On the Pitfalls of Constitutional Discourse on Criticizing Constitutional Courts

I think there is widespread consensus now within legal academia that 2020 was an eventful year in the lives of many courts tasked with or engaging in constitutional justice. Whether it was about the constitutional review of emergency legislation necessitated by COVID-19 in Austria, or about the interpretation of certain core fundamental rights in Poland, or about interpreting the relationship of the national constitutional order and European Union law in Germany – constitutional courts have met significant criticism for standing their ground on many issues. This criticism also arrived from public institutions, state political bodies as well as international institutions, from civil society and from within the ranks of legal academia.

Constitutional discourse on the activity of these courts has always been inserted into the arena of “personal politics” in the United States, where former President Trump’s latest 2020 pick for the Supreme Court was criticized for her views on abortion and her religious beliefs. This practice of ‘constitutional politics’ – in Ackerman’s words – is coded into the fabric of the US legal and political system.

Constitutional discourse In Europe, however, more often touches upon the activity of the courts as institutions and their decisions and not as much on the individual judges – with more political than legal criticism.

Based on a few key cases selected from various European constitutional courts’ jurisprudence, I would like to reflect on some of the finer points on what should be allowed in terms of criticizing constitutional courts and their decisions.

The first tidal wave of loud criticism by European constitutional scholar and political scientists arrived shortly after the first wave of COVID-19 last spring, in May 2020, after the Karlsruhe Court (GFCC) deliberated on the so-called PSPP program of the EU, and declared an act by an EU institutions ultra vires, i.e. overstepping the competences set out in the Treaties, and therefore declared it unenforceable in Germany based on their ‘Integrationsverantwortung’, a constitutional responsibility for the European integration process, dedication to which is also demonstrated by the fact that the German legislature enacted a federal law on the issue back in 2009. The decision has met mostly negative echoes from Europe, oddly, even from the UK, and this very negative reception is also demonstrated by the fact that the EU Commission, by that time under German leadership has threatened Germany with triggering infringement proceedings as a result of the decision. May this year bring about such action, we keep wondering.

Barely a month has passed and the international stage was filled again with searchlights and voices looking for the rationale behind the 2020 amendments of the Russian constitution regarding the enforceability of decisions brought by interstate bodies, namely and most specifically, the European Court of Human Rights. Questioning the enforceability of ECtHR judgments is nothing new under the Russian sun, ever since they submitted to the Court’s jurisdiction ion 1998, but more recently, two cases contributed to further refining constitutional rules regarding these decisions that lead to an opinion being adopted by the Venice Commission in June 2020. Back in 2016-2017, the judgments of the ECtHR in Anchugov and Gladkov v. Russia and the infamous Yukos case (OAO Neftyanaya Kompaniya Yukos v. Russia) triggered previous amendments that created powers for the Russian Constitutional Court (RCC) to declare them unenforceable by reason of incompatibility with the constitutional foundations of the Russian Federation. Just as it was lurking in the background of the German PSPP decision, considerations of budgetary expenditures and national economy directed the RCC to declare that the certainty of enforcing these decisions has been brought into question. The quite substantial amount of just satisfaction awarded to the shareholders of the now dismantled Yukos (namely 1.866.104.634 EUR) – owned by disgraced businessman Mikhail Khodorkovsky – was the supposed origin for “sounding the alarm bells”. Last summer, the Venice Commission turned toward this Russian issue with careful criticism, and also touched upon other aspects of the reform regarding the replacement of constitutional judges, shifting the relevant power from the quorum of the RCC to the Federation Council, the upper house of the national legislator. More on the legislative influencing of the composition of constitutional courts later, when discussing the Ukrainian reform in this regard.

It turned out a couple of months later that conservative stances on abortion not only trigger social movements in America when a new debate was sparked in Europe in the fall of 2020. In their decision on 22 October 2020, the Polish Constitutional Tribunal (PCT) issued what cannot otherwise be characterized as an unconventionally conservative interpretation of the fetal rights to life. Their decision is sometimes labeled as one rendering “eugenic abortion”unconstitutional. All this in an era, by when the traditionally very conservative Irish constitutional system also changed toward a more liberal approach, allowing for the first time to legislate on the termination of pregnancy (in 2018) based on conditions likely to lead to the death of the fetus or risk to the life or health of the mother. Interestingly, also, in the Hungarian regulation currently in force, largely with the same rules since 1993, the provisions protect the mother and allow room for discretion regarding termination of pregnancy in case the fetus suffers from a deficiency incompatible with life or the probability of the genetic and teratological damage to the fetus reaches 50% via prenatal diagnostic procedures. (Articles 6-7 of Act LXXXIX of 1992 on the protection of fetal life). The publicity of the Polish decision was only partly due to its subject matter, it has also been reinforced by the echo chamber and the context of those EU proceedings that are in motion regarding Poland. In such an environment, the PCT has met sharp criticism from both legal academia and public opinion – involving civil society organizations, calling the attention of the leaders EU institutions to the fact that the disobedience of Polish courts has reached the apex and the EU’s fundamental values are yet again endangered by judicial review.

To finish up, the already mentioned Ukrainian case shall also be discussed, leading to the most important conclusions on the topic of this ‘2020 year in review’ of constitutional jurisprudence. The sheer absurdity of some aspects of the case will – I imagine – provide fertile ground for constitutional scholars to analyze for months to come, and the Venice Commission also was cognizant of this. They adopted an urgent opinion on 11 December 2020 following President Zelensky’s request to review the 27 October decision of the Ukrainian Constitutional Court (UCC), which – based on an initiative by MPs declared the unconstitutionality of most of the criminal anti-corruption legislation in the country. The President, who by the way is partly in charge of appointing UCC judges (together with the Parliament and the Judicial Council) also asked the Commission to form an opinion regarding the status of the judges involved in decision-making on the grounds that they were seemingly in a conflict of interest when casting their vote, thereby violating core principles of due process. Besides the many aspects of the year-long 2020 Ukrainian judicial reform, it is important to point out that four of the quorum of the UCC involved in the decision attacked have been affected by challenges from President Zelensky as a party to the proceedings for their direct involvement in national anticorruption investigations based on their failure to provide appropriate accounts of their finances. Despite these challenges, the judges continued to participate in decision-making, which lead to a show of force by the positive legislator toward the negative legislator, i.e. by the Parliament toward the UCC. A couple of draft laws were introduced aiming at declaring the attacked decision of the UCC void by reason of it being arbitrary and violating the rule of law and in this regard reinstating the effect of those criminal provisions that have been declared unconstitutional. What is more, and here comes the punchline, the possibility and the new criteria for the selection of new judges was also included in the draft, alongside a freezing of finances provided for the UCC’s operation and increasing the quorum necessary for decision-making.

Obviously, this case greatly surpasses any relevant professional or public criticism of the work of the constitutional court previously mentioned, as here the source of the attack is a state actor, and the motivation of the attack is political. The rule of law standard mentioned above is also applied by the Venice Commission, leading to their conclusion that it is a severe violation of the principle and others flowing therefrom if political institutions, such as the Parliament obstruct institutions created for the constitutional review of legislation. They point out, and rightly so, that the criticism of the operation of these institutions is allowed, but any arriving from actors exercising public power shall be exercised with the utmost restraint. It undoubtedly creates an unconstitutional situation if a law puts an end to the mandate of constitutional judges and a decision of a constitutional court is rendered void. This way, in practice, legislative checks and balances become meaningless.

Through actions similar to what has been described above will and could constitutional courts really become captured or packed. These are two words that have recently been fancied in Europe to depict national ‘outlier’ constitutional courts based on American terminology evolving from the deeply-rooted theory of capture in administrative law. Those politicians, professional and medias that set out to become voices critical of constitutional courts, shall heed the words of the Venice Commission’s urgent opinion on this Ukrainian matter, and it might even be worth to think along those lines a little further ahead: Such criticism of constitutional courts in constitutional discourse which rests solely on political grounds and intends to limit constitutional protection without the requisite restraint and well-rounded professional justification with not only erode public trust in constitutional justice, but also the main function and raison d’être of these institutions as well.

Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu