Band 17, Heft 3 - Special Issue: The Most Endangered Branch, Part I; Issue Editors: Christoph Bezemek and Yaniv Roznai

The void ab initio theory is traditionally associated with the retroactive effect of the unconstitutionality of a statute, in diffused systems of judicial review; as opposed to the prospective effect of unconstitutionality, in Austria, the archetype of centralized judicial review. The paper argues that the void ab initio theory goes far beyond the time-factor of judicial review, having two complementary aspects: 1) The void ab initio theory is tied to a robust theory of negative liberty; and substantive criminal law is its privileged field of application. The void ab initio theory goes back to Marbury v Madison (1803). 2) The void ab initio theory was strongly criticized by Kelsen, whose criticism is accurate, when the theory is unduly extended to the unconstitutionality of laws curtailing positive rights of the welfare state, eg, salaries and pensions, as happened recently in Greece. The act which abolishes the unconstitutional statute retroactively, has ‘the character of a legislative act.’ Indeed, the void ab initio theory in the field of positive social rights encroaches on legislative competence. The paper cocludes that the  void ab initio  theory is a strong expression of the ethos of legality; The void ab initio is most adequate for (cases involving) legal sanctions, on legal grounds, over adjudicative facts .

The paper identifies the different roles played by the Brazilian Supreme Federal Court under the 1988 Constitution, adopted after 21 years under authoritarian rule. The aim is to shift the focus of the discussion regarding the counter-majoritarian difficulty, which insists on the illegitimacy of judicial review, to the difficulty of being counter-majoritarian, examining the institutional obstacles and limitations attendant upon judicial independence.

The design of constitutional courts usually shows a specific concern for independence from political actors and for pluralism on the bench. We argue that many institutional features of today’s constitutional courts can be traced back to the Austrian Constitutional Court (the first of its kind, which celebrated 100 years in 2020) and even further still to its predecessor, the Austrian Imperial Court of Justice of 1867. Strikingly, judicial independence is to be guaranteed against the existing judiciary as well, which is why constitutional courts often stand apart from the traditional judicial bureaucracy. Pluralism on the bench is to be ensured by specific criteria of eligibility, opening the constitutional court judgeship to a wider set of candidates (eg, attorneys, professors, civil servants), but also via institutional arrangements that make it easy for outsiders to join the court in the first place (eg, by allowing to continue one’s job or by not requiring residence at the court’s seat). Recounting the story of the Austrian model of constitutional adjudication in an unprecedented attempt to combine Austrian legal history with the structure and process of today’s constitutional courts around the world, this paper also highlights how relatively minor features of court organization contribute to the overarching goal of ensuring the independence of the court and pluralism within the court.

It is recognized that constitutionalism in divided societies is often strained and may require appropriate tailoring, but how far should that go? Constitutional courts – traditionally conceived as independent and impartial guardians of the constitutional order and the rule of law – seem to defeat the point of consensual decision-making settlement promised by consociational power-sharing solutions frequently recommended for deeply divided societies. One way of cutting this Gordian knot is by offering a hybrid solution, a sort of consociationalised constitutional court. The legitimacy of such an institution, in the context of a consociational political regime, is to be secured by it itself becoming a ‘power-sharing court’, strongly reflecting the salient cleavages dividing the society, and incorporating power-sharing elements in its structure and decision-making rules. In deeply divided societies where such cleavages are ethnic ones, and they often are, the constitutional court would be an ethnic court. This chapter critically examines such a model, by focusing on three such courts in Bosnia and Herzegovina, in particular the Bosnian Constitutional Court, often seen as an example of a ‘strong power-sharing court’. In particular, it considers the extent to which the standard model of the constitutional court can be bent out of shape, while retaining its original functions.

This article explores the way judicial review of administrative action in Aotearoa New Zealand engenders a form of dialogical accountability; that is, a relational form of accountability as conceptualised by Bovens. In particular, the article explains the current practice and experience in a way attentive to its expressive character, highlighting the features of judicial review – both procedural infrastructure and substantive doctrinal norms – that foster and support this dynamic relationship of dialogue between actor and forum. The article concludes with some reflections on the virtue of viewing judicial review in dialogical terms and implications for its place within the myriad of other accountability conversations operating within modern government in New Zealand.

The constitutional design and the complete inability of the two ethnic communities who live in Cyprus (Greeks and Turks) to share the power according to the constitutional rules concluded soon after the independence to a constitutional crisis and consequently to the collapse of the system of governance that the Constitution provided, since the Turk-Cypriots withdraw from all their posts in key state institutions. The Supreme Court, in order to confront the issue that the part of the Constitution which set the system of governance became inoperative, implemented the ‘Doctrine of Necessity’, according to which the constitutional provisions that prescribe the bi-communal composition of all key institutions are suspended until the crisis comes to an end. The implementation of the Doctrine of Necessity did not leave intact the amendment formula of the Cypriot Constitution, which demands two separate majorities by 2/3rds of each community MPs for the conclusion of the process. However, such implementation of a judge-made standard to the amendment process raises crucial issues regarding the possibility of making clear-cut distinctions between constituent and constituted power, formal and informal constitutional change and about the legitimation of judges to revise through interpretation the amendment rules that the Constitution prescribes.

The paper deals with the relationship between the Constitutional Court of Georgia and politics. The paper discusses the various stages of the development of the Constitutional Court of Georgia, changes in the composition and legislation. The paper analyzes politically relevant cases, focuses on the various mechanisms of influencing the judiciary using the rule of court formation and legislative changes, criticism of international and national experts and the decisions made by the Court itself to protect its own independence.