A CONSTITUTION AND CONSTITUTIONAL JUSTICE. From the aspect of certain Northern European States, constitutional justice has become a

Transcription

1 Dr. Ludwig Adamovich A CONSTITUTION AND CONSTITUTIONAL JUSTICE From the aspect of certain Northern European States, constitutional justice has become a commonplace in Europe today. However, it has not been always so. During the time between the two World Wars the issue of constitutional justice was the subject of turbulent discussions between the experts, particularly at the meeting of the Association of German Constitutional Lawyers in Prague in Hans Kelsen was there passionately defending his model of constitutional justice against his critics. The situation changed only after the Second World War, in particular by the introduction of constitutional justice in Germany and Italy. Even Hans Kelsen himself was certainly not an unreserved adherent of constitutional justice. He was in favour of a review of the constitutionality of statutes, however, he was strongly reserved in respect of case law in the area of fundamental rights on the basis of generally recognized fundamental rights. In such a case a constitutional court would be granted such absolute power that would be simply intolerable. Such power has been enforced by the German Constitutional Court from its inception; many have followed it. Here we deal with the basic issue of the limits of constitutional justice, to which we are going to return later. There are typical powers of constitutional courts, which different constitutions determine differently. The practical range of individual powers is, however, quite limited. Some matter quite rarely if ever because they presuppose a special political situation, some are part of a daily routine. Specially significant is the review of the constitutionality of statutes. It is not rare in the majority of European constitutional courts. What is important in this respect is, of course, who

2 2 has the right to file a request for such review. Furthermore, it is important whether the constitutional court has in such a legal case the "last say" or whether such power is vested in the parliament, which can alter the constitution by a prescribed majority and thereby circumvent the constitutional court rulings by determining the matter differently. Membership in the European Union, as well as the obligations stemming from the European Convention of Human Rights, raise specific problems for constitutional courts, which they must resolve considering their existing constitutions. A great number of problems arising before a constitutional court are of a procedural character, as before any other court. Here also belong the issues relating to the ways in which a decision is reasoned: how intensively are jurisprudential works considered and how often are they cited? How much is the case law respected? Is it possible to deviate from it, or only under special circumstances? A special chapter for itself is correlation between politics and constitutional justice. Politics plays an important role already in staffing the judicial posts, and even more with regard to the case law itself. That constitutional court decisions interfere with politics already follows from the tasks imposed; however, the question of where the dividing line goes is very important. Theoretically the answer to this question can be given in the constitutional bases of every constitutional court. In fact this occurs rarely: a solution of the problem is left to the rules of interpretation. Interpretation is a priority task of everyone who applies law and thus every legal expert. There are no special rules for constitutional interpretation, thus general interpretational rules apply.

3 3 However, constitutional provisions particularly concern fundamental rights and are most often far more restrained than other regulations; therefore they leave a broader space to interpretation. What is frequently raised in connection with interpretation is whether it is at all an issue that must be addressed by the constitutional court. Not all constitutional issues are namely subject to constitutional review. A constitutional court is time and again in the situation in which it must decide on its own jurisdiction. Thereby it is often the target of political critiques and of criticism from the expert public. It concerns a rather typical problem area. One of such is also the principle of equality, which is surely found in every written European constitution. Traditionally we deal with equality before the law, in the Slovenian, the German as well as in the Austrian Constitution. The equality principle literally means that laws must be applied equally to everyone, that there should be no privileges in this context. Such understanding of the mentioned principle stems already from the period of the French Revolution. However, the case law has much deviated from that. As I am not very much familiar with the case law of the Slovenian Constitutional Court, from this moment on I will rather focus on the Austrian case law. Every constitutional court which is empowered to review the constitutionality of statutes is inclined to apply the equality principle in connection with the relation between the constitution and the legislature (as well as in the context of fundamental rights in general). The Austrian Constitutional Court has done that already from its reestablishment after the Second World War. This means that a differentiation caused by the legislature must be actual; in other words, the difference must be based on an actual basis. Perhaps it sounds convincing, however, this formula also entails great difficulties. It is particularly excluded that every differentiation caused by the legislature must be measured through the equality principle: the legislature has a certain legal-political area of free action. In

4 4 such a manner it is impossible to effectively discuss the issue in the sense of the equality principle concerning certain issues, such as whether for a certain tax the general tax rate of 20% or 22% is to be assessed. It is completely different, of course, if, given the equal conditions, one group of people is assessed the tax basis in the amount of 20%, while another completely equal group is subject to the tax basis in the amount of 40%. Furthermore, it is not always clear what can be compared in the framework of review by means of the equality principle. For this purpose we can find some relevant cases in the adjudication of the Austrian Constitutional Court relating to tax issues, e.g. how the payment of maintenance to children is considered in the area of taxes. At this point it is necessary to know that Austrian tax law includes the institution of extraordinary burdens which is considered as a tax relief: thereby urgent parents' contributions are meant. The previous income-tax law understood as such children's maintenance, whereas the amended regulations no longer consider maintenance as a tax relief. The case came up to the Constitutional Court, which annulled the new legislation as unconstitutional. This would namely entail that persons who are not bound to pay maintenance are equally treated for tax purposes as those who are bound, what would be unfair. The decision provoked anger in a great part of the political arena. The new regulations had a strong ideological background. Only those taxpayers with high incomes can benefit from tax advantages relating to maintenance; tax relief has no effect on taxpayers with low incomes. If the critique had followed this direction a different comparison would have to be made: it did not

5 5 concern persons having the obligation to pay maintenance and those without such obligation, but the poor and the wealthy (to say it in a bit rough way). It is clear that what is behind that is a dispute of value. The Constitutional Court has resolved the dispute on the basis of its perception of value. Was that the right way? A part of the legal profession doubts that: it would be impermissible subjectivism if the Constitutional Court bought its own valuation into its principled case law. This power belongs to the legislature, not to the constitutional court. If this task of the constitutional court were justified, it should only apply the methods recognized in legal theory and should avoid using disputed methods. Stemming from this assumption, we deal with the limits of the legal profession which are also the limits of constitutional justice. Certainly the matter concerns here a certain notion of the legal profession, which is in no case undisputed. We deal with a scientific approach, Kelsen's pure theory of law. In this context it is important to know that it is exactly the pure theory of law sharply which divides legal science from law application. For law application it is not necessary to use the methods of legal science. Therefore, if we take the pure theory of law as a basis, we must add another critical argument. We find such in a democratic-political area. Let us recall my initial statement when I cited Hans Kelsen's warning against the intolerable absolute power of the constitutional court. These words on the immense absolute power of the constitutional court are certainly based on an estimation that might entail different opinions. In connection with the question which I was just explaining, it would be interesting to know how the parliament as the legislature understands its role. Has the constitutional court the final say concerning the issue of the interpretation of the

6 6 constitution, as it is granted this power under the constitution? Or whether the final say is with the legislature which may authentically also interpret the provisions on constitutional powers. There is no generally valid answer to this question. This can only be answered on the basis of an existing specific constitutional system. The Austrian constitution-giver has often taken for itself the final say on the issues of constitutional interpretation. The Constitutional Court replied to it that the Constitution limits the power of the parliament in relation to amending the Constitution to the extent that an amendment to the federal Constitution cannot entirely be adopted only by the parliamentary constitution-giver itself, but must be supported by a referendum. Already in 1952 the Constitutional Court declared to have jurisdiction in case of a complete revision of the Constitution. On that basis the Constitutional Court can also annul constitutional subject-matter. This power was first used in 2001, in a quite unimportant case. The just discussed topic clearly signifies how political and legal issues can be intertwined. In this connection, polemic discussions can be held between politicians, legal experts. However, these are extreme cases. What is generally raised is the question of how far the constitutional court may go in using jurisprudential literature when substantiating its decisions and interpreting them. In its older practice the Austrian Constitutional Court has mainly tried to avoid that. In the already mentioned decision of 1952 it even held that it would not decide on different jurisprudential opinions. Today it surely would not express that in such a form, although the essence is exactly in that ruling. In the present practice the literature is cited in different ways, which largely depends on the personal style of a concrete rapporteur. In any case an arbitrary selection without taking into consideration the difference of opinions is unacceptable.

7 7 The issue of how decisions of the constitutional court are accepted and considered by the population and how the Court reacts to such opinions belongs to a broader notion of the topic "Constitutional Justice and Politics". In view of its State-political function, the constitutional court will have to take such an opinion into account. Taking an actual or prevailing public opinion into consideration surely reflects the democracy principle. Such a notion overlooks the fact that it is impossible to outwit democracy in face of a principle of a rule-of-law State. Giving consideration to the population's public opinion means the end of the judiciary which is based on the rule of law. We can object this by saying that this applies to civil and penal law, but not to constitutional law. From this point of view, constitutional justice is unnecessary. In such a case non-binding expert advices suffice. The role of constitutional courts as courts requires that these strictly adhere to their procedural rules. It concerns the circumstances which an external observer would find as hardly understandable formalism. In proceedings before the Austrian Constitutional Court, in the event that its procedure does not contain certain norms, the procedural rules of civil procedure are applied. This is required by formalism. Such an approach is even more demonstrated in practice, in relation to the filing of requests. When the matter concerns proceedings for the review of regulations instituted ex officio or upon the Court's own motion, the review of the so-called prejudicing also comes into play. This means the review of the question whether a legal regulation is applicable in the concrete situation. The decision on that can have broad effects as the admissibility of proceedings for the review of regulations depends on that. If the proceedings for the review of regulations are especially sensible, such decisions are publicly debated. Otherwise this is a certain rather esoteric matter.

8 8 How should the constitutional court act when it is found in the crossfire of political critiques? If the matter concerns the issues of value, it must be restrained. It must act differently, if actually wrong assertions are made. In such a case it must know how to defend itself, by means by which it will be always able to handle the dispute. However, the constitutional court cannot act in comparable cases as politics. This makes the Court vulnerable, as it is less flexible. Le me continue with a nicer topic. In the middle of the next year Slovenia will become a member of the European Union, as Austria became already in From that numerous legal problems follow, also for the constitutional court. This is in particular reflected in issues by which we deal, i.e. whether disputes on the preferential application of Community law are decisive, whether Community law represents a test for the internal legal systems of States and whether the constitutional court is obliged to respect the preliminary rulings of the European Court, etc. There is no uniform answer to all these questions; it more or less depends on the state of affairs in the area of constitutionality in every individual State. In Austria the parliament did not grant Community law an internal constitutional position, particularly it did not grant protection to its preferential application. The issues of Community law are discussed as somewhat exceptions, and they are not constitutional issues. The Constitutional Court is thus only exceptionally in the position in which it must accept a preliminary ruling of the European Court. However, it has already received three such cases. It would be too difficult to discuss these exceptions in the framework of this paper. In Austria the European Convention for the Protection of Human Rights is constitutional subject-matter. The Constitutional Court directly applies it. Furthermore, it cannot act ignore the case law of the European Court of Human Rights; even more, it often follows such. There created principles, particularly the proportionality principle of State

9 9 interference with fundamental rights, has also a great impact on the case law of the Austrian Constitutional Court. Austria is a federal State; the Constitution thus contains a fairly complicated separation of powers between the federation and the States. The issue of interpretation of the separation of powers makes the Constitutional Court busy all over again. There are serious difficulties due to the fact that this regulation of the separation of powers stems to a great extent from the twenties of the previous century and therefore does not consider newly created situations. Moreover, serious problems of the separation of powers occur, which particularly came to the fore at the discussion about the building of Semmering Tunnel. In Austria at the moment a seventy-member Austrian convention is dealing with remodelling the Federal Constitution. On this occasion the issues connected with constitutional justice will surely arise. For the time being there is no progress showed. In any case this achievement will also require a Europe-oriented perspective. The Europeanisation of work is especially important for the mutual cooperation of constitutional courts. We have a Conference of European Constitutional Courts, which convenes every third year and is composed of more than 30 members. It is due to the growth of this Conference that bilateral contacts became more important. I wish lots of such contacts especially for the Austrian and the Slovenian Constitutional Courts.