It is with great pleasure that I am here today, to represent the Venice Commission of the Council of Europe, in this beautiful city of Tallinn and to open this conference on the occasion of the 15th anniversary of the adoption of the Constitution of Estonia. Your constitution has served you well in these 15 years, proving a firm basis for accession to the European Union. The Venice Commission is glad for having been of assistance in identifying in its opinion various issues related to this accession. In another opinion the Commission confirmed that the establishment of a constitutional review chamber is a perfectly valid model of constitutional control.
In order to celebrate this anniversary you chose a timely topic, as several constitutional courts have been criticised recently for being too ‘activist’. A number of them have been under serious pressure with respect to decisions they have rendered. We have seen cases in the past where, for instance, state powers have ‘punished’ constitutional courts for delivering unwelcome decisions, by not appointing new judges, thereby trying to ‘starve out’ the court by pushing the number of remaining judges below that constituting a quorum. The Venice Commission has assisted courts in such situations through direct support and by giving opinions pointing out solutions for avoiding such problems in the future.
As you well know, constitutional courts are often unfairly accused of ‘judicial activism’, a term frequently used in a negative sense to describe the tendency of judges to follow a particular, sometimes political or personal, agenda. Constitutional courts repeatedly face such accusations and the oft-asked question of whether constitutional review by a constitutional court is really law or whether it should be considered politics.
It is true that, over time, constitutional courts have been entrusted with more and more tasks that go far beyond the role of the negative legislator - a role attributed to them by Kelsen , the inventor of ‘specialised constitutional courts’. The negative legislator’s tasks were envisioned as merely to set aside enacted laws that were not in line with the constitution.
However, the line between interpretation of the constitution and judicial activism is difficult to draw. This is where the accusations of judges meddling tend to come in. Politicians often expect courts, when interpreting the nation’s constitution, to exercise judicial restraint - in other words, to refrain...