Relations of the Constitutional Court with other Public Authorities: Latvian Experience
Aldis Laviņš
President of the Constitutional Court of the Republic of Latvia
International Conference “Relations of the Constitutional Court with other public authorities”
Chisinau, Moldova 24-25 September 2015
[1] Cooperation of the Court with other authorities is significant in organising the work of the court, ensuring high quality execution of the rulings and maintaining the authority of the court.
[2] Cooperation may be divided into: cooperation within the framework of proceedings, and cooperation outside the framework of proceedings.
[2.1] Cooperation within the framework of proceedings is significant in organising the legal proceedings, as well as in ensuring a high-quality outcome of such proceedings, i. e., in preparing a reasoned and well-considered court ruling. Still, I will not address the mentioned type of cooperation this time, for it is more a matter of legal proceedings. The theme of the present Conference requires that a particular focus should be made on the cooperation that the Constitutional Court has “outside the framework of proceedings”.
[2.2] Cooperation outside the legal proceedings can be either formal (official) or informal (unofficial).
Formal (official) cooperation is the cooperation following from the obligations that are directly defined in regulations, or from the requirements that indirectly result from regulations; such cooperation can also be based upon traditions. In this regard, it should be noted that sometimes it is difficult to distinguish between the “formal” and “informal” cooperation because (1) the informal cooperation also takes place in the course of formal cooperation (in performing the functions, tasks, and obligations established by law), and (2) it is not infrequent that successful formal cooperation requires previous or parallel informal cooperation. Thus, in my paper, I am not going to draw a line between the formal and the informal cooperation, for it is of no critical importance for achieving a positive result whether the cooperation is defined as “formal” or “informal”.
Outside the framework of the legal proceedings, the Constitutional Court cooperates with the Parliament (the legislator) and the government (the executive branch of power) both in constituting the composition of the court and in improving the Constitutional Court Law, and annually – in drafting the budget of the Constitutional Court.
In this presentation I will consider the cooperation that the Constitutional Court has influenced by means of its rulings, bringing order into the relations between institutions within a particular procedure, and resolving, to a certain extent, some conflicts, both actual and potential.
The Constitutional Court has examined a number of cases regarding the reduction of judges’ salaries. In the first “Judges’ remuneration case” (2009-11-01) in the beginning of 2010, the Constitutional Court developed what is referred to as the “cooperation doctrine”. Later on (at the end of 2010), this doctrine was applied in the “case regarding the budget of independent institutions”, in which the applicants were contesting the process of creating and approving the budget of independent institutions.
Cooperation doctrine
[3] Despite the fact that in the cases regarding the salaries of judges the dispute was mainly about the size of remuneration (reduction of it), the respective rulings also dealt with the legislative procedure and the reciprocal relations between the judicial power, executive power, and the legislator. The constitutional obligations of institutions and officials are defined in the Constitution directly, as well as follow from the principles enshrined in the Constitution.
In cases regarding the remuneration of judges, the Constitutional Court for the first time directly pointed to the obligations that follow from the principle of separation of powers, as well as defined the legislator’s limited discretion in matters directly concerning the judicial power and its activity. The Court provided a relatively detailed description of the way the cooperation between constitutional bodies should be carried out when resolving issues related to the judicial power.
In its Judgement, the Constitutional Court, first of all, indicats that there is a requirement, following from the principle of separation of powers, that all the branches of power must cooperate in pursuit of their shared aim – the strengthening of democracy in the interests of the nation. Secondly, the Court pointed to the mandatory actions included in such cooperation – namely, the legislator’s obligation to hear the opinion of the judiciary on the ways to resolve issues affecting the functioning of courts, as well as the requirement that the opinion of the judiciary must be treated with respect and due understanding, in accordance with the principle of separation of powers.
In the Judgement, Court interpreted the meaning of “treated with respect and due understanding, in accordance with the principle of separation of powers”. First of all, Court underlined that that the legislator has a right to disagree with the opinion of the judiciary. But at the same time, if legislator, exercising its discretion, does not take the opinion of the judiciary into consideration or takes it into consideration only partially, the legislator is obliged to provide a reasoning (argumentation) for its actions in such a scope that in case if the court had to assess compliance of those actions with the Constitution, this reasoning would provide all information necessary for examination.
Thus, the Constitutional Court, on grounds of the principle of separation of powers and the principle of judicial independence, defined the scope of the legislator’s discretion in the legislator’s relations with the judiciary.
[4] The mentioned “cooperation doctrine” is currently active both in the process of drafting laws (those applying to the judiciary and to the functioning of courts) and in the process of drafting and approving the budget.
Cooperation in the process of legislative drafting
[5] When amendments to laws linked to the courts of general jurisdiction are being drafted, the opinion of the judiciary is normally expressed by the Judicial Council, it means, the communication is carried out between the legislator and the Judicial Council as an authority which participates in the development of the policy and strategy of the judicial system, as well as the improvement of the organisation of the work of the judicial system. If work is underway to amend the Constitutional Court Law, the communication is normally carried out between the legislator and the Constitutional Court. Obviously, the mentioned communication takes place at the level of employees, so that later on, should one of the norms of the law be contested, there would be no doubts regarding the impartiality of the court.
Cooperation at the time of drafting, requesting and approving of the court budget
[6] The Constitutional Court has indicated that the budget is a state policy implementation instrument, therefore, decisions regarding the state budget can be made solely and exclusively by the legislator; however, it must be taken into account that the volume of resources necessary for ensuring the functioning of the court can be most objectively estimated by the judiciary institutions themselves. Therefore, there is a “cooperation doctrine” in place for the processes of drafting and approving of the budget.
Unlike in the process of elaborating and approving of draft laws, the cooperation between the judiciary (including the Constitutional Court), government and the Parliament in the course of drafting and approving the budget, pursuant to the “cooperation doctrine” developed by the Constitutional Court, since 2011 is directly envisaged by law.
However, it should be admitted that sometimes the mentioned doctrine works rather effectively, and yet sometimes, sadly, the obligation to cooperate and to hear the opinion is fulfilled only formally. The experience shows that successful cooperation (both in drafting of the budget or concerning to amendments of law) requires not only formal regulation by law, but also good traditions with regard to respectful (not formal) cooperation and that the opinion of the Court is heard and respected in this process.
Unformal cooperation
[7] Slightly we have come to the informal cooperation which is based on some traditions. I would like to mention the Constitutional Court’s tradition to meet the State president, the Speaker of the Parliament and representatives from the government once per year. This is the good way to inform other constitutional organs about problems the Constitucional Court is facing and has established so far. This is also a way how the court can express some critisim. The Constitutional Court bears in mind the principle of the constitutional loyalty which says that any constitutional organ shauold avoid actions which could undermine in some way the authority of other constitutional organs. Therefore it is not necessary to announce publicly the deficiencies we have recognized in the organization and in the work of other institutions.
[8] No matter which institutions are cooperating, cooperation is significant in achieving a positive outcome. We want to be listened to and, above all, to be heard. In a democratic state governed by the rule of law, to listen to each other and to hear each other is not just a wish but a vital need. It is a basis for high quality mutual relations and successful cooperation, which is a perfect instrument for achieving various national targets.