Research findings, conclusions and recommendations formulated in the book can be applied with a view to changing the mechanisms of the protection of constitutionality in post-Soviet states or presenting lawmakers in other countries with consequences of adopting particular legal solutions.
Table Of Contents
- Title Page
- Copyright Page
- Dedication Page
- About the editor
- About the book
- Citability of the eBook
- Constitutional Justice of Post-Soviet States against the Model Solutions in the Sphere of Non-parliamentary Constitutional Review of Law
- Constitutional Justice in the Republic of Armenia
- Constitutional Justice in the Republic of Azerbaijan
- Constitutional Justice in the Republic of Belarus
- Constitutional Justice in the Republic of Kazakhstan
- Constitutional Justice in the Kyrgyz Republic
- Constitutional Justice in the Russian Federation
- Constitutional Justice in the Republic of Moldova
- Constitutional Justice in the Republic of Tajikistan
- Constitutional Justice in the Republic of Ukraine
- Constitutional Justice in the Republic of Uzbekistan
- Constitutional Justice in the Post-Soviet States. A Comparative Analysis
- Notes on Contributors
This monographic study is a result of research conducted by an international research team within the framework of the National Science Center (Poland) Constitutional courts in post-Soviet states: between the model of a state of law and its local application (No. 2016/23/B/HS5/03648).
The Scientific Objective of the Project
Constitutional courts in the countries of contemporary Europe are the key participants in legal and political relations. These courts now have a role, along with the political authorities, i.e. the head of state, the government and the parliament1 in establishing the binding legal and political order. In accordance with the regulations of their binding documents, constitutional courts now determine the legal frameworks, and hence the political ones, of the activities of the bodies of state authorities, including above all the parliaments as the legislators. Independently of the effects of the states’ membership in the European Union, parliaments are no longer sovereign authorities, which – by an act of their own will – could establish the content of legal and political relations occurring in their territory. Together with the development of constitutional courts and the strengthening of their jurisdiction, parliaments became a rationed and controlled power. Their acts, both legislative and the application of the law, are subject to constitutional review, and in case of a negative finding – they lose their binding force.
Constitutional courts can determine the course of key political events in a state. For example, in 2000 the Ukrainian Constitutional Court found two of the six questions set in the referendum by President Leonid Kuchma incompatible with the constitution. This finding halted the process of the extension of the President’s power that would have occurred at the expense of the competences of the Supreme Council and its political marginalization. Another, radically different, example arose in Belarus in 1996, when the Belarusian Constitutional Court decreed the unconstitutionality of a referendum question prepared by President Alexander Lukashenko. In response, the President, by decree, declared ←9 | 10→the finding invalid and submitted the said question to the nation in the referendum. The Belarusian referendum of 1996 is considered the key example of non-constitutional extension of the competences of the head of state. The President of the Russian Federation, Boris Yeltsin, on the other hand, who was in conflict with the Supreme Council and did not agree with the jurisdiction of the Constitutional Court, dissolved the Court, thus removing the institutional obstacle that could prevent his law-making activity. These three examples taken from post-Soviet states suffice to show how radically different the influence of constitutional courts can be on adherence to the provisions of the constitution, ranging from its affirmation (in the Ukraine), through the court’s finding being questioned by the President (in Belarus) to the dissolution of the constitutional court, depriving it of the competence to adjudicate in the sphere of constitutional issues (in the Russian Federation).
Against the background of these and other events that occurred with or without the participation of constitutional courts when that participation should have taken place, what has been the role of the organs of the constitutional review of law in shaping legal and political relations in the post-Soviet states? Lithuania, Latvia and Georgia chose the Euro-Atlantic option (a military alliance in the form of NATO and a political and economic alliance within EU or, in case of Georgia, orientation towards cooperation with EU and NATO). Of the rest, Armenia, Azerbaijan, Belarus, the Russian Federation, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Ukraine and Uzbekistan all chose the model of judicial constitutional review of law. Only Turkmenistan chose the parliamentary model of the constitutional review of law, which is in fact the presidential model not so much of constitutionality but of law as such.
What role do the organs of constitutional review of law in these post-Soviet states have in creating legal and political relations? What legal solutions did the legislators of the various states in the region adopt? To what models did they refer? What were their expectations following the establishment of the constitutional courts? To what extent were the expectations an expression of each state’s aspirations, and to what extent were they based on the experiences of other countries? Were those expectations fulfilled or not, and if not – why? What was lacking to realize the will of the legislator? What is the system of constitutional courts in particular states? What is its relation to the models of control of legal norms, i.e. the so-called American model of the control of legal norms and so-called Kelsen’s model of constitutionality of legal norms? Which institutions of constitutional jurisdiction are an expression of the native specific character, political traditions or structure of political forces taking place during the process of the establishment of the constitutional court? What is the role of the organ ←10 | 11→of constitutional review of law in the reception of law and in making law the source of national law binding to the national law-making bodies and the bodies applying law? What was this process like in the less-than-democratic post-Soviet states? Was it affected by the special political position of the president in the majority of those countries as a guarantor of harmonious functioning and cooperation of the organs of state authorities and the post-Soviet mentality?
In the states of West and Central Europe the organs of constitutional review of law (like the Supreme Court in the United States) are regarded as participants in political relations who can show inclinations to dominate in the system of separated power and to enforce their views upon other participants. Does a similar phenomenon occur in post-Soviet states? Are the organs of the constitutional review of law competent to affect the content of the binding law by way of jurisdiction? To what degree are they still based on Kelsen’s understanding of the constitutional court as the so-called negative law-maker, and to what degree – referring to the experiences of some countries of the European continent – do they go beyond this model and show a special kind of law-making competence, which – on the example of the Russian Federation – is highlighted by Grigorij Alieksiejewicz Wasiliewicz (Григорий Алексеевич Василевич) and Igor Juriewicz Ostapowicz (Игорь Юрьевич Остапович) in their latest monographic study (2016) entitled Нормативность решений специализированных органов конституционного контроля в Российской Федерации, Республике Беларусь и Республике Казахстан: сравнительно-правовое исследование? (“The normative power of the decisions of the bodies of constitutional review in the Russian Federation, the Republic of Belarus and the Republic of Kazakhstan: a comparative legal study”).
The example of Kyrgyzstan raised another research question. Like Kazakhstan, Kyrgyzstan gave up the idea of the Constitutional Court and replaced it with the Constitutional Chamber of the Supreme Court, which indicates that the issue of the constitutional court is also not indisputable in this region. Despite the relatively short experience in this respect, certain legislators consider the adopted model of the constitutional review of legal norms to be inadequate to the political needs of the state and they modify it, but to what effect? Was the desired effect of the change achieved or it is irrelevant, or, perhaps, does it not meet the law-maker’s expectations? These are the next research questions addressed in this study.
To provide a complete picture of the studied institutions, a normative analysis must be supplemented with the analysis of selected elements of political practice. It can deviate from the model’s assumptions and their articulation in the regulations of law. All the more, this issue calls for analysis in the states which ←11 | 12→do not have many centuries of parliamentary traditions. These states did not find themselves within the sphere of the influence of the doctrine of a state of law and the European legal culture until the end of the 20th century. This takes place through participation in international relations or membership of those countries (and their associations) in the Council of Europe, and the spread of the values of this international organization into their system of law.
The development of constitutional courts affects the understanding of the principle of a nation’s sovereignty and the ways of expressing it in the political system of the nation. The organs of constitutional review of law are sometimes contested as they work to prevent other bodies with public power from expansion at the cost of constitutional values and freedoms and rights of the individual. That was the case at the end of the 18th century and in the later period, when – together with the birth of modern constitutions – a question began to be posed about its superior character in relation to the law, and this is the case now. In some countries of Europe, e.g. France, constitutional courts as for the arbiters of the ex-post control of the compatibility of laws with the constitution have not been established till now. They are perceived as bodies in opposition to the rule of the nation’s sovereignty as expressed by the parliament. In France, despite the existence of the Constitutional Council and the extension of its competences in 2008 by constitutional amendment, it still does not have the features of a constitutional court according to the Austrian or German model. In other European countries, on the other hand, contesting constitutional courts can be seen as an obstacle in realizing the political will of the democratically elected parliament. The American model has been referred to as the “dictatorship of courts”. The echo of perceiving the constitutional court as an organ limiting the principle of the nation’s sovereignty as articulated by the political authorities is reflected in the construction of the Kazakh Constitutional Council, not only in its name but also the scope of its tasks which draw on the French Constitutional Council, and not to the German or Austrian constitutional courts seen by the majority of European countries as the model of constitutional law.
In most post-Soviet states the organs of constitutional review of law are perceived as ineffective, dependent on the political authorities and having no influence on the loss of the binding force of unconstitutional normative acts. These are serious concerns that require investigation and explanation: firstly, how do these features manifest themselves in the political systems of those countries and their normative acts (including constitutional ones)? If these objections reflect the legal and political reality, what are their origins? Is it a wrongly shaped state of law, the practice deviating from the former, or maybe a combination of faultily formulated legal regulations and political practice that is inadequate to ←12 | 13→the constitutional models? Are there common features that may be observed across former Soviet countries or, conversely, despite the many years of similar Soviet experiences, does the dynamics of their development vary?
There is a lack of research in the field of constitutional courts in post-Soviet states. This monograph, based on the analysis of normative acts, the circumstances and premises of their creation as well as the circumstances and way of their application, aims to establish the specific political character of the organs of constitutional review of law in post-Soviet states. It seeks to establish and explain the political character of the organs of the constitutional review of law, i.e. their role in the system of state authorities, and assess the tasks assigned to them, the way they were established, the course of their work, the legal force of their decisions, the legal status of their members, and to present conclusions on optimization of the political status of the organs of the constitutional review of law as the organs of the protection of the constitution.
To realize the above research aim, it will be necessary to:
– analyze the process of creation and development of the organs of constitutional review of law (bodies) in post-Soviet states in its historical context,
– establish the legal and constitutional character of these bodies,
– establish the political differences and similarities between the legal solutions and the practice in particular post-Soviet states (viz. Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, the Russian Federation and Ukraine referred to here as “the studied states”),
– recognize the legal and constitutional status of the bodies in the studied states,
– analyze the legal and constitutional status of the members of the bodies in the studied states,
– establish and compare the tasks and competences of the bodies in the studied states,
– establish the characteristic features and the legal force of the decisions of the organs of constitutional review and analyze the relations of those decisions to the sources of law binding in these states,
– assess the effect of the bodies in the studied states on the process of protecting the primacy of the constitution,
– assess the problems and perspectives of the development of the constitutional review of law in the studied states.
The present monograph poses the following major research hypotheses:
1) The legal protection of the constitution in post-Soviet states is based on the so-called European model of the constitutional review of law, according ←13 | 14→to which a specialized organ is formed within the frameworks of the systems of public power whose basic task is the legally binding constitutional review of law. Most frequently, it is called the “Constitutional Court”. An exception among the post-Soviet states is Turkmenistan, where – on the Soviet model – there is no judicial constitutional review of law, and the organ supposed to ensure the compatibility laws with the constitution is formally the parliament, while in fact law is subordinated to the will of the president.
2) The fact that post-Soviet states refer to the model of a constitutional court separate from other state authorities has not led to the adoption of one formula (e.g. the Austrian or German models). Instead, there are different mutations of the European model. The differences concern not only the procedure of electing the persons composing the organs of the constitutional review of law and their legal status but also the scope of their competences, the procedure of executing those competences (including a preventive vs. a repressive constitutional review of law; a complaint from the subjects of private law), and the participants in the constitutional proceedings and the character of the decisions taken.
3) In post-Soviet states, the persons composing the bodies have the status of judges, similar to the legal status of court judges.
4) The organizational structure of the bodies in post-Soviet states is not uniform. Some of them allow for the establishment of chambers or boards of judges possessing the right to realize the competences in the name of the body. This non-uniform organizational structure is not a relevant feature and does not affect the quality of their jurisdiction in the system of the bodies of state authorities.
5) In post-Soviet states, the dilemma of a constitutional complaint as a measure to appeal against the unconstitutional regulations of law to which the non-public participants of legal relations are entitled is solved in varying ways. These variations are not particularly significant and do not influence the limited importance of the constitutional complaint within the system of the protection of constitutional freedoms and rights of persons and citizens.
6) Independently of the reference to the model solutions in European states, the bodies in the political practice of post-Soviet states are able to affect the compatibility of the created law with the constitution only occasionally and to a narrow extent. In principle, they affirm law-making decisions taken by the parliament and the president.
The Importance of the Research
Most analysis of the constitutional courts in post-Soviet states has been undertaken in the Russian language. Analyses were made on selected issues related to constitutional courts in particular countries of the region, as well as individual monographs on constitutional courts in some post-Soviet states. There are also studies devoted to constitutional courts in a few countries of the region, especially comparing the Russian Constitutional Court to the Kazakh Constitutional Council or the Ukrainian Constitutional Court. The major studies include (for example, considering the multitude of excellent publications on different aspects of constitutional courts in post-Soviet states) the monographs of such authors as A. Arseni, Jurisdicţia constituţională a Republicii Moldova, Chişinău 2000; Г.Г. Арутюнян, Конституционный суд в системе государственной власти (сравнительный анализ), Ереван 1999; М.С. Бейбитов, Институт конституционного контроля в Республике Казахстан: эволюция и проблемы модернизации, Алматы 2005; Н.С. Бондарь, Судебный конституционализм: доктрина и практика : монография, Москва 2016; Т.О. Бринь, Конституційний Суд України в механізмі захисту та забезпечення прав і свобод людини і громадянина, Харків 2010; Г.А. Василевич, Конституционное правосудие: учебное пособие для студентов учреждений высшего образования по специальности “Правоведение”, Минск 2014; Г.А. Василевич, И.Ю. Остапович, Нормативность решений специализированных органов конституционного контроля в Российской Федерации, Республике Беларусь и Республике Казахстан: сравнительно-правовое исследование, Минск 2016; П.В. Волвенко, Діяльність Конституційного Суду України щодо тлумачення Конституції України: теоретичний аспект, Київ 2006; В.Д. Зорькин, Конституционный Суд России: доктрина и практика: монография, Москва 2017; А.А. Караев, Конституционный контроль: Казахстан и зарубежный опыт: учеб. пособие, Алматы. 2002; И.И. Рогов, В.А. Малиновский (ред.), Конституционный контроль в Казахстане: доктрина и практика утверждения конституционализма: Монография, Алматы 2015; Р.М. Мырзалимов, Вопросы конституционного правосудия в Кыргызстане, Бишкек 2001; Р.М. Мырзалимов, Конституционная юстиция в странах Центральной Азии, Москва 2013; И.Ю. Остапович, Конституционный Совет Республики Казахстан: вопросы теории и практики, Усть – Каменогорск 2015; А.П. Ткачук, Конституційний Суд у механізмі захисту основних прав і свобод людини: модельний підхід, Київ 2012; К.Н. Холиков, Конституционный Суд Республики Таджикистан: статус, организация и деятельность, ←15 | 16→Москва 2009; Ю.Л. Шульженко, Конституционный контроль в России, Москва 1995.
Although there are valuable publications (books, scientific articles as well as, importantly, dissertations prepared for scientific degrees) on constitutional courts in post-Soviet states, the present monograph fills the gap in the existing research by comparing the organs of constitutional review of law in post-Soviet states. Significantly, this study was prepared by an international team of researchers from the region. The organs of constitutional review in post-Soviet states have been studied earlier in time. However, most of the existing research did not include any monograph of a sensu stricto comparative character on this subject. There is no monograph by authors from different states of the region considering the many aspects of the studied research problem and analyzing constitutional courts in post-Soviet states. There is a lack of deep analysis of the constitutional review bodies in post-Soviet states, their effect on the perception of constitutional regulations, realization of the rule of separated powers or the protection of freedoms and rights of an individual, the constitutional status of the bodies, the practice of their activity and, consequently, the relation between the constitutional regulation of the bodies and their importance for political practice.
The development of the organs of constitutional review of law in post-Soviet states has been determined by the conditions in which those countries found themselves after the collapse of the USSR, the common history and the choice of similar models of political development. Nevertheless, because of different political, historical, economic and other conditions, constitutional courts in these countries have individual features; hence, the need to study and compare them. The various post-Soviet states took different approaches toward regulating the issues of the constitutional review of law, its functions, proceedings before it, the legal character of the decisions taken and the legal status of its members. Therefore a scientific reflection is needed on the political position of those organs, their role in the legal realization of the protection of the constitution, the protection of the constitutional system of the state and the freedoms and rights of individuals as well as securing the implementation of decisions. These issues are of key importance in guaranteeing the superior character of the constitution and the establishment – as proclaimed in those countries’ constitutions – of the state of law. At the same time, the principle of a state of law adopted in post-Soviet states should be understood as related to another principle characteristic of the majority of post-Soviet states, and in some (Belarus, Kazakhstan, Russia, Tajikistan) directly expressed in the provisions of the constitution, according to which the president ensures a harmonious functioning ←16 | 17→and cooperation of the bodies of state authorities and he is the guarantor of the constitution and the rights and freedoms of individuals. He guarantees the realization of the main directions of interior and exterior policy. He undertakes activities to protect the state’s sovereignty, its security and territorial integrity as well as securing its political and economic stability. The president’s realization of the function of securing a harmonious functioning and cooperation of the bodies of state authorities is expressed in his relations with the constitutional court and the possibility of achieving the effects desired by him in the work of the constitutional court.
The above-outlined questions and problems determine the weight of the studies; in other words, the way of realizing the constitutional review of law. A comparative analysis of the states which have common Soviet experiences and which are both politically and economically related is needed. There is also a need to record and review those countries’ search for an optimal and effective variant to realize the constitutional review of law, the procedure of the establishment and activity of the organs realizing it and the creation of the necessary guarantees ensuring the actual primacy of the constitution in the studied states.
A scientific novelty of this research is the introduction of new findings into the international state of research on constitutional courts and these were obtained as a result of studying the institution of constitutional courts in post-Soviet states by a research team of constitutional experts from this region.
Another novelty is the complex analysis of theoretical and legal issues concerning the constitutional review of law and problems of the formation of bodies realizing it, in addition to the establishment of similarities and differences as well as the legal and constitutional status of members of those bodies.
The conclusions and findings reported here extend and supplement the constitutional knowledge on the specific character of the political status of the bodies in post-Soviet states. The presented material enables a multi-dimensional recognition of particular theoretical and legal problems as well as the practice of the activity of the bodies. It can be used to draw conclusions on the specific features of the constitutional review of law in this group of states. Theoretical findings, conclusions and recommendations formulated as a results of these studies can be applied to change the mechanisms of the protection of constitutionality in post-Soviet states, or to show to the law-makers in other countries the consequences of adopting particular legal solutions.
Results of the studies can be used as comparative material in the process of establishing the political status of the organs of the constitutional review of law in contemporary states.←17 | 18→
The formulated arguments and recommendations can also be used in the analysis of the rule of law in particular states of the region. In particular, this kind of analysis is required in the investment process in those countries in order to estimate the constitutional and political risk, predictability of law, its compatibility with the constitution in the context of assessing the investment risk and protecting from that risk.
Outstanding representatives of science in particular countries of the region participated in these international studies, ensuring the quality of the obtained research results, and its high intellectual and prognostic value.
Methodology of Research
This research studied the creation and functioning of the constitutional review of law in post-Soviet states. These states have similar historical experiences (dominated by the Soviet experience) and are characterized by similar constitutional values and a similar manner of realizing them as well as a similar legal and political culture. Most of them belong to one political and economic alliance, namely the Commonwealth of Independent States.
The present studies consider the legislation, juristic science and judicial decisions. The subject of the analysis includes not only the binding legislation but also the historical stages in the development of the organs of the constitutional review of law. This is necessary to get to know the dynamics of their change and understand the process of perfecting the legal constructions. A comprehensive analysis of all these elements at the same time makes it possible to describe and explain the creation and functioning of the constitutional review of law in post-Soviet states. This is why the subject of the research conducted comprises the analysis of constitutional norms referring to the organization and activity of the organs of constitutional review of law in post-Soviet states, the theories and ideas on their placement in the system of state authorities, statutory norms and the norms of other normative acts referring to the organs of the constitutional review of law and jurisprudence where the constitutional regulations of post-Soviet states that directly refer to the constitutional review of law are materialized.
The theoretical basis of the present studies consists of the analyses (monographs, scientific articles, dissertations prepared for scientific degrees, appearances at scientific conferences) by constitutional experts from post-Soviet states as well as experts from other countries in the field of constitutional courts of post-Soviet states, including the issues of the constitutional review of law, cognition of constitutional courts and history of the constitutional review of law. Besides, the theoretical basis of the research includes works devoted to the ←18 | 19→process of the constitutional review of law together with its conditions, importance and the legal character of the decisions of constitutional courts.
The empirical basis is made up of the texts of constitutions and laws of the states in the region relevant to the legal and constitutional status of the bodies charged with the constitutional review of law as well as internal acts of these bodies, official documents of the bodies of post-Soviet states and the jurisdiction of the bodies in post-Soviet states.
The present studies attach great importance to the choice of representatives of the doctrine of constitutional law who prepared reports on the establishment and functioning of the constitutional review of law in post-Soviet states. These are persons with significant scientific achievements who are representative for the doctrine of post-Soviet states. For this reason, constitutional experts from particular post-Soviet states – one from each country – were invited to participate in the project. The analyses were carried out by constitutional experts from the leading universities in the region who specialize in the issues of constitutional courts. The adopted manner of choosing the authors in the research project was expected to guarantee the highest possible quality of the analyses grounded in the specific constitutional character of particular countries. I hope this objective was successfully achieved.
Another outcome of this choice of authors is the building of an international research team, whose work is representative of the doctrine of constitutional law and adequate to be presented not only to readers from post-Soviet states but also from other regions of the world.
Representatives of the doctrine of constitutional law from particular post-Soviet states prepared reports on the constitutional courts in the studied states and this enabled a comparative study in the form of a general report. The latter selected and highlighted the most important tendencies in the dynamics of constitutional courts included in particular reports.
The choice of the analyzed systems of law and the aim of the research affected the choice of the applied research methods. The following research methods were used to realize the research tasks: scientific analysis, synthesis, a comparative legal method and a detailed method, formal-dogmatic, historical-legal and a system-based method, with special importance attached to the formal-dogmatic and comparative legal methods.
Applying the formal-dogmatic method provided an analysis of normative acts related to constitutional review of law in post-Soviet states and their interpretation. The comparative legal method, on the other hand, made it possible to determine the general and specific features in the bodies in the studied states. After the legal solutions and their application in the studied states were presented and ←19 | 20→analyzed, they were assessed, from the comparative perspective. The application of different research methods enabled the researchers to recognize the theoretical and practical aspects of the organs of the constitutional review of law in post-Soviet states.
I would like to thank all those who contributed to this monographic study. First of all, I wish to thank the authors of the research project Constitutional courts in post-Soviet states: between the model of a state of law and its local application (No. 2016/23/B/HS5/03648) for their professional approach in realizing their tasks and for the fruitful cooperation. I also thank the National Science Center (Poland) for financing the studies as well as its workers for their kindness and help in conducting them.
I wish to thank to Elena Belousova (the Department of State and Legal Disciplines, Moscow University for the Humanities, Russian Federation) and Svetlana Inkina (the Department of Public Policy, Higher School of Economics, Russian Federation) for their support.
I am very grateful to Professor Stanisław Sulowski – Dean of the Faculty of Political Science and International Studies, University of Warsaw, and Professor Ewa Maria Marciniak – Director of the Institute of Political Science, University of Warsaw for their kindness, support and understanding, thanks to which we were able to focus on what was the most important for us in this field, and that was realization of the research project in accordance with the adopted concept and research assumptions.
Jacek Zaleśny←20 | 21→
1 I leave out the actual influence of such entities as international concerns, interest groups, regulatory authorities or supra-national bodies and organizations on the binding legal and political relations.
Abstract: The subject of the analysis are constitutional courts in post-Soviet states against the background of the models of constitutional courts. Characteristic features of the models of legal norms review are analyzed. They are compared to the specific character of legal solutions adopted in the examined group of countries. It is argued that this group bases on the European model of reviewing the legal norms. The only exceptions are the cases of Kazakhstan, where French legal solutions are referred to, and Kyrgyzstan, where the control over the compatibility of legal norms with the constitution is assigned to a specially established chamber of the Highest Court.
Keywords: constitutional courts in post-Soviet states, the models of legal norms review, the European model of reviewing the legal norms, extra-parliamentary control of the constitutionality of law
Non-parliamentary constitutional review of law has characterized the development of the constitutional doctrine and law of the last one hundred years. Across a variety of institutions and procedures of constitutional law, no other issue has changed the picture of contemporary constitutionalism so much as constitutional jurisprudence (broadly understood as a mechanism of assessing the compatibility of law with the constitution regardless of whether the organ that makes the assessment is or is not equipped with the formal status of a court). The point is not so much about a simple quantitative change, measured by the number of countries where different versions of non-parliamentary forms of examining the compatibility of law with the constitution were installed, but about a qualitative change, which – to a greater or lesser extent – has changed nearly everything that makes up the classic form of constitutional law. Clearly, constitutional jurisprudence has revolutionised the way of thinking about law (especially the constitution and the relation between national law and international law), political institutions (including the relations between them which are entangled in a broader context of the assessment of the constitutionality of the law) and, finally, ←21 | 22→the key principles and values (the foundation of the contemporary constitutional state). Constitutional jurisprudence – regardless of the form in which it is applied – changed almost everything that traditional constitutional law had previously built and explained (in the institutional, procedural, functional and axiological sense). So it can be said without any exaggeration that the non-parliamentary form of assessing the compatibility of law with the constitution finally created a new, or renewed, science of constitutional law1.
Nevertheless, while non-parliamentary, and especially judicial constitutional review of law radically changed constitutional law (its letter, doctrine and – finally – practice), this review itself is far from being constans. It evolves, changing and slowly taking on a completely new meaning. In the beginning it focused, above all, on formal control (i.e. competence and procedural conformity of law-making), but later the material aspects of assessment (i.e. conformity of the content and substance of the norms assessed) acquired primary importance. Today, on the other hand, both the formal and material aspects are de facto treated as the output instrument for the axiological and teleological constitutional review of law, where the element of the protection of law and individual freedom comes to the front, which is supposed to be the principal ratio essendi of the constitution itself as well as the mechanisms of its protection2. Non-parliamentary constitutional review also changed in the sense that being a stricte legal institution, it gradually acquired – together with its development – the features of a political institution3, so that it now has the form of a mixed institution, which to a greater or lesser degree has political (often far reaching) consequences even if the institution is not assumed to be of a political nature4. Hence, it is suggested – not ←22 | 23→without a reason – that the contemporary constitutional court is neither a judicial or political organ but both at the same time5. This shows how much the picture of non-parliamentary constitutional review of law has changed in recent decades. Some time ago the belief about the political involvement of this review was referred exclusively to particular (i.e. non-judicial) organs of control, which were confronted with the kind of control directly called non-political and expertise executed by the judicial-type or quasi-judicial organs6.
While changing themselves, the organs of non-parliamentary constitutional review of law simultaneously affected all other bodies of the state (which, by the way, was one of the reasons why they acquired the features of political organs, especially if political character is understood as the ability to affect the situation of other entities). This especially concerns legislature and judicature. Due to the procedures verifying compatibility of law with the constitution, the former was significantly limited, forever losing the attributes of non-limited power, treated – if not from the legal, certainly from the political point of view – as the major power (if only because it directly represented the sovereign, which was for years the starting point to increase its legal and political relevance). The judicature, on the other hand, was significantly revalued due to the constitutional review of law, independently of whether the organ of constitutional review of law was ultimately treated as a part of the judiciary or was located elsewhere. This is because since the times of Montesquieu the judiciary was treated as the power “in a sense, none”. This resulted above all from its passive, reactive role and the fact that the judicature – like the executive – mainly executed the law, possessing its own specific instruments7. The center of gravity has always been in the relationship between the legislative and the executive branches of power. Constitutional review of law entrusted either with the organs of the judicature, or organs modeled on it, radically changed the state of affairs. In fact, the judiciary became the key power, which – while referring to the vertical relation between the norms of law – arranges the state’s space in nearly all its areas (legal, organizational, functional, procedural and axiological ones). That was why the constitutional ←23 | 24→court, independently of whether it de iure is a court or an organ at most similar to it, changed the judicial power so much and this, in turn, changed the whole map of the state’s constitutional bodies, thus irretrievably departing from its classic canon.
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- 2019 (November)
- constitutional judiciary legitimization of power separation of powers instrumentalization of law political marginalization state power
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2019. 628 pp.