Populism: Imminent threats to judiciary, Constitutional Court and entire state apparatus  

In no epoch of history has humanity faced the shortage of leaders speaking on behalf of their own people. “That’s what the people want”, “That’s the people’s will”, “People themselves are to decide” etc. are phrases which sound ear-friendly indeed - but not in the least effective. It is against the backdrop such promises (to transfer power to the people) that populist leaders and groups very often emerge in an attempt to rephrase norms and principles enshrined in a country's constitution.

In a genuine democracy, people are sovereign indeed; that doesn't, however, imply the limitlessness of power or a court decision-making in a period or under the influence of public assemblies. The principle requiring that ″people decide everything themselves″ is a simple conception pursued by populist leaders and the society at large. A real democracy is not the power of the street but rather, the enforcement of the people's power within the scopes of, and in a manner prescribed by, the Constitution. Populism,  one way or another, directly contradicts the fundamental values of the Constitution. It is a serious challenge especially to modern constitutional courts. And hence the task of overcoming it has gained an increasing actuality now. To do that, it is important, first of all, to arrive at a broad public consensus towards the elaboration of fundamental constitutional values, the independence of the judiciary and effective mechanisms ensuring rule of law (not only for the government authorities but also for the people themselves).

Against the political forces’ high proneness to populist temptations, political figures knowingly pay the heaviest price for the ″cheapest populist decisions″. For the judiciary, the adoption of populist decisions would mean a total misrepresentation of its constitutional-legal functions and role. Hence the judiciary, as the only non-political branch of power, is simply obliged to counteract such a trend (even though the temptation of populist decision-making or consensus-based deals with governing political forces may be really great).

The independence of the judiciary implies independence not only from the other branches of government but also the public opinion in general. For courts, it doesn't practically matter not only what the political forces want them to do but also what decisions the society expects them to make. Hence the constitutional courts, as guarantors of the Constitution, are called to set a model in terms of teaching them how to resist the temptation of populist and naive statements (in an attempt to serve the public opinion). For courts under general conditions, it is indeed difficult to resist the temptation of populism. And it becomes far more difficult in a period of topsy-turvy political developments.

In such cases, constitutional courts normally face the dilemma of either resisting the temptations of time and the unprecedented public opinion (to secure a constitutional immunity applying also to the subordinate laws) or switching to a ″revolutionary ″ and ″demonstration-style″ justice. The second option may step up democracy strengthening in the short run;  in the long run, however, it threatens to crush constitutional justice – and rule of law in general. The Constitutional Court must not only be strong to stay immune to populist trends but also have the capacity to rule out further temptations. And that likelihood is great especially when the Constitutional Court considers disputes either containing a political component or applying to taxes, salaries, pension benefits, etc.

In conclusion, I would like to state again that the judiciary, as the only non-political branch of power – and the Constitutional Court in particular – must have the ability to resist populism in an effective manner to avoid endangering their own justice system and consequently also the state.