Setting the Scene
The Venice Commission has had a role in shaping the constitutional state in Europe, and especially in the ex-Member States of the Warsaw Pact after the fall of the Berlin Wall. Having regard to its focus on the overall aspects of the legal order of the state, its guidelines in the matter of constitutional jurisdiction must be read in the light of the teaching of the political philosopher John Rawls.
According to Rawls, ‘the constitution is not what the Court says it is. Rather it is what the people acting constitutionally through the other branches eventually allow the Court to say it is.'3 This statement implies a reference to the1 The proceedings of the meeting as well as the working paper on the models of constitutional jurisdiction were published in the Science and Technique of Democracy collection: Venice Commission, CDL-STD(1990)001 and CDL-STD(1993)002.
2 Venice Commission, CDL-PI(2017)008.
3 J Rawls, Political Liberalism (New York, Columbia University Press, 1993) 237-38. whole system of government of a state and clearly underlines the possibility of tensions and cooperation between the political bodies of the state and the system of judicial review. In fact, in shaping the judicial review of legislation, the constitutional legislator shall be bound to arrange a fair balance between the effectiveness of the political decisions of the representative bodies and the preservation of the constitutional frame chosen by the constitutional legislator.
The proceedings of the Piazzola seminar consequently emphasised the role of the courts as guarantor of the concrete compliance and implementation of the constitution in the judicial reviewing of the legislation and the settling of the conflicts between the other constitutional bodies of the state. The preferences of the participants were directed to the Kelsenian European model of constitutional jurisdiction.
The American diffuse model of judicial review of legislation was not welcomed, notwithstanding the historical relevance of that model. In the opening pages of his paper, Steinberger suggested that, ‘if a state wishes to introduce constitutional jurisdiction to its legal system... it appears preferable to entrust the decision of constitutional issues to a special institution, raised (to that extent) above the ordinary courts’.[273]The legislator should recognise the courts’
power to interpret the constitution, to affirm the question of the compatibility of a norm with the constitution, or to deny it; under this instrument it is only the power to declare an act of legislation violating the Constitution that is monopolised with the Constitutional Court.[274]
The Commission has always been faithful to this choice, even when it considered its position not to be mandatory for some countries, as was the case for Finland. In principle, however, it did not exclude the possibility of different alternative solutions of strong or weak systems of judicial review. Therefore, it has participated from its own peculiar position in the European debate on the matter. However, it has distanced its position from the discussion promoted on the other side of the Atlantic by some constitutional scholars who had taken a position against the present American system of judicial review[275] and proposed[276] alternative forms of judicial review with special attention to the possible adoption of a weak system of constitutional jurisdiction. There is substantial agreement that the distinction between strong and weak forms of judicial review opens up interesting avenues of research. However, the distinction is considered to be ambiguous in some ways, and can create misunderstandings. In fact, there are other elements that play a crucial role in this field, namely, the distinction between those legal orders that directly entrust to the parliament the power to react in an ordinary way to the decisions of the constitutional judge and those systems where the opening to a follow-up parliamentary ordinary intervention depends on a specific decision of the judge.
The European experience has rarely followed this way of thinking. This is despite presenting some interesting examples of arrangements that allow the ordinary legislative majorities to react to the judicial interpretation of the Constitution in a relatively short run,
Institutional Position and Composition of Constitutional Courts 93 for instance, where there is a transitory suspension of the effects of a court's decision. This is the case of Germany, which has a powerful judicial review. The German Constitutional Court can suspend the effects of its decisions in view of a corrective intervention by the legislator. This option will be further investigated in this chapter below, where I will take these alternative arrangements into account in exploring recent cases of interference of political bodies in the functioning of the constitutional jurisdiction in some Central and Eastern European countries. In these countries, a specific regulation is missing with regard to an ordered settlement of the tensions between those political bodies and the constitutional judge. However, it is convenient to start this chapter by taking into consideration the choices that inspired the proposed arrangements concerning the institutional position and composition of constitutional courts.
II.