11.2 Competences of Constitutional/Supreme Courts

The competences of CC or SC circumscribe the instruments of control of the highest courts as supreme guardians of the constitution and may vary considerably not only from the perspective of concentrated or diffuse judicial review (see above sub.

Table 11.11 | | Incompatibilities with economic activities or liberal professions of judges

^aIncluding judges and professors

^bSee Starck & Weber (2007), p. 324

^cFor the preceding countries see Tables 11.10 and 11.11

As the author maintains the principal distinction between concentrated and diffuse review notwithstanding growing convergences between the two types, the following survey will first focus on the abstract control of norms of CC (versus legislator and/or the executive) and secondly the concrete or incidental review of norms by CCs and SCs (see Fig.

11.2.1 Abstract Control of Norms

Abstract review comprises the review or control of legislative and (or) executive norms “in abstracto”, independently from a pending case before any inferior or superior court. Norm comprises usually all forms of legislative of executive regu­latory activity.^[800] Abstract review of norms either “a posteriori” (after the entry into force of a norm) or “a priori” (before the norms enters into force) is a typical instrument of CC thus securing the constitutionality of norms after or before the normative act is issued. It requires a specified group of legitimate claimants, which normally represent other state or provincial organs (governments, Head of States or part of deputies). Thus, it also guarantees a certain protection for parliamentarian minorities which may also be achieved by individual complaints procedures against norms. As the repressive control of norms (a posteriori) is the predominant activity of CCs we will first consider this instrument and secondly the preventive control of norms (a priori).^[801]

Fig.

11.2.1.1 Retroactive Control ("a posteriori")

We differentiate between the object of control, the standing/legitimation and the effect of decisions, see Table 11.12.

11.2.1.2 Preventive Control ("a priori")

Next to the control “a posteriori” the instrument of preventive norm control (“a priori”) plays an important role. This is defined as a control of the norm by a Constitutional Court before the norm enters into force.

The preventive or a priori control finds its essential axiological argument that a legislative act reflects the will of the parliamentary majority and thus is founded on a democratic legitimation which should not be infringed by any judicial act after it has become valid. Furthermore, it has the practical advantage that the respective act can be declared null and void and must not be invalidated retroactively or alternatively with effects ex nunc or for the future that the rich instruments of the decision making of Constitutional Courts have experienced. Preventive controls may be directed against all normative regulations of an abstract-general character at all state levels as well as against international treaties or the respective bills of ratification.

The control a priori was/is primarily practised in France and correspondingly in francophone countries in Africa and some other countries which have been influenced in the constituent and law making procedures. See Table 11.13.

11.2.2 Diffuse and Centralized Judicial Review of Norms

11.2.2.1 Historical Context and Definition

The concrete control of norms has to be defined more clearly: the concentrated or centralized review has to be distinguished from the so-called “diffuse review of norms” that is typical for most Supreme Courts following the American (and English) example. Whereas in the latter case any court (inferior courts, county courts, district courts et al.) can examine the relevant norm and reject it on grounds

Table 11.12 | | Retroactive control by constitutional or supreme courts

Table 11.12 (continued)

Table 11.12 (continued)

^aBenchmark of control is either the BL or the higher federal law; object of control may be constitutional norms, treaty laws, budget laws, ordinances, by-laws; see Starck & Weber (2007), p. 46 (Generalbericht)

^bPrimarily by preventive control of norms of international treaties but also by repressive control; see Starck & Weber (2007), p. 337 ^cSee n. 36

^dArt. 188 No. 1 Polish Const since 1997

^eSince 1997 no restrictions concerning norms under emergency law of the previous communist government

^fA famous judgment in 1993 concerned the “Law on the illegality of the communist regime” which the CC declared constitutional as to the declaratory character of the respective introductory norms and denied the substantive legitimacy of the communist state

^gHungarian Constitutional Court 4/1997 (I. 22) AB, ABH1997, 41; generally there is an a-priory- control before the international treaty norm is promulgated; international law may not only be the object of control but also serve as benchmark of control for legal regulations: art. 24 par. 2 lit. f HungC

^hFor the extension of the objects of control

Table 11.13 | | Preventative control by constitutional or supreme courts

of unconstitutionality in the pending case in jurisdictions with a concentrated review of norms the courts may only examine and question the constitutionality of the relevant norm but not reject its applicability in the pending case. It has the obligation to refer the question of constitutionality to a Highest Court (“Constitutional Court”).

Intermediate or “mixed models” may exist where the constitution or the legislator have not clearly opted for one model alone but attempt to combine the advantages of both systems (e.g. Portugal; Switzerland; et al.). But this does not mean that the traditional distinction between concentrated and diffuse review (which dates back to a distinction made by Cappelletti^[802]) should easily be given up because it still describes the main distinction between two types of jurisdictional models from an empirical as well as from a theoretical perspective.

The decision for diffuse or concentrated review is not “a priori” logical and rather a consequence of a long historical tradition. Judicial review originated in the English courts (Bonham Case 1610 where Justice Coke argued that the relevant law was inapplicable violating the Common Law).^[803] However the primacy of the Common Law was not unchallenged in the following time as the constitutional evolution since the second half of the seventeenth century established the priority of the sovereignty of Parliament only bound by some fundamental laws (e.g. Magna Charta) which at least theoretically may be modified by Parliament.^[804] The doctrine of a higher law however was present in the North American Colonies where fundamental principles were enshrined in “fundamental orders” and “colonial charters” which however did not yet secure primacy over English parliamentary statutes. The decisive step in the evolution of diffuse review was taken when the founding fathers of the United States elaborated the constitution based on the will of the sovereign people.^[805] This is the main difference between the diffuse review in England and the US.^[806]

In contrast to the English common law tradition and the evolution of a judicial review in North America and countries operating under a common law system like some do in Asia^[807] the continental control of norms in Europe is based on the assumption that a Highest Court should adjudicate on the constitutionality of laws in a concentrated review with an obligatory preliminary procedure by an inferior court. The difference between the diffuse review of the American model and the centralized review of the “European” model hence does not lie in the recognition of the superior rank of the constitution which has to be guaranteed by a final court but in the mode of securing the primacy of the constitution. Although the first proposal may be found in the opinion of Sieyes during the French Revolution in 1795 proposing a “jury constitutionnaire ”^[808] the concentrated review was mainly influenced by the “Wiener Rechtsschule” (A. Merkl and H. Kelsen) asserting a “step order of the law” (“Stufenordnung”) with the constitution as “ norma superior”.^[809] This has not only influenced directly the Austrian constitution of 1920/1929 but also constitutions of the interwar period like e.g. Czechoslovakia or Spain. The triumph of the concentrated review however clearly commenced only after the second world war when the immediate post war constitutions like Italy or Germany adopted the model of concentrated judicial review (in different ways) and largely influenced the consti­tutional jurisdictions of post- fascist regimes like in Spain and Portugal and post­communist constitutions in Middle and Eastern Europe. This description is not restricted to the “concrete control” of norms but comprises also the abovementioned “abstract control” as two sides of the same medal.

In the following we will first consider the centralized (concentrated) concrete review of norms (constitutional courts), secondly “mixed” or “hybrid models” and thirdly the diffuse review (supreme courts)

11.2.2.2 Centralized Judicial Review

In Table 11.14 we differentiate between the nature of preliminary rulings—the subject and benchmark—and the scope of control.

11.2.2.3 Mixed Models

Mixed models intend to combine advantages and disadvantages of centralized review and decentralized review (“diffuse review”). These combine conditions and effects of decentralized review (any court may examine and reject a legal norm as unconstitutional being relevant for the decision) with a reduced concentrated review insofar as a third party (prosecutor, litigant party) can intervene and question the constitutionality of the relevant norm.

This objection or petition necessarily leads to the concentrated review by the Constitutional Court/Supreme Court which will rule on the constitutionality of the norm in the relevant case (“incidental review of constitutionality”). This has to be distinguished from the possibility of concentrated review which—like in France and other countries—limits the preliminary question to the highest courts; in effect it signifies a reduced decentralized review reserving the preliminary procedures to the latter courts.

Typical is the Portuguese and Brazilian model which endeavours to combine the American model of diffuse review with elements of European centralized review; in Switzerland there is an atypical review procedure.

In Portugal originally having a system of judicial review (constitution of 1911 under the influence of Brazil) exists a limited centralized review as the prosecutor must file an objection (“recurso”) if the question refers to an international treaty norm, a statutory norm or a decree (art. 280 par. 3 PortC), but also by a party having raised the question of constitutionality or legality of the relevant norm (art. 280 par. 4 PortC). This encompasses the case where a court rejects the applicability of the relevant norm as well as it assumes the applicability in the concrete case. The Portuguese model thus respects the traditional competences of courts for diffuse review and at the same time it concentrates the control of norms “on appeal” by third parties by the Constitutional Court.^[810]

Table 11.14 I I Concrete norm control

Table 11.14 (continued)

Table 11.14 (continued)

In Brazil traditionally adhering to a system of “diffuse judicial review” (constitu­tion of 1891) any court may examine and question the constitutionality of a law, treaty norm or local norm (art. 102 par. III BrazilC) but on “extraordinary appeal” (“recurso extraordinario”) it comes to the Supreme Court which is vested with the power of constitutional review.

In Switzerland the situation differs from the abovementioned countries: generally any court (and also administrative authorities) may exercise judicial review by questioning the constitutionality of a norm relevant in the case; however the court is not empowered to rule on the non-applicability “erga omnes” but can only annul the act of implementation (administrative act; judicial act) on request of any party (“accessorial scrutiny”).^[811] In this aspect any court is empowered to adjudicate as constitutional judge^[812] but the final word rests with the Federal Supreme Court (“Bundesgericht”).

11.2.2.4 Remarks

The centralized concrete review of norms is a typical instrument of constitutional courts worldwide. It is the more important when the constitution does not provide for an abstract control of norms or an individual complaints procedure (e.g. Italy); then it has to bear the essential burden of constitutional review. The statistical relevance therefore strongly depends on the respective instruments provided for in constitu­tional or other texts and cannot be appreciated without considering the entire context of competences attributed to the Constitutional or Supreme Courts. Generally speaking, if the constitution provided for an abstract review procedure with a wider circle of legitimated parties or even assigns some type of individual complaint procedure to the Court the practical role seems to be reduced but nevertheless rests important.

It is remarkable that some countries traditionally adhering to a system of judicial review have partly adapted a more concentrated review (e.g. Brazil or Portugal). In a system of preventive review against norms (like in France and Francophone countries) the concrete control additionally introduced in recent times allowing third parties to intervene is undoubtedly a strong argument to ameliorate the position of individuals versus the administration and the legislature.

The overall picture is even more complex if one regards the effects and impor­tance of individual complaints against derived acts of the executive based on assumed unconstitutional or illegal acts. The “incidental review” of administrative acts based on legal norms contrary to the constitution may also serve as a strong weapon against unconstitutional behaviour of legislatures and administration. It is not limited to systems of diffuse review; it can also complete the arsenal of concentrated review in many aspects like powerful jurisdictions (Germany; Spain; Portugal; Middle and Eastern European countries) illustrate.

11.2.2.5 Decentralized Judicial Review ("Diffuse Review”)

As already mentioned above the opposite model to centralized review is the system of diffuse review widely practiced in Common Law countries.^[813] Despite of certain modifications (see supra 3.3.3.4) the decentralized review empowers any court to review not only the legality of executive or judiciary acts but also “incidenter” the constitutionality of statutes and often of sublegal texts on which the former are based upon. Insofar administrative review is subject to constitutional diffuse review as well^[814] but the latter is not limited to governmental action.

As the principle of review is similar in the common law countries Table 11.15 concentrates on the following aspects:

Firstly, what is the subject of scrutiny by ordinary courts?

Secondly, what is the benchmark of control?

11.2.2.6 Remarks

Centralized review, diffuse review or hybrid models illustrate the great variety of constitutional review in the modern world. The choice for one or the other model largely depends on the own historical legal culture, the affinity to the common law or civil law system, external influences (“legal transplants”) and revolutionary overthrows. This signifies that a sole option for one or the other model does not a priori exist, but advantages and disadvantages should be weighed against each other. Undoubtedly in the recent past the concentrated or centralized review of the European continental type has gained importance and influenced many recent constitutions (e.g. in Asia) or reflects post-colonial influences like in the francophone states of Africa. Sometimes the choice for the type of constitutional review leads to hybrid models which endeavour to combine elements of both models in rather sophisticated constructs like e.g. in Brazil or Portugal. Whether this is more effective for the acceptance and strength of constitutional review is difficult to assess because it depends on several legal and extra-legal factors and needs a solid empirical basis which we cannot present here.

Table 11.15 | | Diffuse review of norms by constitutional or supreme court

Table 11.15 (continued)

Generally speaking, centralized or concrete review focuses on the scrutiny of legal and often of sublegal norms (like decrees or ordinances) but this applies as well to diffuse judicial review where the ordinary courts or higher courts may be empowered to examine executive norms at least indirectly when ruling on the judicial decisions of lower courts. The so-called “incidental review” performed in many jurisdictions secures an indirect scrutiny of normative acts on which the administrative or judicial decision is based upon. This is not limited however to systems of diffuse review but also is relevant for systems of concentrated review insofar as in the latter any court may examine the legality and constitutionality of an administrative act but is not permitted to annul the norm “erga omnes” or reject its applicability. The obligation to submit a preliminary question to a final instance therefore is inherent in the systems of concentrated review; whether this however leads to a quicker final decision on the constitutionality of the normative act once more depends on different factors like other forms of petitions, organization of the judicial power and so on.

The fear is not to overload the highest courts with decisions of inferior courts; it may even be limited to the highest courts of the judicial hierarchy serving as a filter of control (e.g. France).

11.2.3 Individual Complaints: Popular Complaints ("Actio Popularis”)

11.2.3.1 Overview

Generally, two types of complaints procedures are to be distinguished: individual complaints and popular complaints.

The difference is neither based on the subjects of control nor on the complainant as individual person but on the authority to sue (standing, legitimation).

Individual complaint procedures show a great variety of forms and “hybrid” models but the decisive difference lies in the legitimation: The complainant or petitioner must substantiate the potential infringement or violation of his own individual rights and not of anyone else’s rights.

In contrast the “actio popularis” enables anyone to allege a violation by an executive or normative act also on behalf of others. As the “actio popularis” comes close to an enlarged abstract control and furthermore has been reduced in several jurisdictions (at least in Europe) because of the negative experiences of the overloading of courts,541 the main example of individual complaints is the complaint where the petitioner has to prove his potential infringement.

Therefore, priority will be given in the following to the individual complaints' procedure (Verfassungsbeschwerde; recurso de amparo; petition et al.) which may be directed against normative acts—executive acts—judicial decisions.

A direct individual complaint against a legislative act comes close to an “actio popularis”: Constitutional laws and by-laws have mostly provided for certain restrictions regarding the standing before CC. Generally, they must show personal involvement or indirect violation by the norm itself. Therefore, more frequent is the complaint against the norm-executing act (normally an administrative act or an executive act of similar relevance) or against judicial decisions which are based on the norm allegedly violating the individual rights of the plaintiff/complainant. To provide a differentiated overall picture a distinction of individual complaints against norms (“direct complaint”) and the complaint against administrative or judicial decisions (“indirect or incidental complaint”) might be helpful;^{[815] [816] however, this would significantly complicate the entire overview.}

As the individual complaint procedures normally require the exhaustion of all legal remedies (“subsidiarity”) Table 11.16 is limited to the following aspects:

• subject of control (norm/implementing act)

• standing (legitimation)

• exemplary clauses and countries.

11.2.3.2 Remarks

Individual complaints procedures today are a substantial element of constitutional review and a strong instrument not only for protecting the human rights of the individual but additionally for safeguarding the constitutionality of laws and other normative acts.

The historical evolution may date back as far as to the “recurso de amparo” in the constitution of Yucatan (1847) and at the same time to the Verfassungsbeschwerde first guaranteed in the constitution of St. Paul’s Church in Frankfurt (1848) but gained real relevance in the post World War II Basic Law of Germany, later in Spain

Table 11.16 | I Subject of control and standing in individual constitutional complaints

Table 11.16 (continued)

Table 11.16 (continued)

^aSee Chang et al. (2014), p. 333

and Middle and Eastern European Countries. However, in Latin America constitutions the “writ of amparo” and similar instruments of human rights protec­tion played a continuous role of constitutional review lasting until the constitutional settings of today.

Even though the historical origin may be quite different and the practical efficacy differ it should not be overlooked that the individual complaint by citizens and often by legal persons belongs to a strong constitutional jurisdiction. The constitutional and legal texts may either enable a direct complaint against statutes or other normative acts on the central/federal and regional/subfederal level including com­munal acts or an indirect complaint/action against judicial decisions or administra­tive acts which are based on allegedly unconstitutional norms. If the latter case there should be a complaint /amparo procedure provided for against the final judicial decision which corresponds to the exhaustion of legal remedies, also known in international human rights law (ECHR; ACHR). After the exhaustion of the relevant remedies which normally ends at the Highest Court (Supreme Court) there should a direct constitutional complaint be possible.

The precondition is the direct violation of fundamental rights which may either originate in the administrative act, the judicial act and/or the relevant norm applica­ble in the case.

Whether the constitutional setting provides as well for a direct constitutional complaint against the relevant norm, depends on several factors which should be taken into account:

The burden of complaints and the overloading of courts; the percentage of individual complaints vis a vis other relevant instruments, e.g. incidenter review, but also the “pedagogical effect” for strengthening human rights. The risk of overloading the CC however may largely be mitigated by procedural restraints like direct and personal violation by the relevant norm and the personal damage which would occur if the plaintiff must wait until the exhaustion of all legal remedies (“irreparable damage”).

Also organisational measures like committees of three judges or single judges pre-examining the admissibility and the reasonableness of the complaint (“inadmis­sible” or “manifestly ill-founded”) today belong to the panoply of instruments safeguarding the effective functioning of the highest courts.^[817]

11.2.4 Conflict of Competences

11.2.4.1 Introduction

Litigation over disputes of conflict of competences is a classical instrument of constitutional review. It guarantees the distribution of powers either on a horizontal level or a vertical level and thus reinforces the separation of powers between central organs or between territorial entities in federal or regional systems. One may therefore argue that these disputes belong to the core of constitutional review as often it developed historically from litigation between territorial units, like e.g. in USA, Canada,^[818] India, Switzerland, Germany or more recently in Belgium.^[819] Also, the litigation between state organs—frequently constitutional organs—is an essential part of constitutional adjudication.^[820] The relevance of the specific litigation procedures may depend from other factors, like a priori or a posteriori review (abstract norm control), incidental review (concrete control) or even individual complaints if they comprise the potential violation of fundamental rights.

Table 11.17 differentiates between the horizontal and vertical conflicts and cites examples of countries without claiming any completeness.

11.2.4.2 Remarks

Litigation over conflict of competences is an essential element in systems of judicial and constitutional review. It should be assigned to the highest courts in the countries and find a solid basis in the constitutional texts.

The settlement of disputes between central organs of the state, especially between executive, legislative and judicial organs is of high importance for guaranteeing the separation of powers and institutional balance. The Supreme/Constitutional courts function as supreme arbiters in disputes over the respective competences on the horizontal level. The litigation may encompass overall disputes between constitu­tional organs as well as partial disputes between specific organs, e.g. delimitation of the executive and legislative competences in the norm setting sphere (legislative decrees) or between high jurisdictions on the central or federal state level.

Disputes between organs on the central and regional level should however be allocated to the vertical conflicts of competences which normally refer to disputes of competences between the various state levels (territorial conflicts). These may concern the delimitation of concurring competences, but also of exclusive competences of the central state or residuary powers of the regions, autonomous communities and local competences. Constitutional review in these cases may practically be substituted by other forms of control, especially the abstract review of norms “a posteriori” or “a priori” but should not be omitted in the list of competences of Supreme/Constitutional Courts. Especially federal states will super­vise and ensure the distribution of territorial competences (e.g. India, USA, Brazil, Germany, Switzerland and Russia) but it is also an important element in dispute solution of regionalized states (e.g. Italy and Spain).

11.2.5 Control of Elections, Mandates, Referenda

11.2.5.1 Overview

The review or supervision of election procedures to parliamentary chambers is a classical instrument of Constitutional Courts and Supreme Courts. It controls the legality/correctness of the election procedure and strengthens the legitimacy of periodical elections in parliamentary democracy. The review may either include the whole nomination procedure of candidates, the counting of votes and winning/ loss of mandates, but it can also be limited to the acquisition of the mandate. The prior control in the latter case may be assigned to the Parliament itself (committees of review of elections) but finally will be decided by the Highest Court. As Table 11.18 will illustrate there are many differentiations of the stage of review and the final statements by the Courts.

Table 11.17 | | Inter-organ and inter-territorial conflicts

Table 11.17 (continued)

Table 11.17 (continued)

^aSee Chang et al. (2014), p. 334

The review of the nomination/election of the Head of State comes close to the function of control of democratic elections of the President. It reinforces the legiti­macy of the democratic process in the election procedure. And lastly the supervision of referenda and popular initiatives on various state levels is of primordial impor­tance for the legitimacy of direct democracy often complementing the democratic process of parliamentary debate. It may also comprise various elements of review that depend on the role of direct or plebiscitary elements in constitutional law.

11.2.5.2 Remarks

The control of parliamentary election procedures is a typical element of competences attributed to the highest courts. The control of the nomination proce­dure of candidates may be assigned to special institutions or tribunals but the final decision on the acquisition or loss of mandates should be left to Supreme/Constitu- tional courts because it touches upon the legitimacy of the representative democracy. Special rules may be laid down in the respective organic or ordinary laws on the courts.

The supervision and control also encompass the election of the Head of State, at least in a system of direct elections and democratic legitimation of the state President (e.g. France or in francophone Africa^[821]). Therefore, it is generally left to the constitutional courts; it may start. in a lower instance and may permit an appeal to the highest court.

Finally, the control of referenda and popular voting pertains to the traditional instruments of supreme or constitutional courts. This may encompass the whole procedure from the initiative of state organs or by popular initiatives, refer to specific topics, e.g. constitutional amendments,^[822] accession to international organisation or territorial treaties. It may be reviewed on first instance by a “lower” court but leave on appeal should be granted to the Supreme Court (e.g. Ireland).

11.2.6 Protecting the Constitution

11.2.6.1 Overview

Traditionally constitutions of early nineteenth century in Europe have provided for instruments to safeguard the constitutional order against violations by the monarch who was still sacrosanct and immune against any impeachment. Therefore the impeachment was directed against the minister responsible for the misconduct (in Germany: “Ministeranklage”) which was the core of the so called

Table 11.18 | | Control of elections, mandates and referenda

Table 11.18 (continued)

“Staatsgerichtsbarkeit”.^[823] The primordial penal character of the impeachment later on was gradually substituted by the “constitutional” impeachment against the responsible minister and lost importance due to the parliamentary responsibility of the government. The impeachment against a republican Head of State who was not inviolable any more was first conceived in the impeachment clause of the United States constitution (art. 2 par. 1):^[824]

The historical origin of the modern impeachment may still be found today in more recent constitutions, e.g. in the pre-second world war constitution of Austria 1920/29 where an impeachment against the federal President, members of the government, minister presidents of the Lander (Landeshauptleute) is admissible as well as a criminal indictment before the Constitutional Court (VfGH)^[825] or in the post-war constitution of Italy (1947) where an impeachment against the President (art. 96 ItC) and an indictment against ministers because of criminal misbehaviour (art. 96 ItC). Generally speaking, the penal responsibility is adjudicated by High Courts or Supreme Courts and should not be assigned to a constitutional court. An atypical example of an impeachment is the impeachment against the President in France due to violation of his official duties before the “Haute Cour de Justice” where the Parliament convenes as a court of impeachment (art. 68 French constitution); the penal responsibility of members of Government for actions in the exercise of their functions however is attributed to the “Cour de la Republique” (art. 61-63 French constitution).

As the impeachment is dealt with in greater detail in Sect. 9.2 with all ramifications of the right of initiative, the procedures, the institutions and the potential outcome of decisions this overview limits itself to a more recent instrument of protecting the constitution: the prohibition of parties as anti-constitutional, which again is dealt with in greater detail in the Sect. 3.1.2.2. As far as discernible the German Basic Law first introduced a clause for empowering the constitutional court to decide upon the constitutionality of parties as manifestation of the “militant democracy”: democracy should fight against the foes of democracy. The latent tension between the democratic principle of the will of the people as “sovereign” and judicial intervention is evident but the example has led to several followers in Europe and other countries.

11.2.6.2 Remarks

Remarks to Table 11.19 The impeachment procedure is a necessary instrument for defending the constitution against unlawful or unconstitutional behaviour of the President or state ministers. It may in special cases include impeachment procedures against judges and should be left to the supreme courts or constitutional court. The comparative details are explained and discussed in Chap. 4 of Writing Constitutions.

As to the prohibition of political parties the constituent assemblies have so far been more reluctant to enshrine this instrument of a “militant democracy” but has gained support in some countries after the fall of communism in Middle and Eastern

Table 11.19 | | Prohibition of political parties by the constitutional or supreme court

^aSee Luchterhandt (2007), p. 347

Europe and found some followers also in Latin America and South East Asia. The essential criteria of non-democratic parties should be fixed in the constitution and regulated in more detail in a subconstitutional text. Although it had a limited importance in Germany where in the post war period only two political parties were declared unconstitutional (1952) the deterrent effect of the “sword of Damo­cles” should not be underestimated. The supervision and observance of potential unconstitutional parties and/or associations will be the logical consequence for collecting the material on different state levels.

In any way the instrument should be used cautiously and not be misused by autocratic regimes.