Patterns of Constitutionalism: Who Has the Final Word?

1. Patterns of constitutionalism: who has the final word? Judicial-legislative relations in Europe KálmánPócza associate professor Department of Political Science PázmányPéter Catholic University Constitutionalism in the European Union and the constitutional interaction between the West and East of Europe Public Hearing of the Committee on Constitutional Affairs of the European Parliament 7 March 2019 Brusselles

2. Overview • Definition • Constitutionalism in Central and Eastern Europe • European models of constitutionalism • Legal and political constitutionalism • The Commonwealth and the Scandinavian model of constitutionalism • Popular and participatory models of constitutionalism • Modelsof European constitutionalism

3. 1. Definition • Constitution: • constituting and constraining political power (who has the finalword) • coordination of social interactions • expression of fundamental values • outcome of severe political struggles for power

4. 2. Constitutionalism in Central and Eastern Europe • focusing on the constraining element • shifting centre of political power: • from executive-legislative to judicial-legislative relations • strong form of judicial review (final word) (with some exceptions) • constitutional courts moved into the focal point of politicaldebates

5. 2. Constitutionalism in Central and Eastern Europe • courtshavebeeninstrumentalizedbypoliticians • butjudges’ activismcontributedalsoto • judicialization of politicsand politicization of courts • globalspread of judicialreview

6. 3. European models of constitutionalism • Legal constitutionalism • strong form of judicial review • individual rights protection • counter-majoritarian character • unilateraldeclarations • judicial supremacy (juristocracy) • Politicalconstitutionalism • reasonabledisagreement • politicalaccountability • majority decision • compromises • parliamentarysupremacy

7. 3. European models of constitutionalism • Commonwealth model • NZ • not entitled to declare unconstitutionality: constitutional interpretation in harmony • UK • can declare incompatibility with the HRA (1998) but not entitled to annul • Canada • can annul but parliament’ super-majority is entitled to overrule • Scandinavian model • rights protection by ombudsman • self-empowerment of courts • self-restraint and deference • no judicial activism • unwritten conventions prevail over written norms • wide room for manoeuvre for both branches • constitutional dialogue

8. 3. European models of constitutionalism • Participatoryconstitutionalism • no special role for judges • shift from judicial-legislative relations to citizens • popular supremacy • Deliberativeconstitutionalism • no special role for judges • shift from judicial-legislative relations to citizens • supremacy of reasonable deliberation

9. 4. Models of European constitutionalism • European integration • legal model of constitutionalismis the dominant form • participatory model: referenda in France and the Netherlands in 2005 • role of the ECJ very important • judicialization of politics and politicization of courts • who will have the final word?