PhD, Judge of the European Court of Human Rights
The Role of the Constitutional Court in Democratic Society
The constitutional court is a central but not the only instrument of democracy and constitutionalism. There cannot be a constitutional court without a constitution. Therefore, the role of the constitutional court should be viewed in a wider perspective embracing the general issues of democracy, constitution, and constitutionalism.
There is reason to believe that, relying on our earlier experience of statehood and having lived according to our constitution and practising democracy for the past 15 years, while being in close co-operation with democratic states in Europe and elsewhere in the world, we have learned something. We have passed the beginner course in constitutional democracy.
This allows me to limit the 'general part', as lawyers would say, and address some issues of Estonian constitutionalism that concern us today. My article broadly consists of two parts: the first considers the role of the constitution and constitutional court in democratic society, and the second part (the 'implementation' part) briefly assesses Estonia 's current situation of constitutional law and asks how we should proceed.
Ralf Dahrendorf 1 has written that constitutional democracy is built in three stages:
The drafting and establishment of a new constitution laying down the basic values of statehood, fundamental rights, the main paradigms of the rule of law, independent administration of justice, and separation of powers. This is 'the hour of the lawyers', as he put it.
The creation of a market economy, including amongst other things anti-monopolism, economic rivalry, and free competition with the development of a certain social protection network.
Establishment of civil society - the building of substantial sources of power outside the state and, more often than not, against the state. This is a network of autonomous institutions and organisations that have not one centre but hundreds or even thousands of them and that a monopolistic state or party authority cannot liquidate or eliminate.
Dahrendorf speculated, perhaps somewhat optimistically, that the first stage might last six months, the second six years, and the third 60 years (or three generations). Estonia has been through the first two stages and entered the third. Therefore, the building of constitutional democracy in Estonia has not nearly finished yet.
Constitutions are drafted at and after times of upheaval. They usually bear the stamp of past fears. They are generally created on the basis of a recent bad experience and in order to avoid recurrence of that experience. The drafters of the 1787 United States Constitution were almost paranoid in their endeavour to avoid monarchy and populist democracy. The fear of Nazism and the negative experience of the failure of the Weimar Republic led the way to the drafting of a modern German constitution. In 1958, de Gaulle was desperate to avoid a paralysis of the parliament of the Fourth French Republic . These are but a few examples. Similarly, East-European countries, including Estonia , wrote their constitutions on the basis of, and trying to avoid, earlier bad experience. We can say in retrospect that this was the right course of action, as we have been able to avoid falling back so far.
Judicial review of power has a history of about 250 years. Already at the time of the French Revolution, or, to be more exact, in 1748, Montesquieu, being a judge, called for a strict separation of powers, while reducing the role of the court to that of the mouth of the law - bouche de la loi - subordinated to authority, a judge being a state official, and centralising the core of power in the hands of the legislature. Napoleon successfully spread the doctrine throughout the continent. On the other side of the Atlantic , in the United States , things turned out quite different - Chief Justice John Marshall introduced judicial review of legislation and of executive acts. This came about in a situation where the US Constitution itself did not expressis verbis provide for such competence. These two different trends were consolidated in Europe over a long process of development, mainly via German-language legal culture, into judicial constitutional review as we know it today. Without delving into the details of the history of law, we can see that today's democracy, whose most integral component is judicial constitutional review, is a result of 200 years of development. We were not part of that development for most of that time.
We all know the simple definition of democracy as the power of the majority. However, it would be a great mistake to see things in so simplified a manner. Today's democracy is much, much more than merely the power of the majority. Mistake majority for democracy and it is only a question of time and circumstances before one sees the evolution of authoritarianism, even dictatorship. Reducing democracy to merely the power of the majority is Jacobinism, which, as we know, was abandoned a long way back in history.
The constitution is the law of power. Power today means politics, both internal and external. Therefore, constitutional law together with its implementation and supervision (i.e., judicial review) is essentially and inevitably the most political law and legal activity of all. There is no reason to purport or convince anyone of the opposite - the whole question is about limits and methods. To define the latter, one has to be well familiar with oneself, the pertinent law and its doctrine, and the relevant experience of other countries.
In the discussion of the French Constitution in 1791, Saint-Just said that people have one serious enemy - their own government. Without a constitution, democracy as the law of the majority can easily become tyranny. A constitution, and especially constitutionalism, must keep democracy from running amok. It is not the legal act or its text that is decisive, even if it is the fundamental law, but the constitutionalism arising from it - the set of principles, methods, institutions...