Constitutional Courts Securing Their Legitimacy - An Institutional-Procedural Analysis

Abstract

It is imperative for constitutional courts and their judgments to enjoy respect to allow them to make good on the intended objective of providing solid constitutional guardianship. At the same time, judicial legitimacy is a precious commodity that once lost is hard to replace. It should be realised that threats to the legitimacy of constitutional courts are often not self-manufactured, in the sense of gratuitous judicial overreaching or a callous disregard by the court for what the other organs of State or the country’s population deem important. They are, rather, a corollary of two distinct though related factors. First, the extent to which the procedural framework, as designed by the political branches of government, allows for the referral of any and all constitutional questions to the court. This chapter explains how quasi-comprehensive portfolios of responsibility, coupled with lenient rules on access, enhances the probability that social or politically sensitive issues will enter the judicial arena for resolution. The second factor concerns a country’s political and economic climate. A government faced with a poorly performing economy or other financial constraints, and an electorate demanding effective and rapid action, may be enticed to respond with rules that give short shrift to constitutional values. In such situations, remedial approaches other than annulment decisions are particularly attractive for courts faced with constitutional defective statutes, as they mitigate the risk of an inter-institutional confrontation and any ramifications such may have for the enforcement of judgments. These could further ameliorate perceptions of judges as sympathetic to the plight of governments in regulating society, rather than legalistic troublemakers who do not know or care about socio-political realities. This chapter critically discusses the most significant of these decisional techniques as applied by Europe’s Kelsenian constitutional courts: constitution-conform interpretation, rendering rulings of temporary constitutionality or severing the link between a finding of unconstitutionality and annulment. It is interesting to note that in many countries, several of these techniques have been fashioned by the courts themselves in direct response to the precarious reality of their political environment. This suggests that courts are keenly aware of the delicate balancing act that they must perform in protecting constitutional integrity and alert to using ‘prudential’ remedial techniques to attenuate political or public discontentment.