Constitutional Courts in Central and Eastern Europe: What Makes a Question Too Political?

Author:Renata Uitz
Position:Associate Professor, Central European University, Hungary

1. Constitutional courts entering the political scene: Fears and expectations - 2. 'Political questions' and constitutional review: On and beyond Baker - 3. Handling transitional justice cases: Never too political - 4. Courts participating in politics ordinary - 5. Conclusions: Unexplored directions, lessons, and caveats


Renata Uitz

Associate Professor, Central European University, Hungary

Constitutional Courts in Central and Eastern Europe: What Makes a Question Too Political?

When constitutional courts and political questions are mentioned in the same sentence in post-Communist Central and Eastern Europe , several rather discomforting scenarios come to mind even when only news items of the past year or so are scanned.

One will find, for instance, that the Romanian Constitutional Court was deeply involved with the impeachment of the country's president in the spring of 20071. After a scandal erupted around him in early January 2007, the Constitutional Court first reviewed an amendment to the referendum law that would have made it easier to impeach the President (20 February 2007); then it found that it was constitutional to set up a parliamentary investigation commission inquiring into the President's activities (21 March 2007). These decisions were followed by the court finding that, although the President's alleged acts were seriously problematic, they were not severe enough to merit impeachment (5 April 2007) - a point made while the impeachment procedure was still pending in Parliament. The Constitutional Court then sent an explanation of this decision to the parliament in a matter of days ( 17 April 2007 ). Once Parliament voted in favour of suspending President Basescu, the Constitutional Court confirmed the interim president without further ado (20 April 2007). President Basescu refused to resign 2 , and in a month voters refused to impeach him in a referendum3.

In Poland it did not take long for relations between the Constitutional Tribunal and the political branches to grow tense after a coalition government led by the Law and Justice Party (PiS) entered the political scene. In February 2006, the Constitutional Tribunal's chairman at the time, Marek Safjan 4 , published a commentary in Gazeta Wyborcza harshly criticising President Kaczynski's statements about the Constitutional Tribunal, calling the President's words "astonishing and disturbing to a great degree"5.

The Polish Constitutional Tribunal most recently 6 clashed with the political branches in a high-profile case wherein it invalidated the newest lustration law in May 2007 - right before the contested lustration procedure was to have taken effect7. The bill was the Kaczynski government's pet project in its mission to clear the public sector of old Communists. In the decision, Chief Justice Jerzy Stepien issued a reminder that "a state based on the rule of law should not fulfill a craving for revenge instead of fulfilling justice"8. A commentary in the Polish edition of Newsweek reminds the reader that, while in striking down the lustration decision the Constitutional Tribunal preserved its independence in the face of constant attacks from the ruling coalition, the decision was reached over a record number of dissenting opinions9. President Kaczynski reportedly indicated before the decision that "if the law was ruled unconstitutional, the government would make thousands of secret police files public. [...] After learning of the tribunal's ruling, Mr Kaczynski said: 'This isn't over'." 10

In the meantime, the finally operational Constitutional Court of Ukraine is deeply involved in the political crisis centring on parliamentary dissolution11. In early April 2007, President Yuschenko ordered the dissolution of Parliament and called for early elections, in part because - as a result of defections - the Yanukovich-led parliamentary majority was dangerously close to acquiring sufficient support to override presidential vetoes12. The dissolution orders were challenged before the Constitutional Court , which - not for the first time - exposed the judges of a constitutional court to immense political pressure. The chairman of the Constitutional Court resigned, and five of its judges complained about unacceptable political pressure at a news conference13. Indeed, in less than two weeks, Prime Minister Yanukovich became so impatient as to say to the Polish media that if the Constitutional Court is unable to decide about the constitutionality of the dissolution order, it deserves to be disbanded14. In mid-May, the chief of the security services said in a television interview that the services were not imposing any pressure on the Constitutional Court but acknowledged that they were investigating corruption charges against a Constitutional Court judge15. Soon three judges were dismissed from the Constitutional Court and another four went on sick leave, a development that prompted the President's administration to conclude that the Constitutional Court did not exist anymore 16 and then to order a probe against the court with the prosecutors' office17. When the Constitutional Court 's new chairman took office, he assured the polity in a lengthy newspaper interview that the Ukrainian Constitutional Court was not politicised18.

These are some of the harshest instances of constitutional courts getting involved in intense political scandals. As even such a short record indicates, fears of the political repression of constitutional courts in the post-Communist sphere are not completely unfounded. It remains a question, however, how much politics is too much before and around a constitutional court. The limitations of the present paper certainly do not allow for a comprehensive, systematic consideration of all the issues and relevant jurisprudence. I hope to highlight on the following pages at least some of the most disturbing problems and draw the reader's attention to concepts and considerations that may assist in addressing these issues.

1. Constitutional courts entering the political scene: Fears and expectations

Constitutional review is a task or power surrounded by serious doubts, distrust, and reservations in many jurisdictions. Those best known for their deep-seated objections against government by judges are the French, with these long-held sentiments clearly informing the creation of the Constitutional Council in 1958. Indeed, it took more than a decade for that council to abandon at least in some respects the intellectual confines surrounding its jurisdiction in its famous decision on freedom of association. While in the United States the judicial review power of the Supreme Court as established by Chief Justice Marshall in Marbury v. Madison has slowly acquired its place in the constitutional edifice, its critiques never really ceased, and the current voices calling for 'taking the constitution away from the courts' (to borrow Mark Tushnet's proposal) merit serious scholarly discussion19.

In the time of transition to democracy, the creation of post-Communist constitutional courts was in large part fuelled by a distrust of the judiciary and by the firmly held belief that courts and judges inherited from the Communist regime were (or would be) incapable of exercising the powers allocated to the constitutional courts20. In post-Communist Central and Eastern Europe , constitutional courts were established at the dawn of transition to democracy21. Following to some extent the German model, newly created constitutional courts were established outside the ordinary judicial hierarchy22. These new courts were then entrusted with broad powers, often but not always encompassing abstract and concrete judicial review, preliminary review of legislation, abstract constitutional interpretation, presidential impeachment, and powers related to the control of elections and referenda23.

The newly created constitutional courts were frequently staffed by eminent lawyers, who often were not required to have served in a judicial office before24. The new constitutional courts enjoyed a high level of institutional trust, and thus popular legitimacy in these fledgling democracies. While their current public opinion ratings might not be as high as they used to be, constitutional courts tend to be among the most trusted public institutions in the post-Communist zone, despite the problems exposed in this paper.

Post-Communist constitutional courts were expected to become the ultimate guarantors of the fundamentals of newly crafted democratic constitutions, guarding institutional arrangements (including separation of powers and the independence of the ordinary judiciary) and fundamental rights alike. Among their top achievements most constitutional courts by now may list their contribution to their countries' membership in the Council of Europe, membership in NATO, and their recent accession to the European Union - which had specified "stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities" as a crucial prerequisite for membership25. These are undeniable success stories, in spite of occasional darker spots in the record.

Nonetheless, one cannot help but notice that some of their powers almost automatically drag constitutional courts into the dark den of daily politics. The Romanian as well as the Ukrainian case discussed above arose as a consequence of the exercise of such powers. This certainly does not mean that constitutional courts testing the constitutionality of impeachment or parliamentary dissolution automatically make themselves targets of political persecution. It is well known that the German Federal Constitutional Court had decided twice already on the constitutionality of the exercise of presidential powers to dissolve the Bundestag, and, while these not might be the least-criticised decisions of the court, they did not harm the court's legitimacy or reputation. To...

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