Speech by the President of the Constitutional Court Ineta Ziemele at the conference celebrating 25th Anniversary of the Constitutional Court of Belarus
Professor, PhD Ineta Ziemele
President of the Constitutional Court of the Republic of Latvia
Minsk 31 May 2019
Constitutional Case-Law as a Source of Law: the Role of Judges in the XXI century
Ladies and Gentlemen!
The principles of rule of law and separation of powers are the basic structural principles of the constitutional orders of the EU Member States. However, each society evolves every day. It is a living species and therefore we test the scope and the application of underlying constitutional principles along with the evolution of the society. We also continue to fine-tune the arrangements for a better separation of powers within our constitutional orders.
Moreover, I believe it is fair to say that not only international law experiences the judicialization of law-making process; this has also been playing out in constitutional law for some time which explains among others the continuing interest in the concept of judicial activism. In other words, more and more case law of the Courts not only states what the law is but also develops the law. That is what the judicialization of law-making process entails.
In my speech I will draw the attention to some aspects of rule of law that need to be explored in view of the growing role of the courts in modern societies. In Latvia, we have already engaged in this reflection since the return to the legal order belonging to the Western European legal culture and tradition brought about a fundamental change in the understanding of law, including especially the theory of sources of law. I will also share with you the debate that the Constitutional Court has initiated in Latvia regarding the changed role of a judge in the XXI century.
Overview of the Latvian constitutional order
Latvia is a parliamentary republic but it has 7 constitutional organs, i.e., the people, the Parliament, the President, the Government, the Constitutional Court, the judiciary with the Supreme Court at the top, and the State Audit. The three branches of state power, i.e., the legislative, the executive and the judicial are exercised by all seven constitutional organs within their competence. It is in fact a horizontal and plural constitutional order. It was established as such when the Constitution was adopted in 1922 after two years of work by the Constitutional assembly on the text of the Constitution. The Constitution has not changed fundamentally in terms of the constitutional order of the state. The only notable addition was the establishment of the Constitutional Court in 1996. This year we celebrated the 97th birthday of the Constitution which makes it one of the oldest constitutions in Europe.
The Rule of Law and the Legal Nature of the Judgments of the Constitutional Court
It is important to point out that the Latvian Constitutional Court already early on in 1999 determined – so that the principle of separation of powers would function, it is imperative that the judicial power has a full control over the legislative and the executive branches of power. This means that no legal provision or executive action where it affects individual rights can remain outside the judicial scrutiny. As far as the constitutional control is concerned, the Court stated that there is no area of legislative activity which is outside the constitutional control. The rule of law is guaranteed when the Constitutional Court in assessing the compliance of any legal norm with the Constitution ensures the supremacy of the Constitution. The role of the Constitutional Court is to ensure the existence of a coherent and comprehensive legal system as well as to guarantee that the branches of power through their own decisions do not create disbalance of power which may cause an abuse of power by one or another branch.
The role of the Latvian Constitutional Court from the very outset has been impacted by the need to develop democracy in Latvia after 50 years of totalitarian heritage. If we were to compare the constitutional jurisdictions in the EU Member States, one would see that there are differences in how the role of these jurisdictions has developed and has been perceived. Speaking at the conference in 2007, the first President of the Latvian Constitutional Court, Mr Endziņš, pointed out that the historical mission of the Latvian Constitutional Court is to guarantee that the political power shall not be misused. The Constitutional Court may to some extent be compared to a fireman who has to be always awake but whose importance shall not be assessed simply by the number of extinguished fires. In other words, it is not only the judgments of the Constitutional Court as such but it is the very presence and what the Court represents that has an impact in Latvia.
Over the 22 years since its establishment the Latvian Constitutional Court has taught through its judgments and its involvement in public discourse how to look at the political debate from the point of view of the Constitution and the principles contained therein. This, too, is an example of how the rule of law restrains the political process. The Court in its judgments has had to address the limits to the discretionary power of the legislator. The Court has clearly said that this power is not unlimited. The Court has said that every decision that deals with questions of importance for the state and the society is subject to constitutional requirements so that each decision would comply with the principles of democracy and rule of law. Therefore, the Parliament, when it is exercising its legislative competence and adopting the state budget, has discretionary power but it is limited by the Constitution and general principles of law.
In the society which has a fairly short experience in freedom, democracy and rule of law, the message that the legislative power is restrained by law is a very important message but also a difficult one to convey. In fact, historically in Europe the judicial power has been viewed with some suspicion which has not totally disappeared. One can recall Jeremy Bentham who said: “Give to the Judges a power of annulling [the law]; and you transfer a portion of the supreme power from assembly which the people have had some share, at least, in [choosing], to a set of men in the choice of whom they have not the least imaginable share”.
Of course, the principle of separation of powers which is at the basis of the rule of law State also predetermines that the law which binds everyone in the society can only be adopted by the legislator freely elected in periodic elections. Let us look at the nature of the judgments (case law) of the Constitutional Court. The Law on Constitutional Court provides that the judgments have the force of law and they are generally binding. The Court has admitted that it cannot replace the legislator, however the Court has not only the right but an obligation to remedy such situations that are legally contrary to the Constitution. It is the responsibility of the Constitutional Court to ensure that legal system is compliant with the Constitution. In fact it is another element of the rule of law, i.e., compliance of all legal norms with the Constitution. This broader function of the Constitutional Court along with the nature of the judgments is the basis for arguing that its judgments is a source of law.
Furthermore, the Court has pointed out that when the Parliament passes legislation, it has to take into account what the Court has identified within its judgments. So the question arises what is it in the judgments of the Court that everyone has to comply with or take into account and why? Latvian legal doctrine has identified that the judgments of the highest courts in Latvia are the source of law. Indeed, the Constitutional Court not only answers the specific question of constitutionality. It also depicts general principles of law beyond the specific facts or questions of the case. It is in this regard that judgments are a source of law and general principles of law that the Court has found are legally binding along with the solution of the case. I would not dwell on it but I would like to draw a distinction. Latvian law is not a precedent based law. This is equally not a question of jurisprudance constante. There is an obligation for the courts in civil law tradition to follow the case law. This obligation is based in principles of legal certainty and foreseeability, and the others. But this does not by itself justify the thesis that the judgments of the Court are a source of law. That thesis is justified based on the function of the highest courts, the interest in a coherent and Constitution compliant legal system.
Role of a Judge in the XXI century
Admittedly, we have come a long way in understanding and developing the proper function of the judiciary, especially that of the constitutional review. The development of the understanding of the judicial function has also had an impact on such debate as judicial activism versus judicial restraint. Such debate has not faded away and comes back periodically when we discuss the principle of separation of powers and the nature of constitutional adjudication. Just to recall that these questions have been asked and answers provided since the conception of the Austrian Constitutional Court one hundred years ago. One can also recall that already then, Hans Kelsen, when countering the views that constitutional court has no legitimacy to annul laws which the parliament, representing the sovereign, has adopted, explained that he sees
“the overlapping of the various branches of power and therefore he did not consider the constitutional court as an institution to be incompatible with the notion of parliamentary sovereignty, for sovereign power is not the preserve of one state body alone but rightly belongs to the state as such, in other words it is vested in the entire legal system, which in its turn is created, implemented and safeguarded by more than one body”.
XXI century with its rapid pace, the development of science and technology asks from the state to be quick and efficient. This fosters the overlaps between the constitutional bodies so that the ultimate goal of the development of the society is achieved in a more efficient way. We see that in the situation of increased overlaps between the powers the nature of checks and balances also changes. To paraphrase Kelsen, the dignity, prosperity of each human being and sustainability of the society is not an exclusive responsibility of the legislative or executive power. With such an understanding the activism and restraint debate is false and the judiciary, especially the constitutional courts, by definition have a broader role. I have already pointed out that this is nothing new and there is also a doctrine to that effect.
It is the surrounding circumstances which have changed and which make us realize better that an allegedly limited role assigned to the judges has never been a true reality. It is a myth. The Latvian legal system by recognizing that the case-law as well as the judge-made-law is a source of law accepts that the judiciary therefore has a law-making capacity in certain circumstances. In any event, it is very difficult to draw the line between where the court applies the law and where it develops the law. The fact remains that while the core competences and roles of each branch of power are clear, there are areas and situations where overlaps occur.
Moreover, it has been said that judges do not deliver legal opinions but formulate values. This is very much true for the European Court of Human Rights and constitutional courts. Admitting that superior courts formulate values, restrain the political power and even pre-empt it if the argument is made that a certain decision should not be adopted in fear of the decision of the constitutional court, all that is part and parcel of the functioning of the rule of law and the checks and balances between the branches of power in the modern age.
Conclusion: Legitimacy and authority of the judiciary
Seeing the judges and the judiciary in this broader context, it is important to make sure that judges have the necessary legitimacy and authority to engage in formulating the values for the society. It is therefore that the guarantees of the office, the criteria of selection and the procedural guarantees are more important than ever.
According to Felix Frankfurter, the way a judge makes use of the authority vested in him to scrutinize legislation for constitutionality depends, “upon the judge’s philosophy, conscious or implicit, regarding the nature of society; that is, on his theory of the clash of interests.”
Nevertheless, the values postulated by the judges have to be accepted by the society as their own values, or, to put it in other words, as values not imposed on the society from outside or above. In any given society and culture at a particular period of time there exist permanent central values, general norms and basic beliefs that are not disputed by the majority of the society. While the so-called theory of discursive justice postulates that correct solutions derive from a dialogue. If the society fails to comprehend the law, an estrangement from the law takes place.
Therefore, the Latvian Constitutional Court engages in a dialogue in at least two directions. First, it focuses its attention on the quality of its judgments and the reasoning included therein, since the recognition of certain values as society’s own may be achieved only by means of comprehensibility. Second, as I have mentioned previously, the Constitutional Court engages in public discourse locally and internationally in order to foster the public awareness of constitutional issues. Only a systematic and sustained effort in both of these directions contributes to the acceptance by and the development of the values of the society.
In conclusion Constitutional court is not a competitor with the legislator, but a contributor to the law-making that benefits the fundamental rights of the people. Constitutional court is not a tool for the government to legitimise its policies with a constitutional stamp. Self-censorship of judges to satisfy whatever political goals, completely disrupts the very meaning of the constitutional court. Our task is to foster the rule of law and to ensure constitutional balance of the state governance. Only this way we can ensure public trust in the state. Only this way we can attain prosperous and freedom enjoying nations in Europe.
 Endziņš, p. 26.
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