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

Abstract

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