Jurisdiction and Functions
Many Opinions devote great attention to judicial review of legislation. The introduction of direct constitutional complaint has been welcomed with regard to the comprehensive protection of individual rights, especially if it covers proceedings against individual acts.
However, special preparation is required in the presence of a real risk of a strong growth in the number of cases the constitutional court should examine.[289]The review is often conceived as an ex post control. According to the Commission, ‘there is no common European standard'[290] regarding the initiators and the concrete modalities ‘of an a priori control'.[291] The Commission further underlined that ‘a clear disadvantage of a priori control by the Constitutional Court is that the Court has to decide without the benefit of knowing how the law is applied in practice'.[292] This way of reasoning shows a differentiation of the concept of judicial review suggested by the Commission from the old traditional idea of the abstract judicial review of legislation: it draws inspiration from the experience of the US model. On the other side, the possibility of giving a formal role to the constitutional court in the constitutional amendment procedures is seen as an alternative of a ‘fairly rare procedural mechanism'. It cannot be considered as a requirement of the rule of law, and it appears - as happens with the ex ante review of the ordinary legislation - as a potentially dangerous involvement of the court in the political debate that has to be carefully dealt with. This way of thinking deserves attention if the legislator aims to avoid a politicisation of constitutional justice, and restricting ‘the procedure before the Court only for serious cases in which supremacy of the constitution is actually at stake'. The Commission supports this line of prudence, even if it recognises that the Court ‘can play an important role in the establishment of the rule of law and the reinforcement of law through the protection of a minoritarian group' in the parliamentary legislative process.[293]
States should avoid overburdening courts with work when designing their jurisdiction.
This is a serious risk when their jurisdiction includes sub-legislative acts. In fact, ensuring respect for the entire hierarchy of norms is not a characteristic of the traditional model of constitutional justice adopted in the European continental legal systems.[294] Instead, the Commission has welcomed provisions that widen the competence to solve the disputes between constitutional bodies regarding their constitutional powers, and sometimes lamented the absence of similar provisions ‘which could play an important role for the consolidation of constitutionalism'. The Commission suggested an neat solution to the Kyrgyzstan Court to bypass the difficulties caused by such an incompleteness.[295]The modification of the constitutional provisions concerning the scope of the competence and the functions of a court is a sovereign decision by the constituent power of a state; however, this is a very delicate enterprise. A systematic approach of shielding ordinary law from constitutional review... results in a serious and worrisome undermining of the role of the Constitutional Court as the protector of the Constitution.'[296] This is the main substance of an Opinion expressed by the Commission about a fundamental law of Hungary that reformed a court that had a very broad range of functions. It clearly stated the principle that there are basic guidelines that cannot be disregarded by states in designing the jurisdiction of the constitutional court, otherwise an inacceptable infringement of democratic checks and balances and of the separation of powers would result.[297]
It could, however, be helpful to elaborate on the comparison between these remarks concerning Hungary and the conclusions of the Opinion on constitutional and legal review in Finland. In this case, the Venice Commission explicitly said that ‘although. it has in the past emphasized the value of the adoption of a Kelsenian model of constitutional justice (ie a specialized constitutional court) this is clearly not mandatory'.[298] According to this line of reasoning, it follows that section 106 of the Finnish Constitution correctly complies with the objective of the protection of human rights as it states that ‘if, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution'[299] and the relevant decisions of the major judges shall be respected by the minor ones.
This peculiar arrangement is considered acceptable even if it does not ensure that the decision of the court applies erga omnes, as would be required by the principle of certainty of law.[300]The recourse to constitutional traditions and culture supports this conclusion, as ‘Finnish judicial culture displays a strong respect for the case law of the highest courts'.[301] This argument is not novel in the experience of the Venice Commission. In fact, it resembles the decision to justify the absence of a superior council of the judiciary in legal systems, where an established observance of the principles of rule of law and separation of powers guarantees the independence of judges.[302] In the view of the Commission, traditional legal culture and doctrine justify departure from the Mediterranean model of judicial autonomy and independence (frequently recommended by the Commission in the field). In fact, the recourse to tradition is considered valid and helpful also in the case of constitutional justice. However, it is evident that, if in a legal system, preference is given to the Kelsenian model, such as in Hungary, the adopted arrangements have to comply - according to the reasoning of the Venice Commission - with the main features of the model itself and shall entrust to the constitutional court all the functions that the fulfilment of its mandate requires. The legislator is bound by coherence and continuity when it has to find a fair balance between guaranteeing the efficiency of the judicial review and the exigencies of modern, democratic and representative government.
IV.