In The Ideal Constitution (in the section Philosophy under About) , we described constitutional principles that would ensure a proper separation of powers and specifically an independent judiciary. This is especially important if the judiciary engages in the constitutional review of law.
We support and defend constitutional review as an important part of constitutional democracy. Decision by judges regarding the constitutionality of laws have not been without controversy however and backlash to judicial decisions has worsened the last couple of years. But what is the alternative?
Parliamentary sovereignty, where parliament itself interprets whether its laws conform to the constitution, is pure (representative) majoritarianism. Democracy in its purest form with the constant threat of the tyranny of the majority. The constitution being only a set of guidelines for the legislative majority.
The judicial branch serving as the final (and thereby highest) authority allows for the constitution to limit the democratic process in accordance with its principles. Constitutionalism and rule according to a higher law are in that sense inherently undemocratic. Inviolable human rights are in and of themselves not democratic.
But the judiciary as final authority means that the trias politica is not fully equal. Such a balance of powers is honestly impossible anyways. Therefore, the appointment of judges remains everything.
There are 2 systems of constitutional review in countries. Review by the regular courts, or by a special constitutional court.
The ideas behind a constitutional court are relatively logical. It is a separate court that is not a regular part of the judicial branch, which is instead headed by a separate supreme court. It is a court tasked solely with the important task of interpreting and enforcing the constitution. It does not preside over appeals in criminal or civil cases.
In a way it serves as a separate institution from the 3 branches, mediating conflicts between the 3. The highest constitutional interpreter not being in charge of the judicial branch can also prevent an overly powerful Supreme court.
Yet constitutional courts can sometimes be extremely powerful, sometimes almost by constitutional design. While the power to review the constitutionality of parliament’s laws and decrees and decisions by the executive is great, in some countries constitutional courts also have a part in the impeachment of presidents (South Korea), challenges to elections (Austria) and the outlawing of political parties (South Korea again, Chile, Germany). The application of law in criminal and civil cases by the regular judiciary is relegated to an extremely subordinate and secondary issue. In Spain and Poland, the number of Supreme Court judges isn’t constitutionally defined and these courts can be rather easily packed, but this isn’t considered important as the appointments to the constitutional courts are treated as important instead.
Constitutional courts are still called courts, reflecting the notion that courts form the most independent and reliable form of arbitration. Yet at the same time they are separate from the regular judicial system reflecting the higher authority inherent to constitutional review. Because off this, constitutions are often crafted to prevent such courts from becoming an unaccountable elite.
The terms for constitutional court judges tend to be shorter and their appointments far more politicised. Often only a minority of judges (if any) serving on a constitutional court, get nominated by the regular judiciary. In and of itself this isn’t a problem as judicial co-optation can create a state within a state, but the political appointments together with overly short terms can be a problem.
The form the political appointments take, differ per state yet they are crucial. Judges nominating a minority of judges on the constitutional court can be a good thing, each branch of government nominating some of the judges serving on the highest constitutional authority is and of itself balanced. But the the executive being able to appoint some members by itself without confirmation by the senate or an other body (as is the case in Chile where the president chose 3 of the 10 constitutional court judges, or Ukraine, South Korea and Italy where the president chose a third of the judges) allow for too many partisan appointments.
This is also a problem in Austria where the president appoints constitutional court judges while the government nominates half, HALF! In Spain even the 2 out of 12 constitutional court nominations by the government (which relies on a majority in parliament) lead to partisan and politically contentious appointments.
Another problem is when nominations by parliament only require ordinary majorities as in Italy and Austria.
Spain requires 60 % in both chambers which prevented one-sided partisan politicisation but did not prevent horse trading. The majority requirement may not be high enough.
Next, there is Poland which had constitutional tribunal judges appointed by a simple majority in the lower house (doomed from the start).
Finally, in France the President simply appoints 3 members of the constitutional council, the president of the senate 3 and the president of the lower house 3. 3 people appoint all the members, though ex-presidents can choose to sit as well. If 3 living ex-presidents chose to do so…
Such constitutional councils as in France, which aren’t clearly defined as a court, are problematic in that they adhere less to the idea off justice, rule according to a higher law and rechtsstaat. They’re inherently more political and off a less professional or even seemingly impartial nature. Constitutional councils are thankfully rare.
When it comes to terms, both South Korea and Mongolia adopted ridiculous 6 year terms for its constitutional court judges during politicisation. 3 are chosen by president (without any checks and balances), 3 by (a simple majority in) parliament and 3 by the chief justice of the Supreme Court. But the Chief Justice of the Supreme court is also chosen by the president and then confirmed by (a simple majority in) parliament. Both states are unicameral. This can often result in a successful party winning both the presidential and parliamentary elections (if not political deadlocks threaten to happen) but being faced with opposition nominations the first couple of years. But then the president can nominate and new chief justice and eventually 3 judges, while parliament can choose 3 such judges as well. By the time of the next elections, the judicial top is controlled by the ruling party. Then if the opposition wins the next election, they have to deal with this a couple of years till later in their terms they appoint a supermajority of judges and on it goes. It is almost a 2 party system being applied to the constitutional courts causing the early part of ruling to suck and the last part to be too unlimited.
Such 6 year terms prevent any legal continuity. After 7 years citizens are faced with a completely different court. The terms are almost as short as presidential and parliamentary terms. 9 years terms as in Colombia, Spain and Italy are slightly better. But dominant parties that win 2 elections can still take over the system.
Terms being renewable completely goes against the idea of judicial independence, yet certain constitutional courts and the CJEU practice it (the EU’s highest court also has short 6 year terms).
An exceptional horror is Spain with the year terms being renewable for 3 years. Such renewal depends on political support and therefore radically threatens independent judicial decision making.
Germany developed a better system by having 12 year terms for constitutional court judges as having half chosen by a 2/3 majority in the lower house, and half by the same majority in the upper house.
Orbán thankfully extended the terms off constitutional court judges from 9 to 12 years as part of his constitutional reforms and made them non-renewable while also requiring a 2/3 majority in parliament for appointments.
Ordinary court constitutional review
In countries where constitutional review predates the introduction of specific constitutional courts (in Czechoslovakia and Austria in the early twentieth century) constitutional review was practiced by the regular judiciary with the final authority resting with the Supreme/High Court of the country. Constitutional review is a regular part of judicial review, interpretation of laws, jurisprudence and so on. This can create a streamlined a cohesive interpretation of the constitution and the law by judiciary.
But when judicial precedent can itself become a source of law, judicial activism far removed from the constitution becomes a greater problem, which can be made even worse when the judiciary has to mediate between different groups within the bureaucracy. This is not an issue when interpretation of law and the constitution are separated and when constitutional review isn’t an ordinary part of jurisprudence.
More recent constitutions in some developing countries specifically gave their supreme courts the power of constitutional review along with them serving as the court off final appeal (Philippines, Japan). They de facto function as both constitutional and supreme courts. When the constitution specifically provides this authority courts will often (but not always) engage more easily in constitutional review.
In some countries constitutional review was merely implied in the constitution and then asserted by the courts (USA), not really implied but still developed (Weimar Germany), the courts interpreted the constitution as prohibiting constitutional review (Finland) or the constitution outright banned constitutional review (The Netherlands). The last two options are completely unacceptable for a proper constitutional state.
I believe that if constitutional courts are too work, they need to follow the more independent and consensus-based model of at least 12 year terms for judges and large majority nominations.
But constitutional review by the regular judiciary, possibly confined to the supreme court, seems a better system overall. It allows for more judicial restraint. A constitutional court has as its main function to declare laws and decrees unconstitutional. This is not treated as something exceptional. Appeals to the constitutional court become an additional feature off the political system and this is reflected in the general more political nature of the appointments and terms of the judges of these courts.
If the regular judiciary can largely confine itself to interpreting and applying the law faithfully, while being able to strike down laws for being unconstitutional when necessary, both majoritarian tyranny and judicial activism can be avoided.
Constitutional review being neither constitutionally banned, nor implied to be forbidden, but the constitution instead leaving open the possibility of it being practiced without demanding it as common practice, seems to allow for the most balanced system.
But this requires a proper appointment system and strict requirements for judges as laid out in The Ideal Constitution. The Founding Fathers got it right when it came to constitutional review in the constitution, their system for judicial appointments and checks to prevent court packing are simply flawed in hindsight.
Finally, the absence of a common law system, judicial precedent serving as law-making and complicated conflicts between federal and state governments and courts might help to prevent judicial dramas as well.
Johan van Schaik