Judicial Politics and Constitutional Courts

Judicial Politics and Constitutional Courts Week 4 European Constitutions   A constitution is ‘a body of rules that specifies how all other legal rules are to be produced, applied and interpreted’ (Stone Sweet 2000) European Constitutions     Post-WWI (Austria in 1920, Finland in 1919) Post-WWII (France in 1946, Italy in 1948, Germany in 1949) Southern European transition to democracy (Greece in 1975, Portugal in 1976, Spain in 1978) Eastern European transition to democracy (Czech Republic in 1992, Lithuania in 1992, Poland 1997) Parliament (Lijphard 1999)   Amending a Constitution     Super-majorities greater than two-thirds (Switzerland) Two-thirds majorities or equivalent (Austria, Finland, Portugal) Between two-thirds and ordinary majorities (Greece, Italy) Ordinary majorities (UK, Sweden)  Referendum The Irish Constitution and referendum  The 1937 Constitution   Article 46 Amendment of the Constitution Article 47 Referendum Ireland to take full part in the process of European integration (1972, 1987, 1992, 1998, 2002) Recognition of the ‘special position’ of the Roman Catholic Church to be removed (1972) Divorce to be legalized (1995) Ireland to fulfil its part of the Northern Ireland Agreement (1998)  Major changes made to the Irish Constitution     Source: Gallagher 2005; the Constitution of Ireland, http://www.taoiseach.gov.ie/index.asp?docID=243 Constitutionalism and judicial review    Constitutionalism is the limitation of government by law, as prescribed by a constitution The American model of judicial review Europe: how does a polity guarantee the normative superiority of the constitution and of human rights provisions, without empowering the judiciary? Judicial review  Judicial review is the power of a court    to review the actions of public sector bodies in terms of their lawfulness, or to review the constitutionality of a statute or treaty, to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself (see GLM 2005)   Concrete review: arises out of the specific case before a court Abstract review: a posteriori or before a bill has become law The Kelsenian Constitutional Court  The European model of constitutional review:     Constitutional courts enjoy exclusive and final constitutional jurisdiction Terms of jurisdiction restrict constitutional courts to the settling of constitutional disputes Constitutional courts, have links, but are formally detached from the judiciary. Constitutional courts may review legislation before it has been enforced Delegation theory   Non-majoritarian institutions possess some specialised public authority but are neither directly elected by the people, nor directly managed by elected officials The Principal-Agent framework    Principals are those political officials who use their authority to establish non-majoritarian institutions through a public act of delegation Agents are those who govern by exercising delegated powers The expected benefits of delegation outweigh the costs Source: Thatcher and Stone Sweet 2002 Judicial review  Two models of judicial review   Kelsen’s model of a dedicated constitutional court, separate from a regular court system (Germany, Austria, Italy, Malta, Portugal, Spain and post-communist countries) The ordinary court system (Ireland)    The German Federal Constitutional Court The French Constitutional Council The High Court and the Supreme Court in Ireland Germany (1951) Federal Constitutional Court 16 Bundestag elects 8, Bundesrat 8, both by 2/3 vote Italy (1956) Constitutional Court 15 National govt. appoints 5, nat. Council of Judiciary appoints 5, parliament elects 5 by 2/3 in joint session 9 years All judges with 20 years of experience or tenured professors National government (against regional laws); regional governments (against national laws); ordinary court (all within 30 days of adoption) No France (1959) Constitutional Council 9 President appoints 3, President of National Assembly 3, President of Senate 3 9 years none Spain (1981) Constitutional Tribunal 12 National govt. appoints 2, nat. Council of Judiciary 2, Congress and Senate each elect 4 by 3/5 vote 9 years Judges, professors of law, lawyers, civil servants, 15 years of experience Prime Minister, President of Parliament; 50 deputies; 50 senators; heads of autonomous regions; (within 90 days following adoption); ordinary court Yes Number of judges Appointment (election) by 12 years 40-68 years of age; 6 must be former federal judges; all qualified lawyers Who can Federal initiate judicial government, review of Land constitutionality governments; of laws 1/3 of the Bundestag (all within 30 days following adoption of law); ordinary court Individual constitutional complaints Term Qualification Yes President; President of National Assembly; President of Senate; 60 deputies of Nat. Ass; 60 senators (all within 15 days following adoption) No Source: Kuhn 2006 Judicial review in Ireland  Presidential referrals  Under Article 26 the President has the power to refer a bill to the Supreme Court for a decision on its constitutionality (except for a Money Bill, proposal to amend the Constitution) In 1987 Crotty case prevented the state from ratifying the Single European Act until the Constitution was amended to permit this In 1992 the Supreme Court decided that collective cabinet responsibility entailed an absolute ban on all the disclosure of discussions at cabinet meetings In 1995 the Supreme Court decided in the McKenna judgment that governments could not use public funds to promote only their own side of the case at referendums.  Concrete judicial review    Source: Gallagher 2005 Weak judicial review  The UK     The question of unconstitutionality has not risen because of the absence of a formal codified constitution ‘English courts are increasingly willing to tell the government officials that their action is wrong’ (Johnston 1998) The European Convention on Human Rights incorporated into British law in 2000 and EU law The Constitutional Reform Act 2005 No Kelsenian constitutional courts Judicial review has never been a strong feature of poltical life, yet it is changing (Denmark, 1999; Iceland 2000)  The Scandinavian countries   Judges and lawmaking     The appointment of judges The common law tradition of stare decisis The civil law tradition Constitutional judges are ‘negative legislators’ whose legislative authority is restricted to the annulment of statute when it conflicts with the law of the constitution (Kelsen, see Stone Sweet 2002 Judges and representative government    ‘The courts in Europe today hold in effect a sort of veto power over many important political decisions’ (Kuhn 2006) ‘Today, ministers and parliamentarians govern with constitutional judges. And the judiciary, partly in interaction with constitutional judges, has radically expanded its capacity to control policy outcomes’ (Stone Sweet 2002) How and to what extent constitutional adjudication has transformed the nature of parliamentary governance? (Stone Sweet 2002) References      Gallagher, M. 2005. ‘The constitution and the judiciary’ in Gallagher M. and Coakley J. Politics in the Republic of Ireland. Fourth Edition. Routledge Hogan, G.W. and G.F. Whyte. 2006. JM Kelly: The Irish Constitution. Fourth Edition. Dublin: Tottel Publishing Johnston, Nevil. 1998. ‘The Judicial Dimension in British Politics’ West European Politics, vol 21., no. 1 Stone Sweet, Alec. 2000. Governing with Judges: Constitutional Politics in Europe. Oxford University Press Thatcher, M. and A. Stone Sweet. 2002. ‘Theory and Practice of Delegation to Non-majoritarian Institutions.’ West European Politics, Vol 25, No 1 (January 2002) Tutorials: Group A Group B Group C Group D Group E Tuesday 10:00 1 hr Tuesday 10:00 1 hr Thursday 11:00 1 hr Thursday 11:00 1 hr Wednesday 9.00 1hr MT6,8; HT1,3,7,9; TT1,3,5 MT7,9; HT2,4,6,8; TT2,4,6 MT6,8; HT1,3,7,9; TT1,3,5 MT7,9; HT2,4,6,8; TT2,4,6 MT6,8; HT1,3,7,9; TT1,3,5 ARTS ARTS AP AP ARTS 4012 4012 AP0.09 AP0.09 3071 (13 November) (20 November) (15 November) (22 November) (14 November) AP0.09 is in Aras an Phiarsaigh (beside the Beckett Centre). Max 16-17 students in a group; sign-up sheets on notice boards, 4th Floor 2-3 College Green. Tutorials meet every two weeks starting week of November 12th. Lecture notes: http://www.tcd.ie/Political_Science/courses/undergrad/PO2630/index.php Readings: - Counter reserve in TCD library -- Journal articles may be downloaded from TCD library website: http://atoz.ebsco.com/titles.asp?Id=1324&sid=177476213&TabID=2 Office hours: Tuesday 12-1pm, Friday 12-1pm Office: Room 2.15, 3-4 Foster Place