliamentary elections and national referendum on the same day, which had been prohibited by law for the past 32 years by law. According to the intention and political interest of the government, the parliamentary elections and the national referendum on the four questions were organised on the same day, April 3, 2022. In this way, the government was able to mobilise voters beyond its political supporters in relation to the referendum questions. However, the national referendum was not valid for any of the questions, as the turnout (taking into consideration valid votes) was below 50%.¹¹⁶ Most importantly, the campaign by opposition parties and NGOs resulted in a significant number of invalid votes, over 20%.¹¹⁷ The national referendum did not lead directly to legislative action. Before organising the referendum, the prime minister clearly stated that it has been initiated for political reasons, because ‘the European Commission is attacking Hungary for its child-protection laws’.¹¹⁸ Needless to say, the Fidesz party won the parliamentary elections based on 70.21% voter turnout and 54.13% of the votes cast for the party lists.

The 2022 national referendum was another significant manifestation of plebiscitary direct democracy.¹¹⁹ The government initiated the national referendum as part of a tough communication campaign on issues that were already regulated. Moreover, 6 months before the elections, the government initiated the amendment of the electoral law in order to remove the obstacles related to the organisation of the parliamentary elections and the national referendum on the same day, according to its political interests. As a result, the government strengthened its political position, while the exercise of plebiscitary direct democracy functioned as a tool to echo the political communication campaign of the central political power. In this context, the only reasonable option for the opposition political and civil movements was to campaign for invalid votes among the electorate. As a further manifestation of the intensive informal cooperation between the government and the formally independent state bodies, the National Election Commission imposed a fine after the national referendum on NGOs that campaigned for invalid votes, claiming that this activity contradicted the requirement of exercising rights in a good faith, contained in the Electoral Procedure Act.¹²⁰ Later the Curia reviewed this decision, stating that the ‘campaign for invalid votes’ was also protected by the freedom of expression.¹²¹

4 Conclusions

The practice of informal constitutional amendments and national referendums in the regime of illiberal constitutionalism in Hungary contrasts sharply with the practice in the period of liberal constitutional democracy between 1989 and 2010.

The seven informal constitutional amendments to the 1989 constitution, formulated by the Constitutional Court, led to an increase in extending the level of protection of fundamental rights and the efficiency of institutional checks and balances. These informal constitutional amendments were formally or informally accepted by other institutions. In contrast, the two informal constitutional amendments formulated by the Constitutional Court after 2010 had different effects. While the informal constitutional amendment related to the Transitory Provisions (2012) aimed to counterbalance the constitution-amending power, its effect was completely neutralised by the central political power, which further weakened the Constitutional Court. The informal constitutional amendment related to constitutional identity (2016) was the result of informal cooperation between the government and the Constitutional Court and resulted in strengthening the position of the central political power, even in the context of relations with the EU institutions.

The six national referendums organised on the basis of the 1989 constitution show a mixed picture. Most of them (1989, 1990, 2004, 2008) were initiated by political minorities, and two of them (1989, 2008) were successful from the point of view of the initiators, as they led to a change in the policies concerned. In addition, the 2008 national referendum significantly reduced the room for manoeuvre of the central political power, as it led to a split in the governing coalition. Two national referendums were initiated by the government (1997, 2003), but these concerned national strategic goals (NATO and EU accession), rather than specific political interests of the parliamentary majority. Thus, while both minority and plebiscitary direct democracy existed in practice, only one referendum (2008) had a significant impact on the complex system of the separation of powers by leading to effective constraints on the central political power. After 2010, no proposals for national referendums initiated by political minorities were successful, while two national referendums (2016, 2022) were organised based on the initiation of the government. Despite the fact that both national referendums were invalid due to the relatively low turnout, both manifestations of plebiscitarian direct democracy resulted in an informal strengthening of the central political power.

Based on the above, it can be concluded that in the Hungarian system of illiberal constitutionalism neither the institutional, formal, nor the additional, informal checks and balances do not function effectively. As a result, the government has succeeded in informally concentrating its powers. The formal requirement of separation of powers¹²² continues to lose its significance both in terms of institutional and ‘invisible’ checks and balances.