Constitutional Courts as Lock-Gates in the Globalised World
Ineta Ziemele
Professor, Ph.D. (Cantab.), President of the Constitutional Court of the Republic of Latvia
Paper presented at the international conference “The Role of the Constitutional Courts in the Globalised World of the 21st Century” organised by the Constitutional Court of the Republic of Latvia in the framework of Latvia’s centenary in Riga on 24-25 May.
Introduction.
The role of the constitutional courts, in maintaining the balance between the constitutional and the international courts as the two basic components of the global legal order, is constantly increasing. My approach is based on the presumption that with the consolidation of the international community the universal or the global law, which is horizontal, pronouncedly plural, and decentralised by its nature, becomes stronger. I’ll point out that the concept of sovereignty that was slightly “improved” in the middle of the 20th century[1] is insufficient or deficient to respond to the challenges of the 21st century within the framework of legal concepts and methods that are known and are available to us. In conclusion, I’ll offer certain elements of a theoretical answer.
The Paradox of Sovereignty.
The contemporary world is still characterised by the state as the main form for organising the society. The sovereignty of the state in relationships with other states and the sovereign as the source of power, on the constitutional level, are still the dominant paradigms in our worldview. These concepts have originated historically and, admittedly, are the outcome of a certain coincidence, because, for example, the separation of the national and the international law in the historical form known to us might not have evolved.[2]
Whereas the development of science and technologies has created a situation, where the distance between the continents has become relative and the borders between the states – transparent. This causes new challenges and poses new questions in connection with the models for organising the society and the philosophical and law concepts explaining them, because the aims remain unchanged, i.e. to ensure, in a more effective way, peace security, welfare, and life worthy of human dignity.
The consistent development of international law and international organisations, in particular, the project of the European Union, and the growing significance thereof confirms what has been proven repeatedly by history, i.e., that unilateral and fragmented solutions have never been adequate for coping with internal and external challenges. At the same time, neither in practice nor in the legal science we have abandoned such understanding of the sovereignty that provides: “The constitutional order of a sovereign state is the highest legal authority above which there can be no higher authority that is its source of validity, regulating and determining its conduct. Sovereignty as supremacy is a negative legal concept. Accordingly, international law as an autonomous legal system that authorizes and obligates states must be denied on the sovereignty thesis.”[3] In other words, sovereignty is (a) absolute power over the particular society, (b) absolute independence externally, and (c) full legal capacity in international law. With this understanding of sovereignty, international law is impossible and supra-national law – even less so. I call it the paradox or the myth of sovereignty because, on the other hand, international obligations are imposed on states and the source of these universally binding obligations is not at all the sovereign of each state. Essentially, we have created a series of legal myths, the co-existence of which is possible, but only up to a certain moment.
For example, the Constitutional Court of the Republic of Latvia encountered the paradox of sovereignty that I referred to in the Lisbon Agreement Case of 2008. In this case the Court examined, whether the new competences of the EU, to be introduced with the help of the Lisbon Agreement, restricted the sovereignty of the people, which is encompassed and safeguarded by Article 2 of the Satversme. The Court found that it had not identified such provisions of the Lisbon Agreement that would infringe upon the principle of the people’s sovereignty included and enshrined in Article 2 of the Satversme. The Court arrived at this conclusion because it had defined the relationship between the state and international commitments as follows: “When analysing legal consequences that emerge when a state undertakes international liabilities, in international law sovereignty was evaluated as exercise of sovereign rights rather than restriction thereof. The right to undertake international liabilities is an element of State sovereignty. For example, the Permanent Court of International Justice has indicated: “The Court declines to see in the conclusion of any treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty.””[4] Already in this understanding of sovereignty we see deviations from the concept of sovereignty as unlimited supreme power. However, this does not change the fact that the constitutional courts are in the centre of the sovereignty paradox. The constitutional courts resolve this situation in different ways but, in general, it is rather a still-having-the-eaten-cake (to have one’s cake and to eat it) solution.
The Relationship between the Constitutional and the European Courts.
A dualism like this can exist, however, there is the risk of losing the balance and it increases in the situation of a growing tension between competing legal regimes. I would say that the disturbing of this balance can be observed now, which has partly facilitated, for example, the resurrection of interest in the concepts of constitutional identity in Europe.[5] This disturbing of the balance has been caused, inter alia, also by the activities of the European Courts (the Court of Justice of the European Union and the European Court of Human Rights). In one way or another, the intensification of the discourse on constitutional identity points to the sense of internal or external threat to sovereign in the classical understanding of this term. The Constitutional Court defined already in 2008, in the Lisbon Agreement Case, the red lined of the Latvian constitutional order. Namely, the Court stated: “Consequently, delegation of competencies [to the European Union – omitted] cannot violate the basis of an independent, sovereign and democratic republic based on human rights and the rule of law. Likewise, it cannot affect the right of citizens to decide upon the issues that are essential in a democratic state.” The Committee on Constitutional Law, in its opinion of 2012 on the unalterable core of the Satversme, defined that it is meaning was in the prohibition for the legislator to change the constitutional identity of Latvia. Thus, the unalterable core of the Satversme is the constitutional identity of Latvia.[6]
However, Advocate General in Gauweiler Case commented on the concept or idea of constitutional identity as such with great concern because:
“The first is (..) that it seems to me an all but impossible task to preserve this Union, as we know it today, if it is to be made subject to an absolute reservation, ill-defined and virtually at the discretion of each of the Member States, which takes the form of a category described as “constitutional identity”. That is particularly the case if that “constitutional identity” is stated to be different from the “national identity” referred to in Article 4(2) TEU”. Such a “reservation of identity”,” independently formed and interpreted by the competent — often judicial — bodies of the Member States, would very probably leave the EU legal order in a subordinate position, at least in qualitative terms. Without going into details, and without seeking to pass judgment, I think that the characteristics of the case before us [i.e., Gauweiler Case] provide a good illustration of the scenario I have just outlined.”[7]
Para 2 of Article 4 of the Treaty on European Union comprises the provision that “the Union shall respect … the national identity [of the Member States], inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” Many battles have been fought both in the doctrine and the case law of the Court of Justice of the EU and the constitutional and supreme courts of the Member States in attempts to reach an agreement as to what “the national identity” means and what it means that the Union “respects” this identity.
The first issue, with respect to which no consensus has been reached, is whether “the national identity” of Member States is the same as “the constitutional identity”. Some authors believe that “the national identity” should not be regarded as anything beyond “the instantiation of basic moral principles that require a multinational political community to show respect for the identity of its constituent national groups”.[8] However, the majority of commentators hold that it is complicated or even impossible to differentiate between the concepts of “the constitutional” and “the national identity”. Neither has the Court of Justice of the European Union nor the Advocates General provided a precise definition of “the national identity” but rather have limited themselves to casuistic assessment that, for example, “the national identity … includes protection of a State’s official national language””[9], as well as that the status of the State as a republic [10] is an element of the national identity.
On the national level, the constitutional identity is defined in different ways, which is understandable, because the constitutional frameworks differ. For example, the Polish Constitutional Tribunal noted in its Lisbon judgement that elements of the Polish constitutional identity were affected by decisions on the fundamental principles of the Constitution and an individual’s rights, including the principle of social justice, the principle of statehood, the principle of subsidiarity, prohibition to delegate the authorisation to amend the Constitution, etc.[11] The German Federal Constitutional Court in its Lisbon judgement expressed the opinion that its constitutional identity was affected by decisions on substantial and procedural aspects of criminal law, on authorisation of the police and army to use force, by fundamental decisions on fiscal revenue and expenditure, decisions that affected living conditions in a socially responsible state, as well as decisions of special importance for culture, for example, decisions on family law, on the system of education, and religious life.[12] The Constitutional Council of France, in turn, has noted that, although it has not had to define the constitutional identity, it was inclined to think that the constitutional identity of France was something that it did not share with other countries and was special only for France.[13]
In the doctrine, Para 2 of Article 4 of the Treaty on European Union has been called “the legal nuclear weapon”,[14] therefore it is of particular importance to establish who controls the launching device of this weapon.
Insofar the Advocate General in his Opinion in Gauweiler Case turns to the constitutional identity, we can see that his concern is about the hierarchy of legal orders. I.e., if the constitutional identity is left exclusively within the competence of the constitutional courts this may undermine the priority of the EU legal order. An insight into the discourse on the constitutional identity and the principle of the supremacy of the EU law reveals that the supremacy of the legal order is in the centre of international national tension but the supremacy of a legal system is the key to the classical sovereignty concept. This dilemma needs to be resolved so that in terms of a legal and political thought we could move forward.
The Advocate General in Gauweiler Case formulated the sovereignty dilemma in the context of the procedural dialogue between the Court of Justice and the German Constitutional Court as follows: “Thus .. : there is a national constitutional court which, on the one hand, ultimately accepts its position as a court of last instance for the purposes of Article 267 TFEU, and does so as the expression of a special “cooperative relationship” and a general principle of openness to the so-called “integration programme” but which, on the other hand, wishes, as it makes clear, to bring a matter before the Court of Justice without relinquishing its own ultimate responsibility to state what the law is with regard to the constitutional conditions and limits of European integration so far as its own State is concerned. (..)That ambivalence runs all through the request for a preliminary ruling, so that it is extremely difficult to disregard it entirely when analysing the case.”[15] In the context of the Advocate’s General position, the question arises, whether a constitutional court in an EU member state should not have the ultimate responsibility for the constitutional identity of the State concerned in connection with the project of European integration?
Perhaps the question needs to be asked, whether it is meaningful to phrase the question like this because in the world, where the order is still defined by States, the answer will obviously be confrontational to the supremacy claim of a supranational legal system. The Advocate General offers the following solution to the confrontation referred to above. Further in his Opinion, he refers to the principle of sincere cooperation in Article 4(3) of the Treaty on European Union, which in the Latvian legal order is very much reciprocated through the principle of openness to international law and the direct effect of the EU law. However, these principles evidently do not per se address the supremacy claim of all legal systems in relationships with other legal systems. The Advocate General introduces cautiously a notion of common constitutional culture of the EU, which is constructed on the basis of constitutional traditions common to the Member States. “Specifically, the Court of Justice has given preference to those constitutional traditions when establishing a particular culture of rights, namely that of the Union. The Union has thus acquired the character, not just of a community governed by the rule of law, but also of a ‘community imbued with a constitutional culture’. That common constitutional culture can be seen as part of the common identity of the Union, with the important consequence, to my mind, that the constitutional identity of each Member State, which of course is specific to the extent necessary, cannot be regarded, to state matters cautiously, as light years away from that common constitutional culture. Rather, a clearly understood, open, attitude to EU law should in the medium and long term give rise, as a principle, to basic convergence between the constitutional identity of the Union and that of each of the Member States.”[16] It must be noted that the space granted to the constitutional identity of the Member States, in the Advocate’s General Opinion, is “to the extent necessary”, assuming that sooner or later the constitutional identities of the EU and the Member States will merge.
However, yet again the question remains who and how will determine the extent necessary, as well as the question of how the convergence of constitutional identities will happen remains open and is obviously controversial. As far as the EU legal order is concerned, in the view of the Court of Justice it is a kind of constitutional order, which is based on the principle of primacy of the EU law, among other principles. Just to recall the Court’s language in the Kadi Case: “ In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions [..]”.[17] It is a legal order with a claim to a sort of constitutional character, which has, however, a different source of legitimacy and not the sovereign people as compared to the constitutional orders in democratic states.
Each court protects the legal order or legal regime that it is mandated to protect and develop. I already mentioned some fundamental features that characterise the system of the EU law and, respectively, define the EU’s view on its competence and the aim to be attained. The European Court of Human Rights, likewise, looks at matters from its own vantage point. When dealing with issues pertaining to the interaction and co-existence of legal systems, it is worth turning to those rulings, in which ECtHR has confronted the constitutional identity of a state. However, Article 53 of the European Human Rights Convention needs to be mentioned, which, in principle, deals with the question of relationship between the Convention and the national constitutions, i.e., the Convention provides that the national legal systems may establish a more extensive scope of the guarantees for human rights. The constitutional order of the state was in the centre of the case Sejdič and Finci v Bosnia and Herzegovina case, which was about the constitutional structure, i.e., the House of Peoples and Presidency of Bosnia and Herzegovina put in place by the Deyton Peace Agreement. The main principle was to provide three constituent peoples (Bosniacs, Croats and Serbs) with equal opportunities to elect their representatives to the House of Peoples and Presidency.[18] The applicants were of Roma and Jewish origin and could only stand for elections if they belonged to any of the three people. The ECtHR considered that to be discrimination based on Protocol 12 and Article 14 in conjunction with Article 3 of Protocol 1. The judgment received an undivided acclamation by human rights groups. It is not yet executed.
I think the true nature of the difficult task in front of the Court was aptly described by the dissenting judge Bonello. He noted as follows: “These two cases may appear to be the simplest the Court had had to deal with to date, but they may well be, concurrently, among the more insidious. .. Only the action of that filigree construction extinguished the inferno that had been Bosnia and Herzegovina. It may not be perfect architecture, but it was the only one that induced the contenders to substitute dialogue for dynamite. Now this Court has taken it upon itself to disrupt all that. Strasbourg has told both the former belligerents and the peace-devising do-gooders that they got it all wrong. .. The Dayton formula was inept, the Strasbourg non-formula henceforth takes it place.”[19] It is true that the Strasbourg Court guarantees the rights of an individual set forth in the Convention. The issue of constitutional structure of the State or its constitutional identity normally is not contradictory to individual human rights, at least in the European cultural space. However, it may happen and the Strasbourg Court is not too unfamiliar with such situations. Another case with a different outcome is, for example, the S.A.S. v France case with regards to prohibition of wearing Nihab or Burka in public. The Court here ruled that the prohibition did not violate the ECHR and recognized the fundamental constitutional character of the French principle vivre ensamble.[20] It is important to note that both Conseil d’Etat and Conseil Constitutionel had meticulously debated the prohibition, which the Court took into consideration and which points to respect for the national identity and the debate that had scrutinized it.
To sum it all up, the legal space, in particular, the European one, is rather saturated with many actors pulling sovereignty, supremacy, influence in all directions. We continue to live in the world of states based on an out-dated concept of State sovereignty for this legal landscape. We have supranational collective and control institutions, which as to the consequences of their actions, confront the classical principles that characterise the sovereignty of a state, i.e., legitimisation, hierarchy, etc. What is the way forward? This is today the question debated in European political fora and we as lawyers should clearly anticipate in the world of legal thought some of that debate and the outcome.
Based on experience, I would say that after all these decades of development of international and European law it is striking how relatively little regard for the international there is at the national level, on the one hand, and how little sensitivity towards the national is there at the European and international level, on the other hand. It is this that is crux of the matter.
I would like to repeat Neil MacCormick’s very pointed invitation which is valid today: “One thing which it is necessary for jurisprudence or the philosophy of law to do in the present state of affairs is to guard against taking a narrow one-state or [Union]-only perspective, a monocular view of these things. The difficulty about sovereignty theory is that it seems to point inevitably in that direction”.[21] For the constitutional courts it is important to begin to accept not the hierarchical meaning of sovereignty but the heterarchiacal and the horizontal one .[22] While the European Courts cannot run ahead of social and political discourse. the future of the legal and political thought should move away from the supremacy of legal order discourse and situate itself within the framework of the global or universal legal order, which is formed of national and international legal orders on equal basis. It is in fact constitutional courts, which stand at the gates between international and national. It is, in fact, the constitutional courts, which stand at the gates of the international and the national. A workable conception of interaction and mutual application of constitutions and international and European law, i.e., of the sovereignty, is within the hands of constitutional courts with the support of European courts. Given that the current world of still State-centred structures was built over centuries, it is naïve to think that we can move beyond it within decades.
Concluding Observations.
I have been inspired by the theory of constitutional pluralism in my talk and my work. In concluding, let me recall the view that belongs to the constitutional pluralist discourse that “what is required in acknowledging and handling competing claims to authority coming from national and supranational constitutional sites is an ethic of political responsibility premised on mutual recognition and respect.”[23] It is with this understanding that all forms of dialogue among courts that have emerged over last 15 years are of crucial importance and more effort should go into making the dialogue genuine and all-embracing. As for the European Courts, they should understand that there is a limit to the principles of openness to international law, direct application, direct effect and priority and primacy and the name of that limit is the sovereignty paradox. The way forward is to re-conceptualize the discourse and move away from competing authority claims towards accepting that all legal orders form a universal legal order. That also requires to accept the proper roles that each court has, be it constitutional or European.
[1] See Kelsen H. Principles of International Law (2nd edn., ed Tucker, Holt, Rhinehart & Winston, 1966) 553 -558.
[2] See Allot P. The Health of Nations. Society adn Law beyond the State. Cambridge: Cambridge University Press, 2002, P. 58.
[3] Cohen J. L. Sovereignty in the Context of Globalization: A Constitutional Pluralist Perspective. In: Besson S., Tasioulas J. The Philosophy of International Law. Oxford: Oxford University Press, 2010, P.266.
[4] The Constitutional Court of the Republic of Latvia . 07.04. 2009. Nr. 2008-35-01.
[5] It has already been noted in the Latvian legal science that the concept of constitutional identity was relevant in Europe at the time when modern states and their constitutional order were consolidating at the end of the 19th century. See Par Latvijas valsts konstitucionālajiem pamatiem un neaizskaramo Satversmes kodolu. Konstitucionālo tiesību komisijas viedoklis un materiāli. Rīga: Latvijas Vēstnesis, 2012.
[6] Ibid.
[7] Opinion of Advocate General Pedro Cruz Villallón in the case C-62/14 Peter Gauweiler, delivered on 14 January 2015, paras. 59–60. In this case, the Constitutional Court of Germany turned to the Court of Justice of the European Union with questions regarding decisions by the Council of the European Central Bank (ECB) regarding several technical features with respect to direct cash transactions of the Eurosystem in the secondary sovereign bond markets.
[8] Cloots E. National Identity, Constitutional Identity, and Sovereignty in the EU. Netherlands Journal of Legal Philosophy, vol. 45 (2016), no. 2, p. 93.
[9] Judgment of 12 May 2011 of the European Court of Justice in the case C-391/09 Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn, para. 86.
[10] Ibid., para. 92.
[11] Judgment of 24 November 2010 of the Constitutional Court of the Republic of Poland in the case no. K 32/09, para. 2.1.
[12] Judgment of 30 June 2009 of the Federal Constitutional Court of the Federal Republic of Germany in the case no. 2 BvE 2/08, para. 252.
[13] “Les seules normes constitutionnelles opposables à la transposition d’une directive communautaire sont les dispositions expresses de la Constitution française et propres à cette dernière”. Commentaire de la décision n° 2004-498 DC du 29 juillet 2004. Les Cahiers du Conseil constitutionnel. Cahier n° 17.
[14] Faraguna P. A Living Constitutional Identity: The Contribution of Non-Judicial Actors. Jean Monnet Working Paper, No. 10/15, p. 28 (available: https://jeanmonnetprogram.org/paper/a-living-constitutional-identity-the-contribution-of-non-judicial-actors/).
[15] Opinion of Advocate General Pedro Cruz Villallón in the case C-62/14 Peter Gauweiler, delivered on 14 January 2015, para. 49.
[16] Ibid., para 61.
[17] Judgment of 3 September 2008 of the Grand Chamber of the European Court of Justice in cases C-402/05 P and C-415/05 P Kadi, para. 281.
[18] Judgment of 22 December 2009 of the Grand Chamber of the European Court of Human Rights in the case “Sejdič and Finci v. Bosnia and Herzegovina”, applications no. 27996/06 and 34836/06.
[19] “Sejdič and Finci v. Bosnia and Herzegovina”, dissenting opinion of judge Bonello.
[20] Judgment of 1 July 2014 of the Grand Chamber of the ECHR in the case “S.A.S. v France”, application no. 43835/11
[21] MacCormick N. ‘Beyond the Sovereign State’. The Modern Law Review, vol. 56 (1993), no. 1, p. 5.
[22] Cohen J. L. Sovereignty in the Context of Globalization: A Constitutional Pluralist Perspective. In: Besson S., Tasioulas J. The Philosophy of International Law. Oxford: Oxford University, 2010, p. 275.
[23] Ibid.
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