Overview of Findings Expressed at the Conference Organised by the Constitutional Court of Latvia “Judicial Activism of Constitutional Court in a Democratic State”
The opening address of the conference was given by the President of the State Raimonds Vējonis. The President of the State congratulated the Constitutional Court on its 20th anniversary, noting that thanks to integrity in its work and well-considered decisions the Constitutional Court was enjoying high appreciation and authority in society. Moreover, trust in the Constitutional Court promotes and consolidates also belief in the State of Latvia and the constitutional order. Special words of gratitude were dedicated to the first President of the Constitutional Court Aivars Endziņš. In expressing gratitude for the establishment of the Constitutional Court and consolidation of a democratic state governed by the rule of law, the President of the State awarded Writ of Commendation to A. Endziņš.
Ms. Tanja Gerwien, the representative of the European Commission for Democracy through Law (Venice Commission), also gave an opening address at the Conference. T. Gerwien highlighted the importance of mutual cooperation and exchange of information between constitutional courts, as well as the role of the Venice Commission in promoting this cooperation. T. Gerwien noted that constitutional courts were unfoundedly accused of judicial activism in the negative meaning of this terms, because it was difficult to draw a borderline between interpretation of the constitution, which was the basic task of all constitutional courts, and judicial activism. The representative of the Venice Commission reiterated that it was the task of the Commission to assist in strengthening the rule of law and that it was prepared to provide its support to any constitutional court.
President of the Constitutional Court Aldis Laviņš in his opening speech of the Conference outlined the prospects of the Constitutional Court activities. He divided 20 years of the Court’s work into four periods, noting that currently the Court was in its fourth stage, but before that the first period had lasted from 1996 to 2001, the period when the Constitutional Court was established. It was followed by the period from 2001 to 2009, when the Constitutional Court started examining cases based upon constitutional complaints and elaborated standard for the protection of human rights and methodology for assessing a restriction upon fundamental rights. The third period was the time from 2009 to 2013, when the Constitutional Court examined the so-called cases of economic crisis. The address by the President of the Constitutional Court outlined the vision of the Court’s future and expressed gratitude to the current and former Justices and employees of the Constitutional Court.
The first day of the Conference was organised in three sessions, and in total nine presentations were given. The 1st session of the Conference was opened by former President of the Constitutional or the Republic of Bulgaria, member of the Venice Commission prof. Dr. Evgeni Tanchev, speaking on the topic “Judicial Activism Revisited or Constitutional Court between Negative and Positive Legislator”. E. Tanchev outlined the national and international dimension of the examined issue. In his presentation E. Tanchev did not uphold the theses put forward in legal literature that a state was governed by judges. The presentation also included an insight into the case law of the German Constitutional Court with regard to judicial review of the executive and the legislative power. E. Tanchev holds the view that a judge is imprisoned in a cage framed by law as incorrect, since, actually, a judge must be able to resolve situations that have occurred. And yet, constitutional courts are not to be viewed as the legislator’s “younger brother”, they have a concrete place in the system of separation of powers; therefore absolute judicial activism is inadmissible.
The second presentation of the Conference was given by the Justice of the Constitutional Court of Latvia prof., Dr. iur. Sanita Osipova, the chosen theme was “A State Governed by the Rule of Law or “a Judges’ State”?”. The Professor outlined three concepts of a state governed by the rule of law in Europe: 1) the so-called English concept of law; 2) the so-called French concept; 3) the so-called German concept. Even though each of the concepts manifests itself differently, they all share one aim, and each of these concepts requires highly qualified courts. In restoring the independence of the State of Latvia, the model of German law was chosen. The presentation provided an insight into the history and significance of the concept “Judges’ State”. The Judges’ State should not be regarded as one of the models; it is one of the risks, without which a democratic state would not be able to exist. S. Osipova also reviewed the manifestations of judicial activism in the case law of the Constitutional Court of Latvia, referring to cases No. 2006-41-01 and No. 2007-11-03 as examples.
The 1st session of the Conference was concluded by a presentation by Judge of the Constitutional Court of Belgium Pierre Nihoul – “The Activism of the Constitutional Court of Belgium”. P. Nihoul outlined the jurisdiction of the Constitutional Court of Belgium, pointing out that the Court had two types of legal proceedings: one – with regard to allocation of competence between the federal government and subjects of federation, the second – with regard to protection of persons’ fundamental rights. The basic principles of each respective sphere were indicated. P. Nihoul provided also information about the case law of the Constitutional Court of Belgium in preparing questions for preliminary rulings by the Court of Justice of the European Union.
The first speaker of the 2nd session of the Conference was Dean Spielmann, former President of the European Court of Human Rights, Judge at the General Court of the European Union. His presentation underscored the importance of judicial dialogue between national and supranational courts. The European Court of Human Rights (ECHR) and the national courts were said to defend the same values; moreover, ECHR was not intended as an institution that might violate the jurisdiction of national courts. Examples from ECHR case law were used to show the way it was established, whether a uniform understanding with regard to the content of a concept existed; however, the absence of uniform understanding should not be an obstacle for deciding on an issue. D. Spielmann pointed to cases, when the discretion of member states of the European Convention for the Protection of Human Rights and Fundamental Freedoms can be broader, and when – narrower. He also underscored that one of the criterion in deciding, whether a state has abided by its margin of appreciation, is also the quality of legislative process.
In the introductory part of the presentation “Judicial Activism of European Constitutional Courts: Does It Really Exist?” prof. Maria Lúcia Amaral, the Vice-President of the Portuguese Constitutional Court provided an insight into the history of the concept “judicial activism”, pointing out that for the first time it was used by Arthur Schlesinger, who in 1947 published in article entitled “The Supreme Court: 1947” in the magazine “Fortune”. Her presentation sought answers to three questions: 1) is judicial activism good or bad? 2) which criteria allow differentiating between good and bad activism? 3) if the judicial activism is bad, how to defend against it? M. L. Amaral noted that a constitutional court should not judge shallowly and narrowly, that the vision of the court should embrace broader interconnections and values. Therefore judicial activism may not be assessed only in the negative meaning of it.
Prof. Gediminas Mesonis, Justice of the Constitutional Court of the Republic of Lithuanian in his presentation “Judicial Activism in the Context of the Jurisprudence of the Constitutional Court of the Republic of Lithuania” underscored the scope of the concept “judicial activism”, noting that, essentially, it was not solely a legal, but an interdisciplinary concept. Examples from the case law of the Lithuanian Constitutional Court revealed manifestations of judicial activism in Lithuanian – including broadened interpretation of the Constitution, as well as deciding on issues that were not regulates by the Constitution. Judicial activism was said to be an important tool for protecting fundamental rights of persons and also the judicial power.
The third and the final session of the Conference was opened by Koenraad Lenaerts, President of the Court of Justice of the European Union, with presentation “Mutual Trust, Mutual Recognition and the Protection of Fundamental Rights in the Case Law of the Court of Justice of the European Union”. K. Lenaerts emphasized the significance of mutual trust. It is important for the European Union to have sufficient mandate to achieve uniform space of the rule of law and security. By referring to a number of examples, inter alia, Melloni case (C-399/11), K. Lenaerts characterised the position of the Court of Justice of the European Union. The core of the EU constitutional identity was emphasized in the presentation. K. Lenaerts urged not to rely only upon the possibilities of the Court of Justice of the European Union to reach common aims, but also to use national remedies.
Justice of the Federal Constitutional Court of Germany prof., Dr. Gabriele Britz reported on “Judicial Activism of Constitutional Courts as an Objective Necessity”. First of all she underscored that judicial self-restraint was considered as a norm in the case law of the Federal Constitutional Court of Germany. The constitutional court should leave an area to the legislator for adopting political decisions. However, by using examples from the case law of the Federal Constitutional Court of Germany, cases, when there were grounds for resorting to judicial activism, were indicated. G. Britz holds that there are a number of fields, where the court should not waive its authority, but time and again use its activism. These fields were said to be the following – protection of most important elements in fundamental rights., protection of minority rights, as well as comparatively new areas of law, for example, data protection.
The last presentation in the 3rd session of the Conference was given by the President of the Constitutional Court of the Republic of Austria prof. Gerhart Holzinger – “Judicial Activism of Constitutional Courts in a Democratic State – from the Austrian Perspective”. G. Holzinger noted that constitutional courts had special responsibility for creating a shared space of liberty and the rule of law. The criticism aimed at constitutional court for as it were distortion of democracy is usually based upon misconceptions. The aim of the principle of separation of powers is not isolating the powers, but achieving a better model of cooperation between the powers. Looking at this from this vantage point, constitutional legal proceedings are not incompatible with the principle of separation of powers, but are implementing it. G. Holzinger outlined the processes at the Austrian Constitutional Court, which in its initial practice had adopted the position of self-restraint, but departed from this position starting with 1980s to protect fundamental rights.