Confused Constitutionalism in Hungary—New Assessment Criteria for Recognising a Populist Constitutional Court

Abstract

The starting point of the paper is that the early constitutional changes after the populist transformation of Hungarian majority state politics (from 2010) and the application of the new Fundamental Law (since 2012) have created difficulty in achieving constitutional justice by judicial means. The fundamental populist constitutional transformation and, within this, the transformation of the regulation of the Constitutional Court have created great challenges for constitutional adjudication. Scholarship on the transformation of the Hungarian Constitutional Court regards the change of jurisprudence as a consequence of the constitutional environment, which ended up in institutional state capture. Basing my arguments on the classic competence-related issues of constitutional justice, activism and deference, I argue here that for constitutional courts, there is always a limited room for manoeuvre by interpretation except for in a ‘hard’ dictatorship. Populist Hungarian jurisprudence is, therefore, not only a consequence of constitutional change but a contribution per se—a cause of the construction of a populist constitution. This job has been done by constitutional interpretation in an activist or deferent manner with regard to specific politically sensitive issues. EU- and emergency-related constitutional conflicts are used here as examples to explain the proposed assessment criteria. The conclusion is that either the Court is activist or deferent, it contributes actively to the populist construction by constitutional interpretation.

1 Introduction

Constitutional courts have taken their present form in the world of globalising rule-of-law constitutionalism as a means for protecting human-rights-based (liberal) constitutional orders. The level of standardisation of this constitutional institution is one of the highest. In many European countries, the former are influential constitutional institutions that shape the legal system and constitutional policies.¹ In Central and Eastern Europe, constitutional courts have been entrusted with the task of ensuring that new constitutions are protected after the democratic transitions from socialist regimes to constitutional democracy.²

There are, however, fundamental, evergreen, competence-related controversies and dilemmas concerning constitutional adjudication in liberal constitutional theory, which are conceptualised partly within the framework of judicial activism and deference. These describe the abstract legal spaces for interpretation wherein a constitutional court can find ways to protect constitutionalism according to its own understanding of the constitution.³

Constitutionalism, therefore, does not depend only on the constitutional and legislative textual environment but also on strategies of institutional practice.⁴ In the case of constitutional courts, institutional practice is based on constitutional interpretation.⁵ Judicial activism and deference are classic concepts in liberal constitutional theory that describe the room for manoeuvre in constructing, deconstructing, or reconstructing certain constitutional elements.⁶

In accordance with this, I will argue that the Hungarian Constitutional Court (CC) is a populist constitutional court⁷ not only as a consequence of the constitutional and legislative environment but also due to its own choice of judicial decisions. I claim, according to the classic theoretical concepts of judicial activism and judicial deference, that all courts have some legitimate room for manoeuvre by interpretation; therefore, the Hungarian Constitutional Court also had room to stand by or counter populist political aspirations. The Court, in many politically relevant cases, chose to be activist or deferent to contribute to the populist constitutional construction. I will illustrate this and the usefulness of the proposed assessment criteria by analysing two groups of cases, one dealing with Hungary-EU constitutional relations and the other with government-made emergency legislation. The proposed assessment criteria crystallise the interpretation strategy of the court and its tasks and responsibility in a situation when there is clear room for manoeuvre for the latter to take an activist or deferential stance for/against populist constitutionalism.⁸

The structure of my argumentation is as follows: (1) first, I describe the state of the art in assessing populist constitutionalism and the transformation of the Hungarian Constitutional Court; (2) second, I explain how classic concepts demonstrate the role of constitutional courts in situations of institutional complexity and how the latter’s power/competence of interpretation give them room for manoeuvre in the form of judicial activism or deference. I (3) analyse jurisprudence accordingly, presenting examples of two kinds when the Constitutional Court was activist or showed deference to support political constitutional aspirations (regarding EU- and emergency-related matters). In order to prove my claim, counterexamples will also be added of when the Constitutional Court took an activist or deferent stance to counteract political aspirations between 2010 and 2013. All this leads me to conclude (4) that using the new (generalisable) assessment criteria for analysing jurisprudence, it becomes possible to judge if a constitutional court is in itself populist (per se) or if it has rather been entirely captured by the populist state. My examples lead me to conclude that the Hungarian Constitutional Court is in itself populist because (in spite of some early counterexamples) there are significant cases of activism and deference after 2010 when the Court contributed to the populist state construction, especially concerning the hot topics of EU- and emergency-related matters.

2 The New Constitutional Context—Populist Constitutionalism and the Constitutional Court

In Hungary, the government majority has enjoyed broad popular support and a constitutional (constitution-making and amending) majority in the National Assembly (Parliament) since 2010. In 2010, the former right-wing Fidesz party, in alliance with the Christian Democrats, won a landslide victory at the elections and started to change the constitutional order immediately after entering into power.⁹ Then, in the spring of 2011, in the absence of the two opposition democratic parties, which—protesting the destruction of the rule of law—boycotted the procedure, the new Fundamental Law was adopted. The Fundamental Law aimed at creating a new constitutional order, later termed illiberal, populist, abusive, semi-autocratic, etc., by constitutional scholars.¹⁰ The terminology has been largely influenced by political science¹¹; in this article, I will use the concept of populist constitutionalism.¹²

Since March 2020, furthermore, when COVID-19 started spreading globally, and an emergency-based constitutional-level special legal order (state of danger) was declared in Hungary, there has been a permanent state of danger (this continues to the present day with reference to the war in Ukraine since 2022), associated with more than 1,000 government-adopted emergency decrees¹³ that shape the legal order and challenge constitutional adjudication.

In the legal and constitutional environment, the binding legal factors change and challenge the Constitutional Court to a great extent, potentially being decisive for jurisprudence. However, I argue that this does not completely enable autonomous constitutional interpretation.

The Hungarian Constitutional Court has not only theoretically but also traditionally had room for the autonomous interpretation of constitutional norms. It was established in 1990, immediately after the democratic transition from socialism. In the first period after the change of regime, the Court played a significant role in forming constitutional democracy in Hungary. It was famous for its activism.¹⁴

Although the new Fundamental Law that replaced the former Constitution¹⁵ envisaged a new role for the Constitutional Court,¹⁶ the tradition of activism and the latter’s strong position were significant heritages of the post-1989 liberal constitutional regime.¹⁷.

The aim of the transformation, according to the official reasoning of Act CLI of 2011 on the Constitutional Court (the CC Act), was to emphasize the subjective protection of fundamental rights in individual complaint cases and, on the other hand, to abolish the possibility of actio popularis, a procedure through which anyone could turn to the Constitutional Court without having suffered any particular personal injury or harm in order to initiate the annulment of a piece of legislation. There were, however, significant concerns that the new two-thirds constituent majority in Parliament would reconsider the central role of the formerly very activist institution in maintaining the rule of law in Hungary. Despite these worries, on the constitutional and legislative levels, the Constitutional Court retained its potential significance. In a European comparison, the scope of the Constitutional Court’s functions and competences can be considered complex.¹⁸

However, there were already two warning signs at that time: the Government introduced a constitutional amendment that restricted the competence of the CC in matters related to the review of central public finance and packed the court by changing the number of judges from 11 to 15. It also changed the election procedure by ensuring that the Government majority could elect new members of the court. The Government’s two-thirds majority in Parliament then amended the Fundamental Law 13 times by 2024 according to their day-to-day political needs.¹⁹ Accordingly, when most judges swore to protect the Fundamental Law for 12 years before Parliament, they did so to protect a constitution that is now different.²⁰

My starting point, in sum, is that the new two-thirds Government majority in Parliament clearly and harshly attempted to influence the selection, competence and operation of the traditionally very significant Constitutional Court²¹ to diminish or eliminate the institutional burdens on the exercise of political power and impose stronger constitutional guidelines on judicial practice, in line with the new majority constitution. By abolishing actio popularis, determining the compulsory methods of interpretation with reference to the achievements of the historical constitution, introducing constitutional guidelines into the work of the ordinary judiciary through constitutional complaint procedures and other compulsory measures regarding the interpretation of the law,²² the constitution-making political majority took steps to centralise constitutional policy and eliminate the agency of constitutional and ordinary judges.²³

So far, this is a well-known story²⁴; some might even claim that despite all these constitutional and legislative constraints, the Constitutional Court itself is doing all the work possible in good faith by applying the remaining competencies in the given constitutional and political environment by interpreting the Fundamental Law according to the standards of rule-of-law constitutionalism. I will, however, explain that this is not the case. I acknowledge, however, that it is methodologically challenging to distinguish between good faith, legally constrained but autonomous interpretative action, and a biased and supportive, loyal approach which uses interpretative tools to serve Government interests.²⁵ Therefore, I offer here a new, complementary approach to identifying the court's interpretative strategy and determining whether it is populist (per se).

3 Why is there Room for Manoeuvre for a Constitutional Court Under Populist Constitutionalism? Judicial Activism and Judicial Deference as Assessment Criteria

As for the nature of non-dictatorial, hybrid regimes or populist constitutionalism, Blokker and Anselmi, acknowledged scholars of populism, write that this phenomenon may be observed when populists have state authority, obtain power, and become able to influence the content of the constitution.²⁶ In Latin America, for example, the situation in Venezuela and Bolivia are examples, while in Europe, the constitutional reform carried out by the populist leader in Hungary is particularly emblematic in the literature.²⁷

Populism refutes the basic structure of constitutionalism, which is based on the separation of powers, an articulation of the mediation of power linked to an articulation of the institutionalized forms of popular sovereignty […] it aims at the elimination of the mechanisms of control and mediation of institutional action, of all checks and balances, in order to establish a structure of direct links between the ruled and the populist ruler, in most cases between citizens and a populist charismatic leadership.²⁸

Is the constitutional duty of constitutional courts in these systems to protect populist constitutionalism, similarly to all other institutions? I argue here that in spite of this central political aspiration articulated by the rules of the Fundamental Law, this is not necessarily the case. Constitutional theory on constitutional courts argues that a lot depends on the interpretation of the constitutional court of its legitimate constitutional role and competencies in individual cases. This room for constitutional interpretation can be clearly analysed by deploying the classic competence-related criteria of legitimate action in constitutional theory, such as judicial activism and deference.

Although the Hungarian constitution-making two-thirds majority started to build its own understanding of the Fundamental Law by defining obligatory methods of interpretation that apply not only to the Constitutional Court but also to the ordinary courts,²⁹ these institutions are legal-judicial in nature and separated by the Fundamental Law from the political institutions of the legislative power. Accordingly, legal rules produced by the latter are applied by interpretation when it comes to independent judicial decisions based on the law and the constitution.³⁰

If democracy changes, so does the function of the constitutional court.³¹ Democracy certainly has changed in Hungary, and so has the constitutional and legal environment of the Constitutional Court. According to conventionalist views, judicial control has played a major role in the development of modern democratic values, the rule of law, and the separation of powers, using very different methods of interpretation.³² According to Dworkin, the courts are the only institutions that are truly committed to the constitutional system of legal arguments and, at the same time, the only institutions that can move certain issues from the realm of political power to the level of legal principle.³³ There is room and responsibility, therefore, for interpretation in almost all circumstances and in almost all political environments, as this is an autonomous task of the court responsible for judicial review.³⁴

3.1 Judicial activism

One of the great questions of constitutional law that has been exposed in the Hungarian constitutional scholarship since 1990 is the extent to which the text of the Constitution can be divorced from its grammatical meaning. Judicial restraint and judicial minimalism³⁵ are the antithesis of judicial activism. Even before the term “judicial activism” was coined, judges were often criticised for asserting principles that they themselves considered had been demanded (even Judge John Marshall was criticised for this by Jefferson³⁶). There may be some talk of activism when a judge decides a case before them according to their own judgment.³⁷ The practice of the first years of the Hungarian Constitutional Court is also described as activism, which in the work of some authors is associated with a positive, and in others with a negative evaluation.³⁸ Whether in India, Israel or Hungary, activism means going beyond the text-positivist approach to judicial activity; deciding in a desirable or undesirable direction on issues that are not clearly settled by the constituent power in the text (when the principle or rule is vague or ambiguous).³⁹ In the context of activism, there is also the question of labelling the constitutional court a positive legislator⁴⁰ and opposing its description as a negative legislator, the former which suggests that its decisions not only annul unconstitutional norms but also supplement the constitutional system with instructions on constitutionality that can amount to positive legislation.⁴¹ The question of judicial activism brings us to the controversial issue of judicial supremacy in constitutional adjudication,⁴² which concerns examining the role of the judiciary or the constitutional court in liberal constitutional democracies through the power of constitutional review. Since parliamentary constitutional protection was paramount at the time of the constitution's inception, the role of the courts in the framing of fundamental constitutional questions has increased with the spread of judicial constitutional protection.⁴³ This phenomenon is present in theory and practice. It is called “new constitutionalism” and is contested by many in the literature.⁴⁴ In Hungary, too, there has been an intense debate about the role that the Constitutional Court has played in shaping the constitutional system since the 1990s, but activism was always ultimately accepted as a legitimate and lawful approach to the protection of constitutionalism in a transitory democracy.

3.2 Judicial Deference

Judicial deference⁴⁵ is also an evergreen dilemma for constitutional justice since the scope of constitutional adjudication is related to the principles that a court develops in interpreting its powers to clearly separate its competence from the legislative and executive branches.⁴⁶

The political question doctrine, a most extreme type of deference (for example, in American constitutional law), was created to determine what is not subject to constitutional review among the disputed constitutional questions that come before it. In establishing this doctrine, the US Supreme Court stated that there are legal and political questions, the latter are not for the court to decide, and they are not litigable. Constitutional jurisprudence operates at the intersection of law and politics, thus the need arises to decide on issues that are highly political in nature. However, in cases when the issue itself is not purely political—i.e., review is not precluded for lack of jurisdiction and is dealt with by the judiciary—the decision may be deferential concerning politically sensitive issues. This means that in a constitutional review, the court finds that the government or the legislature has a wide margin of discretion to decide on a particular issue.⁴⁷

These questions are, however, always within the competence of the court to decide according to the particular legal system, even in the most dubious cases. Since Coleman v. Miller,⁴⁸ the US Supreme Court, for example, has not been able to review the constitutionality of constitutional amendments because the court has classified them as "political questions".⁴⁹ On the other hand, the Czech Constitutional Court decided to review constitutional amendments, as did many other states.⁵⁰ As I briefly note later, the Hungarian Constitutional Court for a moment hesitated about this.

This short discussion on the concepts of judicial activism and judicial deference shows that there is room for manoeuvre for the constitutional courts, as already conceptualised by these famous descriptions of court behaviour that manifest constitutional interpretation in individual cases. We have also discussed how populism and populist constitutionalism are not systems whereby judicial dilemmas are eliminated by complete state capture and/or institutional terror. Therefore, these concepts serve as good assessment criteria for examining what happens in a populist state when such a question reaches the constitutional court and when there is room for activism or deference and the decision of the court has a significant political impact. In the next chapter, through case-law analysis, I test the utility of this assessment criteria and, finally, assess the judicial strategy of the Hungarian Constitutional Court to identify whether the latter is a populist constitutional court. To facilitate this testing, I have chosen two groups of cases where it is obvious that the government majority has a political take. One concerns Hungary and its particular illiberal/populist constitutionalism within the European Union⁵¹ and the other relates to emergency power.⁵²

4 Judicial Activism and Judicial Deference in the Post-2010 Hungarian Case Law of the Constitutional Court

4.1 Judicial Activism in Politically Sensitive Cases

Since 2010, there has been a general trend in Hungary to say that the Constitutional Court turned from activism to deference when it came to the choice of interpretation.⁵³ I argue, however, that some decisions of the court can still be qualified as activist in nature. This might not be obvious at first sight to the reader because this activism does not relate to the extended protection of fundamental rights, the separation of powers or other rule-of-law principles but rather to argumentation used to support such constitutional constructions that were aspired to and expressed by the governing political majority. This is the case with the judicial construction of constitutional identity in EU-related constitutional matters⁵⁴ and the reinterpretation of human dignity in EU and emergency-related matters.⁵⁵

The Hungarian Constitutional Court—like the constitutional courts of many other EU countries—in its Decision No. 22/2016 (XII. 5.) AB, on the basis of an abstract interpretation of Article E (2) of the Fundamental Law, on the motion of the Commissioner for Fundamental Rights, held that the joint exercise of powers through the institutions of the European Union cannot infringe the constitutional identity of the nation. Constitutional identity was defined by the Constitutional Court as meaning that no norm applicable to Hungary could infringe on human dignity, other fundamental rights or Hungary's sovereignty or identity based on its historical constitution. This means that at the end of 2016, albeit in a highly controversial way, the Constitutional Court took up the task of determining the limits to the delegation of the exercise of sovereignty by the state.

It is for the Constitutional Court to ensure that the joint exercise of powers under the Fundamental Law does not entail any infringement of human dignity or the essential content of other fundamental rights in Hungary.⁵⁶ The Fundamental Law at the time of the decision did not mention constitutional identity and did not establish a hierarchy between constitutional provisions. The Constitutional Court made this decision after an invalid referendum initiated by the government to protect constitutional identity against EU legislative initiatives that were refused by politicians.⁵⁷ In this case, therefore, the Constitutional Court was activist in creating national constitutional competence in EU relations by constructing the concept of identity, which at that time favoured the Government’s current political goals.⁵⁸ Later, the Constitutional Court, continuing this line of argumentation, reinterpreted the provision on human dignity in order to argue in support of official Hungarian migration policy in relation to the EU’s legislative efforts. Decision 32/2021 (XII. 20.) was initiated by the Government after the decision of the Court of Justice of the European Union (case C-808/18) concerning whether the CJEU decision violated the Hungarian Fundamental Law. It is interesting that the decision was born after the Polish decision that made reservations about the EU law when it violated the Polish 1997 Constitution—a remarkabledecision that made waves in scholarship and politics.⁵⁹ It was, therefore, a fear that the Hungarian Constitutional Court might be similarly harsh in its decision-making reservations on the basis of state sovereignty, refusing compliance with EU law. The Hungarian decision, however, did not decide about the non-respect of the CJEU decision. It claimed its unconstitutionality but stopped at declaring general terms or reservations, stating that if the joint competencies with the EU are not exercised according to the Hungarian Fundamental Law, Hungary can substitute the legislation associated with the joint competencies by constitutionally conforming rules. In its effect, the decision was not activist (or not as much as the decision of the Polish Constitutional Tribunal), but on the other hand, it was very activist in the reinterpretation of human dignity and national identity for the sake of argument. Notably, even in the ruling part of the decision, the Constitutional Court claimed that it is part of the individual right to self-determination as part of human dignity that the population of the living environment should not change (due to illegal migration), and it is part of national self-determination and reserved sovereignty that the state population should not be influenced and changed by EU legislative measures.⁶⁰ As Zoltán Szente points out, the main achievement of the decision is that individual identity as part of human dignity cannot be separated from national identity.⁶¹ According to this collectivist approach, “the traditional social environment, which the individual occupies at birth and is independent of him, shapes his self-definition”. This qualifies as the type of activist approach in interpretation that is not rooted in former case law but is rather contradictory to that and the general constitutional framework, wherein human dignity has been regarded as an individual right.⁶²

As for activism in interpretation that supports the Government’s policy measures in times of crisis, the best example may be related to the Global Financial Crisis (GFC). The majority of other emergency-related case laws are categorised as deference with regard to the chosen activity in interpretation.

After the 2008 financial crises, the first decision of the Hungarian Constitutional Court concerning the unilateral right to modify contracts in the consumer loan agreements of financial institutions, in applying a new and different interpretation of the Fundamental Law, set new constitutional standards in the context of constitutional consumer protection in the broad sense, primarily with regard to the concepts of the rule of law and legal certainty, the right to a fair trial, its partial prerogatives and the prohibition of retroactive legislation. All these inventions display an activist interpretation that supported government policies with new arguments. On several points, the new standards ran counter to the theoretical and doctrinal foundations of Hungarian constitutional law and to the previously established practice in this area.⁶³

The Constitutional Court also used an activist interpretation of the rule on human dignity, declaring that if a person gets into a financially desperate situation as a consequence of an exceptionally and unexpectedly bad contractual relationship, the state can change the contractual relations to protect their human dignity.⁶⁴

In sum, I first claim here that although the Hungarian Constitutional Court is said to be rather deferent towards the Government majority, it makes activist decisions as well, and in politically exposed areas such as EU-related constitutional matters or emergency matters, the Court forms such judicial constructions which are helpful in constructing constitutionalist particularities. The constitutional identity and the new conceptualisation of human dignity are good examples of this. I argue that there is room for manoeuvre in interpretation not only in these decisions but in others having political relevance and that the Constitutional Court may use activism to argue cases against the populist constitutional construction.

The counterexamples are the following: In Decision 37/2011 (V.10.) of the Constitutional Court needed to decide on the case of the 98 percent taxation that was retroactively applied to the severance pay of high officials who had been dismissed ater the change of Government. According to Article 37(4) of the Fundamental Law, legislation related to the central state budget is excluded from constitutional review. The Constitutional Court, in this case, would have simply declared the lack of competence, but on the contrary, it interpreted the exceptional rules in respect of Article 37 (4) of the Fundamental Law, which vaguely allows exceptions in the case of the violation of human dignity. The court declared that this retroactive taxation was against the human dignity of the high state officials who were dismissed from office. Thus, the law was within the review competence of the court and could be examined on the merits. After relying on this activist interpretation of the rule of exception, the Constitutional Court annulled the provision. In this case, an activist judicial construction was applied to counteract populist constitutionalism by narrowly interpreting the restrictions defined in Article 37 (4) of the Fundamental Law and interpreting the rule on human dignity vaguely to establish the competence for review.⁶⁵

Another early example is Decision 45/2012 (XII. 29.) CC⁶⁶ on the Transitory Provisions to the Fundamental Law. The constitution-making majority in Parliament after the adoption of the Fundamental Law identified some complementary issues to regulate on a constitutional level and created a separate document called the Transitory Provisions to the Fundamental Law, which contained not only transitory provisions but also simple new constitutional rules, complementary to the original text. Although the amendments to the constitution were never reviewed by the Constitutional Court after 1990, and this is even more true of the text of the constitution itself, the Constitutional Court interpreted its rules on its own competence quite actively and declared the possibility of reviewing these Transitory provisions to the Fundamental Law, regarding the latter as a normal statutory act and furthermore—although this was also not written in the Fundamental Law—declared that the text of the Fundamental Law must be one and unique and that it was not possible to adopt complementary documents. The text of the constitution could only be amended by constitutional amendment to the one and unique text.

The next but probably the last example in this area was a case from 12/2013 (v. 24.) on the fourth amendment to the Fundamental Law, when the Constitutional Court not only reviewed the content of a constitutional amendment and signalled some substantive problems in the text, but also raised the question obiter dictum upon the proposal of the ombudsman that it could be possible in certain circumstances for the court to review constitutional amendments. This activist interpretation was answered by the two-thirds constitution-making majority with a constitutional amendment that made it clear that the Constitutional Court cannot review constitutional amendments only on the grounds of a petition about a fundamental procedural failure. This story is very similar to the very last one, when the Constitutional Court counteracted the constitution making majority in the case when it declared through the Fourth Amendment to the Fundamental Law that the former case law of the Constitutional Court was invalid.⁶⁷ Finally, the Constitutional Court, in its decision 13/2013 (VI. 17.), declared that it would still refer to the former case law of before 2012 in the case when the text of the Fundamental Law was the same as in the former Constitution.

These examples, however, were not repeated after 2014, when the second term of the Orbán Government started, and the Constitutional court was fully packed by the two-thirds majority in Parliament.⁶⁸

4.2 Judicial Deference

The scholarship points out clearly that, in many cases, the Constitutional Court is biased or subservient to the political agenda.⁶⁹ I concentrate on cases here when this deference is a result of innovative constitutional interpretation, and it is not primarily the constitutional rule or the legal environment which determines the decision, but when it is rather a result of the interpretation of the Constitutional Court in its room of manoeuvre described as deference. While in certain constitutional systems, it might be desirable that the constitutional court be deferential regarding certain questions, partly oppressive political systems call for better and more effective constitutional control, which can be achieved by constitutional adjudication checking and balancing public power.⁷⁰ As I have explained above, when the Constitutional Court plays an activist role in Hungary, it ends up supporting the political majority in rule-of-law deconstruction, but I further claim that the result is the same if the court is deferential.

As for EU-related constitutional matters, as we have explained in the 2018 ICON Report,⁷¹ the 3199/2018 (VI. 21.) CC order and the 3200/2018 (VI. 21.) CC order that postponed the decision-making on lex CEU (intended to make the operation of the originally Soros-funded Central European University impossible in Hungary by imposing administrative measures) represented a clear departure from previous jurisprudence in order to avoid deciding on this politically very sensitive question. The surprisingly innovative interpretation was related here to the competence rules.

The amendment of the National Tertiary Education Act, adopted within 1 week, introduced new conditions for the operation of universities accredited outside the EEA in Hungary. It was also applicable to pre-existing higher education institutions, including Central European University. It led to much criticism, both domestically and internationally, including from the Council of Europe Parliamentary Assembly and the Venice Commission. The constitutional complaint of the CEU and the ex-post review initiated by one-quarter of MPs had been before the Court for months, and the Court applied (otherwise very rare) procedural tools to postpone the decision, suspending the case prior to the decision of the Court of Justice of the EU in the matter under EU law (although, as Judge Stumpf, in his concurring opinion, stated, the requirement of the suspension was not fulfilled, as the case under the Hungarian Fundamental Law did not depend on the decision of the CJEU). As there was no reason and no precedent for suspending a case in a matter lacking a primarily European nature, it was clear that the Constitutional Court did not want to decide on this politically sensitive question. This decision clearly supported the Government’s objectives at that time.⁷² Finally, the CJEU produced its decision⁷³ and the Constitutional Court was able to close the case without deciding on the merits.⁷⁴

Later, the case law associated with the COVID-19 pandemic became good reference for the issues of room of manoeuvre in emergency-related cases and how the Constitutional Court used it. The Fundamental Law states in Art. 54 that the Constitutional Court shall operate during a state of danger, but the constitutionality of rights restrictions may be measured differently than in normal times; the Constitutional Court can deviate from using the necessity-proportionality test stated in Art. I (3) of the Fundamental Law when measuring the constitutionality of almost all human rights violations. The Constitutional Court was, therefore, quite free to develop the doctrine of rights protection in times of emergency with reference to the vague constitutional rule.

There is again no room here to discuss all the relevant cases,⁷⁵ but examples of deference by interpretive judicial constructions will be demonstrated. Ultimately, the Constitutional Court did not annul such norms, which were held to be constitutionally controversial, but ended up declaring only a so-called constitutional requirement addressed either to the legislator or to the courts.⁷⁶

In one of the first cases, the Constitutional Court interpreted the above-described, certainly vague constitutional rules by declaring that its jurisdiction was limited to examining whether the Government had the competence to create the contested provision. The examination of whether it was appropriate to create a new rule different from the previous one and whether this was in relation to the aim pursued was no longer within the competence of the Constitutional Court.⁷⁷ This deferential approach had been the subject of parallel and dissenting opinions within the Constitutional Court.⁷⁸

It is reasonable to assume that the exceptional powers granted to the Government in an emergency require particularly close scrutiny, but this close scrutiny did not occur during the emergency triggered by the coronavirus epidemic. Even if some cases did come before the Constitutional Court in the course of which the Court's discretion was exercised, no decisions were made, which had a significantly restrictive effect on the government's action. Although in some cases the Constitutional Court found that measures introduced by the Government did indeed unnecessarily or disproportionately restrict certain fundamental rights (such as access to information of public interest data)⁷⁹ or violate certain constitutional principles (for example, by regulating local government⁸⁰), the Court did not find these to be in breach of the Fundamental Law. Instead, the Constitutional Court continued its previous practice of formulating constitutional requirements⁸¹ instead of annulling the challenged rule in most significant cases by interpreting the text of the Fundamental Law so as to avoid limiting Government competencies.

The best example to illustrate my argument may be Decision 23/2021. (VII. 13.) AB concerning the general ban on demonstrations. The petitioners were participants or organisers of a pre-announced motoring protest in April and May 2020 during the general ban on gatherings due to the state of danger; they also raised awareness of this protest on social media. Participants stayed in their cars and used banners to express their demands. They drove around a roundabout where the rally was to take place, in accordance with the epidemiological regulations, while honking their horns in protest at the crisis-management measures. The participants were taken into custody by the police, and the petitioners were fined. The constitutional complaint procedures were based on the decisions of the Pest Central District Court in these cases.

In this contested decision, the ordinary court partially reversed the authorities’ decisions and reduced the fine. The Constitutional Court explained that the district court had taken into account the fact that the petitioner had announced the event was public for the purpose of expressing opinions on public matters. This amounted, however, to non-lawful assembly under the general assembly ban. Therefore, honking horns and other violations of traffic rules counted as actions outside the scope of the protection of fundamental rights. The Constitutional Court majority opinion emphasised that in a state of danger, it was not in a position to evaluate if such a general ban on assemblies was necessary to hinder the spread of the virus. The CC, therefore, dismissed the constitutional complaints against the ordinary court's decision. This deferential approach in the interpretation of the review tests, giving a doctrinally suprprising and extreme narrative to it, was debated in parallel and separate opinions within the court. Even when the Court used stricter tests, the Government decrees and other pandemic-related legislation were found equally constitutional,⁸² but in the cases mentioned, this deference grounded in a new interpretative approach.

5 Conclusion: Judicial Activism and Judicial Deference: Two Assessment Criteria for Distinguishing a Populist Constitutional Court

In the transition from liberal to populist constitutionalism, judicial constitutional interpretation of the constitution may be of particular importance. It is a crucial issue how a constitutional court interprets new constitutional aspirations embedded in the words of the constitution and whether there is legitimate room for manoeuvre in the interpretation of constitutional provisions, especially in understanding the competence of the court in forming a new constitutional order.

I have explained here what constrains the political constitution-making majority that stacked the Hungarian Constitutional Court after 2010. However, I have also argued that the Constitutional Court is an autonomous player in the populist regime when it comes to constitutional interpretation, able to counteract the political majority’s aspirations within the limited scope of legality.

I have argued that the classic competence dilemmas first help explain this room of manoeuvre and further help us assess the case law of constitutional courts in such situations. If the court uses this room of manoeuvre to contribute actively by referring to the populist constitutional construction, then the court itself is a populist player.

I have suggested that this situation be examined using politically sensitive issues, namely EU-related and emergency-related cases.

My examples showed that the proposed assessment criteria had an additional value to the analysis and therefore the paper could conclude that the Hungarian CC's balancing function has diminished; the Court, due to its interpretative competence, helped the Government majority achieve its constitutional goals rather than counterbalance populist constitutional aspirations. Therefore, following these assessment creria, the Hungarian Constitutional Court is a populist constitutional court per se and not only by the capture of political and constitutional circumstances.