Constitutional Courts and Legislation

Abstract

The design of constitutional courts in CEE created an environment in which the constitutional courts gained a significant role in law-making. This role has not been confined to striking down provisions that conflicted with the legislative choices; it also included “putting the parliaments on notice” that they should change specific laws, indicating the directions of these changes, and even, at times, “rewriting” the laws themselves. This, naturally, placed these courts on a collision course with their respective legislatures, or rather, with the political majorities, as parliamentary minorities often found the courts to be useful allies in their struggle to overturn the laws on which they were outvoted. Both the strength of the clash and the nature of the alliance between the courts and political oppositions largely depended on specific local factors. The tendency to establish alliances between the majority of the court and the parliamentary opposition, on the other hand, depends on the capacity and costs incurred by the opposition in challenging the law in question before the court. Various specific examples of such uneasy relationships between constitutional courts and legislatures in CEE are discussed in this Chapter.