Introduction
Judicial control of political power is seen as a necessary tool in most contemporary democracies, in order to ensure the respect of the rule of law by all state institutions. Constitutional judicial review is the most widely accepted method of judicial control of power, most frequently exercised by a constitutional court or tribunal, inspired by the Kelsenian model of judicial review.
Constitutional courts are included, in some countries (such as Germany, Portugal) in the judicial system, but in other countries they are independent from all state powers, and therefore outside the judicial system (in Italy, Austria, France, Spain, Romania).Besides the classic power to review the constitutionality of legislation, many constitutional courts have been given specific powers to control political institutions, in various ways: the power to solve constitutional conflicts between institutions (Germany, Poland, Slovenia, Austria, Romania), the power to review parliamentary internal decisions (Romania, Latvia), the power to control elections (Bulgaria, Croatia, Czech Republic, Germany, Portugal, Romania) and referendums (Austria, Croatia, France, Hungary, Portugal), political parties review (Bulgaria, Croatia, Czech Republic, Germany, Poland, Portugal, Romania), and powers regarding the impeachment of the head of state and of other dignitaries (Austria, Bulgaria, Croatia, Czech Republic, Germany, Romania, Turkey, etc.). However, constitutional courts themselves are not completely shielded from political influence. Among other factors, these so-called ancillary powers are exposing constitutional courts to political influence, and so do other factors, such as: the judges’ appointment procedures, their tenure1 and their own background and convictions.
Apparently, the appointment methods are the most frequent means of politicisation, as they involve key political actors (parliament, president, most of the time with discretionary power of choice).
However, this discretion can be significantly attenuated by unwritten mechanisms and agreements between the parties involved. In Germany, for instance, ‘the supermajority requirement has created a de facto quota system: the two major parties divide the seats, with the occasional1 Tom Ginsburg, Nuno Garoupa, Building Reputation in Constitutional Courts: Political and Juridical Audiences, in (2011) 28 Arizona Journal of International and Comparative Law, p. 539.
DOI: 10.4324/9781003200666-10 appointment of a judge from one of the minor parties to reflect parliamentary composition and ongoing governmental coalitions’.[383] Such an agreement would never be possible in a conflictual democracy like Romania, where the dominating mentality is that of ‘the winner takes all’. This is also valid in other post-communist countries.[384] [385] The insufficient transparency of the procedures is also a factor of potential politicisation.
Another factor is the tenure of the judges: ‘prospective appointments for other prestigious governmental posts or profitable legal consultancy jobs after they retire may influence judges’ decision-making’.
The third category of factors which may bring constitutional courts outside their original purpose is the self-extension of their powers, either within the constitutional review of legislation, when they act as ‘positive legislators’ or within the ancillary powers conferred by the Constitution. These ancillary powers may be the cause of distorting the role of constitutional courts from negative to positive legislators, sometimes amounting to a ‘pathology’ of judicial review.[386] Such a distortion may be found in the case of the Romanian Constitutional Court (hereinafter RCC), regarding a power that was granted in an unusual way and which extended the jurisdiction of the Court on parliamentary resolutions.[387]
How do these factors of political influence reflect upon the constitutional courts’ activity? Evidently, the answer to this question depends on what powers the courts have and how they choose to exercise them.
If the courts have more competencies to control political authorities, then the tendency would be to enhance their overall political instrumentalisation. The main goals of constitutional courts’ politicisation could be, on the one hand, the overwhelming influence over ordinary courts (the constitutional court ‘dictating’ how the law should be applied) and, on the other hand, the influence sought by the ruling party over its opponents, by gaining control over the constitutional court’s majority. One of the ways in which political influence is manifested by constitutional courts is judicial activism that can manifest in various forms, according to the powers with which the courts are endowed. Thus, some constitutional courts have powers that allow them to directly or indirectly control political institutions (e.g. by solving conflicts of competence), in addition to their classical power to control the legislative power via the review of legislation.In this chapter, I will refer mainly to the judicial control of power in the narrow meaning - control of political institutions - rather than in its wider meaning of ‘control of legislative power’ through constitutionality review of legislation.
Romania is an interesting case study of activism in this respect, with peculiarities related to the ‘politicisation’ of the Constitutional Court, because in the recent decade the Court has been used as a powerful weapon by some political actors against their opponents.
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