Constitutional Changes in Populist Times

Abstract

The article examines the impacts of populist government in Hungary on constitutional law since 2010. The criterion of the analysis is whether the comprehensive and radical changes that took place during this time have been characterized by the distinctive traits, ambitions and values that the scholarship attributes to populism and ‘populist constitutionalism’, above all anti-elitism, anti-institutionalism, anti-pluralism, the emphasis on popular sovereignty and direct democracy, and an instrumental conception of law. For this purpose, it examines the major changes in the constitutional rules and practice of sovereignty issues, the system of separation of powers, and fundamental rights. The article consists of four parts. In the first chapter, sovereignty issues are discussed including the changing approach of constituent power, constitutional identity, and the interpretation of sovereignty through an analysis of the 2011 Fundamental Law and its eight amendments. The study then reviews the changes in the system of separation of powers, that is, the transformation of the legal status and operational practices of the most important public law institutions. The next chapter provides a qualitative analysis of the situation of fundamental rights, in particular the trends in the renewed regulation of constitutional liberties and political freedoms. In addition, this part gives an assessment of the current state of institutional protection of constitutional rights. Finally, the last chapter seeks to answer the question of how the cumulative effects of these changes can be assessed; whether Hungary follows a new, specific path of constitutional development, or the constitutional changes can be interpreted within the framework of the constitutional democracy formed after the 1989/90 regime change.