Judicial Review
Since the very beginning, the Venice Commission had been interested in questions concerning the establishment and functioning of constitutional courts in the new democracies of Central and Eastern Europe.
Constitutional courts play an essential role in guaranteeing respect for the procedural and substantial constitutional provisions. Their creation had immediately been perceived as a fundamental step towards the establishment of the rule of law. Constitutional review had to be provided for from the period of the transition to safeguard the needs of the reform in the face of the obstinacy of the previous authoritarian practices.Hans Kelsen[36] had underlined in his contribution to a European theory of the judicial review of legislation that the appointment of constitutional judges implied the intervention of the state's political bodies. According to Kelsen, this move should not present the institutional and practical difficulties which usually complicate the advent of a new ordinary judiciary. Notwithstanding that recent developments have raised doubts about the credibility of this idea, it helped explain the political agreement reached in Poland in the 1980s for the creation of a Constitutional Tribunal which paved the way to that country's transition. However, we cannot forget that such a result is not satisfactory if the independence of the constitutional judge is not guaranteed. A problem arises which concerns not only the personal status of the judges, but also the distribution of the powers of nomination and appointment of the members of a constitutional court or tribunal. The Venice Commission underlined the delicacy of this problem when it expressed its preference for a balanced and pluralistic composition of the constitutional courts.[37] This result cannot be achieved if the mentioned powers are concentrated in one body of the state (for instance, the head of state, without the advice or the control of the parliament).
A court with such a membership would be the expression of the will of the President, and therefore would not be completely independent. Even when the power of appointing the constitutional judges is entrusted to more than one body of the state, the independence would not be guaranteed if all the concerned state's institutions were under the control of one body (for instance, the parliament) and specific rules concerning professional skills and independent personal status are missing.The position of the Commission with regard to the constitutional courts has taken into consideration two caveats. On the one side, it has always avoided substituting constitutional courts for ordinary judges, when constitutional cases are not at stake. According to the Commission, for instance, a constitutional court could not replace other judges when the judiciary does not function well and does not comply completely with its tasks. During a mission of the Commission in Armenia, authorities of that country suggested increasing direct access to its constitutional court through a creative interpretation of the personal right to access judges. The idea was to open the access to the court for cases which were not satisfactorily dealt with by the ordinary judges, even in the absence of constitutional rules providing for some kind of constitutional complaint. This proposal of increasing direct access to the Court was not welcomed. It was objected that a constitutional court is a special judge that does not have a general competence. It has enumerated functions, which are precisely listed in the relevant legislation. A court cannot risk its credibility by extending its intervention outside the scope of its attributions which define its role in a legal system.
The Armenian position had probably been influenced by suggestions that can be found in the American constitutional literature, which was at that time extensively read in Europe by the drafters of the new constitutions.
This literature could offer useful suggestions for the interpretation of a written constitution. But it was not advisable to forget that the Supreme Court of the USA is a common law judge and can easily substitute itself for a constitutional legislator. Certainly, the American scholars wrote fascinating tracts about transformations of the American Constitution introduced through judgments of the Supreme Court. However, the new European constitutional courts should avoid following that example. In principle, they should leave space for the legislative political decision-making processes and refrain from giving the impression that they share the responsibilities of the politically elected bodies of the state. Sometimes the creative intervention of a court may be necessary where there is a lack of parliamentary legislative initiatives. If a court wanted to learn from the American experience, it would preferably stick to the minimalist suggestions of Sunstein's interpretation of the case law of the Supreme Court.[38] Instead of taking on the functions of parliaments, constitutional courts should restrict their judgments to cases submitted to their attention and work to open the way for political decisions. In the presence of controversial and hard constitutional cases, their task should be to favour the democratic deliberative decision-making processes.The years 1990-2000 were years of transition for the countries of Central and Eastern Europe, but also for the Venice Commission. At that time, it started to elaborate on its philosophy and its guidelines of activity. Perhaps it might have given the impression that its Opinions were too doctrinal and abstract, and not really rooted in a complete knowledge of the actual situation of the country being dealt with. The work of the Commission was certainly based on written drafts of constitutional and legislative reforms, even if it was supported by missions of its members in the interested states. Sometimes the transition was accelerated, as in the cases of Hungary and Poland, which were admitted to the Council of Europe without having formally adopted a new and complete constitution.
In contrast, Bulgaria and Romania had to wait longer to join, notwithstanding that their new constitutions were already in place. The transition was always controlled by the governing bodies of the Council of Europe (and later on by the European Union) according to a realistic examination of the real situation of the interested states. This way of reasoning did not bypass the necessity of a strictly textual legal monitoring, but it did take into account the living constitution[39] - that is, the practical and concrete adhesion by the authorities of a state to the principles of the European constitutionalism, or their still defective behaviour. In any case, the European constitutional heritage was at the centre of attention. Rebus sic stantibus, the examination of the reforms to be adopted acquired special relevance and involved, with increasing frequency, the Venice Commission, which was becoming aware, step by step, that ‘at the level of the implementation of the constitutional texts important problems remain’.[40] The future was open to new and major perspectives.