The Dialogue of Constitutional Judges

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Abbreviations

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Foreword

Regardless of the constitutional review model chosen by states, the constitutional courts imposed themselves in the architecture of the rule of law, a development that was also facilitated by the institutional dialogue between them.

Starting from the role of the constitutional courts, their activity must be approached and analysed in the complex system of the relationships determined by this development at national, international and over-national level. Having in view the nature of these relationships, as well as the effects they take, we consider that they can be subsumed to the broad concept of institutional “dialogue”. As for the Constitutional Court of Romania, thus there are mechanisms of institutionalised relationship/cooperation both at international level – with other constitutional courts, international or over-national courts, and at national level – with various public authorities and even with the mass-media. Their configuration way determines us to support the idea of a permanent dialogue whose effects are materialised in a process of law constitutionalisation, of “shaping” and adapting the juridical institutions, and eventually, in a process of standardising the law, particularly visible in the matter of regulating the rights and fundamental freedoms and their guarantees.

Even if, after the adoption of the solutions with a constitutional value, certain amendments were made to the legislation, those solutions maintain their validity in the absence of an amendment to the Basic Law; therefore the decisions of the constitutional court refer to the reference norms, on the date of their issuance.

The amplification and the consolidation of the constitutional judges’ dialogue, both at national and international level, determine an occurrence phenomenon to common constitutional values. This type of cooperation leads to the constitutionalisation and standardization of the law, as well as to an overall consolidation of the protection of the values of the rule of law in Europe and worldwide.

“The dialogue of constitutional judges” presents the institutional dialogue of the Constitutional Court of Romania on the mentioned coordinates, how it materializes and which are its effects at national and international level.

“Ten dialogues” presents the institutional collaboration mechanisms between the Constitutional Court and the Court of Justice of the European Union, the European Court of the Human Rights, the other constitutional courts, the Venice Commission, the Parliament, the President of Romania, the Government, the Advocate of the People, the courts of law and the mass-media.

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Introduction

The constitutional courts are the courts qualified to achieve the constitutional review, namely the activity to verify the compliance of laws and other normative acts with the provisions of the Basic Law. This type of control on the juridical rules is a consequence of the fact that the legal system is not presented as a not differentiated set of rules, all placed at the same level, but as a hierarchy made up on the criterion of the juridical value of the sources of law, having on top the supremacy of the constitution¹. Therefore, the pyramidal structure of the legal system is given by the relationship between the law and the normative acts subordinated to the law and also by the upstream position of the constitution whose supremacy, under the institutional aspect, is ensured through the role of the constitutional courts.

The studies in this matter² show in this regard that the 20^th century in general, but especially its second half, is marked by an emergence phenomenon where “the new constitutionalism”³ shall be the epicentre, namely a model of democracy, of state organisation which refuses the dogmatism of the legislative sovereignty, gives priority to the fundamental rights and freedoms and imposes the constitutional review achieved through specialised courts. The new constitutionalism has extended itself in “waves” that corresponded to the transformations which took place in the political plan at the level of the states. At present, the formula containing a written constitution, a charter of the fundamental rights and freedoms, an institutionalised constitutional review exists almost all over Europe. Regardless of the constitutional review model chosen by the states, the constitutional courts imposed themselves in the architecture of the rule of law, an evolution facilitated by the closer and closer institutional dialogue among these courts at the European and international level.

Such process was accelerated in Europe by the fall of the communist system whereas the set up of the constitutional courts in the ex-communist countries was perceived as a symbol of the rule of law⁴. Under the circumstances of the post-totalitarian system, the guarantees granted by the constitutional courts had and still have an important role, especially in terms of the issues inherent to the transition towards democracy, issues which are not specific only to Europe. However, it does ← 17 | 18 → not mean that, in the traditional democracies, their role and the issues approached by them present less importance.

The abovementioned evolution does not constitute only a quantitative phenomenon, but also a qualitative one, as the geographical expansion was accompanied by “an enrichment” of the constitutional review regarding its mission and power, as well as by the acquisition of new competence fields of the constitutional courts subsumed to the large concept of constitutional justice which includes the constitutional review without being reduced to that⁵. The powers of the constitutional courts increased in number and complexity, as it is shown by the doctrine whereas certain authors⁶ mentioned mainly the following such powers “common to all constitutional courts and constitutional bodies”:

♦ guarantors for the supremacy of the Constitution, all the powers of the constitutional courts shall be orientated towards the achievement of this purpose; as for the supremacy of the Constitution, it was noted⁷ that it is a notion which includes political and legal features and values that express its upstream position not only in the legal system, but also in the entire political system of a state. It is based on the fact that the Basic Law shall be the expression of the Government’s will and of the people in the last instance, a will that is strictly connected to the economic, social, political and cultural context of the society where it is expressed. Therefore, the supremacy of the Constitution is not a simple assertion, but it is and it must be a juridical reality in any democratic rule of law, with a series of legal consequences and guarantees, among which the control exercised by the constitutional courts;

♦ the voice and the guarantor of the Constitution as it was established by the constituent power; it shall be mentioned under this aspect that, according to the classical theory of the democracy, the constituent power of the state, being the expression of the people’s sovereignty, creates the Constitution and it shall not be involved in the law-making process, in the effective governing, in the justice administration and in the settlement of cases by courts. The constituent power does not disappear, but it enters into a latent or “sleepy” mood. It shall come back to life and become active when the provisions of the Constitution ← 18 | 19 → need to be amended or when the nation or its political elite have taken the political decision to adopt a new Constitution⁸. As long as it is in a latent mood, the Constitutional Court shall be the one that expresses the exact meaning of the constitutional provisions, having the possibility to interpret them provided that they are kept in the limits of the will of the “the founding parents”;

♦ The supreme judicial guarantor of the fundamental human rights as “the foundation in legitimating the judicial control of the constitutionality of laws”;

♦ Guarantors that oblige the state institutions to keep themselves within the constitutional limits of their competences, a power that is achieved through various forms and ways, in the virtue of their constitutional competences;

♦ Legal and constitutional arbitrage agents in settling conflicts; constitutional courts exercise the constitutional arbitrage whereas the conflicts among the state powers are settled in accordance with the Constitution and within its limits;

♦ Through the conducted control, the courts forewarn the despotic aspirations of the governing majority; in the context of the liberal democracy, the courts forewarn that the majority annuls the opposition by protecting the minority’s rights;

♦ A safety valve in order to reduce the level of social pressure and restlessness as well as in order to forewarn the destruction and the self-destruction of the constitutional and government system through the illegal, extra-parliamentary or extra-constitutional action;

♦ Authorities that bring harmony to the national, constitutional and over national values, principles and rules, as well as the settlement of conflicts between the national and over national juridical institutions and systems.

Having in view the complex character and the particular features of the constitutional justice in Europe and in the world, it is difficult to strictly identify models or templates⁹. Nevertheless, while considering certain common specific features, we can identify, in a large meaning, as “models” of constitutional review with the largest extension at present: the American model (a constitutional review exercised within the competences granted to courts of law) and the European model or the Kelsen’s model (a control exercised by a unique, particular and specialised constitutional court). ← 19 | 20 →

As a tendency, under the aspect of the option for one or another of these models, it was noticed¹⁰ that between the two World Wars and particularly after the Second World War, several states chose the European model of constitutional review. For example, after 1990, the countries in Central and Eastern Europe, except for Estonia, opted for this model.

In Romania, it was initially consecrated the constitutional review exercised by the power of judges, being institutionalised by the Constitution in 1923¹¹ and kept by the Constitution in 1938. After the Second World War, there was no longer a constitutional review of laws (the Constitutions in 1948 and in 1952, respectively). Even though the Constitution in 1965 stipulated that the Great National Assembly shall “exercise the general control of enforcing the Constitution. Solely the Great National Assembly shall decide on the constitutionality of laws”¹², actually there is no such control. After the fall of the Communist regime, the Constitution in 1991 consecrated the European model of constitutional review of laws and the Constitutional Court was established as an authority independent from any other public authority, having the role of guarantor for the supremacy of the Constitution. Therefore, the option of the constituent legislator fell within the general evolution at the European level, even if the latter aroused many debates in the Constituent Assembly¹³.

This tendency to expand the institutionalisation of the constitutional review was explained¹⁴ in various ways: either as a result of the growing awareness of the importance to protect the principles of the rule of law and the fundamental rights and freedoms, or as a result of the governing at several levels, respectively the concern to identify an instrument which could coordinate the states in a federal system, either as a response to the issues involved by the governing alternations, or as a response to the constitutional development of other states and of the ← 20 | 21 → transformations that occur at the international level. Regardless of the preferred theory, it is obvious that the institutionalisation of the constitutional review and the creation of specialised courts in order to exercise this control represent one of the most important phenomena of the 20^th century and at the beginning of the 21^st century¹⁵. This evolution has certainly some challenges because the issues faced by the constitutional courts are mostly common and aim especially at the relationship with the other state institutions, at ensuring a real independence and authority, materialised eventually in the efficiency of the constitutional justice, respectively in the way in which the decisions of the constitutional courts are complied with and enforced.

Starting from these premises and from the current role of the constitutional courts worldwide, a context which helped with the development of the constitutional review in Romania, this work presents the Constitutional Court of Romania in the complex system of the relations determined by this evolution at the national, international and over-national level. Having in view the nature of these relations as well as the produced effects, we consider that they can be subsumed to the concept with large significations of institutional “dialogue”.

Thus, there are mechanisms of institutionalised cooperation among the Constitutional Court and various public authorities, specialists in the legal field as well as in mass-media¹⁶. Their configuration way determines us to support the idea of a permanent dialogue whose effects are materialised not only in relation to the constitutionalisation of the law, but also into a “shaping” and adaptation of the institutions to this worldwide phenomenon.

By approaching the mentioned institutionalised cooperation mechanisms that we are about to develop below, we are showing that Law no. 47/1992 on the Organisation and Operation of the Constitutional Court¹⁷ stipulates the Court’s obligation, within the exercise of its powers, to ask for points of view from the Parliament, Government and the Advocate of the People regarding the constitutionality of the normative acts deferred to its control (in a differentiated way, according to a priori or a posteriori challenges of unconstitutionality, pursuant to the rules established by its organising and operation law¹⁸. The Court’s request of the viewpoints shall be mandatory but their expression by the mentioned authorities shall be optional. ← 21 | 22 →

Moreover, the Constitutional Court has the obligation to communicate the ruled decisions, as appropriate, to the President of Romania, to the Parliament, to the Government, respectively to the courts of law, under the conditions provided by its organisation and operation law.

A special discussion is related to the relationship between the Constitutional Court and the courts of law or the commercial arbitrage courts, from the perspective of their role conferred by the Constitution and by the Court’s organic law, particularly in the procedure of settling the exceptions of unconstitutionality of laws and ordinances, as well as from the perspective of the effects determined by the decisions delivered by the Constitutional Court upon the practice of the courts especially, and also upon the branches of law in general, in order to achieve their constitutionalisation process. ← 22 | 23 →

As for the reports between the Constitutional Court and other authorities, institutions, legal entities, it is important to mention the provisions of Article 76 of Law no. 47/1992, republished, which establish that “public authorities, institutions, self-managed public companies, trading companies and all the other organizations shall have to communicate any information, documents, and deeds they hold, and which are requested by the Constitutional Court for the fulfilment of its powers.” Therefore, the constitutional jurisdiction has the possibility to require such documents and information, and, in correlation, the one who makes the request has the obligation to communicate the required data or information. Also, Article 47 (4) of the Regulations on the Organisation and Functioning of the Constitutional Court¹⁹ stipulates that the Judges-Rapporteur may request specialty advice from certain persons or institutions, with the prior approval from the President of the Court. Pursuant to the provisions of Article 78 of the same Regulations, the Constitutional Court decides upon the cooperation relationships with similar authorities abroad and it may become a member of certain international organisations in the field of constitutional justice.

As for the international level, it is important to notice that the topic of this dialogue was and is frequently approached during national and international meetings and scientific communications, while considering its importance. Thus, for example, the 26th Congress of the Conference of the European Constitutional Courts held between 12 and 14 May in Vienna was dedicated to and showed the cooperation forms among the constitutional courts,among the constitutional courts and the European ones, the consolidation of the institutional position and the dynamics of their development in the past 60 years.

Starting from such reference points presented here, after a short presentation of the Constitutional Court’s evolution from its foundation upto the present, under the aspect of the institutional consolidation, we shall analyse the institutional dialogue we have referred to, the way it is materialized and its effects at the national and international level. ← 23 | 24 →

1 For developments, see M. Troper, D. Chagnollaud, Traité international de droit constitutionnel – Théorie de la Constitution, Tome I, Dalloz, Paris, 2012, pp. 756–763.

2 For details, see A.S. Sweet, Constitutional Courts, in The Oxford Handbook of Comparative Constitutional Review, Oxford University Press, 2012.

3 M. Shapiro, A. Stone, The New Constitutional Politics of Europe, in Comparative Political Studies no. 26/1994, p. 397.

4 L. Solyom, On the Cooperation of Constitutional Courts, in Freedom of expression and separation of powers in the jurisprudence of constitutional courts. General reports of the 10^th Conference of the European Constitutional courts, Budapest, Hungary, 6–9 May 1996, p. 8.

5 For this purpose, see I. Deleanu, Instituţii şi proceduri constituţionale – în dreptul român şi în dreptul comparat (Constitutional institutions and procedures – in the Romanian and comparative law), C.H. Beck Publishing House, Bucharest, 2006, pp. 828–832.

6 E. Tanchev, Implicaţii comparative ale controlului de constituţionalitate (Comparative involvements of the constitutional review), in Curtea Constituţională a României, 20 de ani de existenţă şi 100 de ani de control de constituţionalitate (The Constitutional Court of Romania, 20 Years of existence and 100 Years of Constitutional Review), Universul Juridic Publishing House, 2013, pp. 42–59.

7 I. Muraru, Există un garant al supremaţiei Constituţiei române? (Is there a guarantor for the supremacy of the Constitution of Romania?) in RRDP no. 1/2011, pp. 130–155.

8 As for the drafting of the constitution as an act of supreme political decision upon the type and form of political unity, see C. Schmitt, Constitutional Theory, Duke Univ. Press, 2008, pp. 75–94.

9 For a presentation of the models of constitutional review, see D. Maus, Application of the case law of foreign courts and dialogue between constitutional courts, in Constitutional Law Review no. II, p. 3, on www.constcourt.ge.

10 S. Dürr, Comparative Overview of European Systems of Constitutional Justice, one www.icl-journal.com, vol. V, no. 2/2011, p. 159.