Overview of Constitutional Jurisdiction and Judges

11.1.1 Introduction

Most modern constitutions contain a specific chapter on the Judicial Power due to the western concept of separation of power dating back to the age of the enlighten­ment.¹ It establishes the judicial power as a separate branch vis a vis the legislative and executive power (“Third Branch”).

Many constitutions provide for a comprehensive chapter on the Judiciary as a whole including the ordinary courts as well as Supreme or Constitutional Courts.

An introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.

¹ Montesquieu, 2017 [1748], De l’esprit des lois, livre IX, chapter 4, 6; Locke (1689), Two Treatises of Government; Hamilton et al. (1787/1788), Federalist Papers.

A. Weber (*)

Osnabruck, Germany

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 343

W. Babeck, A. Weber, Writing Constitutions, https://doi.org/10.1007/978-3-030-94602-9_11

This approach is understandable at least for two reasons: Firstly, the judiciary developed as a more and more independent branch in England and later in France, whereas in the US the constitution established a strong judiciary with the Supreme Court as Head of federal jurisdiction and as constitutional arbitrator at the same time.

Whether constitutional drafters allocate constitutional courts plainly to the judi­ciary or separate them more visibly as highest “watchdogs” is of secondary impor­tance as long as the competences and effects of the decisions of the constitutional courts are well anchored in the constitutional and sub-constitutional texts. In Europe the German, Austrian, Portuguese, (Irish,) and Polish courts still range under the heading of judiciary which did not prevent developing strong constitutional jurisdic­tion (until now).^[765] However, it is admitted that the attribution of a special title or section to Constitutional Courts may underline the special elevated position of these courts as “constitutional organs” on equal footing with other constitutional organs (or functionally even above in the case of adjudication).

A second even more important aspect is the generalizing distinction of “diffuse judicial review” and “concentrated judicial” or “constitutional review”.

Fig. 11.1 Structural approach when drafting a judiciary clause

may speak of diffuse control. If otherwise a constitutional court is monopolizing the question of reviewing the constitutionality of legal norms (examining and declaring constitutional or unconstitutional the respective norm) we use the term “Constitu­tional Court”.

Below the author distinguishes between “Constitutional Courts” and “Supreme Courts”. The normative terminology used in the texts (e.g. “Supreme Court”; “Bundesgericht”) is only indicative and not conclusive: It depends on the final monopolization of constitutional review, the allocation of concrete competences and the erga omnes effect of decisions.^[767]

However, the distinction is only relevant for the following presentation insofar as it relates to the essential features of “constitutional” or “judicial review” and not to common criteria and notions of organisation or status of judges (Fig. 11.1).

11.1.2 Normative Status

Some countries integrate the Constitutional/Supreme Courts under the heading of “Judiciary” or “Judicial Power”. This is true for several European constitutions (Germany; Norway; Poland; the Czech Republic; Slovakia),^[768] Eastern constitutions (Russia; Georgia; Armenia),^[769] Latin American constitutions (Costa Rica; Panama; El Salvador; Bolivia)^[770] as well as in Tunisia (as exception from the French model)^[771] and in Taiwan.^[772] See Tables 11.1, 11.2, and 11.3.

11.1.3 Nomination of Judges: Organs and Election

The mode of nomination of judges varies considerably from country to country. At least nine models appear to exist in constitutional reality. In general, the democratic legitimation of the election or nomination of the highest judges is well accepted by a strong participation of the respective parliaments, but other models or a combination of various types can be noticed.

11.1.4 Remarks

Constitutional reality shows a great variety of allocating the highest courts with judicial or constitutional review on paper, but even much more variety concerning the mode of nomination and appointment of the guardians of the constitution.^[773] No “master solution” prevails because it depends on historical prerequisites and cultural traditions.^[774] As the Venice Commission rightly notes the assignment to a separate part of the constitutional text or within the “judiciary” seems to be more a “dogmatic question of classification rather than having a practical effect provided that the Constitutional Court receives the fundamental guarantees for its independence and respect for its authority which should be afforded to the highest judicial organ”.^[775]

As to the composition of courts there should be struck a fair balance between political organs and a strong democratic legitimation. The composition should reflect

Table 11.1 | | Textual allocation within the judiciary

Table 11.2 | | Accentuated position within the judiciary

the possibility of integrating various political currencies and contribute to the representation of pluralism.^[776]

In general, nominations of Constitutional/Supreme Court judges should be based on a strong parliamentary legitimation, at least with a 3/5 or even 2/3 majority of the respective electoral or preparatory committee or the plenum, in order to avoid a complete election of judges by the governing majority (simple majority).^[777] This can partially be compensated by a mandate of at least 9-12 years for the judges thus serving more than one election period. The legitimation may be divided or “mixed”, if other state organs participate in the nomination procedure, e.g. the President or the Government;^[778] but in a parliamentary democracy indirect governmental legitimation may only reinforce the existing majorities in Parliament. Legitimation of nomination by the Head of State in the procedure is the more relevant if he is elected by direct vote, but generally his function should be limited to the appointment of proposed candidates by Parliament or other organs.

The right to propose candidates by Government or President could entail parlia­mentary legitimation if the Parliament is bound to a fixed list of candidates and not free to propose own candidates. Therefore the “right of proposal” and nomination by the executive or presidential participation in a model of “mixed legitimation” should be limited to a certain number of judges (e.g. 1/3). Most certainly it contravenes all rules and morals if a President or Government significantly tampers with the size of the Constitutional or Supreme court so that the majority of incumbent judges are outnumbered.^[779]

Participation of representative bodies of the judiciary is acceptable in the nomi­nation procedure even if they are not directly democratically legitimated, either by a

Table 11.3 I I Express separation from the judiciary

Table 11.3 (continued)

right of proposal and/or nomination of a smaller part of the judges. Even in the case that no direct right of nomination by representative judicial bodies is provided for the right of proposal to present candidates on a list to other nominating bodies (Parlia­ment; President, Government) comes close to a direct right of nomination in a mixed model. This enhances judicial expertise by the Courts and reflects self-autonomy of the “Third Power”.^[780] However, judicial expertise under specific professional qualifications can also be guaranteed by nomination procedures where a certain number of candidates may come from the highest courts.^[781]

11.1.5 Independence of Judges

Independence of judges is of utmost importance for the separation of powers and the rule of law.^[782] The independence of judges is influenced by many factors which may originate from the outside and from within the judiciary. One aspect is the abovementioned mode of nomination and appointment by diverse constitutional organs and containment of partisan influence in the nomination procedures but more importantly judicial independence must be guaranteed by formal elements and status which is entrenched by constitutional and/or statute law. Basic elements which are often mentioned in constitutional or subconstitutional texts and often refer to the judiciary in general are the duration of office, re-election, irrevocability and

Table 11.4 | | Nomination of judges by Parliament

Table 11.4 (continued)

(“screenings”)

^bSee also the harsh criticism by the Venice Commission (2016), (CDL-AD 2016). The ECtHR even stated that the election and nomination of a judge elected by the new parliament does not fulfil the requirements of a “tribunal established by law” in the sense of Art 6 paral ECHR thus violating the ECHR; ECtHR,7/5/2021, Xero Flor w Polsce sp.70.0 v.Poland; this was not recognized by The Polish Constitutional Court, 16/7/2021(P7/20)

impeachment in exceptional cases, indemnity and immunity, incompatibilities, remuneration, judicial reserve and discretion. Not all of them have necessarily to be regulated in constitutional texts but may be referred to in subconstitutional texts, e.g. laws on Constitutional or Supreme courts.

The following survey refers to duration of office; re-election, irrevocability; indemnity and immunity, incompatibilities but omits remuneration and judicial discretion more for practical than substantial reasons; the latter are often regulated in detailed subconstitutional texts and can give no valuable indication on the real judicial practice.

The survey however is not limited to express constitutional references on the former subjects because constitutional texts often describe the status of judges in a generalized or vague manner and leave the wording of details to the ordinary legislator.

11.1.5.1 Duration of Office

The tenure of the office of a judge is inextricably linked with the independence of a judge, notwithstanding the procedure of the judge’s appointment. Some constitutions forsee an absolute number, others make the tenure dependent on the prevailing retirement age (Table 11.8).

11.1.5.2 Remarks

Regardless of whether nomination and election may be shared between different organs or whether Parliament alone decides on the nomination, the procedure should be regulated in the constitution or a by-law (laws on CC/SCT) thus respecting the democratic legitimation and the legislative reservation.^[783]

The length of duration of office may vary from 9 to 12 years or last until a certain age of retirement (mostly 70 years). Commonwealth countries with English judiciary traditions apparently prefer appointments for lifetime and not until a certain age of

Table 11.5 | | Nomination of the judiciary by Parliament, President and Government

Table 11.5 (continued)

^aPrinciple of rotation: 1/3 is renewable after 3 years; apart from this the former Presidents of the Republic are life time members (which indicates the former concept of a “political court”, however these members rarely appear); this is not compatible with the independence of constitutional jurisdiction

retirement and it mostly applies to Supreme Courts. Lifetime appointments reflect the respect for the power of the Judiciary but reveal a weaker democratic legitimation by Parliament.^[784] The American example of lifetime appointments by the President after a tough screening of the Senate has its own constitutional tradition after more than two hundred years of practice but is not exemplary for Supreme Courts. Lately it has additionally led to a lot of criticism with respect to the allegations Justice Kavanaugh had to face and which damaged the reputation of the court.^[785] The nomination of Supreme Court judges by representatives of the UK (King/Queen) by the Governor General in Commonwealth Countries (e.g. Canada; Australia) also appears to be rather unique and it cannot be dissociated from historical traditions and the understanding of the role of the judiciary. With respect to the powerful competences of many constitutional courts the duration of the judicial office should be limited but exceed the duration of two parliamentary mandates in order to be more independent from changing parliamentary majorities (even 2/3 majorities or more).

The qualifications of a judge apart from high legal qualification should contain a certain professional diversity.^[786]

Re-election of judges should remain an exception because it evidently may bias the objectivity of the judge in the exercise of his function;^[787] it is for example permitted in Switzerland, Liechtenstein, Greece,^[788] Bulgaria, Slovakia and the Czech Republic,^[789] as well as in Indonesia.^[790]

Table 11.6 | | Nomination of the judiciary by Parliament and Government

^aCf. Report Hirsch (2006), Appointing of Supreme Court Judges

^aSee also law 345/1976 concerning the “Special Highest Court”

In order to avoid complete personal renovation at the same time some constitutions / laws on Courts may provide for a periodical renovation after three 30 or more years.

The mandate of judges may terminate by loss, resignation or death. The new appointment of judges may last until the end of the mandate of the previous judge^{[791] [792]} or the whole duration of the period of appointment.^[793]

It is therefore improper and a violation of the separation of powers if a country tampers with the pension age of active judges as it occurred in Hungary when the retirement age for ordinary judges was altered from 70 to 62 years in 2012 and the Hungarian Government exchanged almost all of the court’s presidents.^[794] Such interference strongly undermines the independence of the judiciary and democracy as such. The same applies to the lowering of the retirement agree of Supreme Court judges in Poland by reform of the statute in 2017 which was criticised by the Venice Commission and rejected by the European Court of Justice in June 2019.^[795]

11.1.5.3 Irrevocability

The non-removability of the judges by another branch is a constituent element of the independence of the judiciary and an instrument to secure the personal and material independence of judges. The irrevocability is generally guaranteed in constitutional or subconstitutional texts but may be restricted for exceptional reasons such as health, criminal or disciplinary responsibility, incompatibility, or severe violations of professional obligations. The texts often differentiate between personal grounds of incapacity (such as age; physical or mental incapacity), personal misbehaviour and criminal behaviour (Table 11.9).

Table 11.8 | | Duration of office of judges

Table 11.9 | | Decision-making on suspension, dismissal or loss of office of members of the

judiciary by the court^a

Table 11.9 (continued)

^aIn general the grounds for removal or dismissal encompass incapacity for health reasons, criminal or disciplinary punishments and severe violations of professional obligations; sometimes in cases of evident incompatibilities; the survey does not differentiate these details in order not to complicate inadequately the whole picture

11.1.5.4 Remarks

Any removal from office by a decision of another constitutional organ (President, Parliament) should be preceded by a statement of the Court itself to permit the dismissal of the judge. Most constitutions therefore consequently provide for the non-dismissal by any other state organ or any demand or application of the latter to review the behaviour of the judge.

Misbehaviour may be corrected or sanctioned by disciplinary measures of a disciplinary board or commission of the Court and cannot be left to the executive branch or the Attorney General. Any disciplinary measures should involve a binding vote of the Constitutional Court itself;^[796] it should be regulated in detail by by-laws in order to specify the circumstances of misbehaviour. With respect to Poland, the modified law on the Constitutional Court of 2016^[797] was harshly criticized by the Venice Commission as it enabled the President of the Republic to make applications.

11.1.5.5 Indemnities/Immunities

A further important element to secure the independence of judges is the protection against persecution for acts or statements committed during the exercise of their professional duties (indemnity) and protection against persecution for acts committed outside of their professional activity (immunity), see Table 11.10. While the former should be guaranteed in a comprehensive manner (except disci­plinary measures) in order to secure the unhindered exercise of their functions, immunities can be waived in exceptional cases of criminal punishment.

11.1.5.6 Remarks

Indemnities and immunities should be separately enumerated and regulated in detail.

The criminal persecution of judges for single acts or statements in the exercise of their function should expressly be excluded; the only alternative is to provide for disciplinary measures in cases of misbehaviour or violation of professional duties. Laws on CC/SCT sometimes mention disciplinary measures; these must remain in the hands of the Court itself, composing a special quorum of judges or a committee. The case of the Constitutional Court in Poland is especially problematic because the modified law of 2016 provides that the President or minister of justice may initiate an application for disciplinary measures filed to the Court upon which the President himself will decide.^[798]

The indictment of judges must be based on a prior consent of the Court itself with a qualified majority (2/3 or 3/5 or more) of the Plenum; it may lead to a provisional suspension of the function of the respective judge by the Plenum. Once a judge has been finally convicted by a criminal court, the President of the Court may state the loss of the judicial function ex nunc. It is recommended that Parliament or the President of the state should not be able to intervene in the immunity or indemnity procedures; only the formal statement of the loss of a judicial function by the Head of State may be admissible.

11.1.5.7 Incompatibilities

Rules on incompatibilities intend to secure the subjective separation of powers and the independence from partisan or other economic influence on the objective exer­cise of the function. They prohibit the exercise of any governmental or parliamentary function on the different state levels and largely with any function as official or employee of public services but often leave certain discretion with respect to the exercise of liberal professions. Generally, the position of a university professor or a teaching activity is compatible. The membership in a political party may be compat­ible but any position or leading function generally in such party is considered incompatible. See Table 11.11.

In several countries (e.g. Austria, France and Belgium) liberal professional activities seem to be compatible.

Table 11.10 I I Indemnities for judges

Table 11.10 (continued)

^aSee Hendrianto and Siregar (2016), Report on Indonesian Constitutional Law

11.1.5.8 Remarks

Incompatibilities should encompass all other governmental or judicial functions or functions as employees or agents of public services^[799] and be regulated by the constitutional text or references to the subconstitutional texts. The texts may also prescribe incompatibilities with any remunerated function or liberal profession, as some provide in a generalized manner, but leave discretion to part time function as professor or a teaching activity.

Remuneration equivalent at least to Government positions and on the top of the judicial hierarchy should be guaranteed as well as confidentiality, impartiality and neutrality be prescribed as relevant elements of independence; the latter may be enumerated in constitutional/subconstitutional texts. It is more important to provide for the respective sanctions in case of violations by disciplinary measures in an autonomous regulation issued by the Court or at least an ethical code drafted by the judges.