Constitutional Politics and the Judiciary

Decision-making in Central and Eastern Europe

Kálmán Pócza

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429883590
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Recent confrontations between constitutional courts and parliamentary majorities, for example in Poland and Hungary, have attracted international interest in the relationship between the judiciary and the legislature in Central and Eastern European countries. Several political actors have argued that courts have assumed too much power after the democratic transformation process in 1989/1990. These claims are explicitly or implicitly connected to the charge that courts have constrained the room for manoeuvre of the legislatures too heavily and that they have entered the field of politics. Nevertheless, the question to what extent has this aggregation of power constrained the dominant political actors has never been examined accurately and systematically in the literature. The present volume fills this gap by applying an innovative research methodology to quantify the impact and effect of court's decisions on legislation and legislators, and measure the strength of judicial decisions in six CEE countries.

1Introduction

Kálmán Pócza

Recently, political backlash against constitutional courts seems to have become a more or less general phenomenon in several Central European countries. In the last years, several political actors in the region have expressed their discontent with the juridification of politics and practice of judicial supremacy. They have argued that courts assumed too much power after the democratic transformation process in 1989/1990, and that they have used this power in an illegitimate way. These claims are explicitly or implicitly connected to the charge that courts have constrained the room for manoeuvre of the legislatures (and the executive) too heavily and that they have entered the field of politics. Thus, backlash against them should be interpreted rather as an act of balancing the power relationships between courts and legislatures (or other branches of political power).

Nevertheless, the question to what extent this aggregation of power and authority has constrained the dominant political actors in fact has never been examined accurately and systematically in the literature. Of course, there are several pieces and volumes focusing on the clashes between courts and legislatures (or courts and executives), but these are rather illustrative investigations with no coherent methodological background. The JUDICON research project¹ elaborated a systematic method to (1) map the diversity and (2) measure the strength of judicial decisions. This new methodology facilitates assessing systematically the multi-faceted reality of constitutional adjudication and measuring the strength of judicial decisions. In order to fit research to reality, a scale has been elaborated to answer the question to what extent courts have constrained the legislatures in general. A major impulse for presenting a new methodology came from a survey of the scholarly literature and its comparison with the reality of constitutional adjudication.

Our starting hypothesis was that the practice of constitutional adjudication in Central Europe (CE) has been more diverse than has been supposed by legal research. Our findings partly confirm this hypothesis. In fact, some courts have employed more tools available to them; thus, diversity of judicial rulings in these countries has been more characteristic than in other Central and Eastern European (CEE) countries. Hence, the diversity of judicial decisions in CEE presents a mixed picture. However, most courts were very careful in their practice and were inclined to select tools which were in no sense radical and which constrained only slightly their parliaments. In this sense, with the exception of some courts, constitutional adjudication in Central Europe has been very careful and the courts’ practice proved to be highly self-restrained. We expected that the German Federal Constitutional Court (FCC) and the Hungarian Constitutional Court (HCC) had performed outstandingly and constrained their legislatures more heavily than any other court in the region, since these two courts have always been considered the strongest courts in the legal scholarship. In some respects, this hypothesis has been confirmed. In other aspects, however, we were compelled to contest it. While constitutional adjudication in Hungary proved to be the most diverse, the HCC constrained the room for manoeuvre of the legislature to a lesser degree than its counterparts in Germany or Slovakia. While the most powerful court was clearly the first Slovak court (1993–2000), the constitutional adjudication of the Romanian Constitutional Court (RCC) and the Polish Constitutional Tribunal (PCT) could be best characterized as highly moderate and restrained. These findings are all the more interesting since, beyond the Hungarian one, these two courts had to bear the most direct and impulsive attacks from political actors. Consequently, the general argument of the political actors of these countries, which states that courts intruded into the field of politics and illegitimately constrained the democratically elected legislatures, seems to be inadequate and should be considered rather as a fictitious narrative which aims to underpin the political intentions of the dominant actors. Not surprisingly, it was the German Federal Constitutional Court (FCC) which became more frequently a “positive legislator” and prescribed the Bundestag most frequently how to remedy unconstitutionality. Since the FCC built up its authority slowly and is by far the oldest court as compared to other courts of the region, it was not astonishing that the FCC included positive prescriptions either in the operative part, the headnote (Leitsatz) or in the justification of its decisions. Recently established courts of the CEE region have dared only very rarely to become positive legislators, and this is true for the three courts of the region which found themselves under heavy strain from the second half of the 2000s, i.e. the Romanian Constitutional Court, the Hungarian Constitutional Court and the Polish Constitutional Tribunal. This does not mean, however, that the Czech Constitutional Court (CCC) was able to completely escape the politicization of its operation. While the CCC was clearly the most isolated court and the behaviour of the CCC judges could not be explained by political circumstances or the influence of political parties, the CCC had the highest number of rulings with at least one dissenting opinion during the 1990s. This polarization is all the more interesting, since in the last decade of the 20th century judges of the other courts in the region only rarely published dissenting opinions. Trends in and network analysis of dissenting opinions indicate that political polarization of the courts commenced in the early 2000s in almost all CEE countries. Thus, challenging the non-partisan position of the courts is not unprecedented or a new phenomenon, even if the international media first realized this polarization process only after the attacks against the courts in the second decade of the 2000s.

As a general assessment, we will argue in this edited volume that the narrative of politicians referring to the ever-growing extension and misuse of judicial power seems to be somewhat incorrect, while political polarization of the courts became a more widespread phenomena as early as from the first years of the 2000s, which has been, in turn, generally neglected in the legal scholarship to date.

Outline of the volume

This volume is about the practice of constitutional adjudication in Central Europe with a special focus on the puzzling relationship between constitutional courts and legislatures. It does not concentrate on either the theory of judicial or legislative supremacy or the institutional design which, of course, might influence both constitutional adjudication and the relationship between these institutions. Furthermore, it will deliberately avoid any philosophical questions concerning the legitimacy of judicial review, and its main approach is certainly not in line with classical works of (European) legal scholarship. It does not aim to find an answer to the question of supremacy, nor does it approach the question of the relationship between the judiciary and the legislature from a merely legalistic point of view. Instead of philosophical, theoretical and purely legal questions, we have decided to explore empirically and systematically the practice of constitutional adjudication in Central Europe with a special focus on the diversity of judicial decisions and the strength of the constraint they exercise on the legislatures. Consequently, this work fits rather in the field of empirical legal research, which has a rich tradition in the American legal research community but is relatively unknown in the European context.²

This book is a product of the JUDICON research project,³ in which we have focused on six Central European countries (Czech Republic, Germany, Hungary, Poland, Romania and Slovakia) between 1990 and 2015 and formulated two aims: first, we have elaborated a new methodology to map the diversity and measure the strength of judicial decisions (methodological part). Second, based on this coherent methodology and the database created by the project, we have explored the diversity and measured the strength of judicial decisions in six Central European countries (descriptive part). Having these aims in mind, we formulated two research questions:

How differentiated are the decisions of the Central European constitutional courts? (diversity of judicial decisions)

To what extent have these differentiated decisions of Central European constitutional courts constrained the room for manoeuvre of the legislature? (strength of judicial decisions)

A major impulse for formulating our research questions came from a survey of the scholarly literature and its comparison with the reality of constitutional adjudication. Obviously, there is an almost inexplicable discrepancy between the theory and practice of constitutional adjudication. The main deficiency of research on constitutional adjudication consists of an unsophisticated dichotomous approach that merely categorizes decisions of constitutional courts as positive or negative, i.e. as decisions that concluded in declaring the constitutionality or unconstitutionality of a given legal regulation. This approach is deeply inconsistent with the worldwide practice of constitutional adjudication, since the latter has shown widespread differentiation of judicial decisions over the last thirty years. Interestingly, constitutional adjudication in Central Europe shows striking diversification and is, consequently, decades ahead of empirical research on judicial behaviour. Refined practices of constitutional adjudication clearly exceed the upholding/strike down dichotomy, applied in the research on constitutional adjudication, by declaring a variety of provisions like legislative omission, procedural unconstitutionality, determining constitutional requirements, declaring complete or partial, ex tunc or pro futuro annulment or giving some prescription as to how to remedy unconstitutionality. Mapping this diversity of judicial decisions is one of the main aims of this book.

Furthermore, diversity of judicial decisions implies that we might be able to arrange judicial decisions into a ratio scale and evaluate them according to their strength. Although in legal terminology, the strength of a judicial decision seems to be a concept rather difficult to interpret, “strength” as used in this research project shows the extent to which constitutional courts restrict the room for manoeuvre of another constitutional organ (in this research project, the legislatures). While all decisions of a constitutional court have the same legal binding force, they may reduce the scope of legislative activities to varying degrees. For example, in cases the methodological chapter of the volume describes as formal unconstitutionality, legislatures made “only” a procedural mistake in the adaptation of the bill. After having corrected this procedural flaw of the legislative process, they might adopt the same law, often even with the same content. On the other hand, in cases of substantive unconstitutionality, the regulation should be changed substantively, i.e. its content should be transformed to meet the constitutionality criteria. In the second case, constitutional courts significantly narrow down the scope of legislative activities, since the court has found the content, rather than the way the bill was adopted, unconstitutional. Consequently, a decision based on substantive unconstitutionality is stronger than one based on formal unconstitutionality because it might limit the legislature’s room for manoeuvre more heavily. It is important to note that by measuring the strength of judicial decisions, on no account do we want to measure the impact of judicial decisions. The term “strength” as used in our research might be best described with a boxing metaphor: measuring strength is measuring the power of a punch, and by no means the kind of impact this punch had on the other boxer. It is not considered whether this opponent could have side-stepped or is only slightly shaken, in spite of the fact that it was a very strong punch. To put it briefly, strength is not measured by the intensity of the impact of a decision.

To explore the diversity and measure the strength of judicial decisions, we have elaborated a new methodology which is apt to give a more nuanced picture of the practice of constitutional adjudication in Central Europe. We present the details of this methodology in Chapter 2. After assessing the literature on the empirical analysis of judicial decisions, we define the unit of observation of the research, which is also quite different from common approaches to judicial decisions. Since decisions of the constitutional courts might contain several rulings, we disaggregate all judicial decisions into rulings (units of observation). Neglecting the fact that court decisions are usually complex entities distorts all empirical analysis, a practice that should definitely be avoided. By disaggregating the decisions into rulings, we will certainly avoid this common mistake of empirical legal research. Beyond this fundamental novelty considering the unit of observation, we also present the main components and elements, i.e. the building blocks, of all judicial rulings. Naturally, in practice all courts do not employ all of the elements as presented in the chapter. Nevertheless, our fundamental aim is to present the tool-box judges might use in configuring their rulings. The elements presented should be considered as a repository of possible instruments judges can select from to make their decisions. In the next step, we present ruling of types which are aggregations of different elements of judicial decisions into the categories of weak, average and strong forms of rulings. By contracting the elements into ruling types, we are able to shed light on the diversity of rulings of courts in Central Europe: some combinations, i.e. ruling types, are completely absent from certain courts’ practice, while others are clearly preferred. Declaration of substantive unconstitutionality with pro futuro temporal effect without any positive prescription has certainly been a preferred ruling type of the Polish Constitutional Tribunal, while the same court has never interpreted the constitution in abstracto. Concerning the second research question about the extent courts have constrained legislature’s room for manoeuvre, we will introduce a scale based on certain fundamental principles that will serve as the starting point of the empirical analysis dealing with the strength of judicial decisions. The next section of the chapter deals with the explanation of weighting the elements of judicial decisions. Certainly, this part of the project might implicate some debate, but we hope to clarify the most important questions and dispel all concerns regarding the measurement of the strength of judicial rulings. Next we clarify the methodology of analyzing dissenting opinions and dissenting coalitions, and in the last section of the chapter we deal with future research based on the JUDICON dataset the authors of the project are to conduct.

Chapters 3 to 8 include country studies presenting the results of the coding process and the analysis of the relevant countries’ datasets. The country studies follow the same coherent structure as the research methodology. We have structured each chapter in line with our predefined questions. Each country study will introduce the respective constitutional court by outlining its historical origins, the court’s position within the constitutional system, its main competencies and institutional peculiarities or special processes unknown elsewhere in the region. Naturally, the courts’ formal powers might have explanatory power concerning the diversity and strength of judicial rulings, but we have applied a different perspective. We intended to map and measure Central European courts’ judicial decisions. Consequently, although the authors of the country studies refer to the (missing) formal powers of the relevant court, our main focus will be on the next parts of the studies. First, we asked the authors to present their general impressions of the court’s activity based on the evaluation of the JUDICON dataset of their respective countries. We wanted to know whether there were any kinds of country-specific phenomena concerning case selection, coding processes, dissenting opinions, decision procedures or other elements deviating from our consistent coding rules. After these general impressions, we asked the authors to assess the trends in majority rulings. Questions pointed to whether there were preferred or missing ruling types, whether any changes or trends are observable in the court’s ruling types, and we also asked the authors to try to find explanations for these trends and changes in ruling types. Similarly, we asked them to assess the trends and changes in the strength of majority rulings, and to determine whether these changes are linked to changes in political conditions or changes in the court’s composition. On the other hand, in some countries, there were no clear trends discernible. In these cases, we asked the authors to find an answer to the absence of trends. Since in most countries the court’s president has a special influence on its activity, every study (except for the German one) has a section on the comparison of the president’s performance with that of the majority rulings. Subsequently, there will be an analysis of dissenting opinions. Here, once again, there are some countries (foremost Germany) where the number of dissenting opinions is so low that they cannot be analyzed. In other countries, however, trends in publishing or not publishing dissenting opinions are clearly recognizable, as are judges who have been more willing to give dissenting opinions. Also, the authors were able to assess individual judges’ performance concerning the frequency and strength of dissenting opinions, as well as their relative difference from the rulings’ strength of the majority position. Since we have also prepared a network analysis of dissenting opinions within the JUDICON project, the country studies touch upon the question of dissenting coalitions, i.e. identifying the judges who were willing to join each other for a dissent. As a concluding part, a qualitative evaluation closes the country studies where the country experts deal with specific cases and court decisions.

In the last chapter of the book (Chapter 9), we undertake a general assessment of the performance of Central European courts. ...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Contents
• List of Figures
• List of Tables
• List of abbreviations
• List of judicial cases
• List of contributors
• 1 Introduction
• 2 Research methodology
• 3 The Czech Constitutional Court: Far away from political influence
• 4 The German Federal Constitutional Court: Authority transformed into power?
• 5 The Hungarian Constitutional Court: A constructive partner in constitutional dialogue
• 6 The Polish Constitutional Tribunal: Deference beyond the veil of activism
• 7 The Romanian Constitutional Court: Muddling through democratic transition
• 8 The Slovak Constitutional Court: The third legislator?
• 9 Courts compared: The practice of constitutional adjudication in Central and Eastern Europe
• Index