Particularities of the Constitutional Review in Some Countries

Constitutional Review in the New Democracies

1.1. Development in the so-called New Democracy countries has involved the introduction of constitutional review in the so-called New Democracy countries²³. The introduction of constitutional review has meant a break-up of the former Principle of the Unity of Powers, in view of which socialist systems, as a rule, did not have any constitutional review. The only real exception was the former Yugoslav Federation, which in spite of the Principle of the Unity of Powers, introduced a constitutional review system in 1963 on the federal level as well as on the level of member republics, following the European (Austrian/German) Model. However, it is necessary to mention the Romanian experiment that introduced the constitutional review before World War I. In addition, in Czechoslovakia the respective institution was first introduced in 1920. The trend to broader enforcement of the constitutional review in Czechoslovakia was interrupted by World War II and the already founded institutions failed to become active in practice. Subsequently the constitutional review in Czechoslovakia was newly introduced in 1968, but did not become active in practice.

1.2. The development of constitutional review in the countries of the former socialist regimes is characterized by the following:

- Except in the former Yugoslav Federation and some attempts in Romania and Czechoslovakia, constitutional review has no tradition.

- Even after World War II constitutional review (contrary to its affirmation in West European countries) was not instituted due to the fundamental incompatibility with the existing national political systems. These systems adopted the principle according to which the legislative branch is held responsible for the constitutionality of regulations and according to which constitutional review cannot be practiced by an extra-parliamentary body. Therefore, the power of constitutional review was in principle reserved for the legislative bodies²⁴.

- The introduction of constitutional review systems following the European Model is of more recent date, arising in general at the end of the eighties and continuing in the nineties, along with the development of the democratic process in the above mentioned countries. Accordingly, the introduction of constitutional review brought about a significant change in the above countries where previously such a system had been completely unknown.

1.3. The generally adopted constitutional review model in these countries has been the so-called European (Austrian/German, Continental, Concentrated) Model²⁵. Bodies exercising constitutional review include the following:

a) Constitutional Courts: Albania, Armenia, Azerbaijan, Belarus, the Federation of Bosnia and Herzegovina, the International Constitutional Court of the Republic of Bosnia and Herzegovina, Bulgary, Chechnia, Croatia, the Czech Republic, the FRY, Georgia, Hungary, Latvia, Lithuania, Moldova, Mongolia, Montenegro/the FRY, the FYROM, Kazakhstan, Kyrgyzstan, Poland, Romania, the Russian Federation (with the Constitutional Courts of the federal entities of Adigea, Altai, Bashkiria, Buryatia, Chuvashia, Dagestan, lngushia, lrkutskaya Oblast, the Kabardino-Balkar Republic, Khakassia, the Karachaewo-Cherkez Republic, Karelia, Kalmikia, Komy, Marii-El, Northern Ossetia, Tatarstan, Tuva, Udmurtia, Yakutia/Sakha), Serbia/the FRY, the Serbian Republic of Bosnia and Herzegovina, Slovakia, Slovenia, Tajikistan, Ukraine, Uzbekistan (with the Constitutional Committee of the Autonomous Republic of Karakalpakstan);

b) (Concentrated or specific) constitutional review performed by the highest ordina[y court in the country: Estonia;

c) Other forms of the constitutional review based to a large degree on the principle of self-review inside the parliamentary system: Turkmenistan.

1.4. Institutions based on the European constitutional review model share the following characteristics:
- in comparison with the more consistent systems of constitutional review of Western Europe, the constitutional review systems introduced in the New Democracies have been exercised with a higher or lower intensity, depending on the particular national system;
- a monopoly of constitutional review (specialisation in constitutional review) concentrated in one institution. In some systems this is combined with the power of cessation of statutes adopted by the Parliament;
- not all the systems ensure individuals’ access to the Constitutional Court;
- in the proceedings following a constitutional complaint problems occur due to the separation of constitutional review from the ordinary courts;
- constitutional court judges are elected or appointed mainly by bodies of political power (the legislature, the executive);
- the decisions of the constitutional courts are of a legal as well as of a political nature, although they may also have a purely consultatory function;
- as a rule the constitutional review is repressive, although to a minor extent constitutional review is of a preventative nature;
- the object of such a preventative review of acts are primarily international treaties²⁶;
- administrative and financial autonomy is a prerequisite for the independence of the Court.

1.5. Essential Elements of the Constitutional Review:
- the timing of reviews: preventative/a priori²⁷ or repressive/a posteriori²⁸;
- the nature of review: abstract reviews, concrete reviews (requested by ordinary courts), reviews based on an individual’s petition;
- the object of reviews: positive acts, omissions²⁹, jurisdictional disputes³⁰, political parties³¹, referendum³², elections³³, constitutional complaints³⁴, capacity for offices³⁵, impeachment proceedings³⁶, powers of a special character³⁷, other tasks³⁸;

Concerning the intensity of the role of the Constitutional Court and tradition, systems (i.e. Hungary, Slovenia, Poland, the Czech Republic, Slovakia) most similar to the German Constitutional Court Model have strong constitutional courts, whereas certain systems keep the powers of the Constitutional Court within certain limits to prevent it from assuming the role of a "negative Legislature"³⁹.

1.6. Some other specific features of particular New Democracy countries are as follows:
- in comparison with other "traditional" systems, the Constitutional Court's interventions on its own initiative (ex officio) are more present in some New Democracy systems⁴⁰;
- the explicit review of the omission of statutorial regulation (Hungary);
- special constitutional complaints filed by municipalities, similar to the German constitutional review system (the Czech Republic);
- the constitutional review of the implementation of the decisions of International Courts (the Czech Republic);
- the jurisdiction of the Constitutional Courts over the interpretation of legal rules, mostly on the constitutional level⁴¹, or even of statutes⁴²;
- in some systems the status of legitimate petitioner (standing) is awarded exclusively to government bodies⁴³, elsewhere, however, the individual citizen may also have access to the Constitutional Court⁴⁴;
- despite the final and binding effect of decisions issued by Constitutional Courts, some systems have been trying to explicitly assure the implementation of constitutional court decisions by the subjects involved (e.g. Georgia, by special provision of the Constitutional Court Act).

1.7. Different national systems specify different terms of office⁴⁵. The term of office of a member of the Serbian/FRY Constitutional Court and of the Constitutional Court of the Republic of Armenia, as well as of the Constitutional Court of Tatarstan/Russia is life. A term of office that is too long may be dangerous for the evolution of the legal process, whereas too short a term of office could be detrimental for the continuity and the authority of the institution, as well as for the balance of the constitutional court case-law. To strengthen the principle of the independence of constitutional court judges, most systems forbid their re-election⁴⁶. The reappointment of Constitutional Courts and the appointment of constitutional court judges do not always coincide; in some countries the term of office of Constitutional Court Judges expires successively, which results in the successive (re)appointment of a portion of the Constitutional Court⁴⁷. Some systems specify the minimum age required for appointment as a Constitutional Court Judge⁴⁸, while some systems specify the maximum age acceptable for appointment⁴⁹.

1.8. As was mentioned above in general, in the New Democracy countries the influence of government bodies upon the appointment or elections of constitutional court judges differs from system to system. The varieties applicable to elections or appointments of constitutional court judges are as follows:

1.8.1. Appointment Based Systems (without the Participation of a Representative Body): Slovakia, Burundi, where constitutional court judges are exclusively appointed by the Head of State.

1.8.2. Election Based Systems: As a rule Parliaments exercise greater influence on the elections of constitutional court judges as compared to the elections of judges of ordinary courts⁵⁰.

1.8.3. Mixed Systems (Appointment and Election) are systems where one part of constitutional court judges are elected by the Parliament or are appointed by the Head of State or by the President of the Parliament, and the rest by the executive branch⁵¹.

The independent position of the Constitutional Court is further symbolized by the mode of appointment of the President of the Constitutional Court. Its independence is even greater if the President is appointed by the constitutional court judges themselves⁵², otherwise, the President is appointed by a qualified body outside the Constitutional Court⁵³.

1.9. Nearly everywhere the qualifications and the required professional experience of constitutional court judges are subject to high standards. The candidates must not only have more than average legal expertise but also a high degree of sensibility for the political effects of their decisions. Some systems regulate the rules of ethical conduct compulsory for judges of the Constitutional Court by a special Code⁵⁴.

Most systems recognize the immunity of Constitutional Court Judges and certain systems recognise explicit parliamentary immunity⁵⁵. The independent position of Constitutional Court Judges also implies recognition of the corresponding material independence, i.e. sufficient resources, funding and remuneration.

A special feature of the office of Constitutional Court Judge is its incompatibility with certain activities. In almost all systems the office of Constitutional Court Judge is compatible with scientific and artistic activity, but incompatible with political and commercial activity. With reference to political activity, there may be various grades of restriction, ranging from the absolute prohibition of membership in political parties⁵⁶ to the explicit prohibition of membership in the bodies (only) of political parties (Siovenia).

1.10. The decision-making process may be organised in different ways:
- on the level of a plenary court;
- on the level of a plenary court and chambers⁵⁷, where deciding in chambers involves mostly constitutional complaints; however, in these systems, too, important decisions are made by the plenary principle.

The dissenting/concurring opinion has also become gradually accepted in the New Democracy countries⁵⁸.

Most constitutional/judicial review systems allow for the organisational autonomy of the institution. This means they authorize the respective constitutional/judicial review bodies to follow their own rules regarding their internal organisation. Most constitutional/judicial review bodies also have an independent budget as a separate part of the whole State budget, and they are fully independent in its control. Professional services of the Constitutional Courts are organised in a similar way: they consist of clerks and clerical staff, whereby the head of the professional services generally holds the status of secretary general.
 

The Arab Countries