Local Governments in the System of Separation of Powers. The Executive Function in the Field of Local Public Affairs

• Author: Judit Siket
• Position: PhD, senior lecturer, University of Szeged, Faculty of Law and Political Sciences, Public Administrative Law Department, Hungary
• Pages: 126-142

126 JUDIT SIKET

PUBLIC LAW

Local Governments in the System of Separation of Powers. The

Executive Function in the Field of Local Public Affairs*

Judit Siket PhD, senior lecturer,

University of Szeged, Faculty of Law and Political Sciences,

Public Administrative Law Department, Hungary

Abstract

The paper is focused on the principle of separation of powers, especially examined the

role of local self-governments in the system of division of powers. It gives a brief

description on the dogmatic approach of the principle of powers based on the concept of

Montesquieu, and Benjamin Constant who emphasised the significance of local power.

The study demonstrates the effectiveness of principle of separation of powers and the

constitutional status of local self-governments in the Hungarian Fundamental Law.

According to the Fundamental Law, the essence of local governments is to manage public

affairs and to exercise public authority this is the reason why local governments exist.

The leading conception has changed, rejected the collective fundamental rights approach.

A separate section aims to describe the executive power of local self-governments, in

particular the functionality of local self-governments. A comparative part illustrates

changes of local task-system after the adoption of New Local-Government Act in 2011,

including both municipal and county level responsibilities, the strong centralization

process in the field of local governance. In conclusion, local self-governments’ role

significantly decreased in the field of providing public services and in exercising of local

public powers, functionality of local self-governments was substantially narrowed.

Keywords: separation of power, local self-governments, centralization. JEL

Classification: K23.

INTRODUCTION

The demand and effective implementation of the principle of separation of

powers is an essential requirement in the operation of constitutional legal state.

* This paper has been presented at the 5th Annual International Conference on Law and

Administrative Justice from an Interdisciplinary Perspective, 23rd-25th November 2018, Bucharest,

Romania.

Law Review  vol. X, issue 2, July-Decembre 2019, pp. 126-142

Local Governments in the System of Separation of Powers 127

Improvement related to content of the principle of separation of powers leaves

room for diverse interpretations for scholars in different stages of state

development process. Beliefs related to the principle of power reflect differing

approaches nowadays, as well.

The paper focuses on the functional interpretation of vertical separation of

power, analysis the role of local self-governments implementation of local

administration tasks and responsibilities, furthermore local public service

delivery, the scope of local public affairs, management methods of local public

administration. State philosophical perception is discussed only limited scope

necessary to highlight local self-governments’ status in the separation of powers.

For investigating the status of local and territorial self-governments in the

system of separation of powers the legal assay can provide a kind of basis,

because the separation of powers, as a value and idea of institutional control or

limitation is based on normativity (Sári, 1995.). First, the positive legal approach

of local-territorial self-governments’ tasks and responsibilities, thereby, definition

of their role in the system of separation of powers leads to the designation of the

role of local self-government and the presentation of major changes which have

recently occurred.

Studying the practice of the separation of powers doctrine supplementary to

the deliberation of the territorial, local self-governments’ responsibilities it is

necessary to discover the guarantees ensuring the autonomy and independence

in the exercising of their competences. The limits of the exercising competences

must comply with the requirement of legality. The democratic legal state ensures

the application of the effective judicial protection both in the process of local self-

governments’ legislation and the implementation of public administrative

functions, as well.

Furthermore, the possible demonstration of the effectiveness of vertical

separation of powers might be considered another approach, which is based on

the fundamental right conception. The right to local self-government supposes

the local level interpretation of the principle of sovereignty; the collective right

perception is discussed in a study together with the constitutional level changes

of the rules.

The article focuses the vertical interpretation of the principle of separation of

powers, it analyses the position of Hungarian local self-governments in the field

of regulatory powers.

CERTAIN ASPECTS OF TERRITORIAL SEPARATION OF POWERS

The emergence of separation of powers doctrine corresponded to the ideas of

the Enlightenment (Varga Zs., 2015.). Originally it was intended against the

absolute monarchy, aimed the control and restriction of the empire, and it is

128 JUDIT SIKET

broadly based on the concept of rule of law (Sári, 1995.) In the classical concepts of

the principle of separation of powers, established by Locke and Montesquieu, the

territorial aspect has not been respected. The privileges of the local power

connected to the Feudal system, in the age of Enlightenment the centralised state

organization and operation was idealized.

The principle of separation of power could be interpreted on one hand

horizontal way and on the other hand as a kind of vertical division of power.

Horizontal type of separation of power means the classical form: the legislative

power, executive and judicial powers by Montesquieu. The original theory of

Montesquieu on the doctrine of separation of power based on the following

principles, (1) the power is subordinated to law, (2) state organizations and state

functions are defined and distinguished as legislation, executive power,

judiciary, (3) differentiation of organizations and staffs of powers. (Sári, 1995.) In

the original theory of Montesquieu, the vertical type of separation of power did

not appear at all. For the first time local self-governments were considered

autonomous powers as a municipal, local power in works of Benjamin Constant.

Constant regarded municipals as the limitation of central public administration.

1. Dogmatic approach of territorial separation of power

The territorial dimension was identified as local, municipal power by

Benjamin Constant, in the 19th century. According to his view ‘[T]he supreme

authority is all citizens’ (Constant, 1997, p. 77), nevertheless it is not unrestricted,

and what is more, ‘it must be limited by appropriate restrictions, in order to

avoid the despotism’ (Constant 1997, p. 85). Constant distinguished the royalty,

the executive power, the persistent representative power, the power of

representation of the public opinion, and judicial power in political systems

(Constant, 1997.). Besides, Constant differentiated the three branches of power,

analysing the interrelation between constitutional and absolute monarchies,

recognised as independent branches of power the presidential power and the

municipal, local power, this latter may be considered as the constraint of the

central public administration. The municipal, local branch was separated on the

presumption of its own local interests and residents. Constant originated the

source of municipal, local power from the emotional and the volitional unity of

the locally residents (Constant, 1997.). According to his view, the recognition of

the local, municipal branch, the local power determined the constraints of the

central power’s potential activity, ‘until now the local authority was considered

as a dependent branch of the executive power: on the contrary, never has to

obstruct it, but does not have to depend on it also’ (Constant, 1862 p. 134.).

The doctrine of separation of powers is generally effective in the state

organization, if the organs might exercise control on activities of each other. The

Local Governments in the System of Separation of Powers 129

control mechanism should be general, and has a kind of counterbalance role, as

well (Veress, n.d., Csink, 2014.). On the basis of the effectiveness of separation of

powers doctrine, in modern states different levels might be distinguished by the

attitude of Petrétei: (1) horizontal, (2) temporal, (3) vertical, (4) constitutional, (5)

decisive and (6) social level (Petrétei, 2009.).

Vertical separation of powers in the widest sense is the relationship between

those organs, when an organization or body constrains or counterbalances the

function of another organ or body (e.g. state organs supervise the local

governments’ decisions). In the strict sense the vertical separation of powers

might operate if the organs, established on territorial basis have the same

legitimacy. However, in this latter case the people’s sovereignty is the key

consideration question, whether local sovereignty of the people is effective or

not.

Analysing types of vertical separation of powers might be a dual

interpretation, on the one hand the federal state organization, and furthermore,

on the other hand the system of local, territorial level self-government public

administration bodies (Csink, 2014., Sári, 1995., Szaniszló, 2018., Takács, 1998.). In

case of vertical separation of powers organizations at different levels are

exercising public power, providing counterbalance against the central power,

entirely. (Sári, 1995., Szaniszló, 2018.) The vertical form of separation of powers

might be interpreted as otherwise like (1) the right to local self-government,

including the division of labour at central, territorial and local levels (territorial

decentralization), (2) the functional decentralization, (3) the federal and (4)

international, supranational separation of powers (Petrétei 2009 pp. 169-170).

Since the principle of separation of powers and the principle of people’s

sovereignty are closely linked, the source of sovereignty could be contested in

case of local self-governments.

To explore the position of local self-governments in the system of powers the

normative, legal analysis of local self-governments’ competencies could serve as

a basis of the search. This type of survey might lead to the determination of the

role of local self-governments in the state governing system. It might

demonstrate the special status of local self-governments, in principle might be

accepted, that local self-governments are not autonomous independent branches,

but rather counter balancers, since these territorial and local organizations play a

major role as executive and regulatory bodies in the field of local public affairs.

The principle of separation of powers could be interpreted from another

view also, from functional and from institutional approaches. The institutional

approach is based on the principle of one power is only a single institution. On

the contrary, the functional approach is based on the competency of the

institutions; this latter interpretation can be useful for the analysis of local self-

governments functions (Varga Zs., 2015.).

130 JUDIT SIKET

The functional interpretation of the principle of separation of powers

deserves special attention in the analysing process. On the basis of the classical

threefold power (legislative, executive powers and judicial) the role of local self-

governments no longer can be considered referring to the institutional

interpretation (the only single power – one organization) in the field of legislation

and implementation (Varga Zs., 2015.).

The local self-governance is not just a fundamental right, but a kind of

sovereignty also. As it was mentioned, that the source and existence, furthermore

the interpretation of local sovereignty is a controversial matter. However, it

might be concluded, that local self-governance is the achievement of the self-

restraint of the sovereign (Cservák, 2002.).

In addition, it is also essential to explore the elements of guarantee which

ensure the independence, autonomy of local self-governments in the exercise of

powers. The limits of exercising powers shall meet with the requirement of

legality; the democratic constitutional state must ensure the enforcement of right

protection also in the course of executive-administrative functions.

2. Territorial separation of powers from the historical aspect in Hungary

Different forms of territorial separation of power were established during the

historical development of the doctrine. Territorial units with autonomy – like

nobiliary counties, towns with special rights granted by the king, cities and other

territorial-local units like districts, settlements – had huge role in regulation of

local social relations, in management of local public affairs, therefore they were to

be regarded parties of the system of separation of powers. Especially, the

regulative power and executive role of nobiliary counties are worth enshrining;

hence they were empowered for local legislation and the implementation of

central regulation, exercising the right to vis inertiae.

The majority of the listed territorial, local administrative units performed

besides the executive and legislative tasks the judicial function in their own

territory as well. These territorial units were entitled to exercise the right to send

legate to the Parliament, which considered a form of participation in the system

of separation of power. Legates had binding mandates; thereby the territorial

autonomous units had the right to propose. Nevertheless legates were not

delegated directly by the residents of the territorial units, but they were

delegated in the age of the feudal estates by the feudal territorial assemblies and

the councils of the certain cities. The petition right of the nobiliary counties

belonged also to the territorial separation of power directed to the king, the

central government and to the Parliament, containing such kind of appoint of

view or petition and protestation (Kállay, 1998.).

Local Governments in the System of Separation of Powers 131

The nobiliary counties were the most important protectors of the Hungarian

historical Constitution; their political role was a vital question at the end of the

19th century. The legal status of the territorial and local self-governments,

furthermore the establishment of the relationship between the Government and

territorial and local self-governments was arranged at the beginning of 1870s and

in 1886, the municipal law1 determined for a long time the legal status and the

role in the separation of powers’ system of territorial and local self-governments.

Local self-governments were important organs of the transmission of state public

administration responsibilities beyond the exercising right to local self-

government. The municipal law established a centralized public administrative

system and the latter regulation strengthened further these tendencies.

The basic features of local self-government system created by the end of 19th

century barely changed until the middle of the 20th century. After then the soviet-

type regime eliminated the local self-government system and the separation of

powers doctrine had no meaning according to the self-government system.

As result of the regime changes, the collapse of the soviet-type system, the

local and territorial self-government have also been given a more important role

in the administration of local public affairs, in provision of public services

furthermore in performing as local actors of certain state responsibilities.

According to the view of Soós and Kákai ‘Hungary … has failed to facilitate the

so-called devolutionary processes, which would have granted considerable right,

specified in the constitution, to subnational levels within the unitary structure’

(Soós and Kákai, 2011, p. 532).

THE STATE ORGANIZATION GUARANTEES OF THE SEPARATION

OF POWERS

In this chapter the provision of the Hungarian Fundamental Law is

demonstrated on the doctrine of separation of powers on the one hand, and on

the other hand it deals with the interpretation of the doctrine briefly, discusses

the content of the principle of separation of powers in the light of the decisions of

Hungarian Constitutional Court.

According to the Fundamental Law of Hungary the State shall function

based on the principle of separation of powers.2 The source of public authority

shall be the people.3 Sovereignty of the people goes alongside the separation of

powers. The practical effectiveness of the doctrine is ensured by the precise and

1 Act XLII of 1870 on the Arrangement of Public Municipal Authorities, Act XVIII. of 1871 on

the Arrangement of Municipalities, Act XXI of 1886 on Public Municipal Authorities, Act XXII of

1886 on Municipalities.

2 Hungarian Fundamental Law Art. C, par. (1).

3 Hungarian Fundamental Law Art. B, par. (3).

132 JUDIT SIKET

exclusive definition of competences of state bodies (Varga Zs., 2013.). The former

Constitution of Hungary4 did not contain explicitly the doctrine of separation of

powers, but now, the Fundamental Law of Hungary expressis verbis includes the

provision on the doctrine of separation of powers.

Effectiveness of the doctrine was at the centre in the case law of the

Hungarian Constitutional Court several times, generally in the sense of a main

part of the principle of rule of law. The Constitutional Court, in an early decision

after the transition, interpreted the doctrine of the separation of power as a

fundamental requirement of the effectiveness of the principle of rule of law. The

Constitutional Court determined, that ‘one of the fundamental demand of the

effectiveness of rule of law is that organs entitled for exercising public power,

operates within the organizational framework and according to the procedural

defined by law, within certain limits which must be available for the citizens and

ruled predictable way’.5 The effectiveness of the doctrine in the operation of state

organizations was evaluated by the Constitutional Court as it follows:

‘Constitutional provisions, ruling on the responsibilities and competences of state

organs (branches of powers), legislation concern relationships among the state

organs (organizational and procedural guarantees), furthermore constitutional

rules of conflict of interests evidenced the effectiveness.’6

Analyzing the decisions of the Hungarian Constitutional Court, as a

conclusion might be drawn, that interpreting the doctrine of separation of

powers, the Court should adopt the classical, horizontal form of it, and the

functional interpretation is mandatory, because the constitutional organizations

are independent. (Varga Zs., 2013.). It should be added, that the Constitutional

Court recognised as an independent power of the President of the Republic of

Hungary, because the President is an independent, outside person from the

aspect of branches of powers.7. By the attitude of Varga Zs. the interpretation of

Constant is applied (Varga Zs., 2015.).

CONSTITUTIONAL STATUS OF LOCAL SELF-GOVERNMENTS

As it was analysed earlier, beyond the classical horizontal form of the

doctrine of separation of powers, as a result of the expansion of administrative

function, the vertical form of separation of powers also have been given high

priority. It might be interpreted in unitary states, like in Hungary as a form of

territorial decentralization, operation of territorial, local self-governments. In

circumstances where vertical form of separation of powers is functioning,

4 Act XX of 1949 on the Constitution of Hungarian Republic.

5 56/1991 (11.08.) CC ABH 1991. pp. 454-456.

6 2/2002(01.25.) CC ABH 2002. pp. 50-51.

7 48/1991 (09.26) CC ABH 1991. pp. 217-246.

Local Governments in the System of Separation of Powers 133

organizations at different levels are exercising the public power, as opposite the

central power, counterbalancing it (Csink, 2014.). The vertical division of

government power is simply a historically proven, but at least accepted public

interest (Balázs, 2012.).

Noteworthy one of the positions on the subject, pursuant to which the

independent and entire state function might not be assigned to the territorial

form of separation of powers, and therefore the local self-governments could not

be set against none of the classical horizontal forms, and cannot form a

counterbalance neither (Takács, 1993, 1998.). This point of view is open to doubt

in two respects. On one hand the scope of local public affairs is not considered as

dominant factor or local power, furthermore the performing of local public

affairs should not qualify as indifferent activity from the aspect of the state,

especially in decentralized state system. The main content of the local public

affair is the local legislation and administration, provision of local public services,

economic development, and might be the direction of local political relations.

(Pálné 2008 p. 50.) These components have considerable significance for the state.

On the other hand the local sovereignty is a problematic issue; even so the source

of sovereignty is derived from the people. The unity of the sovereignty does not

exclude either entirely the local interpretation, because the effectiveness of

decentralization also supposes the sovereignty at local level, at least indirectly,

derived from the state.

Vertical separation of power is an essential issue regarding the connection

between local self-governments and the State in Hungary, especially from view

of counterbalance role of local self-governments. The real question therefore is,

whether local authorities could play such a balancing role, in the changed

constitutional and legal environment, after 2012. Various points of views are

known on the effectiveness of the vertical separation of powers. According to one

aspect, the principle of separation of power does apply to some extent within the

local self-governments as well. (Varga Zs., 2013.). Another approach would stress

that local self-governments are not based on people’s sovereignty and therefore

vertical separation of powers is not effective (Csink, 2014.). In line with this view

the effectiveness of the doctrine of separation of powers depends on the source of

sovereignty.

According to the provision of former Local Governments Act,8 local

government implements the principle of the sovereignty of the people at local

level. Local governments shall enforce the principle of the sovereignty of the

people and, in public affairs, shall express and enforce the public will in a

manner both democratic and open.9 Local self-governments possessed

8 Act LXV of 1990 on Local Self-Governments.

9 Act LXV of 1990 on Local Governments art. 2. par. (1).

134 JUDIT SIKET

sovereignty in political and legal sense also (Petrétei, 2009.). The new Local

Government Act,10 adopted in 2011 by the Hungarian Parliament, does not

contain reference to the principle of sovereignty, at all.

According to the Hungarian Fundamental Law, the essence of local self-

governments is to manage public affairs and to exercise public authority,11 since

this is the reason why local governments shall exist.

The leading conception of the Hungarian Fundamental Law is different

compared with the former Constitution. The Fundamental Law focuses on the

management of local public affairs and on the exercise of local public powers,

instead of fundamental collective rights approach and of the legal protection

against the Government and the central public administration. Practically, local

public affairs mean the mandatory duties and powers of local governments; the

Fundamental Law does not regulate these public powers. In accordance with the

new local self-government regulation it might be generally considered that the

role of local self-government in the field of local public services and the

exercising of local public power, considerably decreased.

EXECUTIVE COMPETENCE OF LOCAL SELF-GOVERNMENTS IN

GENERAL

As a result of the enhancement of public tasks, with regard to development

of welfare states, local self-governments’ public responsibilities widened, as well.

Very significant improvements have been made to the local self-governments

system in Europe over the last decades, exercising their public power functions

were affected by the abovementioned horizontal and vertical arrangements of

powers. (Soós, 1998 p. 65) The European integration and the globalization have a

strong impact on the function and democratic legitimacy of local self-

governments. Several attempts have been made to achieve the economies of

scale, these measurements turned on one hand territorial reforms (Finland,

Denmark, Greek), on the other hand functional changes. An example of these

reforms is the rationalization of service provision, especially in the field of

education, health care and social care. The outsourcing method of local public

services has not become widespread; mainly the Anglo-Saxon states used this

opportunity to achieve cost savings. The system of tasks performed by local

governments plays a significant role in the operation of individual states.

Different systematization might be formed in the field of local self-

governments tasks. As is widely known, clearly distinguishable the monist and

the dualistic system, in the previous system the tasks performed by local self-

10 Act CLXXXIX of 2011 on Local Self-Governments of Hungary.

11 Hungarian Fundamental Law art. 34. par. (1).

Local Governments in the System of Separation of Powers 135

governments are not distinguished on the basis of local public affairs and the

state-delegated competences. On the contrary, in the dualistic system the local

public affairs and the state-delegated competences are clearly separated. In this

latter system, applied in Hungary also, in the field of performing local public

tasks, the state influence is limited, according to the provisions of the European

Charter of Local Self-Government only the legal supervision emergence. Another

aspect, what might be used to the systematization of local self-government tasks

is the mandatory character of the performing. On this basis there might be

differentiated mandatory and voluntary tasks as well; this system is applied in

continental states. These types of mandatory tasks are determined by the state

law, the framework and requirements of performing these tasks are determined

by legislation. The freedom of choice of local self-governments is wide ranged in

the method of organizing and managing the local public issues. The mandatory

tasks of local self-governments may vary according to different levels of local

self-governments. (Hoffman 2011) In Hungary the local self-government act

contains provisions on differentiated competence delegation as well. The basis of

the delegation is the number of population of municipalities, the administrative

area of municipality and economic performance.12 The delegated state issues

generally are not local public affairs; therefore the scope for intervention is

broader for the state and state organization. In these matters the state

organization might exercise not only legal, but professional supervision. It

should be enshrined, that not only the classical local self-governments task, but

the mayors’, or chief executives’ delegated responsibilities might be scrutinized

as well. These organs of local self-governments deserve attention from the aspect

of separation of powers within the local self-governments.

The separation of powers doctrine might be applied within the local self-

governments structure, according to view of Varga Zs., in ‘some extent’. (Varga

Zs., 2013 p. 4) This part of the article briefly outlines the inner structure of the

Hungarian local self-governments and tries to demonstrate whether the

separation of powers doctrine has effectiveness.

Despite of the fact that the Hungarian local self-government system

established at two levels, municipal and territorial level, there is no hierarchical

relationship, these local governments are legally equal. In the classical sense, the

separation of powers in this relationship, between local self-governments, shall

not be interpreted.

The main organizations of the local self-governments are the representative

body, the mayor and the chief executive. Representative body is entitled to

exercise responsibilities of the local self-government, the mandatory tasks of local

self-government are performed by the representative body, and only

12 Act CLXXXIX of 2011 on Local Self-Governments of Hungary art. 11. par (2).

136 JUDIT SIKET

exceptionally the mayor can exercise these competences. The mayor and the chief

executive are entitled by legislation to exercise state administrative tasks, in this

case there is no hierarchical relationship between the representative bodies and

the competent authorities like the mayor or chief executive. In these competences

the mayor and the chief executive exercise tasks on their own discretion, may not

receive any instructions from the representative body. Where the mayor or the

chief executive shall perform the functions assigned to them by the regulation,

the doctrine of separation of powers is effective within the organs of local self-

government.

As regards to the separation of powers, the administrative, legal supervision

system is essential. The Hungarian local self-government supervision system has

special characteristic features; however administrative supervision over the

decisions became stricter after the adoption of new local self-government act,

although remained posterior control mechanism. Legal toolkit of administrative

supervision has become more diverse; however it does not cover powerful

intervention tools in order to interfere the prevailing of unlawful legislation and

provisions. The most powerful monitoring tool is unique in Europe: the

replacement of local self-government decision under an appropriate judicial

control over its enforcement.

THE EXECUTIVE TASK-SYSTEM BEFORE AND AFTER 2011 IN

HUNGARY

The purpose of this part of the article is to highlight the main phenomena

and key trends which determined the transformation process of responsibilities

and functions of Hungarian local self-government system in last few years. First

of all, it is necessary to lay down that Hungarian law system belongs to the

continental law, from this fact, two conclusions can be drawn: the responsibilities

of local self-governments based on general competence concept, and the dual

system of local governments’ tasks is prevailing.

According to the Hungarian Fundamental Law, there are two means of

administering local public affairs: local governments can issue decrees and make

resolutions.13 They make their decisions independently, without previous or

posterior assent of any other organisation.

The representative body of local self-government has relatively huge local

competence in the implementation of local public affairs; nevertheless, the New

Local Government Act has limited this type of autonomy. It must be highlighted

that the functionality of local self-governments’ responsibilities was basically

13 Hungarian Fundamental Law art. 32. par. (1), Act CLXXXIX of 2011 on the Local Self-

Government of Hungary art. 48. par. (1)

Local Governments in the System of Separation of Powers 137

changed provided by the new local governmental regulation. The expansion of

the state in the provision of local public services had a negative effect on local

public affairs and reduced the possibilities for regulation local social relations. A

crucial element of municipal autonomy is what tasks are performed through the

local self-government system.

One of the highlighted elements of local self-government autonomy is the

scope of implementation of local public tasks. The approach of local

responsibilities might be, that the local self-government tasks are the subject of

constitutionally protected independence, nevertheless, local self-governments

have autonomy as to manage local public affairs. The elements of autonomy are

worth to analyse to determine those limits which influence the competences of

municipalities in the field of providing local public services, or in the

implementation process of public affairs.

Due to the statutory legislation, functionality of local self-governments is

defined by the financial resources that are available for implementation of public

tasks. So, there is close connection between functionality and financial, economic

autonomy of municipalities. The analysis of available financial resources is not

subject of today’s presentation, but it should be highlighted, that insufficient

sources, lack of funding could lead to socialization of local public tasks, shrinking

of the content of local public affairs.

Hungarian municipalities used to be local governments with a wide range of

responsibilities in public service provision, but now they are not. Originally

municipalities were given responsibility for quite a lot of services in 1990. Then a

radical turn started in 2010–2011 which resulted not only structural changes, but

allocation of functions, as well. The system has become centralised. The national

government started to take ownership of utility companies, at the same time

provision of human services became administered by the state through newly

established nationwide institutions.

The right to organise bodies for the implementation of local public services

has been strongly constrained by the legislator. The central legislation reduced

the decision-making power of local government representative bodies, in the

field of local public services and managing public affairs, typically administrative

action, it means that regulation determine the content of local decisions.

All along, performing of public tasks characterized by strict regulation, the

provision of service requirements, strengthening the control and from the side of

local self-governments there is a decreasing margin for local discretion.

The process of centralization is summarized in the table below across several

illustrative examples in the case of municipalities.

138 JUDIT SIKET

Municipalities’ competences

Until 2012 After 2012 Direction of changes

wastewater treatment and

water supply

wastewater treatment

and water supply

the form defined by

law

waste management, waste

disposal

waste management,

waste disposal

fixing and collecting of

charges - State

public hygiene and social

welfare

public hygiene and basic

level social welfare

narrowed – State

primary education only nursery school narrowed – State

local development local development unchanged

fire protection - State

minority rights protection minority rights

protection

unchanged

Figure 1. Changes of the task of municipalities (edited by the author)

Outstanding changes might be observed in the case of the county self-

governments’ responsibilities, as illustrated in the following table.

Counties competences

Until 2012 After 2012 Direction of changes

health and social

institutional services

- State

specialised education

services

- State

territorial development territorial development centralized financial

sources

spatial planning spatial planning unchanged

environmental protection - municipalities and State

promotion of tourism - State

Figure 2. Changes of the task of municipalities (edited by the author)

Public education, except for pre-school education is excluded from local

public affairs.14 Changes were occurred in the field of cultural services also: the

maintenance of museums was delegated from the county governments to

settlements. The same procedure was in the case of public libraries.15 The

14 Act CXC of 2011 on National Education.

15 Act CXL of 1997 on Museums, Services of Public Libraries and Public Education.

Local Governments in the System of Separation of Powers 139

archives were nationalized.16 The social and health care institutions were

socialized,17 except for primary care.

The municipal services are obligatory tasks of the local governments, but the

statutory legislation may regulate the requirement of majority state or local

government property in corporations, which provide certain public services.18

This is the situation e.g. in the field of healthy drinking water service, water

drainage or waste disposal. There is another important change: local government

does not have empowerment to fix the charges of special services (e.g. waste

disposal).19

In addition, approaching the executive power from another view, it is

noteworthy to mention the performing of state administrative function as well.

One of the most important bodies at local territorial level performed state

administration tasks was the notary, as a leader of mayor’s office. From 1st of

January 2013 the district offices were established,20 and the local state

administration tasks were transferred to these offices, instead of the bodies of

local self-governments. The principle of subsidiarity would be harmed as a result

of this strong centralization process.

CONCLUDING REMARKS

In sum, analysing the doctrine of separation of powers should be

established, that the democratic, constitutional state operation is based on this

principle. Examining the different forms and interpretation of the doctrine, the

vertical separation of power is also effective in unitary states as well, as a form of

decentralization. The doctrine of separation of powers goes alongside with the

sovereignty of the people and in the vertical form of separation of powers

correlates to the right to local self-government. Local self-governments should

exercise legislative and executive functions, thus they constitutes a substantial

part of government power.

Investigation of the Hungarian case first it can be concluded that the state is

functioning based on the separation of powers. Before 2012 the fundamental

right approach served as the basis of local self-government system, nowadays the

Fundamental Law of Hungary clearly states that local self-governments are the

part of state structures, became administrative units, as organs of state executive

powers.

16 Act LXVI of 1995 on Public Files, Archives and Protection of Private Archives.

17 Act CLIV of 1997 on Health Care and Act III of 1993 on Social Care and Social

Administration.

18 Act XLI of 2012 on Passenger Transport Services, Act LVII of 1995 on Water Management.

19 Act CLXXXV of 2012 on Waste.

20 Act XCIII of 2012 on the Establishment of District Offices and Modification of Related Acts.

140 JUDIT SIKET

Under the former Local Self-Government Act local self-governments

implemented the sovereignty of people; nowadays the new Local Government

Act does not contain any clear indication to this principle. According to the

provisions of Hungarian Fundamental Law, local self-governments in connection

with local public affairs shall act, within the framework of law.

By comparing and studying of provisions of Fundamental Law and the Local

Government Act, after 2010 due to the launch of a powerful centralization

process, great changes have been seen taken place, and have influenced the most

important elements of local government autonomy on local public affairs. In

sum, examined the issue of local public affairs, the organizational autonomy, the

regulatory and functional autonomy it can be concluded, that the essence of local

public affair as result of centralization has significantly changed, and the

regulatory and functional autonomy has also dwindled.

Having regard to fact, that local self-governments’ role significantly

decreased in the field of providing public services and in exercising of local

public powers. Therefore, the executive function in implementation of

parliamentary acts is one of the most important functions of local self-

governments. Several examples are demonstrated, that the competences of local

self-governments were narrowed. It is particularly visible if the functions of

county government and the notaries of municipalities are analysed, because in

the case of counties it should be recognized the enumerative power transfer

instead of the general competences and in the case of notaries’ functions it is also

justified that the dual task-system is also narrowed.

In sum, in Hungary there should not be identified therefore single local

autonomous power in the field of local governance, but the counterbalance role is

also highly doubtful.

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142 JUDIT SIKET

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