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Central and Eastern Europe constitutional

courts and the anti-majoritarian objection to

judicial review.Sarah Wright Sheive12,771 words

1 June 1995Law and Policy in International Business

English

COPYRIGHT 1995 Law & Policy in International Business

I. Introduction

Since the political revolutions of 1989, the Central and Eastern European states have embraced

judicial review as a means of promoting the supremacy of constitutional values and protecting

fundamental rights. Nearly all Central and Eastern European nations have establishedconstitutional courts modeled after the constitutional courts in Western Europe. Although their

judges are not popularly elected, constitutional courts across Europe have jurisdiction to reviewand invalidate parliamentary legislation. Because they have the power to veto through

constitutional review the policy choices of popularly elected representatives in parliament,

European constitutional courts have been criticized as anti majoritarian.

This Note first compares the European and U.S. models of judicial review and suggests reasons

why Western Europe, after World War II, and Central and Eastern Europe, after 1989, chose to

adopt concentrated systems of judicial review. Second, it examines the jurisdictional mandates ofCentral and Eastern European constitutional courts(2) and compares them with the jurisdictional

structures of their French and German counterparts. Third, it discusses the anti-majoritarian

objection to European constitutional review, addressing arguments on both sides of the academicdebate. Finally, this Note identifies several practical strategies that Central and Eastern European

nations might pursue to minimize the anti-majoritarian objection.

II. The European Model of Constitutional Review

A. The European and U.S. Models Compared

Judicial review, or a court's power to invalidate a legislative or executive act on grounds of its

unconstitutionality,(3) is structured differently in Europe than in the United States. The mostsignificant difference between review in the two regions is that the European model features a

concentrated, or centralized, system of review. Under a system of concentrated judicial review,only specialized courts that have been specifically created to decide constitutional issues exercise

constitutional review. Thus, while the U.S. system of diffuse judicial review authorizes all courtsto consider the constitutionality of legislation, the European model concentrates the power of

judicial review in one tribunal.(4) With few exceptions,(5) European constitutional courts decide

only constitutional questions; they do not adjudicate non-constitutional litigation between

adverse parties.(6)

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Constitutional courts are created expressly by provisions in European constitutions,(7) and theyare independent of ordinary judicial structures. In fact, the provisions establishing constitutional

courts usually are separate from those regulating the ordinary judiciary.(8) While ordinary

European courts generally are not permitted to exercise judicial review of constitutionalquestions, these courts may be allowed to refer such issues to constitutional courts for decision,

and they subsequently are bound by constitutional court rulings.(9)The second major difference between the European and U.S. models of judicial review is that the

European constitutional courts possess jurisdiction to practice abstract review. Abstract review is

not dependent on litigation involving a statute; rather, the court considers the constitutionality of

an item of legislation in principle. When constitutional courts practice abstract review, they neednot examine the factual circumstances of a specific case.(10) By contrast, the U.S. model permits

courts to review constitutional issues only in the context of ripe adversarial lawsuits where

parties have standing to bring a challenge.(11) In sum, judicial review in the United States isincidental to ordinary litigation, whereas European constitutional courts may decide

constitutional issues in the abstract. As a result, doctrines of standing vary in the European and

U.S. models. U.S. courts will decide constitutional issues only if individual litigants have "a

personal stake in the outcome of the controversy,"(12) whereas public officials - who may lack a"personal stake" in the sense of the U.S. courts - have standing to initiate abstract review by

European constitutional courts.(13)

B. Why Western Europe Established Concentrated Judicial Review

The concept of judicial review was introduced in the United States at the beginning of the

nineteenth century with Chief Justice Marshall's opinion in Marbury v. Madison.(14) Western

Europe, by comparison, did not fully embrace and institutionalize judicial review of legislation

until after World War II, when constitutional courts were established in Austria, the FederalRepublic of Germany, and France.(15) During the interwar period, France and Germany began

experimenting with the U.S. model of diffuse judicial review. In November 1925, for instance,the highest court in the ordinary German judiciary pronounced "the power and the duty of thejudge to examine the constitutionality of statutes of the Empire must be recognised."(16)

Similarly, the French Academie des Sciences Morales et Politiques sponsored a publicized

debate in December 1925 in which public law specialists agreed to encourage regular courtjudges to review the constitutionality of legislation.(17) In both France and Germany, however,

regular court judges continued to avoid the practice of judicial review.(18)

The U.S. model of judicial review ultimately failed to consolidate a position in Europe for atleast two reasons. First, judicial power in Europe was perceived as too unfocused to be fit for the

task of judicial review.(19) Unlike the unitary U.S. system, which is supervised by the U.S.

Supreme Court, European judicial systems typically contain more than one "higher" court.(20)

For example, the French Cour de Cassation is responsible for ordinary civil and criminal appeals,while the Conseil d'Etat is the highest court for administrative appeals. The German judiciary has

several higher courts, which are responsible for ordinary civil, criminal, administrative, labor,tax, and social matters.(21) Moreover, European higher courts typically are staffed by more than

one hundred judges,(22) so that the random composition of judicial panels impedes the

construction of a unified appellate voice. Because higher courts generally lack the power toselect the appeals they decide,(23) they hear thousands of appeals each year, most of which

contribute little to the clarification or evolution of legal principles. Thus the enormous size of the

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courts and their voluminous caseload tend to dilute the decisional authority of European higher

courts.(24)

The composition of the European judiciary also contributed to the perception that Europeancourts were unsuitable for judicial review. The continental European nations have civil law - or

code-based - legal systems. European judges are "career judges" who enter the judiciary early in

their professional careers and are promoted on the basis of seniority.(25) Ordinary court judgesthus practice technical, rather than policy-oriented, statutory application.(26) Unlike the

mechanical task of applying statutes, the exercise of judicial review requires judges to use

creativity and discretion in interpreting vague constitutional mandates. Constitutional judges are

required to balance and reconcile competing policy preferences. Critics thus saw the U.S. modelof diffuse judicial review as incompatible with the ordinary European judiciary, which is staffed

by professional civil servants whose training is limited to technical statutory application.

By contrast, the concentrated model offered a more appropriate structure for European judicial

review. Specialized constitutional courts are modestly staffed and limited in jurisdiction.

Moreover, because constitutional court judges are chosen by political authorities and havebroader, more policy-oriented training,(27) they may be more capable than ordinary court judges

of exercising judicial review.

Beyond the issues of court structure and judicial competency, another reason for the European

rejection of diffuse judicial review in favor of the concentrated model is the historical notion ofparliamentary supremacy, which may be traced, in part, to popular rejection of judicial abuses

during the ancien regime in France.(28) One central principle of the French Revolution

proclaimed the supremacy of statutory law and demoted the judiciary to the mechanical task ofstatutory application.(290 The "law" in continental Europe has since been identified with

legislation, unlike in the United States, where judge-made common law is abundant.(30) U.S.

judges play a prominent role in developing common law and reviewing legislation; in Europe,

parliamentary supremacy negated the concept of judicial lawmaking from an early date. Only

parliament could create law and determine its constitutionality. Ordinary court judges served nolegitimate function in either creating or reviewing binding law. Although Europe ultimately

warmed to the concept of judicial review after World War II, it continued to reject its exercise by

ordinary court judges. Europeans, in general, did not view their judiciary as a coequal branch

with authentic power to review executive and legislative acts. Therefore, instead of adopting theU.S. model of diffuse review, Europe created a new institution, independent of the judicial

branch, to review the constitutionality of public acts.(31)

C. Why Central and Eastern Europe Adopted the European model

Without exception, the Central and Eastern European nations have adopted the Western

European model of concentrated judicial review.(32) There are at least three explanations for theadoption of the concentrated model in that region rather than the U.S. model of diffuse review.

One practical explanation is the desire of the Central and Eastern European nations to ally withthe rest of Europe. Poland, Hungary, Romania, and Bulgaria hope to join the European Union

and other organizations that promote European political and economic unity and collective

security. Consequently, those nations followed the Western European example during theconstitution drafting process that began in 1989, and they continue to seek Western European

guidance in the drafting of new legislation.

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The American Bar Association's Central and East European Law Initiative (CEELI), whichprovides technical legal assistance to the former Soviet bloc nations, furnishes a useful

example.(33) When Central and Eastern European parliamentarians or legislative assistants

request evaluation of draft legislation, they often ask CEELI to compare it to Western Europeanlegislation and, if possible, to solicit comments from Western European practitioners.

Furthermore, legislative committee members frequently request primary and secondary legalmaterials from Western European nations to serve as models during the drafting process.Although the legislators, judges, and other members of the Central and Eastern European legal

community are receptive to U.S. advice and legal assistance, they typically are more interested in

Western European examples and commentary.(34)

A second explanation for Central and Eastern Europe's choice of a concentrated model of judicial

review follows naturally from a parallel with the Western European experience.(35) Like the

other continental European nations, Poland, Hungary, Romania, and Bulgaria are civil lawcountries. Ordinary court judges are professional civil servants who receive specialized training

in technical statutory application. They are seen as lacking sufficient experience in policy-

oriented decision-making to accomplish the task of judicial review. Moreover, the drafters of

Central and Eastern European constitutions did not believe that ordinary court judges couldobtain sufficient training to begin reviewing legislation and other public acts within a reasonable

time.(36) As did Western Europe, therefore, Central and Eastern Europe rejected the U.S. model

of diffuse judicial review in part because of the lack of training and experience of the ordinary

judiciary.

A final reason why Central and Eastern Europe adopted the European model of concentratedjudicial review relates to the role of ordinary court judges under Communist rule. During the

Communist period, the public viewed the Central and Eastern European judiciary as incompetent

and corrupt, equating judges and the judicial system with the state and the Communist Party.(37)The term "telephone justice" was popularly coined to describe a common practice in which state

officials would contact judges and tell them how to rule in particular cases.(38) When the

constitutional courts were created soon after the 1989 revolutions, constitution drafters hoped toisolate constitutional review from the ordinary judiciary. The drafters worried that, unless the

task of judicial review was delegated to a specialized court staffed by respected legal

scholars,(39) the public would question its legitimacy. The drafters hoped to send a message of

"out with the old and in with the new,"(40) and they therefore chose the concentrated model ofjudicial review to secure public acceptance of the new constitutional order and its primary

defender, the constitutional courts.

III. The Jurisdictional Structures of European Constitutional Courts

Although the Central and Eastern European states have adopted the concentrated model of

constitutional review, each individual country's constitutional court has a unique jurisdictionalstructure. Most Central and Eastern European constitutional courts resemble the German

Constitutional Court in their jurisdictional patterns. The Romanian Court, by contrast, is similarto the French model. The Hungarian Constitutional Court combines elements of both the French

and German models to form the most original jurisdictional structure in the region.

This Part details the jurisdictional mandates of the Central and Eastern European constitutional

courts and compares them with the organization of the German Constitutional Court and the

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French Constitutional Council. The comparison with French and German jurisdictional structuresis useful to the extent that scholarly critiques of the European model may be applied to the new

constitutional courts. The value of comparative analysis of constitutional texts is somewhat

limited, however, because the jurisdictional structures that are established by the Central andEastern European constitutions may operate differently in practice. Therefore, the author has

indicated, where possible, the areas in which constitutional provisions have had unexpectedpractical applications.

A. Abstract Review

As discussed above, the European model of concentrated Judicial review features abstract review

of parliamentary legislation. All constitutional courts that follow the European model, including

those in Central and Eastern Europe, practice abstract review.(41) The European model featurestwo types of abstract review: a priori and a posteriori, that is, review before promulgation and

review after promulgation. The French and Romanian courts practice only a priori abstract

review; they consider legislation after it is adopted by parliament but before it is

promulgated.(42) By contrast, most European constitutional courts practice a posteriori abstractreview, where legislation is reviewed after it enters into force. The German Constitutional Court

practices only a posteriori abstract review,(43) and most Central and Eastern European

constitutional courts follow the German example.(44) The Hungarian Court has the broadestpower of abstract review; it is the only court in Central and Eastern Europe that undertakes both

a priori and a posteriori abstract review.(45) Moreover, the Hungarian Court has jurisdiction to

review legislative "omissions" in cases where parliament has not acted but is constitutionally

obligated to do.(46)

Abstract review usually is initiated by political authorities,(47) and in most cases constitutional

courts may not decline jurisdiction.(48) The European model generally grants standing to initiateabstract review to the president, to the prime minister, to state governments, and to parliament

when members mount sufficient numerical support.(49) Where groups of legislators havestanding to initiate abstract review, parliamentary minorities thus have a second opportunity to

challenge legislation that they opposed unsuccessfully during the formal legislative process.(50)

High public officials and parliamentary minorities have access to all Central and EasternEuropean constitutional court,(51) but the Hungarian standing provisions are the most generous.

They state that [e]veryone shall have the right to initiate the proceedings of the Constitutional

Court in cases provided by law."(52) Subsequent constitutional legislation limits standing toinitiate a priori review to public officials; however, all Hungarian citizens are entitled to invoke a

posteriori review procedures.(53) In addition, Hungary has expanded the European model of

Judicial review by allowing its constitutional court to invoke jurisdiction and review legislative

inactivity upon its own initiative.(54) Such standing provisions that allow constitutional courts to

initiate abstract review are unprecedented among Western European constitutional courts.(55)

B. Individual Access

Only the Hungarian Constitution grants private citizens direct access to the Constitutional Court.

Hungarian citizens may petition the Court by one of two methods. First, as noted above, anynatural or legal person in Hungary may initiate a posteriori abstract review; that is, individuals

may petition the Court to review legislation already in force.(56) Second, individuals may refer

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constitutional complaints to the Hungarian Court, provided they allege violation of theirconstitutionally protected rights and exhaust other legal remedies.(57) These Hungarian standing

provisions allow even greater individual access to the Constitutional Court than the German

provisions. As in Hungary, German citizens may enter constitutional complaints if they allegeviolation of their basic rights by a public act and exhaust other legal remedies.(58) Unlike the

Hungarian procedure, however, the German Basic Law limits individuals to the constitutionalcomplaint procedure and precludes individuals from initiating abstract review.(59) Universalaccess to the Hungarian Court, combined with the Court's lack of discretion to deny review, has

resulted in a flood of petitions by private citizens and, consequently, an unmanageable

caseload.(60)

Private citizens have indirect access to the constitutional courts in Poland and Romania.(61) The

Advocate for People's Rights, or Ombudsman, may initiate abstract review by the Polish

Constitutional Tribunal on the basis of citizen complaints. The Advocate for People's Rights isappointed by the primary legislative chamber for the express purpose of "guard[ing] the rights

and liberties specified in the Constitution and other provisions. (62) The Ombudsman may

petition the Tribunal to review the constitutionality of any legislative act within the Tribunal's

jurisdiction.(63) The Polish Ombudsman has submitted the majority of petitions received by theTribunal.(64)

The Romanian Constitution does not permit individual access to the Constitutional Court;however, constitutional court judges report that thousands of private citizens nevertheless have

written to the Court to request review.(65) Most letters seek final appeals from judgments

obtained the ordinary court system. The large number of inquiries suggests that the RomanianConstitutional Court has earned the public respect and confidence that continues to elude regular

court judges. Although they are not authorized to hear complaints by private individuals, some

constitutional judges apparently have responded to citizens' letters.(66) letters.

C. Concrete Review

Like the German Constitutional Court, the Hungarian, Polish, and Romanian courts are

authorized to perform concrete review. Concrete review arises out of ordinary litigation when an

ordinary court judge encounters a constitutional issue as part of the underlying lawsuit.(67)According to the European model, only constitutional courts are empowered to strike down

unconstitutional legislation. In Germany, for instance, ordinary court judges thus must suspend

proceedings and refer constitutional questions to the Constitutional Court.(68) Nevertheless, the

German Constitutional Court applies its concrete review provisions restrictively, performingconcrete review only if the judges below are convinced that a law is unconstitutional and that the

case cannot be decided without settling the constitutional question.(69)

Certification of constitutional questions to the German Constitutional Court thus depends not onwhether a constitutional issue was raised by a party but rather on whether the ordinary court

judges are persuaded that a legislative provision is unconstitutional and necessary to theirdecision. Concrete review is similarly restricted in Poland and Hungary, where judges are likely

to apply statutory law without hesitation and where relatively few judges have filed petitions to

constitutional courts.(70) By contrast, the Romanian concrete review procedures require ordinarycourt judges to suspend proceedings and refer questions to the Constitutional Court whenever

constitutional issues are raised by parties to the litigation. (71) As a result, litigants necessarily

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have greater access to constitutional courts under the Romanian concrete review procedures than

under the German, Polish, or Hungarian systems.

D. Other Jurisdictional Categories

In addition to abstract review, individual complaint procedures, and concrete review, Europeanconstitutional courts may exercise Jurisdiction in other limited cases. For example, Central andEastern European constitutional courts typically have jurisdiction in cases involving elections,

referenda, impeachment of the president, and the constitutionality of political parties.(72)

Like the French and German courts, the Bulgarian, Hungarian, and Polish courts may review the

constitutionality of unratified treaties.(73) Bulgaria and Hungary both consider international

treaties superior to domestic law and allow their courts to review domestic legislation forcompatibility with international agreements.(74) The Bulgarian Court may rule on the

compatibility of domestic laws with both international agreements to which Bulgaria is a party

and recognized principles of international law.(75) The Hungarian Court may examine only

conflicts between proposed legislation and treaties already binding on Hungary.(76) By contrast,

Poland and Romania do not authorize their constitutional courts to compare domestic legislationwith either international treaties or general principles of international law.(77)

E. Binding Effect of Constitutional Court Decisions

Decisions of Western European constitutional courts typically have ergo omnes effect: when alegislative act is declared unconstitutional, it is no longer in force and has no further legal

effect.(78) For example, the French Constitution states, "Provision[s] declared unconstitutional

[by the French Constitutional Council] may not be promulgated or implemented."(79) Councildecisions are binding on the President with respect to laws and treaties, on the Government with

respect to proposed regulations, and on the Parliament with respect to proposed bills,

amendments, and standing orders.(80) Similarly, German Constitutional Court decisions arebinding on all public officials.(81) Whether the German legislature complies by repealing voided

provisions, however, depends on the nature of the case and the specificity of the Court's

instructions. Parliamentary compliance has been especially high where the Court has reviewed

politically sensitive legislation through the abstract review procedure.(82)

Most Central and Eastern European states have followed the French and German rule that, once a

law is declared unconstitutional, it is automatically annulled. In Hungary and Bulgaria, forexample, constitutional court decisions are final and binding, and they may not be overruled or

suspended by legislation.(83) In Poland and Romania, by contrast, constitutional court decisions

may be overridden by legislative supermajorities. In Poland, the validity of a ConstitutionalTribunal ruling depends on the level of legislation reviewed.(84) When a substatutory act (85) is

found unconstitutional, Parliament has six months to amend the act, after which the Tribunal's

decision is final and binding.(86) When the Tribunal finds a parliamentary statute

unconstitutional, its ruling may be overridden within six months only by a two-thirds vote of theprimary legislative chamber, which is the same majority required for constitutional

amendment.(87) Similarly, if two-thirds of both Romanian legislative chambers vote not to

amend a statute, the Constitutional Court's decision of unconstitutionality is overridden, and thestatute then must be promulgated in its original form.(88) Unlike in the procedure used in

Poland, the procedure for amending the Romanian Constitution is more exacting than the two-

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thirds majority required to over-ride a Constitutional Court decision. After approval by two-thirds of both legislative chambers, a Romanian constitutional amendment must be submitted to

a referendum.(89)

F. Selection and Tenure Provisions

Political actors exercise substantial control over the selection of constitutional court judges in theEuropean states.(90) The predominant method is election by parliament or, frequently,

appointment by the president. In France, for instance, the French President, the President of the

National Assembly, and the President of the Senate share equally in the appointment of ninejudges to the Constitutional Council.(91) Council judges then serve nine-year terms, which are

not renewable.(92) German Constitutional Court judges are elected by both legislative

chambers(93) and serve non-renewable twelve-year terms.(94)

The selection and tenure provisions in Central and Eastern Europe are similar to those in

Germany and France. Like German Constitutional Court judges, Polish and Hungarian

constitutional judges are elected by the legislature.(95) The Romanian Constitution grants the

power to elect judges to the President and both legislative chambers.(96) Bulgaria gives all threegovernmental branches an equal share in judicial selection by allowing the President, the

National Assembly, and the highest courts to elect four judges each.(97) Across Central andEastern Europe, constitutional court judges are limited to terms of between seven and ten

years.(98) Hungary allows one renewal of its judges' nine-year terms, but reelection is forbidden

in Bulgaria, Poland, and Romania.(99) In spite of the political selection process and the judges'lack of life tenure, Central and Eastern European judges, like their counterparts in France and

Germany, "have shown little deference to the governments and legislatures that appointed

them."(100)

IV. The Anti-majoritarian Objection to Concentrated Judicial ReviewScholarly commentary on European constitutional courts has focused, in part, on the anti-

majoritarian objection to constitutional review: because constitutional courts lack the democratic

legitimacy of selection through competitive elections, their authority is antidemocratic to the

extent that courts may overrule legislation passed by popularly-elected parliaments. Europeanconstitutional review is criticized for allowing judges to substitute their policy preferences for

those of elected representatives.(101) Although this criticism is leveled at both concentrated and

diffuse systems of judicial review, the anti-majoritarian objection is especially powerful whenconstitutional courts practice abstract review of parliamentary legislation. This Part will survey

the literature on both sides of the debate, with a view toward identifying practical strategies for

increasing the democratic legitimacy of Central and Eastern European constitutional courts.

A. Criticisms of the European Model of Judicial Review

The European model of judicial review is criticized for allowing judges to exercise legislative

power.(102) Abstract judicial review permits constitutional courts to alter legislative outcomes

and foreclose policy initiatives that might otherwise be open to popularly elected legislatures andgovernments.(103) Constitutional courts exercise legislative power in several ways. First, the

French model of constitutional review, a prior abstract review, requires the Council to intervene

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in the legislative process. The Council reviews legislation immediately after passage by theNational Assembly and Senate but before promulgation. Although the Council does not review

all legislation, it has reviewed all budgets since 1974 and virtually all "major" legislation since

1981.(104) Because the Council approves all significant legislation before it enters into force, theCouncil has been called a third legislative chamber.(105) Review by the Constitutional Council

effectively extends the legislative process. (106)Second, constitutional courts become enmeshed in the legislative process when legislative

minorities use abstract review procedures for political ends.(107) French parliamentary

minorities frequently invoke the abstract review mechanism. They petition or threaten to petition

the Constitutional Council to obstruct legislation proposed by the government and itsparliamentary majority.(108) Whether or not a particular statute is likely to pass constitutional

muster, the legislative minority may delay its promulgation through petition to the Constitutional

Council. The threat of referral limits the number of proposals the French government is willingto submit for consideration and causes the majority to amend legislation or abandon certain

policy initiatives to suit the minority.(109) Abstract review produces similar results in Germany

where the a posteriori abstract review procedure also may be invoked by the parliamentary

opposition to further its political goals.(110) Parliamentary majorities in Germany are even morerisk averse in constitutional matters than in France. Although fewer statutes are submitted for

review by legislative minorities in Germany than in France, German legislators are more willing

to compromise when the minority threatens to petition the Constitutional Court.(111)

Third, the impact of constitutional courts on the policy making process is reflected in the

legislative response to court decisions. In France and Germany, no legislative text has beeninvalidated after having been amended in response to a constitutional court decision.(112)

Legislation that has been found unconstitutional frequently is revised in strict compliance with

constitutional court decisions. Rather than risk further rulings of unconstitutionality, legislatorsallow constitutional courts to dictate, word for word, the language of new legislation. To the

extent that constitutional court judges actually compose statutory language, they perform a

distinctly legislative function. According to some commentators, the revised laws reflect thepolicy preferences of constitutional 13 judges over the initial policy choices of elected

legislators.(113) Moreover, strict legislative compliance is more likely when constitutional courts

perform abstract review than when they invalidate legislation at issue in individual cases. In

Germany, for example, legislators are more inclined to adopt the language of constitutional courtdecisions when those decisions are the product of abstract review than when they result from

concrete review or individual complaint procedures.(114) Because abstract review is more likely

to induce strict compliance, constitutional court judges have greater influence on the legislative

process than do U.S. judges, who do not exercise abstract review.

Politically initiated abstract review is inherently more anti-majoritarian than concrete review.Where courts practice both concrete and abstract review, as in Germany, abstract review has

been criticized as antidemocratic to a greater degree than has concrete review.(115) Concrete

review is more consistent with the traditional judicial function of neutral arbitration of disputes

between interested parties.(116) When courts exercise concrete review, their behavior operateswithin the judicial paradigm of conflict resolution. Furthermore, the judicial process brings

judges into contact with concrete social problems and realities. Although constitutional court

judges are not politically accountable, concrete review may expose them to "societalaccountability."(117) On the one hand, judicial isolation from the electoral process allows judges

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to maintain neutrality and independence from political pressure. On the other hand, judges intraditional judicial settings may be closer and more sensitive than politicians to popular needs

and desires.(118) When constitutional courts behave like ordinary courts, therefore, they become

more accountable to majoritarian concerns.

Constitutional judges act less like ordinary judges when they engage in abstract review than

when they engage in concrete review of legislation. Unlike concrete review, which originates inthe ordinary court system, abstract review is initiated by public officials with only a professional

interest in the outcome. Abstract review settles political disputes between legislative factions

rather than disputes between personally involved parties. In comparison with the French

Council's abstract review procedures, the German constitutional complaint and concrete reviewmechanisms are more likely to bring the Court into contact with the real-life situations that

generate societal accountability. Similarly, the German Court is more cautious when it exercises

abstract review than when it considers individual complaints or constitutional questions referredby the ordinary judiciary.(119) Thus when constitutional courts exercise concrete review, the

anti-majoritarian objection is less compelling than when they exercise abstract review.

Furthermore, a priori abstract review is more anti-majoritarian than a posteriori review.(120)

First, a priori review takes place before legislation enters into force; therefore, courts mustdetermine constitutionality without reference to the application of statutory provisions in factual

settings. Second, a priori review inserts constitutional courts into day-today parliamentarypolitics; courts in this situation may become involved in political debates before the conclusion

of the legislative process. Third, a priori review is more likely to be abused by parliamentary

minorities than a posteriori review.(121)

The recent elimination of a priori review in Spain provides a useful illustration. The Spanish

Constitutional Court originally possessed both a priori and a posteriori abstract review

powers.(122) After the legislative opposition repeatedly invoked a priori review procedures to

obstruct the government's reform efforts, the majority abolished a priori abstract review in

1985.(123) The Spanish example underscores the potentially antidemocratic nature of a priori, asdistinguished from a posteriori, abstract review. The threat of petition encourages governments

and legislative majorities to amend or withdraw proposals that are opposed by substantial

minorities. Thus, a priori abstract review permits constitutional courts to influence policy

initiatives under consideration by parliaments. (124) The French Constitutional Council practicesonly a priori abstract review; as a result, the Council is more vulnerable than other European

constitutional courts to the anti-majoritarian objection.(125)

B. Arguments Rebutting the Anti-majoritarian Objection to Concentrated Judicial Review

Arguments in support of strong European constitutional courts may, be divided into two

categories. First, various structural provisions and procedural rules increase the overallrepresentativeness of constitutional courts and limit their power to influence the legislative

process. Second, judicial review enhances the overall democratic quality of the political processby protecting fundamental rights. To the extent that they reinforce the democratic process,

constitutional courts are less vulnerable to the anti-majoritarian objection.

1. Constraints on Constitutional Courts

The first category of arguments rebutting the anti-majoritarian objection attempts to present as

minimal the unrepresentativeness of European constitutional review. While those who object to

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the anti-majoritarian tendencies of constitutional courts stress the breadth of their powers,constitutional courts and judges nevertheless are constrained in several ways. For instance,

although it is true that individual judges are not popularly elected, they are selected through a

political process by actors who are subject to reelection and who must choose judgesaccordingly. Selection by the political branches thus increases by proxy the courts' overall

representativeness.(126) Also, because constitutional judges have limited tenure and are replacedperiodically, European courts do not experience the problems with life tenure seen in U.S. courts.The composition of European constitutional courts thus is more likely to parallel the changing

political majority. Furthermore, constitutional courts must issue written opinions that are

exposed to public scrutiny, and their decisions may be overruled by constitutional

amendment.(127) Finally, constitutional courts possess no enforcement mechanism;(128) theycannot force the legislature to comply with rulings of unconstitutionality. The probability of

parliamentary and executive compliance, therefore, is likely to figure prominently in their

decisions.

Constitutional courts also are constrained by rules that limit their ability to influence the political

process. Like ordinary court judges, constitutional judges must decide cases using legal

argument.(129) They reach decisions through interpretation and application of constitutionaltexts rather than through political argumentation. Regardless of any political implications of their

decisions, the courts' approach is couched in legal rather than policy-oriented terms.(130)

Moreover, constitutional courts are limited as political actors. Most European courts may notinitiate review; they merely react to issues that are submitted by politicians (who, theoretically,

act on behalf of their constituents). Consequently, the constitutional courts are limited, vis--vis

the political branches, in their ability to shape policy directly.(131)

2. Protection of Fundamental Rights

The second, and perhaps the most frequently cited, justification for European constitutional

review is its protection of fundamental human rights. On the one hand, constitutional review by

an independent judiciary is necessary to guard and promote civil rights against encroachment byelected officials.(132) Constitutional review is essential to the people's ability to control their

elected agents because, even in democratic societies, legislative and executive officials have

incentive to manipulate political rights to assure reelection.(133) Politicians inevitably are

motivated by their desire to remain in power, and they have strong incentives to employ theresources and prestige of their elected offices to accomplish that goal.(134) Politicians face a

conflict of interest when their fear of electoral defeat runs up against their commitment to act in

the public interest, and they thus are cynically but widely viewed as incapable of policingthemselves.(135) Indeed, judicial review is considered essential because all systems past and

present of political, non-judicial control of the political branches have proved to be utterly

inefficient.(136) Unlike politicians, constitutional judges generally need not worry aboutreelection. Constitutional courts exercise effective control over the political branches precisely

because they are not immediately accountable to the public. Therefore, constitutional courts

fulfill a legitimate monitoring function because of, not in spite of, their anti-democratic nature.

Because it is anti-majoritarian, constitutional review can promote democratic government whereit might be subverted by elected officials acting in personal interest rather than in majoritarian

interest.

As important, when elected officials do act consistently with majoritarian interests, judicial

review prohibits the majority from suppressing the constitutional rights of minorities. Those who

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favor granting constitutional courts broad jurisdiction inevitably point to the dangers of majorityrule.(137) Popular majorities may tend to devalue the political and economic rights of ethnic and

religious minorities.(138) Judicial review protects minority rights by invalidating legislation that

trespasses on constitutionally protected rights. Constitutional courts thus are the most promisinginstitutional barriers to majoritarian abuse.(139) Because constitutional judges are not elected,

they are more likely than politicians to uphold constitutional values in the face of majoritarianattacks. The judges' lack of electoral accountability allows them to veto popular initiatives thatviolate the constitution. Paradoxically, therefore, judicial review is democratic precisely because

it is anti-majoritarian.

This argument is especially persuasive when the constitutional rights sought to be protected areconsidered essential to a healthy democratic process.(140) Fundamental rights such as freedom

of election, freedom of speech, and freedom of association promote the long-term health of

democratic government. These "democratic" rights require protection so that current minoritiesmay become future majorities.(141) When constitutional courts preserve rights that are essential

to the maintenance of democratic government, they safeguard future democratic decision

making, Judicial review thus is a democratic exercise because it guarantees minority access to

the political process. By subjecting the majoritarian branches to constitutional review courtsensure the fairness and permanent representativeness of the political process.(142) Therefore, so

long as constitutional courts reinforce the fundamental rights of all citizens, judicial review

acquires democratic legitimacy.(143)

3. The Dilemma of Constitutional Interpretation

Although most commentators acknowledge that constitutional courts play a legitimate role inprotecting fundamental rights,(144) the process of interpreting constitutional rights involves

significant judicial discretion. When fundamental rights are articulated in a constitutional text,

courts may find guidance in the text. Nonetheless, constitutional rights are not self-enforcing.

Courts must interpret the text, and fundamental rights provisions are likely to be particularly

vague and malleable.(145) One commentator insists that entrenched bills of rights are incapableof guiding or restraining judges at all.(146) Rather, judicial interpretation of textual rights varies

according to the beliefs and ideologies of individual judges. Furthermore, because most lawyers

and judges come from privileged backgrounds and align themselves predominantly with business

interests, textual rights frequently are interpreted to the detriment of politically disadvantagedgroups.(147) According to this view, because its rights-protecting function is non-neutral,

judicial review cannot be justified on the grounds that it strengthens the democratic process by

enhancing popular power.

Unfortunately, this argument fails to explain why European legislators would be more effectivethan the judiciary at protecting individual rights. To be sure, the ideologies and political beliefs

of individual judges influence constitutional court decisions. However, members of European

parliaments traditionally have received greater prestige and remuneration than their judicialcounterparts. In fact, European constitutional courts frequently are staffed by relatively low-paid

university professors.(148) Assuming, arguendo, that constitutional judges are non-neutral, there

is little reason to believe that parliamentarians would take a less conservative approach to the

enforcement of constitutional rights.

In addition to the inherent subjectivity of the interpretation of entrenched constitutional rights,European courts also have been challenged for their increasing willingness to create new rights

where the constitutional text is silent.(149) For example, in 1971, the French Constitutional

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Council incorporated the Preamble of the 1946 Constitution into the 1958 Constitution, whichcontains no express declaration of rights, thereby granting itself jurisdiction over unremunerated

fundamental rights.(150) One commentator posits that courts rely more on their jurisdiction over

rights during periods of greater judicial involvement in policy-making processes.(151) Protectionof fundamental rights generally is viewed as a legitimate function of constitutional courts, and

the courts are less likely to be criticized for judicial activism if their decisions are grounded infundamental rights provisions. Consequently, their jurisdiction over rights does offerconstitutional courts a potential tool to conceal or obscure judicial interference in the legislative

process.

If true, this observation creates a paradox. On one hand, judicial review is democratic to theextent that it protects rights that are indispensable to a democratic political process. On the other

hand, the more that judges rely on their rights-protecting function, the greater the probability of

judicial overreaching. Although protection of fundamental rights frequently is cited as ajustification for anti-majoritarian judicial review, the exercise of jurisdiction over individual

rights may actually exacerbate the problem of the legitimacy of constitutional review in a

democratic society.

C. The Anti-majoritarian Objection in Central and Eastern Europe

The anti-majoritarian objection to judicial review is particularly troubling in Central and Eastern

Europe.(152) Compared to voters in France and Germany, Central and Eastern European voters

are less familiar with the notion of parliamentary democracy, in which governmental legitimacyis assured through periodic elections. Although parliamentary systems have been adopted across

the region, the concept of electoral legitimacy is still evolving. Because many current

parliamentarians also held political positions during the Communist period, the legislative

institution is not yet perceived as truly representative of popular interests. As a result, whenconstitutional courts possess and exercise broad jurisdictional power to review parliamentary

legislation, the notion of representative democracy is diminished in the public's eyes.(153)

On the other hand, the need for protection of fundamental rights in Central and Eastern Europe is

clear. Because many legislators have ties to the old regime, the public understandably fears that

fundamental rights articulated in the new constitutions will not be enforced in practice. TheCommunist constitutions purported to safeguard political rights; in practice, however, those

rights were often unrealized. Constitutional review protects the public against the dilution of

fundamental political rights by parliament. The need to protect minority rights is especially

compelling in Central and Eastern Europe, where many countries house substantial minoritypopulations and where ethnic and religious divisions are centuries old. Furthermore, majoritarian

institutions in the region traditionally have been willing to persecute minorities. The new

constitutional courts offer the best hope of protecting minority rights against encroachment by

the political branches. The challenge facing Central and Eastern Europe is to minimize the anti-democratic nature of judicial review without sacrificing the ability of constitutional courts to

protect fundamental rights.

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V. STRATEGIES TO MINIMIZE THE ANTI-MAJORITARIAN OBJECTION IN

CENTRAL AND EASTERN EUROPE

The previous section reveals that the anti-majoritarian objection is influenced by thejurisdictional structure of constitutional courts. Abstract review of legislation tends to intensify

the anti-majoritarian objection. (154) The most obvious strategy to minimize the

unrepresentativeness of constitutional review in Central and Eastern Europe is to eliminateabstract review and adopt the diffuse model of judicial review. Indeed, during the early stages of

constitutionalism in that region, some commentators argued against the creation of specializedconstitutional courts with unique jurisdiction to review legislation. They favored diffuse systems

of judicial review in which courts at every level would have jurisdiction to review official acts

for constitutionality. (155) As discussed above, however, Central and Eastern Europe followedFrance and Germany and adopted the concentrated model of judicial review. (156) Because

abstract review is a principal characteristic of the European model, Central and Eastern European

nations are unlikely to abandon abstract review altogether.

A more practical strategy to increase the democratic legitimacy of constitutional review is toeliminate a priori abstract review because a priori review is more anti-majoritarian than a

posteriori abstract review. (157) A priori review allows courts to intervene at an early stage in

the legislative process. Moreover, a priori abstract review permits legislative minorities toimpede the parliamentary process by threatening to petition the constitutional court before

legislation is promulgated. If a priori review were eliminated, the Hungarian and Romanian

constitutional courts would be less anti-majoritarian because judicial review would occur onlyafter the conclusion of the legislative process. (158) Although the constitutional courts could still

veto legislative acts after promulgation, they would be further removed from the legislative

process than they are under a system of apriori abstract review.

Proponents of a priori review laud its ability to preclude application of unconstitutional

legislation. (159) Review of statutes before they enter into force prevents unconstitutional actsfrom being applied to particular individuals. Thus, a priori review potentially averts theinfringement of fundamental rights by unconstitutional legislation. If a priori review is

maintained in Central and Eastern Europe, however, it should be exercised only in conjunction

with a posteriori review. Where courts practice only a priori abstract review, the ability of apriori review to prevent constitutional violations is outweighed by its tendency to exacerbate the

problem of democratic legitimacy. (160) Courts that practice only a priori review are more

vulnerable to the anti-majoritarian objection. (161) Therefore, following the Hungarian example,the Romanian Court should be permitted to exercise a posteriori as well as a priori abstract

review.

Another strategy to increase the representative ness of constitutional courts in Central and

Eastern Europe is to grant them jurisdiction over constitutional issues that arise in cases beingadjudicated in the regular court system. Concrete review is less anti-majoritarian because it more

closely resembles the traditional judicial function of neutral dispute resolution. (162) Courts gainsocietal accountability when they preside over adversarial proceedings between actual litigants.

(163) When constitutional courts exercise concrete review, they gain exposure to popular needs

and desires and become more representative. Moreover, where constitutional courts havejurisdiction to exercise concrete review, abstract review procedures are less prominent in the

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overall caseload and in the public perception of the courts' systemic role. (164) Therefore, the

exercise of concrete review further mitigates the anti-majoritarian nature of abstract review.

Unfortunately, concrete review traditionally has been restricted in European court systems. Therestrictions may originate from the constitutional court - as in Germany (165) or from ordinary

court judges - as in Poland and Hungary - who are reluctant to certify constitutional questions.

(166) Restrictions on concrete review require near certainty that a law is unconstitutional beforean ordinary court judge will petition the constitutional court for review. As a result, only

successful challenges to legislation are referred, and concrete review benefits defenders of

legislation more than challengers. To obtain constitutional review, litigants challenging

legislation must persuade the lower court of a statute's unconstitutionality. If the lower court isunconvinced, the litigants have no recourse to the constitutional court. Where Central and

Eastern European constitutional courts exercise concrete review, ordinary court judges should be

required to suspend proceedings and petition the constitutional court whenever a constitutionalchallenge presents a serious question. (167) Romania has gone one step further by requiring that

regular court judges refer all constitutional questions raised by parties to litigation. (168) The

Romanian provision dramatically increases the access of litigants to constitutional review.

Another strategy to increase the courts' democratic legitimacy is to grant Central and EasternEuropean constitutional courts jurisdiction Individual constitutional complaints. Review of

individual complaints, plaints, like concrete review, would increase the courts' societalaccountability ability by exposing judges to real people and real problems. (169) Moreover, the

courts' rights-protecting function would be reinforced by expanding the access of private

citizens. Protection of fundamental rights is the most convincing justification for constitutionalreview, and the individual complaint mechanism is the most effective means of protecting

fundamental rights. (170) Requiring constitutional courts to define and apply fundamental rights

in the context of actual cases would make constitutional courts less likely to invoke theirjurisdiction over rights to camouflage judicial activism and interference in the legislative

process. (171)

If the individual constitutional complaint is introduced in the rest of Central and Eastern Europe,

however, some screening mechanism should be developed to maintain a reasonable flow of cases

to constitutional courts. Universal access to the Hungarian Constitutional Court has resulted in an

unmanageable caseload. (172) The German Constitutional Court, on the other hand, has created acommittee system to screen out unfounded or procedurally deficient complaints. (173)

Complaints that survive committee consideration then are reviewed by the full Constitutional

Court. The German committee system has been effective in reducing the Court's caseload. TheCourt reviews only a small percentage of the complaints received, yet individual constitutional

complaints represent more than ninety percent of the Court's docketed cases. (174) If all Central

and Eastern European constitutional courts are given jurisdiction over individual complaints,therefore, a system should be devised to decrease the number of docketed complaints while

maintaining individual cases as a large percentage of the courts' overall caseload. Hungary has

taken an initial step in this direction. The Hungarian Parliament has drafted amendments to the

Constitutional Court Act that provide for review of constitutional complaints by three-judge andsingle-judge panels. (175) These amendments do not progress far enough, however, because they

do not grant the Court discretion to decline review of frivolous or procedurally deficient claims.

(176)

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An additional strategy to decrease the anti-majoritarian nature of Central and Eastern Europeanconstitutional courts is to revise the current standing requirements. First, constitutional courts,

like the Hungarian Court, should not be permitted to review legislation or legislative inactivity

on their own initiative (177) because the anti-majoritarian objection is most compelling whencourts may intervene at will in the legislative process. If constitutional courts are allowed to step

into the legislative arena any time they wish, their function becomes more legislative thanjudicial.

Second, parliamentary minorities should continue to have standing to initiate abstract review.

Standing for the parliamentary opposition contributes to the anti-majoritarian nature of abstract

review because minority legislators use petition, or the threat of petition, to constitutional courtsas a bargaining tool in the legislative process. However, these standing provisions enhance

democratic legitimacy to the extent that they guarantee minority access to the political process.

The opposition's ability to obstruct the legislative process could be reduced by grantingconstitutional courts the power to decline review. If the opposition is not certain that its petition

to the constitutional court will be accepted, its ability to impede the majority's legislative

program will decrease. Because minority access makes the political process more representative,

and therefore more democratic, parliamentary minorities should continue to have standing toinitiate abstract review.

Another strategy to increase the representativeness of Central and Eastern European judicialreview is to allow constitutional courts to review domestic legislation for its compliance with

international treaties and norms of international law. Although some Central and Eastern

European constitutional courts have jurisdiction to review unratified treaties for constitutionality,only Hungary and Bulgaria consider international national treaties superior to domestic law, and

only Bulgaria considers general norms of international law superior to domestic law. (178) The

rights-protecting function of constitutional courts will be reinforced if they are permitted toweigh international legal standards in their review of domestic legislation. Commentators

disagree on the extent to which individual judges' ideologies influence their interpretation of

constitutional text. (179) However, general international norms and legal rules expressed ininternational agreements may supplement the meaning of an ambiguous constitutional text. If

constitutional judges are permitted to consider international human rights standards as a guide to

interpreting vague constitutional rights, the legitimacy of their decisions will be augmented.

(180) Application of international standards will bolster the courts' legitimacy by reinforcing the

legitimacy of the legal principles applied.

One final strategy to increase the democratic legitimacy of Central and Eastern Europeanconstitutional courts is to maintain the ability of legislatures to overrule constitutional court

decisions but only when the majority required to overrule court decisions is the same as that

required for constitutional amendment. The Polish legislature may overrule ConstitutionalTribunal decisions with a two-thirds majority, which is the same majority required to amend the

Constitution. (181) Such a procedure is the ultimate response to the anti-majoritarian objection.

When a supermajority of legislators is permitted to overrule constitutional court decisions, the

representative legislature acts as a check on the authority of the unrepresentative constitutionalcourt. Under such a system, legislators are permitted to defend their policies when constitutional

courts intrude too far into the policy-making process, and constitutional courts are no longer able

to substitute their policy preferences for those of parliament. If legislatures can gather sufficient

majorities, their policy programs will not be supplanted by constitutional courts.

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In most of Central and Eastern Europe, however, court decisions may be overruled only byconstitutional amendment. (182) Constitutional court decisions are made final and binding to

ensure the courts' independence from the political branches. While any effective system of

constitutional review requires judicial independence, a large measure of independence may begained by requiring that legislation overruling court decisions be passed by the same majority

required for constitutional amendment. The problem of democratic legitimacy suggests that,ultimately, the public should make legislative decisions through its representatives. Provisionsallowing legislators to overrule court decisions by the same majority required for constitutional

amendment diffuse the anti-majoritarian objection without sacrificing much in the way of

judicial independence. The benefit is that parliamentary super majorities are able to overrule

court decisions on specific pieces of legislation without altering the constitutional text.

There are two reasons why legislation overriding constitutional court rulings is preferable to

constitutional amendment. First, amendments are incorporated into the constitutional text and,consequently, into the body of constitutional law to be applied by the court in later cases. As a

result, amendments potentially dilute existing constitutional principles. Even narrowly drafted

amendments are likely to impact future constitutional interpretation. By contrast, legislation

overruling constitutional court decisions has limited precedential effect. In the United States, allstatutes, including any law overriding a Supreme Court decision, must pass constitutional

muster. Because the U.S. Supreme Court determines whether statutes are constitutional, any

overriding legislation becomes part of the general "constitutional law."(183) Unlike courts in theUnited States, constitutional courts in Central and Eastern Europe do not review legislation

overriding prior court rulings. As the legislation is not technically constitutional," it forms no

part of constitutional law. In comparison with amendment, therefore, the more limitedprecedential effect of overriding legislation is less threatening to existing constitutional

principles.

The second reason why overriding legislation is preferable to amendment relates to the

psychological effect of constitutional amendments. On some level, constitutions embody a sense

of political and moral community among the people whom they govern. (184) When they areamended, that sense of community becomes fragmented. Respect for constitutional values and

the rule of law may be weakened by frequent constitutional amendment. (185) The constitutional

"community" is especially fragile in Central and Eastern Europe, where democratic government

has only recently been established. The use of legislation, rather than constitutional amendment,strengthens parliamentary government without jeopardizing the public's underlying commitment

to constitutional values.

When it is no more difficult to overrule the constitutional court than to amend the constitution,

legislators have two equally difficult means of accomplishing the same result. When the majority

required for constitutional amendment is higher, however, legislators are permitted to enactunconstitutional legislation even if they are unable to gather sufficient votes for constitutional

amendment. In Romania, for example, the legislature may overrule Constitutional Court

decisions by a two-thirds majority in both chambers; however, constitutional amendments

require additional approval by referendum. (186) In the Romanian case, the power to amendconstitutional provisions is vested in the people. Because legislators alone may overrule

Constitutional Court decisions, they are permitted to violate the Romanian Constitution directly.

If constitutional democracy is to have any substantive content, public authorities must not beallowed to transgress constitutional provisions. Constitutional review was established in Central

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and Eastern Europe to ensure the supremacy of constitutional values. Even though the Romanianprovision answers the anti-majoritarian objection, it eviscerates the rights-protecting function of

constitutional courts. The challenge facing Central and Eastern European constitutional courts is

not to resolve the anti-majoritarian objection at the expense of fundamental rights protection butrather to strike a balance whereby democratic legitimacy is maximized and fundamental rights

are secured through the institution of judicial review.

VI. CONCLUSION

Commentary on the anti-majoritarian nature of European constitutional review, particularly inFrance and Germany, uncovers several strategies for increasing the representativeness of

constitutional courts in Central and Eastern Europe. This Note has argued first that, short of

eliminating abstract review altogether, Central and Eastern Europe should eliminate a prioriabstract review or at least require that a priori review be exercised only when a posteriori review

is also practiced. Second, constitutional courts should be granted jurisdiction over concrete

review of constitutional issues arising in the ordinary court systems. Third, individuals should be

granted direct access to constitutional courts in Central and Eastern Europe, provided thatscreening mechanisms are developed to manage the increased number of constitutional

complaints. Fourth, standing provisions should be revised to prohibit constitutional courts from

exercising abstract review upon their own initiative. Parliamentary minorities should continue tohave standing to initiate abstract review, although their ability to obstruct the legislative process

might be reduced by granting constitutional courts the power to decline review. Fifth, Central

and Eastern European constitutional courts should be permitted to review legislation forcompliance with international agreements and general principles of international law. A final

strategy to minimize the anti-majoritarian objection to judicial review is to maintain the ability of

legislatures to override constitutional court decisions, but only when the supermajority required

to overrule court decisions is the same as that required for constitutional amendment. Many of

these strategies have already been implemented in some Central and Eastern Europeanconstitutional courts. Implementation of the foregoing strategies throughout the region, however,

would maximize the overall representativeness, and therefore the democratic legitimacy, of

judicial review in Central and Eastern Europe.

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Notes

(1.) Enos Banda, Rule of Law: Cultural and Ideological Challenges, Address at the Law and Policy in International

Business 1995 Symposium: The U.S. and Transition Economies: Legal and Business Strategies for Public and

Private Success (Jan. 20, 1995)

(2.) The following discussion addresses the development and structure of constitutional courts in Bulgaria, Hungary,

Poland, and Romania. Where the author mentions "Central and Eastern European" constitutional courts, she isreferring to courts in those countries. The discussion is limited to those countries for two reasons. First, little

commentary has been published in English on the constitutional courts in other Central and Eastern European

countries, save those in Czechoslovakia and Russia. Second, because of the January 1993 dissolution of

Czechoslovakia and the October 1993 suspension of the Russian Constitutional Court by President Yeltsin, the

existing literature on those courts is out of date.

(3.) A. E. Dick Howard, Introduction to Constitution Making in Eastern Europe 1, 5 (A. E. Dick Howard ed., 1993).

(4.) See Louis Favoreu, Constitutional Review in Europe, in Constitutionalism and Rights 38, 40-41 (Louis Henkin

& Albert J. Rosenthal eds., 1990).

(5.) For example, cases involving elections, referenda, and presidential impeachment. See infra note 72 and

accompanying text.

(6.) See Herman Schwartz, The New East European Constitutional Courts, 13 Mich. J. Int'l L. 74 1, 74.4 (1992)

[hereinafter Schwartz, New East European Constitutional Courts].

(7.) See Allan R. Brewer-Carias, Judicial Review in Comparative Law 185-86 (1989) (arguing that, unlike diffuse

systems of judicial review, concentrated systems must be Created and regulated expressly by Constitutional text. In

both diffuse and concentrated systems, if constitutional supremacy is assumed, courts that apply the law must be

empowered to review legislation for constitutionality. Because courts have inherent powers of review that flow from

constitutional supremacy, only the constitutions themselves may limit the authority of ordinary courts and assign it

to specialized constitutional tribunals.).

(8.) See, e.g., CONST. arts. 56-62 (Fr.); Const. arts. 147-52 (Bulg.); A Magyar Koztarsasag Alketmanya

[Constitution] SS 32/A (Hung.); Konstytucja [Constitution] art. 33a (Pol.); Constitutia arts. 140-145 (Rom.); contra

Grundgesetz [Constitution] arts. 92-104 (F.R.G.).

(9.) Favoreu, supra note 4, at 41. Concrete review, the procedure by which regular courts certify constitutional

questions arising out of ordinary litigation, is discussed more fully below. See infra notes 67-71 and accompanying

text.

(10.) Alec Stone, The Birth of Judicial Politics in Framce 226 (1992); Favoreu, supra note 4, at 41.

(11.) Under article III of the United States Constitution, judicial power extends only to enumerated "cases" and

"controversies." U.S. Const. art. Ill, SS 2; Daniel A. Farber et al., Cases and Materials on Constitutional Law: Thems

for the Conxtitution's Third Century 1045 (1993).

(12.) Baker v. Carr, 369 U.S. 186, 204 (1962).

(13.) See infra notes 47-51 and accompanying text.

(14.) 5 U.S. (1 Cranch) 137, 176-80 (1803).

(15.) The first European constitutional courts were created in 1920 in Austria and Czechoslovakia. Both courts were

disbanded in 1938; however, the Austrian Court was permanently reestablished in 1945. Favoreu, supra note 4, at

51; Brewer-Carias, supra note 7, at 195-96. The German Court was created in the Basic Law of the Federal Republic

of Germany in 1951, and the French Constitutional Council was established in the Constitution of the Fifth Republic

in 1958. Grundgesetz [Constitution] arts. 92-104 (F.R.G.); Const. arts. 56-63 (Fr.).

(16.) Brewer-Carias, supra note 7, at 203-04 (quoting Judgment of Nov. 4, 1965, Reichsgericht (F.R.G.)).

(17.) Favoreu, supra note 4, at 43.

(18.) Id.

(19.) Id. at 45.

(20.) See id.

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(21.) Mauro Cappelletti, The Judicial Process in Comparative Perspective 49 n. 13 2 (1989) [hereinafter Cappelletti,

The Judicial Process].

(22.) Id. at 49 n. 133.

(23.) Id. at 50.

(24.) Id. at 49-5 1.

(25.) Id. at 5 1.

(26.) Id.

(27.) A large proportion Of European constitutional judges are university professors. Favoreu, supra note 4, at 56-

57.

(28.) Mauro Cappelletti, Repudiating Montesquieu?: The Expansion and Legitimacy of Constitutional justice," 35

Cath. U. L. Rev. 1, 10-18 (1985) [hereinafter Cappelletti, Repudiating Montesquieu].

(29.) Id. at 14.

(30.) Favoreu, supra note 4, at 44-45.

(31.) See id. at 55-56.

(32.) See, e.g., CONST. arts. 147-52 (Bulg.); A Magyar Koztarsasag Alketmanya [Constitution] [sub section] 32/A

(Hung.); Konstytucja [Constitution] art. 33a (Pol.); Constitutia arts. 140-45 (Rom.); see also Herman Schwartz, TheNew Courts: An Overview, 2 E. Eur. Const. Rev. 28, 28-29 (1993) [hereinafter Schwartz, The New Courts].

(33.) CEELI has provided assistance to parliamentarians, judges, executive branch officials, and other members of

the legal community in Central and Eastern Europe since 1990. CEELI offers workshops, draft law assessments,

legal training, concept papers, resident liaisons and legal specialists, and a sister law school program.

(34.) Interview with Valerie P. Calogero, Director of the Rule of Law Program at the Central and East European

Law Initiative, in Washington, D.C. (Jan. 26, 1994).

(35.) See supra Part II.B.

(36.) See, e.g., Andrzej Rapaczynski, Constitutional Politics in Poland: A Report on the Constitutional Committee of

the Polish Parliament, in Constitution Making in Eeaster Europe 93, 105-06 (A. E. Dick Howard ed., 1993).

(37.) Interview with Valerie P. Calogero, supra note 34.

(38.) Id.

(39.) Central and Eastern European constitutional courts typically are comprised of university professors, legal

scholars, and distinguished lawyers, rather than professional politicians. See Schwartz, The New Courts, supra note

32, at 29; Schwartz, New East European Constitutional Courts, supra note 6, at 760.

(40) Interview with Valerie P. Calogero, supra note 34.

(41.) Schwartz, The New Courts, supra note 32, at 28-30. In addition to legislation, most Central and Eastern

European courts may review the constitutionality of presidential and ministerial orders. Schwartz, New East

European Constitutional Courts, supra note 6, at 749.

(42.) Const. art. 61 (Fr.); Constitutia art. 144 (Rom.); see also Stone, supra note 10, at 231-32; John Bell, French

Constitutional Law 32-33 (1992).

(43.) Grundgesetz [Constitution] art. 93(i)(2) (F.R.G.). For a useful outlining the structures and mandates of Western

European constitutional courts, see Stone, supra note 10, at 232.

(44.) See, e.g., Const. art. 149(l)(2) (Bulg.); Konstytucja [Constitution] art. 33a(l) (Pol.); see also Georg Brunner,

development of a Constitutional Judiciary in Eastern Europe, 18 Rev.Cent. & E.Eur. L. 535, 545 - 46 (1992).

(45.) Act No. XXXII of 1989 on the Constitutional Court [section] 1 (Hung.).

(46.) Id. [sub section] 1(e), 49. When the Court upholds a claim of legislative inactivity, Parliament must comply

with the ruling within a period of time specified by the Court.

(47.) Schwartz, The New Courts, supra note 32, at 29-30.

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(48.) Schwartz, New East European Constitutional Courts, supra note 6, at 756.

(49.) In France, standing is limited to the President of the Republic, the presidents of the National Assembly and the

Senate, the Prime Minister, and groups of sixty deputies or senators. Const. art. 61 (Fr.); BELL, supra note 42, at 32.

Similarly, abstract review in Germany may be initiated by the federal government, the Lander governments, or one-

third of the members of the Bundestag. Grundgesetz [Constitution] art. 93(i)(2) (F.R.G.); Donald P. Kommers,

Judicial Politics in West Germany: A Study of the Federal Constitutional Court 106 (1976).

(50.) See Bell, supra note 42, at 32 (French parliamentary. opposition has become "almost the only challenger" of

legislation since granted standing to challenge legislation by a 1974 constitutional amendment.).

(51.) See, e.g., Const. art. 150(l) (Bulg.) (the President, one-fifth of the national legislature, the Council of ministers,

the Prosecutor General, the Supreme Administrative Court, and the Supreme Court of Appeals); Constitutional art.

144 (Rom.) (the President, the presidents of the two legislative chambers, the Supreme Court of justice, and groups

of fifty deputies or twenty-five senators); see also Schwartz, New East European Constitutional Courts, supra note 6,

at 753-56.

(52.) A Magyar Koztarsasag Alketmanya [Constitution] [section] 32/A(3) (Hung.).

(53.) Act No. XXXII of 1989 on the Constitutional Court [section] 21(1) - (2) (Hung.).

(54.) Id. [section] 21(7).

(55.) See Stone, supra note 10, at 232.

(56.) See supra notes 52 - 53 and accompanying text.

(57.) Act No. XXXII of 1989 on the Constitutional Court [sub section] 21(4), 48(1) (Hung.); Stephen I Pogany,

Human Rights in Hungary, 41 Int'l & Comp. L.Q. 676, 679 (1992).

(58.) See Grundgesetz [Constitution] art. 93(1)(4a) (F.R.G.).

(59.) For a brief overview of German constitutional complaint procedures, see Kommers, supra note 49, at 106-07;

see also Helmut Steinberger, American Constitutionalism and German Constitutional Development, in

Constitutionalism and Rights 199, 214 - 15 (Louis Henkin & Albert J. Rosenthal eds., 1990).

(60.) In the first 10 months of 1991, 2010 cases were filed with the Hungarian Constitutional Court; 1620 of these

were brought by private individuals. See Schwartz, New East European Constitutional Courts, supra note 6, at 756

n.71.

(61.) Polish citizens soon may have direct access to the Constitutional Tribunal via a constitutional complaintprocedure. The Constitutional Committee of the Polish Parliament, which has been drafting a new constitution since

1990, apparently has included such a provision in its draft. The provision is modeled after the German constitutional

complaint procedure and would give Polish citizens direct access to the Constitutional Tribunal. See Rapaczynski,

supra note 36, at 106.

(62.) Konstytucja [Constitution] art. 36a(l) (Pol.).

(63.) Mark F. Brzezinski, Constitutionalism Within Limits, E. Eur. Const. Rev., Spring 1993, at 38, 39.

(64.) Id.

(65.) Interview with Valerie P. Calogero, supra note 34.

(66.) Id.

(67.) See Kommers supra note 49, at 105.

(68.) See, e.g., Grundgesetz [Constitution] art. 100(l) (F.R.G.) (requiring stay of proceedings and certification to the

Constitutional Court whenever an ordinary court "considers unconstitutional a law the validity of which is relevant

to its decision").

(69.) Kommers, supra note 49, at 105-06.

(70.) Brunner, supra note 44, at 546-47.

(71.) Id. at 547.

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(72.) See, e.g., Const. art. 149(5) - (8) (Bulg.); Act No. XXXII of 1989 on the Constitutional Court [section] 1(h)

(Hung.); Constitutia art. 144 (Rom.); see also Brunner, supra note 44, at 548 - 49.

(73.) Const. art. 149(l)(4) (Bulg.); Act No. XXXII of 1989 on the Constitutional Court [section] 1(a) (Hung.); see

also Brewer-Carias, supra note 7, at 210, 256; Schwartz, New East European Constitutional Courts, supra note 6, at

749.

(74.) Act No. XXXII of 1989 on the Constitutional Court [section] 1(c) (Hung.); Const. art. 149(l)(4) (Bulg.); see

also Schwartz, New East European Constitutional Courts, supra note 6, at 749.

(75.) Const. art. 149(l)(4) (Bulg.); see also Rumyana Kolarova, A Self-Restricting Court, E. Eur. Const. Rev., Spring

1993, at 48.

(76.) Act No. XXXII of 1989 on the Constitutional Court [section] 1(a) (Hung.); see also Pogany, supra note 57, at

678.


(78.) Favoreu, supra note 4, at 41.

(79.) Const. art. 62 (Fr.).

(80.) Bell, supra note 42, at 48.

(81.) Kommers, supra note 49, at 272-73.

(82.) Id. at 275.

(83.) Const. art. 151(2) (Bulg.); A Magyar Koztarsasag Alketmanya [Constitution] [section] 32/A(2) (Hung.); see

also Istvan Pogany, Constitutional Reform in Central and Eastern Europe: Hungary's Transition to Democracy, 42

Int'l & Comp. L.Q. 332, 341 (1993); Kolarova, supra note 75, at 48,

(84.) Konstycja [Constitution] art. 33a(2) - (3) (Pol.); see also Brzezinski, supra note 63, at 40.

(85.) Substatutory acts are "regulations and ordinances promulgated by executive agencies pursuant to statutes."

Brzezinski, supra note 63, at 38.

(86.) Id. at 40.

(87.) Konstytucja [Constitution] arts. 33a(2) - (3), 106 (Pol.); Brzezinski, supra note 63, at 40. (

88.) Constitutia art, 145(l) (Rom.); see also Michael Shafir, Romania's New Institutions: The Constitutional Court,

RFE/RL Res. Rep., Oct. 23, 1992, at 47, 47 - 48.(89.) Constitutia art. 147 (Rom.).

(90.) Schwartz, New East European Constitutional Courts, supra note 6, at 759; Schwartz, The New Courts, supra

note 32, at 29.

(91.) Const. art. 56 (Fr.).

(92.) Id.

(93.) Grundgesetz [Constitution] art. 94(l) (F.R.G.).

(94.) See Kommers, supra note 49, at 88.

(95.) Konstytucja [Constitution) art. 33a(4) (Pol.); A Magyar Koztarsasag Alketmanya [Constitution] [section]

32/A(4) (Hung.).

(96.) Constitutia art. 140(2) (Rom.).

(97.) Const. art. 147(l) (Bulg.).

(98.) See, e.g., Const. art. 147(2) (Bulg.); Constitutia art. 140(l) (Rom,).

(99.) Const. art. 147(2) (Bulg.); Constitutia 140(l) (Rom.); see also Brunner, supra note 44, at 544 nn.28 - 30.


(101.) Bell, supra note 42, at 227.

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(102.) This process has been termed "judicialization" or "juridicization" of the legislative process. See, e.g., Stone,

supra note 10, at 9.

103. See id. at 11, 225, 241 (discussing the French Constitutional Council).

104. Id. at 251.

105. Alec Stone, Where Judicial Politics are Legislative Politics, in Judicial Politics And Policy-Making In Western

Europe 29, 45 (Mary L. Voicansek ed., 1992).106. Stone, supra note 10, at 231.

107. See id. at 236 (citing minority opposition successes in France in the 1980s as a result of petitions to the

Constitutional Council).

108. Id.

109. Id.

110. See supra note 49 and accompanying text.

111. STONE, supra note 10, at 236, 238-39.

112. See id. at 24 1.

113. Id.

114. See Kommers, supra note 49, at 275.

115. Stone, supra note 10, at 243-44.

116. See id. at 245-46 (borrowing the judicial paradigm from Martin Shapiro, Courts: A Comparative And Political

Analysis (1980)).

117. Cappelletti, Repudiating Montesquieu, supra note 28, at 26-27; Cappelletti, The Judicial Process, supra note 21,

at 44-46.

118. Cappelletti, The Judicial Process, supra note 21, at 44-45.

119. Stone, supra note 10 at 243 (citing Philip Blair, Law and Politics in West Germany, 26 Pol. Stud. 354, 358

(1978)).

120. Id. at 243-44.

121. See id.

122. See id. at 244.

123. Id.

124. Brunner, supra note 44, at 545.

125. Stone, supra note 10, at 243-44.

126. See Peter Paczolay, The New Hungarian Constitutional State., Challenges and Perspectives, in Constitution

Making iN Eastern Europe 21, 46 (A. E. Dick Howard ed., 1993) (candidates for the Constitutional Court are

nominated by all parties in Hungary's Parliament).

127. Cappelletti, The Judicial Process, supra note 21, at 43-44.

128. See Paczolay, supra note 126, at 46.

129. See Bell, supra note 42, at 229 (discussing the French Constitutional Council).

130. Id.

131. See id.

132. Schwartz, New East European Constitutional Courts, supra note 6, at 747.

133. Jon Elster, On Majoritarianism and rights, E. Eur. Const. Pev., Fall 1992, at 19, 20.

134. Opportunities include changing the timing of elections or taking disproportionate advantage of state-owned

radio and television. Id.

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135. Cappelletti, Repudiating Montesquieu, supra note 28, at 15; Mauro Cappelletti, The Expanding Role of Judicial

Review in Modern Societies, 58 Revista Juridica 1, 12-13 (1989) [hereinafter Cappelletti, Judicial Review in

Modern Societies].

136. See Cappelletti, Judicial Review in Modern Societies, supra note 135, at 13.

137. See, e.g., Elster, supra note 133, at 19, 20-21; Jonathan D. Varat, Reflections on the Establishment of

Constitutional Government in Eastern Europe, 9 Const. Commentary 171, 171-72 (1992).

138. See Elster, supra note 133, at 20.

139. Id. at. 24.

140. See Varat, supra note 137, at 172.

141. See id. at 172-73.

142. Cappelletti, Repudiating Montesquieu, supra note 28, at 27-28.

143. See Cappelletti, Judicial Review in Modern Societies, supra note 135, at 18.

144. See supra Part IV.B.2.

central and easter european cc

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