The Research of the Historical Roots

If the starting point of our inquiry refers to the general principles of the European constitutional heritage, we have to look first to the Magna Carta. We should consider not only the initial document of 1215, but also the changes and new interpretations aimed at updating it to meet the social and economic developments of the kingdom and its entry into the (then named) Statute Book of the Kingdom.^[159] This move is certainly useful if we want to identify the matrices of the doctrine of the rule of law, which - according to A Dicey - is a main characteristic of the constitutional order of England since the Norman Conquest.^[160] ^{^[161] The English concept of the rule of law was strictly connected with the frame of the common law; therefore, there were differences from its European conception.}

These differences are partially overcome by recent policies of the European Union. The Venice Commission played an important role in these developments.¹¹

If we focus our attention on the models of the organisation of the state and, in particular, on the doctrine of democracy and of the separation of powers, we have to make reference to Article 16 of the 1789 Declaration des Droits de l'Homme et du Citoyen. Accordingly, all societies where the guarantee of rights is not ensured and the separation of powers is not established do not have a constitution. The correctness of this way of proceeding could be contested as we demand to look at documents that have different origins and pertain to different legal systems. It could be objected that we are not in the position of a jurist who deals with the Bill of Rights of the American Constitution and considers ‘the legal texts of other charters of liberty - Magna Carta, Petition of Rights, the English Bill of Rights, state constitutions, and the like' - as materials of his research.^[162] In fact, Akhil Reed Amar rightly makes reference to all the quoted English documents as the English system of law is at the origin of the constitutional developments of the American Colonies and of the USA.

However, our approach correctly starts from the mentioned English and French documents. In fact, this approach emphasises the international and supranational impact of these documents considering the intermediation of the legal constitutional culture and of the effects of the transborder spreading of this culture.^[163]

We cannot stick only to the original intent of the authors and to the literal content of the legislative texts. We must consider that their historical relevance makes sense through their cultural elaboration, which elucidates their meaning by identifying the ideological basis of the relative choices and their political orientations. Therefore, in some way, we can enlist the legal constitutional culture between the sources of the object of our research. At least, we may say that the products of the legal constitutional culture are part of the materials we must use in view of the identification of the European constitutional heritage in a historical perspective. From this point of view, the perception of the transborder reciprocal influences that are at the base of the yardsticks adopted by the Commission is becoming more evident. We cannot limit our research to the countries that participated in the active spread of the mentioned documents, but must also look at the experiences of the countries interested by the spreading of the influence of these documents.

Based on this conclusion, we cannot forget the contribution to the elaboration of the doctrine of the European constitutionalism by the experience of the USA and by the American legal and political literature accompanying the debate of the Philadelphia Convention. Within this literature, The Federalist^[164] played a major role. The contribution of the first liberal and democratic constitutions of the nineteenth-century Western world cannot be missed, especially if we look at the developments of those documents and their legislative and judicial interpretations and transformations.

In this frame, the reasoning of the Venice Commission benefits from the contributions of the liberal and democratic constitutionalism produced since the French Revolution to recent times. In fact, constitutional doctrines have been developed, step by step, through three different eras: (i) in the first part of the twentieth century, after World War I and after World War II; (ii) following the revolutionary changes of regime in the Mediterranean Sea in the second part of the twentieth century; and (iii) at the time of the fall of the Warsaw Pact, of the Soviet Union and of the Federal Republic of Yugoslavia at the end of the twentieth century. The passages from the initial historical declarations to the constitutions allows a deep understanding of the necessary steps and measures to be adopted in view of the implementation of the general statements that are the typical content of the formal documents and bills at the origin of constitutionalism.

For instance, Article 16 of the 1789 Declaration does not say many things about the institutional arrangements that have to be adopted to establish a correct relation between the powers of the state in compliance with the principle of the separation of powers. In this matter, we can draw useful suggestions from the old constitutions of the nineteenth century. However, they concern constitutional designs that were compatible with monarchical regimes. Therefore, the above experiences need to be complemented and integrated with the analysis of more recent constitutional developments. In this way, the perspective adopted sheds light on the investigated problems from an operational point of view. Consequently, alternative constitutional designs may emerge and comply with the principle of the separation of powers in contemporary societies.

However, we also have to realise that, so far, the Venice Commission has not been concerned with one of the most characterising aspects of post-Weimar modern constitutionalism: the inclusion of social conflict within the constitution.

This is surprising, as the supranational European Courts have had many opportunities to deal with relevant aspects of the social and economic conflicts in contemporary Europe. Therefore, while the constitutional rights of the first generation are frequently dealt with by the Commission, the so-called social rights are not present in its ‘case law’.^[165] The developments of the contemporary constitutions are instead the focus of the Commission’s attention when it reminds that ‘since World War II, constitutional courts were typically established in Europe in the course of transformation to democracy; first in Germany and Italy, then in Spain and Portugal and finally in Central and Eastern Europe’.^[166] These democratic transitions shared two essential purposes. On the one hand, the overcoming of the legacy of the previous regimes, and on the other hand, the protection of human rights violated in the past. To achieve these ends, it was necessary to substitute the system of the separation of powers for the principle of the unity of power centralised in the parliament and in the political bodies of the states. From the very beginning, a preference was expressed in favour of a constitutional jurisdiction exercised by a permanent special constitutional court.^[167] Therefore, a preference emerged for the Kelsenian model of constitutional justice at the expense of the American model, which implied a diffuse system of judicial review involving ordinary judges. Thus, a new element of complexity was added to the doctrine of the separation of powers.

The findings resulting from constitutional experiences are not always univocal, so it is essential to find additional criteria to discern between them in view of their utilisation. A bright example of this ambiguity emerges from the indications that might be drawn from the principle of separation of powers with respect to the guarantee of independence of the judiciary. The Venice Commission distinguishes two systems of guarantee of independence of the judiciary.

According to the first system, the functions of administration of the careers of judges are entrusted to independent judicial councils. Members of these councils are elected by the judges themselves and also by the parliament. According to the second system, the executive power has a strong influence over judicial appointments.^[168] This system exists in some older democracies, and is considered dangerous for the independence of the judiciary from the point of view of an abstract constitutional doctrine. However, the Commission has conceded that the second system might work well as the executive is restrained not only by the law, but also by the legal culture and traditions that have developed over the years. The constitutional guarantee stays, in these ancient democracies, in old consolidated practices and in the adhesion to an established and shared body of values. In contrast, states where new democracies have been introduced only recently have historically missed a chance to develop those traditions that could prevent abuse. In other words, in the view of the Venice Commission, old democracies may maintain constitutional arrangements otherwise precluded to states lacking a long-established democratic and liberal tradition. In fact, the Commission takes into strong consideration value-oriented and historical criteria that might impact the concrete functioning of different constitutional arrangements.

The Dubious Contribution of the Central and Eastern European Countries 63

However, the Venice Commission is not always in a position to appreciate historical criteria by assessing institutional arrangements in the monitored countries. For instance, while it may be acceptable that the constitutional history and legal traditions of a given country may justify the allocation of non-criminal functions to the prosecution service, the Commission is of the opinion that this way of reasoning can only be applied with respect to legal traditions that are considered democratic and in line with Council of Europe values.

Therefore, the preservation of the historical model of the prosecution service in Ukraine (the Soviet and czarist model of Prokuratura) is not justified. In fact, this model reflects a non-democratic past and is not compatible with European standards and Council of Europe values.^[169] Moreover, the Commission criticised the Hungarian model of the so-called ‘uniformity procedure’. According to this model, the Curia (the highest judicial authority in Hungary) is entrusted with the function of adopting obligatory uniformity decisions. These decisions must be applied in all courts. In this case, the fact that the roots of this model date back the nineteenth century is not considered as a justification of that choice by the Commission. On the contrary, the Commission focuses on the fact that such a procedure provides for the active interference of a ‘superior’ body in the administration of justice, which conflicts with lower courts’ and tribunals’ independence.^[170]

III.

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Source: Bartole Sergio. The Internationalisation of Constitutional Law: A View from the Venice Commission. Hart Publishing,2020. — 152 p.. 2020

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