Tensions between Constitutional Courts and Other Branches of the State

In the sections above, special attention was paid to some aspects of the regulation of the effects of the decisions of the constitutional courts with reference to the rules presently in force in different European countries.

Constitutionalism spread in Europe after the fall of the Berlin Wall through the consultative and monitoring activities of the institutions of the Council of Europe and of the EU. Cases have frequently been submitted to the Venice Commission, especially since the beginning of the new century, when political movements and tendencies in some European countries started contesting the interpretation of constitutionalism. The concerned states disregarded the commonly accepted basic idea and construction of the European constitutional heritage by substituting it with different conceptions and prin­ciples and by looking for a different balancing of the exigencies at stake. These states claim to safeguard traditional features of their constitutional identity. On the one hand, they have justified contested measures by appealing to those provisions of the TEU that bind the EU to respect the constitutional identities of the Member States.^[309] On the other hand, these states have claimed that the contested measures fell within a differ­ent interpretation of the main content of European constitutionalism.

In the past, the above-described guidelines for the consultative and monitoring acts of the Venice Commission have offered a satisfying description of the commonly accepted guidelines for constitutional regulation in the field of constitutional justice in Europe. After the unprecedented developments reported above, compliance to these guidelines is not always certain, and that description does not perfectly mirror the current situation of the institutions in the Member States of the EU and of the Council of Europe.

Some cases submitted to the Venice Commission have concerned the appointment of constitutional judges. With regard to Slovakia, the Commission stated that the newly elected President of the Republic did not have the power to refuse the oath to be taken by judges appointed by the outgoing President before the end of his mandate. Therefore, the new Chief of State should not be allowed to reject all the candidates nominated by the National Council in view of the presidential appointment and to require the submission of a new list. The main exigency is the preservation of the functionality of the constitutional justice system. Thus, the continuity of the membership of a court has to be ensured by providing that a judge remains in office until his or her successor takes over. It follows that ‘a procedure of nomination of a new judge could start some time before the expiration of the mandate of the incumbent one’.^[312] The Slovakian President was censured as he failed to take these exigencies into serious consideration.

A very serious conflict arose in Poland when the Sejm, in its last session of October 2015, before the calling of parliamentary elections, selected five judges to replace the outgo­ing ones within the next two months. This was made notwithstanding the fact that the electoral legislation provided for the election and commencement of the new Sejm in November 2016, in between the end of the mandate of three judges in November and of two judges in December. Regardless of the preventive measures adopted by the Constitutional Tribunal, the new Sejm elected five new judges as substitutes for the five judges that had been selected and recently installed by the outgoing Sejm. In this way, all the previous appoint­ments were nullified. At the same time, various legislative interventions were approved to support the decisions of the parliament. The Venice Commission dealt with the problem of the successive appointments in connection with the evaluation of the legislative measures adopted by the Sejm to reform the rules concerning the functioning of the Constitutional Tribunal after the described events.^[313]

It is evident that the conflicts arose both in Slovakia and in Poland as different consti­tutional political actors aimed to control the composition of the body entrusted with the functions of constitutional justice. The political actors involved pushed themselves to the point of anticipating the replacement of judges before the end of their office or of disre­garding the choices made for the substitution by the incumbent authorities just in time before the end of their presidential or parliamentary mandate. In both cases, the tension between the constitutional bodies emerged from the attempt to interfere in the functioning of the courts, putting their independence and credibility at risk. Furthermore, in Hungary, tensions arose in relation to the reforms to the age of retirement of the ordinary judges that both the Hungarian Constitutional Court and the European Court of Justice declared not to be in compliance with the constitutional principles.^[314]

According to the relevant Venice Commission Opinion, the cumulative election of five judges by the new Polish Sejm contradicted the pluralistic approach of constitutionalism.

Tensions between Constitutional Courts and Other Branches of the State 101 to appoint judges. In particular, attention should be paid to the political orientation of the assembly at the time of the appointment of judges to be replaced. Generally speak­ing, a diversified composition of the body is desirable. Moreover, the Venice Commission rejected the argument made by the Polish authorities, claiming in support of their choice the existence of a customary constitutional rule in the field. The Venice Commission noted that a similar practice had been adopted only in one similar event and was not followed subsequently.^[315] The appeal to tradition can be correct only where institutions have been consolidated.

Disregarding the pre-existing rules of the election of constitutional judges signals a strong interference in the functioning of a court through the appointment of persons whose positions are close to those of the transitory incumbent majority: it is a move a priori that does not imply any specific consideration of the caseload at stake, but puts in danger the neutrality of the court.

Moreover, the legislative reform of the rules concerning the functioning of the Constitutional Tribunal were evidently inspired by the purpose of restraining the freedom of decision of the Tribunal. These reforms violated the generally accepted constitutional principles insofar as they: (i) required an unusually high quorum of attendance of the judges in view of the valid adoption of a decision (13 out of 15); (ii) bounded the Tribunal to hold a hearing and to decide cases in a strict chronological order, disregarding the possible need of an urgent decision and compliance with the European standards; and (iii) fixed a qualified majority of two-thirds of the judges for the adoption of a decision, thus depriving a simple majority of the judges from being able to declare a law unconstitutional. Principles were also violated by the refusal of the Polish government to publish the decisions of the Tribunal, as their publication has to be a prerogative of the Tribunal itself.

Similarly, a serious blow to these principles was identified by the Venice Commission in the Hungarian reforms of the constitutional justice system that affected the scope of its competence.^[316] The Orban government had already intervened and ‘stacked the Constitutional Court with loyalist[s]’, profiting from its parliamentary majority, which allowed it to avoid a consultation with the opposition in the appointment of the consti­tutional judges.^[317] Moreover, the revision of constitutional rules favoured an additional ‘package’ of the body by increasing its membership from 11 to 15 judges. According to the Commission, the reform of the scope of the review of legislation submitted to it for monitoring aimed at restricting the competence of the constitutional court and countered the obvious purpose of the constitutional justice system. A sufficiently large scale of compe­tences is essential to ensure the guarantees of the constitution, in that restraining the powers of the constitutional judge to ‘review certain State Acts only with regard [to] a limited part of the Constitution’ contradicts the logic of the choice of the judicial review of legislation. Therefore, the Commission identified a serious downgrading of the role of the court in measure that restricted the court’s jurisdiction for certain acts. Among these were the state

budget, state taxes, stamp duties and contributions, custom duties and state requirements related to local taxes whose review was admitted exclusively in connection with the rights to life and human dignity, the protection of personal data, the freedom of thought, conscience and religion, or with rights related to the Hungarian citizenship. Moreover, the massive ‘constitutionalising’ of provisions declared unconstitutional by the court deprived this body of its main function as the guardian of the constitutionality and as a control organ in the democratic system of checks and balances.

Both the concerned states reacted to the critical position of the Venice Commission in a partially satisfying way, but adopted amendments complying with only some of the mentioned remarks. The introduction by the Hungarian parliament of the personal consti­tutional complaint was welcomed. Similarly, the cancellation of the actio popularis was considered a positive development. However, the shielding of potentially unconstitutional laws from constitutional review even when budgetary problems have subsided was kept. The Hungarian authorities nevertheless insisted that the abandonment of the special tax in case of unexpected expenditures resulting from the court’s decisions be announced. The lowering of the quorum requirement from 13 to 11 judges in Poland was appreciated, but it still raised objections, as the requirement is still quite high. The modifications in the matter of the sequence rule do not allow enough flexibility for the work of the Tribunal, which is facilitated by the introduction of a simple majority of judges for the adoption of sentences.^[319]

These developments and the mentioned reactions of the Venice Commission signal evident interventions of the political bodies to settle in advance and a priori (or better to neutralise) possible tensions between constitutional justice and the political branches of the state. This strategy falls short of considering the current agenda of the court and the merit of the currently pending questions of constitutionality. The Polish and Hungarian authorities enacted measures that disregarded those countries’ previous commitment to the principles of constitutionalism. They did so with multiple measures, including the appointment of judges in violation of the applicable rules; the limitation of the efficiency of the constitu­tional jurisdiction by the introduction of heavy procedural constraints; and a reduction in the scope of the competences of the court. The contested legislative measures have not taken into consideration that the possibility of tensions is a natural feature of the contem­porary pluralistic constitutional systems. They have moved from the idea that the original European model of constitutional justice conflicts with the constitutional identity and needs of the respective state.

Therefore, at their basis, there was an abstract and general evaluation of the inadequacy of the initial constitutional arrangements adopted at the moment of the transition after the fall of the Berlin Wall and confirmed at the time of the adhesion to the EU. Tensions between the court, on the one hand, and the parliament and the executive, on the other hand, required some compositions. Both states chose to not follow a piecemeal approach by

Constitutional Justice, Rule of Law and Dialogue between the Courts 103 entrusting the court to correct and delay the effects of its individual decisions case by case, as in some European countries, or by allowing the parliament to intervene in the matter on a case-by-case basis, as in Canada. Instead, they opted for general preventive solutions. They violated the rules of appointment of judges with the purpose of appointing members of the court who were ideologically oriented in favour of the ruling parliamentary majority. They introduced constraints in the functioning of constitutional justice; and they reduced the scope of the competence of the court. Serious doubts about the alternative of choosing a weak or intermediate model of judicial review are certainly justified.^[320] However, the ways Poland and Hungary have acted also differ - as reported above - from those adopted in some European countries to prevent serious constitutional conflicts without casting doubts about the adhesion to a strong model of judicial review.

The arrangements adopted in Poland and Hungary affect the functionality of consti­tutional justice; however, they do not allow case-by-case regulation of possible conflicts between the court and the parliament. These arrangements are based on a previous idea that some of the most important guarantees of constitutional courts - such as their continuous efficiency, a pluralistic appointment of their members and the jurisdiction of the court in some sensitive matters - are a priori dangerous and have to be avoided. Therefore, Poland and Hungary abandoned the ideal of a checks and balances system connoting parliamen­tary democracy and the principle of loyal cooperation between the branches of the state (which has a functional link to the implementation of the constitution^[321]). As the court is excluded from the possibility of intervening case by case in the presence of constitutional tensions, the parliament is excluded from the possibility of intervening by adopting the eventual measures necessary in the developments at stake. These reforms signal a mistrust not only of the constitutional justice system, but also of the constitutional principles of a modern system of government.

VI.