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The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism

Published online by Cambridge University Press:  23 October 2019

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Separation of institutions, functions and personnel – Checks and balances – Hungary, Poland, Czechia, Slovakia – Short tradition of separation of powers in Central Europe – Fragile interwar systems of separation of powers – Communist principle of centralisation of power – Technocratic challenge to separation of powers during the EU accession – One-sided checks on the elected branches and empowering technocratic elitist institutions – Populist challenge to separation of powers in the 2010s – Re-politicising of the public sphere, removing most checks on the elected branches, and curtailing and packing the unelected institutions – Technocratic and populist challenges to separation of powers interrelated more than we thought

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© The Author(s), 2019. Published by Cambridge University Press on behalf of European Constitutional Law Review

Until the 2010s, Central Europe was routinely depicted as an unequivocal success story of the post-communist transition to constitutional democracy.Footnote 1 It seemed that the peoples of Central Europe would live happily ever after. Given this optimistic outlook, recent developments in Central Europe must have come as a surprise to many. Hungary started drifting toward ‘illiberal democracy’Footnote 2 in the early 2010s,Footnote 3 Poland has witnessed the same turn since 2015,Footnote 4 and Czechia may follow suit as a consequence of the 2017 parliamentary elections and the 2018 presidential elections.Footnote 5 Slovakia, a political laggard in the 1990sFootnote 6 and the least ‘democratically experienced’ state in the region, all of a sudden became the only country in the region that is not, for now, on the clear ‘reverse transition’ track.Footnote 7 As Hanley and Vachudová put it, ‘the narrative of progress in the region is dead, replaced by democratic backsliding – and even sliding into authoritarianism’.Footnote 8

The majority of scholarly reflections on recent Central European developments have been framed as the deterioration of the rule of law or as an attack on liberal democracy and constitutionalism.Footnote 9 We find these works illuminating. However, we argue that the separation of powers sheds further light on both the sources and the layers of the difficulties contemporary Central European democracies are facing. First, the concept of separation of powers provides a more concrete and fine-grained analytical tool to assess current developments in Central Europe than all-encompassing and abstract notions such as democracy, constitutionalism, and the rule of law.Footnote 10 Second, our disaggregation of the separation of powers into clearly defined components allows us to identify different sources of erosion of the separation of powers throughout the entire modern history of Central Europe, which components were attacked and in what sequence.Footnote 11 Third, in comparison to the abovementioned abstract notions, understanding the recent developments in Central Europe in terms of separation of powers is much closer to the thinking of ordinary people and their everyday political experience. Quite simply, Central European citizens are more familiar with the language of separation of powersFootnote 12 than with rather technical concepts such as rule of law, or constitutionalism, which are embedded in the specialised jargon of lawyers, often incomprehensible to ordinary people, and too remote from the people’s everyday exposure to politics. Finally, many scholars engaging with populism touch upon separation of powers,Footnote 13 but even the most recent contributionsFootnote 14 to this debate do not treat separation of powers as the central focus of their analysis.

In this regard, Central Europe serves as a sort of magnifying glass for the challenges to the separation of powers that take place in other parts of the world as well. More specifically, given the recent assaults on the separation of powers in the region, we have at our disposal a wealth of examples for theorising about the goals and strategies of populist leaders with respect to the constitutional democratic framework. Be it Viktor Orbán’s ‘constitutional Blitzkrieg’ against the judiciary and other independent agencies, Jarosław Kaczyński’s packing of the Polish Constitutional Tribunal and purging of the Supreme Court, or similar tendencies on the part of Róbert Fico in Slovakia and Andrej Babiš in Czechia,Footnote 15 we have on our hands a real-world laboratory of the limits and cracks of separation of powers.

We show that all of these charismatic leaders, to varying degrees, perceive a functioning separation of powers as a major obstacle which prevents them from centralising power and running their countries smoothly. They share the same playbook, even though Orbán and Kaczyński went further than their Czech and Slovak counterparts and actually managed to dismantle virtually all (Orbán) or many (Kaczyński) institutional barriers to pursuing their will.

At first sight, it might seem puzzling that these political leaders faced so little resistance from the relevant institutions and managed to push through their centralisation agenda without much public disapproval. In fact, the majority of the people seem to be at best indifferent to, if not supportive of, their actions.

However, on closer inspection, these developments are not that surprising. We show that the separation of powers is at best a flimsy and certainly not a particularly longstanding tradition in Central Europe and that this path-dependence has substantial ramifications for present-day political developments. Contrary to many contributors to the ongoing debate on the state of the rule of law in Central Europe, we thus emphasise the embeddedness of the current problems in the history and legal cultures of the region. In other words, the history of the separation of powers and the abuse thereof plays a significant role in understanding the current predicament of Central European countries.

Our argument is threefold. First, we argue that the fragile interwar systems of separation of powers in Central Europe were further disfigured during communist rule, and subsequently by the EU’s technocratic ‘let the experts rule’ approach to the separation of powers. This made it easier for populists to attack the separation of powers and in particular its checks and balances component. Second, with an overview of the Central European trajectory in this area, we argue that the two major recent challenges to the separation of powers in the region – the rise of the unelected and the wave of populism – are more interrelated than usually thought and that the former has greatly contributed to the latter. In fact, it can be understood as a direct precursor to, and an important part of the triggering mechanism of, recent populist expansion. We construe this series of developments and the related phenomena as an ‘overreaction’ to an ‘overreaction’. The accession period overreacted to the communist past by extreme depoliticisation of the public sphere, installing one-sided checks on the elected branches and empowering technocratic elitist institutions (especially the judiciary). This, in turn, led to populist overreaction, which swung the pendulum back to the other extreme by the re-politicising of the public sphere, removing most checks on the elected branches, and curtailing and packing the unelected institutions (in particular the judiciary). Third, we show that each Central European regime attacked some components of separation of powers more aggressively than others.

The article proceeds as follows. In the next section, we briefly explicate the internal logic of the separation of powers and unpack it into four key components: separation of institutions, separation of functions; separation of personnel; and checks and balances. Subsequently, we explain the peculiar Central European understanding of separation of powers in the pre-WWII era as well as the communist principle of ‘democratic centralisation’ of power. We thus set the stage for a discussion of the two current major challenges to the separation of powers in Central Europe – technocratic governance and populism. Finally, we argue that the problems of the separation of powers in Central Europe are greater than any quick institutional fix could remedy.

The separation of powers: why it matters and what it stands for

The concept of separation of powers is notoriously vague and controversial.Footnote 16 Moreover, we usually only realise what separation of powers is, and what value it is to us, once we have lost it. Therefore, in order to understand the extent to which actions by populist leaders in Central Europe have impacted upon the separation of powers, we need to conceptualise this principle carefully. In order to do so, we will unpack it into four constitutive components.

For the purposes of this article, we construe the separation of powers so as to include both the three core components of the principle of ‘separation’ (separation of institutions, functions and personnel) as well as the principle of checks and balances.Footnote 17 In other words, we combine the ‘pure’ doctrine of separation of powers (which consists of the first three components)Footnote 18 with the older doctrine of ‘mixed constitutions’ which ultimately transformed into the modern principle of checks and balances.Footnote 19 While the coexistence of the separationist and balancing components has turned out to be rather uneasy in practice,Footnote 20 as their underlying logics pull in opposite directions,Footnote 21 we believe that these four components capture the core of the principle of separation of powersFootnote 22 on the domestic level.Footnote 23

As regards the three key ‘separationist’ components, the separation of institutions ‘counsels against the concentration of too much political power in the hands of any one person, group, or agency’.Footnote 24 Among institutional expressions, we find imperatives such as no overlap with and no accountability to other branches, or the formal separation of government and Parliament. Because powers in a constitutional state are not ‘allocated to different branches on a random basis’,Footnote 25 separation of institutions must be linked to the prior idea of specific functions. The separation of functions stems from the idea that all government acts ‘can be classified as an exercise of the legislative, executive, or judicial function’,Footnote 26 which should be entrusted solely to the corresponding branch of the government (‘institution’). Even though in practice these functions do not always fully overlap with institutions (branches),Footnote 27 there is nevertheless something intuitively plausible about wanting the legislature to create laws, the executive to carry them out, and courts to adjudicate on them, each avoiding excessive ‘contamination’ by practices alien to the respective functions.Footnote 28 Finally, the third separationist component, the separation of personnel (or personal incompatibility) then stands for the idea that one person should not sit in more than one branch of government. Again, the pure imperative of strict separation of personnel turned out to be too demanding. Especially in parliamentary systems, being simultaneously an MP and a minister is considered appropriate, and many believe that the independence of courts is not necessarily undermined even if judges become members of the upper chamber of the legislature.Footnote 29 This component thus has been understood as mostly a general recommendation. One exception is the adjudication of cases where interests of other branches of government are at stake; in such cases, strict independence of the courts is required.Footnote 30

The fourth component of separation of powers, checks and balances, deserves more attention, as it renders the pure doctrine of separation of powers significantly more complex and, as we will show below, its understanding has been the main battleground in Central European democracies. Checks and balances are usually taken as a typical expression of the modern idea of constitutionalism,Footnote 31 and not seldom synonymised with the separation of powers as such. However, that would be a mistake, because in order to even entertain the idea of mutual control and purposeful mingling of certain functions of the respective branches there has to be an institutional or functional separation in the first place, logically speaking.Footnote 32 At any rate, in order to curb the looming arbitrariness and abuse of power, separation needs to be combined with supervision.Footnote 33 This is why each branch is granted the power to exercise some of the functions of other branches as well as a certain degree of control over them.

The checks and balances component is an internally complex one and, unlike the three separations, it is difficult to state with much precision which instruments and mechanisms fall under this component of separation of powers.Footnote 34 In fact, the existing literature remains mostly silent or ambiguous in this regard. That said, we think that Nicholas Barber’s distinction between swords and shields Footnote 35 is of considerable help here. Both are instruments wielded by the respective branches that allow them to ‘keep each other in their proper place’.Footnote 36 Swords are sanctions or threats that one institution can actively use against another in order to induce it to act (or not act) in a certain way.Footnote 37 For instance, an executive faced with a legislature that consistently refuses to support its policies may be able to dissolve the parliament and call fresh elections. Vice versa, a legislature that believes that its executive has diverged too far from its mandate may be able to cut the executive’s funds or initiate a vote of no confidence. Swords also include instruments such as veto power, the impeachment of judges or members of the executive by the legislature, judicial review of legislation over the acts of the legislature, and packing the courts by the executive with new judges (sometimes with the agreement of the legislature).Footnote 38 Within the present framework, we suggest construing swords as instances of checks, for they allow intervention in the affairs of other branches.

In contrast, shields protect one body from another. According to Barber, shields are ‘immunities that serve to protect institutions, or officials within those institutions, from the unwarranted attentions of other bodies’.Footnote 39 They may include immunity of heads of state from prosecution, insulation of parliamentary debate from certain parts of civil and criminal law, the royal prerogative, immunity of MPs, the protection of judicial salaries from the parsimony of other branches, the exemption of certain administrative acts (such as the award of citizenship) from judicial review, or judicial self-governance that gives judges a significant say in the appointment and promotion of their peers.Footnote 40 With respect to the standard model, we interpret shields as tools of balancing.

It might be objected that shields follow the logic of separation and should be therefore linked to the three modes of power separation. Nevertheless, even if we grant the separationist logic of shields, it makes sense to categorise them separately. First, both shields and swords fall ‘outside of the normal requirements of the separation of powers’.Footnote 41 Second, we suggest construing shields as a kind of second-level remedy: logically speaking, they are preceded not only by the three separations but also by the subsequent (possibility of) encroachment of the respective branches of government upon the others’ exclusive competences. The purpose of shields is then to rebalance these encroachments, which is why we subsume them under the fourth component of the principle of the separation of powers.

One may further object that the checks and balances also include the free media, the pluralistic civil society and regulatory agencies,Footnote 42 which might be just as important as more formal swords and shields in guarding against the abuse of public power.Footnote 43 We agree that the impact of these actors on the functioning of the separation of powers might be significant. However, we consider these factors merely as contingent circumstances or additional requirementsFootnote 44 that might influence whether a given system of checks and balances between the three branches will be observed and will bring about the desired set of results, rather than essential components of the principle of checks and balances itself.Footnote 45 Therefore, we will focus primarily on the interaction between the three traditional branches of powerFootnote 46 and refer to the abovementioned additional requirements only if it is necessary for understanding developments in Central Europe.Footnote 47

In what follows we show how different regime types in Central European history have treated our four components of the separation of powers. We will first analyse the pre-communist era and then the impact of the 40-year-long rule of the communist regimes. Subsequently, we zero in on the post-Cold War era and the key challenges to the separation of powers in the late 1990s, 2000s and 2010s.

Historical legacies of central europe and their ramifications for separation of powers

It is often claimed that once upon a time there was a Golden Age of classical separated powers, in particular within constitutional nation-states of Europe and that today this classical system has been eroded. We agree with CarolanFootnote 48 and MöllersFootnote 49 that this is a myth. The situation on the ground has always been messier than the often rosy historical accounts, and the political exigencies never held fully to the prescriptions of the tripartite model of separation of powers. Therefore, virtually all states, to a lesser or greater extent, departed from the tripartite model in their daily functioning. However, we will show that Central European countries went particularly far, especially but not only in the communist era.

Pre-communist era

While mostFootnote 50 Central European countries witnessed glorious eras of self-governance,Footnote 51 none of them enjoyed democratic self-rule between the Enlightenment era and WWI.Footnote 52 Moreover, with the exception of Hungary, Central European countries had little experience even of genuinely independent statehood in this period. Czech lands were under the control of the Habsburg Empire for almost three centuries after the Thirty Years War (1618–1648). Poland faced a similar fate a century later. The Polish-Lithuanian Commonwealth started to decline in the mid-17th century and the three regional powers – the Russian Empire, the Kingdom of Prussia and the Austrian Habsburg Monarchy – eventually partitioned the Polish territory in 1795. As a result, no truly independent Polish State emerged until 1918. Slovaks were the worst off, as they never ran their state prior to 1918 and the Hungarian rule suppressed any signs of the Slovak culture rather harshly. Hungary is thus the only outlier, as Hungarians enjoyed significant autonomy after they had forced the Habsburgs to create the dual monarchy of Austria-Hungary in 1867.

However, Hungary had a different vision of monarchy to its Austrian counterpart. While the Austrian part of the Empire as well as Bismarck’s Germany in the late 19th century developed into constitutional monarchies that created a certain room for the separation of powersFootnote 53 and the Rechtsstaat principleFootnote 54 the legacy of which ultimately proved critical for the post-WWI and post-WWII development in Austria and Germany,Footnote 55 Hungarians ran their own version of monarchy in which absolutist elements prevailed.Footnote 56 To be sure, Hungarians, as well as Czechs, Slovaks and Poles, were exposed to the Austrian and German constitutional regimes, but these monarchies were under the control of Germans and Austrians and their solutions found limited traction among the Hungarian, Czech, Slovak and Polish elites.Footnote 57

The interwar period does not paint a rosy picture either. While the Hungarian Democratic Republic and then the Hungarian Soviet Republic were briefly proclaimed in 1918 and 1919 respectively, Hungary soon returned to a monarchical regime – the so-called ‘Regency’ of 1920–1944, in which the Regent Miklós Horthy de facto ruled as a dictator instead of the formal head of state, King Charles IV.Footnote 58

Poland and Czechoslovakia did slightly better after WWI. They abandoned the monarchy and, guided by the principle of separation of powers, adopted constitutions that guaranteed judicial independence and entrenched a solid system of checks and balances.Footnote 59 However, the reality ‘on the ground’ was far from the paper ideal.

Poland enjoyed democratic politics for only seven years (1919–1926). In May 1926, Field Marshall Józef Piłsudski staged a military coup d’état and ruled Poland until his death in 1935. His ‘Sanation regime’, which lasted until Hitler’s invasion of Poland in 1939, openly employed authoritarian techniques. Piłsudski circumscribed the powers of the Polish Parliament (Sejm), ruthlessly prosecuted opposition, and fostered a cult of personality.Footnote 60

Finally, although the 1920 Czechoslovak Constitution contained a nuanced system of separation of powers,Footnote 61 this principle was sidelined in national political life. Most importantly, the first president of the country and a towering figure during the entire interwar period, Tomáš Garrigue Masaryk, was deeply distrustful of political parties, parliamentary leaders and the Parliament itself. He created an informal political organisation known as Hrad (‘The Castle’), a powerful coalition of intellectuals, journalists, businessmen, religious leaders and WWI veterans.Footnote 62 Due to his charisma, the fractured political scene and support of the ‘Castle’, Masaryk de facto set the country’s political agenda until his death in 1937. He also built a cult of personality around himself,Footnote 63 albeit of a different sort from Horthy’s and Piłsudski’s. As a counterweight to Masaryk’s ‘Castle’, the leaders of key political parties created their own informal group, the so-called Pětka (‘The Five’), which made important decisions outside the parliament and further weakened the legislature as well as the overall system of separation of powers.

Both Masaryk and the Pětka thus prioritised informal institutions and craved for an accumulation of power in their own hands. Some politicians even meddled with judicial independence. It is telling that Czechoslovak interwar judges complained of interferences unheard of in the Austrian era.Footnote 64 Other important safeguards of the separation of powers envisaged by the 1920 Constitution, such as the Czechoslovak Constitutional Court, were dysfunctional.Footnote 65 In sum, while Czechoslovakia did maintain a basic system of separation of powers until WWII,Footnote 66 it was far removed from the ideal of the lone democratic outpost in the East,Footnote 67 which was guided by the principle of separation of powers.Footnote 68

After the interwar intermezzo (1918–1938), which was not all that conducive to the idea of separation of powers anyway, WWII brought an abrupt end to any prospect of democratic development. The Czech lands and Poland were annexed by the German Third Reich, while Hungary and Slovakia launched clero-fascist regimes under Hitler’s tutelage. The post-WWII democratic period in Central Europe was too short and too preoccupied with retributionFootnote 69 and state rebuildingFootnote 70 to reinstall and cultivate a functioning system of separation of powers. As if that was not enough, the communist coups d’état in the late 1940s put another nail in the coffin.

In sum, the pre-communist period was characterised by constant assault on the separation of powers, particularly on its crucial separation of institutions component. This is typical of non-democratic political regimes in general, which actively suppress diffusion of political authority among several centres of decision-making. As we have seen, even in the (for many people paradigmatic) First Czechoslovak Republic, there was a strong tendency towards centralisation of power, which eroded the formal architecture of separation. Nevertheless, a much deeper imprint on understanding the separation of powers in Central Europe was left by the communist rule, and it is to this period that we now turn.

Separation of powers dismantled: the communist way of concentrating power

The central feature of communist regimes was centralisation of power based on the Marxist socialist concept of the ‘unity of power in the assembly’,Footnote 71 coupled with socialist economic planning and thorough regulation. Lenin’s principle of ‘democratic centralisation’ meant that discussion within the Party about the policies of the state was permitted, but once the discussion was concluded, state and Party institutions had to adhere rigidly to these decisions.Footnote 72 As a result, all three branches, including the judiciary, were under the tight control of the Communist Party, which uniquely represented ‘the people’ in its ideal form.Footnote 73

While communists soon realised that they needed all three branches,Footnote 74 separation of institutions, even if formally anchored in constitutional texts, was an illusion. Pretty much all institutions were connected with and subordinate to the Communist Party leadership. Communist regimes in Central Europe also quickly got rid of any remnants of a system of checks and balances. Most importantly, they abolished constitutional and administrative courts, stripped courts of jurisdiction in commercial affairs and vested it in the state arbitrage courts, packed the judiciary with lay judges, installed trusted comrades in the Supreme Court and as presidents of ordinary courts, and subordinated courts to the General Prosecutor.Footnote 75

Given their control over all state institutions, communists did not need to tinker with separation of functions and personnel that much. Nevertheless, they still breached them. The General Prosecutor, the guardian of the socialist legality, embodied the merger of legislative, executive and judicial functions. He exercised all three of them, as he was heavily involved in the legislative process (legislative function), represented public prosecution in criminal trials and took various administrative decisions (executive function), attended the deliberations of judges, reviewed judicial decisions and could challenge any decision he deemed inappropriate through extraordinary appeal (judicial function).Footnote 76 Apex courts in communist regimes not only decided ‘cases and controversies’, but also issued ‘interpretative guidelines’ with no relation to any real-life pending case. While the official purpose of these guidelines was to unify the divergent case law of the lower courts,Footnote 77 their real aim was to prevent deviations from the Party line. The communist regimes also stripped ordinary courts of jurisdiction over commercial law cases and created a specialised system of state arbitrage courts, which exercised policy, planning and adjudicatory functions at the same time.Footnote 78

Ruling communist parties also soon realised that the original Marxist prophecy of the state and law ‘withering away’ was not about to materialise soon. On the contrary, law became critical in preserving communist power.Footnote 79 This instrumental view of law, which pushed communist societies away from the ideal of the rule of law towards ‘rule by law’ or ‘rule through law’,Footnote 80 has remained deeply embedded in the minds of Central European political leaders.Footnote 81 Four decades of communist indoctrination led in turn to a certain mental path-dependence in thinking about the separation of powers among Central European judges and politicians.Footnote 82 First, there was no growing ground for a robust civic political and legal culture. Second, while the most visible communist institutions, such as the leading Communist Party, the omnipotent prokuratura, or the state security services, were dismantled or reformed after 1989, the communist legacy and subservient mindset have not gone away.Footnote 83

The twin challenges to separation of powers after 1989

The Central European communist regimes started to fall apart in the 1980s and eventually collapsed in 1989. This sparked Central European peoples’ interest in public affairs and resulted in unprecedented civic engagement. This was an era, however short, of genuine debate on restructuring the state and its functioning.Footnote 84 To be sure, the pace, as well as the particular shape of democratic transitions, varied widely. As Václav Havel put it in November of 1989, just a week after the Velvet Revolution, ‘[i]n Poland [the revolution] took ten years, in Hungary ten months, in East Germany ten weeks: perhaps in Czechoslovakia it will take ten days!’.Footnote 85 The mode of transition differed as well. Poland and Hungary witnessed smooth transitions of power orchestrated at roundtable talks that led to many compromises, while the Czechoslovak communist regime, the harshest one in Central Europe, had to yield to pressure from the streets, without significant concessions to the communist leadership.Footnote 86

Nevertheless, all four Central European states shared an essentially similarFootnote 87 post-communist trajectory in the 1990s. They strove for democratisation, adopted wholesale constitutional reforms, built new institutions, and abandoned their state-planned economies in favour of free markets. Amid heated debates they chose their frameworks of government, often returning to the interwar arrangements, and entrenched their own conceptualisation of the separation of powers. When amending or adopting new constitutions, the obvious main goal of the separation of powers was to prevent the restoration of the now-defeated communist regimes by means of blocking the natural tendency of concentration of power and corruption. The deeply-rooted desire that power should be exercised in a different way from in the past reflected ‘the fears originating in, and related to, the previous political regime’,Footnote 88 in which power was monopolised by communists. Moreover, all four Central European states also yearned to join the European Union. In their desire to become EU members, they happily embraced the 1993 Copenhagen CriteriaFootnote 89 and initiated the cumbersome accession process.Footnote 90 As we show below, the accession process contributedFootnote 91 to the first and often overlooked technocratic challenge to the separation of powers in Central Europe, one that served as a prequel to the current populist attacks. In this sense, it was the first overreaction that prepared the ground for the next.

Separation of powers distorted: the rise of the unelected during the EU accession process (technocratic challenge)

While the EU accession process in the late 1990s and early 2000s arguably brought about many positive effects,Footnote 92 it had long-lasting distorting effects on separation of powers in Central Europe. As mentioned above, Poland, Czechia, Slovakia and Hungary were able to choose their preferred model of separation of powers – one that reflected their historical, political and social legacies as well as the new challenges – immediately after the collapse of communist rule. However, their room for manoeuvre was greatly diminished in the accession period as any constitutional reform was constrained, and sometimes even driven, by the so-called ‘EU conditionalities’.Footnote 93

During the accession process, the EU, often relying on Council of Europe standards,Footnote 94 pushed for the same template in all four Central European countries,Footnote 95 one that aimed at depoliticising the process of governance and vesting various powers with experts and other non-elected agents.Footnote 96 This template included, among other things, strong constitutional courts,Footnote 97 autonomous judicial self-governance via judicial councils,Footnote 98 as well as numerous other autonomous public bodiesFootnote 99 that were empowered at the expense of political institutions. Central European countries, desperate to ‘return to Europe’, adopted virtually all requirements of this Pan-European template without much resistance.Footnote 100 The EU thus de facto imposed its own understanding of separation of powers on its new Central European members.Footnote 101

The first typical feature of the peculiar functioning of the separation of powers in Central Europe during the accession process was a super-strong constitutional court not responsive to the electorate and unreflective of the views of the majority of the population. The main example was the Hungarian Constitutional Court under the presidency of László Sólyom (1990–1998). During the 1990s, it styled itself as the guardian of the country’s complex legal and social transformation.Footnote 102 The Hungarian Constitutional Court proceeded in a highly activist fashion with respect to the economic and social policies of government by limiting what the government could do at its own discretion. To fulfil this role, the Hungarian Constitutional Court availed itself of the substantial competencies granted to it, especially in terms of the abstract review of legal norms. In its position as the most vehement negative legislator in the region, the Hungarian Constitutional Court generally endeavoured to modernise Hungary’s legal system and purposefully sought to introduce into the country the standards of legal thinking typical of Western democracies.Footnote 103

It was, however, not only the Hungarian Constitutional Court that was an active player during the transition to democracy in Central Europe. According to Hermann Schwartz, almost all the courts in Central Europe were ‘remarkably independent – astonishingly so in some cases – and quite ready to challenge and overturn important statutes, bills and regulations’.Footnote 104 As such, they grew into ‘important “veto players” in the politics of post-communist Europe’.Footnote 105 In comparison to the Hungarian Constitutional Court, the Polish Constitutional Tribunal was perhaps more willing to help the government in achieving the transformation, rather than to put obstacles in its way. Nonetheless, in the context of a multi-party system where various compromises proved very difficult to achieve, the Polish Constitutional Tribunal still gradually built up a relatively strong position for itself.Footnote 106 In the end, although the number of statutes declared unconstitutional was far from small,Footnote 107 ‘the Court itself and the Parliament have learned to shape their mutual relations’ despite the occasional conflict.Footnote 108 Later on, however, the period after the rise of Kaczyński brothers to power in 2005 was marked by frequent and much more serious conflicts between the government and the Polish Constitutional Tribunal.Footnote 109 The Kaczyński brothers lost this battle, but this episode is crucial for understanding why Jaroslav Kaczyński attacked the Polish Constitutional Tribunal so ferociously when he came to power again in 2015. He simply viewed his 2005-2007 failure as injustice which was condoned by the Polish Constitutional Tribunal and came to the conclusion that in order to realise his policies he needed to paralyse or capture the Polish Constitutional Tribunal.

The Czech Constitutional Court also gradually became a politically visible player, especially in the era of the ‘opposition agreement’ between the two leading parties, which enabled the Czech Social Democratic Party to govern with the support of the oppositional Civic Democratic Party (1998–2002). Afterwards, the most significant cases concerned key government policies of Mirek Topolánek’s (2006–2009) and Petr Nečas’s governments (2010–2013).Footnote 110 The most controversial decision of the Czech Constitutional Court to date came in 2009, when it accepted the doctrine of unconstitutional constitutional amendment and struck down the constitutional lawFootnote 111 that was supposed to solve a long political crisis by cutting short the fifth term of office of the Chamber of Deputies, thus seeking the quickest path to snap elections.Footnote 112

In contrast, the activism of the Slovak Constitutional Court throughout the 1990s can be best explained by reference to violations of the rules of the democratic game committed by Vladimír Mečiar’s government (1994–1998). The opposition, as well as President Michal Kováč, therefore relied on the Slovak Constitutional Court, which became an important counter-majority force.Footnote 113 Later on, the Slovak Constitutional Court helped re-establish institutional stability in Slovakia and became less involved in public life. However, the accession period strengthened its position. In no other country in Central Europe was the influence of external factors greater in the process of adopting Pan-European constitutionalism than in Slovakia.Footnote 114

The second example is the Pan-European template of judicial councils imposed on Central European countries.Footnote 115 A judicial council is an independent intermediary organisation positioned between the judiciary and the politically responsible administrators in the executive or the parliament, one that has significant powers primarily in appointing, promoting and disciplining judges.Footnote 116 It may also play a role in the areas of administration, court management and budgeting for the courts, but these powers are only secondary to its ‘personal competences’ regarding the careers of individual judges. Judicial councils exist in many European countries such as Italy, France and Spain.Footnote 117 However, the Pan-European judicial council model advocated by the EU (with the help of the Council of Europe) during the accession process was a very peculiar version of a judicial council, which has few, if any, equivalents in Western Europe,Footnote 118 since it required the entrenchment of a judicial council in the Constitution, granting judges at least parity in that body, vesting the real decision-making power with that body, transferring most ‘personal competences’ regarding a career in the judiciary to that body, and selecting the Chief Justice or its equivalent as the chairman of the judicial council.Footnote 119

This design of Pan-European judicial councils, which was eventually implemented in Hungary, Slovakia and, partly, also in Poland,Footnote 120 de facto insulated the judicial branch from the political branches as well as from the general public. In Barber’s terms, judges were awarded impenetrable shields against any leverage by politicians, and at the same time, politicians were denied all swords against the judiciary.Footnote 121 This, in turn, led to the corporatisation of the judiciary and various accountability perversions, singled out judges as a special caste which could remain totally isolated from the wishes of the electorate,Footnote 122 and further reduced the already weak democratic legitimacy of the Central European judiciaries.Footnote 123 We will show below that this one-sided empowerment and detachment of the judiciary made it easy for the populist leaders to delegitimise judges in the eyes of the ordinary people, pack the judicial councils with their protégés, and later on to use them as weapons against their critics within the judiciary.Footnote 124 Viewed through these lenses, it is not surprising that the strongest judicial council, the one in Hungary, was attacked most ferociously,Footnote 125 while the Czech judiciary, which did not follow the judicial council model,Footnote 126 has been left largely intact.Footnote 127

Third, other independent expert and regulatory agencies also played an inappropriate role during the process of the post-communist transition. The foremost examples are the Central Banks which, according to Juliet Johnson, committed two basic sins of ‘commission’ and ‘omission’.Footnote 128 The first and for our purposes more important sin consisted of the distorted interpretation of the Central Banks’ independence, which found its expression in a lack of cooperation with governments. The second sin concerned the relative neglect of banking supervision, i.e. unsatisfactory fulfilment of one of the most important functions of Central Banks. The separation of powers itself was, however, more affected by the lack of coordinated action between Central Banks and the political branches of government in the joint enterprise of governing during a turbulent era of economic, political and social transformation. In the end, the assertion of institutional independence of Central Banks was compounded by their unwillingness to take into account the actions of governments, as well as by unilateral pursuit of their own vision of economic policies.

Of all these actors the most important was certainly the judiciary, especially constitutional courts. Some scholars have even claimed that a ‘courtocracy’ – a democracy run by the judiciary – is a new and superior form of governance.Footnote 129 Emboldened by such intellectual support, the judicial branch in Central European countries embarked on a wide-ranging reinterpretation of the constitution – striking down constitutional amendments, reducing the discretion of the political branches, and judicialising virtually every aspect of political life.Footnote 130 Expert organs in other spheres of public life such as ombudspersons and data protection agencies followed the same depoliticising pattern.Footnote 131

Despite its appeal, this ‘catching up’ with the WestFootnote 132 was not a natural development. The Pan-European template significantly altered the existing separation of powers in Central Europe, while denying the opportunity for proper deliberation and local fine-tuning.Footnote 133 Instead, it opted for a ‘one size fits all’ solution.Footnote 134 Some of the suggested institutions, such as judicial councils, were even alien to the Central European legal culture as they ignored the German and Austrian roots of the Central European systems of court administration.Footnote 135 All this resulted in a one-sided emphasis on technocratic institutions staffed by experts, at the expense of representative institutions and civic engagement.Footnote 136

To apply the conceptual separation of powers toolbox discussed above, the Pan-European ‘separation of powers template’ stressed insulation of the judicial branch and independent agencies, instituted one-sided judicial checks upon elected branches,Footnote 137 and suppressed the ‘balances element’ of the principle of checks and balances. Besides carving out a prominent role in the standard framework of the separation of powers, courts were thus given several swords as well as shields,Footnote 138 whereas the other two branches were deprived of virtually any say over the judicial branch. Two mutually reinforcing developments were thus taking place. On the one hand, Central European courts judicialised virtually every aspect of politics,Footnote 139 constitutional courts overacted to the slightest change in judicial salaries (even if the cuts reflected widely accepted difficulties such as floods or financial crises),Footnote 140 and most powers regarding the careers of individual judges were transferred to judicial councils, which were composed primarily of judges themselves.Footnote 141 On the other hand, the impeachment of judges was considered chutzpah and the political branches gradually lost control over judicial appointments as well as judicial promotions.Footnote 142 At the same time, the immunity of MPs had been shrinking.Footnote 143

This Pan-European template distrusts politicians and voters,Footnote 144 relies on an independent elite (experts) to identify the common interest and the appropriate solution, suppresses pluralistic views of society and politics, prioritises one-size-fits-all solutions, and dispenses with the accountability of unelected institutions.Footnote 145 It praises expertise, puts emphasis on outputs and efficiency, derives its legitimacy from rational speculation and (quasi-)scientific procedures,Footnote 146 avoids engaging with the people,Footnote 147 and neglects constitutional sentimentsFootnote 148 and symbolic narratives. These depoliticising effects of the EU accession process contributed to the current democratic malaise in Central Europe.Footnote 149 More specifically, we argue that this overemphasis on technocratic institutions prepared the ground for the recent populist attacks on separation of powers, to which we now turn.

Overreaction to overreaction: populist leaders take the stage (populist challenge)

In response to current developments in Central Europe, lawyers have recently joined political theorists in their study of populism as a political phenomenonFootnote 150 and grappled with the relationship between populism and constitutionalism.Footnote 151 While the majority of scholars accept that populism has a problematic relationship with constitutionalismFootnote 152 and erodes certain pillars of constitutional democracy,Footnote 153 some have recently argued that populism contains a specific constitutional theory, a kind of ‘populist constitutionalism’. Read this way, populism adopts a particular conception of constituent power (ascribing absolute primacy to the constituent power vis-à-vis the constitution and the rules and powers derived from it), a specific interpretation of popular sovereignty (with the real – empirical – people representing the unity), and a concept of constitutional identity often backed by (mythical) historical narratives of ancestral greatness.Footnote 154

Despite these nuances, there is overwhelming scholarly agreement that populism is hostile to the principle of separation of powers, which is rejected by populists for being cumbersome, artificial and constraining of the true political will of the people.Footnote 155 We agree that populism does pose a significant challenge to the separation of powers, but we go beyond the existing scholarship which rarely differentiates between the four components of separation of powers. Accordingly, we now show that populism targets some of these components more aggressively than others, and explain why it was so easy for populist leaders in Central Europe to do so. To be able to do that, however, we must first finish our story of the separation of powers in Central Europe by analysing the developments of the last decade.

After Viktor Orbán’s Fidesz gained a constitutional majority in 2010, its one-party government embarked on a quest against independent institutions that stood in its way. It adopted a brand new constitution which has completely altered the constitutional landscape.Footnote 156 Among other things, the new constitution curbed the powers of the Hungarian Constitutional Court, increased the number of justices, and changed the appointment procedure.Footnote 157 These changes allowed Orbán to pack the Hungarian Constitutional Court with his protégés.Footnote 158

When it came to the ordinary courts, Orbán removed the sitting Chief Justice of the Supreme Court and replaced him with his appointee;Footnote 159 prematurely terminated the term of office of the Supreme Court Vice-President, Lajos Erményi, by statute, allegedly on the grounds of the reorganisation of the Hungarian judiciary;Footnote 160 got rid of most senior judges (who often sat on the Supreme Court or held critical court president positions) by abruptly reducing the compulsory retirement age for judges;Footnote 161 hollowed out the powers of the judicial council; and transferred judicial appointments to a newly created body staffed by Fidesz people.Footnote 162

Yet Orbán did not stop there. He also captured the State Audit Office, the National Media and Telecommunications Authority, election commissions and other independent agencies.Footnote 163 This ‘constitutional Blitzkrieg’ ultimately eliminated any resistance on the part of the Constitutional Court, the ordinary courts as well as numerous other independent agencies.Footnote 164

Poland witnessed a similar scenario after Jaroslav Kaczyński and his Law and Justice (PiS) party won the 2015 Polish parliamentary elections. Kaczyński launched an attack on the Polish Constitutional Tribunal. As he failed to muster a constitutional majority in the 2015 parliamentary elections, he had to resort to dubious amendments to ordinary laws concerning the Polish Constitutional Tribunal and to employ the non-implementation technique in order to ‘contain’ the Polish Constitutional Tribunal before he could pack it with loyal judges.Footnote 165

Nevertheless, he got eventually his way. He proceeded in five steps. First, President Andrzej Duda refused to swear in three judges rightfully appointed by the previous parliamentary majority in the lower house of parliament (Sejm) before the 2015 elections.Footnote 166 Second, the new Sejm after the 2015 elections, already under Kaczyński’s control, nominated five instead of two Justices to the 15-member Polish Constitutional Tribunal.Footnote 167 By doing so Kaczyński filled not only the two new vacancies but also three vacancies ‘created’ by Andrzej Duda. Third, after Kaczyński met with resistance from the sitting president of the Polish Constitutional Tribunal (Andrzej Rzeplinski), who refused to let three ‘unlawful PiS justices’ into the building of the Polish Constitutional Tribunal, he paralysed the Polish Constitutional Tribunal by refusing to allow the publication of the Polish Constitutional Tribunal’s judgments in the Official Journal, thus depriving them of legal effect, and by increasing the Polish Constitutional Tribunal’s quorum for adopting plenary judgments.Footnote 168 Fourth, once Rzeplinski’s term had come to an end in December 2016, Kaczyński adopted a law which created the new position of ‘acting president’ of the Polish Constitutional Tribunal. Subsequently, President Andrzej Duda quickly appointed Julia Przyłębska, one of the two justices lawfully elected in 2015. Przyłębska immediately brought in the three unlawful PiS judges who were previously rejected by the former president of Polish Constitutional Tribunal Rzeplinski and called a general assembly of judges, where her PiS colleagues elected her the President of the Polish Constitutional Tribunal.Footnote 169 Fifth, Kaczyński arranged a deal with Justice Andrzej Wróbel, who voluntarily resigned in January 2017.Footnote 170 This allowed the governing PiS party to appoint the eighth Justice and finally gain a majority on the 15-member Tribunal. By June 2017 the Polish Constitutional Tribunal was under the firm control of Kaczyński as his PiS had appointed nine out of the fifteen Justices.

Kaczyński also tightened his control over ordinary courts, hitting lower courts as well as the Supreme Court. Like Orbán, Kaczyński first took control over the selection, promotion and disciplining of judges. He did so by packing the National Council for the Judiciary, which has significant power over: (1) the assessment, promotion and disciplining of sitting judges’ (2) the appointment of new judges; and (3) the selection of court presidents.Footnote 171 More specifically, he prematurely terminated the terms of 15 judges sitting on the 25-member National Council for the Judiciary, changed the election rules so that 15 new judicial members of the National Council for the Judiciary were elected by parliamentary majority rather than by their peers, and then appointed his protégés to the vacant posts. As a result, 21 out of 25 members of the National Council for the Judiciary were appointed by the legislature controlled by Kaczyński and his PiS. This capture of the National Council for the Judiciary allows Kaczyński to control judicial appointments and exercise pressure on sitting judges with threats of discipline or denial of promotion.Footnote 172

Furthermore, Kaczyński knew that lower court presidents and vice-presidents could be very important players in Central European judiciaries.Footnote 173 He thus gave his Minister of Justice, Zbigniew Ziobro, a six-month window which allowed Ziobro to dismiss court presidents and appoint new ones without consultation. Ziobro fully exploited this ‘window of opportunity’ and replaced 160 court presidents and vice-presidents.Footnote 174

Only then did Kaczyński target the Polish Supreme Court. He again took a page from Orbán’s playbook and reduced the compulsory retirement age for judges from 70 to 65 years,Footnote 175 which ‘by accident’ also applied to the Polish Supreme Court President, Małgorzata Gersdorf, who turned 65 in 2017 and whose constitutional term of office was only supposed to end in 2020, and to more than one third of the Supreme Court judges.Footnote 176 At the same time, he increased the number of judges on the Supreme Court from 81 to 120.Footnote 177 The cumulative effect of these two measures was that Kaczyński, having the National Judicial Council already under control, could in theory in one fell swoop appoint 70 out of 120 Supreme Court judges, including the new Supreme Court president. However, in November 2018 the European Court of Justice stepped in and ordered the suspension of the new law that had lowered the compulsory retirement age for Polish judges.Footnote 178 Not without hesitation, Poland reversed that law by enabling forcibly-retired judges to return to work; the damage to the Supreme Court had, however, already been done.Footnote 179

In the meantime, Kaczyński started his crackdown on independent agencies and media boards.Footnote 180 Kaczyński is thus following the same playbook as Orbán in Hungary, perhaps even more shamelessly. The only difference is that Kaczyński, in contrast to Orbán, does not have a constitutional majority and has to resort to changes through ordinary statutes.Footnote 181 With the help of his protégé, the Polish president Andrzej Duda, this strategy has worked so far, even though he did not manage to silence all pockets of resistance; some independent agencies such as the Polish ombudsman remain active despite their vocal criticism of Law and Justice reforms.

Slovakia and Czechia have fared slightly better, but they too show signs of disregard for the separation of powers. Slovak Prime Minister Róbert Fico and his Smer managed to fill the Slovak Constitutional Court with loyal Justices and thereby de facto immunised Smer’s policies from judicial review. Only Fico’s unexpected defeat to an independent candidate, Andrej Kiska, in the 2014 presidential race prevented him from completely controlling the Slovak Constitutional CourtFootnote 182 because it forced Fico to cooperate with the new President on new constitutional court justice appointments.Footnote 183 Although Fico had to step down as Prime Minister amid mass protests following the assassination of investigative journalist Ján Kuciak and his girlfriend in February 2018, he still has a tight grip on Slovak politics. In October 2018, he almost managed to orchestrate a constitutional amendment that would exclude the Slovak President from the selection of judges for the Slovak Constitutional Court, but he eventually lost out in a dramatic late-night parliamentary session.Footnote 184 Later on, Fico himself ran for the President of the Slovak Constitutional Court,Footnote 185 but he has failed to secure that post.Footnote 186

Even Czechia, widely considered the most resistant among Central European countries to attacks on the separation of powers, is far from immune. The winner of the 2017 parliamentary elections and current Prime Minister, Andrej Babiš,Footnote 187 not only prefers to ‘run the state like a firm’,Footnote 188 implying that checks and balances, as well as complex procedural rules, are nothing but a nuisance,Footnote 189 but has also pledged to abolish the upper chamber of the Parliament (Senate), reduce the number of MPs in the lower chamber from 200 to 101,Footnote 190 and abolish municipal assemblies.Footnote 191 In other words, Babiš aims for a centralisation of power by strengthening the majoritarian elements of Czech parliamentarism, and for a weakening of checks on his powers and policies. The recently re-elected President, Miloš Zeman, fully supports such views. According to several judges of the Czech Constitutional Court and the Supreme Administrative Court, Zeman went even further as his envoys have allegedly attempted to persuade judges of these two courts to decide high-profile political cases in line with Zeman’s preferences.Footnote 192 More recently, the dubious resignation of the Minister of Justice, who abruptly resigned after the Police recommended prosecution of the Prime Minister Babiš, further intensified concerns about judicial independence and led to massive public protest.Footnote 193

To be sure, neither Orbán nor Kaczyński (nor Babiš nor Fico) are anti-institutionalists in an unequivocal sense.Footnote 194 They like institutions as long as those institutions pursue their agendas,Footnote 195 or at least behave in a neutral way and do not put up unwelcome obstacles. As Müller notes, populists ‘only oppose those institutions that, in their view, fail to produce the morally (as opposed to empirically) correct political outcomes’.Footnote 196 Hence, their goal is not necessarily to abolish the existing institutions, merge them, blur the boundaries between their functions, or occupy several offices at once. In fact, even Kaczyński does not reject the separation of powers as such (note that he prefers to stay in the background as an ordinary MP rather than becoming Prime Minister, which would openly concentrate power in his hands) and he ‘merely’ pushes his own vision of separation of powers.Footnote 197

To be more precise, these populist leaders in the first place seek to immunise their governments’ actions from external review and to silence their critics. Therefore, their primary target is the principle of checks and balances, and especially its ‘checks’ element. They want to take swords away from agencies they do not control and reduce the shields these institutions have vis-à-vis the democratically elected branches.Footnote 198 That is why both Orbán and Kaczyński have ended up in a head-on collision with constitutional tribunalsFootnote 199 and ordinary courtsFootnote 200 – the institutions that are most resistant to abrupt changes in the political mood.Footnote 201 Interestingly, once they captured the courts, they vigorously started defending and exploiting them.Footnote 202 Sometimes they even established a brand new judicial check, e.g. the system of administrative courts in Hungary.Footnote 203

However, the ramifications of their actions go deeper and have an impact on other components of the separation of powers as well. For instance, one of Kaczyński’s first steps after his 2015 electoral victory was to reform public prosecution by merging the Office of the Public Prosecutor General with the Minister of Justice.Footnote 204 In combination with other judicial reforms, this means that the Polish Minister of Justice has extensive power over both those who prosecute and those who hear the cases being prosecuted.Footnote 205 This arrangement not only interferes with the separation of institutions component but also reminds us of the communist model of prokuratura.Footnote 206 Viktor Orbán, due to three consecutive electoral victories which gave him constitutional majorities, has not had to interfere with the separationist components so far. However, as during communist rule,Footnote 207 the separation of institutions, even if formally anchored in the new Hungarian constitution, is an illusion; pretty much all institutions are now subordinate to Orbán’s Fidesz and their supporters. That said, we do not know whether Central European populist leaders will remain content with upholding the separationist components or whether, when under threat of political defeat, they will decide to follow the example of their non-European counterparts who have not shied away from shameless violations of the separation of institutions and separation of functions.Footnote 208

Conclusion: why institutional tweaks are not enough

The rise of political leaders such as Viktor Orbán and Jarosław Kaczyński and their respective actions have forced us to rethink what has gone wrong with Central European democracy. We have argued that analysing their actions from the perspective of separation of powers produces valuable insights that would otherwise have remained obscure if we had inspected them only through the more common prism of the rule of law. In order to achieve this, we unpacked the concept of separation of powers into four key components and examined how Central European regimes between WWI and the end of the Cold War treated separation of powers in practice.

We have shown that Central European leaders have always gravitated towards a centralisation of power (often culminating in a cult of personality) and that basic imperatives of the principle of the separation of powers were sidelined even during the occasional democratic periods in these countries’ histories. Moreover, the interwar regimes left little room for an active and pluralistic civil society and the communists openly suppressed it. These historical legacies of Central European countries, a strong push toward centralisation and a lack of a robust civic political and legal culture, have left a deep imprint on the Central European mindset.

Of course, all that is meant to enable a better understanding of the current state of affairs. We argue that the post-1989 era is best explained as a series of ‘overreactions to overreactions’. The largely understandable desire to prevent the re-establishment of a communist-style centralisation of power encouraged the adoption of a Pan-European template exhibiting clear depoliticising logic, which was significantly boosted by the EU accession process.Footnote 209 This Pan-European template prioritised unelected actors, especially constitutional courts, judicial councils and agents of technocratic governance. Not surprisingly, they happily ruled the day. With the benefit of hindsight, we argue that this distortion of the separation of powers proved detrimental to greater civic engagement.Footnote 210 As such, it helped pave the way for the populist backlash against ‘elitism’ of whatever sort (be it ‘Brussels’, George Soros, or social scientists), and generally against any ‘limitations on the expression of the general will, most notably the constitutional minorities and the independence (from politics, and therefore from democratic control) of key state institutions (e.g. the judiciary, the central bank)’.Footnote 211 To put it simply, the two major recent challenges to the separation of powers in the region – the rise of the unelected and the wave of populism – are more interrelated than usually thought, and the former has greatly contributed to the latter.

Regarding the individual components of separation of powers, we have shown that each Central European regime has attacked some components of separation of powers more aggressively than others. Totalitarian and authoritarian regimes first dismantled virtually all checks on their power and then resorted to more straightforward violations of the three separationist components (especially the separation of institutions element). In contrast, the major battleground after 1989 has been the checks and balances component. While the Pan-European technocratic template erected one-sided judicial checks on elected branches and suppressed the ‘balances element’, the populist leaders swung the pendulum back, removed most checks on the elected branches and packed the unelected institutions. Only the future will tell whether Central European populists will stop here or whether they will just maintain the facade of constitutional democracy for now while remaining ready to tinker openly with the separationist components as well.Footnote 212

Given all the institutional and mental path-dependencies as well as the often neglected deleterious effects of the rise of the unelected, it is now easier to understand why populist leaders in Central Europe have had so little difficulty in dismantling the separation of powers. That said, it is still frightening that the judicial branch has been unable to tame anti-constitutional forces and protect the Central European Rechtsstaat. Forget for now the fact that Central European judiciaries might have called this fate upon themselves.Footnote 213 The lesson to be learnt is that the judicial branch turned out to be surprisingly weak once the struggle became real.Footnote 214

The Pan-European template of separation of powers thus worked reasonably well in good times, but it failed once storm clouds appeared on the horizon, most probably because it had little tradition in Central Europe and because it did not enjoy enough political and societal support.Footnote 215 This finding has three repercussions for the future. First, mere institutional tweaks to the constitutional framework are not themselves capable of righting the ship in Central Europe. The foundations of the separation of powers are political in nature and require broad consensus on a set of values that underpins it. Therefore, what we need is to combat bad mental path-dependencies and incentivise a willingness to engage in respectful interaction, be it deliberation or bargaining – so that ‘the norms of political equality, individual liberty, civic tolerance, and the rule of law’ become a staple among the major ideological players in Central European politics.Footnote 216 Second, the separation of powers needs someone (other than one of the three branches) who will defend it when it is under pressure. The Pan-European template relied almost exclusively on the judicial branch, which might suffice against ordinary challenges. However, when the judicial branch itself is under frontal attack, civil society, the free media and other ‘contingent circumstances’Footnote 217 become at least as important as the formal mechanisms to maintain the balance of power. Third, it is dangerous to rely primarily on the European Court of Justice and think that it will single-handedly be able to rescue Central Europe and restore a functioning separation of powers.Footnote 218 While the European Court of Justice surely plays an important role, especially in the current developments in Poland,Footnote 219 the failure of the Pan-European template shows that a top-down approach to the separation of powers does not work in Central Europe and that any long-term solution must have the broad support of the people.Footnote 220



Head of the Judicial Studies Institute (JUSTIN) and Associate Professor, Faculty of Law, Masaryk University; email: We are grateful to Paul Blokker, Francesco Clementi, Silvia Steininger, JUSTIN members, EuConst editors, two anonymous reviewers, and often anonymous audiences in Heidelberg, Milan, Münster, Oslo and Prague for their suggestions and comments that significantly improved the original manuscript. The research leading to this article has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant no. 678375-JUDI-ARCH-ERC-2015-STG) and from the Czech Science Foundation (grant no. 19-11091S).


Assistant Professor, Faculty of Social Studies, Masaryk University; email:


Assistant Professor, Faculty of Social Studies, Masaryk University; email:


1 The only exception was Slovakia during Mečiar’s regime in 1993–1998, which was referred to as a ‘laggard’ ( Janos, A.C., East Central Europe in the Modern World: The Politics of the Borderlands from Pre- to Postcommunism (Stanford University Press 2000 Google Scholar)) and a ‘troubled democracy’ ( Kitschelt, H., Post-Communist Party Systems: Competition, Representation, and Inter-Party Cooperation (Cambridge University Press 1999)CrossRefGoogle Scholar at p. 42).

2 Note that this concept is contested, as populism may represent both a democratic corrective and a threat to democracy. See Müller, J.-W., What is Populism? (University of Pennsylvania Press 2017)Google Scholar at pp. 56-57; C.R. Kaltwasser, ‘The ambivalence of populism: threat and corrective for democracy’, 19 Democratization (2012) p. 184.

3 See Bánkuti, M. et al., ‘Hungary’s Illiberal Turn: Disabling the Constitution’, 23 Journal of Democracy (2012) p. 138 CrossRefGoogle Scholar.

4 See Sadurski, W., Poland’s Constitutional Breakdown (Oxford University Press 2019)CrossRefGoogle Scholar.

5 See Hanley, S. and Vachudová, M., ‘Understanding the illiberal turn: democratic backsliding in the Czech Republic’, 34 East European Politics (2018) p. 276 CrossRefGoogle Scholar.

6 See supra n. 1.

7 Even this claim could be disputed after the assassination of the investigative journalist Ján Kuciak and his girlfriend in February 2018. However, the victory of a liberal anti-corruption activist Zuzana Čaputová in the 2019 presidential elections shows that Slovakia is currently more immune to the populist spell than its Visegrad neighbours.

8 See Hanley and Vachudová, supra n. 5. The same phenomenon is emphasised in this issue by P. Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism’, p. 519, M. Krygier, ‘Institutionalisation and its Trials. (Anti-)Constitutional Populism in Post-Communist Europe’, p. 544, S. Suteu, ‘The Populist Turn in Central and Eastern Europe: Is Deliberative Democracy (Part of) the Solution?’, p. 488.

9 See e.g. Halmai, G., ‘From the “Rule of Law Revolution” to the Constitutional Counter-Revolution in Hungary’, in Bedenek, W. (ed), European Yearbook of Human Rights (Intersentia 2012)Google Scholar p. 367; Pech, L. and Scheppele, K.L., ‘Illiberalism Within: Rule of Law Backsliding in the EU’, 19 CYELS (2017) p. 3 Google Scholar; Bogdandy, A. von et al., ‘Guest Editorial: A potential constitutional moment for the European rule of law – The importance of red lines’, 55 CMLRev (2018) p. 983 Google Scholar; Scheppele, K.L., ‘The opportunism of populists and the defense of constitutional liberalism’, 20 German Law Journal (2019) p. 314 CrossRefGoogle Scholar.

10 For a similar claim see Möllers, C., ‘Separation of Powers – A Short Manual for the Perplexed’, in Napel, H.-M. et al. (eds.), The Powers That Be: Rethinking the Separation of Powers. A Leiden Response to Möllers (Leiden University Press 2016) at p. 324-325 Google Scholar.

11 This exercise would again be extremely difficult to do with concepts such as the rule of law, liberal democracy or liberal constitutionalism, which (in contrast to separation of powers) had much less traction in Central Europe before WWII and under communist rule.

12 It is common sense that too much power concentrated in the hands of one person or group (no matter whether it is a politician or a boss in your company or a family member) sooner or later leads to the abuse (or at least arbitrary use) of power. Such basic common sense about what the rule of law or liberal democracy or constitutionalism entails arguably does not exist.

13 See infra nn. 150-155.

14 See 2019 ICON Symposium on ‘Public Law and the New Populism’ (ICON, Vol. 17, Issue 2) and the twin German Law Journal special issues on ‘Public Law and Populism’ (2019, Vol. 20, Issue 2) and on ‘Populist constitutionalism: Varieties, complexities, and contradictions’ (2019, Vol. 20, Issue 3).

15 See below.

16 See e.g. Carolan, E., The New Separation of Powers. A Theory for the Modern State (Oxford University Press 2009)CrossRefGoogle Scholar; Möllers, C., The Three Branches (Oxford University Press 2013)CrossRefGoogle Scholar; Waldron, J., Political Political Theory (Harvard University Press 2016)CrossRefGoogle Scholar.

17 This is in fact a standard account in the separation of powers literature (see e.g. Möllers, supra n. 10, p. 43-49; Kavanagh, A., ‘The Constitutional Separation of Powers’, in Dyzenhaus, D. and Thorburn, M. (eds.), Philosophical Foundations of Constitutional Law (Oxford University Press 2016) p. 221 at p. 233-234 Google Scholar, Waldron, supra n. 16, p. 49; Sajó, A. and Uitz, R., The Constitution of Freedom. An Introduction to Legal Constitutionalism (Oxford University Press 2017) at p. 129-139 Google Scholar; and Maldonado, D.B., ‘The Conceptual Architecture of the Principle of Separation of Powers’, in Bilchitz, D. and Landau, D. (eds.), The Evolution of the Separation of Powers Between the Global North and the Global South (Edward Elgar 2018) at p. 150-156 Google Scholar).

18 Vile, M.J.C., Constitutionalism and the Separation of Powers (Liberty Fund 1998)Google Scholar at p. 14. For criticism of the pure doctrine from a historical perspective see in particular N. Matteucci, Lo Stato moderno (Il Mulino 1997) at p. 147-157; M. Troper, La separation des pouvoirs et l’histoire constitutionnelle française (L.G.D.J. 1980).

19 Somek, A., The Cosmopolitan Constitution (Oxford University Press 2016)Google Scholar at p. 38ff. and 57ff.; Vile, supra n. 18, p. 79.

20 Magill, M.E., ‘The Real Separation in Separation of Powers Law’, 86 Virginia Law Review (2000)CrossRefGoogle Scholar p. 1127 at p. 1130.

21 R. Guastini, Leçons de théorie constitutionnelle (Dalloz 2010) at p. 155-161.

22 We explain our conceptual approach in more detail elsewhere: see J. Baroš et al., ‘Unpacking the Separation of Powers’, in A. Barraggia (ed.), New Challenges to the Separation of Powers (Edward Elgar forthcoming). See also supra n. 17.

23 Due to space constraints, we cannot engage here with the EU’s division of competence literature. See e.g. Napel, H.-M. et al. (eds.), The Powers That Be: Rethinking the Separation of Powers. A Leiden Response to Möllers (Leiden University Press 2016)Google Scholar; Garben, S. and Govaere, I. (eds.), The Division of Competences Between the EU and the Member States (Hart Publishing 2017)Google Scholar; Schütze, R., European Union Law, 2nd edn (Cambridge University Press 2018)CrossRefGoogle Scholar.

24 Waldron, supra n. 16, p. 49. Waldron treats the principle of dispersal of powers independently of the principle of separation of powers. Because we pursue slightly different aims, we ‘spread’ dispersal of power across the three types of separation.

25 Kavanagh, supra n. 17, p. 230.

26 Vile, supra n. 18, p. 17.

27 Examples of such mingling include judicial law-making, the existence of quasi-judicial bodies and administrative agencies (that engage in court-like behaviour), courts acting as administrative organs, parliaments acting as administrative organs or as courts, delegated legislation by the executive, or administrative legislation. Some scholars even challenge the assumption that each branch is endowed with one core function (see e.g. Kavanagh, supra n. 17, p. 226-227); but cf Kelsen, H., General Theory of Law and State (The Lawbook Exchange 2011)Google Scholar pt III; and Carolan supra n. 16.

28 Waldron, supra n.16, p. 66ff. Of course, the tripartite division itself has always been controversial, and various authors either reduce the number of branches to two or expand it to four, five or even more (see e.g. Bognetti, G., Dividing Powers. A Theory of the Separation of Powers (Wolters Kluwer 2017)Google Scholar; and Carolan, supra n. 16), with the extra branches provided by administration, media, constitutional courts or external (international) actors.

29 See e.g. J. Waldron, ‘Separation of Powers in Thought and Practice’, 54 B.C.L. Rev. (2013) p. 433; and Kavanagh, supra n. 17, p. 233. The typical example of such institutional design was the Appellate Committee of the House Lords until the 2005 constitutional reform (see e.g. Woodhouse, D., ‘United Kingdom. The Constitutional Reform Act 2005 – defending judicial independence the English way’, 5 ICON (2007) p. 153)Google Scholar.

30 But see ECtHR, 22 June 2004, Case No. 47221/99, Pabla Ky v Finland.

31 See e.g. Calabresi, S. and Rhodes, K., ‘The Structural Constitution: Unitary Executive, Plural Judiciary’, 105 Harvard Law Review (1992) p. 1153 CrossRefGoogle Scholar at p. 1156; Barendt, E., ‘Separation of Powers and Constitutional Government’, 5 Public Law (1995) p. 599 Google Scholar; Loughlin, M., Sword and Scales (Hart 2000)Google Scholar at p. 224-225; Vibert, F., The Rise of the Unelected: Democracy and the New Separation of Powers (Cambridge University Press 2007)CrossRefGoogle Scholar at p. 92; and Sajó and Uitz, supra n. 17, p. 128-139.

32 See Guastini, supra n. 21, p. 154.

33 See e.g. Kavanagh, supra n. 17, p. 233.

34 For a similar lament see Möllers, supra n. 10, p. 46-47.

35 See Barber, N., ‘Self-Defence for Institutions’, 72 Cambridge Law Journal (2013) p. 558 CrossRefGoogle Scholar; and Barber, N., Principles of Constitutionalism (Oxford University Press 2018) p. 79-82 CrossRefGoogle Scholar.

36 Madison, J., ‘No. 51’, in Rossiter, C. (ed.), The Federalist Papers (Penguin, 1999) at p. 288-293 Google Scholar.

37 See Barber (2013), supra n. 35, p. 561-564 and 577.

38 Most of these examples are taken from Barber (2013), supra n. 35, pp. 561-562.

39 Barber (2013), supra n. 35, p. 560.

40 Most of these examples are taken from Barber (2013), supra n. 35, p. 560-561. On judicial self-governance see D. Kosař, ‘Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self Governance in Europe’, 19 German Law Journal (2018) p. 1567.

41 Barber (2018), supra n. 35, p. 79.

42 We are grateful to an anonymous reviewer for stressing the importance of these actors.

43 Note that there are also other meanings of separation (such as separation of the armed forces from the political branches, the separation of secular from religious authorities, and the separation of centres of political power from those in control of commerce and business); see P. Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge University Press 2013) at p. 222.

44 See, mutatis mutandis, Philp, M., ‘Delimiting Democratic Accountability’, 57 Political Studies (2009) p. 28 CrossRefGoogle Scholar (regarding the concept of accountability).

45 See also supra n. 17.

46 Note that tripartite separation of powers is still a prevailing account in the separation of powers literature (see e.g. Vile, supra n. 18, ch. 4; Kavanagh, supra n. 17; Möllers, supra n. 10, p. 80-106, Maldonado, supra n. 17, p 150-156; Barber (2018), supra n. 35, p. 56-70.

47 Note that we do not have the ambition in this paper to look at the totality of society, nor to provide a full-fledged sociological theory of separation of powers that would incorporate all the potential influences on the exercise of state power. For a similar point, see Möllers, supra n. 10, p. 324-325.

48 Carolan, supra n. 16.

49 Möllers, supra n. 16.

50 Slovakia is an exception since (apart from a short spell under Hitler’s tutelage during WWII) it had not experienced autonomous statehood until the split of Czechoslovakia in 1993.

51 However, these glorious times date back mostly to the Middle Ages and the Enlightenment. See e.g. Rau, Z. et al., Magna Carta: A Central European Perspective of our Common Heritage of Freedom (Routledge 2016)CrossRefGoogle Scholar.

52 Note that, in the depth of the Middle Ages and the early modern era, the Czech Kingdom (1198–1618), the Polish Kingdom (1025–1569) and the Polish-Lithuanian Commonwealth (1569–1795) were autonomous and influential players in European politics.

53 The principle of separation of powers was explicitly recognised in the Austrian basic laws of December 1867. See Basic Law No. 141/1867 Reichsgesetzblatt (Official Journal of Laws of Austrian Empire, hereinafter ‘RGBl’) on the Legislative Power, No. 145/1867 RGBl on the Executive Power and No. 144/1867 RGBl on the Judicial Power.

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61 Some commentators have even claimed that it was too nuanced and contained so many checks and balances that it could hardly function in practice. See Osterkamp, J., ‘Ústavní soudnictví v meziválečném Československu’, 146 Právník (2007) p. 585 Google Scholar at p. 616.

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73 Hazard, supra n. 71, p. 35-68. We are aware that we cannot do justice to the nuances of democratic centralisation and socialist legality and that all the theory behind these concepts was not laughable, but we do not have the space to engage with the communist theorists here.

74 See Barber (2018), supra n. 35, p. 76-77.

75 See Kühn, supra n. 54; S. Frankowski, ‘The Independence of the Judiciary in Poland: Reflections on Andrzej Rzeplinski’s Sadownictwo v Polsce Ludowej (The Judiciary in People’s Poland)’, 33 Ariz. J. Int. Comp. L. (2015) p. 40; Bröstl, A., ‘At the Crossroads on the Way to an Independent Slovak Judiciary’, in Přibáň, J. et al. (eds.), Systems of justice in transition: Central European experiences since 1989 (Ashgate 2003) p. 141 Google Scholar.

76 See Hazard, supra n. 71, p. 110-112 (discussing the original Soviet model of prokuratura); and Kühn, supra n. 54, p. 43-45 (discussing the Central European modifications of the Soviet model).

77 See e.g. Kühn, Z., ‘The Authoritarian Legal Culture at Work: The Passivity of Parties and the Interpretational Statements of Supreme Courts’, 2 Croatian Yearbook of European Law and Policy (2006) p. 19 CrossRefGoogle Scholar.

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80 Holmes, S., ‘Lineages of the Rule of Law’, in Maravall, J.M. and Przeworski, A. (eds.), Democracy and the Rule of Law (Cambridge University Press 2003) at p. 22-23 Google Scholar. See also Ginsburg, T. and Moustafa, T., Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press 2008)CrossRefGoogle Scholar.

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83 The typical example of the communist institutional legacy is Kaczyński’s 2016 reform of the public prosecution (see infra n. 204). Some scholars even claim that socialist legal tradition is still alive; see Uzelac, A., ‘Survival of the Third Legal Tradition?’, 49 S.C.L.R. (2010) p. 377 Google Scholar.

84 Blokker, P., New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (Routledge 2013)CrossRefGoogle Scholar.

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86 See e.g. Huntington, S., The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press 1991)Google Scholar.

87 Slovakia under Mečiar’s semi-authoritarian rule (1993–1998) was an exception. See supra n. 1.

88 Sajó, A., Limiting Government (CEU Press 1999)Google Scholar at p. 2.

89 The Copenhagen criteria (after the European Council in Copenhagen in 1993 which defined them) are the essential conditions all candidate countries must satisfy to become EU member states (see Presidency Conclusions, Copenhagen European Council 1993).

90 Kochenov, D., EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law (Kluwer Law International 2008)Google Scholar.

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94 See e.g. Kosař, D. and Bobek, M., ‘Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe’, 15 German Law Journal (2014) p. 1257 Google Scholar (regarding judicial councils).

95 Kochenov, supra n. 90. Note that the EU was not always successful in implementing the uniform standard regarding each requirement, but by and large it succeeded in Central Europe.

96 Somer, S. De, Autonomous Public Bodies and the Law: A European Perspective (Edward Elgar 2017)CrossRefGoogle Scholar. On the EU impact see also Suteu, supra n. 8, p. 6-7.

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101 One could object that certain features of the Pan-European template of separation of powers were already in place when the accession process started. This is correct, but the accession process significantly deepened the rise of the unelected and, moreover, made it impossible to revise the early post-Cold-War policies and strike a new reasonable balance between the three branches of government.

102 Procházka, R., Mission Accomplished. On Founding Constitutional Adjudication in Central Europe (CEU Press 2002) at p. 113-139 Google Scholar. See also Halmai, G., ‘The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court’, in Sadurski, W. (ed.), Constitutional Justice, East and West (Kluwer Law International 2002) p. 189 Google Scholar.

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107 Especially after the 1997 constitutional reform, the ratio of the findings of unconstitutionality (excluding constitutional complaints) increased rapidly (for instance, in 1999 the ratio was higher than 40%).

108 L. Garlicki, ‘The Experience of the Polish Constitutional Court’, in Sadurski, supra n. 102, p. 265 at p. 281-282.

109 Robertson, D., The Judge as Political Theorist. Contemporary Constitutional Review (Princeton University Press 2010) at p. 99-107 CrossRefGoogle Scholar.

110 These policies concerned, among other things, reducing social benefits and introducing health care fees in the wake of financial crisis. See e.g. Judgment of the Czech Constitutional Court of 20 May 2008, Pl. ÚS Health Care Fees; and Judgment of the Czech Constitutional Court of 23 April 2008, Pl. ÚS 2/08 Sickness Benefits.

111 Constitutional Act no 195/2009 Coll.

112 Judgment of the Czech Constitutional Court of 10 September 2009, Pl. ÚS 27/09 Melčák. For further analysis see also Roznai, Y., ‘Legisprudence Limitations on Constitutional Amendments? Reflections on the Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act’, 8 ICL Journal (2014) p.29 CrossRefGoogle Scholar.

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115 See Kosař and Bobek, supra n. 94; Parau, supra n. 98; and Kosař, supra n. 100.

116 Garoupa, N. and Ginsburg, T., ‘Guarding the Guardians: Judicial Councils and Judicial Independence’, 57 American Journal of Comparative Law (2009) p.103 CrossRefGoogle Scholar.

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118 Even the Italian judicial council (Consiglio Superiore della Magistratura), which served as a template for the Pan-European model, differs in several aspects and, more importantly, its success has always depended on many endogenous and exogenous factors. See Benvenuti, S. and Paris, D., ‘Judicial Self-Government in Italy: Merits, Limits and the Reality of an Export Model’, 19 German Law Journal (2018) p. 1641 CrossRefGoogle Scholar.

119 See Kosař and Bobek, supra n. 94; and Kosař, supra n. 100.

120 On why Czechia resisted the Pan-European judicial council model see Kosař, supra n. 100; and Blisa, A. et al., ‘Judicial Self-Governance in Czechia: Europe’s Black Sheep?’, 19 German Law Journal (2018) p. 1951 CrossRefGoogle Scholar.

121 See supra n. 40.

122 For instance, the former chair of the Polish Association of Judges called the judges a ‘special caste of people’, a term which Law and Justice immediately started to use, in a pejorative sense, to describe the Polish judiciary; see Czarnota, A., ‘Rule of lawyers or rule of law: On constitutional crisis and rule of law in Poland’, in Iancu, B. and Tănăsescu, E. S. (eds.), Governance and Constitutionalism: Law, Politics and Institutional Neutrality (Routledge 2019)Google Scholar p. 51 at p. 53. On the Law and Justice media campaign against the judiciary, see also F. Zoll and L. Wortham, ‘Judicial Independence and Accountability: Withstanding Political Stress in Poland’, 42 Fordham International Law Journal (2019) p. 875 at p. 904-907.

123 See Fleck, Z., ‘Judicial Independence in Hungary’, in Seibert-Fohr, A. (ed.), Judicial Independence in Transition (Springer 2012) p. 793 CrossRefGoogle Scholar (on Hungary); Kosař, supra n. 100; and Spáč, S. et al., ‘Capturing the Judiciary from Inside: The Story of Judicial Self-Governance in Slovakia’, 19 German Law Journal (2018) p. 1741 CrossRefGoogle Scholar (all on Slovakia); Śledzińska-Simon, A., ‘The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition’, 19 German Law Journal (2018) p. 1839 CrossRefGoogle Scholar (on Poland); and Parau, supra n. 98 (on Central Europe in general).

124 See P. Kingsley, ‘After Viktor Orban’s Victory, Hungary’s Judges Start to Tumble’, The New York Times, 1 May 2018, 〈〉, visited 22 August 2019; and B. Novak and P. Kingsley, ‘Hungary Creates New Court System, Cementing Leader’s Control of Judiciary’, New York Times (12 Dec 2018), 〈〉, visited 22 August 2019 (on Hungary); and Śledzińska-Simon, supra n. 123 (on Poland).

125 Ibid. See also Fleck, supra n. 123; and Kosař, D. and Šipulová, K., ‘The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law’, 10 Hague J Rule Law (2018) p. 83 CrossRefGoogle Scholar.

126 See supra n. 120.

127 It is difficult for the Czech President, Miloš Zeman, who appoints all Czech judges, and for the Czech Prime Minster, Andrej Babiš, whose Government nominates all candidates for judicial office to the President, to criticise the Czech judiciary for its lack of democratic legitimacy and to blame judicial self-governance for bad personal decisions.

128 Johnson, J., Priests of Prosperity: How Central Bankers Transformed the Postcommunist World (Cornell University Press 2016).Google Scholar

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130 Sadurski, supra n. 97.

131 See e.g. Bánkuti, M. et al., ‘From Separation of Powers to a Government Without Checks: Hungary’s Old and New Constitution’, in Töth, G.A., Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (CEU Press 2012) p. 248-249 Google Scholar.

132 See J. Komárek, ‘The Struggle for Legal Reform after Communism: A review of Zdenĕk Kűhn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation (Martinus Nijhoff 2011)’, 63 American Journal of Comparative Law (2015) p. 285 at p. 288-289.

133 Puchalska, B., Limits to Democratic Constitutionalism in Central and Eastern Europe (Ashgate 2011)Google Scholar at p. 91-122; Parau, C., Transnational Networks and Elite Self-Empowerment: The Case of Judiciary in Central and Eastern Europe (Oxford University Press 2016)Google Scholar.

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135 Kosař, supra n. 100.

136 Blokker, supra n. 84. For a complex view on civic engagement see also Suteu, supra n. 8, p. 10.

137 See Vibert, supra n. 31, p. 3.

138 See supra nn. 35-40.

139 Sadurski, supra n. 97.

140 Note that the Czech Constitutional Court has already issued 16 judgments regarding judicial salaries and that the Slovak Constitutional Court has rendered seven such judgments (both courts almost always rule in favour of judges).

141 See supra nn. 115 and 123.

142 Ibid.

143 See also ECtHR [GC] 17 May 2016, Case No. 42461/13 and 44357/13, Karácsony and Others v Hungary; and Judgment of the Czech Constitutional Court of 16 June 2016, No. I. ÚS 3018/14.

144 See A. Seibert-Fohr, ‘Judicial Independence in European Union Accessions: The Emergence of a European Basic Principle’, 52 German Yearbook of International Law (2009) p. 405; and Kosař, supra n. 100. See also Unger, R., What Should Legal Analysis Become (Verso 1998)Google Scholar at p. 72-73 and Waldron, J., ‘Dirty Little Secret’, 98 Colum. L. Rev. (1998) p. 510 CrossRefGoogle Scholar.

145 See D. Caramani, ‘Will vs. reason: the populist and technocratic forms of political representation and their critique to party government’, 111 Americal Political Science Review (2017) p. 54. See also Bickerton, C. and Accetti, C. Invernizzi, ‘Populism and Technocracy’, in Rovira, C. et al. (eds.), The Oxford Handbook of Populism (Oxford University Press 2017)Google Scholar; and Müller, supra n. 2, p. 97.

146 Caramani, supra n. 145.

147 Blokker, supra n. 84.

148 A. Sajó, Constitutional Sentiments (Yale University Press 2011).

149 Dufek, P. and Holzer, J., ‘Debating Democracy in East Central Europe: The Issues and their Origins’, in Holzer, J. and Mareš, M. (eds.), Challenges to Democracy in East Central Europe (Routledge 2016)Google Scholar p. 15 at p. 20ff.

150 For a more thorough characterisation of populism see infra nn. 152-155. See also L. Corso, ‘When anti-politics becomes political: what can the Italian Five Star Movement tell us about the relationship between populism and legality’, in this issue, and the sources cited therein.

151 See also the joint I-CONnect/Verfassungsblog mini-symposium on ‘Populism and constitutional courts’ (2018, 〈〉, visited 22 August 2019).

152 Urbinati, N., Democracy Disfigured: Opinion, Truth, and the People (Harvard University Press 2014)CrossRefGoogle Scholar; Mudde, C., ‘Europe’s Populist Surge: A Long Time in the Making’, 95 Foreign Affairs (2016) p. 25 Google Scholar; Müller, supra n. 2; Kriesi, H., ‘Revisiting the Populist Challenge’, 25 Czech Journal of Political Science (2018) p. 5 Google Scholar.

153 Pinelli, C., ‘The Populist Challenge to Constitutional Democracy’, 7 EuConst (2011) p. 5 Google Scholar.

154 Corrias, L., ‘Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and Constitutional Identity’, 12 EuConst (2016) p. 6 Google Scholar; and Blokker, P., ‘Populist Constitutionalism’, in de la Torre, C. (ed.), Routledge Handbook of Global Populism (Routledge 2018) p. 113 CrossRefGoogle Scholar.

155 Blokker, supra n. 8. See also Krygier, supra n. 8.

156 Jakab, A. and Sonnevend, P., ‘Continuity with Deficiencies: The New Fundamental Law of Hungary’, 9 EuConst (2013) p. 102 Google Scholar; Kovács, K. and Tóth, G., ‘Hungary’s Constitutional Transformation’, 7 EuConst (2011) p. 183 Google Scholar.

157 Halmai, supra n. 9; Landau, D., ‘Abusive Constitutionalism’, 47 University of California Davis Law Review (2013) p. 189 Google Scholar at p. 208-211; Tushnet, M., ‘Authoritarian Constitutionalism’, 100 Cornell Law Review (2015) p. 391 Google Scholar at p. 433-435; R. Uitz, ‘Can you tell when an illiberal democracy is in the making? An appeal to comparative constitutional scholarship from Hungary’, 13 ICON (2015) p. 279.

158 Ibid. See also Castillo-Ortiz, P., ‘The Illiberal Abuse of Constitutional Courts in Europe’, 15 EuConst (2019) p. 48 Google Scholar at p. 56-57.

159 Kosař and Šipulová, supra n. 125.

160 Ibid.

161 See Gyulaváriand, T. and Hős, N., ‘Retirement of Hungarian Judges, Age Discrimination and Judicial Independence: A Tale of Two Courts’, 42 Industrial Law Journal (2013) p. 289 CrossRefGoogle Scholar; and Belavusau, U., ‘On Age Discrimination and Beating Dead Dogs: Commission v. Hungary’, 50 CMLRev (2013) p. 1145 Google Scholar.

162 Chronowski, N. and Varju, M., ‘Two Eras of Hungarian Constitutionalism: From the Rule of Law to Rule by Law’, 8 Hague J Rule Law (2016) p. 227 CrossRefGoogle Scholar; Kosař, supra n. 100, p. 134.

163 Halmai, supra n. 9; Uitz, supra n. 157; and Castillo-Ortiz, supra n. 158.

164 See Vincze, A., ‘Hungary: Regulatory bodies in an illiberal democracy’, in Iancu, B. et al. (eds.), Governance and Constitutionalism: Law, Politics and Institutional Neutrality (Routledge 2018) p. 119 CrossRefGoogle Scholar; and Castillo-Ortiz, supra n. 158, at p. 65.

165 See Garlicki, L., ‘Disabling the Constitutional Court in Poland’, in Szmyt, A. and Banaczak, B. (eds.), Transformation of Law Systems in Central, Eastern and Southeastern Europe in 1989-2015 (Gdansk University Press 2016)Google Scholar p. 63; Koncewicz, T., ‘Of institutions, democracy, constitutional self-defence and the rule of law: The judgments of the Polish Constitutional Tribunal in Cases K 34/15, K 35/15 and beyond’, 53 CMLRev (2016) p. 1753 Google Scholar; and Sadurski, supra n. 4.

166 Ibid.

167 Ibid.

168 Ibid.

169 Ibid.

170 See E. Siedlecka, ‘Sędzia Andrzej Wróbel odchodzi z Trybunału Konstytucyjnego. PiS obsadzi kolejne miejsce’, Gazetta Wyborcza, 25 January 2017, 〈,75398,21289466,sedzia-andrzej-wrobel-odchodzi-z-trybunalu-konstytucyjnego.html?disableRedirects=true〉, visited 22 August 2019.

171 See Śledzińska-Simon, supra n. 123, especially p. 1847-1855; and Zoll and Wortham, supra n. 122, p. 896-898.

172 Ibid.

173 See Kosař, supra n. 100. For the role of court presidents in comparative perspective see Blisa, A. and Kosař, D., ‘Court Presidents: The Missing Piece in the Puzzle of Judicial Governance’, 19 German Law Journal (2018) p. 2031 CrossRefGoogle Scholar.

174 Zoll and Wortham, supra n. 122, p. 898-899.

175 In fact, Kaczyński killed two birds with one stone; by reducing the compulsory retirement age he got rid of not only Chief Justice Gersdorf, but also of approximately one third of the Supreme Court judges (M. Wiewióra, ‘The new Act on the Supreme Court in Poland’, Duel Amical, 27 February 2018, 〈〉, visited 19 August 2019).

176 Zoll and Wortham, supra n. 122, p. 894-896.

177 See ‘Where the law ends. The collapse of the rule of law in Poland – and what to do’, European Stability Initiative, 29 May 2018, Berlin – Warsaw, 〈〉, visited 19 August 2019.

178 ECJ, Order of the Vice-President of the Court in Case C-619/18 R, Commission v Poland.

179 See e.g. L. Pech and S. Platon, ‘The beginning of the end for Poland’s so-called “judicial reforms”? Some thoughts on the ECJ ruling in Commission v Poland (Independence of the Supreme Court case)’, EU Law Analysis, 8 July 2019.

180 For instance, the new law allowed him to dismiss all the boards of public-service broadcasters and vest their control with the Treasury Ministry. See Fomina, J. and Kucharczyk, J., ‘Populism and Protest in Poland’, 27 Journal of Democracy (2016) p. 58 CrossRefGoogle Scholar at p. 63.

181 See also Krygier, supra n. 8, p. 5.

182 See Venice Commission, ‘Slovak Republic – Opinion on questions relating to the appointment of judges, adopted by the Venice Commission at its 110th Plenary Session (Venice, 10-11 March 2017)’, CDL-AD(2017)001.

183 See ibid.

184 See e.g. M. Sliz, ‘Koalícia neschválila zmeny ústavného súdu. Odskočili od nej kotlebovci’,, 24 October 2018, 〈〉, visited 19 August 2019.

185 See V. Prušová and M Kern, ‘Fico kandiduje na Ústavný súd’, Dennik N, 7 January 2019, 〈〉, visited 19 August 2019.

186 His candidacy sheds new light on the October constitutional amendment bill – Fico apparently had a personal motive in passing this amendment as he intended to run for the office of constitutional justice and suspected that President Kiska would have never nominated him.

187 See T. Haughton et al., ‘Czech elections have become really volatile. This year was no exception’, Washington Post, 24 October 2017, 〈〉, visited 19 August 2019.

188 See e.g. J. Jandourek, ‘Babiš chce řídit stat jako firmu. To asi nepůjde, stát není firma’, Reflex on-line, 6 September 2013, 〈〉, visited 19 August 2019. For a scholarly analysis of Babiš’s entrepreneurial party see L. Kopeček, ‘I’m Paying, So I Decide – Czech ANO as an Extreme Form of a Business-Firm Party’, 30 East European Politics and Societies (2016) p. 725; Hloušek, V. and Kopeček, L., ‘Entrepreneurial Parties: A Basic Conceptual Framework’, 24 Czech Journal of Political Science (2017) p. 83 Google Scholar.

189 See e.g. R. Lyman, ‘The Trump-Like Figures Popping Up in Central Europe’, New York Times, 24 February 2017, 〈〉, visited 19 August 2019.

190 This change would seriously skew the electoral rules against smaller political parties. Viktor Orbán actually did the same in Hungary (see literature supra n. 3).

191 See Babiš, A., O čem sním, když spím: Vize 2035 pro Českou republiku, pro naše děti (Czech Print Center 2017)Google Scholar.

192 See O. Kundra, A. Procházková, ‘Mynář se pokusil ovlivnit vysoce postavené soudce’, Respekt, 6 January 2019, 〈〉, visited 19 August 2019; R. Kalenská, ‘Soudcova výpověď o Zemanově útoku na justici: Dával mi jasně najevo, jak máme rozhodnout, říká Baxa’, Deník N, 16 January 2019, 〈〉, visited 19 August 2019.

193 See H. de Goeij and M. Santora, ‘In the Largest Protests in Decades, Czech Demand Resignation of Prime Minister’, The New York Times, 23 June 2019, 〈〉, visited 19 August 2019.

194 In this issue, the relationship of populists to political institutions is analysed by Blokker, supra n. 8, p. 7; Suteu, supra n. 8, p. 10-11; and Krygier, supra n. 8, p. 22-23. See also the discussion on how populists use law for their own purposes in Corso, supra n. 150, p. 10-12.

195 For a good analysis of how they (ab)use constitutional courts once they take control of them, see Castillo-Ortiz, supra n. 158, p. 67-71.

196 Müller, supra n. 2.

197 See e.g. the Polish response (UNHRC, 6 June 2018, A/HRC/38/38/Add2, p. 4) to the Report of the Special Rapporteur on the independence of judges and lawyers on his mission to Poland (UNHRC, 5 April 2018, A/HRC/38/38/Add1).

198 On swords and shields see supra nn. 35-40.

199 See Castillo-Ortiz, supra n. 158.

200 See supra nn. 159-162 and 171-179.

201 A crackdown on independent agencies soon followed (see supra nn. 163-164 and 180). Note that given the fact that both Hungary and Poland are parliamentary systems, the executive enjoys the support of a parliamentary majority (and both Orbán and Kaczyński have secured pliant Presidents) and thus that the major battleground is between political branches and the judiciary, and not government-parliament relations.

202 See Castillo-Ortiz, supra n. 158, at p. 67-71.

203 See R. Uitz, ‘An Advanced Course in Court Packing: Hungary’s New Law on Administrative Courts’, Verfassungsblog, 2 January 2019, at 〈〉, visited 22 August 2019.

204 Zoll and Wortham, supra n. 122, p. 891-892.

205 Ibid. On the top of that, as was shown above, he enjoys great discretion in selecting court presidents.

206 See supra n. 76.

207 See supra nn. 77-78.

208 One recent example is the Venezuelan Supreme Court which, under orders by President Maduro, transferred to itself (‘or to the entity that the Court decides’) all the powers enjoyed by Parliament, officially ‘in order to preserve the country’s rule of law’. See J. Couso, ‘Venezuela’s Recent Constitutional Crisis: Lessons to be Learned from a Failed Judicial Coup D’etat’, Int’l Journal of Constitutional Law Blog, 12 April 2017, at 〈〉, visited 22 August 2019.

209 Even though many standards of the Pan-European template have been developed primarily within the Council Europe and only then adopted by the European Commission.

210 See Blokker, supra n. 84; and Czarnota, supra n. 122, at p. 54 and p. 62-63.

211 C. Mudde, ‘The Populist Zeitgeist’, 39 Government and Opposition (2004) p. 541 at p. 561.

212 The latter route would suggest that populists simply attack different components of the separation of powers at different phases of their development (see also the Venezuelan populist regime discussed supra n. 208).

213 See e.g. Czarnota, supra n. 122, at p. 58-59; see also example mentioned supra n. 122.

214 For a similar conclusion see K. Kovács and K.L. Scheppele, ‘The fragility of an independent judiciary: Lessons from Hungary and Poland – and the European Union’, 51 Communist and Post-Communist Studies (2018) p. 189. See also Krygier, supra n. 8.

215 See e.g. Czarnota, supra n. 122.

216 Dawson, J. and Hanley, S., ‘What’s Wrong with East-Central Europe? The Fading Mirage of the “Liberal Consensus”’, 27 Journal of Democracy (2016) p. 21 CrossRefGoogle Scholar.

217 See supra n. 44.

218 See e.g. The Editorial Board, ‘EU’s top court shows how to tackle autocrats’, Financial Times, 27 June 2019, 〈〉, visited 19 August 2019; Pech and Platon, supra n. 179.

219 See e.g. M. Bonelli and M. Claes, ‘Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses’, 14 EuConst (2018) p. 622; M. Krajewski, ‘Who is Afraid of the European Council? The Court of Justice’s Cautious Approach to the Independence of Domestic Judges: ECJ 25 July 2018, Case C-216/18 PPU, The Minister for Justice and Equality v LM’, 14 EuConst (2018) p. 792; and Pech, L. and Platon, S., ‘Judicial independence under threat: The Court of Justice to the rescue in the ASJP case’, 55 CMLRev (2018) p. 1827 Google Scholar.

220 Note that some scholars argue that the people had been deeply disappointed with the pre-populist governance framework, even if they disagreed with the subsequent actions of Central European populist leaders and thus that the return to the status quo ante would not solve the current problems; see e.g. Czarnota, supra n. 122, p. 62-63 (on Poland).