Rights-Based Constitutional Review in Central and Eastern Europe

Abstract

Abstract The post-communist states of Central and Eastern Europe have embraced, almost without reservation, the power of constitutional courts to strike down legislation under constitutional charters of rights. While there have been occasional public expressions of dissatisfaction with this or that major decision, the legitimacy of the constitutional tribunals to replace the legislators' understanding of constitutional rights with its own has gone virtually unchallenged. There are two plausible reasons for this uncritical acceptance of robust, activist, rights-based judicial review in the countries undergoing transition from communist to democratic rule. First, the general acceptance tracks the comparatively high social prestige of constitutional courts in these societies as a whole. The second reason has less to do with general public opinion than with the participants in constitutional discourse (constitutional scholars and judges) themselves. This chapter discusses the model of constitutional review in post-communist states, record of constitutional courts in the field of rights, and judicial activism of rights-based judicial review.