Volume 14, Issue 4

Constitutional courts are portrayed as counter-majoritarian institutions empowered to strike down ordinary legislation that is inconsistent with the constitution. This power is to be used sparingly, since it is seen as being in tension with basic democratic principles. Judicial review in these circumstances should be limited to minority rights protection and the enforcement of structural limitations that prevent majority rule excess. But this is only half the story. Depending on the democratic credentials of the particular constitution, courts that strike down legislation as inconsistent with the constitution can also be said to be engaging in majoritarian action. The characterization of constitutional courts as counter-majoritarian institutions is premised on: (1) the status of ordinary legislation as the quintessential majoritarian instrument, (2) the un-elected nature of judges, (3) a narrow understanding of the concept of the ‘negative legislator’, and (4) the democratic deficit that results when judges impose their views over those enacted by parliament. This Article challenges these assumptions. First, this Article demonstrates that ordinary statutes adopted by elected legislatures are not necessarily the superior articulation of popular will. On the contrary, the democratization of modern constitution-making allows the constitution to acquire ultimate majoritarian status. Because of popular skepticism about the ability of ordinary politics to adequately reflect society’s views on important substantive policy matters, the People have repeatedly decided to bypass the legislative process and directly entrench these policy views in the constitutional text. As a result, it is the constitution that embodies popular will. Second, this Article dissects the so-called counter-majoritarian difficulty, in order to distinguish between illegitimate counter-majoritarian review and legitimate counter-majoritarian review. The former occurs when the constitutional court substitutes the legislature’s policy views with its own, thus generating an impermissible democratic deficit. The latter occurs when the constitutional court invalidates ordinary legislation that violates minority rights or exceeds the structural limits imposed by the constitution. In both instances, counter-majoritarian intervention is warranted, precisely, to make sure that democratic self-government through ordinary politics can be adequately carried out. Third, this Article suggest the existence of a third class of judicial review: legitimate majoritarian review. This is when a constitutional court invalidates ordinary statutes because the legislature attempted to substitute the will of the constitutional drafters with their own. In other words, in instances when the legislative body carries out an anti-majoritarian act by ignoring the policy choices made by the People and entrenched in the constitutional text. When a court strikes down legislation of this sort, it is actually re-establishing majoritarian self-rule by making sure that the constitution’s policy commands are respected. In that sense, the court is not exercising independent judgment. Instead, it becomes the enforcement instrument of the majoritarian constitution to avoid legislative usurpation. This makes the un-elected nature of courts an almost irrelevant factor. Finally, this Article explores how the majoritarian potential of judicial review on constitutional matters interacts with the ‘negative legislator’ role of constitutional courts. In particular, how the ‘negative legislator’ should not be characterized, necessarily, as a limited one.

Achieving a proper balance between enforcing the constitution and avoiding that the courts exercise a policy-making function that that is better left to legislatures is not without its difficulties. In the United States, this issue has gained substantially higher traction giving rise to intense activism talk. The relevant American literature has exerted a deep fascination abroad, also in the light of the current globalization of constitutional discourse. Yet, the article intends to advance two claims: first, it warns against an uncritical import of US-style notions of judicial activism to continental Europe; second, it argues that contemporary research on comparative judicial activism currently has low explanatory utility. The first section takes a glimpse of the relevant US literature ‒ both legal and empirical ‒ to shed light on the multidimensional essence of the concept. Section 2 proceeds to articulate three sets of tentative reasons why activism talk should be ʻhandled with careʼ. These reasons pivot on considerations around structure, culture, and type of decisions in continental Europe. After parsing out each aspect, an argument is made that US-style judicial activism is too dependent on the US form of government; too divisive and as such unsuitable to the different European legal professional culture; and misleading, as the way European constitutional courts display activism in their decisions is distinctive. Ultimately, the article argues for the avoidance of US-style notions of judicial activism in European constitutional discourse.

A centralized constitutional review system, generally known as the Austrian Constitutional Court model established in 1920 by Hans Kelsen, has spread globally after World War II and is now the most active constitutional tribunal in Europe. Interestingly, although the Constitutional Court of Korea was classified as this Kelsenian model, besides a typical kind of constitutional review procedure, the Court runs an additional procedure for the constitutional review of legislation. The latter has some comparatively special and unusual requirements and procedure, but the statistics indicate it has been actively used. It takes the form of a constitutional complaint, but in practice, it is treated as the second type of constitutional review of legislation in Korean constitutional adjudication. Through this special procedure, individuals appear to participate in a tripartite conversation on constitutional interpretation along with the judicial branch and the Constitutional Court. Moreover, to some extent, this sui generis complaint is perceived to make up for the prohibition of constitutional complaint on judgments of ordinary courts (‘ Urteilsbeschwerde ’) in Korea. In Austria, the individual complaint on constitutional review of statutes was introduced by a constitutional amendment in 2013, whereby the individual parties of the pending cases are entitled to file a constitutional review with the Constitutional Court as of 1 January 2015. In terms of enabling the individual party to request to the Constitutional Court for constitutional review of legislation, the Austrian new complaint is similar to the Korean one, but their requirements and procedures are different. From the perspective of enhanced individual access to the Constitutional Court, however, both complaints may be viewed as an evolution of the Kelsenian model to meet the demands of the times. In this regard, the Korean practice for over three decades may provide useful insights into the implementation of a new practice and further improvement in Austria. This article will examine the Korean ‘Constitutional Review Complaint’ and compare it with the Austrian ‘Gesetzesbeschwerde ( Parteiantrag auf Normenkontrolle )’ to explore mutual references that will help improve both institutions. Then, I will assess what this kind of evolutionary invention of the constitutional review implies to the centennial of the Austrian model.

Since 2018, Mexico’s Supreme Court is facing a critical juncture. The new distribution of political power and the distinctive platform of the governing coalition endowed with massive popular support has forced the Court to redefine its role as a constitutional tribunal within unprecedented dynamics of constitutional politics. Such juncture can be summarized as being at crossroads, between desirable affirmation, strategic accommodation and concerning subordination.

The model of the Austrian Constitutional Court, with its Kelsenian origins, has been influential in the Cypriot constitutional context in a variety of intertwined and changing ways. The initial constitutional design followed the centralized and concentrated constitutional review by the Supreme Constitutional Court. The collapse of the bi-communal structure of the Cypriot system resulted in the application of the law of necessity and the establishment of a new Supreme Court with a simultaneous decentralization of constitutional review. At the time of writing a new reform initiative is underway, and the discussion about the Austrian model and Kelsen is revived. The continuous and varied influence from the Austrian prototype and interestingly the Kelsenian logic is assessed while recognizing the delicate idiosyncrasies of the Cypriot setting. The argument is that at neither stage the Austrian model was purely applied in Cyprus and the systemic adjustments were the result of improvisation rather than model adherence. This paper highlights the inconsistencies in the understanding of the Austrian model and explains the ‘modelling vertigo’.

Hans Kelsen was a pro-democracy Austrian jurist, who, owing to his Jewish ancestry, was forced to flee to the United States of America after Adolf Hitler’s rise to power. His well-known theory of centralised constitutional review has not only influenced the design of many constitutional courts in Western Europe. It has also expanded to other parts of the world, including Thailand and Indonesia. Having determined to break with their authoritarian pasts, these two Southeast Asian countries decided to establish a Constitutional Court (in 1997 in Thailand and in 2003 in Indonesia), to consolidate their democratic transition as well as to safeguard democracy from attack. This decision inevitably brought the liberal-democratic assumptions underlying Kelsen’s model into competition with entrenched national ideologies traditionally exploited by political power holders and the military to preserve their hegemony – Thai-ness in Thailand and Pancasila in Indonesia. In contrast to Kelsen’s original theory, both these ideologies advocate strong leadership, national harmony and social hierarchy. This paper explores the extent to which the ideological hegemony of Thai-ness and Pancasila affects the performance and jurisprudence of the Thai and Indonesian Constitutional Courts respectively. An alternative understanding of the implementation of the Kelsenian-style Constitutional Court in the absence of its facilitative conditions will ultimately be proposed.

In composed and decentralised states, sub-national entities and (ethnic, linguistic, racial) minorities ought to play a determinant role in the process of appointment of constitutional courts justices to obtain a balanced representation in the guardian of the constitution. The necessary appearance of constitutional justice independence can be at stake without a proportionated participation of minorities and sub-national entities in the court. It is not enough to introduce a symbolic presence. The first section of this essay analyses the transcendence and political-legal significance that the system of appointment of constitutional court judges has and its relation to the separation of powers (horizontal and vertical). The second section is a return to the roots, ie the system of appointment the Austrian Constitution of 1920, even that first constitutional court was created in 1919, and Kelsen’s theory on federalism. The third section carries out an analysis from a comparative constitutional law perspective by using as an analytical basis the reports on the composition of the Constitutional Courts of the European Commission for Democracy through Law. The paper ends with a reflection on Schmitt considerations on the Guardians of Constitutions.