In the representative democracy Parliament should play a role of delegated power (using the paradigm of liberal democracy). However, in certain circumstances Parliament tends to overstep its competences. To prevent such a situation independent and impartial arbiter is needed. Constitutional court plays usually such a role. The court should be a kind of constraint on political brunch of government. If constitutional court is captured it fails to act as neutral arbiter. The court becomes a servant of political will – a kind of addendum to unconstrained Parliament. From systemic point of view constitutional court become a safeguard of ill-functioning system (eg illiberal democracy).
Constitutional court plays crucial role in the process of illiberal system consolidation. In the analysis, the Polish Constitutional Tribunal (CT) is used as an exemplification of such a role. The Tribunal has been taken over by newly established majority in 2015 general election. After the capture, the CT started to confirm unconstitutional actions of the unconstrained majority. Additionally, the CT delivers a new interpretation of the constitution. Such new interpretation enables transformation of the system towards illiberal democracy. In result, constitutional judges become servants of political will rather than a constrain on the Parliament and a guarantor of human rights. Such a change of the Constitutional Tribunal's goal hinders systemic re-transformation and provides stabilization of illiberal democracy. Is the CT only the servant or more a politically active actor?
The illiberal Hungarian constitutionalism keeps the contours of constitutional democracy, but it selectively imbues it with content. It does not deny the need for an independent judiciary but, by addressing genuine structural issues, it customizes judicial independence. The “independence of the judiciary” means independence from the supranational community, NGOs, the opposition, and it serves the preservation of the homogeneity and constitutional identity of Hungary. The illiberal independence is shaped by constitutional and ordinary legislation. Additionally, informal methods of customizing the judiciary have a chilling effect on more experienced judges and are apt to corrupt the integrity of the younger judges. The legal framework is relatively easy to correct, provided that political and social preconditions exist, which might not be the case in Hungary. It would be much more difficult to change the attitude of the younger judges who have been socialized in the illiberal system.
Romania’s fight against corruption was in spotlight since the country’s accession negotiations to the European Union have begun. With the creation of specialized institutions to monitor and persecute corruption under the Cooperation and Verification Mechanism the aim was to slowly strengthen the judicial system thus protecting it from political interference in a country that is considered to have the highest level of corruption in the EU. The reform propositions by the Ministry of Justice sparked harsh debates between the judiciary and the political bodies, and international actors such as the European Commission expressed its concerns whether the amendments threaten the progress made by the country. Moreover, the dispute over the competences regarding the recall of the head of the National Anticorruption Directorate underline the tension between institutions based on party membership. In this fragile situation judiciary has critical controlling role where independency can be the key.