Institutional Position and Composition of Constitutional Courts
When analysing the principles and standards adopted by the Commission in the field, it must be kept in mind that they are the results of an elaboration of the Kelsenian model in light of the choices of the constitutions and the practices concerning constitutional jurisdiction adopted by the European democracies after the end of World War II.
Moreover, these results deserve special attention insofar as they are accepted by the new liberal constitutional democracies in drafting their legislation on the matter as a follow-up to the choices made by the Commission in its consultative and monitoring activities. Therefore, Opinions and Reports of the Commission concur with the development of the internationalisation of national constitutional law with respect to constitutional justice.[277] They provide a clear picture of the status of constitutional jurisdiction in Europe, at least insofar as conflicts in recent times arose between some states and the European authorities with regard to the states' compliance with the guidelines of the Commission in the matter. This is why, in studying constitutional justice, we have to take into consideration the possibility of conflicts and tensions between the constitutional courts and the other branches of the state in the internal national legal systems.The basic principle of the guidelines of the Commission is that constitutional courts should be ‘specific, permanent and independent judicial bodies’. This is because their task is the prevention of the arbitrariness of the authorities, and their interpretations of the constitution have to be respected in that the other authorities shall recognise the supremacy of the document[278] and not amend it. It is important to note that the Opinions were adopted in respect of Ukraine. Ukraine is an example of a still very problematic transition from communism to constitutional democracy, with significant problems concerning, on the one side, the exigency of overcoming the legacy of the unity of power, which was typical of the previous regime, and on the other side, the establishment of a coherent system for the
separation of powers.
Moreover, when the constitutional jurisdiction is adopted, its continuity has to be preserved even in cases that would require the abstention of a large proportion of the members of the court who are personally affected by the legislation submitted to the judgment of that body: ‘the possibility of excluding judges must not result in the inability of the Court to take a decision’.[279] [280]The objective of the independence of the courts requires that special attention be given to the regulations that have to be adopted for their establishment. The relevant constitutional provisions and the implementing legislation shall leave certain space to internal rules of organisation and procedure whose adoption by the courts implies the guarantee of a special autonomy of these bodies and could allow a modification of the minor regulation in force in the light of experience without the intervention of the legislator.11 On the other side, a balanced composition of the body has to be achieved to establish its independence and neutrality with regard to today's pluralistic society. Special attention has also to be paid to a fair representation of ethnic minorities, the judges’ qualifications and their age.[281] Experience on the ground shows that significant threats may come from rules concerning mandates, terms of office and choices related to the schedule of appointments of members of constitutional bodies, or of the election of new judges.[282] Moreover, we must pay regard to incompatibilities and disciplinary rules.[283] In principle, drastic reductions of the term of mandate of constitutional judges need to be avoided. This principle has been implicitly stated by the Commission, which appreciated the exclusion of constitutional judges from a Hungarian transitional regulation that brought forward the age of retirement of public officers.[284] The extension of this principle to ordinary judges has been stated by the European authorities, even in decisions of European judges concerning Poland and, again, Hungary.[285]
In the modern constitutional democracies, the selection of constitutional judges is especially affected by the presence of political groups in the parliaments. The parliamentary representatives of the political parties are mainly interested in solutions that guarantee the appointment of judges who share their political ideas and programmes.
When judges of a court are elected by the representative legislative assemblies or appointed by one political authority of the concerned state only, there is a risk that the collegiality of the court does not reflect the pluralism of the political, social and cultural orientations existing in the relevant society. At times, the inclusion of principles and guidelines concerning the professional and experiential requirements of the judges in a constitution with a view to ensuring a pluralistic membership of the court is not sufficient to produce a balanced composition of the judicial body. Judges are frequently elected by qualified majorities of the parliament. This requirement obliges the political parliamentary groups to agree on suitable solutions. In one Opinion, the Venice Commission remarked that the useful arrangement provided for in the German Law on the Constitutional Court by requiring a procedure for the election of judges by a two-thirds majority in parliament favours ‘the agreement of the opposition party to any candidate for the position' at stake. The choice can certainly lead to a stalemate; however, it can be balanced by the adoption of a specific anti-deadlock mechanism.[286] In other cases, the Commission explicitly appreciated solutions that entrusted the task of recruiting the constitutional judges to different bodies of the state in accordance with the solution adopted by the Italian Constitution. It could be a way of balancing ‘the possible influences of the different organs of the state participating as well as of the political forces behind them’.[287]It is important to note that the compliance with these requirements, or at least with the most important ones, is an obligation not only of the ordinary, but also of the constitutional, legislator both in adopting a new constitution and when revising the constitution presently in force. There are supranational principles that bypass the wall of the sovereignty of the concerned states when the unity and coherence of the European community are at stake.
In fact, the possibility of adopting constitutional amendments ‘is an important counterweight to a constitutional court's power over legislation in a constitutional democracy’[288] However, the revision of the Constitution is limited and circumscribed notwithstanding the fact that it is supposed to be an act of a sovereign power. A growing disagreement has emerged around these principles between some states and the bodies entrusted with the task of advising, checking and monitoring the behaviour of the Member States of the Council of Europe and of the EU.These developments will be further investigated in this chapter, but from the very beginning it is sensible to underline the following point. Choices adopted by some states to ensure the coexistence of constitutional jurisdiction with the political choices of the state's other bodies have required the adoption of measures aimed at intruding indirectly, and in a covert way, in the formation of the decisions of the constitutional courts through interferences in the appointment of the judges or through arbitrary limitations to the functions of the courts. These solutions took into consideration the absence of alternative ways of settling possible conflicts, such as preventive conflict neutralisation or general regulations aimed at openly and explicitly intervening in the modalities and effects of sentences of the courts. It seems that the adoption of clear general rules providing for the coexistence of the correct exercise of constitutional jurisdiction, on the one side, and the democratic functioning of the new regimes, on the other side, would have been a preferable option. This option would have left room for more balanced solutions between the extreme alternatives of establishing strong or weak systems of judicial review. At this point, I will focus on the topic of jurisdiction and the functions of the courts.
III.