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 Bundestag or Bundesrat referring a certain bill to the court. In contrast, the latter occurs as a result of a referral from an ordinary court or claims from a citizen who can prove his/her rights have been violated. This authority has led the FCC to take decisions on several contentious issues including abortion, religion, reunification and even the Maastrict treaty. The judges have had to make a number of rulings which have had major implications on the German society. An entire law can be deemed invalid; however it is more common for the ruling to say that the law in incompatible with the constitution which means that particular piece of legislation needs amending.
Next, we come to Italy where the Corte Constituzionale was founded in 1948 and came into action in 1956. The objective of the ICC is obviously to uphold the 1948 constitution and much of this feat involves annulling legislation dating back to Mussolini’s regime. In addition, the ICC deals with disputes over the assignment of power, requests to modify constitution and the regional problems over land. ICC is authorised to deal with abstract reviews which have either been referred to them by National Government or Regional Government. Though unlike the German FCC, concrete review can only be initiated by the judiciary (these referrals are encouraged by the ICC). In total, the ICC is comprised of fifteen members who hold tenure for nine years each. Similar to their German counterparts, five of the judges are elected by a two-thirds majority in Parliament and these amongst these five, two represent one party, two another party and the one rotates every three years. Half of the other ten members are named by National Government and the other half by the judiciary. Also in line with the German system, judges must have experience either as a judge, a lawyer or a law professor.
Thirdly, we approach the Constitutional Council in France. This was an idea formulated by Charles de Gaulle and approved by the people in a referendum in 1958. However its effect became more noticeable in the eighties when it was announced that any group of sixty deputies was authorised to refer bills to the council. The Council is of a different nature to that of the two previously mentioned. There are nine members who undertake nine years in term each, and three are nominated every three years. The President is in charge of one so called nomination and the President of the National Assembly and the Senate each decide on one of the other two. Unlike the FCC and the ICC judges, those nominated for the French Council do not require any particular qualification or specific experience. In reality this means the majority of the judges are former Parliamentarians. As in Italy, judicial review is banned in France; once a bill is passed its constitutionality cannot be questioned. Therefore concrete review is not allowed, a priori abstract review however is when either the President of the Senate/National Assembly or when sixty or more senators/deputies refer something.
Germany, Italy and France each have a court therefore, which will produce different relationships with political institutions in their respective nations. Stone Sweet explains the cultural and historical reason for these differences: “In Europe...a deep hostility towards judges has reigned over for most of the last two centuries, the delegation of powers to judiciaries has been viewed as a necessary evil” (Stone Sweet, WEP Jan 2001, 78). The notion of parliamentary supremacy was regarded as being more essential because in a democracy this is the bastion of popular sovereignty and general will.
This was especially a strong sentiment in France. The state has always been unitary and not federal like Germany or regional like Italy, there is also history of weak local government. A need for a Constitutional council was not marketed because the government felt it needed a check and balance procedure in place. Conversely, the Council was intended for quite the opposite reason: “The Gaullists replaced the British-style parliamentary system with a mixed presidential-parliamentary one, strengthening the executive,” (Stone Sweet, WEP, 85). De Gaulle and his supporters intended for the government to have a stronger hold on parliament and the Council would help this happen. And now, the executive is still, a dominant force in French politics. The National Assembly asserts little power over government and the second chamber (Senate) has no substantial authority. Therefore the legislative process is principally centralised. People there prefer to be ruled by the government than by judges who are un-elected because they believe their general will is better protected that way. There has always been a mistrust of judges because they’re traditionally middle to upper class, conservative middle aged men- unrepresentative of the population as a whole.
Although the council has become much more independent through the years, there are several issues which still suggest it is too politicised. For example, looking at its basic structure, the way the judges are appointed. There is no election process or cross-party discussion and since judges need no previous judicial experience, those who are nominated have strong links with party politics. Also the mode of review can lead to politically biased decisions by the courts because they will be deliberating on cases which have been recently discussed in the National Assembly.
From the eighties onward, the Council has been used as something of a battleground between government and opposition parties to filter out any radical policies, when the leftist party was in power, the rights referred a number of bills to the Council and vice versa. The Council is thought of as by some as a third chamber in the legislative process, Volcansek develops this idea further: “Constitutional court is a more direct veto player when it is called upon to decide the validity of a policy .... executive and legislative negotiate and eventually pass a law that is subsequently subject to the Court’s veto” [EJPR 2001, 349]. This is probably a result of the weak Parliament and veto-free legislative process in France. Legislators in France are quite weary of the Council and this power it can exert; therefore more consideration is taken before drafting a bill.
In comparison, after the Second World War, Germany and Italy were encouraged to establish robust constitutions and a charter for human rights by the Americans. It was essential for the two countries who had both been the victims of authoritarian regimes to have strong check and balance systems stop a radical executive from forcing its will on the citizens again as one author explains: “Successive waves of democratisation...have transformed the juridical basis of the European state” (Stone Sweet, WEP, 79).
In Italy, the constitutional court has had to mature its role during the decades. In the past, it has generated a lot of publicity because of involvement with high profile issues. For example, the court was responsible for annulling the bill which deemed abortion a criminal act and they dealt with legalising divorce and contraception. Also the ICC has taken issue with the Catholic Church, organised crime and corruption. Overall this has gained them a good reputation with the people for defending their civil rights and liberties. However the ICC is not quite as apolitical as all this suggests. The mode of appointment used to choose ICC judges automatically proves otherwise. Those judges who are selected by Parliament will obviously have links with party politics and even those who aren’t elected seem hesitant to take issue with present legislators. Many feel that this may lead to the ICC being a third chamber in Italian politics. Volcansek has described the relationship between legislators and executives in Italy as resembling those in a presidential system in the past, in other words, Parliament simply strived to push through the executive’s policies. This author also describes how the equilibrium between the two entities has tipped over time and how this has affected the relationship with the ICC [EJPR 2001, 352]. Well the standing political institutions did not take kindly to the establishment of the ICC since they viewed it as a political rival. With time though, Parliament in Italy is less dominated by government than some other European countries. It has managed to maintain its own agenda and certain authority over the legislative process [GLM, 2000 80]. >>>>
In Germany, the FCC seems to be more successful as an institution of authority than the other two countries. The FCC can interpret legislation and is actively involved in the policy making process. It has managed to remain sufficiently independent from the world of party politics while still being held in high esteem by both the Parliament and the people. There maybe several reasons for this. Perhaps because it is a federal system and both the member state processes and national processes have to be co-ordinated or because German has a coalition government and so cross-party ideas are discussed. In addition, the strong bicameralism means that the Bundesrat already has a strong veto power and law making power >>>. Structurally, their mode of appointment is fair and the perquisites for candidates ensure that properly qualified and unbiased people get the job. Also their forms of abstract and concrete review has made the FCC a more diverse and significant institution.
“In Western Europe parliamentary regimes, focus is typically on political parties and the ties and tensions they present between the Parliament and the executive ... these theories assume that the crucial actions in parliamentary systems occur on a continuum running from legislative to executive, but that view ignores a broader set of relationships among Parliament, the executive and the Constitutional Court” [Volcansek, EJPR 2001, 348]. Now I have compared the roles of the Constitutional Courts in Germany, France and Italy, and viewed their relationships with the major political institutions in their respective countries. After the Second World War, the importance of having a strong constitution was emphasised throughout Western Europe. And in particular the need for a separate constitutional body to check the executive branch was deemed essential in those countries transitioning to liberal democracies. This is why the FCC in Germany and the ICC in Italy have a greater duty to uphold the value of the Constitution in their nations. The cultural perspective, as well as the historical one, helps to explain why each of the countries has chosen to adopt slightly different versions of the Kelsen model. Emergence of the Constitutional Courts throughout Western Europe has impacted on the role of the executive and the legislative. Their powers have been limited in some cases and in other cases law-making policies have been given much more thought and consideration.
West European Politics _ December 2002
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