Explain the Considerable Difference in the Relationship of West European Constitutional Courts and National Political Institutions.

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West European Politics _                                                                  December 2002

Explain the Considerable Difference in the Relationship of West European Constitutional Courts and National Political Institutions.

 The issue of the constitution, judiciary and constitutional courts have been discussed in much detail over the past few decades; in fact they have taken particularly contentious areas of debate after the Second World War. A Constitutional Court is the institution that upholds the constitution and has the authority to carry out constitutional reviews. Western Europe in particular has adopted the Kelsen model for review. The European structures of constitutional review I will overview are all based on this model laid out by Hans Kelsen. The four features of this model are 1) monopoly by the constitutional courts on constitutional review 2) restriction on the role of these courts 3) courts with only necessary contact with the judiciary and the legislative 4) permission for a priori abstract reviews. Kelsen’s model works to prevent legislative supremacy and this is suitable for Western Europe and its culture. Review in Western Europe is different from the judicial review process in say the USA; it implies either abstract review or concrete review. Abstract review involves deliberation over a law or laws without any specific case in mind. Usually it can be split into two categories: ‘a priori’ (review only before a bill becomes law) and ‘a posteriori’ (review is only allowed up to a short period after the bill has been passed). An abstract review can only be initiated by the designated set of political authorities, so this necessarily means direct contact between the Constitutional Court and the legislative. Concrete reviews on the other hand, is less politically charged because any defendant can initiate one. They arise when a law is challenged during some specific case [GLM, 2001, 20].

I will be taking an in depth look at three West European countries: Germany, France and Italy and then assessing the role of the constitutional courts there comparatively. I have chosen these three countries because they each exemplify a unique relationship between their Constitutional Courts and the national political institutions. In order to determine the reason for the different relationships between the constitutional courts and political institutions in these countries, it is necessary to focus firstly, on the major historical events which may have impacted on their constitutional practices. Secondly, I will look at political cultures and traditions in these countries and thirdly, the nature of the executive and the legislative in these countries.

I will begin by looking at the system in place in Germany. The Basic Law was implemented as a stop gap constitution in 1949, and the Federal Constitutional Court (FCC) was established in 1951. The FCC is composed of sixteen members, all of whom are elected for tenure of twelve years in total. Eight of the members are elected by a two-thirds majority in the Bundestag and the other eight by the same majority in the Bundesrat, this process in Germany is quite distinctive because all parties discuss the candidates. Each member must have adequate legal training and experiences as well as the necessary qualifications for such a position, therefore most of the judges chosen are former federal judges.

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The main function of the FCC is to deliberate over constitutional complaints brought forward by any group of people. The FCC which follows the Kelsen model (a feature I will elaborate on later) is thought to be separate from the judiciary and ‘above party politics.’ It is based in Karlsrüe, a small town well away from the capital city and the other major institutions; this would imply that the Court is not under their influence. The FCC has the authority to carry out both abstract reviews and concrete reviews. Abstract reviews are initiated by at least one third of the ...

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