Judicial Cosmopolitanism : The Use of Foreign Law in Contemporary Constitutional Systems [1 ed.] 9789004297593, 9789004243118

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Judicial Cosmopolitanism

Judicial Cosmopolitanism The Use of Foreign Law in Contemporary Constitutional Systems

Edited by

Giuseppe Franco Ferrari

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Ferrari, Giuseppe Franco, 1950- editor. Title: Judicial cosmopolitanism : the use of foreign law in contemporary constitutional systems / Giuseppe Franco Ferrari. Description: Leiden ; Boston : Brill/Nijhoff, 2019. | Includes index. Identifiers: LCCN 2019023144 | ISBN 9789004243118 (hardback) | ISBN 9789004297593 (ebook) Subjects: LCSH: Constitutional law--Foreign influences. | Courts of last resort. | International and municipal law. | Law and globalization. Classification: LCC K3165 .J84 2019 | DDC 342--dc23 LC record available at https://lccn.loc.gov/2019023144

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISBN 978-90-04-24311-8 (hardback) ISBN 978-90-04-29759-3 (e-book) Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Notes on Contributors  ix Introduction: Judicial Constitutional Comparison and Its Varieties  1 Giuseppe Franco Ferrari

Part 1 Common Law Countries Splendid Isolation or Open to the World? The Use of Foreign Law by the UK Supreme Court  29 Justin O. Frosini The Use of Foreign Law in Irish Constitutional Adjudication  69 Oran Doyle and Tom Hickey Legal Comparison Within the Case Law of the Supreme Court of the United States of America  94 Giuseppe Franco Ferrari Comparative Law in the Jurisprudence of the Supreme Court of Canada  140 Nino Olivetti Rason and Sara Pennicino Developing an Indian Constitutional Jurisprudence Drawing on Judicial Thinking in the Rest of the Common Law World  177 Anton Cooray The Practice of Comparative Law by the Supreme Courts of Australia and New Zealand  194 Maurilio Gobbo The Comparative Legal Tool-Kit of the Constitutional Court of South Africa  217 Angelo Rinella and Valentina Cardinale

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Part 2 Continental Europe Comparative Law and the French Constitutional Council  263 Paolo Passaglia Comparative Reasoning in Constitutional Litigation: Functions, Methods and Selected Case Law of the German Federal Constitutional Court  295 Sonja Haberl Comparative Law in the Case Law of the Austrian Constitutional Court  325 Christoph Grabenwarter Conspicuous Absentees in the Dutch Legal Order: Constitutional Review & A Constitutional Court  337 Wim Voermans The Constitutional Court of Belgium and the Use of the Comparative Argument. From the Dialogue with the “Sister Courts” to the Dialogue with the European Courts  348 Paolo Carrozza The Spanish Constitutional Court and Foreign and Comparative Law: Theory and Practice of a Marriage of Convenience  375 Ángel Aday Jiménez Alemán The Use of Comparison in the Swiss Federal Tribunal Case Law  402 Sergio Gerotto Is There a Middle Ground between Constitutional Patriotism and Constitutional Cosmopolitanism? The Portuguese Constitutional Court and the Use of Foreign (Case) Law  424 Catarina Santos Botelho The Italian Constitutional Court  449 Vincenzo Zeno-Zencovich

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Part 3 Northern Europe The Use of Foreign Precedents in Constitutional Interpretation by the Nordic Courts  461 Francesco Duranti Foreign Materials in the Judgments of the Constitutional Court of the Republic of Latvia  476 Anita Rodiņa The Use of Foreign Law by Estonian Supreme Court  501 Madis Ernits

Part 4 Eastern Europe The Russian Constitutional Court and the Judicial Use of Comparative Law: A Problematic Relationship  531 Mauro Mazza Comparative Analysis in the Case Law of the Constitutional Tribunal of Poland  567 Miroslaw Granat The Use of Foreign Legal Materials by the Constitutional Court of the Czech Republic  589 Jana Ondřejková, Kristina Blažková and Jan Chmel Use of Foreign Law in the Practice of the Hungarian Constitutional Court – With Special Regard to the Period between 2012 and 2016  618 Csaba Erdős and Fanni Tanàcs-Mandàk Constitutional Adjudication and Comparative Law in the Republic of Croatia  650 Carna Pistan The Use of Foreign and Comparative Law by the Constitutional Court and the High Court of Cassation of Romania  686 Camelia Toader

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The Use of Comparative and International Law by the Constitutional Court of Bosnia and Herzegovina  708 Laura Montanari National Courts and Comparative Law – The States of Former Yugoslavia (Slovenia, Croatia, Serbia, Bosnia-Herzegovina, Macedonia and Montenegro)  745 Gian Antonio Benacchio

Asia

Part 5

The Recourse to Foreign Legal Sources by the Southeast Asian Constitutional and Supreme Courts  771 Serena Baldin Use of Foreign and Comparative Law by the Supreme Court of Japan  800 Akiko Ejima

Part 6 Latin America Foreign Law and Foreign Case Law before Latin American Constitutional and Supreme Courts  827 Francesca Polacchini

Israel

Part 7

The Supreme Court of Israel and the Use of Comparative Law  853 Leonardo Pierdominici Index of Authors  871 Index of Cases  883

Notes on Contributors Ángel Aday Jiménez Alemán is lecturer of Constitutional law in the University of Vigo. He received a PhD in Law from the same university in 2013. He has contributed to P. Pérez Tremps, A. Saiz Arnaiz, (dirs.), C. Montesinos Padilla, (coord.), Comentario a la Constitución de 1978. Libro-homenaje a Luis López Guerra, Tirant lo Blanch, Valencia, 2018. Serena Baldin is Associate Professor of Comparative Public Law at the University of Trieste, Italy. She is the author of two books and several essays on constitutional justice, minority protection, cultural heritage and environmental constitutionalism. Gian Antonio Benacchio is Full Professor of European Private Law at the Law Faculty, Trento University. Director of the Osservatorio Antitrust, member of International Academy of Comparative Law. Among several publications the last is Diritto Privato dell’Unione Europea, VII, Cedam, 2016. Kristina Blažkovà is Ph.D. student at the Charles University and clerk at the Constitutional Court of the Czech Republic. In her writings, she focuses primarily on legal argumentation by judges and judicial role within the legal system. She has recently co-authored a book titled Foreign Influence and Comparison in Constitutional Law, an article on openness of courts and communication of judicial decisions and a case note on the ECJ judgment Al Chodor. Valentina Cardinale works on international research at the Italian Ministry of Education, University and Research. She is a lawyer and she took a PhD in Comparative Law at the University of Siena in 2009. She has several publications on comparative law subjects, about, among the others, freedom of teaching, Chinese property law and Scandinavian constitutional justice. Paolo Carrozza is Full Professor of Constitutional Law at the Sant’Anna School of Advanced Studies, Pisa). Main publications (in English): The Paradoxes of Constitutional Reform (2017); Kelsen and Contemporary Constitutionalism (2017); The Italian

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Senato as a Federal Chamber (2012); Constitutionalism’s Post-Modern Opening (2006). Jan Chmel is Ph.D. student at the Faculty of Law, Charles University, where he graduated in 2015. He focuses on judicial studies and recently he co-authored an article entitled “Communicating Judicial Decisions: Stepping out of the Black Box” in The Lawyer Quarterly with Kristina Blažková. Anton Cooray LLB., PhD (Lond), PhD (Sri Lanka) is Professor of Law at City, University of London; Author of Constitutional Law in Hong Kong (3rd ed., 2019: Kluwer), Environmental Law in Hong Kong (2nd ed., 2018: Kluwer); Editor of Journal of International and Comparative Law. Oran Doyle is Associate Professor at Trinity College Dublin from where he obtained his Ph.D. He is the author of The Constitution of Ireland: A Contextual Analysis (Hart, 2008). Francesco Duranti is Associate Professor of Comparative Public Law Università per Stranieri di Perugia (Italy) PhD in Public Law (Università degli Studi di Perugia – February 2001) Lawyer at the Bar of Perugia (Italy). Akiko Ejima is Professor of Law at Law School, Meiji University (Tokyo). She holds a Ph.D from Meiji University. She was a visiting scholar at King’s College London, Harvard Law School, Faculty of Law and Hughes Hall, Cambridge and Wolfson College, Oxford. Professor Ejima writes and teaches in the field of Constitutional Law, Comparative Constitutional Law and International Human Rights Law. The most publications are as follow; Chapter on Japan, Mercat-Bruns, et al (eds.), Comparative Perspectives on the Enforcement and Effectiveness of Antidiscrimination Law (Springer, 2018), “A Possible Cornerstone for an Asian ­Human Rights Court” in SNU Asia-Pacific Law Institute (ed), Global Constitutionalism and Multi-layered Protection of Human Rights – Exploring (Constitutional Court of Korea, 2016). Csaba Erdős JD (SZE, 2010) PhD (SZE, 2014) is a senior lecturer at Széchenyi István University (Hungary) and at National University of Public Service (Hungary). His

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research fields: parliamentary law, direct democracy, constitutional courts. He published one monography and around 60 publications. Madis Ernits is Judge at the Administrative Law Chamber of the Tartu Court of Appeal and lecturer for Constitutional Law at the Faculty of Law of the Tartu University. He is author of two books and numerous other publications, mainly to Estonian Constitutional Law. Justin O. Frosini is Associate Professor of Comparative Public Law at the Bocconi University, Milan and Adjunct Professor of Constitutional Law at the Johns Hopkins University’s School of Advanced International Studies (SAIS). He is also the Director of the Center for Constitutional Studies and Democratic Development in Bologna, Italy. Sergio Gerotto is full professor of Comparative Law at the Università degli Studi di Padova. He holds a Ph.D. in Constitutional Law from the Université de Fribourg (Switzerland). His writings covers various areas of Comparative Public Law, in particular regarding Federalism, Judicial Review and Direct Democracy Maurilio Gobbo is Full Professor of Constitutional Comparative Law at the University of Padova. His current scientific research has focused on the process of constitutional review and distinctive procedures of legitimacy control. In addition, his research is focused on re-elaborating and adapting to the public law distinctive categories and concepts of Roman-German law. Christoph Grabenwarter was researcher or professor in Vienna, Strassburg, Heidelberg, Bonn and Graz from 1988–2006; Vienna University of Economics and Business, professor; Austrian Constitutional Court, Vice-President. Publications include: European Convention on Human Rights, 2014; Verfassungsgerichtsbarkeit in Europa (Ius Publicum Europaeum, Vol. VI, 2016, with v. Bogdandy and Huber). Miroslaw Granat is professor of constitutional law. Former Judge at the Constitutional Tribunal in Poland (2007–2016). Consultant of the Venice Commission of the Council of Europe on the project Advice to the Constitutional Court of the Ukraine on the constitutional complaint.

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Sonja Haberl is post-doctoral researcher in Comparative Law at the University of Ferrara and author of Zivilrechtliche Diskriminierungsverbote in nationalen Privatrechtsgesellschaften (2011). Recent publications include I legislatori occulti. Outsourcing legislativo ed espertocrazia nell’ordinamento tedesco (in: Politica del diritto, 2018) and Indipendenza del giudice e controllo disciplinare. Riflessioni a marginedi una recente sentenza della Corte die Cassazione tedesca (in: Materiali per una storia della cultura giuridica, 2019). Tom Hickey B.C.L (NUI), LL.M (Cantab.), Ph.D. (NUI, 2013), is Assistant Professor at the School of Law and Government, Dublin City University. He has published in journals including the International Journal of Constitutional Law and Legal Studies. Mauro Mazza is associate professor of Comparative Public Law in the University of Bergamo (Italy). He published most recently an essay on comparative local government in G.F. Ferrari et al. (Eds.), The Dutch Constitution Beyond 200, The Hague, 2018. Laura Montanari is Full Professor of Comparative Public Law at the University of Udine, where she is the Academic coordinator of the Jean Monnet Module “EU Enlargement and Constitutional Transitions in the Western Balkans”. She took a PhD in Constitutional Law at the University of Milan. Nino Olivetti Rason (B.A. Harvard, 1955), formerly Full Professor of Comparative Public Law at the University of Padua, Italy. His research focuses on Anglo-American law and Environmental law. Jana Ondřejkovà is senior lecturer at the Department of Political Science and Sociology at the Faculty of Law, Charles University. She earned her Ph.D. in legal theory in 2011 (Prague) and currently focuses on the political context of judicial power. Paolo Passaglia is Professor of Comparative Law (University of Pisa). Ph.D. in Constitutional Justice (University of Pisa, 2001), and pro-tempore Scientific Coordinator of the Comparative Law Unit, Research Service of the Italian Constitutional Court.

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Main books: on the formal invalidity of legislative acts (2002), on the French constitutional tradition (2008), and on the abolition of the death penalty (2012). Sara Pennicino Ph.D, University of Siena – Italy, 2008 is Associate Professor of Comparative Public Law at the University of Padua, Italy and Adjunct Professor of International Human Rights at the Johns Hopkins SAIS Europe. Her research focuses on elections. Leonardo Pierdominici is Post-doc Researcher at the School of Law of the Università di Bologna. PhD in Law at the European University Institute (2016) His publications include works on European and comparative public law, also pertaining to Israel, in prestigious journals and numerous edited books published both in Italian and in English. Carna Pistan is Postdoctoral Research Fellow at the University of Udine; Affiliated Researcher at the Center for Constitutional Studies and Democratic Development, Bologna. She is the author of the monograph “Between democracy and authoritarianism: systems of constitutional justice in Eastern Europe and Post-Soviet Countries”. Francesca Polacchini is PhD Research Fellow in Constitutional Law at the University of Bologna. Recently she published the monographic work “Doveri costituzionali e principio di solidarietà” and the essay “La libertà di espressione artistica in una prospettiva multilivello” Angelo Rinella graduated in law at the University of Rome La Sapienza, is full professor of Comparative Constitutional Law at the University of Rome LUMSA. His recent studies deal with neuro-cognitive enhancement, food sovereignty, GMOs in comparative law perspectives, Shari’a in the West. Anita Rodina Dr.iur (dissertation defended at the University of Latvia on 2006) is an associated professor at the Law Faculty of the University of Latvia. She is an author of several articles published in Latvia and abroad. Her professional interest is

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tied with issues of constitutional law, protection of fundamental rights and constitutional review. Catarina Santos Botelho is Assistant Professor at Porto Faculty of Law, Universidade Católica Portuguesa (UCP). Master (2009) and PhD (2015) in Constitutional Law (UCP). Chair of the following courses: Constitutional Law, Fundamental Rights, Constitutional Justice, Multilevel Protection of Social Rights and Interdisciplinary Post-­ Graduation in Human Rights. Fanni Tanács – Mandák PhD (NUPS, 2014) is a senior lecturer at National University of Public Service (Hungary), associate research fellow at Institute for Foreign Affairs and Trade. Her research fields: parliamentary law, forms of government, Italian political system. She published two monographs and around 50 publications. Camelia Toader is President of Chamber at the CJUE. Former Judge at the High Court of Cassation and Justice of Romania (1999–2007). Titular Member of the International Academy of Comparative Law. Ph.D., University of Bucharest,1997. Author of various publications in several languages Wim Voermans graduated from Tilburg Law School in 1987 and received his PhD there in 1995. Since 2002 Voermans is full professor of Constitutional and Administrative Law at Leiden University. Voermans’ research focuses on comparative constitutional law and theory, (European) legislative studies and democracy. See for further details https://www.universiteitleiden.nl/en/staffmembers/ wim-voermans#tab-1 Vincenzo Zeno-Zencovich is full professor of comparative law in the University of Roma Tre and chairman of the Italian Association of Comparative Law. Among his more recent books is “Introduction to Comparative Legal Systems” (in open access with Roma TrE-Press).

Introduction: Judicial Constitutional Comparison and Its Varieties Giuseppe Franco Ferrari 1

The Growth of Constitutional Comparativism

It is commonplace to argue that the interest of legal scholars around the world over the last twenty years has been focusing on the usage by constitutional and supreme courts of foreign and international materials.* The relevant literature has become so voluminous that it is difficult to master. Dozens of books have been dedicated to constitutional comparativism within the case law of the courts in the multilevel global context,1 with the related effects in terms of the dissemination of ideas, principles and legal institutes, cooperation between courts and eventually cross-fertilisation. Many other books have been devoted * This introduction includes some parts, modified, integrated and updated, already published in previous different writings: G.F. Ferrari, A. Gambaro, Le Corti nazionali ed il diritto comparato. Una premessa, In G.F. Ferrari, A. Gambaro (Eds.), Corti Nazionali e comparazione giuridica, 2006; G.F. Ferrari, The Use of Foreign Law by Constitutional Courts, Fourth Annual Conference of the Irish Society of Comparative Law – University College Cork, 2-3/3/2012 in Irish J. of Legal Studies, vol. 4/2014. 1 See e.g. B. Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis, Oxford, 1997; Id., Always on the Same Path: Essays on Foreign Law and Comparative Methodology, Oxford, 2001; U. Drobnig, S. van Erp (eds.), The Use of Comparative Law by the Courts, The Hague, London, Boston, 1999; A. Somma, L’uso giurisprudenziale della comparazione nel diritto interno e comunitario, Milan, 2001; B. Markesinis, Comparative Law in the Courtroom and Classroom, Oxford, 2003; P. Legrand, R. Munday (Eds.), Comparative Legal Studies: Traditions and Transitions, Cambridge, 2003; R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionlism, Cambridge, Mass., 2004; G. Canivet, M. Andenas, D. Fairgrieve (Eds.), Comparative Law before the Courts, Oxford, 2004; S. Fatima, Using International Law in Domestic Courts, Oxford, 2005; G.F. Ferrari, A. Gambaro (Eds.), Corti nazionali e comparazione giuridica, Naples, 2006; B. Markesinis, J. Fedtke, Judicial Recourse to Foreign Law, A New Source of Inspiration?, London, 2006; S. Choudry (Ed.), The Migration of Constitutional Ideas, Cambridge, 2007; B. Markesinis, J. Fedtke, Engaging in Foreign Law, Oxford, 2009; G. de Vergottini, Oltre il dialogo tra le Corti. Giudici, diritto straniero, comparazione, Bolonia, 2010; V. Jackson, Constitutional Engagement in a Transnational Era, Oxford, 2010; S. Muller, S. Richards (Eds.), Highest Courts and Globalisation, The Hague, 2010; C. Espluges Mota, J.L. Iglesias Bouygues, G. Palao Moreno (Eds.), Application of Foreign Law, Munich, 2011; R.  Rawlings, P. Leyland, A. Young (Eds.), Sovereignty and the Law: Domestic, European and International Perspectives, Oxford, 2013; T. Groppi, M.C. Ponthoreau (Eds.), The Use of Foreign Precedents by Constitutional Judges, Oxford, Portland, 2014; R. Hirschl, Comparative Matters,

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_002

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to the same topic on a continental2 or national3 scale or within specific areas of the law,4 including in particular human rights. The articles are countless. The strong scholarly interest in this topic is no longer focused on the AngloAmerican world, as it was at the beginning, but has rapidly shifted to a global fact. In an attempt to understand the reasons for this phenomenon, one can highlight at least two relevant factors, one of which is general and structural, whilst the other is more contingent in nature, albeit functionally linked to the former. However banal this assertion may seem, from an institutional standpoint there can be no doubt that globalisation has fostered the propagation and transplanting of models and rendered the comparative approach more attractive, even in countries – and university systems – that have been traditionally self-sufficient and impervious to the outside world. The apparently fortuitous event that contributed to engaging the attention of scholars worldwide has been none other than the recourse to comparative law (and indeed international law) by the US Supreme Court at the turn of the The ­Renaissance of Comparative Constitutional Law, Oxford, 2014; M. Andenas, D. Fairgrieve, Courts and Comparative Law, Oxford, 2015. 2 Such as U. Neergard, R. Nielsen, European Legal Method – in a Multi-Level EU Legal Order, Copenhagen, 2011; M.Kiikeri, Comparative Legal Reasoning and European Law, Amsterdam, 2001; M.de S.-O.-l’E. Lasser, Judicial Transformations. The Rights Revolution in the Courts of Europe, Oxford, 2009; G. Martinico, O. Pollicino (Eds.), The National Judicial Treatment of the echr and EU Laws: A Comparative Constitutional Perspective, Gröningen, 2010; M. Avbelj, J. Komarek (Eds.), Constitutional Pluralism in the European Union and Beyond, Oxford, 2011; M. Claes et al. (Eds.), Constitutional Conversation in Europe. Actors, Topics and Procedures, Cambridge-Antwerp-Portland, 2012; M. Bobek, Comparative Reasoning in European Supreme Courts, Oxford, 2013; J.H. Gerards, J.W.A. Fleuren (eds.), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case Law: A Comparative Analysis, Antwerp, 2014. 3 See e.g. R. Fenntiman, Foreign Law in English Courts, Oxford, 1998; G. Alpa, Il Giudice e l’uso delle sentenze straniere. Modalità e tecniche della comparazione giuridica, Milan, 2006; F. Melleray, L’argument de droit comparé en droit administratif français, Bruxelles, 2007; L. Pegoraro, La Corte costituzionale italiana e il diritto comparato: un’analisi comparatistica, Bologna, 2007; R. Badinter et al., Le dialogue des juges: Mélanges á l’honneur du président Bruno Genevois, Paris, 2009 ; U. Jaremba, National Judges as EU Law Judges : The Polish Civil Law System, Leiden, 2013; H. Tyrrell, Human Rights un the UK and the Influence of Foreign Jurisprudence, Oxford, 2018. 4 Such as C.R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective, Chicago, Ill., 1998; H. Senden, Interpretation of Fundamental Rights in a Multilevel System, Antwerp, 2011; A. Iriye, P- Goedde, W.I. Hitchcock (Eds.), The Human Rights Revolution : An International History, New York, N.Y., 2012; E. Ferrer Mac-Gregor, A. Herrera García (Eds.), Diálogo jurisprudencial en derechos humanos entre tribunales constitucionales y cortes internacionales, México, 2013; C. Nash Rojas, F. Zuñiga Urbina, A. Álvez Marin (Eds.), Diálogo judicial multinivel y principios interpretativos favor personae y de proporcionalidad, Santiago de Chile, 2013.

Introduction

3

millennium and in the first few years of the new century. This may appear to be a simplistic interpretation; however, it cannot be denied that the references made in Lawrence v. Texas and Roper v. Simons5 provoked a heated scholarly debate concerning constitutional interpretation not only in the United States, but throughout the English-speaking world and beyond. The constitutional case law of South Africa, Canada and Israel had already been studied and brought to a wider audience since the mid 1990s; however, scholarly debate was quite limited. It was only when the US Supreme Court stepped in that this topic – which had until then been ignored by most commentators – became of worldwide interest. However, while this issue had been considered from an eminently comparative perspective in most Western countries, in the United States it had long been addressed within the context of domestic constitutional law, thereby revitalising a confrontation of ideologies that dates back to the Warren Court. Nevertheless, there is no doubt that the comparative trend was the result of a shift in the case law of the US Supreme Court that began in 1997, although one could argue that the timing was due to factors related to the wider global context. These factors do not concern the generic dynamics of social interaction, the transformation of the way human society is organised, secular cycles of development, the projection of Western modernity onto the entire planet or the reconfiguration of power within a planetary dimension – to recall just some of the meanings that have been given to the term globalisation within political and socio-economic literature6 – but rather the nature of constitutional law and the distinguishing features of constitutional interpretation in a globalised world. Today it is taken for granted (at least in Europe) that constitutional law is to be considered an “open composition” of fundamental principles, the content of which is dynamically determined through the ceaseless balancing of values, in particular in the field of rights. In other words, an essential core of values is defined through reciprocal adaptation and constant determination of the 5 See the report by G.F. Ferrari contained herein. 6 See C. Starck, Constitutionalism, Universalism and Democracy – a comparative analysis, Baden – Baden, 1999; D. Held, A. McGrew, The Great Globalization Debate: An Introduction, Cambridge, 2000; J.E. Stiglitz, Globalization and Its Discontents, New York, N.Y. – London, 2002; Id. Making Globalization Work, New York, N.Y., 2006; D. Held, A. McGrew, Globalization/Antiglobalization, Beyond the Great Divide, Cambridge, 2007; Globalization and its Discontents Revisited: Anti-­globalization in the Era of Trump, New York, N.Y. – London, 2017 ; A.-M- Slaughter, A New World Order, Oxford, 2017; P. Grossi, Globalizzazione, diritto, scienza giuridica, F.it., 2002, v, 152 ff.; E. Voeten, Borrowing and nonborrowing among international courts, in The journal of legal studies, 39, 2, 547–576, Chicago, 2010; P.S. Berman, The evolution of Global Legal Pluralism, in R. Cotterell, M. Del Man (Eds.), Authority in transnational legal theory: theorising across disciplines, London, 2016; J. Husa, Global constitutionalism. Some critical remarks, 47 Hong Kong L. J 73, 2017 and Id. Law and Globalisation, London, 2018.

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respective limits. Constitutional Courts lie at the heart of this dialectical process, which involves the whole of society at a discursive level in a sort of collective effort.7 Furthermore, it is a foregone conclusion (again at least in Europe) that constitutional interpretation cannot result from formalistic parameters based on a rigidly normativist approach or on dogmatically closed logical processes that lack evaluative criteria. On the contrary, it should enhance the historical element, i.e. not simply the choices made by those that originally exercised imperative power but the open confrontation between various opinions concerning the actuality, along with the evaluation of alternative solutions and their composition. All this opens up considerable space for the use of the comparative method in making specific reference to the historical character of legal systems. This approach is no longer restricted to the dimension of political institutions, i.e. it does not search for static ontologies, but rather looks for a fluid equilibrium that is kept under constant review. On the one hand, the application of the comparative approach to constitutional case law allows judges to avoid voluntarist subjectivism; on the other hand, it ensures that they maintain an elevated critical capacity with regard to the evolution of the legal system in question, without reducing the evaluation effect to a new dogmatism, consisting in a kind of supra-state axiological system. This ends up favouring the dialectic of pluralism (of ideas and implementing formulas), whilst also demonstrating the limits of closed and abstract evaluative orders, which are prisoners to their own originalism or moral rigidity and detached from the real world. 7 See e.g., in the enormous literature about the so-called neo-constitutionalism, J. Habermas, Die Einbeziehung des Anderen, Frankfürt a. M., 1996 and Faktizität und Geltung. Beiträge sur Diskurstheorie des Rechts und des demokratischen Rechtsstaat, Frankfürt a. M., 1992; R. Alexy, Theorie der Grundrechte, Frankfurt a. M., 1986; R. Dahl, On Democracy, Yale, Conn., 1996; S. Pozzolo, Neocostituzionalismo e positivismo giuridico, Torino, 2001; G. Zagrebelsky, Diritto per valori, principi o regole (a proposito della dottrina dei principi di R. Dworkin), Quad. fior. st. pens. giur., 2002, 888 ff.; T. Mazzarrese (Ed.), Neocostituzionalismo e tutela (sovra)nazionale dei diritti fondamentali, Turin, 2002; A.A. Cervati, A proposito di metodi valutativi nello studio del diritto costituzionale, Dir. pubbl., 2005, 707 ff., as well as P. Häberle, Stato costituzionale, Enc.giur., xxx, 2000; P. Comanducci, Constitución y teoría del derecho, México, 2007; A. Hurrell, On Global Order. Power, Values, and the Constitution of International Society, Oxford, 2007; G.Pino, Principi, ponderazione, e la separazione di diritto e morale. Sul neocostituzionalismo e i suoi critici, Giur. Cost., 2011, 965 ff, G. Bongiovanni, Neocostituzionalismo, Enc. Dir., Annali, iii, 2017. In the American scholarship, several authors have underlined the importance of the protection of rights in the birth and growth of global constitutionalism: see e.g. S. Choudry, Globalisation in Search of Justification: Towards a Theory of of Comparative Constitutional Interpretation, 74 Ind. L. J. 819 (1999); C. McCrudden, A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights, 20 Oxford J. Legal Stud. 499 (2000); D.S. Law, M. Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 Cal. L. Rev. 1163 (2011).

Introduction

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As has been forcefully argued by some scholars, it is also true that comparative law is potentially subversive8 of traditional constitutional orders because it contributes to upending the system introduced after the Peace of Westphalia through a jurisdictional approach. However, comparative law is the keystone for overcoming the contradictions and vicious circles engendered by state ­constitutional systems without imposing uniform globalised visions. It is an interpretative instrument that is consubstantial with the discursive method. Moreover, it has a dimension that reaches well beyond state borders and is capable of creating interrelations among different constitutional heritages. With the end of the East-West division in 1989 and, more visibly, from the mid 1990s onwards, European constitutional scholarship and case law rapidly spread to the East. This was due to intrinsic merits, along with the potential attraction of the European Union from an economic and political standpoint, but also to the advanced constitutional protection of rights at domestic, supra-national and international level. At the same time, comparative law grew in importance in American scholarship. Up until then, the usa had always been confident and proud of its genetic and historical uniqueness and had remained quite introverted. In a certain sense, the United States had withdrawn into its own traditional opposing schools of thought, viewing itself as a model that respected the axiological heritage of the West and that had already been amply propagated. It is not by chance that the discovery by American culture of the ideological and institutional efficiency of European legal systems along with their success in a global world was made by the Supreme Court. The approach was obviously uncertain, as is typical when one discovers a phenomenon that is potentially capable of dissolving traditional categories even when it is incorporated into and assimilated by these categories. This did not involve a mere generic revival of interest in the comparative approach in judicial decision-making (richterliche Rechtsfindung), but rather a trend that started and grew within the context of constitutional case law, subsequently spreading to other areas. Constitutional interpretation was the first discipline to discover this, i.e. that constitutional law can be reflected in a certain number of other images, which are more recent and partially different, whilst nonetheless being similar and more dynamic when circulating horizontally and combined vertically. For the moment it senses the potential of the new horizon, although is daunted by the possible consequences of its use on a vast scale. It is aware of the possibility of overcoming formalistic positivism without descending into a natural law approach. It perceives the opportunity for discursive engagement on a global scale as an anchor for judicial d­ iscretion, 8 H. Mui-Watt, La function subversive du droit compare, Rev. int. dr. comp., 2000, 503 ff.

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which had been guarded closely for more than half a century by anti-majoritarian difficulty; at the same time, however, it is aware of the difficulties that result from the replacement of consolidated techniques of reasoning used rigorously in a domestic setting. Outside the usa, similar difficulties have been encountered, albeit on a much more limited scale, given the custom of dialectical exchange consolidated by decades of multi-level constitutionalism, thanks also to the special circumstances prevailing for instance in Switzerland, Canada, Yugoslavia and Israel, which have been traditionally open to comparative case law. It may appear to be paradoxical, but with the osmosis of constitutional interpretation that began at the turn of the millennium the United States has become the hegemonic nation that encounters the most difficulty in relation to the propagation of models in judicial decision-making. This has not occurred by chance: the model of constitutional rigidity and judicial review has evolved in a context of proud self-sufficiency, which has been capable of developing a constitutional law composed of a systematic series of doctrines that faithfully reflect a unique ideological heritage. With the end of democratic expansionism and the successful conclusion of what Samuel Huntington defined as the third wave of democratisation,9 the United States should have taken advantage of its benign hegemony. However, it has been besieged by hostile forces that threaten its security as well as being torn between a proud, messianic isolationism10 and full integration into the international community. In any case, judicial recourse to foreign law is an open question – particularly significant within the context of constitutional interpretation – which cannot yet be definitely resolved as its bidirectionality – in terms of the relationship between the United States and the rest of the world – depends on the way in which far more complex questions are framed. 2

The Why and How of The Resort to Foreign and International Material

The remote causes for the great diffusion of trans-judicial dialogue and cross fertilisation via judiciaries can be summarily identified. On the other hand, their dilution into a cluster of more proximate causes may potentially be easier, but is definitely more controversial. A general evolution of the global context and a contingent reason pertinent to the American legal system melt and break into fragments, whose common rationale becomes less clearly distinguishable. 9 10

S.P. Huntington, Democracy’s Third Wave, 2 J. of Democracy 13 (1991). A. Frachon, D.Vernet, L’Amérique messianique, Paris, 2004.

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The impressive growth in the number of legal systems and in written and entrenched constitutions over the last generation has favoured a wider and accelerated circulation of the same ideas, which some have regarded as an offspring of the American ideology, although they are perhaps largely consistent with European systems. Secondly, the qualitative transformation of constitutional law has drawn some values undeniably common to the West, first of all the principle of dignity, which has been extracted from the constitutional cultures and affinities of the respective political heritages.11 The diffusion of the core values of the western tradition12 has come in parallel with the outburst of rights, which have become increasingly codified within national and continental bills of rights all around the world, which vary in terms of length and exhaustiveness. The protection of rights has become a kind of leitmotiv of contemporary legal culture,13 if not a secular religion, which very few dare to reject or contradict.14 The techniques of balancing rights, according to the precepts of the Frankfurt School, and comparing different standards include the search for consensus within national and often also transnational public opinion. It is no ­coincidence that the controversy surrounding the citation of foreign law has gradually shifted from the area of private law to constitutional or public law, including administrative law.15 This shift implies a growing inclination by scholars and the courts to frame constitutional law within moral and social theories. 11

12 13

14

15

See e.g. M.J. Meyer, W.A. Parent (Eds.), The Constitution of Rights: Human Dignity and American Values, Ithaca, N.Y., 1992 and E.J. Eberle, Dignity and Liberty. Constitutional Visions in Germany and the United States, Westport Connecticut, 2002; J. Resnik, J. Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 Stan. L. Rev. 1921 (2003); S. Baer, Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism, 59 U. Toronto L. J. 417 (2009). B. Ackerman, The Rise of World Constitutionalism, 83 Va. L. Rev. 771 (1997) and S. Choudry, The Migration of Constitutional Ideas, Cambridge, 2006. See N. Luhmann, Grundrechte als Institution: Ein Beitrag zur politischen Soziologie, Berlin, 1965; G. Oestreich, Geschichte der Menschenrechte und Grundfreiheiten im Umriss, Berlin, 1978; N. Bobbio, L’età dei diritti, Turin, 1990; G. Peces-Barba Martinez, Curso de derechos fundamentales: Teoría general, Madrid, 1995; E. Denninger, Menschenrechte und Staatsaufgaben, Frankfurt/Main, 1996; L.M. Díez Picazo, Sistema de derechos fundamentales, Madrid, 2007. Among them S. Zizek, Against Human Rights, London, 2005 and J.-L. Harouel, Les droits de l’homme contre le people, Paris, 2016; less directly, S. Latouche, The Westernization of the World. Significance, Scope, and Limits of the Drive towards Global Uniformity, OxfordBoston, Mass., 1996. See e.g. M. Tushnet, The Possibilities of Constitutional Comparative Law, 108 Yale L. J. 1225 (1999); D. Fontana, Refined Comparativism in Constitutional Law, 49 u.c.l.a. L. Rev. 539 (2001).

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Thirdly, communication between judges of all nations has become an irreversible trend, and the network theory can hardly be confuted.16 Associations, meetings, seminars and reviews help to create and maintain links that were unknown or much weaker in the recent past. As a result, these three trends have triggered another evident tendency: the transfer of more powers to the judiciary, in various forms, increasing its capacity to guide, surrogate and replace the other powers.17 Finally, the accessibility of scholarly and jurisprudential sources has been enormously facilitated by the internet and other forms of remote communication. Databases including foreign materials have thus become much more readily available even in countries in which the spread of knowledge of other languages has traditionally been more limited, thus making the accurate application of other countries’ laws simpler and more likely. These and other second level causes of the dissemination of trans-judicial dialogue have been explored so much over the last twenty years as to create a sense of annoyance amongst both scholars and readers. However, the debate into the pros and cons of the usage by the courts of foreign materials has offered the most useful basis for all tentative classifications. 3

An Initial Classification

One of the various contributions dedicated to this topic by Basil Markesinis has proposed a classification of the way in which foreign law may be employed, which deserves critical attention and has been used as a starting point for discussion.18 According to Markesinis’ taxonomy, legal systems should be divided into three groups. The first group includes legal systems incorporating constitutional provisions which explicitly allow judges to look abroad for supplementary interpretations of domestic law, especially in certain sectors of constitutional law. Only 16 17

18

See e.g. S. Muller, S. Richards (Eds.), Highest Courts and Globalisation, cit.; K.I. Kersch, The New Legal Transnationalism, the Globalized Judiciary, and the Rule of Law, 4 Wash. U. Global Stud. L. Rev. 345 (2005). This phenomenon was first anxiously noticed in the United States in the ‘50s of the xx century when the Supreme Court pushed ahead the desegregation/integration process: see A. Bickel, The Least Dangerous Branch, New Haven, Conn., 1962. Criticism towards the activism of the Court during the Roosevelt years, however, was present since the end of the ‘30s and under different shapes has run through the whole century. In later years, in a comparative perspective, see the works cited in n. 55, infra. Judicial Recourse to Foreign Law, cit., 23 ff.

Introduction

9

South Africa can be assigned to this group, given that Section 35 (1) of the 1993 Constitution followed by Section 39 of the 1996 Constitution – p ­ rovisions which are not identical, although the differences have been ignored by the courts19 – not only allow but also encourage judges to make recourse not just to international human rights law, but also to foreign case law. The second group includes countries in which supreme court judges first hand down corrective decisions with which they interpret legal texts in the face of their clear literal wording, doing so because the law-maker has not yet intervened to amend the law and second due to pressure from public opinion: in these cases the ­legal transition is sped up by the judiciary in line with the prevalent sentiments within society. This group comprises only the Federal Republic of Germany in the wake of World War ii, in particular with regard to decisions concerning freedom of association and information as well as 1950s decisions on equality between men and women. These decisions were contra legem with regard to ordinary statute law, but could be deemed to be consistent with the implementation of the Constitution.20 The leading judgment within this approach is that delivered by the Federal Constitutional Court on 14 ­February 197421 which, interpreting the freiheilich-demokratische Grundordnung laid down by art. 21 (2) GG, regularly gives rise to corrections of written law. The third and final group of legal systems includes those that allow for more adventurous judicial interpretations,22 i.e. courts that do not simply adapt the legal text to changes in society, but actually push society in a direction that is considered to be controversial, i.e. towards more advanced positions of public opinion, thus transforming judges from mere bodies that apply (or “adapt”) the law (Normanwender to use the German expression)23 to law-creating bodies (normsetzende Instanz). Emblematic examples from this group are the Supreme Courts of the United States (especially with regard to the treatment of different races and the protection of First Amendment rights) and Israel (in particular with regard to locus standi and justiciability). In addition to encountering the inevitable difficulties associated with classifications that have a universalistic aim, Markesinis’ tripartite division has to deal with problems of logical method. In fact, despite having the merit of introducing extremely useful categories, the author does not address other issues associated with taxonomic parameterisation, which in fact can only be 19 20 21 22 23

Similar clauses have been inserted in the Malawi Constitution of 1994, art. 11.2. Cfr. B. Markesinis, op. ul. cit., 30 ff. BVerfGE 34, 269. Cfr. B. Markesinis, op. ul. cit., 40 ss. BverfGE 96, 394.

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dealt with by using extremely complex techniques and cannot be accounted for within a single omni-comprehensive system. First of all, only the first of the three groups has boundaries that are precisely delimited in terms of space and time: this is mainly due to the explicit provisions that constitutionalise the comparative and/or internationalist method, thus safeguarding it from ideological or methodological criticism. The fact that only one country can be included in this category demonstrates that this is an exceptional case, which is strictly limited to a sui generis constitutional transition, typical of a system where the clash of civilisations was avoided thanks to the immense maturity of South Africa and probably also to the attention paid by public opinion throughout the world to its constitutional evolution. In fact, the world community needed to be reassured regarding the composition of very different worldviews: one substantially colonial, and the other based on an advanced culture of integration. The international sanctions that preceded the constituent process are testimony to the fact that the events in South ­Africa were being closely followed, and in a certain sense this implied the acceptance of paradigms of international and/or foreign law. In other words, efforts were made to identify a reasonable compromise that could be acceptable not only to the domestic population but also to the international community as a whole. However, this historical uniqueness exalts the methodological principle, offering an example of an entirely monistic approach (although only with regard to fundamental rights and not to constitutional interpretation as a whole) as explicitly provided for in the South African Constitution. Markesinis’ second and third categories in actual fact differ from a quantitative standpoint. They constitute interpretative extremes along the same spectrum, i.e. the aggregation poles of the same phenomenon, which are difficult to describe from a synchronic standpoint. These two categories require the application of the “time factor” to which the British scholar continuously refers. As a consequence, the case law of the United States Supreme Court may fall under both categories. The correct interpretation is the one that, from a synchronic standpoint, takes account of the cycles of constitutional interpretation with particular regard to the due process clause, an oracular or metaphorical clause which determines the evolution of the constitutional order as well as of the legal system as a whole. When the due process clause is restricted into a procedural rule, the Supreme Court tends not to play a central role in determining the evolution of constitutional law. The Court positions itself within the perimeters of the majoritarian consensus, evoking the “anti-majoritarian difficulty” in order to placate the classic objections to judicial activism. On the contrary, during the periods in which the due process clause has a substantive

Introduction

11

dimension which exalts judicial discretion in terms of content as well as the capacity to define the axiological content and thereby to shape judicial creativity, the Court places itself at the forefront of public opinion and the legislature, taking on responsibility as a driving force; it sometimes even bears the burden of unpopularity, anticipating the evolving interpretation on the basis of domestic or international political considerations that society has not intuited or assimilated. Desegregation and racial integration in the fifties and sixties are emblematic of this attitude, whilst the case law on the rights of defendants and detainees in the sixties and seventies, abortion in the mid-seventies and more recently on the death penalty are just as indicative. The German case law also operates along the same plane from one end to the other of the liberal-democratic order, which can be filled with values derived from a social consensus that pre-empts legislative innovation or constitutional amendments. Bearing in mind the unique historical-institutional context characterised by a constitution “without a sovereign”, the Weimar period provides a good example of creative deviation from the founding consensus of the constitutional pact, given that the principle of equality was interpreted in such a way as to deprive an entire part of the Constitution itself of significance,24 although this was done without indicating new alternative equilibria within the material constitution. Markesinis and Fedtke’s classification is thus non-homogeneous because the first of the three categories is based on positive constitutional law, while the other two are founded only on the degree of judicial creativity within case law: therefore they depend on a high level of ideological content. Furthermore, these two categories need to be adjusted from a diachronic standpoint, which obviously means historicising them, although at the same time this attenuates the differences between the two, thus underlining their quantitative character. Most of all, however, this approach underestimates an essential element of the judicial recourse to foreign law: the distinction between cases in which the comparative method is used by Supreme supreme courts operating  within the ordinary judiciary or by constitutional courts, i.e. whether it is used in civil and criminal law decisions or in cases amenable, lato sensu, to constitutional review. In other words, it is constitutional law that reframes the issue and imposes specific taxonomies for the judicial recourse to foreign law. In fact, the terrain on which a new judicial sensibility has emerged and to which scholars have paid considerable attention is constitutional law.

24

See G.Volpe, Il costituzionalismo del novecento, Bari-Roma, Laterza, 2000, 78 ff.

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Constitutional interpretation differs profoundly from legislative interpretation, as is singularly clear to English judges.25 Techniques of interpretation concerning principles result in a balance being struck between values obtained through the search for the essential contents of rights and the definition of their limits. The normativist formalism found in the dynamism of the relationship between fact and norm is overcome and substituted by a diverse positivism: dynamic, historicised and discursive, perennially involving not only the courts, but society as a whole. These techniques are typical of constitutional law, or at least of the constitutional jurisprudence of the higher courts in various countries. Comparative law plays a primary role when these techniques are used, because it cuts across the territorial and ideological boundaries of the individual legal systems and puts a strain on dogmatised abstractions that tend to establish a hierarchical order between the various techniques of interpretation using a deductive method. Furthermore, comparative law adds dialectical content to metaphorical figures that would otherwise be merely left to judicial creativity. The end of the East-West divide and the advent of a globalised political order that is still in search of an equilibrium have opened up a Pandora’s box. It could be hypothesised that without these events, the recourse to foreign and/ or international law by ordinary civil and criminal courts would have developed in a much slower and more complicated fashion, not dissimilar to the one followed up until recently. 4

Some Other Classifications

Some other classificatory criteria have been proposed in recent years, while the literature concerning the use of foreign and international law has accumulated in quantity and increased in quality. Most papers have been written by American scholars working on U.S. Supreme Court cases, although they can be adapted, sometimes not without effort, to a more general perspective; a few, however, have been proposed by non-U.S. authors, with regard to a wider jurisprudential spectrum, including at least European courts. In the first group, some works simply review clusters of cases and classify them, reaching very general conclusions according to a kind of head-counting method;26 others take a more reasoned approach and arrive at more sophisticated results. Some 25 26

See Lord Bingham in Matthew v. The State [2004] 3 wlr 812, 543. According to the expression used by E.A. Young, Foreign Law and the Denominator Problem, 19 Harv. L. Rev. 148, 151, 153 (2005).

Introduction

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start from a strictly qualitative viewpoint, whilst others try to apply a rigorously quantitative methodology with the support of more or less reliable databases, although the counting operation itself is still far from easy and consequently the definition of groups of cases is somewhat fluid. A combination of the two approaches is often preferred. For instance, in 2005 Ernest A. Young27 distinguished between decisions where foreign law is cited in order “to prove or disprove certain factual propositions” (a practice that should be less controversial even in the American ­context) and cases where judges look abroad for normative guidance. Both categories should be amenable to the common intent of adding persuasive authority to the reasoning, based on domestic motives, although the courts are generally more inclined to consider the views of foreign courts on the issue at stake as a matter of fact, rather than to explore the pertinent reasoning.28 A head-counting method would be applied whenever the courts need to add support to a practice that they intend to save or against one that they want to suppress, thus “swelling the denominator” of a hypothetical fraction in order to demonstrate the existence of a higher rate of consensus than could be demonstrated by resorting only to domestic public opinion. The risk in this case would be to defer “to numbers, not reasons”. Again in 2005, Steven Calabresi and Stephanie Dotson Zimdahl29 describe four kinds of decisions, albeit from a perspective focused on the identification of thematic areas of frequency of the resort to foreign materials: those where courts need guidance in determining the measure of reason applicable to the specific case; those where an aid is needed in order to “mak[e] sense of an ambiguous phrase”; those where the conclusions have been reached independently but where a court searches for further “logical reinforcement”, above all in an effort to demonstrate that foreign or international practices can strengthen a choice made according to national law; those where a court wants “to provide empirical support for assertions that are made about the likely consequences of legal reforms that are being advocated”. Every type of case should feature precise contents; therefore specific areas of constitutional law were reported to be present preferably in each one of them. This classificatory framework seems to entail different methods, such as functionalism, 27 28 29

See the article cited supra, in n.26. Vicki C. Jackson, Narratives of Federalism: Of Continuities and Comparative Constitutional Experience, 51 Duke L. J. 223 (2001), had already emphasized the difference between the influence of foreign constitutional practices and constitutional reasoning. The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743, 884 (2005).

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instrumentalism, structuralism, considering the reasons for and the aims and effects of the citations at the same time. David Zaring30 ventured a somewhat different taxonomy in 2006. According to his proposal, a first group of citations must be identified in cases in which they are deployed in support of the interpretation of domestic law, whether constitutional or statute law. Some areas, such as admiralty law in common law countries,31 would favour the adoption of this kind of approach, with particular reference to the law of nations. All the other forms of citations of foreign materials would fall under the residual class comprised of both those that assist in interpreting foreign law, which is hardly objectionable in the field of private international law, and those that seek to interpret customary international or treaty law. Stephen Yeazell in 200932 isolates other groups: cases where the parties to a contract have explicitly provided the foreign law to be applied; cases where the choice of law does not depend on the intention of the parties but on the application of procedural rules or otherwise on domestic rules of private international law; cases where a statute gives the courts jurisdiction over the civil or criminal consequences of events occurring abroad or committed by aliens in breach of international law, the law of nations or similar rules;33 and finally cases where non-national sources are used in order to interpret clauses of the national constitution. Only this group is stated to be controversial. Among the various other American scholars who have considered this issue, Stephen A. Simon is probably the most sophisticated. Writing in 2013,34 at a time when the debate had in the meantime evolved on a global scale, this author attempted to articulate a more complex classificatory model, although still working only on the cases of the U.S. Supreme Court. The first two classes of cases include decisions in which foreign law is invoked in order to buttress or confirm the existence of a consensus at domestic level concerning a rule under discussion (“consensus confirmation”), or on the contrary in order to support and corroborate the absence of any domestic consensus (“dissensus confirmation”). A third category is comprised of opinions in which a court first 30 31 32 33 34

The Use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 J. of Empirical Legal Studies 297 (2006). This topic is treated also, e.g., by D. Farber, The Supreme Court, the Law of Nations, and Citations to Foreign Law, 95 Cal. L. Rev. 1335 (2007). When and How U.S. Courts Should Cite Foreign Law, 26 Const. Comm. 59 (2009). Such is the case, in the United States, respectively of the Foreign Sovereign Immunity Act, 28 u.s.c. §1605 (a)(3)(2006) and of the old Alien Tort Act, 28 u.s.c. §1350 (2006). The Supreme Court’s Use of Foreign Law in Constitutional Rights Cases, 1 J.L. & Cts. 279 (2013).

Introduction

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of all establishes the national consensus in favour of a principle and then adds the fact that it is widely supported within other jurisdictions (precisely as in the first group of cases), but ends up striking down a contested rule or practice that contradicts such a principle (“consensus enforcement”). The fourth and final category (“consensus identification”) includes cases where no clearly identifiable consensus exists within national public opinion, or at least no such consensus can be identified by the court, and the reference to foreign precedents or statutes is decisive in reaching the conclusion in question. The last class of cases is obviously the most controversial one, especially within legal and political cultures that are traditionally nationalist in character.35 This classification is founded on a functionalist approach, which considers first the role of the citation with regard to the consensus existing at domestic level and thereafter the relationship between the foreign materials referred to and the type of conclusion reached. In earlier years, long before the emergence of the interest of American authors, some European scholars had started to address the problem and to try to develop some forms of classification. A first example, leading aside 19th century authors, is Ulrich Drobnig,36 who was the first to distinguish between compulsory (notwendige Vergleichung) and optional (freiwillige Vergleichung) citations, the former belonging to the field of private international law. Writing in 1998, Pier Giuseppe Monateri and Alessandro Somma37 emphasised that the recourse to foreign law (lex alii loci) is a comparative law operation, implying not simply an isolated reference to norms, but an exploration of the institutional, economic and social context surrounding them. Such operations can be directed towards the harmonisation and unification of norms on an international scale (Rechtangleichung or Rechtsvereinheitlichung), or to supporting and confirming the interpretive aims of the court (komplementäre Verwendung) or even to provoking jurisprudential evolution. All of these possible uses are stated to share the common feature of a hermeneutical operation that strictly resembles arguing by analogy. In 2012, Mads Andenas and Duncan Fairgrieve38 formulated another classification, though for the resort to foreign law in general, rather than s­ pecifically 35 36 37 38

Simon identifies the first American case of this kind in Trop v. Dulles, 356 U.S. 86 (1958): see op. cit., 290. U. Drobnig, Die Nutzung der Rechtsvergleichung in der Deutschen Rechtsprechung, in 50 RabelZ 610 (1986). Alien in Rome. L’uso del diritto comparato come interpretazione analogica ex art. 12 preleggi, 1998 Foro it., Part v, col. 47. Intent on making mischief: seven ways of using comparative law, in P.G. Monateri, Methods of Comparative Law, Cheltenham, 2012, 25, 50.

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for trans-judicial communication based on its finalisation. The categories include: a. the use in support of a rule or an outcome, b. to provide a normative model when national law is undetermined and offers no interpretative solution, or offers more than one; c. to foresee the factual effects of a rule that is new to the domestic legal system; d. to review an assumption about the universal applicability of a rule (to confirm or to reverse it); e. to add support for overturning a precedent in domestic law; f. to help develop principles of domestic law; g. to solve problems associated with the application of international law or equivalent rules. This tentative typology is probably the most sophisticated ever, but still presents problems of overlapping classes, for instance between clusters a and e. Furthermore, it is likely that the adoption of a single angle in the approach to this topic, in this case the aim of the judicial recourse to foreign and international law or the result to be attained, may oversimplify a taxonomy, even more so when the level of analysis is raised to some higher degree, such as where the sorting reaches the level of the use of comparative law in general. The more abstract the classification, the more normative the models tend to be, while most from the comparative law community believe that the choice of methodology needs to be adapted to the specific issue and to the purposes of the research.39,40 5

A Different Proposal

Starting from these premises, one might attempt to envision some other classifications, given that the whirl of ideas and the flurry of tension provoked by the body of case law and scholarly literature remain lively. Different taxonomies 39

40

It is impossible here to enter into the details of the theory of method. About the choice of method, see e.g. M. Van Hoecke (Ed.), Epistemology and Methodology of Comparative Law, Oxford, 2004; O. Brand, Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies, 32 Brooklyn J. Int. L. 405 (2007); G. Samuel, Taking Methods Seriously (ii), 2 J. Comp. L. 210 (2007); E. Örükü, Methodology of Comparative Law, in J.M. Smiths (Ed.), Elgar Encyclopedia of Comparative Law, Cheltenham, 560 (2012). No mention is made in the text of the taxonomy proposed by K. Lenaerts and K. Gutman (The Comparative Law Method and the Court of Justice of the European Union. Interlocking Legal Orders Revisited, in M. Andenas, D. Fairgrieve (Eds.), Courts and Comparative Law, cit., 141, 158), including the possible categories of gap-filling function, help to interpretation through the laws of the Member States when EU la does not provide a solution, and compatibility review, when either the ecj looks for constitutional traditions of the Member States or verify the respect of the principles of procedural autonomy, equivalence or effectiveness. This classification fits only the peculiar case of European countries in the special relationship between national and EU laws.

Introduction

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can easily coexist, especially when construed in relation to different criteria, and even more so in times of rapid global transformation, when one single approach can hardly have an absolute value and runs the risk of becoming quickly obsolete.41 A pluralistic approach even offers opportunities for virtuous cognitive intersections.42 As regards the normative base for the use of international or foreign law in order to interpret the founding values of democratic constitutionalism, the ­explicit provisions contained in the constitution are unique in nature. The structural permeability of the constitutional system (i.e. the extroversion according to which the axiological element is predetermined by the framers of the constitution, although the dynamic definition in terms of living law may result from the recourse to external elements) is very unusual and in all likelihood related to unrepeatable historical events that take on relevance from another taxonomic standpoint. All of the other constitutional provisions43 that explicitly make reference not only to principles (sometimes placed in a list), but also to value systems that permeate the entire constitutional order and are indicated as parameters of interpretation for both constitutional or ordinary courts, cannot be put on a par with the institutionalised monistic clause contained in the South African Constitution.44 Nevertheless, it is necessary to consider the respective bills of rights and the position attributed to international law and, in particular, to human rights conventions. In any case, the axiological heritage underlying the discursive method is domestic, although it may be supplemented by regional human rights conventions and international agreements along with their related judicial instruments and case law acquis. The same taxonomic parameter can be used to determine a family of cases in which the courts are allowed to use the comparative method or in which they arrogate this function to themselves in order to fill gaps and/or due to the historical conformation of the system of legal sources. The case of Yugoslavia after World War ii is emblematic from this point of view: the introduction of a decentralised system of heterogeneous derivation obliged the Courts to search

41 42 43 44

See e.g. P.G. Monateri, ‘Everybody’s Talking’: The Future of Comparative Law, 21 Hast. Int. & Comp. L. Rev. 825 (1998). See J. Husa, The Method is Dead, Long Live the Methods. European Polynomia and Pluralist Methodology, 5 Legisprudence 249 (2011). Examples being Art. 20, German Const., Art. 1, Spanish Const. Or, with reference to more recent constitutions, Art. 2, Russian Const., Art. 9, Hungarian Const., Art. 9.3. Moldovan Const. and Art. 1, Ecuadorian Const. And, since 2011, in the Malawi one, art.11.2.

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for ways to supplement any applicable law that was incomplete or discontinuous due to the institutional events of each of the territorial entities involved.45 In descending order in terms of normative justification, we may cite those countries in which judicial recourse to comparative law was introduced at a certain point in time regardless of constitutional or legislative provisions. This may have occurred due to cultural reasons, openness to external influence or linguistic aptitude, and may be either explicit (as in Canada, Switzerland and Israel) or implicit. Another classification can be attempted on the basis of the ethiogenesis of the phenomenon. From this perspective, the following causations may be noted: marked pluralism and asymmetry (in Canada) or structural multilingualism (as in Switzerland); a constituent process of transition to democracy after a period of totalitarianism or an accelerated decolonisation process (South ­Africa); traditional monolithicism by forced internationalisation or at the end of a period of exceptionalism, as in the United States. A taxonomy based on the object of judicial comparison, i.e. on the nature of the foreign law that is used, cannot be founded just on the case law formant, but also on the legislative and the academic formants. The jurisprudential formant is the one that brings about the fall of national borders, discursive dialectic and the creation of communication circuits within the constitutional state according to the legal theory of the “law in action”, under which dogmatics are dissolved into the search for a positivism of a different nature. This formant is thus the most suitable for constitutional interpretation, as well as for receptive cross fertilisation and hybridisation in general. The legislative formant is closer to the traditional comparative approach, especially in the field of civil and criminal law. The third is more refined and has a supplementary character with respect to the other two formants, being present in countries where the comparative approach is most advanced and mature, such as Canada, ­Israel and, limited almost exclusively to scholarly writings in English, the United Kingdom. In terms of judicial recourse, this method of classification must consider the possible equalisation between foreign law and international law. Despite their greatly differing legal nature and effects, they are often assimilated due to the multi-level integration between the two on some continents. Finally, another element of importance is whether the diachronic or synchronic method is used. If one uses the diachronic method, then either one makes occasional citations or one carries out a systematic reconstruction, while the synchronic 45

See e.g. G.A. Benacchio, La ex-Jugoslavia, in G.F. Ferrari, A. Gambaro, Corti nazionali e comparazione giuridica, 41 ff., cit.

Introduction

19

method is easier to implement and allows for more linear evaluations of homologous elements; however, one should not underestimate the fact that common law judges prefer the diachronic method. Depending on the content of the foreign law referred to by the courts, one may distinguish between the practice of citing only one country as an example and referring to a number of different legal systems. In the former scenario, unless there are a historical links between the “borrower” and the “lender” or ­peculiar circumstances concerning the institute under scrutiny, this means that – as a comparatist – the court intends to exercise significant discretion when deciding the case. This is the technique preferred by the European Court of Justice, a master in taking from its “storeroom of ideas” those that it considers to be most convenient in order to legitimate the reasoning it has used to decide the case.46 The second technique is used much less frequently and only when a turning point occurs in the case law with regard to particularly important topics or when there is a genuine desire to carry out thorough normative and axiological research. This method is more scientific and therefore, if the results are not unanimously conclusive, the court that has made the comparison risks being proved wrong. Another element that must be taken into consideration is the weight and effectiveness of the citations. These may range from erudite citations of provisions that constitute an end in themselves and have no impact on the reasoning of the court through citations obiter dicta, which only have relevance with regard to the reasons for the decision, to citations that constitute an integral part of the motivation and are thus a source of inspiration for the judge who authored the decision. In all of these cases, foreign law is a tool, not a master, i.e. it does not have binding effect. The exact opposite is of course binding precedent, which is only possible within the context of legal systems that have a common tradition and where there is a link between the respective supreme courts. As regards the effects of the judicial recourse to foreign law, the ideological significance is ambiguous and its functionalisation is neutral: in some cases it may serve as a way of confirming the constitutionality of a contested provision by reinforcing an already known argument, especially when traditional categories come under strain and there is a need to find supportive elements that are different from the usual ones; in other cases, recourse to innovative foreign law may be used in order to radically change consolidated positions or for the purpose of overruling. 46

Cfr. G.F. Ferrari, I diritti tra costituzionalismi statali e discipline transnazionali, in Id. (ed.), I diritti fondamentali dopo la carta di Nizza, Milan, 2002, especially 86 ff.

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Considering the generally neutral nature of the recourse to foreign law, it may be asserted that this is done either in order to legitimise in advance a constitutional order that is statu nascenti or quite recent (as in South Africa) or in order to redefine constitutional interpretation with regard to consolidated methods and results. 6

Some Methodological Considerations

This research covers twenty-seven legal systems individually, while several others are treated in groups, as they belong to homogeneous geo-political areas either due to the relative backwardness of comparative studies regarding these countries or due to marked similarities in their legal culture. Consequently, the three Nordic countries have been studied together by Francesco Duranti; Southeast Asia by Serena Baldin and Latin America by Francesca Polacchini. Perhaps at least some of the countries within these clusters would have deserved more detailed consideration. However, the number of legal systems reviewed is the highest ever, compared to all previous research. We have tried to extend the field of scientific observation to the widest possible number of countries, rather than to build up a new sample. Obviously, progress in knowledge depends on gradual steps,47 especially when an at least partially inductive method has to be applied, in order to move from a set of facts that is as broad as possible to formulate interpretative assumptions destined to a not too precarious life. The selection also had to take account of how long constitutional courts have existed along with the continuity within their history, the rooting of the democratic context and the courts’ capacity to engage with democracy. Also significant are other environmental factors of a political nature that are hard to define in institutional terms, but that render the official sources not quite reliable and create some distance, if not a complete juxtaposition, between proclamations and operational rules.48 These considerations have resulted in the exclusion of the entire African continent, with the exception of South Africa, as well as Russia. On the contrary, we have decided not to disregard legal systems, such as those of France and Italy, that lack a longstanding tradition of trans-judicial dialogue, both because they are prominent examples of civil law jurisdictions and also due to the possibility that their 47 48

This is an obvious remark at least since the work of K.R. Popper, Logik der Forschung, Wien, 1935, Engl. trans. The Logic of Scientific Discovery, London, 1968. The so-called decomposition of the legal formants, about which see R. Sacco, Legal Formant: A Dynamic Approach to Comparative Law, 39 Am. J. Comp. L. 1 ff; 334 ff. (1991).

Introduction

21

t­ ransition from virtually no foreign citations to some degree of openness towards this phenomenon might reveal some interesting developments. The national reports have been distributed in the index following, whenever possible, the main criterion of the family of legal system. The authors and the editor were obviously aware of the decline of all classical theories in this field49 resulting from the contamination of models and the emergence of new forms of pluralism due to the process of globalisation.50 However, we take the view that, if the national reports have stressed new trends within the evolution of the approach towards judicial communications which could be capable of causing significant alterations in the most popular family models or even of causing a legal system shift from a group to another, it would be better to draw such conclusions from positive data and leave the matter with future systemologists, rather than pre-empting them in the construction of the index. Some elements, in fact, allow it to be inferred that there is indeed a global trend towards more frequent and significant trans-judicial communication; however, its influence is far from sufficient to suggest the accomplishment of important fall-outs of systemological relevance. The second problem concerned the definition of the material scope of the citations. Foreign jurisprudence was the minimum target. International law was the most controversial topic: on the one hand, treaties and international customary law have apparently very little in common with foreign precedents; furthermore, most national constitutions do not include any provisions on foreign precedents or statutes, which are left to the discretion of domestic judges, absent any legal limitations; on the other hand, in many if not all legal systems, specific binding constitutional provisions regulate the validity of international law within the domestic courts; moreover, conventional and customary sources often enjoy different statuses. There were therefore good reasons for separating the two fields or for excluding the latter from our research. However, as a matter of fact, in some important legal systems the two objects of judicial consideration are treated together in more or less the same form. In the United States, that is in the legal system where the topic of citations has (re)gained attention and returned to the fore after remaining dormant for years, the two objects of judicial citation have normally been treated together, 49

50

See e.g. M. Reimann, The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century, 50 A. J. of Comp. L. 671 (2002); J. Husa, Legal Families and Research in Comparative Law, 1 Glob. Jur. 1535 (2001) and Classification of Legal Families Today: Is It Time for a Memorial Hymn?, 56 Rev. int. Dr. Comp. 11 (2004); P. Glenn, Legal Traditions of the World: Sustainable Diversity, Oxford, 4th ed., 2011. See E. Örükü, A General View of ‘Legal Families’ and of ‘Mixing Systems?, in E. Örükü, D. Nelken (Eds.), Comparative Law: A Handbook, Oxford – Portland, Ore., 2007, 169.

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and have been fused together into a sort of common doctrinal discourse.51 Some scholars have had to take pains to explain the difference between the two, and some classifications of the types of decision have been forged simply in order to introduce a clear distinction between them.52 Furthermore, the cause of the growing significance of the two kinds of citation might be the same: the collapse of traditional systems of legal sources, classically organised according to the principles of hierarchy and competence, opens up a legal system as a whole to external forces.53 To sum up, the editor and authors have agreed to leave it to each national report whether to consider both kinds of citation together or to exclude references to international law, depending upon the approach adopted in the individual legal systems. On the other hand, it was also decided to leave outside the scope of the research, or at least in the background, the relationship between domestic courts and continental courts, such as the European Court of justice and the European Court of Human Rights or the Interamerican Court (the first being super-national and the last two international). The reason is evident: EU law is part of domestic law, including both constitutional and ordinary law. It prevails over national law and streamlines it or even substitutes a considerable part of it, while human rights courts also prevail over domestic courts, shaping their case law; the result is that citations may be frequent, although they operate within a shared legal context, where the two courts concur in creating a somewhat shared output. The law which these courts produce definitely contributes to transjudicial communication and judicial dialogue, although it cannot in any way be defined as “foreign”. Another choice that had to be made as a preliminarily matter concerned the possible inclusion in the national reports of jurisprudence of so-called implicit citations (so-called ‘hidden comparative law’).54 This category includes many

51

52 53 54

See D. Kennedy, New Approaches to Comparative Law: Comparativism and International Governance, 2 Utah L. Rev. 545 (1997); M. Minow, The Controversial Status of International and Comparative Law in the United States, 52 Harv. Int. L. Rev. 1 (2010); J. Waldron, “Partly Laws Common to All Mankind”. Foreign Law in American Courts, New Haven, Conn. – ­London, 2012, including former writings, whose main argument is the (re)emergence of a new jus gentium, created by the convergence of foreign statutes, foreign constitutional provisions and foreign precedents on a global scale. See supra, par. 4. See also M. Andenas, D. Fairgrieve, Intent on making mischief: seven ways of using comparative law, cit., 25, 28, who speak of “breakdown of the closed and hierarchical national system of legal authority”. G. Samuel, Comparative Law and the Courts. What Counts as Comparative Law?, in M. ­Andenas, D. Fairgrieve, Courts and Comparative Law, cit., 54, 56.

Introduction

23

forms of reciprocal influence, which are amenable to judicial networks,55 such as the availability of technological equipment and databases which make it much easier to access judicial and scholarly information than in the past, the internationalisation of legal education, individual interrelationships, and many other cultural elements which are far from easy for a legal scholar to detect, or which at least imply research methods that belong to sociology or other scientific disciplines. Some scholars56 have tried to construe a theoretical framework that covers implicit comparative culture by interviewing selected judges, meeting with judicial assistants, or even considering the private lives of judges57 and connections between their judicial output and for instance their literary or scholarly activity. This technique requires the application of investigative devices that are more familiar to sociologists and historians than to lawyers. The very identification of representative samples throws up many problems, and the risk of producing misunderstandings, distortions or truisms is very high. Therefore, the possibility of pursuing this path has been dropped without any regrets. However, in some legal systems where it is customary for constitutional or supreme court judges to give lectures, publish academic articles or give interviews to the media, such materials have been taken in consideration as gauges of attitudes, which may or may not be confirmed by their judicial opinions: the national reports for the United States, Israel and to a lesser extent the United Kingdom bear witness to this approach. The next methodological problem concerned the choice between a purely qualitative analysis and the more or less systematic recourse to data. It is well known that the dualism between the two terms has been cast aside in comparative law, if not in social sciences overall.58 Yet it was necessary to decide what importance should be given to the use of existing data or to the search for and collection of other data not available at present. The main difficulty in making 55

56 57 58

The literature on this topic is, again, too wide to be summarized: see e.g. M. Tushnet, Taking the Constitution away from the Court, Princeton, N.J., 1999, R.H. Bork, Coercing Virtue: The Worldwide Role of Judges, Toronto, 2002; A.M. Slaughter, A Global Community of Courts, 44 Harv. Int. L. J. 191 (2003); R. Hirschl, Towards Juristocracy. The Origins and Consequences of the New Constitutionalism, Cambridge, Mass. – London, 2004. See lately E. Mak, Judicial Decision-Making in a Globalized World. A Comparative Analysis of the Changing Practice of Western Highest Courts, Oxford – Portland, Ore., 2013. The best effort from this viewpoint is P. Darbyshire, Sitting in Judgment: The Working Lives of Judges, Oxford, 2011. See e.g. C.C. Ragin, The Comparative Method: Moving beyond Qualitative and Quantitative Strategies, Berkeley, Cal., 1987. Quantitative methods, however, tend to be systematically used when the investigation concerns the working of the courts at large: see e.g. C. Kern, Justice between Simplification and Formalism, Tübingen, 2007. Mathias Sims speaks of ‘numerical comparative law’ (Comparative Law, Cambridge, 2014, 146 ff.).

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this decision is that the various databases existing in many of the countries under investigation often do not overlap. The U.S. situation is emblematic: the abundance of data is impressive, although authors such as Young, Calabresi and Zimdhal, Zaring, Yeazell, Simon (reviewed in Part 4), Levasseur and others mentioned in the national report take different starting points, select different data and reach different conclusions. Many other legal systems do not offer the same richness of quantitative sources. In any case, collection techniques vary from country to country. Even the selection of the cases that may be classified as belonging to the area of constitutional law is problematic, especially where, given the absence of a constitutional court, the case law of a supreme court has to be examined in order to look for a proper selection of decisions. This difficulty is often mentioned by scholars of the various legal systems. The final decision was then that reasonable use should be made of the available data according to their probable authority, irrespective of whether publicly available or in the literature, interpreting them according to uniform criteria and without trying to device new frameworks. Therefore, statistics have been used, subject to some methodological challenges, although they have not in any case been taken to be strictly binding or to prevail over demonstrated qualitative assumptions. In sum, the method has been somewhat pragmatic, also due to the large number of systems reviewed and the consequent impossibility of a strictly uniform approach. The last question concerned the respective weight of the synchronic and diachronic methods. The obvious main target for the whole research was to illustrate the different approaches to the judicial circulation of foreign materials at the present point in time, highlighting facts normally surrounded by a fog of generic statements. However, the information had to cover a reasonable period of time, because nowadays the state of public law all over the world is so fluid that it is hard to follow and the judicial use of foreign case law and legislation is often a mark of its evolution. In Belgium, for instance, the very role of the Constitutional Court has been changing over the last twenty-five years, partly due to its self-determination and partly to formal constitutional amendment: this evolution has naturally influenced the use of foreign materials. In the United States, by contrast, the constitutional framework has never been altered, although it is important to know, for instance, that in the Warren years citations of foreign precedents were more numerous than ever,59 and that their number decreased over the following decades, although the climax of judicial debate was reached during the Rehnquist Court. A certain measure 59

See S.A. Simon, The Supreme Court Use of Foreign Law in Constitutional Rights Cases, cit., 286–287.

Introduction

25

of historical perspective was thus due. The importance of the historical dimension in the development of social sciences does not need to be recalled. From Herder60 to Weber,61 from Popper62 to Kuhn,63 there has been a general consensus regarding its relevance for the progress of scientific knowledge, not only in the nomothetic disciplines, but also in the idiographic ones, or at least in those of the latter that have more systematic ambitions. The authors therefore, have tried to take account of and to provide information concerning not only the formal divides between cycles or phases within the life of the legal system under review (such as the amendment of a constitution, the approval of a bill of rights, the ratification of an international convention or the entry into force of a statute that significantly alters the role of a supreme court or constitutional court), but also shifts from one period to another within the jurisprudential history of a court. 60 61 62 63

J.G. Herder, Abhandlung über den Ursprung der Sprache, Berlin, 1772, with the famous pages about history, language and comparison, now in Sprachphilosophie, Hamburg, 1960. M. Weber, Gesammelte Aufsätze zur Religionssoziologie, Tübingen, 1920, underlying the rationality of science in the Western historical perspective. K.Popper, for instance Logik der Forschung, cit., 20 ff. of the Eng. ed., describing the importance of the historical evolutionary experience in the progress of science. T. Kuhn, The structure of Scientific Revolutions, Chicago, Ill., 2nd ed., 1970, about the succession of paradigms in the history of knowledge.

Part 1 Common Law Countries

∵

Splendid Isolation or Open to the World? The Use of Foreign Law by the UK Supreme Court Justin O. Frosini If […] a decision is given in this country which offends one’s basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most of the jurisdictions, whatever their legal tradition, this must prompt anxious review of the decision in question. In a shrinking world […] there must be some virtue in uniformity of outcome whatever the diversity of approach in reaching that outcome. t.h. bingham, Baron Bingham of Cornhill, Fairchild v. Glenhaven Funeral Services Ltd. (2003)

∵ 1

Premise: A Legally-Shrinking World?

The very nature of common law systems has made them open to the judicial exchange of legal ideas when this is related to the further development of the common law and cross-citations between common law courts in different jurisdictions are quite frequent. At the same time, there has always been a clear distinction between national law and international law with most common law countries considered dualist legal systems rather than monist although there are an increasing number of scholars that claim that in many common systems there is a phenomenon of “creeping monism” taking place.1 However we want to define this exchange of legal ideas between courts of different

1 M. Waters, Creeping Monism: The Judicial Trend Toward Interpretive Incorporation Of Human Rights Treaties, in Columbia Law Review, Vol. 107, 2007, 628–705. In this article Waters argues that recent U.S. Supreme Court decisions should be viewed as part of a transnational trend among common law courts-a trend that she calls creeping monism. Common law judges are increasingly abandoning their traditional dualist orientation to treaties and are beginning to utilise human rights treaties despite the absence of implementing legislation giving domestic legal effect to the treaties.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_003

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jurisdictions there is no doubt that the use of foreign law by the courts plays a central role and, indeed, has been the object of numerous studies over the last twenty or so years. This chapter is devoted to the use of foreign law by the United Kingdom Supreme Court and with the term “foreign law” one is referring very specifically to judgments of foreign courts, foreign statute law and legal scholarship. Use of the European Convention on Human Rights (echr), EU law and other international legal materials other than the echr and EU law are not taken into consideration. The chapter is divided into three sections. The first ­section builds upon existing legal scholarship devoted to this topic, while the second section consists of a qualitative and quantitative analysis of the case law handed down by the UK Supreme Court between January 1, 2016 and April 11, 2017 (with an annex at the end of the chapter). The chapter will end with some brief concluding remarks. 2

Existing Scholarship the Use of Foreign Law by the UK Supreme Court

While there is copious literature on the general topic of the use of foreign law by Constitutional and Supreme Courts2 studies devoted specifically to the United Kingdom are quite limited. Particularly noteworthy is the 2006 study carried out by the Italian legal scholar Alessandro Torre in a book co-edited by the same editor of this book Giuseppe Franco Ferrari.3 The scholar from Bari Uni­versity does not indicate a specific sample of judgments that he has analysed, but in his chapter he does mention some interesting cases. For example he cites Lady Justice Butler-Sloss in the case Derbyshire County Council v. Times Newspaper Ltd (1992) where she states that British judges can refer to foreign or international law: where the law is clear and unambiguous, either stared as the Commons law or enacted by Parliament, recourse to article 10 (ehcr) is unnecessary and inappropriate.4

2 See supra footnote 9. 3 See A. Torre, Regno Unito: giustizia costituzionale e comparazione in un paese “senza costituzione”, in G.F. Ferrari, A. Gambaro (a cura di), op. cit., pp. 167ff. 4 See A. Torre, Regno Unito: giustizia costituzionale e comparazione in un paese “senza costituzione”, in G.F. Ferrari, A. Gambaro (a cura di), op. cit., pp. 167ff.

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Another judgment recalled by Torre is Fairchild v. Glenhaven Funeral Services Ltd. (2003) where Law Bingham famously stated: If, however, a decision is given in this country which offends one’s basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most other jurisdictions, whatever their legal tradition, this must prompt anxious review of the decision in question. In a shrinking world … there must be some virtue in uniformity of outcome whatever the diversity of approach in reaching that outcome. Torre also mentions JD (FC) v. East Berkshire Community nhs Trust and others where Lord Bingham quoted principles stemming from German and French law in a case concerning liability of tort.5 In Torre opinion such examples show that the use of foreign law is more common in cases concerning private law, however his chapter concludes by quoting a case concerning strictly constitutional matters where reference to foreign law was made i.e. A (FC) v. Secretary of State for the Home Department (2004) where, in order to determine whether a limitation of fundamental freedoms is arbitrary or excessive, some comparisons are made with the case law of the Supreme Court of Canada.6 Continuing with the examination of the existing literature on the use of foreign law by British courts one should mention the study carried out in 2011– 2012 by the now Chair of Jurisprudence at the University of Ultrecht Elaine Mak.7 In particular the Dutch jurist compares the UK Supreme Court and the Supreme Court of the Netherlands (Hoge Raad der Nederlanden) to study the development of the use of foreign law and explain approaches used in different cases. Given the focus of this chapter the following summary of Mak’s research will concentrate on the development of the use of foreign law in the UK Supreme Court. 5 A. Torre, Regno Unito: giustizia costituzionale e comparazione in un paese “senza costituzione”, in G.F. Ferrari, A. Gambaro (a cura di), op. cit., pp. 167ff. 6 A. Torre, Regno Unito: giustizia costituzionale e comparazione in un paese “senza costituzione”, in G.F. Ferrari, A. Gambaro (a cura di), op. cit., pp. 167ff. 7 This research is to be found in two papers: E. Mak, Why Do Dutch and UK Judges Cite Foreign Law?, in Cambridge Law Journal, 70(2), July 2011, pp. 420–450 and Id. Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the Development of Judicial Practices, in Ultrecht Law Review, Volume 8, Issue 2 (May) 2012, pp. 20–44. Mak’s study was facilitated by the Hague Institute for the Internationalisation of Law (HiiL), in its capacity as partner in a Consortium with Utrecht University, University of Cambridge and University of Bologna, through the sponsoring of the research project titled ‘The Changing Role of Highest Courts in an Internationalising World’.

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Mak argues that the British and Dutch highest courts are comparable case studies8 because they share a common background as Western liberal democracies. Both courts also face various challenges and changes that are influenced by the impact of globalisation. Mak’s research is divided into two parts. The first part focuses on four variables that influence the judicial system. In Mak’s opinion they are constitutional, institutional, organisational, and personal variables. In the second part of her research, Mak compares the use of these variables in the Supreme Court for the UK and the Supreme Court of the Netherlands. The study presented in this article is based on legal scholarly articles about the judicial decision-making process and liberal-democratic normative frameworks. The methods utilised also include interviews with seven of the eleven judges from the UK Supreme Court and one retired Law Lord, and thirteen of the 41 judges from the three Chambers of the Supreme Court of the Netherlands. It also includes five Advocates General. The aim of these interviews was to understand their perspectives regarding the use of foreign law and the impact on the deliberation of cases in these courts. Cases and public speeches were also used for this study. The first variable analysed in the article is the constitution. In Western liberal democracies, the constitution is responsible for defining the rules and laws that govern the judicial process. According to the author, judicial functions: include the specific legal system’s conditional culture, the relation between the national and the transnational legal orders, and the scope of the judicial power regarding constitutional interpretation9 Constitutions may have different degrees of flexibility related to what extent they allow the use or the integration of foreign law in the judicial process. In the UK, Parliament allows the judicial system to declare an incompatibility to the Human Rights Act of 1998 (hra) when judging a case containing violations of the hra. Even though Parliament can revoke this power granted to the judicial system in the UK, the hra also pressures Parliament to follow its fundamentals. This pressure shows the influence that the hra has on Britain’s lawmaker. 8 On the importance of the case study method see the seminal work of one of the world’s leading experts of social science methodology Bent Flyvbjerg, Five Misunderstandings About Case-Study Research, in Qualitative Inquiry, vol. 12, no. 2, April 2006, pp. 219–245. 9 E. Mak, Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands, cit., p. 22.

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Institutional variables encompass branches of government, national courts, international or supranational courts, public, and scholarly studies, that influence and interact with the judicial system in the development of its practices. The Supreme Court of the UK, created in 2009 to replace the Appellate Committee of the House of Lords, separated the powers in the British legal system. Its jurisdiction is responsible for the last appeal related to criminal cases in England, Wales, and Northern Ireland as well as civil cases in the UK. Changes at the institutional level have been made by the adoption of the hra 1998. Academic studies and speeches by judges have also influenced changes in the court. Organisational variables refer to the way the courts are organised and what types of methods they use in the decision-making process. The UK Supreme Court has eleven Supreme Court Judges. Normally, five judges participate in the judicial process, unless the President appoints seven to nine judges to avoid inconsistency in more complex cases. Compared to the Dutch system, British judges are normally not specialised, and are appointed according to their availability, special interest in cases, and other factors. Although cases are judged by several judges, one judge is responsible for writing the final report about the case. Other judges can also write a complementary report expressing their opinions about the case. Decisions and procedures are based on the Court’s Rules, Practice Directions, and discussion of foreign legal materials and academic studies. Personal variables have an important impact on the deliberation process. Judges may refer to foreign cases and foreign laws to aid decision-making processes in national courts according to their discretion as they have different perspectives and approaches regarding the role of foreign law into the case. They also have diverse professional experiences and legal training. According to Mak: changes in the individual approaches of judges take place through cognitive processes of personal reflection, informed by personal experience and participation in debate10 Awareness of the global context also impacts a judge’s decision to opt to use foreign law in the case. The presence of this personal variable generates debate about the acceptability of foreign law in the judgment of a case, especially

10

E. Mak, Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands, cit., p. 27.

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with regard to the legitimacy of arguments based on the constitution of that country. The analysis of the development of the UK Supreme Court regarding the use of foreign law demonstrates that the internationalisation of the law and judicial decision-making processes impacted constitutional, institutional, organisational, and personal approaches used in the decision-making process. For instance, comparative references have been used very often in the UK Supreme Court. Common law constitutions are often more open to the judicial exchange of legal ideas. Since the UK joined the European Union, judges, and previously Law Lords, have been dialoguing with the European Courts to improve the implementation of EC laws and interpretation of the echr through the hra. Judges have also presented concerns regarding the use of law of the echr to cases involving terrorism and human rights. The organisational approach has impacted both the research process and the use of foreign law in deliberations and judgments. In the UK, judges believe that studies on all legal materials, including foreign judgments and academic resources on foreign law, can be relevant when deciding a case. Cases used in deliberations and judgments are often from other Commonwealth legal systems, such as Australia, Canada, and New Zealand, and the US legal system. These courts are also more accessible to judges in the UK because of the use of English as their primary language. Most citations to foreign law occur in cases involving human rights, private law, and criminal law. The UK also makes reference to the Supreme Courts of France and Germany. Researching judicial cases can also be strongly influenced by the judge’s personal approaches to the cases. Mak’s interviews with judges demonstrated that they have a tendency to use foreign laws when they have knowledge of a foreign language or foreign systems, or have previous experience with academia. Interviews conducted showed that legal tradition, language, and the prestige of foreign courts are very important when deciding to use foreign law in the decision-making. Judges also tend to compare their cases to foreign cases to achieve the same high standards of other courts. Public importance to the case influences judges to look for more information on the use of foreign law by foreign courts as well. And finally, it provides them with trends related to the development of foreign legal systems. On one hand, the nature of foreign law also plays an important role. Foreign law is used as the main factor influencing a decision when they are binding legal sources. On the other hand, non-binding legal sources are only used to aid an argument being used to the judgment of the case. Comparative laws are more often used not to initiate and argument but as a source of support

Splendid Isolation or Open to the World?

35

to another argument. In the UK, citations are guided by the Practice Direction (Citation of Authorities). Elaine Mak’s concludes her research by reaffirming the importance of ­globalisation in the use of foreign law and how this use has been changing constitutional, institutional, organisational, and personal frameworks. The connection with the EU and the echr has certainly influenced the UK to look more towards foreign law. Availability of foreign legal materials as well improvements in communication technologies have allowed judges to better communicate with other judges from different countries and increase the exchange of ideas. From a methodological perspective Mak’s work can be distinguished from the study contained in this chapter due to the fact that, on one hand, Mak’s work does not include a quantitative analysis of the use of foreign jurisprudence by the UK Supreme Court and, on the other hand, the research contained herein has not used interviews with judges or other members of the UK Supreme Court. Another publication related to the topic of this chapter was written by Cambridge University scholar John Bell in 2012 under the title ‘Comparative law in the Supreme Court 2010–11’.11 Bell actually develops the research done by Mak in 2011 looking at the reference to foreign law during the second year of the Supreme Court’s activity. In contrast to other studies including the one carried out herein, Bell underlines that the Supreme Court made quite limited reference to foreign law, however, as Hélène Tyrrell points out, the author “resisted any attempt to quantify implicit uses of foreign jurisprudence”.12 Continuing with the examination of existing literature, one must mention Michal Bobek’s 2013 book Comparative Reasoning in European Supreme Courts which includes a chapter on “England and Wales”. In this study, the now Advocate General of the Court of Justice of the European Union distinguishes between “mandatory” and “voluntary” or “non mandatory” uses of foreign law. According to Bobek one has a mandatory use of foreign law in “instances in which the national courts are obliged, by virtue of domestic law, to use foreign legal rules in deciding cases”.13 Voluntary or non mandatory references to foreign law ‘references to foreign sources’ which represent 11 12 13

J. Bell, ‘Comparative Law in the Supreme Court 2010–11’ [2012] 1.2 cjicl. H. Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence, cit., p. 25, footnote 62. M. Bobek, Comparative Reasoning in European Supreme Courts, Oxford University Press, Oxford, 2013, p. 21.

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the choice of the national judge to use the foreign as a source of inspiration for devising a solution and/or justifying a solution (italics added)14 In his study, the Czech scholar focuses on the use of “non-mandatory comparative arguments” by supreme courts in five jurisdictions: England and Wales, France, Germany, the Czech Republic, and Slovakia.15 The chapter devoted to “England and Wales” analyses the theory and the practice of comparative reasoning in the English and Welsh courts.16 Using a similar methodology to the one employed in this chapter, Bobek also carries out a quantitative analysis of the case law of the UK Supreme Court during judicial year, 2010–11. Undoubtedly the most systematic and exhaustive case study carried on the UK Supreme Court and its use of foreign jurisprudence (but not foreign statute law or scholarly works)17 is the one by Hélène Tyrrell of the University of Newcastle.18 Her work is indeed the first major study of the UK Supreme Court’s use of jurisprudence from foreign domestic courts in human rights cases. In her work Tyrrell attempts (in our opinion very successfully) to provide a contribution to the debate on judicial comparitivism by asking when, how and why the Supreme Court uses foreign jurisprudence, as well as whether the Court should be making greater use of it. The research findings are drawn from quantitative and qualitative analysis of judgments handed down by the Supreme Court during its first four years (2009–2013). With regard to the latter Tyrrell follows the methodology adopted by Bell and Bobek, but the research sample is much larger. These are then supported by evidence obtained through interviews with ten Justices of the Supreme Court, one Lord Justice of Appeal and the eight Supreme Court Judicial Assistants therefore, with regard to this part of her research, Tyrrell uses the methodology employed by Elaine Mak, but again the research sampler is larger given the greater number of interviews that she conducted. 3

Data Analysis of the Research Sample

Given the impossibility, in the context of this specific research project, of carrying out an exhaustive screening of all the case law of the UK Supreme Court 14 15 16 17 18

M. Bobek, Comparative Reasoning in European Supreme Courts, cit., p. 33. M. Bobek, Comparative Reasoning in European Supreme Courts, cit., p. 67. M. Bobek, Comparative Reasoning in European Supreme Courts, cit., p. 75. …therefore, unlike this chapter, it is limited to just one of the three formants. I would like to sincerely thank Dr Tyrrell for giving me permission, during the initial stages of my research, to consult the preliminary proofs of her book: H. Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence, cit.

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since it was set up in 2009 the research sample considered herein consists of 124 judgments19 handed down by the uksc between January 1 2016 and April 11 2017.20 Paragraph 3.1. provides a graphical summary of the data analysis, while para. 3.2. will examine each of the thirty cases where foreign law was used by the Supreme Court. 3.1 Summary of Data Analysis Figure 1 shows that 124 decisions were handed down by the UK Supreme Court from January 1, 2016–April 11, 2017 of which 30 (24,19%) contained reference to foreign law and 94 (75,81%) were without reference to foreign law. As Figure 2 shows in the 30 judgments where foreign law was used a total of 140 references were in total, of which 4 (2.86%) were references to legal scholarship, 3 (2.14%) were references to constitutional law, 36 (25.71%) were references to statute law, 94 (67.14%) were references to case law, 0 (0%) were references to administrative acts, 3 (2.14%) were references to other types of foreign law. With reference to Figure 3 one can see that 114 (81.43%) were mere additional remarks (what one could define as simply a “cherry on the cake”, which had no decisive role in the judges’ decision, while 26 (18.57%) were references to foreign law that delivered decisive pieces of information or were additional remarks that were repeatedly mentioned by either one or more judges, but 30

94 Cases with reference to foreign law Figure 1 19 20

Cases without reference to foreign law

Ratio “Reference to Foreign Law” – “No Reference to Foreign Law”

One must acknowledge that this method has many limits because an analysis based on a certain time period runs the risk of being skewed by a-typical results. The unusual time period, which does not correspond to a specific judicial year, is related to the period covered by research funds for this project. I would like to thank Viktoria Vogt, my former RA at Bocconi University. This part profitted greatly from her research design and idea to combine methods from political science and law, as well as from her meticulous study of the uksc’s jurisprudence.

38

Frosini 03 4 3 36

94 legal scholarship case law Figure 2

constitutional law administrative acts

statute law residual category

Use of foreign law – Types of formant

0 26

114 Cherry on the cake Figure 3

Clearly necessary information

Major argument

Use of foreign law by the UK supreme court – Quality of references

were however not so fundamental in their argumentative reasoning that one can conclude that the judgment was based in its entirety or in part on them. None (0%) of the references made to foreign law served as a major argument in the judgment and were so fundamental in their argumentative power that the judgment was based in its entirety or in part on them. A less central issue, but of a certain relevance in order to dissipate possible superficial conclusions, can be found in Figure 4. Indeed the latter shows that there is no correlation whatsoever between the length of the Supreme Court’s judgments and the recurrence to foreign law. In other words longer judgments

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160 140 120 100 80 60 40 20 0

45 40 35 30 25 20 15 10 5 0

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 mentions of foreign law

Number of pages Figure 4

Ratio “Number of Pages” – References to foreign law

4

2

3

4

2

9

42

4 5 10

10 28

13 usa

aus

Figure 5

can

fr

ger

ned

ita

sau

iru

afg

nzl

irq

others

Reference made to foreign law – Countries

do not necessarily lead to the conclusion that foreign law was used in addition and vice versa. Finally, as one can see in Figure 5 references were made to the following countries (references/as a share of 136):21 United States of America 21

The count here is 136, because 4 of the references in the absolute count (140) were references to legal scholarship which cannot be assigned to a specific country.

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(42/30.88%), Australia (28/20.59%), Canada (12/8.82%), France (10/7.35%), ­Germany  (10/7.35%), Netherlands (5/3.68%), Italy (4/2.94%), Saudi Arabia (4/2.94%), Ireland (2/1.47%), Afghanistan (3/2.21%), New Zealand (2.94%), Iraq (2/1.47%) and finally others (9/6,62%).22 3.2 Case by Case Analysis As illustrated in Figure 1 (supra §3.1) thirty of the 124 judgments handed down by the uksc contained references to foreign law. In uksc 2016/0006 Nuclear Decommissioning Authority (Appellant) v. Energy Solutions EU Ltd (now called atk Energy EU Ltd), concerning an appeal regarding the extent to which damages can be recovered in the case of a breach of the Public Procurement Directive (Parliament and Council Directive 2004/18/EC), the Court makes reference to the work of a foreign academic: Further, the Supreme Court was shown in the agreed bundles a more recent article, by a serving judge of the General Court, Judge Anthony M Collins, Damages in Public Procurement – An Illusory Remedy? in Chapter 21 (p. 339) in Of Courts and Constitutions – Liber Amicorum in honour of Nial Fennelly (ed Bradley, Travers and Whelan) (2014).23 In brief, in this case Supreme Court requested an additional scholarly work to help in the analysis of the case. The article contained information regarding the conditions and damages claim for breaches of the EU Public Procurement Rules. In a case concerning an appeal and a cross-appeal relating to refunds of vat by investment trust companies (uksc 2015/0057 The Commissioners for Her Majesty’s Revenue and Customs (Appellants) v. The Investment Trust Companies (in liquidation) (Respondents)) the Court uses Canadian, US and Australian case law: and a near impossibility (British Columbia v. Canadian Forest Products Ltd [2004] 2 scr 74, para 205.24

22

These included Austria, South Africa, Mauritius, Egypt, Singapore, Russia, Ukraine, Finland and Israel which are all mentioned once. 23 See uksc 2016/0006 Nuclear Decommissioning Authority (Appellant) v. Energy Solutions EU Ltd (now called atk Energy EU Ltd) p. 17. 24 uksc 2015/0057, The Commissioners for Her Majesty’s Revenue and Customs (Appellants) v. The Investment Trust Companies (in liquidation) (Respondents), p. 22.

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[…] a defence based on the proposition that the economic burden of an unjustified enrichment was borne not by the claimant but by a third party: see, for example, Commissioner of State Revenue (Victoria) v. Royal Insurance Australia Ltd (1994) 182 clr 51; 126 alr 1;[…]25 […] Kingstreet Investments Ltd v. New Brunswick (Finance) Ltd [2007] 1 scr 3; […]26 […]the decision of the United States Federal Court of Appeals for the Second Circuit in 123 East Fifty – Fourth Street Inc v. United States (1946) 157 F 2d 68, […].27 The same was true in the case of Wayne County Produce Co v. Duffy – Mott Co (1927) 244 NY 351, where Cardozo CJ adopted a similar approach.28 The cases mentioned provide additional information for the judgment of the case. On page 26 (see below), the reference helps distinguish English law from Australian and American law: In considering these authorities, it is necessary not only to bear in mind the differences from the facts of the present case, but also to remember that American and Australian law adopt a broader approach to constructive trusts than English law.29 The third judgment to be examined as part of the research sample – ­Rahmatullah (No 2) (Respondent) v. Ministry of Defence and another (Appellants) Mohammed and others (Respondents) v. Ministry of Defence and another (Appellants) – is very interesting because it concerns the applicability of the doctrine Crown act of state. Here the Court made reference to a decision by the Italian Court of Cassation to actually define the legal term “act of war”: […] The Italian Court of Cassation had before it claims by relatives of persons killed in the nato bombing of Belgrade, in which Italian forces

25 26 27 28 29

uksc 2015/0057, p. 22. uksc 2015/0057, p. 22. uksc 2015/0057, p. 25. uksc 2015/0057, p. 25. uksc 2015/0057, p. 26.

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had participated. The Court of Cassation categorised the impugned act as an act of war […]. (italics added)30 Mohammed and others (Respondents) v. Ministry of Defence (Appellant) is one the cases included in the research sample where the most references to foreign law can be found. This is a renowned leading case concerning allegedly tortious acts committed by HM forces during operations abroad or by foreign governments in which UK officials participated. Additional arguments are made by referring to US jurisprudence: The same view was expressed by the Supreme Court of the United States in holding, in Hamdi v. Rumsfeld 542 US 507 (2004), at p. 10, […].31 Then it goes on to affirm: As the majority of the US Supreme Court observed in Hamdi, at p. 11, citing the earlier decision in In re Territo 156 F 2d 142, 145, (1946) […].32 Then, again with a reference to the US Supreme Court, the uksc makes an important legal argument concerning the responsibility of the British government with regard to the safety of its forces in Afghanistan: Both practically and legally, the British government remained responsible for the safety of its forces in Afghanistan and the proper performance of their functions, as the United States Supreme Court has recognised in the case of American forces participating in multinational forces under United Nations auspices: Munaf v. Geren (2008) 533 US 674.33 The court then uses two US Supreme Court cases to make additional arguments34 before making substantive references to Afghan Law, Foreign Law and International Law:

30

uksc 2015/0002, Rahmatullah (No 2) (Respondent) v. Ministry of Defence and another (Appellants) Mohammed and others (Respondents) v. Ministry of Defence and another (Appellants), p. 30. 31 uksc 2015/0218, p. 8. 32 uksc 2015/0218, p. 8. 33 uksc 2015/0218, p. 21. 34 See uksc 2015/0218 p. 53 and 87.

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[… ]it was authorised to detain SM by Afghan law, and this alone sufficed to justify SM’s detention under article 5, whatever the international legal position.35 This would require an express unscr authorisation and preferably a power in Afghan law as well, neither of which currently exist.36 The judge concluded that the United Kingdom policy announced in November 2009 had no legal basis under Afghan, international or English law.37 In brief all the references made in this case provide additional information and argument to the judgment. The fifth judgment of the the research sample – Belhaj and another (Respondents) v. Straw and others (Appellants) Rahmatullah (No 1) (Respondent) v. Ministry of Defence and another (Appellants) – concerns the alleged tortious acts by the UK officials against Mr. Belhaj and Mr. Rahmatullah. Here the British judges first make reference to one Canadian case: […] and see recently in Canada Khadr v. The Queen 2014 FC 1001, para 35 per Mosley J.38 And then uksc goes on to cite judgments handed down by US, Australian, German, French, Dutch and again Canadian Courts: […] the Court of Appeal in Luther v. Sagor and Princess Paley Olga drew heavily on United States authority, particularly Underhill v. Hernandez 168 US 250 (1896) […].39 […] and Oetjen v. Central Leather Co 246 US 297 (1918).40 […] referring to Williams v. Bruffy 96 US 176 (1877) and other authority, […].41 35 36 37 38 39 40 41

uksc 2015/0218, p. 95. uksc 2015/0218, p. 143. uksc 2015/0218, p. 146. uksc 2014/0264, p. 11. uksc 2014/0264, p. 27. uksc 2014/0264, p. 27. uksc 2014/0264, p. 27.

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A precursor of Underhill v. Hernandez is Hatch v. Baez (1876) 7 Hun 596 […].42 In Underhill v. Hernandez, Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, […].43 Subsequent consideration of these and other similar cases by the United States Supreme Court in Ricaud v. American Metal Co Ltd 246 US 304 […].44 […] and Banco Nacional de Cuba v. Sabbatino 376 US 398 (1964) evidences a shift in their rationalisation.45 An important statement is made by the uksc on p. 30: Congress passed the Hickenlooper amendment, providing that no United States court should in future decline, on the ground of the act of state doctrine, to give effect to the principles of international law […]. P. 30 At least at this point, therefore, United States law departed significantly from any principle in English common law.46 The reasoning and nuances of United States law have not been constant and are not necessarily transposable to English law.47 The Court then proceeds with copious references to the case law of various other common law and civil law systems: Australia […] The Federal Court of Australia in Habib v. Commonwealth of Australia [2010] fcafc 12; (2010) 265 alr 50, at para 44.48 42 43 44 45 46 47 48

uksc 2014/0264, p. 27. uksc 2014/0264, p. 28. uksc 2014/0264, p. 29. uksc 2014/0264, p. 29. uksc 2014/0264, p. 30. uksc 2014/0264, p. 32. uksc 2014/0264, p. 37.

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Germany […] German law treats foreign confiscatory acts of state as falling outside normal conflicts principles and subject to special rules.49 […] held by the German Federal Constitutional Court (Bundesverfassungsgericht or “BVerfG”) to be consistent with fundamental principles of the German Federal Constitution (Grundgesetz).50 Second, in an impressively reasoned judgment of 7 January 2005 (1 W 78/04), the Hanseatisches Oberlandesgericht Hamburg elaborated the conceptual basis of the same principles. (italics added)51 […] see the judgments in the Vavarin Bridge case, of the Oberlandesgericht Köln: Az 7 U 8/04, (28.07.2005) paras 73 to 74 (decided on different grounds on appeal to the Bundesgerichtshof (the “bgh” or German Supreme Court): iii ZR 190/05) and in separate proceedings before the BVerfG (the Federal Constitutional Court): 2 BvR 2660/06; 2 BvR 487/07; […].52 and the judgment in the Kunduz Road Tankers case of the Oberlandesgericht Köln: Az 7 U 4/14 (30.04.2015).53 France In Société Cementos Rezola v. Larrasquitu et Ētat espanol (Cour d’appel de Poitiers) [1938] Sirey Rec Gen iii, 68, the issue before the French courts was whether to recognise the requisitioning by the Republican Government of Spain of a vessel […].54 This inference is supported by a decision of the Cour de cassation, Companie Algérienne de Transit et d’Affrètement Serres et Pilaire (la sata) v.

49 50 51 52 53 54

uksc 2014/0264, p. 39. uksc 2014/0264, p. 40. uksc 2014/0264, p. 40. uksc 2014/0264, p. 41. uksc 2014/0264, p. 41. uksc 2014/0264, p. 42.

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Société Nationale des Transport Routiers (la sntr) (10 mars 1979 (No de pourvoi: 77–13943), […].55 Martin v. Bank of Spain [1952] ilr 202 involved a refusal by the Bank of Spain as agent of the Spanish state to issue in Spain new notes in exchange for old notes […].56 Similarly, in Ēpoux Reynolds v. Ministre des Affaires Ētrangères (1965) 47 ilr 53, the Tribunal de Grande Instance de la Seine was being asked by a building’s former owners to adjudicate upon the validity of a confiscation of property by the Hungarian State […].57 The Cour de cassation concluded in the case of Ramirez Sanchez Illich, alias Carlos (ECLI:FR:CCASS: 1995:CR06093) that Carlos’s arrest in Khartoum by Sudan authorities with a view to his return to France for trial constituted an act of sovereignty […].58 The Netherlands Bank Indonesia v. Senembah Maatschappij and Twentsche Bank (1959) 30 ilr 28 is another case regarding seizure by the Indonesian State in Indonesia of property […].59 And again Australia: The Australian High Court decision in Moti v. The Queen [2011] hca 50, 245 clr 456, discussed in para 82 below, has adopted the same approach […].60 The Court of Appeal in Belhaj found (in paras 96–102) assistance and support for its conclusion in the Federal Court of Australia decision in Habib v. Commonwealth [2010] fcaca 12; (2010) 265 alr 50.61 55 56 57 58 59 60 61

uksc 2014/0264, p. 42. uksc 2014/0264, p. 42. uksc 2014/0264, p. 43. uksc 2014/0264, p. 43. uksc 2014/0264, p. 43. uksc 2014/0264, p. 45. uksc 2014/0264, p. 49.

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It then repeats a reference to a US case: After initially suggesting in Oetjen v. Central Leather Co 246 US 297, 303– 304 (1918) that the Doctrine was based on “the highest considerations of international comity and expediency”, […].62 It then continues with recourse once again to a series of French cases: […]see Larrasquitu et l’Etat Espagnol v. Société Cementos Rezola (Cour d’Appel de Poitiers, 20 December 1937), (1938) 8 ilr 196 (“the French jurisdiction is incompetent to consider the regularity of the act of a foreign sovereign, for that would be to judge that act”);[…].63 […] Epoux Reynolds v. Ministre des Affaires Etrangères (Tribunal de Grande Instance de la Seine, 30 June 1965) (1965) 47 ilr 53 (“a French court has no jurisdiction to adjudicate on the legality of that measure”).64 […]decision of the Cour de Cassation in a case involving the lawfulness of the act of a foreign state in deporting a criminal suspect to France: In re Illich Ramirez Sanchez (Cour de Cassation, 21 February 1995) ECLI:FR:CCASS:1995:CR06093).65 The Netherlands So also the courts of the Netherlands: Petroservice & Credit Minier FrancoRoumain v. El Aguila (Ct App, The Hague, 4 December 1939), (1939) 11 ilr 17 (“A Dutch Court is obliged to refrain from entering into an independent examination of the validity or invalidity of public acts of a foreign government”); […].66 […] Bank Indonesia v. Senembah Maatschappij and Twentsche Bank NV (1959) 30 ilr 28 (Court of Appeal of Amsterdam, 4 June 1959) (“as a rule,

62 63 64 65 66

uksc 2014/0264, p. 68. uksc 2014/0264, p. 91. uksc 2014/0264, p. 91. uksc 2014/0264, p. 91. uksc 2014/0264, p. 91.

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a Court will not, and should not, sit in judgment on the lawfulness of acts jure imperii performed by, or on behalf of, a foreign Government”, except in cases of “flagrant conflict with international law”).67 […] addressing allegations of complicity by Dutch companies in the military operations of a foreign state: Republic of South Moluccas v. Royal Packet Shipping Co (Amsterdam Court of Appeal, 8 February 1951) (1951) 17 ilr 150.68 Two more references to Germany: German law, on the other hand, arrives at a similar result, by reference to a special rule based on the autonomy of states acting within their own territory: Unification Treaty Constitutionality Case, Bundesverfassungsgericht, judgment of 23 April 1991, 94 ilr 42.69 […] issues incidentally requiring a determination of the lawfulness or validity of a foreign state’s sovereign acts: Kunduz, Oberlandsgericht Köln, judgment of 30 April 2015, AZ 7 U 4/14, para 17.70 Canada: […] Kazemi Estate v. Islamic Republic of Iran [2014] scc 62; [2014] 3 scr 176 at paras 150–151. The issue before the court in that case was whether to recognise a public policy exception to state immunity […].71 But it was considered by the Supreme Court of Canada in Omar Ahmed Khadr v.Canada [2008] 2 scr 125 […].72 Ending with references to Australia and the United States:

67 68 69 70 71 72

uksc 2014/0264, p. 91. uksc 2014/0264, p. 91. uksc 2014/0264, p. 91. uksc 2014/0264, p. 91. uksc 2014/0264, p. 122. uksc 2014/0264, p. 126.

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[…] and by the Federal Court of Australia in Habib v. Commonwealth (2010) 265 alr 50.73 First, the US Supreme Court in Rasul v. Bush (2004) 542 US 466 had held that the indefinite detention without access to a court of persons captured in military operations was a violation of the Geneva Conventions […].74 To sum up foreign cases are used to provide additional information for the case or serve the purpose of repeating an important legal point. The sixth judgment of the research sample that makes use of foreign law is Akers and others (Respondents) v. Samba Financial Group (Appellant). It refers to the possibility of creating equitable proprietary rights in assets located in a country in which lex situs does not allow these rights. The country in question is Saudi Arabi and therefore as a logical consequence uksc uses the laws of Saudia Arabia: […] taking into account that under Saudi Arabian law a division of equitable and legal interests is not possible.75 […]Saudi Arabian law does not recognise the trusts as giving rise to the separate equitable proprietary interest that would exist if the shares were situated in, say, the United Kingdom […].76 The law of Saudi Arabia does not recognise trusts or any other distinction between the legal and beneficial interests in property. It treats the registered owner of shares in a Saudi Arabian company as their sole and entire owner.77 The law of Saudi Arabia will treat the trustee as the owner of the entire interest in the shares with all the rights that that entails, but equity will exercise its personal jurisdiction to compel him to deal with the shares in accordance with his trust.78 73 74 75 76 77 78

uksc 2014/0264, p. 126. uksc 2014/0264, p. 126. uksc 2015/0009, p. 9. uksc 2015/0009, p. 12. uksc 2015/0009, p. 32. uksc 2015/0009, p. 34.

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The United States: […] shares situated in New York and held on trust for Macmillan were thus able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest […].79 Austria: […] under the Austrian law of the domicile of settlor (which may also have been the situs of some or all of the shares), “an Austrian father cannot divest himself of property so as to impair the rights of his children to ‘legitim,’” […].80 Russia and Ukraine: […] since Russian and Ukrainian law did not recognise the concept of a beneficial interest at all, […].81 Basically all the cases cited provide additional information for the solution of this case. Gordon (Appellant) v. Scottish Criminal Cases Review Commission (Respondent) (Scotland) is a case concerning an application for judicial review regarding a decision made by the Scottish Criminal Cases Review Commission under s.194B(1) of the Criminal Procedure (Scotland) Act 1995 refusing to refer a rape conviction case to the High Court. Here the justices mention an Irish case with regard to the principle of legal certainty and the application of a Convention: […] principle of legal certainty in the application of the Convention, to the decision of the Supreme Court of Ireland in A v. Governor, Arbour Hill Prison [2006] iesc 45; [2006] 4 IR 88, […].82 More specifically, the Court makes reference to this judgment of the Irish Supreme Court in order to provide additional information in support of its dismissal of the case.

79 80 81 82

uksc 2015/0009, p. 11. uksc 2015/0009, p. 12. uksc 2015/0009, p. 16. uksc 2015/0125, p. 9.

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The eighth case in the research sample to be examined is the famous Miller case83 concerning the invocation of Art. 50 teu to start the process of withdrawal of Great Britain from the European Union. In addition to the copious references to European law (which do not fall under the scope of this chapter, see supra para. 1) the Court also cites three Canadian cases: In Re Resolution to Amend the Constitution [1981] 1 scr 753, the Supreme Court of Canada addressed the nature of political conventions.84 The only example we were shown of withdrawal from a treaty was a recent decision of the Canadian Federal Court: Turp v. Ministry of Justice & Attorney General of Canada 2012 FC 893. That was an unsuccessful challenge by the executive to the use of its prerogative powers to withdraw from the Kyoto Protocol on Climate Change, […]. (italics added)85 […] the authority is of limited assistance in the present context, since it had been held in a previous case (Friends of the Earth v. Canada (Governor in Council), 2008 FC 118) that the obligations under the statute were not justiciable in the domestic courts. (italics added)86 As the parts in italics show these references have no bearing on the substance of the decision taken i.e. that prerogative powers could not be used to invoke Art. 50 of the Lisbon Treaty. R v. Docherty (Appellant) is a particularly interesting case with regard to references to foreign law because the Court makes use of all three legal formants (i.e. statute law, case law and scholarly works) and the case concerns an important principle of criminal law: lex mitior. All the references mentioned provide additional information for the reasoning of the judgment. The Scoppola v. Italy (No 2) (2010) 51 case provides insightful information for the application of the principle of lex mitior in this case. In particular the British judges make three references to the Italian Criminal Code and to Italian criminal procedure (i.e. a statute law): The Italian Criminal Code contained an express lex mitior provision: if the law in force when an offence was committed differed from later law, 83 84 85 86

R (on the application of Miller and another) (Respondents) v. Secretary of State for Exiting the European Union (Appellant) more commonly known to us as the Miller Case on Brexit. uksc 2016/0196, p. 46. uksc 2016/0196, p. 84. uksc 2016/0196, p. 84.

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the applicable law was that which was more favourable to the accused. (italics added)87 In December 1999 Italy introduced a new abbreviated procedure, for which a defendant could elect; it involved fewer procedural rules from which he might otherwise benefit, but if he chose to elect for it the prescribed penalty became 30 years instead of life.88 The Italian Criminal Code contains, as noted in Berlusconi, an express lex mitior provision couched in terms which would give a defendant in the position of Scoppola the benefit of (at least) the law operative at the time of trial and sentence.89 It then makes references to the charters and bills of rights of Canada, New Zealand and the Australian state of Victoria (i.e. constitutional sources of law): Nor, although that principle appears in a few constitutional instruments in the common law world, such as the Canadian Charter, the New Zealand Bill of Rights and the State of Victoria’s Charter of 2006, can it be said that it is recognised by name generally in jurisdictions based on the common law.90 After noting that lex mitior is clearly adopted only piecemeal in the usa, […]. P. 20 it then uses a research paper written by Bruce Western, Professor of Sociology at Harvard University: […] rejected by some 22 states – see Western, University of Michigan Public Law and Legal Theory Research Paper No 455, March 2015.91 Finally, it returns to its “preferred type” of foreign law (i.e. case law) by mentioning a judgment from Canada: the Canadian case of The Queen v. Johnson 2003 SC 46 the menu of sentencing options for those presenting a future risk had had added to it a 87 88 89 90 91

uksc 2014/0207, p. 17. uksc 2014/0207, p. 18. uksc 2014/0207, p. 20. uksc 2014/0207, p. 20. uksc 2014/0207, p. 21.

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new, and for some offenders a possibly less severe, option of post custody supervision […].92 All the foreign formants mentioned provided additional information for the reasoning of the judgment with Scoppola v. Italy (No 2) (2010) undoubtedly providing the most insightful information for uksc in applying the principle of lex mitior in this case. The tenth decision of the uksc to be examine is Patel (Respondent) v. Mirza (Appellant). This is a curious case where Mr Patel and Mr Mirza agreed to bet on a bank’s share prices. Mr Patel provided Mr Mirza with £620,000 for the bet. Mr Mirza had promised that he had access to insider information to benefit the bet. According to him, his contacts would inform him in advance of any government announcement. However, this did not happen, and Mirza did not bet, but also decided not to return the money to Mr. Patel. The latter brought the case to justice in order to recover his investment. Mr Mirza claimed that due to the illegality of the arrangement, the money did not have to be returned, however Patel won the case in the Court of Appeal and so Mirza appealed to the Supreme Court. The Supreme Court unanimously dismissed Mr Mirza’s appeal and in doing so the Court cites the New Zealand Illegal Contracts Act 1970: The New Zealand Illegal Contracts Act 1970, Section 7, provides that the court may grant to any party to an illegal contract “such relief by way of restitution, […].93 Then it mentions two Australian cases: In Nelson v. Nelson [1995] hca 25; (1995) 184 clr 538, the High Court of Australia considered essentially the same issues as in Tinsley v. Milligan, […].94 McHugh J’s approach was cited with approval by a majority of the High Court in Fitzgerald v. F J Leonhardt Pty Ltd [1997] hca 17; (1997) 189 clr 215.95 It then refers to two Canadian cases: 92 93 94 95

uksc 2014/0207, p. 22. uksc 2014/0218, p. 10. uksc 2014/0218, p. 16. uksc 2014/0218, p. 18.

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In Hall v. Hebert [1993] 2 scr 159 the owner of a car allowed a passenger to drive it in the knowledge that he had drunk a large amount of beer during the course of the evening.96 In Still v. Minister of National Revenue (1997) 154 dlr (4th) 229 an American citizen lawfully entered Canada and applied for permanent residence status.97 And then to the Canadian Unemployment Insurance Act: The American Law Institute’s Restatement (2nd) of Contracts (1981) states at para 178(1): “A promise or other term of an agreement is unenforceable on grounds of public policy” […].98 The Court then goes on to cite a scholarly work i.e. the The American Law Institute’s Restatement (2nd) of Contracts of 1981: The American Law Institute’s Restatement (2nd) of Contracts (1981) states at para 178(1): “A promise or other term of an agreement is unenforceable on grounds of public policy […].”99 Still on page 21 of this judgment four references are made to US case law and to the Minimum Wage Act.100 The last use of foreign law made by the UK justices in this judgment is to be found on p. 58 when Section 7 of the New Zealand Illegal Contracts Act 1970 is mentioned again.101 In judgment uksc 2014/0220 MB (Appellant) v. Secretary of State for Work and Pensions (Respondent) the Court makes one of its rare uses of Nordic law: That interest justified the imposition of the marriage condition in the Finnish legislation.102

96 97 98 99 100 101 102

uksc 2014/0218, p. 19. uksc 2014/0218, p. 20. uksc 2014/0218, p. 21. uksc 2014/0218, p. 21. uksc 2014/0218, p. 21. uksc 2014/0218, p. 58. uksc 2014/0220, p. 7.

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Then in uksc 2014/0252 Versloot Dredging BV and another (Appellants) v. hdi Gerling Industrie Versicherung AG and others (Respondents) the Court first cites two Australian cases: gre Insurance Ltd v. Ormsby (1982) 29 sasr 498 is a decision of the Full Court of South Australia.103 In Tiep Thi Ho v. Australian Associated Motor Insurers Ltd [2001] vsca 48, the insured’s car was damaged in a road accident while being driven by her son.104 The UK justices then make use of the US Standard Fire Insurance Policy of the State of New York105 going on to cite three US judgments: The leading case is the decision of the US Supreme Court in Claflin v. Commonwealth Insurance Co 110 US 81 (1884) in which the court held (p. 95) that the materiality of a statement […].106 In Long v. Insurance Company of North America 670 F 2d 930 (1982), the insurers defended a claim for loss by fire […].107 In Fine v. Bellefonte Underwriters Insurance Co 725 F 2d 179 (1984), the Second Circuit Court of Appeals considered that this result followed from the absence of any requirement of inducement in the fraudulent claims rule.108 However, the Court also points out that: Some states, such as Texas, have overruled these decisions by statute.109 Finally the Supreme Court highlights the similarities between English and Australian statute law in this field: 103 104 105 106 107 108 109

uksc 2014/0252, p. 13. uksc 2014/0252, p. 14. uksc 2014/0252, p. 14. uksc 2014/0252, p. 15. uksc 2014/0252, p. 15. uksc 2014/0252, p. 15. uksc 2014/0252, p. 15.

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Just as does the English statute (see below), the Australian Act left open the meaning of “claim made fraudulently” and thus the present issue.110 Copious use of Australian case law is made in uksc 2015/0099: Finally, reliance is placed upon the decision of the High Court of Australia in Gould v. Vaggelas (1984) 157 clr 215, which was a case of deceit, where Wilson J said at p. 236: […].111 See also Australian Steel & Mining Corpn Pty Ltd v. Corben [1974] 2 nswlr 202 per Hutley JA at 208–209.112 That inducement is a question of fact, necessary to establish causation in all cases but not necessarily in the same way, was recognised and well expressed in the decision of the Court of Appeal of New South Wales in Gipps v. Gipps [1978] 1 nswlr 454.113 […] and since the court has not considered the relevant authorities (including Commonwealth authorities such as Toubia v. Schwenke [2002] nswca 34) or academic writing, […].114 In brief, the Supreme Court revised the necessity of restitution by analysing similar foreign cases. These cases provided relevant information for further analysis of British law. In other instances, comparative law provided additional supporting information for the judgment of the case. Willers (Appellant) v. Joyce and another (in substitution for and in their ­capacity as executors of Albert Gubay (deceased)) (Respondent) (1) is an appeal ­concerning whether malicious prosecution claims can be made against another individual in civil proceedings. Here the UK Supreme Court cites cases from the US, Singapore and Australia: For an English court to adopt the approach of Supreme Court of New Hampshire in Aranson v. Schroeder (1995) 671 A 2d 1023 and recognise

110 111 112 113 114

uksc 2014/0252, p. 38. uksc 2015/0099, p. 15. uksc 2015/0099, p. 16. uksc 2015/0099, p. 26. uksc 2015/0099, p. 28.

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the existence of a cause of action of that description would be bold […]. (italics added)115 That decision was followed by the Singaporean High Court in The Inai Selasih (Ex p Geopotes x) [2005] 4 slr 1.116 This criticism was accepted by the Supreme Court of Victoria in Little v. Law Institute of Victoria (No 3) [1990] VR 257, where Kaye and Beach JJ held that there was “no longer justification for confining to a bankruptcy petition and an application to wind up a company the remedy for malicious abuse of civil proceedings where the damages claimed is to the plaintiff’s reputation”.117 While on p. 29 of this judgment the Court cites three scholarly works: […]there has been some discussion, both in academic articles here and elsewhere and in judgments in common law jurisdictions, on the question whether a less stringent test should be introduced in a claim for damages for wrongful arrest. The articles include, in addition to the article referred to in para 68 above, the following. First there are three articles in volume 38 of the Tulane Maritime Law Journal Winter 2013, No 1, at pp. 115–145: the first by Sir Bernard Eder entitled “Time for a Change”, the second by Martin Davies by way of reply to Sir Bernard and the third a rejoinder by Sir Bernard. The second is by Dr Aleka Sheppard in the third edition of her Modern Maritime Law, 2013 at Section 2.4 under the heading “Wrongful Arrest of Ships”. The third article is by Michael Woodford in (2005) 19 mlaanz 115 which sets out the position in Australia and discusses many of the cases including those referred to above.118 All the references the uksc makes to foreign law provide additional information for handing down the judgment. The Christian Institute and others (Appellants) v. The Lord Advocate (Respondent) (Scotland) is an interesting devolution issue. The case concerns judicial review of Part 4 of the Children and Young People (Scotland) Act 2014. This act makes provision to assign a named person service (nps) to every children 115 116 117 118

uksc 2015/0154, p. 20. uksc 2015/0154, p. 29. uksc 2015/0154, p. 46. uksc 2015/0154, p. 29.

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and young people in Scotland. The nps aims to intervene early to promote ­well-being instead of having public authorities intervening after problems to welfare have been recognised. The appellants requested judicial review of Part 4 of the act claiming that it contains obligations that are not of the competence of the Scottish Parliament under the Scotland Act 1998. In this judgment the Court cites Israeli Justice Ahron Barak and Justice Reynolds of the US Supreme Court: If we were all the same, we would not need to guarantee that individual differences should be respected. Justice Barak of the Supreme Court of Israel has put it like this (in El-Al Israeli Airlines Ltd v. Danielowitz [1992–4] IsrLR 478, para 14): […].P. 32 As Justice McReynolds, delivering the Opinion of the Supreme Court of the United States famously put it in Pierce v. Society of Sisters 268 US 510 (1925), 534–535: […]. P. 33 The Supreme Court made use of these references to provide additional information in its judgment. The cases used refer to issues related to the protection of the family and children. Another case of the research sample where use of foreign law is made is R (on the application of Johnson) (Appellant) v. Secretary of State for the Home Department (Respondent). This case concerns discrimination caused by the denial of automatic British citizenship at birth to a child born outside marriage. The court decided that not granting him British citizenship violated Section 4 hra. In reaching this decision the British justices cite the right to respect for private life in France and the US citizenship law of 1981: […] it was a violation of the right to respect for private life for French law to deny the existence of the relationship between the biological father and the children born as a result of surrogacy arrangements in the United States.119 […]they may be born in a country, such as the United States of America, which still recognises the ius soli, the right to citizenship of all persons born within the territory; and they may be entitled to citizenship by 119 uksc 2016/0042, p. 10.

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d­ escent from either or both of their parents, as is the case under the 1981 Act.120 This case makes reference to foreign cases to provide additional support to the judgment. It demonstrates that in other countries denying citizenship based on the parents’ marital status is unlawfully discriminatory. R (on the application of Ismail) (Respondent) v. Secretary of State for the Home Department (Appellant) is a case concerning the operation of Section 1 of the Crime (International Co-operation) Act 2003. A service of judgment was requested by Egyptian authorities to the UK Secretary of State (Appellant) on Mr. Mamdouh Ismail (Respondent), an Egyptian citizen who was living in the UK. Given the citizenship of the respondent uksc cites the Egyptian legal system: […] this argument was based on a rule of Egyptian law which requires a defendant to be present in court during a trial of a misdemeanour punishable by imprisonment.121 This case inevitable makes reference to Egyptian law to provide additional information about the judgment that occurred in Egypt. According to Egyptian law, a defendant is required to be present for trial in case of a misdemeanor punishable by imprisonment. This reference is used to explain why the submission of documents by Mr Ismail’s legal counsels were not admitted and therefore should not interfere in the Appeal Court decision. Mirga (Appellant) v. Secretary of State for Work and Pensions (Respondent) is a case concerning a joint appeal regarding social assistance in the UK by two EU citizens and here the uksc cites Austrian law: […] domestic legislation, such as the Austrian law in that case, could not provide that a national of another member state, who was not a worker, self-employed or a student, should be automatically barred from receiving a social benefit.122

120 uksc 2016/0042, p. 13. 121 uksc 2013/0160, p. 2. 122 uksc 2013/0161, p. 19.

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Basically the uksc compares the case to Austrian Law to provide additional information and underlines the fact that a foreign national on Austrian territory who is not legally considered a worker, self-employed, or a student, is not considered to receive social benefits from the Austrian Government. In uksc 2014/0087 Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v. WM Morrison Supermarkets plc (Respondent) diverging cases from New Zealand and Australia are cited and play a fundamental role in the substantive decision handed down by the British court: In Petterson v. Royal Oak Hotel Ltd [1948] nzlr 136 a barman refused to serve a drunken customer with more alcohol.123 Deatons Pty Ltd v. Flew (1949) 79 clr 370 had similarities to Petterson but was decided differently. According to the jury’s verdict, the claimant was the victim of an unprovoked attack by a barmaid on duty in a hotel when he asked her for the manager.124 In judgment uksc 2014/0147 pms International Group Plc (Respondent) v. Magmatic Limited (Appellant) the UK Supreme Court cites cases from Germany and the Netherlands: I note that the same view was taken of the same Community Registered Design by the Düsseldorf Court of Appeal (I-20W, 141/11, 24 July 2012, pp. 2, 22, 26 – “without a pattern” and “without any patterning”), […].125 […] and the Hague Court of Appeal (Case number 200.094.132/01, Apple Inc v. Samsung Electronics Co Ltd, 24 January 2012, paras 5.1B and 5.3B1 and 6.4 – “without any embellishment” and “without any ornamentation”).126 This case concerns abuses committed by Mr. Amjid Khan, an employee of the respondent, WM Morrison Supermarkets plc in Small Heath, Birmingham, and the liability that the employed had over its employee’s behaviour. This case makes reference to two foreign cases that were relevant to the leading decision: Petterson v. Royal Oak Hotel Ltd [1948] nzlr 136 and Deatons Pty Ltd v.

123 124 125 126

uksc 2014/0087, p. 9. uksc 2014/0087, p. 9. uksc 2014/0147, p. 17. uksc 2014/0147, p. 16.

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Flew (1949) 79 clr 370. These cases occurred respectively in New Zealand and Australia and have a similar scenario and rationale of judgment to this case. In Asset Land Investment Plc and another (Appellants) v. The Financial Conduct Authority (Respondent) it cites the Australian Corporations Act of 2001: For example, the Australian Corporations Act 2001, Part 1.2, applies to a “managed investment scheme”, but refers in the definition of that expression, to investors’ control not over “management of the property”, but over the “operation of the scheme”.127 This case consists of an appeal by the Asset Land Investment plc for the ­proceedings brought by the Financial Conduct Authority (fca) alleging that Asset Land Investment plc was carrying on a series of regulated activities without authorisation. Here the uksc used comparative legislation to investigate the meaning of collective investment schemes. The Court mentions that other countries use the wording in a different way than the UK. For this reason, the discussion should be kept within the ambit of the UK. In Lynn Shellfish Ltd and others (Appellants) v. Loose and another (Respondents) the Court cites a case from Australia and three from the United States to provide additional information to the judgment regarding the accretion of the land: The issue was specifically addressed in the judgment of Griffith CJ in the High Court of Australia in a passage in his judgment in Williams v. Booth (1910) 10 clr 341, 350, with which we agree: […].128 As Ladd J pithily said in an Iowan case Holman v. Hodges 84 NW (1901) 950, 952 […].129 […] (a decision cited with approval in the Iowan Supreme Court in State v. Sorensen 436 NW 2d 358 (1989) and […].130 […] albeit on a different point – by Brennan J in the US Supreme Court decision in Nebraska v. Iowa 406 US 117 (1972)): […].131 127 128 129 130 131

uksc 2014/0150, p. 4. uksc 2014/0191, p. 22. uksc 2014/0191, p. 23. uksc 2014/0191, p. 23. uksc 2014/0191, p. 23.

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In Kennedy (Appellant) v. Cordia (Services) llp (Respondent) (Scotland) – concerning the liability of an injury caused to Ms. Kennedy because her employer failed to assess and control risks to secure her safety – the Court considers the following case from Australia to be “relevant” to the decision it had to hand down on the admissibility of expert opinion evidence: Counsel agreed that the South Australian case of R v. Bonython (1984) 38 sasr 45 gave relevant guidance on admissibility of expert opinion evidence.132 Then the Court goes on to make an interesting comparison between US and Scots Law: In Daubert v. Merrell Dow Pharmaceuticals Inc (1993) 509 US 579, the United States Supreme Court referred to rule 702 of the Federal Rules of Evidence, which in our view is consistent with the approach of Scots law in relation to skilled evidence of fact.133 Finally it cites a case from South Africa: Wessels JA stated the matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v. Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, 371 […]134 This case used foreign law to help in the solution of this case. The decision in the Australian case provided relevant guidance for the solution of this case, while the other cases only provided additional information for the judgment. R v. Jogee (Appellant) – an appeal concerning accusations regarding a secondary party to a murder crime – uses exclusively Australian case law in order to provide additional information for investigating whether secondary parties to a crime should be considered guilty, even if they did not have direct participation in the offense: He drew on the judgments of the High Court of Australia in Johns v. The Queen [1980] hca 3; (1980) 143 clr 108 […].135 132 133 134 135

uksc 2014/0247, p. 13. uksc 2014/0247, p. 15. uksc 2014/0247, p. 15. uksc 2015/0015, p. 15.

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[…] and Miller v. The Queen (1980) 55 aljr 23.136 Chan Wing-Siu was followed by the High Court of Australia in McAuliffe v. The Queen (1995) 183 clr 108, […].137 […] which was in turn followed by the High Court in Gillard v. The Queen (2003) 219 clr 1 […].138 […] and Clayton v. The Queen (2006) 231 alr 500.139 R (on the application of Bancoult (No 2)) (Appellant) v. Secretary of State for Foreign and Commonwealth Affairs (Respondent) is an appeal concerning the House of Lords judgment in R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] ukhl 61 and is a controversy related to the Chagos Islands are part of the British Indian Ocean Territory (biot). Here uksc made use of an additional case to provide further background information regarding the settlement and challenges involving agreements between biot residents and the UK government. Given the issue under scrutiny what might at first sight might seem a rather “exotic reference” to Mauritian Law is made: Compensation, initially in the 1970s of £650,000 and then in 1982 of a further £4m in a trust fund set up under a Mauritian statute […].140 In the matter of B (A child) the Court refers to a case from Australia: On 12 April 1990, however, an Australian judge conferred rights of custody on the father.141 P. 11 And then goes on to cite a book by Justice Breyer: Using that expression in the sense described by US Supreme Court Justice Breyer in his book The Court and the World (2015), pp. 91–92: […].142 136 137 138 139 140 141 142

uksc 2015/0015, p. 15. uksc 2015/0015, p. 22. uksc 2015/0015, p. 22. uksc 2015/0015, p. 22. uksc 2015/0021, p. 5. uksc 2015/0214, p. 11. uksc 2015/0214, p. 23.

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In this case the Appellant, a British national of Indian ethnicity, was in a samesex relationship with the Respondent, a British national of Pakistani ethnicity. Although both parties lived together in England, they never became civil partners. In April 2008, the Respondent gave birth to a girl, B. The Respondent took care of B, but the Appellant also helped care. In December 2011, the Appellant and Respondent relationship ended, and the Appellant left their home. During the next two years, the Respondent decreased the Appellant’s contact with B and while the Appellant worked on judicial mediation, the Respondent decided to move to Pakistan with B on 3 February 2014 without the knowledge of the Appellant. On 13 February 2014, the Appellant requested shared residence of B or at least some contact with B under the Children Act 1989. The application relied on proof that B was a current resident of England. After coming to know that B was living in Pakistan with the Respondent, the Appellant entered with a judicial process to request the return of B to England. The Supreme Court allowed the appeal by a majority of 3 to 2 taking in consideration the Children Act 1989. The decision focused on understanding B’s habitual residence. The majority of the Court agreed that B was habitually resident in England and for this reason has to return to the UK. According to the Court, a child should not be left without habitual residence. When the Appellant made the application, B had not disengaged legally from her habitual residence in the UK. Here the Court simply uses foreign law and scholarly work to provide additional information to its judgment. In pst Energy 7 Shipping llc and another (Appellants) v. O W Bunker Malta Limited and another (Respondents) the Supreme Court unanimously dismissed the appeal made by pst Energy 7 Shipping llc and Product Shipping and Trading S.A. The Court concluded that the contract between the parties was not of sale but sui generis. The contracted permitted consumption prior to payments and even thought there were no transfer of property, the bunkers were consumed. The Court also affirmed that if the bunkers were not consumed, they could have been returned. In handing down this decision the uksc simply referred to an Australian to provide additional information explaining its decision: Kerr LJ went on to state that that had been the view of the majority of the High Court of Australia, in Minister for Supply and Development v. Servicemen’s Co-operative Joinery Manufacturers Ltd, […].(italics in original text)143 143 uksc 2015/0236, p. 24.

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Ministry of Defence (Respondent) v. Iraqi Civilians (Appellant) is a case concerning tort claims brought by 14 lead claimants in claims by over 600 Iraqi citizens solicitors alleging to have suffered unlawful detention and/or physical maltreatment in Iraq by the British armed forces from 2003 to 2009. The claims were brought to court in England against the Ministry of Defence. Inevitable the uksc makes reference to the Civil Code of Iraq and to a Coalition Provisional Authority Order has the force of law in Iraq: Under article 232 of the Civil Code of Iraq, the standard limitation period applicable to claims of this kind in Iraqi law is three years from the day on which the claimant became aware of the injury […].144 […] Coalition Provisional Authority Order 17, which had and still has the force of law in Iraq, made it impossible for them to sue the British government in Iraq.145 In the matter of N (Children) the uksc makes general references to the Irish Supreme Court. This case concerns the future welfare of two girls. The question raised in the appeal is whether the English or Hungarian courts should be responsible for the judgment of the proceedings. The reference to the Irish Supreme Court is the following: The Supreme Court of Ireland has referred questions which are essentially the same as the principal issue in this case.146 The Supreme Court uses this reference to analyse the implementation of article 15 of Brussels ii Revised.147 The Irish case provided additional information for the judgment of the case. Finally, to complete the analysis of the research sample, let us turn to pjs (Appellant) v. News Group Newspapers Ltd (Respondent) – a case concerning a dispute between two parties regarding rights privacy and confidentiality against rights related to freedom of expression. Here a reference is made to a decision of the French Tribunal de grande instance of Paris: 144 145 146 147

uksc 2016/0003, p. 3. uksc 2016/0003, p. 4. uksc 2016/0013, p. 23. …i.e. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.

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The French court granted an application by the late president’s widow and children for an interlocutory injunction to stop its distribution.148 This done in order to investigate the judgment of a foreign court regarding a similar case related to interim injunction. 4

Concluding Remarks: the UK Supreme Court needs more Comparative Legal and Linguistic Expertise

Back in 1949 one of the world’s greatest comparatists Herbert Cooke Gutteridge prophetically stated that: At some future date more extensive use will, no doubt, be made of foreign law for the purpose of assisting our judges to fill the gaps that are still to be found in our own law149 Well as this chapter has endeavoured to demonstrate there can to be no doubt that that date has come. The research findings show that the UK Supreme Court does resort to foreign law in handing down its decisions. Indeed on the basis of the quantitative analysis carried out in this study (but also considering the important research carried out by Hélène Tyrrell) the Supreme Court is likely to cite a decision of a foreign court in around one in three cases.150 As Tyrrell points out: These proportions are not insignificant. Yet a close analysis of the cases does not reveal clear explanations as to why these sources are used; the Justices rarely articulate the reasons for citing foreign law.151 When referring to these non-binding sources, the Justices of the UK Supreme Court are simply continuing a long established tradition from the development of the common law. From this point of view the countries that the uksc refers to are prevalently English-speaking countries. Only approximately quarter of the references concern non English-speaking countries. In other words, one 148 uksc 2016/0080, p. 38. 149 H.C. Gutteridge, Comparative Law, Cambridge University Press, 2nd ed. (reprint, Wildy & Sons Ltd, London, 1971), p. 40. 150 H. Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence, cit., p. 194. 151 H. Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence, cit., p. 194.

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would be gravely mistaken to believe that the uksc is in the forefront in terms of judicial internationalisation, cosmopolitanism or dialogue (so the thing be understood, I am indifferent as to the name, as John Locke would have said152). Indeed if one considers the references to civil law systems then one would discover that this accounts for less than 10% of the jurisprudence of the uksc. That said as Michal Bobek underlines: On the whole … the judicial as well as extra-judicial pronouncements of the senior English judiciary on the use and the utility of comparative law for the decision-making of an English judge are rather positive. The occasional moderate sceptical voices are concerned with ‘how can we do it’ in terms of (linguistic) competence, time, costs, and resources, pointing out the difficulty an English judge faces when trying to understand the particularities of a foreign system of law. There are, however, no rejections, certainly not outright, of comparative inspiration qua persuasive authority in courts (italics added).153 One can certainly affirm that the UK Supreme Court, unlike its US counterpart, is by no means polarised by the debate on the legitimacy of the use of foreign law. Based on the existing literature and on the research carried out herein the present-day position seems to be that the justices of the uksc have a tendency to lend a willing ear to the citation of foreign authorities (especially belonging to the common law), but they do so more by way of testing the soundness of their conclusion than in reliance of the foreign decision. Furthermore, one cannot ignore the fact that the varied explanations about the value of foreign law and the methods through which it is used depend heavily on the individual approach each justice has to judicial reasoning. This implies that the use of foreign will depend enormously on the individual skills and comparative knowledge of the single justices. To conclude, a more systematic and harmonious use of foreign law would probably be more likely if the Court were to heed the words of Lord Mance when he stated that ‘[…] the Supreme Court should itself aim to acquire a comparative legal and linguistic expertise’ (italics added).154 152 J. Locke, Second Treatise Second Treatise of Civil Government, 1690, sec. 146. 153 M. Bobek, Comparative Reasoning in European Supreme Courts, cit. p. 83. 154 Lord Mance, Foreign Laws and Languages, in A. Burrows, D. Johnston and R. Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry, Oxford University Press 2013, Oxford, pp. 96–97.

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Acknowledgements The research for this chapter was supported, among others, by the Center for Constitutional Studies and Democratic Development (ccsdd) and the George Lawrence Abernethy Endowment. I would like to thank Viktoria Vogt my RA at Bocconi University as well as Marco Saracco and Karen Murumatsu, interns at the ccsdd, for their precious research assistance.

The Use of Foreign Law in Irish Constitutional Adjudication Oran Doyle and Tom Hickey Rather than mechanically scan all or a scientifically representative sample of the thousands of cases in which foreign law has been cited in Irish constitutional jurisprudence, we consider a dozen or so examples in this Chapter, selected on the basis of factors including (a) the apparent influence of foreign law in the case and (b) the apparent influence of the case at a notable juncture of constitutional development or in an important domain of constitutional law. For this reason, we focus on judgments of the Supreme Court rather than lower courts. This approach allows for an illuminating, if not rigorously empirical, account of the use of foreign law in Irish constitutional adjudication. The Chapter is in five sections. The first provides a preliminary overview of the structure and powers of the apex courts in this domain, as well as of some of the relevant provisions of the Constitution of 1937. The next three focus on the role of foreign law in particular cases. Section 2 addresses three cases from the so-called “activist period”1 of judicial review in Ireland. In this period, the courts were developing new constitutional rights and doctrines, frequently looking to the United States of America for inspiration. The leading Irish jurist of this period, Mr Justice Brian Walsh, was in regular correspondence with Justice William Brennan of the US Supreme Court. They shared their thoughts on the development of constitutional law as well as specific cases, increasing the levels of cross-citation between the two courts. Section 3 considers a discrete area of judicial decision-making that may be particularly apt for the consideration of foreign law: remedies and the effect of findings of constitutional invalidity. In this domain, the Irish courts have had particular regard to foreign law both in resolving difficult cases about the effect of a declaration of unconstitutionality and in considering whether to introduce suspended declarations of unconstitutionality. Section 4 turns to the embrace by Irish judges of the proportionality framework in rights adjudication from the 1990s. It considers in particular how Irish judges have applied the various limbs of the proportionality test so differently from Canadian judges, despite their routinely reciting the Canadian R v. Oakes 1 For this periodization of Irish constitutional law, see Oran Doyle, The Constitution of Ireland: A Contextual Analysis (2018), Chapter 9.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_004

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version of the test word-for-word.2 This difference is particularly apparent in the judicial consideration of blanket bans on assisted dying. This section provides a salutary lesson: even where judges are citing foreign law, they may not truly be applying that foreign law. Section 5 concludes, reflecting on the way in which Irish judges use foreign law and relating this to some of the debates in the global comparative literature. 1

Constitutional Rights and Judicial Review in Ireland: An Overview

Article 34.3.2° of the Irish Constitution provides that “the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution…” The supremacy that Irish judges enjoy in respect of legislative acts thus has a basis in the constitutional text. The Supreme Court is the final court of appeal at the apex of a single court structure: constitutional cases thus form a subset of the Court’s broader workload resolving issues of private law and public law alike. The common law style of reasoning, developed primarily in the domain of private law, is therefore apparent in constitutional cases also, which involve written judgments referring to precedent cases that previously interpreted the relevant constitutional provisions. The Supreme Court can consider the constitutionality of legislation in a form of pre-enactment review where the President refers legislation prior to signing it. However, only 14 such presidential references have been made since the enactment of the Constitution in 1937. Far more common, therefore, is the Court’s consideration of constitutional issues in the context of ordinary litigation between parties. In this context, the Supreme Court can hear appeals from the High Court and, since 2014, from an intermediate Court of Appeal. The Supreme Court’s appellate jurisdiction is now limited to cases which, in its view, involve “a matter of general public importance” or where it considers an appeal to be necessary “in the interests of justice.”3 Constitutional amendments in 1940 and 2013 first introduced and then removed a requirement for the Supreme Court to deliver only a single judgment when considering the constitutional validity of legislation, a requirement which now only applies in respect of Presidential references. For a significant portion of constitutional cases—those between 1940 and 2013 involving a direct challenge to the

2 R v. Oakes, [1986] 1 s.c.r. 103. 3 Irish Const. art. 34.5.3°.

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c­ onstitutionality of a law—the Court’s judgments represent a consensus of the judges, which led perhaps to less discursive judgments and analysis of case law. The number of judges on the Supreme Court is prescribed by law rather than by the Constitution: under the latest legislative provision it is to comprise a Chief Justice and “not more than nine ordinary members,” although at the time of writing there are only seven ordinary members. The Supreme Court normally sits in divisions of three or five, and occasionally of seven, as determined by the Chief Justice. Constitutional challenges to legislation generally rely on the rights provisions of the Constitution. These comprise Article 38 (trial in due course of law) and Articles 40–44. Article 40 protects personal rights: rights to equality, life, liberty, inviolability of the dwelling, and the freedoms of expression, assembly and association. It contains the formula of words which – whether by accident or by design on the part of the drafters4 – prompted judges to establish the “unenumerated rights doctrine” whereby they could identify rights as enjoying constitutional protection despite not being expressly provided in the text itself.5 Article 41 protects the family; Article 42 provides for education and children’s rights; Article 43 recognises a right to private property, while Article 44 protects rights to religion and conscience. Some parts of these provisions are drafted in a manner that suggests an ­absolutist conception of rights of the kind associated with natural rights ­thinking – and one not especially in harmony with the proportionality framework: the family, for instance, is described in Article 41 as a “moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law,” while Article 43 holds that the State “acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.”6 Other parts of the rights provisions clash with that conception. The personal rights in Article 40.3 are protected only against unjust attack. The free expression, assembly and association clause protects those rights “subject to public order and morality.”7 And Article 43 goes on to allow property rights to be delimited in the interests of the common good. The courts have not placed much emphasis on the different language used by different constitutional provisions to authorise legislative r­ estriction 4 See Gerard Hogan, Unenumerated Personal Rights: The Legacy of Ryan v. Attorney General, in Judges, Politics and the Irish Constitution 49 (Laura Cahillane, James Gallen and Tom Hickey eds, 2017). 5 Id, at 52. 6 See Eoin Daly and Tom Hickey, The Constitution and Judicial Power: Theoretical Perspectives, in Judicial Power in Ireland 220, 221 (Eoin Carolan ed, 2018). 7 Irish Const. art. 40.6.1°.

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of constitutional rights. This issue attracted little judicial attention until the 1990s, when the courts began to elaborate more structured approaches to test the legitimacy of legislative restrictions on constitutional rights. As in other jurisdictions, the approach of judges to interpreting these rights, and relatedly to interpreting the extent of their own role and power within the constitutional system, evolves over time. The simplest account is that from the enactment of the Constitution in 1937 to around 1965 (or indeed from independence in 1922, under the Free State Constitution, through 1937 and up to around 1965), Irish judges approached these matters with restraint. From 1965 through 2000 – and particularly in the 70s and 80s – Irish judges tended towards a more expansive approach.8 This is seen as having begun with the High Court judgment in Ryan v. Attorney General,9 when Kenny J initiated the unenumerated rights doctrine by finding that Article 40 impliedly protected a right to bodily integrity, as had been argued by counsel for the plaintiff who objected to legislation providing for mandatory fluoridation of the public water supply. Quinn’s Supermarkets v. Attorney General10 and McGee v. Attorney General11 are among the rulings that followed in that expansive vein, in these instances informed in part by foreign law – particularly US law in that period – as we consider below. The judges then imported the proportionality test in the mid-1990s, which broadly reflected a shift on the part of the judges around the turn of the century to a more technocratic and incremental approach to rights adjudication. Although they occasionally trammel the means used by the elected organs of government, Irish judges are not so inclined these days to proscribe the ends those organs pursue. 2

Foreign Law in the Expansionist Period

People (Attorney General) v. O’Brien concerned the admissibility of evidence in criminal trials where that evidence had been procured by illegal means.12 Gerald O’Brien had been convicted of stealing articles of clothing that, in the course of the police investigation, had been found at his home at 118 Captain’s Road in Crumlin, Dublin. The address on the warrant that had been issued for the search was wrong due to an apparent oversight: it was for 118 Cashel Road

8 9 10 11 12

See generally Doyle, supra note 1. Ryan v. Attorney General [1965] I.R. 294. See Hogan, supra note 4. Quinn’s Supermarkets v. Attorney General [1972] I.R. 1. McGee v. Attorney General [1974] I.R 284. People (Attorney General) v. O’Brien [1965] I.R. 142.

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in Crumlin. The warrant was thus invalid on a technicality. O’Brien appealed against his conviction on the basis that the evidence leading to it had been obtained in breach of Article 40.5, whereby the dwelling is “inviolable” and “shall not be forcibly entered save in accordance with law.” Although all five of the Supreme Court judges agreed that the evidence in the particular case should not be excluded, they split 3-2 on whether to adopt an “exclusionary rule” for improperly obtained evidence, as prevailed in US constitutional law. Three of them preferred not to do so, instead adopting a traditional but evolving common law approach which afforded the trial judge discretion as to whether to admit such evidence. Two judges, emphasizing the breach of constitutional rights and not merely legal rights, preferred a rule excluding evidence procured as a result of a “deliberate and conscious” violation of the accused person’s constitutional rights, unless “extraordinary excusing circumstances” warranted its inclusion. Kingsmill Moore J’s majority judgment in O’Brien ran to a fraction over fourteen pages of the Irish Reports, with just over eleven of them devoted entirely to exposition and analysis of English, Scottish and US caselaw. He began by considering half a dozen English cases, emphasizing in particular the principles elaborated in the 1955 case Kuruma v. The Queen.13 Essentially the test p ­ referred there was whether the evidence was relevant or “logically ­probative” – that it might have been obtained illegally was not generally important. Of the Scottish cases considered, most attention was given to Lawrie v. Muir from 1950, which – in contrast to the English position – ruled that while “an irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible,” such irregularities “require to be excused” and “…are not lightly to be condoned.”14 The US cases elaborating a strict exclusionary rule were then canvassed, with reference to dicta in various cases suggesting that it was “better that a guilty individual should escape punishment than that a Court of justice should put aside a vital fundamental principle of the law in order to secure his conviction.”15 Of the three, Kingsmill Moore J opted for the Scottish position – whereby trial judges would have discretion as to whether an illegality might be excusable and the evidence thus admissible – in large part in light of what he saw as how poorly the other two had fared in some of the cases he had considered. It thus came to be the position in Irish constitutional law. Walsh J employed a similar methodology to Kingsmill Moore J, although he did not consider the foreign law quite as comprehensively in his shorter 13 14 15

Kuruma v. The Queen [1955] A.C. 197. Lawrie v. Muir [1950] s.c.j. 19. Youman v. Commonwealth (1920) 189 K.Y 152, cited in People (Attorney General) v. O’Brien, supra note 12, at 158.

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j­ udgment. Walsh J simply preferred the US approach and, as it happens, Walsh J’s preferred approach was adopted in subsequent caselaw on the matter.16 At the time of O’Brien, Walsh J was a relatively recent appointment to the Court, while Kingsmill Moore J was close to the end of his tenure. Walsh J subsequently became very influential: his judgments were cited in nearly every significant constitutional case through the 80s and 90s17 and, along with Ó Dálaigh C.J. and Henchy J., he is seen as having driven the “liberal” and “activist” orientation of the Court in the period of his tenure.18 He was also among the judges who routinely looked to foreign law – and particularly to US law – when grappling with constitutional conundrums. Recent scholarship shows that Walsh began a regular correspondence with Justice William Brennan of the US Supreme Court – himself an important figure on the interventionist US Supreme Court of that period – beginning shortly after the two met in Ireland in 1963, and continuing up until Brennan’s death in 1997.19 This included their exchanging of written judgments20 that one might deem to be of potential interest to the other in the context of a given case, as well as accompanying commentary in some instances.21 Indeed Brennan sent Walsh copies of three then recent US judgments on the exclusionary rule as the Irish Court was considering O’Brien, each of which Walsh analyzed in the course of the judgment in which he ultimately endorsed the US position.22 These two O’Brien judgments illustrate how foreign case law might be used at an early stage of constitutional development. It was a case in which the importance of abstract principle (or, as some legal theorists would argue, naked political preference) was particularly pronounced: there was little or no binding law on the question to even try to mechanically apply. Rather than engage in unbridled assessment of principles of political morality, each of the 16 17 18 19 20 21

22

See Yvonne Daly, Overruling the protectionist exclusionary rule: dpp v. JC, 19 Int. J. Ev. & Pr. 270 (2015). Aileen Kavanagh, The Irish Constitution at 75 Years: Natural Law, Christian Values, and the Ideal of Justice 48 Ir. Jur. 70, 75 (2012). See Ruadhán Mac Cormaic, The Supreme Court, 70–90 (2016). Id, at 83. In fact Brennan committed in one early letter to sending ‘slip opinions’ of every US Supreme Court judgment to Walsh once it became available. See Id. That the dialogue went both ways is illustrated by the influence of State (Sheerin) v. Kennedy [1966] I.R. 379, relating to the due process rights of children, in In re Gault, 381 U.S. 1 (1967), a US case dealing with the same question. Brennan commented to Walsh that he had read Sheerin with “fascinated interest,” and that he had passed it onto Justice Abe Fortas who wrote the majority judgment, with which Justice Brennan concurred. Justice Fortas cited the Irish case in his judgment. See Id at 138. Id, at 83.

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judges considered the possibilities suggested by the foreign law, adopting the approach that best appealed, apparently in light of abstract principle and the overall structure of the Irish constitutional system. Indeed Kingsmill Moore J expressly suggested a methodology along these lines. Early on in his judgment he commented that “there would appear to be no Irish decision on the question binding on this Court” and that “consideration may properly be given to the opinions expressed in Courts of other jurisdictions administering a similar common law…” He insisted though that “…ultimately our decision must rest on our own view of the principles involved.”23 Walsh J’s judgment in Quinn’s Supermarkets v. Attorney General remains among the main judgments on religious freedom in Irish constitutional law nearly half a century later.24 The judgment is notable in the present context for the extent to which it draws on foreign law, but also insofar as the case had so much in common with, and yet, we suggest, was different in such an important way from the Sherbert v. Verner case from 1963 that Justices Brennan and Walsh discussed in their correspondence at the relevant time.25 Having been prosecuted under the Hours of Trading Act 1938 which proscribed the sale of meat in the evening, Quinn’s Supermarkets sought to escape punishment by challenging the constitutionality of a ministerial order issued on foot of the Act on the basis that an exemption it provided to Jewish kosher shops offended the apparently rigid religious non-discrimination provision in Article 44.2.3°. That is, kosher butchers enjoyed an exemption allowing them to sell meat in the evenings to account for the fact that their Sabbath ran from sundown on Fridays through sundown on Saturdays. The idea was that the exemption facilitated observant Jews who, in the period before the widespread availability of refrigerators, wanted to buy meat for dinner on Saturday evening and/or Sunday (i.e. the exemption meant they could buy the meat on Saturday evening, after sundown).26 The fact that it compensated kosher butchers for the commercial disadvantage they suffered compared with non-kosher butchers, particularly given that Saturday was the main market day in Ireland, was presumably an additional factor.

23

24 25 26

In his concluding lines he essentially repeats this methodological point noting that foreign cases were not binding before insisting that “the problem must be approached on a basis of principle rather than authority.” See People (Attorney General) v. O’Brien, supra note 12, at 159. Quinn’s Supermarkets v. Attorney General, supra note 10. See Eoin Daly, Religion, Law and the Irish State, 85–98 (2016). Sherbert v. Verner, 374 U.S. 398 (1963). Quinn’s Supermarkets v. Attorney General, supra note 10, at 26 (per Walsh J.).

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Quinn’s Supermarkets was certainly reminiscent of Adel Sherbert’s case. Sherbert, a Seventh Day Adventist, had been fired from her factory job in South Carolina on foot of her religion-inspired refusal to work on Saturdays. She was subsequently refused unemployment benefit – in line with the statute which Justice William Brennan’s majority judgment ultimately invalidated – on the ground that she refused to accept available work “without good cause.” In Brennan’s analysis the statute forced Sherbert to choose between following her religious commitments and forfeiting unemployment benefit, on the one hand, and abandoning a pivotal religious commitment in order to accept work, on the other. The imposition by government of such a choice “puts the same kind of burden upon the free exercise of religion as would a fine imposed against the appellant for her Saturday worship.”27 He thus concluded that, absent a “compelling state interest,” exemptions from facially neutral laws for religious objectors were required by the clause guaranteeing the free exercise of religion, where those laws placed a “substantial burden” on the exercise of a citizen’s religious beliefs. It would be misleading to suggest that Walsh J relied solely on Sherbert in reaching his conclusion for the Irish Supreme Court in Quinn’s Supermarkets. While Brennnan J’s judgment in that case is analyzed in some detail and mentioned several times, Walsh J also gives much attention to four other US cases of the period. In fact he dedicates three pages of his seventeen in total entirely to an excerpt from Brennan J’s judgment in Abington School District v. Schempp, also from 1963, in which Brennan had considered the puzzles around “defining the boundary…which separates the secular from the sectarian” in the context of the US free exercise and establishment clauses.28 It is these dicta, which Walsh J deems “very important to the question at issue in this case,” that appear to inform his holding that the “primary aim of Article 44” of the Irish Constitution “was to secure and guarantee freedom of conscience and the free profession and practice of religion…” and that what might read like a strict non-discrimination subsection accordingly did not preclude discrimination where it might be required in order to facilitate free profession and practice. This in turn led to the most radical element of Walsh J’s Quinn’s Supermarkets judgment, and one that goes a good deal beyond, and surely conflicts with, the US position: that any law that has the effect of burdening a religious practice is invalid in the absence of an exemption unburdening the religious practice.29 Ultimately, however, Walsh J held that the measure was unconstitutional 27 28 29

Sherbert v. Verner, supra note 25, at 404. Abington School District v. Schempp 374 U.S. 203 (1963), at 231. Quinn’s Supermarkets v. Attorney General, supra note 10, at 24 (per Walsh J.).

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b­ ecause, by a­ llowing Kosher butcher shops stay open late every night, it went further than was necessary to enable Jewish people observe the requirements of their faith. The full effects of that holding have probably not been felt insofar as no Irish legislation has ever actually been invalidated for failing to make such an exemption.30 It is the case, however – and apparently on the basis of this ­interpretation – that Article 44 is routinely cited in support of legislation that does make such exemptions, and also in defense of more general arrangements that appear to discriminate in more obviously dubious ways, for example in respect of the control of the Catholic church over public schooling in Ireland.31 The suggestion tends to be that Irish constitutional law takes religious freedom to trump religious non-discrimination, or at least that the legislature may legislate to protect religious freedom even if this involves religious discrimination.32 The Quinn’s Supermarkets case might thus represent a less clinical use of foreign law in an area of Irish constitutional law that, like in O’Brien, had not been considered by the Irish courts previously. We suggest that this might be attributable to an effort on the part of Irish judges to shoehorn what they saw as an attractive constitutional principle into an inapposite set of facts. That is, the burdens imposed on the respective religious minorities in the absence of an exemption were not fundamentally comparable. For observant Jews in Ireland, the arrangements would not have prevented the exercise of any faith-based imperative: there was no claim that an observant Jew was under any faith-based obligation to eat meat on Sundays or indeed on any day of the week, and in any case, observant Jews could freely buy meat on Sunday mornings without any exemption for kosher butchers. Neither was there any deprivation of a basic good such as the opportunity to work or pursue education. Thus the principle was imported with the “substantial burden” element allowed to fade, presumably because no such burden was present in the Irish case. This might to some extent explain the fact that the principle subsequently developed in the new setting to a point where it significantly departs from the original principle, and conflicts with its underlying purpose. 30

31 32

The Supreme Court in fact subtly moderated the Quinn’s Supermarkets position some 25 years later, in Re Article 26 and the Employment Equality Bill 1996 [1997] 2 I.R. 321, holding that it was constitutionally permissible – but not constitutionally required – for the legislature to discriminate on grounds of religious profession belief or status insofar as this might be necessary to give life and reality to the guarantee of the free profession and practice of religion. See Eoin Daly and Tom Hickey, Religious Freedom and the Right to Discriminate in the School Admissions Context: A Neorepublican Critique, 31 Leg. Stud. 615, 618–623 (2011). Id., at 628–635.

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A year or so afterwards, Mary McGee, a 28 year old married mother of four who had been advised that a condition she had was such that another pregnancy might put her life in jeopardy, challenged Section 17 of the Criminal Law (Amendment Act) 1935 which banned the “sale” and “importation” of contraceptives.33 Having lost in the High Court, McGee was successful at the Supreme Court by a 4-1 majority, with three of the judges ruling that the provision violated what they identified as an unenumerated right to marital privacy under Article 40, and the fourth, Walsh J, that it violated the “inalienable and imprescriptible” family rights under Article 41. Walsh J’s was subsequently the most widely-cited judgment, and it may be the most widely-discussed judgment in academic scholarship on Irish public law. This is so mainly because of the dramatic language Walsh uses, and its apparently radical implications for the meaning of rights and the role of judges – matters which go beyond the present scope. He did consider then recent US caselaw that the McGee facts called to mind: Griswold v. Connecticut from 1965,34 Poe v. Ullman (1961)35 and Eisenstadt v. Baird (1972).36 But he presented them in a paragraph at the tail-end of his fifteen page judgment, commenting that his “reason for not referring to them is not because I did not find them helpful or relevant, which indeed they were, but because I found it unnecessary to rely upon any of the dicta in those cases to support the views which I have expressed in this judgment.”37 Mr Justice Seamus Henchy’s main judgment in McGee gives a more prominent place to those US cases. His overall conclusion – based on an expansive reading of the meaning of Articles 40 and 41 on personal and family rights – is clear by the end of the fourth of a seven-page judgment, by which stage he had not yet considered the foreign law. But the fifth and sixth pages are devoted to Griswold’s Case in particular, and to what he sees as its central rationale, as expressed in Goldberg J’s concurring judgment in that case: that the state interest in safeguarding marital fidelity could be served “by a more discriminately tailored statute” which, unlike the statute at issue in Griswold – and indeed in McGee as Henchy J saw it – did not “sweep unnecessarily broadly, reaching far beyond the evil sought to be dealt with and intruding upon the privacy of all married couples.”38 Henchy J then went on to reject what looks like fairly spurious treatment of foreign law in both the High Court and the dissenting 33 McGee v. Attorney General, supra note 11. 34 Griswold v. Connecticut, 381 U.S. 479 (1965). 35 Poe v. Ullman, 367 U.S. 497 (1961). 36 Eisenstadt v. Baird, 405 U.S. 438 (1972). 37 [McGee v. Attorney General, supra note 11, at 319. 38 Id, at 327, quoting Goldberg J. in Griswold v. Connecticut, supra note 34, at 498.

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Supreme Court judgment in McGee. Those judges had dismissed the relevance of the US cases on the basis that the legislation in those instances banned the “use” of contraceptives whereas the Irish legislation banned merely its “sale” and its “importation.” The implication was thus that foreign law had to be precisely on point before it could be taken as persuasive, which Henchy J saw as implausible. Griffin J agreed with Henchy J on that point, and indeed generally. The manner in which he considered the foreign law though – particularly Douglas J’s dicta in Griswold – suggests that it played a decisive role, whereas for Walsh and even Henchy it merely provided a kind of ex post facto support for the positions they took primarily on the basis of their other reasoning. That might be more a case of where Walsh and Henchy J.J. had presented the foreign law in their judgments, however. That is, the essential rationale of the foreign law may have had a more telling effect in their reasoning than the presentation of their reasoning suggests. It warrants mention, incidentally, that the expansion of the logic of Griswold into the domain of abortion in Roe v. Wade apparently i­nfluenced an anti-abortion movement in Ireland to mobilize and to lobby government for a constitutional amendment concerned with preventing a similar expansion from the logic of McGee.39 This led to the approval of Ireland’s eighth amendment guaranteeing the right to life of the “unborn” in 1983, which was repealed in the summer of 2018. 3

Foreign Law and the Effects of Findings of Invalidity

Understandably, the text of the Irish Constitution does not make the effect of a finding of unconstitutionality clear in every conceivable circumstance. Although the quandary was considered at the periphery of a few earlier cases, it first came to prominence in Murphy v. Attorney General, reported in 1982.40 In an initial ruling handed down in January of 1980, the Supreme Court had found a breach of Article 41 arising from provisions of the Income Tax Act 1967 that imposed a higher tax burden on the husband and wife applicants than would have applied to two single persons with identical incomes. (As it happens, the judges dismissed the relevance of US, German and Cypriot law in respect of the applicants’ unsuccessful Article 40/equality argument in a manner reminiscent of that dismissal of foreign law by the High Court and

39 40

See Mac Cormaic, supra note 18, at Chapter 14. Murphy v. Attorney General [1982] 1 I.R. 241.

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d­ issenting Supreme Court judge in McGee41.) Following that initial ruling, the Court reconvened to consider two further questions. First, whether the declaration of unconstitutionality would operate retrospectively or prospectively: that is, whether the Court’s ruling meant that the provisions of the Income Tax Act 1967 had been void from the moment of its enactment in 1967, or whether it was void merely from when the Court had declared it inconsistent with the Constitution in January 1980. Second, if it was to be the former, whether all of the “tens of thousands of married couples”42 that had had income deducted on the basis of the unconstitutional provisions could recover that income from the State, or whether it could only be the Murphys and, if only the Murphys, if it could be for income deducted from the date they had married in 1975, or merely from the moment that they had initiated their claim in the courts in 1978. On the first of those questions (the retrospectivity question), foreign law had little influence. By a 4-1 majority, the Court ruled that under Irish constitutional law declarations of unconstitutionality operate retrospectively rather than prospectively, with each of the four written judgments relying essentially on analysis of the text of what they saw as the relevant provisions of the Irish Constitution. For the majority, the Article 15.4.1° prohibition on parliament enacting any law “which is in any respect repugnant to this Constitution” and the Article 15.4.2° assertion that “every law” enacted by parliament that is “repugnant” to the Constitution “shall…be invalid” together meant that legislation later found to be unconstitutional has been invalid since its enactment.43 For Chief Justice Tom O’Higgins in dissent, those provisions should be read in conjunction with others, including those in Article 25.4.1° which hold that a bill “shall become and be law as on and from the day on which it is signed by the President…” That findings of unconstitutionality would apply retrospectively would be to bring those two elements of the constitutional text into conflict, he suggested, whereas their applying only prospectively would be to harmonize them.44 Although counsel for the State had urged the judges to adopt the US position on this retrospectivity question, the dissenting judge agreed with his colleagues in the majority that it was not persuasive in this instance on the ground that the power of judicial review had a fundamentally different basis in Ireland. That is, the fact that the US judges had identified the power of 41 42 43 44

Id, at 284–285. Id, at 317. Id, at 308. Id, at 300.

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j­ udicial review over legislation as implicit in their Constitution, whereas in the Irish case the power was explicit in the constitutional text, meant that the discretion that US judges had similarly identified for themselves with respect to whether they might apply their own rulings prospectively could not be simply imported by Irish judges.45 It was on the second question then that foreign law appears to have played a critical, and perhaps decisive, role in the Murphy case. Having ruled definitively in favour of retrospective application, the majority effectively limits the damage to State coffers by finding that, in Henchy J’s words, it is “not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action.”46 Henchy J cites ten cases in support of this claim of which nine are foreign.47 This includes the US jurisprudence that he and his colleagues had deemed inapplicable to the prior question of retrospective/prospective application. Henchy J notes the shift from a kind of absolutist position in Norton v. Shelby County48 from the late 19th century – whereby any arrangements made on foot of what turned out to be a void statute could not have any legal standing – towards a more common sense approach in cases such as Great Northern Railway Company v. Sunburst Oil and Refining ­Company49 and Linkletter v. Walker,50 whereby US judges had given due regard to the fact that individuals had made arrangements on foot of what they and others had understood at the relevant time to be valid law.

45

46

47 48 49 50

Id, at 294 (O’Higgins C.J.), at 313 (Henchy J), at 327 (Griffin J), and at 333 (Kenny J). It is worth noting that the dissenting judge Chief Justice Tom O’Higgins – who preferred the position on the question that happened to be the US position – pointed out that while he “[felt] bound to consider this matter on the basis of our own Constitution and in light of its particular provisions,” he was nevertheless “noting the American precedent,” at 294. This characterization by him of his use of foreign law corresponds with the apparent logic of his reasoning: that he was moved mainly by what the provisions of constitutional text suggested to him and that he was happy that that outcome happened both to appeal to him in principle and to correspond with the US position. Id, at 314 (Henchy J). On this element, it was Henchy J’s judgment that was decisive, with Griffin J suggesting simply that “the egg cannot be unscrambled” and adding that he had “had the advantage of reading in advance of the judgment of Mr. Justice Henchy and I agree with his conclusions and the reasons which he has stated therefor,” at 331. Id, at 314–324. He also cites a New Zealand statute on restitution, as well as excerpts from English, US and New Zealand textbooks on related matters. See in particular at 324. Norton v. Shelby County, 118 U.S. 425 (1886). Great Northern Railway Company v. Sunburst Oil and Refining Company, 287 U.S. 358 (1932). Linkletter v. Walker, 381 U.S. 618 (1965).

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It also includes Defrenne v. Sabena, a 1976 judgment of the then eec Court of Justice.51 There the judges had ruled that even though under Article 119 of the Treaty of the eec the principle of equal pay for equal work had had horizontal direct effect from the outset (i.e. it was enforceable not merely between individuals and their national governments, but also between private parties such as between Gabrielle Defrenne and the airline company for which she had worked), that only the applicant air hostess and other workers who had already made equivalent claims could rely on the principle to support claims concerning pay periods prior to the date of the judgment.52 In Henchy J’s analysis, the eec Court had thus attempted to reconcile the concern for the supremacy of Community law with concerns that full retrospective application “would produce a cascade of claims that could swamp many private employers and do irreparable harm to national economies.”53 It could be that it was a principle relating to legitimate expectations that ultimately did the trick for the Supreme Court judges in Murphy, or simply some kind of intuitive sense of the best outcome, all things considered. But the manner in which Henchy J in particular presents his judgment suggests that it was that principle as it has been elaborated in foreign law that was decisive – although he never says that openly in the judgment.54 In the end, just as in Defrenne, it was only the Murphys who could recover the money and, at that, only from the moment that the legislation had first been effectively impugned, i.e. when the Murphys initially brought their claim in 1978. When the question re-emerged in A v. Governor of Arbour Hill, reported in 2006, Chief Justice John Murray handed down a judgment in which foreign law was again influential, and indeed received probably its most systematic consideration in Irish constitutional jurisprudence.55 In June 2004, Mr. A had been convicted of unlawful carnal knowledge in respect of a girl who was under the age of consent, contrary to Section 1(1) of the Criminal Law (Amendment) Act 1935. Two years later, in May 2006, the Supreme Court had ruled in a case called 51 52 53 54

55

Defrenne v. Sabena, Case 43/75 ecr 455 (1976). Murphy v. Attorney General, supra note 40, at 323. Id, at 322. Although he recognized a range of factors that gave “a distinctiveness” to Defrenne which he suggested may “limit its persuasiveness as a precedent” for Murphy, he nevertheless took it to “stand as a cogent example of the principle that what has been done or left undone under a constitutionally invalid law may, in certain events such as the evolution of a set of circumstances which it would be impossible, or unjust, or contrary to the common good, to attempt to reverse or undo, have to be left beyond the reach of full redressive legal proceedings…” Id, at 323–324. A v. Governor of Arbour Hill [2006] 4 I.R. 88.

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CC v. Ireland56 that this same statutory provision was unconstitutional insofar as it precluded a defence being raised by an accused person to the effect that that accused had had reasonable grounds for believing that the complainant was over the age of consent. Although Mr. A at no stage claimed that he had been under any misapprehension as to the age of his victim (who was a 13 yearold school friend of his own daughter), the High Court agreed to his post-CC application for release on the ground that he had been convicted of an offence which – on the basis of the Murphy ruling on the retrospective effect of findings of unconstitutionality – had not existed at the time of his arrest or conviction. The expedited Supreme Court hearing, which took place before five judges and against the backdrop of a storm of political controversy, resulted in a unanimous ruling to order the re-arrest of Mr. A. While considerations of foreign law are interspersed generally in Murray C.J.’s thirty-five page judgment, ten of those pages are devoted entirely to foreign law, with individual sections considering (i) “retroactivity generally in the common law system,” and then retrospectivity in (ii) the European Union, (iii) under the European Convention on Human Rights, and then in (iv) India, (v) the United States and (vi) Canada. We need not go through the caselaw in detail, because the principles elaborated essentially correspond with the majority position in Murphy.57 So far as methodology is concerned, he appears to embrace something along the lines of those in the judgments already considered in this Chapter. Armed with various rulings including that in Murphy, he had more in the way of domestic constitutional precedent to follow than had the judges in O’Brien and Quinn’s Supermarkets, for example. He begins with some light reference to that jurisprudence and also by emphasizing those principles around an ordered society and legal finality that he took to be embraced by the Constitution understood in “holistic” lens.58 It appears from the presentation of the judgment, and indeed arguably from his own dicta, that these elements were decisive so far as the outcome of A was concerned, and thus that the foreign law safari merely “reinforced” the principle which he saw as a principle of Irish constitutional law in the first place.59 It is worth noting that 56 57

58 59

CC v. Ireland [2006] 4 I.R. 1. He repeatedly emphasizes what he calls “transcendental constitutional reasons” (which include interests such as “the common good in an ordered society, legal certainty and the need to avoid…incoherence and injustice”) that satisfy him that a declaration of constitutional invalidity “should not in principle have retrospective effect so as to necessarily render void cases previously and finally decided and determined by courts…” A v. Governor of Arbour Hill, supra note 55, at 142. Id, at 113. Id, at 142.

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he makes a point of emphasizing that it was the foreign law in systems that, like in Ireland’s, apply such declarations of unconstitutionality retrospectively that “particularly” reinforced his view on the appropriate outcome in A.60 Thus he suggested that the Indian and ecj jurisprudence he considered was more important in his reasoning process than that from the US, for example.61 The noted constitutional scholar and later judge of the Court of Appeal and Advocate General at the Court of Justice of the European Union, Gerard Hogan, had referred extensively to Canadian jurisprudence62 on the effects of declarations of unconstitutionality in his submissions to the Supreme Court while acting for the State in A v. Arbour Hill.63 This may have influenced Ms Justice Susan Denham (as she was at that stage) in engaging with that jurisprudence as carefully as she did in her concurring judgment in that case. Denham J considered the concept of “suspended declarations of invalidity” in particular, elaborating their operation in the Canadian Charter context while approving what she saw as their dialogical rationale.64 Although her comments were obiter as A did not call for a “suspended declaration,” she approved their importation into the Irish setting, dismissing any concern around a conflict with the Article 15.4.2° supremacy clause on the grounds that “the declaration of invalidity of a law and any order relating to the application of that declaration are two quite separate matters” and that “the inherent jurisdiction of the superior courts to administer justice is applicable to the decision on both issues.”65 Following his appointment to the High Court shortly afterwards, Hogan J deployed the suspended declaration concept in cases including two from 2011: Kinsella v. Governor of Mountjoy Prison66 and G v. District Judge Murphy,67 although without express reference to foreign law or even to Denham J’s dicta 60 61

62 63 64 65 66 67

Id. Indeed he noted in particular the “substantial correspondence” between the Article 15.4 provisions of the Irish Constitution mentioned earlier – as well as Article 50.1 which concerns the position with respect to pre-1937 legislation such as the legislation at issue in A – and Articles 13.1 and 13.2 of the Indian Constitution. He was also reassured by the fact that despite the Indian Constitution’s being “more explicit as to the void nature” of invalidated legislation Indian judges were happy to limit the retrospective effect of findings of invalidity for the same kinds of transcendental reasons as applied in A. Id, at 122. R. v. Bain, [1992] 1 s.c.r. 91; Schachter v. Canada [1992] 2 s.c.r. 679 and others in what has become a long line of Canadian cases. A v. Governor of Arbour Hill, supra note 55, at 100, 104–105. She commented that it “enables dialogue in the community as to the best way to proceed” and that it “encourages…the democratic process of consultation…” Id, at 153. Id. She also noted the similarity of the supremacy clause in Section 52(1) of the Canadian Charter, and that it had been no obstacle for Canadian judges on this front. Kinsella v. Governor of Mountjoy Prison i.e.h.c. 235 [2011]. G v. District Judge Murphy i.e.h.c. 455 [2011].

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in A. Then 2017 saw something of a blitz in this regard, spearheaded by the decision of a unanimous seven-judge Supreme Court in nhv v. Minister for Justice.68 This was a challenge brought by a Burmese man who had been waiting eight years for his asylum application to process to Section 9(4) of the Refugee Act 1996, which bans asylum seekers from working. Writing the sole judgment for the Court, Mr Justice Donal O’Donnell suggests that there are different ways in which the constitutional infirmity could be addressed: that such a ban could pass constitutional muster if there was a legal requirement that an asylum application would be processed within a specified time period, for instance, or if it were softened after a specified time period. Because he saw these options to be “first and foremost a matter for executive and legislative judgment,” he held that “in principle” he “would be prepared to hold that the impugned provision was contrary to the constitutional right to seek employment,” but adjourned the matter for a period of six months after which he would invite the parties to make submissions on the form of the order “in the light of circumstances then obtaining.”69 The judgment was greeted with a degree of excitement in the academic community, partly because the identification of an implied right to seek employment seemed to revive the unenumerated rights doctrine that had lain dormant since the turn of the century, and partly because of the apparently radical remedy adopted by the judges.70 This was not a quite a suspended declaration in the Canadian format but it was close to it: the judges in nhv all but suggested to the political actors that they might resolve the matter as they saw fit within the six month period. If the Article 15.4.2° supremacy clause had been tricky for the judges in Murphy and A, this remedy went a good deal further: it was to effectively preserve into the future and to continue to enforce a law that the judges had all but held to be unconstitutional, whereas the earlier judgments merely preserved and continued to enforce undertakings made in the past on foot of legislation that had later been found to be unconstitutional.71 If the Denham J obiter dicta from A addressed that concern – or indeed if the Canadian dicta which she had cited in which judges had overcome the equivalent supremacy clause in Section 52(1) of the Canadian Charter in the

68 69 70

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nhv v. Minister for Justice [2017] i.e.s.c. 35. Id, at para. 21. See Conor O’Mahony, “Unenumerated Rights after nhv” (2017) 40(2) Dublin University Law Journal 171; Eoin Carolan, A ‘Dialogue-Oriented Departure’ in Constitutional Remedies? The Implications of nhv v. Minister for Justice for Inter-Branch Roles and Relationships, 40 (2) Dub. Uni. L. J. 191. See Carolan, A ‘Dialogue-Oriented Departure, supra note 70.

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same context had been – this went unmentioned by O’Donnell J in what was a remarkably brief judgment. The idea had taken hold by that point, and so it was followed a few months later by Mr Justice John McMenamin for a unanimous six-judge Supreme Court in PC v. Minister for Social Protection: this time there was a forthright finding of invalidity with respect to Section 249 of the Social Welfare Act 2005 (on the ground that it deprived convicted prisoners of social welfare benefits thus representing a non-judicial punishment in contravention of Articles 34 and 38) combined with an nhv-style adjournment on the form that the remedy might take to allow the parties to make submissions on that question.72 The concept was endorsed again that same year in obiter comments by Mr Justice Frank Clarke (as he then was) in Persona Digital Telephony Ltd v. Minister for Public Enterprise, albeit again without direct reference to Canadian or other foreign jurisprudence.73 Hogan J, by now on the Court of Appeal, returned to the concept in 2018 when in AB v. St. Loman’s Hospital74 and Agha and Osinuga v. Minister for Social Protection75 he adopted outright “suspended declarations of invalidity,” while referring to nhv as if the Supreme Court had similarly done so.76 Overall, while foreign law has had a considerable influence in the overall domain of the temporal effect of findings of invalidity, its influence with respect to this apparent 72 73

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PC v. Minister for Social Protection [2017] i.e.s.c. 63. Persona Digital Telephony Ltd v. Minister for Public Enterprise [2017] iesc 27, at para. 4.1. where another unanimous Supreme Court ruled that old common law rules against champerty (third party funding of litigation) continued to apply in Ireland such that an agreement that the applicants had entered into with a third party to help fund an action they were taking against the State was unlawful. In a concurring judgment Clarke J. referred to what he saw as serious problems relating to the constitutional right to access justice but acknowledged that there were various policy options that could be taken to address the constitutional concern and that these were fundamentally a matter for the political branches. He warned though that “circumstances could arise where, after a definitive finding that there has been a breach of constitutional rights but no action having been taken by either the legislature of government to alleviate the situation, the courts, as guardians of the Constitution, might have no option but to take measures which would not otherwise be justified.” AB v. St. Loman’s Hospital [2018] ieca 123. Agha and Osinuga v. Minister for Social Protection [2018] ieca 155. In Agha and Osinuga, as it happens, he was very much “driven to the conclusion” to find Section 246 of the Social Welfare Act 2005 unconstitutional by German and Strasbourg caselaw that he saw as “closest on point,” that point concerning the withholding of the payment of child benefit to an Irish citizen child because of the immigration status of the parent claiming the benefit), at paras 43, 37. Niedzwiecki v. Germany [2006] e.c.h.r. 928, 1 BvL 4/97, 1 BvL 5/97, 1 BvL 6/97.

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embrace of suspended declarations of invalidity is less obvious, but, we suggest, traceable nevertheless. 4

Foreign Law and Proportionality in Rights Adjudication

Ireland has not escaped colonization by the proportionality test – the apparently international standard of review with Canadian and German origins.77 The concept had been implicit in some of the jurisprudence since at least the time of Quinn’s Supermarkets but first got explicit attention in the 1992 case, Cox v. Ireland, in which a statute that enacted penalties to deter subversive crime was struck down on the ground that it applied the penalties to offences without a subversive element, thus counting as overbroad in pursuit of a legitimate purpose.78 Two years later, in Heaney v. Ireland,79 Mr Justice Declan Costello explicitly adopted the Canadian version of proportionality, reciting word-for-word the framework as it had been elaborated in the R v. Oakes,80 the 1986 judgment of the Canadian Supreme Court. The Heaney test (or the Oakes test) is routinely set out in Irish constitutional rights judgments ever since, with its Canadian heritage often mentioned. Although foreign law has thus been of considerable influence in this most influential domain of constitutional law, it would be a mistake to draw the conclusion that rights adjudication in Ireland has simply merged with international trends. Based on a comprehensive comparative analysis of Irish and Canadian rights adjudication since Heaney, David Kenny points out that certain surface commonalities in approach tend to mask deeper divergences: that in fact rights adjudication in Ireland continues to be governed to a great extent by contingent and local considerations.81 Thus, although Irish judges routinely recite the Heaney/Oakes test, they routinely apply its various elements in ways that depart from the ways in which Canadian judges apply them – and they do so without referring to those departures, and in some instances possibly without being conscious of them. 77 78 79 80 81

Moshe Cohen-Eliya and Iddo Porat, American Balancing and German Proportionality, 8 Int. J. Con. L. 263 (2010); Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (2012). Cox v. Ireland [1992] 2 I.R. 503. See Paul Gallagher, The Irish Constitution – Its Unique Nature and the Relevance of International Jurisprudence Ir. Jur. 22, 38–39 (2010). Heaney v. Ireland [1994] 3 I.R. 593. R v. Oakes, supra note 2. David Kenny, Proportionality and the Inevitability of the Local: A Comparative Localist Analysis of Canada and Ireland, 66 Am. J. Comp. L. 537 (2018).

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One of those is the “minimal impairment” limb of the proportionality test: the limb that says that if a law interferes with a constitutional right in pursuit of a legitimate goal, it must interfere with that right “as little as possible,” or no more than is necessary to achieve the goal. While Peter Hogg describes this as the “heart and soul”82 of Canadian rights adjudication – that is, where most of the scrutiny is done and where most laws that don’t pass muster are likely to fall – in Ireland it is often not applied at all, or, when it is, is applied in a way that blunts its bite. Kenny suggests that the difference in approach in respect of this limb is pronounced in cases involving blanket bans in particular. Whereas in Canada such bans will survive this stage “only…where the g­ overnment can show that only a full prohibition will enable it to achieve its objective,” (in Justice Beverley McLachlin’s words83), in Ireland they almost routinely survive – and where they don’t, these are “isolated cases that are unusual and unexplained departures from general practice or are best understood as not being minimal impairment problems at all.”84 The contrast is illustrated in near identical challenges brought around the same time by women against blanket bans on assisted suicide. In the 2013 Irish case Fleming v. Ireland, a Divisional High Court was satisfied that the blanket ban “in principle” engaged the right to personal autonomy, which the three judges (including Mr Justice Gerard Hogan) saw as lying at the core of the protection of the person in Article 40.3.2°.85 They were not satisfied, however, that it went further than was necessary to pursue what they saw as the legitimate goal of the ban, namely protecting vulnerable people from being coerced or unduly influenced into taking the option of euthanasia. The thought was that any softening of the ban would necessarily mean that at least some who might be vulnerable to such coercion would be exposed to it; essentially that the gap between a blanket ban and the next step down was just too much.86 Although the judges in Fleming stated that they had reached their conclusion at a point in their judgment immediately prior to where they began to consider foreign law, they gave foreign law a great deal of attention and, as they themselves pointed out, the positions they identified in most of the foreign law they considered essentially mirrored their own reasoning and conclusion in the case

82 Peter Hogg, Constitutional Law of Canada, 38.36 (5th ed., 2007). 83 rjr MacDonald v. Canada [1995], 3 s.c.r. 199, at para. 343–344. 84 Kenny, supra note 79, at 552. In support of the claim, Kenny cites: King v. Minister for Envi­ ronment [2006] i.e.s.c. 61, Blehein v. Minister for Health [2008] i.e.s.c. 40 and McCann v. District judge Monaghan [2009] i.e.h.c. 276. 85 Fleming v. Ireland [2013] i.e.h.c. 2. 86 Id, at para. 76.

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at hand.87 Thus where the US Supreme Court had dismissed a similar challenge in the 1997 case Washington v. Glucksberg,88 they did so mainly out of concerns around protecting vulnerable people and a slippery slope: the Irish judges quoted Chief Justice Rehnquist’s analysis at length before concluding that although his “words were uttered in the context of a rationality analysis” (rather than the lower-level intensity review than applies in Irish rights-adjudication), his “reasoning seems to this Court to be compelling.”89 Similarly Rodriquez v. Canada, a Canadian case from 1993 in which a challenge to the blanket ban had been rejected on the basis that any loosening of it would inevitably mean that at least some vulnerable people might be exposed to coercive influence.90 The tricky one for the High Court in Fleming was the Carter v. Canada91 judgment from the previous year, which at that stage was on appeal to the Canadian Supreme Court. In the lower court judgment Justice Lynn Smith had departed from Rodriquez in holding that the blanket ban fell foul of the minimal impairment limb; she had done so partly on the ground of new evidence based on the experience of more liberal euthanasia laws in Oregon, the Netherlands and Belgium that she deemed to allay fears with respect to exposing vulnerable people to the risk of coercive influence.92 The Irish judges in Fleming devoted six pages to setting out the grounds of their disagreement with the Canadian trial judge on the implications of the evidence considered; in short, they insisted that she had been wrong to conclude that the risks in question had not in fact materialized in those jurisdictions. Although the different outcome may be explained simply by disagreement on the interpretation of evidence, David Kenny suggests that it reflects broader differences between how Canadian and Irish judges tend to apply the proportionality framework. He points out that the Canadian judges in Carter (including the Supreme Court judges, who rejected the State’s appeal93) showed 87

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Their presentation of the role that foreign law plays in their judgment is reminiscent of Walsh and Henchy JJ. in their McGee judgments: the suggestion again is that it provides ex post facto support for a conclusion they had already reached. The seventeen pages that they devoted entirely to foreign law begins immediately after a paragraph in which they stated that for the reasons they had outlined in three preceding paragraphs Marie Fleming’s challenge failed. Washington v. Glucksberg, 521 U.S. 702 (1997). Fleming v. Ireland, supra note 85, at para. 82. Rodriquez v. Canada, [1993] 3 S.C.C 519. The Irish judges commented that Sopinka J’s “analysis of the proportionality issue substantially accords with [their own] views.” Fleming v. Ireland, supra note 85, at para. 87. Carter v. Canada, [2012] b.c.s.c. 886. Id, at para. 1241, cited in Fleming v. Ireland, supra note 85, at para. 91. Carter v. Canada, [2015] S.C.C 5.

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little deference to legislative determinations concerning risk of exploitation and a slippery slope; that they dealt with the evidence presented by the State “in a curt manner,” demanding “very hard evidence” that, in the context of such a complex social question, was probably just not possible to gather.94 In contrast, the Irish judges deferred to legislative judgment based on evidence that Kenny suggests was “clearly less extensive than that presented to the Canadian courts.”95 They claim that if they were to “unravel a thread of this law by even the most limited constitutional adjudication in [Marie Fleming’s] favour, it would – or at least might – open a Pandora’s box which thereafter would be impossible to close;”96 they are concerned about “possible implications for third parties and society at large.”97 The Irish judges are thus not intolerant of blanket bans in the way Canadian judges tend to be, and they are more deferential to legislators with respect to what might justify an interference with a constitutional right. In the judgment on appeal, the Irish Supreme Court was even more restrained than the High Court, holding that the ban on assisted suicide did not engage any right in the Irish Constitution in the first place; that the right claimed amounted to a right to commit suicide rather than one relating to autonomy (i.e. meaning that proportionality considerations did not even come into play).98 Chief Justice Denham also reined in the High Court judges on a matter of considerable practical importance that also distinguishes the Irish and Canadian approaches to the application of the proportionality framework: the placement of the burden of proof. Because Section 1 of the Charter requires that a restriction on rights shall be “demonstrably justified,” the Canadian position since Oakes has been that once an applicant demonstrates that there has been an interference with a right it is up to the State to show that that interference is justified: the burden with respect to proportionality rests entirely with the State. In Ireland, the position prior to the adoption of proportionality in Heaney had been that applicants had to make their case with respect to rights claims, and that the State’s lawyers adopted a defensive mode. This did not change following Heaney, again demonstrating how local norms survived the adoption of that international standard of review. Where the High Court in Fleming had apparently shifted the burden onto the State, Denham C.J. in the Supreme Court commented: 94 Kenny, supra note 79, at 562. 95 Id., at 564. 96 Fleming v. Ireland, supra note 85, at para. 76 (italics added). 97 Id., at para. 55 (italics added). 98 Fleming v. Ireland [2013] i.e.s.c. 19, at para. 107.

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[A]n argument was advanced, derived it appears from Canadian jurisprudence, suggesting that the court should approach the question by first determining in general whether a right existed, whereupon the onus shifted to the State to justify by evidence any limitation whatsoever on the general right asserted, by reference to the principle of proportionality…It should be observed that there is no support in the jurisprudence of this Court for such an approach. Accordingly this court expressly reserves for a case in which the issue properly and necessarily arises…whether the approach to proportionality urged by the appellant…is required by, or compatible with, the Constitution.99 5 Reflections Courts might have two broad reasons for engagement with foreign law in constitutional cases. First, national courts might view themselves as engaged in a common endeavour with foreign courts. This might be the case because their constitution is committed to a particular transnational vision of rights.100 Or it might be because their constitution shares genealogical connections with o­ ther constitutions, making decisions interpreting those constitutions ­particularly relevant.101 Second, courts might view the case law of foreign courts as relevant, in some way, to the different task of interpreting their own constitution. This phenomenon has been explained in various ways, using terms such as judicial learning,102 dialogue,103 engagement,104 and theoretical authority.105 The Irish courts’ use of foreign cases falls within this second model. The judges view their role as being to interpret the Irish Constitution, not to engage in a general project of transnational constitutionalism. However, they r­ ecognise

99 100 101 102 103 104 105

Id, at para 140. See also David Kenny, Proportionality, the Burden of Proof, and Some Signs of Reconsideration, 52 Ir. Jur. 141, 149–152 (2014). See Jeremy Waldron, Partly Laws Common to All Mankind (2012). See Han Ru Zhou, A Contextual Defense of Comparative Constitutional Law 12 Int. J. Const. L. 1034 (2014). Claire L’Heureux-Dubé, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court 34 Tulsa L.J. 15, 17 (1998). Sujit Choudhry, Globalsation in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation 74 Ind. L.J. 819 (1999). Vicki Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement 119 Harv. L. Rev. 109 (2005). Oran Doyle, Constitutional Cases, Foreign Law and Theoretical Authority 5 Glob. Const. 85. (2016).

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that foreign law can be helpful to them in some way as they elaborate Irish constitutional principles. Understood in this way, it is not surprising to see that foreign law featured significantly in the early activist phase of the Supreme Court. Courts that have not developed their own constitutional jurisprudence have more to learn from the decisions of foreign courts.106 This explains the reliance placed on the case law of the United States Supreme Court in O’Brien, Quinn’s Supermarket, McGee and Murphy. The use of foreign law is not quite so prevalent in recent years and the range of countries to which regard is had has increased. Consistent with other global trends, the Irish Supreme Court is probably now more likely to look to decisions of the Canadian Supreme Court than the United States Supreme Court. As we noted in Section 2, it is not always easy to identify precisely what role the foreign law is playing in the Court’s decision-making. This reflects the general difficulty of conceptualising how foreign law can play some role in the decision-making process without being so definitive as to alter the content of national law, thereby raising the anti-democratic problems decried by Antonin Scalia.107 Oran Doyle has argued elsewhere that judges treat foreign law as theoretically authoritative.108 One person holds theoretical authority over another where she knows more about the subject-matter in question. For instance, an expert on Aristotle is authoritative as to the best interpretation of Aristotle, at least over those who have less or no familiarity with the work of Aristotle. At the start of the national court’s consideration of a case, the decision of a foreign court on a cognate issue holds theoretical authority because the foreign court should have arrived at a better understanding of the issue. The foreign court came to its conclusion following detailed submissions and evidence and the opportunity for lengthy deliberation and reflection. As such, it holds relative theoretical authority over the national court which is only now beginning its consideration of the issue. However, the theoretical authority of the foreign court dissipates as the national court engages with the issue, leading to a situation where the foreign law ultimately can only persuade on its merits. This is consistent with how foreign law is treated in the Irish cases considered in this chapter. Under this model, foreign law can only hold theoretical authority where the foreign court is from a reasonably similar constitutional system considering a 106 See the comments of Chaskalon P. of the South African Constitutional Court in The State v. Makwanyane [1995] z.a.c.c. 3 at para. 37. 107 Antonin Scalia, Commentary 40 St. Louis U. L. J. 1119 (1996). 108 Doyle, supra note 105.

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reasonably similar issue. For this reason, cases of judicial method are particularly appropriate for the consideration of foreign law. In such cases, it is less likely that specific constitutional text will determine or be highly relevant to the outcome. This increases the opportunities for judicial learning. Consistent with this observation, the Supreme Court has been particularly open to the consideration of foreign case law in this domain, as we saw in Section 3. The Irish approach to the proportionality doctrine, considered in Section 4, provides a salutary lesson. Notwithstanding that the Irish Supreme Court has cited verbatim the proportionality test laid down by the Canadian Supreme Court, it has applied that test in a radically different way. Ultimately, unspoken attitudes of judicial deference have had a greater impact than the imported foreign law. This illustrates both that judicial references may not be what they seem and, more substantively, that national law and national legal attitudes can be quite resistant to foreign influences.

Legal Comparison Within the Case Law of the Supreme Court of the United States of America Giuseppe Franco Ferrari No man is an island, entire of itself; every man is a piece of the continent, a part of the main. john donne, Meditation xvii, 1623.

∵ 1 Introduction American constitutional history is characterised by evolutionary cycles powered by the courts, within which the Supreme Court progresses beyond the political centre of gravity in Congress, exerting a driving force on the majority by adopting lines of decisions that are capable of sowing the seeds within political culture and public opinion of a discursive attitude that is conducive to overall cultural growth, even though such growth often lags behind the approach followed by the courts, which not infrequently attracts even harsh criticism. If we limit our focus to the last fifty years or thereabouts, summarising as far as permitted within the limits of comprehensibility, it may be noted that a dynamic of this nature has been engaged on several occasions. During the 1950s and until 1968, racial segregation, and latterly full racial integration, were devised and implemented prevalently within the courts, arousing strong reactions from politicians and academics, and resulting in particular in renewed interest in the debate concerning the role of and limits to judicial review, which had remained latent since the Roosevelt era. Until well into the 1960s, through to the end of the Warren Court and beyond, cases concerning civil and political rights effectively resulted in the rewriting of the federal and state laws of criminal procedure, the full assertion of freedom of expression, the reorganisation of political representation on an egalitarian basis and the reinforcement of the wall of separation between public institutions and religion: moreover, the line imposed by the Court sparked off lively debates within political circles and academia. Around the middle of the 1970s, Chief Justice Burger’s Court

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established and directed preferential treatment doctrine as an instrument of the promotion of effective racial equality, asserting the right to privacy along with all of its implications for family life and sexual mores, and the (incomplete) acquisition of social rights through the equal protection and due process clauses, which were often highly at odds with and radically opposed to the traditional values of the American way of life. It was during this period that interpretative tendencies such as originalism, which was construed as a bulwark against judicial activism, were created and developed as a reaction to the political-constitutional line expressed by the Court. Following the appointment of Chief Justice Rehnquist, the Court’s activism moved predominantly to issues of federalism, and to a lesser extent to other problems of constitutional engineering, for example those concerning the principle of separation of powers. In this case, the prevailing social sentiment was largely aligned with the choices made by the Court, even though the preference in favour of States’ rights inherent within political culture was latent and needed to be aroused and made more widely aware. The literature searched for a jurisprudential leitmotiv, whilst not shirking back from making its own relatively original proposals. From the middle of the 1990s onwards, whilst it did not abandon the issue that was closest to its heart – federalism – the Court grappled above all with more sophisticated expressions of freedom rights, considered in the light of IT, bioengineering and in general the highly rapid technological transformation. In doing so it attempted to keep public opinion under control despite its increasing polarisation and the influence exerted by the media, most likely also due to a lack of leadership on the benches of the Court itself and due to the evident juxtaposition of ideologically opposed groupings within it. Issues such as abortion, the death penalty, sexual preferences and the use of the media took up most of the energies of the Court and attracted most public attention. During this period, public lawyers attempted to reconstruct the fragmented framework, although they ended up being radically divided perhaps like never before between progressivists, who favoured an evolutionary interpretation, on the one hand and strict constructionists on the other hand, who sought to respect the historical meaning of the Articles of the Constitution. Over the initial years of the new millenium, within the context of the full and undisputed assertion of the political, economic and cultural model championed by America as part of the new world order emerging through globalisation, the Court appeared to have found a new issue, this time methodological in nature (at least apparently), but which had a profound capacity to evoke the basic axiological foundations of western civilisation: the use by the courts of foreign or international law, whose aims can be verified only ex post. The Court

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promptly broke down in two opposing camps, with the language of at least some of its members soon becoming virulent and disputes rapidly shifting to the political arena and the media. Once again, this has brought constitutional law out of the courts and to the attention of vast segments of public opinion. Techniques of interpretation and methods of analysis have been transformed into genuine test beds for ideological positions and value conflicts, reaching far beyond the effective impact which the recourse to the particular instrument may have had within the practice of the courts. Thus, the contours were marked out for a new battleground (which had always been latent within American political and legal culture): on the one hand solitary and introverted unilateralism, proud and at times arrogant, eager to stand aloof above the conflict which international law risked introducing into the system through its different techniques, and jealous of its own domestic rules, which comparison can jeopardise by activating forms of emulation, or even simply by providing supplementary epistemological instruments in addition to those available internally; on the other hand, the generous and at times naïve desire to engage in dialogue for the purpose of learning and exchange, at least with similar systems. Around 2010, however, such cultural clash has had further developments in the academic debate outside the Judiciary, while the Supreme Court has almost dismissed the citation of foreign cases and of international law, so lowering down ist own conflict rate. We may start inductively from the historical record in order to build up a systematic account of the overall picture. 2

Historical Precedents

If we consider the federal or State cases in the usa in which foreign law is discussed, which is now greatly facilitated by the new technologies, it will be noted that reference is made to case law or legislation from common law or certain European countries at most on a sporadic and occasional basis, and certainly not systematically. The classical studies by Roscoe Pound,1 Grant Gilmore2 and also Howard Milton Colvin3 have long since cast light, through their writings often of 1 R. Pound, The Formative Era of American Law, New York, N.Y., 1938. 2 G. Gilmore, The Ages of American Law, New Haven, Conn., – London, 1977. 3 H. Milton Colvin, Roman and Civil Law Elements in Sources of the Law of the United States, Studi in memoria di Aldo Albertoni, Padova, 1935.

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considerable literary merit and also of profound learning, on the relations between American law and its British forefather, in particular over the decades immediately following independence. The indications provided in their writings form part of the broader historical account, and need not be considered in this paper. It goes without saying that the inevitable juxtaposition with the English system, up until almost the middle of the 19th Century, did not favour the widespread application of the comparative method, even only with reference to common law cases, but also acted as a basis for the construction of a system that was self-sufficient on the jurisprudential, doctrinal and legislative levels. A brief verification of the references made by courts points above all – aside from the special case of Louisiana, which is also considered in greater depth by Pound4 – to the existence of some trace of influence by French law over the rulings of the courts in Michigan (1860), Wisconsin (1864) and Illinois (1878), above all on account of the presence of waves of French colonisers in the Northwest Territory, which was governed by the 1787 Ordinances, alongside the attention in particular in the courts of States along the North Atlantic seaboard for French legal scholarship in the area of commercial law through to the middle of the 1800s, as part of a polemical assertion of distance from the albeit more widely known acquisitions from British case law in the same areas.5 At the level of the Supreme Court, there have been very few cases in which its opinions, when written by individual judges and even more rarely when written for the Court as a whole, contain any mention of institutes or concepts of foreign law or decisions of foreign courts, aside from references to public international law in maritime jurisdictional disputes and the search for the applicable law within disputes in the area of private international law. During the 19th Century, a reference was made to the French Commercial Code by Chief Justice Marshall6 in relation to the admissibility of accounting records within civil proceedings, followed shortly afterwards by another in relation to the 4 R. Pound, The Influence of the Civil Law in America, 1, La L. Rev. 1 (1938) e The Influence of French Law in America, 3 Ill.L.Rev. 354 (1908–1909). 5 Cfr. A.A. Levasseur, The Use of Comparative Law by Courts, 42 Am.J. of Comp. L. 41, 44 (1994). Several other reconstructions of lines of precedents in the Supreme Court’s jurisprudence from the beginning to the 1950s have been recently published: see e.g., R.D. Glensy, Which Countries Count? Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45 Va J. Int’l L. 357, 365–372 (2005); A.N. Lavinbuk, Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court Docket, 114 Yale L. J. 855 (2005); S.A. Simon, The Supreme Court’s Use of Foreign Law in Constitutional Law Cases, 1 J.L. & Cts. 279 (2013); S.G. Calabresi, B.G. Silverman, Hayek and the Citation of Foreign Law: A Response to Professor Jeremy Waldron, 2015 Mich. St. L. Rev. 1, 5–6. 6 M’Coul v. Lekamps’ Administratrix, 15 U.S. 111, 117 (1817).

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treatment of the Indian nations and their territories under Dutch and French colonial law,7 in which the reference to the “so-called civilised nations” appeared for the first time. Historical and comparative references may be found in cases concerning the slave trade, form Antelope in 1825,8 again by Marshall, through to the infamous Dred Scott v. Sandford in 1857:9 long and learned expositions were provided by Justices Taney, Curtis and Nelson, in which references to English case law are interspersed with Roman law citations filtered through Gibbons and with passages from largely natural law philosophers. Finally, during the last quarter of the century, reference should be made to the summary mention by Chief Justice Waite of the European legislation on marriage when upholding the constitutionality of the prohibition on polygamy in Reynolds v. United States10 and to the dicta by Justice Mathews in Hurtado v. California11 on the fact that the institute of the grand jury could not be traced back to the remote precedents of English constitutional history in order to avoid recognising a right to a constitutional guarantee purportedly relating to it. Throughout the 20th Century until the Warren Court, an awareness of comparative law is expressed rather sparsely within the Court’s rulings, and is largely apparent for judges who were particularly sensitive to such aspects as a result of the specific circumstances of their training or career, or in cases in which exceptionally erudite documentation was filed by the parties. One may recall for example the legislative and jurisprudential materials submitted by Louis D. Brandeis as the lawyer for the respondent State in Muller v. Oregon12 in support of the view that women were psychologically and physically different and consequently in defence of the State’s legislation limiting the number of hours which women could work: the “Brandeis brief” cited the legislation of at least seven European countries, including the United Kingdom, France, Germany and Italy. The admiration of the author, Justice Brewer, for the relevance of the foreign material did not however go so far as to assert that it should have legal status, although it was relevant in establishing the substantive context to the contested legislation.13 Thirty years later, in 1936, Justice Benjamin Cardozo resolved the question of the continuing availability of the liability action against a shipowner for harm 7 8 9 10 11 12 13

Johnson v. M’Intosh, 21 U.S. 543, 572 (1823). 23 U.S. 66 (1825). 60 U.S. 393 (1857): see recently S.H. Cleveland, Foreign Authority, American Exceptionalism, and the Dred Scott Case, 82 Chi.-Kent L. Rev.393 (2007). 98 U.S. 145 (1878). 110 U.S. 516 (1884). 208 U.S. 412 (1907). 208 U.S. 419 ff.

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caused to crew members even after the death of the mother of the employee who had been killed, drawing on the links between the 15th Century case law of the King’s Bench and Roman law.14 In 1946, in New York v. United States15 it was Justice Frankfurter who referred in several footnotes to Argentinian law and the constitutions of Australia and Canada in order to resolve a problem of loyal cooperation between the federation and the States in relation to taxes on the sale of mineral water. In 1952, in a passage contained in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer16 concerning the use of industrial installations for military purposes, again Frankfurter distinguished between the situation in America and the emergency wartime legislation provided for under the German Weimar Constitution, the French Constitution and UK law. In 1961, Chief Justice Warren referred, in a manner similar to the Brandeis brief, to the legislation of around ten European legal systems in upholding limits imposed under State law on Sunday work.17 In the same year, Justice Harlan based his dissent in Poe v. Ulman,18 a case in which the Court rejected by a majority decision the objections raised against a Connecticut law criminalising the use of contraceptives, referring in the notes to the legislation of eight European countries. We may also recall a passage from Roe v. Wade,19 the landmark judgment on the constitutionality of abortion, in which Justice Blackmun engaged in a brief excursus into ancient history, referring to Persian law, Greek law and classical Roman law criminalising abortion, accompanied by citations in the footnotes. Finally, in Bowers v. Hardwick,20 an equally renowned decision from 1986 adopted during the final period of the Burger Court on the criminalisation of sodomy between consenting adults, the Chief Justice made a summary reference to mediaeval scholastic writings and to precedents from the English ecclesiastical courts, citing also Blackstone and Maitland.21 The small number of references made within the precedents of the Supreme Court is reflected by the handful of references to foreign laws made by the

14 15 16 17 18 19 20 21

Administrator v. Sabine Towing Co., Inc., et al., 300 U.S. 342 (1936), mentioned by A.A. Levssseur o. c., p. 52 ff. 326 U.S. 572 (1946). 343 U.S. 579, 635 (1952). McGowan v. Maryland, 366 U.S. 1101 (1961). 367 U.S. 497 (1961), n. 16. 410 U.S. 113, 130 (1972). 478 U.S. 186 (1986). 478 U.S. 197.

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lower federal courts,22 excluding naturally any cases in which the application of foreign law, and hence the need to cite it, was required in order to resolve a conflicts of laws issue. References within the case law of the States are even more sparse: Lavasseur cites a total of 35 cases over the period 1950–1994, consisting largely in references to the French Civil Code, mainly in the area of family law.23 However, the number of relevant cases increases significantly if consideration is given to the – fairly numerous – cases in which individual judges or majority opinions do not invoke specific rules under foreign law or engage in comparative law reasoning, but refer generically to the legislative practices of civilised nations,24 the standards of decency in a civilised society,25 or the notions of justice of English-speaking peoples,26 which echo the decent respect of the opinions of mankind mentioned in the Declaration of Independence (paragraph 1) and other writings by Thomas Jefferson. As has been asserted by Vicki Jackson,27 similar formulations have been used both in defence of the rules or conduct of public bodies that are alleged to be unconstitutional and also as a means of establishing the special or unique status of American law, which is asserted to require protection against public law provisions that are considered to be incompatible. Not infrequently they are used within the very same decision in support of opposing arguments, having been invoked by both the majority opinion and in the dissent.28 As a rule, these techniques have been

22

23 24 25 26 27 28

Such as Aluminium Company of America v. Essex Group, Inc., 499 F. Supp. 53, 1980, in the area of contracts, cited by A.A. Levasseur, o. c., p. 56. Stephen A. Simon (Foreign Law and Constitutional Rights in the US Courts of Appeals: Findings and Implications, 8 Vienna J. on Int’l L. 251 (2014)), however, has counted not less than 45 cases, excluding those where English law is cited, or where authoritative classic treatises, such as Blackstone’s or Grotius’, are quoted, of which 23 go back earlier than 1990. Criminal procedure is the area where the citations are more frequent (24), followed by economic rights (5), cruel and unusual punishment (5), and first amendment rights. Simon’s classification of the forms of references is also very interesting: see infra, par. 6. See again A.A. Levasseur, o. c., 56 ff. Such as Twining v. New Jersey, 211 U.S. 78, 113 (1908), concerning the privilege against self-incrimination. Such as Adamson v. California, 332, U.S. 46, 61 (1947), by Felix Frankfurter or again in his words in Stein v. New York, 346 U.S. 156, 199 (1953). Such as in Rochin v. California, 342 U.S. 165, 169 (1952), again in a concurring opinion by Frankfurter. V.C. Jackson, Narratives of Federalism: Of Continuities and Comparative Constitutional Experience, 51 Duke L.J. 223 (2001), 247 ss. Such as Fong Yue Ting v. United States, 149 U.S. 698 (1893), concerning the expulsion of illegal immigrants.

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used predominantly in the area of civil rights, especially when establishing the distinguishing feature between individual rights that benefit from ordinary protection and “preferred” freedoms amenable to incorporation into federal law, which are thus eligible for protection also within and against the States at the intersection between the defence of individual rights and the conception of the foundational structure of federalism. In these cases, the reference to standards that are not merely domestic acts as an instrument for reinforcing and supplementing the constitutional rule and for legitimising the discretionary selective choices made by the Supreme Court in the area of public law, which may thereby give cause to believe that it has exercised a power of decision that is limited and not creative, being required to do so by axiological and not merely internal factors. Other cases, necessarily falling prior to World War Two, did not refer to foreign law as such but rather asserted the primacy of American constitutionalism in as much as it is based on a written constitution,29 especially when compared to English law,30 or centred on the separation of powers.31 In such cases references do not have any genuine comparative law relevance but serve solely to exalt the merits of the American Constitution and its system of judicial review. The situation changed radically after 1945, and even more so after 1989, as a result of the cycle of constitutionalism that led to the dissemination – and in fact also the diversification – of the model, with the result that the selfcongratulatory assertion of the unique nature of the US system was no longer sufficient. Overall, the recourse to foreign law by US courts has thus traditionally been highly limited, with a clear predominance within local courts of stereotypical references to French law in codified areas relating to the law of persons, and within federal courts of learned, and in many cases erudite, citations with a preference for ancient and mediaeval history, often without correct historical accounts of concepts and institutes, as well as sporadic reviews of the legislation of European countries, above all in the area of welfare. This traditional conclusion, however, in the last fifteen years has been questioned in its accuracy but for the most part confirmed by several careful researches. Some of them have used an ideological approach, favouring32

29 30 31 32

Such as in The Pipe Line Cases, 234 U.S. 548, 564 (1914), Justice McKenna. Such as in The Lottery Case, 188 U.S. 321, 372 (1903), in the dissent by Justice Fuller. Such as in Standard Oil Co. v. United States, 221 U.S. 1, 103 (1911). Such as S. Yeazell, When and How U.S. Courts Should Cite Foreign Law, 26 Const. Commentary 59 (2009).

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or opposing33 transjudicial communication.34 Others have preferred to resort to a more neutral quantitative method.35 The cases reported have been variously classified: diachronically in time blocks,36 synchronically in categories according to the kind of use of foreign law,37 giving evidence to opinions where foreign materials are deployed in the interpretation of domestic law and setting aside admiralty cases; functionally, depending on the role of comparative reasoning in supporting legal conclusions.38 References to English law are usually considered irrelevant, due to its nature of source of practices belonging to the very roots of American law.39 The most recent and accurate research40 has counted a total of 59 cases from the beginning to the end of the twentieth century, with an average frequency of 0.42 case per year and a sudden occurrence increase to 1.0 during the Warren Court. The issue areas of most frequent citations of foreign law have been criminal procedure, with 20 decisions, economic liberty, with 10 cases, contract, with 5, cruel and unusual punishment, with 8, and I Amendment rights with 12. In a prospect of individual judges, Justices Byron White and Field rate first, together with Chief Justice Warren, with 4 cases, followed by Justices Kennedy, Blackmun, Frankfurter and ­McKenna with 3. Stephen Simon41 has even tried to construe a classification of the relevant cases in terms of citations in support of domestic consensus (“consensus confirmation”) in order to defend the constitutionality of a statute or other governmental act or to strike it down (“consensus enforcement”) or in the absence of such orientation of the American public opinion (“consensus identification”) to sustain the judgment. It has even become frequent for scholars to investigate the approach of individual judges of the past towards the 33 34 35 36 37 38 39 40 41

Such as E.A. Young, Foreign Law and the Denominator Problem, 119 Harv. L. Rev. 148 (2005) and obviously R.A. Posner, Foreword: A Political Court, 119 Harv. L. Rev. 31 (2005). Expression used first by R.C. Black, L. Epstein, (Re)-setting the Agenda on Transjudicial Communication, 32 L. & Soc. Inquiry 791 (2007). Such as D. Zaring, The Use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 J. of Empirical Legal Studies 297 (2006); S.A. Simon, The Supreme Court’s Use of Foreign Law in Constitutional Rights Cases, cit. S.G. Calabresi, S.D. Zimdhal, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Will. & M. L. Rev. 743 (2005). D. Zaring, The Use of Foreign Decisions, cit., 300 ff. S.A. Simon, The Supreme Court’s Use of Foreign Law, cit., 280; G. Sitaraman, The Use and Abuse of Foreign Law in Constitutional Interpretation, 32 Harv. J. of L. & Publ. Policy 653, 655 (2009). Opinion that seems to be shared by The Supreme Court itself: Borough of Duryea v. Guarnieri, 564 U.S. 379, 388 (2011), concerning the right to petition and its origins. S.A. Simon, The Supreme Court’s Use of Foreign Law, cit., 284. Ibidem, 288 ff.

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comparative method with reference to specific legal systems, such as Edward Douglass White’s towards Roman and Catholic law42 3

From the 1990s to 2005: Some Developments

The opening up of a new front of judicial activism in terms of the use of foreign materials from a comparative or international law perspective has been, as mentioned above, a relatively recent phenomenon, which may be traced back to several judgments from the 1990s, becoming more frequent around the turn of the millennium, mainly in the area of sexual mores and the death penalty, although also with incursions into the area of federalism. Some initial indications of a change in sensitivity or in any case a heightened attention towards foreign law are apparent in several decisions adopted between 1990 and 1992. For example, in his partially dissenting opinion in Planned Parenthood v. Casey43 on abortion, Justice Rehnquist referred to the case law of the Supreme Court of Canada and the German Constitutional Court. Whilst he would later become one of the most ardent opponents of recourse by the courts to comparison, in one of his most vehement dissents (in Mclntyre v. Ohio Elections Commission44 on election law and the prohibition on advertising through anonymous posters), Justice Scalia referred to the electoral laws of the United Kingdom, Canada and Australia, whilst in r.a.v. v. City of St. Paul45 on the relationship between freedom of expression and subversive conduct, he invoked the case law of various constitutional courts. However, at this stage there appeared only to have been a few less sporadic references in some sensitive areas, an indication perhaps of a greater openness towards the experiences of other western democracies within the new context of almost completely depolarised world politics and the now uncontested American cultural supremacy. The “ideologisation” of the issue and its location at the heart of a lively and repolarised debate still lay in the future, coming in 1997 evidently within a profoundly changed political and cultural climate. It was in Printz v. United States46 in 1997 that the problem came to a head, essentially taking on its definitive contours at the heart of an ideological radicalisation for which it constituted the new battleground, on the basis of arguments 42 43 44 45 46

C.J. Jr. Reid, Edward Douglass White’s Use of Roman and Catholic Law: A Study in the Supreme Court’s Use of Foreign Legal Lectures, 31 U. St. Thomas L. J. 281 (2005). 505 U.S. 833, 945, n. 1 (1992). 514 U.S. 334, 381 (1995). 505 U.S. 377, 396 (1992). 521 U.S. 898 (1997), Nos. 95–1478 e 95–1503.

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that, if not new, had rather been re-adapted to the changed environment. The case concerned the constitutionality of the Brady Handgun Violence Prevention Act,47 which had established a national system for controlling purchases of firearms, allocating its management to the federal Attorney General by using local administrative officials referred to as “chief law enforcement officers”. A majority of seven held that the establishment of a centralised bureaucracy, the burden of which was imposed even in part on the States, was not compatible with the federalist constitutional settlement, basing its views on a broadsweeping historical analysis and drawing on the intentions of the Founders along with a long line of precedents. Justice Breyer,48 whose opinion was also endorsed by Justice Stevens, referred to the Swiss and German federal structures, as well as the experience of the European Union, as construed and interpreted within the American literature, in an attempt to prove that the usage of local officials or the delegation of administrative functions could occur in place of the creation of a centralised organisational structure and be better compatible with the principle of minimum interference within individual freedoms. Breyer did acknowledge that he was interpreting the American Constitution and not that of other nations. However, he concluded that the obvious political and structural differences were no less important than the empirical evidence that comparison can provide, at least in terms of the consequences of the different solutions to common problems faced within different countries, thereby offering confirmation for internal interpretative solutions. Scalia’s answer, provided in a footnote,49 which was vehement and almost disparaging, argued that a comparative analysis may be relevant when drafting a constitution, as is demonstrated by the familiarity of the Federalists with foreign materials; however, it was inappropriate for the purpose of constitutional interpretation. The juxtaposition of the two arguments encapsulated once and for all the heart of the matter, so much so that it would return to the fore unchanged a number of years later in direct and public discussions between the Justices, of which transcripts are available.50 However, the dispute moved on to new terrain, taking on increasingly harsh tones and a marked ideological tinge, into areas in which in the past the Court 47 P.L. 103–322, 103 Stat 2074, 18 u.s.c. §922. 48 521 U.S. 898. 49 521 U.S. 921, n. 11. 50 See Transcript of discussion between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer, American University College of Law, Jan. 13, 2005, eg. 26 e 28. To the same year belongs Washington v. Glucksberg, 521 U.S. 702, 718 n. 16, where Rehnquist cites foreign decisions, mainly of the Canadian and Colombian supreme courts concerning euthanasia.

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would have limited itself, without any radical objections, to invoking the “standards of decency” so dear to Felix Frankfurter. Accordingly, Justice Breyer has argued on various occasions51 that a long period of incarceration on death row constitutes in itself “cruel and unusual punishment” within the meaning of the Eighth Amendment and thus precludes execution, in doing so referring to the decisions of foreign courts, which have on some occasions refused extradition to the United States precisely for this reason, as well as the judgment of the European Court of Human Rights which held that the surrender of a person to a legal system that permits the “death row phenomenon” constitutes a violation of the echr.52 Again in the area of the death penalty, in Atkins v. Virginia53 a majority of six found the death penalty to be unconstitutional where it was imposed on person with an intellectual disability, overturning a previous decision from 1989.54 Justice Stevens, citing inter alia a submission made by the European Union as an amicus curiae, afforded particular weight in a note to the fact that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved”.55 Scalia argued that the majority had not been able to demonstrate a real change in the national consensus and had thus fallen back on the view of the “so-called world community”,56 reiterating that fortunately “notions of justice elsewhere prevailing are (thankfully) not always those of our people”. In 2003 the dispute moved on the criminalisation of sodomy. Lawrence v. Texas57 struck down such a rule as unconstitutional, reversing the 1986 precedent in which Chief Justice Burger had made detailed historical and comparative references.58 On this occasion it was Justice Kennedy who referred to a decision of the European Court of Human Rights, which had moreover been adopted prior to 1986,59 in order to demonstrate that the argument by the respondent State that it was endeavouring to place the criminalisation of the conduct under examination within the tradition of western civilisation 51 See Elledge v. Florida, 525 U.S. 944 (1998); Knight v. Florida, 528 U.S. 990 (1999), citing precedents of Jamaica, India and Zimbabwe, and Foster v. Florida, 537 U.S. 990, 992 (2002). 52 Soering v. United Kingdom, 11 Eur. Ct. H.R. 439 (1989). 53 536 U.S. 304, No. 00-8452, about which G.F. Ferrari, La Corte Suprema degli Stati Uniti nei terms 2001/2002 e 2002/2003, cit., 3227 ff. 54 Penry v. Lynaugh, 492 U.S. 302. 55 536 U.S. 321 n. 21. 56 536 U.S. 347–348. 57 539 U.S.558 (2003). 58 See supra, par. 2. 59 Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981).

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was baseless;60 Scalia did not pass over the opportunity to define the phrase in question and the entire argument as “meaningless dicta”.61 Finally, in 2005 another ruling supported by detailed reasons and of major relevance for public opinion was adopted in Roper v. Simmons62 by a 5-4 majority (penned by Justice Kennedy), which prohibited the recourse to the death penalty for persons under the age of 18. The decision was based mainly on the evolution, within the interpretation of the Eighth Amendment, of the “standards of decency that mark the progress of a maturing society”.63 The same canon of interpretation had already been invoked in 1988 to ban the death penalty for children under the age of 16,64 whilst a similar conclusion had not been reached for adolescents aged between 16 and 18.65 During the period falling between this decision and Roper v. Simmons, the number of States applying the death penalty to children falling within this age band fell significantly, and the psychology and criminology literature, which was broadly drawn upon in the ruling, largely took the view that neither a retributive nor a demonstrative aim was pursued by such penalties. These findings were used as a primary support in favour of the decision, although an entire section was dedicated to a comparative review of legislation and case law. In this review Justice Kennedy concluded that, since 1990, only seven countries had executed minors (Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, Congo and China) and that thereafter all of them had abolished or decided not to apply the provisions in question, whilst the practice was prohibited under Article 37 of the United Nations Convention on the Rights of the Child, which had been ratified by all countries from around the world except the United States and Somalia, alongside the San José Convention, the African Charter on the Rights of the Child, the International Covenant on Civil and Political Rights and other international conventions; he thus inferred that the prevailing weight of international public opinion precluded the execution of children. The opinion was concluded with a note of veneration for the Constitution and its originality and necessity in preserving national identity. However, it was forcefully stressed that an awareness of the assertion of fundamental rights by other peoples does not entail any weakening in faith in the Constitution, but rather highlights the centrality of those very same values within the American legal inheritance. 60 61 62 63 64 65

539 U.S. 571–573. 539 U.S. 598. 543 U.S. 551 (2005). Such as in Trop v. Dulles, 356 U.S. 86, 100 (1958). Thompson v. Oklahoma, 487 U.S. 815. Stanford v. Kentucky, 492 U.S. 361 (1989).

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Justice Scalia responded with firmness and sarcasm, highlighting first and foremost that the failure by the usa to adhere to or to sign with reservations the conventions cited by the majority should constitute evidence of the lack of a national consensus concerning the issue or the existence of an opposite consensus, and went on to note that institutes or principles that clearly form part of American law, such as the exclusionary rule within criminal trials or the separation between Church and State, are almost unknown in other countries. According to Scalia, the Court should therefore admit its intention to re-examine its entire axiological heritage in the light of foreign opinions, or otherwise refrain from including them within the reasoned basis for its decisions. In a particularly sharp assertion, which has been repeatedly cited within the literature, he states that: “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision making, but sophistry”.66 The approval of other peoples should not assist the Court in its commitment to protect American values, just as disapproval should not undermine that commitment. Moreover, foreign law was being drawn on in this case in order to put an end to practices that had been widespread in America for centuries. Roper v. Simmons represents the fullest expression of the polarisation of the Court regarding the usage of foreign or international materials. The literature, which had previously been aware of the issue,67 has moved to the heart of the debate,68 which however was not likely to abate even following 66 67

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543 U.S. 573 (2005). See a summary of the debate up till the decision in P.G. Carrozza, “My friend Is a Stranger”: The Death Penalty and the Global Ius Commune of Human Rights, 81 Tex. L. Rev. 1031 (2003); v. Inoltre H.H. Kof, Paying “Decent Respect” to World Opinion on the Death Penalty, 35 U.C. Davis L. Rev. 1085 (2002); N.V. Demelitner, The Death Penalty in The United States: Following the European Lead?, 81 Ore. L. Rev. 131 (2002); C.A. Bradley, The Juvenile Death Penalty and International Law, 52 Duke L.J. 485 (2002); D. Bodansky, The Use of International Sources in Constitutional Opinion, 32 Ga. J. Int’l L & Comp. L. 421 (2004); M.A. Waters, Justice Scalia on the Use of Foreign Law in Constitutional Interpretation: Unidirectional Monologue or Co-constitutive Dialogue?, 12 Tulsa J. Comp. & Int’l L. 149 (2004); L.E. Rothenberg, International Law, U.S. Sovereignty, and the Death Penalty, 35 Geo. J. Int’l L. 564 (2004); J. Larsen, Importing Constitutional Norms from a “Wilder Civilization”, Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St.L.J. 1283 (2004); N. Lund, J.O. Mcginnis, Lawrence v. Texas and Judicial Hubris, 102 Mich.L.Rev. 1555 (2004). See e.g. S.G. Calabresi, S.D. Zimdahi, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm, & Mary L. Rev. 743 (2005); R.P. Alford, Roper v. Simmons and Our Constitution in International Equipoise, 53 ucla L.Rev. 1 (2005); D.E. O’Scannlain, What Role Should Foreign Practice and Precedent Play in the Interpretation of Domestic Law?, 80 Notre Dame L. Rev. 1893 (2005); V.C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 199 Harv.L.Rev. 109

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the ­appointment of Chief Justice Roberts, and seemed in fact destined to reemerge, as was apparent from the initial positions adopted by the new Court. Before considering at least some problematic aspects, it is perhaps important to review some of the political responses appeared around these cases, in order to place the academic discussion within its proper broader context. 4

First Reactions to the Judicial Use of Comparison

The use of comparison and/or international law by the Supreme Court in recent years has triggered a backlash above all in Congress. Starting from Lawrence v. Texas, and even more so since Roper v. Simmons, a not insignificant grouping within Congress has reacted with nationalist overtones to a supposed trend within case law, using various instruments. First and foremost, there has been no lack of explicit individual criticism of the technique of referring to materials that are not strictly American, which has on some occasions been expressed in terms that have been so crude as to “remind the judges of their duty to interpret the Constitution, and not to impose the will of foreign bodies on the People of the United States”, as has been asserted by Congressman Bob Goodlatte.69 Actual draft legislation has been tabled seeking to codify and in some sense to prohibit the recourse to non-national sources. In 2004 a motion sponsored by Congressman Thomas Feeney and 59 other members of the lower house, which soon came to be known as the “Feeney Resolution”,70 was re-tabled two weeks after the publication of Roper v. Simmons and transformed into draft legislation as the Reaffirmation of American Independence Act.71 The preamble to the original text of the motion recalled the passage from the Declaration of Independence in which King George was charged with having attempted to subject the colonies to a jurisdiction that was alien to their constitution that was not recognised by their laws. It then went on to refer to the recent practice of the Supreme Court of drawing on legislation, case law or other rulings of

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(2005); J. Waldron, Foreign Law and The Modern Ius Gentium, 119 Harv, L. Rev. 129 (2005); S. Arvin, Roper v. Simmons and International Law, 83 Denv.U.L.Rev. 209 (2005); J. Mazingo, Roper v. Simmons: The Height of Hubris, 29 Law & Psychol. Rev. 261 (2005). Goodlatte’s opinion in the pertinent section of the site of the House of Representatives, www.house.gov/goodlatte. H.R. Res. 568, 108th Congr. (2004): in http://www.house.gov/-list/fl24feeney/IntLawRes. html. H.R. Res. 97, 109th Congr. (2005); it also appears in the Senate proceeding, such as S. Res. 92, 109th Congr. (2005).

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foreign institutions in support of the interpretation of the laws of the United States, noting the capacity of the American people to live within the confines of clear laws enacted according to the rule of law, the appropriateness of the role of the judiciary, which faithfully interprets the expression of popular opinion as translated into laws approved by elected representatives, the requirement that the lives of Americans must not be dependent upon the often contradictory decisions adopted by any one of hundreds of foreign organisations, and finally the contrast between any dependency of the Judiciary on foreign law and the sovereignty of the United States, the separation of powers and the treaty-making authority of the President and the Senate. The operative part of the resolution asserted the desire of the House that “judicial interpretations regarding the meaning of the Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States”. On the other hand, the proposed Constitution Restoration Act72 aimed more unequivocally at prohibiting the courts from basing their opinions in any way on the constitutions, laws, administrative provisions or court rulings of foreign States or international organisations or agencies, transforming any conduct in breach of this by the courts into an “impeachable offense”. The crudely anti-comparativist tone of these reactions could justify their summary dismissal as parochial, contingent and transient. However, one must not be misled by the rough and ready manner in which the position is stated: the resolution draws on arguments that strike a deep chord within not insignificant segments of public opinion and are attractive even within circles apparently open to contact and exchange with abroad.73 The high number of endorsements from other members of Congress did not occur by chance. The legal literature itself has established a line of “nationalist jurisprudence”, which has undoubtedly been built on the foundation of the caustic assertions made by Justice Scalia, and to a lesser extent by Clarence Thomas, although also on somewhat different arguments. Even authors of primary standing, albeit not in particularly large numbers, have offered quite detailed analysis of the reasons both in favour of and against the use of non-domestic sources, although their discussions do not always heed the distinction between the recourse to comparative methodology and the usage of customary international law or treaties.

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S.520, 109th Congr. (2005) and H.R. 1070, 109th Congr. (2005). See e.g. Outsourcing Rights, Washington Post, 25 March 2005, A18.

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For example, those who rely on formal arguments under constitutional law to preclude the legitimacy of the comparative approach must be included amongst those who object to the recourse by the courts to foreign law. In particular, deference to decisions adopted by foreign courts could be at odds with the Appointments Clause, which is not limited to regulating relations between the President and the Senate with regard to the appointment of federal officials, but also operates as a mechanism for limiting the transfer of federal powers, and thus precludes as a matter of principle their delegation to any body external to a federal organisation.74 The same conclusion can also be reached under the non-delegation doctrine, with the resulting effects in terms of removal from congressional control and federal judicial oversight.75 Similarly, the separation of powers may also be used both in its formal version and in its functionalist version76 in order to protect judicial review according to its domestic, or so to speak protectionist, understanding.77 Finally, the Supremacy Clause (Article vi, clause 2) lends itself to denying the status of “supreme law of the Land” to any source except the Constitution, acts of Congress not adopted in accordance with the procedure laid down by Article 1, Section 7, and treaties ratified in accordance with Article ii, Section 2, clause 2, whilst it may also be invoked in support of more stringent procedures involving enhanced majorities in order to uphold the democratic principle and the requirement of subsidiarity, which should protect the State level of government, thereby enabling the formulation of a kind of majoritarian argument against encroachment by foreign sources of law in order to protect American nationhood.78 This last formulation has also been proposed in starker terms by some authoritative scholars79 on the grounds that judges from other legal systems are fundamentally undemocratic, not having been selected through procedures with political involvement, and in any case given their lack of accountability within the

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75 76 77 78 79

See in particular R.J. Delahunty, J.C. Yoo, Against Foreign Law, 29 Harv. J. of L. & Pub. Pol. 298; J.C. Yoo, The New Sovereignty and the Old Constitution: the Chemical Weapons Convention and the Appointments Clause, 15 Const. Comment. 96 (1998); J.C Yoo, Treaty Interpretation and the False Sirens of Delegation, 90 Cal. L. Rev. 1305 (2002). See e.g. R.J. Delahunty, J. Yoo, Against Foreign Law, cit., 302 and E.A. Posner, A. Vermeule, Interring the Nondelegation Doctrine, 69 U.Chi.L.Rev. 1721 (2002). L.E. Little, Envy and Jealousy: A Study of Separation of Powers and Judicial Review, 52 Hastings L.J. 47 (2000). See again R.J. Delahunty, J. Yoo, Against Foreign Law, 308ff. See again R.J. Delahunty, J. Yoo, Against Foreign Law, cit., 315ff.; contra, S.G. Calabresi, S. Zimdahi, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, cit. R.A. Posner, No, Thanks, We Already Have Our Own Laws, Legal Affairs 40 (2004).

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ambit of American constitutionalism, with the result that they are liable to deviate from or to alter the political dynamics inherent within the US system.80 Other authors level their criticism in terms of general legal theory, focusing on the relationship between rights guaranteed under the constitution and the underlying moral fact in order to assert the specificity of the former and to conclude that they cannot be situated within ethical contexts different from those governed by the consensus within the national system.81 Finally, on a vaguer sociological level, there is no lack of discussion of the differences between the US context and the position in Europe, both on a historical level (given Europe’s experience with Nazism and Communism) as well as during the current period in which European integration, benefiting from the protective umbrella offered by American power and its relatively high levels of military spending, has supposedly been able to permit itself the luxury to strike more favourable balances between constitutional rights and national security requirements.82 There are even more simplistic explanations for the recourse by the courts to foreign materials that allege the courts’ aspiration to achieve a greater level of discretion and to engage in constitutional interpretation that is detached from the literal wording of the law and from precedent, namely as part of the search for reputational advantages resulting from incorporation into a global network comprised of a transnational elite of judges and regulators in which de-territorialised cosmopolitanism constitutes a value in itself.83 American isolationism, or, as it has been rebaptised in the literature, American exceptionalism,84 is thus not endorsed only by some marginal members 80

81

82 83 84

See in particular D.S. Law, Generic Constitutional Law, 89 Minn. L. Rev. 652 ss. (2005). Similar criticism of J.O. Mcginnis, Foreign to Our Constitution, 100 Nw. U.L.Rev. 303, 324 ss. (2006), whose theory is that through foreign law courts could propose themselves as the aristocratic element of a new institutional form, mixed with reference to the Aristotelian parameters. More sophisticated and less explicit the considerations of J. Rubenfeld, Unilateralism and Constitutionalism, 79 n.y.u.l. Rev. 1971 (2004) e K. Anderson, Squaring the Circle? Reconciling Sovereignty and Global Governance through Global Government Networks, 188 Harv. L. Rev. 1255 (2005), according to which American constitutional law derives from the experience of democratic self-governance, while the reference to universal human rights by other constitutional contexts is different. See e.g. S. Levinson, Looking Abroad When Interpreting the U.S. Constitution: Some Reflections, 39 Tex. Int’l L. J. 353 (2004), su cui R.S. Markovits, Learning from the Foreigners: A Response to Justice Scalia’s and Professor Levinson’s Professional Moral Parochialism, 39 Tex. Int’l L.J. 367 (2004). See again R.J. Delahunty, J. Yoo, Against Foreign Law, cit., 325 ff. Ibidem, 329 ff. H. Hongju Koh, On American Exceptionalism, 55 Stan.L.Rev. 1479 (2003); J.D. Van Der Vyver, American Exceptionalism: Human Rights, International Criminal Justice, and National SelfRighteousness, 50 Emory L.J. 775 (2001).

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of the political class who have not been sufficiently exposed to the effects of globalisation and are attached to traditional localism, but has rather permeated not insignificant segments of legal thinking and contributes to reviving a debate that is not limited to the opinions of a couple of members of the conservative wing of the Supreme Court. It is the modern-day version, triggered by recent developments within case law, of the deep-seated unilateralism within political culture, which is reemerging in the form of “legal particularism”, as it has been succinctly termed by Sujit Choudhry.85 Essentially, it has been precisely during the period of history in which the United States have achieved unprecedented dominance on the world scene on political, military, economic and technological levels that the isolationist tendencies, which had remained latent and never entirely disappeared, within the deepest levels of the American cultural fabric have returned to life on a defensive mission premised on a sense of proud self-sufficiency which, within a context of suitable ideological radicalisation, is liable to turn into full-blown, yet misdirected, cultural imperialism.86 The summary and perhaps superficial reference to sovereignty as a value that was jealously pursued by the Founding Fathers is thus not infrequently invoked in support of calls to review US participation in continental or global organisations, precisely due to the risk that they may entail for the autonomy of national politics.87 The exaltation of sovereignty in the Westphalian sense as a value in itself can certainly be ridiculed in principle as baseless cultural chauvinism devoid of any specific content in relation to particular issues, such as the efficiency of the American system of civil procedure in the writings of John H. Langbein.88 However, such a task is decidedly more difficult in relation to matters of constitutional law, which are of greater political import and relate less to technicalities that are of little interest for public opinion. Within the area of public law, the argument that the use of non-American materials within US court rulings hollows out the national democratic system89 from within can 85 86 87 88 89

S. Choudhry, Globalisation in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 In. L.J. 816 (1999). The Bruce Ackerman, We The People: Foundation, Cambridge 1991, 3 ff. reelaborated by B. Markesins, J. Fedtke, Judicial Recourse fo Foreign Law, a New Source of Inspiration?, London 2006, 253 ff. Such as B. Barr, Protecting National Sovereignty in an Era of International Meddling: An Increasing Difficult Task, 39 Harv. J. on Leg. 299 (2002). See in particular Cultural Chauvinism in Comparative Law, 5 Cardozo J. Of Int’l & Com. Law 41 (1997), wich follows The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985). See E.A. Young, The trouble with Global Constitutionalism, 38 Tex.Int’l L.J. 536 (2003).

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be rebutted, as for example has been done by Tushnet, only by discovering its ideological meaning and establishing how it is comprised of a mere reformulation of familiar internal arguments, which are aimed at preventing evolutionary interpretations of the Constitution, and only end up increasing the level of conflict and the rhetorical tone to an extent that is out of proportion with the effects actually obtained.90 The argument that objects to the short-circuiting of internal political decision-making processes through a network of international agreements and cosmopolitan interconnected91 judicial elites can also be dismissed as almost sterile isolationist conservatism inspired by an antielitist individualism:92 nevertheless, it retains a certain level of attractiveness within a cultural context that is still broadly permeated by localism. As is common within American practice, certain members of the Supreme Court have entered the fray of the academic debate, stating publicly their stances regarding this issue. In particular, Justices Breyer,93 Ginsburg,94 O’Connor95 and Sotomayor96 have endorsed the usage of foreign law, and in actual fact have also been joined by Rehnquist97 and years before by Blackmun,98 whilst 90

Like e.g. M. Tushnet, Transnational/Domestic Constitutional Law, 37 Loyola of l.a.l.Rev. 239, 257 (2003). 91 See e.g. J.R. Bolton, Should We Take Global Governance Seriously?, Chi. J.Int’l L. 205 (2000), from R.H. Bork, Coercing Virtue: The Worldwide Rule of Judges, Washington 2003 and A. Slaughter, Judicial Globalization, 40 Va.J.Int’l L. 1103, 1120 (2003). 92 Such as again M. Tushnet, o.u.c., 266. 93 See Keynote Address, 97 Am.Soc’y Int’l L. Proc. 265 (2003). It is worth noting that Justice Breyer, from the bench, at least once has argued against the extension to American law of the principles of the European rules concerning the limits of the protection to be granted by intellectual property law: Eldred v. Ashcroft, 537 U.S. 186 (2003). See on this case W. Patry, The United States and International Copyright Law: from Berne to Eldred, 40 Hous. L. Rev. 749 (2003). His thought on the approach to comparative materials is better represented, however, by his dissent in Knight v. Florida, 528 U.S. 990, 997 (1999), where he invokes the consideration of constitutional standards of foreign courts “roughly comparable to our own”. 94 See R. Bader Ginsburg, Looking Beyond Our Borders: The Value of Comparative Perspective in Consitutional Adjudication, 40 Idaho L.Rev. 1 (2003) e “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication, 64 Cambridge L.J. 575 (2005). 95 S. Day O’Connor, Broadening Our Horizons: Why American Judges and Lawyers Must Learn about Foreign Law, Int’l Jud.Observer, June 1997, 2. 96 S. Groves, Questions for Justice Sotomayor on the use of Foreign and International law, Heritage Foundation, July 6, 2009. 97 W.H. Rehnquist, Foreword to V.C. Jackson, M. Tushnet (eds.), Defining the Field of Comparative Constitutional Law, Westport, Conn. 2002, viii and earlier Constitutional Courts – Comparative Remarks, in P. Kirchof, D.P. Kommers (Eds.), Germany and Its Basic Law, Baden Baden 1993, 412. 98 H.A. Blackmun, The Supreme Court and the Law of Nations, 104 Yale L.J. 39 (1994).

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Scalia,99 Thomas100 and Alito101 have spoken out against the practice. Elena Kagan showed a prudent attitude, admitting the possibility of recourse to international law in a limited number of cases.102 5

From Roper to Graham and Further Reactions

After Roper and for some years the Supreme Court has refrained from resorting to the foreign or international law argument. Such an attitude might have been caused by a prudent expectation of abatement of the political turmoil or by the shifting of the focus of the attention on other areas brought about by the docket or even by both factors. The doctrinal debate, however, did not slow down; if one has a look at the amount of literature published in those years, the conclusion should rather be that the discussion has been even more lively than before.103 99

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A. Scalia, Commentary, 40 St. Louis L.J. 1119 (1996) and Common Law Courts in a Civil law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation (A. Gutman, Ed.), 1998; but see also the transcription of the public debate with Breyer, cit. In the enormous literature about Justice Clarence Thomas, see above all A. Peyton Thomas, Clarence Thomas: A Biography, San Francisco, Cal., 2002; C.J. Terbeek, Write Separately: Justice Clarence Thomas’ “Race Opinions” on the Supreme Court, 11 Tex. J. on C.L. & CRs 185 (2006); Forum, Justice Thomas: Twenty-Five Years on the Supreme Court, 127 Yale L. J. 210 (2017). Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing before the S. Comm. on the Judiciary, 109th Congress 370 (2006). Confirmation Hearing of the Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States: Hearing before the S. Comm. on the Judiciary, 111th Congress 127 (2010). See e.g. K. I. Kersch, The New Legal Transnationalism, the Globalized Judiciary and the Rule of Law, 4 Wash. U. Global Stud. L. Rev. 345 (2005); D. Law, Generic Constitutional Law, 89 Minn. L. Rev. 652(2005); R. Posner, Forward: A Political Court, 119 Harv. L. Rev. 31 (2005); M.W. DeLaquil, Foreign Law and Opinion in State Courts, 69 Alb. L. Rev. 697 (2006); M. Tushnet, Referring to Foreign Law in Constitutional Interpretation: An Episode in the Culture Wars, 35 U. Balt. L. Rev. 299 (2006); Id., When Is Knowing Less Better Than Knowing More? Unpacking the Controversy over Supreme Court Reference to Non-U.S. Law, 90 Minn. L. Rev. 1275 (2006); E. Posner, C. Sunstein, The Law of Other States, 59 Stanford L. Rev. 31 (2006); R.P. Alford, Four Mistakes in the Debate on “Outsourcing Authority”, 69 Alb. L. Rev. 653 (2006); J. Gordley, When Is the Use of Foreign Law Possible? A Hard Case: The Protection of Privacy in Europe and the United States, 67 La. L. Rev. 1073 (2006–2007); M. Siems, The End of Comparative Law, 2 J. Comp. L. 133 (2007); A. Stone Sweet, J. Mathews, Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transn’tl. L. 73 (2008); E.J. Eberle, The Method and Role of Comparative Law, 8 Wash. U. Global Studies L. Rev. 451

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The academic writings have concentrated on one side on the more general theme of the development of comparativism and above all of comparative constitutionalism in the globalized context and on the other on the case law and the judicial recourse to foreign and international materials. In the last area, the controversy has been progressively reaching its peak, with the emerging and consolidating of irreversibly antagonist positions, of localists versus internationalists, nationalists versus comparatists, particularists versus universalists, if so rough terms can fit such an elaborate and sophisticated debate, which has been effectively described as a “hate-love relationship”.104 On this ground, some authors have kept on harshly opposing the use of comparison and international law by the courts on the premise of the need to preserve national identity and to protect the traditional allocation of sovereignty through the proper use of legal sources. The resort to comparison is accused, in an inward-looking perspective, of concealing under a false neutrality the aim of eliminating borders and nation states, thus undermining the American hegemony; in an outward looking approach, it can even be censored of misuse of transplantation techniques in order to accomplish some disguised form of new colonization.105 In judicial terms, the problem of the use of foreign materials came back to the fore in 2010, when a majority of five led by Justice Kennedy and joined by the Chief with an opinion concurring in the judgment returned to use the argument though in a subordinate and soft manner. In Graham v. Florida,106 the Supreme Court ruled that mandatory sentences for life without parole for juvenile offenders in relation to crimes different from murder violate the viii Amendment. The Court relied on statistical evidence, although controversial, interpreted as demonstrating the existence of a national consensus against this (2008); J.-R. Yeh, W.-C. Chang, The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions, 27 Penn. St. Int’nl. L. Rev. 89 (2008); D. Barak-Erez, The Institutional Aspects of Comparative Law, 15 Colum.J. Eur. L. 477 (2009); E. Rievlin, Thoughts on Referral to Foreign Law, Global Chain-Novel, and Novelty, 21 Fla. J. Int’l L. 1 (2009); E.A. Posner, The Perils of Global Legalism, Chicago, Ill., 2009; V. Jackson, Constitutional Engagement in a Transnational Era, New York, N.Y.- Oxford, 2010; R. Hirschl, Constitutional Theocracy, Harv., Mass., 2010; N. Tebbe, R.L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 459 (2010); F.G. Nicola, Family Law and Exceptionalism in Comparative Law, 58 Am. J. Comp. L. 777 (2010). 104 By Ran Hirshl, The Continued Renaissance of Comparative Constitutional Law, 45 Tulsa L. Rev. 771, 773 (2010). 105 See M. Woo, Comparative Law in a Time of Nativism, 41 Hastings Int’l & Comp. L. Rev. 1, 31 (2018), citing T. Ruskola, Legal Orientalism: China, The United States, and Modern Law, Cambridge, 2013. 106 560 U.S. 48 (2010).

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type of sentence; then it set aside as inconclusive all penological arguments in support of this sentencing practice and applied the same categorical rule used in the recent past for the death penalty cases,107 refusing both to leave with the judge or the jury the discretionary, subjective statement about the moral culpability of the juvenile offender and to adopt a case-by-case approach implying a sort of proportionality test weighing the age of the offender against the seriousness of the crime. In the final part of the decision Justice Kennedy adds on the argument108 that the United States is the only remaining country in the world to impose the sentencing practice at stake. This consideration is carefully presented as supplementary and non-dispositive. “The judgments of other nations and of the international community” are not conclusive, but “the climate of the international opinion concerning the acceptability of a particular punishment is also “non irrelevant””: it is true that no imposition of international law binding the United States or even having nature of jus cogens exists, but the problem before the Court has different nature, regarding the interpretation of the notion of “cruel and unusual punishment” according to the viii Amendment. As Justice Stevens emphasized in his concurring opinion, “Standards of decency have evolved since 1980. They will never stop doing so”.109 In other words, the majority stressed the complementary function of the argument, not invoked to stand alone but simply to corroborate the theory of the evolving interpretation of the clause and in general of the Constitution as a living entity. Needless to say, Graham has stirred a new debate among constitutional law scholars, in the immediate aftermath and over the years.110 The careful gauge of the Court in the use of the comparative argument is not necessary a set-back: it might be justified by two relatively new factors, 107 108 109 110

Such as Roper v. Simmons, Atkins v. Virginia and Kennedy v. Louisiana, 554 U.S. 407 (2008). Part D. 560 U.S. 85 (2010). See e.g. R. Smith, G. Cohen, Redemption Song: Graham v. Florida and the Evolving Eight Amendment Jurisprudence, 108 Mich. L. Rev. 86 (2010); W.W. Berry iii, Different than Death, 71 Ohio St. L. J. 1109 (2010); S.R. Hechinger, Juvenile Life without Parole: An Antidote to Congress’s One-Way Civil Liberties Ratchet, 35 N.Y. Rev of L. & Soc. Change 408 (2011); R.A. Bierschbach, Proportionality and Parole, 160 U.Pa. L. Rev. 1745 (2011–2012); A. Siegler, B. Sullivan, “Death Is Different? No Longer”. Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences, 2011 Sup. Ct. L. Rev. 327; T.A. Maroney, Adolescent Brain Science after Graham v. Florida, 86 Notre Dame L. Rev. 765 (2011); M. Guggenheim, Graham v. Florida and a Juvenile’s Right to Age Appropriate Sentencing, 47 Harv. C.L.- c.l.l. Rev. 457 (2012); C.S. Lerner, Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?, 86 Tul. L. Rev. 309 (2011–2012); J.C. Hoeffel, The Juvenile of Death and Youth, Now the Twain Should Meet, 46 Tex. Tech. L. Rev. 29 (2013–2014); S.F. Russell, Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment, 89 Ind. L. J. 373 (2014).

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unprecedented before 2005. First of all, the insistence during the Senate confirmation procedures on questions concerning the availability of the nominees to turn to non-domestic sources in the interpretation of American constitutional law. All of them, although with different shades, declared their intention to eschew the recourse to foreign materials. Such was the case with Roberts in 2005, Alito in 2006, and even Sotomayor in 2009 and Kagan in 2010.111 Secondly, a majority of the States, in number of 32 as of 2013,112 had under way statutes aiming at prohibiting judges from resorting to foreign law materials, under different formulas. 10 of them succeeded in pushing such bills through their legislatives within the same date, but the number has increased to 17 in 2017.113 One of them, Oklahoma, first amended the Constitution introducing a clause (named “Save Our State”), forbidding the judicial recourse to “the legal precepts of other nations or cultures…. [and] specifically shall not consider either international or Sharia law”, approved through referendum in November 2010 by more than two thirds of the voters. Later on, after a decision of the Court of appeal for the Tenth Circuit,114 the amendment was transformed into a statute refurbished in a more sophisticated manner, not expressly singling out Islamic law, when it was realised that the first wording did not only violate the I Amendment, but that it foreclosed the application of all private international law. A general framework has been shortly provided by the American Laws for American Courts (alac) model.115 The trend is apparently not going to abate. As of consequence, the attitude of the State judges has also become relevant and has started to attract scholarly interest.116 111 See the details in J. Resnik, Constructing the Foreign: American Law’s Relationship to NonDomestic Sources, in M. Andenas et al., Courts and Comparative Law, Oxford, 2015, 437 ff.; M. Woo, Comparative Law in a Time of Nativism, 41 Hastings Int’l & Comp. L. Rev. 1, 10 (2018). 112 See F. Patel, M. Dus, A. Doh, Foreign Law Bans: Legal Uncertainty and Practical Problems, New York, N.Y., 2013; E. Volokh, Foreign Law in American Courts,66 Okla. L. Rev. 219 (2014). 113 See National Conference of State Legislatures, 2017 Legislation Regarding the Application of Foreign Law by State Courts, Washington, D.C., 8/17/2017. 114 Awad v. Ziriax, 670 F.3rd 1111 (10th Circuit 2012). 115 Am. Public Policy Alliance, Model alac Act, http//publicpolicyalliance.org/legislation/ model-alac-bill/. See e.g. J.R. Long, State constitutions as Interactive Examples of Fundamental Values, 74 Alb. L. Rev. 1739 (2011); A. Fellmeth, U.S. State Legislation to Limit Use of International and Foreign Law, 106 Am. J. Int’l L. 107 (2012); S. Prasatik, Assessing the Viability of State International Law Prohibitions, 35 Hous. J. Int’l L. 465 (2013). 116 See e.g. L. Friedman, Path Dependence and External Constraints on Independent State Constitutionalism, 115 Penn. St. L. Rev. 783 (2012); M.F. Davis, Shadow and Substance: The Impact of the Anti-International Law Debate on State Court Judges, 47 New Eng. L. Rev. 631 (2013): according to the author, State judges are likely to abstain from citing foreign or international law even when it would be appropriate.

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At the federal level, furthermore, a periodical resurgence of nativist instincts takes place in Congress in a random way. The last example of this attitude is a Resolution introduced in the House of Representatives in 2015,117 aiming at forbidding any “justice, judge or other judicial official” from deciding “any issue in a case before that court in whole or in part on the authority of foreign law, except to the extent that the Constitution or an act of Congress requires the consideration of that foreign law”. 6

The Present State of the Scholarly Debate

The debate among public law scholars, political scientists and commentators has obviously continued or rather it has been increasing in quantitative terms and becoming more various and sophisticated: the arguments have been constantly refined over time in a ceaseless dialectic proceedings and the growth of comparative research has allowed a more complex coordination between a transnational constitutional discourse and the domestic narrative.118 First of all, the uses of comparative discourse in constitutional adjudication have been classified, often moving from and adding on some categorizations conceived at the end of the last century and be-elaborated in the light of the recent jurisprudence and of the political contour that has been its framework. Tushnet119 and Choudhry120 had opened the way to the classification of the uses of constitutional comparativism. The first one had spoken of three possible uses of comparative constitutionalism: a functional use when the judge tries resorts to a mechanism originated in another legal system in order to improve the carrying out of the same function at home; an expressivist approach, when a court wants to shed a wider light on a practice or interpretation, even realizing that he could have reached a different solution; a bricolage method, when it selects foreign materials in a random way, as a matter of practice and without positive normative support. Choudhry mentions a diagnostic use, when courts feel to need the help of foreign precedents to define the constitutional issue at stake; an expository use, similar to Tushnet’s expressivist approach but also including the chance of a final rejection of non-domestic 117 U.S. H. Resolution 3052, July 14, 2015, by Rep. Diane Black [R.-TN], referred to the Subcommittee on the Constitution and Civil Justice December 15, 2015. 118 Using the words of Paul Kahn, Comparative Constitutionalism in a New Key, 101 Mich. L. Rev. 2677 (2003). 119 M. Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale L. J. 1225 (1999). 120 S. Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Jurisprudence, 74 Ind. L. J. 819 (1999).

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sources; an affirmative use, if the judge reaches a conclusion on the sole basis of domestic sources and then tries to strengthen it with foreign materials; a functional use, not too dissimilar from Tushnet’s; a universalist use, when national practices are viewed as a part of a common, universal frame, composed of shared values and principles.121 Several other authors have improved such schemes in recent years. For instance, Simon122 identifies seven forms of references to foreign law, working on a specific database concerning federal appeal cases, applying an inductive method. He would have a ‘general prevalence’ citation, the most common, when opinions mention practices, rules or principles assuming their wide acceptance before civilized nations or communities; a second group of cases should concern opinions that refer to international law principles for additional support, with no decisive weight; a third bunch of decisions (‘group prevalence’) invokes practices or principles diffused in Western societies or nations, or other similar formulas; a fourth group of opinions includes references to specific non-American jurisdictions, mainly precedents of Australian, Canadian or Israeli courts, but also, in three cases only, of the echr; a very few other cases mention respectively, one each, the consensus of important international organizations, international law to the limited effect of registering the absence of a real consensus, or the uniqueness of the United States among western countries. This classification is founded on the object of the citations

121 Other classifications, such as P.J. Yap, Transnational Constitutionalism in the United States: Toward a Worldwide Use of Interpretive Modes of Comparative Reasoning, 39 u.s.f. L. Rev. 999 (2005), distinguish between modes of comparative reasoning aiming at helping the court to identify and frame the issue to be examined (“diagnosis”), or at giving evidence to differences between domestic and foreign institutions in order to underline national deviations from other practices and to provide the judge with a better self-awareness (“exposition” or “expository use”), or at confirming or buttressing conclusions already reached on other bases (“affirmation”), or at drawing on other constitutional experiences in order to rely on a preceptive tool in making a decision, even when before the judge there is a choice between two possible alternatives (“functionalism”), or finally at carving common sets of norms or principles out of global values, already discovered or under discovery by an international community of judges (“universalism”). Yap also refers to formalistic concerns (mainly the resort to sovereignty, both in the version that warns against possible violations of the national identity and in the formulation that insists on the need to avert all risks of judicial supremacy or judicial usurpation of sovereignty due to the application of foreign norms or practices) and substantive concerns (addressing the disagreement with other value systems). See also A. Friedman, Beyond Cherry-Picking: Selection Criteria for the Use of Foreign Law in Domestic Constitutional Jurisprudence, 44 Suffolk U.L. Rev. 873 (2011). 122 S.A. Simon, Foreign Law and Constitutional Rights, cit., 258 ff.

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or on their concrete effects. The same author123 proposes another taxonomy according to the role or function of citations. He concludes that two thirds of them are used in order to sustain already reached statements (‘supporting established proposition’) or to show that the chosen solution is shared with other countries, while another smaller group is composed by opinions that integrate foreign materials into a reasonableness analysis in the areas of the due process or equal protection clauses (‘informing reasonableness analysis’). In other cases opinions consider but reject foreign authority, support uncertain propositions, note the absence of diffused consensus, or justify the American atypical position. At the same time, however, some authors, especially when belonging to a philosophical area of interest,124 have criticized the absence of a general theory of the use of citations of foreign materials, while from foreign constitutions, statutes, and practices it would be possible to draw a kind of positive law of nations, jus gentium, capable of being applied as such, and not as natural law or as law of a particular jurisdiction. Calabresi and Silverman125 have replied that such a mix of legal sources closely resembles a spontaneous order according to Hayek’s theory, but that there are both reasons of opportunity for preserving the historical differences among nations (“the economics of federalism” argument) and for opposing the undesirable creation of an “international oligarchy of legal elites and judges”. Therefore the citations should be subordinated to some restrictive conditions: they should be limited to cases where the decision can stand without non-domestic support, to sources belonging to countries reasonably similar in terms of culture, values and structure of the legal system,126 and to controversies where open-ended provisions of the American Constitution have to be applied; furthermore, the method should not consist in picking some data in a random way, just for the pleasure of buttressing a result, but in a real comparison of different solutions extended to the broadest possible number of systems.

123 Op. cit, 262. 124 Such as J. Waldron, “Partly Laws Common to All Mankind”: Foreign Law in American Courts, Yale, Conn., 2012, and in earlier years Foreign Law and the Modern Ius Gentium, cit, 119 Harv. L. Rev. 129 (2005). See also J. Bell, The Relevance of Foreign Examples to Legal Development, 21 Duke J. Comp. & Int’l L. 431 (2011), and The Argumentative Status of Foreign Legal Arguments, 8 Utrecht L. Rev. 8 (2012). 125 S.G. Calabresi, B.G. Silverman, Hayek and the Citation of Foreign Law: A Response to Professor Jeremy Waldron, 2015 Mich.St. L. Rev. 1 (2015). 126 This argument is shared also, for instance, by D. Bertea, C. Sarra, Foreign Precedents in Judicial Argument: a Theoretical Account, 7 Eur. J. Legal Stud. 128 (2014).

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The resort to comparative constitutionalism has been connected to the theory of legal reasoning as a part of a collective deliberative exercise in a discursive framework modelled after Jürgen Habermas and the German jurisprudence;127 it has even been wittingly related to legal aesthetics.128 Other scholars have reviewed the modes of ascertainment of foreign law in domestic proceedings with regard to American courts and more in general to common law ones:129 the alternatives would be to prove it by expert evidence, to determine the issues on the base of the Court’s own researches, to refer to the determination of foreign courts, at least in presence of bilateral conventions, to have it submitted by the counsels as they would with domestic materials, or finally to appoint foreign lawyers as special masters or referees.130 The argument for transnational constitutionalism as a method has been authoritatively re-proposed with new emphasis from the viewpoint of the need to de-colonize positive legal cultures:131 this contribution has again stirred a lively debate.132 The law reviews have been publishing accurate researches concerning topics such as the use of American precedents in foreign courts, the history of the role of foreign sovereigns at the Supreme Court, either as claimants or as interveners.133 The treatment of foreign and international law in the State courts134 has also been explored, and the conclusion seems to be that around the world the influence of the federal Constitution is declining135 due to circulation of 127 See D. Bertea, C. Sarra, Foreign Precedents in Judicial Argument, cit. 128 See A.J. Kerr, To Consider or to Use – Citation to Foreign Authorities and Legal Aesthetics, 94 Ash. U. L. Rev. 1369 (2017). 129 See D. Foxton, Foreign Law in Domestic Courts, 29 Sac L. J. 194 (2017) and P. Legrand, Proof of Foreign Law in U.S. Courts: A Critique of Epistemic Hubris, 8 J. Comp. L. 343 (2013). 130 About the equivalence of treatment of scientific evidence and foreign law by the courts, see E.K. Cheng, Scientific Evidence as Foreign Law, 75 Brook. L. Rev. 1095 (2010). 131 R. Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law, Oxford-New York, 2014. 132 See e.g. A. Di Robilant, Symposium on Ran Hirschl’s Comparative Matters: The Renaissance of Comparative Constitutional Law, 96 b.u.l. Rev. 1325 (2016); P. Legrand, Jameses at Play: A Tractation on the Comparisons of Laws, 65 Am. J. Comp. L. (Special Issue) 1 (2017); J.Q. Whitman, The Hunt for Truth in Comparative Law, 65 Am. J. Comp. L. 181 (2017). 133 E.g. M. Godi, A Historical Perspective on Filings by Foreign Sovereigns at the U.S. Supreme Court: Amici or Inimici Curiae?, 42 Yale Int’l L. J. 409 (2017). 134 J. Kalb, Human Rights Treaties in State Courts, The International Prospects of State Constitutionalism after Medellin, 115 Penn. St. L. Rev. 1051 (2011); J.L. Marshfield, Foreign Precedent in Constitutional Interpretation, 53 Duq. L. Rev. 413 (2015). In the earlier literature, see M.W. DeLaquil, Foreign Law and Opinion in State Courts, 69 Alb. L. Rev. 697 (2006). 135 D.S. Law, M. Versteeg, The Declining Influence of the United States Constitution, 87 n.y.u.l.Rev. 762 (2012). This essay must e compared with L. Henkin, A.J. Rosenthal,

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other models, so that it is the State constitutions which increasingly resemble foreign patterns, in terms of positive issues included, of rights guaranteed and of frequency of amendments. The consequence should be that State constitutions might be a more fertile ground for comparative analysis, though State courts are likely to be even more reluctant to comparison than federal courts. The arguments against the use of foreign materials in constitutional adjudications have been repeated, perhaps in more sophisticated versions. For instance, some scholars emphasize the risk of having reference to foreign courts where bias or even corruption can be documented.136 7

Some General Comments Concerning the Use of Foreign Law

It is an extremely difficult task to provide a concise historical assessment of the use of foreign materials by the US courts, especially if – in line with the approach actually followed within the case law – the inquiry must be considered to extend both to full-blown comparison and to the use of international law, which is often cited interchangeably with the former both within the case law and in the literature. Nevertheless, it is possible to attempt to extrapolate some indications from the necessarily summary historical account provided above, even if these will in any case still be generic in nature and will inevitably require a more mature review over the coming years following the consolidation of the new equilibria on the Supreme Court headed by Chief Justice Roberts, along with any retrospective adjustments that prove to be possible. As regards first and foremost comparison in a strict sense, one fact is immediately apparent, even though its intuitive nature risks a descent into superficiality if it is not suitably framed: attention to foreign law within the context of American public law, and in particular within constitutional case law, was traditionally modest, at least until 1989 and over the immediately following years. The reasons why this is so are those previously identified by the most attentive commentators on American legal history: the polemical pride ­ onstitutionalism and Rights: The Influence of the United States Constitution Abroad, C New York, N.Y., 1989. 136 See e.g. V.A. Fitt, The Tragedy of Comity: Questioning the American Treatment of Inadequate Foreign Courts, 50 Va. J. Int’l L. 1021 (2010). From a different ideological perspective, oriented towards the extension of privilege against self-incrimination to compelled witnesses obtained abroad, N. Modi, Toward an International Right against Self-Incrimination: Expanding the Fifth Amendment’s “Compelled” to Foreign Compulsion, 103 Va. L. Rev. 961 (2017).

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during the initial years of a legal system that had been forced to break the unity of the common law and to adopt an apologetic stance before world public opinion; the need to establish a native legal culture (“the age of discovery”, as it was termed by Grant Gilmore137) with a scientific basis and methodological capacity applied to university teaching; the tendency throughout the 19th Century towards positivism imbued with optimistic pragmatism and experimentalism; and towards the end of that century the consolidation of the Langdellian method (“the age of faith”138), which was mechanically focused on the construction of lines of cases independently of any analysis requiring either supporting material that was linguistically difficult to access or complex axiological balancing, which was suspected of operating as a front for natural law tendencies. These underlying characteristics of the legal order and its various legal foundations were hardly auspicious preconditions for the widespread use of the comparative method; nevertheless such a method did emerge, albeit not systematically, sporadically along two main lines. In the first place, under admiralty jurisdiction, since the start of the 19th Century maritime law disputes needed to take account of elementary notions of foreign law in relation to the navigation-related issues with which the ambitious legal system engaging with the international scene was required to engage, in an attempt to strike a balance between passive self-identification with the traditions – often codified – of the British naval superpower and the search for a role as an anti-imperialist protagonist that was liable to lead to political isolation.139 Within this context, solemn references to foreign experiences of some weight constituted an interpretative instrument in seeking to reconcile constitutionalism with foreign policy. Secondly, in the area of domestic constitutional law, references to the legislation and case law from other countries appear to have been made – largely by judges with the greatest level of judicial statesmanship, such as Justices Marshall, Story and Taney in the 19th Century, and later by those such as Cardozo and Frankfurter, who sought methodically to arrive at a reasoned elaboration for the decision – above all in the area of freedom rights, exercising the highest level of evaluative discretion in relation to axiological balancing, and where the need to establish a firm foundation for content that could not otherwise be determined is more pressing, along with the attendant risks in terms of legitimisation of the role of the Supreme Court as a constitutional judge. Within the American context, the area that is emblematic of this evaluative 137 The Ages of American Law, cit., 19ff. 138 Ibidem, 41ff. 139 See e.g. L.M. Friedman, A History of American Law, New York, N.Y., 2nd ed., 1985, 258ff.

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freedom has been, at least since the start of the 20th Century, the incorporation of civil rights through the due process clause of the 14th Amendment. This method was established in 1925 in Gitlow v. New York140 and was elevated to a genuine method of constitutional analysis in 1937 in the judgment in Palko v. Connecticut,141 which contains a fully-fledged assertion of the qualifying criterion for eligibility for the grant of federal protection against the States for individual legal rights, which were thereby elevated to the status of fundamental rights and incorporated into the so-called honor roll of preferred rights. It was not by chance that two of the most significant examples of the comparative method may be found in Hurtado v. California,142 which precluded the application of such preferential protection to the right to a jury trial, and Palko v. Connecticut,143 which rationalised the line of selective incorporation. The high level of arbitrary self-determination which this technique entails, along with its central role within the relationship between the Bill of Rights on the one hand and the federalist frame of government on the other hand justifies the recourse to open formulae such as standards of decency, conscience shock,144 fundamental principles of ordered liberty,145 the Anglo-American legal tradition and other similar maxims. These instruments for supplementing the highly value-laden parameter are obviously open to objections on the one side from those who favour, as Justice Hugo L. Black146 in his time, the full incorporation of all of the rights listed in the first ten Amendments, along perhaps with those created by the courts, with the aim both of ensuring more enhanced legal guarantees and of completing the transformation of federalism, and on the other side, from a diametrically opposed perspective, by those who object to any interpretation of the Constitution that evolves or adjusts its meaning and who rather take its meaning to have been frozen under an originalist perspective. The fact however remains that these instruments r­ epresent – rightly or wrongly – the beating heart of American constitutionalism, thereby turning their application into a crucial intellectual and political issue, the equivalent of the discursive balancing of the Wesensgehalt of rights under European constitutionalism of Austro-German tradition. 140 268 U.S. 652 (1925). See H.J. Abraham, B.A. Perry, Freedom and the Court, New York, N.Y., Oxford, 7th ed., 1998, 158ff. 141 302 U.S. 319 (1937). 142 110 U.S. 516 (1884). 143 Cit., supra. 144 Hugo Black’s and Felix Frankfurter’s position in H.J. Abraham, B.A. Perry, Freedom and the Court, cit., p. 84ff. 145 Words borrowed from Justice Cardozo’s opinion in Palko v. Connecticut, 302 U.S. 319, 325. 146 Adamson v. California, 332 U.S. 46 (1947).

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However, these essential features of the US Constitution, as progressively built up by federal judges, have been conceptualised and realised in a substantially autarchic manner, precisely through the special formative characteristics of the experience of constitutionalism and judicial review. Comparative references have therefore been sporadic, and have been dependent upon the sensitivity of judges who may be particularly learned or specifically motivated on an ideological level. In any case, they are under all circumstances functionally supplementary to the main introverted reasoning, which is based principally or exclusively on domestic considerations. This does not alter the fact that certain landmark rulings, which have been liable to change the face of American society, have been adopted also and perhaps above all in view of considerations related to the external role of the US social and political model, even if such motivations have not been explained: this was the case in Brown v. Board of Education,147 in which considerations relating to the country’s international reputation within the context of the Cold War played a decisive role in the end of racial segregation,148 even though the express motivation was based on an evolved interpretation of the principle of equality along with sociological, psychological and pedagogical literature in this area. It is no coincidence that changes in political and constitutional policy on this scale were implemented after the end of the Second World War during the period in which the usa presented itself to the world as the champion of western democracy, and could not fail to guarantee the integrity of the model. Nevertheless, precisely in order to avoid diminishing or undermining it, such changes were made solely through culturally self-sufficient instruments. In particular over the following decades, the most significant operations of social engineering, from racial integration to affirmative action in favour of the black minority, enhanced protection for other minorities and the delineation of the sphere of privacy, leisure time and social mores, were achieved through the courts, subsequently being fleshed out by the legislature, in all cases in full autarchy without any requirement for comparative references or even minimal excursus into the more discretionary area of due process, and making the fullest effort to engage in constitutional interpretation along knownstable and ongoing processes. Frank Michelman149 describes this syndrome as 147 347 U.S. 483 (1954). 148 See M.L. Dudziak, Cold War Civil Rights: Race and the Image of American democracy, Princeton, N.J., 2000; in short again J. Greenberg, Remark: Brown v. Board of Education Half a Century Later: The Comparative Perspective, 36 Colum. Human Rights L. Rev. 489 (2005). 149 F. Michelman, Integrity-anxiety?, in M. Ignatieff, American Exceptionalism and Human Rights, cit., 241 ff.

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“integrity- anxiety”, remarking succinctly on the profound need for continuity and the endogenous self-transformative capacity, that needs to have recourse to traditional categories in order to regulate change. The literature may also state more radical positions concerning the methods for applying these categories, normally in the wake of the most incisive and divisive transformational changes. However, all of this occurs rigorously within the domestic conceptual framework; there is absolutely no interference from external stimuli, or at any rate any such interference is ably concealed under other arguments. Even the waves of immigration by European scholars in the 1920s and 1930s, which had given a new lease of life to the study of law and heightened comparative sensitivities within many American schools of thought, appear to have petered out by the 1960s and 1970s and only to have left a slight inheritance. As has been succinctly stated by Michael Ignatieff,150 cultural exchange between the United States and the rest of the world operates predominantly in one direction, an insight that is valid within public law even more so than within political culture. A radical change occurred after 1989. The triumph of the American model appeared to mark the end of history151 and to offer the entire world an irreplaceable paradigm, with an ideal mix of political democracy, market economy and individual freedoms, which could be and has been emulated on all other continents within the most recent cycle of contemporary constitutionalism, as an apparently inexhaustible source of rules, institutes and concepts. However globalisation (which to some unsympathetic schools of thought152 is taken as a proxy for Americanism) for the first time removed the political and cultural obstacles on the full availability of other democratic models created after 1945, often under American leadership, and which subsequently developed with success. In doing so it paved the way for bi-directional or in any case alldirectional circulation of values and organizational facts, allowed for debate and operational engagement with foreign systems free from any prejudice, laid bare all of a sudden the limits to self-sufficiency, and spread the doubt that it may in actual fact result from isolationist provincialism. The case law of other constitutional courts was all of a sudden regarded not as meaningless exoticism, but rather as offering a mirror reflecting images that were similar and 150 Introduction: American Exceptionalism and Human Rights, in M. Ignatieff (Ed.), American Exceptionalism and Human Rights, cit., 9: “the trade in legal understanding continues to be mostly one-way”. 151 Such was the provocative title of F. Fukuyama’s book, The end of history and the last man, New York 1992. 152 See e.g. A. Hoogvelt, Globalization and Postcolonial World: The New Political Economy of Development, London 1997.

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yet slightly different, having been born out of different constitutional systems (although not for this reason any less legitimised by history). In fact these other systems were often more complex, as is the case in Europe, due to their capacity to engage efficiently with political-institutional phenomena on continental level and with international human rights organisations. This resulted in a lively debate concerning the use within case law of foreign law, which almost inevitably reached down to the customary level. The attempt to refer to foreign law and the opposition against such moves thus quickly came to a head above all in the area of rights, including in particular the core areas in which the breadth of evaluative discretion (in particular in historically weighty decisions, such as those concerning the death penalty, sexual mores and abortion) justified the recourse to canons of interpretation that could supplement the standards of decency of a maturing society which had been relied on for more than a century. Whilst until 1989 these could (more or less legitimately on the cultural level) operate exclusively within a totally introverted and autarchic context, nowadays it is difficult to avoid engaging with experiences from around the world, which in many cases are not without cultural and political dignity. Naturally, the clash between theories of constitutional interpretation within the Court and the literature also covers and metabolises the question of the use of foreign law; and indeed it is this very question that has provided the arena for conflict between the classical theories, enhancing and in part endorsing the arguments from traditional disputes and reinvigorating them in an only apparently new light, in which the ideological conformity from a domestic perspective of the opposing views is further fuelled. In other words, the debate between strict constructionists and activists endorsing an evolving interpretation has now shifted to the recourse to foreign law, even if only on a supplementary basis, without substantially changing the underlying ideological content.153 There is however one truly innovative aspect compared to the forms or rather the contours which the debate had taken on in the past. For the first time, almost in parallel with the sharp arguments proffered by Breyer and Scalia in Printz, a lively discussion began in legal and politological fields regarding the nature and causes of American exceptionalism,154 both on an international level as well as a constitutional-comparative level. Essentially, an 153 This seems to be the interpretation also of M. Tushnet, Referring to Foreign Law in Constitutional Interpretation: An Episode in the Culture Wars, 35 U. Balt. L. Rev. 299 (2006). 154 A first synthesis, already outdated, in S.M. Lipset, American Exceptionalism,: A DoubleEdged Sword, New York 1996.

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e­ xistential question has been consciously raised for the first time concerning the ­self-perception of the uniqueness of the American system.155 Is there still any need for legal isolationism, the origins of which are deeply rooted in the cultural history of the nation, from the original puritan idea of a town upon a hill, as a self-contained beacon of civilisation, to the Wilsonian vision of foreign ­policy, from the New Deal to the New Frontier, which is proposed to the world – a­ lways with pride and in some cases fervently – as an emblem of American identity, as evidence of its moral leadership and collectively as a model to be emulated? The universalisation of constitutional review following the cycles of western constitutionalism – after the Second World War, after the fall of the last European dictatorships, and after the end of Communism – along with the globalisation of the culture of rights and their axiological foundation, might have disseminated practical experiences that are necessarily divergent; at the same time, however, it has de-emphasised the positively special, if not genetically unique, aspect of the American system. At this stage, one must consider whether the reason for the refusal to look beyond the domestic walls is only political, given the internal predominance of a form of conservatism that seeks to safeguard American mainstream values, and along with them a core of doctrines of constitutionalism, or is rather institutional, i.e. resulting from the conviction that domestic protection for rights is rooted in and nurtured by the national democratic system, which precludes any contributions from external systems that have not been built on an identical platform of values and above all that do not have a similar history. Moreover, one cannot fail to note a further genuinely innovative aspect, albeit as a mere epiphenomenon of the recent displacement of the usual constitutional debate. For the first time, the debate concerning isolationism has led important public lawyers to engage with a comparative perspective with sincere interest and a strong desire for more detailed consideration, on both a macro-systemic level and in terms of micro-comparison, in all cases paying 155 M. Ignatieff (Introduction: American Exceptionalism and Human Rights, cit., 3 ff.) describes three types of exceptionalism: exemptionalism, double standards, legal isolationism. The first two more strictly concern the position of international law in case-law and therefore will be described in par. 8. In the more recent debate see e.g. S.G. Calabresi, “A Shining City on a Hill”: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law, 86 B. U. L. Rev. 1335 (2006); J. Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 Yale L. J. 1564 (2006); S.M. Walt, The Myth of American Exceptionalism, Foreign Pol’y, Oct 11, 2011; R.R. Tomes, United States Exceptionalism in the Twenty-First Century, 56 Survival: Global Pol. & Strategy 27 (2014); M. Versteeg, E. Zackin, American Constitutional Exceptionalism Revisited, 81 Chi. U. L.Rev. 1641 (2014, M.C. Rahdert, Exceptionalism Unbound: Appraising American Resistance to Foreign Law, 65 Cath. U.L. Rev. 537 (2016).

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particular attention not only to the cognitive function but precisely to the potential reuse of institutes and conceptual categories. In fact, from the end of the 1990s onwards, a not unimportant segment of constitutional lawyers has engaged in general comparative studies that would previously have been inconceivable,156 achieving scientifically appreciable results, even though they do not yet have sufficiently broad support within the curricula of most university law schools. Other public lawyers have carried out sectoral analyses in order to compare the constitutional, legislative and jurisprudential limits to individual rights and to ascertain the levels of protection guaranteed under various legal systems along with their reciprocal compatibility,157 moving the field of study into 156 See e.g. V. Grossman Curran, Cultural Immersion, Difference and Categories in U.S. Comparative Law, 46 Am.J. Comp.L. (1998); J.M. Balkin, S. Levinson, The Canons of Constitutional Law, 111 Harv.L.Rev. 963 (1998); A Riles, Wigmore’s Treasure Box: Comparative Law in the Era of Information, 40 Harv. Int’l. L.J. 221 (1999); V.J. Jackson, M Tushnet, Comparative Constitutional Law, New York, 1999; M. Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale L.J. (1999); D. Fontana, Refined of Comparativism in Constitutional Law, 49 u.c.l.a. L. Rev. 539 (2001); S. Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am.J. of Comp.L. 707 (2001); M. Tushnet, Transnational/Domestic Constitutional Law, cit.; M. Reiman, The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century, 50 Am. J. of Comp. L. 671 (2002); J. Ferejohn, P. Pasquino, Constitutional Adjudication: Lessons from Europe, 82 Tex.L.Rev. 1671 (2004); D. Fontana, The Next Generation of Transnational/Domestic Constitutional Law Scolarship: A Reply to Professor Tushnet, 38 Loy.L.A.L. Rev. 445 (2004); F. Schauer, On the Migration of Constitutional Ideas, 37 Conn. L.Rev. 907 (2005); R.P. Alford, In Search of a Theory for Constitutional Comparatism, 52 ucla L.Rev. 639 (2005); R. Michels, The Second Wave of Comparative Law and Economics, 59 U. Toronto L. Rev. 197 (2009); V. Jackson, Constitutional Engagement in a Transnational Era, Oxford-New York, 2010; M. Andenas, D. Fairgrieve, Courts and Comparative Law, Oxford – New York, 2015; R. Michels, Transnationalizing Comparative Law, 23 Maastricht j. of Eur. & Comp. L. 2 (2016). 157 See e.g. F. Schauer, The Exceptional First Amendment, in M. Ignatieff (Ed.), American Exceptionalism and Human Rights, cit. p. 29 ss.; G.L. Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance, 55 Stan. L. Rev. 1863 (2003), about freedom of expression; about capital punishment, C.S. Steiker, Capital Punishment and American Exceptionalism, in M. Ignatieff, American Exceptionalism, cit. p. 57 ff., on criminal procedural law, C.M. Bradley, Criminal Procedure: A Worldwide Study, Durham, N.C., 1999; about social rights C.R. Sunstein, Why Does the American Constitution Lack Social and Economic Guaranteees?, 56 Syracuse L.Rev 1 (2005) e S.-I.G. Koutnatzis, Social Rights as a Constitutional Compromise: Lessons from Comparative Experience, 44 Colum.L.Transnat’l L. 74 (2005); Symposium: Just Right?: Assessing the Rehnquist Court’s Parting Words on Criminal Justice, 94 Geo.L.J. 1319 (2006), on substantive criminal law; I. Giesen, The Use and Influence of Comparative Law in Wrongful Life Cases, 8 Utrecht L. Rev. 35 (2012), on the connection between medical and tort laws; V.C. Jackson, Transnational Discourse, Relational Authority, and the U.S. Court: Gender Equality, 37 Loy.L.A.L.Rev. 271 (2003) and W.D. Araiza, Foreign and International Law in Constitutional Gay Rights Litigation: What Claims, What Use, and

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exceptionalism from the methodological to the substantive level, and perhaps thereby contributing to de-ideologising the debate concerning the amenability to importation of interpretations that have been established in foreign systems. On this level for example, studies into freedom of expression have led to detailed consideration of the differences between constitutional provisions within western democracies in relation to criminal obscenity, the right of reporting and incitement to hatred. Comparison on this level has the benefit of laying bare the advantages and drawbacks of the various solutions, promoting the search for the best standard, and has a strong similarity with the methods endorsed within the European literature, although the latter engages with the positive problems of cohabitation between various forms of protection and forum shopping, whilst the US literature, as things currently stand, engages with data that are only virtually conflicting. Some other researchers have undertaken investigations about selected areas of foreign legal systems, in order to explore the possibility of useful comparisons to be applied by courts: this approach has included South Africa,158 Australia,159 New Zealand,160 Japan161 and even China.162 Needless to say,

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Whose Law?, 32 Wm. Mitchell L. Rev. 455 (2006), about gender equality; F.G. Nicola, Family Law Exceptionalism in Comparative Law, 58 Am. J. Comp. L. 777 (2010), about family law and the pertinent research methodologies; I. Cram, Resort to Foreign Constitutional Norms in Domestic Human Rights Jurisprudence with Reference to Terrorism Cases, 68 Cambridge L. J. 118 (2009), and K. Sikking, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, New York, N.Y., 2011, about the fight against terrorism and the problems of national security; E. Lee, The New Canon: Using or Misusing Foreign Law to Decide Domestic Intellectual Property Claims, 46 Harv. Int’l L. J. 1 (2005); J. Bomhoff, Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse, Cambridge, 2013 and J. Tsan-Ta Lee, Interpreting Bills of Rights: The Value of a Comparative Approach, 5 Int’l L. J. Const. L. 122 (2007) on human rights in general. V. Bentele, Mining for Gold, the Constitutional Court of South Africa’s Experience with Comparative constitutional Law, 37 Ga. J. Int’l and Comp. L. 219 (2009), and formerly L.W.H. Ackermann, Constitutional Comparative Law in South Africa: A Response to Sir Basil Markesinis and Jörg Fedtke, 80 Tul. L. Rev. 169 (2005) and M. Kende, The Constitutionality of the Death Penalty: South Africa as a Model for the U.S., 38 geo. Wash. Int’l L. Rev. 209 (2006). C. Saunders, The Use and Misuse of Comparative Constitutional Law, 13 Ind. J. of Glob. Legal Studies 37 (2006). J. McLean, From Empire to Globalization: The New Zealand Experience, 11 Ind. J. Global Legal Stud. 161 (2004); J. Allan, G. Huscroft, N. Lynch, The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?, 11 Otago L. Rev. 433 (2007). S.M. Sable, Pride, Prejudice and Japan’s Unified State, 11 u.d.c.l. Rev 71 (2008); in earlier years, see D.M. Hellegers, We the Japanese People: World War ii and the Origins of the Japanese Constitution, Palo Alto, Cal., 2001 and F. Schauer, On the Migration of Constitutional Ideas, 37 Conn. L. Rev. 907 (2005). A. Bewicke, The Court’s Duty to Conduct Independent Research into Chinese Law: A Look at Federal Rule of Civil Procedure 44.1 and beyond, 1 Chinese Law and Pol’y Rev 97 (2005); T.

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plenty of literature has been dedicated to religion in the perspective of its possible use on an equal footing, after the state statutes concerning Shariah.163 Finally, another group of public lawyers has addressed comparison from the standpoint of globalisation and its effects,164 stressing that the new form of global governance (which is certainly no more democratic than that under the exclusive control of the States, although it is much more pluralist) has sparked off new dimensions of discursiveness and consequently has given the problem of American exceptionalism an entirely new dimension compared to the past. Within the arena of a “global public domain” involving a strong presence of non-State actors, in which the market, the environment and rights tend to be achieved at least in part outside of government control, the use of foreign law places the American system within the international context in a more complex and variegated light, irrespective of whether a nationalist focus premised on the rediscovery of sovereignty or a globalist dynamic is chosen. On the internal side some of the factors that could historically have been invoked in support of scenario multilateral cooperation appears to be a trend that is difficult to reverse.165 Any choosing of sides must therefore be carefully weighed up Ruskola, Legal Orientalism: China, the United States, and Modern Law, Cambridge, Mass., 2013. 163 See e.g. R. Garnett, A Hands-off Approach to Religious Doctrine: What Are We Talking about?, 84 Notre Dame L. Rev. 837 (2008); C.A. Pedrioli, Constructing the Other: U.S. Muslims, Anti-Sharia Law, and the Constitutional Consequences of Volatile Intercultural Rhetoric, 22 S. Cal. Interdisc. L. J. 65 (2012); A. Shinar, A. Su, Religious Law as Foreign Law in Constitutional Interpretation, 11 Int’l J. Const. L. 74 (2013); E. Volokh, Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L. Rev. 431 (2014). 164 Such as, in a different perspective, B. Ackerman, The Rise of the World Constitutionalism, 83 Va. L.Rev. 771 (1997); S. Choudrhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Ind.L.J. 819 (1999); R. O’brien, J.A. Scholte, M. Williams, A.M. Goetz, Contesting Global Governace, New York 2000; A.M. Slaughter, A New World Order, Princeton N.J. 2005; Judicial Globalization, 40 Va.j.Int’l L. 1103 (2000); R. Bork, Coercing Virtue: The Worldwide Rule of Judges, Washington D.C. 2003; M. Kalher, D.A. Lake (eds.), Governance in a Global Economy: Policital Authority in Transition, Princeton N.J. 2003; G.J. Jacobson, The Permeability of Constitutional Borders, 82 Tex.L.Rev. 1763 (2004); A.M. Slaughter, New World Order, Princeton, N.J., 2004; S.K. Harding, Comparative Reasoning and Judicial Review, 28 Yale J.Int’l L. 409 (2003); K.I. Kersch, The New Legal Transnationalism, the Globalized Judiciary, and the Rule of Law, 4 Wash. U. Global Stud. L. Rev. 345 (2005); K. Anderson, Squaring the Circle: Reconciling Sovereignty and Global Governance through Global Government Networks, 118 Harv. L. Rev. 1255 (2005); E.A. Posner, The Perils of Global Legalism, Chicago, Ill., 2009; R.D. Glensy, Constitutional Interpretation through a Global Lens, 75 Mo. L. Rev. 1171 (2010); S. Muller, S. Richards (Eds.), Highest Courts and Globalization, The Hague-Berlin, 2010; M. Frishman, S. Muller (Eds.), The Dynamic of Constitutionalism in the Age of Globalization, The Hague-Berlin, 2010; D.S. Law, M. Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 Cal. L. Rev.1163 (2011). 165 See e.g. J.G. Ruggie, American Exceptionalism, Exemptionalism and Global Governance, in M. Ignatieff, American Exceptionalism, cit. 304 ss.; A. Moravcsik, The Paradox of Human Rights Policy, ibidem, p. 147 ss.

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both in terms of values and their conservation or supplementing, as well as in terms of the relational implications on an international level. To summarise, although this study does not claim to provide a conclusive assessment for an evolving situation, it may be concluded that the debate launched by the Supreme Court in the years after 1997 concerning the usage by the courts of foreign law largely reflects the shift into a different and more modern domain of the ideological polarisation typical of American constitutionalism. However, at least it has the merit of opening up American legal culture to incursion by cultural forces that are relatively new, albeit constrained to adapt in line with the traditional and non-negotiable principles of constitutionalism.166 The eternal juxtaposition between doctrinal camps has shifted to a new field, whilst however drawing on recently introduced methods and materials or rediscovering traditional dialectics. It is necessary to establish whether the apparent predominance of this juxtaposition can be achieved with or without radical transformations. The entirety of western legal culture has an interest in ensuring that US constitutional reflection should – irrespective of the particular paths taken within federal case law – engage with and resolve where possible the problem underlying the debate concerning the recourse to foreign law, that is the unresolved conflict between the primacy of isolationism on the one side and the immersion within globalist trends on the other. 8

... And of International law

Not too dissimilar considerations, albeit distorted somewhat by even more weighty tension – as it is America’s role as a superpower in the globalised world that is at stake – apply for international law, which is often referred to in the case law and even within the literature alongside and indiscriminately with foreign law. From the start of the 1990s onwards, the domestic literature on the principles of international law has in effect hosted a diatribe that is even more divisive than those relating to constitutional law, even though it is closely connected to the latter. Essentially, the debate concerns the position of international law within the system of constitutional law, and has vast and far-reaching implications for the role of the courts, for the level of interpretative discretion, for the dynamics 166 See the historical synthesis by D.S. Clark, Nothing New in 2000? Comparative Law in 1900 and Today, 75 Tul. L.Rev. 871 (2001); D.S. Clark, Establishing Comparative Law in the United States: The last Fifty Years, 4 Wash.U.Glob. Stud.L.Rev. 583 (2005); D.S. Clark, Development of Comparative Law in the United States, in M. Reimann, R. Zimmermann, Eds. The Oxford Handbook of Comparative Law, 2006. David Clark, from Willamette University College of Law, has been president of the American Society of Comparative Law.

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of federalism, for the relations between federal branches within foreign politics, and ultimately for the American approach towards international politics. In the first place treaty law, which has recently been expanded in terms of the number of agreements, the scope of their object – with particular regard to the economy, the environment and biodiversity – the tendency towards increasing regulation of private individuals rather than State bodies,167 as well as the depth of the obligations, tends to be used frequently within judicial disputes arising between natural persons or legal persons governed by private law.168 However, the courts have been hesitant in ruling that treaties give rise to any private right of action or in recognising self-executing status to international treaties absent any specific implementing legislation, drawing on the classical “non-self-execution” doctrine dating back to the judgments of John Marshall,169 having subsequently evolved through to the post-World War Two Restatements,170 which permits or requires the courts to reconstruct the historical circumstances surrounding signature by the President and approval by the Senate in order to assess to what extent a treaty is operational and binding. In this way, the Judiciary has found a way of withdrawing from a highly sensitive area, flexibly leaving control over it to the powers legitimated by the principle of representation, whilst at the same time permitting the Federation to manage foreign policy without any interference by the States. A not insignificant number of scholars of international law171 has responded to this reluctance by arguing that the Supremacy Clause contained in Article vi, clause 2 has the effect of directly incorporating international treaty law into the system of national law, thereby guaranteeing immediate applicability in all cases, or at least imposing an extremely restrictive interpretation on the traditional approach. In practice, exemptionism towards treaty law has manifested itself in various forms. In some cases, when America has not failed to adhere to a treaty or has waited for decades before doing so, the President has declared that treaties, including human rights treaties, will not be immediately enforceable.172 167 See e.g. P.B. Stephan, The New International Law – Legitimacy, Accountability, Authority, and Freedom in the New Global Order, 70 U.Col L.Rev. 1555 (1999). 168 See e.g. H.H. Koh, Transnational Public Law Litigation, 100 Yale L.J. 2347 (1991) and H.P. Aust, A. Rodiles, P. Staubach, Unity or Uniformity: Domestic Courts and Treaty Interpretation, 27 Leiden Journal of International Law 75 (2014). 169 Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829). Per il profilo storico v. G.E. White, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. rev 1 (1999). 170 See Restatement (Third) of the Foreign Relations Law of the United States, 1987. 171 See in particular L. Henkin, Foreign Affairs and the United States Constitution, 2a ed., Oxford 1966 and C.M. Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum. L. Rev. 1082, O.A. Hathaway, S. McElroy, S. Aronchick Solow, International Law at Home: Enforcing Treaties in U.S. Courts, 37 Yale J. Int’l L. 51 (2012). 172 A critical history in L. Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 A.J.Int’l L.341 (1995).

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In other cases, joint declarations have been made by the Senate and the President to the effect that no legislation is required in order to implement the commitments resulting from a treaty.173 There have also been cases in which Congress as a whole has excluded individual rights of action in favour of private individuals resulting from an international agreement. These forms of reservations, understandings and declarations (ruds) are extremely frequent and were also used explicitly in relation to the ratification of the 1990 Convention against Torture precisely in order to exclude any impact on the internal practice in relation to the death penalty in the light of the Eight Amendment and the due process clause. This has thereby resulted in a radical juxtaposition between those who favour a monist approach and the broad usage of international treaty law (“internationalists”) on the one side, who paradoxically would like to set once and for all the scope of the constitutional clauses in the meaning suggested by the historical-originalist interpretation, and on the other side the dualists who favour a prudent and selective incorporation of treaty obligations into national law, giving weight in functional terms to the requirements of non-rigid control of foreign policy by the political branches,174 and who have also raised pedantic objections against accounts based on an original understanding of the Constitution.175 Secondly, within the area of customary international law, which should be presumed to be consolidated, the traditional monist outlook, dating back to the Paquete Habana case,176 under which customary international law (cil) is considered to be an integral part of municipal law (the so-called “modern 173 Such as in the case of the adhesion to the World Trade Organization, 19 u.s.c. §3512(a)(1) (1994). The problems concerning the status of the decisions of the wto Dispute Settlement Body in the federal judiciary are analyzed e.g. by J. Thuo Gathii, Foreign Precedents in the Federal Judiciary: The Case of the World Trade Organization’s dsb Decisions, 34 Geo. J. of Int’l and Comp. L. 3 (2005). 174 See e.g. M.D. Ramsey, A Textual Approach to Treaty Non-Self-Execution, 2015 Brigham Young Univ. L. Rev. 1639 (2015); D.H. Moore, Do U.S. Courts Discriminate against Treaties?: Equivalence, Duality, and Non-Self-Execution, 110 Colum. L. Rev. 2228 (2010); C.A. Bradley, Self-Execution and Treaty Duality, Supreme Court Review 2008 (2008): 131–182, E.J. Sanchez, A Case against Judicial Internationalism, 38 Conn. L. Rev. 185 (2005); R.D. Glensy, The Use of International Law in U.S. Constitutional Adjudication, 25 Emory Int’l L. Rev. 197 (2011), concerning also international customary law; H.G. Cohen, Claiming Control over Foreign Relations Law: The Roberts Court’s First Decade, 109 Am. Soc’y Int’l L. Proc. 42 (2015). The Court has also been blamed for its reluctance to analyze or apply international law: see e.g. J.K. Setear, A Forest with No Trees: The Supreme Court and International Law in the 2003 Term, 91 Va. L. rev. 579 (2005). 175 See in particular J.C. Yoo, Globalism and the Constitution: Treaties, Non-self-execution, and the Original Understanding, 99 Colum.L.Rev. 1995 (1999). 176 175 U.S. 677 (1900).

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position”), became subject to harsh criticism around the mid-1990s in the wake of the judgments in the area of federalism, which sought to enhance the role of the States.177 Supporters of the revisionist theory take the view that, by overturning in the renowned Erie Railroad v. Tompkins178 the line of case law stretching back to Swift v. Tyson,179 which resolved conflicts between State laws by applying the federal general common law, and ruling that no such body of law existed, not even customary international law could be considered to be such, especially since the new conformation of international law is increasingly seeking to impinge on internal relations between the member States and the federation and between private individuals. Consequently, transnational litigation in which international law is invoked should not be resolved mechanically by the federal courts according to federal law, to the exclusion of State law, and especially not by granting automatic prevalence to international law by placing it on an equal footing with federal common law.180 cil should therefore only be recognised as an internal source of law after the federal political authorities, and not the courts, or the competent State have explicitly adopted it; to do otherwise would be to violate the separation of powers, the 177 Among which Printz v. United States, 521 U.S. 898 (1997), ground of clash between Breyer and Scalia on the use of foreign and international law, see supra, par. 3. 178 304 U.S. 64 (1938). 179 41 U.S. 1 (1842). See also G. Born, Customary International Law in United States Courts, 92 Wash. L. Rev. 1641 (2017); N.C. Gutierrez, M. Gulati, Custom in Our Courts: Reconciling Theory with Reality in the Debate about Erie Railroad and Customary International Law, 27 Duke J. Comp. & Int’l L. 243 (2017). 180 See above all A.M. Weisbburd, State Courts, Federal Courts, and International Cases, 20 Yale J.Int’l L 1 (1995); C.A. Bradley, J.L. Goldsmith, Custmary International Law: A Critique of the Modern Position, 110 Harv. L.Rev. 815 (1997), The Current Illegitimacy of International Human Rights Litigation, 66 Fordham L.Rev. 319 (1997), Federal Courts and the Incorporation of International Law, 111 Harv.L.Rev. 2260 (1998); C.A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390 (1998); J. Goldsmith, Should International Human Rights Law Trump US Domestic Law?, 1 Chi.J. of Intn’l L. 1 (2000); A.M. Weisburd, American Judges and International Law, 36 Vand. J. of Transn’l L. 1475 (2003); V.J. Samar, Justifying the Use of International Human Rights Principles in American Constitutional Law, 37 Colum. Hum. Rts. L. Rev. 1 (2005); N.Q. Rosenkranz, An American Amendment, 32 Harv. J.L. & Pub. Pol’y 475 (2009); P. Larkin, Jr., The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking, 38 Harv. J.L. & Pub, Pol’y 337 (2015), The last two articles argue that the mention of the “Republican form of government” in the federal Constitution, as well as the refusal of all forms of subjection to foreign jurisdiction included in the Declaration of independence, exclude all possibilities of granting an international entity the authority to govern the people of the American nation without violating the Appointments Clause: therefore even Congress and the Executive would be inhibited from delegating such authority and qualifying international law norms as the “supreme law of the land” according to the Supremacy Clause. Judicial independence would also be jeopardized: J.C. Harrison, International Adjudicators and Judicial Independence, 30 Harv. J.L. & Pub. Pol’y 127 (2006).

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federalist settlement and the very democratic principle. This would therefore negate the possibility of automatically considering disputes in the area of foreign affairs, commercial relations, admiralty law and general federal law as involving a question of federal law under the jurisdiction of the district federal courts and, on appeal, the Supreme Court.181 For example, the revisionist position implies inter alia that if a provision of customary international law, even if incorporated into treaty law, prohibits the death penalty for particular classes of person, it cannot be considered to have federal status, and consequently to prevail over any contrasting provision of State law. The dualist obstacle on the penetration of customary law thus leads not only to a barrier against international interference but also to close interaction between international law and federalist dynamics. The “internationalists” have obviously responded,182 stressing both the historical continuity of the status of customary law as well as the importance of maintaining a fundamental federal consistency in critical areas of international interest. Principles of constitutional law that are presented in textbooks as having been consolidated since the start of the 1990s183 have thus been radically called into question, above all in the light of increasingly frequent human rights litigation. The Alien Tort Claims Act 1789,184 following several judgments from the 1980s,185 which grants jurisdiction to the federal courts inter alia over civil actions brought by foreign nationals in relation to torts committed in breach of the law of nations was one of the preferred areas for litigation regarding the status and position of customary international law, even though the Torture Victim Protection Act 1991 (tvpa)186 expressly incorporated into federal law 181 H.J. Friendly, In Praise of Erie – And of the New Federal Common Law, 39 n.y.u.l.Rev. 383 (1964). Carlos M. Vazquez, Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position, 86 Notre Dame L. Rev. 1495 (2011). 182 See e.g. G.L. Neuman, Sense and Nonsense about Customary International Law: A response to Professor Bradley and Goldsmith. 66 Fordham L. Rev. 371 (1997); H.H. Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824 (1999). Una ricostruzione del dibattito con formulazione di tesi intermedie in E.A. Young, Sorting Out The Debate Over Customary International Law, 42 Va.J. of Int’l L. 365 (2002) e A.E. Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 Am. J. Int’l L. 757 (2001). A summary in M. Kumm, The International Rule of Law and the Limits of the Internationalist Model, 44 Va.J.Int’l L. 19 (2003). 183 See e.g. J.E. Nowak, R.D. Rotunda, Consitutional Law, St. Paul, Minn., 4th Ed. 1991, ch. 6. 184 28 u.s.c. §1350. 185 Since Filartiga v. Pena – Irala, 630 F.2d 876 (2nd Cir. 1980). 186 Pub. L. No. 102-256, 106 Stat. 73 (1992), 28 u.s.c. § 1350.

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most of the customs that could be invoked in this area, ensuring that relief became easier to obtain. The issue regarding the imposition and enforcement of the death penalty has been another area that has attracted specific debate concerning the resistance of domestic federal law to international law, and even more so concerning the predominance of international law over State law, the latter being considered equivalent to federal law, resulting in the prohibition on the enforcement of the death penalty for example on minors or the mentally disabled due to the prevailing weight of customary rules, which have been incorporated at least in part into international treaties.187 When the Court in 1989 explicitly objected to the recourse to non-domestic elements in order to give meaning to “American conceptions of decency”, the dispute appeared to abate; however, it became a major topical issue once again towards the middle of the 1990s. During the course of 2005, the Court then found itself in the embarrassing situation of being required to deal for the first time with a ruling against the usa by the International Court of Justice, which had been applied to a Mexican national condemned to death in the United States who, having been unable to overcome the complex procedural barriers in place for the grant of federal habeas corpus relief, alleged a violation of the Vienna Convention on Consular Relations and obtained an order instructing the American courts to review the case without regard to formal procedural requirements. After the Supreme Court granted certiorari and the President signed a memorandum confirming the commitment of the United States to honour its own international obligations, the convicted individual was able to obtain a ruling from the State courts accepting the admissibility of his request for a review, following which the Court was able to conclude that the requirements under the Convention had been met, without any need to consider the merits of the case.188 More generally, increasing numbers of actions have been brought before federal courts against foreign governments, foreign natural persons holding governmental office and foreign companies accused of having colluded with

187 See e.g. R.R. Drinan, Will Religious Teachings and International Law End Capital Punishment?, 29 St. Mary’s L.J. 957 (1998) e W.A. Shabas, International Law and Abolition of Death Penalty, 55 Wash & Lee L. Rev. 797 (1998). The resistance ofthe courts to the monistic thesis has made some authors speak of a “Blanke stare phenomenon”: see P.L. Hoffman, The “Blank Stare Phenomenon”: Proving Customary International Law in thr U.S. Courts, 25 Ga. J. Int’l & Comp. L. 181 (1995/1996). 188 See Medellin v. Dreyke, 04-5928, 73 LW 4381 (2005) con dissent di O’Connor, Stevens, Souter e Breyer. See G.F. Ferrari, La Corte Suprema degli Stati Uniti nei terms 2003/2004 e 2004/2005, cit., 4140.

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foreign governments, so that the position of international law within the system of constitutional law has been placed under considerable pressure.189 The debate has been complicated even further by overlaps with other critical issues within constitutional theory. For example, monism favours accusations of judicial law-making, that is the allocation to the courts of a political role within areas in which the Constitution has identified very specific decision making procedures, and ends up exacerbating the so-called countermajoritarian difficulty.190 On the other hand, the implications of the opposing theories for the federalist equilibrium are evident,191 the stability of which is seriously jeopardised by the new problems in the area of international law arising within the context of globalisation.192 The evident and lasting difficulties within the American literature and case law in ordering constitutional principles in the area of international law in a suitably stable manner are directly related to the crisis within international relations following the end of the Cold War and the search by the American superpower for a balanced position within the globalised world. Whether it is explained by considerations of Realpolitik or by the peculiar nature of the American axiological baggage, which is rich in conservative values and permeated by a narcissistic desire to protect and defend the country’s own messianic unity,193 the exceptionalism that has resulted in the refusal to sign treaties, including in the area of human rights, starting from the Statute of the International Criminal Court and the Kyoto Protocol, or their signature 189 See e.g. A.M. Weisburd, American Judges and International Law, 36 Vand. J. of Transn’l L. 1474 (2003). Again in the 2003 term (Sosa v. Alvarez-Machain, 03-339 & 03-485, 72 LW 4660, June 29, 2004, penned by Souter), confronting the case of a Mexican citizen seized in his country by dea agents in order to be tried for murder in the United States and then acquitted, requested of the application of the Alien Tort Statute (ats) of 1790 (28 u.s.c. 1350), held the trial inadmissible because the statute, even if it was connected to international customary law, does not introduce new actions. See also Z. Akthar, Acts of State, State Immunity, and Judicial Review in the United States, 7 Brit. J. Am. Legal Stud. 205 (2018). 190 See e.g. L.A. Baker, E.A. Young, Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75 (2001); J.G. Ku, The Delegation of Federal Power to International organizations: New Problems with Solutions, 85 Minn. L. Rev. 71 (2000). 191 See e.g. E.A. Young, Dual Federalism Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 Geo. Wash. L. Rev. 139 (2001); D. Halberstam, The Foreign Affairs of Federal System: A National Perspective on the Benefits of State Partecipation, 46 Vill. L. Rev. 1015 (2001); D. Sloss, International Agreements and the Political Safeguards of Federalism, 55 Standford L. Rev. L. 1984 (2003). 192 See G. Neuman, The Nationalization of Civil Liberties, 99 Colom. L. Rev. 1630 (1999); P.J. Spiro, Globalization, International Law, and the Academy, 32 n.y.u. J. Int’l L. & POL. 567 (2000) e Globalization and the (Foreign Affairs) Constitution, 63 Ohio st. L. J. 649 (2002). 193 Ibidem, 11 ff.

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or ratification subject to reservations, or the imposition of post-adherence derogations, or the application of different criteria in bilateral dealings with third countries, even within the context of international organisations (double standard194), was perhaps better suited to the old bloc-based international order within which these tendencies emerged.195 Within the globalised order, to the realisation of which American culture and power have provided a decisive contribution, the tendency towards pluralist multilateralism brought about by the parallel operation of multiple constitutional orders – each rooted in respect for the democratic order, permeated by the culture of rights and capable of practising various forms of judicial ­review – renders unlikely a proud nationalist isolationism, or at least makes clear its parochial limits where the State acting in this manner at the same time seeks to act as a leader in the area of global governance.196 The use of international law by the courts thus finds itself at a crossroads marked by these tensions. As always, it will have to be the Supreme Court that strikes a balance between the “Americanists” and the “internationalists”, between the “particularists” and the “universalists”,197 between democratic imperialism and participatory multilateralism, between globalisation and federalism, and between sovereignty and human rights.198 If, as Bruce A ­ ckerman199 writes, America as a world power has the force to make itself u ­ nderstood and to adopt a balanced stance within the international law of the 21st Century, it will draw benefit that is far greater than that resulting from the consolidation of a constitutional law doctrine.

194 See. M. Ignatieff, Introduction, cit., 3 ff. 195 See e.g. J.N. Moore, Treaty Interpretation, the Constitution and the Rule of Law, Dobbs Ferry, N.Y. 2001. 196 Cfr. ad es. J. Rabkin, International Law vs. The American Constitution – Something’s Got to Give, The National Interest, 55, Spring 1999; G.L. Neuman, The Uses of International Law in Constitutional Interpretation, 98 Am. J. Int’l L. 82 (2004); H.H. Koh, International Law as a Part of Our Law, 98 Am. J. Int’l L. 82 (2004). See also A.X. Fellmeth, Leading from (a Bit) behind: The United States and International Human Rights Law, 40 North Carolina J. Int’l L. & Com. Reg. 977 (2015). 197 In the words of S. Choudry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Ind. L. J. 819 (1999). 198 V. ad es. P.W. Kahn, The American Hegemony and International Law, 1 Chi. J. Int’l. L.1 (2000); Agora, The United States Constitution and International Law, 98 Am. J. Int’l L. 53 ss. (2004), with contributions by R.P. Alford, T.A. Aleinikoff, P.R. Trimble, M.D. Ramsay; H.G. Cohen, Supremacy and Diplomacy: The International Law of the U.S. Supreme Court, 24 Berkeley J. of Int’l L. 273 (2006); H. Harris, We are the World – Or are We? The United States’ Conflicting Views on the Use of International Law and Foreign Legal Decisions, 12 Hum. Rts. Br. 5 (2005). 199 B. Ackerman, We are the People: Foundation, cit., 3.

Comparative Law in the Jurisprudence of the Supreme Court of Canada Nino Olivetti Rason and Sara Pennicino 1 Introduction Over the past ten years, legal scholars have devoted great attention to the influence of comparative law in national systems.1 Studies span several types of use of comparative law, as for example by legislatures and by courts, and different areas of law, although the debate is most vigorous with regard to private law and constitutional law.2 Many of these studies analyse Canada and identify this jurisdiction as one of paramount importance when it comes to the use of comparative law. As a result, given also the growing global importance of the Constitution of Canada,3 the quantity and quality of existing literature on the role of comparative law in Canada is overwhelming. Accordingly, this chapter, rather than offering a general overview of the topic, will focus on the way comparative law has influenced the jurisprudence of the Canadian Supreme Court.4 This choice is based on three factors. 1 For example, during the 2007 World Congress of the International Association of Constitutional Law, Tania Groppi of the University of Siena and Marie-Claire Ponthoreau of the University of Montesquieu-Bordeaux iv established an interest group on “Cross-Judicial Fertilization.” The major output of this group initiative is the collection of sixteen chapters each containing a national description and analysis of the use of foreign precedents by the relevant court of the legal order concerned. 2 Jan M. Smits, Comparative Law and its Influence on National Legal Systems, in M. Reimann, R. Zimmermann (eds.), The Oxford Handbook of Comparative Law, Oxford University Press, Oxford, 2006, pp. 513.538. 3 R. Albert, Introduction, in R. Albert, D.R. Cameron (eds.), Canada in the World: Comparative Perspectives on the Canadian Constitution, Cambridge University Press, Cambridge, 2017, pp. xi–xii. 4 Canadian studies in Italy developed thanks to the contribution of numerous scholars and with the constant support of the Canadian Embassy in Rome and of the Italian Association of Canadian Studies. With specific regard to the Canadian legal system, it should be noted that Italian comparatists devoted a considerable number of studies to this Country particularly after 1982. Among many publications in Italian regarding the constitutional system of Canada, see the collection of essays entitled L’ordinamento costituzionale del Canada, Giappichelli, Turin 1997 and T. Groppi, Canada, il Mulino, Bologna, 2006. Moreover, the case law of the Supreme Court of Canada is reviewed and commented on the Italian Law Journal

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First and foremost, notwithstanding the fact that Canadian law makers often refer to third countries’ law when drafting bills, the use of comparative law by judicial bodies is more explanatory of the Canadian approach. Second, the conception of the Canadian Constitution as a “living tree” has provided the Supreme Court with the opportunity to use comparative law in order to elaborate innovative doctrines, thus forging overtime a distinct Canadian constitutionalism. Third, given this hermeneutical role played by comparative law, a mere analysis of the use of foreign precedents in the case law of the Supreme Court would be insufficient to identify trends and doctrines regarding the relevance of comparative law in Canada. Therefore, this chapter will construe selected judgments in order to achieve the greater goal of assessing the role played by comparative law in moulding a distinct Canadian constitutional identity. 2

From Recipient to Exporter: The Global Impact of Canadian Constitutionalism

The case law of the Supreme Court which we will analyse and assess from a comparative perspective, starting from the 1980s – reflects the propensity of the constitutional system to which it belongs to engage in dialogue and comparison.5 The numerous citations of foreign “precedents” (which are treated Giurisprudenza costituzionale every two year. This case review, which was carried out previously by N. Olivetti Rason and currently is authored by E. Ceccherini, offers the Italian audience the opportunity to be up to date with the Canadian Supreme Court’s most relevant judgments. 5 For a description of the Canadian constitutional system, see at least P.W. Hogg, Constitutional Law of Canada, 5th edition, Thomson-Carswell, Toronto, 2007 and J. Webber, The Constitution of Canada. A Contextual Analysis, Hart, Oxford, 2015. For an overview of the role of the judge from a comparative perspective, see A.A. Levasseur (with a paper by M. Hebert), The Use of Comparative Law by Courts, in Am. J. Comp. L., 42 (Sup.), 1994; U. Drobnig, The Use of Comparative Law by Courts, in U. Drobnig and S. Van Erp The Use of Comparative Law by Courts, UK 1999, p. 3 et seq; C.L. Ostberg, M.E. Wetstein e C.R. Ducat, Attitudes, Precedents and Cultural Change: Explaining the Citation of Foreign Precedents by the Supreme Court of Canada, in 2 Canadian J. Pol. Science, 34, 2001, p. 377 et seq. See L.E. Weinrib, The Supreme Court of Canada in the Age of Rights: Constitutional Democracy, the Rule of Fundamental Rights under Canada’s Constitution, in Canadian B. Rev., 2001; B. Markesinis and J. Fedtke, The Judge as Comparatist, in SO Tulane L. Rev., 2005; the paper by Markesinis and Fedtke carries out various comparative law analyses, including briefly, although with great precision, a discussion of Canada. It is interesting to note that the literature has entered the debate in this area, without however involving the Canadian

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as being persuasive if not binding) interspersed throughout the Court’s decisions, which point to the metaphor of the transplant,6 the frequent reference to contributions from the literature that are not drawn solely from Canada but also from Europe (including in particular the United Kingdom), the usa and in some cases even Australia, the attention to the legal (although also social, political and economic) problems of the entire planet from a “universalist” perspective, and the juxtaposition adopted within its own case law (in particular in the area of the protection of rights) with those of other supreme courts: all of these comparative elements are fully consistent with the dynamics in Canadian constitutional practice. More in general, it should be noted that the exchange of legal ideas between constitutional systems is one of the features of 21st century constitutionalism.7 This development may be the result of the late 20th century wave of constitutional codification of rights, as for example it is the case of the 1982 Canadian Charter of rights, or because of the development of domestically enforceable human rights standards deriving from international treaties, as for example in Australia.8 Regardless of this distinction, such an exchange, resulting in an ongoing dialogue,9 is especially carried out at the level of the judiciary, thus fostering the elaboration of doctrinal concepts as



6 7 8 9

Supreme Court: see for ­example K. Schiemann, A response to The fudge as Comparatist, ivi, p. 28; A. Barak, Response to The Judge as Comparatist, ivi., 195; C. Rozakis, The European Judge as Comparatist, ivi, p. 257. These papers have recently been brought together in updated form in one single volume: see B. Markesinis and J. Fedtke (eds), Judicial Recourse to Foreign Law, New York 2006. See the article by Markesinis, The Judge as Comparatist, in 80 Tulane L. Rev., 2005, p. 46 et seq. The metaphor used to capture the increased exchange of legal ideas among different constitutional systems is that of the “migration of ideas”, see S. Choudhry (ed.), The Migration of Constitutional Ideas, Cambridge University Press, Cambridge, 2006. M. Kirby, Transnational Judicial dialogue, Internationalisation of Law and Australian Judges, in Melb. J. Int. Law, vol. 9, 2008, pp. 1–19. See in this volume M. Gobbo,The practice of comparative law by the Supreme Courts of Australia and New Zealand pp. 194–216. G. de Vergottini, Oltre il dialogo tra le Corti.Giudici, diritto straniero, comparazione, [Beyond Judicial Dialogue.Judges, Foreign Law, Comparison], Il Mulino, Bolonia, 2010. Id. Il dialogo transnazionale tra le corti, [Transnational Dialogue Among Courts] Ed. Scientifica, Napoli, 2010. T. Groppi, Bottom up globalization? Il ricorso a precedenti stranieri da parte delle Corti costituzionali, [The use of foreign case-law by Constitutional Courts], in Quaderni Costituzionali, 1/2011.

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trans-judicialism,10 judicial internationalisation,11 judicial cosmopolitanism,12 judicial globalisation,13 etc. Since 1982, the Supreme Court of Canada has played a leading role in this conversation, first as a recipient and then as an exporter. In fact, when confronted with the demands deriving from the Charter’s enactment, the Court turned to foreign precedents in order to develop a domestic constitutional rights-based jurisprudence. This phase is usually referred to as the formative period.14 There have been allegations of excessive judicial activism during the first years of Charter-based adjudication, notwithstanding the fact that “the involvement of courts with civil liberties and the rights of minorities is […] not a creation of the Charter”.15 More precisely, based on a quantitative analysis of the Supreme Court of Canada’s decisions delivered during the formative period, scholars argued that, after 1982, the Court has abandoned the judicial self-restraint that shaped its pre-Charter civil liberties jurisprudence.16 The Charter influenced the Court’s process of constitutional interpretation by offering the opportunity to enhance the idea of the Constitution as a “living tree”. Furthermore, it prompted a shared approach to constitutional interpretation which is referred to, metaphorically, as a dialogue between the Court and the Parliament17 and which characterises the Canadian weak form of judicial 10 11 12 13

14

15 16 17

A.-M. Slaughter, Human Rights International Law Symposium: A Typology of Transjudicial Communication, in U. Rich. L. Rev, vol. 29, 1994, pp. 99–137. E. Mak, Judicial Decision-Making in a Globalised World. A Comparative Analysis of the Changing Practices of Western Highest Courts, Hart Publishing, Oxford, 2015. E.A. Posner, Boumediene and the Uncertain March of Judicial Cosmopolitanism, in Cato Supreme Court Review, 2008, pp. 23–46. With regard to the concept of globalisation as understood in a legal perspective see P. Glenn, Legal Traditions of the World, Oxford University Press, Oxford, 2007, p. 49 et seq. and S. Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, Indiana Law Journal, vol 74, 1999, p. 819 et seq. See G. Gentili, E. Mask, The Supreme Court of Canada’s Transnational Judicial Communication on Human Rights (1982–2014), in A. Müller, H.E. Kjos (ed.), Judicial Dialogue and Human Rights, Cambridge University Press, 2017, Cambridge, p. 117. The authors consider the formative period as being relevant in order to assess quantitatively and qualitatively the use of foreign precedents by the Supreme Court of Canada. Other authors disagree: see for example B. Roy, Empirical Survey of Foreign Jurisprudence, vol 62, 2004, U.T. Fac. L. Rev., p. 103. See K. Roach, The Supreme Court on Trial. Judicial Activism or Democratic Dialogue, Irwin Law, Toronto, 2001, p. 35. F.L. Morton, P.H. Russell, M.J. Withey, The Supreme Court’s First One Hundred Charter of Rights Decisions: A Statistical Analysis, in Osgoode Hall L.J., vol. 30, no. 1, 1992, pp. 1–56. See P.W. Hogg, A.A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn’t Such A Bad Thing After All), in Osgoode Hall L.J., vol. 35, 1997, p. 75 et seq. and P.W Hogg, A.A. Thornton, W.K. Wright, Charter Dialogue Revisited:

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review.18 Over time, the Supreme Court of Canada has established itself as one of the most progressive courts worldwide and it is usually held up as a model of openness in part because of its use of foreign law.19 In fact, ‘[t]he Supreme Court of Canada is particularly noteworthy for its frequent and fruitful use of comparative law [and] As such, Canadian law serves as a source of inspiration for many countries around the world’.20 It should therefore not be a surprise the fact that the Canadian Supreme Court ultimately turned into being one of the most revered sources of foreign citations by judges of third countries.21 In order to address the development of the role of the Court at a global level from that of recipient to that of deliverer of citations, this chapter will review Canadian constitutional case law starting – with one exception – with an examination of the judgments following the Patriation of the Constitution. 3

The Patriation of the Canadian Constitution

Patriation, as is known, is the name given to the definitive detachment of Canadian institutions from the United Kingdom.22 From our present perspective,

18 19 20 21

22

Or “Much Ado About Metaphors”, in Osgoode Hall Law Journal, vol. 45, no. 1, 2007, pp. 1–65. In Italian, see S. Gerotto, Il dialogo tra Corti e legislativi in Canada: una soluzione ai problemi di non democraticità del judicial review, [Dialogue among Courts and Legislators in Canada: a solution to the problem of democratic deficit of judicial review], in Diritto Pubblico Comparato ed Europeo, 2005, pp. 995–1013; Id., Il dialogo tra giudici e legislatori in Canada a 15 anni da Hogg e Bushell, [The Dialogue Between Judges and Lawmakers in Canada 15 years after Hogg and Bushell], in E. Ceccherini (ed.), A trent’anni dalla Patriation canadese, Riflessioni della dottrina italiana, Genova University Press, Genova, 2013, pp. 64–74. More recently, C. Casonato, M. Tomasi, Constitutional Dialogues in Canada. Corte Suprema e Parlamento sulle questioni di fine vita, [Constitutional Dialogues in Canada. The Supreme Court and Parliament with regard to end of life care], in C. Murgia, Scritti in Onore di Sara Volterra, Giappichelli, Torino, 2017, pp. 208–210. See M. Tushnet, The rise of Weak-form Judicial Review, in T. Ginsburg, R. Dixon (eds.), Comparative Constitutional Law, Edward Elgar, Cheltenham, 2011, p. 322 et seq. L. Neudorf, Taking Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern Approach to Statutory Interpretation, Statute Law Review, at par. 3. A Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, in Harvard Law Review, vol. 116, no. 16, 2002, p. 114. T. Groppi, A User-friendly Court. The Influence of Supreme Court of Canada Decisions Since 1982 on Court Decisions in Other Liberal Democracies, Supreme Court Law Review, 36, 2007, pp. 337–364. More recently, see the part of the volume entitled The Global Impact of Canadian constitutionalism in R. Albert, D.R. Cameron (eds.), Canada in the World: Comparative Perspectives on the Canadian Constitution, cit., p. 264 et seq. See Hogg, Constitutional Law, cit., p. 55 et seq, although see also N. Olivetti Rason, Canada 1982–1992: come non si modifica la Costituzione, [Canada 1982–1992: How hard it is to amend the Constitution], in Quad. cost., 1993, p. 325 et seq and the bibliography cited.

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this detachment raises two types of problem. The first concerns an analysis from a comparative perspective of relations between the two legal systems that does not disregard their shared history, that shared understanding of the law that permeates the common law, along with the search for dialogue, although not necessarily agreement. The second relates to the Supreme Court which, having for some years now sat at the pinnacle of the Canadian judicial order following the changes to the constitutional structure that accompanied Patriation, performs new and important functions. It is important to recall that it was not without some difficulty that the ­Canadian Supreme Court was incorporated into the constitutional fabric of the country and for some time encountered difficulty in establishing itself at  the summit of the judicial system. In fact, the British North America Act (now the Constitution Act) 1867 – which established the Dominion of Canada – had provided that the Judicial Committee of the Privy Council should continue to act as the court of last resort, at least for a certain period of time, as British body with competence to decide, amongst the many questions that fell to it, also on issues relating to Canada.23 It was expected that the Canadian Parliament would enact legislation in due course establishing a General Court of Appeal for Canada, i.e. the Supreme Court, which occurred in 1875. In spite of its name however, until 1949 – after its “long adolescence”24 ended – the Court continued to be subject to the Privy Council, to which its decisions could be appealed.25 It is interesting to note that a British court continued to sit at the pinnacle of the Canadian judicial system – fuelling comparative citations – even though Canada was to all intents and purposes a sovereign state. The problem as to whether or not to let go of the Privy Council was only resolved towards the end of the 1940s (specifically in 1949). It was the Privy Council itself, after being requested to state its opinion on the matter, that concluded that the Parliament of Canada was entitled to vest supreme judicial authority in the Supreme

23

24 25

The Privy Council is a consultative body of the sovereign of the United Kingdom comprised of around one hundred and fifty members and is organised into various committees. Amongst these, until 1949 the Judicial Committee was the judicial body of last resort for Canada, and still has this status for other Commonwealth territories. On the role of this Committee and the legal status of its decisions, see F. De Franchis, Dizionario giuridico inglese-italiano e italiano-inglese, I, Milan 1984, p. 1193. See P.H. Russell, The Judiciary in Canada. The third Branch of Government, Toronto, 1987, p. 335 et seq. The Supreme Court in any case – in the words of Laskin C.J. – had the status of a “Captive Court”. On this see I. Bushnell, The Captive Court. A Study of the Supreme Court of Canada, Montreal 1992.

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Court: thus, also issues relating to Canadian federalism, including in particular those concerning relations between the centre and the periphery, now fell under the competence of Ottawa and no longer of London. The detachment is thus relatively recent and helps to explain why the Canadian courts frequently cite “British precedents”: it may even be stated that, until 1949, they were more familiar with the common law of the United Kingdom than with the law – which was quite different – that had developed within Canada’s own territory.26 However, even during this period, various Canadian judgments drew inspiration from comparative law, availing themselves of judicial experience from the usa. This occurred above all where there were no “European precedents” concerning the problems which the courts were called upon to resolve.27 These summary premises certainly do not fully account for the trend within Canadian institutions – although also within the more informed segments of public opinion – to measure themselves against others, and to seek out analogies and differences through dialogue, a trend which establishes the Canadian system as a preferred object of study for any comparative legal scholar. The explanation for this Canadian specificity must be sought by delving back into history and reflecting on the country’s more recent development. The British Empire left a profound mark, whilst France must also not be forgotten. Leaving aside any personal interest they may have acquired as a result of periods of study abroad, which will be discussed below, Canadian lawyers – and thus naturally the justices on the Supreme Court – have been inclined to embrace the principles and rules followed in the United Kingdom (and to some extent those previously imported from France), and to argue with reference to common law principles, although also more generally the European legal framework. In these cases, perhaps more so than in others, comparative lawyers should rely on the support and contribution of historians in order to identify 26

27

On the “pervasive influence of English decisions” in the Canadian courts and their preference for English case law over Canadian, see S. Volterra, La giurisprudenza statunitense nelle pronunce della Corte suprema federale del Canada, [US Precedents in the Case Law of the Canadian Supremem Court], in Studi Gorla, Milan 1994, p. 483 et seq, especially p. 493 and the references therein to the literature criticising the position adopted by the Canadian courts after 1949 until 1982. See in this regard G.V. La Forest, The Use of American Precedents in Canadian Courts, 46 Maine L. Rev., 1994, p. 211 et seq. The Author offers two examples out of many: in 1849, the Supreme Court of New Brunswick was required to deal with the problem of the transportation of trunks by river. As it was unable to find any precedent within English law dealing with this issue, it referred to US law, specifically the case of Wadsworth v. Smith of the Maine courts from 1834 (11 Me 278 [1834]). In 1984 a similar case arose and, once again, the Canadian court referred to a Maine precedent (13 Me. 198 [1836]).

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and consider in greater detail the aspects that tie the past to the present. It is a complex present, which in turn requires adequate examination, both in terms of the “ethnic mosaic”, which is in itself an expression of tolerance, as well as the “binational” nature of Canada which, notwithstanding a deep-seated respect for the various cultural backgrounds of new immigrants, directs them towards one or the other of the two dominant cultures.28 The Supreme Court of Canada must be credited with having considered this type of problem, especially under the Laskin, Dickson, Lamer, McLachlin and, from December 18th 2017, Wagner courts. Its contribution to the dynamics of other institutions has been decisive when giving effect to the reform, and has been maintained over subsequent years. It is precisely on this period that our attention must therefore be focused. The definitive detachment of the institutions of Canada from those of the United Kingdom was an immediate consequence of the Canada Act 1982, a law enacted by the Westminster Parliament, which was approved at the request of the Canadian Senate and House of Commons. It is interesting to note how the Supreme Court played a particularly decisive role in this matter. It stated the “opinion” that, as a matter of convention, the initiative of the Canadian Federal Parliament needed to be approved by a broad majority of the provinces, although not unanimously.29 Patriation and the parallel reform of the constitutional system introduced by the Constitution Act 1982 occurred in line with this ruling, although left several problems unresolved, including specifically those raised by Québec, which opposed Patriation and is still forced to suffer its consequences. The desirability of references of this type has been much debated within political circles and within the literature, although also by the Supreme Court itself. The issue takes on particular significance if it is noted that “political questions” are very often dealt with precisely through consultation, which would appear to offer scope for – or at least to tolerate more than other ­mechanisms – encroachment on the spheres of competence of the legislature and the e­ xecutive.30 On the other hand, the principle of the division of powers, 28 29

30

See W. Kymlicka, Multicultural Citizenship, Oxford University Press, Oxford, 1995, p. 10 et seq. Re Resolution to Amend the Constitution [1981] 1 s.c.r. The correct name of this ruling is the Patriation Reference. The problem considered in this case as to whether or not the consent of the provinces was required has a long history, on which see W.S. Livingston, Federalism and Constitutional Change, Westport – Connecticut, u.s.a, 1956, especially p. 101 et seq. Other legal systems, including specifically the usa, have preferred not to grant a consultative role to the courts. See M. Gobbo, La funzione consultiva delle corti negli ordinamenti anglosassoni, Bologna 2004, p. 87 et seq.

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as ­embraced under the Canadian constitutional system, and the criteria for selecting and appointing judges31 should require the Supreme Court to exercise a certain degree of restraint. It is interesting to note – as will be considered further below, dedicating specific space to the issue – that in addressing the “political questions” they were confronted with, the Supreme Court justices have often referred to “British precedents”, but above all have examined carefully US case law and the lively debate within the literature resulting from it.32 The reform introduced by the Constitution Act 1982 opened up a new chapter in the history of Canada which, having acted an independent and sovereign state for some time,33 now for the first time took on sole responsibility for its constitutional structure and for future constitutional amendments. However, the past has not been forgotten and the legislative framework has not been overturned. Section 52 of the Constitution Act 1982 sets out the texts, both old and new, comprising the applicable Constitution. It includes both the legislative acts constituting the original expression of British imperial rule, as well as the provisions introduced in 1982 with the aim of bringing the legal system into line with the times. However, before examining the old and new versions it is necessary to consider briefly the key points of the reform. Section 52(1)34 provides that the Constitution is now the supreme law of Canada. Subsection two lists all of the documents with constitutional status that form part of the Constitution of Canada. Finally, it specifies the criteria for the endogenous review of the Constitution. The expression “Constitution of Canada” is not new.35 This time however, it is used in order to stress the Patriation of the supreme law of the land. This implies a refusal of any external interference with or changes to the Canadian system. The comparative specialist will not fail to notice the analogy between the expression “supreme law of Canada” used here and the similar formulation used in Article 6 of the US Constitution.36 Also the specification 31 32 33 34 35 36

See P.H. Russell, The Judiciary, cit. See D.G. Cowper Q.C., L. Sossin, Does Canada need a Political Question Doctrine, in Supreme Court Law Review, vol. 16, 2002, pp. 343–370. G. Bognetti, Federalismo, in Digesto delle discipline pubblicistiche, Torino, 1991, ad vocem. Article 52(1) provides as follows: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. The expression “Constitution of Canada” already appears in the British North America Act (no. 2), 1949, which vests the Canadian Parliament with the power to amend certain provisions of the 1867 Act: on this issue see Livingston, o.c, p. 65 et seq and p. 329. Article 6, Clause 2 of the US Constitution provides as follows: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the

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that any laws inconsistent with the Constitution – where declared to be such – are to have “no force or effect” mirrors, although without reiterating the provision, the concept expressed in the US Constitution. In Canada, as previously in the United States, the problem of incompatibility with the Constitution does not arise only in relation to legislation, but also any other normative act of the legislature or the executive, which is subordinate to the Constitution within the system of sources of law. Although the Canadian Constitution does not contain any reference to constitutional review by the courts,37 it appeared natural – according to the authoritative arguments previously made by the US Supreme Court – that this highly delicate function was a matter precisely for the judiciary and, according to the principle of stare decisis, should (if appropriate) be resolved by a judgment of the Supreme Court. A paradigmatic example of the old texts incorporated into the Constitution is the British North America Act 1867, the Westminster Act which, within the context of Empire Law, established the Dominion of Canada. In fact, the ­content of this Act, now referred to as the Constitution Act 1867 under the current Constitution, has remained substantially unchanged. However, it must be ­considered – in the light of the relevant debate involving this issue within the literature and the case law38 – whether the text in question can be interpreted with reference exclusively to the original meaning and the criteria adopted by those who enacted it. If one considers the preamble to the 1867 Act, which refers to the desire of the provinces to federate within a Dominion or where it proposes, for that Dominion, “a Constitution similar in Principle to that of the United Kingdom”, it is necessary to proceed with caution. Further caution is called for by the numerous provisions of this old law, which is cited in the current Constitution under its new name. For example, Section 92(24) vests the Federal Parliament with jurisdiction over any matter concerning “Indians, and lands reserved for the Indians”. One might say that, in using the same expression in the new text as was adopted in the previous legislation, the authors of

37

38

supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding”. As far as the Charter is concerned, this control function appears to be apparent from Section 24(1), which provides that: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. On this issue, see S. Volterra, o.c., p. 486. See L.E. Weinrib, Constitutional Conceptions and Constitutional Comparativism, in V.C. Jackson, M. Tushnet, Defining the Field of Comparative Constitutional Law, Westport u.s.a. 2002, p. 3 et seq, especially p. 22 et seq. G. de Vergottini, Diritto costituzionale italiano e comparato, [Italian and Comparative Constitutional Law], Cedam, Padova, 2014, pp. 1–77.

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the 1982 reform sought to stress legal continuity, against a backdrop of rules inspired by the common law. In effect, the recovery of the past and its juxtaposition with the present imply a balancing operation between constitutional rules and values expressed at different points in time. In requiring today’s interpreting bodies to “read” the old texts in line with the intentions of the original authors, there is a risk of ignoring not only the developments resulting from the passage of time, but also those brought about due to a change in circumstances. The need for an “evolutionary” interpretation appears to apply, inter alia, to the issues mentioned above: first and foremost, it would appear that the desire to federate expressed by the Canadian provinces prior to the establishment of the Dominion – and the line of thought by which that desire was inspired – should now be interpreted (or reinterpreted) in the light of the process of federalisation to which Canada has been subject in recent decades. Secondly, within present day Canada, it would probably be difficult to reassert the programme of bringing the constitutional framework of the Dominion close to that of the United Kingdom. However, there remains an underlying desire in Canada at least to use British institutions as a frame of reference, if not as an example. As regards the provision applicable to Indians, this today appears to be of broader significance in line with the new recognition of the rights of the indigenous peoples of Canada: also within this area the interpretation provided within the case law has developed around a diachronic comparison.39 The innovations introduced by the Constitution Act 1982 are summarised essentially in: the Charter of Rights and Freedoms laid down in Sections 1 to 34; the provisions of Section 35 on the rights of the aboriginal peoples; in the overall rules governing constitutional amendments, laid down in Sections 38 to 49; and naturally in Section 52, which defines the nature and content of the Canadian Constitution. This issue will be discussed in greater depth below. It must however be added that, once this reform had been completed, the problem of constitutional maintenance arose also in Canada (as it had previously arisen elsewhere), which was to be implemented through the review and “evolutionary” interpretation of its text. 4

Use of Foreign Precedents after the Patriation

The choice in favour of and the pleasure in following the comparative approach, which is present in many of the cases decided on by the Supreme Court of Canada, is very well suited to the dynamics of the Canadian system. 39 See R v. Powley [2003] 2 s.c.r.

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The choice is an inherent result of the specific process by which the current judicial system was established, including its French and British native roots, the latter having more widespread and solid foundations which, as will be seen below, are also deeper. The pleasure of engaging with the “other”, of assessing its specificities and finally in comparing with it is born out of and has matured throughout the various communities present in the country which – leaving aside the aboriginal communities, which were only effectively brought to the fore in 1982 – has manifested itself above all through the close contact and necessary cohabitation between legal rules originating from different European countries, attributable on the one hand to the common law and on the other hand to the civil law tradition of continental Europe, including in particular France. A propensity towards comparison has developed in the area of multiculturalism, manifesting itself in particular through the rulings adopted by judges that have come into closest contact within their studies with the teachings and experiences of other countries.40 The citation and discussion of foreign literature and case law is not only frequent but even commonplace. Foreign decisions may be drawn upon both where their reasoning appears to be convincing – and thus of assistance for the decision – and also with regard to their arguments, which may be incorporated into the decision. The Supreme Court has engaged in particular both in diachronic analysis, looking to the past of its own legal system, and in synchronic comparison, measuring its own rulings against those of the courts of other countries, including in particular its neighbours. Finally, one must not overlook the presence within the Canadian system of rules of differing origin.

40

The justices appointed to the Court have often been chosen from scholars with a prestigious academic background either in Canada or abroad, including numerous publications within the literature. It is sufficient to recall, as two of many examples, that Justices Laskin and Estey studied at Harvard Law School. Forest had completed her studies in Europe and the United States (Oxford and Yale), Bastarache in Nice and Binnie and Iacobucci in Cambridge. Many lawyers have also been awarded honorary academic titles by Canadian and foreign universities. These include, amongst others, Justice Iacobucci and the former Chief Justice McLachlin. An interesting overview of the citations of foreign legal journals by the Justices on the Court is offered by P. McCornick in The Judges and the Journals: Citation of Periodical Literature by the Supreme Court of Canada, 1985–2004 in 83 Canadian B. Rev., 2004, p. 633 et seq, which presents a variety of interesting data. Foreign citations refer largely to US and British journals, although two Austrian Journals, one French and one EU publication are also cited. Justices Gonthier, L’Heureux-Dubé, Cory and Iacobucci are indicated as the judges who cited these publications most frequently between 1985 and 2004. However, the author adds that the most frequently cited journal remains the Canadian Bar Review.

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In this case the instruments for endogenous evaluation must be used with particular prudence and, one might say, with the eye of the comparative specialist. However, the problem of judicial comparison took on a renewed significance and importance following the constitutional reform of 1982. It is important not to lose sight of the fact that in most of its rulings, the Supreme Court still acts as a court of last resort within ordinary proceedings. Within this context, citations of foreign case law are usually limited only to British precedents even though, as has been noted, the solutions adopted within the case law of the United States may be of some interest. Within a system such as the Canadian system, relations between the central state, the provinces and the territories may give rise to problems, as is most apparent within the difficult “cohabitation” between Québec and the rest of Canada. The role of arbitrator, which had been performed for many years by the Privy Council and is now left to the Supreme Court, is one of the most important and delicate. As noted above, this type of judicial review is in addition to that provided for under Section 52 of the Constitution Act 1982: within this context it is the Charter of Rights that performs the primary role. However, the rulings that have exerted the greatest impact on the constitutional structure of Canada, and which have made most use of comparison, include the References, in which not infrequently the Court’s reasoning is presented as a contribution to the literature on a broad scale, reaching beyond the narrow confines of an “opinion”. The Charter of Rights and Freedoms, as a key element of the reform, has within the new context turned into an indispensable reference for all courts in Canada, although in particular for the Supreme Court. In effect, as the former Chief Justice McLachlin has stated, the court fully endorses that Charter,41 the principles laid down in which bear more than a passing resemblance to those used as a framework for reference in the usa. Also from this perspective the US experience has given rise to an exchange of ideas between the two countries. Not only have the justices on the Supreme Court of Canada looked beyond the national borders, but also their colleagues in Washington – who have traditionally been averse to drawing on foreign models – appear to be considering the idea of reciprocating that attention.42 However naturally, with 41

42

When celebrating the twentieth anniversary of Patriation, former Chief Justice of the Supreme Court Beverly McLachlin stressed that: “La Charte: c’est à nous. La Charte c’est nous”. See Remarks of the Right Honourable Beverly McLachlin, P.C., Canadian Rights and Freedoms: 20 years Under the Charter, April 17th, 2002, available on the website http://www.scc-csc.ca/judges-juges/spe-dis/bm-2002-04-17-eng.aspx. In his foreword to the volume Defining the Field of Comparative Constitutional Law, edited by V.C. Jackson and M. Tushnet, Westport – Connecticut 2002, also former Chief

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the adoption of the Charter of Rights, it has been above all Canada that has had to learn from its neighbour. Assertions to this effect may be found, with varying emphases,43 in several judgments adopted in the immediate aftermath of the reform. Thus, in Law Society of Upper Canada v. Skapinker from 1984,44 the Court recalled – in the judgment written by Justice Estay – the pillars of judicial review in the usa – the famous judgments in Marbury v. Madison and McCulloch v. Maryland adopted at the start of the 19th Century – stressing how, when reflecting on how to carry out their functions, the Canadian courts cannot fail to consider the almost two hundred year history of US constitutional review. One year later, in its opinion Re B. C. Motor Vehicle Act, Justice Lamer – the future Chief Justice of the Supreme Court – compared the legislation ­governing judicial review in Canada and the United States. In effect, anyone familiar with the US Constitution is well aware that “That Constitution […] has no s. 52 nor has it the internal checks and balances of ss. 1 and 33.”45 In his opinion, the conceptual and structural differences between the two legal systems must be taken into account when comparing them. According to Justice La Forest in the opinion given in R. v. Rahey in 1987,46 whilst Canadian law must be constructed on documents inherited from the past – from those indicted by the authority Coke47 to those comprising the previous decisions of the US courts – the guidelines expressed by the United Kingdom or the United States must be considered “as a tool, not as a master”. It is finally necessary to mention a finding made in Dickson C.J. in R. v. Simmons: Canadian constitutional rules must be assessed in full autonomy, without however losing sight of the wealth of US precedents.48

Justice Rehnquist of the US Supreme Court acknowledged the merits of comparison: “[…] now that constitutional law is solidly grounded in so many countries […] it is time the U.S. Courts began looking to decisions of other Constitutional Courts, to aid in their own deliberative process”, and the programme for exchanging ideas that he views most favourably is that between the Supreme Courts of Canada and the US. 43 See C.P. Manfredi, The Use of Unites States Decisions by the Supreme Court of Canada Under the Charter of Rights and Freedoms, in 3 Canadian J. Pol. Science, 23, 1990, pp. 499–518, especially pp. 499 and 501. 44 See Law Society of Upper Canada v. Skapinker [1984] 1 s.c.r., para. 12. 45 See Re b.c. Motor Vehicle Act [1985] 2 s.c.r., para. 18. 46 R. v. Rahey [1987] 1 s.c.r., respectively paras. 118 and 108. 47 In his Reports, published in 1777, Coke reminds us that “the common lawes of the realme should by no meanes be delayed, for the law is the surest sanctuary, that a man can take, and the strongest fortresse to protect the weakest of all […]”. 48 R v. Simmons [1988] 2 s.c.r., para. 26.

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The Problem of Federalism

Federalism or – according to the expression that some appear to prefer as it is less rooted in the past – the “federal phenomenon” is perhaps the defining characteristic of the Canadian constitutional system. The wealth of analysis within the literature, the diverse nature of the problems dealt with, and the particular comparative attention when assessing the centrifugal and centripetal tendencies of the country’s politically organised communities are all elements that lead us to consider the Canadian model and experience as “le fédéralisme dans tous ses états”.49 The federal phenomenon permeates the entire constitutional structure laid down by Section 52 of the Constitution Act 1982. We shall consider here the ramifications within the case law of the Supreme Court. The judgments ­concerning the division of powers between the Federation and the provinces concern the issue of federalism. The Court took (at least initially) the ­Constitution Act 1867 as a reference framework, construing its provisions in the light of the political, economic and social evolution of the country. Within this context, the Court has adopted a comparative perspective when pausing to reflect on the changes that have occurred over time throughout the country, or indeed in other parts of the globe. However, it does not go without saying that the Court’s decisions will necessarily contain any trace of this approach. Two examples of this type may be found in the Labatt50 and Zellerbach cases.51 It is also considered that questions concerning the division of powers between the legislature, the executive and the judiciary – insofar as they impinge upon interaction between the centre and the periphery – are related to the federal phenomenon. Alongside the traditional deference towards the legislator (whether central or local), which has recently been corrected by judicial activism and the search for dialogue between the two branches of state, it is also important to note instances of executive federalism, such as for example the (ineffective) Meech Lake and Charlottetown Accords setting out a package of proposed amendments. Also the entry into force of the Charter of Rights has impinged upon the federalist settlement as its principles must be followed both by the Federal Parliament and by the provincial legislatures. The broad recourse to constitutional review which has followed in the wake of the 49 50 51

see E.G. Gaudreault-Des Biens, F. Gelinas, Prolégomènes à une étude renouvelée du fédéralisme, in F.G. Gaudrjeault-Des Biens, F. Gelinas (ed) Le fédéralisme dans tous ses états/ The States and Moods of Federalism, Cowansville – Québec, Canada 2005, pp. 3–50. Labatt Breweries of Canada Ltd. v. Attorney General of Canada [1980] 1 s.c.t. R. v. Crown Zellerbach Canada Ltd. [1988] 1 s.c.r.

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entry into force of the Charter has been modelled on – or some might say has “emulated”52 – the criteria adopted by the United States in the judgment in Marbury v. Madison,53 the importance of which within the process of federalising the usa can certainly not be overlooked. However, also a declaration that a law of one particular province is unconstitutional represents a precedent which the other provinces must also take into account. An example of this may be found in the Andrews case.54 Also the typically Canadian “notwithstanding” formula55 (which will be examined below) touches upon the logic of federalism. It stipulates specifically that a federal or provincial provision that is inconsistent with any provisions of the Charter of Rights may continue to apply for a certain period of time in order to enable the various requirements in play to be reconciled.56 Finally, the federal phenomenon has been considered by the Court in relation to the issue of secession. To start with, a brief reference may be made to the 1980 judgment in Labatt Breweries of Canada Ltd. v. Attorney General of Canada. The case aroused a certain interest within the literature. This was the first time since 1949 that the Court ruled provisions of a federal act unconstitutional. It did so according to a majority opinion, the arguments of which have been called into question, and which was also rejected in the dissenting opinion of Chief Justice Laskin. It is interesting to note that problems similar to those discussed in Labatt had already been examined almost a century before by the Privy Council. In fact, already on that occasion, the reference legislation – laid down in Section 91(2) of the British North America Act 1867 – had given cause for interpretative doubts concerning the expansion of the Trade and Commerce Power of the federal authorities. A comparison between the two judgments opens up scope 52 53 54 55

56

See M. Tushnet, Marbury v. Madison around the World, in 71 Tennessee L. Rev, 2004, p. 274. Marbury v. Madison 5 US 137 [1803]. Andrews v. Law Society of British Columbia [1989] 1 s.c.r. The notwithstanding clause is laid down by Section 33(1) of the Constitution Act 1982, which provides that: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in Section 2 or Sections 7 to 15 of this Charter”. Contextualising this provision within a wide discussion dedicated to constitutional review, Mark Tushnet, (in o.c., p. 265) stresses the difficulties in applying this formula, but also the benefits that may result. In fact, “The process, operating at its best, brings issues of fundamental rights to the attention of a legislature that might have overlooked them, offers a judicial assessment of the competing values implicated by the statute, and gives the legislature a chance to consider whether it agrees with the court’s assessment. Constitutionalism is respected because of the focused attention paid to fundamental rights (and because the court’s assessment might prevail), and self-governance is respected because the majority’s considered judgment can become legally effective.”.

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for further discussion concerning problems of this nature. An opportunity is provided by R. v. Crown Zellerbach Canada Ltd. from 1988. The Court held by a majority opinion (written by Justice Le Dam) that the question raised concerning the constitutionality of a federal act due to its alleged violation of the division of powers between the central state and the provinces as laid down in the 1867 Act should be rejected since, insofar as it was intended to combat pollution – albeit within provincial waters – the federal provision pursued general national and international interests, which were widely substantiated by the conventions to which Canada had signed up and to which the Court referred. The comparative activity within the case law of the Court invites us to consider the “weight” that is to be attributed to particular values within different systems, on the assumption that the provisions establishing protection for those values are not ascribed the same (or corresponding) significance in the hierarchy of sources within the systems under comparison. A problem arises also when it is necessary to weigh up – and potentially balance against each other – constitutional values from the same system. The 1985 judgment in R. v. Big M Drag Mart Ltd57 focused mainly on the interpretation of the constitutional principles of freedom of conscience and religion in Canada whilst also examining the way in which similar freedoms are construed within US case law. However, it must be stressed that this judgment – which is decisive in the interpretation and application of Section 2(a) of the Charter58 – may be of relevance, albeit in marginal terms (as held by Wilson J. in his concurring opinion) also in relation to federalism insofar as it requires the interpretation of the principles (and values) set forth in the Constitution Act 1867, which are still applicable, to be updated in line with the constitutional changes introduced by the reform. Evidence of this may be found in Section 4 of the Lord’s Day Act 1970 which,59 whilst being compatible with the requirements set forth in

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R. v. Big M Drug Mart Ltd. [1985] 1 S.CR. According to that Section: “Everyone has the following fundamental freedoms / a) Freedom of conscience and religion”. As explained in the judgment, Section 4 of the Lord’s Day Act lays down the principal prohibitions on work or commercial activity on the “Lord’s day”. The text of the Act states as follows: “It is not lawful for any person on the Lord’s Day, except as provided herein, or in any provincial Act or law in force on or after the 1st day of March 1907, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any work, business, or labour”.

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Section 91(27) of the Constitution Act 1867,60 was ruled unconstitutional on the grounds of the Charter provision mentioned above.61 The federal discourse thus asserts itself through in a myriad of manifestations and may be conducted either overall, in general terms that illustrate its dynamics, or alternatively – as was preferred on this occasion – considering separately various aspects of the constitutional system for which it is relevant. The issue could have been resolved when, rather than embracing unity through diversity, the Court addressed the issue of the secession of Québec from the rest of Canada. By a Reference62 characterised by its particularly 60

61

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Section 91 of the Constitution Act 1867 provides that: “It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces […] that is to say […] 27. The Criminal Law, except the Constitution of Courts”. The procedure which the Court was required to follow in order to rule the legislation unconstitutional was long-winded and complex, involving a comparison between Canadian legislation and the much older law in the usa. An entire section is dedicated to the usa, comprised of paragraphs 73, 74, 75, 76 and 77, in which it is concluded that: “In the United States, the religious purpose of Sunday legislation is denied as sternly as it is insisted upon in Canada. The legislation is declared to be today entirely secular in purpose, providing the citizenry with a uniform day of rest and recreation. If the United States Supreme Court had found a continuing religious purpose behind the Sunday legislation, the no-establishment principle would have commanded invalidation”. The broad references to the case law cited by Dickson are perhaps excessive (on this, see S. Volterra, o.c., p. 505). However, in juxtaposing the US decisions with the line of thought which, adopting a different focus, is developed in his arguments, Dickson states in paragraph 94 that: “I say this without any reliance upon s. 15 of the Charter”. Essentially (para. 48): “There are obviously two possible ways to characterize the purpose of Lord’s Day legislation, the one religious, namely securing public observance of the Christian institution of the Sabbath and the other secular, namely providing a uniform day of rest from labour. It is undoubtedly true that both elements may be present in any given enactment, indeed it is almost inevitable that they will be, considering that such laws combine a prohibition of ordinary employment for one day out of seven with a specification that this day of rest shall be the Christian Sabbath-Sunday”. Moreover, as specified in para. 134 – before finding the legislation unconstitutional – “[…] as I read the Charter, it mandates that the legislative preservation of a Sunday day of rest should be secular, the diversity of belief and non-belief, the diverse socio-cultural backgrounds of Canadians make it constitutionally incompetent for the federal Parliament to provide legislative preference for any one religion at the expense of those of another religious persuasion”. Reference re Secession of Quebec [1998] 2 s.c.r. Amongst the first Canadian articles concerning the ruling, see those published in the special volume of Canada Watch from 1997 and, subsequently, S. Choudhry and R. Howse, Constitutional Theory and the Québec Secession reference, in 13 Canadian J.L & Juris, 2000, p. 143 et seq. The problems considered in the judgment were considered in France by J. Woherling, L’avis de la Cour supreme da Canada sur l’eventuelle sécession du Québec-, in Rev. française dr. const., 1989 p. 3 et seq.

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broad sweeping perspective, which has been much appreciated both in Canada and abroad as a detailed study of the facts and equilibrium of the solutions proposed, the Court explored the terms and limits of a potential secession of the French-speaking province. The debate within the literature concerning the Reference and its consequences is still ongoing and may develop further. From the comparative law perspective, it must be pointed out that – whilst being fully aware of the specific features of the Canadian constitutional system and the principles by which it is inspired63 – the Court was also particularly sensitive to the international and foreign legal panorama. It is sufficient to consider the case law, the legislation and the literature cited in order to appreciate the depth of the work that lay behind the adoption of this “opinion”. The detailed references to foreign procedural problems, constitutional review within European democracies, Canadian federalism before and after independence and, more generally, the issue of the self-determination of peoples within the contemporary world64 along with the successive constitutional changes that had granted legitimacy to the secessionist initiatives,65 confirm the importance of comparative law within this judgment. More in general, recent studies have shown that when distinguishing cases related to federalism “a clear pattern emerged: English or domestic cases are

63

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Amongst the Italian literature, see T. Groppi, Concezioni della democrazia e della costituzione della Corte suprema del Canada sulla secessione del Québec, in Giur. Cost., 1998, p. 3057 et seq and N. Olivetti Rason, Brevi note a margine di una recente pronuncia della Corte suprema canadese, in Scritti Casetta, i, Naples 2001, p. 251 et seq. “The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those principles must inform our overall appreciation of the constitutional rights and obligations that would come into play in the event that a clear majority of Quebecers votes on a clear question in favour of secession”. See paras. 9, 14, 43–48, 112–139. In para. 150 of the ruling it is stated that: “The Constitution is not a straitjacket. Even a brief review of our constitutional history demonstrates periods of momentous and ­dramatic change. Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order. While it is true that some attempts at constitutional amendment in recent years have faltered, a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize”.

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cited predominantly […] while US, Australian, New Zealand and ECtHR precedents are cited for human rights cases”.66 6

The Charter of Rights and Freedoms and the Limits on Its Application

The Charter of Fundamental Rights and Freedoms, which as mentioned above was the key element of the 1982 reform, elevated a range of personal guarantees to constitutional status. The adoption of the Charter and the identification of the constraints that it imposes on the exercise of state powers resulted from a careful examination of the experiences both of other countries and of international bodies in the area of rights and freedoms. The definitive text, which was assessed with reference to strictly Canadian approaches and experiences, was rejected only by the province of Québec, which however could not refuse to accept its provisions as an integral part of the supreme law of the land and from submitting to the resulting consequences. For the Supreme Court, the overall package of principles set forth in the Charter, along with each specific guarantee contemplated in that document, soon turned into a privileged frame of reference. It may be stated that the activism displayed by the Supreme Court in the area of constitutional review after Patriation manifests and expresses itself above all in relation to Charter rights. The following paragraphs will present several examples of judgments on the protection of fundamental rights in which the Supreme Court considered it appropriate to refer to foreign judicial precedents, largely from the usa. However, as a preliminary matter, it is important to consider briefly the limits which the Charter imposes on the exercise of such rights, in the light of two fundamental judgments in which the Canadian Supreme Court, and in particular some of its members, with great expertise applied the instruments of legal comparison. Our considerations may start with an examination of Section 1 of the Charter, which provides that: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. According to that provision, a law that limits a right guaranteed under the Charter may be considered to be constitutional where its content is “reasonable” and may be justified in a free and democratic society. The criteria to be adopted when interpreting Section 1 were set out by Dickson C.J. in a 66

G. Gentili, Ehancing Constitutional Self-Understanding through Comparative Law, cit., pp. 394–395.

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judgment that has left its mark and still has the status of a leading precedent for any scholar engaging with the issue of Section 1 limits. In the specific case – R. v. Oakes from 198667 – it was necessary to establish whether, within the ­context of the legislation enacted to combat drug dealing, Section 8 of the Narcotic Control Act, which was argued to violate the presumption of innocence enshrined in Section 11(d)68 of the Charter of Rights, could be justified under Section 1 and was therefore constitutional. The Court’s reasoning, which resulted in a ruling that the provision was unconstitutional – and thus to be regarded as having no force and effect – involved on the one hand an examination of several judgments of the US Supreme Court in which it was established that the American context, as far as the problem at issue here was concerned, was very different from the Canadian one. Dickson clearly stated as such in paragraph 50 of the judgment: “In the United States, protection of the presumption of innocence is not explicit”. On the other hand, the Court examined the European approach, which by contrast proved to be very close to that followed in Canada. Finally, it addressed the concept of a “free and democratic society”, a model of society endorsed by Canadians.69 Overall, the opinion of Dickson C.J. offers a brilliant and refined contribution also from a comparative perspective in explaining whether and how a fundamental right endorsed by the legal system may legitimately be considered to be limited. The Charter of Rights and Freedoms also lays down another self-limitation. Section 33 contemplates the scenario in which federal or provincial laws that are inconsistent with certain provisions of the Charter may continue to apply temporarily, provided that the requirements to which the derogation is intended to apply are implicitly recognised as being predominant – the fact that the laws “shall operate notwithstanding” naturally places them in a subordinate provision within the system of sources of law – and that the derogation is temporary. The reasons for this limit have been the object of a heated debate within the literature: Section 33 has been argued to constitute a kind of limit

67 68 69

R. v. Oakes [1986] 1 s.c.r. Section 11(d) provides that: “Any person charged with an offence has the right […] to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. In para. 64 of the judgment Dickson stresses that “The Court must be guided by the values and principles essential to a free and democratic society which I believe embody to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.”.

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on the judiciary since, where it avails itself of the notwithstanding clause, an act may remove itself from the scope of constitutional review. In 1988, having been called upon in Ford v. Québec70 to rule on the constitutionality of an act adopted by the French-speaking province which required the exclusive usage of French in advertising and commercial signs, the Court held that it was not constitutional in this regard on the grounds that the provisions in question violated the Charter in a manner that did not pass muster either under Section 1 or, considering the manner in which the act was drafted, under Section 33. The reasons contain broad references to European and US precedents, which were drawn upon in order to reinforce the Court’s finding.71 However, the matter was not resolved as the Court might have hoped. Adopting a more judicious usage of the notwithstanding clause, the French-speaking province was able to suspend the effects of the judgment temporarily. Following the expiry of the time limit, the problem of advertising signs was resolved by a compromise. More recently, in the 2007 landmark decision Charkaoui v. Canada,72 former Chief Justice McLachlin, writing for a unanimous court, held that the security certificate procedure as provided for by the Immigration and Refugee Protection Act with regard to detained suspect terrorists, was unreasonable. On the Section 1 analysis for justification of such limitation, the Court held that terrorism and related tensions are not “unique to Canada: in the specific context of anti-terrorism legislation, the United Kingdom uses special counsel to provide a measure of protection to the detained person’s interests, while preserving the confidentiality of information that must be kept secret”.73 The rise of global threats and the simultaneous consolidation of human rights standards at an international level have ultimately enriched the most recent Section 1 analysis. On a more general level, it should be noted that Section 1 implicitly requires the recourse to foreign experiences; in fact, in order to determine what limitations to individual rights can be justified in a free and democratic society, it is necessary to define the latter.74 What is democratic ought to be identified by means of comparison, pinpointing differences and commonalities with other 70 71 72 73 74

Ford v. Quebec (Attorney General) [1988] 2 s.c.r. See paras. 44 and 47 of the judgment. Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 s.c.r. 350. Charkaoui v. Canada, par. 69. See for example R. v. Jordan, [2016] 1 scr 631, when the Court addressed the right to be tried within a reasonable time and pointed out that “Timely justice is one of the hallmarks of a free and democratic society” after referring to a significant number of jurisdictions (United States, New Zealand, Australia, India, South Africa, the Caribbean, the United Kingdom, Ireland, and in the European Union)”, p. 142.

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countries. To a certain extent, Section 1 could be read as the equivalent of constitutional clauses explicitly authorizing foreign citations, as for example it is the case of the South African and Malawi Constitutions.75 In conclusion, the use of foreign citations by the Canadian Supreme Court is not only aimed at defining the substance of rights, but also at determining the reasonableness of limitations imposed by the legislators. 7

The Constitutional Principle of Equality

The various sections of the Charter of Rights enshrining the principle of equality as having the status (and value) of the supreme law of the land along with the leading judgments in which, on the basis of the Charter of Rights, the Supreme Court has reviewed the provisions of federal and provincial law draw upon, evoke and refer to comparative law, albeit from different perspectives. Any reference to equality in fact invites “transnational” engagement and dialogue in the search for the foundational values of freedom and democracy, which are shared by various Western legal systems.76 The Charter of Rights sets out the concept of equality in Section 15, using four formulae, which constitute a decisive innovation compared to the past.77 Whilst Section 15 contains certain particular aspects such as the prohibition on discrimination, it must also be noted that, overall, the Section does not fully resolve the problem of formal and substantive equality. However, constitutional discourse reaches beyond Section 15. Equality is in fact specifically considered with reference to the two official languages: education in the minority language in any given part of the country is guaranteed as a way of preserving the identity and culture of its

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C. Saunders, Judicial engagement in Comparative Law 2012, 3, 574; B-O Bryde, The Constitutional Judge and the International Constitutionalism Dialogue, in B. Markesinis, J. Fedtke(eds.), Judicial recourse to foreign law, Routledge, New York, 2006, 306; G. Gentili, Enhancing Constitutional Self-Understanding through Comparative Law, cit., p. 403. See L’Heureux-Dubé, Realising Equality in the Twentieth Century: the Role of the Supreme Court of Canada in Comparative Perspective in I. con, i, 2003 p. 35 et seq. “Section 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. / (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

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speakers.78 The Charter also seeks to protect Canadian cultural heritage79 and reiterates equality between men and women.80 Thus, the Charter of Rights and Freedoms has broadened the perspective from which to examine and assess the principle of equality: it has pushed back the boundaries, radically changing the previous legislation, but also acting as an example for other state systems. The difficulties associated with the incorporation of new rules on equality were known to those who promoted it: the Charter itself provides that Section 15, where the principle is set out, is to enter into force three years after the rest of the Charter in order to give each province time to coordinate its own rules with those destined to constitute the supreme law of the land. Moreover, it should be noted that Section 15 of the Canadian Charter entrenches a non-exhaustive list of grounds. In fact, it specifies that every individual has the right to the equal protection and equal benefit of the law in particular “without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Race in the Canadian context includes of course Aboriginal people and, notwithstanding the fact that this list excludes sexual orientation, the inclusion of the words ‘in particular’ has allowed the Canadian Court to expand this list in order to include un-enumerated grounds. Indeed, more than 20 years and dozens of cases later, the Supreme Court has extended the anti-discrimination clause to three other categories: citizenship, marital status and sexual orientation. This extensive interpretation often relied also on reference to foreign statutes and judgments. We shall now briefly consider several judgments in the area of equality which, being emblematic in terms of judicial comparison, are also characterised by the fact that they diverge dramatically from US rulings in terms of the conclusions arrived at. Andrews v. Law Society of b.c. of 1989 falls into this class for at least three reasons. It paves the way for the usage of analogies within proceedings relating to Section 15: reasoning on the basis of analogous 78

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Section 16 in fact provides that: “(1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada./(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick./(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.”. Section 23 adds a series of rules relating to teaching. Section 27 provides that: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” Section 28 clarifies: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

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grounds would subsequently be broadly followed within the case law of the Court. It analyses foreign case law and explained why it intends to depart from it. It represents an important precedent regarding the protection of the unitary values of the legal order as the declaration that provincial legislation is unconstitutional also has effects on analogous provisions in other provinces. The appellant wished to practise the legal profession in British Columbia although his application was rejected as it failed to satisfy one of the prerequisites, that of citizenship, and he therefore sought to apply Section 15, arguing that he had been unfairly discriminated against. Whilst the bench of judges, which on this occasion was comprised of six rather than nine justices, did hold that the scenario invoked, albeit not falling under those listed in Section 15, could be brought under that provision on analogous grounds, it encountered greater difficulty in overcoming the objections of those who wished to justify the restriction on the basis of Section 1 of the Charter. Arguing in favour of this approach, Justice Mclntyre stressed that the 14th Amendment of the US Constitution “contains no limiting provisions similar to s. 1 of the Charter”. Moreover, citing Justice Frankfurter from the judgment Tennis v. United States, he recalled that there is no greater in equality “than the equal treatment of inequals”. The Justice also referred to other US judgments81 along with the literature published in US journals. Justice Wilson along with Dickson C.J. and L’Heureux-Dubé J. – rejecting the part of Justice Mclntyre’s opinion relating to Section 1 – considered the foreign literature82 in order to analyse the relationship between citizens and non-citizens. Once again, the US case law was cited. It is interesting to note that comparative approaches have been stimulated by the Canadian case law: the Andrews case has been carefully considered by the Constitutional Court of South Africa. The Court – as mentioned above – adopted the analogous grounds approach in Andrews. However, as is apparent from the subsequent case law, there has not been any convergence of opinion within it as to how to proceed along that route. In Myron v. Trudel, adopting the “reading in” technique, the Court held that a heterosexual couple living more uxorio should have the same insurance benefits as those granted to married couples. In Thibeaudeau v. Canada the Court rejected – by a majority ruling – a request to rule unconstitutional a provision of tax legislation which, in the view of the appellant, violated his dignity. The difficulty encountered by the Supreme Court in adopting an unequivocal stance is apparent within this area, also because comparative law 81 82

United States v. Carolene Products Co., 304 U.S. 144 (1938); Graham v. Richardson, 403 U.S. 365 (1971). Both British (J.S. Mill) and American (G.H. Ely).

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does not provide adequate suggestions in this regard. However, new canons of interpretation for Section 15 emerged in the Court’s reasoning in Law v. Canada from 1999. The Court held, dismissing the appeal, that the law may provide for distinctions, provided however that it does not cause any discrimination or violate human dignity. An important contribution to the interpretation of Section 15 was provided in 1998 by Vriend v. Alberta.83 The Court considered a provincial act covering discrimination on the grounds of age, sex, race and religion, but not sexual orientation. Such an omission, which was unconstitutional pursuant to Section 15 as it did not guarantee equal benefit from the law to all, may however be corrected by interpreting bodies once again according to the “reading in” technique. It is interesting to note that, again on this occasion, the Court carried out a highly detailed comparative law study, drawing in particular on the most pertinent US literature. Since then however, the tendency to engage in comparison has waned. The Court’s current view is that its own precedents provide the comparative law aspects that may be useful for its decisions. In the Same Sex Marriage Reference of 2004,84 which sparked lively interest even beyond Canada, or in Auton v. British Columbia again from 200485 in which the problem raised concerned the refusal by the province to finance particular therapies for pre-school autistic children, attention was directed at Canadian precedents and the balancing of the countervailing requirements of society and individuals. Having said this, resort to foreign jurisprudence is still common when the Court has to interpret controversial legal issues ancillary to non-discrimination based on gender. For example, in Canada (Attorney General) v. Hislop,86 a leading decision on equality rights under Section 15 of the Canadian Charter of Rights and Freedoms and the retroactivity of Charter remedies, the Court struck down provisions in the Canada Pension Plan (cpp) on grounds that it discriminated against same-sex couples. More specifically, under Section 44(1.1) of the cpp, eligibility was limited to same-sex partners whose “spouse” died on or after January 1, 1998. However, according to the majority of the Court, reliance on the existence of a substantial change of law is not an appropriate consideration in the context of Charter rights. In fact, “the question is no longer the legitimacy of prospective remedies, but rather when, why and how judges may rule prospectively or restrict the retroactive effect of their decisions in constitutional matters”.87 In other words, the court is 83 84 85 86 87

Vriend v. Alberta [1998] 1 s.c.r. Reference re Same-Sex Marriage [2004] 3 s.c.r. Auton (Guardian ad litem of ) v. British Columbia (Attorney General) [2004] 3 s.c.r. Canada (Attorney General) v. Hislop, [2007] 1 scr 429, 2007 scc 10. Canada (Attorney General) v. Hislop, par. 96.

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asking: what kind of change will be enough in judge-made law in a common law system in order to answer? The court resorts to ussc notion of a “clear break with the past”: “The limitation on proactive remedies could be considered after litigants had established such a change (see United States v. Johnson, 457 U.S. 537 (1982), at p. 549)”.88 Furthermore, when considering statutory discrimination of de facto spouses regarding the definition of spousal support, the Court resorted again to U.S. Supreme Court’s case law.89 In order to define the analytical framework applicable to claims filed under Section 15, par. 1, the Court referred in fact to Griggs v. Duke Power Co.90 Again, „„    Please check the incomplete sentence here. 8

The Death Penalty, Extradition and Political Questions

When the Supreme Court interprets the Constitution, it is inevitable that its decisions will take on a certain political significance.91 Having stated this premise – without detracting from the political nature of various court rulings, which have left an indelible mark on the operation of Canadian institutions, and mindful that the literature, which originally tended to reject the view that there was any purely Canadian political question doctrine, appears to have considered the existence of a specific “doctrine” of this type, which may be compared with the US doctrine92 – we shall now consider several judgments regarding this particular aspect. In particular, we shall seek to illustrate the terms in which, when giving reasons for its rulings, the Court and individual justices have engaged with the two-fold question: political and/or justiciable? We shall start with the case of Operation Dismantle v. The Queen from 1985.93 The appellants applied to the Court asking it to rule unconstitutional an authorisation granted by the Canadian Government to conduct certain missile tests on the grounds that, in their view, these violated the rights guaranteed 88 89 90 91 92

93

Canada (Attorney General) v. Hislop, par. 97. Quebec (Attorney General) v. A, 2013 scc 5, [2013] 1 s.c.r. 61. Griggs v. Duke Power Co., 401 U.S. 424 (1971), p. 430: “… practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices”. See Hogg, Constitutional Law, cit., p. 662 and the bibliography cited. See D.G. Cooper, Does Canada need a Political Question Doctrine, from the typescript for the Fifth Annual Analysis of the Constitutional Decisions of the Supreme Court of Canada [2001 Constitutional Cases] edited by the Osgoode Hall Law School of York University; but above all L. Sossin, Boundaries of Judicial Review – the Law of Justiciability in Canada, Scarborough-Ontario, Canada 1999, especially pp. 131–200. Operation Dismantle v. The Queen [1985] 1 s.c.r.

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under Section 7 of the Charter of Rights and Freedoms. Writing on behalf of a majority, Justice Dickson ruled the appeal inadmissible, without however commenting on its political nature, but due to the difficulty in establishing a connection between the governmental authorisation and the supposed violation of the appellants’ rights. In the words of Justice Dickson: “the casual link … is simply too uncertain, speculative and hypothetical to sustain a cause of ­action”. Of much greater interest for our present purposes is the concurring opinion of Justice Wilson, who reached the same conclusion from a different and much more broadly documented perspective. The heart of the matter, according to Wilson, is whether the dispute concerns a political question. In order to establish the non-justiciability of the question, the Justice based her argument on British precedents (specifically Chandler v. Director of Public Prosecutions from 1962 in which Lord Radcliffe held that questions relating to the armed forces were non-justiciable). She also recalled various judgments of the US Supreme Court, including in particular Baker v. Carr from 1962,94 in which the Court set out the principle of US constitutional law according to which the courts must decline to rule on certain problems of a political nature. She then went on to consider the literature,95 within which opposing schools of thought are apparent, published in one of the most authoritative law journals in the United States. Whilst the conclusions are convincing and were more widely endorsed, the opinion of Justice Wilson is less compelling on an argumentative level. However, her comments in Operation Dismantle were cited and reconsidered by Justice Dickson – who had in the meantime become Chief Justice – when, in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) from 1989, he wrote the unanimous opinion of the Supreme Court. Once again, the Court refused to state its view in a case of a political nature: the problem that arose in this case concerned the separation of powers and, as observed by Dickson C.J., ultimately the solution to the problem “depends on the appreciation by the judiciary of its own position in the constitutional scheme”. This is a view which mirrors that expressed a few years before in the United Kingdom (British Railway Board v. Pickin from 1974) even though, as is known and Justice 94 95

Baker v. Carr [1962] 369 U.S. 186; but also 82 S.Ct., p. 691 et seq. In particular in para. 57 of the judgment in Operation Dismantle v. The Queen, Justice Wilson cites the following literature: Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L. ]., 1966, p. 517; Wechsler, Principles, Politics, and Fundamental Law (1961); Wechsler, Book Review – 75 Yale L.J., 1966, p. 672; Finkelstein, Judicial Self – Limitation, 37 Harv. L. Rev., 1924, p. 338; Bickel, The Least Dangerous Branch (1962); Tigar, Judicial Power, the ‘Political Question Doctrine’, and Foreign Relations, 17 u.c.l.a. L.R. 1135 (1970), Henkin, Is There a ‘Political Question’ Doctrine? 85 Yale L.J., 1976, p. 597.

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Dickson himself did not fail to repeat this fact, the 1982 reform had radically altered the Canadian system also in this regard. The limit of the “political question” arose again in the three judgments that will be examined below96 concerning the death penalty and extradition, which dealt with two related problems: first, the way in which the death penalty is regarded within a “free and democratic” society97 such as Canada, but also in other systems which, whilst being different from Canada, share its ideals of freedom and democracy; and secondly the legitimacy of the extradition of persons guilty of offences for which the death penalty is stipulated and may be imposed in the countries to which they are to be extradited. The Supreme Court of Canada, placing particular emphasis on its comparative vocation, presented a historical overview of the development of western thinking, which largely seeks to reject (although in some cases to justify) the death penalty, analysing the most recent case law in this area both in Europe and in the United States of America.98 It is important to stress how the rejection of the penalty at issue here took some time to permeate throughout public opinion and amongst the Canadian political class. Until the 1960s, the death penalty was embraced by the system of criminal law (the last execution occurred in Canada in 1962). The House of Commons voted to abolish the death penalty in 1976. However, a few years later it was proposed that it be reintroduced: in 1987 an initiative to this effect was rejected by a narrow majority. The last vestiges of the death penalty were only struck out of Canadian law in 1998. It was precisely for this reason that this debate between the Justices called upon to rule on this matter in the first two judgments (both of 26 September 1991, and thus prior to the definitive clarification of the Canadian position in this area) aroused interest from the perspective of internal law, but above all from the viewpoint of comparative law and general legal theory.99 96 97 98

99

Kindler v. Canada [1991] 2 r.c.s.; Reference Re Ng [1991] 2 r.c.s.; United States v. Burns [2001] 1 r.c.s. Constitution Act 1982, Part i (Canadian Charter of Rights and Freedoms), Section 1. For example, the dissenting opinion of Justice Sopinka in the Kindler judgment studies the historical origin of the death penalty starting from the position in England in 1215, going on to analyse various documents from the subsequent centuries. Sopinka considers in particular the criminal law reform proposed in the 17th Century by the Levellers along with the arguments formulated during the same period by Winstanley regarding the a priori immorality of the death penalty. Amongst the European authors who have considered this problem in the past the Justice did not overlook Cesare Beccaria. More recently, the problem of the abolition of the death penalty has been linked to the issue of the protection of human dignity. See James W. O’Reilly, Case Comment: Ng and Kindler, in McGill L.J., Vol. 37, 1992, pp. 873–886. See A. Barak, Human Dignity: The Constitutional Value and the Constitutional Right, Cambridge University Press, Cambridge, 2015, p. 215 et seq. and C. McCrudden, Human

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Both in Kindler v. Canada and in Reference re Ng the Justices were requested to rule on the legitimacy – under the Charter of Rights and Freedoms – of a decision of the Ministry of Justice to order the extradition to the usa of persons who, were they to be found guilty of the offences charged, would risk the death penalty. The Ministry had failed to request that the penalty not be inflicted (even though he was entitled to do so under the extradition treaty concluded between the two countries). The Court held by a majority of the Justices hearing the case, and on the basis of two different arguments, that the treaty provision was compliant with the Charter and that the minister’s order complied with constitutional requirements. The minority on the other hand rejected this view – also on the basis of differing approaches. According to the majority, the death penalty does in itself violate Section 12 of the Charter – as it cannot be considered “cruel and unusual treatment or punishment” – and is not repulsive to the conscience of Canadians, who by contrast would not tolerate torture. The conviction would in any case be issued against a US citizen for an offence committed in the usa: according to the majority opinion, any interference by Canada would be inappropriate, and it would in any case be necessary to avoid a situation in which the country turned into a refuge in order to escape justice. The minority opinion was based on the argument that, amongst the countries within the Western tradition, the position adopted by the United States in relation to the death penalty is an isolated one. The commitment made by Canada on an international level to promote and protect human dignity would – according to the dissenting Justices – fully justify the request for guarantees contemplated under the extradition treaty; moreover, in similar cases the United States had not hesitated to comply with such guarantees. In its judgment in United States v. Burns from 2001, the Court unanimously reached a different conclusion, without however rejecting position previously stated by the majority in Kindler and Ng. Also in Burns the Minister of Justice had ordered the extradition to the United States of persons who would be liable to face the death penalty, and once again did so without asking – even though the Minister was entitled to do so – that the penalty not be imposed, or at least that it not be enforced. The Justices acknowledged that the Minister enjoyed a certain level of discretion within the ambit of the rules laid down by the Constitution, and in particular by the Charter of Rights. In this case though, two aspects that had not featured in the previous cases mitigated in favour of the accused: Canadian citizenship and their young age. However – again according to the Court – it was important not to lost sight of the fact that many things had changed both in Canada and elsewhere during the period falling Dignity and Judicial Interpretation of Human Rights, in European Journal of International Law, Volume 19, Issue 4, 1 September 2008, Pages 655–724.

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between the first two decisions and the case before it. New forensic medicine techniques, in particular in the area of genetics, had enabled judicial errors to be corrected in Canada, in the United States and in the United Kingdom. In the event that a death sentence is enforced, the error can no longer be corrected, but only acknowledged. In addition, since 1998 Canada had adopted a decidedly “abolitionist” stance in relation to the death penalty. The Ministry considered that this policy should not apply to offences committed abroad; however, even if that view were accepted along with the resulting assessment, in the opinion of the Court this case did not feature exceptional circumstances that could allow it to depart from the principles of “fundamental justice” laid down by Section 7 of the Charter and approve the extradition. In a more recent decision – in Suresh v. Canada from 2002100 – the Court was requested to rule on a case featuring certain parallels with the Burns case. Also the ratio decidendi was in some sense similar to that of the previous case. Once again, the Justices held that they were entitled to engage with questions of a political nature and applied the “balancing test” in order to resolve the dispute. Once again, in stipulating for the Ministry the manner in which he or she was to carry out his or her functions, the Court required the Minister to comply with procedural rules, without however encroaching further than was necessary on the Minister’s competence. The problem was as follows. The appellant Suresh was a refugee from Sri Lanka. Having become aware that the appellant was a member of a terrorist association and was raising funds for that organisation, the Canadian authorities ordered his incarceration and launched procedures to expel him from the country. The process was concluded with an expulsion order signed by the Ministry of Citizenship and Immigration on the grounds that Suresh could represent a threat to the security of Canada. In objecting to the order the appellant relied on numerous substantive and procedural arguments. He argued in particular that, having been accused of membership of an association known to have carried out terrorist acts in Sri Lanka, were he to be expelled he would risk being tortured in his country of origin. In addition to being radically at odds with various international agreements signed by Canada, torture was a punishment that was prohibited under the Canadian Charter. The appellant consequently asserted that the Minister’s decision was unreasonable, that the expulsion procedure – as provided for under the Immigration Act – did not comply with the requirements of fairness guaranteed under the Constitution, and that finally his rights under Section 7 and Section 2(b) and (d) of the Charter had been violated. 100 Suresh v. Canada (Minister of Citizenship and Immigration) [2002] scc 1, [2002] s.c.r. 3.

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The reasons provided in support of the judgment are testament to a broadreaching and detailed study of international and foreign materials, and also the literature of greatest interest on global level is repeatedly cited.101 After examining the question in detail, the Court summarised the reasons for its ruling in two dense paragraphs.102 Essentially, where there are grounds to believe that the expulsion of a refugee may place him in at serious risk of being tortured, that expulsion will be unconstitutional. This is because it amounts to a violation of the rights guaranteed to refugees under Section 7 of the Charter. As a matter of principle, it cannot be excluded that expulsion may in exceptional cases be justified, subject to the limits laid down by Section 7 or in accordance with those under Section 1. With specific reference to the case under examination, the Court held that the objections raised against the Immigration Act – as well as the expulsion procedure regulated thereunder – should be rejected as the Act provided that the expelling authority must request the receiving country that the person expelled be guaranteed rights corresponding to those attributed under Section 7 of the Canadian Charter. In remitting the question to the competent Minister for reconsideration and the issue of a new order, the Court thus required the Minister to abide by the constitutional principles set out above, as referred to and interpreted by the Court. The judgments mentioned above, in which a certain degree of judicial interference in areas normally reserved to “politicians” is apparent – which was 101 See for example para. 40, 62, 64, 94, 95 and 96 of the judgment. 102 In paras. 129 and 130 the Court arrived at the following conclusions: “We conclude that generally to deport a refugee, where there are grounds to believe that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Charter’s s. 7 guarantee of life, liberty and security of the person. This said, we leave open the possibility that in an exceptional case such deportation might be justified either in the balancing approach under ss. 7 or 1 of the Charter. We reject the argument that the terms ‘danger to the security of Canada’ and ‘terrorism’ are unconstitutionally vague. We also reject the argument that s. 53, by its reference to s. 19, unconstitutionally violates the Charter guarantees of freedom of expression and association. Finally, we conclude that the procedures for deportation under the Immigration Act, when applied in accordance with the safeguards outlined in these reasons, are constitutional./ Applying these conclusions in the instant case, we find that Suresh made a prima facie showing that he might be tortured on return if expelled to Sri Lanka. Accordingly, he should have been provided with the procedural safeguards necessary to protect his s. 7 right not to be expelled to torture. He was not provided the required safeguards. We therefore remand the case to the Minister for reconsideration in accordance with the procedures set out in these reasons.” See, among many, K. Roach, Did September 11 Really Change Everything: Preserving Canadian Values in the Face of Terrorism’?, in McGill Law Journal, vol. 47, 2002, pp. 894–947 and D. Jenkins, Rethinking Suresh: Refoulement to Torture Under Canada’s Charter of Rights and Freedoms, in Alberta L. Rev., vol. 47, no. 1, pp. 125–160.

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fully effected only in some cases – leave doubts as to whether there is a specific Canadian approach to the political question doctrine. This specificity would take on much more clearly defined contours were any particular significance to be ascribed to the consultative function of the Supreme Court (one example out of the many that may be cited is the Reference re Secession of Québec from 1998), as opposed to that of the US Supreme Court, with which comparisons concerning the political question are usually drawn. 9

Aboriginal Peoples in Canada

We shall now examine, again from a comparative perspective, some of the citations and commentary within the numerous judgments of the Supreme Court concerning the indigenous peoples of Canada, their problems, and their rights. We shall present them as examples, spread out over time, of an interpretative path followed by the Court.103 It is important to recall that the constitutional framework applicable to indigenous (or aboriginal) peoples has changed significantly following Patriation. Section 35(1) of the Constitution Act 1982 introduces for the first time at the pinnacle of the legal system specific recognition of the legal position of these peoples,104 which had until that time been governed by a variety of rules, both written and unwritten, which were not always homogeneous. Section 35(2) clarifies that aboriginal peoples may be classified under three groups: “the Indian, Inuit and Métis peoples of Canada”. Both the first group – which prefer to define themselves as the First Nations – and the second – the inhabitants of the extreme north – have been living in Canadian territory for thousands of years.105 The Métis on the other hand cannot claim equally ancient origins as they are the descendants of persons born of the union between a European and an aboriginal. Alongside that mixed ancestry they have also developed specific characteristics; however, in order to be specifically Métis, they must declare their membership of a specific community which recognises 103 The judgments in question are: R. v. Van der Peet [1996] 2 s.c.r.; Delgamuukw v. British Columbia, [1997] 3 s.c.r.; R. v. Sundown [1999] 1 s.c.r.; Corbiere v. Canada (Minister of Indian and Northern Affaire) [1999] 2 s.c.r.; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture) [2002] 2 s.c.r.; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [2005] 3 s.c.r. 104 Section 35(1) provides that: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. 105 See J.E. Magnet, Constitutional Law of Canada: Cases, Notes and Materials, Volume 1, 9th Edition, (Federalism and Aboriginal Peoples), Juriliber, Edmonton 2007, p. 752 et seq.

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them as members. They are therefore a clearly distinct group both from other aboriginals as well as from the communities of European origin.106 The differences between aboriginal groups have raised problems which the case law has had the opportunity to engage with although – as clarified in the Van der Peet judgment – aboriginal peoples overall must in any case be distinguished from immigrant groups arriving after the establishment of British sovereignty over the country. Other subsections of Section 35 – which has been partially altered by a subsequent amendment107 – are coordinated with the provisions of the Charter of Rights that impinge either directly or indirectly on the legal status of indigenous peoples, referring back both to previous rules that have now been incorporated into the current Constitution as well as rights and freedoms expressly recognised by the Royal Proclamation of 7 October 1763. The courts have thus been called upon to reconcile the old with the new, to establish the “ancestral” character of rights that are still “existing”, and to establish the legal status of the acts which Section 35(1) defines as the “treaty rights of the aboriginal peoples of Canada”.108 The citations and comparative law reflections on this issue are focused, from a diachronic perspective, on experiences from the period in which British law reigned supreme in Canada – that is before the country was able to assert a strictly endogenous policy in relation to aboriginals – as well as on decisions of the US Supreme Court dating back to the start of the 19th Century; in synchronic terms on the other hand the discussion considers how analogous situations are dealt with in other countries, including on the basis of applicable rules of international law. In various judgments the Supreme Court of Canada has expressed the conviction that the criteria for interpreting the reference constitutional principles are generous and liberal, although some criticism has been levelled on this score, which considers some judgments to display a certain level of judicial paternalism with regard to the rights of aboriginal peoples, whilst however being disinclined to allow them to exercise the self-government rights they strive to attain. 106 See R. v. Powley [2003] 2 s.c.r. and, in this regard, L. Sterling and P. Lemmond, R. v. Powley: Constitutional Recognition of Métis Aboriginal Rights, in Seventh Annual Analysis on the Constitutional Decisions of the Supreme Court of Canada [2003 Constitutional Cases], Toronto 2004. 107 Subsections 3 and 4 of Section 35 were introduced by the Constitution Amendment Proclamation 1983. 108 These treaties are sui generis agreements, which in some cases were concluded orally, which gives rise to difficulties from a Western perspective of incorporating them into native reasoning. See on this issue R. Dupuis, Le Statut juridique des peuples autochtones en droit Canadien, Carswell, Scarborough 1999.

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A first example of interest is the R. v. Van der Peet judgment,109 in which the appellant invoked a supposed existing aboriginal right as justification for her activities, which were carried out under a derogation from certain provisions applicable to fisheries (British Columbia Fishery ‘General’ Regulations). The Court was divided between a majority represented by the opinion of Chief Justice Lamer along with two dissenting opinions, written respectively by L’Heureux-Dubé110 and McLachlin.111 In his judgment, Lamer analyses the significance of aboriginal rights and draws on comparative methodology by referring also to two judgments of the US Supreme Court from 1823 and 1832 respectively.112 The same foreign cases are also cited in the two dissenting opinions. The Justices’ reasoning also incorporates arguments from the US and European literature, including in particular the reference by McLachlin to the Grundnorm.113 The Delgamuukw judgment examines the significance of aboriginal title under which the appellants claimed a vast area of land within British Columbia. An example of diachronic comparison may be found in the reference to a precedent in the Privy Council’s judgment in St. Catherine’s Milling and Lumber Co. v. The Queen from 1888.114 Here the aboriginal title is described as “a personal and usufructuary right” – a notion that has attracted criticism as it does not take account of the variety of meanings that title may take on. Although it was already recognised in the Royal Proclamation of 1763, it arose prior to the arrival of the first Europeans in Canadian territory. Its meaning has been

109 110 111 112

See note 71. Van der Peet, para. 107. Ivi, para. 267. The two judgments in question are: Johnson v. McIntosh 21 U.S. (8 Wheat.) from 1823 and Worcester v. Georgia, 31 U.S. (6 Pet.) from 1832. They analyse the “intersections” between aboriginal rights and those resulting from the sovereignty of the various European nations. The second in particular discusses the “relationship between the pre-existing rights of the ‘ancient possessors’ of North America and the assertion of sovereignty by European nations” (see paras. 36 and 37 of Van der Peet). Again in Van der Peet, para. 38, the Court considers the recent decision of the High Court of Australia in Mabo v. Queensland (1992) concerning “the basis and nature of aboriginal rights”. 113 See Van der Peet, para. 272: “The fundamental understanding – the Grundnorm of settlement in Canada – was that the aboriginal people could only be deprived of the sustenance they traditionally drew from the land and adjacent waters by solemn treaty with the Crown, on terms that would ensure to them and to their successors a replacement for the livelihood that their lands, forests and streams had since ancestral times provided them”. 114 See Delgamuukw, para. 112.

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consolidated within relations between the British common law and the previous systems of law recognised by the aboriginal peoples.115 More recently, in Tsilhqot’in Nation v. British Columbia116 the Court resorted to Australian case law in order to broaden the concept of Aboriginal title in a case where the First Nation failed to prove that they regularly and exclusively used the territory within the claim area.117 According to the Australian High Court, in fact, “to speak of “possession” of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms”.118 A 2005 judgment concerning the rights of aboriginals provides us with the opportunity to conclude both our brief discussion of this specific issue and, more generally, our account of the problems of comparative law within the case law of the Supreme Court of Canada. The judgment in question – Mikisew v. Canada119 – concerns, as others in the past, the honour of the Crown. The appellants appealed to the Court after having unsuccessfully protested with the Federal Government against the construction of a road, which it was alleged would have an adverse impact on their traditional activities. The Mikisew were not consulted concerning the project whereas, in cases such as this, consultation was expressly provided for under a treaty concluded in 1899 between the British Crown and the First Nations. They therefore asked the Supreme Court to ensure that the historic agreement, which was still recognised as valid by the Canadian authorities, be respected.

115 Ivi, para. 114. 116 Tsilhqot’in Nation v. British Columbia, [2014] 2 s.c.r. 256. 117 See B. Slattery, The Constitutional Dimensions of Aboriginal Title, in The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference, vol. 71, 2015, pp. 45–66. The Court in a following decision will further explain the concept of “public interest” as a limit to Aboriginal land rights. The abovementioned judgment was Grassy Narrows First Nation v. Ontario (Natural Resources), [2014] 2 s.c.r. 447, when the Supreme Court was asked to adjudicate on the Province of Ontario’s right to issue forestry licenses within traditional territory. See J. Seymour, Casenote: Grassy Narrows First Nation v. Ontario (Natural Resources), in Indigenous Law Bulletin, Vol. 8, No. 18, 2015, pp. 30–33. In Italian, see E. Ceccherini, Aboriginal Law nel mondo contemporaneo: l’esperienza canadese [Aboriginal Law in Contemporary World: the Case of Canada], in C. Murgia (ed.), Scritti in onore di Sara Volterra, Giappichelli, Torino, 2017, p. 211. 118 Western Australia v. Ward (2002), 213 c.l.r. 1. 119 See note. 71.

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In finding that the right of the Mikisew had been violated and that the honour of the Crown required a remedy to be provided, Justice Binnie, writing the Court’s opinion, stressed the importance of moving beyond the old claims and misunderstandings even where, as in this case, the questions were not of major importance. Considerations of this type recall attention to the Court’s role as the interpreter of the Constitution, although also of the requirements of civil society. It is desirable120 that the Court should be able to give effect to the dominant values of society without undermining the credibility of the body or the effects of its decisions. Acknowledgements This chapter is partially the result of research carried out at the Center for Constitutional Studies and Democratic Development (ccsdd), and funded, among others, by the George Lawrence Abernethy Endowment. This chapter is the result of the translation, update and integration by Sara Pennicino of the text published in Italian by Nino Olivetti Rason in 2006. 120 See A. Lajoie, Garantir l’intégration des valeurs minoritaires dans le droit: une enterprise irréalisable par la voie structurelle, in Le fédéralisme, o.c., p. 365 et seq.

Developing an Indian Constitutional Jurisprudence Drawing on Judicial Thinking in the Rest of the Common Law World Anton Cooray 1 Introduction The legal system of India is based on the English legal system, supplemented by indigenous laws such as Hindu law and Islamic law. The legal framework for India was laid down during the British colonial period and today the British influence continues to shape the progress of Indian law. Many statutes introduced during the time of British colonial rule such as the Pe­nal Code of 1870 and Trusts Act of 1882, which introduced English law into India,1 ­continue to operate today. Many statutes predating the coming into being of the Indian Constitution in 1950, have been repealed, ­replaced or amended by post-independence legislation responding to changing ­socio-economic and political needs. While repealing or modifying outdated statutory provisions, India continues to draw heavily upon English legislation in drafting its laws. India’s sources of law continue to be legislation, common law and customs, as in other common law jurisdictions. These operate within the overarching constitutional framework that is set forth in the Indian Constitution, which as we will see shortly, is founded on the British model supplemented by constitutional features borrowed from other jurisdictions. While the legislature is the primary law-maker, judges play an important and inevitable role in developing law through interpreting and applying law to disputes which are litigated before them. Judicial development of law takes place within the framework of the doctrine of binding judicial precedent whereby courts of law are bound by previous judicial decisions. Just as the legal system, the constitutional system of India is deeply rooted in the British experience. Beginning as a Crown Colony directly governed by Britain, India gradually progressed through various stages of colonial 1 Local legislation introducing English law into India took into account any possible conflict with local laws. For instance, Section 2 of the Trusts Act provides that ‘nothing herein contained affects the rules of Mohammedan law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors…’

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_007

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administration towards self-government. On becoming an independent state within the Commonwealth, India opted to have its own home-made constitution. However, just as other former British colonies, India relied heavily on the Westminster model system of government, adapting it to the federal system of government that it favoured, deviating from the British unitary system of government and drawing inspiration from a number of other constitutions. As the Supreme Court observed in Shamsher Singh v. State of Punjab:2 ‘[The Indian] constitution embodies generally the parliamentary or cabinet system of government of the British model,’ according to which the President of India, just as the Queen in the UK, is the nominal head of state, and is required to act on the advice of his Council of Ministers. The Supreme Court in Shamsher case was examining the way in which the governor was to exercise powers vested in him. Observing that the way the Governor is expected to act closely follows the rules and conventions that apply to the President of India, the Supreme Court held that in the exercise of his legislative and executive functions the governor must act on the advice of his Council of Ministers, except where the Constitution expressly provides that he may, in certain specified circumstances, act in his discretion.3 There may also be circumstances where the Governor may act on a recommendation made by a government or state agency. For instance, in the matter of appointing or removing inferior judges, the Governor is required to act in consultation with the State Public Service Commission and the High Court. In Shamsher case, the Supreme Court rejected the argument that where provision has been made for the Governor to act on the recommendations made by the High Court regrading inferior judges, he should nevertheless act in his own discretion.4 Even a quick reading of this case shows how the Supreme Court viewed the importance of English constitutional conventions in interpreting the operation of the Indian Constitution.5 2 1974 air 2192. 3 The articles which provide that the Governor acts in his discretion are Articles 371A(1)(b), 371A (1)(d), 371(2)(b) and 371A(2)(f). These relate to special responsibilities that the Governor of the state of Nagaland for the protection of its indigenous people Nagas. These provisions are explained in Shamsher Singh v. State of Punjab 1974 air 2192. 4 Article 234 of the Indian Constitution provides as follows: ‘Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State’. The removal of the judge was, however, held to be unlawful as there had been a denial of rules of natural justice. 5 In arriving at its decision on the nature of the President’s and the governor’s powers, the Supreme Court examined extensively the proceedings of the Constituent Assembly which

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While the Indian constitution is undoubtedly fashioned on the Westminster model of government, it has also derived assistance from other constitutional systems. The foremost has been the American influence, especially in relation to the protection of fundamental rights6 but marginally on the powers of the President or the central-state relationship.7 The Directive Principles of State Policy in Article 51 of the Indian Constitution are modelled on Directive Principles of State Policy in Articles 45 of the Constitution of Ireland, 1937. The power of the Indian Supreme Court to issue advisory opinions on matters referred to it by the President has its counterpart in several common law countries such as Canada, but not in Australia or the usa. The Indian Constitution draws upon the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. This rich mixture of international experience has made it inevitable for Indian courts to refer to international jurisprudence and to feel persuaded by judicial decisions touching on such constitutional and human rights jurisprudence. Reputed to be by far the longest national constitution, the Constitution of India sets out the Indian constitutional structure at federal level as well as state level. In India, unlike in the usa, there are no state constitutions. Importantly for the theme of this collection of essays, namely the influence of foreign jurisprudence on domestic courts, the Indian Constitution draws upon the experience of many countries, especially the United Kingdom which upholds the rule of law and Parliamentary supremacy, and the United States of America where the constitutional fundamentals are supremacy of the written constitution and the separation of powers. Building on the ideals of democracy, equality and freedom, the Indian constitution sets out the legislative and executive framework for the federal government and state governments, centre-state relationship, independence of the judiciary, and rights of minorities and the disadvantaged. India has an entrenched bill of rights incorporated in the Constitution. It also sets out a list of Directive Principles of State Policy, which have no binding force, but which ‘are nevertheless fundamental in the governance of the country.’8 The Directive Principles of State Policy are an aid to interpretation of the Constitution and Indian courts have given special significance to their incorporation in the made the Indian Constitution and previous Indian judicial decisions. In comparison, the examination of English legal literature was limited. 6 See Robert B. Charles, ‘American Influence on the Indian Constitution: Focus on Equal Protection of Laws’ 17 Colum Hum Rts L Rev 193 (1986). 7 See Shamsher Singh v. State of Punjab 1974 air 2192. 8 Minerva Mills Ltd v. Union of India 1980 air 1789.

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Constitution in determining the scope of fundamental human rights which limit the power of the legislature and the executive.9 2

Allocation of Legislative and Executive Power

The distribution of power among the three branches of government, at national level and state level, may be shortly explained as follows: 2.1 Legislative Power of the Union Legislative power of the Union is vested in Parliament of India which consists of two houses, the Lok Sabha and the Rajya Sabha. Article 123 provides that ‘if at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require’.10 The Lower House known as the Lok Sabha or the House of the People, which corresponds to the House of Commons in the UK, consists of members directly elected through universal suffrage. The Upper House known as the Rajya Sabha or the Council of States, which corresponds to the House of Lords in the UK, consists of members elected by all members of the State Legislative Assemblies though proportional representation.11 The Lok Sabha is numerically superior to and much more powerful than the Rajya Sabha. The inner circle of Ministers known as the Council, the Cabinet of Ministers, is predominantly drawn from the Lok Sabha, from where the Prime Minister too is selected. The Prime Minister, the head of the Council of Ministers, is the person who is best able to command a majority in the Lok Sabha. The members of the Council of Ministers are appointed by the President on the advice of the Prime Minister. 9

10 11

Art 37 in Part iv of the constitution: ‘Directive Principles of State Policy’. The Supreme Court observed as follows in State of Tamil Nadu v. Abu Kavur Bai 1984 air 326: ‘On a careful consideration of the legal and historical aspects of the directive principles and the fundamental rights, there appears to be complete unanimity of judicial opinion of the various decisions of this Court on the point that although the directive principles are not enforceable yet the court should make a real attempt at harmonising and reconciling the directive principles and the fundamental rights and any collision between the two should be avoided as far as possible’. Article 123. See, for justifications for and validity of the conferment of legislative power on the President under Article 123, T. Venkata Reddy v. State of Andhra Pradesh 1985 air 724. The President nominates two members to the Lok Sabha and 12 members to the Rajya Sabha to represent the Anglo-Indian community and various sectors such as science and culture.

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2.2 Executive Power of the Union Executive power is vested in the President of India, who is not an executive President as in the usa, but a nominal head of state as in most Commonwealth countries.12 He is elected not directly through universal suffrage, but indirectly by union and state legislators. There is a Union Council of Ministers, drawn from the two Houses of Parliament, on whose advice the President is required to act.13 Strictly speaking, it is the Council of Ministers that in effect exercises executive authority in India. However, it is a small inner circle of the Council, known as the Cabinet of Ministers,14 and not the full Council of Ministers, that meets regularly and deliberates on government affairs. Thus, the Cabinet of Ministers, which is not a creature of the Constitution,15 is in effect the supreme 12

13 14 15

While for convenience we use the phrase ‘Commonwealth countries,’ the reference is to former colonies of Great Britain, who on attaining independence were granted a constitution modelled on the British experience, commonly known as the Westminster model Constitution. The main features of a Westminster Model Constitution are: (i) legislative power is vested in an elected legislature roughly corresponding to UK House of Commons, often supplemented by a second chamber roughly corresponding to the UK House of Lords; (ii) executive power is vested in a nominal head of the state known as Governor General or President, who is required to act on the advice of the Prime Minister; The Prime Minister forms and presides over a cabinet ministers, drawn from the legislature who are collectively answerable to the legislature; (iii) legislative power is vested in the legislature with a minimal legislative role for the nominal head of the state who consents to legislative measures passed by the legislature and proclaims them; (iv) judicial power is vested in the judiciary whose independence from legislative and executive interference is constitutionally protected; (v) the Constitution provides for some form of human rights protection, generally by incorporating a justiciable Bill of Rights; (vi) there exist mechanisms to ensure that public services are protected against political interference; (vii) The constitution enables constitutional conventions modelled on the British experience to be followed, sometimes by specifically incorporating them in the constitution (for instance, that the head of state must appoint as Prime Minister the member of the legislature who is best able to command a majority and that the government can remain in power only so long as it commands the support of the legislature). See S.A. de Smith: New Commonwealth and its Constitutions (1964: London, Stevens), and ‘Westminster’s Export Models: The Legal Framework of Responsible Government’ 1:1 Journal of Commonwealth Political Studies 2–16 (1961). ‘There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice’: Article 74(1). There are between 60 to 80 members of the Union Council of Ministers consisting of around 15 Cabinet Ministers, Ministers of State and Deputy Ministers. Only the Cabinet Ministers sit in the Cabinet of Ministers. The only reference to the Cabinet of Ministers is found in Article 352(3) which provides as follows: ‘The President shall not issue a Proclamation [a proclamation of emergency] under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other

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decision-making body in India. The Cabinet of Ministers meets regularly to discuss and decide on government affairs. The full Council of Ministers meets only rarely, especially when an emergency is to be declared. 2.3 The Executive Power of the States The constitutional structure of the states closely follows that of the Central Government. Executive power is vested in the Governor nominated by the President of the Republic. The Governor, like the President of India, is in effect a nominal head of state and acts on the advice of the State Council of Ministers headed by a Chief Minister, the State counterpart of the Prime Minister of India. The Chief Minister is the person who is best able to command a majority in the State Legislature, and he selects his ministers of State, who are appointed by the Governor. Thus, executive power is in effect exercised by the State Council of Ministers. Article 256 of the Constitution which is in Chapter ii ‘Administrative Relations’ of Part xi ‘Relations between the Union and the States’ provides as follows: ‘The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose’. Article 257(1) provides as follows: ‘The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose’. 2.4 Legislative Power of the States In states that have a unicameral legislature the legislature is the Legislative Assembly, an elected body. In states which have a bicameral legislative system the legislature has a Legislative Assembly (lower house) and a Legislative Council (upper house). The Legislative Assembly is fully elected through universal franchise, and the Legislative Council, if there is one, consists of some members elected by local authorities, some through functional constituencies, and some nominated by the Governor. The distribution of legislative power between the central legislature and state legislatures is tilted in favour of the Central Government. The Constitution vests some powers such as those Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be issued has been communicated to him in writing’. On declaration of emergency see Babu Rao allias PB Samant v. Union of India 1988 air 440.

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relating to defence and foreign affairs exclusively in the central government (union list of powers), some powers such as those relating to health and agriculture exclusively in the state governments (State list of powers), and some powers such as those relating to criminal law and contracts concurrently in the union government and states (concurrent list of powers).16 The primacy of the Union is secured by the following constitutional provisions: (i) State legislatures may not exercise any legislative power enumerated in the Union list; (ii) Union law prevails over state law in respect of matters in the concurrent powers list;17 (iii) While the Union legislature cannot generally pass legislation on any matter exclusively in the State List, it may pass legislation on such a matter provided that the Council of States (Upper House) resolves by a twothirds majority that the passing of such a law is necessary in the national interest (Article 249); (iv) residuary legislative power, that is legislative power not enumerated in the Union, State and Concurrent lists, belongs exclusively to the Parliament.18 The Constitution also provides that during an emergency the Union Parliament has the power to pass legislation on any subject in the State list (Article 353) and that where the President is satisfied that the affairs of a State cannot be carried out according to the constitution he may by proclamation declare that ‘the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament’ (Article 356).

16

The three lists are found in the Seventh Schedule of the Constitution. See, for the distribution of legislative power between the Union and the States, Chapter i ‘Legislative Relations’ in Part ix of the Constitution ‘Relations between the Union and the States’, especially Article 245 ‘Extent of Laws by Parliament and by the Legislatures of States’, Article 246 ‘Subject matter of laws made by Parliament and the Legislatures of States,’ Article 248 ‘Residuary Powers of Legislation,’ Article 249 ‘Power of Parliament to legislate with respect to a matter in the State List in the national interest,’ Article 250 ‘Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation,’ Article 251 ‘Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the Legislatures of States,’ Article 252 ‘Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State,’ and Article 254 ‘Inconsistency between laws made by Parliament and laws made by the Legislatures of States.’ 17 See K. Nagaraj v. State of Andhra Pradesh 1985 air 551, where the Supreme Court observed as follows: ‘The question of repugnancy under Article 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy, become void’. 18 Article 248(1). On the nature of inconsistency between an Act of Parliament and state legislation see Hoechst Pharmaceuticals Ltd v. State of Bihar 1983 air 1019.

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Corresponding to the power of the President of India to make laws during a time when Parliament is not in session, the Governor of a state may promulgate such Ordinances as the circumstances appear to him to require, if he ‘is satisfied that circumstances exist which render it necessary for him to take immediate action.’19 2.5 Judicial Power in India Judicial power is vested in the judiciary. Unlike the usa which has Federal courts and State courts, India has a single hierarchy of Courts, with the Supreme Court of India as the apex court. Chapter iv of Part v of the constitution, ‘The Union,’ deals with the Union Judiciary (The Supreme Court of India) while Chapter v of Part vi of the Constitution, ‘The States,’ deals with the High Courts in the States. The Supreme Court of India has jurisdiction over the whole of India. Next to it are the High Courts, one for each state. High Courts have criminal and civil jurisdiction at the highest level in their state. They also have territorial jurisdiction to issue writs against any public authority for the enforcement of fundamental rights. The High Court has supervisory jurisdiction over inferior courts of the state. The inferior courts of a state are district courts, magistrates’ courts, family courts and the less formal village courts. The Supreme Court of India, the highest court of law of the land,20 has original, appellate and advisory jurisdictions, which are all relevant to an examination of its constitutional adjudicatory role.21 The Supreme Court has exclusive original jurisdiction in respect of disputes (a) between the central government and one or more States;22 and (b) between two or more states. It has original jurisdiction in relation to the enforcement of fundamental rights, which it exercises by issuing prerogative writs.23 It has 19 20 21 22

23

Article 213. This Article has been described as validly conferring legislative power on the executive. See K. Nagaraj v. State of Andhra Pradesh 1985 air 551. ‘The law declared by the Supreme Court shall be binding on all courts within the territory of India’: Art 141 of the Constitution. For an insightful commentary on the Indian Supreme Court, see Burt Neuborne, ‘The Supreme court of India’ 1:3 International Journal of Constitutional Law, pages 476–510 (2003). See for instance West Bengal v. Union of India 1963 air 1241, where the Supreme Court dismissed the contention that it was unconstitutional for an Act of Parliament to authorise the Union government to acquire land belonging to a state for the purpose of regulating mining. In determining the power of the Union government, the Supreme Court drew assistance from decisions of the Canadian and Australian courts and the Privy Council. Article 32. The difference between Article 32 and 226 of the Constitution is that while an application under Article 32 lies only for the enforcement of Fundamental Rights, the High Court under Article 226 has a wider power to exercise its jurisdiction not only for the

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exclusive original jurisdiction in relation to the election of the President and the Vice-President of India.24 An important power that enhances its original jurisdiction is its ‘call in’ power, namely to call in for determination any case pending before any High Court which concerns substantially the same question that the Supreme court is inquiring into, provided that such question is of general public importance.25 Being the highest court of appeal in India, the Supreme Court hears appeals from High Court decisions in civil, criminal or other proceeding. In civil cases the availability of an appeal is conditional upon a certificate issued by the High Court, under Article 134 A, that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court.26 Article 132 provides that an appeal lies against a decision of the High Court in any proceeding, civil, criminal or otherwise, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. Thus, the Supreme Court enjoys through its appellate jurisdiction a constitutional jurisdiction in a case that would normally be within the jurisdiction of the High Court. Article 136 provides that, notwithstanding the above provisions, the Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed by any court or tribunal.27 The Supreme Court’s advisory jurisdiction28 may be invoked by the President of India where it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court.29

24 25 26 27

28

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enforcement of Fundamental Rights but also ordinary legal rights. Dm Wayanad Institute of Medical Sciences v. Union of India Writ petition (C) No 441 of 2015 (unreported). See for instance Shiv Kirpal Singh v. Shri V V Giri 1970 air 2097. Article 139A. See, for instance, L.K. Venkat v. Union of India, Transfer Petition (Criminal) Nos 383–385 of 2011 (2012 unreported) and Bimolangshu Roy (Dead) through… v. State of Assam, Transferred Case (Civil) No.169 of 2006, decided on 26 July 2017 (unreported). Article 133. See for instance Durga Shankar Mehta v. Thakur Raghuraj Singh 1954 air 520: ‘The powers given by article 136 of the Constitution … are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible’. See generally Deepaloke Chatterjee, ‘Presidential References and Their Precedential Value: A Constitutional Analysis’ 21:1 National Law School of India Review 175 (2009). See for a critical analysis of this provision, Popkin, William D, ‘Advisory Opinions in India’ (1962) available at http://www.repository.law.indiana.edu/facpub/2583. Article 143. The advisory jurisdiction was first introduced in India in 1937 by Government of India Act 1935. The first reference by the President under the Independence

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The Supreme Court has held that it may refuse to provide advice on a question referred by the President if it finds that the question ‘is incapable of being answered’.30 Opinions given by the Supreme Court are not binding on courts of law as decisions given in litigation.31 Examining the role of the Supreme Court as a constitutional tribunal must be viewed in the backdrop of the role and function of courts of India. To start with, the constitution does not vest an exclusive constitutional jurisdiction in the Supreme Court. Any court or tribunal is competent to inquire into the constitutionality of any government action. A question of constitutionality of legislation or legality of administrative action may be raised in proceedings directly intended to impugn such action. Such an attack is known as a direct attack.32 A question of propriety of government action may also arise collaterally in a judicial proceeding. For instance, in a criminal proceeding the defendant may argue that the offence he is charged with is inconsistent with the Constitution or that there was a procedural impropriety in the way the criminal proceedings were brought occasioning a breach of his fundamental rights. Such an attack is known as a collateral attack.33 ­ onstitution of India was considered by the Supreme Court in Re Delhi Law Act 1921, air C 1951 SC 332. See for instance, In the matter of Article 143, special reference No 1 of 1964, 1965 air 745, where the President sought Supreme Court’s advice on whether it is constitutional for a High Court to entertain a law suit by a citizen against a committal to prison by the local legislature for contempt of its privileges. The Supreme Court made extensive reference to law and parliamentary practice in Australia, Canada and the UK. A wellknown instance of the invocation of the advisory jurisdiction of the Supreme Court is the ‘Third Judges Case’, In re Presidential Reference air 1999 SC 1, where the President of India sought the advice of the Supreme Court on the procedure to be followed in appointing judges to the Supreme Court. 30 See Ismail Faruqui v. Union of India 1995 air 605. 31 In Re Special Courts Bill Reference, 1979 air 478, the Supreme Court left open the question whether an opinion given by the Supreme Court under Art 143(1) is ‘law declared by the Supreme Court … binding on all courts within the territory of India’ within the meaning of Art 141. It observed, however, that lower courts must consider themselves as bound by an advisory opinion of the Supreme Court. See generally Deepaloke Chatterjee, ‘Presidential References and Their Precedential Value: A Constitutional Analysis’ 21:1 National Law School of India Review 175 (2009). 32 A direct challenge refers to a judicial proceeding which is instituted for the purpose of challenging the legality of legislative or administrative action which adversely affects the applicant. There are instances where the court would permit a public-spirited individual to challenge the legality of governmental action. For instance, in S.P. Gupta v. President of India air 1982 SC 149, a number of legal practitioners questioned the constitutionality of a circular issued by the Law Minister, as a serious interference with independence of the judiciary. There, Bhagwati J. traces the relaxation of traditional principle of locus standi and examines justifications for public interest litigation. 33 In Vikram Singh v. Union India Criminal Appeal No. 824 of 2013, decided on 21 August 2015, appellants who were convicted and sentenced to death challenged the constitutionality

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Where a constitutional question has arisen before a court the ultimate decision on it would be left in the hands of the Supreme Court as India’s highest court of law. As seen above, matters of constitutional importance that have been litigated in a High Court are especially within the jurisdiction of the Supreme Court. In this essay, we will not examine how constitutional issues have arisen in other courts of law, but it should be noted that the High Court has expressly been given a writ jurisdiction to enforce fundamental rights that are enshrined in Part iii of the Constitution.34 3

Foreign Judicial Decisions in Indian Courts

Being part of the common law world, the Indian Supreme Court and indeed all Indian courts have sought guidance from other common law countries in interpreting the Constitution and legislation. This was more so evident in the early years of development of constitutional jurisprudence in India, and today the Indian courts can take guidance from previous decisions of the Supreme Court. Yet, the Supreme Court continues to make detailed analysis of relevant judicial decisions, commentaries and scholarly writings from other jurisdictions, especially where the court is propounding a new legal principle. What we can do helpfully is to look at three areas, selected at random, where foreign judicial decisions have made a significant impact on Indian judicial law-making. Determining What is ‘state’ for the Purpose of Protection of Fundamental Rights It is generally considered that judicial remedies for infringement of fundamental rights are directed against public authorities. For instance, the Constitution of Sri Lanka, 1978, confers the power on the Supreme Court to inquire into any breach of fundamental rights by ‘executive or administrative action’. The Indian Constitution uses ‘the State’ as a reference to public authorities. For 3.1

34

of death penalty by way of a writ application in High Court and rejecting the appeal against their unsuccessful application. Thakur J in the Supreme Court referred to the challenge as a collateral proceeding. See on the scope of collateral challenge Pankaj Bhargav v. Mohinder Nath (1991) 1 scc 556. See generally Wade and Forsyth, Administrative Law (11th ed., 2014: Oxford University Press), Chapter 9 ‘Problems of Invalidity’, pp. 236–238 on ‘Collateral Proceedings’. Article 226 provides that ‘Notwithstanding anything in Article 32 [ which confers power on the Supreme Court to enforce fundamental rights] every High Court shall have power … to issue …directions, orders or writs … for the enforcement of any of the rights conferred by Part iii and for any other purpose’.

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instance, Article 14 provides that ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’. Article 12 of the Indian Constitution defines ‘the State’ for the purpose of Part iii of the Constitution, which incorporates the Bill of Fundamental Rights, as including ‘the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.’ As regards enforcement of fundamental rights Article 226 provides that ‘every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part iii and for any other purpose’. The Indian Supreme Court has liberally interpreted ‘the State’ in Article 12, especially as regards the scope of Article 226, and brought within the meaning of the State various non-governmental agencies which exercise functions on behalf of the government or exercise powers which would normally be exercised by a government agency. In situations where a non-government agency is funded by the state or controlled and regulated by the government, courts have readily recognised such institutions to be amenable to fundamental rights jurisdiction.35 In so extending the reach of fundamental rights to bodies which are not in a strict sense of part of the government structure, the Indian Supreme Court has extensively drawn upon the experience of other jurisdictions, especially the United States of America. Ramana Dayaram Shetty v. The International Airport Authority of India36 is a telling example of the readiness of the Supreme Court to draw on international experience. There, the Airport Authority had awarded a contract to manage 35

See for the most recent discussion of the relevant principles J.M. Desai v. The Center for Environment Planning and Technology Letters Patent Appeal No 1344 of 2015 (High Court of Gujarat) decided on 26 September 2017. After considering relevant previous judicial decisions, the Supreme Court in Federal Bank Ltd. v. Sagar Thomas & Others (2003) 10 scc 733 observed that a writ petition under Article 226 of the Constitution of India may be maintained against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging a public duty or positive obligation of public nature; and (viii) a person or a body under legal obligation to discharge any function under any statute, to compel it to perform such statutory function. 36 1970 air 1628.

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a restaurant at the International Airport of Bombay to a person who did not satisfy a tender requirement relating to catering experience. A caterer who had not participated in the tender exercise because he did not have the requisite experience challenged the Airport Authority’s decision on the ground that he had been denied an equal opportunity to bid for the contract. While the court was satisfied that the non-observance of the mandatory requirement discriminated against the applicant, it had also to be satisfied that a public law remedy would lie against the Airport Authority, for which purpose the Airport Authority had to be a state instrumentality. Baghwati J. observed perceptively: ‘If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through the instrumentality or agency of corporations should equally be subject to the same limitations’. This reflects what Douglas J. had said in Evans v. Newton: ‘When private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State’.37 In determining the scope of state action, Bhagwati J. observed: ‘The analogy of the concept of state action as developed in the United States may not, however, be altogether out of place while considering this question’. Reference was made to many cases including one of the celebrated cases that held discrimination against black Americans to be unconstitutional: Louise Kerr v. Enoch Pratt Free Library. There, a library set up with private funds but maintained at public expense was regarded as a state instrumentality which, just as the state itself, was bound by the duty to guarantee equal protection of law enshrined in the Fourteenth Amendment of the Constitution.38 3.2 Determining Legality of Executive Action In S.R. Bommai and Others v. Union of India and Others air 1994 SC 1918, the President’s power to take over the administration of a state was challenged. The President had taken action under Article 356 to remove the governments and the dissolve the legislative assemblies in six States on different occasions and in different situations. The question was whether the Supreme Court had jurisdiction to examine whether the power had been carried out lawfully. The 37

38

Evans v. Newton 382 US 296 (1966) cited by Bhagwati J. In Evans a US senator had devised a land to the City of Macon, Georgia, to be used as a park exclusively for the white people. The Supreme Court upheld the contention that exclusion of blacks was a violation of the equal protection clause by state action because although the park originated through a private endowment the municipality became so entwined in the management and control of the park that it was in effect a public park. Louise Kerr v. Enoch Pratt Free Library 326 US 721 (1945).

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Supreme Court held that it had jurisdiction at least to consider whether conditions precedent to the issuing of the proclamation were objectively satisfied, the conditions precedent being that the President is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Indian Constitution. In order to examine whether it has this power to inquire into constitutionality of the President’s action, the court briefly explained the principles of judicial review as developed in English courts especially in relation to exercise of discretion and held that conditions precedent for the exercise of discretion must be objectively established. The Supreme Court drew assistance from two judicial decisions from Pakistan dealing with somewhat similar situations: Muhammad Sharif v. Federation of Pakistan, pld [1998] Lahore 725, and Muhammad Nawaz Sharif v. President of Pakistan [1993] pld SC 473. The court cited the latter decision of the Pakistani Supreme Court which had held that where a Presidential proclamation is declared invalid the National Assembly, Prime Minister and the Cabinet stood restored and entitled to function as immediately before the impugned order was passed. The court also referred to Australian, US and Canadian experience to explain the relationship between the centre and states in the federal government structure in India. This, the court did cautiously because, as the court observed quite rightly, there is no universally accepted model of federal government. The federal system that the Indian constitution has adopted favours the central government, while upholding the autonomy of state governments. The Supreme Court observed that there is a general trend in all federal states to move towards a centralisation of power, even in the usa where the constitution favours states. After an extensive survey of judicial decisions and academic writings from Australia and the usa, the Supreme Court observed that the Indian constitution must be interpreted in such a way as to respect the supremacy of the central and state authorities in their respective spheres of jurisdiction. 3.3 Parliament Has No Unrestricted Power to Amend the Constitution Minerva Mills Ltd v. Union of India 1980 air 1789 concerned the constitutionality of Sick Textile Undertakings (Nationalisation) Act 1974 under which a decision had been taken to nationalise Minerva Mills. Parliament added this statute to the list in the Ninth Schedule of the Constitution. Any law so listed was immune from judicial review, as provided by Article 32B. The petitioners argued that Parliament had acted unconstitutionally when inserting Article 32B into the constitution, by way of a constitutional amendment, which provides that constitutionality of any legislation listed in Ninth Schedule shall not be questioned in a court of law. Similarly, they challenged the insertion of Article 368(5) into the constitution. That article provided that ‘For the removal

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of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article’. Agreeing with the respondents, the Supreme Court held that these amendments were beyond the power of Parliament, observing that since the Constitution had conferred on Parliament a limited amending power, Parliament could not enlarge such limited power into absolute power. The Supreme Court observed that one of the basic features of Indian Constitution was that Parliament’s power to amend the Constitution was not unlimited. In other words, Parliament could not, under Article 368, expand its amending power to acquire for itself the right to repeal the Constitution or to destroy its basic and essential features. Thus, it reaffirmed the landmark decision in Kesavananda Bharathi v. State of Kerala where it was held that the power of Parliament to amend the constitution does not enable it to negate the basic features/structure of the Constitution.39 Both in Kesavananda Bharathi case and Minerva Mills case the Supreme Court, in arriving at its conclusions, made extensive reference to judicial decisions from the usa and other common law jurisdictions as well as to academic literature. In Kesavananda Bharati, Sikri C.J. drew assistance from Privy Council decisions that had construed the Constitution of Ceylon (Sri Lanka since 1972) where it had said obiter that Ceylon Constitution being a controlled Constitution there could be constitutional provisions that Parliament could not amend expressly or by implication.40 The Chief Justice made extensive reference to judicial decisions and academic writings in the common law world to conclude that Parliament has the power to amend the Constitution, provided that no such amendment has the effect of destroying the substance or the basic features of the constitution. Sikri C.J. identified the following as the basic structure or the essentials of the Constitution: (1) Supremacy of the Constitution; (2) Republican and Democratic form of Government. (3) Secular character of the Constitution; (4) Separation of powers between the Legislature, the executive and the judiciary; (5) Federal character of the Constitution. 39 40

air 1973 SC 1461. The reference was to the Privy Council opinions in The Bribery Commissioner v. Ranasinghe [1965] a.c. 172 and Liyanage v. The Queen [1967] 1 AC 259. See generally M.J.A. Cooray, Judicial Role Under the Constitutions of Ceylon/Sri Lanka: An Historical and comparative Analysis (Colombo, Lake House Investments: 1982) and ‘Three Models of Constitutional Litigation: Lessons from Sri Lanka’, 21 Anglo-American Law Review 430–448 (1992).

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Some Observations on the Use of Foreign Legal Material by the Supreme Court of India

Indian Supreme Court is in league with constitutional courts of other common law jurisdictions in referring to and deriving guidance from judicial decisions of other common law jurisdictions. The Indian Supreme court has been eager to refer to constitutional jurisprudence of common law jurisdictions, particularly the UK, usa, Australia and Canada, with less frequent reference to other common law countries such as South Africa and Sri Lanka. As a general rule, the Indian Supreme Court has referred to foreign judicial decisions where a similar or analogous question of law had arisen. Even where, perhaps, the question before the court might well have been decided by simply construing the Indian Constitution, the Supreme Court has gone to great lengths to examine the constitutional solutions that foreign constitutional courts have developed thereby keeping pace with the judicial thinking in the rest of the common law world.41 One area where common law judges seek to find common ground relates to rules of interpretation. Rules of statutory interpretation, which subject to some qualification also apply to constitutional interpretation, find their origin in the practice adopted by English judges, and for that reason English judicial decisions and commentary on interpretation are quite frequently referred to by the Supreme Court of India.42 The Supreme Court of India has also found it useful to refer to foreign law and judicial decisions in interpreting common legal concepts, such as natural justice, proportionality, Wednesbury unreasonableness and legitimate expectation.43 The Supreme Court has followed the judicial practice in other common law countries in giving a purposive interpretation to legislation and the Constitution and succeeded in interpreting law and the constitution in such a way as to uphold fundamental rights and freedoms. 41 42 43

For some critical comments on use of foreign judicial decisions as aids to interpretation, see Shubhankar Dam, ‘Parliamentary Privileges as Façade: Political Reforms and the Indian Supreme Court’ [2007] Singapore Journal of Legal Studies 162–183. Such as the ejusdem generis rule: Siddeshwari Cotton Mills (P) Ltd v. Union of India (1989) 2 scc 458. The following are cases selected at random. See on proportionality and Wednesbury unreasonableness Om Kumar v. Union of India (decided on 17 November 2000, unreported); on legitimate expectation Sethi Auto Service Station v. Delhi Development Authority (2009) 1 scc 180; on natural justice Swadeshi Cotton Mills v. Union of India 1981 air 818; on the rule of law Supreme Court v. Union of India 1993 air 2444; and on presumption of innocence Chandrappa v. State of Karnataka [2007] Insc 142.

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Reference to foreign judicial decisions and academic writings has been of great value not only to the evolution of Indian law: Indian evaluation of foreign jurisprudence is of equal value to other common law jurisdictions. Indian judicial decisions and innovations that the Supreme Court succeeded in making have been cited in almost all common law jurisdictions. Indian Supreme Court has not only referred to foreign decisions as an aid to interpretation, it has also developed on lessons learnt in other countries to develop unique Indian concepts. Public interest litigation is such an Indian development.44 44

For a thorough analysis of the development and place of public interest litigation in Indian constitutional set up, see Arun K. Thiruvengadam, ‘In Pursuit of “the Common Illumination of our House”: Trans-judicial influence and the origins of pil jurisprudence in South Asia’, 2 Indian Journal of Constitutional Law 67–103 (2008).

The Practice of Comparative Law by the Supreme Courts of Australia and New Zealand Maurilio Gobbo 1

Foreword: English Common Law and the Unifying Activity of the Judicial Committee

Covering the same topic again after more than ten years is like resuming a ­journey on a path that has changed in the meantime. This is particularly true when referring to two legal systems that have profoundly developed through a series of almost undetectable changes prompted by a constant process of actualisation of their case law, equalling or even superseding that of other common law systems.1 Just as finding a new way forward in the here and now requires that we first identify the milestones originally marked, similarly, these lines intend to recall the salient features of the research previously conducted with the aim of resuming it and, if needed, changing the reasoning. In pursuing this aim, the interpretive approach underlying this work needs to be explicitly stated. The interpretation provided herein is indeed affected by the perspective of the author, who is fully aware that the legal systems dealt with have specific characteristics and differ considerably from those in Europe. Hence, the author has deliberately chosen to make use of conceptual tools belonging to continental jurists. In other words, this work does not seek to carefully examine all the judgments where the apical courts have resorted to comparative law, nor deal with the complex theoretical issues underlying the solutions occasionally adopted. As for those aspects, the Australian and New Zealand legal scholars can indeed provide clear and detailed insights.2 Within the framework of this work, the continental European jurist instead endeavours to examine the Austral landscape by keeping a certain distance from it. The objective is to obtain the same effect as that achieved when taking a photo from a distance using a wide-angle 1 M. Gobbo, L’utilizzo giurisprudenziale della comparazione nell’ordinamento australiano e neozelandese, in G.F. Ferrari – A. Gambaro (a cura di), Corti nazionali e comparazione giuridica, Studi per i Cinquanta anni della Corte costituzionale, Napoli, 2007, 207 ff. 2 As for Italian legal scholars, the topic has been widely explored in C. Bassu, Comparazione giuridica e diritto giurisprudenziale, L’esperienza delle Corti di vertice di Australia e Nuova Zelanda, Roma, 2013, 55 ff.; Id., Tutela giurisdizionale dei diritti e diritto comparato. Esperienze dagli antipodi, Padova, 2017.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_008

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lens: a broader, though less detailed, picture is shown. This work will take an historical and diachronic approach. It will focus on the major changes that the Australian and New Zealand courts of last resort have undergone, with the aim of comparing different approaches to foreign legal systems. Insights will be offered on how the apical courts carry out their careful diachronic examination – which is also relevant when they make a synchronic comparison with other systems deemed to be similar – by focusing specifically on the historical roots of the legal systems under examination and their guiding principles. First of all, it should be underlined that the choice of comparison as a tool adopted by both Australian and New Zealand judges emerged from the analysis of the events that led to the birth of their respective constitutional systems. Specific mention ought to be made of the different solutions they have adopted to set themselves apart from Britain, and their diverse manifestations of the constituent power.3 Solutions adopted by the two legal systems to assert their full sovereignty may coincide or be completely opposed, thus marking a profound difference between them. Despite that, common ground can be found in the way their domestic Courts differently abide by English precedents (both in time and space), especially those from the Judicial Committee of the Privy Council, which has long acted as court of last resort in those legal systems that have gained their independence and sovereignty some time ago, such as Australia and New Zealand. The Judicial Committee was established in 1833 to act as a restricted committee of the Privy Council to provide technical and legal advice to the Crown. Although it formally belongs to the reference jurisdiction, it has actually always possessed the jurisdictional power of a court of last resort.4 Formally, the decisions of the Judicial Committee are not as binding as those of other common law courts. However, on the basis of the authority claimed by it, its decisions have always been considered more binding than a mere persuasive precedent.5 Specifically, in the exercise of its nomophylactic power in 3 P. Oliver, The Constitution of Indipendence. The Development of Constitutional Theory in Australia, Canada and New Zealand, Oxford, 2005. 4 F. Safford, G. Wheeler, The Practice of the Privy Council in Judicial Matters, London, 1901; F. Pollock, The Jurisdiction of the Privy Council, in 7 J. Society of Comparative Legislation, 1906, 330 ff.; G. Rankin, Judicial Committee of the Privy Council, in 7 Cambridge L.J., 1939, 11 ff.; P.A. Howell, The Judicial Committee of the Privy Council 1833–1876: Its Origins, Structure and Development, Cambridge (U.K.), 1979. 5 As can be noticed starting from Hull v. Mc Kenna (1926) IR 402.; R.J. Walker, The English Legal System, 6th ed., London, 1985, 187 ff.; S. De Smith, R. Brazier, Constitutional and Administrative Law, 6th ed., London, 1990, 155 ff.; A.W. Bradley, K.D. Ewing, Constitutional and ­administrative law, 12th ed., London-New York, 2002, multis locis., and R. Cornes, The UK Supreme Court, in New L.J., 2003, 1018 ff.

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the last-resort jurisdiction, no hindrance has ever been posed to its unifying action regarding the interpretation of positive law. A major example of this is the compliance of the applicable law with parameters provided by common law and constitutional rules.6 2

Effect of English Case Law on the Australian Legal System: From Binding Precedent to Comparison from a Persuasive Perspective

What has been presented thus far helps us to understand how English law, by means of the last resort jurisdiction of the Privy Council, has heavily affected Australian law. This is despite the fact that over time fewer and fewer issues concerning the implementation of constitutional principles or federal laws have been submitted to the Judicial Committee.7 Over the years, it was mainly the activity of the High Court (acting as apical Court) in unifying the interpretation of both state and federal lower courts, which contributed to the creation of a specific case law apparatus within a decentralised system of judicial review of legislation.8 Under Section 75 of the Constitution, the High Court has exclusive jurisdiction over certain disputes. Furthermore, federal law (under Section 76 of the Constitution) can confer upon the High Court more functions such as interpretation of the Constitution, judicial review of federal laws, and resolution of conflicts between laws on the same or different levels of the hierarchy.9 As 6 R. Haldane, The Work for the Empire of the Judicial Committee of the Privy Council, in 1 Cambridge LJ 1922, 143; K. Roberts-Wray, Commonwealth and Colonial Law, London, 1966, 461 ff.; D. Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–1986, Manchester, 1987. 7 P. Mitchell, The Privy Council and the Difficulty of Distance, in 36 Oxford J. Legal Studies, 2016, 26 ff. For a brief historical overview, see M. Gobbo, Costituzioni federali anglosassoni, Torino, 1994; Id., Federalismo, autonomia e decentramento negli ordinamenti australi di matrice britannica, in Quad. cost., 1995, 445 ff.; T.E. Frosini, Le “derivazioni” dirette del sistema inglese: Australia, Canada e Nuova Zelanda, in P. Carrozza, A. Di Giovine, G.F. Ferrari (eds.), Diritto costituzionale comparato, I, Roma-Bari, 2009, 5 ff.; C. Bassu, Australia, Bologna, 2012. 8 M. Crock, R. McCallum, Australia’s Federal Courts: Their Origins, Structure and Jurisdiction, in 46 South Carolina L. Rev., 1995, 719 ff.; L. Zines, The High Court and the Constitution, 4th ed, Sydney, 1997, 210 ff.; B. Opeskin, Cross-vesting of Jurisdiction and the Federal Judicial System in B. Opeskin, F. Wheeler (eds), The Australian Federal Judicial System, Carlton (South Victoria), 2000, 299 ff.; R. Sackville, The re-emergence of federal jurisdiction in Australia, in 21 Australian Bar Rev., 2001, 3 ff.; B. Galligan, The Politics of the High Court, St. Lucia (Queensland), 1987, 39 ff.; L. Zines, Cowen and Zines’s Federal Jurisdiction in Australia, 3rd ed., Sydney, 2002, 51 ff. 9 P.H. Lane, Lane’s Commentary on The Australian Constitution, 2nd ed., Sydney, 1997, 632 ff.; L. Zines, Cowen and Zines’s Federal Jurisdiction in Australia, 3rd ed., Sydney, 2002, 49 ff.

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the constitution does not expressly provide for the power of judicial review,10 the Judiciary Act 1903, the Federal Court of Australia Act 1976, and the High Court of Australia Act 1979 have shaped a decentralised judicial system with certain characteristics that, through careful self-restraint, tend to concentrate the judicial review on the apex court.11 Any constitutional issues may be submitted to the court on appeal incidenter tantum. However, they can be also raised in direct appeal by the Prosecutor General of a state against any federal laws undermining any of the state’s legislative competences. Or, such matters can be raised by the federal Prosecutor General against any state law encroaching upon matters that are exclusively reserved for the Commonwealth.12 Throughout the years, such factors have contributed to emphasising the importance of the High Court as interpreter of the “spirit” of the Constitution. This role gains even more importance when we consider how rigidly the Constitution treats matters of constitutionality.13 Furthermore, the decision on the constitutional relevance of a dispute lies with the Court itself. As a consequence, the fields of intervention of the judicial review, which was concretely established during the colonial period, change according to the powers that the Court intermittently recognises for itself.14 As such, protection of the “Organic law of the Constitution” (as defined by Judge Isaacs in 1908) should always be regarded as the unifying principle of the High Court when “Interpreting a word or phrase of the Constitution”.15 Such a wide scope of intervention includes the identification of the limits to the exercise of ordinary state or federal legislative competence as well, as the judicial review has the inherent power to clearly establish “…the actual operation of the law in creating, changing, regulating or abolishing rights, duties, powers or privileges…”.16 When a provision is 10 11 12 13 14 15 16

H. Patapan, Politics of Interpretation, in 22 Sydney L. Rev., 2000, 247 ff.; A. Mason, The Australian Constitution in Retrospect and Prospect, in R. French, G. Liddel e C. Saunders (eds.), Reflections on the Australian Constitution, Sidney, 2003, 20 ff. L.J.W. Aitken, The High Court’s Power to Grant Certiorari. The Unresolved Question, in 16 Fed. L. Rev., 1986, p. 370 ss.; J. Goldsworthy, Realism about the High Court, in 18 Fed. L. Rev., 1989, et 40 seq. D.F. Jackson, Leave to Appeal, in T. Blackshield, M. Coper and G. Williams (eds), Oxford Companion to the High Court of Australia, Sydney, 2002, 425 ff. D.F. Jackson, Practice in the High Court of Australia, in 15 Australian Bar Rev., 1997, 55 ff. J. Kirk, Rights, Review and Reasons for Restraint, in 23 Sydney L. Rev., 2001, 19 ff.; M. Gleeson, The State of the Judicature, in 74 Australian L. J., 2000, 147 ff.; D.F. Jackson, Practice in the High Court of Australia, in 15 Australian Bar Rev., 1997, 55 ff. On judge Isaac, Chief Justice of the High Court (and former delegate to the constitutional Convention of 1898), see H. Patapan, Politics of Interpretation, supra n. 10, 247 ff. B. Galligan, The Politics of the High Court, St. Lucia (Queensland), 1987, p. 39 ss.; L. Zines, Cowen and Zines’s Federal Jurisdiction in Australia, 3rd ed., Sydney, 2002, 51 ff.; M. Crock, R.

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declared unconstitutional by the High Court, it is no longer enforceable because it ceases to be a source of applicable law. If a law is found to be unconstitutional in parte qua, the whole act is generally presumed to be inapplicable. An exception is made when the existing legislation thus resulting is compliant not only with the Constitution and common law, but also with the ratio of the law and the intentio legislatoris.17 As for the High Court’s comparative approach, the decision to resort to foreign legal systems seems to be embedded in the genetic code of the Australian Constitution. This can be witnessed in the federal model shaped by the founding fathers who drew inspiration from the Swiss federal model, enshrined by the Swiss constitution, and especially from the United States model. For the latter, extensive inspiration was drawn from the combination of federal state and parliamentary government described in the British North America Act, which is to say the Constitutional Charter of Canada since 1867.18 In this regard, the historic judgment of Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd of 1920 is noteworthy in many respects.19 It was on that occasion that the High Court, seeking to establish the independence of the judiciary power, made it clear that, unlike in the English system, the separation of powers in the Australian system is implicit, as the Australian founding fathers intended to take the United States system as a reference.20

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McCallum, Australia’s Federal Courts: Their Origins, Structure and Jurisdiction, supra n. 8, 726 ff.; contra J. Goldsworthy, Realism about the High Court, in 18 Fed. L. Rev., 1989, 40 ff. M. McHugh, The Law-making Function of the Judicial Process, in 62 Australian L. J., 1988, 116 ff.; D.F. Jackson, The Lawmaking Role of the High Court, in 11 Australian Bar Rev., 1994, 1 ff. A. Watson, Legal Transplants and Law Reform, in 92 L. Quarterly Rev., 1976, 79 ff.; E. Stein, Uses, Misuses and Nonuses of Comparative Law, in 72 Northwestern U.L.Rev., 1977, 198 ff.; N. Aroney, Comparative Law in Australian Constitutional Jurisprudence, in 26 U. Queensland L.J. 2007, 317 ff. Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd (1920) 28 clr 129. V.G. ­Williams, Engineers is Dead, Long Live the Engineers, in 17 Sydney L. Rev., 1995, 62 ff.; M. Evans, Engineers: The Case that Changed Australian Constitutional History, in Giornale di Storia Costituzionale, 2012, 65 ff. J. McIntyre, L. Neudorf, Judicial Review Reform: Avoiding Effective Review through Procedural Means?, in Oxford University Commonwealth Law Journal, 2016, 65 ff.; A discerning view on the separation of the jurisdiction, that according to the most conservative jurists ought to be considered a genuine separation of powers, is given by O. Dixon, The Law and the Constitution, in 51 L. Quarterly R., 1935, 606 ff. and more recently by P.H. Lane, The New Federal Jurisdiction, in 54 Australian L. J., 1980, 11 ff.; L. Street, The Consequences of a Dual System of State and Federal Courts, in 52 Australian L. J., 1978, 434 ff.; H. Gibbs, The State of the Australian Judicature, in 55 Australian L. J., 1981, 677 ff.; A.J. Rogers, State/Federal Court Relations, ivi, 630 ff.; P.H. Lane, The New Federal Jurisdiction, in 54 Australian L. J., 1980, 11 ff.

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As far as judicial review specifically is concerned, the Court, in its s­ elf-restraint function, has always held in special consideration the case law of the Supreme Court of the United States.21 Rather meaningful in this regard is the case Australian Communist Party v. Commonwealth, in which the High Court resorted extensively to the well-known reasoning of Marshall in Marbury v. Madison, thus reaching a similar conclusion: the judicial review, though not expressly stated in the Constitution, is intrinsically tied to a constitutional model based on a supremacy clause enshrined by a rigid Constitution. And this applies both to the Australian and U.S. systems.22 The Australian High Court has widely resorted to the case law of the Supreme Court of the United States, including when dealing with the protection of individual rights.23 As Australian colonial law was mainly based on British constitutional heritage, especially as far as non-derogable rights and guarantees were concerned, the Australian founding fathers deemed it appropriate to partially depart from it. They shaped the freedom of religion (Section 116), upon the model of the First Amendment of the United States Constitution. Exception was made with regard to the freedom of thought, which was deemed to be already adequately safeguarded by the fundamental English charters. Furthermore, the High Court laid down that the Australian Constitution, by providing for a representative State and a responsible government, enshrines the freedom to express any political rights free from any interference from either the legislative or from the executive powers. Given the increasing emancipation of Australian common law, the High Court deemed that Section 116 alone could adequately safeguard the freedom of thought as well. Moreover, in order to establish a bond between such a right and a specific constitutional provision, in Adelaide Company of Jehovah’s Witnesses v. Commonwealth of 1943,24 explicit reference was made to what the Supreme Court of the United States had laid out in similar cases.25 21

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P. von Nessen, The Use of American Precedents by the High Court of Australia, 1901–1987, in 14 Adelaide Law Review, 1992, 181 ff.; G.L. Davies, M.P. Cowen, The Persuasive Force of the Decisions of United States Courts in Australia, in 15 Australian Bar Rev., 1996, 28 ff.; C. Saunders, The Use and Misuse of Comparative Constitutional Law, in 13 Indiana Journal of Global Legal Studies, 2006, 37ff. Australian Communist Party v. Commonwealth (1951) 83 clr 1, 262–263, making reference to R. v. Barger (1908) 6 clr 41. V.O. Dixon, Marshall and the Australian Constitution, in Australia Law Journal, 1955, 405 ff. C. Bassu, Tutela giurisdizionale dei diritti e diritto comparato. Esperienze dagli antipodi, supra n. 2, 49 ff. Adelaide Company of Jehovah’s Witnesses v. Commonwealth (1943) 67 clr 116. Murdock v. Pennsylvania 319 U.S. 105 (1943); West Virginia Board of Education v. Barnette 319 U.S. 624 (1943); Taylor v. Mississippi 319 U.S. 583 (1943).

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The fact remains that, during most of the past century, English common law and equity rules were fully formally incorporated within the Australian legal system. The regulae iuris thus created became indistinguishable within the legal system, but primacy remained with English law. This had a two-fold cause: on the one hand, the Privy Council was responsible for harmonising common law throughout the whole empire; on the other hand, abidance by the precedents of the House of Lords stemming from the self-restraint bonds established by both the High Court and Australian judges.26 To determine when and to what extent the approach of the Australian courts has changed when taking into consideration the decisions of judges of other common law countries, we need to identify the causes and the process leading to the weakening of English law and its unifying role. This paved the way for silent affirmation of an autonomous Australian common law which loosened its ties with the strictly Anglo-Saxon procedural theories: strict legalism and the merely declarative nature of rulings.27 In Parker v. The Queen28 the Australian High Court was bitterly criticised (including internally) for having departed from the consolidated case law of the House of Lords.29 However, Viro v. The Queen30 became a turning point in the journey towards Australian judicial independence. On that occasion, the High Court stated that from that moment onwards it would no longer feel constricted by the decisions of the Privy Council. At the same time, it also reasserted its own utmost supremacy over the state supreme courts. The latter

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W.N. Harrison, Precedent in Australia, in 7 Australian Law Journal 1934, 405 ff.; Z. Cowen, The Binding Effect of English Decisions upon Australian Courts, in 60 Law Quarterly Review 1944, 378 ff.; A. Castles, The Reception and Status of English Law in Australia, in 2 Adelaide L. Rev., 1963, 1 ff. They were subjected to such a profound influence that Judge Starke, of the Supreme Court of the State of Victoria, in 1975 stated that a decision of the English Court of Appeal could be disregarded only on exceptional cases. Pratt Glodsmith v. Pratt (1975) 378, 391. V.J. Chen, The Use of Comparative Courts by Courts: Australian Courts at the Crossroads, in U. Drobnig, S. Van Erp (eds.), The Use of Comparatve Law by Courts, The Hague-London-Boston, 1999, 25 ff. O. Dixon, Concerning Judicial Method, in 29 Australian L.J., 1956, 468 ff.; M.H. McHugh, The Judicial Method, in 73 Australian Law Journal, 1999, 37 ff.; S. Walpola, The Development of the High Court’s Willingness to Overrule Common Law Precedent, 45 Fed. L. Rev., 2017, 291 ff. (1963) 111 clr 610. E. St John, Lords Break from Precedent: an Australian View, in 16 International and Comparative Law Quarterly, 1967, 808. dpp v. Smith (1961) AC 290. A.R., Blackshield, The Abolition of Privy Council Appeals: Judicial Responsibility and ‘The Law for Australia, Adelaide, 1978, 47 ff. (1978) 18 alr 257.

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would abide by the Orders of the Privy Council only when no precedents from the Australian High Court existed.31 It had become inconceivable that a considerable part of Australian law was formed in England rather than Australia. This was due to the fact that a significant part of Australian common law was still under the control of the Privy Council which, as court of last resort, had the power to unify legislative interpretation and judicial law formation.32 Many other former colonies, such as Canada, had considerably limited such intervention with the introduction of the Statute of Westminster in 1931, leading to its complete termination in 1949. In Australia, on the contrary, resort to the Judicial Committee of the Privy Council was limited significantly following approval of the Australia Act in 1986. It was then deemed to be precluded for disputes which had already been submitted to the final judgment of State Supreme Courts. Nevertheless, it ought to be noted that increasingly fewer matters regarding the application of constitutional principles or federal law were being submitted to the Judicial Committee even before this change was formally introduced. Following the Australia Act 1986, Privy Council appeals of last resort were terminated and the precedents of the Judicial Committee ceased to be binding for the Australian common law. Acknowledging what they had concretely been witnessing in Australian case law, formal emancipation was finally established. Australian case law was entering a new era following that “… with the demise of Privy Council appeals, we, not the English, are the ultimate arbiters of the law’s shape and direction”.33 As Australian common law moved away from English common law, comparison started to be adopted by Australian judges. English precedents were no longer perceived monistically as belonging to a comprehensive system, but instead viewed as a foreign legal system to be approached in a comparative way.34 This new approach was made clear by the High Court as far back as Cook v. Cook.35 English binding precedents were regarded as mere obiter dicta with 31 32 33 34

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W. Pengilley, Articles: The Privy Council Speaks on Essential Facilities Access in New Zealand: What are the Australasian Lessons?, in 3 Competition & Consumer L. J., 1995, 36 ff. Viro v. The Queen (1978) 18 alr 257. S. Walpola, The Development of the High Court’s Willingness to Overrule Common Law Precedent, supra n. 27, 291 ff. P.D. Finn, Commerce, the Common Law and Morality, in 17 Melbourne University Law Review, 1989, 87 ff.; M. Redfern, Case Notes: The Obligations of a Tenancy Lawyer to Advise Clients, in 4 Australian Property L. J., 1996, 17. A. Mason, The Break with the Privy Council and the Internationalisation of the Common Law, in Peter Cane (ed.), Centenary Essays for the High Court of Australia, ChatswoodAustralia, 2004, 66 ff.; S. Kiefel, English, European and Australian Law: Convergence or Divergence, in 79 Australian Law Journal, 2005, 227 ff. (1987) 61 aljr 25.

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purely persuasive power, like any other judgments issued by any other common law judge.36 3

The Use of Comparative Law and Adaptation of the Case Law in the Formation of Australian Common Law

Australian courts subsequently ceased to treat English law as a higher corpus of rules within the same legal system and instead began to consider it as a separate common law system which needed to be carefully studied to construct an autonomous technical and cultural heritage. Today, English case law is still the preferred reference model and an important pull factor for Australian judges. They are aware that the common law they apply, despite having departed from the English model, and notwithstanding some differences,37 shares many aspects with other common law systems applicable in England and elsewhere.38 In this regard, the above-mentioned Cook v. Cook 1986 judgment in which the High Court of Australia expressed the hope “…that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of United Kingdom courts just as Australian courts benefit from the learning and reasoning of other great common law courts is quite significant”.39 From that moment on, legal scholars started to stress the need to rely on relevant aspects of comparative law, the principles of international law and 36 37

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A. Mason, Jurisdictional and Procedural Constraints on the Evolution of Australian Law, in 10 Sydney L. Rev., 1984, 253 ff.; J. Toohey, Towards an Australian Common Law, in 6 Australian Bar. Rev., 1990, 155 ff. The break with the English system was formally acknowledged in 1988 with the amendment to article 80 of the Commonwealth Judiciary Act 1903. It provided that from that moment onwards English common law should be intended as common law in Australia. J. Toohey, Towards an Australian Common Law, supra n. 36, 185 ff.; L. Zines, The Common Law in Australia: its nature and constitutional significance, in 32 Federal Law Review, 2004, 337. This approach towards foreign law was favoured by a revamped interest in the international community and an endeavour to adapt to obligations deriving from it, as clearly retraced by A. Mason, The Influence of International and Transnational Law on Australian Municipal Law, in 7 Pub. L. Rev., 1996, 20 ff. In addition to the judgment, which will be analysed in detail below, see also Waltons Stores (Interstate) Ltd v. Maher (1988) 164 clr 387; Street v. Queensland Bar Association (1989) 168 clr 461. Cook v. Cook, hca 73, 1986. Compare V.C. Jackson, Narratives of Federalism:Of Continuities and Comparative Constitutional Experience, in 51 Duke L,aw Journal, 2001, 272 ff., and the detailed portrait by C. Bassu, Comparazione giuridica e diritto giurisprudenziale, L’esperienza delle Corti di vertice di Australia e Nuova Zelanda, supra n. 2, 55 ff.

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the decisions of foreign courts, both for defining the scope of judge-made law and interpreting the laws resulting from legislative activity.40 Therefore, in order to assess whether the decision of a foreign court can be used for persuasive purposes, the comparative method can help in many regards. First of all, it helps identify and classify legal problems underlying the issue under examination.41 And from a pragmatic point of view, resorting to foreign precedents is useful for reaching a decision and adequately supporting its grounds.42 Although Australian courts seek the support of other common law experiences to deal with civil, commercial and especially constitutional law issues, the influence of the British tradition is particularly strong in the criminal law field. One of the most meaningful examples of this is the Dietrich v. The Queen case43 on the protection of fundamental rights in court proceedings. On that occasion, the High Court made a two-fold comparison: from a methodological point of view, it followed the procedures of English common law to seek the principles of customary and legislative international law; from a substantive point of view, it used international law for interpretative purposes, regardless of whether such law had been formally incorporated.44 The Dietrich case was dealt with by the High Court according to the comparative law approach and the principles of international law. Such an approach led the High Court to reverse a precedent of its own, according to which the right to legal aid did not imply ipso facto financial support from the State,45 and influenced the application of the domestic common law.46 By making 40

A. Mason, The Relationship Between International Law, National Law, and its Application in National Courts, in 18 Commonwealth L. Bulletin, 1990, 750 ff. 41 In this regard, Australian legal scholars refers to classical works by Markesenis, Comparative Law – A Subject in Search of an Audience, in 53 Mod. L. Rev., 1990, 1 ff.; J. Langbein, The Influence of Comparative Procedure in the United States, in 43 Am. J. Comp. L., 1995, 545 ff.; B. Markesenis, Judge, Jurist and the Study and Use of Foreign Law, in 109 L. Quarterly Rev., 1993, 622 ff.; A. Mason, Changing the Law in a Changing Society, in 67 Australian L. J., 1993, 568 ff. 42 G.L. Davies, M.P. Cowen, The Persuasive Force of the Decisions of United States Courts in Australia, in 15 Australian Bar Rev., 1996, 1. 43 (1992) alr 385. 44 C. Saunders, A. Stone, Reference to Foreign Precedents by the Australian High Court: A Matter of Method , in T. Groppi, M.C. Ponthoreau (eds.), The Use of Foreign Precedents by Constitutional Judges, Oxford – Portland (OR), 2013, 13 ff. 45 McInnis v. R. (1979) 27 alr 449. 46 S. Donaghue, Balancing Sovereignty and International Law: The Domestic Impact of International Law in Australia, in 17 Adelaide L. Rev., 1995, 213 ff.; M. Kirby, Constitutional Law and International Law: National Exceptionalism and the Democratic Deficit?, in 12 U. Notre Dame Austl. L. Rev., 2010, 95, at 121.

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reference to the Jago judgment,47 Australian judges were able to resort to the principles of customary and legislative international law to back the interpretation and development of common law,48 as they had learnt from the English courts.49 The adoption of a regula iuris of English origin, enabled the Australian High Court to interpret extensively the rules to be applied in the Dietrich case. The principles enshrined by article 14 (3) (d) of the iccpr were chosen as an interpretive tool as they guaranteed the inalienable right of defence at any stage of the proceedings.50 In addition to the application of the international law, according to the criteria of the English case law, the Dietrich case saw the extensive use of precedents from other foreign common law jurisdictions, especially Canada, New Zealand and the United States, but also Eire and India.51 The Mabo v. The State of Queensland52 case, 1992, is of paramount importance for Australian constitutional history. It shortly preceded the Dietrich judgment and it clearly anticipated some of the issues that we have just touched upon (i.e. the need for substantial justice, acknowledgement of fundamental rights, compliance with international obligations and so on). Furthermore, it redefined and consolidated the principles of Australian common law. In this case, the High Court denied the existing convention ab imemorabilia, according to which Australia ought to be considered terra nullius before it was annexed to the English crown, and recognised for the aborigines and islanders of Torres Strait an original property title dating back to before the first English settlement. This was made possible specifically by resorting to foreign and international law.53 Of the 14 precedents cited in this judgment, only three were Australian, while three were English, four Canadian, two from New Zealand, one from the United States, and one from the International Court of Justice.54

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Jago v. District Court of New South Wales (1989) 168 clr 23. Judge Dawson expressed scepticism on the use of principles of international law to resolve ambiguities or overcome shortcomings in common law: Dietrich v. R. (1992) alr 385, 426. Court of Appeal in Derbyshire Country Council v. Times Newspapers Ltd (1992) 3 wlr 28. Human Rights Committee in Pinto v. Trinidad & Tobago CCPR/C/39/D/232/1987. For Ireland, see The State (Heady) v. Donoghue (1976) IR, 350; For India, see Hoskot v. State of Maharashtra (1979J 1 scr (India) 192; Hussainara Khantoonn v. Home Secretary (1979) 3 scr (India) 760. (No 2) (1992) 175 clr 1. C. Oguamanam, Indigenous Peoples and International Law: The Making of a Regime, in 30 Queen’s L.J., 2004, 348 ff. Mabo v. The State of Queensland (No 2), (1992) 175 clr 1, on which U. Secher, The Meaning of Radical Title: The Pre-Mabo Authorities Explained, in 11 Australian Property L. J., 2005,

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The reasoning of the judgment first carefully examines the prerogatives of the High Court in applying the Australian common law in harmony with the principles of international law and applying foreign law mutatis mutandis, by analogy.55 At its discretion, the apical court is deemed to be free to seek the support of a different legal system and adapt it in a harmonious way, albeit while avoiding changing it completely, in order to adjust the concept of social justice to current times. After having clarified the concept of Supremacy of the Crown towards the colony by distinguishing it from interest in real property, the High Court resorted to the grounds brought in similar cases in other common law jurisdictions. It therefore established that changes in territorial sovereignty do not affect interests in real property and, as such, do not undermine the native title of aboriginal communities.56 The native title then appeared for the first time in Australian law. The grounds of the judgment further defined the concept and were strongly supported by extensive use of the Canadian,57 New Zealander and United States case law.58 As recalled by legal scholars, in Mabo the holding did not stem from current circumstances, nor from a specious academic

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1 ff.; M. Brabazon, Mabo, The Constitution and The Republic, in 11 Australian Bar Rev., 1994, 1 ff. In this regard, Justice Brennan in The Council of the Shire of Sutherland v. Heyman (1985) 157 clr 424, 481. K. McNeil, Aboriginal Title and Aboriginal Rights: What’s the Connection?, in 36 Alberta L. Rev., 1997, 117 ff.; R.H. Bartlett, The Content of Aboriginal Title and Equality Before the Law, in 61 Sask. L. Rev., 1998, 377 ff.; S. Mykyta, Losing Sight of the Big Picture: the Narrowing of Native Title in Australia, in 36 Ottawa L. Rev., 2004/2005, 93 ff. Calder v. Attorney General for British Columbia, (1973) 1 s.c.r. 313. As far as native peoples are concerned, ties between Canada and Australia were carefully studied by legal scholars of both countries, as can be witnessed, ex multis, in R. Bartlett, Native Title: From Pragmatism to Equality Before the Law, in 20 Melbourne Univ. L. Rev., 1995, 282 ff.; K. McNeil, The Meaning of Aboriginal Title, in M. Asch (ed.), Aboriginal and Treaty Rights in Canada: Essays on Law, Equity and Respect for Difference, Vancouver, 1997, 135 ff.; M. Walters, Aboriginal Rights, Magna Carta and Exclusive Rights to Fisheries in the Waters of Upper Canada, in 23 Queen’s L. J., 1998, 301 ff.; B. Donovan, The Evolution and Present Status of Common Law Aboriginal Title in Canada: The Law’s Crooked Path and the Hollow Promise of Delgamuukw, in 35 Univ. Brit. Col. L. Rev., 2001, 43 ff.; K. McNeil, Emerging Justice: Essays on Indigenous Rights in Canada and Australia, in 34 Ottawa L. Rev., 2002/2003, 163 ff.; Id., The Vulnerability of Indigenous Land Rights in Australia and Canada, in 42 Osgoode Hall L.J., 2004, 271 ff. Johnson v. McIntosh (1823) 21 U.S. 543., on which see M.S. Ball, John Marshall and Indian Nations in the Beginning and Now, in 33 J. Marshall L. Rev., 2000, 1183 ff., and, in a comparative perspective, C.D. Jenkins, John Marshall’s Aboriginal Rights Theory and its Treatment in Canadian Jurisprudence, in 35 Univ. Brit. Col. L. Rev., 2001, 1 ff. and L. Strelein, Contemporary and Comparative Perspectives on the Rights of Indigenous Peoples: From Mabo to Yorta Yorta: Native Title Law in Australia, in 19 Wash. Univ. J.L. & Pol’y, 2005, 225 ff.

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exercise. It was instead the result of adaptation to the prevailing common law principles of the whole common law world.59 Such principles were reaffirmed the following year, in the judgment Minister for Immigration and Ethnic Affairs v. Teoh,60 when they returned to the issue of the applicability of rules stemming from the ratification of international treaties that had not been formally incorporated in the Australian law.61 Although making a distinction between legitimate expectation and recognition of individual legal rights, the High Court established that international law could also make an important contribution to the interpretation praeter legem or secundum legem in those cases where such law was not directly applicable.62 Resort to the compared constitutional law subsequently played a prominent role in the pursuit of the acknowledgement of an implicit right to political communication. The orientation was set by the above-mentioned judgment Adelaide Company of Jehovah’s Witnesses v. Commonwealth of 1943, which developed further with two 1992 cases, Australian Capital Television Pty Ltd v. Commonwealth63 and Nationwide News Pty Ltd v. Wills64 (1992), and gained momentum with the famous judgment Theophanous v. Herald & Weekly Times Ltd (1994).65 In the reasonings for the first two cases, the key elements of the problem were examined. The reasoning first clarified that within the constitutional fabric we can find a constitutional guarantee safeguarding the freedom of political communication. After having established the existence of such a freedom, it defined its scope of action and limits, thus establishing how individual legal rights could be asserted in proceedings.66 59

60 61

62 63 64 65 66

P.H. Russell, High Courts and the Rights of Aboriginal Peoples: The Limits of Judicial Independence, in 61 Sask. L. Rev., 1998, 247 ff. G. Nettheim, G.D. Meyers e D. Craig, Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Management Rights, Canberra, 2002, 21 ff. (1995) 183 clr 273. The issue concerned violation of articles 3 and 5 of the United States Convention of Children’s rights, obliging signatory states to ensure the highest protection to children. The Convention was ratified by Australia in December 1990 and entered into force in 1991. However, it has ye not been formally incorporated and made enforceable by any Australian law. S. Sheridan, Legitimate Expectations: Where Does the Law Now Lie?, in 87 Canberra Bulletin of Public Administration, 1998, 125 ff. J. Perry, At the Intersection: Australian Law and International Law, in 71 Australian L.J., 1997, 841 ff. Australian Capital Television Pty Ltd v. Commonwealth (1992) 177 clr 106. Nationwide News Pty Ltd v. Wills (1992) 177 clr 1. Theophanous v. Herald & Weekly Times Ltd (1994) 182 clr 104. C. Saunders, The Use and Misure of Comparative Constitutional Law, supra n. 21, 49 ff.

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Referring to the precedents mentioned above, on the occasion of the Theophanous judgment the Court was easily able to reiterate that not only can the constitutional guarantee safeguarding political propaganda be enforced against the legislative or executive power, but it also enjoys constitutional protection against any encroachment, under both constitutional principles and common law rules governing those individual legal rights that are erga omnes included in the field of freedom of thought. The considerable influence of U.S. and Canadian case law on constitutional interpretation can be found in the case commonly known as Marion’s Case.67 The case was highly sensitive from both an ethical/moral and a legal point of view, since it concerned the sterilization of a mentally impaired woman for purposes which were not strictly related to medical treatment.68 To establish whether the intervention of the judge was needed and sufficient, the grounds brought by the High Court distinguished between sterilization for treatment and non-treatment purposes, thus adopting a similar distinction to that made previously by the Canadian Supreme Court;69 Furthermore, the Court clarified the cases in which sterilization could not be deemed to be for treatment purposes. This statement was supported using the holding of a United States case.70 Despite their different social and cultural backgrounds, the foreign precedents led the majority of the Court to acknowledge an individual right enshrined in the Constitution and deriving from the principles of personal freedom enshrined in common law, similarly to the decision adopted in the United States.71 Conversely, a limit to the use of comparison in the constitutional interpretation is posed by the excessive formalism of Australian judges as opposed to those in Canada and the United States. As Australian courts tend not to strictly abide by the actual case in point, they may come up with solutions which are perceived as heterodox in Australia or vice versa.72 A meaningful example of that is the case Ridgeway v. The Queen73 on the exclusion of evidence obtained by entrapment from criminal proceedings, which is normally excluded by the 67 68 69 70 71 72 73

Secretary, Department of Health and Community Services v. J. W. B. & S. M. B. (1992) 175 clr 218. J. Ford, The Sterilisation of Young Women with an Intellectual Disability: A Comparison between the Family Court of Australia and The Guardianship Board of New South Wales, in Australian J. Family L., 1996, et 1 seq. Eve (Mrs) v. Eve (Re Eve) (1986) 31 dlr (4th) 1. Stump v. Sparkman (1978) 435 US 349. M. Bryan, Two Cheers for Welfare: The Marion Case and Sterilisation in Australia, in 5 Tolley’s J. Child L., 1993, 40 ff. L. Priestley, A Guide to a Comparison of Australian and United States Contract Law, in 12 Univ. South Wales L. J., 1989, 4 ff. (1995) 184 clr 19.

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United States courts, but which was considered admissible by the High Court in the framework of Australian criminal law.74 In this process of resorting to foreign law, the Court has always devoted the utmost attention to the political, social and economic background against which foreign decisions were taken. As comparability is a prerequisite for comparison, the Court has strictly relied on similar solutions adopted in similar contexts.75 In Al-Kateb,76 Chief Justice Kirby, in a dissenting opinion on the issue of the restrictive interpretation of the laws on pre-trial detention, cited some United States precedents. He observed how in such cases individual freedom was favoured over pre-trial detention needs, in compliance with “the constant values” safeguarded by the international law.77 The majority of the High Court assumed the positivist and formalist approach of Justice McHugh and limited the scope of examination to the “rules” rather than the “values” of the international law whose principles were deemed to be applicable to the Australian legal system providing they had been officially incorporated.78 4

New Zealand towards Emancipation

In Australia, the application of the comparative method in judicial settings seems to be developing as the country distances itself from England. 74 Principally Sorrells v. United States (1932) 287 U.S. 435; Sherman v. United States (1958) 356 U.S. 369; United States v. Russell (1973) 411 U.S. 423. Compare P. Marcus, V. Waye, Australia and the United States: Two Common Criminal Justice Systems Uncommonly at Odds, in 12 Tulane J. Int’l & Comp. L., 2004, 27 ff.; R.H. Mcadams, Criminal Law: The Political Economy of Entrapment, in 96 J. Crim. L. & Criminology, 2005, 107.; S. Bronitt, Entrapment, Human Rights and Criminal Justice: A Licence to Deviate?, in 29 Hong Kong L.J. 1999, 216. 75 B. Mc Lachlin, The Place of Equity and Equitable Doctrine in the Contemporary Common Law World: A Canadian Perspective in Equity, Fiduciaries and Trusts, Carswell, 1993, 50 ff. News Ltd v. Australian Rugby Football League Ltd (1996) 135 alr 33. As the concept of market applied to sport had to be defined, the grounds clarified that comparison between the United States and Australian economic contexts was by no means possible. See also Breen v. Williams (1994) 35 nswlr 522; (1996) 138 alr 259 (HC). 76 Al-Kateb v. Godwin (2004) 208 alr 124. 77 The leading case among those mentioned ad adiuvandum is Zadvydas v. Davis 533 US 678 (2001). V.M. Kirby, International Law — The Impact on National Constitutions (Paper presented at the 7th Annual Grotius Lecture, Annual Meeting of the American Society of International Law, 30 March 2005); A. Stone, Australia’s Constitutional Rights and the Problem of Interpretive Disagreement, in 27 Sydney L. Rev., 2005, 29 ff.; J. Curtin, Never say Never: Al Kateb v. Godwin, in 16 Sydney Law Review, 2005, 355 ff. 78 A. Rous, Avoiding tragedy: Would the decision of the High Court in Al-Kateb have been any different if Australia had a Bill of Rights like Victoria?, in 18 prl, 2007, 119 ff.

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­ onversely, the British tradition seems to have guided the legal system of New C Zealand towards achieving emancipation. New Zealand partially shares the same institutional developments as Australia, at least until the introduction of the Statute of Westminster in 1931. However, several differences ought to be highlighted in the way the two countries conceive the constitutional system and judicial review. Differently from the Australian federal Commonwealth, the legal system of New Zealand has a prevailing centralist nature. Furthermore, New Zealand does not actually have a real constitutional charter,79 although several acts with constitutional value have been enacted since the introduction of the New Zealand Constitution Act in 1852.80 Furthermore, barely in any other British ex Dominions countries is it possible to find fundamental acts of the English legal system, such as Magna Charta Libertatum del 1215, Confirmatio Chartarum 1297, l’Habeas Corpus Act 1649, Bill of Rights 1689, Act of Settlement 1700, eventually integrated by New Zealand statutory law and especially customary and case law.81 To avoid any ambiguities and clashes in such a quagmire of rules stemming from such different sources, the applicable constitutional law was framed by the New Zealand Constitution Act of 1986. It collected and organised the most important pre-existing constitutional provisions within a single text. Furthermore, it introduced new rules governing the relationships between the government and Parliament, legislative procedures and constitutional guarantees protecting the rights to freedoms (thus anticipating the principle that would expressly be stated in the New Zealand Bill of Rights 1990).82 Moreover, the need for greater legal certainty led to the approval of the Imperial Laws Application Act 1988. It identified the British statute law still in force and, at the same, the criteria for defining its field of application, in harmony with the norms that were enacted by the sources of New Zealand law throughout the years.83 In the framework of such a composite and flexible Constitution, partially composed by customary and conventional law, and partially by statute laws integrated in subsequent years, interpretation of the laws was extremely 79 80 81 82

83

P. Joseph, Constitutional and Administrative Law in New Zealand, 2nd ed., Wellington, 2001, passim. S. Sedley, The Sounds of Silence: Constitutional Law Without a Constitution, in 110 L. Quarterly Rev., 1994, 270 ff.; C. James, Building the Constitution, Wellington, 2000, passim. D. Clark, Legal History: The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law, in 24 Melbourne Univ. L. Rev., 2000, 866 ff. P. Rishworth, G. Huscroft, S. Optican e R. Mahoney, The New Zealand Bill of Rights, Melbourne, 2003, chapter 1; F. Duranti, Ordinamenti costituzionali di matrice anglosassone. Circolazione dei modelli costituzionali e comparazione tra le esperienze di Australia, Canada, Nuova Zelanda e Regno Unito, Roma, 2012, 48 ff. J. Finn, The Imperial Laws Application Act 1988, in 4 Canterbury L. Rev., 1989, 93 ff.

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decentralised, to the point that some believe that judicial review of legislation was totally absent from the New Zealand legal system. This stance was based on rather persuasive reasons, witness the compliance with the traditional English principles of the rule of law and the sovereignty of Parliament which, by establishing the superiority and unquestionability of Parliamentary Acts, have always prevented judges from having jurisdiction over constitutional issues.84 Furthermore, such a stance does not seem to take into due account the role concretely played by the courts of New Zealand. As in any other common law country, the courts, by exercising their jurisdictional power, could not exempt themselves from examining constitutional issues (although they were very careful to avoid classifying them as such).85 As New Zealand lacked a Supreme Court and a judge of last resort (including for the interpretation of written sources and conventions), it had to resort to the Judicial Committee of the British Privy Council which was integrated by the judges of the New Zealander Court of Appeal for the occasion.86 The New Zealand Bill of Rights Act 1990, besides expressly providing for concepts such as judicial review, natural judge, and fundamental rights and freedoms, laid down several constitutional guarantees which were previously only implicitly protected or contained in common law sources.87 Although the courts of New Zealand cannot declare unconstitutionality and as a consequence they lack the power to repeal,88 they can issue pronouncements on their preferred interpretation to be adopted in the light of the Bill of Rights, thus declaring the existence of legislative inconsistencies.89 By exercising such 84

85 86 87 88 89

P. Craig, Formal and Substantive Conceptions of the Rule of Law, in Public Law, 1997, 467 ff.; R. Ekins, Judicial Supremacy and the Rule of Law, in 119 L. Quarterly Rev., 2003, 127 ff.; J. Allan, Paying For the Comfort of Dogma, in 25 Sydney L. Rev., 2003, 63 ff. The problem is also dealt with by the United States legal scholars, e.g. J.L. Hiebert, New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?, in 82 Tex. L. Rev., 2004, 1963 ff. D. Dyzenhaus, Formalism’s Hollow Victory, in New Zealand L. Rev., 2002, 525 ff.; R. Sackville, Courts in Transition: An Australian View, in New Zealand L. Rev., 2003, 185 ff. I Richardson, The Privy Council as the Final Court for the British Empire, in 43 Victoria U. Wellington L.R., 2012, 103.; D. Baragwanath, Later Privy Council and a Distinctive New Zealand Jurisprudence: Curb or Spur?, ivi, 147 ff. J. Allan, Turning Clark Kent into Superman: the New Zealand Bill of Rights Act 1990, in 9 Otago L. Rev., 2000, 613 ff; C. Bassu, Tutela giurisdizionale dei diritti e diritto comparato. Esperienze dagli antipodi, supra n. 2, 109 ff. G. Palmer, Comparative Constitutional Law at Iowa: The New Zealand Constitution and the Power of Courts, in 15 Transnat’l L. & Contemp. Probs., 2006, 557 ff. A.S. Butler, Judicial Indications of Inconsistency – A New Weapon in the Bill of Rights Armoury?, in New Zealand L. Rev., 2000, 43 ff.; J. McLean, Legislative Invalidation, Human Rights Protection and s 4 of the New Zealand Bill of Rights Act, in New Zealand L. Rev., 2001,

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a competence, which is binding under the principles of the stare decisis, the Courts enjoy a sort of “weak form of judicial review” over laws, which can in some respects be compared to certain forms of judicial review in other legal systems.90 In some cases, the Courts may even release a (nonetheless binding) judicial indication of inconsistency to declare incompatibility with the ratio of the New Zealand constitution, resulting from constitutional rules and nonwritten public laws.91 In the execution of this competence, the case law of New Zealand has drawn on several constitutional cases dealt with by foreign judges, especially those in Australia and Canada.92 For example, in Lange v. Atkinson93 the Court of Appeal repeatedly drew on the concepts of “constitutional values” as interpreted in the Australian and Canadian case law.94 Furthermore, both in Tavita v. Minister of Immigration95 and in Sellers v. Maritime Safety Inspector96 the Court of Appeal made persuasive use of both Canadian and Australian precedents to be able to draw on the principles of international law for the protection of fundamental rights, as the Australian High Court had done in the case Teoh97 by resorting to the reasoning of the Canadian Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration).98

90

91 92 93 94

95 96 97 98

421 ff.; P. Joseph, Constitutional Statutes and Implied Repeal, in New Zealand L. Rev., 2003, 416 ff. G. Palmer, Comparative Constitutional Law at Iowa: The New Zealand Constitution and the Power of Courts, supra n. 88, 568 ff.; M. Tushnet, Weak-Form Judicial Review: Its Implications for Legislatures, in 2 New Zealand J. Pub. Int’l L., 2004, 7 ff.; R. Prebble, Constitutional Statutes and Implied Repeal: the Thoburn Decision and the Consequences for New Zealand, in 36 Victoria Univ. Wellington L. Rev., 2005, 291 ff. F. Schauer, The Convergence of Rules and Standards, in New Zealand L. Rev., 2003, 303 ff. J. Allan, G. Huscroft, N. Lynch, The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?, in Otago L. Rev., 2007, 6 ff. (2000) 3 nzlr 385 (CA). M. Principe, The Demise of Parliamentary Supremacy? Canadian and American Influences upon the New Zealand Judiciary’s Interpretations of the Bill of Rights Act of 1990, in 16 Loy. L.A. Int’l & Comp. L.J., 1993, 167 ff.; D. Mullan, The Role for Underlying Constitutional Principles in a Bill of Rights World, in New Zealand L. Rev., 2004, 9 ff. (1994) 2 nzlr 257 (CA). (1999) 2 nzlr 44 (CA). Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 clr 273. M. Gobbi, Drafting Techniques for Implementing Treaties in New Zealand, in 21 Stat. L. Rev., 2000, 71 ff.; D. Dyzenhaus, M. Hunt and M. Taggart, The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation, in Oxford Univ. Commonwealth L. J., 2001, 5; G. Huscroft, Protecting Rights and Parliamentary Sovereignty: New Zealand’s Experience with a Charter-Inspired, Statutory Bill of Rights, in 21 Windsor Y.B. Access Just., 2002, 111 ff.

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The main similarities between the Australian and New Zealander legal systems are found in the safeguarding of native peoples, who eventually found recognition in judicial settings regardless of the degree of protection they enjoyed in the legislation. We briefly explained how in Mabo v. Queensland99 the Australian High Court consistently drew on the Canadian case law which, in turn, was subsequently influenced by Mabo on the occasion of the judgment Delgamuukw v. British Columbia.100 For its part, in Kaihau v. South Waikato District Council,101 the New Zealander Court of Appeal, although it resorted extensively to the concepts of “original title” and “sovereignty claims”, as defined by foreign case law, made sure to further differentiate these concepts, which were originally enshrined in Australian and Canadian precedents, and adapt them to the situation in New Zealand. Judge McGechan, putting forward an argument against Westco Lagan,102 with the purpose of conferring control over the Bill of Rights to the legislator, resorted equally to Canadian and Australian case law to trace the shared origins of common law in the implicit constitutional ties by which legislative discretionality had to abide.103 5

The Supreme Court of New Zealand

The review of the Treaty of Waitangi, introduced in 1985 to increase the Maori’s rights, became the moment to reconsider the Judicial Committee’s role and, eventually, consider the introduction of an ad hoc judicial body with last resort jurisdiction over New Zealand law disputes.104 At the end of a fierce political and scholarly debate, which was translated into institutional action at the end of the 1990s, the House of Representatives, in approving the Supreme Court Act 2003 on 15th October 2003, established the Supreme Court of New Zealand.105 The Court assumed the competences 99 (No 2) (1992) 175 clr 1. 100 (1997) 3 scr 1010. On this “reflected” influence see J. Finn, Australasian Law and Canadian Statutes in the Nineteenth Century: a Study of the Movement of Colonial Legislation Between Jurisdictions, in 25 Dalhousie L.J., 2002, 169 ff. 101 (2001) nzca 323la. 102 Westco Lagan Ltd. v. Attorney General, (2001) 1 n.z.l.r. 40. 103 G. Palmer, Comparative Constitutional Law at Iowa: The New Zealand Constitution and the Power of Courts, supra n. 88, 558 ff. 104 N. Jamieson, The Maori Magna Carta, in New Zealand L. J., 1992, 101 ff.; S. Elias, The Treaty of Waitangi and the Separation of Powers in New Zealand, in B.D. Gray, R.B. McClintok (eds.), Courts and Policy: Checking the Balance, Wellington, 1995, 206 ff. 105 The Supreme Court is composed by five judges appointed by the Governor General (and proposed by the executive), selected from among the most experienced and trained

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formerly exercised by the Judicial Committee of the Privy Council which, in turn, terminated its jurisdiction over New Zealand.106 The Supreme Court Act 2003 expressly confers upon the Supreme Court of New Zealand not only last resort jurisdiction but also the competence “… to recognise that New Zealand is an independent nation with its own history and traditions; and to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history and traditions…”.107 As previously stated, the crucial point lay with a new way of interpreting the Treaty of Waitangi in the light of the living law, since both the Courts of New Zealand108 and the Privy Council itself109 had admitted that a domestic judge would be better able to apply in an innovative way the principles enshrined in such a fundamental act and other constitutional sources. Note that the legislator never used the expression “judicial review”, as if it wanted to show a sort of respect towards Anglo-Saxon formalism. Furthermore, a specific norm of the Supreme Court Act 2003 makes it clear that the creation of a new apical body does not affect in any way the intangible principles of the rule of law and parliamentary sovereignty.110 In short, the Supreme Court is apparently denied the power to review laws enacted by Parliament.111 Although the new act does not envisage a real system of judicial review, its overall ratio undoubtedly intends to confer upon the Supreme Court the competence to interpret the provisions of the constitution, similarly to the powers conferred upon the Australian High Court under Section 76. And it could not be any other way, since enabling an apical body “to enable important legal matters”, within a common law system, inevitably implies (though not expressly stated) that it is deemed to harmonize the correct interpretation of the statutory law and assess incidenter tantum its consistency with constitutional provisions which, since they are not enshrined in a single Fundamental

106 107 108 109 110 111

j­udges. The Supreme Court began to operate fully in July 2004. F. Duranti, L’istituzione della Corte suprema e l’evoluzione del costituzionalismo neozelandese, in Diritto Pubblico Comparato ed Europeo, 2004, 1557 ff. J. Pringle, Leave to Appeal and the Proposed Supreme Court of New Zealand, in New Zealand L. Rev., 2003, 71 ff. See M. Gobbo, L’utilizzo giurisprudenziale della comparazione negli ordinamenti australiano e neo-zelandese, supra n. 1, 208 ff. Lange v. Atkinson (2000) 1 nzlr 262. Treaty Tribes Coalition v. Urban Maori Authorities (1997) 1 nzlr 522. Section 3, Supreme Court Act, 2003, “nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament”. C. Bassu, Comparazione giuridica e diritto giurisprudenziale. L’esperienza delle Corti di ­vertice di Australia e Nuova Zelanda, supra n. 2, 52 ff.

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Charter, are incomparably ductile and fluid.112 Although the Court does not have the power to undertake a judicial review under the Bill of Rights, it is nonetheless required to interpret the law in conformity with the rights enshrined in that fundamental Charter, by striking a balance between the principle of parliamentary sovereignty and a guarantee belonging to a higher rank.113 Although such a system of judicial review cannot be compared to that of Canada or the United States, where the rigidity of their Constitutions enables unambiguous identification of the reference parameters, the Supreme Court does indeed have the power to harmonise the correct legislative interpretation according to constitutional rules, namely the Treaty of Waitangi, the New Zealand Constitution Act 1986, and the New Zealand Bill of Rights 1990.114 The Supreme Court, in carving out its own and completely new role in a self-restraint setting, has since the very beginning openly stated its intention to make extensive use of comparison with other judges and, if needed, even resort to foreign law, such as in Discount Brands Ltd v. Westfield (NZ) Ltd115 on the importance of notification for public participation. In this case, the Court based its reasons on general principles governing administrative acts. However, in a concurring opinion, Judge Keith recalled that the most significant developments introduced in the common law systems were brought about by the case law of the High Court of Australia, and corroborated his reasons by expressly citing a distinguished Australian legal scholar.116 Nonetheless, in Bryson v. Three Foot Six Ltd117 too, the Supreme Court, to distinguish between in fact and in law argumentation, recognised that the dogmatic structure of trial proceedings, as described in the holding, drew on the work of an English scholar.118 In Zaoui v. Attorney-General119 the Supreme Court on appeal examined the case of an Algerian citizen, an asylum seeker without a passport who had 112 D.F. O’Scannlain, Is a Written Constitution Necessary?, in 32 Pepp. L. Rev., 2005, 793. 113 C. Bassu, Comparazione giuridica e diritto giurisprudenziale. L’esperienza delle Corti di vertice di Australia e Nuova Zelanda, supra n. 2, 48 ff.; A. Geddis, Inter-institutional “Rights Dialogue” under the New Zealand Bill of Rights Act, in T. Campbell, K.D. Ewing, A. Tomkins (eds.), The Legal Protection of Human Rights. Sceptical Essays, Oxford, 2011, 95 ff. 114 S. Butler, Strengthening the Bill of Rights, in 31 Victoria Univ. Wellington L. Rev., 2000, 129 ff.; M. Taggart, Administrative Law, in New Zealand L. Rev., 2006, 75; F. Duranti, Ordinamenti di matrice anglosassone, supra n. 82, 64; M. Palmer, New Zealand Constitutional Culture, in New Zeal. Univ. L. Rev., 2007, 565 ff. 115 (2005) 2 nzlr 597 (SC). 116 M. Aronson, B. Dyer e M. Groves, Judicial Review of Administrative Action, 3rd ed., Sidney, 2004, 268 ff.; M. Taggart, Administrative Law, supra n. 114, 81. 117 (2005) 3 nzlr 721. B. Keith, Seeing the World Whole: Understanding the Citation of External Sources in Judicial Reasoning, in nzjpil, 2008, 95 ff. 118 T. Endicott, Questions of Law, in 114 L. Quarterly Rev., 1998, 292 ff. 119 (2005) 1 nzlr 577. B. Keith, Seeing the World Whole: Understanding the Citation of External Sources in Judicial Reasoning, in nzjpil, supra n. 118, 95 ff.

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been imprisoned on a precautionary basis. In redefining its competences in a self-restraint setting, the Court resorted to key concepts originally elaborated by common law case law (namely, the case law of the United States starting from the historical judgment Marbury v. Madison) and subsequently analysed by legal scholars, and recognised the powers that it could exercise incidenter tantum within the framework of its main functions.120 The so-called “inherent jurisdiction of the court” was a widely debated issue. On that occasion the Supreme Court succeeded in fully clarifying all conceptual nuances related to it and distinguished them from the wider issue of the “inherent power”, but it also took on a competence that, according to some authors, did not belong to it.121 The Court also drew on classical contributions by United States scholars in Hansen v. The Queen.122 On that occasion, the Court was called to judge on appeal the correct application by judges of the Misuse of Drugs Act 1975. In doing so, it addressed incidenter tantum a constitutional issue, admitting the possibility of adopting “retrospectively or prospectively overrulings”, including when dealing with the current interpretation of a statute law.123 6

Final Summary

Here follow some brief comments, which are not meant to be conclusive in any way. My comments apply to the present moment, since drawing conclusions about such a developing reality is hardly possible. As for Australia, the foundations for a genuinely independent Australian legal system were laid over 30 years ago. Australia seems to have adopted a cautious, formal approach and a careful, substantive attitude when resorting to foreign precedents. On the one hand, a different political, social or economic background does not always preclude opting for a foreign decision. On the other hand, there is scepticism towards the mere transposition of a regula iuris. The latter, although potentially enforceable within its original legal system, may have considerably different effects when applied to a different context. For this reason, when taking a decision, Australian judges have imposed strict scrutiny to determine whether a society’s specific features should be considered determining factors. However, resorting to precedents from other common law courts is possible only ad adiuvandum to further support the grounds of a decision; the ratio decidendi 120 L. Nottage, Who’s Afraid of the Vienna Sales Convention ? A New Zealander’s View from Australia and Japan, in Victoria U. Wellington L. Rev., 2005, 815 ff. 121 R. Joseph, Inherent Jurisdiction and Inherent Powers in New Zealand, in 11 Canterbury L. Rev., 2005, 220 ff. 122 Hansen v. The Queen (2007) 3 n.z.l.r. 1. 123 P. Joseph, Constitutional Law, in New Zealand L. Rev., 2006, spec. 141 ff.

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of the decision should therefore already be supported by the principles of Australian law. Sir Antony Mason, talking about the use of U.S. precedents, stated that in the framework of judicial law, comparison is a “trackless jungle” where only the bravest and most discerning Australian jurists dare to venture.124 On the other hand, the more recent history of the New Zealand Supreme Court, which is seemingly rather open to foreign experiences, seems to demonstrate the contrary. Its judicial review function – whose purpose is apparently to play a precluding role – has been promptly and concretely embraced. Furthermore, the Supreme Court has stuck to its objective of making extensive use of comparisons with other common law systems, including foreign ones. The systems in Australia and New Zealand may seem to differ considerably; witness the clear and cautious approach of Australian case law, on the one hand, and the brave – or even daring – attitude of the New Zealand S­ upreme Court in the first period of its recent history on the other. Nevertheless, the two l­ egal systems have a few points in common. Since the moment when the ties with English precedents first began to be loosened and disregarding such precedents became increasingly accepted, judges from both systems have become more aware of their creative role in the common law framework, which, in keeping with its Anglo-Saxon tradition, has consistently endeavoured to provide adequate support for the legal grounds of any decision. This demonstrates the profound change that judges, scholars and courts have undergone when approaching foreign law. Furthermore, it ought to be considered that comparative law is based on a subjective stance. This is a distinctive feature of any persuasive factor underlying the logical and psychological process on which judicial reasoning is built. That being so, the effects of comparative law seem to differ quite considerably within the same legal system, depending on the judge or court applying it. Therefore, if courts increasingly resort to decisions from other common law systems for persuasive purposes, the role of apical judges within each system will take on added importance in unifying the correct interpretation of the applicable law. Over the years, the Australian High Court has remarked the reinforcement of its role, which had already been outlined in detail by the legislature implementing the provisions of the Constitution. On the other hand, only in the future will adequate assessment of the Supreme Court of New Zealand be possible. As it builds up its case law, by resorting to the foreign experiences it deems to be closest to its historical and legal culture, it will further define its self-restraint role, thus enabling more accurate assessment. 124 A. Mason, The Use and Abuse of Precedent, in 4 Australian Bar Rev., 1988, 93 ff.

The Comparative Legal Tool-Kit of the Constitutional Court of South Africa Angelo Rinella and Valentina Cardinale 1

Introductory Remarks1

The use of legal comparison tools by constitutional judges founds a precise reference in the constitution of South Africa. According to Section 39, paragraph 1, Cost. When interpreting the Bill of Rights, a Court, tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. The constitution ad interim (1993–1997) had already provided (Sect. 35, paragraph 1) that In interpreting the provisions of this Chapter (Bill of Rights) a Court of law … shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law. The fact that the constituent of the Republic of South Africa has explicitly mentioned the comparison between the instruments at the disposal of the Courts and, most importantly, of the Constitutional Court in relation to the protection of fundamental rights, represents – even before a technical-legal option – a fundamental political choice. A choice of opening up to the comparison with the other democratic systems; comparison which has, moreover, also characterized the entire constituent process.2 1 Angelo Rinella, paragraphs 1–4 and paragraph 6; Valentina Cardinale, paragraph 5. 2 On the constituent process that has led South Africa from a social and legal order based on the apartheid to a democratic system, the literature is indeed exterminated. See, among many contributions: Hassen Ebrahim, The soul of a nation: constitution-making in South Africa, Oxford U.P., Oxford, 1998; Romano Orrù, La costituzione di tutti. Il Sudafrica dalla segregazione razziale alla democrazia della “rainbow nation”, Giappichelli, Torino, 1998; Andrea Lollini, Constitutionalism and Transitional Justice in South Africa, Berghahn Publ., New

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The purpose of this paper is to focus on what contribution came from the legal comparison to the interpretation of the Bill of Rights in the jurisprudence of the South African Constitutional Court. To make a meaning that does not appear purely statistical to the citations and the comparative references of the South African constitutional jurisprudence, it is necessary – in our view – to highlight two preliminary aspects: firstly, what influences have been exercised by foreign legal experiences on the South African constituent process to the point of determining a “transplant” of legal patterns and what role it must recognize to “comparative law” in a radically reformed legal system; secondly, what role is assigned by the political system and the legal system to the Constitutional Court of South Africa, with particular reference to the protection of fundamental rights and freedoms. Thus, the analysis framework that will be used in the examination of constitutional judgments will be illustrated with a view to highlighting the use of legal comparison by the Court in terms of quality rather than quantity. 2

Legal Reference Models

The constitutional history of South Africa has its pinnacle in the transition that in the 1990s led the country from an apartheid based system to a democratic order inspired by the legal models of Western democracies. The peculiar characteristics of that transition made the new legal system particularly fertile and available for legal transplants. Identifying the legal models that have been a reference for South African constituents has two main purposes: the first is to highlight the phenomenon of constitutional borrowing that has qualified the long constituent process in South Africa; the second is to understand whether the comparative activity carried out in the constituent body has had (and still has) its follow-up in the comparative law analysis carried out by the Courts and, in particular, by the Constitutional Court in the exercise of its functions as judge of liberties. In other words, the assumption – we would say somewhat elementary – from which it is useful to move is that the Constitutional Court in looking to foreign law in order to interpret the Bill of Rights primarily looks at those legal systems from which the constituents themselves got formulas and institutes. York-Oxford, 2011; Andrea Lollini, The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law, Utrecht Law Review, Vol. 8, No. 2, pp. 55–87; Heinz Klug, The Constitution of South Africa: A Contextual Analysis, Hart Publ., Oxford-Portland Oregon, 2010; Lauren Segal, Sharon Cort, One Law, One Nation: The Making of the South African Constitution, Jacana Ltd, Auckland Souith Africa, 2011; Daniel Brand, Pierre De Vos, Warren Freedman, South African constitutional Law in Context, Oxford U.P., Oxford, 2015.

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This is evidently a purely logical-systemic constraint, as there is no foreclosure for the ability to report interpretation-comparative activity to sources of different sorts. Moving on to consider the constitutional history of South Africa, it should be remembered that the long negotiating process has been divided into two phases designed to produce two distinct constitutional documents. The first, 1993–1994, produced a provisional constitution with the purpose of fixing the rules of the temporary government system (based on a principle of powersharing), the system of rights and freedoms and the framework of fundamental principles on the basis of which to build a definitive democratic constitutional order (the so-called 34 constitutional Principles). The second phase, which began with the first free elections in 1994, led in 1996 to the approval of the constitution by the constitutional Assembly and its promulgation by the President Nelson Mandela in December of the same year, after the judgment of compliance pronounced by the Constitutional Court. Both constitutional charters were affected by the strong influence of foreign constitutional theories and models, mainly from the common law area. The particular historical circumstances that required the definitive closure of an era and the establishment of a new regime radically different from the previous one encouraged the introduction of foreign legal formulas and institutions. Moreover, the presence of influential academics among councilors of constituents facilitated the process of “importing” rules of foreign origin. In addition to the common law countries, some attention was also paid to the legal tradition of civil law; more precisely, a frequent reference to the German Grudgedetz of 1949 emerges from the analysis of the documents. The reasons that led South African constituents to assume as an exemplary model3 the German one is mainly due to historical-cultural factors. As Basil Markesinis suggests,4 the German doctrine related to the Declaration of Rights under Chapter i of Grundgesetz had already been introduced in South Africa before the constitutional reforms of the 1990s were completed. Let us now consider the Bill of Rights of the South African constitution that constitutional judges can interpret by making use of foreign law. In its structure we can see the evident signs of foreign influences on the South African legal system – and could not be different – but together with components that are part of local legal tradition. 3 On the subject of legal models and the meaning of the concept of “exemplary model”, see Lucio Pegoraro, Angelo Rinella, Diritto costituzionale comparato. Aspetti metodologici, Padova, 2013. 4 Basil Markesinis, Comparative law in the Courtroom and classroom. The story of the Last ­Thirty-Five Years, Oxford-Portland, 2003.

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Indeed, the debate within the technical committee responsible for drafting the constitutional text sometimes led to the timely transposition of clauses taken from foreign constitutions; other times, however, the diversity of views led to the elaboration of hybrid formulas. Among the examples of the first species, the limitation clause of the rights and freedoms referred to in Section 33.1.a provisional constitution should be noted. It draws from Section 1 of the Canadian Charter of Rights, the formula according to which “the rights and freedoms set out in it (the Canadian Charter of Rights and Freedoms) subject only to such reasonable limits as prescribed by law may be demonstrated in a free and democratic society”; instead it is taken from Section 19, paragraph 2, of Grundgesetz, the assertion according to which the rights can be limited to the condition that “the essential content of the right is not denied” (Section 33.1.b). Hybrid formulas, that is to say a combination of foreign sources, were used when political debate got worse and a compromising path was needed to take into account the peculiar South African conditions. It is the case of the clause on the right of property (Sect. 28, Provisional constitution ), about which are easily understandable tensions that had to run between those who held that private property could not be protected to the point of hindering the program of the democratic government to redistribute the lands (anc); and those who wanted to preserve large estates of whites (National Party). The solution came from a combined reading of the v and xiv Amendments of the US constitution, Section 13 of the constitution of Malaysia and the contribution of the German constitutional doctrine.5 The 1996 final constitution added to the Bill of Rights the guarantee of ­socio-economic rights and the concept of substantial equality. For the rest, the declaration of rights remained that of the provisional constitution, keeping – according to widespread opinion – a structure very close to that of the Canadian Charter of Rights and Freedoms.6 5 See Daniel M. Davis, constitutional borrowing: the influence of legal culture and local history in the reconstitution of comparative influence: the South African experience, in i-con, International Journal of Comparative Law, vol. 1, n. 2, 2003, pp. 181–195; Hassen Ebrahim, The Soul of a Nation: constitution -making in South Africa, Oxford, 1998; particularly, see Mattew Chaskalson, Stumbling Towards Section 28: Negotiations over the Protection of Property Rights in the interim constitution, in South African Journal of Human Rigts, 1993, p. 388 ss.; Andries Johannes Van der Walt, The constitutional Property Clause, Cape Town, 1997. D.G. Klein, The constitutional Protection of Property: a Comparison between the German and the South African Approach, in South African Public Law, n. 11, 1996, p. 402 ss. 6 According to Davis (see footnote n. 4, p. 186) the benefits of the Canadian Charter had been widely documented by prof. David Beatty, a Canadian constitutionalist who in 1982 worked as visiting professor at the University of Cape Town. The observation strongly draws

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Thus, the constituent process of the Republic of South Africa has provided fertile soil for legal transplants and opened to the influences of foreign legal doctrine, confirming the decisive role that has been assigned to the legal comparison and which then found its expression in the Sect. 39.1 of the 1996 constitution on fundamental rights and freedoms. But the homologation to Western democratic systems does not go far enough when it comes to applying the new constitutional principles to a society which is light years away from consolidated democratic societies. Just think about the role that play, for the future of the country, the fundamental rights closely linked to the economic and social development of the population. These are rights that can only be interpreted in relation to the particular conditions of the majority of the population, for long years subject to deprivation and discrimination. In this context, the use of the law and the legal cases of Western democracies seems to be of little help.7 3

The Constitutional Court

In one of the first judgments of the South African Constitutional Court, The State v. Makwanyane and Mchunu of 6 June 1995, the first President of the Court, Arthur Chaskalson, argued that the real reason why the Constitutional Court was set up, was to ensure the protection of the rights of minorities, marginalized persons and all those who weren’t in a position to protect their rights through participation in the democratic life of the country. Chief Justice Chaskalson’s words reveal the mission the constitutional judges felt to be fulfilling and, at the same time, the ideological link bind this body to the design of a democratic government in the country. When, in fact, the drafters of the provisional constitution saw the possibility of maintaining the structure of the previous judicial system by investing the Supreme Court in the functions of a constitutional judge, they considered it paradoxical to imagine that those same judges – who had implemented the apartheid regime – could, as a result attention to the role that the doctrinal formant played in the constituent process of the Republic of South Africa. 7 G.J. Van Niekerk, A common law for Southern Africa: Roman law or indigenous African law? in J.E. Spruit, W.K. Kamba, M.O. Hinz (eds), Roman Law at the Crossroads, Cape Town, 2000, p. 83 ss.; see also David Carey-Miller, South Africa: a world in one country on the long road to reality, in A. Harding, E. Örücü (eds), Comparative Law in the 21st Century, London, 2002, p. 297. On the contrary, attention to the South African legal tradition and to the peculiar historical and social conditions of that system is a constant consideration of the Constitutional Court’s reasoning whenever it comes to a comparative inquiry. See infra § 5.

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of the change of regime, become loyal interpreters of the new constitutional norms on fundamental rights. In short, the institution of the Constitutional Court meant to give a strong sign of break with the previous regime, not only in the political, but also in the legal sense. Attributing to the Constitutional Court’s powers to declare null and void a law in conflict with the constitution meant overturning the central idea of parliamentary supremacy. In the transition from the provisional constitution to the final constitution, the provisions on the Constitutional Court have seen a significant evolution that has changed – at least in part – the role of the Court.8 Subsequently, other changes were introduced with the constitution Seventeenth Amendment Act of 2013 [with effect from 23 August 2013 – Proc. R35 / GG 36774 / 20130822]. Now, according to Section 167 of the constitution, the Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges. The Constitutional Court is the highest Court of the Republic and may decide constitutional matters (“a constitutional matter includes any issue involving the interpretation, protection or enforcement of the constitution” 167.7) and any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; furtheremore, it makes the final decision whether a matter is within its jurisdiction. The Constitutional Court has an exclusive competence; indeed, only it may: (a) decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; (b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in Section 79 (the President of the Republic can assent to and sign the Bill passed by National Assembly or refer it to the Constitutional Court for a decision on its constitutionality ) or 121 (the Premier of the province can assent to and sign the Bill passed by the provincial legislature or refer it to the Constitutional Court for a decision on its constitutionality); (c) decide applications envisaged in Section 80 (at least one third of the members of the National Assembly may support an application to the Constitutional Court, within 30 days of the date on which the President 8 For a precise reconstruction of this evolution see Lynn Berat, The Constitutional Court of South Africa and jurisdictional questions: in the interest of justice?, in i-con, International Journal of Comparative Law, vol. 3, n. 1, 2005, pp. 39–76.

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assented to and signed the Act, for an order declaring that all or part of an Act of Parliament is unconstitutional) or 122 (at least 20 per cent of the members of the provincial legislature may support an application to the Constitutional Court, within 30 days of the date on which the Premier assented to and signed the Act, for an order declaring that all or part of a provincial Act is unconstitutional); (d) decide on the constitutionality of any amendment to the constitution; (e) decide that Parliament or the President has failed to fulfil a constitutional obligation; or (f) certify a provincial constitution in terms of Section 144 (If a provincial legislature has passed or amended a constitution, the Speaker of the legislature must submit the text of the constitution or constitutional amendment to the Constitutional Court for certification). It belongs to the Constitutional Court to make the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a Court of similar status, before that order has any force. It is interesting to note that it is possible to appeal directly to the Constitutional Court in the interests of justice: according to Section 167.6 of the constitution, the national legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court (a) to bring a matter directly to the Constitutional Court; or (b) to appeal directly to the Constitutional Court from any other Court. 4

The Analysis Model

The Court’s disposition to use legal formants derived from foreign systems, and some rather than others, depends to some extent on very empirical circumstances such as availability of material or accessibility (the language used and the complexity of the text constitute the main criterion); the possibility of using an adequate level of assistance in acquisition and reconnaissance of foreign material; lastly, the scientific and professional training of judges.9

9 On the relevance of these components see Basil Markesinis, Comparative law in the Courtroom and classroom., quoted, p. 176; John Hatchard, Muna Ndulo, Peter Slinn, Comparative constitutionalism and Good Governance in the Commenwealth. An Eastern and Southern African Perspective, Cambridge (UK), 2004, p. 172 ss.

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There is, however, no doubt that in the legal systems – like that of South Africa – which have known a phase of transition and deep innovation, the effective protection of fundamental rights enshrined in the new constitutions is largely related to the scientific and cultural training of judges and to their baggage of instruments of interpretation of the law; the possibility that their formation makes them more inclined to consider the law and the case law of other jurisdictions when implementing the constitution is certainly an important tool for understanding the work of the Court. The analysis of South African constitutional judgments has highlighted the presence of numerous citations of rules belonging to foreign law or references to judgments issued by Courts operating in other countries.10 Nevertheless, the actual relevance of the legal comparison with respect to the decision of the legal case is apprehensible only with reference to a part of them. Among all, we have identified those judgments that, for the relevant comparative content, better than others can be investigated according to a multi-level analysis model. From the angle of view taken in this study it does not seem to be of great use the statistical data relating to jurisprudence quotations; on the contrary, it appears rather relevant the comparative analysis – in the proper sense – undertaken by the Court. The comparative law analysis is not limited – as is known – to the erudite citations of foreign laws and cases, but – given the comparability requirements – detects differences and similarities, defines and classifies, expresses a comparative judgment, draws its consequences in terms of proposals or interpretations. It follows that the judgments deserving to be considered are exclusively those in which the Court goes beyond the mere quotation to really make a legal comparison. This seems to be the only way to rigorously assess the contribution of the legal comparison to the consolidation of a democratic system recently formed. The multilevel analysis model arises from this perspective of investigation and is structured as follows: the first level of recognition highlights the normative disposition or the conduct that is subject to the constitutional legitimacy control and the constitutional parameter. These are functional data to the next level of analysis. The second level of analysis is divided into four points: 10

To get an idea of the quantitative data, Markesinis reports that he has identified 1258 references to American, Canadian, British, German, European and Indian judgments in the decisions passed between 1994 and 1998 by the Constitutional Court and the Supreme Court of the Republic of South Africa. See Basil Markesinis, Comparative law in the Courtroom and classroom, quoted, p. 182.

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(a) The reconstruction of the Court’s view on the use of foreign law or foreign jurisprudence. What we want to highlight is the approach that the Court chooses to keep with regards to the use of the comparison tools. Sometimes the Court expresses in a precise way the purpose it intends to pursue through the use of the comparative argument; other times, however, the purpose is detectable only through the guiding thread of the argumentation. (b) The comparative investigation carried out by the Court. This profile highlights the degree of mastery with which constitutional judges make use of the legal comparison method and tools. It is those cases in which the Court reviews the foreign legislation or legal case in order to draw arguments for – or against to – an interpretative choice. The technique used by the Court varies in relation to the purpose pursued; due to specific purpose pursued, the comparative investigation appears sometimes accurate and systematic, sometimes rough or fragmented. To this second category belong those cases where the Court draws from the legal order of reference individual rules or fragments of judgments – perhaps by a dissenting opinion – without contextual references. (c) Which legal systems and why. The reasons that lead constitutional judges to look at some legal systems rather than others are very different and not always based on technicallegal grounds. They are to be sought primarily in the constituent phase, when the founding fathers looked to some models, rather than to others; those models which is more natural to take into account when the judges face with complex issues of interpretation. Also certain factors unrelated to the legal dimension play a certain role; for example, the international “prestige” of the legal system, the language in which the reference materials are available, the curriculum of the individual constitutional judges.11 Sometimes the choice of legal order to be considered in comparative terms stems from the solicitation of the parts of the judgment which – as is often the case with South African judicial experience – integrate memories with numerous comparative references in support of their thesis. 11

A look at the curriculum studiorum of constitutional judges may be very useful in order to understand the propensity towards the use of the comparison. When the curriculum of a judge shows academic titles obtained abroad, in universities located in countries with strong democratic roots; or periods of study or professional training abroad; in such cases, the judge’s ability to handle foreign legal material makes the use of the comparative instruments easier and more frequent.

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(d) The degree of incidence of comparative law on the ratio decidendi and/or its relevance on the obiter dicta. The legal reasoning of the Court and the motivations of the decision provide the coordinates to understand what actual influence the comparative legal considerations had on the judgment. Between the two extreme hypotheses – the one in which the Court appears to adhere to a certain interpretative solution derived from foreign law or jurisprudence; and the other one in which, on the contrary, it relegates comparative references to the rank of pure manifestations of erudition – there are several intermediate hypotheses, which are not always classifiable in net terms. Rarely comparative references are contained in a dissenting opinion. One final note. The Section 35.1 of the Provisional constitution allowed the Constitutional Court to consider “comparable foreign case law”; now, the Sect. 39.1 of the Final constitution uses the term “foreign law”. The Court does not seem to give much emphasis to the difference in the linguistic formulation of the provision. Firstly, in fact, although without any textual reference to the conditions of comparability, the Court does not fail to wonder about the opportunity/utility of referring to this or that constitutional legal system; thus demonstrating to consider the “comparability” as a pre-condition of any legal transplant, even in terms of legal interpretation. Secondly, the Court does not seem to distinguish between “foreign law” and “foreign case-law”; indeed, it refers to case-law rules of common law and civil law, as well as constitutional provisions of legal systems belonging to one or other legal family. This demonstrates – in our warning – the prudence in the use of foreign legal sources moving between law in the book and law in action. 5

The Use of Foreign Jurisprudence in South African Constitutional Court Landmark Cases

As already pointed out, the use of foreign jurisprudence by the South African Constitutional Court was massive, especially during its first years of exercise. Several international studies, conducted in the last fifteen years,12 showed that 12

See, in particular, the work developed by Christa Rautenbach on the use of foreign precedent by South African Constitutional Court judges, hosted on the database developed by the Faculty of Law nwu. See also, of the same Author, South Africa: teaching an “old dog” new tricks? An Empirical study of the use of foreign precedents by the South African

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a high number of cases decided by the Constitutional Court on bill of rights issues contain some reference or quotation of foreign jurisprudence. Nevertheless, the frequent use of comparative arguments does not correspond to a direct influence on the legal reasoning of judges but in a strict number of leading cases. The landmark cases examined below are, indeed, a good example of the comparative approach developed by the Constitutional Court in order to interpret the dispositions of the new South African constitution and to fix some fundamental principles. 5.1 cct 5/94 – Zuma and Two Others v. The State13 In its first case, the Constitutional Court ruled on violation of the constitutional right to a fair trial (Section 25(3) of the interim constitution), by Section 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977, which stated that when a confession by an accused person has been made to a magistrate or has been confirmed and reduced to writing in the presence of a magistrate, it shall be considered admissible as evidence against the accused. The subparagraph further provided that the confession shall be presumed, unless the contrary is proved, to have been freely and voluntarily made by the accused in his or her sound and sober senses and without having been unduly influenced to make the confession. In other terms, this section created the so called “reverse onus”, placing a legal burden of rebuttal on the accused, infringing the right to a fair trial protected by Section 25(3) of the interim constitution, according to which Every accused person shall have the right to a fair trial, which shall include the right -… (c) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial; (d) to adduce and challenge evidence, and not to be a compellable witness against himself or herself. It is really interesting to see how foreign arguments were used by the Court to reach its first unanimous decision of unconstitutionality of Section 217 of the Criminal Code cited above; the Court borrowed from foreign Supreme Courts, especially the Canadian one, some useful parameters to develop its own ­interpretation rules, building its ratio decidendi both on the international Constitutional Court (1995–2010), in Tania Groppi, Marie-Claire Ponthoreau (eds) The Use of Foreign Precedents by constitutional Judges (Hart Publishing 2013), Oxford, UK pp. 185–209. Available at ssrn: https://ssrn.com/abstract=2295493. 13 [1995] zacc 1; 1995 (2) SA 642; 1995 (4) bclr 401 (SA); 1995 (1) sacr 568; [1996] 2 chrld 244 (5 April 1995).

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development of the right to a fair trial and on the historical background reflected in Section 25 of the interim constitution. In fact, already in the introductory part of the judgment, Kentridge A.J., for the Court, pointed out the first important principle of interpretation, further developed in following decisions, that of the importance of legal and historical South African background, which can be also reinterpreted and rediscovered thanks to the use of foreign precedents. This purposive approach gives expression to the underlying values of the constitution, and Kentridge A.J. referred with approval to a passage of the Canadian case R. v. Big M. Drug Mart Ltd for enforcing that consideration.14 Applying this purposive approach, Kentridge A.J. analysed the reverse onus, in the light of the historical South African background on one side, and on the basis of foreign and Commonwealth jurisprudence on the other: the legitimacy of such provisions has been considered by Courts as varied as the United States Supreme Court, The Canadian Supreme Court, the Privy Council and the European Court of Human Rights (and doubtless others) in the light of provisions entrenching, in varying language, the presumption of innocence, the right to silence and the privilege against self-incrimination – a privilege not expressly referred to in Section 25. The case law of these Courts – which are undoubtedly Courts of open 14

In par. 15 of the ruling the Court underlined that In R v. Big M Drug Mart Ltd (1985)18 dlr (4th) 321,395–6, Dickson J. (later Chief Justice of Canada) said, with reference to the Canadian Charter of Rights – The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be … a generous rather than legalistic one, aimed at fulfilling the purpose of a guarantee and the securing for individuals the full benefit of the Charter’s protection. Both Lord Wilberforce and Dickson J. emphasised that regard must be paid to the legal history, traditions and usages of the country concerned, if the purposes of its constitution are be fully understood. This must be right. I may nonetheless be permitted to refer to what I said in another Court of another constitutional beit in a dissenting judgment constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them, so as to bring them into line with the common law. Attorney-General v. Moagi 1982(2) Botswana LR 124,184 That caveat is of particular importance in interpreting Section 25(3) of the constitution.

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and democratic societies – indicates that reverse onus provisions are by no means uncommon and are not necessarily unconstitutional. Reverse onus provisions in our own statute law are also not uncommon […] Foreign Courts have grappled with the problem of reconciling presumptions reversing the onus of proof with the constitutional presumption of innocence. The different solutions which they have suggested are illuminating.15 From this point of the ruling on, Kentridge A.J. develops an interesting legal reasoning, combining the interpretation of Section 25 with Section 33 of the constitution, which contemplated the limitation clause of rights. The core of the interpretative issue was, in fact, the limitation of right to a fair trial, in order to declare if the reverse burden of proof on the accused during the trial could be considered legitimate under the constitutional point of view. To conclude for the unconstitutionality of Section 217 of the Criminal Code, Kentridge A.J. reflected, first of all, on some U.S. Supreme Court cases; the comparative examination led him conclude that the “rational connection” test developed by the U.S. Court to identify the limits of the constitutionality of reverse onus, was not a conclusive one. It was rather the Canadian example to be considered as particularly supportive, especially because South Africa and Canada share a similar, and thus ­comparable, catalogue of constitutional rights and a common legal background: the Canadian cases on reverse onus provisions seem to me to be particularly helpful, not only because of their persuasive reasoning, but because Section 1 of the Charter has a limitation clause analogous to Section 33 of the South African constitution. This calls for a “two-stage” approach. First, has there been a contravention of a guaranteed right? If so, is it justified under the limitation clause? The single stage approach (as in the US constitution or the Hong Kong Bill of Rights) may call for a more flexible approach to the construction of the fundamental right, whereas the two-stage approach may call for a broader interpretation of the fundamental right, qualified only at the second stage16 […]. Section 11(d) of the Canadian Charter provides that any person charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. This bears a close relationship to Section 15 16

Par. 19. Par. 21.

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25(3)(a) and (c) of our constitution. In both Canada and South Africa the presumption of innocence is derived from the centuries-old principle of English law, forcefully restated by Viscount Sankey in his celebrated speech in Woolmington v. Director of Public Prosecutions [1935] ukhl 1; [1935] AC 462 (HL), 481, that it is always for the prosecution to prove the guilt of the accused person, and that the proof must be proof beyond a reasonable doubt.17 On this basis, Kentridge A.J. built the legal reasoning of the Court, borrowing from the Canadian Supreme Court case R v. Downey18 the principles to be applied in the concrete case. In particular, he underlined that his colleague Cory J, in that ruling, elaborated a useful analysis, categorising several types of legal presumption. Using the same interpretation parameters, Kentridge A.J. recognised that the presumption stated in Section 217(1)(b)(ii) could be categorised as a reverse onus clause, since it was a legal presumption where the presumed fact must be disproved on a balance of probabilities instead of by the mere raising of evidence to the contrary.19 As the legal reasoning of the Zuma Case shows, in its first landmark ruling the Constitutional Court did not take into account uncritically the foreign jurisprudence. On the contrary, it was aware of its watchdog role and of the importance of interpreting of the constitution in the framework of the historical background. Consequently, from one side, the comparative argument, especially the one offered by comparable jurisdictions as the Canadian one, is of high value and has a direct impact on the ratio decidendi; on the other, the Court maintained a critical approach, in order to affirm its autonomy in the elaboration of the principles to be applied, taking into account the specific character of the South African new political and constitutional context. Indeed, Kentridge A.J. concluded, after an examination of the Common Law jurisprudence, that the common law rule in regard to the burden of proving that a confession was voluntary has been not a fortuitous, but an integral and essential part of the right to remain silent after arrest, the right not to be compelled to 17 Par. 25. 18 90 dlr (4th) 449. 19 Par. 24.

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make a confession, and the right not to be a compellable witness against oneself. These rights, in turn, are the necessary reinforcement of Viscount Sankey’s “golden thread” – that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt (Woolmington’s case). Reverse the burden of proof and all these rights are seriously compromised and undermined. I therefore consider that the common law rule on the burden of proof is inherent in the rights specifically mentioned in Section 25(2) and (3)(c) and (d), and forms part of the right to a fair trial. In so interpreting these provisions of the constitution I have taken account of the historical background, and comparable foreign case law. I believe too that this interpretation promotes the values, which underlie an open and democratic society, and is entirely consistent with the language of Section 25. It follows that Section 217(1)(b)(ii) violates these provisions of the constitution.20 5.2 CCT/3/94 – The State v. Makwanyane and Mchunu21 The second landmark case deals with one of the most important issues for the future affirmation of the constitutional bill of rights and for the role of the Constitutional Court, that of the legitimacy of the death penalty. Section 11 of the interim constitution prohibited torture of any kind and cruel, inhuman or degrading treatment or punishments; nevertheless, it did not explicitly prohibit death penalty. Consequently, the Court was to decide about its constitutionality, on the basis of a series of interpretative criteria, almost in part derived from the analysis of foreign jurisprudence. Chaskalson P, for the Court, referring constantly to foreign jurisprudence, laws and doctrine, faced three major issues: the interpretation of the catalogue of rights and freedoms enshrined in the constitution; the constitutionality of death penalty and the application of the limitation of rights clause. Death penalty is one of the most discussed issues in all the democratic societies and both doctrine and jurisprudence in all countries had the occasion to discuss about its legitimacy. The Court acknowledged the value of the international debate, placing itself in the same framework, in order to build a broader background for its decision. This emerges especially when Chaskalson P underlined that

20 Par. 33–34. 21 [1995] zacc 3; 1995 (6) bclr 665; 1995 (3) SA 391; [1996] 2 chrld 164; 1995 (2) sacr 1 (6 June 1995).

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the international and foreign authorities are of value, because they analyse arguments for and against the death sentence and show how Courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention. They may also have to be considered because of their relevance to Section 35(1) of the constitution.22 Especially this last paragraph is important for the Court to introduce and better specify the core meaning of Section 35 of the interim constitution and, consequently, to elaborate some useful methodological criteria for approaching foreign jurisprudence in the case law. On this regard, it is particularly relevant the acknowledgment that: comparative bill of rights jurisprudence will no doubt be of importance, particularly in the early stages of the transition when there is no developed indigenous jurisprudence in this branch of the law on which to draw. Although we are told by Section 35(1) that we “may” have regard to foreign case law, it is important to appreciate that this will not necessarily offer a safe guide to the interpretation of Chapter Three of our constitution. This has already been pointed out in a number of decisions of the Provincial and Local Divisions of the Supreme Court, and is implicit in the injunction given to the Courts in Section 35(1), which in permissive terms allows the Courts to “have regard to” such law. There is no injunction to do more than this. When challenges to the death sentence in international or foreign Courts and tribunals have failed, the constitution or the international instrument concerned has either directly sanctioned capital punishment or has specifically provided that the right to life is subject to exceptions sanctioned by law. The only case to which we were referred in which there were not such express provisions in the constitution, was the decision of the Hungarian Constitutional Court. There the challenge succeeded and the death penalty was declared to be unconstitutional. Our constitution expresses the right to life in an unqualified form, and prescribes the criteria that have to be met for the limitation of entrenched rights, including the prohibition of legislation that negates the essential content of an entrenched right. In dealing with comparative law, we must bear in mind that we are required to construe the South African constitution, and not an international instrument or the constitution of some foreign country, and that this has to be done with due regard to our legal system, our history and circumstances, and the structure and language of 22

Par. 34.

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our own constitution. We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it.23 Then, the aim of the Constitutional Court of South Africa is not to imitate a foreign model for the protection of fundamental rights, but to be involved in building the democracy; therefore, constitutional values are affirmed and interpreted in the light of the peculiar South African legal system, history and social framework, to be kept constantly into consideration by the Court itself. For these reasons, foreign jurisprudence can certainly provide a useful guidance tool for the Court, especially in absence of an internal case-law; however, it cannot bind the Court, nor will it necessarily be the “safe guide” of constitutional interpretation. It is interesting to note that this methodological approach already characterised the self-restraint of the Court in the previous Zuma case, although its borders were still less defined. Also in that first occasion, the Court showed interest for the supportive foreign jurisprudence, but adopted a purposive approach which took into due consideration the legal, historical and social South African background. On the basis of these considerations, Chaskalson P, as anticipated, faced with an important deal, that of the interpretation of the catalogue of rights, with special regard to those articles that, together with Section 11, are of particular importance for a decision on the constitutionality of the death penalty, since punishment must meet the requirements of Sections 8, 9 and 10 of the interim constitution. Using the two stages approach already elaborated in the previous case Zuma, all the relevant foreign jurisprudence, the historical and legal background, the comparable experiences, are deeply examined, to answer first of all to the question if death penalty is to be considered a cruel, inhuman and degrading punishment in the light of the constitution and, secondly, if it may be considered justifiable according to Section 33 of the interim constitution. On the first point Chaskalson P concluded that carrying out death sentence destroys life, which is protected without reservation under Section 9 of South African constitution, it annihilates human dignity which is protected under Section 10, elements of arbitrariness are present in its enforcement and it is irremediable. Taking these factors into account and giving the words of Section 11(2), on the basis of a purposive approach, the Court concludes that the broader meaning to which they are entitled at this stage of the enquiry is to be taken into account, rather than a narrow meaning; therefore, in the context of 23

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the constitution, the death penalty is indeed a cruel, inhuman and degrading punishment. After having pointed out that the death penalty is to be considered unconstitutional, the Court examined if the right to life could be limited for allowing this punishment in the most serious offences, using the limitation of rights clause offered by Section 33(2) of the interim constitution. In this regard, it is especially interesting the use of comparative law with a supportive function for the interpretation of limitation of rights clause already elaborated in the previous Zuma case. It is not possible, here, to give consideration to all the foreign jurisprudence cited in the ruling.24 Rather, what it is important to underline is the role of comparative reasoning for the ratio decidendi. As in the Zuma case, also in the Makwanyane one the Court refers to the test elaborated by the Canadian Su-

24

Actually, the comparative arguments are used, in the ruling, also to distinguish the South African case from the foreign ones. The best example is that of US Supreme Court jurisprudence, already cited in the Zuma case and here resumed to distinguish the South African case from the US Supreme Court interpretation of the limitation of rights in the case of death penalty: Our constitution deals with the limitation of rights through a general limitations clause. As was pointed out by Kentridge A.J. in Zuma’s case, this calls for a “two stage” approach, in which a broad rather than a narrow interpretation is given to the fundamental rights enshrined in Chapter Three, and limitations have to be justified through the application of Section 33. In this it differs from the constitution of the United States, which does not contain a limitation clause, as a result of which Courts in that country have been obliged to find limits to constitutional rights through a narrow interpretation of the rights themselves. Although the “two-stage” approach may often produce the same result as the “one-stage” approach, this will not always be the case. The practical consequences of this difference in approach are evident in the present case. In Gregg v. Georgia, the conclusion reached in the judgment of the plurality was summed up as follows: In sum, we cannot say that the judgment of the Georgia legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular state the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification, and is thus not unconstitutionally severe. Under our constitution, the position is different. It is not whether the decision of the State has been shown to be clearly wrong; it is whether the decision of the State is justifiable according to the criteria prescribed by Section 33. It is not whether the infliction of death as a punishment for murder “is not without justification”, it is whether the infliction of death as a punishment for murder has been shown to be both reasonable and necessary, and to be consistent with the other requirements of Section 33. It is for the legislature, or the party relying on the legislation, to establish this justification, and not for the party challenging it to show that it was not justified (par. 100–102).

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preme Court in R v. Oakes (also because the defence attorney gave broad reference to this case). It literally picked up the Canadian ruling in which Dickson J. described the evaluation elements of the proportionality test, namely: (1) the measures adopted for the purpose of achieving a precise goal must not be arbitrary, unjust, or irrational; (2) the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question; (3) there must be a proportionality, however, between the effects of the measures resulting in a limitation of the right or freedom and the purpose of the limitation, which must be of sufficient importance. Applying the test elaborated in the Canadian jurisprudence to the South African constitutional context, Chaskalson P notes that: although there is a rational connection between capital punishment and the purpose for which it is prescribed, the elements of arbitrariness, unfairness and irrationality in the imposition of the penalty are factors that would have to be taken into account in the application of the first component of this test. As far as the second component is concerned, the fact that a severe punishment in the form of life imprisonment is available as an alternative sentence, would be relevant to the question whether the death sentence impairs the right as little as possible. And as I will show later, if all relevant considerations are taken into account, it is at least doubtful whether a sentence of capital punishment for murder would satisfy the third component of the Oakes test.25 Nevertheless, the adaptation of the test elaborated in the Oakes judgment to the concrete case was not uncritical, since it has been transposed in the historical and legal South African background, as it is clear from the following passage of the ruling: In Zuma’s case, Kentridge A.J. pointed out that the criteria developed by the Canadian Courts for the interpretation of Section 1 of the Canadian Charter of Rights may be of assistance to our Courts, but that there are differences between our constitution and the Canadian Charter which have a bearing on the way in which Section 33 should be dealt with. This is equally true of the criteria developed by other Courts, such as the German Constitutional Court and the European Court of Human Rights. Like Kentridge A.J., “I see no reason in this case… to attempt to fit our 25

Par. 106.

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analysis into the Canadian pattern,” or for that matter to fit it into the pattern followed by any of the other Courts to which reference has been made. Section 33 prescribes in specific terms the criteria to be applied for the limitation of different categories of rights and it is in the light of these criteria that the death sentence for murder has to be justified.26 Examining the domestic law and the historical background, characterised by constant violations of human rights perpetrated during the apartheid period, the Court concludes that the rights to life and dignity are the most important of all human rights and the source of all other personal rights recognised in Chapter Three of the Bill of Rights; therefore, the limitation clause cannot be applied when a right is to be considered as the necessary basis for the protection of all the other rights enshrined by a democratic constitution. This is irrespective of the evaluations that take place on the same issue in other jurisdictions. A direct influence on the interpretation of the limitation clause derives from the Canadian case-law, but only on the basis of the Zuma judgment, that is to say only within the limits of the preparation of a test by virtue of which the principle of proportionality may be assessed. The individual criteria on which the test can then be carried out are provided by Section 33 itself and must not be derived from foreign case law. 5.3 CCT/20/94, The State v. Williams and Others27 This case represents another of the leading cases of the Constitutional Court of South Africa characterised by a strong reference to foreign jurisprudence. The case dealt with a consolidation of five different cases in which six juveniles were convicted by different magistrates and sentenced to receive a “moderate correction” of a number of strokes with a light cane. The issue afforded by the Court regarded, in particular, whether the sentence of juvenile whipping, pursuant to the provisions of Section 294 of the Criminal Procedure Act, was consistent with the provisions of the interim constitution, and in particular with Section 10 (“Every person shall have the right to respect for and protection of his or her dignity”) and Section 11(2) (“No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment”). Also in this circumstance the Court applied the two stages approach, developed since the first ruling, the Zuma case. 26 27

Par. 110. [1995] (7) bclr 861 (CC).

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Langa J, for the Court, examined the injured right in order, first, to verify whether there was an infringement of the constitutional bill of rights and secondly, to examine the possible limitations that may be imposed on it. Differently from the other cases, while in the first stage of enquiry there is a strong reference to foreign law, in the second stage of the investigation the Court focuses on domestic case law, without making any direct reference to foreign jurisprudence, confirming the importance of developing a purposive approach which takes into due consideration the national historical, legal and social background (the so called “material background”). In the first stage of the analysis the Court was to assess the constitutionality of corporal punishment in relation to the configurability of a torture hypothesis, referring broadly to foreign jurisprudence and to the range of provisions of international conventions and international declarations: in common with many of the rights entrenched in the constitution, the wording of this section conforms to a large extent with most international human rights instruments. Generally, the right is guaranteed in absolute, non-derogable and unqualified terms; justification in those instances is not possible. The interpretation of the concepts contained in Section 11(2) of the constitution involves the making of a value judgment which “requires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensitivities of the… people as expressed in its national institutions and its constitution, and further having regard to the emerging consensus of values in the civilised international community…” While our ultimate definition of these concepts must necessarily reflect our own experience and contemporary circumstances as the South African community, there is no disputing that valuable insights may be gained from the manner in which the concepts are dealt with in public international law as well as in foreign case law”.28 As in the previous landmark cases already analysed, also in this circumstance the Court shows interest for foreign jurisprudence in interpreting the meaning of cruel and degrading treatment; an high number of case law was quoted, from the Supreme Court of the United States, the Canadian Supreme Court, the Namibia and Zimbabwe Courts, with the aim to legitimise the decision of the Court. 28

Par. 21–23.

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At the same time, the Court did not simply borrow legal ideas and interpretation issues from other jurisdictions, but aimed to elaborate the international framework, taking into consideration both the jurisprudence of consolidated democracies and the internal material background already examined in the other leading cases. This clearly emerges from the following paragraphs: the constitution requires us to “have regard” to the consensus referred to above; we are not bound to follow it but neither can we ignore it. The determinative test will be the values we find inherent in or worthy of pursuing in this society which has only recently embarked on the road to democracy. Already South Africa has lagged behind. The constitution now offers an opportunity for South Africans to join the mainstream of a world community that is progressively moving away from punishments that place undue emphasis on retribution and vengeance rather than on correction, prevention and the recognition of human rights. In interpreting Section 11(2) of the constitution, however, we should not only have regard to the position in other jurisdictions. This Court has held that in interpreting the rights enshrined in Chapter 3 of the constitution, a purposive approach should be adopted. In seeking the purpose of the particular rights, it is important to place them in the context of South African society. It is regrettable, but undeniable, that since the middle 1980’s our society has been subjected to an unprecedented wave of violence. Disputes, whether political, industrial or personal, often end in violent assaults. In addition, during the same period, there has been a marked increase in violent crimes, such as armed robbery and murder. The process of political negotiations which resulted in the constitution were a rejection of violence. In this context, it cannot be doubted that the institutionalised use of violence by the State on juvenile offenders as authorised by Section 294 of the Act is a cruel, inhuman and degrading punishment. The Government has a particular responsibility to sustain and promote the values of the constitution. If it is not exacting in its acknowledgement of those values, the constitution will be weakened. A culture of authority which legitimates the use of violence is inconsistent with the values for which the constitution stands. The conclusion that I have reached, that Section 294 of the Act infringes the rights contained in Sections 10 and 11(2) of the constitution is consistent with the view that has been expressed by many South African judges before. As already indicated, the Courts in this country have acknowledged the international consensus against corporal punishment

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and, in a sense, associated themselves with it in many judgments which have criticised, sometimes in the strongest terms, the infliction of corporal punishment. Judicial condemnation has resulted in adult whipping being imposed only in exceptional circumstances and juvenile whipping, in general, only as a device to keep the juvenile out of prison.29 The reference to foreign jurisprudence in the first stage of enquiry is particularly interesting: Langa J. analysed, in fact, several case law regarding the cruel and unusual punishment, to find comparable issues: Whether one speaks of “cruel and unusual punishment” as in the Eighth Amendment of the United States constitution and in article 12 of the Canadian Charter, or “inhuman or degrading punishment” as in the European Convention and the constitution of Zimbabwe, or “cruel, inhuman or degrading punishment” as in the Universal Declaration of Human Rights, the iccpr and the constitution of Namibia, the common thread running through the assessment of each phrase is the identification and acknowledgement of society’s concept of decency and human dignity.30 Interesting is the quotation of Namibia and Zimbabwe case law, which reference is explained by the Court itself: The decisions of the Supreme Courts of Namibia and of Zimbabwe are of special significance. Not only are these countries geographic neighbours, but South Africa shares with them the same English colonial experience which has had a deep influence on our law; we of course also share the Roman-Dutch legal tradition.31 Also the Canadian jurisprudence of the Supreme Court is quoted, for the comparable catalogues of rights, which allows the South Africa Constitutional Court to reflect on the solutions found in that jurisdiction. The Canadian Supreme Court has interpreted the concept “cruel and unusual punishment” as a “compendious expression of a norm” to which the relevant test was “whether the punishment prescribed is so excessive as to outrage the standards of decency.” Factors to be taken into 29 30 31

Par. 50–53. Par. 35. Par. 31.

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account in the assessment of the punishment included its effect, which must not be grossly disproportionate, the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case.32 With the same critical approach already developed, the Court disapproves, on the contrary, the United States jurisprudence, underlining the existent differences between the two countries and limiting the enquiry to the dissenting opinion of Brennan J. in Furman v. Georgia, the case already referred to in the Makwanyane Case. Probably, this citation of fragments of jurisprudence, especially of dissenting opinions, taken outside their own context, had the aim of enforcing the Constitutional Court legal reasoning. This endorsement of international jurisprudence on inhuman and degrading treatment, and in particular, the Canadian, Zimbabwe and Namibia references, constituted the basis for the legal reasoning and the ratio decidendi of Langa J. ruiling, with a final declaration of unconstitutionality at the first stage of enquiry. The assessment of the Court involved: the standard of decency in a democratic society; the respect for human dignity; the task reserved by the constitution to the State; the ban of limiting the right to human dignity for demands of retribution and revenge on the criminal system. The Court with the help of foreign jurisprudence, national case law and international standards, has elaborated its conclusion. 5.4 CCT/5/95 – Ferreira and Other v. Levin and Others33 In this Case the Court afforded for the first time the issue of the habeas corpus, protected by Section 11(1) of the interim constitution (“Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial”). In particular, the inconsistency of Section 417 of the Companies Act, No. 61 of 1973 was alleged, relating to the examination of persons in winding-up proceedings, in that it compels a person summoned to an enquiry to testify and produce documents, even though such person seeks to invoke the privilege against self-incrimination. Also in the present case, as in the others already examined, the Court uses the two stages approach test, in order to verify if the alleged provision is unconstitutional and if the right can anyway be limited for public interests, on

32 33

Par. 30. [1996] (1) bclr 1 (CC).

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the basis of the limitation clause provided for by Section 33 of the interim constitution. In this articulated judgment, the use of foreign law is probably even broader than in previous judgments, since it becomes the pivot of the legal reasoning of the Court ruling on the unconstitutionality of Section 417, only with reference to the words “and any answer given to any such question may thereafter be used in evidence against him”. In an extensive premise on personal freedom, the comparative elements become important to define the legal background for the decision: it is appropriate to consider whether comparable foreign case law would lead to a different conclusion. Direct comparison is of course difficult and needs to be done with circumspection because the right to personal freedom is formulated differently in the constitutions of other countries and in the international and regional instruments. Nevertheless, Section 33(1) of our constitution enjoins us to consider, inter alia, what would be “justifiable in an open and democratic society based on freedom and equality” and Section 35(1) obliges us to promote the values underlying such a society when we interpret Chapter 3 and encourages us to have regard to comparable case law. In construing and applying our constitution, we are dealing with fundamental legal norms, which are steadily becoming more universal in character. When, for example, the United States Supreme Court finds that a statutory provision is or is not in accordance with the “due process of law” or when the Canadian Supreme Court decides that a deprivation of liberty is not “in accordance with the principles of fundamental justice” (concepts which will be dealt with later) we have regard to these findings, not in order to draw direct analogies, but to identify the underlying reasoning with a view to establishing the norms that apply in other open and democratic societies based on freedom and equality.34 Consequently, the need to promote the values of an open and democratic society is the main impulse to look at foreign jurisdictions; using a comparative method, the Court can underline how other democracies have dealt with similar issues, also taking into account the common law tradition, which makes the legislation often comparable. At the same time, these considerations do not prevent Ackermann J. from gratefully recognising 34

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that the roots of South African law draw sustenance from Western Europe, the United Kingdom (and derivatively from the other so-called “common law” countries) and from indigenous sources. It is also a fact that since 1945 fundamental human rights are steadily becoming internationalised (albeit not always or everywhere at the same pace and not without ­set-backs) at the international, regional and domestic constitutional levels.35 The universal nature of the Bill of rights makes it possible to refer to comparable foreign case law, even if not every quotation can be considered relevant for the solution offered by the South African Court. This is the reason why many citations, especially those regarding the U.S. Supreme Court jurisprudence, remained an obiter dictum and did not influence the legal reasoning of the Court. On the contrary, some other foreign cases, mainly the Canadian ones, deeply impacted on the ratio decidendi. The support of Canadian jurisprudence is evident, especially at the first stage of enquiry, when the Court examines the alleged violation and interprets Section 11(1) of the interim constitution, since the case Thomson Newspapers Ltd. et al. v. Director of Investigation and Research and others36 is scrutinized, particularly its dissenting opinions. As Ackermann J. affirmed, as far as the breadth of our present constitution’s Section 11(1) right to freedom and security of the person is concerned, Thomson’s case provides some useful guidance. Reference has already been made to the fact that the right to freedom is the foundation of many of the other rights that are specifically entrenched in the present constitution. The existence of these other freedom-based or freedom-inspired rights does not warrant a restrictive interpretation being given to the Section 11(1) rights. Section 13 of the Canadian Charter provides an individual with a limited protection against self-incrimination in the following terms: 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. Section 11(c) embodies a limited right of non-compellability: “11. Any person charged with an offence has the right

35 36

Par. 101. Case number [1990] 67 d.l.r. (4th) 161.

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(c) not to be compelled to be a witness in proceedings against that person in respect of the offence.” In Thomson’s case the appellants could not take advantage of either Section 13 or Section 11(c) but contended that Section 7 protects similar rights in contexts other than those to which Section 13, and Section 11(c) relate. This contention was upheld by Wilson J. who stated the following: “The principle of statutory construction, expressio unius, is ill-suited to meet the needs of Charter interpretation. It is inconsistent with the purposive approach to Charter interpretation which has been endorsed by this Court and which focuses on the broad purposes for which rights were designed and not on mechanical rules which have traditionally been employed in interpreting detailed provisions of ordinary statutes in order to discern legislative intent. […] Sections 8 to 14 of the Charter are illustrative, but not exhaustive, of deprivations of life, liberty and security of the person which are not in accord with the principles of fundamental justice. Otherwise, s. 7 would have no role to play. I conclude therefore that the specific enumerations in ss.11(c) and 13 do not prevent residual content being given to s.72”. For the reasons advanced by Wilson J, I would hold that the fact that many other freedom rights are entrenched in our present constitution does not for that reason mean that the Section 11(1) right to freedom does not protect similar rights in contexts other than those to which the more particular freedom rights in the constitution relate; the Court is not thereby precluded from giving “residual content” to Section 11(1). The same considerations also do not warrant giving this residual freedom right a narrow construction. In Thomson, Wilson J. construed the words “life, liberty and security of the person” disjunctively, holding that: “it is not necessary for the citizen to show that his right to life, his right to liberty and his right to security of the person have all been violated in order to constitute a breach of the section”.37 Such reasoning is of great importance for the South African Constitutional Court and it is used by Ackermann J. to elaborate the following considerations: in the South African constitution, Section 25(3)(d) protects the right to be presumed innocent and to remain silent during the proceedings; furthermore, it prohibits the self-incrimination. Already in the precedent the Zuma case this right was applied and carefully interpreted, to recognise that a person charged with a crime cannot be forced to make statements that can incriminate him/ 37

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her. Interpreting Section 11(1) a similar conclusion can be reached, outside the context of Section 25. In the second part of the judgment, Ackermann J. examined Section 417, paragraph 2, lett. b) in the light of the limitation clause in Section 33 of the constitution. What is to be underlined about the complex reasoning of the Court is the broad use of foreign precedents, especially the Canadian ones, which influenced also the ratio decidendi. Of course, the weight of foreign jurisprudence was different in relation to the various issues the Court intended to address. A significant weight in the ratio decidendi has certainly had Judge Wilson’s dissenting opinion in the Thomson case, whose legal reasoning is explicitly reproduced in the ruling. Also the opinion of Judge La Forest seems to have influenced decisively the final decision, according to which the right to personal liberty, contemplated in Section 11(1) is violated by Section 417 Companies Act only insofar as the testimony made is directly used against the witness in a subsequent trial. People aware of a bankruptcy of a company can legitimately be forced to testify, in an extrajudicial investigation, for the needs of justice. If, then, from the declarations made, indirect evidences can arise, judges may use them in a subsequent criminal trial against the witness; this would not violate the right to a fair trial contemplated by Section 25(3) and the essential content of the right to personal liberty would in any event be waived. Ultimately, the Court has had as reference paradigms some well-established common law democracies. Through the continued reference to the decisions of foreign Courts, the South African Constitutional Court wanted to project itself into an international dimension of the protection of fundamental rights. It has stated in several points that the catalogue of fundamental rights in South Africa lost its exclusively national dimension, laying on a different wavelength, that of the great democracies that accept the universality of fundamental rights. The use of comparative case law aimed exactly to justify the new international attitude of the South African democracy. 5.5 Case CCT14/96 – Fose v. Minister of Safety and Security38 In this leading case the Constitutional Court dealt with the constitutional damages issue for the first time. The appellant instituted a claim against the Minister of safety and security for damages arising from an alleged series of assaults by members of the South African police services, on the basis of Section 7(4) (a) of the interim constitution, which provided that “When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred 38 [1997] zacc 6; 1997 (7) bclr 851; 1997 (3) SA 786 (5 June 1997).

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to in paragraph (b) shall be entitled to apply to a competent Court of law for appropriate relief, which may include a declaration of right”. Thus, in addition to claiming common law damages for pain and suffering, insult, shock, past and future medical expenses and loss of enjoyment of the amenities of life, the appellant claimed constitutional damages for the infringement of his constitutional right not to be tortured and not to be subject to cruel, inhuman or degrading treatment and for infringements to his rights to dignity and privacy. This autonomous, constitutional remedy aims to vindicate the fundamental right itself so as to promote the values of an open and democratic society based on freedom and equality and respect for human rights; to deter and prevent future infringements of fundamental rights by the legislative and executive organs of state at all levels of government; to punish those organs of state whose officials have infringed fundamental rights in a particularly egregious fashion; finally to compensate the plaintiff for harm caused in consequence of the infringement of one or more of the plaintiff’s rights entrenched in Chapter 3. The common law remedies are not directed to the achievement of the first three of these objectives and the common law should not be distorted by requiring it to perform these functions and fulfil the purposes of constitutional law. Hence the necessity, for the appellant, for a specific and separate public law constitutional damages remedy. This was, for the Constitutional Court, the first occasion to rule on the meaning and effect of Section 7(4)(a) of the interim constitution and Achermann J., for the Court, emphasized the importance of the issue challenged: particularly in the new legal order introduced by the interim Constitution, a judgment on the construction of a provision such as this is of concern not only to the immediate litigants in the case but also to all other persons whose Chapter 3 rights might have been or might be infringed; indeed it has implications for constitutional litigation generally.[…] In the present case it is essential to place the issue, narrow as it may be, in its correct jurisprudential context, both nationally and internationally. The issue is limited to constitutional damages.39 Since the plaintiff placed considerable reliance on foreign law, to demonstrate the existence of this kind of public law remedy, Achermann J. paid great attention to comparative law, at the same time warning that

39

Par. 21.

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more than the usual caution is necessary in the present enquiry since the law of delict/torts differs in various legal systems, certain judicial systems and their legal remedies are divided along federal and state lines, sovereign immunity is not treated identically and the nature and histories of the various constitutional dispensations are not the same.40 It was on this basis that the Court considered the jurisprudence on the remedies recognised in United States, in Canada, in United Kingdom, Trinidad and Tobago, New Zealand, Ireland, India, Sri Lanka, Germany and, finally, in the European Convention of Human rights, to conclude that the operative words in Section 7(4), “infringement of or threat to any right entrenched in this Chapter” and “shall be entitled to apply to a competent Court of law for appropriate relief” are of wide import. They are conceptually similar to the corresponding provisions in the constitutional instruments of Canada, Trinidad and Tobago, and Sri Lanka. It must moreover be borne in mind that in the United States, Ireland and New Zealand these constitutional public law remedies have been granted in the absence of any express constitutional remedial provision. […] In considering how other jurisdictions have forged new remedies to deal with breaches of constitutional rights it is important to bear in mind differences that exist between South African law and procedure and the law and procedure in force in those jurisdictions. These differences have already been referred to in the discussion of the foreign law. The most important differences for present purposes are: (a) Chapter 3 of the interim Constitution is binding on all legislative and executive organs of state at all levels of government. The separate federal and state Court systems, resulting from the federal/state divide, which has influenced the development of the United States law in regard to “constitutional damages”, do not exist in South Africa. Here we have a unitary and not a federal Court system, and it follows that claims for damages under the common law and claims for damages for breaches of constitutional rights will ordinarily be dealt with at first instance by the same Court. (b) The South African common law of delict is flexible and under Section 35(3) of the interim Constitution should be developed by the Courts with “due regard to the spirit, purport and objects” of Chapter 3. In many cases the common law will be broad enough to 40

Par. 24.

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provide all the relief that would be “appropriate” for a breach of constitutional rights. That will of course depend on the circumstances of each particular case. It is unnecessary, for purposes of this judgment to consider whether, for purposes of the relief envisaged by Section 7(4)(a), vicarious liability is an adequate or acceptable basis for state liability in the circumstances of a case such as this. (c) The South African law of sovereign immunity differs materially from the law in force in those jurisdictions where it has been necessary to develop a “public law” remedy in order to hold the state liable for conduct which constitutes a breach of the Constitution, but in respect of which the state would have been immune from liability under the common law or particular statutes. These considerations do not apply with nearly the same force under South African law; but the question must be left open whether the current South African law relating to state liability is consistent with the interim Constitution and in particular with the provision for “appropriate relief” in Section 7(4)(a). These differences are material to the applicability, within the framework of South African law, of constitutional remedies developed in other jurisdictions. A further relevant factor is that certain rights in Chapter 3 of the interim Constitution may be, and Chapter 2 of the 1996 Constitution (to the extent indicated in Section 8 thereof) will be, applicable to relationships governed by “private law”. The comparative analysis in the concrete case was, in conclusion, stimulated by the plaintiff and the Court, taking into account the purposive approach already developed and, consequently, the material background of the country, examined several jurisdictions, underlining both the differences and the comparable characters. The use of comparative law has had, in the present case, mainly a function of contrasting the conclusions reached by the plaintiff. Nevertheless, it represented the basis of a complex legal reasoning of the Court which recognised that there is no reason in principle why “appropriate relief” should not include an award of damages, where such an award is necessary to protect and enforce Chapter 3 rights. Such awards are made to compensate persons who have suffered loss as a result of the breach of a statutory right if, on a proper construction of the statute in question, it was the legislature’s intention that such damages should be payable, and it would be strange if

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damages could not be claimed for, at least, loss occasioned by the breach of a right vested in the claimant by the Supreme law. When it would be appropriate to do so, and what the measure of damages should be, will depend on the circumstances of each case and the particular right which has been infringed41 and concluded that an award of extra constitutional damages would not be appropriate in the present case. 5.6 Case cct 51/06 – KwaZulu-Natal and Others v. Pillay42 Another important leading case raised several questions about the nature of discrimination under the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) as well as the extent of protection afforded to cultural and religious rights in the public school setting and possibly beyond. In this case a Hindu learner was forbidden by her school to wear a nose stud because the wearing of jewellery was banned by the School’s Code of Conduct. This case was the first of this kind and the Constitutional Court found that a combination of the school’s refusal to grant the student an exception to wear her nose stud and the provisions of the Code of Conduct, which did not provide for an exception to allow for a reasonable accommodation of religious or cultural beliefs, resulted in unfair discrimination.43 But, while this leading case raised fundamental questions about the extent of protection afforded to cultural and religious rights, it is relevant to note how the Court made use of foreign jurisprudence. In the other cases already examined, the international consensus on the bill of rights matters challenged before the Court served as the basis for its legal reasoning, representing an occasion for the Court to legitimise itself and the country among the democratic societies; at the same time, foreign case law was an useful tool for assert its position. This landmark case comes thirteen years after the Court started to exercise its functions and also the expertise of Judges and their legal background changed. In the style of judgments, an increasing reference to its own precedents marks a difference with the first period of its activity.

41 Par. 556–60. 42 [2007] zacc 21; 2008 (1) SA 474 (CC); 2008 (2) bclr 99 (CC) (5 October 2007). 43 See Christa Rautenbach, The South African Constitutional Court’s use of foreign precedent in matters of religion: without fear or favour?, in per / pelj 2015(18)5, p. 1561.

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This case can be considered a good example of this changing since Langa J, for the Court, underlined, as a response to the foreign jurisprudence quotation by one of the parties, that while foreign jurisprudence is useful, the context in which a particular pronouncement was made needs to be carefully examined.44 An important warn which is further developed when he dealt with interpretation of religious and cultural rights. In particular, three issues trace this approach. The first is reasoning of the Court on whether a claim that a practice has religious or cultural significance should be determined subjectively or objectively. On this point Langa J. states that it is accepted both in South Africa and abroad that, in order to determine if a practice or belief qualifies as religious a Court should ask only whether the claimant professes a sincere belief. There is however no such consensus concerning cultural practices and beliefs. There was much argument in this Court that because culture is inherently an associative practice, a more objective approach should be adopted when dealing with cultural beliefs or practices.45 Consequently, for the Judge this debate is unnecessary since both the subjective and objective evidence lead to the same conclusion. More important is the second issue, that whether the Equality Act and the constitution apply to voluntary religious and cultural practices. This question was not yet arisen before South African Courts and was considered as particularly important since, in the concrete case, it was demonstrated that the nose stud was not a compelling religious practice, but a voluntary one. Langa J. underlined that as stated above, religious and cultural practices are protected because they are central to human identity and hence to human dignity which is in turn central to equality. Are voluntary practices any less a part of a person’s identity or do they affect human dignity any less seriously because they are not mandatory?

44 45

Par. 49. Par. 52.

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Freedom is one of the underlying values of our Bill of Rights and Courts must interpret all rights to promote the underlying values of “human dignity, equality and freedom”. These values are not mutually exclusive but enhance and reinforce each other”.46 Citing Ackermann J. in Ferreira v. Levin and Others, Langa J. emphasised that “the protection of voluntary as well as obligatory practices also conforms to the constitution ’s commitment to affirming diversity. It is a commitment that is totally in accord with this nation’s decisive break from its history of intolerance and exclusion. Differentiating between mandatory and voluntary practices does not celebrate or affirm diversity, it simply permits it. That falls short of our constitutional project which not only affirms diversity, but promotes and celebrates it. We cannot celebrate diversity by permitting it only when no other option remains. […] These values are shared with other jurisdictions, such as Canada, to name one, where the Supreme Court has affirmed the necessity of protecting voluntary religious practices”.47 In the third issue, the Court examines, before considering the fairness of the discrimination in the case, the form of the unfairness inquiry under the Equality Act in the concrete circumstances of the case, taking into account the principle of “reasonable accommodation”. At its core is the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally.48 The best example is that of disability rights. While the extent of this exclusion is most powerfully felt by the disabled, the same exclusion is inflicted on all those who are excluded by rules that fail to accommodate those who depart from the norm. Our society which values dignity, equality, and freedom must therefore require people to act positively to accommodate diversity. […]. The difficult question then is not whether positive steps must be taken, but how far the community must be required to go to enable those outside the “mainstream” to swim freely in its waters. 46 47 48

Par. 62–63. Par. 65. Par. 73.

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This is an issue that has been debated both in this Court and abroad and different positions have been taken. For instance, although the term “undue hardship” is employed as the test for reasonable accommodation in both the United States and Canada, the United States Supreme Court has held that employers need only incur “a de minimis cost” in order to accommodate an individual’s religion, whilst the Canadian Supreme Court has specifically declined to adopt that standard and has stressed that “more than mere negligible effort is required to satisfy the duty to accommodate.” The latter approach is more in line with the spirit of our constitutional project which affirms diversity. However, the utility of either of these phrases is limited as ultimately the question will always be a contextual one dependant not on its compatibility with a judicially created slogan but with the values and principles underlying the constitution. Reasonable accommodation is, in a sense, an exercise in proportionality that will depend intimately on the facts.49 These lines of the judgment show that the comparative approach chosen by Langa J. is a restrictive one, since the quotation of United States case law becomes a tool to distinguish the South African contest from the American one and the Canadian reference is a supportive one, with a strong limitation, that of the concrete contest which becomes, here, the real core of the decision. That is to say that the perspective of the comparative approach is overturned: in the previous landmark cases, the Court used the comparable foreign jurisprudence for enforcing the core issues of the legal reasoning; here it is relegated to a marginal function, in the obiter dicta, even if the issue is a central one in the international protection of religious and cultural rights. CCT98/08 – Centre for Child Law v. Minister for Justice and Constitutional Development and Others50 The issue of this case deals with the constitutionality of the Criminal Law (Sentencing) Amendment Act 38 of 2007, which made minimum sentences for certain serious crimes applicable to 16 and 17 year old children. Taking into account this issue for the first time, the Constitutional Court ruled that Section 28 of the Bill of rights prohibits minimum sentencing legislation from being applied to children aged 16 and 17 years old. Cameron J, for the majority, delivered a judgment which explored the foreign jurisprudence with a supportive aim. 5.7

49 Par. 75–76. 50 [2009] zacc 18; 2009 (2) sacr 477 (CC); 2009 (6) SA 632 (CC); 2009 (11) bclr 1105 (CC) (15 July 2009).

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Indeed, the approach of the Court recalls the two stages approach developed earlier in its own jurisprudence, since in the first part Cameron J. deals with the considerations about the importance of children’s rights provisions, examining the content of Section 28; in the second part of the judgment, the Court scrutinizes the limitations to the recognised rights. in both the stages of enquiry, a supportive quotation of foreign jurisprudence becomes part of the legal reasoning. In the first part of the case Cameron J. states: the general considerations mitigating the treatment and punishment of child offenders find resonance with comparable systems of justice. In declaring unconstitutional the death penalty for offenders under 18, the Supreme Court of the United States of America has held that, as a category, children are less culpable. It observed that— as any parent knows and as scientific and sociological studies… tend to confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.’ That Court also alluded to the fact that juveniles are “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”. In part, this is due to the fact that “juveniles have less control, or less experience with control, over their own environment”. As already pointed out, since the character and personality of children under 18 are not yet fully formed, child offenders may be uniquely capable of rehabilitation. Juveniles are still engaged in the process of defining their own identity. The United States Supreme Court has therefore pointed out that their vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. Hence: From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. The Supreme Court of Canada has similarly found that because of their heightened vulnerability, relative lack of maturity and reduced capacity for moral judgment, children are entitled to a presumption of diminished moral culpability. This, the Court found, is “fundamental to our

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notions of how a fair legal system ought to operate”. The Court therefore allowed a challenge based on the Canadian Charter of Rights to a statute that required the imposition of adult sentences on certain categories of violent child offenders unless the young person could justify why an adult sentence should not be imposed.51 These considerations become the background for supporting the same conclusion, that in a practical and entirely unsentimental sense, children embody society’s hope for, and its investment in, its own future. The Bill of Rights recognises this. This is why it requires the state to afford them special nurturance, and affords them special protection from the state’s power.52 In the second part of the judgment, in examining the limitation of children rights protected by Section 28, the Court reflects on international law, as a large reference to foreign jurisprudence was presented by the applicant. Here, the comparative investigation only serves to confirm that also in South ­Africa the international standards of protection of children are respected and that the constitution adequately protects juveniles, as stated by Cameron J. in the following passage: the Centre rightly submitted that several international law instruments count in favour of the view that minimum sentences should not apply to child offenders. The principles evident from these documents regarding child sentences are: proportionality (children must be dealt with in a manner “appropriate to their well-being and proportionate both to their circumstances and the offence”); imprisonment as a measure of last resort and for the shortest appropriate period of time; that children must be treated differently from adults; and that the well-being of the child is the central consideration. The Centre further submitted – and counsel for the Minister ­accepted – that the only comparable country that imposes minimum sentences on children is the United States of America. While the situation varies from country to country, counsel were agreed that children in comparable systems (such as the United Kingdom) appear to be either excluded from

51 52

Par. 33–35. Par. 36.

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minimum sentencing legislation applicable to adults, or to be subject to much shorter prescribed sentences. It is plain that the Bill of Rights in our constitution amply embodies these internationally accepted principles. Its provisions merely need to be given their intended effect. This leads to the conclusion that no maintainable justification has been advanced for including 16 and 17 year olds in the minimum sentencing regime.53 Especially the last paragraph confirms that foreign jurisprudence quoted is an helpful tool for confirming the considerations of the Court in the legal reasoning. The Court more frequently refers to its own precedents and to national jurisprudence and is no more involved, as in the past, in elaborating a strong comparative background for its ratio decidendi. 5.8 cct 74/14 – H v. Fetal Assessment Centre54 In this important judgment the Constitutional Court granted a leave of appeal in a case regarding a child’s right to claim for damages to a medical centre, for allegedly misdiagnosing the child’s high risk of Down syndrome. Since the South African law does recognises a claim by the mother for pre-natal misdiagnoses, but not by the child, in this case the Court had to provide helpful guidelines for developing the common law on this issue, allowing the High Court and, if necessary, the Supreme Court of Appeal, to reconsider the case, already upheld by the High Court. The applicant was the mother of the child, who maintained that, had she been made aware of the high risk, she would have terminated the pregnancy. The child was born with Down syndrome and the mother claimed special and general damages on his behalf. In a unanimous judgment by Froneman J, the Constitutional Court found that the recognition of a child’s claim involves complex factual and legal considerations and that the Court itself is not the appropriate jurisdiction to make a final determination on the question of the child’s claim. Nevertheless, given the high importance of the case under the constitutional point of view, the Court carefully considered the law in other jurisdictions, as well as the implications for the South African law, emphasising that a child’s claim in this context may in principle potentially exist. In a large section of the judgment, dedicated to a comparative analysis, the Court first explained the comparative methodology used and then focused on 53 Par. 62. 54 [2014] zacc 34; 2015 (2) bclr 127 (CC); 2015 (2) SA 193 (CC) (11 December 2014).

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the importance of referring to foreign law in a case like this and on the solutions adopted by other jurisdictions to solve the same issue and to find any useful solution for the concrete case. As for the methodology used, the Court explained that it submitted a constitutional law enquiry to the Venice Commission on whether a “wrongful life” claim is recognised and on the rationale for the recognition or otherwise of both “wrongful birth” and “wrongful life” cases in selected countries, receiving a response from Austria, Chile, Croatia, Czech Republic, Estonia, Germany, Ireland, Netherlands, Norway, Poland, Sweden and Switzerland.55 Furthermore, as anticipated, the case was the occasion to recall the importance of Section 39 (1) of the Bill of rights, at the same time setting the limits of the comparative tools, through the words of Charskalson P in Makwanyane case We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it. Nevertheless, Froneman J. added that the necessary caution does not prevent the Court “from seeking guidance from other legal systems”. Foreign law has been used by this Court both in the interpretation of legislation and in the development of the common law. Without attempting to be comprehensive, its use may be summarised thus: (a) Foreign law is a useful aid in approaching constitutional problems in South African jurisprudence. South African Courts may, but are under no obligation to, have regard to it. (b) In having regard to foreign law, Courts must be cognisant both of the historical context out of which our constitution was born and our present social, political and economic context. (c) The similarities and differences between the constitutional dispensation in other jurisdictions and our constitution must be evaluated. Jurisprudence from countries not under a system of constitutional supremacy and jurisdictions with very different constitutions will not be as valuable as the jurisprudence of countries founded on a system of constitutional supremacy and with a constitution similar to ours.

55

See Par. 35 and the correspondent footnotes.

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(d) Any doctrines, precedents and arguments in the foreign jurisprudence must be viewed through the prism of the Bill of Rights and our constitutional values. The relevant question then is what role foreign law can fulfil in considering this case. Where a case potentially has both moral and legal implications in line with the importance and nature of those in this case, it would be prudent to determine whether similar legal questions have arisen in other jurisdictions. In making this determination, it is necessary for this Court to consider the context in which these problems have arisen and their similarities and differences to the South African context. Of importance is the reasoning used to justify the conclusion reached in each of the foreign jurisdictions considered, and whether such reasoning is possible in light of the constitution ’s normative framework and our social context. It is impracticable to attempt to provide a comprehensive overview of foreign law in the body of this judgment. What follows is necessarily selective. A number of countries recognise the claim of parents for damages arising from negligently caused unwanted pregnancies. The grounds for recognition vary. In some cases it is grounded in the mother’s right of choice to have an abortion or right to self-determination, in others by the impact on the parents’ patrimonial interests and, in some cases, the issue is regulated by legislation. Where the claim has not been recognised, it appears that the fact that abortions are not allowed may play a decisive role”.56 Focusing, in particular, on a Duch and a German cases, the Court gives some insights to settle the dispute, reflecting on the positive or negative answers to the wrongful life issue given by the Courts abroad. It is interesting to note that while Foreman J. gives evidence of the comparative tools, he declares that comparative law can be useful in the finding of a solution, as it is consolidated in the Constitutional Court jurisprudence, but not in assessing the final decision, since it is to be carefully taken into account also the constitutional context, the material background. It is, thus, evident that, while in the ruling there is a massive use of foreign jurisprudence, with a revival of the comparative law techniques developed by the Court in the past, there is no attempt to overrule the consolidated line of the critical and selective approach to foreign jurisprudence. And, in fact, he declares 56

Par. 31–34.

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is there any conclusion to be drawn from this comparative survey other than the rather melancholy one that similar kinds of arguments are made in different countries to arrive at different outcomes? Yes, there is, and it is one that we should not be surprised to arrive at, given the caution and approach to the use of foreign law that this Court has expressed in past judgments. The weight given to different arguments in a country is often, if not invariably, determined by the constitutional, political and social context within which the law of that country is determined. For convenience we may call it the “legal culture” of each country. It is from within the perspective of our own legal culture, where all law must be grounded in constitutional values and where considered respect must be given to the fundamental rights set out in the Bill of Rights, that we must assess the various arguments for and against the recognition of the child’s claim here. In this regard the general normative framework of the constitution and the Bill of Rights, the particular prominence given to the best interests of children within that framework, and the openly normative character of our approach to the issue of wrongfulness in our law of delict, must give guidance in the determination of whether the claim should be recognised.57 Given this background, the aim of a comparative law survey appears more clear: it serves as a basis for the legal reasoning of the Court that is to furnish the guidelines to the High Court, to reconsider the case upheld in front of it. And what is more evident from the examined foreign law, and that can be used to develop the South African common law, is that Contextual factors that stand out in whether a country recognises a claim for “wrongful life” include the country’s stance on abortion, the relative emphasis (or lack thereof) that is placed on the rights of children in the judgments on the issue and the type of legal system in place. As a general trend, countries where abortion is prohibited or limited to circumstances where it may save the life of the mother do not entertain “wrongful life” or “wrongful birth” claims. Countries that significantly restrict a woman’s right to choose also do not recognise the claims. Conversely, the jurisdictions that recognise a claim for “wrongful life” are among those that place the least restrictions on a woman’s right to choose”. While the judgments that do not find for a “wrongful life” claim often do not emphasise the interests of children, the judgments that place the greatest emphasis 57

Par. 41.

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on the rights of children tend to be the ones that find that such a claim exists.58 And the South African Bill of rights expressly recognises the children’s rights and interests. The large reference to comparative law, accompanied with the explanation on the methodology used and the emphasis on the usefulness of a comparative exercise characterise this ruling for the strengthening of Section 39(1) of the Bill of Rights. The legal reasoning of the Court, almost in part influenced by the comparative survey, although does not lead to a decision on the merits of this case, let it affirm, in conclusion, that all this judgment determines is that a child’s claim may potentially be found to exist. Whether it does so exist and in what form, needs to be decided by the High Court. The High Court must still determine, if the claim is properly reformulated in delict, whether harm, wrongfulness, negligence, causation and damages have been established. All this judgment lays down is that this must be done within our constitutional imperative that the decision must accord with constitutional rights and values, which must include considering the best interests of the child.59 6

Concluding Remarks

The study of the leading cases has shown what meaning the South African Constitutional Court assigns to the comparative law tool kit. We have considered the methodological approach of the Court and the purposes pursued through the use of the foreign law. We have also considered to what extent the comparison with foreign law has actually affected the ratio decidendi of the decisions; or, more simply, it was only an erudite quote to be relegated among the obiter dicta. Over the years the references to foreign law appear to be gradually diminishing. The awareness of having no obligation to refer to foreign law is strengthened in the conscience of the judges; as well as the need to constantly recall the South African legal tradition. However, the Court is also aware of the advantages that may derive from the wise use of foreign law. Benefits that have

58 59

Par. 42. Par. 81.

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proven most relevant in the initial stage, when the Constitutional Court had to contribute to the building of a democratic and pluralist State. In particular, the use of legal comparisons is more intense whenever the Court considers the possibility to submit some of the rights guaranteed by the Bill of Rights to justifiable limitations under s. 33 constitution. The technique of the two stages approach that the Court uses in its legal reasoning enables it to get down on the concrete case and to identify the most appropriate solution, drawing at the same time useful principles in determining the precedent. The Court has never shown anxiety about transposing foreign legal models in an uncritical way. On the contrary, it has always considered the conditions of comparability with the South African legal system and legal traditions; where, however, it has ruled out the requirement of homogeneity, the cross-border look has taken the tones of a cognitive analysis aimed at highlighting the differences and the reasons of those differences. In the last decade the use of comparative law tool kit has lost its intensity and, probably, the original purpose. At the same time the South African Constitutional Court doesn’t forget the benefits that can come from the use of foreign jurisprudence. The awareness of the correct use of the instruments of comparative law appears to be consolidated in the Court’s legal reasoning.

Part 2 Continental Europe

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Comparative Law and the French Constitutional Council Paolo Passaglia The impact of comparative law on the French Constitutional Council is certainly not among the most straightforward topics to study. Indeed, the risk is to arbitrarily privilege certain perspectives to the detriment of others, and thus obtain results that are so partial as to be devoid of scientific value. On one hand, the Council’s judgments contain no express reference to foreign or comparative law, a fact that makes any potential conclusion unstable, at the very least. On the other hand, however, there is a well-entrenched notion that comparative law has had (and continues to have) a highly significant role in the activity of the Constitutional Council. A paradox thus arises: one may be induced to make a statement (that comparative law does exert an influence) that however cannot be proven, or that can at most be demonstrated only indirectly and, at any rate, inconclusively. Nevertheless, this very paradox was chosen to open this chapter because it constituted the premise of the design of this research. The chapter is thus structured in two parts: the first discusses the (widely recognized) impact of comparative law on the Constitutional Council as an institution; and the second on the (non-demonstrable) impact of comparative law on the Council’s case law. Given these premises, it is clearly impossible to draw any firm conclusions. Rather, it will only be possible to reconstruct the framework under examination and provide some indications on possible future developments. In other words, the issues identified in this chapter remain open and are destined to remain as such for the foreseeable future at least. 1

From an “exception française”1 to an Opening to Foreign Systems

In terms of institutional positioning, very few bodies administering constitutional justice have experienced an evolution comparable to that of the Constitutional Council. In the French system of constitutional justice, the weight of 1 This expression echoes M. Fromont, La justice constitutionnelle en France ou l’exception française, in La Revue Administrative, 1999, pp. 36–45.

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history is such that some preliminary context for the institution’s activity must be provided. Indeed, it is only by bearing the diachronic aspect firmly in mind that the various manifestations of the impact of comparative law on the existence (and then on the case law) of the Council can be adequately investigated. 1.1 The Origins: An Extremely Peculiar Institution When drafting the Constitution of the Fifth Republic, the main aim was to do away with Parliament’s supremacy and establish a more efficient government, based on a strong executive branch and a limitation of Parliament’s powers.2 Furthermore, the French constitutional tradition had been very much influenced by Rousseau’s theory of the law as the expression of the general will, and thus of popular sovereignty.3 Before 1958, the idea that laws (more precisely, the acts adopted by the Parliament as the body representing the People) could not be subject to judicial review was rooted in French legal culture since the Revolution, along with a fear of a “government of judges,” namely of those officials that were supposed to be “the mouth that pronounces the words of the law.”4 Given such a background, one could hardly assert that the establishment of the Constitutional Council by the 1958 Constitution was the result of adoption, on part of France, of foreign models of constitutional adjudication. Indeed, the role that was designated for the new institution was very different from that of (other) Constitutional Courts: the Constitutional Council was meant to be the “gun pointed at the Parliament,”5 to prevent any possible recovery of those powers that the drafters of the Constitution had wanted to remove from it. Rather than protecting individual rights against political bodies, the main task of the Council was therefore to arbitrate legal disputes between Parliament and Government so as to safeguard the new balance that was designed by the Constitution. The Council was indeed the guardian of the Constitution, like foreign Constitutional Courts, but the contents of the 1958 Constitution, which essentially focused on the interaction between branches of government, made the Council a highly peculiar body from a comparative point of view. 2 For an analysis of the Constitution-making process and the purposes of the main actors, see D. Maus, L. Favoreu, J.-L. Parodi (eds.), L’écriture de la Constitution de 1958, Actes du Colloque du xxxe anniversaire, Aix-en-Provence, 8, 9, 10 septembre 1988 (Paris – Aix-en-Provence, Economica – Presses universitaires d’Aix-Marseille 1992). 3 See J.-J. Rousseau, Du contrat social ou Principes du droit politique (1762), Liv. ii, Chap. vi. 4 This definition was introduced by the Baron de Montesquieu, in his De l’Esprit des Lois (1748), Liv. xi, Chap. vi. 5 See F. Luchaire, Le Conseil constitutionnel. Tome i – Organisation et Attributions (2nd edn, Paris, Economica 1997) p. 36.

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In particular, the 1958 Constitution endowed the French Constitutional Council with several competences, related to constitutional review but also to other kinds of functions. Legislative provisions were subject to the Council’s scrutiny only ex ante, i.e. before the Presidential promulgation.6 Parliament’s ordinary laws could be challenged before the Council by the President of the Republic, the Prime Minister, the President of the National Assembly (the lower chamber) and the President of the Senate. The Council’s review of the Parliament’s organic laws7 was mandatory, as well as of that concerning Parliament’s internal regulations. These reviews aimed to prevent the Parliament from regaining, through its rules or legislative acts, powers and functions that the Constitution transferred to other branches, in particular to the Government. Other competences had the same purpose, namely those related to the delimitation of the areas that legislative power can regulate (Article 34 of the Constitution): whenever a bill or an amendment provided for regulation concerning areas which did not fall within the competence of Parliament, the Government was able to challenge it before the Constitutional Council (Article 41 of the Constitution). The Government had also the power to challenge, for the same reasons, a legislative provision already in force, to obtain its “downgrading” by the Constitutional Council to the level of governmental enactments. The Council was also endowed with the power to oversee the regularity of the election of the President of the Republic (who is elected by the people since 1965) and of referenda. In both cases, the Council also proclaims the results. Furthermore, it is the judge of Parliamentary elections and it rules on the eligibility of Members of Parliament and any incompatibilities between their individual pursuits and their public role. The Constitutional Council was given an advisory power in the case of the implementation of Article 16 of the Constitution, according to which “[w]here the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfillment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted, the President of the Republic shall take measures required by these circumstances, after formally consulting the 6 Indeed, the theory according to which legislation is the expression of the general will prevented the Constitutional Council from a posteriori review, since legislative acts, once in force, were conceived as the expressions of rationality. 7 Organic laws are legislative acts subordinated only to the Constitution and prevailing over ordinary laws.

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Prime Minister, the Presidents of the Houses of Parliament and the Constitutional Council.” On the whole, the competences of the Council turned it into an entity very different from a protector of individual rights,8 consistently with the aim pursued by the drafters of the Constitution, which was not to reorganize the way in which rights were to be guaranteed, but to establish a (very) “rationalized parliamentarism,” in the words of Mirkine Guetzevitch.9 1.2 Evolving into a Constitutional Court The evolution of the Fifth Republic greatly affected the role of the Constitutional Council, because of multiple factors. First, the French political system experienced a dramatic change after the entry into force of the 1958 Constitution. As noted above, the Council was supposed to be a “gun pointed” against the Parliament. However, the Constitution was so efficient that the Parliament became a relatively weak institution, at least compared to the President of the Republic and the Government. In this context, the original function of the Constitutional Council became increasingly useless. As a matter of fact, the number of judgments delivered in the 1960s was far from remarkable. A turning point in the Council’s history occurred in 1971. Legislative provisions reforming some aspects of freedom of association were criticized by the opposition and a large part of the public opinion because of its restrictive effects. Once the law was adopted by Parliament (and prior to Presidential promulgation), the President of the Senate submitted the text to the Council, although the functions of the latter could hardly be interpreted as including the power to review infringements of individual rights. Notwithstanding such a major obstacle, in Judgment No. 71-44 dc of 16 July 1971, the Council seized the opportunity to declare the statute unconstitutional. In so doing, the Council interpreted the Constitution so as to broaden the standards for judgment. First, it recognized legal force to the Preamble of the 1958 Constitution; consequently, it extended this recognition to the acts and documents to which the Preamble referred, namely the 1789 Declaration of the Rights of the Man and of the Citizen and the Preamble of the Constitution of the Fourth Republic (1946). Through the latter Preamble, two sets of principles gained constitutional 8 An analysis in English of the birth (and evolution) of the French Constitutional Council is available in A. Stone, The Birth of Judicial Politics in France. The Constitutional Council in Comparative Perspective (New York – Oxford, Oxford University Press 1992). 9 See B. Mirkine-Guetzevitch, Les constitutions de l’Europe nouvelle (Paris, Librairie Delagrave 1928), p. 12.

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status: the political, economic and social principles enumerated in the Preamble and defined as being “especially necessary to our times”; and the “fundamental principles recognized by the statutes of the Republic,” which were not enumerated and were thus to be identified by the interpreters by scanning through the legislation issued by the previous Republics, in particular the longstanding Third Republic (1875–1940).10 Thanks to the new construction of this “block of constitutionality” (bloc de constitutionnalité),11 the Constitutional Council arrogated to itself the power to review legislation not only in light of the organization of powers established by the 1958 Constitution, but also of the rights that had been recognized over time, and in particular the liberties typical of classical liberalism (enshrined in the 1789 Declaration), the group rights recognized in the late nineteenth century (fundamental principles recognized by the statutes of the Republic) and the claim rights typical of the welfare state (principles defined as “especially necessary to our times”). In 1971, the Constitutional Council thus became a potential protector of individual rights. However, the main problem remained the number and type of parties empowered to appeal to it, as all of these parties belonged to the governmental majority (with the partial exception of the President of the Senate, who, in fact, gave rise to Judgment No. 71-44 dc). The position of the Constitutional Council would have probably undergone only minor changes if a crucial constitutional reform had not been adopted in 1974. To balance the power of the majority and strengthen the opposition’s position, the President of the Republic Valéry Giscard d’Estaing supported a reform seeking to confer upon the opposition the power to submit challenges to legislative acts to the Constitutional Council, on the same conditions as those established for other authorities, thus after Parliament’s adoption and prior to Presidential promulgation. The power to challenge legislation was then conferred upon sixty members of the National Assembly and sixty senators. From the entry into force of this reform, the number of claims brought before the Constitutional Council has dramatically increased; and almost all of them were submitted on the initiative of the opposition. Thanks to the constitutional reform, the Constitutional Council gradually became an effective protector 10 11

I have discussed the importance of Judgment No. 71-44 dc in P. Passaglia, La Costituzione dinamica. Quinta Repubblica e tradizione costituzionale francese (Turin, Giappichelli 2008), pp. 247 ff. In that contribution, further bibliographical references are also available. The expression was introduced by L. Favoreu, Le principe de constitutionnalité. Essai de définition d’après la jurisprudence du Conseil constitutionnel : Recueil d’études en hommage à Charles Eisenmann (Paris, Cujas 1975), pp. 33 ff. Formerly, C. Èmeri, L. Seurin, Vie et droit parlementaire, in Revue du droit public et de la science politique, 1970, p. 678, had spoken of a “block of the constitutionality” (bloc de la constitutionnalité).

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of rights, thus increasingly similar to other “real” constitutional courts based on the European model of constitutional adjudication. However, the path towards an accomplished system of constitutional adjudication could not be completed until Article 6 of the 1789 Declaration was conceived as a barrier against the review of legislation in force: the definition of legislation as the expression of the general will, that Article 6 borrowed from Jean-Jacques Rousseau, made it impossible for anyone to question and review acts that were expression of both sovereignty and rationality (the general will having both these attributes). The role of the Constitutional Council was, in fact, limited to the legislative process (since proceedings before it could be defined as a phase of the decision-making process), without any regard to legislative provisions as applied in practice. Such a limitation clearly distinguished the Council vis-à-vis the other national constitutional courts in Europe and, above all, prevented it from ensuring a complete protection of the Constitution (and thereby of individual rights) with regard to legislation, as carried out in the everyday life of the legal order. Another constitutional reform was required to strengthen the protection of the Constitution with a form of ex post review. Attempts to introduce the method of judicial reference to the Constitutional Council were made in 1990 and in 1993; however, after a long and controversial debate, the Parliament rejected the reform bill, thus preserving one of the key features of the French constitutional tradition. Actually, during the 1990s and even more so at the beginning of the twentyfirst century, it was easy to observe that there was little remaining to preserve. Ordinary courts were endowed with the power to review legislation already in force and due to be applied in judicial proceedings. This competence, however, did not result in the adoption of the American model of judicial review, because the standard of judgment adopted by ordinary courts was neither the Constitution nor the block of constitutionality: courts were allowed to review the “conventionality” of French law (primary legislation included), that is, its consistency with European Union law and with international conventions, among which the European Convention on Human Rights.12 The review for conventionality was fostered by the Constitutional Council and its refusal, since 1975, to review the constitutionality of statutes inconsistent with international law, notwithstanding the theoretical possibility, once such 12

See O. Dutheillet De Lamothe, Contrôle de constitutionnalité et contrôle de conventionnalité : Juger l’administration, administrer la justice. Mélanges en l’honneur de Daniel Labetouille (Paris, Dalloz 2007), pp. 315 ff.

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an inconsistency has been proven, to invoke the indirect violation of ­Article 55 of the Constitution, according to which “[t]reaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party.” The paradox is that over the years, the huge development of  the review for conventionality became an issue, because it increasingly based the protection of rights on international sources rather than on the French Constitution. As a further result, the Constitutional Council, being the warden of the Constitution, risked playing only a secondary role in the protection of rights, to the benefit of the European Court of Human Rights and probably, in the near future, of the European Court of Justice. To prevent the risk of outsourcing the protection of rights from materializing, it was necessary to introduce a number of reforms. In particular, the Constitution had to be restored as the cornerstone of the system, and to do so its guardian had to be empowered with adequate competences. The answer was precisely the introduction of a judicial reference procedure, thanks to which legislative provisions could be reviewed also when they already were in force and the protection of rights could be, first and foremost, the result of judgments on consistency with the Constitution, rather than with international human rights instruments. It is therefore no coincidence that the introduction of a judicial reference procedure was one of the most important provisions of the general reform of the Constitution adopted in 2008: “[i]f, during proceedings in progress before a court of law, it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Council of State or by the Court of Cassation to the Constitutional Council which shall rule within a determined period” (Article 61-1, Para. 1, of the Constitution as revised). The conditions for the application of the new procedure were to be determined by means of an organic law. The act carrying out the constitutional reform made the main aim of the reform itself explicit, by establishing a question prioritaire de constitutionnalité (qpc), namely a “priority preliminary ruling on the issue of constitutionality:” the adjective “prior” refers, indeed, to the ordinary courts’ obligation to raise a question of unconstitutionality before engaging in any review for compatibility with supranational law. In March 2010, with the entry into force of the organic law and the concrete application of this judicial reference procedure, the French legal order eventually gained a system of constitutional adjudication in which the Constitutional Council was able to protect fundamental rights in ways that were comparable to those of its foreign counterparts, among which of course the German, Spanish, and Italian

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constitutional courts, as the judicial reference procedure established in those countries were the main models that inspired the French legislator.13 The Role of Scholarship (and of Comparative Law) in the Evolution of the Constitutional Council The changes leading to the Constitutional Council’s current institutional position were accompanied with and, to a certain extent, prepared by constitutional law scholarship, another context in which the classic references to Rousseau and the public law scholars of the early 1900s were replaced with ideas originating in the foreign legal systems in which constitutional justice had developed first and in a more detailed manner. There remained, and remains to this day (although the trend is reversing), a strong connection between constitutional law and political science, as eloquently testified by the many manuals bearing titles along the lines of Institutions politiques et droit constitutionnel. However, in the 1980s, a nouvelle vague appeared alongside this approach and became consolidated. The “new wave” consisted in scholars who, on the basis of the conviction that politics had been “saisie par le droit”,14 proposed an analysis of constitutional law that focused on legal provisions, rather than on politics. Within such an analysis, a primary role was to be ascribed precisely to the institution that had sanctioned the definitive transformation of the Constitution from an essentially political document to a veritable set of norms.15 1.3

13

14 15

With reference to the question prioritaire de constitutionnalité, see M. Disant, Droit de la question prioritaire de constitutionnalité. Cadre juridique, pratiques jurisprudentielles (Paris, Lamy 2011); X. Magnon, qpc – La Question Prioritaire de Constitutionnalité. Pratique et contentieux (Paris, Litec 2011); J.-B. Perrier (sous la direction de), La question prioritaire de constitutionnalité (Aix-en-Provence – Marseille, puam 2011); X. Philippe, M. Fatin-Rouge Stefanini (ed), Question prioritaire de constitutionnalité: Premiers bilans. Actes du colloque du 26 novembre 2010 organisé par l’Institut Louis Favoreu et la Communauté du Pays d’Aix (Aix-en-Provence, Marseille, puam 2011); J.-H. Stahl, C. Maugüé, La question prioritaire de constitutionnalité (Paris, Dalloz 2011); D. Rousseau (sous la direction de), La question prioritaire de constitutionnalité (2nd ed., Paris, Lextenso 2012); E. Cartier (ed), La qpc, le procès et ses juges: l’impact sur le procès et l’architecture juridictionnelle (Paris, Dalloz 2013); É. Dupic, L. Briand, La question prioritaire de constitutionnalité, une révolution des droits fondamentaux (Paris, puf 2013); M. Verpeaux, La question prioritaire de constitutionnalité (Paris, Hachette 2013); J. Bonnet, P.-Y. Gahdoun, La question prioritaire de constitutionnalité (Paris, puf 2014); L. Gay (ed), La question prioritaire de constitutionnalité. Approche de droit comparé (Bruxelles, Bruylant 2014); G. Carcassonne, O. Duhamel, qpc. La question prioritaire de constitutionnalité (Paris, Dalloz 2015). In this regard, the title of L. Favoreu’s volume – La politique saisie par le droit. Alternances, Cohabitation et Conseil constitutionnel (Paris, Economica 1988) – is particularly eloquent. The new cultural environment could become established thanks to a number of judgments handed down by the Constitutional Council. Among these, the most important

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This new awareness fostered, first and foremost, a conception of the Council as a genuine constitutional judge, called upon to act as “régulateur de l’activité des pouvoirs publics”,16 but also one that increasingly protected individual rights. In this regard, the words of Louis Favoreu – who for over thirty years was certainly the most attentive observer of “constitutional case law”, and who, having founded the “School of Aix”, with his students progressively imposed his new way of studying constitutional law upon the French scholarly scene – are particularly apt. This observation would suffice in itself to justify the reference made. For present purposes, however, it is all the more necessary in light of the methodology adopted to renew the epistemological canons of French constitutional scholarship. Indeed, Favoreu’s writings are characterized, on one hand, by attention for “le droit constitutionnel jurisprudentiel” (“case-law constitutional law”), the circulation of which he energetically promoted (also by publishing periodical overviews) and, on the other (especially) by the connection between the new conception of the Constitutional Council and the constant comparison with other constitutional courts. Therefore, comparative law facilitated the evolution of the Constitutional Council into a body of constitutional justice: comparative law, which on several occasions highlighted the “delays” of the French system, was used not only statically, to note the sometimes irreducible differences with other systems, but also dynamically, to expedite the construction (largely through interpretation) of a system of constitutional justice.17 Such an approach gained acceptance through Favoreu’s studies on the European model of constitutional justice. These studies, dating back to 1986,

16

17

appears to be Judgment No. 85-197 dc of 23 August 1985, in which the Council revisited the traditional definition of laws, confirming their subordination with respect to the Constitution: “parliamentary law […] expresses the popular will only within respect of the Constitution”. See L. Favoreu, Le Conseil constitutionnel, régulateur de l’activité normative des Pouvoirs publics, in Revue du droit public et de la science politique, 1967, pp. 5 ff. The title of this article echoes the formulation with which the Constitutional Council had defined itself, in Judgment No. 62-20 dc of 6 November 1962 on the law (adopted by referendum) introducing universal suffrage in the elections for the President of the Republic. For a forceful statement of the role of comparative law on the evolution of the Constitutional Council, see B. Ravaz, Le recours au droit comparé comme moyen pour le juge de suggérer une évolution législative, in T. Di Manno (ed), Le recours au droit comparé par le juge (Brussels, Bruylant 2014), p. 225, according to whom “the French Constitutional Council owes its existence and extraordinary development largely to comparative law, from which it drew inspiration to emancipate itself and which played the part of democratic standard, of an indispensable model”.

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compare the French Constitutional Council to the constitutional courts and tribunals of Austria, Italy, Spain, Belgium, Germany, and Poland.18 On the basis of this study, several other textbooks were written, mostly by authors belonging to the School of Aix-en-Provence (and others close to it19), and that were published especially in the Collection Droit Public Positif (founded by Favoreu himself), which focused on individual aspects of constitutional justice and compared the French system with one or more foreign systems. The study of comparative constitutional justice was further stimulated by the organization in the city of Aix-en-Provence of the yearly Table ronde internationale sur la justice constitutionnelle, at which constitutional scholars and jurists from various countries discuss a predefined topic. The Tables rondes, the first of which took place in 1985, continue to be held today: their proceedings, together with overviews of the case law of individual courts, are published in the Annuaire International de Justice Constitutionnelle. Today, the “School of Aix” is certainly not alone. French constitutional scholarship has increasingly paid constant attention to constitutional justice (also) from a comparative perspective, especially as a result of the activity of particularly prolific centres such as that of the Université de Paris i and of the Université de Montpellier. This is evident from the writings on comparative constitutional justice20 published from the beginning of the 1990s, and that form the basis upon which the subsequent generation of scholars propose new systematizations.21 Amid the intensifying interpenetration between the study of national and comparative constitutional justice, the introduction of the preliminary question of constitutionality, which nullified the “exception française”,22 certainly facilitated transnational scholarly dialogue, in that studying consolidated foreign systems which gave rise to the incidental review for constitutionality 18 19

20

21 22

L. Favoreu, Les Cours constitutionnelles (Paris, Dalloz 1986). Several editions of this work have been published, most recently in 2016: F. Favoreu, W. Mastor, Les Cours constitutionnelles (Paris, Dalloz 2016). Such as the School of Toulon, led by Jean-Claude Escarras, which focused predominantly on comparison between the French and Italian legal systems; and the School of Pau, led by Franck Moderne and then by Pierre Bon, engaged especially in comparison with the legal systems of the Iberian peninsula. See especially D. Rousseau, La justice constitutionnelle en Europe, Paris, Montchrestien, 1992; M. Fromont, La justice constitutionnelle dans le monde (Paris, Dalloz 1996); an extensive re-elaboration was recently published: see M. Fromont, Justice constitutionnelle comparée (Paris, Dalloz 2013). See especially G. Tusseau, Contre les “modèles” de justice constitutionelle: essai de critique méthodologique / Modelli di giustizia costituzionale: saggio di critica metodologica (Bologna, Bononia University Press 2009). Cfr. G. Tusseau, La fin d’une exception française?, in Pouvoirs, No. 137, 2011/2, pp. 5–17.

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prompted solutions, first in view of elaborating the legislation on [constitutional] proceedings and, next, for the development of constitutional justice.23 Thus, it is no coincidence that French constitutional scholarship has increasingly shown interest in the Constitutional Council’s use of comparative law.24 Indeed, in this type of research – previously conducted for other branches of the legal system25 – it is possible to identify the existence a “dialogue” between the Council and its foreign counterparts, also to attain complete and definitive entrenchment of constitutional justice within a legal system that more than any other is a legicentrc one. 1.4 The Constitutional Council’s International Relations The various editions of the aforementioned Table ronde of Aix-en-Provence have been attended by members of several constitutional courts and of the Constitutional Council. Therefore, they have provided opportunities for judges to exchange views and knowledge. Beyond these and other “informal” events, the Council has long been one of the most active bodies of constitutional justices on the international scene. Indeed, the Council meets often with its foreign counterparts. All these meetings allow the Constitutional Council to gain international recognition and to constantly enrich itself with the experience of its counterparts.26 23 24

25

26

In this connection, the study the results of which are contained in L. Gay (ed), La question prioritaire de constitutionnalité. Approche de droit comparé, Brussels, op. cit., is emblematic. See M.-C. Ponthoreau, Le droit comparé en question(s) entre pragmatisme et outil épistémologique, in Revue internationale de droit comparé, 2005, pp. 7–27; D. Maus, Le recours aux précédents étrangers et le dialogue des cours constitutionnelles, in Revue française de droit constitutionnel, 2009, pp. 675–696; T. Groppi – M.C. Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Oxford, Hart 2013); A. Le Quinio, Recherche sur la circulation des solutions juridiques. Le recours au droit comparé par les juridictions constitutionnelles (Clermont-Ferrand, Fondation Varenne 2011); T. Di Manno (ed.), Le recours au droit comparé par le juge, op. cit.; J. Rio, Le Conseil constitutionnel et l’argument de droit comparé, in Revue Juridique de l’Océan Indien, 2015, No. 21 (http://lexoi.fr/index. php?id=6638#tocto1n1) [acceded 30 August 2017]. With regard to private law, see R. Legeais, L’utilisation du droit comparé par les tribunaux, in Revue internationale de droit comparé, 1994, pp. 347–358; G. Canivet, La Convergence des Systèmes Juridiques du Point de Vue du Droit Privé Français, (2003) 11 European Review of Private Law 1, 50; for administrative law, see F. Melleray (ed), L’argument de droit comparé en droit administratif français (Brussels, Bruylant 2007). More generally, see B. Markesinis, Juges et universitaires face au droit comparé. Histoire des trente-cinq dernières années (Paris, Dalloz 2006); G. Canivet, ‘The practice of comparative law by the supreme courts’, in B. Markesinis, J. Fedtke (eds), Judicial Recourse to Foreign Law: A New Source of Inspiration? (London – New York, Routledge 2012) pp. 309–328. With regard to the international relations of the Constitutional Council, see the ­presentation on the institution’s website (http://www.conseil-constitutionnel.fr/conseil

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Recently, Laurent Fabius, the President of the Council, has stated that the strengthening of the international activity of the Constitutional Council as a priority. i. On a bilateral basis, the President and the members of the Constitutional Council regularly receive their foreign counterparts and travel to foreign courts. These meetings enable constitutional judges to forge closer ties, to reflect together on their jurisprudence and to place their decisions in a constantly changing international context. Many other foreign personalities are also welcomed to the Constitutional Council. In addition, the Constitutional Council maintains regular exchanges with European courts (European Court of Human Rights and Court of Justice of the European Union). The opening to this type of relationship with its foreign counterparts also materializes in the inclusion, in all numbers of Les Nouveaux Cahiers du Conseil Constitutionnel (the journal published by the Council itself),27 of an information file on a foreign constitutional court. ii. In the multilateral context, the Constitutional Council is a member of numerous international bodies, such as the European Commission for Democracy through Law, also known as the Venice Commission (since 1990), the Conference of European Constitutional Courts (since 1987)28 and the World Conference on Constitutional Justice (since 2013). Another important network is the Association des Cours constitutionnelles ayant en partage l’usage du français (accpuf, the Association of the Constitutional Courts sharing the use of French), established in 1997 on the initiative of the French Constitutional Council, with the support of several F­ rench-speaking African Courts. The aim of the Association is to promote the the rule of law through the development of relations between bodies endowed with the task of protecting the Constitution. The Association currently has 45 full members and 3 observers. From the very beginning, the accpuf has its headquarters in the Constitutional Council, which provides it with important logistical support. The

27 28

-constitutionnel/francais/relations-exterieures/relations-internationales/activites -internationales.17420.html), as well as J.-L. Debré, Le Conseil constitutionnel (Paris, Nane 2014), para. 16. After 59 issues, in 2018 this journal was replaced with a new one, Titre VII. Les cahiers du Conseil constitutionnel, which is still published by the Constitutional Council and available on its website. The French Constitutional Council presided over the Conference from 1990 to 1993.

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General Secretariat of the Association is provided by the Head of the External Relations Service of the Council. The very existence of such a service within a rather streamlined bureaucratic structure is particularly significant, in so far as it is an unambiguous sign of the attention paid by French constitutional justice for exchange with other courts. Finally, the Constitutional Council’s attention for international relations is also testified by a policy of regularly translating the fundamental texts (Constitution, organic law, etc.) as well as the most important decisions of the Constitutional Council into English, German and Spanish. 2

The Impact of Comparative Law on Constitutional Case Law

It is difficult to assess the exact impact of comparative and foreign law on the case law of the Constitutional Council, mostly because French judgments do not make express reference to foreign Constitutions, judgments or enacted law. To give an idea of how the Constitutional Council handles comparative law, an indirect inquiry is therefore the only path to follow, to search for some evidence to support the idea suggested in Part i, namely that comparative law has had a significant role in the evolution of the Council (and thus also in its case law). In searching for such evidence, several issues must be taken into account. The following appear to be the most relevant ones: (1) what founds the inference that comparative law is one of the tools on which the Constitutional Council can rely when deciding cases; (2) whether “clues” of this use can be detected in judgments; (3) if yes, whether the elements detected suggest trends in the usage of comparative law; and (4) the reason why references to comparative or foreign law do not appear in judgments. 2.1 The Elements that Testify to the Use of Comparative Law Several elements testify to the use of comparative law by the Constitutional Council. In this regard, a major innovation occurred in 2016, such that a distinction must be drawn between (a) the past and (b) more recent times. 2.1.1 Before 2016 The Constitutional Council’s website provides interesting information on the sources and materials taken into account when deciding cases. i. First, for every judgment, a documentary record (“dossier documentaire”) is available in which the most relevant legal provisions and judgments are

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selected by the Documentation Service and the Legal Service. In these records, the included provisions – which are both constitutional and legislative in ­nature – are all part of the French legal system, as are the judgments, which are chosen from among the case law of the Constitutional Council and of the ordinary courts, especially the Court of Cassation and the Council of State. Those of the latter courts in particular are often included in the documentary record. Examining the records, foreign law appears only randomly. From time to time, French translations of judgments delivered by foreign Constitutional Courts are included, thus making it clear that the comparative argument does play a role solving cases before the Constitutional Council. In a recent and very well-documented research project, resulting in an analysis of the documentary reports, leads the author to admit that references to foreign constitutional case law “are not very common.”29 Nevertheless, foreign judgments are incorporated in some documentary records. In several cases, the German Constitutional Court is the only reference,30 while a reference only to the U.S. Supreme Court is included in another record;31 comparative law research covering various countries are provided in some other records.32 29 30

31 32

See J. Rio, Le Conseil constitutionnel et l’argument de droit comparé, op. cit., p. 21. The documentary record compiled for the judgment issued prior to the ratification of the Treaty Establishing a Constitution for Europe (Judgment No. 2004-505 dc of 19 November 2004) includes an extract of the judgment handed down by the German Constitutional Court on 12 October 1993 concerning the Treaty of Maastricht. The same judgment was included in the documentary report for a judgment related to the referendum that was going to be held for the ratification of the Treaty Establishing a Constitution for Europe (Judgment No. 2005-37 ref of 25 May 2005). The documentary report for Judgment No. 2005-514 dc of 28 April 2005 included a judgment handed down by the German Constitutional Court on 10 January 1995, concerning the impact of EU Law on the freedom of establishment and the free exercise of a profession. A judgment of 22 June 1995 delivered by the same Court on the burden of taxation was part of the documentary reports for the Council’s Judgments No. 2005-530 dc of 29 December 2005 and No. 2007-555 dc of 16 August 2007. Finally, the Judgment of 5 February 2004 by the German Constitutional Court concerning human dignity was included in the documentary report for the Council’s Judgment No. 2008-562 dc of 21 February 2008. The attention paid to German case law and, to an even greater extent, the limited period of time in which such attention was paid suggest that the influence of the foreign law argument was greatly enhanced by the personal knowledge of the researchers working at the Council during those years. See the documentary report for Judgment No. 2012-289 qpc of 17 January 2013, that included the U.S. Supreme Court’s 284 U.S. 299, Blockburger v. United States (4 January 1932), concerning the protection against double jeopardy. Two more specific reports were attached to the general report for Judgment No. 2004-500 dc of 29 July 2004 (and, later, to the general report for Judgment No. 2005-512 dc of 21

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ii. For the first decades of its activity, the Constitutional Council’s website provides another possible source of information: the records of the meetings during which the members of the Council discussed cases and adopted decisions. According to Article 58 of ordonnance No. 58-1067 of 7 November 1958, incorporating an institutional act on the Constitutional Council, as amended by Organic Law No. 2008-695 of 15 July 2008, the public is allowed to access internal documents of the institution, including records of meetings, after twentyfive years. Therefore, the reports of all the meetings that took place before 1992 are now available, uploaded by the Council itself the reports on its website.33 Although an impact of comparative law was found in general terms,34 to date, a complete analysis of the references has not been carried out. To provide an example of what such an analysis could reveal, it is noteworthy that comparative law was taken into account when framing the real turning point of the Council’s history, when the body laid the foundations for becoming a protector of rights and freedoms, and not only an arbiter of disputes between institutions. During the meeting in which judgment no. 71-44 dc of 16 July 1971 was decided, François Luchaire, one of the most prominent members of the Council and an outstanding academic, used the comparative law argument to promote a major change in conceiving the Council’s missions:

April 2005): the first concerned cases regarding provisions of uncertain legal nature (in this report, judgments by the constitutional courts of Spain, the Czech Republic and Slovakia were included); the second was on the clarity, accessibility and intelligibility of the law, and included judgments from Austria, Belgium, Canada, Croatia, Estonia, Hungary, Italy, Liechtenstein, Poland, Russia, and Spain. The documentary report for Judgment No. 2013-669 dc of 17 May 2013, on samesex marriage, included a report with recent judgments by the constitutional courts of Belgium, Portugal and Spain. 33 See http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/comptes-rendus/comptes-rendus-des-seances-1958-1990.147301.html. As of 3 June 2019, the most recent report available was that relating to the meeting of 16 December 1993. For a comprehensive analysis of the most important debates that have characterized the history of the Constitutional Council, based on the ‘unveiled’ reports, see B. Mathieu, J.-P. Machelon, F. Mélin-Soucramanien, D. Rousseau and X. Philippe (eds), Les grandes délibérations du Conseil constitutionnel. 1958–1986 (2nd edn, Paris, Dalloz 2014). 34 With regard to the years 1980–1983, see A. Duffy-Meunier, O. Le Bot, X. Philippe, ‘Quatrième période. Délibérations 1980–1983’, in B. Mathieu, J.-P. Machelon, F. Mélin-Soucramanien, D. Rousseau and X. Philippe, Les grandes délibérations du Conseil constitutionnel, op. cit., pp. 337–338; see also S. Lebedel, ‘La prise en compte des précédents étrangers par les cours constitutionnelles’, in T. Di Manno (ed), Le recours au droit comparé par le juge, op. cit., p. 113.

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When comparing the Constitutional Council with the other Courts of the world engaged in a similar activity, it is always said that the Council governs the activity of the public authorities while the foreign Courts are the protectors of freedoms. Thus, today, the Council must be very careful, because thanks to the case at bar, it can recover this task of protector of freedoms.35 iii. Comparative law references also occur in applications and briefs. In abstract review of legislation, applications by members of either the National Assembly or the Senate sometimes make reference to comparative or foreign law. The abovementioned research on the use of comparative law by the Constitutional Council36 shows that applicants do sometimes mention foreign legislation37 or foreign judgments, mostly by the German Constitutional Court,38 but also by the U.S. Supreme Court39 or the Spanish Constitutional Court.40 Comparative law is also used by the Secretary-General of the Government in its briefs in support of the constitutionality of the contested legislative provisions. Here too, the German Constitutional Court is the most frequently mentioned foreign constitutional court,41 although in several cases the briefs do give more comprehensive outlooks.42 Unfortunately, on the website of the Constitutional Council, comparative law references can be searched for only with regard to judgments delivered 35 See Seance du vendredi 16 juillet 1971. Compte-rendu (http://www.conseil-constitutionnel. fr/conseil-constitutionnel/root/bank_mm/decisions/PV/pv1971-07-16.pdf), p. 19. 36 See J. Rio, Le Conseil constitutionnel et l’argument de droit comparé, op. cit., pp. 17–20. 37 Examples of this practice are the reference to pleading guilty in American criminal process (see the application leading to Judgment No. 2004-492 dc of 2 March 2004) and the reference to the transposition of an EU directive by other Member States (see the application leading to Judgment No. 2006-540 dc of 27 July 2006). 38 See, for instance, the applications in the proceedings leading to Judgments No. 93-324 dc of 3 August 1993 (concerning the status of the Bank of France), No. 96-383 dc of 6 November 1996 (concerning the independence of the representatives of trade unions), No. 2007-555 dc of 16 August 2007 (on the tax burden), and No. 2009-580 dc of 10 June 2009 (on the protection of personal data). 39 See, for instance, the application leading to Judgment No. 2007-554 dc of 9 August 2007, with regard to mandatory minimums in sentencing. 40 See the application concerning the law that legalized same-sex marriage (Judgment No. 2013-669 dc of 17 May 2013). 41 See for example the briefs in the processes that resulted in Judgments No. 2005-514 dc of 28 April 2005 (on the free exercise of professions) and No. 2008-562 dc of 21 February 2008 (on preventive detention). 42 For instance, in briefs concerning the constitutionality of abortion (Judgment No. 2001446 dc of 27 June 2001) or the regulation of immigration (Judgment No. 2003-484 dc of 20 November 2003) or wiretapping (Judgment No. 2004-492 dc of 2 March 2004).

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pursuant to an abstract review of legislation.43 Indeed, when it comes to priority preliminary rulings for constitutionality, only the references by ordinary courts are made public, and not the attendant briefs. iv. The most significant document that can help researchers to establish the impact of comparative law in the decision-making process of the Constitutional Council are comments to judgments drafted by the Secretary-General and the Legal Service of the Council itself. These comments do not constitute part of the judgment, as they are not issued by the members of the Council, and they are only supposed to provide an explanation of what the Council has stated in a (usually) very concise judgment. Nonetheless, because of the significance of the Secretary-General within the decision-making process, it is fair to state that these comments are highly authoritative, in particular with regard to the factors that the Council took into consideration in deciding the case: indeed, it is the Secretary-General who is in charge of preparing a draft of the judgment, a draft that represents the basis of the debate that occurred among the members of the Council. In other words, these comments are by far the most important pieces of information when it comes to identifying references to comparative and foreign law: simply because of their purpose, the explanation of legal reasoning requires referencing the material that was used (or rather, very likely to be used). As a result, the comments sometimes show that comparative law was used, as well as the way in which foreign judgments or foreign provisions were considered. The abovementioned research on the use of comparative law by the Constitutional Council lists a number of examples of great significance, both because they show how documentary reports or foreign documents cited by the parts were taken into account44 or because they shed light on further documents that the Council has relied on. The latter case seems to materialize mostly when the Council has to deal with notions or regulations that fall within the scope of mainstream comparative research, such as on freedom of religion and the secular nature of the State45 or on the European Arrest Warrant.46 In some cases, specific references to foreign law are probably the result of previous research carried out by members of the Council, by the Secretary-General or by 43 44 45 46

As well as in the exercise of the review of New Caledonian legislation (judgments LP), which is also an abstract form of review. See, for instance, comments concerning the judgments mentioned above, such as Nos. 2003-484 dc of 20 November 2003, 2004-492 dc of 2 March 2004, 2005-514 dc of 28 April 2005, 2008-562 dc of 21 February 2008, and 2012-289 qpc of 17 January 2013. See the comment related to Judgment No. 2012-297 qpc of 21 February 2013. This subject is analysed in the comment related to Judgment No. 2013-314P of 4 April 2013 (with this judgment, the Constitutional Council made its first reference for a preliminary ruling to the Court of Justice).

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collaborators of the Council: the clarifications that the Council was inspired by Italian constitutional case law when deciding upon the limits upon the power of the Constitutional Court to interpret a legislative provision47 or by the American case law related to the effects in time of declarations of unconstitutionality48 seem to fall in this category. 2.1.2 After 2016 The elements listed above are still of great importance in establishing the real impact of comparative law on French constitutional case law; recently, however, changes occurred that provide further crucial evidences. Indeed, 2016 is likely to be considered a turning point for the Constitutional Council for several reasons. One of them is certainly the new approach that was adopted towards comparative law. In February 2016, Laurent Fabius, former Prime minister and former President of the National Assembly, as well as one of the most prominent members of the Socialist Party, was appointed President of the Constitutional Council. Since he took office, he has promoted some major innovations, among which the set up of a Comparative Law Unit. i. The Unit began operating in September 2016, when the first researcher was recruited as “chargé de mission.”49 Currently, the Unit, that is part of the Documentation Service, consists in a researcher assisted by an intern; however, the number of researchers could be growing. This outlook is consistent with the evolution of the Comparative Law Unit of the neighboring Council of State, which was established in September 2008, with one researcher, and that currently counts on three researchers.50 47 48 49

50

See the comment related to Judgment No. 2010-39 qpc of 6 October 2010. On the “living law” doctrine elaborated by the Italian Constitutional Court and on the reference to it made by the French Council, see below, Para. 2. A clear reference to prospective overruling can be found in the comment related to Judgment No. 2013-336 qpc of 1 August 2013. Because of its recent establishment, there is scant publicly available information on the Comparative Law Unit (indeed, the Comparative Law Unit is still unmentioned in the Constitutional Council’s website). The short description of the structure and of the functioning of the Unit in this text was kindly provided by Ms Layus during an interview that took place on 20 July 2017. On the Comparative Law Unit of the French Supreme Administrative Court, see J.-M. Sauvé, Intervention, in Le Conseil d’État et la comparaison des droits: La comparaison en droit public (Hommage à Roland Drago). Colloque organisé par l’Institut français des sciences administratives et la Société de législation comparée, Conseil d’État, 14 février 2014, http:// www.conseil-etat.fr/content/download/3887/11689/version/1/file/2014_02_14_hommage_ drago_droit_compare24022014.pdf (24 February 2014), p. 7. [acceded 30 August 2017].

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ii. The existence of a Comparative Law Unit clarifies that comparative law deserves special attention in the activity of the Constitutional Council and, above all, in the reasoning of the Constitutional Council. Indeed, the Comparative Law Unit is quite frequently asked, by the Legal Service or by members of the Council, and in particular by the judge-rapporteurs of individual cases, to draft research related to the legal issues that are before the Council. In this regard, comparative law researchers attend the preparatory meetings organized by the Secretary-General or by the Legal Service51 in which the questions pending before the Council are analysed. When there is scope to compare the legal solutions identified in different orders and such a comparison can be beneficial, the Comparative Law Unit drafts a special report. During its first year of operation, the Unit edited approximately twenty reports, as well as other informal briefs concerning foreign legal orders. These data suggest that the Comparative Law Unit significantly helped increasing the frequency of the use of comparative law. Another major change produced by the existence of the Unit concerns the drafting of the comparative law report. In the past, support for comparative law mainly consisted in translations of foreign judgments (or, more specifically, an abstract thereof) and legal provisions. Today, however, the Comparative Law Unit drafts reports that combine a first part consisting of a comparative introduction and a second part that focuses on those experiences considered to be more interesting for French lawyers, namely the United States of America, the United Kingdom, Germany, Spain and Italy.52 The choice of these foreign legal orders – which is clearly consistent with the references found in the documentation on the Council’s activity before 2016 – was determined on the basis of ‘scientific’ reasons: reports focus on experiences for which the Comparative Law Unit can handle primary sources of documentation. Indeed, the Constitutional Council subscribes to foreign legal information databases. Other legal orders may be taken into account when they are particularly important with regard to specific issues. In some cases, references are made to 51 52

The Secretary-General organizes the meetings on the abstract review of legislation, whereas the Legal Service organizes the meetings to prepare the examination of priority preliminary rulings on issues of constitutionality. In the Constitutional Council’s history, comparative law reports did not appear for the first time only with the establishment of the Comparative Law Unit. Previously, the Council would appoint academics to draft research on specific issues. Today, such outsourcing is in principle not needed anymore. In any case, academics can be consulted by the Comparative Law Unit if they are specialized in the issue at stake and/or on a foreign legal system.

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comparative law reports drafted by other institutions, to broaden the number of legal systems considered. Regrettably, these reports are not (yet?) available on the Council’s website, unlike the documentation concerning French law:53 their consultation would certainly be a very enriching way to comprehend the real impact of comparative law in the practice of the Council’s decision-making. iii. The Comparative Law Unit is also engaged in providing the members of the Council with information concerning current legal news from abroad, especially with regard to judgments delivered by constitutional courts that can be of interest in terms of suggesting solutions to major issues that may or have come before the French Constitutional Council. In Summer 2017, the Unit planned, for the autumn, to launch a newsletter on foreign judgments. This provision of updates on current foreign case law is supposed to strengthen the idea of the common ground upon which courts operate and to highlight the benefits deriving from a comparative approach: although the newsletter may not be related to cases currently before the Council, it is intended to demonstrate that foreign judgments deal with issues that could easily arise in France, such that a sensitivity to comparative law can be developed irrespective of its actual benefit, by promoting a cultural approach that displays the anachronism that is a rigid legal nationalism. iv. Its field of study makes the Comparative Law Unit the ‘natural’ terminal for all requests concerning foreign law. Therefore, it is up to the Unit to review information notes prepared by the External Relations Service on the foreign legal systems with which the President of the Council is in contact, notably when official visits are organized. In these information notes, together with a presentation of the system (in particular, of the system of constitutional adjudication), summaries of the most important and/or recent judgments delivered by the hosting Court are provided. v. Among the tasks of the Comparative Law Unit, the establishment of relationships with the legal services (or comparative law units) of foreign courts deserves special attention, as the need to create a network linking units sharing the same fields of research and the same approach to legal issues is perceived to be increasingly crucial, both because it can help to improve the quality of 53

With the exception of articles and surveys, that are included in the report but are omitted in the version published online: on the preparation of the documentary reports, and on what it is included, see F. Jacquelot, ‘La place de la doctrine dans l’instruction devant le Conseil constitutionnel’, in P. Passaglia (ed), I rapporti tra la giurisdizione costituzionale e la dottrina / Les rapports entre la juridiction constitutionnelle et la doctrine, in Atti delle Giornate italo-franco-belghe di diritto comparato – Pisa, 6 e 7 marzo 2015 (Naples, Editoriale Scientifica 2015), pp. 88–91.

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research (thanks to the mutual support that can be fostered) and because it can create the conditions to facilitate and further implement transnational judicial dialogue. 2.2 In Search of Implicit References to Comparative Law As highlighted above, there is no room in the Constitutional Council’s judgments for references to foreign or comparative law. In light of the observations contained in the previous paragraph, however, it is clear that the absence of references cannot be interpreted as an absence of any consideration for comparative law. The fact is that even considering, at most, the references in other documents, such as those mentioned above, the absence of mentions in the judgments makes it virtually impossible to ascertain, even approximately, the use of comparative law in shaping the reasoning behind a decision. Notwithstanding this major difficulty, some research and testimonies have dwelt upon some of the most important judgments delivered by the Council to identify implicit references to foreign law. Among this research, special attention should be paid to that carried out several years ago by a then-member of the Constitutional Council, Olivier Dutheillet de Lamothe,54 who distinguished between foreign influence concerning the merits of the case and that on the techniques employed by the Council. He provides some revealing examples of both forms. i. With regard to the influence of comparative law on the merits of the case, to render its first judgment concerning abortion, in 1975,55 the Council is likely to have taken into account Roe v. Wade, of the U.S. Supreme Court. The French solution was different from the American one, however, so that in further judgments on the subject,56 comparative law helped to classify the French approach as being intermediate between the American pro-choice approach and the pro-life one expressed in a judgment of 1975 by the German Constitutional Court. A more precise example of the use of foreign references is considered to occur in a judgment of 198457 concerning the freedom of academics. To include this guarantee among the “fundamental principles recognized by the statutes 54

55 56 57

See O. Dutheillet de Lamothe, ‘Le constitutionalisme comparatif dans la pratique du Conseil constitutionnel. Intervention au Sixième congrès mondial de droit constitutionnel’ (Santiago de Chile, 16 January 2004) http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/pdf/Conseil/comparatif.pdf, pp. 6–10. Judgment No. 74-54 dc of 15 January 1975. See Judgment No. 2001-446 dc of 27 June 2001. See Judgment No. 83-165 dc of 20 January 1984.

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of the Republic,” the Council looked to the German Constitutional Court in particular to its judgment of 1973 affirming the freedom to teach for professors and the autonomy of universities. The third example provided dealt with immigration law and the administrative detention of migrants: a judgment of 200358 reviewed regulations in this respect, taking into consideration the solutions adopted of the other Member States of the European Union. Finally, the application of the equality principle gave rise to a comparison between different approaches, depending on whether the existence of differences between two cases strictly requires or simply allows for the provision of different regulations.59 ii. A few examples of the influence of comparative law on the techniques employed by the Council will now be provided. The first deals with judgments declaring provisions to be consistent with the Constitution as long as they are interpreted in the way required by the Council (the so-called “reserves d’interprétation”). This elaboration and the development of this type of “interpretative judgments” were very much influenced by analogous techniques that already existed in German and Italian constitutional case law.60 The second example relate to the “diritto vivente” (“droit vivant”, or living law) doctrine, an expression that may recall Roscoe Pound’s distinction between the law in books and the law in action,61 the latter being – in the Italian adaptation – the law as it lives, i.e. the law resulting from the way in which a text (the legal provision) is interpreted. The doctrine consists in the acceptance, by the Constitutional Court, to be “bound” by the consolidated interpretation of a provision, without proposing its own interpretation. The living law doctrine is one of the most significant features of the Italian system of constitutional adjudication, and the French Constitutional Council has adhered to this doctrine precisely with reference to the Italian model.62 58 59 60 61 62

Judgment No. 2003-484 dc of 20 November 2003. See Judgment No. 2003-489 dc of 29 December 2003. The first approach characterizes German and Spanish constitutional case law (as well as that of the cjeu) while the second is promoted by the U.S. Supreme Court and by the Italian Constitutional Court. The essential book on reserves d’interprétation is still A. Viala, Les réserves d’interprétation dans la jurisprudence du Conseil constitutionnel (Paris, lgdj 1999). R. Pound, ‘Law in Books and Law in Action’ (1910) 44 American Law Review 12. On the subject, see C. Severino, La doctrine du droit vivant (Paris – Aix-en-Provence, Economica – puam 2003); more recently, after the establishment of a concrete review of legislation, see e.g. D. Rousseau, L’art italien au Conseil constitutionnel: les décisions des 6 et 14 octobre 2010, in Gazette du Palais, 2010, pp. 2865 ff.; N. Maziau, Brefs commentaires sur

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iii. The above examples are of course far from exhaustive. Many other judgments could also be mentioned, and many other solutions and suggestions from abroad could be considered as sources of inspiration for the French Council. Nevertheless, the lack of concrete evidence inevitably “downgrades” any statement suggesting the presence of foreign influence. The fact that Dutheillet de Lamothe exposed specific examples of such references made while he was a member of the Council (in addition to intervening to expound such information in an international congress, the written record of which is available on the Council’s webpage) strengthens his statements, which can thus be seen as a quasi-formal certification of the role that comparative law has played in the Council’s decision-making process. An Attempt to Define (or to Guess?) Some Trends in the Use of Comparative Law In the light of the difficulties encountered in finding clear and undisputed examples of the use of comparative law by the Constitutional Council, it is rather perilous to attempt to define some trends that may be apparent from the practice. Nevertheless, a few possible and very general directions may be detected. i. First, it is undeniable that there is much choice as to the foreign legal order to focus upon: rather than promoting a wide-ranging comparison, the Constitutional Council chose to deepen the knowledge of certain orders the legal culture of which is supposed to enable appropriate dialogue with the French. Because of their history and their evolution in terms of legal culture, Germany above all, but also the U.S., the U.K., Spain, and Italy are regarded as orders bearing legal solutions that may be of interest to France. Also their scale seems comparable with the French one, not to mention the number of issues that – if for no other than demographic reasons – can offer an array of legal solutions to deal with.63 This choice could be criticized for being ‘Eurocentric.’ Actually, it presumably responds at least to two main needs: on one hand, because of its official mission, the Council cannot rely on indirect knowledge, and therefore even for 2.3

63

la doctrine du droit vivant dans le cadre du contrôle incident de constitutionnalité, in Dalloz, 2011, pp. 529 ff. See D. Maus, Le recours aux précédents étrangers et le dialogue des cours constitutionnelles, op. cit., p. 685: “there is no automatic mechanism that covers the search for foreign precedents and that is the foundation of the dialogue between courts. […] Nevertheless, a number of characteristics deserve to be emphasized. There is, first of all, an undeniable primacy in favor of either the oldest courts or the courts of countries that are geographically and culturally close.”

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foreign legal orders, it must base its research on easily verifiable information;64 on the other hand, given the strict time limits (see below) to render its judgments, it is virtually impossible to extend comparative research to a large number of legal orders without making it superficial and, as a result, risking misunderstandings. ii. Another reason that justifies the selection of countries concerns the purposes that have led the Council to take foreign experiences into account. There are no rules that can explain why the comparative law argument is used in a given case and not in another; however, the examples listed above suggest that there are fields in which comparative law is used more often than in others. Comparison with other countries reveals all of its benefits when the issue at stake deals with subjects related to supranational law or, at least, subjects in which provisions can be found at the supranational level. The clearest example is related to the “margin of appreciation” that the European Convention on Human Rights and the Court of Strasbourg recognize to Member States: a comparison with the solutions adopted in other countries can be beneficial to verify whether the French solution under the Council’s review can be ‘acceptable’ within the system of the European Convention. The same applies in cases where there is no direct influence of supranational law but the Constitutional Council is confronted with major societal issues, as the use of comparative law can help the Council to place French solutions in the legal mainstream or may instead constitute the basis for justifying French peculiarities. Generally, when an issue is hotly disputed, the Council must find all arguments possible to support its decision, Therefore, comparative law can at the very least be a ‘reservoir of ideas.’ Probably, comparative law can also play a significant role when the issue at stake is ‘new,’ and has never been dealt with by the Council before. Therefore, the Council can be urged to examine the decisions already taken by other Courts: abortion can be a good example, although presumably some other cases could also be mentioned, notably with regard to new technologies. However, no undisputable evidence of the use of comparative law can be invoked to support this statement.65

64 65

In this respect, subscription to foreign legal databases is the clearest evidence of the need to handle primary sources of information. With regard to the reasons why the Constitutional Council uses comparative law, J. Rio, Le Conseil constitutionnel et l’argument de droit comparé, op. cit., pp. 34–35, draws a distinction between the cases in which comparative law is used to import new techniques, new grounds of unconstitutionality, a legal reasoning that can modify constitutional review of the legislation; those in which difficult issues are at stake, especially when it comes

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iii. The fact that there are fields in which comparative law is (presumably) used more often than in others may also have an impact on the type of competences during the exercise of which the Constitutional Council tends to look at foreign experiences. As noted above,66 the Constitutional Council has several competences; however, most of them are related to arbitration between public authorities. When exercising these functions, comparative law does not seem to play a crucial role: it is more likely to be used when the Council reviews legislation for constitutionality. In this respect, the two forms of review must be considered separately. iii.a. The subjects submitted to the Council’s concrete review based on priority preliminary rulings tend to be those for which comparative law may be of interest, as such cases deal with infringements of “the rights and freedoms guaranteed by the Constitution” (Article 61-1 of the Constitution): comparison with how rights and freedoms are protected abroad is frequently facilitated either by the existence of supranational law that leaves a margin of appreciation to States or by the possible repercussions of the Council’s judgment on social issues. The main problem with comparative law lies in the stringent time limit within which the Council must decide, as no more than three months can elapse between the lodging of the preliminary ruling and the delivery of the Council’s judgment. In this brief space of time, it is difficult to carry out indepth research and draft a comprehensive report. Therefore, the Comparative Law Unit must carefully select the issues to concentrate on, and neglect the others. In other words, the structure of the Unit, together with the limited time available for the Council to decide the case, cannot to date guarantee wideranging coverage for the issues that come before the Council. iii.b. The time limit is also an issue in abstract review, as the Constitutional Council must deliver its judgment within one month from the day on which the application is lodged. In practice, however, the limited period of time does not prevent a complete analysis of the case, also with regard to comparative law: the most important acts debated in Parliament are generally likely to be deferred to the Council’s review after they have been finally adopted, and thus the Legal Service and the Comparative Law Unit can begin their work well before the application, following parliamentary proceedings and preparing in

66

to social issues; and those related to issues that have an international or a supranational scope. See Part i, Paras. 1–2.

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advance so as to be capable of issuing reports soon after the application reaches the Council.67 However, other reasons also exist to hamper the use of comparative law in the abstract review of legislation. In France, a relatively large amount of space (compared to that available to other bodies of constitutional justice) is reserved to the advancing of and decision-making upon alleged formal and – especially – procedural flaws in legislation.68 The Constitution’s provisions on the legislative process are probably unique in the context of comparative law, due to the extremely detailed innovations introduced by the Constituent Assembly in 1958. Indeed, these are difficult to compare with the usually scant and general provisions featuring in almost all other constitutions around the world. Formal defects are generally difficult to compare, given that the associated scrutiny focuses on factual evaluations of how the legislative process actually occurred – evaluations that often take on very different meanings depending on the legal system in which they are made. Therefore, while the preventive form of saisine multiplies the number of procedural flaws impugned, it also leads to a correlated contraction in the range of substantive unconstitutionalities, with regard to which, however, comparison appears to be more straightforward and (most importantly) more “profitable”. As for those claims of unconstitutionality concerning the content of legal provisions, it may be stated that the observations made with regard to concrete review apply. At a first glance, the peculiarity of the means of lodging a claim with the Constitutional Council may be considered to contribute to a reduction in the importance of constitutional law. However, upon closer examination, the necessarily pre-emptive nature of the judgment appears rather to enhance the importance of taking other legal systems into account: when deciding pre-emptively, the Council must decide upon the text by envisioning its interpretation, with the benefit only of case law on different legal provisions (albeit regulating the same or similar subject). The chance to avail itself of the support of comparative law may thus be important, as it may foster the identification of trends emerging from case law. 67

68

This organization of work (described, for instance, by J. Robert, La garde de la République. Le Conseil constitutionnel raconté par l’un de ses membres (Paris, Plon 2000), p. 101) is possible only for abstract review; t is nearly impossible to anticipate the issues that will come to the Council’s attention via a priority reference ruling. See P. Passaglia, L’invalidità procedurale dell’atto legislativo. Le esperienze italiana e francese a confronto (Turin, Giappichelli 2002), pp. 183 ff.

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The Reasons for the Absence of Explicit References to Comparative Law On one hand, the foregoing considerations fuel the conviction that comparative law plays a non-negligible role in the Constitutional Council’s case law. On the other hand, however, they do not explain why comparative law goes wholly unmentioned within its judgments. In this connection, two possible explanations may be adduced, the first general and the other relating directly to how the Council’s judgments are structured. 2.4

2.4.1 An “Opportunistic” Silence When studying the impact of comparative law on constitutional justice, it must be recalled that in many legal systems, a certain resistance has developed against the use of foreign law. The longstanding debates on this issue within, for example, the U.S. Supreme Court (see Chapter 3) illustrate how in many legal systems, comparative law has yet to reach full, uncontested and “official” recognition as material suitable for express invocation in court. This underlying ambiguity also appears to exist in the French system, especially in the Constitutional Council. Given this backdrop, the absence of express references to foreign or comparative law may be explained by the need – of those who resort to and benefit from comparative law – to avoid the role of comparative law from being formally challenged by its opponents, with the risk of making it more difficult to engage in legal comparison in the future. This interpretation is consistent with that espoused by those who believe that “constitutional judges do not cite, in their decisions, their foreign sources of inspiration […] to avoid suggesting that they may be disowning their national constitutions, and thus to avoid being accused of disowning them”.69 To use somewhat brutal but (hopefully) at least evocative terms, once the use of comparative law has been demonstrated, the absence of references thereto no longer appears to deny its significance, but rather simply denote a wish to safeguard its role against possible attacks. Hence qualification of this silence as “opportunistic”, as it strives to protect the current freedom to compare from possible criticism until its definitive and unanimous acceptance, when the silence can finally be broken.

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M.-C. Ponthoreau, ‘Le recours à “l’argument de droit comparé” par le juge constitutionnel. Quelques problèmes théoriques et techniques’, in F. Mélin-Soucramanien (ed), L’interprétation constitutionnelle (Paris, Dalloz 2005), p. 176.

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2.4.2 A Drafting Style that is Wholly Unconducive to Making References Beyond the reluctance seen in paragraph (a) above, the difficulty of operating references to foreign or comparative law could also be explained by a peculiar feature of the Constitutional Council. This particularity, however, does not lie in the fact that the Council’s members are not empowered to draft dissenting or concurring statements (which in many legal systems are the means through which references to comparative law are introduced and may substantially proliferate). In this respect, the French Constitutional Council is certainly no exception, given that a consistent (albeit decreasing) number of constitutional courts do not allow for the drafting of individual opinions.70 Rather, it must be noted that until May 2016, unlike in the majority of the systems of constitutional justice, judgments were not written in the form of a dissertation, but rather were based on the so-called “vis-con-dis” scheme, which is typical of French courts. Decisions were divided into three parts: the visas, enumerating the relevant legal texts and provisions; the considérants, or paragraphs containing the judicial reasoning; and the dispositif, the declaration of constitutionality or unconstitutionality. The decision was always structured around the same principal sentence, which was divided into two parts: one forming the beginning of the judgment and the other closing the reasoning section (“Le Conseil constitutionnel […] decide”). Between these two fragments, the visas and the considérants were inserted as subordinate clauses, in grammatical terms.71 Such a structure could not readily accommodate references to comparative law. They could not be placed in the visas, as that would have promoted them from an “argument” to be made in the proceedings to a “parameter” against which the decision had to be taken, which was objectively difficult to theorize. Likewise, the references could not be inserted in the considérants, as the reasoning was congealed within an inevitably complex grammatical structure, 70

71

In French scholarship, the main point of reference is W. Mastor, Les opinions séparées des juges constitutionnels (Paris – Aix-en-Provence, Economica – puam 2005), which analyses the theory and practice relating to judges’ individual opinions, both in comparative terms and with specific regard to the situation of the Constitutional Council. For an analysis of the reasoning of the Constitutional Council’s decisions, see D. Baranger, Sur la manière française de rendre la justice constitutionnelle. Motivation et raisons politiques dans la jurisprudence du Conseil constitutionnel, in Jus Politicum, n. 7, 2012, http:// juspoliticum.com/article/Sur-la-maniere-francaise-de-rendre-la-justice-constitutionnelle-478.html; M. Guillaume, La motivation des décisions du Conseil constitutionnel, in Annuaire international de Justice constitutionnelle, 2012, pp. 49 ff.; G. Canivet, ‘La motivation des décisions du Conseil constitutionnel’, in S. Caudal (ed), La motivation en droit public (Paris, Dalloz 2013), pp. 236 ff.

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unsuitable for an analytical reconstruction of the ratio decidendi and the inclusion of obiter dicta. Moreover, especially since the 1980s, the Council’s judgments became longer, while maintaining their traditional structure. Comparing its early and more recent pronouncements, it was possible to identify a departure from largely apodictic reasoning sections to explanations (albeit still somewhat concise) of the reasons for the Council’s decision. To give some examples, two of the most important judgments handed down in the 1970s – on the freedom of association72 and on abortion73 – ­contain six considérants (for a total of less than 400 words) and ten considérants (with overall less than 600 words) respectively. More recent judgments paint a wholly different picture. The judgment on the law on the statute of Corsica74 consists in 59 considérants, for a total of almost 6,000 words; that on the 1993 immigration law75 reaches 134 considérants and 12,000 words overall; the judgment on the 2006 financial law76 has 104 considérants and a word count of 10,000 words total. The discrepancy in the data is certainly largely related to the breadth of the subject-matter of the case, as the reasoning section would be inevitably longer if the Council had to decide on texts rich in legal content (as in the very examples made above). Nevertheless, the tendency to augment the reasoning sections was a general phenomenon, although certain rather “brisk” judgments did endure, even on sensitive issues. Emblematic in this respect is the three-considérant judgment on the constitutional reform law on decentralization, particularly significant because it ended the longstanding debate on whether the Council could review constitutional laws, stating that this was not possible.77 However, this general extension of the length of judgments, which was moreover borne out also by the establishment of the practice of numbering the considérants, did not appear to significantly foster the introduction of references to comparative law, which nevertheless require at least some contextualization and a (comparative) evaluation of its transferability to the domestic legal system. The structure of the reasoning thus remained a decisive obstacle; regardless of how analytical the reasoning could be, it remained caged within a rigid structure which was hardly reconcilable with any form of digression. 72 73 74 75 76 77

Judgment No. 71-44 dc of 16 July 1971. Judgment No. 74-54 dc of 15 January 1975. Judgment No. 91-290 dc of 9 May 1991. Judgment No. 93-325 dc of 13 August 1993. Judgment No. 2005-530 dc of 29 December 2005. Judgment No. 2003-469 dc of 26 March 2003.

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In the same vein, the absence of references to comparative law was related to the absence of any reference that was not essential to the development of the ratio decidendi, including for example to the case law of the Court of Cassation and of the Council of State, references which began to be included only generically and from the end of the last century. In conclusion, although a trend may be identified towards the alignment of the structure of the Constitutional Court’s judgments with that adopted other bodies entrusted with administering constitutional justice, there remained a widespread perception that the progress made was insufficient.78 Therefore, the changes brought about in May 2016 appear to be particularly important, especially for the medium term. Starting with Judgments No. 2016539 qpc and No. 2016-540 qpc of 10 May 2016, “the Constitutional Council has determined to modernize the drafting of its decisions”, to enhance their legibility and provide space for a more detailed reasoning section.79 In practical terms, this “modernization” consisted in a departure from the vis-con-dis scheme. The references previously enumerated in the visas are still placed at the beginning of the decision, although no longer introduced by the word “vu” (“[having] seen”). Instead of the considérants, there is a reasoning section consisting of paragraphs (which however retain the numbered format of the considérants) that contain individual sentences. The dispositif, on the other hand, has remained largely the same.80 Pursuant to these changes, the decisions of the Constitutional Council now certainly approach (at least as regards the structure) those rendered by other bodies of constitutional justice, taking on a format similar to the juridical dissertation. At a first glance, two different evaluations may be made of this reform, depending on the perspective adopted.

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79 80

It is significant (also in light of statements that will be made subsequently in the text of this chapter) that even as recently as last year, an article expressing harsh criticism of the reasoning section of the Constitutional Council’s judgments was published, which denounced its shortcomings at both structural and stylistic levels: F. De Paul Tetang, À propos de la qualité des décisions du Conseil constitutionnel (Réflexions à la lumière de la jurisprudence récente), in Revue française de droit constitutionnel, 2016, No. 108, p. e1-e36. See the Communiqué du Président du 10 mai 2016, available at (acceded 30 Agusut 2017). On the reform of the reasoning section of the Council’s judgments, see most recently an article published by one of the Council’s own members: N. Belloubet, La motivation des décisions du Conseil constitutionnel: justifier et réformer, in Les Nouveaux Cahiers du Conseil constitutionnel, Nos. 55/56, 2017, pp. 7 ff.

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In the immediate term, the changes certainly make the decisions easier to read, even if the Council’s argument-based style remains the same: indeed, with reference to the case law issued over the past year, it may be suggested that beyond the new form, the style of the decisions is actually remarkably similar to that of the the past. However, the changes appear to yield particularly important effects for the longer term. The elimination of the strictures of the vis-con-dis scheme paves the way to reasoning sections that may span over several paragraphs, without necessarily having to assume the form of subordinate clauses. In other words, the new drafting method makes it possible to write longer reasoning sections that extend far beyond the mere link with the ratio decidendi. To date, there have not been significant improvements in the quality of the reasoning sections, although this may be attributed to a certain inertia towards adopting new drafting habits, which was foreseeable. Likewise, however, it should not be surprising if in the medium term, increasingly important efforts are made to overcome tradition in favour of an alignment with the reasoning standards that characterize foreign bodies administering constitutional justice. In other words, the weight of history appears destined to be progressively overcome by comparative analysis.81 Among these efforts, references to foreign or comparative law may very well find a home. 3 Conclusion The observations made in this chapter on the prospects of incorporating references to foreign and comparative law into the decisions of the Constitutional Council suggest the necessarily provisional nature of any conclusion that can 81

That the reform of the system for drafting judgments drew inspiration from foreign legal system is evident from the fact that the June 2017 issue of Les Nouveaux Cahiers du Conseil constitutionnel (No. 55/56) included a research file titled La réforme de la motivation des décisions du Conseil constitutionnel à l’épreuve des modèles étrangers, containing comparisons between the reasoning style of the Council itself and those adopted by its counterparts in Germany (T. Hochmann, Motivation et justice constitutionnelle: le modèle allemand, in Les Nouveaux Cahiers du Conseil constitutionnel, Nos. 55/56, 2017, 23 ff.), the Ibero-American countries (A. Le Quinio, La motivation des décisions du Conseil constitutionnel au prisme du modèle ibéro-américain, id., pp. 33 ff.), United Kingdom (A. DuffyMeunier, La réforme de la motivation des décisions du Conseil constitutionnel à l’épreuve des modèles étrangers: liexemple du Royaume Uni, id., pp. 45 ff.) and United States of America (É. Zoller, Les réformes inachevées de la motivation des arrêts de la Cour suprême des ÉtatsUnis, id., pp. 57 ff.).

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currently be drawn on the impact of legal comparison on the activity of the Council itself. However, the absence of express references, which complicates any attempt at describing the system, may soon be overcome, thus opening up entirely new lines of enquiry. In any case, it may be noted that although implicit, comparison is an activity in which the Council has long invested a wealth of resources and that has recently been taking on an increasingly crucial role, as indicated unequivocally by the institution of a Comparative Law Unit. After all, if – as has been soundly confirmed by now – the Council has been able to evolve into a very different body (also) because of the opening to legal comparison, the pending issue is not so much whether comparative law has influenced constitutional justice, but simply how this influence can be measured. In a few years, it will be possible to have the first few answers to this question too, supported by objective findings. Acknowledgements The author warmly thanks Ms Marie-Laure Layus for her suggestions, her time and her availability.

Comparative Reasoning in Constitutional Litigation: Functions, Methods and Selected Case Law of the German Federal Constitutional Court Sonja Haberl 1

The German Federal Constitutional Court: Introductory Remarks

1.1 History, Jurisdiction and Composition In consideration of its extraordinary powers and the impressive jurisprudence developed since its creation on September 7, 1951, the German Federal Constitutional Court is often compared to the United States Supreme Court which in 1962 Bickel referred to as “the most extraordinarily powerful Court of law the world has ever known”.1 While in more recent times, in light of the scope of its judgments and the sweep of its jurisdiction, some have questioned whether the German supreme constitutional organ may well have surpassed its American counterpart,2 others have wondered whether it has become too powerful and “boundless”.3 In any case, the Bundesverfassungsgericht – with its seat in Karlsruhe, the capital city of the Grand Duchy of Baden (1806–1918) and capital of the Republic of Baden during the Weimar Republic (1918–1933) – as the ultimate arbitrator of institutional and public conflicts in general, is unanimously described as and considered one of the most mighty and admired courts in the world. This is not only because many of the Court’s jurisprudential innovations have become export models in several foreign countries,4 but also because it is partially considered to have become the positive counter-model to the US

1 Alexander E. Bickel, The least dangerous branch: the Supreme Court at the Bar of Politics (Yale University Press 1962). 2 Peter E. Quint, The Most Extraordinary Court of Law the World has ever known? Judicial Review in the United States and Germany (2006) 65 Maryland Law Review 152. 3 See the volume edited by Mathias Jestaedt et al., Das entgrenzte Gericht (Suhrkamp Verlag 2011). 4 As Stefan Martini, Lifting the constitutional curtain? The Use of foreign precedent by the ­German Federal Constitutional Court, in The use of foreign precedents by constitutional Judges 229–230 (Tania Groppi & Marie-Claire Ponthoreau eds., Hart Publishing 2013) notes, it is “widely (and in Germany proudly) held that the German model of constitutional review including the jurisprudence of the German Federal Constitutional Court has served as a role model for many “young” respectively “revised” democracies”.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_011

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Supreme Court,5 upon which it was, to some extent, initially modelled.6 In this context and for the purpose of the present subject matter it is interesting to note that since the beginning of time, the decisions of the German Federal Constitutional Court have drawn comparisons to those of the US Supreme Court and to US law more frequently than to those of the courts and laws of other countries.7 Nevertheless, generally speaking, it is to date a common observation that the German Federal Constitutional Court seems to engage in a rather introverted prospective because it is “more or less ignoring foreign law and precedent”:8 on average the Court refers to foreign materials only a few times a year. Tracing its roots, the Court was created for the purpose of enforcing the 1949 West German Constitution (Grundgesetz – Basic Law). It is a widespread opinion that both the Basic Law and the Constitutional Court draw their strength from the reaction to the dictatorial German Nazi past and, at the same time, from the weakness of the Weimar Constitution of 1919, which is often said to have paved the way for the rise of the Nazi regime.9 The Grundgesetz (hereinafter GG) contains specific provisions regarding the creation of the Court and the conferment of wide-ranging powers, including the explicit adoption of a 5 See Michaela Hailbronner, Rethinking the rise of the German Constitutional Court: From antiNazism to value formalism (2014) 12 Int J Const Law 626, 627. 6 For details on this issue see Marcel Kau, United States Supreme Court und Bundesverfassungsgericht. Die Bedeutung des United States Supreme Court für die Errichtung und Fortentwicklung des Bundesverfassungsgerichts (Springer 2007). 7 See an overview in Edith Palmer, The impact of Foreign Law on Domestic Judgments: Germany, available at https://www.loc.gov/law/help/domestic-judgment/germany.php. 8 Martini, supra note 4, 230. See also Heiko Sauer, Verfassungsvergleichung durch das Bundesverfassungsgericht (2010) 18 jrp 194, 202, Anna-Bettina Kaiser, Verfassungsvergleichung durch das Bundesverfassungsgericht (2010) 18 jrp 203–204 and, more recently, Michaela Hailbronner & Stefan Martini, The German Federal Constitutional Court, in Comparative constitutional reasoning 378 (András Jakab et. al. eds., Cambridge University Press 2017), asserting the „relative lack of engagement with foreign sources“. There are only few voices supposing that the German Federal Constitutional Court refers to the decisions of European and nonEuropean constitutional courts “in many of its decisions”, see the paper of current Federal Constitutional Court’s judges Peter M. Huber & Andreas L. Paulus, Cooperation of Constitutional Courts in Europe, in Courts and comparative law 281, 292 (Mads Andenas & Duncan Fairgrieve eds., Oxford University Press 2015). It has however to be said that amongst the Federal Courts, the Bundesverfassungsgericht is the Court with the greatest number of open references to non-mandatory foreign sources; for an analysis of case law of the Bundesverfassungsgericht, the Bundesgerichtshof and the Bundesverwaltungsgericht see Michal Bobek, Comparative reasoning in European Supreme Courts 140–147 (Oxford University Press 2013). 9 Nonetheless, it must be said that the Court’s current authority and remarkable aggregation of power cannot exclusively be explained by the “Nazi thesis”. For a detailed discussion of this topic, see Hailbronner, supra note 5, 628–639.

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judicial review of constitutionality. From the beginning of post-War deliberations there was no doubt that the new Constitution should have a Constitutional Court vested with great authority, including the competence to hear constitutional complaints of individuals who claim the violation of their fundamental rights or “quasi-fundamental rights”10 by an act of government.11 The right of individuals to petition the Court was however first ensured by statutory enactment, namely the Federal Constitutional Court Act of 1951 (par. 90 ff. Bundesverfassungsgerichtsgesetz – hereinafter BVerfGG)12 shortly after the Court had come into being, and was incorporated into the Basic Law as a constitutional guarantee only in 1969.13 As we will see below, individual complaints play a particularly important role in terms of the use of foreign materials. In addition to this, also within the Court’s competence to prohibit political parties under certain circumstances (art. 21.2 GG), we can refer to a famous case in terms of comparative reasoning – the 1956 Communist Party decision14 – which is generally cited as an example of the dismissive or distinguishing function of comparative law (for this function see par. 2.2.2).15 While the Rules of procedure of the Federal Constitutional Court (Geschäfts­ ordnung des Bundesverfassungsgerichts16) regulate the Court’s internal administration, the Federal Constitutional Court Act as the enabling statute creating the Court contains detailed provisions regarding the Court’s organization, its powers, procedures and jurisdiction. It rules, for example, that the Court is organized into two Senates, composed of eight judges each who decide by simple majority and who themselves appoint several chambers (Kammern) consisting of three judges for the duration of each judicial year (par. 15. a) BVerfGG). In 10 11 12 13 14 15

16

The “grundrechtsgleiche Rechte” are not part of the fundamental rights (art. 1–19 GG), but are specifically listed in art. 93,1 n. 4a) GG. They include art. 20.4, 33, 38, 101, 103, 104 GG. For a more detailed description see Hailbronner & Martini, supra note 8, 357–358. Federal Constitutional Court Act in the version of 11 August 1993 (Federal Law Gazette i p. 1473), last amended by Article 8 of the Regulation of 31 August 2015 (Federal Law ­Gazette i p. 1474). For further details and references see Hailbronner & Martini, supra note 8, 362. BVerfGE 5, 85 (17.08.1956). In this case, in which the constitutionality of art. 21.2 GG was questioned , the Court concluded that this rule was “unique compared with other international dispositions”, and that it was not unconstitutional because of its “particular evolutionary history”. For an in-depth analysis of this case in terms of the functionalist approach see Carl-David von Busse, Die Methoden der Rechtsvergleichung im öffentlichen Recht als richterliches Instrument der Interpretation von nationalem Recht, 349–351 (Nomos 2015). For the other competencies oft the Court see art. 93 GG and par. 13 BVerfGG. Rules of Procedure of the Federal Constitutional Court of 19 November 2014 (Federal Law Gazette 2015 l p. 286).

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the majority of cases, the decision is made by the chambers, which have to decide unanimously. Initially twelve members in 1951, the number of Court members was continuously reduced, first to ten in 1956 and then to eight in 1962. The Court’s judges must have reached the age of forty and their term of office is twelve years without the possibility of reappointment (par. 3 and 4 BVerfGG). They must have acquired the normal legal education of judges, which comprises a two-stage system of university studies and two years of practical education.17 It is the Federal Parliament (Bundestag) on one side, and the Federal Council (Bundesrat) on the other which are called to elect – both with a two-third’s majority – half of the judges each, while the authority to elect the Court’s president alternates between them.18 Three judges from each senate are elected among the judges from the supreme federal courts and, as a general rule, only judges who have served at least three years at one of the federal courts can be elected (see par. 2 BVerfGG). It is worth noting that most of the remaining seats are frequently filled with legal scholars, rather than with legal practitioners or former politicians: currently, only one of the sixteen judges is a former politician19 and ten of them share a university background. 1.2 Structure and Style of the Judgments Due to the high percentage of law professors on the bench, there is a very close link between constitutional justice and public law scholarship. This link is further strengthened by the fact that judges can continue to lecture in law even after appointment to the Court since the office of a Court’s Judge is not incompatible with a professorship.20 In this context, it can be noticed that judges with a university background frequently employ young research assistants as their law clerks who sometimes work at the academic chair of one of the judges21 and who are partly competent for the research and preparation of the draft opinion of the reporting judge. Career judges, on the other hand, normally recruit judges. It is an acknowledged certainty that law clerks coming from university, especially one of the Max-Planck-Institutes for international 17 18 19 20 21

For details on the German legal education system see Sonja Haberl, La formazione del giurista tedesco fra tradizione e propositi di riforma (2017) 7/8 Stud. Iur. 824. For a detailed discussion about the negotiations “behind closed doors” regarding the selection process see Martin Heidebach, The election of the German Federal Constitutional Court’s Judges – A lack of democracy? (2014) 31 Ritsumeikan Law Review 152. From 1999 to 2011 Peter Müller has held the position of Premier (Ministerpräsident) of the state of Saarland. In December 2011 he was elected to the Bundesverfassungsgericht. For details Martini, supra note 4, 237. Hailbronner & Martini, supra note 8, 361.

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law, are regarded as showing more interest in comparative approaches, and generally speaking it can be said that judges with a university background are normally more inclined to use comparative materials than their colleagues.22 Furthermore, it has been stated that there is a great “sense of community” among (academic and practising) lawyers dealing with public and constitutional law issues. On one hand, scholars observe and comment on the Court’s decisions, and on the other hand, the Court’s judges regularly consider and cite German scholarly literature (on average ten times per published decision), sometimes even adopting constitutional doctrines and concepts developed in the literature.23 Also the Court’s style of sentences and reasoning can be described as “academic”: judgments are characterised by a highly scholarly and solemn style – much more so than those of the ordinary courts –, they are rather long and detailed, frequently with elaborate lectures regarding constitutional issues and those of political and societal theory. Although it happens rarely – generally German decisions fall “somewhere between their Indian colleagues with hundred of pages and the French Conseil Constitutionnel”24–, the Court’s decisions can even reach “epic dimensions”:25 the aforementioned judgment of the communist party, a decision consisting of 300 pages, amounts to the size of a textbook and is perhaps the best-known example; but the much more recent Lisbon-decision (for this decision see below par. 2.2.1.1) also reaches a noteworthy length of almost 200 pages. Frequent and extensive references to its own case law is another characteristic of the Court’s style of decisions. References to the “established jurisprudence” (ständige Rechtsprechung) are indeed much more numerous than those to academic writing.26 In terms of the formal structure of the Court’s sentences the judgments generally follow a typical schema: after the description of the facts and the procedure (A) as well as the question of admissibility of the case brought before it (B.), the Court refers to the abstract understanding of the applicable rule (C.I.) and finally to the application in the actual case (C.II).27

22

Sebastian Graf von Kielmansegg, Foreign precedents in constitutional litigation, in German National Reports on the 19th International Congress of Comparative Law 643, 651–652 (Martin Schmidt-Kessel ed., Mohr Siebeck 2014). 23 Martini, supra note 4, 238, Hailbronner & Martini, supra note 8, 366, 378. For a critique from a “foreign lawyer’s perspective” regarding the “dismissive brevity” of citation see Bobek, supra note 8, 136. 24 Hailbronner & Martini, supra note 8, 381 with a more detailed analysis of their length. 25 Kielmansegg, supra note 22, 652; Hailbronner & Martini, supra note 8, 368. 26 Martini, supra note 4, 239 refers to an average of about forty times in recent years. 27 Kielmansegg, supra note 22, 653.

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The possibility to issue separate – dissenting and concurring – opinions (Sondervotum, par. 30 BverfGG) was first introduced by an amendment to the Bundesverfassungsgerichtsgesetz in 1971. It was intended to fortify the position of the single judge as well as to increase transparency and to overcome the “image of the absoluteness” of the Court.28 While the introduction of separate opinions was initially quite controversial, since then the Court seems to have found a “laudable compromise” by holding on to its tradition of collegiality in the decision-making process and avoiding highly polemic opinions. The initially quite extensive use of dissenting opinions with 17 cases out of a total of 72 in the first year after the amendment subsequently decreased and nowadays they are attached to approximately only seven per cent of all decisions. In most cases, separate opinions are delivered as dissenting opinions, and only very rarely as concurring ones.29 In some cases, dissents have even proven useful as a basis for building subsequent changes in the interpretation of the Basic Law.30 Furthermore, it seems that dissents tend to be more open to citing foreign (case) law than the majority opinion (for examples see par. 2.2.1.2). 2

Reference to Foreign Law

2.1 Comparative Reasoning in Constitutional Litigation It is a well-known fact that German Legal scholarship for a long time mostly concentrated on comparative research in the field of private law, thus analysing in particular comparative reasoning in private law courts. More recently, however, scholars show a growing interest in the comparative activities by the German Federal Constitutional Court,31 and it is interesting to note that both former and current judges of the German Federal Constitutional Court have dealt with this issue in their writings.32 28

29 30 31

32

Jürgen Bröhmer, Transparenz als Verfassungsprinzip 290 (Mohr Siebeck 2004). For more details regarding the introduction process of dissenting opinions see Katia Kelemen, Dissenting opinions in constitutional courts, (2013) 14 glj 1345, 1348, available at https:// static1.squarespace.com/static/56330ad3e4b0733dcc0c8495/t/56b1a900f8baf3f5571706 ba/1454483714236/GLJ_Vol_14_No_08_Kelemen.pdf. Hailbronner & Martini, supra note 8, 369. For an example see the dissenting opinions in BVerfGE 73, 40 (14.7.1986) which became the majority opinion in BVerfGE 85, 264. (09.04.1992). See for example Martini & Hailbronner, supra note 8; Busse, supra note 15; Aura Maria Cardenas Paulsen, Über die Rechtsvergleichung in der Rechtsprechung des Bundesverfassungsgerichts (Verlag Dr. Kovac 2009); Kaiser, supra note 8; Sauer, supra note 8; Kielmansegg, supra note 22, Martini, supra note 4. The reference is to Brun-Otto Bryde, The constitutional judge and the International Constitutionalist Dialogue, in Judicial recourse to Foreign Law 295 (Basil Markesinis & Jörg

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Like the major part of the Constitutions,33 the Basic Law does not contain any explicit provision concerning the possibility of the Federal Constitutional Court to take into account the comparative method within the Basic Law’s interpretation, nor does it contain general interpretational guidelines. Thus, the question regarding the legitimacy of the use of foreign law and precedent by the Court was – and continues to be – a point of discussion in academic writing.34 2.1.1 Comparative Law as a “fifth” Method of Interpretation Forty years after Zweigert had claimed for comparison as an “universal method of interpretation”,35 Häberle has proposed comparative law as a “fifth method of interpretation” with regard to the specific field of constitutional reasoning.36 He motivates his proposal with the mentioned absence of interpretation rules in the Basic Law and with the “openness” of constitutional interpretation, lacking an established order within Savigny’s superseded interpretational canon, including grammatical, logical, systematic and historical arguments.37 In particular, in his opinion, the comparative method shall represent the “contemporary dimension” alongside the historical one. Constitutional comparison is thus intended as a “law in (public) action”, aimed at establishing ties between one lived constitution and another lived (neighbour) constitution, on condition that they are similar in wording and systematics, (constitutional) history and culture, telos and ratio.38 When looking at the German Federal Constitutional Court’s activity, we can see that its sentencing sometimes proves a rather (too?) “natural” – albeit rare – application of comparative reasoning, since the Court uses the comparative method along with the classical ones, without however expanding on its

Fedtke eds., Routledge-Cavendish 2006) and Wolfgang Hoffmann-Riem, Constitutional Court judges round table: Comparative constitutionalism in practice, (2005) 3 International Journal of Constitutional Law, 556 on the one side and to current judges Huber & Paulus (supra note 8) on the other. 33 For details with reference to the South-African Constitution see pages 217–259. 34 Recently and with further details Busse, supra note 15. 35 Konrad Zweigert, Rechtsvergleichung als universale Interpretationsmethode (1949) 15 Zeitschrift für Ausländisches und Internationales Privatrecht (later RabelsZ) 5. 36 Peter Häberle, Grundrechtsgeltung und Grundrechtsinterpretation im Verfassungsstaat. Zugleich zur Rechtsvergleichung als “fünfte” Auslegungsmethode (1989) 44 JZ 913. 37 From a foreign point of view see also Donald P. Kommers & Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany 63 (Duke University Press 2012) who state that it is difficult to rank the different approaches to constitutional interpretation “in any fixed order of priority”. 38 Häberle, supra note 36, 913, 917.

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admissibility, utility, requirements and conditions. This kind of “by the way style” of referencing to foreign materials within the conventional interpretational ideologies appears time and again in the Court’s decisions and is frequently introduced by the “somewhat laconic” abbreviation ‘vgl. auch’ (cf also).39 To give only a few examples in this context, we can refer to an early decision of 195240 in which the Court referred to comparative materials, mentioning the Constitutions of three foreign countries in order to interpret the concept “political treaty”. It did that immediately after having referred to the evolutionary history of the questioned concept, and before referring to other methods of interpretation, thus integrating comparative argumentation in the traditional canon of its interpretational methods. Another even more explicit reference to the comparative method as a “fifth” method of interpretation was made in a 1953 judgment in relation to decisions of some German civil courts. Within an activity of judicial gap-filling these courts had developed family law in accordance with the then-new constitutional guarantee of equal rights of men and women (art. 3.2 GG).41 Here the Bundesverfassungsgericht, stating that there was no violation of the principle of the separation of powers, acknowledged that the affected civil Courts “have used the proved and tested sources, i.e. interpretation and gap-filling on the basis of the comparative method”. Stating this, the Court, though not applying itself comparative arguments, describes comparative reasoning as one of its “proved and tested sources”, thus demonstrating right from the outset of its activity a rather clear avowal of its admissibility within the interpretation and gap-filling of national law.42 In another decision of 197043 regarding the refuse of military service, the Court had to decide about the applicants’ possibility to refuse military service and the potential violation of their rights granted ex art. 4.3 GG.44 In its decision, the Court juxtaposed the historical and comparative methods, stating that in order to decide the issue in question “neither the evolutionary history of art. 4 GG, nor the comparison with other legal orders” could be of help due to the 39

40 41 42 43 44

As Bobek, supra note 8, 136 notes, “it is obvious that in a judgment one can hardly expect a long exposé on the functioning of comparative reasoning in courts or a special signpost in the middle of the reasoning stating ‘now comes a comparative argument’. The approach of the highest German federal courts represents however the other extreme where one finds hardly any reflection on the suitability or purpose of foreign authority”. BVerfGE 1, 372 (29.07.1952). BVerfGE 3, 225 (18.12.1953). For a detailed analysis Busse, supra note 15, 201–216. BVerfGE 28, 243 (26.05.1970). Art. 4.3 GG cites as follows: “No person shall be compelled against his conscience to render military service involving the use of arms”.

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lack of conformable rules regarding the refuse of military service “both on an international level and in the Western cultural sphere”. Although the comparative method in this judgment did not lead to any result, we can see that the Court – without any further explanations or statements – gave it exactly the same value as the historical one, effectively recognising it as the “fifth” method of interpretation.45 In another judgment from the seventies, concerning the interpretation of the concept “home” (art. 13 GG),46 the Court emphasized that “a glance at the laws of other countries” proves the existence of the same or similar wording and the wide interpretation given by their national courts. In light of these references the Court also decided in favour of a wide interpretation of the concept “home” – also including business rooms –, despite explicitly declaring this interpretation as “contrary to the wording of art. 13 GG”. Foreign materials (reference was made to the case law of various countries and to Italian scholarship) were thus not made – as is mostly the case – in order to support a decision already reached on the basis of “home-grown” arguments, but referring to the comparative method as an equivalent – or, with a glance at the grammatical interpretation even apparently higher-ranking – method.47 2.1.2 Numbers and Statistics Speaking in quantitative terms of practice, at the end of the last century the facultative use of the comparative method by German Courts in general was considered to be “extremely poor”.48 The Constitutional Court in particular was often criticised for its position, described as retreating into “the snail shell of German dogmatics”, risking international connectivity”.49 Only recently, empirical studies have asserted a slightly increased use at least of foreign case law by the Constitutional Court’s Judges,50 which is generally explained by the growing integration and internationalization of the legal order. Nonetheless it is doubtful if this slight rise will be able to eliminate the critique after which the Court advances solely “on a one-way street of legal reception”.51 45 46 47 48

For further details Busse, supra note 15, 191–200. BVerfGE 32, 54 (13.10.1971). Details in Busse, supra note 15, 196–197. For references, see Alessandro Somma & Sonja Haberl, Uso complementare della comparazione e giurisprudenza costituzionale nell’esperienza tedesca, in Corti nazionali e comparazione giuridica 155 (Giuseppe Franco Ferrari & Antonio Gambaro eds., Edizioni Scientifiche Italiane 2006). 49 Jochen Frowein, Kritische Bemerkungen zur Lage des deutschen Staatsrechts aus rechtsvergleichender Sicht, (1989) 51 DöV 806, 811 . 50 See Cardenas Paulsen, supra note 31,181 and Kielmansegg, supra note 22, 656. 51 Martini, supra note 4, 230.

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The peak regarding the citation of foreign materials asserted time and again at the beginning of the seventies is generally explained with the introduction of the separate opinions: as separate opinions reveal conflicts in the court, one can draw the conclusion that in the case of dissents the majority of the court feels more obliged to defend its legal opinion against the arguments of the separate opinions, referring more frequently also to foreign case law in order to support its deliberation. Besides that, it is interesting to note that separate opinions are more open to citing foreign case law than the majority opinion – in relative terms separate opinions have cited foreign law more than twice as often as the Court itself. This result is generally considered to be plausible because the dissenting judges are freed from the constraints of authority “­being able to leave the officinal standards of argumentation behind”52 and at the same time it can be understood as a sign of an “increased need of legitimacy”.53 The subsequent decline in citations of foreign materials in separate opinions is in line with the already mentioned decline of separate opinions in general. In terms of cited countries, we can see that the United States continue to finish first, both in terms of the number of cited precedents and the number of decisions containing these references. They are followed, by quite a large distance, by Switzerland, Austria, the United Kingdom, France and Italy.54 Generally speaking, the cited countries do not seem to show a particular trend. However, what certainly emerges from the “geographical map” is a kind of Euro-America-centrism, since the Constitutional Court almost totally ignores constitutional developments beyond the realm of Western democracies.55 This attitude is criticised as a rather limited sight that does not do justice ‘to the global nature of constitutional justice” and that rather seems to be governed by personal education, preferences and accessibility,56 which can also be 52 53

For statistics and details see Martini, supra note 4, 247. Peter Häberle, Role and impact of constitutional courts in a comparative perspective, in The future of the European judicial system in comparative perspective 65, 72 (Ingolf Pernice et al. eds., Nomos 2006) describes as astonishing the “outstanding function that comparative law has in dissenting votes within German judgments”. 54 For details see the statistics in Cardenas Paulsen, supra note 31, 5. 55 Some of the rare exceptions are represented by BVerfGE 76, 143 (01.07.1987) with reference to Pakistan in an asylum case (this case is missing in Cardenas Paulsen’s schedule on 44 ff.) and by BVerfGE 16, 27 (30.04.1963) with reference, amongst others, to Jordan, Egypt, Russia, Latin America, the Philippines. 56 Martini, supra note 4, 249, 252, and Cardenas Paulsen, supra note 31, 57. As current judges Huber & Paulus (supra note 8), 293 state, the Court “has a particular affinity with its sister courts in the German-speaking countries, especially in Austria and Switzerland” which, however, is not only due to “linguistic and cultural reasons, but is also based in part on some similarity of federal structures and common legal traditions”.

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explained in terms of the absence of linguistic barriers to the German speaking countries and the Judges’ familiarity with the English language.57 2.2 Selected Case Law Due to their high degree of universalism, fundamental rights particularly lend themselves to the adoption of foreign solutions.58 A second important group within which the Constitutional Court frequently refers to foreign materials are decisions regarding the concretisation and interpretation of general principles of law. As we already have stated, the use of comparative reasoning within proceedings of individual constitutional complaints is particularly important in this context. A first case59 to which we wish to refer is the famous Soraya case of 1973.60 This is because the decision represents one of the rare examples in which the function of the references to foreign countries was judicial gap-filling in German law. As we all know, the case concerned the question of the recoverability of money damages for injury to the plaintiff’s “personality right”. At the beginning of the Fifties the Bundesgerichtshof (bgh) had already included the right in question within the term “some other right” (par. 823 bgb) in order to enable tort recovery. Some years later the bgh had also broken away from the restriction imposed by par. 253 bgb, enabling non-pecuniary damages (also) in cases of an injury of the personality right.61 The German Federal Constitutional Court, which had to take a position concerning this issue, within a wide interpretation of the concept “law and justice” (“Gesetz und Recht” – art. 20.3 GG) which “implies the rejection of a narrow reliance upon formally enacted laws”, on the one hand emphasised the judge’s power to creatively develop law, stressing that this power grows in particular with the “ageing of the codification”. On the other hand it referred to the “legal development in other countries of the Western world that have taken a more liberal approach toward the possibility of recovering money damages for injuries of an intangible interest” and highlighted that “nowhere in the Western world an unlawful action remains without civil sanction as frequently as in Germany only because it “merely” causes a non-pecuniary damage”. The 57

See also Bryde, supra note 32, according to whom “usually the inclusion of foreign material depends on their availability (…) the extent to which the Court takes note of foreign law is decided by the productivity of German comparative law scholarship”. 58 Häberle, supra note 36, 915. 59 (Partial) translations of many of the judgments cited in this paper can be found in Kommers & Miller, supra note 37. 60 BVerfGE 34, 269 (14.02.1973). 61 See the famous Herrenreiter case, bghz 26, 349 (14.02.1958).

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Bundesverfassungsgericht finally pointed out that the gap-filling operated by the Federal Court brought about a legal situation which to a large extent was “conform to international legal developments”. The use of and reference to comparative materials operated by the Court was thus not used in order to concretely proceed with a gap-filling of its own, but in order to justify per se the activity of gap-filling by courts. 2.2.1 The Affirmative Function of Foreign Case Law Decisions in which references to foreign case law are used in order to fill in legislative gaps, are however quite rare.62 Citations of foreign precedents are indeed more frequently used as an instrument for interpretation and, in these cases, mostly not because the Court still finds itself in an “indeterminate position”, but merely for to affirm a solution that it has already reached by reasons of “national” or “home-grown” interpretational criteria.63 In those cases in which foreign references represent only supportive arguments of confirmation and reassurance (affirmative function) we will see that the Court’s comparative reasoning traditionally is extremely short – with no explanations regarding the selection of the foreign material, nor any description of the case law it refers to, or discussions about its comparability –, sometimes even reaching the level of what has been called a mere “alibi comparison” (see below 2.2.1.1). However, in recent times, there seems to be a modest change towards an approach with rather more detailed – i.e. either widespread, deepened or both – references to foreign materials which is assessed as a sign for the growing “survey approach” of the Court. Things also seem to be slightly different with reference to dissenting opinions which more frequently contain a somewhat more detailed and deepened analysis of the cited foreign materials (see below 2.2.1.2). 2.2.1.1 The Affirmative Function of Foreign Case Law in the Court’s Opinion One of the decisions we wish to refer to in order to explain what German Legal scholarship has described as a mere “alibi-comparison”, referring to a “superficial, half-hearted and crude” comparative reasoning64 that is only apparently made in order to affirm the Court’s position, is the early and well-known Lüth-case of 1958.65 The decision was concerned with an injunction against

62

Another example that could be mentioned in this context is BVerfGE 49, 286 (11.10.1978) regarding the legal position of transsexuals; for details see Busse, supra note 15, 208–217. 63 For details and critiques Sauer, supra note 8, 200. 64 Busse, supra note 15, 562, 572 f. 65 BVerfGE 7, 198 (15.01.1958).

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the Hamburg politician Lüth who had called for a boycott of a movie made by Harlan, one of the leading propaganda film directors during the Nazi era. In this case the Court, within the interpretation of freedom of thought and its significance, referred to a quotation of former Supreme Court’s Justice Benjamin Cardozo, according to whom the freedom of expression was “the matrix, the indispensable condition, of nearly every other form of freedom.” The reference is limited to these few words without referring more in detail to the context in which they had been embedded: the Court only cites “Cardozo” without specifying who he was, and his quotation (expressed in the decision Palko vs. Connecticut (302 U.S. 319 (1937)) is mentioned without any further concretisation. This kind of reference has been heavily criticised by German scholars who assessed it an ornamental, but superfluous attachment66 that represents no more than “a nice proof for the Judges’ erudition”, but is completely worthless from a methodological and argumentative point of view.67 At the other end of the time scale, to provide a more recent example for “alibi-comparison”, we can refer to a 2008 decision in which the Court had to decide about a constitutional complaint regarding financial disclosure requirements of compulsory health insurance management board members in order to satisfy transparency requirements.68 In this case, the Court ruled that the creation of such a transparency pursued a legitimate purpose (the information interests of the public) and was also “in accordance with international developments”. There is simply a short, bland reference to “international developments” which does not contain any more details or explanations regarding which legal orders or which countries’ case law the German Court was referring to. German Legal scholarship has reacted with great incomprehension in the face of such comparative reasoning – if we can speak about “reasoning” at all – which is lacking any persuasiveness and is even less explainable in this day and age than in the Fifties when the German Federal Constitutional Court was still young and unexperienced.69 With reference to the use of comparative arguments in decisions which can no longer be ranked within the category of mere alibi-comparison, but which represent proof for the aforementioned briefness of comparative reasoning 66 Busse, supra note 15, 572 f. 67 Jörg Manfred Mössner, Rechtsvergleichung und Verfassungsrechtsprechung, (1974) 99 Archiv des öffentlichen Rechts, 193, 237 ranks the case in the category of the so-called “halfhidden” comparison (halbverdeckte Form der komparativen Methode), supposing that the Court has effectively taken into account comparative aspects during the preparation of the drafting of the sentence, yet without specifying this in the final decision. 68 BVerfGK 13, 336 (25.2.2008). 69 Busse, supra note 15, 568–573.

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with an affirmative function, we can refer, for example, to the 1977 case regarding the question of lifelong imprisonment.70 In this decision the Court had to prove whether lifetime imprisonment in case of murder is compatible with the fundamental rights granted in art. 1, 2 and 19.4 GG. Reference was first very generally made to “the development in foreign countries, in which death penalty had been abolished” and was then followed by the citation of a 1974 decision of the Italian Constitutional Court in which the latter had confirmed the compatibility of life imprisonment with the Italian Constitution. The German Court shortly reflects the words of the Italian Judges, yet without revealing the reasons for the limitations only to Italian case law. Also in this case the reference was used in order to support the decision which, in the final analysis, rejected the constitutional complaint as unfounded. The Court has shown a similar approach – i.e. using short, sporadic and supportive references based on a mere technique of quotation without describing or evaluating the decision referred to in greater detail –, with regard to some cases with cross-border aspects, which mostly regard questions affecting international treaties, the interpretation of primary or secondary EU-law and cases of extradition.71 In the famous Solange-II-decision of 198672 the Court – changing its position expressed in Solange-I73 – asserted that it would no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation as long as Union institutions would ensure a substantially equivalent standard of rights protection. However, at the same time the Court emphasized that the transfer of sovereign powers has constitutional limits and in this regard it reinforced its position with a general reference to the “comparable limits of the Italian Constitution and the case law of the Italian Constitutional Court”, immediately after also citing Italian scholarship.74 Other sporadic comparative cross-references and (mere) supportive arguments we can also find in the 2012’s decision about the European Stability Mechanism and the Fiscal Treaty75 – with reference to the French Constitutional C ­ ouncil – as well 70 71 72 73 74

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BVerfGE 45, 187 (259), 21.06.1977. See Matthias Wendel, Comparative reasoning and the making of a common constitutional law: EU-related decisions of national constitutional courts in a transnational perspective, (2013) 11 ijcl 981, 984–985. BVerfGE 73, 339 (22.10.1986). BVerfGE 37, 271 (29.5.1974) On this decision see also note 83. For this case see also below par. 2.3. In a more recent decision (BVerfGE 118, 79 (13.03.2007)) the Court, with a short reference to the French Conseil d’état in relation to the competence of a national constitutional court to review national transposition measures, confirmed its position expressed in Solange-II, expanding it from the field of regulations to E ­ uropean directives. BVerfGE 132, 195 (10.07.2012).

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as in the famous Lisbon judgment of 2009,76 although in this case the reference to the decision of the French Constitutional Council has been criticised because of the lack of contextualisation.77 With regard to the use of comparative arguments with affirmative function in decisions containing a more detailed analysis of foreign materials,78 which thus represents an example of the aforementioned growing “survey approach” of the Court in recent times, reference can be made to the famous incest case of 2008.79 In this decision the Bundesverfassungsgericht cited a joint expert opinion delivered by the Max Planck Institute for foreign and international criminal law which had analysed twenty legal orders on the questioned issue. As well as references to a variety of foreign legal systems prohibiting and not prohibiting incest between siblings (for details see below 2.3), the Court referred to several foreign precedents, citing decisions of the Italian and Hungarian Constitutional Court, as well as those of a Canadian and a Polish Appellate Court. Within these references the German Federal Constitutional Court even delivered a short description of the foreign rulings, thus veering away from its traditional approach, i.e. the “skimpy comparison of the early years”.80 In another fairly recent decision of 2011, the Court was concerned with questions regarding the right to demonstrate in airports.81 In this case the Federal Constitutional Court referred to two specific decisions, first to one of the Canadian Supreme Court (the 1991’s decision Committee for the Commonwealth vs. Canada, i.s.c.r. 139) and then to one of the U.S. Supreme Court (the 1992’s ISKCon vs. Lee decision, 505 U.S. 672), both concerned with questions of assembly bans. The Court’s references especially to the concept of “public forum” are particularly interesting – since this concept represents a novelty in the German constitutional jurisprudence – and also determining as the Court recognized the right to assemble at locations outside general traffic for the first time. To give a last example that proves the growing survey approach of the Court in terms of a widespread analysis of a variety of foreign legal systems, we can 76 BVerfGE 123, 267 (30.06.2009). 77 Wendel, supra note 71, 985. In some other recent EU-related decisions, which would have proved particularly suitable for the use of comparative reasoning because of existing precedents on the same issue in other countries (for example BVerfGE 113, 273 (18.07.2005) (European Arrest Warrant), and BVerfGE 125, 260 (02.03.2010) regarding the implementation of the Data Protecting Directive), the German Federal Constitutional Court did not make any reference to foreign case law, thus missing the opportunity to refer to other Courts facing similar proceedings. 78 Other examples will be mentioned within par. 2.3. 79 BVerfGE 120, 224 (26.02.2008). 80 Palmer, supra note 7; see also Martini, supra note 4, 249. 81 BVerfGE 128, 226 (22.02.2011).

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refer to the 2013 successive adoption case.82 In this case, besides making reference to comparative reasoning within historical interpretation, the Court referred to the “legislation in other European countries, in particular in the European Union Member States” which leans towards the equal treatment of different-sex and same-sex couples. On the whole, in this decision reference was made to twenty-two countries of the European Union as well as to Turkey, Iceland, Norway and Monaco, with concern, amongst others, to the situations in the various countries regarding the possibility of joint and successive adoption by same-sex couples, the possibility of stepchild adoption as well as single adoptions by homosexuals. All these references were used in order to support the Court’s position, leading to the conclusion that the exclusion of successive adoption by registered partners violated the general principle of equality guaranteed by art. 3 GG. 2.2.1.2 The Affirmative Function of Foreign Case Law in Dissenting Opinions In the context of dissenting opinions making use of the affirmative function of comparative reasoning mere alibi-comparison is more difficult to find. Generally, when making reference to foreign (case) law, dissenting judges try to deliver a somewhat more in-depth analysis of the referred materials. In this context we wish to refer to a couple of cases83 which are among the most debated decisions of the Bundesverfassungsgericht. The first one is a decision issued shortly after the introduction of separate opinions: the Mephisto case84 concerned a constitutional complaint against the printing, distribution or publication of a book by Klaus Mann entitled “Mephisto, a novel”, in which the Court had to deal with the right to artistic freedom granted by art. 5.3 GG and the limits 82 83

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BVerfGE 133, 59 (19.02.2013). Other cases that can be mentioned here are for example the Solange-I-decision (BVerfGE 37, 271 (29.5.1974)) in which the three dissenting judges referred to a 1973 decision of the Italian Constitutional Court, in which the latter had negated its jurisdiction on secondary Community legislation, in order to support and fortify their arguments aimed at promoting harmonisation and preventing fragmentation; the Green Party funding case (BVerfGE 73, 40 (14.7.1986)) in which the dissenting opinion made reference to U.S. case law. This case is also interesting because the dissenting opinion found its way into the majority opinion in a follow-up decision six years later (BVerfGE 85, 264. (09.04.1992)), thus representing the basis for building subsequent changes in the interpretation of the GG. In BVerfGE 103, 44 (07.11.2000), regarding broadcasting in courtrooms, the three dissenting judges referred to the “Western industrial States”, specifically mentioning France, Norway, Belgium, France, Spain, Israel and Australia in order to support their position and to justify the admissibility of broadcasting in courtrooms. With regard to the problematics regarding the opening of criminal procedures specific reference was made to the u.s.a. and the “Simpson-process”. BVerfGE 30, 173 (24.02.1971).

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referred to in art. 5.2 GG. More precisely, the Court had to decide about the constitutional complaint of the surviving son of the depicted actor, which sought to stop the sale of the book arguing the violation of the personality rights of his deceased father. In the Court’s majority opinion the complaint was successful. In their dissenting opinions, Judges Stein and Rupp v. Brünneck disagreed with the narrow view of the constitutional Court’s function, more precisely with the restrictive interpretation of its control function. By contrast they emphasised its duty to “verify independently” whether the civil courts had properly carried out the required weighting of interests – that of the public interest on the publication of the book on the one side, and the potentially affected personal interests of the complainant on the other. In order to fortify her position, Judge Rupp v. Brünneck in this context also referred to “case law developed by the U.S. Supreme Court”. More precisely she mentioned the “extraordinarily generous jurisprudence of the U.S. Supreme Court, which in cases of persons and objects of events of the day is giving greater weight to the general interest in free public discussion than to the personal interests potentially affected by false information or a polemic representation, as long as there is no ‘actual malice’”. This reference was used in order to strengthen her position – already reached on the basis of national arguments (citing, among others, the Lüth-case)–, thus using comparative arguments in affirmative function. A second decision we wish to mention was issued some years later and represents at the same time one of the most well-known cases of the Court:85 the abortion-I-case concerned the legitimacy, i.e. compatibility with the Basic Law, of the existing time-limit dispositions in matters of abortion, foreseeing an exemption from punishment under certain conditions in the first twelve weeks after conception. As we will see, the majority opinion rejected any reference to foreign materials concluding that the rules in question felt short of constitutional standards in several particulars (see below par. 2.2.2). The dissenting opinions of judges Rupp v. Brünning and Simon, by contrast, were based explicitly on the case law of various foreign countries. Reference was made three times to a specific decision of the Austrian Constitutional Court of 1974, in which the Court had denied that the local dispositions concerning the time limit of abortion violate the Austrian fundamental rights. On a further three occasions the judges referred to the famous decision of the U.S. Supreme Court Roe vs. Wade of 1973, although at the end stressing that this case represented “a decision which would reach too far according to German constitutional law”, and finally they cited a 1975’s decision of the French Conseil Costitutionel. All the references were used in order to support their position which proposed an alternative 85

BVerfGE 39,1 (25.02.1975).

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solution, stressing the liberal commitment of the Basic Law also in respect to the free decision to abort a child. 2.2.2 The Dismissive or Distinguishing Function of Foreign Case Law As we have just mentioned above, in some cases,86 although much less frequently, the Court refers to foreign decisions in order to contrast them and to emphasize particularities of the German system in order to develop or support its own reasoning. References are thus either rejected in substance or for lack of applicability to the case because the facts are different or concern a different legal question.87 In one of its earliest decisions of 195188 for example, the Constitutional Court contrasted the admission procedure for constitutional complaints as practised by the Swiss Federal Court, after which it is sufficient that the complainant is only in the future affected by a sovereign act of State power. The German Court argued that such a mere “virtual” violation was not conferrable to the German constitutional complaint which requires that the complainant is affected presently. This because the admission procedure was considered to be incomparable to the purpose of the procedural requirements after German law and would otherwise have brought about the admissibility of popular actions deliberately not foreseen by the Basic Law. To give a second example in this context we can also refer to the aforementioned abortionI-case.89 In this case the majority opinion considered the existing time limit dispositions for abortion to be unconstitutional. In order to reach this solution the Court, stressing the particularities of the Basic Law and the particular legal standards of Germany, stated that measures applying in other countries were not suitable for comparison. It then rejected the comparative approach as not appropriate given the specific subject matter of the case, distinguishing measures applying in foreign countries (“which had not made the same experiences with the system of injustice” like the German one) from those of the Basic Law, concluding for an incomparability on the questioned issue. Academic writing in this context has critically observed that “roughly spoken, the majority judges did not want to be responsible for the authorisation of killing unborn life on German grounds 30 years after the ending of the Nazi rule”.90 86 87 88 89 90

For other examples of dismissive or distinguishing function not mentioned in this paper see BVerfGE 9, 73 (07.01.1959) and BVerfGE 47, 285 (01.03.1978). An analysis of these rulings can be found in Busse, supra note 15, 431–432. See Kielmansegg, supra note 22, 667, also with regard to the identification of other functions of comparative reasoning. BVerfGE 1, 97 (19.12.1951). BVerfGE 39,1 (25.02.1975). These the words of Martini, supra note 4, 252.

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Anyway, the case is a good example for the use of the distinguishing function of comparative reasoning and can at the same time be considered as one of the rare decisions in which the Court touched on the question of the validity of comparative arguments in general and that of the “resort to foreign precedents in particular”.91 The situation in terms of the refusal of comparative arguments was inverted between majority and dissenting opinions both in the famous Spiegel-case of 196692 and in another more recent four-to-four split decision of 2007.93 The latter case concerned the question of constitutionality of new financial disclosure requirements for members of Parliament. Whereas the majority opinion held that these requirements were constitutional because the public’s interest in transparency outweighed the privacy interests of MP’s, the dissenters argued that they violated the constitutionally mandated independence. On the basis of the reference to laws and statutes94 of various European countries and the usa, the majority found that its decision “corresponded to international developments”. The dissenting opinions, by contrast, criticised the comparative law remarks contained in the Court’s opinion for the lack of comparability, suggesting that the German rule had no parallel in the other foreign laws. In more general terms the dissenters stated that without a closer look on the cited rules – i.e. without taking into account the different political, historical and social background in the countries referred to when interpreting their laws – the references could not be considered a suitable yardstick for Germany. In more general terms, the minority opinion thus took a position on the use of comparative reasoning as such, stressing the necessity and importance of contextualisation of the materials referred to and providing at the same time an “illuminating exception to the overall silence” regarding the value of comparative reasoning.95

91 Kielmansegg, supra note 22, 671. 92 BVerfGE 20, 162 (05.08.1966) in which the dissenters held that a comparison to the laws of other countries was irrelevant if only an individual provision was compared without evaluating the foreign legal system as a whole regarding its suitability for a comparison. See for example Basil Markesinis & Jörg Fedtke, Engaging with foreign law 169–171 (Hart Publishing 2009). 93 BVerfGE 118, 277 (04.07.2007). 94 For questions of the close link between the issue we are dealing with and the cited decision, we refer to the latter within the current section and not more below under par. 2.3, although the case concerns the citation of foreign laws and statutes, and not of foreign case law. 95 As Bubek, supra note 8, 137–138 notes, the argument thus was “not whether to use comparative examples, but how”.

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2.3 References to Foreign Statutes and Scholarship Besides the Court’s references to foreign case law we can also find some decisions in which reference is made to foreign statutes and/or scholarship. It has however to be stated, that the citation of foreign precedent is frequently accompanied by references to foreign statutes (as interpreted by the respective national court), so that in most cases it is impossible to make a clear distinction between them. References to foreign statutes and/or scholarship we can find both in the decision of the Court, and in some dissenting opinion. To start with the latter, we can for example96 refer to a Court’s decision of 197297 in which it dealt with the question of the refusal to take the oath on religious grounds. As to the majority opinion the questioned possibility was granted by art. 4.1 GG (freedom of believe and conscience), whereas justice v. Schlabrendorff in his dissenting opinion (besides making reference to US case law) referred to the Swiss Constitution and to Swiss scholarship dealing with the issue in question. V. Schlabrendorff not only cited an essay of Max Huber, but he also excerpted a rather long passage of the latter, concluding that ­Huber’s reasoning regarding the meaning of God in the entrance words of the Swiss Constitution was applicable also “to us Germans” in consideration of the “long historic tradition of the German people”. He concluded in favour of the retention of the existing religious foundation as well as that of the oath, thus using foreign references in affirmative function. The second group, concerning references to foreign statutes and/or scholarship in the majority opinion includes for example the already mentioned Solange-II-decision in which the Court not only made reference to the case law developed by the Italian Constitutional Court, but also to the “comparable limits of the Italian Constitution” and referring to Italian scholarship that had written on this issue. In this case there is thus a kind of connection between the different legal formants, i.e. foreign (case) law and foreign legal scholarship which are mentioned together. Also the already cited Incest decision of 2008 can be mentioned here: the Court both makes reference to those legal systems which do not contain a prohibition of consensual incest between adults – among others France and the legal systems influenced by French law, as well as Russia, China, Spain and Israel – and to those which do penalise incest 96

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There are many other examples we can not refer to in this section. See, among others, and besides the already mentioned decisions BVerfGE 7, 198 (with reference to the French Declaration of Human and Political Rights of 1789) and BVerfGE 118, 79 (with reference to various foreign legal doctrine dealing with the issue of the implementation of EUdirectives) also BVerfGE 48, 127 (13.04.1978) in a case regarding the conscientious objection (Wehrdienstverweigerung). BVerfGE 33, 23 (11.4.1972).

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between siblings (Italy, Poland, Hungary, Canada). Within the latter group the Court also enters in more detail, referring to the various grounds (religious, moral, sociological and genetic ones) motivating those prohibitions. The ­widened horizon of the Court, i.e. the reference to a variety of foreign legal ­statutes, together with the more deepened references to the respective case law is considered to be another example for the growing survey approach of the Court in recent times. Finally, to give an example not already mentioned in this paper, we can refer to two decisions concerning the legal position of transsexuals. In the more recent one of 201198 the Court held that a provision providing that transsexual people may only marry after gender assignment surgery and after his/her disability to procreate has been established, was unconstitutional. In this context, besides citing French and Austrian case law, the Court made reference to “quite all European legal orders” containing rules regarding the possibility of legal recognition of gender reassignment, specifically citing the existing national statutes of Turkey, Belgium Finland, Sweden Spain, U.K., Italy and the Netherlands. References are also made to those legal systems – Austria, Finland, France, U.K. and ­Switzerland – which contain particular rules regarding homosexual partnerships and those – Spain, Belgium, Norway, Netherlands and Sweden – which had opened marriage also to homosexual persons. Also in this case references were used in affirmative function. 2.4 The s.c. Implicit or “hidden” Use of Comparative Reasoning We have so far employed the terms “comparative reasoning” or “use of the comparative method” referring exclusively to the explicit use of comparative materials by courts. It is obvious, however, that the reception of foreign materials sometimes can also happen in an implicit manner. As regards the comparative activity of the German Federal Constitutional Court, we can say that the mere reference to explicit citations would not provide a full picture of the Court’s transnational receptiveness, although it is impossible to present reliable facts regarding the degree of the “hidden” influence. For this reason, the positions concerning the importance of implicit citation are quite controversial. Someone asserts that open citations in the final decisions are only the “tip 98

BVerfGE 128, 109 (11.01.2011). In the former decision (BVerfGE 116, 243 (18.07.2006)), the Court held that the exclusion form the German Transsexuals Act of foreign nationals whose lex personalis was not German law, was unconstitutional. Reference was made (besides the references to Italian, French, Austrian and Swiss case law), to a variety of legal systems (more exactly to Finland, the Netherlands, Denmark, Sweden and the UK) dealing with the issue in question.

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of the iceberg”,99 since most of the drafts lead to decisions involving a careful analysis of the legal situation in other countries, even if the findings from such analyses are not incorporated into the reasons given for the decisions.100 Others, although admitting that those underlying connections really exist, argue that not identified influences from foreign sources are hard to find.101 Taking a middle course, we should perhaps not overestimate the “unstated” influence of foreign case law and expect that it would lead to a completely different picture that we have drawn so far.102 For reasons of space we can make reference only to the mostly – frequently solely – cited decision in this context, which is the famous 2009 Wunsiedelcase on Nazi speech.103 This decision is hold to represent “a silent dialogue between German and US constitutionalism”,104 regarding the role and limits of freedom of speech and expression. In its judgment the Court held that par. 130 of the German Criminal Code – which provides the legal basis for prohibiting certain National Socialist assemblies105 – does not violate the fundamental right of freedom of expression as protected by art. 5 GG. In the Court’s opinion the latter generally protects every kind of opinion, even “worthless” ones and those that can be dangerous or in conflict with the fundamental values underlying the GG: it thus includes also opinions that aim at fundamentally changing the political order and at disseminating National Socialist ideas. Although concluding that the questioned rule, by making the glorification or justification of the National Socialist rule a punishable crime, interfered with this right, in the Court’s opinion this interference with freedom of expression was justified. In a first step it argued that none of the three written grounds for justification of an interference with the right to freedom of expression provided for in 99 Bryde, supra note 32, 297–298 according to whom there is “a huge gap between the ­sources of the decision cited and those actually influencing the judges”, although he does “not claim that the Court regularly works on the basis of extensive comparative research. A constitutional court is not a comparative law institute and will never become one”. See also Häberle, supra note 52 who asserts that “the comparative research and analysis that a (national) court undertakes is generally done in the darkrooms of its scientific service and is not made public”. 100 Huber & Paulus, supra note 8, 293. 101 Martini, supra note 4, 250. 102 This the position of Kielmansegg, supra note 22, 671; see also Kaiser, supra note 8, 203–204. 103 BVerfGE 124, 300 (04.09.2009). Another example is represented by BVerfGE 49, 286 (11.10.1978); for details see Busse, supra note 15, 208–217. 104 Martini, supra note 4, 250. 105 Par. 130 (4) reads as follows: “Any person who, publicly or in an assembly, disturbs the public peace by approving, glorifying or justifying the National Socialist rule of violence and arbitrariness in a manner violating the dignity of the victims shall be punished with imprisonment for up to three years or a fine”.

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art. 5.2 GG (“the provisions of general laws”, those “for the protection of young persons” and “the right to personal honour”) was applicable. Nonetheless the Court then stated that there was an inherent exception to the “general law” requirement “due to the unique dimension of injustice and horror that this [i.e. the Nazi] regime had brought under German responsibility over Europe and large parts of the world and due to the formative significance of this past for Germany”. The Court thus construed, in a somewhat paradoxical or illogical manner,106 a kind of unwritten exception for freedom of opinion, justifying it with the exceptional history (Sonderweg) of Germany. Although there is no explicit citation of the U.S. Supreme Court, the reference to its case law “is in the air all the time through the course of the grounds”:107 the reasoning clearly alludes to, among others, the “clear and present danger test” central to the USAmerican doctrine of freedom of speech developed at the beginning of the 20th century.108 The German Court, indeed, although at first glance seeming to reflect a rather restrictive approach to freedom of expression – ­affirming the power of the legislature to prohibit and penalise the expression of National Socialist ideology under certain circumstances – in large parts of the decision encompasses a decisive commitment to a broad understanding of the freedom of expression, without doubt inspired by the case law of the US Supreme Court.109 Furthermore, the emphasis on the German Sonderweg implicitly illustrates the Court’s intent to explain the possible divergence to the constitutional case law of other countries.110 3

Questions of Methodology

Besides stating that there is a rather blurry picture in general when speaking about the Constitutional Court’s legal interpretation tools,111 German legal 106 This the opinion of German legal scholarship, for example Mehrdad Payandeh, The limits of Freedom of Expression in the Wunsiedel Decision of the German Constitutional Court, (2010) 11 glj, 929, 939, available at https://static1.squarespace.com/ static/56330ad3e4b0733dcc0c8495/t/56b7e49920c647fc9f83a7c2/1454892188342/GLJ_ Vol_11_No_08_Payandeh.pdf. 107 Martini, supra note 4, 250. 108 See Schenck vs. United States 249 (US) 47, 52 (1919). 109 Payandeh, supra note 106, 936–937. 110 With regard to this “hidden dismissive function” see Kaiser, supra note 8. 203. 111 For details see Hailbronner & Martini, supra note 8, 376–377 who set teleological arguments at the core of “German-style constitutional reasoning”. See also Kommers & Miller, supra note 37, 63 who describe teleological interpretation as “a favoured form of judicial reasoning in Germany”.

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scholarship has asserted that this picture becomes “completely dark” in the field of comparative reasoning, since the Court never really has resolved “the status and method of the comparative argument in its jurisprudence”.112 In 2004, current federal constitutional judge Susanne Baer stated that “in comparative constitutional law, method is as crucial as it is underdeveloped”.113 A few years later the Court’s references to foreign law and precedent were still described as characterised by “intuitive associations, accidental references and eclecticism”.114 The fact that the question of methodology also today continues to be one of great uncertainty, seems to be confirmed by the analysis of the selected case law in which references to foreign materials appear rather piecemeal and not based on a particular research and selection process. As we have already mentioned at the outset of par. 2, explicit references to the comparative method as such are hardly traceable. And in those cases in which they are – like in the above mentioned decision of 1953 in which the Court described comparative reasoning as one of the “proved and tested sources”115 – no reference is made to specific methods of comparative reasoning. This also holds true for a more recent case of 2011 regarding preventive detention.116 In this decision the Court, referring to the new jurisprudence of the European Court of Human rights, compared the method of importing elements from international law to the method of comparative constitutional interpretation, stating that comparative arguments for the interpretation of German constitutional law have to be adapted to the specific domestic context. This means that it has at least implicitly recognized the latter as an element of constitutional interpretation.117 As we have seen in our analysis, the Court generally does not enter in a substantive debate about the merits of the decision(s) it refers to, especially in those cases – on the whole the much greater part – in which it uses foreign precedents to support its own decision (affirmative function). In these cases the Court uses foreign references in order to deliver additional supportive 112 Martini, supra note 4, 239–240; see also Bobek, supra note 8, 136 according to whom in the vast majority of cases in which the comparative argument is run there are “no general statements as to the place, utility or method” for it. 113 Susanne Baer, Verfassungsvergleichung und reflexive Methode: Interkulturelle und intersubjektive Kompetenz, (2004) 64 ZaöRV 735, 758. 114 Axel Tschentscher, Dialektische Rechtsvergleichung – Zur Methode der Komparistik im öffentlichen Recht, (2007) 62 JZ, 807–816. 115 For other references to the comparative argument see the decisions BVerfGE 39, 1 (25.02.1975), BVerfGE 20, 162 (05.08.1966) and BVerfGE 118, 277 (04.07.2007) we have already mentioned (supra notes 85, 92, 93). 116 BVerfGE 128, 326 (5.5.2011). 117 Martini, supra note 4, 239; see also Kielmansegg, supra note 22, 671.

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documents in favour of a decision or result it has already reached on the basis of the “common” rules of interpretation, as well as to increase the rationality and persuasiveness of the judgment. Those judgments generally neither contain detailed statements with regard to the selection of the materials the Court refers to, nor a deepened analysis of the foreign constitutional system or particular remarks in terms of the comparability of the cited systems. Specifically with regard to the missing motivations for the use of this or that foreign prece­ dent and the predominant use of foreign materials merely in order to confirm a result that the Court has already reached on the basis of ordinary “homegrown” arguments, someone has even wondered if it would not be better that the Court “does completely let alone comparative constitutional reasoning”, at least in all those cases in which the affirmative function of comparative reasoning “mostly shrivels to a mere trimming”.118 This is the case in particular in those decisions which can be ranked within the category of a mere “alibicomparison” (see supra par. 2.2.1.1). Others, similarly, have questioned to what extent and under which circumstances comparative efforts really enhance the quality and persuasiveness of the Court’s decisions, since the cases in which this method is truly profitable seem to be rather limited.119 Those considerations eventually raise doubts in terms of the aims of comparative reasoning, that should be, to speak with the words of Häberle, an “enrichment and not a depletion of the interpretation process”.120 On the other side, taking a closer look at the decisions we have referred to, it is possible to identify some concrete methods of which the Court makes use. Thus we can find examples in which the Court refers to some of the interpretation methods identified by Choudhry in his case studies of South-African and Canadian constitutional case law,121 which have been recently readopted and partly integrated by German Legal scholarship.122 One of this methods is the so-called universalist interpretation which is based on the assumption that constitutional guarantees “are cut from a universal cloth” – they are thus independent from their historical development, their political system or their language –, and that, hence, all constitutional courts are engaged in the identification, interpretation, and application of the same set of norms. Those norms are comprehended as transcendent legal principles that are logically prior to 118 Sauer, supra note 8, 200. 119 Kielmansegg, supra note 22, 673. 120 Häberle, supra note 36, 918. 121 Sujit Choudry, Globalization in search of justification: Toward a theory of Comparative Constitutional Interpretation, (1999) 74 ilj 819–892. 122 See Cardenas Paulsen, supra note 31, 121–145, and Busse, supra note 15, 393–483.

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positive rules of law and legal doctrines.123 Universalist interpretation “exhorts courts to pay no heed to national legal particularities when engaging in constitutional interpretation” but rather charges Courts to give meaning to liberties that transcend national boundaries. Universalist interpretation is thus characterised by a strong connection to natural justice and a tendency to see the commonalities rather than the differences between different legal systems.124 Taking for example the Soraya case (supra par. 2.2), the Court, by referring to the legal development in “other countries of the Western world” with a more liberal approach toward the possibility of recovering money damages for injuries and the reference to the conformity of the decision to “the international legal developments”, makes use of the universalist interpretation. The acknowledgment of money damages for injury to the personality right in this way represents, indeed, an example of a transcendent legal principle as intended by Choudry.125 The same holds true for the above mentioned 1953 decision regarding judicial gap-filling in the field of family law. Here the Court makes reference to the principle of the separation of powers “which nowhere is realised in a pure way”, but, by contrast, is characterised by overlaps “also in those legal orders in which it is acknowledged”. Also the case regarding the refuse of military service can be ranked within this group, although the comparative method in this case, as we have seen, did not lead to any result. The reference to the international developments and the attempt to identify potentially “conformable rules” aimed at making up a global consensus with regard to dispositions concerning the refuse of military service, represents an example for universalist interpretation. Finally, the famous incest case of 2008 gives evidence for the use of universalist interpretation,126 with the Court assuming that the incest-ban, in the result, was recognized worldwide, although it stated “some differences in detail”. The case is particularly interesting also in terms of references to Zweigert’s and Kötz’ functional approach,127 according 123 See Choudry, supra note 121, 825. 124 See Choudry, supra note 121, 833 according to whom “unlike particularists, who emphasize the differences among legal systems, these scholars see unity in the midst of diversity”. 125 Recently also Busse, supra note 15, 413–417. 126 Besides the mentioned decisions another good example for universalist interpretation is represented by BVerfGE 18, 112 (30.06.1964) regarding the extradition of a criminal suspect to a country (in this case France) in which death penalty was still imposed; in its decision the Court rejected the constitutional complaint referring to “the democracies of the Western world” which have kept up death penalty and the “public opinion in the contemporary world” after which death penalty “is not totally irreconcilable with the contemporary stand of civilisation”. 127 Konrad Zweigert & Hein Kötz, Einführung in die Rechtsvergleichung, vol. i, 27–48 (Nomos 1971).

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to which, in short,128 comparatists should understand different national laws as solutions to similar social problems. On the basis of the praesumptio similitudinis one should thus assume that every society has to face essentially the same problems and needs and that any one society has (functionally equivalent) institutions that meet these needs. As we have seen, in the incest case the Court first referred to legal orders which do not prohibit incest between siblings. In a second step the Court scrutinized the objective function of the rules criminalising incest. It then examined, in terms of the functional method, in which way the laws of those countries where penal rules regarding incest did not exist, handle incestuous behaviour. In the result it concluded that on an international level the legal position concerning the penalisation of the sexual intercourse between siblings was essentially the same, even though there were some differences in detail. Thus, the solution the Court wished to adopt was hold to be confirmed by the (functional) comparison with various other foreign legal orders.129 It is interesting to note that cases of dismissive or distinguishing function, by contrast, generally come along with what Choudhry calls “dialogical” interpretation: a dialogue between legal orders, “a process of interpretive selfreflection” within which courts may conclude that “domestic and foreign assumptions are sufficiently similar to one another to warrant the use of comparative law” or, conversely, that “comparative jurisprudence has emerged from a fundamentally different constitutional order”. This means that Courts identify the normative and factual assumptions underlying their own constitutional jurisprudence by engaging with comparable jurisprudence of other jurisdictions in order to carve out differences and commonalities between them.130 The dialogical interpretation draws near to the dialectical method developed by Tschentscher, consisting of a continuous confrontation of thesis and antithesis aimed at leading to a synthesis described as relying on the “repeated readjustment of views on even higher levels of understanding” (wiederkehrende Einsicht auf höherem Niveau”). The dialectical method proposes a “dynamic” development of criteria for comparison instead of a prematurely determined order in terms of a systemic comparison by means of a rigid classification in legal circles or spheres (Rechtskreise). It thus turns in particular 128 For a more deepened analysis of the functional approach within the Court’s comparative reasoning see Somma & Haberl, supra note 48, 155–155. 129 Other examples for the functionalist approach of the Court are the kpd ruling (BVerfGE 5, 85 (17.08.1956)) and the Spiegel case (BVerfGE 66, 20 (05.08.1966), both already mentioned in this paper (notes 92 and 129). For questions of space we refer to the detailed analysis of these cases in Busse, supra note 15, 349–357. 130 Choudry, supra note 121, 825.

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against the functional approach and the neutral perspective requested by the latter, proposing, by contrast, a look at the specific issue from a “non-neutral”, i.e. partial viewpoint of a single constitution.131 For example, the 1951 decision in which the German Court contrasted the Swiss admission procedure of constitutional complaints, gives evidence of the fact that the Court “entered in dialogue” (Choudry) with a foreign legal order, as it compared the foreign solution (a mere “virtual violation”) with the domestic one (which requires a “present” violation) and subsequently fell back to the national solution because of reasons internal to the national system which the Court explains on specific grounds (risk of popular actions). Similarly, in terms of Tschentschers dialectical method, the Court, from the standpoint of the domestic legal system and without any intermediate steps, looked for rules in a foreign legal order on the basis of a confrontation of thesis (German solution) and antithesis (Swiss rules).132 Also the abortion-I-case can be ranked, as we have seen, within the group of dismissive or distinguishing function of comparative reasoning. And also this case – like the others within this group133 – shows an exemplary use of the dialogical, respectively dialectical method as it is based on a partial standpoint (pursuant to Tschentscher) and an intensive discussion of foreign legal orders enabling the carving out of the particularities of the German Constitution. 4

Concluding Remarks

Summing up on the whole, we can either find decisions in which the Court uses the functionalist approach, either those in which it makes use of the universalist interpretation, as well as decisions in which dialogical or dialectical interpretation is used, sometimes even combining two of the mentioned methods. In cases with dismissive or distinguishing function we have seen that the use of the dialogical or dialectical method brings about a more in-depth analysis of the materials referred to. With regard to decisions which make use of the affirmative function, by contrast, foreign precedents generally seem to be “typically mentioned rather than discussed”134 and are frequently characterised by the recourse to universalist interpretation. 131 This is why Tschentscher, supra note 114 refers to Hegel and calls this method “dialectical” method. With regard to the necessity to assume a “non-neutral” perspective see also the reflexive method developed by Baer, supra note 113, 745–747. 132 For details Busse, supra note 15, 375 f. 133 See supra par. 2.2.2. 134 Kielmansegg, supra note 22, 671.

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There are also cases which would have proven particularly useful for the introduction of foreign materials but which are characterised by “foreign law abstinence” notwithstanding the temporal proximity and the parallels in terms of content to foreign case law. Besides the already mentioned abortion-Idecision (in the majority opinion any reference to Roe vs. Wade is missing) and those cases we have cited within the field of EU-related law,135 we can refer, just to give one example,136 to the 1994 Hashish-drug-case.137 In this decision, the Court had to take a position with regard to the question of constitutionality of the penal provisions of the Intoxicating Substances Act (Betäubungsmittelgesetz) which impose punishment for behaviour which is merely preparatory to the personal consumption of small amounts of so-called narcotic drugs such as hashish and marijuana. The applicants pleaded in favour of a “right to be intoxicated” (Recht auf Rausch), referring to art. 2.1 GG (which guaranties the general right to freedom of action) and, besides that, held that the mentioned rule with regard to other drugs like alcohol or nicotine violated the principle of equality (art. 3.1 GG). In order to support their reasoning they also referred to the “factual decriminalisation” of the owning and consumption of cannabis “in the Netherlands, in Italy as well as in some States of the usa” which “had led to a diminution of consumption”. The Court, however, concentrated on the analysis of the principle of proportionality – in the result rejecting the constitutional complaint – neither using the references for “reception”. i.e in affirmative function, nor for negation, i.e. in dismissive or distinguishing function. In some more recent cases with reference to foreign law in only supportive function the Court shows a broader comparative analysis, including references to foreign case law as well as to other foreign materials of a variety of legal systems. This “survey approach” which is assessed as a more solid basis for the comparative argument, as well as a sign for the growing readiness of the Court to consider foreign input in its decisions,138 involves a shift from a bilateral to a multilateral comparative reasoning, and this not only in terms of the quantity 135 See supra note 77. 136 There are many other examples in which German judges remained “unimpressed” by foreign landmark decisions with the same subject matter. For questions of space we refer to the analysis in Nick Oberheiden, Typologie und Grenzen richterlichen Verfassungsver­ gleichs. Deutschland, usa und Brasilien im Vergleich 74–80 (Nomos 2011), which cites, among others the “Soldiers are murderer” case (BVerfGE 93,266 (10.10.1995)), in which only a short reference is made to the Anglo-American systems without however referring to the hate speech discussions in the usa, and two of the “Broadcasting in courtrooms” cases (BVerfGE 91, 125 (14.07.1994), and BVerfGE 119, 309 (19.12.2007); with respect to the latter topic see however the dissenting opinions in BVerfGE 103, 44 (07.11.2000), supra note 83. 137 BVerfGE 90, 145 (09.03.1994). 138 Kielmansegg, supra note 22, 670.

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of the countries cited in one decision, but also in terms of the frequency the Court refers to the multilateral reasoning.139 This is confirmed by looking for example at the 2013 decision regarding successive adoption by registered partners, the 2006 and 2011 decisions concerning the legal position of transsexuals, the incest case of 2008, as well as, to cite yet another case we do not have mentioned in this paper, the judgment from 2010 regarding the parental right of the father of a child born out of wedlock.140 All these decisions occurring within the last decade or so, appear to give evidence of an increasingly open-minded German Federal Constitutional Court with regard to the use of foreign materials, one which seems to be adopting a more global approach that eschews the cursory and sketchy comparison in former years. 139 In her empirical study – exclusively carried out with reference to foreign judicial decisions and limited to those published in the official collection of the Court’s s case law – ­Cardenas Paulsen, supra note 31, stated an increasing multilateral approach merely in terms of the quantity of the countries cited in a decision, and not also in terms of frequency. This is due to the fact that her study covers the period from September 1951 to July 2007 and thus does not include most of the cases (dating from 2008 to 2013) we have mentioned here. See also Bobek, supra note 8, 144. 140 In this decision – BVerfGE 127, 132 (21.07.2010) – reference was made to all the ­twenty-seven EU-countries with concrete mention of the existing rules in almost every one country.

Comparative Law in the Case Law of the Austrian Constitutional Court Christoph Grabenwarter 1

Functions and General Characteristics of Constitutional Justice in Austria

The Constitutional Court is the central institution to guarantee the precedence of the constitution, to guarantee that all state acts comply with the constitution and to safeguard fundamental and human rights (‘guardian of the constitution’). The most important competence of the Constitutional Court is the competence to review the constitutionality (or lawfulness) of general norms, in particular the constitutionality of laws. It may do so in the course of pending proceedings (concrete norm control proceedings) and in abstract norm control proceedings. In norm control proceedings, the Constitutional Court examines both federal and Land laws, including the Federal Constitution and the constitution of the Laender. Federal laws are examined for their compliance with the Federal Constitution, Land laws for their compliance with the Land constitution, the Federal Constitution, and sometimes federal laws (Art. 12 Federal Constitution). The constitutions of the Laender are examined for their compliance with the Federal Constitution and the basic principles of the Federal Constitution; the Federal Constitution is examined for its compliance with the basic principles derived therefrom. EU law with the exception of the Charta of Fundamental Rights is not a standard of review in norm control proceedings.1 Concrete norm control proceedings may be instituted by (civil, criminal or administrative) courts which have to apply a law which they deem to be unconstitutional. Moreover, individuals may file an application following the decision of a civil or criminal court of first instance alleging that the law applied by the court is unconstitutional. Another function of the Constitutional Court is to resolve conflicts of competences between the Federation and a Land or between the Laender themselves. Finally, the Court pronounces upon challenges to elections.

1 See Grabenwarter, Constitutional Law, in: Grabenwarter/Schauer (eds.), Introduction into Austrian Law (2015) 1 (12).

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_012

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The large majority of cases decided by the Constitutional Court reaches the Court through individual complaints against decisions of the eleven Administrative Courts of first instance, nine Courts of the Laender, one general federal Administrative Court and the special Federal Administrative Court in financial matters. The judgments usually start with a factual part on the facts and circumstances of the case and the prior procedure before the courts including the submissions of the applicants. In the large majority of cases, this part is followed by a part on the law which presents the relevant law in force, including ordinary law and – where appropriate – International treaties and European law. Foreign law or case law is not presented in the law part. Case law of European Courts is not presented in the “Relevant Law”-part but in the reasoning (“Erwägungen”) which is the central part of a decision of the Constitutional Court. Also comparative law references and arguments are integrated in this part of the decision. In general, decisions in norm control proceedings are longer than those in decisions on individual complaints against decisions of administrative Courts. The Austrian system does not provide for dissenting or concurring opinions. It does not even show whether the decision was taken unanimously or by a majority. 2

The Role of Comparative Law in General

In general, the Austrian Court does not show a lot of explicit references to foreign law or to comparative arguments. Looking back to the history of the Court the first cases in which the Austrian Constitutional Court referred to foreign or international law (excluding the European Convention of Human Rights in itself and the law of the European Union) the significant time period starts with the early 1980s. Before this date there exist hardly any references to foreign precedents or foreign jurisdiction in the case law of the Austrian Constitutional Court.2 The following analysis concentrates on case law in which the Austrian Constitutional Court takes into account foreign law in its reasoning itself. Since there is always a factual part including the submissions of the applicants there would be some more jurisdiction that includes references to foreign law or ­jurisdiction. But in most of these cases the Court doesn´t even react 2 Gamper, Foreign Precedents in Austrian Constitutional Litigation, icl Journal 2015, 27 (32).

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to ­submissions of applicants citing foreign law;3 only in a few decisions the Court gives a short explanation regarding the irrelevance of the concrete submissions.4 The following does not deal with references that are based on decisions taken by inter- or supranational Courts, in particular the European Court of Human Rights (ECtHR) or the Court of Justice of the European Union (cjeu) – which are much more frequent than any other foreign precedents.5 In the last three decades the Austrian Constitutional Court itself used foreign (or international) law only in a limited number of cases. In total, in little more than 30 decisions of the Court out of more than 20.000 cases published in the Collection of decisions there are explicit references to foreign law and jurisdiction in its reasoning (“Erwägungsgründe”) since the early 1980s.6 Analyzing this case law shows different types of foreign (case) law that is taken into account as well as some different functions of the use of foreign law. 3

Ways of Use of Foreign Law

Foreign law is incorporated in the jurisdiction of the Austrian Constitutional Court in three ways. First there is foreign jurisdiction and case law; further important reference objects are foreign legal systems, norms and standards; a third way of using foreign law (that cannot be clearly separated from the ­others) is the reference to a European standard or tradition. 3.1 References to Foreign Jurisdiction and Case Law Nearly 65 % of the decisions that use foreign law in its reasoning refer to foreign jurisdiction and case law. It is remarkable that these decisions refer almost without any exception to the jurisdiction of the German Constitutional Court (“Bundesverfassungsgericht”) or the German Federal Finance Court 3 Gamper, Foreign Precedents in Austrian Constitutional Litigation, icl Journal 2015, 27 (33); Holoubek, Die Kooperation der Verfassungsgerichte in Europa – aktuelle Rahmenbedingungen und Perspektiven Landesbericht Österreich, in: xvith Congress of the Conference of European Constitutional Courts (ed.), The Cooperation of Constitutional Courts in Europe (2014) 256 (266). 4 See for example CollDecCC (Collection of Decisions of the Constitutional Court/­ Verfassungssammlung – CollDecCC) 15.632/1999; Gamper, Austria: Non-cosmopolitan, but Europe-friendly – The Constitutional Court´s Comparative Approach, in: Groppi/­Ponthoreau (eds.), The Use of foreign Precedents by Constitutional Judges (2013) 214 (220 et sq.). 5 Gamper, Foreign Precedents in Austrian Constitutional Litigation, icl Journal 2015, 27 (32). 6 Fuchs, Verfassungsvergleichung durch den Verfassungsgerichtshof, jrp 2010, 176 (178); find enumerations of these cases (up to the year 2012) in Gamper, Foreign Precedents in Austrian Constitutional Litigation, icl Journal 2015, 27 (33).

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(“Bundesfinanzhof”).7 Another remarkable detail is that many of those cases deal with tax law.8 In the following analysis reference is only made to cases where the Court used foreign or international law in the normative part, i.e. on the merits (“Erwägungsgründe”), and not to all the cases where the applicants referred to foreign law (which the Constitutional Court normally does not take up explicitly in its reasoning).9 In some cases the Austrian Constitutional Court explicitly referred to a foreign court´s interpretation of the scope of rights of the echr.10 In a case dealing with the scope of Art 10 echr the Austrian Constitutional Court referred to the case law of the German Constitutional Court on Article 5 of the German Basic Law.11 In another case the Austrian Court quoted the German Constitutional Court when it had to interprete the term “assembly” in Art 11 echr.12 Other similar examples in the case law of the Austrian Constitutional Court can be found in the proceedings on data retention.13 Already in its decision to submit a request under Article 267 tfeu to the Court of Justice of the European Union for a preliminary ruling14 the Court in Vienna referred to the German Bundesverfassungsgericht.15 In both decisions the Austrian Constitutional Court relied on the corresponding case law of the German Constitutional

7 See Eberhard, Funktionalität und Bedeutung der Rechtsvergleichung in der Judikatur des VfGH, in: Gamper (ed.), Rechtsvergleichung als juristische Auslegungsmethode (2013) 141 (149); Grabenwarter, Die Kooperation der Verfassungsgerichte in Europa – Aktuelle Rahmenbedingungen und Perspektiven, in: xvith Congress of the Conference of European Constitutional Courts (ed.), The Cooperation of Constitutional Courts in Europe (2014) 63 (85 et sq.); Holoubek, Die Kooperation der Verfassungsgerichte in Europa – aktuelle Rahmenbedingungen und Perspektiven Landesbericht Österreich, in: xvith Congress of the Conference of European Constitutional Courts (ed.), The Cooperation of Constitutional Courts in Europe (2014) 265. 8 CollDecCC 9138/1981, 9446/1982, 10.029/1984, 11.260/1987, 17.979/2006, 18.031/2006, 18.792/2009, 19.678/2012; Holoubek, Die Kooperation der Verfassungsgerichte in Europa – aktuelle Rahmenbedingungen und Perspektiven Landesbericht Österreich, in: xvith Congress of the Conference of European Constitutional Courts (ed.), The Cooperation of Constitutional Courts in Europe (2014) 256 (266). 9 Gamper, Foreign Precedents in Austrian Constitutional Litigation, icl Journal 2015, 27 (33). 10 Grabenwarter, Der österreichische Verfassungsgerichtshof, in: Bogdandy/Grabenwarter/ Huber (eds.), Handbuch Ius Publicum Europeaum Vol. vi (2015) § 102 p 67. 11 CollDecCC 18.893/2009. 12 CollDecCC 17.600/2000. 13 CollDecCC 19.892/2012. 14 CollDecCC 19.702/2012. 15 BVerfG 15.9.2008, 1 BvR 1565/05, p 13; see Fuchs, Verfassungsvergleichung durch den Verfassungsgerichtshof, jrp 2010, 176 (182).

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Court to demonstrate the severity of the interference of data retention with the fundamental right to data protection.16 Besides that there are a few examples in which the Austrian Constitutional Court considers the jurisdiction of other courts than those of Germany. In one case the Court dealt with the question whether the removal of a camera and the destruction of the pictures made with it constituted a violation of the right to freedom of expression (Art 10 echr).17 When it determined the scope of protection of Article 10 echr the Constitutional Court referred to the case law of the Supreme Federal Court of Switzerland (“Schweizerisches Bundesgericht”) in this field.18 It is not only the practical reason of the same language that establishes this close connection with the German Constitutional Court (and to a limited extent also the Swiss Federal Court). There is a close relation between the Austrian and German federal constitutions and also a similarity between both systems of constitutional jurisdiction. Another aspect is that professors sitting on the benches of both Courts are members of the same scientific community, supported by common scientific associations where members (including judges) discuss common issues from the perspective of both constitutions and sometimes on a theoretical level.19 From Punctual References to (One Case of ) Comprehensive Comparative Analysis The second important form of using foreign law in the case law of the Austrian Constitutional Court is reference to foreign legal systems.20 This case law shows some parallels to the case law referring to foreign jurisdiction as it again concerns the German legal system (especially in the field of tax law).21 Some 3.2

16 17 18 19

20 21

CollDecCC 19.892/2012. CollDecCC 11.297/1987. CollDecCC 11.297/1987, 12.104/1987. An early example is the controversy between Carl Schmitt and Hans Kelsen following the Conference of the Association of German Constitutional Lawyers in 1928: Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, VVDStRL 5 (1929) 30 et sq; Schmitt, Der Hüter der Verfassung (1931) and as a reply Kelsen, Wer soll der Hüter der Verfassung sein? (1931); see further e.g. Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (2015); a similar association of law professors exists in the field of tax law which may be part of the explanation for the references to the German Federal Finance Court (“Bundesfinanzhof ”) in financial and tax matters. About one third of all the cases using foreign law refer to the legal system of (an)other state(s). See below.

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cases nonetheless deal with the Swiss legal system.22 Besides that there are a few interesting cases concerning more than one legal system. A “judicial highlight” in this context, and in fact the only example of a thorough comparative analysis in the history of the Court, is a request to the Max-Planck-Institute (mpi) for Foreign and International Criminal Law in Freiburg (Germany) on the legal situation in the field of a particular question of criminal law in member states of the echr.23 The Austrian Constitutional Court had to deal with the right to refuse to give evidence of professional representatives in the scope of Art 6 echr. In its decision – based on the Max Planck-study – the Austrian Court took into account the legal standard of some “representative member states” of the echr.24 There are a few other decisions in which the Austrian Constitutional Court referred to more than one state´s legal system. These ca­ ses concern on the one hand family law (like adoption25 or parental custody26) and on the other hand socio-politically sensitive matters like the legal institute of the civil partnership27 or shop opening hours on Sundays.28 3.3 The Use of Comparative Law in the Interpretation of European Law Another important field where comparative arguments are used is the interpretation of European law. When the Constitutional Court has to deal with texts of European origin the Court refers not only to the legal systems of one or more states but also takes into account the European legal tradition. This concept of referring to a European legal tradition/standard is known from the jurisdiction of the European Court of Human Rights (ECtHR). This way of arguing fundamental rights cases is inspired by the European Court of Human Rights which quite often refers to the existence or absence of a European consensus while interpreting the scope of convention rights or determining the margin of appreciation when it comes to interferences with certain rights.29 The ECtHR refers to the existence or non-existence of a European c­ onsensus 22 23 24 25 26 27 28 29

CollDecCC 15.632/1999, 19.899/2014; VfGH 15.03.2017, v 162/2015-50. CollDecCC 10.291/1984. Germany, France, Italy, Netherlands, Sweden, Switzerland, Spain, United Kingdom. CollDecCC 13.629/1993. CollDecCC 19.653/2012. CollDecCC 19.492/2011. VfGH 05.03.2015, G 107/2013-11. Grabenwarter, Kontrolldichte des Grund- und Menschenrechtsschutzes in mehrpoligen Rechtsverhältnissen – Aus der Sicht des Österreichischen Verfassungsgerichtshofes, EuGRZ 2006, 487 (489 et sq.); Grabenwarter, Funktionalität und Bedeutung der Rechtsvergleichung in der Judikatur des egmr, in: Gamper (ed.), Rechtsvergleichung als juristische Auslegungsmethode (2013) 95 (111 et sq.).

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to determine the extent of the margin of appreciation to be enjoyed by the member states of the Council of Europe on the one hand. In its function as a Court of public international law the ECtHR bases its arguments on the results of comparing the different legal systems of the member states to justify its findings in ambiguous situations. However, the situation of the Austrian Constitutional Court differs from the situation of the ECtHR. Therefore the Constitutional Court does not use references to European legal traditions in exactly the same way and for the same reasons. The Austrian Court has taken into account the existence of a European legal tradition when it comes to interpret and implement the scope of rights of the echr. Sometimes it explicitly refers to the jurisdiction of the ECtHR, sometimes it substantiates its own findings with a short reference to the legal standard in other European countries: One of the first cases where the Austrian Court has referred to a European legal tradition concerned the interpretation of “civil rights” within the meaning of Art 6 echr. The Court quoted the dissenting opinion of a judge of the ECtHR in which he claimed that the legal situation in the majority of the member states was against the provisions of Art 6 echr at this time.30 In another decision the Austrian Constitutional Court made a reference to the legal situation in five European states31 (which was first made in the legislation process) defining the legislator’s margin of appreciation within the scope of Art 8 para 2 echr concerning adoption laws.32 In a case concerning laws of parental custody and the question if a certain interference constituted a violation of Art 8 combined with Art 14 echr the Austrian Court in its reasoning repeated the ECtHR’s jurisdiction which took into account that there is no European consensus concerning the question at issue.33 Regarding the question if it constituted a violation of convention rights that the institute of civil partnership is only available for same-sex couples34 the Constitutional Court quoted the ECtHR as well. Hereinafter he briefly mentioned that only a short amount of states in Europe had installed the institute of civil partnership additional to the institute of marriage which led (next to other arguments) to its finding that there was no violation.35 Based on the argument that all of the European societies have a day of rest (next to other arguments) the Austrian 30 31 32 33 34 35

CollDecCC 11.500/1987. Belgium, Germany, Danmark, France, Netherlands. CollDecCC 13.629/1993. CollDecCC 19.653/2012. And not for different-sex couples which are able to marry. CollDecCC 19.492/2011.

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Constitutional Court could further not find a violation of constitutional rights if there are no shop opening hours during Sundays.36 3.4 Invisible References to Comparative Law Besides explicit references in decisions an important influence takes place in a more informal, hidden way. Austrian lawyers in public law as well as in private law are inclined to take a look on foreign law. Therefore, also in the Constitutional Court, comparison with closely related legal systems takes place on a regular basis. When draft decisions of a rapporteur are sent to the other judges also the application and, where appropriate, the decision against which the application is directed are distributed with the draft. Moreover, articles published in law journals and earlier decisions of the Constitutional Court come with the draft decision. Besides that many judges also search for case law of the European Courts. Finally, it is a common practice to look for foreign literature or case law related to the issue of the decision. In general, references to foreign legal scholarship and to foreign publications are very rare in the jurisdiction of the Austrian Constitutional Court. In this context it has to be borne in mind, that in the vast majority of cases there is no reference to legal scholarship at all, even as far as publications in Austrian law journals or books are concerned. The situation is different when it comes to case law. If there is European and/or foreign case law it is distributed with the material and from time to time reference is made to these decisions. Even if not explicitly mentioned in judgments foreign case law can also find its way to Austrian Constitutional Jurisdiction through implicit use.37 An early example for an implicit use of foreign jurisdiction is the adoption of the so called “Stufentheorie” (“theory of steps”) of the German Constitutional Court in the interpretation and application of the right to pursue a professional activity. In a judgment concerning the operation of a pharmacy the German Constitutional Court developed its jurisdiction based on this fundamental right.38 It stated that the legislator´s discretion depends on the type of interference with the fundamental right. While there is more discretion in rules concerning the pursuit of a career there is less discretion in rules concerning the access to a certain business or career. The Austrian Constitutional Court also bases its case law on this line of argument without ever having explicitly referred to the German jurisdiction.39 36 37 38 39

VfGH 05.03.2015, G 107/2013-11. Gamper, Foreign Precedents in Austrian Constitutional Litigation, icl Journal 2015, 27 (36). BVerfGE 7, 377. CollDecCC 11.558/1987, 11.853/1988, 12.481/1990, 16.024/2000, 16.734/2002, 17.682/2005, 20.002/2015; see also Grabenwarter, Rechtliche und ökonomische Überlegungen zur

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Another way of “cross fertilization” through comparative law takes place in an even more informal way in the framework of multilateral and bilateral meetings of judges. Like other Constitutional Courts the judges of the Austrian Court take part in an international exchange of views at three levels:40 (a) First, there are meetings in the framework of a worldwide congress and a European congress bringing together all Constitutional Courts of the continent and the whole world respectively.41 They are organized at regular intervals of three years by the Conference of European Constitutional Courts and the World Conference of Constitutional Justice. The special value of these meetings is the result of a scientific preparation of the bureau of the Conference in co-operation with the Venice Commission “Democracy through Law” which is also a co-organizer.42 A detailed questionnaire on a particular topic is prepared well ahead of the date of the Congress and sent to the member Courts. They establish country reports which are then published on the website of the Conference and discussed on the basis of presentations of key note speakers or general rapporteurs.43 The Venice Commission offers an effective system of exchange of views in case of a particular problem in a certain case within the so called “Venice Forum”. Moreover, the Venice Commission has a sub-commission on Constitutional Justice. Its members are also members of the Joint Council on Constitutional Justice, which is constituted by the Venice Commission and the constitutional courts and equivalent bodies in its member and observer states. Here again, the Austrian Constitutional Court takes actively part through leading staff, also in the framework of “mini-conferences” where an exchange of view is held on current issues of constitutional justice.

Erwerbsfreiheit (1994) 103 et sq., 157 et sq.; Eberhard, Funktionalität und Bedeutung der Rechtsvergleichung in der Judikatur des VfGH, in: Gamper (ed.), Rechtsvergleichung als juristische Auslegungsmethode (2013) 141 (152 et sq.). 40 Cf von Bogdandy/Grabenwarter/Peter M. Huber, Verfassungsgerichtsbarkeit im europäischen Rechtsraum, in: Von Bogdandy/Grabenwarter/Huber (eds.), Verfassungs­ gerichtsbarkeit in Europa: Institutionen, Handbuch Ius Publicum Europaeum, Volume vi (2016) § 95 p 21 et sqq. 41 See Mayrhofer, Europäische Verfassungsvergleichung durch den Verfassungsgerichtshof, jrp 2010, 188 (191). 42 For the various activities of the Venice Commission in the field of Constitutional Justice cf. Grabenwarter, Constitutional Standard-setting and Strengthening of New Democracies, in: Schmahl/Breuer (eds.), The Council of Europe (2017) Chap. 32. 43 For example the Congress of the Conference of European Constitutional Courts in 2014, see xvith Congress of the Conference of European Constitutional Courts (ed.), The Cooperation of Constitutional Courts in Europe Volume i and ii (2014).

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(b) Secondly, the Austrian Constitutional Court holds regular meetings with the Constitutional Courts using the German language, i.e. the Constitutional Courts of Germany and Liechtenstein and the Supreme Federal Court of Switzerland. In these meetings also German speaking judges of the European Court of Human Rights and the Court of Justice of the European Court participate.44 Here again, topics are prepared which are discussed after a short introduction by judges of one or two Courts. Quite often, the dialogue is dedicated to questions of European Law, human rights or European integration in the context of European Union law. These meetings are less formal than those of the conferences mentioned above.45 Sometimes the presentations of some judges are published in law journals where reference is made to the meeting.46 (c) Thirdly, bilateral co-operation between the Austrian Constitutional Court and other Courts takes place. This kind of co-operation is often underestimated, because it is hardly visible to the public. Sometimes the Austrian Constitutional Courts refers to similar decisions of a foreign constitutional court, in particular to decisions of courts of neighbouring countries or important constitutional courts in the region, such as the German Federal Constitutional Court. The invisible part is the informal co-operation between courts, which takes place by way of mutual visits with talks and common seminars on recent problems in the jurisprudence of two Constitutional Courts.47 Sometimes new solutions are developed in such talks or solutions of a foreign Court are presented to the Austrian Court which then considers this solution in its own case law. However, there is no explicit reference to this source of inspiration in the case law. For the sake of completeness some European examples of sources for implicit comparative law approaches have to be mentioned in this context. First of all, when the Constitutional Court takes note of or even quotes judgments of the European Court of Human Rights or the Court of Justice of the 44 See Knauff, Das Verhältnis zwischen Bundesverfassungsgericht, Europäischem Ge­ richtshof und Europäischem Gerichtshof für Menschenrechte, DVBl. 2010, 533 (539). 45 See Lachmayer, Verfassungsvergleichung durch Verfassungsgerichte – Funktion und Methode, jrp 2010, 166 (170 et sq.). 46 For an example Grabenwarter, Kontrolldichte des Grund- und Menschenrechtsschutzes in mehrpoligen Rechtsverhältnissen – Aus der Sicht des Österreichischen Verfassungsgerichtshofes, EuGRZ 2006, 487; Pellonpää, Kontrolldichte des Grund- und Menschenrechtsschutzes in mehrpoligen Rechtsverhältnissen – Aus der Sicht des Europäischen Gerichtshofs für Menschenrechte, EuGRZ 2006, 483. 47 See Lachmayer, Verfassungsvergleichung durch Verfassungsgerichte – Funktion und Methode, jrp 2010, 166 (172 et sq.).

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European Union this is not only a reference to European law. It also takes account of national law of one or more member States in its confrontation with European human rights or European Union law; the implications of these references have been discussed under 3. above. Besides this, comparative law enters the constitutional reasoning indirectly in the following ways: In the case of the ECtHR explicit “comparative law” parts form an integral part of a number of judgments.48 In the case of the cjeu a comparative approach is integrated whenever a decision of the Court in preliminary rulings concerning another member State is taken as basis or at least taken into account in a decision of the Constitutional Court, regardless whether this has been done explicitly or implicitly. In a similar way, although less frequent and less obvious, documents of the Venice Commission of the Council of Europe, such as studies, checklists or other compilations, may be a source of inspiration for constitutional reasoning based on comparative law.49 In many cases the content of these documents is established on the basis of country reports or contributions of individual members of the Commission which reflect the legal situation in their respective countries. Quite often there is also a comparative synopsys or even a conclusion as to a European standard. Here again, if the Court takes note of such a document (which is proposed at least by some judges at the Court) it implicitly uses comparative arguments. Finally, international and comparative scientific projects have to be mentioned. In the field of public law, the Ius Publicum Europaeum–projects has to be mentioned. It is hosted and co-ordinated by a German Max-Planck-Institute and a German public law professor and constitutional judge. It integrates foreign public lawyers and constitutional judges as co-editors and contributors. It started with two volumes on constitutional law50 and continued with three volumes on administrative law, two of them co-edited by an Italian professor and judge at the Corte Costituzionale.51 Meanwhile it has reached constitutional 48 Cf Grabenwarter, Funktionalität und Bedeutung der Rechtsvergleichung in der Judikatur des egmr, in: Gamper (ed.), Rechtsvergleichung als juristische Auslegungsmethode (2013) 95. 49 See Grabenwarter, Constitutional Standard-setting and Strengthening of New Democracies, in: Schmahl/Breuer (eds.), The Council of Europe (2017) Chap. 32. 50 Von Bogdandy/Cruz Villalón/Huber (eds.), Grundlagen und Grundzüge staatlichen Verfassungsrechts, Handbuch Ius Publicum Europaeum, Volume i (2007); Von Bogdandy/ Cruz Villalón/Huber (eds.), Offene Staatlichkeit Wissenschaft vom Verfassungsrecht, Handbuch Ius Publicum Europaeum, Volume ii (2008). 51 Von Bogdandy/Cassese/Huber (eds.), Verwaltungsrecht in Europa: Grundlagen, Handbuch Ius Publicum Europaeum, Volume iii (2010); Von Bogdandy/Cassese/Huber (eds.), Verwaltungsrecht in Europa: Wissenschaft, Handbuch Ius Publicum Europaeum, Volume

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justice, two volumes52 will be followed by volumes on administrative justice and on the history of public law. Some of the volumes have a second part dedicated to the “comparative approach” (“Rechtsvergleichender Zugriff”). Volume vi starts with a fundamental contribution on the role of Constitutional justice in the “European legal area” (“Europäischer Rechtsraum”). Reference is made to platforms and institutions which promote and allow comparative influence between Constitutional Courts;53 some of them have been mentioned above. 4 Conclusion The Austrian Constitutional Court is a judicial body which is open for international and European influence in the interpretation of constitutional law, in particular when it comes to fundamental rights of European origin. In contrast, explicit comparative law arguments in the judgments are rare. However, the Court is open for a comparative perspective in its day-to-day work. Accompanied by a number of legal scholars who take actively part in international conferences and projects the Constitutional Court repeatedly prepares its judgments based not only on Austrian scholarship and case law but also on foreign and comparative law studies and analysis. From this perspective the Austrian Constitutional Court can be qualified as a Court inclined to comparative law although this is not immediately obvious in its case law.

52 53

iv (2011); Von Bogdandy/Cassese/Huber (eds.), Verwaltungsrecht in Europa: Grundzüge, Handbuch Ius Publicum Europaeum, Volume v (2014). Von Bogdandy/Grabenwarter/Huber (eds.), Verfassungsgerichtsbarkeit in Europa: Institutionen, Handbuch Ius Publicum Europaeum, Volume vi (2016); the seventh volume is forthcoming. Von Bogdandy/Grabenwarter/Peter M. Huber, Verfassungsgerichtsbarkeit im europäischen Rechtsraum, in: Von Bogdandy/Grabenwarter/Huber (eds.), Verfassungsgerichtsbarkeit in Europa: Institutionen, Handbuch Ius Publicum Europaeum, Volume vi (2016) § 95 p 24 et sqq.

Conspicuous Absentees in the Dutch Legal Order: Constitutional Review & A Constitutional Court Wim Voermans 1

The Strange Setup of Constitutional Review in the Netherlands

The Netherlands may prove to be a bit of a killjoy in this book since the Dutch legal system does not have a Constitutional Court, nor much in the way of ­constitutional review proper. The Dutch Constitution even contains a ban on constitutional review. With these features, the Netherlands is the odd one out in the family of modern Western constitutional systems. Most modern constitutional systems have, as a sort of a logical sequel to present-day requirements of the rule of law, both a constitutional court and judicial constitutional review. In what other way is it possible to safeguard and implement the constitution, one might wonder, if there is no review by an independent arbiter? This contribution will not take a position on this but will try to explain why the Dutch system is so different and playing out of tune with the rest of the European family. Secondly, it illustrates how the Dutch manage to keep rule of law safeguards in check even without full-fledged constitutional review. 1.1 The Absence of a Constitutional Court There is no special Constitutional court in the Netherlands, which deals with constitutional questions as there is in most other European countries. What is even more peculiar is that in the (more than1) 200-year history of the Dutch constitution it was never seriously considered.2 The main reason for this relates to the ban on constitutional review enshrined in article 120 of the Constitution, which reads:

1 The Dutch Constitution dates back to 1814, making it the second oldest Constitution in the World. See W. Voermans, ‘Constitutional Law’ (Chapter 15), in: Chorus, J., Hondius, E., Voermans, W. (eds.), Introduction to Dutch Law (5th edition). Alphen aan den Rijn: Wolters Kluwer 2016, 320–321. 2 A recent report of the ‘De nationale conventie’ (National Convention) in 2006 floated the idea of a Constitutional Court in the Netherlands. The idea was not picked up. Nationale Conventie, Hart voor de publieke zaak; Aanbevelingen van de Nationale conventie voor de 21e eeuw. The Hague 2006, 47 ff.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_013

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The constitutionality of Acts of Parliament and treaties shall not be reviewed by the Courts.3 The ban on constitutional review expresses two things. First of all the notion of dispersed constitutional review. All Dutch courts can engage in constitutional review, except for the review Acts of Parliament and Treaties. Secondly, article 120 of the Dutch Constitution marks the constitutional position of the courts: they cannot trump the final outcome of Parliamentary debate or the expressed will of the international community (in a Treaty) – the courts are – in the Dutch system – more or less subordinate to the will of the people expressed by the sovereignty of the national Parliament. But only to this national body. The courts do not owe this reverence to lower ranking parliaments like municipal or provincial councils. The will of the people is represented in these lower ranking, elected councils as well, and these councils do engage in legislation too. Provincial and municipal legislation is subject to constitutional review by the courts (all the courts). A strange inconsistency at first glance. Why did the Dutch chose for this system and not opt for a single constitutional court, which might be more efficient, allowing to pool constitutional knowledge into one organization? It would have certainly aligned the Dutch system better with the constitutional systems of their European neighbours. 1.2 Land of Minorities and Political Compromise: Polderculture One of the main reasons for this particular Dutch position has to do with the fact that the Netherlands are historically a land of minorities. For centuries. Rights and privileges of – amongst others – (religious) minorities were the reason for the 16th century uprising against the Habsburgs (resulting in the birth of the Netherlands). In the four centuries of its existence, the Netherlands have always been rife with separatist groups, all kinds of forms of separatism, minority-struggles and so on. Peaceful fragmentation is a typical trait of Dutch social-cultural and political life, up until the present day. This is for instance reflected in the politics of the country. Political parties are manifold and most of them (very) small. This means that they will always – as a fact of political life – have to compromise and work together to form a majority coalition. The Dutch House of Representatives (Tweede Kamer) currently – after the 2017 elections – consists of 13 different political groups in a House 3 A somewhat liberal English translation of the original Dutch text of article 120 of the Dutch Constitution taken from Constitute https://www.constituteproject.org/constitution/Netherlands_2008.pdf?lang=en. The original Dutch text of article 120 reads: ‘De rechter treedt niet in de beoordeling van de grondwettigheid van wetten en verdragen.’

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of 150 seats. Only one group packs about 20% of the seats, the three runner up groups pack about 12–13%, nine groups fall below the 10% threshold, six of which would fall under the 5% electoral threshold Germany has put into place. To say the political landscape is fragmented would be a euphemism: it is splintered. In the Dutch Senate or Upper House (Eerste Kamer), the picture is more or less the same: at the end of 2015, twelve groups were represented in a House of 75 seats. This political fragmentation is a recurrent feature of the Dutch minority nation. The political landscape is and has been fragmented ever since the first general elections of 1922. One would believe that in a country like this politics and policymaking would be permanently paralyzed, but in fact, they are not. The Dutch have learned to manage their political fragmentation by typical ways of compromise politics, involving both political parties and social-economic ‘partners’ (unions, employers organisations and interest groups). The so-called ‘polder model’-compromises or (as an indication of the political culture) ‘polder culture’.4 In a coalition country like this, relying on so many actors and compromises, it stands to (some) reason that it is not up to judges to review and quash the result of hard wrought compromises and tradeoffs enshrined in legislation. The ban on constitutional review, expressed in the Constitution ever since 1848, denotes the supremacy of an Act of Parliament vis-à-vis the Constitution, which is further enhanced by Article 140, a transitory provision, reading: ‘Existing Acts of Parliament and other regulations and decrees which are in conflict with an amendment to the Constitution shall remain in force until provisions are made in accordance with the Constitution.’ 2

How Do the Dutch Operate Constitutional Review?

The ban on constitutional review of Acts of Parliament and the absence of a constitutional court does not mean that constitutional review does not exist in the Netherlands. It does. In this paragraph, we will look into the ways the Dutch have organized it. 2.1 Who Guards the Constitution if There is no Constitutional Court? Barring the courts from constitutional review of Acts of Parliament and Treaties seems rather drastic and giving (too) much rein to political actors maybe: a somewhat naïve belief, perhaps, in the sovereignty of Parliament and its 4 See R.B. Andeweg and A.I. Galen, Governance and Politics of the Netherlands, Basingstoke, Palgrave Macmillan, 2014.

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power to act responsibly as guardian of the Constitution. Because that is where the responsibility for constitutional review lies in the Netherlands: with Parliament. It is up to the Houses of Parliament to review the constitutionality of bills. Parliamentarians are, for this task, not totally left to their own devices. A special advisory division of the Council of State offers assistance. Prior to the tabling of any bill before Parliament, the Council of State reviews bills (as well as proposals for government decrees) and, on that occasion, tries to have a keen eye for constitutional issues. Likewise ratification bills for any Treaty are submitted for consultation to the Council of State. Consultation of the Council of State is mandatory under the Dutch Constitution (art. 73). After the Council of State has vetted a bill they write a report which expresses their findings. The report, that even has a sort of a ‘verdict’ at the end, is annexed to the bill and sent to Parliament. It there acts as a preliminary report on the bill with the expert (constitutional) opinion of the authoritative Council of State. And even though not all of the reports of the Council of State are followed up upon automatically, the opinions of the Council of State carry a lot of weight. A Dutch bill has to pass both Houses of Parliament before it can become a true Act of Parliament. The House of Representatives is the politically most important one of both Houses. Constitutional issues do not always play a prominent role in the debates of this chamber and one might be right in fearing that constitutional safeguards and the constitution itself maybe compromised under the pressure of pure political considerations. Due to the typical setup of the Dutch legislative procedure there is however a safety net. The Dutch legislative procedure is sequential (not iterative like in a lot of countries) meaning that a bill passes the House of Representatives first and afterwards is debated in the Upper House or Senate. This gives the Senate the power of a veto player. They have to be very carefully in using this veto power, because they have a weaker democratic mandate than the House of Representatives. The Dutch senate is chosen, indirectly by the Councillors of the Dutch Provinces. The House of Representative is chosen directly by the people every four years. Trying to – head on – substitute their decision on a bill contrary to the will of the House of Representatives on mere political grounds, compromises the Senate. It triggers questions on their mandate, weak democratic pedigree and – on the whole – their position. The Senate therefore is reluctant to give a full-fledged second political appraisal of a bill when they debate it. The Dutch Senate always tries to assess a bill on more technical grounds than the House of Representatives does and by this placing itself in a more complementary or indeed subsidiary role. One of the ‘technical’ aspects the Senate looks into is the constitutionality

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of a bill. On the rare occasions that the Dutch Senate rejects (and effectively vetoes) a bill5 constitutional arguments or issues mostly feature among the main reasons for rejection (together with ‘legal’ problems, problems under international law or problems with implementability or feasibility). So in fact there are constitutional safeguards against Acts in Parliament, even though they are not available for an individual as such. The Houses of Parliament act as guardians of the Constitution when scrutinizing bills and ratification acts. Of course, their appraisal will be predominantly political, even though they have a preliminary constitutional report of the Council of State at their disposal. 2.2 Constitutional Review by Other Courts It would be a misunderstanding to say that the Dutch system lacks constitutional review. There is. All courts perform constitutional review, with the exception of constitutional review of Acts of Parliament and Treaties. Government decrees, Ministerial regulations, policy rules, municipal and provincial byelaws, administrative decisions, etc. all of these measures can be reviewed against the constitution. Acts of Parliament and Treaties do only make up about 3% of the combined total of Dutch and European legislation. This puts the ban on constitutional review somewhat in context albeit that this 3% does represent the most important part of the legislative stock. If a citizen wants to lodge a case against a rule or administrative decision on the basis that it runs counter to the Dutch Constitution he or she is free to do so, whether is a fiscal, civil, criminal or an administrative case. The court handling the case will look into it and rule on it – in theory. Over the last decades the courts have begun to show – too much to my mind – reverence for the Dutch legislature even beyond the national Parliament. The ban on constitutional review – from article 120 Constitution – casts a shadow that goes beyond the exact wording of the article itself.6 The Dutch Supreme Court (and the highest Administrative Courts) have begun to develop a ‘political question’-doctrine based on article 120 of the Dutch Constitution over the last decades. Article 120 Constitution is interpreted very strictly and restrictively. The Supreme Court for instance extended the ban of Article 120 and ruled in 1989 that the courts are even precluded from reviewing Acts of Parliament for compatibility with (unwritten) fundamental general

5 About a hundred bills a year are handled by Dutch Parliament on average. Between 2 and 3 percent of these are rejected by the Senate. 6 See Wim Voermans, De bestuursrechter en artikel 120 Grondwet, JB plus 2003, 152–151.

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principles of law or compatibility with the Charter of the Kingdom.7 This and other case law suggests that general fundamental principles of law may prevail over Acts of Parliament. It is, however, not always for the courts to establish this. Courts in recent years have been ever less inclined to fully review rules and legislation stemming from democratically elected councils, and courts are very reluctant to ordain democratically underpinned (lower ranking) legislators to act, even where these councils or Parliament are legally obliged to (e.g. under EU Law).8 A second cast-shadow of article 120 Constitution has found its way in the General Administrative Law Act (gala) of 1992 – an important framework act on administrative law and administrative law procedures. On the basis of article 8:3 gala direct administrative appeal against a generally binding regulation, e g, statutory instruments or byelaws, is made impossible. An administrative appeal against generally binding regulations (most of the time a product of a democratically underpinned legislature) can only lodged indirectly, by opposing an implementing decision based on such a regulation or by attacking it as part of a tort action. Direct remedies to appeal and invalidate legislative products are – at present – very difficult to come by in the Dutch system. 3

International Law and EU-Law: The Luxembourg and Strasbourg Court as Stand-Ins

How do the Dutch cope with such a restrictive review and appeal system? Doesn’t this system meet with a lot of resistance? In all fairness: hardly. There have been lukewarm attempts to alleviate the ban of article 120 Constitution but they haven’t really caught on and passed the thresholds for effective constitutional revision.9 7 HR 14 April 1989, NJ 1989 469. 8 See for instance Supreme Court 21 March 2003, AB 2004, 39 and sew (52), 2004, 232–238 annotated by Leonard Besselink (Waterpakt). 9 In 2002 a bill (28 331) was introduced by the Dutch M.P. Halsema to provide for a weak form of constitutional review. The proposed revision of article 120 of the Dutch Constitution would empower the judiciary to review Acts of Parliament for compatibility with some of the constitutional provisions concerning fundamental rights. At the time, the proposal met with the Cabinet’s consent (2001–2002, 28 355). The bill is however a very slow train coming: it is still pending, awaiting a second reading and a two-thirds majority in Parliament, to achieve the constitutional amendment threshold, after having passed both Houses of Parliament in first reading almost a decade ago. The 2/3 majority sought for in second reading – the supermajority needed to effect a constitutional revision – is however not in sight yet.

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The heart of the matter is that the Dutch do have recourse to full-fledged constitutional review, but not under their own constitution or before their own domestic court. Their review needs are catered for by the EU treaty and International Treaties (especially fundamental rights treaties like the important European Convention on Human Rights) and the stand-in Constitutional Courts of the European Court of Justice in Luxembourg and the Strasbourg Court on Human Rights. The articles 93 and 94 of the Dutch Constitution provide for direct and domestic effect of self-executing rights and obligations emanating from provisions in international treaties or decisions. So review of Dutch Parliamentary Acts, generally binding regulations and even Treaties on their conformity with international Treaties and EU law is made possible by a U-turn construction. Article 93 of the Constitution provides that provisions of Treaties and resolutions of international organizations which ‘maybe binding on all persons by virtue of their contents’ (i.e. be self-executing), ‘shall be become binding after they have been published.’ This means that self-executive international provisions have direct domestic effect. On top of this Article 94 of the Constitution provides that Dutch parliamentary Acts do not apply if they are at variance with self-executing treaty provisions. Therefore, self-executive provisions of treaties and international resolutions have priority over domestic Dutch law. Even priority over Dutch constitutional provisions. Two important treaties containing such self-executive provisions are the echr and the (UN) International Covenant on Civil and Political Rights. During the last decades, these two Conventions have come to serve as a bill of rights which allows Dutch courts to annul Acts of Parliament that run counter to provisions laid down in these conventions. Once the courts discovered this new tool, they made increasing use thereof, especially in matters of family law, social security law and criminal procedure.10 In the second place, the application of EU law can lead to review of Acts of Parliament and of other laws by the courts as well.11 The supremacy of international law is a clear indication that the Netherlands adheres to the monistic doctrine.12 There is, however, a major exception with regard to unwritten or customary international law. Whatever its binding 10 11 12

P. van Dijk, Domestic Status of Human Rights Treaties and the Attitude of the Judiciary: The Dutch Case, in: Fortschritt im Bewusstsein der Grund- und Menschenrechte. Festschrift für Felix Ermacora, Kehl am Rhein etc 1988, 631–650, and see Chapter 15 no 22. S. Prechal, Directives in EC Law, Oxford 2005. Parts of this paragraph are taken from Wim Voermans, ‘Constitutional Law’, in: Jeroen Chorus, Ewoud Hondius and Wim Voermans (eds.), Introduction to Dutch Law, 5th edition. Wolters Kluwer; Deventer 2016, 317–367.

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force and ranking for the legislature and the administration, the courts are precluded from applying such law – even if it is self-executing – with priority over statutory domestic law. There is some dispute about the consistency of this exception with the rest of the direct-effect-doctrine. As for treaties and resolutions of international organizations, their priority over domestic law is not in dispute. In order to be applied they should be obligatory, self-executing and duly published. The most important examples are the 1950 European Convention on Human Rights and the 1966 International Covenant on Civil and Political Rights (iccpr). In contrast, the Universal Declaration on Human Rights of 1948 is not considered to be binding, since the UN General Assembly has not been empowered to take binding decisions. Priority of International Written Law Acting as a Constitutional Review-Surrogate The priority of ‘written’ international law is spelled out in Article 94 Constitution.13 Statutory regulations in force within the Kingdom shall not be applicable if such application conflicts with self-executing international legal provisions. Thus Acts of Parliament, the Constitution itself and even the Kingdom’s Charter must be in conformity with international law. Both prior and subsequent legislation has to be reviewed. Most international instruments are silent as to the question of s­ elf-execution; therefore, it falls to the domestic courts to decide. The criteria to determine whether an international law provision is self-executing are its nature, contents, wording and the parties’ intention. The courts sometimes additionally examine whether in the case at hand the application of the international provision would lie ‘outside the law-making task of the judiciary’.14 It is hard for courts to decide on the self-executive nature of provisions of international treaties, first because of the opaqueness of the provisions and lack of certainty as regards the intent of the treatymakers, and secondly because of the potential dramatic effects for the effect for domestic law. There has, for instance, been some debate and uncertainty with respect to the resolutions of the UN Security Council containing (economic) sanctions. Do they have a selfexecutive character and therefor trump all national law? The Dutch legislature needed to step in to resolve the issue. Nowadays the implementation of UN sanctions is secured by general Acts like the Sanctiewet 1977 (Sanctions Act), Stb 1980 93. Acts like these create the necessary legal obligations and enable 3.1

13

See L. Erades, International Law and the Netherlands Legal Order, in: H.F. van Panhuys et al iii, 1980, 375–434. 14 See, inter alia, HR 12 October 1984, NJ 1985 230 and HR 30 January 1996, NJ 1996 288.

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the administration to interfere through a system of licensing (and ban for what is not licensed). 3.2 Priority of EU Law In Dutch legal doctrine, there has also has been discussion about the title under which the law of the EU takes (direct domestic) effect within the Dutch legal order. Some relied on Articles 93 and 94 Constitution; others on the preeminence and superiority of the EU legal order as spelled out in the case law of the European Court of Justice, considering Articles 93 and 94 as merely declaratory as far as EU law is concerned. The dispute has lost its relevance; the EU law’s superiority is firmly and generally accepted – ever since the Costa e.n.e.l. ruling of the Court of Justice15 and now under the EU Treaty itself.16 Nowadays EU law poses other problems. As is the case with several other Member States, the Netherlands is increasingly at fault in implementing EU directives in time. Criticism of the EU Commission and some judgments of the European Court of Justice condemning the Netherlands have led to some soul-searching in Parliament. During the debate, the following causes were discerned: participation of the Dutch administration in the preparatory phases of EU legislation lacks coordination; the administration is too slow in initiating the requisite domestic legislation, particularly when the subject-matter of a directive touches upon the spheres of more than one ministry; the legislative process itself is too time-consuming because of the volume of official and non-official advice that is being sought; and, finally, there are the difficulties encountered when the directives are being cast into new legislation and must be made to fit within the existing domestic legal system. EU Court of Justice and the European Court on Human Right as Stand-In Constitutional Courts The ban on constitutional review of Parliamentary Acts and Treaties (Article 120 Constitution) has had the effect that the protection offered by the fundamental rights catalogue of the Dutch Constitution is limited. So much so that litigants in criminal and administrative proceedings seem to prefer to invoke fundamental rights from international treaties like the European Convention on Human Rights (directly applicable in the Netherlands) or even the Charter of Fundamental Rights of the European Union, over invoking the rights held 3.3

15 16

CJ EC Flaminio Costa v. e.n.e.l, C 6/64, Jur. 1964, 1203 ff. HR 2 November 2004, NJ 2005 80.

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in the domestic catalogue.17 This in turn results in little or no elaboration of the Dutch fundamental rights in the case law of Dutch courts. In turn it has caused the Luxembourg EU court (acting under the EU treaties and its charter on Fundamental rights) and the echr in Strasbourg (acting under the European Convention on Human Rights) to become quite effective stand-in Constitutional Courts in the Netherlands. The combined effects of the priority of international human rights protection (over the national catalogue) and the ban on constitutional review under the Dutch Constitution do not stop here. There are other side effects as well. Fundamental rights protect freedom or the enjoyment of freedom in relation to government. The oldest generation of fundamental rights typically try to ward off government action and undue interference in the freedom of citizens. Hence, most of the time, fundamental rights as such do or did not play a role in relations between citizens, i e private parties, under Private Law. It is, for instance, still impossible to invoke a right under the European Convention on Human Rights against a fellow citizen. A current trend in a number of national jurisdictions, as in the Dutch one, is the constitutionalization of private law, which entails the development of room for and effect of fundamental rights in private party relations under Private Law.18 Influence or effect of fundamental rights in Private Law is a relatively new phenomenon in legal history, a development spurred by the flux of (treaty-based) human rights and basic rights over the last decades. Still, fundamental rights – to a certain extent – remain a strange phenomenon in Private Law. Some have argued that fundamental rights are exclusively written for the relations between a state (or its government) and its citizens. Others have pointed out that in fact fundamental rights are and always have been engrained in Private Law. In its Roman Law origins, Private law already encompassed the protection of certain aspects of human dignity.19 Indeed citizen’s rights – many of them closely resembling modern day fundamental rights – were in Roman times protected by Private Law, and only claimable in civil law proceedings.20 Whatever the position one cares to 17 18 19 20

See J.H. Gerards, W.J.M. Voermans, H.M.Th.D. ten Napel & M.L. van Emmerik, Juridische betekenis en reikwijdte van het begrip ‘rechtsstaat’ in de jurisprudentie en legisprudentie van de Raad van State, Den Haag 2011. See J.M. Smits, Private law and fundamental rights: a Sceptical View, in: T. Barkhuysen and S. Lindenbergh (ed), Constitutionalisation of Private Law, Leiden 2006, 9–22. S. Banakas, The Constutionalization of Private Law in the UK: Is there an Emperor inside the New Clothes, in: Barkhuysen and Lindenbergh, 83. As is very vividly depicted in T. Holland’s novel Rubicon; the Triumph and Tragedy of the Roman Republic, London 2004. Lawyers like Cicero were especially well trained and skilled in extracting citizen’s dignities from private law rights and demonstrating that in

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take, this form of constitutionalization is already visible in Dutch case law as well as in case law in other European countries,21 and the Dutch government, for instance, already alluded to these effects of fundamental rights in ‘horizontal’ relations at the occasion of the constitutional reform of 1983. Still in other ways, fundamental rights permeate into Private Law, for instance, when Private Law (e g liability law) is used as instrument to enforce fundamental rights.22 4

To Conclude

The Dutch system of constitutional review is a strange one indeed and it does not chime well with the systems of its European neighbours. With its constitutional ban on constitutional review and the absence of a Constitutional Court, it is the odd one out in the European family. Still the Dutch seem content with their system. It stems from a long tradition in which the primacy of Parliament was favoured over judicial supremacy under the constitution. A balance that seems to be working for a country dominated by a lot of (rivalling) minorities. There is however more than meets the eye. At closer inspection the Dutch do enjoy full constitutional review for constitutional courts albeit not under their own domestic constitution or constitutional court. Due to their openness for international law and the domestic and direct effect of self-executing treaty provisions the Dutch enjoy constitutional (fundamental rights) protection that is on par with that of its European neighbours. And the Dutch are able to invoke these rights, not necessarily before a national court, when it comes down to issues with Acts of Parliament, but before international ones. This is true to Dutch nature: a land of quarrelsome minorities but always open to the open seas and outer world.

21 22

fact these dignities were the foundations of these private rights. This constituted a sort of a ‘Lüth-doctrine’- avant-la-lettre (see G. Brüggemeier, Constitutionalization of Private Law – the German Perspective, in: Barkhuysen and Lindenbergh, 69–72. Romans were very susceptible to these notions of citizen’s or human dignity as the core of their law and flocked to public show-trials where these issues were at stake in civil law proceedings. They revelled in the public display of legal wit of great lawyer-orators. Much has changed since. See C. Mak, Fundamental Rights in European Contract Law. A comparison of the impact of fundamental rights on contractual relationships in Germany, the Netherlands, Italy and England, thesis University of Amsterdam 2007, Alphen aan den Rijn 2008. See J.M. Emaus, Enforcing echr rights by means of liability law; Inserting the concept of a breach of a fundamental right into Dutch civil law, thesis Utrecht University, The Hague 2003.

The Constitutional Court of Belgium and the Use of the Comparative Argument. From the Dialogue with the “Sister Courts” to the Dialogue with the European Courts Paolo Carrozza 1

A Short Introduction: Belgium and Its Uncertain National Unity (A State on the Verge of a Nervous Breakdown…)

A few years ago, several European newspapers reported, not without a certain irony, that the Metro Authority of Brussels, a bilingual region, had given up on broadcasting French songs in its stations, unable to find a similar “quota” of songs in Flemish. As an equal broadcasting of songs is made mandatory by the linguistic regime of Brussels’ region, this gives an idea of the institutional and political difficulties that Belgium is experiencing. In many respects the Belgian issue provides a leading example of the crisis of the state-national unity which affects a large part of the European “national state”: some of them, such as Belgium, Italy, and Germany, reached the statepolitical unity only in the 19th century; others, such as Spain, Great Britain, and France itself, where territorial unity had already been reached during the late Middle Ages, with great national monarchies and the so-called absolute government, where the liberal revolutions only partially changed the territorial boundaries and, for what it is worth, the national identities. Obviously, this crisis comes in forms and traits that combine on the one hand, local, specific factors able to establish political and social cleavages as specific and not generalizable, as they are closely linked to history, periods and ways of unification processes of their respective state (for example, for Belgium the linguistic issue, for Germany the reunification, for Italy, the so-called Southern question); and on the other hand, far more general and shared factors, linked to the globalization process and, in the case of Europe, to the process of ­European integration. From this point of view, Belgium has some typical features: the Belgian unitary state was born from the liberal revolution of 1830, after the separation of some provinces from the Kingdom of the Netherlands set up after the Restoration; a revolution favoured by England, which aimed to prevent the annexation by France of the then rich Wallonia, and which led to the establishment of a

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_014

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new kingdom with a monarch chosen by the parliament from a member of the Saxony-Coburg dynasty, with uncertain international future. The Constitution of 1831 became, as a matter of fact and fairly rapidly, a sort of paradigm of the institutional framework of moderate liberalism, so as to be a source of inspiration for a large number of 19th century constitutional texts, among which, as is well known, the Italian Statuto Albertino of 1849. The glue of the new born kingdom, which was recognised by the major powers only in 1839, was the French language and the Catholic religion (even if the new kingdom was decidedly secular: see arts. 14, 15 and 16 of the 1831 Constitution). However, none of them were proper to the entire population: they were instead proper to the rich middle-class and the agricultural aristocracy which were, according to a census logic typical of moderate post-restoration revolutions, the protagonists of the national Belgian revolution. The Belgian population were quite different from the elites who wanted to establish the new kingdom, calling it a national state (see arts. 25 and 125 of the Constitution of 1831). The gradual democratization process of the country has progressively unmasked the artificiality of the Belgian national unity, or at least it has disclosed the artificial original collective identity of the so-called Belgian nation. Between 1898 (when the Flemish language became the official language beside French, and article 23 of the Constitution remained very ambiguous on this point, merely acknowledging the principle on freedom of language use) and the 1960s, the situation was somehow overturned: the already rich Frenchspeaking Wallonia, with its mines and heavy industry, faced a progressive economic decline, while Flanders – a natural access from the sea to the heart of Central Europe – progressively took the economic lead and, thanks to linguistic censuses, made it possible to verify that the majority of the Belgian population (about 58%) was Flemish and not Francophone. Since 1960, there has been a countless series of constitutional reforms that substantially changed the original constitutional arrangement of 1831. First, breaking the scheme of the unitary and centralised state with a form of intense regionalization, especially with the 1980 reform: three autonomous regions have been set up: two monolinguals, Flanders and Wallonia, as well as the small bilingual Brussels capital region, charged with administration and economic development; and two main linguistic communities with their respective Representative Councils, Flemish and French (in addition to the small German-speaking community. However, there was an unusual asymmetry, so that in Flanders a single representative body of region and linguistic community was set up, while in Wallonia the region and the linguistic community remained separate institutional units, due to the French-speaking majority of Brussels

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and the inclusion of the German linguistic community, of about 70,000 inhabitants, in the Wallonia region. The motivating principles that lay behind the constitutional reform are clearly the ethnical-linguistic conflicts between Walloons and Flemish: over time, the underlying “ethnical” conflict was charged with linguistic issues as well as economical and social factors, essentially resulting from the economic decline of Wallonia, the growth of the economic weight of Flanders, and the language issue of the territory of Brussels and state administrations. The “regional” framework gave rise to a long process towards a formally “federal” state, as set forth in the constitutional reform of 1993-94. Such a process is not completed yet, despite (and indeed because of) the only partial success of the constitutional reforms of the new century (in 2003 and 2007), which are at the origin of the current political crisis.1 Belgium has thus become the symbol of federalism by dissolution or dissociation,2 intended as an autonomous constitutional phenomenon and distinct from events that are, for example, typical of the breakup of the former ussr or former Yugoslavia, which were, at least formally, composed or federal states. A unitary state that gradually turns into a federal state, as well as not being a frequent phenomenon, certainly provides interesting assessment criteria to evaluate the significance and importance given by the principle of political state unity in a contemporary globalized world. And the next step, more and more frequently inserted in the political agen­ da of the Belgian party system, even with opposing and solutions that are difficult to reconcile, is the separation of Flanders and Wallonia: the end of political unity, in short, currently slowed down only by a difficult establishment of shared modes. The crisis of 2010 was (temporarily) ended by the sixth constitutional reform, approved by the Parliament in 2013 and set up under the political Agreement 1 The bibliography about Belgian constitutional reform and the Cour Constitutionnelle is very large: for an overview see Yves Lejeune, Droit constitutionnel belge (Bruxelles: Larcier, 2014); Francis Delpérée, La Constitution: de 1830 à nos jours, et même au-delà (Bruxelles: Racine, 2006); Francis Delpérée, Le droit constitutionnel de la Belgique (Bruxelles: Bruylant, 2000); Marc Verdussen, Justice constitutionnelle (Bruxelles: Larcier, 2012); Anne Rasson-Roland, David Renders, Marc Verdussen (eds.), La Cour d’Arbitrage vingt ans après. Analyse des dernières réfomes (Bruxelles: Bruylant, 2004; Francis Delpérée, Anne Rasson-Roland, Marc Verdussen (eds.), Regards croisés sur la Cour d’Arbitrage: dix ans de jurisprudence constitutionnelle (Bruxelles: Bruylants, 1995); Paolo Carrozza, La Cour d’Arbitrage belga come corte costituzionale (Padua: Cedam, 1985). 2 See Robert Louvin, Legami federativi e declino della sovranità, p. 10 ff. (Torino: Giappichelli, 2001). The countries dealed with by Louvin are: Belgium, Canada (referring to the Quebec), France (referring to New Caledonia) and Israel (referring to Palestine).

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concluded by the eight parties of the coalition government led by Elio di Rupo on 11 October 2011. The reform, as already mentioned, was born at the conclusion of a profound political crisis (during which Belgium remained without Government for more than one year and a half) and seeks to respond to the demands of greater autonomy coming from the Flemish region. The three main reforming changes concerned: the transfer of a wide block of capabilities from federal level to federated entities; the reform of the Senate, now directly elected; and a major reform of the Finance Law – probably the key component of the Reform – which attempts to relocate the control of public policies, especially welfare, towards Region and Communities. It has been observed that this Constitutional reform, which is very ambitious and often defined as the most important of the six realized from the 1980s to the present day, as a matter of fact does not alter neither the nature nor the structure of Belgian Federalism. On the contrary it risks further increasing the centrifugal trends of its federal entities. In short, Belgium is not a prototype of a “post-constitutional” Europe with a view to overcome the State dimension of power through federalism,3 but rather a country in a perennial identity crisis, where a process of weakening of the state’s unity and no apparently suitable end of the process coming forward is underway without possibility of return by many regional “secessionisms”.4 It is a serious and a political problem, which a constitutional judge could hardly settle: yet in this complex framework, a constitutional court was born and gradually consolidated, surely contributing in a small measure to maintain the juridical unity of the Belgian state. 2

The Cour d’Arbitrage (since 2007 Cour Constitutionnelle) and the Never-Ending Constitutional Reform

Twenty-five years after the beginning of the complex constitutional review process that turned the Belgian state into a “federal state”, implemented ever since 1960, it is not yet certain, as we have seen, that these transformations undertook a final arrangement. However, within the framework of the new 3 See Lucia G. Sciannella, Il Federalizing Process belga e la sesta ondata di riforme istituzionali (Diritto Pubblico Comparato ed Europeo, 2014, iv, p. 1449 ff.). 4 On secession see Paolo Carrozza, Secessionismi, integrazione Europea, sovranità: nuovi e vecchi problemi del costituzionalismo (Diritto Pubblico Comparato ed Europeo, 2014, iv, p. xix ff.).

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i­nstitutions introduced by the reform in the Belgian constitution, the past years sufficiently provide insights into, and perhaps even a first “balance” of, the activity of the Cour d’Arbitrage, a “constitutional judge” which was introduced by the constitutional reform of 1980 (art. 107b ter, now article 142 of the Constitution5) in order to settle conflicts between state, regions and linguistic communities, and hence a form of highly specialized constitutional justice limited to “federal conflicts”. As a matter of fact, apart from the establishment of this limited form of judicial review of legislation or “constitutional justice”, the essence of the regionalization and transformation process in the federal Belgium lies in the establishment of three “Linguistic Communities” (art. 2 Const.) and of three “Regions” (art. 3 Const.),6 where legislative and administrative competence areas differ from the central state on the basis of material enumeration criteria and where the regional and communitarian representative bodies enact “decrees” with force of law.7 However, as we have seen, the territorial borders of communities and regions only partially coincide:8 on this singular institutional “asymmetry” lies the most peculiar and known aspect of the Belgian state. 5 The double numeration of constitutional provisions is due to the fact that in 1994 a “coordinated text” of the Constitution, usually considered the “new” Belgian Constitution, was enacted: but it is the “old” text of 1831 amended with the reforms enacted until 1994, so we may refer to this text even if the legal text is dated 1831 (so a “table of correspondences” is needed in order to understand the proper reference to each article: see Francis Delpérée, David Renders (cur.), Code Constitutionnel, Bruxelles: Bruylant, 1998 and 2005). 6 The Constitution (art. 4) only foresees the immutability of the four “linguistic regions” (Flanders, Wallonia, bilingual region of Brussels, German language region): “Regions” and “Linguistic Communities” are therefore the exponential bodies of the four “linguistic regions”, making up the Belgian “Federal State” (as defined in art. 1 Const.). 7 The (legislative, administrative and fiscal) autonomy of regions and linguistic communities can be defined, in classifying general terms, as a competence of “exclusive” type (as defined by the same Cour Constitutionnelle: compare decision 20.12.1985, no. 7). In order to avoid constant constitutional reviews, which in Belgium imply the dissolution of Parliament that decide on the revision, the enumeration of competence of regions and linguistic communities are defined in broad outlines in the Constitution and are precised through a “special law” (art. 4 Const.). 8 The three linguistic communities are the French-speaking community, the Flemish (roughly equivalent to the population) and the small German-speaking, at the borders with Germany. The three regions, which borders only partially coincide with the areas of propagation of the language communities, are Flanders and Wallonia (monolingual, respectively Flemish and French) and the region of Brussels (bilingual, French-speakers never ascertained but they are the majority…).

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The comparative interest for the Belgian Cour Constitutionnelle, which is amongst the “youngest” constitutional courts of Western Europe, arises from different reasons. The first is a kind of general recurring interest in comparative public law studies: since it is undeniable that in Europe (though not exclusively) the judicial review of legislation is a high “circulation” model where past experience has always been strongly taken into due consideration,9 when a new constitutional court turns up, albeit limited (as is the case of the original Belgian Cour d’Arbitrage in 1983), it would also be worthwhile ascertaining over time if and how the experience related to other courts influenced the choices of a new body, and, specifically, of the constitutional reviewers of 1980, that introduced the new judge, and the ordinary legislator, who in 1983 ruled the first constitution implementation. A second opportunity of comparative reflection is the objective evidence of an evolutionary history of the Cour Constitutionnelle. As a matter of fact, it was certainly born as a special “constitutional” jurisdiction, limited to the socalled conflicts of jurisdiction or competence between state and decentralised bodies. However, especially due to subsequent legislator’s setbacks, or, partially, because of a sort of “outgoing” attitude of the same Court with respect to its role, it soon supplemented its role with rights and freedom, thereby developing the latter to becoming primary, at least from a quantitative viewpoint. Therefore we can say that the Cour d’Arbitrage experienced, following the paradigm common to the Austrian Constitutional Court and to the U.S. Supreme Court, a “historical” evolution of judicial review, from instrument for the solution of federal conflicts to instrument aimed to the safeguarding of citizen’s rights guaranteed by the constitution. The exceptional circumstance is that one transformation which required several decades in the two prototype systems, occurred in Belgium in just a few years time.

9 On European historical experiences of judicial review of legislation, see Pedro Cruz Villalón, La formación del sistema Europeo de control de constitucionalidad (1918-1939) (Madrid: Centro de Estudios Constitucionales, 1987). On the influence of the American model, scholars are not always concordant: for Klaus Von Beyme, America as a Model. The Impact of American Democracy in the World (New York: Palgrave Macmillan, 1987), the most imitated (and more useful…) aspect of American constitutionalism would be constituted by the judicial review of legislation. However, twenty years before Carl Friedrich, The Impact of American Constitutionalism abroad (Boston: Boston University Press, 1967), argued that the most imitated factor (and more useful) of the American constitutional experience was federalism.

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In this perspective, the events of the Cour Constitutionnelle can be schematically summed up by dividing its evolution into four phases: the first, herein referred to as “diffidence”, which coincides with the period running from the establishment and its entry into service (1983-1985) to its first jurisdiction reform (1988); a second phase, herein referred to as “consolidation” of its jurisdiction, which runs from the reform law of 1988 to the new reform of 2003; the third stage, herein referred to as “conscious faith”, which goes from 2003 to 2007, when it changed its name into “Constitutional Court”; and the current stage, from 2007 until the present days, which is the stage of her “full maturity” and the dialogue with European Courts. Although there are those in the Belgian doctrine who doubt the completeness of the constitutional jurisdiction of the Cour Constitutionnelle, there is a third and more delicate profile of comparative interest regarding the Cour Constitutionnelle incidents, which, as suggested by Anne Rasson-Roland,10 consists in the assessment of the Court jurisprudence’s contribution to the “constitutionalization” of the various branches of Belgian law. Such evaluation has much more interesting results insofar as it refers to a French-speaking system, where, as pointed out by Escarras,11 the cultural heritage of the idea of the supremacy of parliamentary law (rather than the constitutional text),12 typical of the most ancient European democracies, France and United Kingdom, was particularly strong. There is another very interesting profile of interest, aimed at assessing the use of comparative considerations in the decisions of the Cour Constitutionnelle. The use of comparative law or comparative arguments or precedents and cases from foreign courts by the judges, especially the constitutional courts, is a

10

11

12

See Anne Rasson-Roland, L’apport de la Cour d’Arbitrage à la communicabilité entre les branches du droit, in Maryse Baudrez, Thierry Di Manno (cur.), Liber Amicorum Jean-Claude Escarras. La communicabilité entre les systémes juridiques, p. 363 ff. (Bruxelles:Bruylant, 2005). See Jean-Claude Escarras, Sur deux études italiennes: de la communicabilité entre systémes italien et français de justice constitutionnelle, in Annuaire International de Justice Constitutionnelle, p. 15 ff. (Paris – Aix en Provence: Economica – Presses Universitaires d’Aix-Marseille, 1986). This cultural tradition of French constitutionalism, was called, not surprisingly, “statualist positivism”: see Norberto Bobbio, Il positivismo giuridico, p. 151 ff. (Torino: Cooperativa Libraria Universitaria Torinese, 1961); this tradition had its origin in the French Revolution: see Raymond Carrè de Malberg, La loi, expression de la volonté générale: étude sur le concept de la loi dans la constitution de 1875 (Paris: Sirey, 1931).

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perspective which has captured the attention of scholars only recently.13 Paolo Ridola rightly points out that during the 1960s German controversy on the use of comparisons in public law, Hans Dölle observed that the approach of constitutional courts corresponded to the typical approach of “ordinary” judges, so that, while the legislator made wide use of comparisons between systems with greater frequency, the cultural tradition connected to the subordination principle of the judge to the state law (linked to the “jurisdictional” nature typical of the acting of the constitutional court) dissuaded courts and tribunals from the use of comparative arguments and precedents; almost as if comparative arguments were somehow accepted in the number of “political” or opportunity arguments, thereby weakening, instead of strengthening, the reasons for decisions.14 Recent cases in the U.S. Supreme Court and other European courts, seem to point to the emergence of an interesting trend that subverts this tradition.15 Yet, the low propensity to use comparative arguments and precedents in the jurisprudence of the Belgian Cour d’Arbitrage, which does not differ very much from the other and much older constitutional courts, did not prevent the Belgian court from establishing, especially with the European Court of Human Rights, a dialogue which bodes well for the future especially with the European Court of Human Rights. There is cause to believe – writer included16 – that the engaging of an intense dialogue among the “internal” courts (and therefore among the constitutional court and the other courts at the top of other “jurisdictions”, criminal, civil, administrative etc.), and the “internal” courts with the European Courts is an indispensable prerequisite, so that on the one hand, the domestic 13

14 15 16

See Mads Andenas, Duncan Fairgrieve (eds.), Courts and comparative law (Oxford: Oxford University Press, 2015); Tania Groppi, Marie Claire Ponthoreau (eds.), The Use of Foreign Precedents by Constitutional Judges (Oxford: Hart, 2013); Basil Markesinis, Jorg Fedtke, Judicial Recourse to Foreign Law: a new Source of inspiration? (Oxford: Routledge, 2006); Angioletta Sperti, Il dialogo tra le corti costituzionali ed il ricorso alla comparazione giuridica nella esperienza più recente (Rivista di Diritto Costituzionale, 2006, p. 125 ff.); Paolo Ridola, La giurisprudenza costituzionale e la comparazione (2006), www .associazionedeicostituzionalisti.it; Vincenzo Zeno Zencovich, Il contributo storicocomparatistico nella giurisprudenza della Corte costituzionale italiana: una ricerca sul nulla? (Diritto Pubblico Comparato e Europeo, 2005, iv p. 1993 ff.); Lucio Pegoraro, Paolo Damiani, Il diritto comparato nella giurisprudenza di alcune Corti costituzionali (Diritto Pubblico Comparato e Europeo, 1999, i, p. 411 ff.). See Paolo Ridola, La giurisprudenza costituzionale e la comparazione, cit. For the sake of brevity, refer to the reading of the essays listed at footnote 13. See Paolo Carrozza, Tradizioni costituzionali comuni, margine di apprezzamento e rapporti tra Corte di Giustizia c.e. e Corte Europea dei Diritti dell’Uomo. Quale Europa dei diritti?, p. 567 ff., in Paolo Falzea, Antonino Spadaro, Luigi Ventura (cur.), La Corte costituzionale e le Corti d’Europa (Torino: Giappichelli, 2003).

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constitutional jurisdiction, in the medium-long term, will not be overwhelmed by the European Court of Justice and its expansive force in the field of fundamental rights; and, on the other hand, to ensure that the enucleating of the so-called common constitutional traditions undertakes, for the e.c.j., more precise reference parameters and, therefore, becomes less arbitrary than that we know it to be today. 3

The Birth of a New Constitutional Court: The Cour d’Arbitrage between the Needs of the Constitutional Reform and the Imitation of Foreign Models

At the genesis of the Cour d’Arbitrage, it is quite easy to observe that in configuring the essential traits of the new court, the weight of the complex internal political events has been by far more important than cultural and doctrinal stimuli, originating from the knowledge of the main foreign experiences of the judicial review of legislation.17 In Belgium the debate on the introduction of the judicial review of legislation is quite old, and involves, among other things, one of the oldest European legislation. Several tens of judgments issued by the Cour de Cassation and several Court of Appeal, between 1849 and the 1960s, and some decisions of the Council of State, between the 1950s and the 1960s, denied the possibility – ­except for very exceptional cases – that ordinary courts may exercise control of the constitutionality of law.18 Notwithstanding the suggestions originating from the 1920s and 1930s and the German, Austrian and Spanish experiences of constitutional courts, discussions on the opportunity of introducing a form of control of the constitutionality of legislation were resumed at the end of the second world war, and led to the introduction of the Section de legislation at the Council of State in 1946, entitled to give preventive advice, also on constitutionality grounds, for all legislative texts subject to its examination (compare arts. 2–6 of the consolidated text of the laws on the Council of State), so that the prevailing doctrine was satisfied with the solution adopted.19 The opportunity of introducing a real constitutional judge, as a special and centralised judge devoted to judicial review of the legislation, remained 17 18 19

Francis Delpérée, Anne Rasson-Roland, En route pour la Cour d’Arbitrage, p. 226 ff. (Administration Publique, 1982, 4). See Paul-Emile Trousse, Le contrôle jurisdictionnel des lois. État de la question. La jurisprudence, in Actualité du contrôle jurisdictionnel des lois. Sixièmes Journées juridiques Jean Dabin, p. 299 ff. (Bruxelles: Larcier, 1973). See Pierre Wigny, Cour de droit constitutionnel, p. 225 ff. (Bruxelles: Bruylant, 1973).

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secondary,20 and since the 1970s it was believed that the transformation towards a regional state necessarily required a specific settlement of conflicts of jurisdiction or competence. However, with the constitutional review of 1970, the introduction of a special Section des conflits at the Council of State was contemplated, where decisions could be reformed by the Chambers within 90 days from their adoption: a delicate, doctrinal controversy was born, underlining the usefulness of this control;21 and a huge question was posed as to the possibility of passing the control of the Court of Cassation, in connection with the fact that such unusual form of referé was in contrast with art. 6 of the European Convention of Human Rights, while the Belgian Court of Cassation since 1971 did not uphold the laws in contrast with the Convention.22 Besides the Section de Conflits, some procedures of purely political nature were introduced: first, one called “alarm bell”, consisting in the possibility for ¾ of each Linguistic Group of each Chamber to claim the Council of Ministers where it considers that a project or draft law constitutes a serious injury to the relations between Lingustic communities; and second, the settlement of the so-called conflicts of interest, as a result of the possibility that ¾ for each Chamber to raise, before a special political body with equal linguistic representation, called Concertation Committee, proposals or draft laws of an Assembly, or proposals of Governments.23 Meanwhile, another incident gave rise to the debate about the utility of constitutional justice: with a judgment of the 3rd of May 1974, the Cassation Court, with the concurring conclusions of its General Prosecutor, Ganshof van der Meersch, claimed that the Court could review the consistence of a government – delegated decree and its delegated law with arts. 67 and 78 of the Constitution

20

21 22

23

Among the authors supporting the introduction of a “real” constitutional court, see Paul de Visscher, Reflexions sur le contrôle de la constitutionnalitè des lois (Annales de droit, 1969, p. 349 ff.) and Paul de Visscher, Francis Delpérée, Pour une juridiction constitutionnelle en Belgique, Actualité du contrôle jurisdictionnel des lois. Sixièmes Journées juridiques Jean Dabin, cit., p. 241 ff. See André Vanwelkenhuyzen, Les conflits entre loi et décret et entre décrets (Journal des Tribunaux, 1980, p. 609 ff.); Francis Delpérée, Droit constitutionnel, tome i, p. 114 (Bruxelles: Bruylant, 1980). The Belgian Constitution of 1831, before the 1994 reform, had an insufficient Bill of rights: with a decision of May, 27th 1971, the Cour de Cassation decided to integrate the constitutional text with the European Convention of Human Rights, annulling, with inter partes effects, laws not consistent with the principles of the Convention. See Mario Ganino, Problemi attuali del governo locale in Belgio, in Paolo Biscaretti di Ruffia (cur.), Problemi attuali del governo locale in alcuni stati occidentali, p. 145 ff. (Milano: Giuffrè, 1977).

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(which are very restrictive with regard to the exercise of the legislative power of the government24). The proposed Section de Conflits never started to function, but a number of factors, including the constitutional reform proposal failing in 1970, the attempts for widening the regulatory powers of regions and linguistic communities, the fears of a kind of constitutional control “internationalization” that the Cour de Cassation claimed to be based primarily on the European Convention of 1950, led the political forces to go down another road and to find an agreement on a form of settlement of conflicts entrusted to a special judge, a form of constitutional justice but with powers limited to federal conflicts of laws. In the so-called Egmont agreements (24.5.1977) and the following Stuyvemberg agreements (28.2.1978), preparatory to the Constitutional Review of 1980, the political parties agreed that the new body should solve only conflicts between state and regional laws, and that access to judicial review of the Court would be twofold: (a) on the initiative of the governments or a certain number of assemblies members (direct claim or recour en annulation) and (b) with the preliminary rulings raised in any ordinary judgment (question préjudicielle). It was then established that the composition of the new special judge should have equal distribution of linguistic groups and that the formation of the court would be of a professional and political nature, providing for the configuration of judgment as a trial, allowing the governments implied to intervene in the proceedings before the new organ. Arguably, the new judge has a strong “Kelsenian” feature, as a form of constitutional justice aimed at “federal” needs.25 The hasty record of the genesis of the Cour d’Arbitrage also points out that, in the mind of the legislator of 1983, the peculiar “internal” needs clearly prevailed over suggestions from foreign experiences of judicial review of legislation or “constitutional justice”. 4

The Institution of the Cour d’Arbitrage and the Law of 1983: The “distrust” Phase

The political agreements of 1977 and 1979 were translated into a meagre constitutional text, which says little or nothing of the new judge, evidently 24 25

See this judgment in Journal des Tribunaux, 1974, p. 564 ff., with the concurring conclusions of the General Prosecutor and the (positive) comment of Andrè Vanwelkenhuyzen. See Paolo Carrozza, Kelsen and Contemporary Constitutionalism: the Continued Presence of Kelsenian Themes, in Peter Langford, Ian Bryan, John McGarry (eds.), Kelsenian Legal Science and the Nature of Law, p. 75 ff. (Berlin: Springer, 2017).

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guaranteed by the political understandings hard won therein: art. 107-ter Const., introduced with the constitutional revision of 19.7.1980, simply stated that “1. The law establishes a procedure to prevent conflicts between laws, decrees and standards provided for in art. 26-bis ….26 2. With jurisdiction throughout Belgium, a Cour d’Arbitrage is established, whose composition, competence and functioning are governed by the law. The Court shall rule on potential conflicts referred to in the first paragraph”. The text of the so-called Constitution of 1994 (art. 142) regarding the Cour d’Arbitrage will be much wider as a result of the 1988 reform, but in 1980 the agreements reached at the political level deprived the legislator (then ordinary) of his freedom to implement this constitutional provision. The distrust towards the new body and, more generally, the intense debate of the 1970s and the need not to affect the positions acquired by the Council of State and the Supreme Court brought the legislator of 1983 (in processing the 113 articles of the law of 28.6.1983 aimed to implement art. 107b-ter or 142) not to deviate from the mentioned political covenants, with some inconsistencies that should be attributed solely to the “cultural mistrust” with which the Cour d’Arbitrage topic was approached, and that might have prevented some few concessions to the foreign (continental European) constitutional justice experience. Thus, starting with the regulation of the access to the Court, the 1983 law provides, first of all, a recour en annulation that can be activated by each government (of the state or region or linguistic community), and by each president of the various assemblies at the request of 2/3 of their respective members. It is thus possible to challenge laws of parliament, delegated legislation of government and decrees (with force of law) of communities and regions. The strong limitation to the role of the Court is the result of the definition of the control parameters (and, indirectly, the object of the control): in the original text of the court’s law of 1983 claims could only deduct any violation “… of the rules established by the constitution or by virtue of it to determine their respective competences of state, communities and regions27”. 26

27

Where “laws” means the parliamentary statutes and the delegated legislation from the parliament to government; “decrees” means the legislation enacted by the Councils of the Linguistic Communities and the legislation enacted by Regions (“laws enacted on the basis of art. 26 bis”). Note that each Linguistic community may acquire the competences of the correspondent region, but in fact this was possible only for Flanders because of the relative geographic coherence between the Flemish Linguistic Community and the Flemish Region. The parameters of this judicial review are the constitutional provisions on the separation of powers among state, communities and regions and (thanks to the so called doctrine of legislative interposition) also the provisions of the Loi special of August, 8th 1980

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While the Court has always interpreted that provision in a particularly wide-ranging manner,28 this limitation has proved particularly strong and aims to finalize the constitutional control of “federal” issues from a “kelsenian” viewpoint, and, at the same time, in the uncertainty about the judge to entrust a more general constitutionality control of the laws among the Council of State, the Cour de Cassation and the same Cour d’Arbitrage, to tacitly exclude that the latter may perform this function. A choice that, from a comparative viewpoint, definitely sets itself in opposition to the “high profile” that the new Court framework was at the same time outlining on other aspects. Meanwhile, alongside with the recour en annulation, an additional way of accessing the Court was provided, the so-called question préjudicielle, similar to the preliminary ruling of the European Court of justice: judges of any order and degree29 may submit to the Court, at the litigants’ request or ex officio, issues where it is believed that a law or decree (which is to be applied in the pending case or controversy) is not consistent with the constitutional provisions referred to vertical separation of powers, and in all cases where “community” and “regional” decrees are in conflict with each other or with state laws. The rules of procedure bear some peculiar features compared to the main and more consolidated European models of preliminary judgment: first of all, a judge must not – at least theoretically – motivate the question raised to the Court (and this does not facilitate the “dialogue” between Court and other judges).30 Furthermore, the definition of relevance is rather baroque, where it

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30

c­ oncerning regional competences or powers, which has to be approved (art. 107-quater) by the majority of the linguistic groups of each chamber and, at the same time, the 2/3 of the members of each chamber (a double majority not easy to reach …). Since the first decisions (see Cour d’Arbitrage, 26.6.1986, no. 24) the Court included in the parameters of its review also every other constitutional provisions from which any power is entrusted to a public authority. After the constitutional reform of 1988-89 the Court also included in these parameters the “procedural” provisions (i.e. the provisions that impose advices, agreements, covenants and the duty of mutual cooperation): see Francis Delpérée, Anne Rasson-Roland, La Cour d’Arbitrage, cit., p. 80. See Nicola Vizioli, La giustizia costituzionale in Belgio, in Jörg Luther, Roberto Romboli, Rolando Tarchi (cur.), Esperienze di giustizia costituzionale, ii vol., p. 411 ff. (Torino: Giappichelli 2000), who observed that since 1996 (decision 13.11.1996, no. 65) the Court interpreted the notion of a quo judge very close to that proper of Italian, German and Spanish Constitutional courts, i.e. as a real judge, entrusted with the typical powers of the “judicial power” (independence from government, principles of fair trial, due process of law, duty of motivation and so on). The judge should be limited to indicate the norms suspected to be inconsistent with the Constitution and the constitutional provisions that he considers violated by the law or decree; but the Court may always reform the question raised by the a quo judge (art. 27).

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is ­provided (art. 15, para. 2, of Law on Court of 1983) that the judge should address the matter to the Court only when the latter is “required” to decide on any pending litigation,31 though establishing that he will not be obliged to address the question, in matters where, incidentally or directly, the Court has already ruled (thus confusing the effectiveness of the res judicata with the effectiveness of binding precedent). All the more curious is the solution adopted to address the problem of the effects of judgments of the Court: the judgments deciding the recours en annulation entails the annulment for the contested measure, in whole or in part as established the Court, which may also keep in force the law declared unconstitutional for the time considered necessary.32 Then, to enhance the efficacy of the Court decisions it is established (with questionable utility) that judgments rendered en annulation become “res judicata” (art. 9, para. 1, of law dated 1989) and that, even if the question has been rejected, the sentences are mandatory for the judges who will face with the issue raised by the rejected claim (which further cools relationships between the court and the judges, assumed that judges cannot raise preliminary ruling related to questions for annulment already negatively decided by the Court). Whereas, in case of question préjudicielle, the sentences have no direct effects on the annulment of the act, but imply – perhaps with a misconceived sense of separation of powers – compulsory effects only for the judge

31

32

The question préjudicielle, as we saw, is based on the notion of preliminary ruling very similar to other European constitutional courts: similar to Austrian Präjudizialität (artt. 57 e 62 of Austrian law on constitutional court), to German Entscheidungserheblichkeit (see art. 80, para. 2, of the German law on constitutional court, that uses the word abhängig, that means depending on), to Spanish dependencia (see art. 35, para. 1, of the Spanish organic law on Tribunal Constitucional, to the so called “case or controversy requirement” proper of the U.S. judicial review of legislation entrusted to the Supreme Court, or to Italian rilevanza as ruled by art. 23 of the law March, 11th 1953, no. 67 on the Italian Corte costituzionale). The text of 1989 (Loi speciale du 6 Janvier 1989 sur la Cour d’Arbitrage) further tightens the notion of préjudicialité, even requiring the condition of “indispensability” for the decision of the case pending (see current art. 26, para. 2, no. 2 of law on Court); the mere doubt (of the unconstitutionality) is not sufficient: the inconsistence of the law or decree with the constitution must be “manifest”. This is a sort of American “prospective overruling”, like that of German and Austrian Courts (now also of the Italian and the Spanish Courts): the effect of annulment is postponed at the moment in which the legislator will enact a new law consistent with the constitution. See art. 31, para. 2 of the law on the German Constitutional Court and art. 140, para. 3 of the Austrian Constitution.

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who raised the issue and other judges who were to examine the case (art. 28 of law of 1989). The legislator’s mistrust towards the constitutional court is highlighted in the limitation of its jurisdiction to federal questions, when, during the first 80ies of the last century, in the rest of Western Europe the final “legitimation” of the constitutional courts was celebrated to safeguard constitutional rights;33 this mistrust may be also checked in the implementation of this or other aspects of the rules of procedure, making subsequent “correction” by case-law of Court justice very unlikely. And indeed the Court was able to make up for corrections only in case of legislator silence on important aspects of the procedure: for example, to mention one of the most compelling cases, introducing the notion of “compatible interpretation” of the law suspected to be inconsistent with the Constitution, at least in this way conforming to the attitude now consolidated in all European constitutional courts that know “concrete” (i.e. preliminary, raised by a judge during a “common” trial) forms of access to constitutional litigation.34 These “uncertainties” in the Court’s rules highlight the contrast with the legislation that, from the law of 1983, has been guaranteed in other profiles of the Belgian constitutional justice: in the composition, organisation, and in the rules of procedure the Belgian Court has nothing to envy to other European constitutional courts. On the contrary, it can be said that taking these aspects into account the relevant legislation is – positively – affected by the experience gained in other systems, by the “sister” courts. As regards its composition, six of the twelve judges must belong to the French language-speaking group, and the remaining six to the Flemish ­language-speaking group, whereas, within each group, three must have a “technical” qualification (Law professors) and three must have a “political” qualification (experience at least five years of parliamentary or council mandate).35 The judges of the Court, who hold their position for life (or rather, until the age of seventy) are formally appointed by the King, but upon the designation of a double list by the House and the Senate (originally by the Senate alone) with a very high quorum, corresponding to 2/3 of the presents, which does not allow derogations and which requires “sharing” conventions between political forces, not unlike what is happening to the appointments of court judges in 33 34 35

See L. Favoreu, Le contrôle juridictionnel des loi set sa légitimité (Report at Uppsala Meeting, June, 26-28 1984 of the Association Internationale des Sciences Juridiques), Aix en Provence, 1984. Since the famous decision of 15.5.1996, no. 32. See art. 101 para. 2 of the Law of 1989 for the case that a judge has to decide the consistence with the Constitution of a law or decree which was approved by himself when deputy or counselor: there is no mandatory abstention.

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other European countries, especially for “parliamentary” courts. Each of the two language groups nominates a president, who alternates annually with the other as chief justice. As regards the organization we expect a large group of “referendaries” (originally 14, twenty-four since 2003) recruited by competition, while linguistic membership of the judges and their technical or political skills, according to complex automatisms, governs the composition of a seven-members College that normally carries out the work of the court. Therefore, the Court will be presided over by a judge belonging to the linguistic group of the language in which the subject matter is introduced and the College is always equitably composed of technicians and politicians and members of the two linguistic groups. The plenum of the court meets only for some specific tasks (art. 56 of the law), and to examine ordinary affairs when required by one of the two presidents or two judges in the college of seven. Alongside the college and the plenum, to denote the “modernity” of the organization, the law provides for the formation of a small college (president in office and two speakers, one per group) to decide on manifest unacceptability and groundlessness of claims and questions: this also explains why, despite the number of claims brought to the Court every year, especially after the reforms of 1989, the backlog does not heavily weigh on the Court’s activity, even though the 2003 legislator, as will shown shortly, had to intervene to try and stop the proliferation of claims. Also in other respects, the legislator’s regulations set forth in 1983, partly improved in 1989 and 2003, highlight the up-to-date perspectives – in clear distinction with the jurisdiction limited to federal litigations – of the rules of procedure: – the power to suspend the law or the decree, which the Court has sometimes used,36 in the case of direct claim (but not for the question préjudicielle), comes as no surprise; – the regulation of the litigants’ intervention in the trial, both in direct claim and preliminary ruling; – the accurate rules of procedure both of direct claim and preliminary ruling; – the rules on the intervention of third parties in the trial, that, for direct claims, recognises the right to all potentially legitimated subjects to intervene (assemblies or councils and governments) with the power to even formulating new and different profiles of inconsistency (art. 85 law on Court); – in direct claims of citizens, introduced in 1989, it recognises the right to all potentially legitimated persons to intervene, without widening the petitum of the claim; 36

See arts. 20 and ff. of the Law on the Court.

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– in the preliminary ruling, the intervention power is acknowledged to all organs allowed a direct claim and to anyone showing such interest (but with the unexplainable exclusion for the litigant of a trial in which the application of the same rules is subject to complaint in the proceedings before the Court is discussed). When the Court finally set to work in the fall of 1985, it was not hard to see developments in full constitutional jurisdiction for the protection of constitutionally guaranteed rights and freedoms, all the conditions of that jurisdiction being present. 5

Enlargement and Consolidation of Belgian Constitutional Court: From Federal Litigations to the Constitutional Adjudication of Rights and Freedoms

What was noted above explains why, out of the 66 cases treated between the beginning of its activity and the constitutional reform of July 1988, the Court did not confine itself to deal with questions concerning the separation of competences between state, regions and communities, but also made a significant contribution to the legal protection of rights, acting as full constitutional jurisdiction.37 The “secret” of this Court’s role extension is quite simple: as pointed out above, the Court decided to be able to read in a broad manner the otherwise apparent limitation of the control parameters towards “constitutional rules of separation” (i.e. vertical separation of powers), referring not only to the few that the Constitution devotes to the separation of legislative powers between state, regions and communities, but also to those generically attributing power to a public authority or constitutional body. And, by doing so, it has always provided the basic reference point for the fundamental citizen’ rights: just to mention a few examples, during the first three years of activity, the apparent basis of the constitutional parameters on the vertical separation of powers were used by the Court to specify the contents of the right to a proper administration of justice (decisions 25.10.1985, numbers 4, 5 e 6), of the right to the natural judge (decision 11.2.1988, no. 46), of home inviolability (decision 37

See Yves Lejeune, La protection des droits et libertés, in Francis Delpérée (cur.), La Cour d’Arbitrage. Actualité et perspectives, p. 337 ff. (Bruxelles Bruylant, 1988) defines the apparent “overruns” of the Court as “indirect effects” of its specialised jurisdiction; Franklin Dehousse, commenting judgment 22.1.1986, no. 9 (Journal des Tribunaux, 1986, p. 498 ff.), noted that between questions of competence and questions of substance, especially when the latter concern constitutional adjudication of fundamental rights, a rigid border is impossible to draw.

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23.12.1987, no. 44), of freedom of expression (decision 20.12.1985, no. 12), and free access to professions (decisions 25.6.1986, no. 25 and 10.6.1987, no. 36). Upon occurrence of the constitutional reform in 1988, therefore, the Cour d’Arbitrage was already a constitutional court of rights and freedoms. The turning point that led the legislator in 1988-89 to “officially” extend the jurisdiction of the Court to rights and liberties moreover found a precise reason in the contextual devolution to Linguistic communities and Regions of education and teaching to Linguistic communities and Regions, core issues within the latent “Franco-Flemish” ethnic conflict. Once new competences were transferred, it was necessary to ensure that political decentralization would not lead to unequal treatments and discrimination in language, thus investing the Court through an extension of its control parameters up to then entrusted (federal litigations) relating to infringement of art. 10 (principle of equality), of art. 11 (prohibition of discrimination) and 24 (freedom of teaching) of the Constitution (the numbers refer to the text of 1994), and the increase of the access to the Court – ensuring respect of minority rights – obtained with the introduction of a direct individual claim to the Court against laws and decrees deemed to be inconsistent with such constitutional principles. Changes introduced by the constitutional reform in 1988 can be summarized as follows: – the re-writing of art. 107-ter Const. that devolved the competence of regulating the Court to a loi speciale (no more ordinary law); as a consequence of this provision, a loi speciale (of 6 January 1989) was issued, which essentially reproduced the text of 1983 with the necessary updates (this text is currently in force, with many amendments); – the provision of possibility, for the “special legislator”, to further extend the jurisdiction of the Court (which happened in 2003, as will be shown soon, with the further enlargement of the constitutional parameters that can be used in its review by the Court); – the enlargement of the jurisdiction with three new parameters, namely equality, non-discrimination and freedom of teaching (current articles 10, 11 and 24 of the Constitution); – enhanced access by providing a new way of claim, the recour en annulation of citizens (or legal persons or associations), comparable to Spanish Amparo, or the German Verfassungsbeschwerde or Austrian Individualbeschwerde against the laws (abstract individual claim).38 38

The rules of procedure of this individual direct claim are the same provided in 1983 for the recours en annulation of state, regions and communities: the same term for the presentation of the claim (six month since their publication for laws and decrees, reduced

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The reform has further and consequently developed the already mentioned trend by the Court to stand as the supreme instance of adjudication of constitutional rights and freedoms: questions and issues concerning federal litigations have as a matter of fact increase quantitatively, up to becoming an important aspect (for the implications on relations between state and the decentralized entities); but these litigations are, after all, secondary to the Court’s activities, thanks to the new access measures, direct individual claim and preliminary rulings dealing with the constitutional principles of equal treatment and prohibition of discriminations having become the prevailing scope of its action. Two aspects which, in this respect, should be mentioned, are, on the one hand, the gradual transformation, which the Court has brought about in its case-law, of the principles of equality and non-discrimination in principle of “reasonableness” of legislator’s choices, according to the usual scheme of the non-justifiability of different treatments for comparable factual and legal positions, up to codify a true “test” of reasonableness. On the other hand, increased Court’s capacity to extend, as it happened between 1985 and 1988, the use as parameters for the consistency of a law of the equal treatment principle (art. 24, para. 4 Const., equality on education, art. 171 Const., equality on tax matters, art 191 Const., equality of foreign citizens). Yet from a comparative viewpoint, it has to be observed that, apart from the uncertainties and the legislator’s initial distrust, thanks to the reform of 1988-1989 the Court has quickly fallen into line, in its jurisprudence, with the characteristics of its consolidated and dated European constitutional courts, whose echoes are clearly perceived in the case law of equality and, above all, of “reasonableness”. Thus, it is possible to mention some judgments of the period considered as symptomatic of this gradual assimilation of instruments and judgment techniques typical of other European constitutional courts, the “Sister Courts” mentioned in the title of the chapter, in demonstration, if so, of the high circulation of such techniques and instruments, such as a manifestation characteristic of the transnational nature of judge made law. Significant in this respect is, for example, the jurisprudence on the principle of “reasonableness” and “proportionality”, which has found interesting forms of manifestation in decisions 18.11.1992, no. 74 (the need for accurate control to 60 days for the laws enacting international treaties); the same effects of the decisions of unconstitutionality (the annulment of the law or decree or of their part claimed). The introduction of this new individual recour en annulation was possible with a little modification of art. 2 of the Law of 1983, by the addiction of a new phrase in the regulation of the legitimation to the claim: “All physical or legal persons who are interested to” (the claim).

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of proportionality of legislator’s control in the event of legal restrictions on fundamental rights), 27.1.1994, no. 9 (non-discriminatory character of positive actions, provided that these are measures of a temporary nature for achieving the target), 1.4.1998, no. 34 (reasonableness and proportionality concepts as a direct result of equality and non-discrimination principles), 28.5.1991, no. 13 (principle of non-syndication of legislator’s discretion out of unreasonableness cases). The same can be said for the use, as already mentioned, of the so-called “conform interpretation”: two interesting examples can be cited in decisions 27.6.1996, no. 24 (in accordance with some rules of the Criminal Procedure Code, otherwise not consistent with the Constitution) and 6.11.1997, no. 67 (as relates to an article of the civil code), useful to the Court to confirm the possibility to control the constitutionality of the laws prior to its establishment. Other decisions give similar impressions regarding the condition of foreigners, as set out in judgment 17.12.1997, no. 77 (interpretation of art. 191 Constitution according to which possible limitations to foreigners’ right law must in any case respect the fundamental principles of the Constitution), or the previous sentence 14.7.1994, no. 61 (equal treatment of foreigners). A peculiarity of Belgian constitutional law is the “dialogue” capabilities that the Cour Constitutionnelle managed to keep and maintain with the European Courts and the frequent recall, in its judgments, to the main Conventions and International Covenants in human rights issues. Examples include decision 15.7.1993, no. 62 (which makes reference to the European Convention on Human Rights, The International Covenant on Civil and Political Rights and other international charters to uphold the constitutional consistency of certain restrictions with respect to freedom of association of police forces), decision 1.12.1993, no. 83 (which establishes a direct dialogue with the European Court of Human Rights), or decision 2.3.1995, no. 19 (stating the infringement of the right of defence invoking art. 6 of the Convention of 1950), or decision 27.3.1996, no. 24 (applicability of the principle of equality and non-discrimination of rights granted to Belgians as a result of international treaties and convention), up to remittals pursuant to art. 234 (now art. 267) of the preliminary ruling to the European Court of Justice,39 similarly to judgment 13.7.2005, no. 124, with regard to European arrest warrant. 39

The Court is one of the few constitutional courts which has long since opened a constructive dialogue with the Court of Justice of U.E.: this capacity of “dialogue” is certainly a credit of the Court. But these credits should not be overestimated: according to statistics available on the site of the e.c.j. (www.curia.europa.eu) between 1961 and 2017 there are 28 preliminary rulings raised by Cour Constitutionnelle (all between 1998 and 2017); in the same period the others Belgian judges raised the e.c.j. over 794 times! This statistics

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The pervasive nature of such protection activities of rights and freedoms did not prevent the Cour Constitutionnelle from intervening, with significant judgments, in federal litigations under which it was established, such as with decision 25.3.2003, no. 35, when it acted on a special law basis of 2001 on the new regulations of Brussels-Capital Region, or two decision that tackled the awkward issue of interference between regional and European competence and national reserve as regards the judiciary (decisions 30.4.2003, no. 49 and 14.5.2003, no. 58). Of particular importance, even if they took place following a direct claim of a group of electors, decisions of 26.2.2003, no. 30 and 26.5.2003, no. 73, which, after its suspension, examined the constitutionality of the new electoral law of 13 December 2002, declaring it not consistent with the Constitution in various parts, thus forcing the legislator, with a “pure unconstitutional” judgment, to review the electoral law, in light of subsequent elections. 6

The Reform of 2003: A Full and Effective Constitutional Court

The reform of the Court in 2003 (loi speciale of 9 March 2003) has a rather complex origin: it dates back to the attempt, in 1999, to incorporate the text of the European Convention of Human Rights directly in the text of the Constitution, and, at the same time, the attempt to extend the parameters of the constitutional consistency to the entire Title ii of the Constitution, including a new chapter directed to give constitutional value to the Convention. The struggle to “constitutionalize” the Convention failed, while the part of the reform related to the Court survived, requiring not the revision of the Constitution, but (thanks to the reform of 1989) only an amendment of the loi speciale on the Constitutional Court. On this occasion, in view of a further increase in the caseload before the Court, some amendments to the organisational and procedural rules were provided, in order to reduce the Court’s burden and avoid a projected and rapid clogging of claims. The extension of the constitutional judgment parameters, now extended to the entire Title ii of the Constitution of 1994 (articles 8–32 Const., proves that what Joseph Weiler said about the secret of the success of the e.c.j. applies also for Belgium: it lies in the cooperative approach that domestic judges (not necessarily the highest courts…) have gradually established with the e.c.j.; so these domestic judges are, for Weiler, the real actors of the “silent revolution” that, between 60ies and 90ies, gave a decisive contribution to the “Europeanization” of the legal orders of members state: see Marta Cartabia, Joseph Weiler, L’Italia in Europa, p. 55 ff. (Bologna: Il Mulino, 2000).

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in short the entire Bill of Rights included in the Belgian constitutional text), can appear as a fundamental turning point in the history of the Court, to the extent that it is projected to a full constitutional adjudication of human rights, not limited to the protection of the rights recognised by the constitutional text. Nevertheless, this first impression can be re-dimensioned by effect of the consideration which, on the one hand, the “catalogue” of rights included in the Belgian Constitution, excluding the few rules implemented in 1970 and in 1980, is quite old and not as extended and modern as other more recent constitutional texts, drawn up in the post World War ii period. On the other hand, the most notable case law of the Court, especially during the 1990s, developed by making use of principles of proportionality and reasonableness, in order to affect the legislator’s choices (and protect the fundamental rights), certainly does not depend on the size of the catalogue of rights,40 which the same Court, as we have seen, has voluntarily extended often using international Conventions and Covenants in the awareness of constitutional text. In this sense it can be said – and this is a significant observation from a comparative viewpoint – that the reform of 2003, more than radically innovating the jurisdiction of the Court, has recognized the extension of the parameters of its control to the entire catalogue of fundamental and constitutional rights guaranteed by the Constitution. Perhaps, it would have been different if the Convention of 1950 had been contextually “constitutionalized”, but this did not happen. The rules of procedure modifications are instead more difficult to understand: there is little to say about novelties (consider the increase in the number of referendaires, brought to 24, and the obligation of gender equality among members of the Court); others leave us in doubt such as, for example, the restriction to the control by preliminary ruling of international treaties (see new art. 26 of the Law on the Court), excluding from the control law and decrees transposing Treaties of the European Union, the Convention of 1950 and its additional protocols.41

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See Henry Simonart, Marc Verdussen, La reforme de la Cour d’Arbitrage et la protection des droits fondamentaux (Revue Belge de Droit Constitutionnel, 2000, p. 184 ff.); Sébastien Depré, Vincent Ost, La Cour d’Arbitrage et les droits fondamentaux du titre ii de la Constitution, in Anne Rasson-Roland et al., La Cour d’Arbitrage vingt ans après, cit., p. 85 ff. The reason of this choice lies in an episode of the past: the conflict between the Conseil d’État and the Cour d’Arbitrage about the control of the law that ratified the Maastricht Treaty; see Charles Horevoets, Les modification relatives au contentieux préjudiciel à la Cour d’Arbitrage, in Anne Rasson-Roland et al., La Cour d’Arbitrage vingt ans après, cit., p. 251 ff.

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Procedural implementations clearly aim at avoiding the clogging of the Court are: – in terms of recour en annulation, the reduction from six to three months of the terms for the presentation of the suspension request of the contested decision; – the contemporary reduction of the time-limit prescribed in the Court for the pronouncement (from six months which could be extended twice, to six months which can be extended once only: however this is a non-mandatory time limit); – and especially, the introduction of a sort of simplified pronouncement (socalled arrêt de réponse immédiate) in the event of a claim or a preliminary ruling manifestly false or inadmissible; – the most significant implementation of the preliminary ruling is made by the no more obligatory character of raising the question by the Council of State and the Cour de Cassation, now considered equivalent to trial judges. Some numbers may help assessing the events of the Cour Constitutionnelle and the reforms that somehow marked the evolution from “court of federal litigation” to “court of rights”: there were 66 decisions during the first three years of operation (before the reform of 1988). Since then, between 1985 and 2003 the Cour d’Arbitrage issued 905 decisions on preliminary rulings and 617 decisions on direct claims; and there were also 131 decisions on suspension requests; since the beginning of its task the preliminary ruling prevails over the other forms of access to the Court. This trend is confirmed in the most recent years: in 2016 the Court enacted more than 200 decisions: 170 decided preliminary rulings, only 52 decided direct claims, of which 50 claims were introduced by citizens and their associations, while only 2 were introduced by governments (the original unique form of access to the Court). The same occurred in 2015: of the total 179 decisions, 100 decided preliminary rulings, 78 decided individual claims, and only 1 decided a claim of a public body. As a matter of fact, the question préjudicielle continues to form the majority of access routes and decisions; and it is important to note that of the 170 decisions in preliminary rulings of 2016, 152 concerned arts. 10 (equality) and 11 (prohibition of discrimination) of the Constitution. The few conclusions that can be drawn from these statistics are not at all obvious. First, that direct claims of individuals, notwithstanding their constant growth (especially after the reform of 2003), did not clog the Court as it was initially feared. This means that a direct claim against law does not determine

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high numbers which are characteristic of direct recourses in Spain (9000 ­amparo per year) and Germany (out of 5000 yearly Verfassungbeschwerden); however it is almost exclusively destined to judgments and administrative acts, and can be supported by the work capacity typical of a single judge, especially if the Court is provided with a form of simplified decisions for m ­ anifestly false and delaying claims. Second, direct claims for questions related to vertical separation of powers or federal litigations are strongly decreasing to a very small number, notwithstanding the fact that the Belgian decentralisation, after the recent reforms, is particularly intense. Therefore, it is possible to deduce the good operation of the “political” forms in the resolution of federal conflict (starting with the Senate’s role in this regard). The function for which the Cour Constitutionnelle was established only determines very few decisions every year, while many of the cases decided relate to direct claims and preliminary rulings where it is discussed of alleged violation of constitutional rights or unreasonableness in the legislative choices: and this gives the effective measure of the transformation suffered in a few years by the Belgian Constitutional Court. Third, it is important to note that preliminary rulings remain almost constant in the number and continue to be the most widely used access and do not suffer from the direct competition of direct individuals claims. It is a clear sign that in Belgium, the dialogue between the Court and the other judges, characteristic of the access forms of preliminary ruling, is working much better than imagined, and that the evolution of the Belgian “constitutional justice” has in some way determined a balance between access and load of the Court, which many other European courts are still searching for. Has Belgium tried to square a circle that was somewhere else impossible to bend and forged it in a more rational way? Fourth, the great number of decisions in which articles 10 and 11 of the Constitution are used as parameters of the consistency of laws and decrees with the constitution means that the original intent of the legislator (a Court born in 1983 to be the arbiter of federalism) has reached this same purpose not trough the abstract claim from state, regions and communities (supplied to the Court in 1983), but through the preliminary rulings concerning the rights of individuals, especially equality, prohibition of discrimination and the freedom of teaching (also in linguistic and ethnic conflicts). This also explains the very positive assessments, except for some isolated voice out of the choir, which the Belgian legal doctrine and politicians reserve to their own experience of constitutional justice, which in a few years – certainly

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thanks to the judges who interpreted it – has managed to win the trust of citizens and institutions. 7

Belgian Cour Constitutionnelle and Comparative Law: From the Use of the Precedents of “sister” Constitutional Courts to the Dialogue with the European Courts

The “official” position of the Belgian scholars on the use of comparative law precedents and issues in the motivations of the Belgian Constitutional Court’s judgments is radically negative: recently, the two Presidents of the Court very eloquently stated that “Il n’y a, dans l’ètat acutel des choses, aucun arrêt de la Cour se réfèrant à la jurispundence d’autres cours constitutionnelles europèennes”.42 Therefore, without denying the judicial dialogue, the two presidents explain that the rejection of the Cour Constitutionnelle to mention in her decisions any previous decision and case of foreign courts, is based on three main considerations: the “national” character of the constitutional law; the absence of provisions providing so, in contrast to other countries;43 and the difficulty in the legal transplant of foreign judgments in domestic law. This decisive statement seems to be easily overturned. Other scholars show that, in the past, the Cour Constitutionnelle has sometimes referred to foreign judgments in her decisions: Lucio Pegoraro and Paolo Damiani, in an essay of 1999,44 described in detail the references to foreign precedents contained in some Court’s decisions, which are significant, considering that the research of the two authors only covered three years’ operation of the Cour d’Arbitrage.45 42

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See André Alen (Flemish president) and Jean Spreutels (Francophone president), with two référerendaires (Etienne Peremans and Willem Verrijdt), Rapport de la Cour Constitutionnelle de Belgique présenté au xvie Congrès de la Conférence des Cours Constitutionnelles Europèennes. “La cooperation entre le Cours Constitutionnelles en Europe” (Wien, May, 12-14, 2014), p. 49 ff. They refer to and expressly quote art. 39, para. 1, of the Constitution of South African Republic: “When interpreting the Bill of Rights, a court, tribunal or forum: (a) must promote the values that underline an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law”. See Lucio Pegoraro, Paolo Damiani, Il diritto comparato nella giurisprudenza di alcune Corti costituzionali, cit., p. 432 ff. There are less than ten cases out of one hundred of verified decisions, given between 1994 and 1996, where the recall to experiences or foreign precedents is more or less expressed:

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In 2004, a judge of the Cour, Moerman,46 gave a convincing explanation of said phenomenon: the influence of precedents and arguments of foreign “sister” courts is not always expressed or perceptible, but is very often present, due to the circumstance that the 24 référendaires, in processing their preliminary dossiers at every case gather and catalogue – where present – all precedents of the foreign constitutional courts on the topic in the agenda of the Court. It is a very reasonable and convincing explanation. A distinguished Belgian constitutionalist goes on to state that the Cour constitutionnelle cannot base her decisions on foreign precedents or arguments:47 however, (1) the litigants frequently make reference to foreign precedents; (2) sometimes the Court expressly cites the precedents as happened in decision no. 187/2005, expressly citing a precedent of the Supreme Court of Canada and a precedent of the Constitutional Court of South Africa; (3) normally the reference is indirect and occurs through expressed reference to decisions of e.c.j. and E.Ct.H.R. What appears interesting to note is the evolution of these references to foreign or supranational precedents: from occasional and sporadic references to cases decided by other constitutional courts, the Cour Constitutionnelle comes to the use of e.c.j. precedents and especially of E.Ct.H.R. precedents. Therefore, the precedents of the two European Courts gradually became a constant call to decisions of the Belgian Constitutional Court, since the Court considers itself to be bound by the judgments of E.Ct.H.R. (and e.c.j.), so as to appear its “satellite”.48 Numbers support this statement, since references addressed to decisions of E.Ct.H.R. are impressive: in 2011, 49 cases out of 201, in 2012, 38 cases out of 166 decisions, in 2015 no less than 55 references expressed in judgments of E.Ct.H.R.

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see decisions no. 22/1994, no. 33/1994, no. 22/1995, no. 93 e no. 94/1995, no. 176/1995, no. 70/1996. See Jean Paul Moerman, Françoise Moline, Le rôle des prècèdents (nationaux, ètrangers, internationaux) pour la pratique des cours contituionnelles. Le point de vue de la Cour d’Arbitrage de Belgique (Strasbourg: Commission de Venice, Séminaire de Bakou, 3-4 septembre, cdl-ju (2004)045, p. 5. See Christian Behrendt, Le rôle des Cours constitutionnelles dans la gouvernance à plusiers niveaux: une perspective de droit comparé. Belgique: la Cour constitutionnelle, p. 12 f. (Bruxelles: Étude du Parlement Européen, PE 593.508, 2016). See Luc Lavrysen, Jan Theunis, The Belgian Constitutional Court: a satellite of the E.Ct.H.R.?, in Liber Amicorum Marc Boyssut, p. 331 ff. (Cambridge: Intersentia, 2013).

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This evolution suggests the completion of a long process: during the first years, when the Cour d’Arbitrage, as much as all the new constitutional courts, needed to increase the legitimation of its role, most often silently and in a few cases by expressing it explicitly, the Court was often inspired by judgments of other “sister” courts considered very important: in essence, to use Perelman’s classification,49 using precedents of other courts as an argumentum auctoritatis. Then, having reached a full legitimation, the Court has become Constitutionnelle and does not need the support of “sister courts”: it directly looks at European Courts, especially E.Ct.H.R. and engages them in dialogue; and it is a clear reflection of how deeply-rooted the consciousness is, in national constitutional courts, of a common European framework of rights. 49

See Chaïm Perelman, Lucie Olbrechts-Tyteca, Trattato dell’argomentazione, p. 322 ff. (­ Torino: Einaudi, 1966).

The Spanish Constitutional Court and Foreign and Comparative Law: Theory and Practice of a Marriage of Convenience Ángel Aday Jiménez Alemán 1 Introduction It is beyond doubt that the Spanish Constitutional Court has used foreign and comparative law during its almost forty years of operation, although the presence of references to foreign law in its resolutions is statistically negligible. Not only it resorts to foreign and comparative law in order to develop its case-law, but also those who institutionally designed the Court took into account other European constitutional courts, particularly the Corte Costituzionale and the Bundesverfassungsgericht. These two courts were used as models at the inception of the Spanish Constitutional Court and, as it will be shown later, they have continued to be used by the Spanish Constitutional Court in the exercise of its functions. Furthermore, we cannot forget that the successful experience and prestige of these two courts helped to generate a widespread agreement on the reintroduction of constitutional justice in the Spanish constitutional evolution, despite the early failed Republican precedent (1931–1936).1 Just as the Italian and German models, the Spanish Constitutional Court is a specialised court that only exercises constitutional review.2 It is unique in its order, its jurisdiction is national, it is separated from the ordinary judicial system and it follows the foundations of the Kelsenian centralized model, although it includes the relevant modification, so widespread among the constitutional courts established after the Second World War, that allows ordinary 1 This element, together with the desire to ensure the full legality of the new Constitution, and the distrust among the members of the judiciary who accessed their positions during the dictatorship of Francisco Franco, are the most common explanations for the lack of resistance against the reintroduction of a Constitutional Court during the constituent process of 1978. Please see Pablo Pérez Tremps, Tribunal constitucional y poder judicial (Centro de Estudios Constitucionales, 1985). 2 It departs from its precedent, which did perform other functions, mostly criminal jurisdiction over highest public authorities. Please see Martín Bassols Coma, El tribunal de garantías constitucionales de la II república: la primera experiencia de la justicia constitucional en España (Boletín Oficial del Estado, 2010).

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courts to collaborate in the constitutional review through the submission of issues of unconstitutionality.3 Hence, the Spanish Constitutional Court is characterised by being an ad-hoc body that performs a jurisdictional function out of the judicial system, and that its articulated as a constitutional body, with organizational and budgetary autonomy. With regards to the extent of its jurisdiction, the Spanish Constitutional Court has no reason to envy any other constitutional court beyond the Bundesverfassungsgericht, as Rubio Llorente stated.4 Hence, the design of constitutional justice established by the Spanish Constitution of 1978 is impure in view of the diversity of the powers granted. According to Title ix of the Spanish Constitution (articles 159–165) and Organic Law 2/1979 of the Spanish Constitutional Court, the Court exercises both the constitutional review and the resolution of conflicts between constitutional and territorial bodies, as well as the protection of fundamental rights.5 In order to carry out its natural function, that is, the constitutional review of legislative acts, the Spanish Constitutional Court counts with five instruments.6 Firstly, the appeal of unconstitutionality (recurso de inconstitucionalidad) allows the Prime Minister, 50 members of the Parliament, 50 members of the Senate, the Ombudsman and the regional executive and legislative bodies to challenge any piece of legislation. Secondly, all ordinary judges and courts are called to collaborate in the constitutional review through the submission of issues of unconstitutionality (cuestión de inconstitucionalidad). All ordinary judges and courts are interpreters of the Constitution, just as other public powers (article 9.2 of the Spanish Constitution), but the supreme interpreter is the Constitutional Court (article 1 of the Organic Law on the Constitutional Court), which has the sole control to resolve any constitutional review process. In addition to any piece of legislation, the Constitutional Court can exercise its a priori constitutional review over international treaties and Estatutos 3 Please see Mauro Cappelleti, Judicial Review in Comparative perspective, 58 California law review, 1017 (1970); and Victor Ferreres Comella, The European Model of Constitutional Review of Legislation: Toward Decentralization?, 2:3 International journal of constitutional law (2004). 4 Francisco Rubio Llorente, Seis tesis sobre la Jurisdicción constitucional en Europa, 35, Revista española de derecho constitucional (1992). 5 Victor Ferreres Comella, Una defensa del modelo europeo de control de constitucionalidad (Marcial Pons, 2009). 6 For a detailed analysis (in English) of the Spanish Constitutional Court, please see Victor Ferreres Comella, The Spanish Constitutional Court: Time for Reforms, in Constitutional courts: a comparative study, JCL studies in comparative law, (Wildy, Simmonds & Hill Publishing, 2010); and Victor Ferreres Comella, The constitution of Spain: a contextual analysis (Hart, 2013).

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de Autonomía (Statutes of Autonomy),7 and, a posteriori, over regional fiscal regulations.8 The second function carried out by the Spanish Constitutional Court is the resolution of disputes as to the jurisdiction of state bodies, constitutional bodies and regional bodies. The Court resolves conflicts between the constitutional bodies (the Government, the Parliament and the General Council of the Judiciary) and, due to the configuration of Spain as a decentralised State, also between territorial bodies (executive bodies at State, regional or local levels). Finally, the most “unnatural” function (but one that has had a leading role in its case-law) is the protection of fundamental rights through an appeal for protection of constitutional rights (recurso de amparo). Any natural or legal person, as well as the Ombudsman and the Public Prosecutor, may denounce any act or omission by a public body that violates one of the fundamental rights specially protected by the Constitution, by lodging an appeal before the Constitutional Court, after exhausting all available ordinary judicial instruments. As we shall see below, in the exercise of these three functions,9 but particularly for the protection of fundamental rights, the Spanish Constitutional Court

7 Although there was a procedure to review in advance the constitutionality of legislation, particularly organic laws and Estatutos de Autonomía, the abuse of this function and the consequent delays of the entry into force of legislation led to its abolition in 1985. However, the last reform of the Organic Law on the Constitutional Court recovered this instrument in 2015, but limited to reviewing Estatutos de Autonomía. 8 The Basque Country is subject to a different fiscal regime, separated from the Spanish common tax regime. The Historical Territories of the Basque Country (Álava, Guipúzcoa and Vizcaya) regulate and collect almost every tax in their jurisdiction. The Autonomous Community of the Basque Country pays an amount to the Spanish State as a contribution for the services provided by the State, which is negotiated between the Basque Country and the Spanish State and approved by a legal instrument on regional tax regulations. The normas fiscales forales are the general provisions that regulate this matter. Despite their nature, the Spanish Constitutional Court reviews them since 2010. Please see Luis María Díez-Picazo, Notas sobre el blindaje de las normas forales fiscales, 3 Indret, revista para el análisis del derecho (2010). 9 According to article 161. d) of the Spanish Constitution, the powers attributed to the Constitutional Court depend partially on the legislator. Hence, the jurisdiction of the Constitutional Court has been modified on several occasions, in the ten amendments introduced to the Organic Law so far. With regards to the changes in the procedure to review in advance the constitutionality of the legislation (see note 8), the appeal for protection of constitutional rights has been repeatedly reformed. As for the attribution of new powers, it is sufficient to consult the Organic Law 7/1999, of April 21, which incorporated the conflicts in defense of the autonomy of local administrations; or the last reform of 2015, which granted relevant enforcement powers.

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has relied on foreign and comparative law, mostly on foreign precedents from other constitutional or supreme courts. References to foreign and comparative law can be found in any part of the judgments of the Spanish Constitutional Court. These, which often are long and complex and which, in general terms, have lost their concision, which was a virtue during the Court’s early years of activity, are structured in three main parts. The first one collects the facts related to the case (antecedentes); the second one contains the legal grounds on which the Court supports its decision (fundamentos jurídicos); and the last one contains the ruling (this part has been traditionally known as decisum), which also includes the effects of the decision. The Court must give reasons for its decision, and these must be guided by the principles of congruence.10 Therefore, if the parties have relied on foreign and comparative law in order to develop their arguments, references can be found summarized in the first part of the resolution (antecedentes). However, there are few resolutions in which the Court takes these contributions into account. Neither party is prohibited from using them, but neither is the Court required to respond to these arguments based on elements external to the Spanish legal system. In this sense, it is much more common for the Court to use foreign and comparative law as some kind of Deus ex machina on which to support its own arguments, even when it has not been used by the parties. The resolutions contain the common decision of the Court, adopted by a majority of judges. The President of the Court resolves ties. The Court can work in plenary sessions (Pleno), or divided into two chambers (Salas) of 6 judges each, or into four sections (Secciones) of 3 judges each. Judges can express their opinions in order to state their disagreement with the legal grounds (concurring opinion) or with the ruling (dissenting opinion).11 It is not uncommon to find particular opinions at the resolutions. These have been instrumental to facilitate the transparency around elements of constitutional debate, and also, they have allowed us to know the references to foreign law that judges had in mind to underpin their position. These spaces of free individual expression can include references to foreign rules and case-law, and it is also the only section in the resolutions of the Spanish Constitutional Court where references to legal literature can be found, although very infrequently. Foreign and comparative law is not unknown at the Spanish Constitutional Court. Indeed, the Court used it very soon, in its fourth judgment. In judgment 10 11

Ángel Garrorena Morales, La sentencia constitucional, 11 Revista de derecho político (1981). José Luis Cascajo Castro, La figura del voto particular en la jurisdicción constitucional española, 17 Revista española de derecho constitucional, 1986.

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4/1981, of February 2, it resolved an appeal of unconstitutionality against several legislative dispositions that regulated local administrations. In its first legal ground, when addressing its own jurisdiction to constitutionally review acts passed before the Constitution of 1978, the Court reaffirmed itself in the favourable decisions of the Italian and German Constitutional Courts, and it has continued to do so in a sustained but very moderate way until today.12 However, although this consolidated trend has been well analysed by comparative constitutional law during the last decades, very few examples can be found in Spanish legal literature, apart from the translation of Vergottini’s well-known essay,13 a section in a work by Juan Antonio Xiol Ríos (current judge of the Constitutional Court),14 and three journal articles.15 This has not been studied in the main international works on this topic, either.16 As much as the Spanish Constitutional Court has stated that it uses exclusively the Spanish Constitution as a standard of constitutionality, it has not been able, however, to avoid using references to foreign and comparative law as a hermeneutical tool. A paradigmatic example is found in judgment 12/2008,17 of January 29, in which, while insisting on the Constitution being 12

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This chapter was finished on September 15th, 2017. The last resolution that referred to comparative or foreign law was judgment 8/2017, of February 23. It upheld an appeal for protection regarding a violation of the fundamental right to presumption of innocence. The appellant claimed for a compensation due to the malfunctioning of justice system, after having been held in preventive detention. When explaining its doctrine on the subject, the Court stated that there are similar provisions to article 294 of the Organic Law of the Judicial Power in the German, Austrian, French and Italian legislations. Although it must be said that the most well-known part is the first one, dedicated to the analysis of judicial relationships among supranational and domestic legal systems. Please see Giuseppe De Vergottini, Más allá del diálogo entre tribunales. comparación y relación entre jurisdicciones (Preface by J. García Roca, Civitas-Thomson, 2011). Juan Antonio Xiol Ríos, El diálogo entre Tribunales in Tribunal constitucional y diálogo entre tribunales, xviii Jornadas de la Asociación de letrados del Tribunal Constitucional, (Tribunal Constitucional y Centro de Estudios Políticos y Constitucionales, 2013), p. 29. María Soledad Santana Herrera, El Derecho comparado en la jurisprudencia del Tribunal Constitucional español, 14 Revista de derecho constitucional europeo (2010); Luis López Guerra, Contribution to a Constitutional Court Judges Roundtable, 3 International journal of constitutional law (2005); Pedro Tenorio, El Derecho comparado como argumento de las decisiones del Tribunal Constitucional español, 108 Revista española de derecho constitucional (2016). Among the several consulted works, only one includes a chapter dedicated to Spanish courts, but it does not deal with highest courts. Marta Requejo Isidro and Marta Otero Crespo, Comparative Law before the Spanish Private Law Courts in the 21st Century, in Courts and comparative law (Oxford University Press, 2015). This judgment resolved an appeal of unconstitutionality and an issue of unconstitutionality against the new wording of article 44 bis of the Organic Law 5/1985, of June 19,

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the unique standard of constitutional review, the Court analyses the foreign case-law provided and discussed by the parties in the procedure (the court that lodged the appeal, the State Attorney and the private parties), and uses it to establish a distinction from that case-law due to a “fundamental difference” between the French, the Italian and the Spanish legal systems: the absence of any normative provision in the French and Italian Constitutions similar to article 9.2 of the Spanish Constitution, which stipulates that public authorities must promote material equality and eliminate any obstacle that hinders the participation of every citizen in the political, economic, cultural and social life. The dissenting opinion issued by judge Jorge Rodríguez Zapata also contains references to comparative law, but not references to foreign judgments. He recalls that other European States have reformed their respective Constitutions before introducing quotas to facilitate women’s political participation in public bodies. This contribution provides data on 88 references to comparative law in the legal foundations of the resolutions of the Spanish Constitutional Court. Of these, 34 are references to decisions of the highest courts from foreign legal systems. This number proves that the Spanish Constitutional Court has not been oblivious to the widespread trend observed in constitutional and supreme courts of advanced democracies to use comparative law in order to support their decisions, as a part of a global community of international and national judicial bodies,18 according to Slaughter, one of the governance networks of the 21st century’s world order.19 Its use by the Court in order to interpret the fundamental law with the aim of resolving a conflict is completely voluntary. Sometimes, it is encouraged by the parties in the procedure; however, its use is not normatively imposed (nor is it forbidden), but a unilateral consideration to a solution adopted by other judicial body at the same level in a different State’s legal system, always under the absolute discretion of judges. This contribution seeks to provide explanations on when, how and why the Constitutional Court freely decides to use

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the general electoral regime after Organic Law 3/2007, of March 22, for effective equality ­between women and men. Both appeals argued that the reform was contrary to the fundamental rights to equality (art. 14 of the Spanish Constitution) and to political participation (art. 23 of the Spanish Constitution), among other constitutional provisions. The Court stated that requiring political parties to present gender-balanced lists in order to take part in the elections to all representative bodies was not unconstitutional. Anne Marie Slaughter, Judicial Globalization, 40 Virginia journal of international law (2000). Anne Marie Slaughter, A new world order, (Princeton University Press 2004), p. 65 et seq.

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comparative law and, most of the times, specific precedents from foreign constitutional and supreme courts. Firstly, this chapter offers an empirical analysis of references to comparative law (much more frequent) and references to foreign case-law (less frequent, but deeply relevant and more appealing to analyse). In regards to methodology, the case-law database of the Spanish Constitutional Court has been used; the results were obtained by searching relevant keywords and double-checking them with the previously mentioned works. The aim was to provide a sample as wide as possible through a systematic search, trying to minimize the margin of error. Then, the Court resolutions that refer to foreign precedents in their legal grounds will be analysed by applying theoretical elements. The reason to focus on foreign precedents instead of others sources lies in the possibility to make a richer analysis. Although, as it will be shown below, the Court referred to foreign constitutions and statutes, it employed these references for merely informative purposes. However, with regards to foreign precedents, this contribution identified six different purposes. This chapter finishes with some conclusions on this unexplored practice in the Spanish Constitutional Court. This is actually a problem of constitutional interpretation from which it is increasingly difficult to escape. Haberle stated that it constitutes the fifth technique of interpretation available to the judge;20 and it must not be forgotten that the legitimacy of judicial bodies rests largely on the justification of their decisions, which is mandatory in the Spanish legal system (article 120.3 of the Spanish Constitution). 2

Empirical Analysis of the Use of Comparative Law by the Spanish Constitutional Court

The Spanish Constitutional Court is among the courts that resort explicitly to comparative law, including foreign precedents, in the legal grounds and in particular opinions, but only in very rare occasions. This trend is similar to other constitutional courts from the family of civil law legal systems, such as the German or the Austrian Constitutional Courts; or even the Supreme Court of the United States, an exceptional court among those of the common law family, which are usually much more open to the use of foreign precedents. The Highest Courts of Namibia (93% of its cases contain references to foreign 20

Regarding comparative law’s possibilities and limitations, please see: Peter Haberle, Role and Impact of Constitutional Courts in a Comparative Perspective, in The future of the European judicial system in a comparative perspective, (Nomos, 2006), p. 66.

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precedents), South Africa (52%), Ireland (43,95%, from 1937 to 2012) or Canada (39,7%) are good examples of this reality.21 The latter, together with the Constitutional Court of South Africa, have been recognized by academic literature as the champions of “free doctrinal exchange” in constitutional justice. The provision 39.1 c) of the Constitution of the Republic of South Africa of 1996 is still unique by explicitly authorizing the courts to take into account foreign law.22 And Canada has been studied as a constitutional superpower.23 Next, not only the number of resolutions of the Spanish Constitutional Court that refer to foreign and comparative law will be analysed, but also in which part of the resolutions, in which procedures, what are the topics discussed, and which legal systems are the most referred to.24 It should be noted that resolutions can refer to foreign constitutional provisions, legislative acts and rulings. General references to comparative law are abundant. And most of the references to foreign law, either to comparative law in general or to specific foreign precedents, are found in cases related to fundamental rights. This fact fits with the open nature of these provisions, rules drafted as principles, according to Alexy’s analysis.25 And they could be good examples of generic constitutionalism26 and of contemporary global constitutionalism.27 2.1 Comparative Law in the Resolutions of the Constitutional Court This first section is included as a context, since the resolutions that will be analysed from a theoretical perspective are those in which the Court used foreign precedents in its legal grounds. References to comparative law appear in the background information of at least 127 resolutions, in the legal grounds of 93 resolutions and in the opinions 21 22 23 24 25

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Tania Groppi, and Marie-Claire Ponthoreau, The use of foreign precedents by constitutional judges, (Hart, 2013), pp. 412–413. Heinz Klug, The constitution of South Africa: a contextual analysis (Hart, 2010), pp. 78–82. David S. Law and Mila Versteeg, The Declining Influence of the United States Constitution, 87 New York university law review (2012). These data were personally obtained by the author. They have been checked comparing them with previous mentioned works; and they are specifically intended to complete Pedro Tenorio’s analysis taking into account variables not observed. Robert Alexy, Teoría de los derechos fundamentales (translation and introductory study by Carlos Bernal Pulido, Centro de Estudios Políticos y Constitucionales, 2° ed., Madrid), p. 482 et seq. For an aproach to this issue in the Spanish jurisdiction, vid. Luis María DíezPicazo, Sistema de derechos fundamentales, (Civitas Thomson Reuters Aranzadi, 2013), 41–45. David S. Law, Generic Constitutional Law, 23 University of San Diego public law and legal theory research paper series, (2004). David S. Law and Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 California law review (2011).

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of 47 resolutions. They can be found in all kinds of procedures: appeal for protection of constitutional rights (100), appeals of unconstitutionality (59) preventive appeals of unconstitutionality (3), issues of unconstitutionality (38), conflicts among territorial organs (9), constitutional review procedure of international treaties (1), appeals against provisions from the Autonomous Communities (2) and recursos de súplica (7). With regards to the subject, as previously mentioned, it is easier to find references to comparative law in constitutional procedures about fundamental rights (140) than in conflicts among territorial bodies (44), cases related to constitutional procedural law (22), organic matters (11) or sources of law (4). Comparative law is used by the Constitutional Court, as well as by individual judges in their opinions, and by all the parties in their legal grounds, including judicial bodies when raising issues of unconstitutionality, counsels to the legislative chambers or the legal services of the State and regional governments, the Public Prosecutor’s Office and the Attorney General’s Office. The latter is the one that uses comparative law more often, at least 40 times. Which countries are more frequently taken into account by Spanish constitutional justice?28 Clearly, Italy (65), Germany (59), the United States of America (43) and France (28). A bit less frequently, Austria (15), Portugal (15), the United Kingdom (12), Canada (11), Sweden (8), Belgium (7), Switzerland (6), the Netherlands (4), Argentina (4), Norway (4), Australia (3), Denmark (2), Finland (2), South Africa (2), New Zealand (1), the former German Democratic Republic (1), Colombia (1), Panama (1), Bolivia (1), Guatemala (1), the member States of the Commonwealth (1), Brazil (1), Pakistan (1), Mexico City (1), Iceland (1), Slovenia (1), Luxembourg (1), Andorra (1), the Czech Republic (1) and Liechtenstein (1). So far, the Court has referred to constitutional provisions from Italy, Germany, Portugal, France and Belgium. In judgment 4/1981, in assessing whether the Constitutional Court could repeal legislative acts passed prior to the Constitution of 1978, the Court stated that there is not a derogatory provision in the Italian constitution, as opposed to the Basic Law for the Federal Republic of Germany. In judgment 108/1986, the Court referred to the Italian and Portuguese Constitutions in order to explain the guarantees of independence in the judicial power. Again, references to provisions from the Italian and German Constitutions (arts. 18 and 9.1, respectively) are found in judgment 23/1987, whose object was the right of association. The Court included references to the French and German Constitutions to distinguish the Spanish Constitution from them in relation to the lack of eternity clauses, in judgment 48/2003. 28

Rex D. Glensy, Which Countries Count? Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45-2 Virginia journal of international law (2005).

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Finally, there are also references to the French and Belgian Constitutions in judgment 12/2008. Although both constitutions were reformed to pass legislative acts introducing electoral gender quota systems, the Court established a distinction with the Spanish Constitution, because this fundamental law contains a mandate to remove any obstacle that hinders material equality. In relation to legislative acts, the Court has alluded to the legal systems from Germany, Austria, Switzerland, the Netherlands, Canada, the United States, Denmark, Sweden, Norway, Finland, Belgium, Andorra, Luxemburg, France, Iceland, the Czech Republic and the United Kingdom. In order to resolve cases related to judge recusals, the Court consulted the statutes that regulate its “siblings” from Germany, Italy, France and Portugal (judicial decrees 180/2013, 194/2013, 208/2013, 220/2013, 234,237, 238/2013). The Court has referred to the German electoral legislation in judgments 75/1985 and 93/1989; the German Statute of Political Parties in judgment 48/2003; and the German Census Act (in judgment 290/2000). The Court alluded as well to its Criminal Code and other legislative acts related to procedural criminal law, in judgments 19/1988 and 237/2005. The first one refers to the Austrian and Swiss Criminal Codes, too. Again, judgment 136/1999 referred to criminal legislative acts from Germany and Austria, in addition to United Kingdom and Italy. Finally, Austria, Germany, Italy and France were referred to in judgment 8/2017, when assessing the compensation for wrongful imprisonment without bail. Foreign civil law has been taken into account, as well. Judgment 198/2012, which dismissed an appeal of unconstitutionality against the legalization of same-sex marriage, contained references to the civil law of Germany, Austria, Switzerland, the Netherlands, Canada, the United States, Denmark, Sweden, Norway, Finland, Belgium, Andorra, Luxemburg, France, Iceland, the Czech Republic, and the United Kingdom. There are barely a few references to legal scholars. Kelsen has been quoted nine times, all of them in opinions, except for judgments 24/1982 (in the background facts) and 32/1985 (in the legal grounds). There are three references to Dworkin. Schmitt has been quoted twice in the opinions, just as Holmes and Savigny (one in an opinion and one in the background facts). And Becarria, Nawiasky, Marshal and Tocqueville were also referred to (the last two, in the background facts). All these references alluded to their legal theories, in general terms. The only specific reference to a legal scholarship is Kelsen’s Recht und Logik, (Forum, 1965). However, general references to comparative law are the most common in all parts of the resolutions, including opinions.29 This has not been an obstacle for 29

Judgments 72/1984, 122/1984, 94/1985, A180/1986, 64/1988, 45/1989, 76/1989, 137/1989, 56/1990, 119/1990, 150/1990, 184/1990, 211/1990, 60/1991, 206/1992, 71/1994, 225/1998,

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comparative law to become part of constitutional case-law: at least six general references to comparative law can be found, mentioned as precedents.30 2.2 Foreign Precedents in the Resolutions of the Constitutional Court There are at least 44 references to foreign precedents in the resolutions of the Constitutional Court. The legal grounds contain at least 35 references. And there are at least 21 references in the opinions. Again, the references are present in all kinds of procedures, although it is much more frequent to find them in appeals for protection of constitutional rights (40) than in appeals of unconstitutionality (22) or in issues of unconstitutionality (12), not to say conflicts (2), preventive appeals of unconstitutionality (1) or constitutional review procedures of international treaties (1). The subjects discussed in most of the occasions, as it was previously stated, are issues related to fundamental rights. There are also references to competence issues between territorial bodies, but far fewer. There are very rare references to foreign precedents in cases related to organic matters, sources of law, or constitutional procedural law (one, in particular, about recusing constitutional judges). All the parties, the Attorney’s General Office or the legal services of the regional governments, the Public Prosecutor’s Office, the members of the Parliament or the Senate, the counsels to the legislative chambers, the individuals seeking protection of their fundamental rights, the judicial bodies when raising issues of unconstitutionality and the Constitutional Court itself, collectively and individually through the opinions of its judges, have used references to foreign precedents in order to reinforce their views. And when legal practitioners involved in constitutional procedures seek i­nspiration in other courts, they usually find it in the Supreme Court of the  ­United  States (35),31 the German Federal Constitutional Court (34) and the Italian Constitutional Court (27). There are also less frequent references to  the  French Constitutional Council (5), the Supreme Court of Canada (3), the A ­ ustrian Constitutional Court (2), the Supreme Court of the

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105/2000, 192/2000, 3/2003, 123/2004, 112/2006, 92/2014, 93/2014, 98/2014 and judicial decrees 12/1986, 171/1986, 496/1989, 350/1995, 174/1995, 349/1995, 178/1996. Judgments 225/1998, 105/2000, 192/2000, 48/2003, 123/2004 and 124/2014. It should be noted that one of the judgments mentioned (in judgment 198/2012) is from the Surpreme Court of Massachussets. Apparently, the Spanish Constitutional Court has not participated in the tendency towards decreasing the influence of the constitutionalism from the United States (please see Law) and its Supreme Court, which has been discussed even in The New York Times (Adam Liptak, U.S. Court Is Now Guiding Fewer Nations, N.Y. Times, September, 17, 2008).

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United Kingdom (2)32 and the constitutional, supreme or cassation courts of Colombia, Slovenia, Belgium, Portugal, Argentina and Brazil (1). As it happened in the previous section, some of the references included in the resolutions of the Spanish Constitutional Court are excessively generic, and others are used merely for bragging purposes. The number of courts whose case-law is mentioned in the legal grounds of the Spanish Constitutional Court is even lower: Germany (14), Italy (8), the United States of America (7), Belgium (2), Canada (2), Slovenia (1), France (1) and the United Kingdom (1). These resolutions are those that will be analysed in the next section of this work. They make up a total of 34 resolutions, a small but especially relevant number, due both to the issues discussed and the methods and techniques used by the Spanish Constitutional Court to allow the influence of foreign precedents. 3

Methods and Techniques

As it has been highlighted by legal literature, the voluntary use of foreign precedents is both a judicial and political phenomenon.33 When deciding whether to use foreign precedents or not, in which cases their use is appropriate, or which are the relevant sources, courts (or judges individually in their opinions) reflect transcendental elements of their legal worldview. The study of the use of foreign precedents by the Spanish Constitutional Court allows to identify its legal worldview, marked by its moderate attitude towards comparative law, sometimes contradictory, as it is mostly used in a dialogical way, according to Choudry’s triad,34 and expressivist, according to Tushnet’s typology,35 which has identified the constitutional doctrines from Germany, the United States of America and Italy as its models since inception. For the purpose of systematization, resolutions have been classified according to the possible uses of foreign precedents that have been recognized by legal literature in other

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Until 2009, the House of Lords represented the court of last resort in the United Kingdom. Although all precedents are prior to 2009, the current denomination is preferred. Ran Hirschl, Comparative matters: the renaissance of comparative constitutional law, (Oxford University Press, Oxford 2014), p. 22. Sujit Choudry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Indiana law journal, 1999. Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 The Yale law journal (1999).

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jurisdictions: to support the conclusions reached, to contextualize or as an example, to facilitate a better understanding of the rule, to improve the interpretation, to establish a distinction, or for other purposes.36 The resolutions will be classified taking into account the main purpose of the use of foreign precedents. And as shown below, the Spanish Constitutional Court uses foreign precedents mainly to support its conclusions. 3.1 To Support the Conclusions Reached A first example of this purpose is the first judgment that alluded to foreign and comparative law, that is, judgment 4/1981, of February 2. The procedure was focused on the new regulation of local public administrations, but the real issue was to elucidate who was in charge of exercising the constitutional review over legislative acts passed before the enactment of the Spanish Constitution in 1978, whether the Constitutional Court or the ordinary courts. References to comparative law can be found in the arguments of the Attorney General’s Office and also in the legal grounds. The Court, in addressing its jurisdiction to review the constitutionality of legislative acts prior to the Spanish Constitution of 1978, reaffirms itself in the favourable decisions of the Italian and German Constitutional Courts. This is a clear example of the use of foreign precedents in order to support a previously reached conclusion. The Court affirms its jurisdiction to review antinomies between constitutional and preconstitutional rules, and leans on similar decisions taken by the Italian and German Courts, “for the sake of completeness”. In the case of the Italian Court, the judgments referred to are judgments No. 1, of 14 June 1956, No. 40, of 27 June 1958, and No. 1, of 27 January 1959. The Spanish Constitutional Court did a comparative exercise and clarified that the Italian Constitution does not contain a derogatory clause and that the Italian Court acknowledged its jurisdiction from the beginning, although not exclusively, evolving towards this exclusive nature after the second above-mentioned resolution. The Spanish Court also took into account the decisions of its German “sibling”, as supreme interpreter of a Constitution that does contain a derogatory clause. It mentions the judgments of 24 February 1953 and 5 August 1966 of the Karlsruhe Court, in which the court affirms and exercises its capacity to resolve direct constitutional challenges against preconstitutional legislative acts. This is one of the few occasions in which foreign precedents are used to resolve an issue related to sources of law. Much more common is the use of the dialogical technique to reaffirm its decision, as in the first of the examples 36

Lorne Neudorf, Taking Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern Approach to Statutory Interpretation, Statute law review (2017).

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related to fundamental rights. Judgment 36/1982, of June 16, which dismissed the appeal for protection (recurso de amparo) filed by a union of education workers in Madrid against an administrative prohibition of assembly in a public place and the confirmatory ruling for not meeting the 10-day deadline to notify the authorities required by Act 17/1996. The Attorney General’s Office mentioned the influence of the Italian Constitution over the article 17 of the Spanish Constitution. The Court states that no fundamental right is unlimited and that the notification to the administrative is established by article 21.2 as a prerequisite to exercise the fundamental right to assembly. The organizers did not fulfil this requirement, hence the Court could not protect the illegal exercise of a fundamental right. The Court supports this decision on judgment No. 54/1961 of the Italian Constitutional Court. Again, foreign precedents are used to reaffirm and legitimize a previously reached conclusion. The multiple dialogical exercise contained in judgment 114/1984, of November 29, which dismissed an appeal for protection in relation to a redundancy procedure based on the recording of a phone conversation without the appellant’s knowledge, is much more interesting. The appellant claimed that this practice was forbidden by comparative law, referring to the French and Swiss Criminal Codes. On this occasion, the Spanish Constitutional Court resorted to precedents established by the American, French and Italian highest courts. First, the Court clarified that there is no separate fundamental right in the Spanish legal system that precludes the use of illegal evidences in judicial procedures, but that the eventual violation of fundamental rights in judicial procedures should be assessed on a case-by-case basis. The Court leant on the legal doctrine established by the Supreme Court of the United States in United States v. Janis (1976), by quoting this judgment literally. The American legal system does not admit evidentiary material that violates the iv Amendment to the Constitution, not because a subjective constitutional right is recognized, but because it represents a constitutional violation. The Court continued to use comparative law and foreign precedents to resolve issues related to unlawful evidence and the fundamental right to a fair judicial procedure (art. 24 of the Spanish Constitution). It stated that a part of the French legal literature supports that evidenced obtained by illegitimate recording of telephone conversations should be considered void, referring to the judgment of the Court of Cassation of 18 March 1955. It also stated that, in Italy, this issue was resolved by judgment No. 34 of its Constitutional Court. Both foreign precedents were referred to for purposes of distinction. The Spanish Constitutional Court separated from them due to the different nature of the problem: the Court did not have to solve the general problem of unlawful evidence, but the possible use of fundamental rights as an instrument of resistance.

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The Court recalled this doctrine in judgment 282/1993, of September 20, which dismissed an appeal for protection that requested the nullity of the judgments that convicted the appellant for forgery of public documents and fraud offences. In its legal grounds, the Court referred to the doctrine of the Supreme Court of the United States on the deterrent effect and the fruit of the poisonous tree. Also, in order to reaffirm its interpretation, although in a functionalist manner, the Court referred to the Italian Constitutional Court, in its judgment 51/1985, of April 10, to clarify the limits of the parliamentarians’ immunity regarding the views expressed during the exercise of their functions. The Spanish Constitutional Court made a strict, systematic and teleological construction. It stated that prerogatives can only be justified for the purposes for which they are established, that is, protecting free parliamentarian discussion and decision-making, referring to the Italian Constitutional Court’s judgment No. 81, of 27 March 1975. The interpretation on the use of the German constitutional doctrine expressed in judgment 75/1985, of June 21, is functionalist, reassuring, and perhaps also genetic (considering the influence of German constitutionalism on the Spanish Constitution of 1978). This judgment suffers from a generalized defect in the use of comparative law by the Spanish court: the general references. The appellants argued that the resolution issued by the Provincial Electoral Council violated the fundamental right to political participation (art. 23 of the Spanish Constitution) by establishing a 3% electoral threshold in accordance with the electoral legislation. The Court rejected any interpretation that holds that the only possible electoral system is one that ensures a pure proportional representation. It stated that there is no such electoral system in comparative law and that the Spanish electoral threshold was inspired “very directly” by the Federal Republic of Germany. It recalled that the German threshold, despite being higher, was recognized as valid by the German Federal Constitutional Court on several occasions, because it pursues a legitimate purpose. Anyhow, the Spanish Constitutional Court did not mention any specific case in this judgment. The reference contained in judgment 23/1987, of February 23, is also general. The Court recognized that freedom of association can protect corporations, as the Italian and German Constitutional Courts had also done. It mentioned, in general, that the German Constitutional Court also took this decision to solve different issues. And then, the Spanish Court stated that, in case this could be admitted in our constitutional system, a case-by-case analysis would be necessary, in order to protect those situations where the fundamental right is violated, but not when its nature is economic. Such technique and use is observed in judgment 126/1987, of July 16, which dismissed multiple issues of unconstitutionality in relation to Act 5/1983, of

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June 29, on urgent budgetary, financial and fiscal measures. In order to consider whether a tax increase could violate the principle of legal security, the Spanish Court referred to a doctrine established by the German Federal Constitutional Court since its judgment No. 26, of 19 December 1961, which declared that retroactive tax rules were unconstitutional. However, still relying on the German Constitutional Court’s case-law, by quoting the judgment No. 27, of 19 December 1961, retroactive tax rules could be applicable if the legal relationship has not yet concluded. The Court supported this conclusion by referring to similar judgments from the Supreme Court of the United States, including the judgments of 11 January 1937, 21 November 1938, and 12 January 1981, in the cases U.S. v. Hudson, Welch v. Henry et alii and U.S. v. Darusmont, respectively. In the same way, judgment 89/2009, of April 20, repeated the reference to judgment No. 26 of the Court of Karlsruhe, of 26 December 1961, when recalling the doctrine about the violation of legal security in cases of retroactive tax rules that require citizens to contribute to the maintenance of public expenditure. This technique is also present in judgment 127/1994, of May 5, which dismissed the four appeals against Act 10/1988, of May 3, on private television broadcasting. In order to assess the alleged violations of the fundamental rights to freedom of expression and to conduct a business due to the facts that television broadcasting is described as a public service by the legislator and that the requirement to have a broadcasting licence is established as mandatory, the Spanish Constitutional Court relied on the case-law from the highest courts of the United States, Italy and Germany. It mentioned the decisions in the cases Red Lion Broadcasting Co et al. v. Federal Communications Commission, No. 395.US.367, of 9 June 1969, and Columbia Broadcasting System v. Democratic National Committee, No. 412.US.94, on 29 May 1973, to declare that broadcasting licences are not a privilege. Then, it referred to judgment No. 826, of 13 July 1988, from the Italian Constitutional Court, and to the judgment of the German Constitutional Court, of 4 November 1986 (BVerfGE 73, 118). Both judgments addressed the need to ensure effective protection of pluralism in informative services. A similar use can be found in judgment 10/2002, of January 17. The Court established that hotel rooms could be considered as places of residence. They are suitable for the development of the private life of guests; hence, constitutional protection (art. 18.2 of the Spanish Constitution) should extend to hotel rooms. The Court stated that this decision is shared by other countries’ case-law, quoting Stoner v. California, 376 U.S. 483. The reading of the last three judgments analysed also shows functional and dialogic interpretations in support of previously reached conclusions. In

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judgment 163/2001, of November 2, the Court stated that demanding guarantees is common in other neighbouring countries, and that it was recognized as constitutional by the German Federal Constitutional Court, quoting its judgments of 16 July 1998 (BverfG, 2 BvR 1953/95, 16.7.1998, 34), 12 October 2004 (BverfG, 1 BvR 2130/98, of 12.10.2004, 86) and 24 February 1971. In judgment 180/2013, of September 17, the Court rejected that the mere membership in a political party could be a reason to recuse a judge of the Constitutional Court, as opposed to ordinary judges. The Court resorted to comparative law to check this differentiating element in the legal systems of Italy, Portugal and Germany. The Federal Constitutional Court of the latter declared in its judgment of 11 August 2009 (2 BvR 343/09) that the political experience of its members enriches their case-law. And in its judgment 42/2014, of March 25, in reviewing the constitutionality of the sovereign political and legal subject of the people of Catalonia, as well as “the right to decide of the citizens of Catalonia”, the Spanish Constitutional Court rejected that this right could be granted to a part of the Spanish people, because this would be contrary to the indivisible unity of the Spanish fatherland (art. 2 of the Spanish Constitution). Hence, a Comunidad Autónoma cannot unilaterally convene a secession referendum. The Court supported this conclusion by referring to the judgment of the Supreme Court of Canada of 20 August 1998. 3.2 To Facilitate a Better Understanding This section highlights cases related to diplomatic immunity, such as judgment 107/1992, of July 1, which partially accepted the appeal for the violation of the fundamental right to access to justice and to a fair trial, particularly the right to the execution of a judicial decision regarding the immunity from execution of the property of another State. The matter required a reference to public international law in accordance with Spanish civil procedural law (article 21.2 of the Organic Law of the Judicial Power). And, in order to interpret that article, the Court took into account the practice of other legal systems, verifying whether those legal systems allowed courts to implement acts requiring the expropriation of properties. It mentioned the case Socobel in Belgium, United Arabic Republic v. Ms. X in Switzerland and Eurodif Society v. the Islamic Republic of Iran in France. It stated that Austria and the Netherlands also recognized this practice and it provided a detailed analysis on the judgment of the German Federal Constitutional Court of 13 December 1977, which established that there was no general rule in public international law granting absolute immunity concerning this issue. This judgment was taken into account again, together with the decision of the British House of Lords, of 12 April 1984, in the case Alcolm Ltd v. the Republic of Colombia, when assessing the expropriation of the Embassy’s

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current accounts. Both cases mentioned were contrary to this measure, and the Spanish Constitutional Court shared the same conclusion. This issue was also addressed in judgment 292/1994, of October 27, which was also favourable to the appellant. The Court reiterated its doctrine and added the judgment of the German Federal Constitutional Court, of 12 March 1983, in order to reaffirm the absence of a rule granting absolute immunity to States in the execution of judicial decisions, even if they are not final. Or as in judgment 140/1995, of September 28, which rejected the appeal against a judgment from an appealing court that had confirmed the first instance court’s order to evict a diplomatic agent. The Court recognised as legitimate this immunity, resorting to the case-law of other States; and mentioning specifically the jurisprudential doctrine of the Italian Court of Cassation in its judgment of January 18, in the case De Meeüs v. Forzano, and the Italian Constitutional Court, in its judgment of 18 June 1979. As an example of the use of comparative law to facilitate a better understanding, it is also necessary to mention judgment 232/1993, of July 12. The issue discussed was whether the information published by a media company about statements of a third party that violated the fundamental right to honour could constitute a violation of this fundamental right as well. The Court states that the appellant argued that the doctrine on neutral reportage established by the Supreme Court of the United States in New York Times v. Sullivan should be applied, and agrees with the appellant on the groundbreaking nature of this approach. It is also worth mentioning judgment 91/2000, of March 30. It granted protection against the extradition of the appellant to Italy decided by the Audiencia Nacional. The Constitutional Court observed the existence of an absolute core in the fundamental right to a fair trial (art. 24.2 of the Spanish Constitution), which requires courts to assess the impact of the actions from foreign States’ public authorities. And it quoted the judgment of the German Federal Constitutional Court, of 2 June 1992, and the judgment of the Italian Constitutional Court, of 25 June 1996, which declared void the extradition to the United States of a person sentenced to death. 3.3 To Contextualize The best example of this use is judgment 39/2002, of February 14, in which the Court declared void the use of “the national law of the husband at the time of the celebration of marriage” as a basis to decide which law applies to the personal relationships between spouses. The Spanish Constitutional Court states that it has always reacted against discrimination against women, aligning itself with the case-law from the European Court of Human Rights, the Court of

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Justice of the European Union and other constitutional courts. It alludes to the judgments of the Federal German Constitutional Court, of 22 February 1983, and of the Italian Constitutional Court, of 26 February 1987, which declared void similar provisions as those discussed in this case. This would also be the case of judgment 140/2016, of July 21, which includes references to a foreign precedent in a similar manner. The Spanish Constitutional Court recognizes that it has used the doctrine of the “chilling effect” as a canon to balance the principle of proportionality in a strict sense. Following the appellants’ submission, it observes that this doctrine came up in the case of the Supreme Court of the United States, Wieman v. Updegraft, 344 US 183, in 1952. 3.4 To Establish a Distinction There are quite a few cases in which the Court has used foreign precedents by applying the distinction technique. For instance, judgment 19/1988, of February 16, which dismissed an issue of unconstitutionality on article 91 of the Criminal Code, amended by Organic Law 8/1983. The ordinary court’s ruling raised several problems concerning individual and subsidiary responsibility, in concluding that the new wording could be contrary to the principle of proportionality of the criminal punishment. In its reasoning, the ordinary court referred to comparative law, including judgment No. 131 of 1979 of the Italian Constitutional Court. The Spanish Constitutional Court includes a comparative analysis study, but warns that “mere legislative comparison can not serve as a basis for our judgment”. It notes that alternative custodial sentence is operative in legal systems with which Spain shares constitutional principles (such as Germany, Austria and Switzerland). And, more importantly, it establishes a distinction with the Italian precedent referred to by the ordinary court; in the Italian case, the criminal provision had established a maximum length of 3 years of imprisonment, compared to 6 months according to the Spanish provision. Furthermore, in the Italian legal system, an administrative body is in charge on allowing instalment payments of the fine; in the Spanish legal system, this power is granted to a judicial authority. Another example is found in judgment 227/1988, of November 9, on the constitutionality of several standards for the development of water law. The Court assessed an alleged violation of the prohibition against arbitrary expropriations. Some of the provisions could limit individual capacity to make use of private water resources. The Court cited a judgment of the German Federal Constitutional Court, of 15 July 1981, to state that, in this case, it is not possible to talk about a deprivation of an individual capacity that should be compensated.

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Judgment 127/2000, of May 16, which dismissed an appeal lodged by a person convicted for collaborating with an armed group, contains a clear exercise of distinction, since this was not a matter of police interrogation without the presence of a lawyer. The Court mentioned the judgment of the Supreme Court of the United States, Miranda v. Arizona, 384 U.S. 436, of 1966, although this reference seems unnecessary, because the Court applied a similar doctrine from the European Court of Human Rights. Finally, it is necessary to mention judgment 12/2008, of January 29, which has been already referred to. In its legal grounds, the Court made a generic reference to the case-law from the Italian and French Constitutional Courts, provided by the parties, and it warned about a key difference between those legal systems and the Spanish one: the breadth of the constitutional mandate to remove any obstacles that hinder the full development of material equality (art. 9.2 of the Spanish Constitution). The Court did this statement but specified that “it does not want to do any assessments that do not concern the Court”. 3.5 To Improve the Interpretation In its judgment 65/1986, of May 22, the Court rejected an appeal against the disproportionate sentence imposed for committing a felony of embezzlement of public funds. On this occasion, the reference is, in general, to the case-law of the German Federal Constitutional Court, and for illustrative purposes on a different issue from the object of the judgment: whether there are other constitutional provisions, different from those dedicated to fundamental rights and public freedoms, protecting the principle of proportionality of criminal punishment. Much more relevant is judgment 198/2012, of November 6, which dismisses an appeal against Act 13/2005, of July 1, which amended the Civil Code in relation to the right to marriage. This is the judgment where the use of foreign and comparative law is higher both in quantitative terms (there are references to rules from 17 legal systems) and qualitative terms. The Spanish Constitutional Court resorted to the doctrine of the “living tree”, an expression coined in the case Privy Council, Edwards v. Attorney General for Canada, of 1930, also referred to by the parties, as recorded in the background information. The Spanish Constitutional Court states that this doctrine was used again by the Supreme Court of Canada in its judgment of 9 December 2004, also on same-sex marriage. The number of comparative law elements taken into account could lead to the conclusion that there was a generalized tendency towards “bricolage”, which does not have to be necessarily negative, as Tushnet warned. However, a functional interpretation can also be observed in the use of evolutionary interpretation. According to this technique, the Constitution should be construed considering the social reality, but without attributing a direct normative value to it.

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Comparative law is included in the analysis of the near socio-cultural environment. And in its observation, the Court quoted judgments from the Supreme Judicial Court of the State of Massachusetts (Goodridge v. Department of Public Health, 2004) and the Slovak Constitutional Court. judgment 199/2013, of December 5, is also very relevant. It dismissed the appeal against an alleged violation of the fundamental rights to privacy and to a fair trial (arts. 18.1 and 24.2 of the Spanish Constitution) due to the fact that a dna sample taken without a warrant was valued as an incriminating evidence. When assessing whether the dna test carried out without a warrant could constitute a violation of the right to privacy, the Court concluded that this was not the case, because the information obtained hardly went beyond a neutral identification. In a similar vein, the Court referred to the judgment of the Supreme Court of the United States in the case Maryland v. King, of 3 June 2013. This was a leading case, which established a precedent later quoted in judgments 14/2014, 15/2014, 16/2014 and 23/2014. 3.6 Other Uses In its judgment 237/2005, which accepted the appeals filed by Rigoberta Menchú, among others, and despite not providing foreign precedents, the Court bitterly criticized the “cherry picking” done by the Supreme Court of Spain in order to support its restrictive interpretation of universal jurisdiction, requiring a link with Spanish national interests. To endorse this interpretation, the Supreme Court relied on judgments from the Belgium Court of Cassation and the German Federal Constitutional Court. However, the dissenting judges at the Supreme Court submitted later resolutions of the German Federal Constitutional Court in which the Court overruled this precedent. 4 Conclusions The Spanish Constitutional Court refers to comparative and foreign law very moderately, usually guided by functional and dialogical practices, in order to achieve a better understanding of the Spanish fundamental law. All parties participating in constitutional procedures accept and use this instrument, as it has been recognized by former constitutional judges, who do not hesitate to use it in order to support their opinions (sometimes just for merely decorative purposes).37 37

Luis López Guerra, Contribution to a Constitutional Court Judges Roundtable, 3 International journal of constitutional law (2005).

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These references to comparative and foreign law, especially foreign precedents, are used as persuasive authorities, elements that should not be considered as strange. Glenu observed, in his seminal paper on this matter, that the persuasive authority is a typical element of Western legal traditions, just as understanding law as a result of a process of enquiry.38 All European legal systems and, consequently, all legal systems established after the process of European colonization, are the result of the reception, the influence or even the borrowing of legal provisions or institutions from other legal systems. Despite the reaction of Nation-States during the 19th Century, trying to ignore or even to condemn this reality (for instance, the prohibition to refer to foreign sources and legal literature included in the Swiss Civil Code), and the prevalence of the positive theory of law during the 20th Century, the limitations of considering law as a product created exclusively by the State, and even as a system where States have the leading role, are increasingly evident. These phenomena inevitably cause distortions and feed resilience against any kind of influence from elements external to the domestic legal system. And this resilience is revealed when analysing the use of comparative law by constitutional interpreters, because of the conception of the constitution as a product eminently national, which expresses the history, tradition, evolution and socio-political characteristics of a nation. This idea is founded on a positive concept of the constitution, “a conscious decision, which the political unity reaches for itself and provides itself through the bearer of the constitution-making power”, according to the classic Carl Schmitt’s definition.39 Hence, the link between nation and constitution would be modified by the constitutional interpretation that includes foreign elements. This is the first of the three positions identified by Vicky Jackson in a continuing spectrum that gathers the reactions against transitional constitutionalism by Domestic Constitutional Law and its interpreters.40 The first position basically consists in showing resistance or indifference: only those provisions established according to the domestic process of law-making must be taken into account to interpret laws. Those legal systems that are somewhat open to international and foreign legal systems would be on the other side of the 38

39 40

H. Patrick Glenu, Persuasive Authority, 32-2 McGill law journal, (1987). After noting the relevance of the reception process in Western legal systems (whether from Roman Law or others) and identifying its essential elements, the author points out how this phenomenon continues to be an active part of Nation-States’ systems. Law is, and always has been, something to be discovered, despite State efforts towards its absolute rationalization. Carl Schmitt, Teoría de la constitución (Alianza Editorial 2003), p. 45 et seq. Vicki Jackson, Constitutional engagement in a transnational era (Oxford University Press, 2010), p. 18.

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spectrum. Finally, there would be an intermediate position, including the vast majority of political realities, which consists in engaging with transnational constitutionalism through instruments such as comparing rules from other legal systems, provided that there is an open question under discussion and counting on the relevant knowledge of the lawyers. Data collected in these chapters prove that the Spanish Constitutional Court is in this “middle” area, only moderately open to take into account foreign precedents. However, the Spanish Constitutional Court insists on showing a position closer to resistance or indifference, including statements such as “the mere legislative comparison can not serve as a basis for our judgment”, in judgment 19/1988. In judgment 12/2008, of January 29, the Court seems to regret having done a comparative analysis and states that the Court “does not want to do any assessments that do not concern the Court”. And in that same judgment, as so many other times, the Court states that only the Spanish Constitution represents the canon of constitutionality. However, it has not been able to avoid using references to foreign and comparative law, specially to foreign precedents. However, in order to better understand this trend, it is convenient to take into account not only the general attitude of the Spanish Court towards comparative law, or the objectives or techniques used by the Court to introduce foreign and comparative law, but how it uses these references. Authors such as Choudry and Tushnet have studied this matter. Choudry identified three interpreting modes: universalist, genealogical and dialogical.41 The universalist mode understands that all constitutional courts are part of a process of identification, interpretation and application of a common set of rules, which are the result of a universal conception of constitutional guarantees. There is a unity in the diversity of rights and freedoms spread beyond States’ borders. Hence, judgments from other constitutional jurisdictions would illustrate the application of these rights in specific cases, facilitating next interpretation exercises in similar circumstances. The genealogical mode justifies the use of foreign constitutional doctrines in historical reception relationships between constitutions. This happens mainly in cases of colonization, also in constitutional terms, such as Canada or Austria by the United Kingdom. These legal relationships have been very profound, to the point of sharing the same Head of State or cassation court.42 41 42

Sujit Choudry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Indiana law journal, 1999. The British Judicial Committee of the Privy Council exercised this jurisdiction in Australia until 1986, and in Canada until 1949.

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These are truly cases of direct reception, excluding cases of “genetic” influence in the process of constitutional design and drafting. Finally, the dialogical mode compares rules and facts from several jurisdictions, identifying similarities and differences. This process would generate, as a logical conclusion, the acceptance or rejection of decisions reached within the jurisdictions compared. In this way, the comparative methodology would allow a deeper understanding of the own legal system. On the other hand, Mark Tushnet provided a systematization of the different ways in which a foreign constitutional example can assist the process of learning and deepening in the understanding of constitutional experience: functionalism, expressivism and a third process that he coined as “bricolage”.43 According to the first method, constitutional provisions perform functions in political systems. The comparative study of the different constitutional provisions that perform similar functions in other political systems would allow to determine which provision is the most effective performing the same function. Thus, it will serve as a guide for improving that function in other systems. The expressivist perspective starts from the same argumentative core that those positions rejecting the use of comparative law by the constitutional jurisdiction due to the strong identity linkage between the Constitution and the nation as a political subject, but in this case, that would be an element for a process of self-knowledge: the reflection in the eyes of others would allow to recognize one’s own identity. Finally, Tushnet theorized about the existence of a third methodology for constitutional review in the Supreme Court of the United States, which he coined as “bricolage”, referring to anthropologist Claude Lévi-Strauss’ works. It basically consists on building something new from combining any kind of materials previously found. Whereas the functionalist interpreters directed their search towards constitutional provisions that perform similar functions, and the expressivist ones wanted to deepen their knowledge about their own constitutional orders, the “bricolage” interpreters do not pursue these objectives. The dynamics of the Constitutional Court have been mainly dialogical. In almost every comparative exercise, the Spanish Court seeks to deepen its knowledge on the Spanish fundamental law, sometimes encouraged by the parties in the constitutional procedure, sometimes acting on its own. And it is also common to find the functionalist method leading this practice, by studying foreign provisions similar to the Spanish Constitution’s provisions in order to check possible interpretations. Surprisingly enough, thus far, the Court has dodged criticism for using these resources, although it could be accused of 43

Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 The Yale law journal (1999).

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having relied on “bricolage” in some of its judgments. However, it is difficult to state that the use of foreign and comparative law in the judgments analysed lacks teleological conscience. Indeed, as it was previously shown, that conscience looks to support the Court’s conclusions in most of the resolutions. Although the use of comparative and foreign law by the Spanish Constitutional Court could be statistically negligible, its doctrinal relevance is beyond doubt. This is a proof of several phenomena related to the evolution of the lawmaking procedures and of the position acquired by jurisprudential law in the Spanish legal system. Methodological questions may arise, regarding how law is created by courts, especially by the Constitutional Court, regarding the use of foreign precedents and comparative law by courts, and regarding the convenience and consequences of these uses. These questions have barely been addressed by Spanish legal literature. It could be concluded that this use is peacefully accepted, considering the apparent minimal attention that it has deserved. And this implicit acceptance could not be more surprising in view of the heated debate existing in other jurisdictions.44 However, there are many challenges to solve, from issues regarding interpretation techniques to its convenience or legitimacy; not to mention the recognition and regulation of this “marriage of convenience” between the Spanish Constitutional Court and foreign and comparative law. Acknowledgements I would like to acknowledge professor Rafael Bustos Gisbert’s generosity for offering me the opportunity to make this contribution, as well as professor Giussepe Franco Ferrari’s kindness for accepting this proposal. Bibliography Robert Alexy, Teoría de los derechos fundamentales (translation and introductory study by Carlos Bernal Pulido, Centro de Estudios Políticos y Constitucionales, 2 ed., Madrid).

44

The best example is, perhaps, the debate around Supreme Court’s transnational constitutional engagement, summed up in the dialogue between late Judge Antonin Scalia and Judge Stephen Breyer. Please see Norman Dorsen, The relevance of foreign legal materials in U.S. constitutional cases: A conversation between Justice Antonin Scalia and Justice Stephen Breyer, 3-4 International journal of constitutional law (2005).

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Martín Bassols Coma, El tribunal de garantías constitucionales de la ii república: la primera experiencia de la justicia constitucional en españa (Boletín Oficial del Estado, 2010). Mauro Cappelleti, Judicial Review in Comparative perspective, 58 California law review, 1017 (1970). José Luis Cascajo Castro, La figura del voto particular en la jurisdicción constitucional española, 17 Revista española de derecho constitucional (1986). Sujit Choudry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Indiana law journal (1999). Luis María Díez-Picazo, Notas sobre el blindaje de las normas forales fiscales, 3 Indret, revista para el análisis del derecho (2010). Luis María Díez-Picazo, sistema de derechos fundamentales (Civitas Thomson Reuters Aranzadi, 2013). Norman Dorsen, The relevance of foreign legal materials in U.S. constitutional cases: A conversation between Justice Antonin Scalia and Justice Stephen Breyer, 3-4 International journal of constitutional law (2005). Victor Ferreres Comella, The European Model of Constitutional Review of Legislation: Toward Decentralization?, 2:3 International journal of constitutional law (2004). Victor Ferreres Comella, The constitution of Spain: a contextual analysis (Hart, 2013). Victor Ferreres Comella, The Spanish Constitutional Court: Time for Reforms, in Constitutional courts: a comparative study, jcl studies in comparative law (Wildy, Simmonds & Hill Publishing, 2010). Victor Ferreres Comella, Una defensa del modelo europeo de control de constitucionalidad (Marcial Pons, 2009). Ángel Garrorena Morales, La sentencia constitucional, 11 Revista de derecho político (1981). Rex D. Glensy, Which Countries Count? Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45-2 Virginia journal of international law (2005). H. Patrick Glenu, Persuasive Authority, 32-2 McGill law journal (1987). Tania Groppi, and Marie-Claire Ponthoreau, The use of foreign precedents by constitutional judges (Hart, 2013). Peter Haberle, Role and Impact of Constitutional Courts in a Comparative Perspective, in The future of the european judicial system in a comparative perspective (Nomos, 2006). Ran Hirschl, Comparative matters: the renaissance of comparative constitutional law, (Oxford University Press, Oxford 2014). Vicki Jackson, Transnational Challenges to Constitutional Law: Convergence, Resistance, Engagement, 35 Federal law review (2007). Vicki Jackson, Constitutional engagement in a transnational era (Oxford University Press, 2010).

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Heinz Klug, The constitution of South Africa: a contextual analysis (Hart, 2010). David S. Law and Mila Versteeg, The Declining Influence of the United States Constitution, 87 New York university law review (2012). David S. Law, Generic Constitutional Law, 23 University of San Diego public law and legal theory research paper series, (2004). David S. Law and Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 California law review (2011). Adam Liptak, U.S. Court Is Now Guiding Fewer Nations, N.Y. Times, September, 17, 2008. Luis López Guerra, Contribution to a Constitutional Court Judges Roundtable, 3 International journal of constitutional law (2005). Lorne Neudorf, Taking Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern Approach to Statutory Interpretation, Statute law review (2017). Pablo Pérez Tremps, Tribunal constitucional y poder judicial (Centro de Estudios Constitucionales, 1985). Marta Requejo Isidro and Marta Otero Crespo, Comparative Law before the Spanish Private Law Courts in the 21st Century, in Courts and comparative law (Oxford University Press, 2015). Francisco Rubio Llorente, Seis tesis sobre la Jurisdicción constitucional en Europa, 35, Revista española de derecho constitucional (1992). María Soledad Santana Herrera, El Derecho comparado en la jurisprudencia del Tribunal Constitucional español, 14 Revista de derecho constitucional europeo (2010). Carl Schmitt, Teoría de la constitución (Alianza Editorial 2003). Anne Marie Slaughter, Judicial Globalization, 40 Virginia journal of international law (2000). Anne Marie Slaughter, A new world order, (Princeton University Press 2004). Pedro Tenorio, El Derecho comparado como argumento de las decisiones del Tribunal Constitucional español, 108 Revista española de derecho constitucional (2016). Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 The Yale law journal (1999). Giuseppe De Vergottini, Más allá del diálogo entre tribunales. Comparación y relación entre jurisdicciones (Preface by J. García Roca, Civitas-Thomson, 2011). Juan Antonio Xiol Ríos, El diálogo entre Tribunales in Tribunal constitucional y diálogo entre tribunales, xviii jornadas de la Asociación de letrados del Tribunal Constitucional (Tribunal Constitucional y Centro de Estudios Políticos y Constitucionales, 2013).

The Use of Comparison in the Swiss Federal Tribunal Case Law Sergio Gerotto 1 Introduction The purpose of this work is to investigate how the Swiss Federal Tribunal uses comparison in its daily activity; to what extent, how and for what purposes, henceforth, it refers to the foreign case law, legislation and doctrine, or comparative doctrine as well. Hence we’re not taking a comparative view on this issue, by the way much studied abroad, which will rather be the intent of the editors of this volume. 2

Methodological Preambles

The rulings of the Federal Tribunal taken into consideration by this work are slightly less than 300 through a time span ranging from 1990 (included) to July 2017. Actually, modifying the criteria used for their identification, the number of these rulings might have been higher or lower. The surge, to a certain degree the refinement, of technological instruments opened up public readership to a lot of information previously available only to professionals. Since the Federal Tribunal published on the web its judgments the collected case law available for reference hugely increased. In 2000, the year in which the Swiss Federal case law shifted from analogue to digital age, only 3,8% of the overall rulings of the Swiss Supreme Court was published on paper in the official body of the Federal Tribunal rulings (dtf),1 whereas 51,8% was indeed published on the

1 The abbreviation dtf is used regularly to refer to the official corpus of the rulings of the Federal Tribunal, together with three information: volume, consisting in a progressive number that identifies the year of reference (number 132 corresponds to 2006); part, a Roman number from i to v that corresponds to a division by subject (I constitutional law, including the conflicts of jurisdiction; ii administrative law and international public law, including the proceedings that are based in public law; iii civil law, execution of writs and bankruptcies; iv criminal law; v social insurances law); initial page of the ruling, to which can be added those from which an excerpt is quoted or a particular content. dtf 124, i, 49 is thus a judgment concerning constitutional or administrative law rendered in year 1998. Hereunder we

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_016

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web.2 Accordingly the consequences of this evolution are positive on one side, since the material available to the legal scholar is increasingly far-reaching and easier to find than formerly of course, but negative on the other side since the extensive scope of the collected case law available online presently only allows working through a selection made, as is the case with databases, with key terms connected by logical operators. As a matter of fact, if it is not impossible to examine in full the collected case law of Courts with little activity, by choice or by nature (such as the French Conseil constitutionnel), this is undeniably true for the Swiss Federal Tribunal. The twofold nature of both last resort jurisdiction and Constitutional Court (for the scope and to the extent expounded hereunder), results in boundless Federal Tribunal case law. In 2005, five years after what we called the shift to the digital era, 73,1% of Federal Tribunal rulings was available on the web, i.e. a total of 3363 judgments.3 No doubt therefore that a combing through is essential. The filters that were decided in order to identify the judgment in which the Federal Tribunal used the comparison are composed of a set of terms and phrasings that, in ouWr opinion, used in the ruling could point out a possible reference, in a number of forms, to foreign law, intended as case law, sources of law or doctrine. Henceforth it was agreed to identify the rulings in which for instance the phrasing “giurisprudenza tedesca”4 turned up, running the same research in the other official languages of the Confederation as well, namely

will use this reference for quotation, which in some excerpts of the judgments of the Federal Tribunal may appear in German (bge) or in French (atf). 2 Rapporto sulla gestione 2001, Rapporto d’attività del Tribunale federale e del Tribunale federale delle assicurazioni 2001, p. 5. The report can be read on the website of the Federal Tribunal at the address http://www.bger.ch (annual reports). 3 Rapporto sulla gestione 2005, Rapporto di attività del Tribunale federale e del Tribunale federale delle assicurazioni 2005. 4 The other terms and expressions used are: amerikanische Recht, Bundessverfassungsgericht, Conseil constitutionnel, comparazione, comparaison, Corte costituzionale, Corte di cassazione, Corte suprema, deutsche Recht, deutsche Rechtsprechung, diritto americano, diritto comparato, diritto francese, diritto germanico, diritto italiano, diritto statunitense, diritto tedesco, droit allemand, droit allemanique, droit américain, droit comparé, droit français, droit italien, englisches Recht, französisches Recht, französische Rechtsprechung, italienisches Recht, ital­ ienische Rechtsprechung, Komparation, jurisprudence allemande, jurisprudence américaine, jurisprudence française, jurisprudence italienne, Rechtsvergleichung, Corte suprema, Verfas­ sungsgerichtshofes. The results obtained using the German term Vergleich, which in addition to comparison also means transaction, standing for agreement, entente, were not included. This polysemy in fact makes it really hard to differentiate the rulings in which the term is used with one meaning or the other. In order to be as clear as possible, when recalling references to foreign law, we have decided not to translate Federal Tribunal's literal quotations.

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using the phrasings “jurisprudence allemande” and “deutsche Rechtsprechung”.5 The result arising from the application of these filters was carefully explored in order to determine the cases to be comprehended as real comparison, namely as free referencing to foreign doctrine, legislation or case law. As a matter of fact it was agreed to consider just the cases in which the Federal Tribunal did not need to use the foreign law – such as for instance private international law –, and nevertheless did so, for the reasons that will come out hereunder. Therewith we’re not denying the need to resort to comparison in solving private international law issues sometimes, quite the opposite, in these cases comparison in our view is pretty much embedded in the function of the courts, so much so that the Swiss Federal Tribunal urged many times the lower courts to resort to the services of the Institut suisse de droit comparé of Lausanne to explain the meaning and the scope of foreign law in the event of its enforcement.6 However in our opinion in order to measure how much weight carries in its case law comparison for one court it is more beneficial to examine the extent to which it is used when it is not obliged to resort to it somehow. In the time span taken into account there is not much to say. The latest work that analysed with a method similar to the one we used the matter of foreign law influence on the case law of the Federal Tribunal dates back to 1992.7 Now, given that it explores thoroughly the entire collected case law of the Federal Tribunal from 1875 to 1989, in our view focusing on the next period was suitable.

5 Actually there would also be a fourth language to consider, Romansch, spoken by around 37.000 persons, which is the official language of the Confederation in the relationships with citizens speaking that language (art. 70 c. 1 Cost.). However hitherto the Tribunal rendered only one ruling in Romansch (dtf 122, i, 93). The case concerned a town council that defended its autonomy pursuant to art. 189 c. 1 lett. b), which had drawn up its documents in Romansch. 6 dtf 124, i, 49, 52 “Si le juge veut appliquer le droit étranger et ne se satisfait pas des éléments que lui fournissent les parties, il met en oeuvre les moyens d’investigation qui sont à sa disposition. Lorsque les textes légaux, commentaires, recueils de jurisprudence, revues et autres ouvrages de doctrine disponibles ne fournissent que des indications insuffisantes, il peut s’adresser aux experts du for. Ceux-ci peuvent revêtir un caractère officiel, comme l’Institut suisse de droit comparé, à Lausanne (cf. RS 425.1), ou l’Office fédéral de la justice, à Berne. Le juge peut aussi recueillir des renseignements d’instituts étrangers ou auprès de personnes privées (professeurs de droit, par exemple) et d’experts étrangers, ainsi que le prévoit la Convention européenne dans le domaine de l’information sur le droit étranger (RS 0.274.161)”. Likewise dtf 121, iii, 436, 439. 7 A. Gerber, Der Einfluss des ausländischen Rechts in der Rechtsprechung des Bundesgericht, in aa.vv., Perméabilité des ordres Juridiques, Zürich, 1992, pp. 141–163.

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405

Role and Operation of the Federal Tribunal

In Switzerland justice is delivered primarily by the Cantons. Essentially the Cantons decide which authority is in charge of the enforcement, in first resort and in appeal, of the Federal law and of cantonal law. So we might call the system “cantonalised”, emphasizing by this adjective that in Switzerland there is a full-blown judicial federalism.8 Only recently, indeed, following a reform of the entire judicial system, did the features of the Swiss legal system change on this specific aspect.9 Apart from the changes, we can indisputably argue that the Federal Tribunal plays a dual role of Constitutional Court and of civil, criminal and administrative last resort jurisdiction.10 On one hand it enforces the federal legislation and ensures its uniform enactment by the lower authorities, on the other hand it ensures the compliance of the Federal Constitution and of Cantonal ones. Furthermore the Swiss constitutional legal system is currently partial due to a provision contained in the Constitution that, imposing to the 8

9

10

J.-F. Aubert, P. Mahon, Petit commentaire de la Constitution fédérale de la Confédéraztion suisse du 18 avril 1999, Zürich-Bâle-Genève, 2003, p. 1423. On the Swiss legal system and on the Federal Tribunal see: A. Auer, La juridiction constitutionnelle en Suisse, Bâle-Frankfurt, 1983; M. Hottelier, La justice constitutionnelle en Espagne et en Suisse, in F. Fernandez Segado (by), The Spanish Constitution in the European Constitutional Context, Madrid, 2003, pp. 983–1002; M. Schubarth, Bundesgericht, in D. Thürer, J.-F. Aubert and J.P. Müller (by), Droit constitutionnel suisse, Zürich, 2001, pp. 1071–1082; U. Zimmerli, Verfassungsgerichtsbarkeit, in Rev. dr. Suisse, 2002, i, pp. 445–458; W. Kälin, Justiz, in U. Klötli, P. Knoepfel, H. Kriesi, W. Linder e Y Papadopoulos, Handbuch der Schweizer Politik, Zürich, 1999, pp. 187–209; ID., Verfassungsgerichtsbarkeit, in D. Thürer, J.-F. Aubert and J.P. Müller, (by), Droit constitu­ tionnel suisse, cit., pp. 1071–1082. The unification of civil and criminal procedures is the last step of a reform aimed at enhancing the competences of the Confederation in the field of Judicial organization and ease the work of the Federal Tribunal taking away from it tasks that usually are not assigned to a Supreme Court. So two tribunals were set up, the Federal Criminal Tribunal, based in Bellinzona (Legge sul Tribunale penale federale, ltpf, of October 4 2002, RS 173.71) and the Federal administrative Tribunal (Legge federale sull’istituzione del Tribu­ nale amministrativo federale of March 18 2005, RS 173.30), based in San Gallo. Furthermore a new law was approved on the Federal Tribunal (Legge sul Tribunale federale, ltf, of June 17 2005, RU 2006, 1205), which will come into force on January 1st 2007 replacing the law on the judicial organization of 1943 (Legge federale sull’organizzazione giudiziaria, OG, of December 16 1943, RS 173.110). In some cases, the Federal Tribunal also delivers sentences in sole instance. So that is called a direct trial, or competence of full jurisdiction. The recent reform of the legal system deeply affected this aspect setting up new judicial bodies in the lower court, the Federal Criminal Tribunal and the Federal Administrative Tribunal, and limiting the cases in which the Federal Tribunal hears cases in sole instance (see art. 120 ltf).

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Federal Tribunal to enforce the federal laws and the international law, in fact excludes the possibility to inquire into the constitutional legitimacy.11 The Federal Tribunal is composed of thirty eight regular judges and nineteen alternate judges elected by the federal Assembly taking into account the ratio between the four languages spoken in Switzerland.12 In its turn, the Federal Tribunal is divided in seven panels of judges: first public law Court, second public law Court, first civil law Court, second civil law Court, Criminal law court, first Social law Court, second Social law Court. As a rule of thumb the sections decide with the three judge configuration; with five if the case raises a matter of principle, as well as if a cantonal law is questioned or the appeal concerns the right of referendum or initiative (meaning popular) within a Canton.13 The affair is submitted by a reporting judge, who institutes a ruling proposal, or asks for a clerk to submit it. Afterwards the case files are circulated among the judges of the panel, and if there are no divergences the affair is decided without public hearing, which becomes necessary, of course, if there are dissenting opinions.14 A public hearing, by virtue of the principle of disclosure of resolutions and votes,15 can be attended, unless otherwise provided, by the parties, the public and the press. The federal Tribunal only publishes the judgments considered as the most relevant with reference to the contents.16 So it avoids publishing judgments that deliver well-established judicial principles. The publishing is made by the clerks, who amend and anonymize the judgments destined to publication and to delivery to third parties. In the text of the published judgments the name of 11

Article 191 of the Constitution declares that “Federal laws and international law are determinant for the Federal Tribunal and for the other authorities in charge of law enforcement”. The French version maybe is more precise in exposing the prohibition to inquire into the Federal laws. In fact it claims that “le Tribunal fédéral et les autres autorités sont tenus d’appliquer les lois fédérales et le droit international”. Anyway the reason for this provision lies in the greater importance attached in Switzerland to the principle of the separation of powers and to direct democracy with respect to a complete and intense jurisdictional control of the standards. Actually, the control by the judges would inevitably confront with the control exerted by the electorate with the referendum. This fear is so real in Switzerland that the Parliament dismissed from the project of reform of the judicial system a proposal aiming at introducing the constitutional review of legislation (see Message concerning the total revision of the Federal judicial organization of February 28 2001 Official Federal Journal 2001, p. 3764, namely p. 3783). 12 See Message concerning the total revision of the Federal judicial organization, cit., p. 3839. 13 Art. 20 ltf. 14 Unlike other systems, however, the dissenting opinions are not disclosed. In 2005 during the proceedings 93 affairs were judged in a hearing versus the 3018 judged with the method of circulation of case files. Source Yearly report 2005, cit. 15 See art. 30 c. 3 Cost. 16 See artt. 57–64 Federal Tribunal Regulation, RS 173.110.131.

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the reporting judge is not disclosed and even less that of any dissenting judges. As a matter of fact the judgment is considered as the ruling shared by the whole Court, even when the decision is the result of a majority vote. As far as this research is concerned therefore we can argue that we cannot credit one judge or another with a more or less evident attitude to comparison. 4

The Perspective of the Swiss Doctrine

The Swiss doctrine dedicated little attention to the matter of the use of comparison by the Federal Tribunal. Indeed three authors covered this subject matter.17 Hardly can the reasons of this limited interest be determined. However setting aside doctrines’ approach in this concern, we can argue that the works on the subject highlight some key aspects of the matter at issue. Alexandra Gerber underlines that foreign law influenced the Federal Tribunal case law, definitely more than it occurred elsewhere, besides she also argues that the extent to which the observation of other legal systems actually oriented the rulings of the High Court of Lausanne can hardly be established.18 The author remarks that foreign law is definitely not capable alone to determine the judicial attitude within the Federal Tribunal; this is rather used as an additional support to strengthen a specific position.19 An additional clue would stem from the fact that the influence of foreign law is not brought into being only through a comparison carried out directly by the Federal Tribunal, but also, and maybe most of all, by reference to the scholarly literature that in its turn analyses the internal law with a sort of magnifying glass of comparison.20 Accordingly it would ensue that the Federal Tribunal would often be influenced unintentionally by foreign law, indeed this indirect influence would be even more powerful than the one determined by purposeful reference to foreign doctrine and case law.21

17

18 19 20

21

A. Gerber, Der Einfluss, cit.; F. Werro, La jurisprudence et le droit comparé, in aa.vv., Per­ méabilité des ordres Juridiques, cit., pp. 165–172; G. Walter, Die Rechtsvergleichung in der Rechtsprechung des Schweizer Bundesgerichts, in Recht – Zeitschrift fur juristische Ausbil­ dung und Praxis, 2004, 22, pp. 91–103. A. Gerber, Der Einfluss, cit., p. 141. A. Gerber, Der Einfluss, cit., p. 141. A. Gerber, Der Einfluss, cit., pp. 141–142. According to F. Werro, La jurisprudence, cit., p. 169 ss. it would be a mission of doctrine to clear the way for the acknowledgement of internal case law informing the judges as to the existence of other solutions to this or that problem, solutions found through the functional approach. A. Gerber, Der Einfluss, cit., p. 142.

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According to Gerhard Walter, the permeability of Swiss case law can be explained by the geographical, social and cultural situation of the country, as well as by some features of the legal system. Indeed, on one side the smallness of the country does not allow having a legal framework, or a case history, comparable with those of larger legal systems, which would make it to some extent essential to resort to foreign law; on the other side country’s linguistic parcelling would come into play for the tendency towards doctrine in the language used case by case. In addition to this some features of the legal system can somehow oblige to comparison, such as article 1 of protocol n. 2 of the Convention concerning the jurisdiction and the enforcement of the rulings in the field of civil and commercial law,22 or the Federal Law on courts in the field of civil law of March 24 2000,23 as well as the prohibition to inquire into the constitutional legitimacy of the federal laws, whose compatibility with Constitution however is explored, and here comes the comparative approach, by way of the parameter of the European Convention on human rights, signed by Switzerland. The only author who narrows down, at least partially, the breadth of the matter is Franz Werro. Even acknowledging that the Federal Tribunal attaches some degree of importance to foreign law, he argues that its use is only occasional and ancillary, and that the interest is limited almost exclusively to the legal systems considered close to the Swiss one.24 In other words, according to Werro we might not say that the Federal Tribunal uses foreign law systematically as an instrument of knowledge and interpretation of the Swiss law.25 5

The Use of Comparison by the Federal Tribunal from 1990 to 2017

The results of the analysis carried out with the above mentioned methods on the case law of the Federal Tribunal in the time span ranging from 1990 to 2017, 22 “The courts of each Contracting States shall, when applying and interpreting the provisions of the Convention, pay due account to the principle laid down by any relevant decision delivered by courts of the other Contracting States concerning provisions of this Convention”. Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Held at Lugano on 16 September 1988, that went into effect for Switzerland on January 1° 1992, RS 0.275.11. 23 Whose objective is to regulate “the competence by territory in the civil field, if there are no international connections”, art. 1 c. 1 Federal law on the territorial jurisdiction in the civil field, LForo, of March 24 2000, RS 272. 24 F. Werro, La jurisprudence, cit., pp. 165–166. 25 F. Werro, La jurisprudence, cit., p. 165.

The Use of Comparison in the Swiss Federal Tribunal Case Law

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clearly show that for the judges of the High Court of Lausanne referencing to foreign law is not an exception, as for example for other legal systems.26 Indeed, despite the limited volume of the sample of judgments with respect to the entire corpus of case law of the Federal Tribunal,27 a uniform distribution in the considered time span is observed. In other words, the Federal Tribunal does not seem to be resorting much to comparison, nevertheless it does so on a regular basis. Instead the breakdown by subject is uniform, due to the higher concentration (over 40%) observed in Section iii of the official body of rulings of the Federal Tribunal, namely the one collecting the judgments covering the civil law, foreclosure and bankruptcies. The Federal Tribunal therefore is not unresponsive to referencing in its case law to foreign regulation, doctrine or rulings. There are several reasons to explain this attitude. One reason might be the coexistence of many legal systems within a State legal system that only recently started pursuing uniformity more firmly (consider the unification of civil and criminal procedure), a condition that nearly standardizes the comparative approach; there is also the multilingualism of the official documents, which forces the judges quite often to compare the different versions of one provision in order to adopt the interpretation that best “fits” the case they are dealing with, or to confirm the one derived from one of the three versions (German, French, Italian) of a provision.28 Let us consider as well the proximity, not only geographical, of the legal systems that, for well-known historical reasons, are tied by a kinship degree tighter (Germany) or looser (France and Italy) with the Swiss. Unsurprisingly the Federal Tribunal rather refers to legal systems held closer, sometimes highlighting explicitly the existence of this kinship.29

26

Just consider Italy. In the Constitutional Court case law in point of fact it is extremely rare to find any referencing to foreign doctrine, legislation or case law. For the Constitutional Court these references represent an exception that can be explained with the greater attention paid to comparison by one judge or the other rather than with other reasons. Unsurprisingly reporting a judgment that represents one of this extremely rare cases of reference to foreign law was Antonio La Pergola, a fine scholar of comparative law prior to a Constitutional Court judge. This ruling (Const. Court 123/1980) references to a wellknown judgment of the US Supreme Court (Missouri v. Holland, U.S. Supreme Court 1920, 252 U.S. 416). 27 300 judgments in 27 years do not exceed 1% of the overall Federal Tribunal production. 28 See for instance dtf 121 iii, 125, 137 and dtf 123, iii, 24, 26–27. 29 “Etant donné l’étroite parenté existant entre le droit allemand et le droit suisse”, declares the Federal Tribunal in dtf 121, iii, 109, 116–117, “relativement au problème de l’assignation, rien ne s’oppose à ce que l’on applique en Suisse, mutatis mutandis, les principes susmentionnés pour régler la question de la révocation de l’assignation” (italics added).

410

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6 “Legal Formants” identified in the Federal Tribunal Case Law30 The analysis shows that the case law of the Swiss Federal Tribunal is permeable to all three legal formants: legislative, jurisprudential and scholarly opinion, with some preponderance of the latter. This does not mean that the Federal Tribunal has a preference for foreign doctrine and instead disregards case law and legislation; basically the Lausanne Judges are used to resort to internal doctrine to support their rulings, so for them it is quite normal to take a look across the border from time to time, insofar as they consider it necessary. Reading the case law of the Federal Tribunal quite often quotations can be found of doctrinal works of all sorts, ranging from PhD thesis, to handbooks, to monographs, treaties, encyclopaedias, down to articles; actually in our view the lack of references to doctrine constitutes an exception, not the opposite. Usually the reference is used to support a position of the Federal Tribunal,31 or to confirm the interpretation given to a specific legal institution,32 whereas it’s unusual to find 30

31

32

The definition “Legal Formants” refers to a well-known theory introduced by Rodolfo Sacco. Legal formants can be defined as the elements that constitute the living law of a country and that may vary in type and number from one country to another. Although it is impossible to define an exhaustive list of all the Formants, we can identified at least three of it: legislation, case law and scholarly interpretation. See R. Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II), 39 Am. J. of Comp. L., 1–34 (I) and 343–401 (II) (1991). For instance, in the field of applying the punishment pursuant to the Swiss criminal code (art. 231) for intentional injury to the case of deliberate hiv virus transmission the Federal Tribunal declares the following: “Christian Huber souligne notamment combien la simple infection, comme telle et considérée objectivement, porte atteinte à l’état normal d’une personne; il se réfère aussi à l’évolution de la jurisprudence allemande et cite l’avis de l’Académie des sciences des Etats-Unis d’Amérique; il relate un cas où il a été admis que l’infection hiv, à son stade asymptomatique déjà, constitue une atteinte à la santé (rsj 1989 p. 149 ss, en particulier p. 156 cas 6)”, dtf 116, iv, 125, 132. Once more, to define the criteria required to determine the notion of arbitration: “similar criteria are also applied in the Germanic law (Schlosser, in: Stein-Jonas, Kommentar zur Zivilprozessordnung, 20a edizione, Tubinga 1988, note introduttive al § 1025, p. 82 ff.; Baumbach/Lauterbach/ Albers/Hartmann, Zivilprozessordnung, 49a edition, Monaco 1991, p. 1932) and in the Italian law for the distinction between formal arbitration and informal or free arbitration (Carpi/Colesanti/Taruffo, Commentario breve al Codice di procedura civile, Padova 1984, nota 7 ad art. 806; Marani, In tema di arbitrato, arbitraggio, perizia contrattuale, in: Rivista trimestrale di diritto e procedura civile 37/1983, pag. 610 segg.)”, dtf 117, Ia, 365, 369. See e.g. dtf 121, iii, 350, 355, where the Federal Tribunal refers to “responsabilité pour reinsegnements inexact” explaining clearly which is it scholarly literature origin, internal and external. The High Swiss Court, “développée en droit allemand, cette forme juridique consiste à imputer une responsabilité déduite des règles de la bonne foi à celui qui a créé une situation de confiance à laquelle une autre personne peut se fier et s’est du reste fiée en réalité (Kramer/Schmidlin, Commentaire bernois, n. 150 ad Allgemeine Einleitung in das schweizerische OR; cf. également Staudinger/Dilcher, Kommentar zum bgb, 12e éd.,

The Use of Comparison in the Swiss Federal Tribunal Case Law

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references to doctrine contrary to the advices of the Federal Tribunal,33 except for those pursuing a judicial revirement.34 Considering the purposes for which foreign doctrine is referenced to unsurprisingly the prevailing references are those to works that deal with very specific subjects, referencing that in some fields consolidate as a reference work a specific work rather than another.35 So there are references to far-reaching texts, such as the notorious Einführung in die Rechtsvergleichung by Konrad Zweigert and Hein Kötz.36 Also with respect to foreign case law the rulings of the Federal Tribunal are very permeable. Frequent reference is made to rulings of foreign Courts of several degrees and levels, with some preference, obviously, for Supreme Courts. They include references to German Bundesverfassungsgericht, certainly the most quoted among foreign tribunals,37 to French Conseil constitution­ nel,38 to Italian Corte costituzionale and Corte di Cassazione,39 to Austrian Verfas­sungsgerichtshofes,40 to US Supreme Court,41 to Paris Cour d’appel,42 to

n. 44 ss ad Vorbemerkungen ad §§ 116–144). Dans cette optique, la “culpa in contrahendo” constitue un cas particulier de la responsabilité fondée sur la confiance (Kramer/Schmidlin, op.cit., n. 151 ad Allgemeine Einleitung in das schweizerische OR) ”. 33 Still, references in a direction opposite to the submissions of the Federal Tribunal are not lacking. See e.g. dtf 129, iii, 727, where the Swiss Supreme Court, after having argued in details the scholarly literature argument in the field of extension to third parties of the arbitration agreement scope declares that “il n’est pas du tout certain que l’opinion professée par Jean-François Poudret puisse être qualifiée de majoritaire, ni qu’elle corresponde à l’état actuel de la jurisprudence fédérale en la matière”, pp. 734–735. 34 See e.g. dtf 117, iv, 139, Recital 3, where the Federal Tribunal makes a revirement supported by many references of the German doctrine in order to justify, by virtue of the rule “in pari turpitudine melior est causa possidentis”, the possibility that a drug addict deceived by the pusher would ground its compensation claims on art. 41 of the Code of Obligations. 35 Among the many possible examples we mention J.-F. Poudret, S. Besson, Droit comparé de l’arbitrage international, Zürich, 2002, quoted in as many as eight rulings of the Federal Tribunal in a three-year span: dtf 129, iii, 445, 453; dtf 129, iii, 675, 681; dtf 129, iii, 727, 734; dtf 130, iii, 35, 38; dtf 130, iii, 66, 70, 71; dtf 130, iii, 76, 78; dtf 130, iii, 755, 758; dtf 131, iii, 173, 176. 36 dtf 126, iii, 492, 494 e dtf 129, iii, 102, 105. 37 Among many see: dtf 117, iv, 124, 128; dtf 119, Ia, 337, 340; dtf 119, ii, 307, 311; dtf 120, Ib, 276, 283; dtf 120, iv, 256, 259; dtf 122, i, 101, 104; dtf 124, i, 55, passim; dtf 124, i, 159, 164; dtf 124, ii, 559, 566; dtf 130, iii, 530, 535; dtf 134, iv, 121, 127; dtf 135, iv, 6, 10; dtf 137, i, 305, passim; dtf 139, v, 263, 282; dtf 140, i, 77, 84; dtf 142, i, 49, passim; dtf 142, iii, 197, 199; dtf 143, iv, 77, 84. 38 dtf 123, i, 152, 174; dtf 142, v, 192, 197 and 201. 39 Respectively dtf 123, i, 152, 174 e dtf 125, i, 369, 373; dtf 135, iii, 206, 209; dtf 135, iii, 433, 438; dtf 136, iii, 461, 465. 40 dtf 122, iii, 414, 417; dtf 135, ii, 224, 233 and 237. 41 dtf 116, ia, 252, 263. 42 dtf 119, ii, 386, 391.

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­Frankfurt Oberlandesgericht,43 and again to United States Court of Claims and United States Court of Appeals,44 and certainly the list could be extended. Regarding the way in which the Federal Tribunal uses the foreign case law the same considerations made for scholarly opinion stay true. Indeed a strong preference is observed to referencing to foreign case law to support a specific argument,45 even if there are cases in which the Federal Tribunal refers to established case law of a foreign Court to reinforce the reasons leading it to dismiss the possible enforcement in the internal legal system of a legal institution found across the border.46 Resorting to foreign case law sometimes goes as far as importing “mutatis mutandis” (sic!) a legal institution or a notion originated abroad in the internal legal system.47 In addition to referencing to foreign case law and doctrine, the Federal Tribunal also refers, apparently less frequently, to the legislation of other legal systems.48 These references are distinctive in that they concern almost exclusively particular legal institutions such as, to make just a couple of examples, joint 43

dtf 120, iv, 319, 322. There are other ones anyway, such as that of Zweibrücken, dtf 139, iii, 232, 235, or of Köln, dtf 137, iii, 261, 266. 44 dtf 125, i, 369, 373. 45 See e.g. dtf 116, ia, 252, 262–263, concerning the freedom of belief and conscience as to the exposition of crucifixes in classrooms. After illustrating its allegations in this respect, the Federal Tribunal declares that “queste considerazioni coincidono praticamente con quelle che hanno condotto la Corte costituzionale degli Stati Uniti d’America a dichiarare contraria alla libertà di credenza, garantita dal primo emendamento della Costituzione, l’esposizione della legge mosaica nelle aule scolastiche”. See also, among others, dtf 119, ia, 337, 340; dtf 119, ii, 456, 460 and dtf 120, iv, 319, 322. 46 See dtf 119, ii, 386, ruling in which the Federal Tribunal rules out the enforcement in Switzerland of a principle of the French law according to which “le pénal tient le civil en l’état” due, also, to its uncertain constitutionality also for foreign doctrine. Nevertheless, the Court of Lausanne resorts to French case law for an analysis of the importance attached to the principle at issue in the French legal system. Same argumentation background in dtf 133, iii, 462. “Il résulte de ce qui précède”, declares the Federal tribunal, “que la réception en droit suisse de la théorie de la perte d’une chance développée notamment par la jurisprudence française est, à tout le moins, problématique”, cons. 4.4.3, p. 772. 47 dtf 121, iii, 109, Recital 4, with respect to the effects on the authorized agent of noncompliance with the revocation of order. The same Federal Tribunal stated it wanted to import mutatis mutandis “les principes susmentionnés pour régler la question de la révocation de l’assignation”, principles stemming from the German law. See also dtf 128, iii, 353, 360–361. 48 See, among others, dtf 116, ii, 519, 520; dtf 117, ii, 523, 527; dtf 117, iv, 139, 149; dtf 118, ii, 489, 491; dtf 119, ii, 281, 287; dtf 119, ii, 339, 340; dtf 119, ii, 437, 440, 441 e 442; dtf 120, ii, 197, 201; dtf 121, iii, 109, 114 e 116; dtf 121, iii, 118, 121; dtf 121, ii, 317, 327; dtf 121, iii, 350, 355; dtf 123, iii, 241, 244; dtf 125, iii, 322, 326; dtf 125, iii, 363, 367; dtf 125, iii, 435, 438; dtf 127, iii, 496, 499; dtf 128, iii, 370, 373; dtf 129, iii, 535, 538; dtf 130, iii, 182, 187, 190, 191 e 192; dtf 131, iii, 227, 234; dtf 131, iii, 257, 261, 262 e 263; dtf 131, iii, 345, 355 e 356; dtf 139, iv, 168, 172.

The Use of Comparison in the Swiss Federal Tribunal Case Law

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custody in French law (garde conjointe)49 or the notion of family residence, as well in the French law (logement de famille).50 Most of the times the comparison is limited to just one foreign legal system, which does not rule out that the Federal Tribunal can extend it to other countries. In these cases reference to “other” legislations is never complemented by a thorough analysis comparable to the one reserved to the legal system taken as a reference.51 Reference to foreign legislation can be direct or indirect, since the Federal Tribunal sometimes refers directly to this or that article of the German bgb or of the Frenh Code civil, whereas instead it makes indirect referencing quoting the doctrine that covered it. This second type of referencing is certainly the most frequent; the Federal Tribunal in fact mainly uses doctrine, both foreign and not, to support its arguments, and it would not be so useful to quote foreign legislation without complementing it with the positions of the doctrine that studied it. 7

Different Ways to Refer to and Use the Foreign Law

There are certainly many ways to use foreign law in a judicial ruling. Hypothetically the set of instruments ranges from simple referencing to a single foreign legal institution (which for some reason is considered important for the ruling) to actual comparison made by means of the functional approach. There are no rules for choosing one rather than the other method; it depends on the strength with which a court wants to argue an opinion supporting it also, but never only, with examples taken from the observation of other legal systems. The way in which the Federal Tribunal operates in the sample of case law that we covered can be categorized in three sections: simple references to foreign law not supported by any argument of a comparative kind; rather wellfounded, actually only syntactically and stylistically more complex, referencing; more or less extensive, yet actual, comparison. Among several rulings in which there is simple referencing to foreign law, in some the referencing is very broad, so without a specification on the reason why the Federal Tribunal resorts to comparison. Many phrasings are used by the High Court of Lausanne to cross reference. Of the many we found : “für das 49 50 51

dtf 117, ii, 523, 525–526. dtf 118, ii, 489, 490–491. Which is very well established by the following phrasing used in a judgment of 2002: “die Bestimmung der zu verbürgenden Schuld diene nach schweizerischem Recht, das im Gegensatz zum deutschen Recht und zu den meisten ausländischen Kodifikationen eine Bezifferung der Haftungshöchstgrenze in der Bürgschaftsurkunde selbst verlange, nicht der Begrenzung der Bürgenhaftung”. dtf 128, iii, 434, 438, italics added.

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deutsche Recht”,52 “pour le droit allemand”,53 “en droit allemand”,54 “in merito al diritto tedesco”,55 “zum deutschen Recht”,56 “zum französischen Recht”,57 “aus dem deutschen Recht”,58 “für die deutsche Rechtsprechung”,59 “nach deutschem Recht”.60 In all those phrasings, followed by simple quotations, some of doctrine, others of case law, others a combination of both, referencing to foreign law should be understood in most cases as introduced by the “similarly” specification, to be regarded as implicit. In the vast majority of cases, indeed, the Federal Tribunal refers to foreign examples to corroborate a specific position. In a large number of cases the use of foreign law sustaining the opinions of the Federal Tribunal is more comprehensible. The phrasings leave no doubt ; “analog für das deutsche Recht”,61 “v. per analogia con il diritto tedesco”,62 “ebenso für das deutsche Recht”,63 “so auch die deutsche Rechtsprechung”,64 “wie etwa im deutschen Recht”,65 “zur analogen Situation im deutschen Recht”,66 “du même avis en droit allemand”,67 “dans le même sens, en droit allemand”,68 “en accord avec la 52

53 54 55 56

57 58 59 60

61 62 63 64 65 66 67 68

dtf 116, ii, 519, 520; dtf 117, iv, 449, 451; dtf 118, iv, 67, 72 e 73; dtf 118, iv, 175, 179; dtf 120, iv, 67, 71; dtf 120, iv, 122, 131; dtf 121, iii, 453, 457; dtf 123, iii, 473, 483; dtf 124, iv, 145, 147; dtf 124, iv, 193, 196; dtf 125, iii, 29, 32; dtf 126, iii, 20, 24; dtf 128, iii, 454, 459; dtf 129, iv, 238, 242; dtf 134, iii, 452, 459; dtf 135, iv, 130,137; dtf 135, iv, 177,179; dtf 137, iv, 113, 114; dtf 139, iv, 214, 218; dtf 140, iv, 150, 153; dtf 142, iii, 16; dtf 142, iii, 153, 159. dtf 127, iii, 186, 191; dtf 134 iii 497, 507. dtf 122, v, 230, 239; dtf 123, iv, 17, 19 e dtf 129, iii, 604, 615; dtf 133, iii, 6, 19; dtf 133, iii, 462, 472; dtf 133 iv, 158, 168; dtf 134, iii, 497, 504; dtf 134, iv, 255, 261; dtf 136, ii, 497, 504; dtf 139 iv, 168, 172; dtf 141, iii, 407, 416. dtf 124, i, 159, 164–165. dtf 116, ii, 55, 62; dtf 117, iv, 139, 149; dtf 119, iv, 10, 16; dtf 120, iv, 348, 353; dtf 121, iii, 310, 313; dtf 123, iii, 24, 28; dtf 123, iii, 241, 244; dtf 125, iv, 58, 62; dtf 127, ii, 91, 101; dtf 127, iv, 122, 128 e 129; dtf 131, iii, 480, 492; dtf 133, iv, 187, 196; dtf 133, iv, 249, 254; dtf 134, iii, 306, 310; dtf 136, ii, 508, 516; dtf 138, iii, 689, 692; dtf 142, iii, 153, 164; dtf 142, iii, 263, 271; dtf 142, iv, 105, 116. dtf 121, iii, 310, 313. dtf 131, iii, 345, 355; dtf 138, v, 206, 211. dtf 124, iii, 155, 163. dtf 116, ii, 651, 655 e atf 118, ii, 459, 465; dtf 134, ii, 223, 226; dtf 135, i, 63, 66; dtf 136, v, 258, 262; dtf 137, iii, 631, 632; dtf 138, iii, 11, 17; dtf 138, iii, 82, 86; dtf 138, v, 206, 210; dtf 139, iii, 236, 241 e 247; dtf 139, v, 297, passim; dtf 141, iii, 229, 237; dtf 142, iv, 175, 195; dtf 143, iv, 91, 95. dtf 120, ii, 197, 202; dtf 130, iii, 113, 120. dtf 128, iv, 117, 127. dtf 121, iii, 377, 379; dtf 122, iii, 382, 386 and dtf 131, i, 223, 240. dtf 116, iv, 157, 159. dtf 116, iv, 353, 359. dtf 118, ii, 157, 160. dtf 119, ii, 339, 340. dtf 125, iii, 435, 438.

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jurisprudence allemande”,69 “ebenso das deutsche Bundesverfassungsgericht,70 and even “paradigmatica è la giurisprudenza tedesca”.71 In all these examples, both in those in which the reason for referencing is expressed and in those in which it is not, the legal systems the Federal Tribunal refers to are the ones considered closer to the Swiss legal system, namely the German one and to a lesser extent the French and Italian ones (the latter much less). This explains why these references to foreign law are hardly expounded, or not expounded at all: the stronger the feeling of nearness to a legal system, the greater is the confidence with which the Federal Tribunal resorts to it to corroborate a specific subject. A second set of rulings differentiates for the content of referencing to foreign law only apparently further expounded than the ones we called simple referencing. Actually they are equally fleeting forays in this or that foreign legal system; the only difference with the category described above lies in the more complex syntactic-stylistic structure. There are many examples. Ranging from referencing to the notion of “nicht geringen Menge” (not small quantity) developed by the case law with respect to the use of drugs such as Ecstasy,72 to setting criteria useful to outline the arbitration in German law,73 to the analysis of the conditions that in German legal system allow enforcing the punishment provided for the offence of intentional injury for the cases of deliberate transmission of the hiv virus.74 In all these examples and in many others75 too, the Federal Tribunal refers in a very exhaustive way sometimes to foreign doctrine, case law or legislation, yet without really complementing the referencing with a comparative consideration. Namely an argumentation background like: “foreign law offers these examples …, thus …” is never proposed, accordingly this is not actually comparison, but, as in the above examples, simple illustrative reference to foreign law. Also in this respect the key role seems to be played by the closeness of referenced legal system: the more the kinship degree is perceived as close, the less the need to specify the reasons for using examples taken from foreign law to substantiate a judicial ruling. Actual comparison can be assumed for a set of decisions in which the Federal Tribunal uses the principles deriving from foreign law to justify a specific opinion, or to use it as a support in the interpretation of some internal law 69 70 71 72 73 74 75

dtf 126, iii, 370, 374. dtf 117, iv, 124, 128 e dtf 124, iii, 321, 329 and 334. dtf 135, iii, 623, 628. dtf 125, iv, 104, 106. dtf 117, ia, 365, 368. dtf 116, iv, 125, 132. See e.g. dtf 124, iii, 112, 115; dtf 124, iv, 219, 224; dtf 125, iii, 363, 366–367; dtf 125, iv, 1, 3–4; dtf 128, iii, 50, 55; dtf 128, iii, 434, 438 and dtf 130, iii, 182, 187.

416

Gerotto

standard, or, in the most interesting case among those examined, to fill the gaps of the internal legal system. In all these cases the Federal Tribunal does not only refer to an example deriving from the observation of foreign law, but goes beyond, and extends its analysis drawing useful consequences to decide in one sense rather than another. This argumentation background is quite emphasized in the rulings in which the High Court of Lausanne uses comparison to justify its judicial position. In such rulings, as we saw in the above pages, quite often simple referencing to foreign law rather than genuine comparison comes into play. However in the first case, the removal of references to foreign law does not dismiss the argumentation of the Federal Tribunal, whereas in the second one it is not possible to leave comparison aside without alter the sense of the final ruling. For instance, in some cases the ruling of the Tribunal relies on the analogy between its position and the examples that can stem from comparative law, as when it acknowledges as “également convaincante en droit suisse” the opinion developed by German case law according to which allegedly the physician is obliged to inform the patient on the economic aspect.76 In other cases the Federal Tribunal justifies its ruling with the analogy of solutions found in other legal systems, though different if analysed from the viewpoint of the global structure of the procedure concerned by that ruling. In these examples the argumentation background maintaining the judicial position is precisely analogy despite global diversity. To this second argumentation model belongs, for instance, a judgment on the copyright of architectural works,77 which claims that “selbst das deutsche Recht, welches entgegen dem schweizerischen auch den künstlerischen Charakter des Werks in die Schutzvoraussetzungen miteinbezieht und im Widerstreit der Interessen von Eigentümer und Urheber im Zweifelsfall diesen privilegiert […], setzt dem indirekten Eingriff im hier zu beurteilenden Sinne bloss ausnahmsweise urheberrechtliche Schranken […] und sieht einen urheberpersönlichkeitsrechtlichen Schutz des prioritär Schaffenden zur Abwehr beeinträchtigender Nachbarbauten nur in Extremfällen vor”.78 76

77 78

dtf 119, ii, 456. This would be an ancillary obligation of the treatment contract. The obligation of economic information incumbent on the physician would be enforced in Switzerland since the latter is responsible for protecting the interests, also economic, of the patient by virtue of an agency relationship (artt. 394 ff. of the Code of obligations, RS 220). These interests are better protected since the physician is able to recognize, and illustrate to the patient “au moins les cas douteux qui sont susceptibles de ne pas être pris en charge par les caisses-maladie”. Both quotations, in body text and in the footnote, are taken from p. 460. dtf 120, ii, 65. dtf 120, ii, 65, 68.

The Use of Comparison in the Swiss Federal Tribunal Case Law

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Sometimes comparison is extended to many legal systems, even far one from the other, to underline that the heterogeneity of solutions found concerning a specific problem does not allow a specific interpretation. The Federal Tribunal for example resorts to comparison to counter the assumption according to which there would be an analogy between the money laundering offense (art. 305bis Criminal code) and that of abetment (art. 305 Criminal code). The fact that article 305bis CP was inserted in the part of the Criminal Code concerning the crimes against justice administration would at first sight seem to corroborate this interpretation, and however the Federal Tribunal rejects it claiming that “il s’agit d’une infraction inspirée du droit des Etats-Unis d’Amérique, qu’il a fallu insérer dans notre droit pénal. D’autres pays européens, confrontés au même problème de technique juridique, ont introduit le blanchiment de capitaux par exemple à la suite du recel ou dans leur législation relative aux stupéfiants (voir Kistler, La vigilance requise en matière d’opérations financières, thèse Lausanne 1994, qui donne un aperçu du droit allemand, français, belge et luxembourgeois en la matière; p. 34, 40, 53 et 59). L’opinion d’après laquelle le seul bien pénalement protégé serait celui de l’administration de la justice est donc loin d’être partagée partout. L’argument tiré de la systématique de notre code ne paraît en conséquence nullement décisif”.79 Comparison is used also to support the interpretation of internal law. In these cases the Federal Tribunal resorts to foreign law to better outline the contours of a notion or of a legal institution it has to use in the internal legal system; also it may occur that observation of foreign law does not offer solutions and that comparison makes clear the need to solve a specific issue using only the instruments offered by internal law. For instance the High Court of Lausanne resorted to German Law and to French Law to interpret article 195 of the Criminal code and determine whether the prostitution offense includes the cases of masturbation practiced during massage sessions.80 On other occasions the Federal Tribunal used a notion (or legal institution) clearly explaining which was the origin in internal and external doctrine or case law. This 79

80

dtf 120 iv 323, 327, italics added. Noteworthy the Federal Tribunal declares with force its assurance in rebutting a view through the support of Foreign law, which it does not analyse independently however, relying upon the scholarly reconstruction, and what’s more of only one author. Neither peculiar, nor rare, instead, is the quotation of PhD dissertations in the judgments of the Federal Tribunal. The Judges of Lausanne frequently use these works for their thorough investigation of particularly circumscribed law subjects. dtf 121, iv, 86, 89. “On ne saurait donc dire”, declares the Federal Tribunal after referencing to the two legal systems French and German, “que des actes de ce genre sont exclus de la notion de prostitution, puisque c’est le contraire qui est communément admis”. It seems possible to wonder if just two systems are enough to determine what “qui est communément admis” or if this referencing is not simply a justification of a preliminarily assumed ruling.

418

Gerotto

is the case of “responsabilité pour reinsegnements inexact”, that according to the Lausanne Judges is associated to the notion of “responsabilitè fonde sur la confiance”.81 There are plenty examples.82 With a similar argumentation background the Federal Tribunal sometimes reaches negative conclusions. This happens when the observation of foreign law does not provide any help in the interpretation of the issue that the Tribunal is examining.83 In a judgment concerning the legal nature of Scientol­ ogy, for instance, the number of foreign judgments on the subject even if remarkable – of the German Bundesverfassungsgericht, German administrative and labour tribunals, of the Italian Constitutional and Cassation Court, of the Spanish supreme justice Tribunal, of some US courts – does not seem enough for the Federal Tribunal to establish with certainty whether that subject is a religion or not.84 In some cases the comparison starts far away. Indeed the Federal Tribunal sometimes interprets a legal institution or notion, by means of historical reconstruction and later compares the different results achieved out of its evolution in the legal systems where it belongs. In a ruling 81

dtf 121, iii, 350, 355. “Développée en droit allemand, cette forme juridique consiste à imputer une responsabilité déduite des règles de la bonne foi à celui qui a créé une situation de confiance à laquelle une autre personne peut se fier et s’est du reste fiée en réalité”, and yet, “dans cette optique, la “culpa in contrahendo” constitue un cas particulier de la responsabilité fondée sur la confiance”. 82 See dtf 118, ii, 489, 490–491, where the Federal Tribunal questions the notion of family dwelling pursuant to article 169 of Swiss Civil Code identifying the inspiring source of the Swiss law and emphasizing the differences also; dtf 119, ia, 337, 340, in which the Federal Tribunal acquires the argumentations of the High German Court in the field of judicial counsel to legal persons, which is denied since adversely affecting the principle of equality; dtf 125, iv, 113, 116–117, in the field of conditions required for the granting of freedom on probation to convicts serving a life sentence for serious offences. Significantly as well the example found in dtf 139, iii, 232, shows the solution considered “in sintonia con i paesi che ci circondano”, namely Germany, France, Italy and Austria, 235–236. 83 Sometimes the Federal Tribunal rules out explicitly that the comparison might help, as in dtf 142, iii, 521, where it states that “le droit comparé n’est pas d’un grand secours pour résoudre la question litigieuse. Il en appert, tout au plus, que certains pays, tels que l’Angleterre, l’Allemagne et l’Italie, ne prévoient pas le moyen de la révision à l’encontre des sentences rendues dans un arbitrage international, tandis que les pays qui ont opté pour la solution inverse, comme la France, la Belgique et les Pays-Bas, n’admettent pas tous aux mêmes conditions la révision de ces sentences-là”, 529–530. 84 “Diese im Ausland unterschiedlichen Beurteilungen der Frage, ob “Scientology” eine Religion ist, ändern nichts daran, dass im vorliegenden Fall gestützt auf die erwähnte Praxis des Bundesgerichts und der Strassburger Organe auf die Rüge der Verletzung der Religionsfreiheit einzutreten ist. Ob die von “Scientology” vertretenen Lehren und deren Praktiken in jeder Hinsicht religiösen Charakter haben und damit dem Schutz der Religionsfreiheit unterstehen, ist damit nicht entschieden”, dtf 125, i, 369, 373–374.

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of 2002, for instance, the High Court of Lausanne questions the relation of the periculum est emptoris principle, by virtue of which benefits and risks connected to the object pass to the purchaser as soon as a contract is entered into, with its exceptions.85 The reconstruction of the Federal Tribunal hence takes into account the Justinian legislation and interpretation enforced by the humanist case law formerly, and pandectist later, the enactment of the Roman rule by Austria and Germany, and that of common law by France, Italy and Great Britain, to reach the Swiss solution, which is, as the judgment reads, a compromise between the possible ones.86 8

Legal System Gaps and Analogy Extension Across the Border

One of the ways in which the Federal Tribunal used the comparative method affects more than others the set-up of the internal legal system. Namely the foreign law aimed at importing legal institutions in order to fill the gaps of the system. In some cases the High Court of Lausanne states explicitly that it cannot trace the solution in the internal law, but it can spot it in a foreign legal system, and most of all it can import it by virtue of the kinship that ties this system to the Swiss one. Hence the door is opened to foreign law extending the application of the principle of analogy across the border. The ruling that best exemplifies this operating mode is unquestionably the already mentioned dtf 121, iii, 109, in which the Federal Tribunal declares explicitly filling a gap in the Swiss legal system resorting “mutatis mutandis” (such phrasing is used by the Federal Tribunal itself) to German law since it was tied by “étroite parenté” to the Swiss one. The issue to solve concerned unjust enrichment due to noncompliance by a bank, for the negligence of an employee, of the payment order revocation. The bank wanted to avail itself against the recipient, this request was accepted by the Cour de justice of the Geneva Canton, but then rejected by the Federal Tribunal on the appeal submitted by the recipient. The High Court of Lausanne at first opened the door in a clear-cut way to the German law stating that “il convient donc d’examiner plus avant quels sont, à l’égard de l’assignataire, les effets de l’inobservation par l’assigné d’une révocation de l’assignation. Cette question n’a apparemment pas été approfondie par la jurisprudence et la doctrine suisses, comme le souligne la cour cantonale. En revanche, elle a

85 86

dtf 128, iii, 370. dtf 128, iii, 370, 374.

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retenu l’attention des tribunaux et des auteurs allemands”,87 and then concludes that “étant donné l’étroite parenté existant entre le droit allemand et le droit suisse relativement au problème de l’assignation, rien ne s’oppose à ce que l’on applique en Suisse, mutatis mutandis, les principes susmentionnés pour régler la question de la révocation de l’assignation”.88 Noticeably the door is open, even if not fully opened, to foreign law. Indeed, on one side kinship is limited to the institution at issue and not to the entire system; on the other it is explicitly assumed that it is possible to specify or modify as necessary the imported principles (we’d rather say it is confirmed, since this event should be considered as implicit to say the least).89 Sometimes the rule imported to fill the gap in the internal legal system does not undergo any adaptation, consequently the implanted rule deviates slightly or not at all from the one examined in the original legal system. In one case concerning the protection of the name of a public body registered as an internet domain by a third party,90 for example, the Federal Tribunal transfers in the internal legal system a solution developed by German case law without any intervention to adapt it whatsoever. To grasp it just compare the foreign solution referenced to in the ruling (“Le Landgericht de Mannheim, par jugement du 8 mars 1996, a reconnu que la défenderesse, en faisant usage du nom de la ville en cause comme adresse internet, avait créé un risque de confusion, car l’utilisateur moyen d’internet, sous le nom de domaine “heidelberg. de”, s’attendait à trouver non seulement des informations qui concernaient la ville de Heidelberg, mais encore qui émanaient de cette cité”91) with the one implemented by the Court of Lausanne (“il est évident que l’utilisateur moyen d’internet escompte trouver sous le nom de domaine “montana.ch”, lequel éveille en lui un endroit de villégiature dans les Alpes valaisannes, des informations relatives à la demanderesse. L’utilisateur, qui arrive sur le site de la défenderesse après avoir tapé l’adresse internet précitée, est ainsi amené à croire que la recourante a un quelconque lien avec l’intimée, alors qu’il n’en est rien”92). Also in dtf 119, ii, 437 the Federal Tribunal uses the foreign law to fill a gap of the legal system. On the subject of unjust enrichment the rule is stated by 87 88 89

90 91 92

dtf 121, iii, 109, 113. dtf 121, iii, 109, 116. “Ce sont là deux bonnes raisons”, states the Federal Tribunal with reference to the argumentations developed by German case law, “qui militent en faveur de l’adoption en Suisse de principes déjà fermement établis outre-Rhin, quitte à les préciser ou à les modifier au besoin”, dtf 121, iii, 109, 117, our italics. dtf 128, iii, 353. dtf 128, iii, 353, 361. dtf 128, iii, 353, 365.

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which “le bailleur, même en demeure de reprendre la chose, a droit à une indemnité du fait que l’ancien locataire, en utilisant la chose, s’est enrichi dans une certaine mesure”.93 The adoption of this rule is justified, according to the Judges of Lausanne, by its merit of being in harmony with the notion of enrichment developed by prior case law and, which is even more interesting, with the fact that “la jurisprudence et la doctrine allemandes partagent cette opinion”.94 Just above, with reference to the nature of relationships between lessor and lessee, the Federal Tribunal argued that “pour que le bailleur soit privé de sa chose du fait du locataire, encore faut-il que cela soit contre la volonté du premier […]. Rien ne s’oppose à ce que ces principes du droit allemand soient repris en droit suisse”.95 The three mentioned cases share a quite significant feature; in each of them the Federal Tribunal used exclusively one single foreign legal system, the German one, to fill the gap encountered each time. Hence its action was without fail. However in some cases the comparison encompasses many legal systems, as in dtf 120, IB, 276, where the Federal Tribunal carries out an actual microcomparison analysing the “retrocession” in Germany France and Italy, For the Swiss High Court “very similar (not to say identical) is the solution of the problems at issue here in the Federal Republic of Germany, in which a legal system similar to the Swiss one is in force”.96 So, whereas in the Swiss legal system and in the German one retrocession stands in its capacity of “‘restitutio ad integrum’ per decadenza della causa che ha legittimato l’espropriazione”,97 in the French and Italian ones it is “concepita come una sorta di diritto di compera”.98 Also in dtf 126, iii, 129 the Federal Tribunal claims the existence of a gap in the internal legal system, namely in the field of eligibility of parallel importations in the framework of patent law,99 a gap filled referencing to the law in 93 94 95

96 97 98 99

dtf 119, ii, 437, 442. dtf 119, ii, 437, 442. dtf 119, ii, 437, 442, italics added. Subsequently the federal Tribunal enforced the standard as it was developed resorting to the German law. In dtf 131, iii, 257, the High Court of Lausanne states in point of fact clearly, after referencing to prior case law, that it’s in the German law framework that the rationale should belong to (“der deutschen Regelung liegt die Überlegung zugrunde, dass es gerecht erscheint, den Vermieter unter den erwähnten Umständen rechtlich so zu stellen, als ob das Mietverhältnis noch nicht beendet wäre”, p. 261). dtf 120, ib, 276, 283. dtf 120, ib, 276, 283. dtf 120, ib, 276, 283–284. “Zusammengefasst ist die Frage der nationalen oder internationalen Erschöpfung weder im nationalen, noch im für die Schweiz geltenden internationalen Recht geregelt, weshalb diesbezüglich von einer echten Lücke auszugehen ist”, dtf 126, iii, 129, 138.

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some legal systems close to the Swiss one (German, French, Austrian and Italian), as well as to the European one. Strictly speaking in this ruling the Federal Tribunal carries out an actual comparison since the observation of the foreign law does not aim at identifying in one legal system rather than another the most suitable standard to fill the ascertained gap; the purpose is rather that of reinforcing the claims supporting the enforcement in Switzerland of the principle of national exhaustion of the rights in the field of patent law. Hence, comparative law is used as a support for traditional Swiss legal stance and for the balancing of interests at stake.100 9 Conclusions This analysis raised two relevant issues. Firstly in many of the rulings the tendency of the Federal Tribunal to consider for the purposes of comparison a limited number of legal systems is easily understood, and specifically those, also geographically, close to Switzerland (Germany, France, Italy and Austria). To some extent it seems obvious. Indeed using comparison is a choice, as with the cases we chartered, and not an obligation, it’s obvious that when looking across the border you also decide where to look at without restraint.101 However this was not always the case, so much so that in some rulings the comparative exam made by the Federal Tribunal might have – actually it should have – been extended to a broader range of legal systems than the considered one, so to dismiss the suspicion of a convenient comparison. 100 See dtf 126, iii, 129, 155. This broader comparative view can be found also in other rulings. So it goes, for instance, with dtf iii, 206, in which the Federal Tribunal analyses the systems of Italy, Germany, Austria and France to identify the conditions in presence of which a will can be defined holographic. In dtf 139, iii, 232, instead, with reference to the same countries the Judges from Lausanne hold that “in accordance with the coun­ tries around us – an injunction order declared immediately enforceable upon its issuing cannot be acknowledged and enforced in Switzerland”, 235–236. Sometimes, not often, reference is extended also beyond the four neighbouring countries, as in dtf 138, ii, 440, wherein the Tribunal explicitly claims it refers to “Deutschland, Österreich, Frankreich und weiteren europäischen Ländern, aber auch in den usa”, 451, or dtf 137, v, 210, in which the systems of Italy, Germany, Austria, France, Spain and Netherlands are explicitly referenced to. 101 After all, also when comparison covers many systems, such as in the two last examples mentioned in Section 8, some preference is always observed for the German one. In dtf 120, ib, 276, for instance, the Federal Tribunal quotes case law and doctrine in reference to the German legal system, whereas for Italy and France it just limits to doctrine, besides resorting to just two authors, one per system.

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A second landmark of Federal Tribunal’s “comparative case law” is represented by the ease with which the High Court of Lausanne resorts to foreign law. As already underlined this can be explained with a feeling of closeness to one foreign legal system rather than another; the stronger this feeling, or at least accordingly perceived, the less the need to justify the resort to foreign law. In our view this is quite a reasonable explanation, also underpinned by the fact that Switzerland did not have to manage a transition phase from dependence from a legal system to full independence, which elsewhere (Canada for instance) made it necessary to rely on a system that became only formally foreign. But these considerations would lead us to comparative thinking which is, as we already mentioned, beyond our purpose.

Is There a Middle Ground between Constitutional Patriotism and Constitutional Cosmopolitanism? The Portuguese Constitutional Court and the Use of Foreign (Case) Law Catarina Santos Botelho This contribution reflects on the pros and cons of foreign extra-systemic legal elements and highlights the activity of the Portuguese Constitutional Court as one of the most cosmopolitan constitutional courts in the world. The A ­ rticle is structured as follows: Section 1 analyses the Portuguese transition to democracy and the creation of a Constitutional Court. Section 2 examines the relevance of foreign (international) law and foreign case-law given by the Constitutional Court jurisprudence. We identified five types of constitutional borrowing: (2.1) reinforcing the Constitutional Court’s reasoning; (2.2) persuasive reasoning; (2.3) dissenting the majority opinion; (2.4) alerting to (or demystifying apparent) singularities of some constitutional law solutions; (2.5) refusing automatic and decontextualised importations of foreign law (nonborrowing decisions). The concluding remarks address the desirability of cross-citations in general and focus on the existence of a possible middle ground between constitutional “patriotism” and constitutional “cosmopolitanism”. 1

The Portuguese Constitutional Court

1.1 Transition to Democracy and the Creation of a Constitutional Court In 1974 and after almost five decades of the right-wing authoritarian regime of Salazar (“Estado Novo”), a military coup took place. This coup was called “Revolução dos Cravos” and was led by the Movement of Armed Forces. However, the overthrow of Salazar’s dictatorship did not mean the immediate advent of democracy.1 In fact, during the drafting of the new Portuguese constitution 1 António de Araújo & J.A. Teles Pereira, A justiça constitucional nos 30 anos da Constituição Portuguesa: notas para uma aproximação ibérica, 10, Revista Brasileira de Direito Constitucional 21 (2007), Gonçalo Almeida Ribeiro, O paradoxo democrático na constituição portuguesa de 1976, I Estudos em Homenagem ao Conselheiro Presidente Rui Moura Ramos 121, 138 (2016), Catarina Santos Botelho, Aspirational Constitutionalism, social rights prolixity and judicial activism: trilogy or trinity, 3 (4) Comparative Constitutional Law and Administrative © koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_017

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there was a significant tension between two opposite worldviews: a “revolutionary path”, which defended a dominant and authoritarian constitution, and an “electoral path”, which opted for a liberal and democratic constitution.2 The socializing depuration of the constitutional amendments of 1982 and 1989, which eliminated a heavy ideological weight of Marxist-Leninist content, reshaped the Portuguese Constitution and made it consonant with the substantive requirements of a truly democratic Rule of Law.3 The Portuguese Constitutional Court (pcc) was established in 1982, in the first constitutional amendment.4 The pcc replaced the “Council of revolution”.5 This way, for the first time in the Portuguese constitutional history, an autonomous constitutional jurisdiction was created. The Portuguese Constitution received many foreign influences. As far as the fundamental rights protection is concerned, it was influenced by the German Grundgesetz (1949) and the Italian Constitution (1947). Its extended social rights catalogue and economic constitution was based on the constitutional experience if the ex-Soviet Union. The system of government was inspired by the French constitutional experience. The Portuguese “Provedor de Justiça” (Ombudsman) has a clear inspiration by the Nordic constitutional systems. There are several unusual characteristics as well. One interesting trait is that the Portuguese Constitution has the longest eternity/unamendable clause in the world. The need to perpetuate ad aeternum the constitutional foundational moment does not favour concepts of democratic constitutionalism and parliamentary sovereignty. What is relevant to discuss is whether this kind of constitutional narcissism fragilizes constitutional democracy.6

2

3 4 5 6

Law Quarterly 62–87 (2017), José M. Magone, European Portugal – The Difficult Road to Sustainable Democracy 51 (1997), and Paulo Castro Rangel, O Estado do Estado – Ensaios de Política Constitucional sobre Justiça e Democracia 136 (2009). Andre Thomashausen, Die revidierteVerfassung der Republik Portugal von 1976, JöR 443 (1983), Maria Inácia Rezola, O Movimento das Forças Armadas e a Assembleia Constituinte na Revolução Portuguesa, 13 História Constitucional 635 (2012), and Maria Lúcia Amaral & Ravi Afonso Pereira, Um tribunal como os outros. Justiça constitucional e interpretação da constituição, I Estudos em Homenagem ao Conselheiro Presidente Rui Moura Ramos 415, 381–446 (2016). Catarina Santos Botelho, Portugal: The State of Liberal Democracy, 2017 Global Review of Constitutional Law (ed. Richard Albert, David Landau, Pietro Faraguna & Simon Drugda), 230–234 (2018). Constitutional Law no. 1/82, from September 30. The Council of the Revolution had an advisory body – the Constitutional Commission, which was extinguished when the Constitutional Court was set up in 1982. This Commission helped the Council of Revolution in matters related to abstract constitutional review. Catarina Santos Botelho, Constitutional narcissism on the couch of psychoanalysis: Constitutional unamendability in Portugal and Spain​, 21 (3), European Journal of Law Reform, 346–376 (2019).

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Regarding the pcc competences, it is pertinent to underline that the Court belongs to the European constitutional courts “family”, such as the Courts located in Karlsruhe, Rome, Madrid or Zagreb.7 As for the composition of the Court, it consists of thirteen judges, ten elected by the Parliament and three co-opted.8 The elected judges tend to reflect the political composition of the Portuguese Parliament at the time of the election. Judges are selected for a non-renewable term of nine years in office. Six judges must be career judges and the other six judges can be jurists. There is no minimal age to become a Constitutional Court judge. The pcc sits in plenary sessions or in sections, depending on the nature of the subject matter on which it is called to rule.9 The ppc has a wide range of competences.10 The competence to control norms is both prior and successive. The prior control takes place regarding a norm which has not yet come into effect (articles 278 and 279) and is only applicable to the more important rules in the legal order. The successive review can be: (i) abstract, which can lead to the declaration of unconstitutionality with general binding force and retroactive effects (articles 281 and 282). There is no deadline and every rule in the Portuguese legal system can be subjected to this type of review; (ii) concrete, in which the Court judges a dispute between the parties to a litigation running in the ordinary courts.11 The decision delivered by the ppc in a concrete review only has an effect limited to the parties to the litigation (inter partes), remaining the law at stake in force after the judgment (article 280). The case file returns to the court a quo so that it can reformulate (or order its reformulation) in accordance with the pcc ruling on the question of unconstitutionality;12 (iii) review of unconstitutionality by omission (article 283), that allows the Court to review and verify the omission

7 8 9 10

11 12

Peter Häberle, Verfassungsvergleichung in europa- und weltbürgerlicher Absicht – Späte Schriften 61–62 (2009). Article 222 of the Portuguese Constitution. Article 40 (1) of the Law Governing the Constitutional Court (Law no. 28/82 of 15 November 1982). For an interesting and provocative reflection on the Portuguese system of judicial review of legislation, see Gonçalo Almeida Ribeiro, Judicial Review of Legislation in Portugal: A Brief Genealogy, Constitutional History: Comparative Perspectives (ed. Francesco Biag, Justin O. Frosini and Jason Mazzone) (2019, forthcoming, on file with the author). Appeals before the pcc may be presented by individuals following the court decision that rejected the application of a rule on grounds of unconstitutionality or following the court decision that applied a rule argued unconstitutional by the parts during the proceedings. Article 80 (2) of the Law Governing the Constitutional Court.

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of legislative measures needed to make constitutional rules executable. The pcc powers regarding omission are very poor, since it can only verify the omission and inform the legislative body of that omission. The pcc also has responsibilities concerning the President of the Republic, national and local referenda, political officeholders and elections. The Portuguese constitutional review model is hybrid, as it shares characteristics of the monist/Kelsenian model as also traits of the diffused model of judicial review.13 In comparison with the Italian, German and Spanish systems of judicial review, the Portuguese system has some original traits.14 If the first States opted for a concentrated constitutional justice and to give incidental control mechanisms the form of preliminary review, the latter gives judicial review powers to ordinary courts as well. If an ordinary judge (any judge) finds that the norm applicable to a case is unconstitutional, the judge does not suspend the process and questions the Constitutional Court. The Portuguese ordinary courts can dismiss the norm application in that concrete judicial process, because they are under a duty not to apply rules they deem unconstitutional (article 204). Despite having these powers, matters in the ordinary courts can be referred to a court outside the ordinary jurisdiction – a Constitutional Court – thus moving away from a pure model of judicial review of legislation. Accordingly, the Portuguese model is a clear vertical model of judicial justice, with a Constitutional Court on the top of the hierarchy of norm constitutionality, albeit having some horizontal characteristics as well, since, as we just said, all the courts have the power not to apply a rule they consider unconstitutional. Therefore, as the pcc has no constitutional review monopoly, ordinary courts are also “agents of constitutional justice”.15

13 14

15

The American influence is an indirect one. In fact, article 63 of the first republican Constitution in Portugal (1911) was inspired in the Brazilian Constitution (1891), which in turn was influenced by the United States Constitution (1787). Vide, amongst many references, Jorge Miranda, As instituições políticas portuguesas, La Constitución portuguesa de 1976 – Un estudio académico treinta años después 35, 41 (2006), José de Melo Alexandrino, Il sistema portoghese dei diritti e delle libertà fondamentali: zone franche nella tutela giurisdizionale, Diritto Pubblico Comparato ed Europeo 271, 272 (2003), Maria Lúcia Amaral, Problemas da Judicial Review em Portugal, vi Themis, 67, 82 (2005), e Vital Moreira, A “fiscalização concreta” no quadro do sistema misto de justiça constitucional, Boletim Comemorativo do 75.° Tomo do bfd, 815 (2003). Jorge Mendes-Constante, Les principes constitutionnels et l’organisation juridictionnelle – L’exemple du Portugal, 14 Cahiers du Conseil constitutionnel 97, 99 (2003).

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1.2 Jurisprudence of the Portuguese Constitutional Court Once admitted to the Court, each case is assigned by ballot to a rapporteur, whose identity is revealed.16 The Court’s sessions are not held in public. The cases are structured in two sections. Section 1 consists of the report, whose structure depends of the reviewing process at stake. If it is a concrete reviewing process, it includes a brief summary of the first instance and of the appeal ordinary courts’ decision. If it is an abstract reviewing process, it consists of the motivation of the plaintiff and of the defendant. Section 2 corresponds to the reasoning of the Court, which is articulated. And Section 3 refers to the final decision. pcc jurisprudence tends to be verbose.17 One leading case had 95.680 words (around 156 pages),18 although this was an exception. Even so, decisions are quite long. From a purely pragmatic perspective, frequent incursions in comparative constitutional law may justify the lack of a concise style of reasoning. Another factor is the possibility of dissenting opinions. Portugal, just like Germany or Spain, allows dissenting or concurring opinions since the establishment of the Constitutional Court.19 Nevertheless, some scholars give other reasons for the pcc’s prolix tendency. Given the fact that the pcc was welcomed with some reservation by the two Portuguese ordinary supreme courts (Supreme Court of Justice and the Administrative Supreme Court), it needed to establish a jurisprudence with “an additional degree of authority”.20 It was then vital to protect the Court against criticism and strengthen its authority in the legal and social communities. Therefore, the citation of some of the most recognised constitutional jurisdictions in the world helped the pcc to improve the quality of its judgments and to consolidate its institutional role as the supreme court of constitutionality. However, it is surprising to verify that the openness to foreign law did not decline after the Court’s initial years. In so doing, the pcc never conformed to a self-referential approach. On the contrary, over time, the citation of foreign law became more frequent and dense.21 16 17 18 19 20 21

Articles 49 and 50 of the Law Governing the Constitutional Court. If the solution proposed by the rapporteur is not accepted, the judgment is drawn up by another judge (article 59 (3)). See Rulings no. 101/09, 03/03/2009, no. 359/09, 09/06/2009, no 121/10, 08/04/2010, no 55/16, 02/02/2016, and no. 176/17, 06/04/2017, just to name some recent examples. Ruling no. 413/2014, 30/05/2014. Katalin Kelemen, Dissenting Opinions in Constitutional Courts, 14 (8) German Law Journal, 1345, 1348–9 (2013). Maurício Ramires, Diálogo judicial internacional: o uso da jurisprudência estrangeira pela justiça constitucional, 142 (2016). Idem, at 143.

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Comparative Law in the Portuguese Constitutional Jurisprudence

The abundance of comparative law references in the pcc case law makes Portugal “one of the most advanced examples of the phenomenon of the progressive affirmation of an open circle (beyond national borders) of constitutional interpreters”.22 To begin with, we can identify three levels of judicial dialogue in the Portuguese jurisprudence.23 The first one is a “direct dialogue” between the pcc and other constitutional courts, through judicial networks.24 The second one is a “mediated dialogue” between courts, in which there may be outgoing and incoming cross-citations between constitutional and/or ordinary supreme courts. The last one is the “voluntary dialogue” established throughout the reception of legal scholarship. Having researched the ppc jurisprudence, we canvass some patterns regarding the judicial behaviour on constitutional comparison.25 But before we present them, it is relevant to share some cautionary disclaimers: (i) references to foreign law can be quite distinct, as sometimes the pcc will very briefly give note of the existence of foreign law elements to take note, and other times the Court will explore analytically or in an exhaustive fashion foreign elements;26 (ii) most of the time, foreign law references are expressed in citation of 22

Romano Orrú, La giustizia costituzionale in azione e il paradigma comparato: l’experienza portoghese, 42, Revista da Faculdade de Direito da Universidade de Lisboa 279, 303 (2006). 23 Ana Maria Guerra Martins and Miguel Prata Roque, Judicial Dialogue in a Multilevel Constitutional Network – The Role of the Portuguese Constitutional Court, Courts and Comparative Law 300, 304–305 (2015), Anne Meutwese and Marinx Snel, Constitutional Dialogue: An Overview, 9 Utrecht Law Review, 131 (2013), Mila Verseeg and David Law, The Evolution and Ideology of Global Constitutionalism, 99 California Law Review, 1166 (2011) and Teresa Violante, A adjudicação constitucional e o Direito Comparado, Teoria da Argumentação e Neo-Constitucionalismo – Um Conjunto de Perspectivas, 338 (2011). 24 The pcc has become a member of the “Superior Courts Network”, an international cooperation network created by the European Court of Human Rights aiming for the uniform application of the European Convention on Human Rights by the European Court and national superior courts. It also participates regularly in several summits and conferences, such as the Ibero-American Conference of Constitutional Justice, the Constitutional Jurisdictions of Portuguese Official Language Conference, the World Conference of Constitutional Courts on Constitutional Justice, the Trilateral Conference of Constitutional Courts of Italy, Spain and Portugal, Conference of European Constitutional Courts, Summit of Presidents of Constitutional, Regional and Supreme Courts, amongst others. 25 I will follow very closely my conclusions at Catarina Santos Botelho Lost in Translations – A crescent importância do Direito Constitucional Comparado, Estudos em Homenagem ao Prof. Doutor Carlos Ferreira de Almeida 87–94 (2011). 26 Romano Orrú, La giustizia costituzionale in azione e il paradigma comparato: l’experienza portoghese, 42, Revista da Faculdade de Direito da Universidade de Lisboa, 279–312, 299 (2006).

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jurisprudential elements; in some cases, reference is made to foreign doctrine; more rare is the reference to foreign law. 2.1 Use of Foreign International Law As a Member State of the European Union, Portugal has a triad level of fundamental rights protection: constitutional law protection, international (universal and regional) protection and European Union law protection.27 The pcc cites international law in almost every case, in particular, the European Convention on Human Rights, the Universal Declaration on Human Rights and the Charter of Fundamental Rights of the European Union. However, other human rights instruments are often forgotten. This is the case of the European Social Charter, to which references are infinitesimal.28 This is why some scholars wonder if the European Social Charter is the “ugly duckling of the Council of Europe”.29 The Portuguese Constitution has two articles on the application of international and European law. Article 8 prescribes that the norms and principles of general and common international law, the norms produced by competent bodies of international organizations (of which the Portuguese State is a part), and the provisions of the treaties governing the European Union and the norms produced by the Union’s institutions bind Portuguese law. Article 16 is a clairvoyant norm, which reflects a mature constitutional choice regarding fundamental rights and clearly allows cross-border interaction.30 Article 16 (1) consecrates an “open clause” in the fundamental rights’ catalogue, as it states that “the fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international law and legal rules”. This means that there may be rights (or rights’ dimensions) in other legal instruments (international law or in national ordinary law), which may have 27

28 29

30

See Catarina Santos Botelho, O Tribunal de Estrasburgo, o Tribunal de Justiça da União Europeia e os Tribunais Constitucionais nacionais: Perigo de um ‘triângulo das Bermudas’? (Translation: The Strasbourg Court, the European Court of Justice and the national constitutional courts: the danger of a ‘Bermuda triangle’?), Estudos em Homenagem ao Professor Doutor Alberto Xavier 119 (2012), and Federico Fabbrini, Fundamental Rights in Europe – Challenges and Transformations in Comparative Perspective, 4 (2014). In fact, we could only identify one single decision in which the pcc referred to, as obiter dictum, the European Social Charter, namely in Case no. 474/13, 29/09/2013. Catarina Santos Botelho, A protecção multinível dos direitos sociais: verticalidade gótica ou horizontalidade renascentista? – Do (não) impacto da Carta Social Europeia (Revista) na jurisprudência constitucional portuguesa (translation: Multilevel protection of social rights: gothic verticality or renaissance horizontality? The non-impact of the Revised European Social Charter in the Portuguese constitutional jurisprudence), Lex Social, 1, 2017, 88–123. Idem, supra note 26, at 88.

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a fundamental worth. Therefore, the criterion to identify fundamental rights in the Portuguese Constitution is not a formal – rights included in the catalog from article 24 to 79 – but a substantial criterion of substantial worthiness of the right. Moreover, article 16 (2) expressly affirms that “the constitutional norms concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights”, then giving a supraconstitutional value to this international instrument. Although the pcc has the power to apply norms, either provided by international conventions to which Portugal belongs, or enshrined in other international law instruments, it has never attributed them an autonomous constitutional value when reviewing the constitutionality of domestic law.31 Yet, this assertion should not lead to the conclusion that international law is irrelevant to the pcc reasoning. A study of the pcc jurisprudence will reveal that international norms do operate as valuable guidelines to the Court’s decisions and can even help to give a more generous interpretation of a given fundamental right embodied in the Portuguese Constitution. For instance, the Portuguese Constitution grants parents’ right to educate their children (article 36 (5)). Anchoring on international regional law, the pcc concluded that this right also included the broad consecration given by the European Convention on Human Rights and its Additional Protocols, in the sense that parents have the right to educate their children according to their own religious convictions. The most likely explanation for not giving an autonomous constitutional value to international law is the fact that the catalogue of fundamental rights enshrined in the Portuguese Constitution is longer and more detailed than the human rights catalogue of the abovementioned international treaties. In fact, the Portuguese Constitution has one of the most vast social rights catalogue in the world32 and it also contemplates new generation rights, such as data protection rights and guarantees in the bioethical field. That being said, foreign law is not the same as norms of the international systems that a State has signed or ratified. These are, of course, obligations that must be respected by the States and do not count as foreign law.33 Hence, by foreign international law we mean extra-systemic legal elements, which are 31 32 33

Rulings no. 352/98, 12/05/1998, 682/06, 13/12/2006 and 185/10, 12/05/2010. Catarina Santos Botelho, Os direitos sociais em tempos de crise – Ou revisitar as normas programáticas (translation: Social rights in times of crisis – Or revisiting programmatic norms) 253 (2015). Andrea Lollini, Legal argumentation based on foreign law – An example from case law of the South African Constitutional Court, Utrecht Law Review 60, 64 (2007).

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not part of the domestic legal system. Thus, for example, the African Charter on Human and People’s Rights is a foreign law instrument, for the reason that it does not bind the Portuguese State. It is interesting to note that we only found a single case of foreign international law use.34 Regarding freedom of association, the pcc evoked – just as obiter dictum – the African Charter on Human and People’s Rights and the Inter-American Convention on Human Rights. 2.2 Use of Foreign Law and Case Law The resource to comparative constitutional law does not aim to give foreign law a binding effect in the Portuguese order, especially if it derogates the Portuguese constitutional text. Comparative constitutional law tries to find common denominators between diverse constitutional orders to enhance the interpretative task.35 When does the pcc resource to comparative constitutional law analysis? The Court concludes that certain problem is not clearly addressed in the Portuguese Constitution, given the newness of the problem or the apparent rightness of more than one possible solution to it.36 Then, the Court uses some kind of legal comparison. But this expression “comparison” is shorthand for a complex phenomenon which can assume many intensity levels. 2.2.1 To Reinforce the Court’s Reasoning This kind of judgment is quite frequent in the Portuguese jurisprudence. Judges use comparative constitutional law as obiter dicta to emphasise their reasoning and add rhetorical force to the judicial interpretation.37 G.F. Ferrari very interestingly refers to this as “motivational background”.38 Cross-citations are

34 35 36

37

38

Ruling no. 589/04, 06/10/04. Catarina Santos Botelho, supra note 26, at 94. David Fontana, Refined Comparativism in Constitutional Law, 49 University of California Law Review 539, 556 (2001), Rosalind Dixon, A Democratic Theory of Constitutional Comparison, 56 American Journal of Comparative Law 947, 954 (2008), and Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harvard Law Review 109, 116 (2005). Andrea Lollini, Legal argumentation based on foreign law – An example from case law of the South African Constitutional Court, 3 Utrecht Law Review 60, 66, and Eric Khushal Murkens, Comparative Constitutional Law in the Courts: Reflections on the Originalists’ Objections, 41 Verfassung und Recht in Übersee 32, 47 (2008). G.F. Ferrari, The Use of Foreign Law by Constitutional Courts, 4 Irish Journal of Legal Studies, 24–38, 36 (2014).

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given an “informational value” by presenting foreign solutions for a particular question.39 References style can vary: some may be laconic “see also” references, while others may further discuss the content of the comparison.40 What is relevant is that cross-citations to reinforce a Court reasoning do not necessarily imply that they were truly decisive for the outcome of a case. Just to give some examples of this kind of gathering of significant information, the ppc decided that “the value of the compensation of the expropriated asset stands for its market value and should not be influenced by speculative factors”,41 that when establishing differentiations that put the equality principle at risk “a criteria of reasonableness should be established”,42 that “the execution of the expulsion order should be suspended when the person at stake has minor children with Portuguese nationality at his/her responsibility”,43 that in the majority of European States, pharmacy ownership is limited to pharmacists,44 that university autonomy is recognised in several constitutional orders (such as Italy, Germany or Brazil),45 or that many constitutional orders differentiate between State subventions to political parties and State subventions to parliamentary activities.46 When considering the acceptance or non-acceptance of the invalidity of telephone interceptions when the court upholds the nullity of the evidence because a formal legal requirement has not been met, the pcc candidly exposed that “comparative law demonstrates that neither legislation nor legal theory or case law have succeeded so far in setting out general principles which would make it possible to address and resolve such issues in a legal framework”.47 Inspired in the case-law of the United States of America,48 it concluded that “the rules governing telephone tapping therefore have to be interpreted restrictively: since the constitutional principle concerned prohibits interference in telecommunications, where such interference is permitted the principle of 39 40 41 42 43 44 45 46 47 48

John O. McGinnis, Foreign to our Constitution, 100 Northwestern University Law Review 303, 310 (2006). Martin Gelter & Mathias M. Siems, Citations to Foreign Courts – Illegitimate and Superfluous, or Unavoidable? Evidence from Europe, 62 The American Journal of Comparative Law, 35, 81–82 (2014). Ruling no. 147/1993, 28/01/1993. Ruling no. 594/12, 06/12/2012 and Case no. 232/03, 13/05/2003. Ruling no. 232/04, 31/03/2004. Ruling no. 187/01, 02/05/2001. Ruling no. 491/08, 07/10/2008. Ruling no. 176/17, 06/04/2017. Ruling no. 407/97, 18/07/1997. Olmstead v. United States 277 U.S. 438 (1928) and Katz v. United States 389 U.S. 347 (1967).

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proportionality has to be observed by guaranteeing that the restriction of the fundamental right due to the telephone tap is reduced to the minimum strictly necessary to satisfy the protection of the constitutional interest in identifying a specific offence and punishing its perpetrator”. Same-sex marriage case was one of the cases in which the pcc made extensive reports on foreign law, this time not only focusing on foreign jurisprudence, but also on foreign national legislation.49 In an interesting note, the pcc made a distinction between jurisprudence from similar jurisdictions (Germany and Belgium) and case-law from different jurisdictions (United States of America, Canada and South Africa). This reference to case-law from common law States was heavily criticised in a dissenting opinion to the ruling presented by Justice Benjamim Rodrigues. The President of the Republic asked the pcc to conduct a prior review of the constitutionality of the norms contained in a Decree of the Assembly of the Republic which was sent to him for enactment and which permitted civil marriage between persons of the same sex.50 The Court reasoned that extending marriage to same-sex spouses does not “conflict with the recognition and protection of the family as a “fundamental element of society”, inasmuch as the Constitution undid the bond between the formation of a family and marriage, and offered its protection to the distinct family models which exist in our social reality. What is more, attributing the right to marry to persons of the same sex does not affect the freedom to enter into wedlock enjoyed by persons of different sexes, nor does it change neither the rights and duties which apply to those persons as a result of their marriage, nor the representation or image which they or the community may attribute to their matrimonial state”. The Court therefore decided not to hold the norms unconstitutional. In another case, there were two norms at stake in an Executive Law that transposed a Directive of the European Parliament and the Council on End-ofLife Vehicles into Portuguese law. The appellant alleged that these norms were materially unconstitutional. In fact, he argued that “setting short deadlines of eight days for performing depollution operations and forty-five days for reuse and recycling operations constituted a disproportionate restriction on the right to private initiative”. The pcc stated that, in consonance with many other foreign constitutions, the Portuguese Constitution subjects the freedom to

49 50

Ruling no. 121/10, 08/04/2010. In Ruling no. 359/2009, the pcc decided that the Portuguese Constitution does not oblige the law to allow same-sex marriages, and that both prohibiting them altogether and providing for a different regime is legitimate.

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engage in private initiatives to the requirement to respect other constitutional values with which that freedom may conflict.51 A few years ago, the pcc dealt with a wrongful birth situation.52 This concrete review case arose out of a request made by the parents of a minor for compensation for failure to fulfil a contractual responsibility (a medical error during a prenatal ecographic diagnosis) to provide a result. The question of constitutionality focused on the constitutional conformity with the compensatory protection granted to the minor’s parents by the Portuguese ordinary courts. The pcc relied on foreign case law53 to minimise the non-existence paradox, which initially contributed to courts refusing to award compensation in wrongful-birth claims. Referring to the inviolable nature of human life, “a denial of the ability to construct a case for damages on this basis would have to be based on a refusal to see someone’s life as a possible source of injury. The Court noted that these reservations had been progressively rejected by legal theorists and jurisprudence alike, as they gradually characterised the reality in question. The real issue here was simply the need to determine an amount or form of compensation for an unchangeable present injury (…). This position, which is more favourable to the viability of such suits, is underlain by the view that it is not justifiable to exclude medical malpractice from the compensatory protection available in such situations, which are seen as corresponding to obligations to secure a result, and that it would not be fair not to confer that protection to the supposed recipients of the information contained in this type of diagnosis”. In a concrete review case the pcc had to analyse the fundamental right to a nationality and the constitutional prohibition on requiring penalties to have automatic effects.54 Under article 9 (b) of the Portuguese Nationality Law,55 the prior conviction of an applicant for Portuguese nationality for an offence that is punishable by a prison term of three years or more constitutes grounds for denying the application. Similar rules can be found in Italian or French law. The pcc considered that “inasmuch as this negative prerequisite for denying applications for Portuguese nationality is an ex lege effect of the legal norms in question, it is not prohibited by the constitutional principle for penalties to have no automatic consequences. As noted above, the Constitution expressly leaves it to the ordinary legislator to configure the legal bond implicit 51 52 53 54 55

Ruling no. 75/13, 31/01/2013. Ruling no.55/16, 02/02/2016. United States of America case-law, in particular a California federate State Case Curlander v. Bio-Science Laboratoires, (1980). Ruling no. 106/16, 24/02/2016. Law no. 37/81, 3 October.

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in citizenship. The legal definition of the respective criteria, prerequisites and regime is essential to the practical implementation of the fundamental right to citizenship. It is up to the legislator – and not the Administration or the courts – to weigh up and choose the criteria and prerequisites for awarding and acquiring Portuguese nationality”. The gathering of information in other constitutional law experiences is also relevant when applying a legal institute or concept imported to the Portuguese constitutional law.56 2.2.2 As Persuasive Reasoning In this kind of reasoning, citations are determinant, as they “are an integral part of the motivation and are thus a source of inspiration for the judge who wrote the decision”.57 In 1990, the pcc, notwithstanding the fact that the Portuguese Constitution expressly prohibits retroactivity of a restrictive fundamental rights’ law,58 held that the retroactive effect of a procedural law was unconstitutional, as it violated the principles of the protection of trust and legal certainty as established by the German Federal Constitutional Court jurisprudence.59 There is little doubt that the minimum dignified existence concept was a major conquest for the protection of human dignity. Based on the German constitutional law jurisprudence,60 the pcc held that “the principle of respect for human dignity, which is embodied in Article 1 of the Constitution and which is derived also from the idea of the democratic state based on the rule of law, mentioned in Article 2 and again in Articles 61 (1) and 63 (3) of the Constitution (which guarantees everyone the right to social security and requires the social security system to protect citizens in all situations in which the means of subsistence or the capacity to work have been lost or impaired), implies recognition of the right to or guarantees of a decent minimum income”.61 In a leading case related to religious freedom, the pcc analysed a decision in which the Lisbon Court of Appeal rejected a judicial challenge against the dismissal of a worker on the grounds that she had failed to fulfil her contractual

56 57 58 59 60 61

Rulings no. 198/04, 24/03/2004 and no. 572/08, 26/11/2008. G.F. Ferrari, supra note 39 at 36. Article 18, number 3, of the Portuguese Constitution. Ruling no. 287/90, 20/02/1991. The pcc ruling was inspired in the German Federal Constitutional Court (Bundesverfassungsgericht) rulings BVerfGE 11, 139 (1960) and BVerfGE 63, 356 (1983). Decision of 18 June 1975 – BVerfGE 40, 121 (134). Ruling no. 509/02, 19/12/2002.

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work schedule.62 The appellant, invoking her religion, refused to work from sunset on Fridays until sunset on Saturdays. At stake were the norms contained in the Law governing Religious Freedom which states that workers subject to a flexible working-time regime can be dispensed from working on the religious holidays and at the times of the day when their faith requires them to worship or refrain from working, and that they can make up for this by working the same number of hours at a different time.63 Inspired in generous case-law from the German Federal Constitutional Court, the pcc decided that these norms do indeed also apply to the shift-work regime. “The variable, rotating configuration of the shift-work regime is flexible and permits solutions that fulfil both the letter and the spirit of the law, in such a way as to create conditions that favour the exercise of workers’ religious freedoms whenever possible”. In May 2017, the pcc used foreign case-law (from the United States of America)64 to ground its decision.65 The pcc found no unconstitutionality in a norm deduced from the conjugation of various Code of Criminal Procedure (cpp) articles, “when interpreted to mean that if an accused person has been formally indicted for committing a crime66 and those charges have been summarily rejected by a court because the indictment failed to adequately describe an element that typifies the legal kind of crime in question, new charges in which the original oversight is remedied can be brought against the same person for commission of the same crime at the same time and in the same place. The protection which the procedural dimension of the principle of ne bis in idem gives to the accused’s position does not demand that the State’s desire to punish a criminal be necessarily exhausted the first time a court rejects criminal charges, particularly when the grounds for that rejection only entail a formal inadequacy on the part of the indictment”. The Court reasoned that “a solution whereby any error (in this case, an insufficient description of one of the elements that typify the crime) makes criminal charges ‘unfit’ to define the object of the trial would make it impossible to seek to bring a criminal perpetrator to justice, thereby frustrating the objectives of the whole criminal procedural system. Criminal justice could be rendered unachievable by mere imprecisions and mistakes that are capable of 62 63 64 65 66

Ruling no. 544/14, 15/07/2014. Article 14 of Law no 16/2001, 22 June. Illinois v. Somerville, 410 U.S. 458 (1973). Ruling no. 246/17, 17/07/2017. The crime was driving a vehicle under the influence of alcohol.

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being remedied, and this is an outcome the ordinary legislator would not want and the Constitution does not impose. In other words, such an interpretation could lead to a failure to implement criminal justice, merely because of remediable imprecisions and errors, and this is not something the Constitution requires”. 2.2.3 To Dissent the Majority Opinion In this scenario, comparative constitutional law does not appear in the main text of the ruling, but in the dissenting opinion itself. Just to name a few examples of comparative constitutional law as a way of reinforcing dissent, pcc Justice Armindo Ribeiro Mendes argued that in the French experience the fixation of compensations regarding nationalisations or expropriations is a jurisdictional competence, not an administrative or legislative one,67 and Justice José de Sousa e Brito used the German notion of “conscientious decision-making” (Gewissenentscheidung) to refer to conscientious objectors status.68 Regarding the control of constitutionality in judicial cases, the Portuguese Law of the Constitutional Court consecrates that some appeals “only apply to decisions that admit no ordinary appeal because the law does not provide for this, or because all those available to the case have been exhausted, except those aimed at standardising jurisprudence” (article 70 (2)).69 The pcc held a generous interpretation of this norm, accepting an appeal to grant citizens some kind of access to the Court.70 In her dissenting opinion, Justice Maria Lúcia Amaral considered that the pcc’s reasoning did not take in account our constitutional review system, which follows the subsidiary idea that other constitutions grant, in order to filter the cases that are brought to the constitutional courts. In 2013 the Portuguese Code of Criminal Procedure was amended in such a way that Appeal Court decisions imposing prison terms of not more than five years could not be the object of appeal themselves, even if the Court of Appeal overturned a verdict of acquittal at first instance.71 The pcc found that “inasmuch as the amended norm did not make an exception of situations in which a decision to acquit at first instance was reversed by the second instance, it was unconstitutional”. The pcc used an international law approach. However, in her dissenting opinion, Justice Maria Lúcia Amaral expressed some normative 67 68 69 70 71

Dissenting opinion to Ruling no. 452/95, 06/07/1995. Ruling 711/95, 06/12/1995. Law no. 28/82, of 15 November. Ruling no. 329/2015, 23/06/2015. Ruling no. 412/15, 29/09/2015.

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concerns and defended that the Court should have given more attention to the Spanish Court jurisprudence. In sum, it should not have inverted the Portuguese constitutional jurisprudence, which never objected to the possibility that an appeal court conviction cannot itself be appealed. 2.2.4

To Alert to (or to Demystify Apparent) Singularities of Some Constitutional Law Solutions When we come across a reproduction in our constitutional text of institutes or norms expressly consecrated in other legal orders, we can identify a “legal transplant” situation.72 Notwithstanding the relevance of a comparative approach, and as is the case with medical transplants, legal transplants have their risks as well. To overcome this challenge, the interpreter ought to be sure that there is enough compatibility between them.73 A constitutional law model adapted by a given State is seldom a pure option between diffuse and abstract control models. In fact, as the constitutional control maturates over time, areas of imbrications and some singularities can be distinguished. The Portuguese system is no exception. This uniqueness is visible not only in the constitutional text, but also in many legislative options of a State. In 1998, the pcc highlighted that the institute of the “party assisting the public prosecutor” (someone who collaborates with the public prosecutor)74 is a specificity of the Portuguese criminal procedural law and there is no analogous institute in the comparative arena.75 Another interesting case was the one related to the right to form associations.76 The Ombudsman applied to the pcc in respect of the legislative provision making the promotion and setting up of “international associations” subject to authorisation by the government, given that this governmental authorisation restricted freedom of association viewed as a positive right of association. Article 46 (1) of the Portuguese Constitution states that citizens may form associations without requiring any authorisation, provided that such associations do not encourage violence and their aims are not contrary to criminal law. These two conditions are the only limits which the Constitution sets on freedom of association. The pcc highlighted that this constricted scope is 72 73 74 75 76

Giuseppe de Vergottini, Derecho Constitucional Comparado, Universidade Nacional Autónoma de México 16 (2004). Christopher Osakwe, Introduction: The problems of the comparability of notions in constitutional law, 59 Tulane Law Review 875, 876 (1985). Articles 68 to 70 Law no. 77/87, wording of Law no. 94/2017, of 23 August. Ruling no. 254/98, 05/03/1998. Ruling no. 589/04, 06/10/04.

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quite rare in a Comparative Constitutional Law perspective, being even narrower than the Spanish, Canadian, Bolivian or Russian constitutional texts. Again, according to article 46 (1), the setting up of associations is not subject to any authorisation, except in the case of associations intended to promote violence and whose aims are contrary to criminal law. “The constitutional provision governs the positive freedom to form an association without any constraint and, further still, clearly rules out any administrative interference consisting in making the setting up of associations dependent on the approval of a public body. The text of the Constitution thus places an absolute ban on making the promotion and setting up of associations, whatever their nature and framework, subject to a system of authorisation (in the sense of an ‘administrative decision by virtue of which a person is able to exercise a right or legal powers’ or a ‘decision whereby an administrative body allows a person to exercise a right or a pre-existing power’)”. Regarding the depositions given before trial, the pcc clarified that the Portuguese Code of Criminal Procedure does not follow the model of the German or Italian law.77 Another situation usually highlighted by the pcc relates to the Portuguese model of constitutional control lacking a constitutional complain mechanism, as the German “Verfassungsbeschwerde” or the Spanish “recurso de amparo”). Therefore, the pcc does not have jurisdiction to control the constitutionality of judicial decisions that supposedly disrespect fundamental rights.78 Quite on an opposite note, the pcc may have the need to clarify that an apparent singularity of the Portuguese constitution is, in fact, a constitutional design option shared by other States. This situation happened regarding article 62 of the Portuguese constitution. This norm appears in the social rights catalogue and states that “everyone is guaranteed the right to private property and to the transmission thereof in life or upon death, in accordance with the Constitution”.79 This normative redaction does not contain, as observed in many other constitutional law experiences, a literal reference to the ordinary legislation as an instrument of shaping the content and the limits to the right to property. 77 78

79

Ruling no. 24/16, 19/01/2016. Ruling no. 219/2017, 03/05/2017, paragraph 2.2. Arguing for the introduction of a constitutional complaint mechanism in Portufal, see, among others, Catarina Santos Botelho, A Tutela Directa dos Direitos Fundamentais – Avanços e Recuos na Dinâmica Garantística das Justiças Constitucional, Administrativa e Internacional 113–284 (2010). First paragraph of article 62.

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Nevertheless, the pcc concluded that the expression “in accordance with the Constitution” reveals an implicit delegation to the ordinary legislator. In this sense, the Portuguese redaction of the right to property is not as different as the ones from the Spanish, Italian or German constitutions.80 2.2.5

To Refuse Automatic and Decontextualised Importations of Foreign Law (Nonborrowing Decisions) The comparative task is not an easy one. Attention should be given to the dynamics between the legal order looking for comparison (comparatum) and the legal order being subject to that comparison (comparandum).81 This is why comparing cannot be translated to lazy “cherry-picking”,82 “ad hoc borrowing”83 or “promiscuous opportunism”84 of the comparandum systems, in order to prove a point. To avoid such selective use of comparative law, interpreters should reason with intellectual integrity. Some scholars warn about the dangers of lacking methodological criteria when choosing the comparandum legal system.85 The hazard of a casuistic and opportunistic approach of the comparative analysis is plain to see. Interpreters should refrain from importing foreign solutions without a responsible look at each State’s political, historical and cultural worldviews and idiosyncrasies. We must not forget the “cultural legacy” ingrained in each constitutional text which makes them truly unique.86 When comparing, an interpreter should consider the following: comparative constitutional law is a science based on national law.87 In other words, the core of comparative reasoning is not abroad, but inside our own legal system, with the spotlight aimed at the national law.88

80 81 82 83 84 85 86 87 88

Ruling no. 421/2009, 13/08/2009. Giuseppe de Vergottini, supra note 73, at 38. Justice John Roberts apud Mark Tushnet, When is Knowing Less Better than Knowing More? Unpacking the Controversy over Supreme Court Reference to Non-U.S. Law, 90 Minnesota Law Review 1275, 1280 (2006). David S. Law, Generic Constitutional Law, 89 Minnesota Law Review 652, 701 (2005). Richard A. Posner, No Thanks, We Already Have Our Own Laws, Legal Affairs 5 (2004). Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 American Journal of Comparative Law 125 (2005), and Roger P. Alford, In Search of a Theory for Constitutional Comparativism, 52 University of California Law Review 639, 641 (2005). Peter Häberle, supra note 8, at 50. Antoine J. Bullier, Le droit comparé dans l’enseignement – Le droit comparé est-il un passe temps inutile?, Revue de Droit International et de Droit Comparé 163, 164 (2008). Catarina Santos Botelho, supra note 26, at 77.

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The pcc did not hesitate to deny decontextualized constitutional law importations. In these situations we are faced with “nonborrowing” cases, in which the Court refused a foreign constitutional influence.89 In 1998, the Court was asked to review – before it took place – the constitutionality and legality of the national referendum to decriminalise the termination of pregnancy in the first 10 weeks.90 The ppc stated it could not replicate the German Federal Constitutional Court reasoning in this subject because the German jurisdiction examined a quite diverse legal solution, taking into consideration the nature of the guidance given to the pregnant woman and the high requirements for the permission of termination of pregnancy. In a case regarding Labour Law, the appellant argued that the duration of the experimental period was very generous in the Portuguese law, as opposed to the legislative options of other States, such as Spain, France or Italy.91 However, the pcc warned that “a comparative argument should be used carefully. A comparison, to be fruitful, cannot be made of a single institute analysed in isolation” from the entire pertinent legislation. “One should only compare what is comparable; and the truth is that the figure of the experimental period in other States (…) because they belong to legal regimes different than ours, can achieve a sense and a relevance that do not allow automatic transportability to understanding the Portuguese system”.92 In 2009, when deciding about the polemic question regarding same-sex marriage, the pcc acknowledged that “the legal orders where there was a judicial redefinition of marriage did not contain in their Constitutions equivalent norms to articles 36 and 37 of the Portuguese Constitution. Furthermore, those legal orders, with Anglo-Saxon roots, (…) are not similar to the tradition based in the 1789 French Declaration of Rights”.93 We can conclude that with this reasoning, the pcc adhered to the scholarship which argues that micro-comparison should take place only amongst similar legal families, as they share a common past and roots.94

89 90 91 92 93 94

Lee Epstein and Jack Knight, Constitutional borrowing and nonborrowing, 1 (2) icon, 196 (2003). Ruling no. 288/98, 17/04/1998. Ruling no. 632/2008, 23/12/2008. Paragraph 12. Translation by the Author. Ruling no. 359/09, 09/07/2009, paragraph 12. Translation by the Author. Lucio Pegoraro, El Método en el Derecho Constitucional: La Perspectiva desde el Derecho Comparado, 112 Revista de Estudios Políticos 9, 23 (2000), and María Isabel Garrido Gómez, La Utílidad del Iuscomparatismo en la Armonización de los Sistemas Jurídicos, 108 Boletín Mexicano de Derecho Comparado 907, 920 (2003).

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With respect to the subject of medically assisted procreation, the pcc ruled very clearly that “foreign law is not a constitutional parameter. But there is no doubt that in subjects related to universal human questions such as the ones relating to medically assisted procreation there could be an interest in knowing what happens in other legal experiences and (without losing the logic of each State’s autonomy) maybe reach out for some conclusions, especially when common principles can be developed from such experiences”.95 Considering the absence of any criminal punishment for unpaid surrogate maternity, the law does not provide for penal sanctions for unpaid surrogate mothers. The pcc declared that “while the legislative authorities are not necessarily obliged to criminalise a given form of conduct, whenever they consider that there is a legal asset or right which deserves the protection of the law they do possess a degree of freedom to consider their choice of the most appropriate means of guaranteeing that asset or right, while simultaneously respecting the other values and interests which the Constitution protects in the light of the key principle of the dignity of the human person. The Court therefore considered that there was no unconstitutionality in that omission”. Recently, the pcc was asked to engage in an ex post facto abstract review of certain norms contained in the 2014 State Budget Law.96 These norms determined new ways of calculating and reducing survivors’ pensions in cases in which they are accumulated with income from other pensions. The Court held “it was necessary to ask whether the cut in survivors’ pensions operated by the application of new formation rates was capable of affecting the right to a pension in its role as a manifestation of the constitutionally guaranteed right to social security”. “That which the Constitution guarantees is the right to a pension, not the right to receive a certain amount in the form of a pension. The concrete amount is calculated by applying criteria that possess infra-constitutional value”. The pcc concluded that “the norms did not violate the constitutionally relevant content of either the right to social security or the right to a pension”. The Court stated that, as the Portuguese Constitutional specifically protects the right to a pension (article 63), this question need not be addressed by means of the right of property (article 62) in the same way it is addressed in States that do not have a constitutional protection of the right to a pension. Therefore, the comparative constitutional law arguments presented by the applicants were not considered to be admissible.

95 96

Ruling no. 101/09, 03/03/2009, paragraph 5, c). Translation by the Author. Ruling no. 413/14, 30/05/2014.

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Between Patriotism and Cosmopolitanism: Concluding Remarks

States’ constitutional history carries out a very strong constitutional identity, in the sense of a “constitutional patriotism”.97 In this light, one may argue that as the result of a specific culture and history, the constitutional text should be somehow protected from exterior interferences. This is why some scholarship see the increasing relevance of comparative constitutional law as a dangerous cosmopolitan crusade to seduce judges to renounce national law in favour of an elite foreign law.98 Bearing this in his mind, former United States Supreme Court Justice Antonin Scalia, an originalist, stated very openly that foreign law is “alien law” and a mere “fashion” drift.99 It should not be taken into account by American judges, given the different social preferences and institutional arrangements of American constitutional design. This trend has reached desperate proportions, as United States Supreme Court Justice Kennedy was called “the most dangerous man in America”, after showing his support for cross-citations.100 Accordingly, other scholars did not hesitate to accuse comparative constitutional law of promoting judicial activism to an extent where constitutional separation of powers between legislator and courts could be at stake.101 For us, the link between an active role in judicial comparison and judicial activism lacks empirical support.102 97

To use the expression “constitutional patriotism” (Verfassungspatriotismus) given by Dolf Sternberger in 1979. 98 Richard A. Posner, supra note 85, at 6. Posner’s idea rests in a Darwinist argument: if the United States has the best constitutional law system, why should judges spend time studying less advanced constitutional law systems? For interesting studies on the unfair pejorative sense given to “cosmopolitanism”, see Rui Medeiros, A Constituição Portugesa num Contexto Global, 82–90 (2015), and Vlad Perju, Cosmopolitanism in Constitutional Law, 35 Cardozo Law Review 711 (2013). 99 See case Printz versus United States, 51 U.S 898 (1997). Some scholars argue that nowadays are identifiable new originalist trends, which are more “intellectually sophisticated and defensible”. See Thomas B. Colby, Originalism: Less to the Picture than Meets the Eye?, 31 (3) dpce Online (2017). 100 James Dobson apud Martin Gelter & Mathias M. Siems, supra note 41 at 36. 101 Carlos F. Rosenkrantz, Against borrowings and other nonauthoritative uses of foreign law, 1 (2) Icon, 269, 283 (2003), Cherly Saunders, Judicial engagement with comparative law, Research Handbook in Comparative Constitutional Law 571, 583–586 (2011), Ernesto J. Sanchez, A Case Against Judicial Internationalism, 38 Connecticut Law Review 185 (2005), Ronald E. Childress, Using Comparative Constitutional Law to Resolve Domestic Federal Questions, 53 Duke Law Journal 193, 219 (2003). 102 Catarina Santos Botelho, supra note 23. Nuno Garoupa, Comparing Judicial Activism – Can We Say that the US Supreme Court is more Activist than the German Constitutional Court?, Revista Portuguesa de Filosofia 1090, (2016) discusses whether the pejorative term “activism” really is “a bad thing”. We agree with Nuno Garoupa’s assertion of “judicial activism”

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These critiques raise important and difficult questions, but are ultimately not entirely convincing. In our opinion, if “patriotic constitutionalism” discourse can be appealing to some, it cannot stop the brave new world of internationalisation. Before jumping on board of the originalist bandwagon, perhaps one could reflect upon the words Laurence Tribe brilliantly wrote: “the long-run costs of wearing global blinders” – and even of pretending to wear them while in fact peeking across the seas (…) – would outweigh the short-term tactical gains of mollifying those who fear that such glances at other lands are but the harbingers of an abandonment of our sovereignty and of our exceptionalism”.103 In fact, behind the scenes, there is always some degree of cross-border interaction, even if just through informal transnational networking of judges. Comparative constitutional law works towards harmonising and exchanging ideas, not towards blindingly uniformising constitutional law.104 By stripping layers of particularities, we can get to a common ground and create “an interrelation among different constitutional heritages”.105 For that reason, comparative digression longs for a horizontal compromise of societal and normative conceptions. As a result, since foreign law is not authoritative, it does not aspire to a vertical compromise of internationalist authority.106 One should not fear constitutional comparative law. As Martin Gelter and Mathias M. Siems very humorously put it, “at best, cross-citations provide a source of inspiration to interpret national law. At worst, they are largely ornamental”.107 Nowadays, courts are asked to decide about unstable or new legal concepts that challenge constitutional law in a way like never before: data protection rights, research on embryos, environmental issues, minorities’ protection, sexual orientation, religious freedom, national security, self-determination

103 104 105 106

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being somehow “an empty concept”, hence a vicious circular concept. In a context like the Portuguese one, where the Constitutional Court has significant powers of constitutional review, judicial activism cannot simply mean strong constitutional adjudication. The Invisible Constitution 187–188 (2008). Even though there are some scholars arguing for a universal, Esperanto-like language of constitutional adjudication and reasoning. See David Law, Generic Constitutional Law, 89 Minnesota Law Review 652 (2005). G.F. Ferrari, supra note 39, at 27. Carla Zoethout, The Dilemma of Constitutional Comparativism, 71 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 794 (2011) and Rex D. Glensy, Which Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45 Virginia Journal of International Law 357, 449 (2005). Citations to Foreign Courts – Illegitimate and Superfluous, or Unavoidable? Evidence from Europe, 62 The American Journal of Comparative Law 35, 35 (2014).

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rights, social retrogression during economic and financial crises, and several other challenges. In this scenario, jurisdictional dialogue and legal comparison that can offer new insights are more than welcome. Legal systems problem solving does not rely only on self-reference elements, but also on external references.108 Comparative constitutional law faces the immense challenge of trying to balance legal universalism – or, if we are less optimistic, knowledge ­universalism – and differentiation. Attention should be given to the limits of legal comparison. Furthermore, a comparative study is better achieved not by simply describing foreign order, but by trying to establish what unites and separates both orders. As former Vice-President of the pcc Maria Lúcia Amaral wrote, there is a difference between a “mechanical” and “acritical” comparison and a critical and substantial comparison, which forces us to engage in a reasoning of selection.109 Comparing legal order A with legal order B might be different from comparing legal order A with legal order C or D or E. An egalitarian approach, which puts all comparandum orders in the exact same position, is not advised.110 This problem raises the pertinent question of finding a suitable methodology for selecting which legal order to compare in a sheer complexity of constitutional orders. It is true that most comparative constitutional law studies are doctrinal and normative, whereas empirical analysis could play a relevant role.111 A feasible solution for a methodological approach could be relying on these similarity variables: (i) geographic, cultural, and linguistic proximity; (ii) political and historical connection, as is the case with former colonies of the Commonwealth or the Portuguese Empire; (iii) legal families – civil law and common law; (iv) legal origins, as the French or the German; (v) strong economic or diplomatic relations; (vi) constitutional and institutional structures; (vii) fundamental rights design of given constitutions. We can gather that having judges involved in legal comparison is not a meretricious practice, since the Damocles sword of a minimum of homogeneity 108 Niklas Luhmann, Law as a society system 157 (2004). 109 Queixas Constitucionais e Recursos de Constitucionalidade (Uma Lição de “Direito Público Comparado”), I Estudos Comemorativos dos 10 Anos da Faculdade de Direito da Universidade Nova de Lisboa 473, 476 (2008). 110 Peter Häberle, supra note 8, at 270. 111 Basil Markesinis & Jörg Fedtke, Judicial resource to foreign law: a new source of inspiration? 127 (2006), Osmar J. Benvenuto, Reevaluating the Debate Surrounding the Supreme Court’s Use of Foreign Precedent, 38 Fordham Law Review 2726 (2006) and Ran Hirschl, The Rise of Comparative Constitutional Law: Thoughts on Substance and Method, Indian Journal of Constitutional Law 11, 36 (2008).

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between legal orders is hanging directly over the comparative exercise.112 Therefore, one of the main conclusions we can assert is that a comparative constitutional law analysis should at all times be preceded by the study of the comparandum State(s) constitutional history and the sources of law. This is the only way to avoid a superficial or outward legal comparison. We do understand that constitutional judges must reason within the constraints of time and the limits of their own language abilities. However, it seems to us that refusing comparative activity only on these grounds would be disguised short-sightedness. Comparative constitutional law is open to all jurisdictions, whether new or old and well-established ones.113 In a sophisticated statement, Otto-Brum Bryde, former Justice at the German Federal Constitutional Court, held that even jurisdictions from consolidated democracies and with highly respected constitutional courts should benefit from legal comparison.114 Comparative constitutional law revolves around seeking similarities and appreciating differences.115 In this sense, comparative constitutional law – and also comparative law in general – have a double merit: on the one hand, they urge us to praise the unique features of our legal system; on the other hand, an awareness of other approaches allows us to be informed of better solutions given to a specific problem by a foreign legal system, therefore encouraging legislative reform initiatives.116 This article has endeavoured to show that seeking foreign extra-systemic legal elements is not diminishing to a constitutional court, but quite enriching. In the Portuguese case, it is fair to conclude that more than a comparative constitutional law approach, we have a reputable comparative constitutional 112 Gustavo Zagrebelsky, Jueces constitucionales, Teoría del neoconstitucionalismo – Ensayos escogidos 105–119 (2007), Peter Häberle, Role and impact of constitutional courts in a comparative perspective, The Future of the European Judicial System in a Comparative Perspective 65, 66 (2006). 113 See the most recent research in this area, such as Richard Albert, Xenophon Contiades & Alkmene Fotaidou (eds.) The Foundations and Traditions of Constitutional Amendment (2017), in which the editors explicitly have chosen to trace relevant developments in comparative public law regardless of the State’s constitutional popularity (if one may even use that expression). 114 The Constitutional judge and the international constitutionalist dialogue, Judicial recourse to foreign law: a new source of inspiration?, 297 (2006). 115 Roger Cotterrell, Law, Culture and Society – Legal Ideas in the Mirror of Social Theory, 148 (2006). 116 Catarina Santos Botelho, supra note 26, at 83. Arguing that the knowledge of other constitutional realities can not only “deepen self-understanding”, but can also “guide self-improvement”, Gary Jeffrey Jacobsohn, The Permeability of Constitutional Borders, 82 Texas Law Review 1763, 1766 (2004).

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jurisprudence approach. This is not surprising, since the Portuguese history has been highly influenced by multiple connections with other nations.117 As Fernando Pessoa, one of the greatest Portuguese poets of all times, very intriguingly wrote: “the Portuguese people are essentially cosmopolitan. Never a true Portuguese was Portuguese: he was always everything”. One should not fear the elevating intellectual exchange provided by comparative constitutional law. Friedrich Hölderling was absolutely right when he put together that “where the danger is, also grows the saving power”. Indeed, legal comparison is not a vain exercise, as it can cement the reflexive process that underlies reasoning and applying the law.118 Finally, and perhaps more importantly, legal comparison helps us understand where our legal order comes from, what our legal order is and which direction it wants to evolve in.119 Acknowledgements The Author thanks Gonçalo de Almeida Ribeiro and Nuno Garoupa for very helpful insights. The usual disclaimers apply. 117 Ana Maria Guerra Martins and Miguel Prata Roque, supra note 24, at 314. 118 Abbo Junker, Rechtsvergleichung als Grundlagenfach, 49 Juristenzeitung 921, 922 (1994) and Daphne Barak-Erez, The Institutional Aspects of Comparative Law, 15 Columbia Journal of European Law 477, 478 (2009). 119 Catarina Santos Botelho, supra note 26, at 83. See also Aharon Barak, Response to the Judge as Comparatist: Comparison in Public Law, 80 Tulane Law Review 195, 196 (2005), Edward J. Eberle, The Method and Role of Comparative Law, 8 Washington University Global Studies Law Review 451, 472 (2009), and Ran Hirschl, supra note 112 at 12.

The Italian Constitutional Court Vincenzo Zeno-Zencovich 1 Introduction To understand the role of foreign law, foreign decisions and of legal ­comparison in the decisions of the Italian Constitutional Court, it is necessary to provide a very brief outline of its history, its functions and its activity.1 The Constitutional Court (Corte Costituzionale) was introduced for the first time in the Italian legal system with the 1948 Constitution (articles from 134 to 137). Owing to strong resistance by conservative political circles it started operating only in 1956. It is composed of 15 members who form a sole chamber (i.e. there are no sections of the Court). Five of the members are elected by the three highest judicial courts: three by the Court of Cassation (Corte di Cassazione) which is the expression of ordinary (civil and criminal) jurisdiction; one by the Consiglio di Stato, the highest administrative jurisdiction; one by the Corte dei Conti, the highest public accountancy court. Other five are elected by Parliament (both members of the Senate and of the Chamber of Deputies) with a very high a majority (not less than 3/5 of all its members). The last five are designated by the President of the Republic. The members of the Constitutional Court remain in office for nine years and may not be re-elected or re-appointed. While the five members elected by three judiciary bodies are, invariably, high ranking judges who are still in office, the other ten members vary in their background. Most of them are law professors, often of great repute, but some may be politicians with a legal background. The constitutional requirement is that the judges must be or members of the judiciary, law professors or practicing lawyers. The main competences of the Constitutional Court are three: (a) Constitutionality of laws, both national and regional (b) Conflicts of apportionment between the powers of the State (typically Parliament and the judiciary) and between the State and regions, or between Regions (c) The impeachment of the president of the Republic. 1 For a detailed presentation of the Italian Constitutional Court one can now refer to the excellent volume by Vittoria Barsotti, Paolo. G. Carozza, Marta Cartabia, and Andrea Simoncini, Italian Constitutional Justice in Global Context, oup, 2016. © koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_018

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In these last sixty years there has been a significant shift in the kind of cases brought in front of the Court. Initially they concerned mostly the constitutionality of laws (especially those dating back to the Fascist period). After the 2001 Constitutional reform, with the devolution of numerous powers to the Regions, conflicts in this area have increased considerably and represent nowadays more that 40% of the cases. In the case of conflicts of apportionment the case is brought directly to the Court by the institution which deems its prerogatives have been invaded. The question of constitutionality of a law is, instead, raised incidentally in a pending case, when the judge is of the opinion that the law he or she should apply is contrary to Constitution, and therefore asks for a decision on this point by the Court. The Italian system does not foresee direct access to the Constitutional Court by individuals (as in the “recurso de amparo”) or by members of Parliament (as in the French model). In these 60 years the Court has rendered over 20,000 decisions. In the cases concerning the constitutionality of law the most recent statistics show, quite expectedly, a great majority of cases in which the unconstitutionality has been denied, and a more limited number of cases in which it has been declared. This data, however, may be misleading because in many cases of denial there are many decisions of so-called “interpretative rejection”: the law is not unconstitutional provided it is interpreted in the way dictated by the Court; or of “manipulation” of the norm to which some element is added to render it constitutional. All the decisions are taken by the full Court and signed by President of the Court and by the reporting judge. There are no dissenting opinions. 2

Empirical Results and Some Cases

In the two main empirical researches on the role of foreign law, foreign caselaw and comparative law in the decisions of the Constitutional Court the first (from 1970 to 2004)2 has shown a very limited impact. The second (from 2006 to 2016)3 has produced more significant results, as compared to the past, but still very small in relation to the overall number of decisions. 2 Vincenzo Zeno-Zencovich, ‘Il contributo storico-comparatistico nella giurisprudenza della Corte costituzionale italiana: una ricerca sul nulla?’, in Diritto pubblico comparato e europeo 2005, p. 1993. 3 Paolo Passaglia, ‘Corte costituzionale e comparazione giuridica: una analisi (molto) sineddotica, una conclusione (quasi) sinestesica’, in I rapporti civilistici nell’interpretazione della Corte costituzionale nel decennio 2006–2016, esi, Naples, 2017.

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There are also other significant researches on more limited time-span4 or with a more methodological purpose.5 What is noticeable, however, that whatever the approach and the explanations provided, the results confirm that the Italian constitutional court in its history and also presently makes little use of foreign law, foreign case-law and comparative law. However, in order to illustrate what one is talking about when trying to evaluate the impact of foreign or comparative law, it is useful to present succinctly the most important cases in which this has emerged. In the first survey in only three decisions, in which the reporting judge, Edoardo Volterra,6 is the same, there is an ample historical and comparative reasoning which is used as strong support for a declaration of unconstitutionality. The first one7 concerns a provision, which was contained in the Civil Code, which forbade donations between spouses. The decision begins with an historical excursus which from Roman times goes through the Middle Ages until the French revolution and the Napoleonic Code Civil. Subsequently the various solutions adopted in Austria, in Germany, in Switzerland (to wit: all the most important European civil codes), and references also to some Latin American codes. The conclusion is that the Italian solution has no serious historical or doctrinal basis, and that comparative analysis shows that the prohibition of donations is unreasonably discriminatory against married persons. The second decision8 concerns another provision of the Italian Civil Code this time in the field of succession. Article 595 of the Code provided that in 4 Lucio Pegoraro, ‘La Corte costituzionale e il diritto comparato nelle sentenze degli anni ’80’, in Quaderni costituzionali 1987, p. 601. This research has been significantly widened by the same Author with a comparison with other constitutional courts in La Corte costituzionale italiana e il diritto comparato. Un’analisi comparatistica, clueb, Bologna, 2006. 5 Angioletta Sperti, ‘Il dialogo tra le corti costituzionali ed il ricorso alla comparazione giuridica nelle esperienza più recente’, in Rivista di diritto costituzionale 2006, p. 125. One can find more general comments in Alessandro Somma, L’uso giurisprudenziale della comparazione nel diritto interno e comunitario, Giuffrè, Milan, 2001; Paolo Ridola, ‘La giurisprudenza costituzionale e la comparazione’, in Guido Alpa (ed.), Il giudice e l’uso delle sentenze straniere. Modalità e tecniche della comparazione giuridica, Giuffè, Milan, 2006; Andrea Pin, ‘Perché le Corti comparano?’ ,in Diritto pubblico comparato ed europeo, 2012, p. 1429. 6 Edoardo Volterra, son of the famed mathematician Vito Volterra, was professor of Roman law in the universities of Bologna (where he was also rector) and Rome, and was expelled from university following the 1938 racial laws. He actively participated in the Resistance movement and was decorated for his valour. He always nurtured comparative interests. Among his works is a commentary on what is generally considered the first comparative law text, the “Collatio legum mosaicarum et romanarum”, dating back to the early v century a.d. 7 Decision 27.6.1973, n.91. 8 Decision 20.12.1979, n. 153.

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the case of re-marriage the second spouse could not receive through the will of the deceased spouse more than what the law granted to the sons of the first marriage. Here again the decision illustrates the long history of the rule which from Roman times reaches till the French Code Civil (from which it is replicated in Italy). However the decision points out that it was rejected in Austria, Germany and Switzerland and on such basis points out that the provision was clearly aimed at discriminating against the second spouse (generally a woman) in contrast with the principle of equality among spouses and among citizens. The third case9 concerns a provision of the Italian Penal Code which punished very seriously the crime of psychologically subjugating an individual putting that person under one own will. The crime was considered akin to slavery and placed among the provisions against slavery. Again the decision deeply analyses the historical origins of the provision; on how it was introduced especially to combat forms of entrapment of minors; on the differences between the provision of the Italian Penal Code of 1889 and that of 1930; on analogous provision in other criminal codes. Remarkably – at least in the tradition of the Constitutional Court –there is a lengthy analysis of the notion of “psychical deprivation” in medical science. The conclusion is that the norm is vague and undetermined and therefore contrary to the constitutional provision on the certainty of every penal norm. 3

The More Recent Developments

In the second period the decisions are more numerous (and we shall try further on to explain why). In the first place one finds decisions in which comparative law is used in support of the constitutionality of the challenged provision. In the case10 concerning the legislation on illegal immigration the decision points out that in several other European countries (France, Germany, UK) illegal immigration is a crime, often punished much more severely in Italy. Again11 French, German and British legislation is used to support the decision of Italian law in the case of liquidation procedures of enterprises operating in the field of services of general interest. In a further decision12 in which the contested provision was the anti-stalking legislation the Court rejected 9 10 11 12

Decision 8.6.1981, n. 96. Decision 8.7.2010, n. 250. Decision 22.7.2010, n. 270. Decision 11.6.2014, n. 172.

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the claim that the norms did not specify with sufficient precision the crime through an analysis of the similar provision in German law (there is a very long tradition of strong doctrinal convergence between Italian and German criminal law scholars) which punishes any conduct which can assimilated to that precisely set out in the norms. In several other decisions the analysis of foreign law is used to counter arguments on a supposed eccentricity of the impugned Italian legislation. The most noticeable example in which this method was followed is the decision13 which rejected the claim that the civil code provisions allowing marriage only between persons of different sexes was unconstitutional. The Court pointed out that the solutions to the issue were the most diverse, varying from jurisdiction to jurisdiction, and therefore it was up to Parliament, and not to the Court, to decide which to adopt. Finally, in a few – very few – cases reference has been made not to foreign laws, but to decisions of other constitutional courts. In a delicate decision14 concerning the (un)constitutionality of an electoral law, the Court supported its decision making reference to the arguments used, in similar cases by the German Bundesverfassungsgericht. 4

Unexpressed Use of Foreign and Comparative Law

The number of decisions by the Italian Constitutional Court in which there is an explicit reference to foreign law, foreign case-law and comparative law is extremely limited, even considering only 21st century jurisprudence. Before trying to set out some explanations and conclusions there are many caveats. (a) In the first place most cases brought in front of the Court do not justify a comparative approach. Practically all the cases of apportionment;15 but also in those cases in which the contested law is of an exclusively internal nature and it would be futile, if not ostentatious, to look at foreign examples, especially if, at the end of the day, the question of unconstitutionality is declared inadmissible or not founded.16 (b) In the second place the Court has, since the end of the 1980s, a very active and well-staffed office for foreign and comparative law research which, 13 14 15 16

Decision 14.4.2010, n. 138. Decision 13.1.2014, n. 1. With some noticeable, albeit unexpressed, exceptions, especially when the conflict is between Parliament and the judiciary. An exception might be – but again one does not find evidence of comparative arguments in the decision – when parliamentary discretion is challenged.

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on request by the President or by the reporting judge, prepares a rich file of legislation, case-law and legal doctrine which is circulated among all the judges; who therefore should be able to consider to what extent such materials are useful in the decision-making process. If and when these researches find their way in the written decisions is left to the style of the reporting judge. This generally happens only in very generic way through a reference to “foreign laws” or to “other jurisdictions”. But this does not mean that the Court has ignored what happens outside the boundaries of Italian jurisdiction. (c) One must also consider that ideas, solutions, rules foreign to the Italian legal tradition are constantly imported through the legislation of the European Union, through the decisions of its courts (mainly the cjeu), and through the case law of the European Court of Human Rights. The references to these elements – which are present in a very high number of cases concerning the constitutionality of national or regional laws – have not been analyzed here because they are considered as being part of the Italian legal system. As to the EU, especially after the 2007 Lisbon Treaties, its highly complex legislation is part and parcel of the Italian legal system and directly applicable not only by all judges but also by all public authorities.17 As to the echr the Italian Constitution (article 11) follows the monistic approach, and therefore ratification of international Conventions makes them enforceable within the national jurisdiction.18 This wealth of “external” legal materials makes it less impellent or even necessary, to look for solutions from other jurisdictions, but rather, more practically, to examine how the same issue has been implemented in other important and comparable countries. It does not, therefore, appear appropriate to apply some kind of “impact factor” in order to establish if the Italian Constitutional Court (or, as a matter of fact, any other Court) is, or is not, open to foreign or comparative laws, cases, ideas. 17

18

The Constitutional court, following other analogous European courts (see Paolo Passaglia, ‘Corti costituzionali e rinvio pregiudiziale alla Corte di giustizia’, at http://www.cortecostituzionale.it/documenti/convegni_seminari/CC_SS_Corti_costituzionali_rinvio_pregiudiziale_12012010.pdf [accessed 1.10.2017], has started, with order 18.7.2013, n. 207, to ask the cjeu for preliminary rulings in areas of the latter’s competence. With two decisions of 24.10.2007, nn. 348 and 349 the Constitutional court has stated that the Strasbourg jurisprudence is directly relevant in the Italian legal order, although the echr does not have the strength of a constitutional norm.

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A Critical Appraisal

If quantitative evaluations are in this field, as in many others, fallacious, this does imply that one cannot – and should not – express a series of critical remarks. A research on the presence or absence of foreign and comparative law in the case-law of the Italian Constitutional Court suggests some possible explanations of the paucity that has been detected. (a) In the first place, although comparative law is a widespread legal discipline and, since the last 20 years, a compulsory subject in law degree curricula, the judges in the Court have only rarely been engaged in comparative law research and teaching. And the noticeable exceptions are not – or have not – been sufficient to steer a general tendency towards domestic legal self-sufficiency. Comparative law is an attitude one acquires at an early stage of one’s legal formation and it is difficult to pick it up later on (the same can be said of the law & economics approach as of sociological jurisprudence). To this one must add that not only five of the judges come from the highest jurisdictions – which generally are devoid of any interest towards foreign experiences – but most of the judges’ assistants (clerks in the US, référendaires in the cjeu) are ordinary judges who to do not partake in comparative dialogues. (b) Secondly one should consider language barriers. A part from noticeable – very noticeable – exceptions few judges of the past had linguistical abilities, were invited abroad, made conferences in a language different from Italian. Clearly this does help create a “comparative mentality”. The best example of this general attitude is that only in 2016 (twenty years after the introduction of the Internet) the Italian Constitutional Court has activated a more accessible and complete English version of its web site. The materials are, however, still scarce and the translation of the headnotes, and of some of the decisions, is still far from the standards one would – and could – expect from such an important institution. And while the Court devotes significant effort to collect decisions from other constitutional courts,19 much less effort is made to be known abroad.

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See the web-page http://www.cortecostituzionale.it/jsp/consulta/documentazione/segnalazioni.do.

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(c) Finally one should observe that the en banc model of decision, with no dissenting opinions,20 tends to marginalize the use of foreign and comparative law. The judges concur not only in the outcome, but also in the opinion behind it, and therefore the tendency is that of avoiding arguments that might be seen as an intellectual flourish. Much better, and safer, an aurea mediocritas. To this one must add that comparative law arguments are among the most used in dissenting opinions, but if they are not allowed there is no way to introduce them in the debate. There are however more relevant lesson that can be drawn from the results of the research, which tell us a lot not so much about comparative law, but about the mentality of the Italian Constitutional Court.21 (a) The first, and most surprising, finding is that in practically all the decision what is lacking is a judicial history not only with reference to the millenary experience of Roman law (which admittedly makes sense only in a limited number of cases), but with the travaux préparatoires of the Italian Constitution which are hardly ever mentioned, and even more rarely cited are the great jurists which were the framers of the fundamental text. The decisions lack completely in historical depth. There is no interest in trying to understand how and why a norm was written in a ­certain way, and other versions were discarded. And obviously as “comparison involves history”, if there is no history there cannot be comparison. This a-historical attitude of the Italian Constitutional Court allows (or forces?) it not to be bound by firm traditional bearings and to adapt its decisions to the specific moment. This clearly renders the Court entirely self-­referential and unpredictable. (b) The second point that must be made is that the model of the decisions of the Italian Constitutional court is structured in such way that there appears to be no dialogue with the parties in the case, generally the private parties in the case in which the question of constitutionality has been raised, and the Avvocatura dello Stato (the institution which by law 20

21

Thousands of pages of scholarly work, dozens of seminars and conferences have been devoted to the issue without succeeding in breaking the tradition of the Court. For an exhaustive bibliography on the topic see Giuseppe Bergonzoni, ‘Corte costituzionale, autorevolezza, educazione alla democrazia: oltre l’unanimità e la segretezza?’, in Mauro Bertolissi (ed.), Riforme. Opinioni a confronto. Giornata di studi in ricordo di Livio Paladin, Jovene, Naples 2015, p. 169. I have tried to set out these conclusions in more detail in ‘Le sentenze della Corte costituzionale (come sono e come si vorrebbe che fossero’, in Rivista trimestrale di diritto pubblico 2016, p. 813.

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represents the interests of the State in front of the Constitutional court, as in front of most other courts). In the absolute majority of case the Court limits itself to explaining why it does not agree with the judge who has raised the question, and that is it. If one considers than most often counsel for the private parties are the most reputable lawyers and law professors of the country it is easy to understand that the court is not very open to any sort of dialogue.22 Not having to rebut the arguments of the parties, but simply to agree or, more often, disagree, with the judge a quo reduces significantly the length and depth of arguments used, which can easily be summed up in a peremptory “hoc volo, sic iubeo”. 6

Final Remarks

Comparative legal research is intellectually fascinating and extremely rewarding for an academic scholar. One should however be cautious in transposing such approach to constitutional adjudication. The risk that has been clearly set out with his usual pugnacious style by Justice Scalia in his dissent in Roper v. Simmons “is to look over the heads of the crowd and pick out its friends”.23 This mistrust towards a comparative approach cannot be attributed exclusively to Antonin Scalia’s strong ideological conservative stance. Similar views were expressed in the same case by Justice O’Connor in her dissent, which moves from very different political positions. One could venture to say that the use of comparative arguments in judicial decisions is only one of the many rhetorical styles used to enhance persuasiveness. The latter is an essential element of Justice, as socially perceived, but has little to do with the correctness of the decision. When it comes to constitutional adjudication what is of foremost importance is the consistency of the decision with constitutional values and traditions; its direct and indirect effects, included those which were unforeseen and unintended; the strengthening of legal certainty. Sound legal reasoning is not guaranteed only if it has passed a comparative law exam. There is a further caveat. As has been aptly pointed out by the dean of Italian comparative constitutional law scholars, Giuseppe de Vergottini, the much 22 23

And, following a tradition which is at least three centuries old, the Court does not quote (if not elliptically) writings of legal scholars: see Paolo Passaglia (ed.), I rapporti tra la giurisdizione costituzionale e la dottrina, Editoriale Scientifica, Naples 2015. 543 U.S. 551, at 622 (2005), adding: “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry”.

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publicized “dialogue among courts” (especially among constitutional courts) is an extremely ambiguous and even deceptive term.24 First of all, a dialogue requires at least two speakers who interact reciprocally. There is no “dialogue” if simply one court refers to foreign legislation or jurisprudence, without being looked back at. This one-way approach is simply one aspect of an ancient process, that of the circulation of legal models, in which some countries are only “exporters” and other countries only “importers”. Citing foreign law may be the first step towards a comparative analysis, but still is very far away from an appropriate use of comparative methodology, which implies a multiplicity of variables, which may be quite inappropriate in constitutional adjudication. One might conclude that it is the task of legal doctrine to compare constitutional jurisprudence, pointing out convergences, differences, strong and weak points, with the optimistic view that their writings will be taken into account and will contribute to a better judicial process. Acknowledgements I am grateful to Paolo Passaglia for his thoughtful comments on a first version of this article. 24

Giuseppe de Vergottini, Il dialogo transnazionale fra le Corti, Editoriale Scientifica, Naples, 2010.

Part 3 Northern Europe

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The Use of Foreign Precedents in Constitutional Interpretation by the Nordic Courts Francesco Duranti 1 Introduction The legal systems of the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden) are generally described – in macro-comparative systemology – in terms of a separate, distinct, legal family: “Scandinavian (Nordic) law is characterized by its specific legal method, its mixture of statutory and case law and its, in relation to most continental EU countries, less theoretical and conceptualized approach to legal problems. There exists a Scandinavian legal culture. The idea of Scandinavian law is not only about legislative techniques and concepts. It is based, in principle, on a common legal tradition which forms part of the larger community of common culture and social life of the Nordic countries”.1 The absence of an extensive codification of the law, the ‘concrete’ nature of the legal argumentation (direct consequence of Scandinavian legal realism), the distinction between public and private law, the affirmation of a strict legal positivism, the crucial (often decisive) influence of travaux préparatoires in judicial interpretation, the absence of the binding value of the precedents of the higher courts (or the principle of stare decisis), the strong (institutionalized in the Nordic Council) legislative cooperation between the five countries: all of these together with others, are elements which call for the existence of a uniform and distinct Nordic legal culture. From the point of view of global comparative law studies, “Nordic law thus seems relatively uniform, at least enough for us to be able to use the concepts of Nordic law in the sense of a legal family or broader legal culture”.2 It seems, therefore, appropriate to analyse unitarily the constitutional experiences of the Nordic countries, since these systems show also a high degree 1 Ulf Bernitz, What is Scandinavian Law? Concepts, Characteristics, Future, 50 Scand. St. L. 28–29 (2007). See also Jaakko Husa, A New Introduction to Comparative Law 228 (Oxford, Hart Publishing 2015). 2 Jaakko Husa, Kimmo Nuotio and Heikki Pihlajamäki, Nordic Law – Between Tradition and Dynamism, in Nordic Law – Between Tradition and Dynamism 10 (Jaakko Husa et al. eds., Antwerp, Intersentia 2007).

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_019

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of homogeneity of their constitutional culture, determining a specific “Nordic Family of Constitutional Law”.3 Still in introductory terms, it should, in any case, be noted that – also for a long part of the xx century – “there exists, generally speaking, no real strong tradition of constitutional law or constitutional doctrine in the Nordic states”4 and that only in the last few years it is possible to assist to a sort of a renaissance of the study of the Nordic constitutionalism.5 2

Judicial Review of Legislation in the Nordic Countries

The origins of judicial review of legislation in the Nordic countries dates back to a series of decisions of the Supreme Court of Norway in the 1820s, making this court the second worldwide to perform judicial review after Marbury vs. Madison in the usa,6 while Danish courts exercised judicial review from 1920s and Icelandic ones from 1940s.7 Although there are many distinctive features of the experiences of guarding the constitutionality of the laws in the five Nordic jurisdictions, the essential element among them is certainly represented by the absence of specialised Constitutional Courts charged with carrying out this task.8 3 Jaakko Husa, Nordic Reflections on Constitutional Law. A Comparative Nordic Perspective 168 (Frankfurt am Main, Peter Lang 2002). See also Joakim Nergelius (ed.), Nordic and Other European Constitutional Tradition (Leiden/Boston, Brill 2006). 4 Joakim Nergelius, New Tendencies in Modern Nordic Constitutional Doctrine or the Development of Nordic Constitutional Law. Introduction and General Background, 52 Scand. St. L. 11 (2007). 5 Ran Hirschl, The Nordic counternarrative: Democracy, human rights and judicial review, 9 Int’l J. Const. L. 449–469 (2011). 6 Rune Slagstad, The Breakthrough of Judicial Review in the Norwegian System, in Constitutional Justice under Old Constitutions 90 (Eivind Smith ed., The Hague/London/Boston, Kluwer Law International, 1995); Carsten Smith, Judicial Review of Parliamentary Legislation: Norway as a European Pioneer, Pub. L. 596 (2000). 7 On the Danish experience, see Jens Elo Rytter and Marlene Wind, In need of juristocracy? The silence of Denmark in the developments of European legal norms, 9 Int’l J. Const. L. 470–504 (2011); on Iceland, Ragnhildur Helgadòttir, Nonproblematic judicial review: A case study, 9 Int’l J. Const. L. 532–547 (2011). In Norway (until 2015), Iceland and Denmark the text of the Constitution is silent on the issue of judicial review of legislation and the courts perform this task according to a well established constitutional customary law. In Sweden, the Constitution (Instrument of Government, IG) was amended in 1979 to introduce judicial review and, finally, Finland follows an analogous path, with the new Constitution of 2000. 8 Jaakko Husa, Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective, 48 Am. J. Comp. L. 349 (2000).

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Rejecting the European (or centralized) model of constitutional justice, the Nordic countries can thus be included in the American (or diffuse) model of judicial review of legislation. According to this model, all ordinary courts in the Nordic systems have the power (and also the duty) to perform judicial review of statutes enacted by Parliaments in legal proceedings brought before them, with the Supreme Courts of each jurisdiction having the last word, sitting at the apex of the judicial system.9 As it is well known, from this follows: (a) judicial review may take place only a posteriori, i.e. after the enactment of the contested statute; (b) judicial review is performed in concreto, i.e. in ordinary judicial disputes of any kind (there is not abstract review of legislation); (c) in case of declared unconstitutionality, courts can only set aside the invalid norms, left them unapplied in the specific, concrete, case at hand, with limited inter partes effects (the contested provisions cannot be declared null and void, with erga omnes effect, as in the European model of constitutional justice). Albeit in the absence of the common law principle of stare decisis, judicial rulings of Supreme Courts of the Nordic countries are, however, really decisive on matter of constitutional interpretation: “clearly expressed opinions of the Supreme Court on the constitutionality of a legal norm will normally be followed more or less as if they were binding even in more general terms”.10 Another fundamental element to understand the Nordic experience of constitutional justice is, in any case, the effective practice of judicial review of legislation, i.e. the intensity of it. That the existence of judicial review – a power, in origin, seized by the courts itself and then become an undisputed constitutional tradition – is acknowledged, “does not mean that it will be effectively exercised: with the exception of Norway between 1885 and 1935, the Scandinavian countries have shown strong judicial restraint and have only in rare occasions set a piece of legislation aside as a result of its unconstitutionality”.11

9 10 11

Per Henrik Lindblom, The Role of the Supreme Courts in Scandinavia, 39 Scand. St. L. 325– 366 (2000). Eivind Smith, Courts and Parliament: The Norwegian System of Judicial Review of Legislation, in The Constitution as an Instrument of Change 175 (Eivind Smith ed., Stockholm sns Förlag, 2003). Iris Nguyên Duy, New Trends in Scandinavian Constitutional Review, 61 Scand. St. L. 19 (2015). Some scholars have described the Nordic courts’ behaviour towards judicial review as “judicial reluctance”: see Andreas Føllesdal and Marlene Wind, Nordic Reluctance towards Judicial Review under Siege, 27 Nord. J. Hum. Rights 131–141 (2009).

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This is the result of a number of factors, but mainly of Parliament’s supremacy in the constitutional order of the Nordic countries: “the fact that Parliaments have such a crucial role is one of the reasons for the cautiousness of Nordic forms of judicial review (…) this explains the seemingly low political profile of the Supreme Courts – they do not willingly challenge the legitimacy of Parliamentary Acts, although, they are very much independent of legislator’s direct affect, Courts seem to feel a great deal of loyalty toward the Parliament”.12 The high degree of respect of the will of the legislators is, thus, a decisive element of the constitutional systems of these countries and the Nordic courts have traditionally shown respectful deference towards Parliaments when reviewing legislation. So, “the cautiousness in the control of the constitutionality of laws seems to be the paradigmatic and typical feature of the systems in the Nordic Countries”13 and judicial reluctance toward judicial review “may indeed be explained by judicial activism being considered undemocratic”.14 3

Recent Evolutions

On comparative grounds, the legal systems of Nordic countries have featured a progressive evolution in the traditional constitutional principle of the supremacy of the Parliament, that has inhibited – as seen – the true implementation of a strong form of judicial review for quite a long time. This led to the consolidation of the present institutional structure, which is experimenting forms – though ‘cautious’ – of diffused constitutional review of the statutes carried out by the courts. From this point of view, the constitutional legal systems of Sweden and Finland are a case point. In these countries, in fact, more than in any others belonging to the same Nordic constitutional tradition, it is possible to observe, an interesting dynamic coordination between the ex-ante and the ex-post constitutional control in the domain of fundamental rights.

12 13 14

Jaakko Husa, Nordic Constitutionalism and European Human Rights – Mixing Oil and Water?, 55 Scand. St. L. 108 (2010). Jakko Husa, Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective, 380. Iris Nguyên Duy, New Trends in Scandinavian Constitutional Review, 20.

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In Sweden, the diffuse constitutional review was, as known, introduced only following to the constitutional amendment of 1979, which has empowered the courts to set aside the statutes conflicting with the Constitution although in the only case of “manifest” contrast (Chapter 11, article 14, IG). This, however, coexists with an ex-ante control of conformity to the Constitution of the statutes under discussion in Parliament, conferred to a specific body (Lagrådet, Council on Legislation). This organ is composed of judges (also retired) from the Supreme Court and Supreme Administrative Court and is called on to give opinions on proposed statutes, when these are requested by the Government or by a Parliamentary Committee. In the range of possible hypotheses, such pronouncements are always required if the proposed statutes pertain to the domain of fundamental rights (Chapter 8, article 21, IG). Constitutional practice has so far evidenced a substantial respect on the part of the Government and Parliament towards the opinions expressed exante by the Council on Legislation. It has likewise evidenced that, when the Council on Legislation has not raised any objections to the constitutionality of statutes, hardly unlikely have the courts, during the ex-post control, set aside the same statutes due to unconstitutionality.15 In Finland, the diffuse constitutional control exercised by the courts was, instead, totally precluded until 2000.16 Subsequent to the enforcement of the new Constitution, it has been expressly stipulated that the courts are empowered to set aside the statutes on grounds of unconstitutionality in the only case of “manifest” contrast with the Constitution (art. 106),17 as in the case of Sweden. However, also for this legal system a preeminent role of the ex-ante constitutional control is emphasized. In this instance, the latter is conferred to the Parliamentary Constitutional Law Committee (Perustuslakivaliokunta). Although this is composed of only members of the Parliament, in case of review of constitutionality it is used to hearing the opinion of distinguished 15 16 17

Tomas Bull, Judges without a Court – Judicial Preview in Sweden, in The Legal Protection of Human Rights: Sceptical Essays 392–409 (Tom Campbell et al. eds., Oxford, oup 2011). Jaakko Husa, The Constitution of Finland. A Contextual Analysis (Oxford, Hart Publishing 2011). “If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution” (Constitution of Finland, art. 106).

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constitutional law scholars (e.g., mainly academics/university professors), due to a consolidated constitutional practice. These opinions are almost always faithfully observed by the Committee in question. As a consequence – also confirmed by the travaux préparatoires of the Constitution – the ex-post constitutional review conferred to the courts cannot, in practice, go as far as to declare any manifest conflict with the Constitution, if the Constitutional Law Committee has not ex-ante ascertained the existence of the aforesaid conflict.18 When drafting and subsequently approving the statutes, Parliaments of Finland and Sweden are thus supported by the significant role played by the ex-ante control, which further determines major effects on the ex-post constitutional control exercised by the judiciary. The courts show, in fact, a deep deference towards Parliament and thence confine the cases of declaration of unconstitutionality to very rare hypothesis, limited to the only instances when the ex-ante control has not been exercised.19 In the recent years, this tradition of ‘cautious’ judicial review of legislation has shown interesting element of evolution, with the progressive decline of the Nordic concept of the supremacy of the Parliament and a move towards constitutional (European continental-style) democracy. In this respect, “the revision of the Constitution may be considered as an important factor impacting on the evolution of the practice of constitutional review”.20

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Juha Lavapuro, Tuomas Ojanen and Martin Scheinin, Rights-Based Constitutionalism in Finland and the Development of Pluralist Constitutional Review, 9 Int’l J. Const. L. 505–531 (2011); Kaarlo Tuori, Judicial Constitutional Review as a Last Resort, in The Legal Protection of Human Rights: Sceptical Essays 365–391 (Tom Campbell et al. eds., Oxford, oup 2011). “The criterion of an evident conflict with the Constitution as a presupposition of the courts’ power to set aside a parliamentary law fulfils even other important functions than just establishing the primacy of the ex ante review exercised by the Constitutional Law Committee. Thus, with this criterion explicitly spelled out, the Finnish and Swedish Constitutions have, as it were, positivised the plea for judicial restraint. Related to the general requirement of judicial restraint, the criterion of an evident conflict entails the primacy of interpretive means for avoiding contradictions with the Constitution. Accordingly, the travaux préparatoires to the Bill of Rights of the 1995 and the new Constitution of 2000 stressed the courts’ obligation to construe statutes consistently with the Constitution”: Kaarlo Tuori, Combining abstract ex ante and concrete ex post review: the Finnish model, in European Commission for Democracy Through Law (Venice Commission), CDL-JU(2010)-011. Iris Nguyên Duy, New Trends in Scandinavian Constitutional Review, 20.

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The adoption of the entire new Constitution in Finland (2000) and the important overhaul of the Constitution in Sweden (2010) and Norway (2014/15) are clear signs in this sense. As seen, up until the entry into force of the new Constitution, in Finland courts were not allowed to review the constitutionality of parliamentary legislation. In Sweden, at the latest reform of the Instrument of Government (2010) Chapter 11, article 14 was changed: the demand that any violation of the ­Constitution by a statute had to be manifest for the latter to be declared non-­ applicable was removed.21 In Norway, in 2014 a major constitutional reform of the Constitution of 1814 was approved to introduce an important extension of the catalogue of fundamental rights of the citizens, and, in 2015, the constitutional customary law of judicial review of legislation was finally introduced – after almost 200 years of practice – in the Constitution.22 The entrenchment of judicial review in the Constitution of the Nordic countries23 represents, thus, a prominent innovation: “the tradition for weak, deferent judiciaries, remaining in the shadow of almighty Parliaments appears to retreat in Scandinavia; the Scandinavian courts can no longer be overlooked; they have all evolved, but at their own rhythm, from being a relatively marginal judiciary to one to be reckoned with, in democracies where the concept of the rule of law is now central”.24 Recent Nordic case-law seems to confirm this evolution.

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The previous rule served, in fact, to protect the special prerogative of the legislature. The new provision states that “If a court finds that a provision conflicts with a rule of fundamental law or other superior statute, the provision shall not be applied. The same applies if a procedure laid down in law has been disregarded in any important respect when the provision was made. In the case of review of an act of law under paragraph one, particular attention shall be paid to the fact that the Riksdag is the foremost representative of the people and that fundamental law takes precedence over other law” (Chapter 11, article 14 IG). “In cases brought before the courts, the courts have the power and the duty to review whether laws and other decisions made by the authorities of the State are contrary to the Constitution” (article 89, Constitution of Norway). It should be noted that in Denmark and Iceland the Constitution was not amended to introduce constitutional review. But in Iceland judicial review has been incisively defined ‘nonproblematic’, inasmuch “there is considerably less reluctance regarding judicial review in Iceland than in other Nordic countries”: Ragnhildur Helgadòttir, Nonproblematic judicial review: A case study, 532. In Denmark, the courts are, instead, the most deferent of Scandinavia: see Kari à Rògvi, West-Nordic Constitutional Judicial Review 188–189 (Copenhagen, djof Publishing 2013). Iris Nguyên Duy, New Trends in Scandinavian Constitutional Review, 33.

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In Denmark, in the Tvind judgment of 1999,25 the Supreme Court declared – for the first time in his history (and, for now, the only one) – a law unconstitutional for the violation of the principle of the separation of powers, enshrined in the article 3 of the Constitution. In Norway, especially in a series of judgments of 2010,26 the Supreme Court found clear that the legislative provisions at stake were manifestly unconstitutional and did not take into account the Parliament’s reasoned statements about the conformity of the statutes with the Constitution: the Supreme Court gave more weight to the explicit constitutional text than to the views of Parliament expressed in the travaux préparatoires. In Sweden, particularly in the Manga judgment of 2012 and in the Blake Petersson case of 2014,27 the Supreme Court “has shown willingness for a more dynamic approach when it comes to issues that touch upon the protection of constitutional rights and when there are obvious lacuna in the legislation”.28 These and others elements – such as the dynamic of European integration and the impact of the jurisprudence of the two main European Courts (ECtHR and cjeu) on the domestic constitutional systems29 – explains clear signs of evolution in the experiences of judicial review in these countries. Nordic courts show now “less scepticism and reluctance than before in performing constitutional review (…) and these courts have become more willing to – or have felt more compelled to – engage into constitutional review in the past few years. And they are more likely to perform a more intensive review of the constitutionality of the law, in the years to come”.30

25

UfR.1999.841 H (19 February 1999). On this judgment, see Sten Schaumburg-Müller, Parliamentary Precedence in Denmark – A Jurisprudential Assessment, 27 Nord. J. Hum. Rights 178 (2009). 26 The Shipping Tax case, 12 February 2010 (Rt. 2010, p. 143); Norwegian Church Endowment (ovf) case, 12 May 2010 (Rt. 2010, 535); War Crimes case, 3 December 2010 (Rt. 2010, 1445). On these judgments, see Eivind Smith, Norway – Supreme Court strongly reaffirms supremacy of Constitution by striking down controversial legislative provisions, Pub. L. 188–190 (2011). 27 nja 2012, 400; nja 2014, 323. 28 Thomas Bull and Anna Jonsson Cornell, Sweden, in 2016 Global Review of Constitutional Law 202 (Richard Albert et al. eds., I•CONnect-Clough Center Boston 2017). 29 As it is well known, European law has a significant impact on the way judicial review of legislation is performed. On the specific Nordic dimension, see, inter alia, Joakim Nergelius, New Tendencies in Modern Nordic Constitutional Doctrine or the Development of Nordic Constitutional Law, 13. 30 Iris Nguyên Duy, New Trends in Scandinavian Constitutional Review, 47–48.

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Use of Foreign/International Law by the Nordic Courts

The recognition of the essential features of constitutional justice in the Nordic countries makes it possible to proceed with an assessment of the use of foreign law in constitutional interpretation by the courts. As has already been demonstrated for a vast amount of constitutional experiences, the practice of explicitly applying (or citing) foreign precedents appears to be limited from a quantitative and qualitative point of view.31 This is also especially true for the Nordic courts, where the explicit references to foreign precedents in constitutional litigations are almost non-existent. However, this is not a lack of interest in foreign law or towards comparison by the Nordic courts. Quite the contrary, as stated by a former Chief Justice of the Norwegian Supreme Court: “the Supreme Court has to an increasing degree taken part in international collaboration among the highest courts. It is a natural obligation that, in so far as we have the capacity, we should take part in European and international debate and mutual interaction. It is the duty of national courts – and especially of the highest courts in a small country – to introduce new legal ideas from the outside world into national judicial decisions”.32 If it is not easy to recognize expressed references to precedents of other Constitutional/Supreme Courts, it cannot, however fail to notice how the ‘karstic’ river of comparison flows underground with respect to the Nordic constitutional jurisprudence, under a kind of influence of constitutional models different from the national models of the court that makes its decision. 31

32

For a global overview of this phenomenon, see Marie-Claire Ponthoreau, Foreign Precedents in Constitutional Litigation, in General Reports of the xixth Congress of the International Academy of Comparative Law – Rapports Généraux du xixème Congrès de l’Académie Internationale de Droit Comparé 523–534 (Martin Schauer and Bea Verschraegen eds., Berlin, Springer, 2017); Mads Andenas and Duncan Fairgrieve (eds.), Courts and Comparative Law (Oxford, oup 2015); Ran Hirschl, Comparative Matters. The Renaissance of Comparative Constitutional Law 20–75 (Oxford, oup 2014); Gàbor Halmai, Perspectives on Global Constitutionalism. The Use of Foreign and International Law by Domestic Courts (The Hague, Eleven International Publishing 2014); Giuseppe Franco Ferrari, The Use of Foreign Law by Constitutional Courts, in 4 Irish J. Leg. St. 24–38 (2014); Tania Groppi and Marie-Claire Ponthoreau (eds.), The Use of Foreign Precedents by Constitutional Judges (Oxford, Hart 2013). From a quantitative point of view, it is, albeit, obvious that certain courts refer to foreign jurisprudence more frequently than others, especially in the common law world. Statement by Carsten Smith – Chief Justice of the Norwegian Supreme Court (1991–2002) – quoted in Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Int’l L. J. 194–195 (2003).

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Recent and in-depth doctrinal studies have, in this regard, well illustrated the question of the comparison by influence of foreign models in Nordic constitutional law and the evolution of this influence over the years.33 Thus, a first phase – which can be chronologically placed around the 1920s – of this phenomenon appears to be characterized by the strong impact of North American theories on the legitimacy and intensity of the exercise of judicial review of legislation by ordinary courts. As previously noted, it is the Norwegian experience that shows the most relevant rulings on this issue. Already in a decision of 1918,34 the Norwegian Supreme Court clearly ­affirms – for example – its competence to exercise control over the constitutionality of the laws approved by the Parliament by making express reference to the theories of the Norwegian doctrine of the time, which explicitly recalls doctrine and jurisprudence of the usa. Until the end of the Second World War, there are, in any case, not few decisions of the Norwegian Supreme Court that show clear – albeit indirect – ­references to the American legal doctrine and to the jurisprudence of the U.S. Supreme Court, in terms of limitations on state intervention in economics; fair compensation for the case of expropriation; effective protection of vested rights: “during this period, American constitutional theory and jurisprudence was very influential in Norwegian constitutional law (…) the fundamental doctrine of judicial review and limitations upon state power was adopted in Norwegian jurisprudence with very few changes”.35 This does not, however, lead to a complete convergence of the two constitutional jurisprudences (the American and the Norwegian one): in fact, considerable elements of differentiation still remain. Distinctive features that tend to emerge more clearly in the period following the end of the Second World War. Among these, the one that deserves to be more emphasized is certainly the one relating to the intensity and limits of judicial review of legislation by the courts. During this period a sort of implicit comparison ‘by differentiation’ from the North American model tends, thus, to be evident. At this stage, Scandinavian constitutional law is beginning to be marked by the idea of less strict judicial review because of the respect of the will of the 33 34 35

Ragnhildur Helgadóttir, The Influence of American Theories on Judicial Review in Nordic Constitutional Law (Leiden/Boston, Brill 2006). Rt. 1918, 401. Ragnhildur Helgadóttir, The Influence of American Theories on Judicial Review in Nordic Constitutional Law, 99.

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legislator – which has direct democratic legitimacy – than that practised in the usa, in order to allow Parliament “to react to crises and societal changes. Related to this, courts should apply a low level of scrutiny and interpret the constitution flexibly. Instead of viewing the constitution as laying down fixed rules, they should view it as pointing in the direction that society should go and its provisions as flexible standards, getting their substance from changing societal norms and requirements”.36 There are not few examples, in the case law of the Nordic courts, of this change of perspective in the relationship between Parliament and the Courts. Beginning with a ruling by the Norwegian Supreme Court in 1948,37 which, in completely overruling its precedent of 1918, clearly states that the Parliament has a very broad margin of appreciation in socio-economic matters and with regard to the evolution of society and its essential needs, a margin which the Court must also observe in relation to explicit legislative considerations set out in the travaux préparatoires. In Iceland – after independence from Denmark and the entry into force of the new Constitution (1944) – the Supreme Court had soon the opportunity to affirm principles similar to those expressed by the Norwegian Supreme Court. Already in 1951,38 the Icelandic Supreme Court ruled that the purpose of state intervention in economics must be carefully considered (and respected) by the court when it is called upon to review the constitutional legitimacy of a statute. In Denmark, on the other hand, it can be said that there is, however, no real change of opinion on the part of the Supreme Court, given that the judicial review of legislation originates (in 1921)39 already with a marked characterization in the sense of a deep respect for the will of the legislator, or with an evident form of cautiousness on the part of the courts in the (very rare) event that they are called upon to judge on the constitutionality of a statute. At the end of this period – which is marked by a strong impact of U.S. constitutional theory and practice – the subsequent phase is characterized, on the

36 37 38 39

Id. at 172. Rt. 1948, 1147. Hrd. 1951, 268. UfR. 1921, p. 644. In this judgment, the Danish Supreme Court established the criterion that in order to be able to pronounce the unconstitutionality of a statute, the Courts must be faced with the “obvious certainty” of its opposition to the Constitution. As has already been anticipated, the situation is completely different for the Swedish and Finnish experience, which, at that time, do not yet permit any form of judicial review of legislation by the courts.

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contrary, by the more relevant influence of the jurisprudence of the European Courts and, in particular, that of the Strasbourg Court. This new period starts with the seventies of the last century. The Nordic courts are beginning to apply the echr directly with increasing frequency and intensity, even before the echr is actually incorporated into the domestic systems of the five countries. The Nordic courts are, in particular, influenced by the Strasbourg jurisprudence in relation to the interpretation of the catalogue of rights that the Constitutions recognize to the citizen, thus leading to an effective harmonization, in this regard, also of the constitutional interpretation between the various Supreme Courts of the experiences examined. So, this ‘Europeanisation’ of Scandinavian law has a significant impact also on the way judicial review is performed by the Nordic courts: “the development of conventionality review, in parallel to constitutional one, has both established a new basis for review of legislation and impacted quite profoundly on the Scandinavian system of judicial review of legislation”.40 This does not, in any case, apply in similar way to the weight and influence of international law in the case law of the Nordic courts. Recent research has, in fact, demonstrated with a plenty of data to support how the citation of international law – or the decisions of international courts – is very limited by the Scandinavian Supreme Courts.41 The study demonstrates that not only do Scandinavian Supreme Courts engage surprisingly little with international law, but also that there is great variation in the degree to which they have used international law and courts by citing their case law: only Norway sticks out as much more engaged internationally due to a solid judicial review tradition at the national level. These findings support the hypothesis that when courts are hesitant to cite or rely on international legal sources, “this may have to do with the strong emphasis in this part of the world on legal statutes and the Parliament as the prime lawmaker. The elevated position and role of the Parliament vis-à-vis other branches of government is clearly also important when trying to understand the special Nordic rejection (apart perhaps from Norway) of a solid judicial review tradition at the national level”.42

40 41 42

Iris Nguyên Duy, New Trends in Scandinavian Constitutional Review, 44. Marlene Wind, Do Scandinavians Care about International Law? A Study of Scandinavian Judges’ Citation Practice to International Law and Courts, 85 Nord. J. Int’l L. 281–302 (2016). Id. at 299.

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5 Conclusion As recently observed, “the unique combination of continuity and change makes the Nordic countries an ideal setting for assessing some of the core insights of canonical constitutional theory”.43 This is particularly evident in respect to judicial review of legislation. In this regard, even though the origins of constitutional justice in the Nordic countries are very long-standing (at least for the Norwegian experience), for a long period of time the judicial review of legislation has been shaped by its very limited use in the concrete practice, so that it is customary to say that “the courts can, but do not dare” to exercise this review. Yet, over the last few decades, the traditional Nordic reluctance towards judicial review has come under siege.44 Due to various factors, such as the strengthening (and the reform) of the Constitution and also of the Judiciary, the jurisprudence of ECtHR and of cjeu, Nordic courts show now less cautiousness vis-à-vis the practice of judicial review. This is a slow – but substantial – evolution of the Nordic constitutional systems towards a more effective analogy with consolidated European dynamics on constitutional justice. In terms of judicial recourse to comparative law, Nordic jurisdictions are placed together with other experiences that do not resort to this practice. As convincingly noted in comparative terms, “constitutional judges quite often do not cite foreign sources of inspiration in their decisions, settling stead for a covert use of foreign precedents (…) those courts that cite very little are not unaware of foreign precedents for all that, as is shown by the implicit influence at play; the courts simply prefer not to cite them”.45 Also in the Nordic countries it is, therefore, possible to identify various signs of comparison by influence of foreign models, especially with regard to the protection of fundamental rights: “precisely because the Nordic countries have long drawn on their human rights record to bolster their international reputation, they cannot ignore the emergence of such a universal rights discourse”.46

43 44 45 46

Ran Hirschl, The Nordic counternarrative: Democracy, human rights and judicial review, 452. Andreas Føllesdal and Marlene Wind, Nordic Reluctance towards Judicial Review under Siege, 131. Marie-Claire Ponthoreau, Foreign Precedents in Constitutional Litigation, 530–531. Ran Hirschl, The Nordic counternarrative: Democracy, human rights and judicial review, 461.

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References Føllesdal Andreas and Wind Marlene, Nordic Reluctance towards Judicial Review under Siege, 27 Nord. J. Hum. Rights 131-141 (2009). Slaughter Anne-Marie, A Global Community of Courts, 44 Harv. Int’l L. J. 191-219 (2003). Smith Carsten, Judicial Review of Parliamentary Legislation: Norway as a European Pioneer, Pub. L. 571-596 (2000). Smith Eivind, Courts and Parliament: The Norwegian System of Judicial Review of Legislation, in The Constitution as an Instrument of Change 141–171 (Eivind Smith ed., Stockholm SNS Förlag, 2003). Smith Eivind, Norway – Supreme Court strongly reaffirms supremacy of Constitution by striking down controversial legislative provisions, Pub. L. 188–190 (2011). Rytter Jens Elo and Wind Marlene, In need of juristocracy? The silence of Denmark in the developments of European legal norms, 9 Int’l J. Const. L. 470–504 (2011). Ferrari Giuseppe Franco, The Use of Foreign Law by Constitutional Courts, in 4 Irish J. Leg. St. 24–38 (2014). Halmai Gàbor, Perspectives on Global Constitutionalism. The Use of Foreign and International Law by Domestic Courts (The Hague, Eleven International Publishing 2014). Lindblom Per Henrik, The Role of the Supreme Courts in Scandinavia, 39 Scand. St. L. 325–366 (2000). Nguyên Duy Iris, New Trends in Scandinavian Constitutional Review, 61 Scand. St. L. 19 (2015). Husa Jaakko, Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective, 48 Am. J. Comp. L. 345–381 (2000). Husa Jaakko, Nordic Reflections on Constitutional Law. A Comparative Nordic Perspective (Frankfurt am Main, Peter Lang 2002). Husa Jaakko, Nordic Constitutionalism and European Human Rights – Mixing Oil and Water?, 55 Scand. St. L. 101–124 (2010). Husa Jaakko, The Constitution of Finland. A Contextual Analysis (Oxford, Hart Publishing 2011). Husa Jaakko, A New Introduction to Comparative Law (Oxford, Hart 2015). Nergelius Joakim (ed.), Nordic and Other European Constitutional Tradition (Leiden/ Boston, Brill 2006). Nergelius Joakim, New Tendencies in Modern Nordic Constitutional Doctrine or the Development of Nordic Constitutional Law. Introduction and General Background, 52 Scand. St. L. 11–17 (2007). Lavapuro Juha, Ojanen Tuomas and Scheinin Martin, Rights-Based Constitutionalism in Finland and the Development of Pluralist Constitutional Review, 9 Int’l J. Const. L. 505–531 (2011).

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Tuori Kaarlo, Judicial Constitutional Review as a Last Resort, in The Legal Protection of Human Rights: Sceptical Essays 365–391 (Tom Campbell et al. eds., Oxford, OUP 2011). Rògvi Karià, West-Nordic Constitutional Judicial Review (Copenhagen, DJØF Publishing 2013). Andenas Mads and Fairgrieve Duncan (eds.), Courts and Comparative Law (Oxford, OUP 2015). Ponthoreau Marie-Claire, Foreign Precedents in Constitutional Litigation, in General Reports of the XIXth Congress of the International Academy of Comparative Law – Rapports Généraux du XIXème Congrès de l’Académie Internationale de Droit Comparé 523–534 (Martin Schauer and Bea Verschraegen eds., Berlin, Springer, 2017). Wind Marlene, Do Scandinavians Care about International Law? A Study of Scandinavian Judges’ Citation Practice to International Law and Courts, 85 Nord. J. Int’l L. 281–302 (2016). Helgadóttir Ragnhildur, The Influence of American Theories on Judicial Review in Nordic Constitutional Law (Leiden/Boston, Brill 2006). Helgadòttir Ragnhildur, Nonproblematic judicial review: A case study, 9 Int’l J. Const. L. 532–547 (2011). Hirschl Ran, The Nordic counternarrative: Democracy, human rights and judicial review, 9 Int’l J. Const. L. 449–469 (2011). Hirschl Ran, Comparative Matters. The Renaissance of Comparative Constitutional Law (Oxford, OUP 2014). Slagstad Rune, The Breakthrough of Judicial Review in the Norwegian System, in Constitutional Justice under Old Constitutions 81–111 (Eivind Smith ed., The Hague/London/Boston, Kluwer Law International, 1995). Schaumburg-Müller Sten, Parliamentary Precedence in Denmark – A Jurisprudential Assessment, 27 Nord. J. Hum. Rights 170–184 (2009). Groppi Tania and Ponthoreau Marie-Claire (eds.), The Use of Foreign Precedents by Constitutional Judges (Oxford, Hart 2013). Bull Thomas, Judges without a Court – Judicial Preview in Sweden, in The Legal Protection of Human Rights: Sceptical Essays 392–409 (Tom Campbell et al. eds., Oxford, OUP 2011). Bernitz Ulf, What is Scandinavian Law? Concepts, Characteristics, Future, 50 Scand. St. L. 13–30 (2007).

Foreign Materials in the Judgments of the Constitutional Court of the Republic of Latvia Anita Rodiņa 1 Introduction Judicial review as the power of courts to control constitutionality of legislation is one of the components of the state governed by the rule of law.1 In the Republic of Latvia an exclusive function – to safeguard the constitution2 or to ensure existence of legal system that complies with the Satversme [Constitution], as well as to provide its opinion regarding constitutionally important issues3 – is in the hands of the Constitutional Court of the Republic of Latvia (thereinafter – the Constitutional Court). The Constitutional Court in Latvia was established in 1996, when amendments to the constitution – Article 85 of the Satversme of the Republic of Latvia of 15 February 1922 (thereinafter – Satversme) entered into legal force.4 Latvia chose to organize constitutional review based on the principles of the European model of constitutional adjudication. As it is common for centralized models, in Latvia constitutional review is realized in the form of abstract, concrete review; however, the court also hears cases on the basis of submitted constitutional complaints. Latvian model allows preventive (a priori) review (with respect to international agreements) alongside the repressive (a posteriori) form, providing erga omnes power of Constitutional Court’s judgments. 1 De Visser M. Constitutional Review in Europe. A Comparative Analysis. Oxford and Portland, Oregon: Hart Publishing, 2014, p. 55. 2 Judgment of the Constitutional Court of the Republic of Latvia on 18 January 2010 in case No 2009-11-01, para 5, http://www.satv.tiesa.gov.lv/upload/judg_2009_11.htm. 3 Judgment of the Constitutional Court of the Republic of Latvia on 7 April 2009 in case No 2008-35-01, para 11.2. http://www.satv.tiesa.gov.lv/wp-content/uploads/2008/09/2008-35-01_ Spriedums_ENG.pdf. 4 Article 85 of Satversme provides: “[i]n Latvia, there shall be a Constitutional Court, which, within its jurisdiction as provided for by law, shall review cases concerning the compliance of laws with the Constitution, as well as other matters regarding which jurisdiction is conferred upon it by law. The Constitutional Court shall have the right to declare laws or other enactments or parts thereof invalid. The Saeima shall confirm the appointment of judges to the Constitutional Court for the term provided for by law, by secret ballot with a majority of the votes of not less than fifty-one members of the Saeima.” The Constitution of the Republic of Latvia. http://www.saeima.lv/en/legislation/constitution/.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_020

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The Constitutional Court commenced its activities on 11 December 1996, and passed its first judgment on 7 May 1997. The first reference to the practice of other countries is found in the seventh judgment by the Constitutional Court, which makes a general conclusion that constitutional provisions with content similar to Article 21 of the Satversme are found in the majority of European states, without specifying or providing any further explanations on which countries these are.5 The first reference to the case law of a constitutional court of another country – that of the Constitutional Court of the Republic of Lithuania – is found in the judgment of 21 December 2001.6 This judgment is important not only as the pioneer in using the comparative method. The judgment also carries a deeply symbolic meaning, because it was the first judgment passed in reviewing a case regarding a constitutional complaint submitted by a person. It could be said that the constitutional complaint not only opened a new area for protecting fundamental rights of a person in Latvia, but also marked the beginning of conceptual and precise use of foreign materials in the judgments of the Constitutional Court. 2

Competence of the Constitutional Court of the Republic of Latvia. Legal Force and Content of the Judgments. Separate Opinion

2.1 Competence of the Constitutional Court of the Republic of Latvia Constitutional Court in Latvia as a constitutional institution realizes judicial power.7 But in difference to the other courts, it solves specific disputes regarding compatibility of legal provisions with the provisions of higher legal force.8 Constitutional Court reviews: (1) conformity of law with the Constitution; (2) conformity of international agreements signed or entered into by Latvia 5 Judgment of the Constitutional Court of the Republic of Latvia on 13 July 1998 in case No. 03-04(98). Latvijas Vēstnesis, 208/210 (1269/1271), 14.07.1998. 6 Judgment of the Constitutional Court of the Republic of Latvia on 21 December 2001 in case No. 2001-04-0103, para 3. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/06/2001-04-0103_ Spriedums_ENG.pdf. 7 Judgment of the Constitutional Court of the Republic of Latvia on 22 February 2002 in case No 2001-06-03, para 1.2., http://www.satv.tiesa.gov.lv/?lang=2&mid=19. 8 Judgment of the Constitutional Court of the Republic of Latvia on 3 February 2012 in case No 2011-11-01, para 11.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2011/05/2011-11-01_ Spriedums_ENG.pdf; Judgment of the Constitutional Court of the Republic of Latvia on 18 October 2007, in case No 2007-03-01, para 9. http://www.satv.tiesa.gov.lv/wp-content/uploads/2007/01/2007-03-01_Spriedums_ENG.pdf; Judgment of the Constitutional Court of the Republic of Latvia on 3 June 2009 in case No 2008-43-0106, para 12. http://www.satv.tiesa.gov. lv/wp-content/uploads/2008/11/2008-43-0106_Spriedums_ENG.pdf.

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(also until the confirmation of the relevant agreements in the Saeima – in the form of a priori review) with the Constitution; (3) conformity of other laws and regulations or parts thereof with the norms (acts) of a higher legal force; (4) conformity of other acts of the Saeima, the Cabinet, the President, the Speaker of the Saeima and the Prime Minster, except for administrative acts, with law; (5) conformity with law of such an order with which a Minister authorised by the Cabinet has suspended a decision taken by a local government council; (6) conformity of Latvian national legal norms with those international agreements entered into by Latvia that is not in conflict with the Constitution.9 In other words, the Court adjudicates only cases regarding conformity of legal enactments with the norms of higher legal force. The Constitutional Court in Latvia is not deciding on other issues, which are usually included in the competence of the constitutional courts within European model (for example, settlement of election and referenda disputes, control of political parties, involvement in impeachment procedures, etc.).10 Notwithstanding this narrow competence, the Latvian Constitutional Court fulfils all typical functions of the constitutional court ensuring conformity of legislation with the constitution, protection of fundamental human rights, resolving institutional disputes, ensuring the integrity of political office and processes.11 Adjudication of a case at the Constitutional Court always begins on the basis of a submitted application, which can be submitted by the subjects of abstract review – the President of the State, the Saeima as a collegiate institution, at least 20 members of the Saeima, the Cabinet of Ministers, the Prosecutor General, the Council of the State Audit Office. There are also other two subjects of abstract control who have to abide by specific procedural restrictions – the Judicial Council12 and the Ombudsman.13 Constitutional adjudication can be 9 10 11 12

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Constitutional Court Law. http://www.satv.tiesa.gov.lv/?lang=2&mid=9. See more in Steinberger H. Models of constitutional jurisdiction. Council of Europe Press, 1994. pp. 5–33. Sweet A.S. Constitutional Courts. In Comparative Constitutional Law. Ed. Rosenfeld M., Sajo A. Oxford: Oxford University Press, pp. 822–824. De Visser M. Constitutional Review in Europe. A Comparative Analysis. Oxford and Portland, Oregon: Hart Publishing, 2014, p. 93. The Judicial Council can submit an application in the frameworks of jurisdiction established by law, i.e. on those matters, which are in the competence of the Judicial Council. Taking into consideration the fact, that the Judicial Council is an institution, which participates in development of the policies and strategies of the judicial system, as well as improving the organisation of the work of the judicial system, application always will be connected to judicial system and judges. The Ombudsman can submit an application if the authority or official, who has issued the disputed act, has not rectified the established deficiencies within the time period specified by the Ombudsman.

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initiated also on the basis of an application by a court of the court system.14 Only one subject – self-government council may challenge an order of the minister, as well as a general legal act if it infringes upon the rights of the local government. Constitutional Court is open also for a person who may turn to the Constitutional Court by submitting a specific application – constitutional complaint – if a person considers that his/her fundamental rights as defined in the Satversme are infringed upon by legal norms that do not comply with the norms of a higher legal force. The object of the constitutional complaint can be a general (normative) legal norm. Therefore a person cannot challenge at the Constitutional Court an individual act or a court decision, a judgment. This provision marks the difference between the Latvian type of constitutional complaint and that of Germany, Slovenia and other countries, where constitutionality of individual acts can be reviewed.15 A person is also bound by specific criteria: there should be a violation of fundamental human rights (actio popularis is not allowed); a person is bound by the principle of subsidiarity and requirements regarding term.16 In countries where constitutional complaint exists it is a tool, which can be used to protect fundamental rights set in the constitution. This principle is observed also in Latvia: a person can defend just those rights, which are included in the Satversme. However, in interpretation of fundamental human rights the Constitutional Court applies the principle of harmony of the norms incorporated in the Satversme with international human rights, which follows from Article 89 of the Satversme.17 It means that human rights included in the Satversme will be interpreted in compliance with the practice of application of international norms of human rights.18 The Constitutional Court has defined 14

15 16 17 18

As the court may apply the legal norm which complies with the Satversme, if during adjudication of a case it finds that the norm does not comply with the constitution it suspends judicial proceedings in the case and submits application to the Constitutional Court. Judgment of the Constitutional Court of the Republic of Latvia on 18 December 2013 in case No 2013-06-01, para 14. http://www.satv.tiesa.gov.lv/wp-content/uploads/2013/03/2013-06-01_Spriedums_ENG.pdf. De Visser M. Constitutional Review in Europe. A Comparative Analysis. Oxford and Portland, Oregon: Hart Publishing, 2014, p. 152. See more detailed analyses in Rodiņa A. Legal Person before the Constitutional Court. Central and Eastern European Legal Studies., 2015, No1, pp. 119–133. Judgment of the Constitutional Court of the Republic of Latvia on 30 August 2000 in case No. 2000-03-01, para 5. http://www.satv.tiesa.gov.lv/wp-content/uploads/2000/03/2000-03-01_ Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 10 February 2017 in case No. 2016-06-01, para 29. http://www.satv.tiesa.gov.lv/wp-content/uploads/2016/04/2016-06 -01_Spriedums.pdf.

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also that the practice of the European Court of Human Rights, which in accordance with commitments that Latvia has undertaken by ratifying the European Convention for Protection of Human Rights and Fundamental Freedoms and its Protocols is mandatory when interpreting norms of the Convention, must be used also when interpreting the respective norms of the Satversme.19 It should be emphasized that this principle – harmony of national law and international law – was recognized and developed on the basis of the practice of “other Constitutional Courts of the European States”, which similarly use the Convention and other international human rights norms, as well as the case law of the European Court of Human Rights.20 As an example of those “European states” case law of the German Federal Constitutional Court was analysed, pointing out the principle of “favourableness (Völkerrechtsfreundlichkeit) of the Basic Law towards the international law”.21 It means that in interpreting fundamental human rights comparative method always will be used, respecting the principle of harmony of norms and respecting commitments assumed by the state. As it can be observed in the case law of the Constitutional Court, to establish the content of appropriate fundamental right it applies also foreign materials. 2.2 Legal Force and Content of the Judgments Constitutional adjudication at the Constitutional Court can be concluded in two ways: the Court can pass a judgment or in specific cases – until pronouncement of the judgment, it can pass a decision to terminate legal proceedings.22 Although two ways of ending the procedure at the Constitutional Court exist, a legal norm can be declared as being inconsistent with the Satversme by a judgment, not a decision. The legal nature of a Constitutional Court judgment in Latvia can be characterized by the following features: (1) universally binding 19 20 21

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Judgment of the Constitutional Court of the Republic of Latvia on 30 August 2000 in case No. 2000-03-01, para 5. http://www.satv.tiesa.gov.lv/wp-content/uploads/2000/03/2000-03-01_ Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 13 May 2005 in case No. 2004-18-0106, para 5. http://www.satv.tiesa.gov.lv/wp-content/uploads/2004/ 08/2004-18-0106_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 17 January 2002 in case No. 2001-08 – 01, para 3. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/08/ 2001-08-01_Spriedums_ENG.pdf; Judgment of the Constitutional Court of the Republic of Latvia on 13 May 2005 in case No. 2004-18-0106, para 5. http://www.satv.tiesa.gov.lv/ wp-content/uploads/2004/08/2004-18-0106_Spriedums_ENG.pdf. Rodiņa A. The Constitutional Court as the guardian of the Constitutional order of the Republic of Latvia: Some important decisions in 2013. European Review of Public Law Vol.26, No 4, Winter 2014, pp. 1627–1668.

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force (erga omnes); (2) final (cannot be appealed); (3) public; (4) directly applicable; (5) unsurpassable.23 In accordance with the third part of Section 32 of the Constitutional Court Law, a legal provision, which has been declared by the Constitutional Court as non-compliant with a norm of a higher legal force, must be regarded as being not in effect from the day of publication of the Constitutional Court judgment (ex nunc), unless the Constitutional Court has determined otherwise. The other possibility for a Constitutional Court is to decide that the contested provision may become invalid from the day it was adopted (ex tunc) or on another day (ex tunc), or the date may set in the future (pro futuro). Every judgment of the Constitutional Court must indicate the following: (1) the place and time of the making of the judgment; (2) composition of the Court and the secretary of the court sitting; (3) participants of the case (indicating the applicant); (4) legal base for adjudication of a case; (5) the legal norm (act) that is being disputed; (6) circumstances determined by the Court; (7) arguments and evidence of the conclusions of the Court; (8) arguments and evidence by which the Court rejects these or other evidence; (9) the norm of the Constitution or another legal norm by which the Constitutional Court has been guided in assessing the compliance of the disputed legal norm (act) with the norm of a higher legal force; (10) judgment regarding whether the disputed legal norm (act) complies or does not comply with the norm of a higher legal force; (11) in relation to the disputed legal norm (act) the moment when anti constitutional legal norm loses its legal force; (12) if necessary – ­other court decisions; (13) an indication that the Constitutional Court judgment shall be final and not subject to appeal.24 All those formal requirements are included in appropriate part of the judgment. The first part of the judgment is introductory, which is followed by the part on the facts of the case, then the part of findings, and finally – the substantive part, which is concluded by signing of the judgment. The part of the facts of the case and the findings are usually the largest. The part on the facts of the case reflects the opinion of the parties (more precisely – that of the applicant and of the institution, which adopted the contested act) and of other persons involved in the proceedings (opinion of summoned persons, experts). Recently, in particular, as well as when complicated cases are reviewed, the part on facts of the case is very 23

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Rodiņa A., Spale A. Satversmes 85. Panta komentārs [Commentary of the Article 85]. In LR Satversmes komentāri. vi nodaļa. Tiesa. vii nodaļa Valsts kontrole. Autoru kolektīvs prof. R.Baloža zinātniskā vadībā [Commentaries of the Satversme.vi Courts. vii State Audit Service. Authors, ed. by prof. R. Balodis]. Rīga: Latvijas Vēstnesis, p. 140. Constitutional Court Law. Section 31. http://www.satv.tiesa.gov.lv/?lang=2&mid=9.

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sizeable, because the reporting judge tends to summon many persons, the opinion of which must be accordingly reflected in the part of the judgment on the facts of the case. The reasoning of the Court, in turn, is included in the part on findings, which comprises also materials analysed in the framework of comparative method or arguments for using the comparative method are rejected. To a large extent the structure, content-wise, of the part of the Constitutional Court’s judgment on its findings, is determined by the type of case that is reviewed. If a case has been initiated with regard to compatibility of a norm with a norm of fundamental human rights, then the Constitutional Court always shapes the part on findings in accordance with the scheme for restricting fundamental human rights, verifying, whether a norm has been established by law, whether it has a legitimate aim and whether it is necessary in a democratic society. Since the majority of judgments pertain to constitutionality of restrictions upon fundamental human rights, it can be said that a uniform structure has been created for the part of judgment on findings. With the development of legal proceedings before the Constitutional Court, evolvement of judgments by the Constitutional Court can also be observed. The first judgment of the Constitutional Court was comparatively short (presented on a couple of pages), whereas the judgments that are made currently are elaborated, their length always depends upon the complexity of the case. Definitely during the last years the so-called “internal references” to findings included in previous judgments of the Constitutional Court has increased and obviously evolved. Thus, this method also excludes the need to refer directly to legal sources of other countries, even if they have been used in the judgment that the Court refers to in its judgment. 2.3 Separate Opinion25 A judgment by the Constitutional Court is adopted by voting, with a majority of the votes and judges may only vote “for” or “against”. A justice, who is against the opinion expressed in a judgment, must express in writing his separate opinion that must be appended to the case, but not declared in the court sitting (Section 30 (6) of the Constitutional Court Law). This means that the Constitutional Court Law does not leave a possibility of choice to a justice, who disagrees with the majority opinion. If a justice does not uphold the view expressed in the judgment, an obligation to prepare a separate opinion automatically sets in. This means that the obligation established in legal proceedings 25

Separate opinion covers both forms: dissenting and concurring opinion.

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before the Constitutional Court to draw up a separate opinion marks out Latvia’s experience in the context of other countries. No other formal requirements have been set for drawing up a separate opinion, except two. First, opinion must be expressed in writing. A justice may express it alone or together with other justices. Second, the Rules of Procedure of the Constitutional Court state (Article 145) that a separate opinion must be signed and submitted to the Chairperson of the court sitting within two weeks following the pronouncement of the judgment who shall place the opinion in an envelope, which is appended to the case, and shall apply the seal of the Constitutional Court to it.26 To improve the quality of the majority opinion,27 separate opinions must be published in the official newspaper Latvijas Vēstnesis not later than within a period of two months after making of the Constitutional Court judgment. Separate opinions always are included in the annual collection of judgments. Latvia’s legal regulation does not include requirements with regard to the content of a judge’s separate opinion. However, it must be substantiated and comprehensible. Moreover, a judge must include in the separate opinion his view or opinion, which must be substantiated accordingly. The justice of the Constitutional Court can prepare either dissenting opinion or concurring opinion. Dissenting opinion means that the justice has expressed his dissenting opinion against the ruling itself.28 For example, it can be expressed as follows: “I do not uphold the judgment by the Constitutional Court, because I am of the opinion that the contested norm complies with the first sentence of Article 91 and Article 105 of the Satversme.”29 The concurring opinion shall be prepared if justice has voted for the judgment, but at the same time he/she does not uphold the reasoning included in the judgment.30 Such

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Rules of Procedure of the Constitutional Court. http://www.satv.tiesa.gov.lv/en/2016/02/ 04/hello-world/. 27 Kelemen K. Dissenting Opinions in Constitutional Courts. German Law Journal, Vol.14, No 8, 2013, p. 1364. 28 Satversmes tiesas tiesnešu Kaspara Baloža, Daigas Rezevskas un Inetas Ziemeles atsevišķās domas lietā Nr. 2015-18-01 [Dissenting opinion of the Constitutional Court Justices Kaspars Balodis, Daiga Rezevska and Ineta Ziemele in case No 2015-18-01]. Latvijas Vēstnesis, No. 156 (5728), 15.08.2016. 29 Satversmes tiesas tiesneša Kaspara Baloža atsevišķās domas lietā Nr.2011-19-01 [Dissenting opinion of the Constitutional Court Justice Kaspars Balodis in case No 2011-19-01]. Latvijas Vēstnesis, No. 123 (4726), 07.08.2012. 30 Satversmes tiesas tiesneša Gunāra Kusiņa atsevišķās domas lietā Nr. 2015-03-01 [Concurring opinion of the Constitutional Court Justice Gunārs Kusiņš in case No 2015-03-01]. Latvijas Vēstnesis, No. 36 (5608), 22.02.2016.

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concurring opinions, definitely are supplementing reasoning by providing further arguments. In the initial period of the Constitutional Court’s work, separate opinions were written rather seldom; however, in particular in the recent years the number of separate opinions has increased. The statistics shows that until the end of 2016 35 separate opinions have been appended to almost 300 judgments by the Constitutional Court. Of these 35 separate opinions 14 were drawn up in 2015 and 2016.31 Separate opinion of justices, undeniably, is a valuable source of research. They reflect the discussions at the time of making the judgment, diversity of opinions, theoretical considerations, issues to be solved in the future, i.e., they may facilitate evolution of constitutional law.32 Although a separate opinion per se does not affect the erga omnes force of the judgment, nevertheless, in particular in those cases, when 3 out of 7 justices33 are of a different opinion, they could indicate also possible changes to the future case law. 3

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Each legal system is unique. However, nowadays it is impossible to keep a legal system isolated. It is because the principle of borrowing and dialogue34 between constitutional courts of different countries is not just a theoretical question, it can be observed in practice. As mentioned before, the Satversme in Latvia is interpreted by taking into consideration international commitments (use of case law of the European Court of Human Rights and application of international agreements and the EU law is not analysed in the article) and, as it is explained by the Constitutional Court, “as well as taking into account the

31 32 33

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Kursiša E. Tiesnešu atsevišķās domas: jēdziens un Satversmes tiesas regulējums. [Separate opinion of judges: understanding and regulation of the Constitutional Court]. Jurista vārds, Nr. 49 (952), 06.12.2016. Kelemen K. Dissenting Opinions in Constitutional Courts. German Law Journal, Vol.14, No 8, 2013, p. 1352. See for example, Satversmes tiesas tiesnešu Gunāra Kusiņa, Sanitas Osipovas un Inetas Ziemeles atsevišķās domas lietā Nr.2014-31-01 [Dissenting opinion of the Constitutional Court Justices Gunārs Kusiņš, Sanita Osipova and Ineta Ziemele in case No 2014-31-01]. Latvijas Vēstnesis, No. 126 (5444), 01.07.2015; Satversmes tiesas tiesnešu Kaspara Baloža, Daigas Rezevskas un Inetas Ziemeles atsevišķās domas lietā Nr. 2015-18-01 [Dissenting opinion of the Constitutional Court Justices Kaspars Balodis, Daiga Rezevska and Ineta Ziemele in case No 2015-18-01]. Latvijas Vēstnesis, No. 156 (5728), 15.08.2016. Compare with Sarah K. Harding. Comparative Reasoning and Judicial Review. Yale Journal of International Law, 2003, Volume 28 Issue 2 p. 425.

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common constitutional legal heritage of the European States”,35 i.e., foreign materials – law, judgments and doctrine also serve as a source of inspiration in interpreting legal norms. 3.1 References to Normative Acts of Foreign Countries In view of the competence of the Constitutional Court, most frequently it has referred to constitutions of other states. One of the judgments, which thus far comprises most extensive references to legal regulation of other countries, was made in the case that reviewed the right of members of parliament to be reimbursed for the expenditure that they incurred while performing their duties of office. The Constitutional Court, providing a comparative perspective, noted: “Similar ideas have been constitutionally fixed in many democratic states, envisaging for example that “the members of the Folketing shall be paid such remuneration as may be provided for in the Elections Act (Article 58 of the Kingdom of Denmark Constitution)”; “the senators and representatives shall receive a compensation for their services, to be ascertained by law and paid out of the Treasury of the United States (the sixth part of Article 1 of the usa Constitution)”; “the Parliament members shall receive remuneration determined by law (Article 69 of the Republic of Italy Constitution, similar to it is also Article 161 – the second part, Item “d” of the Republic of Portugal Constitution)”; Article 63 of the Kingdom of Netherlands establishes that “maintenance of the deputies, the former deputies and persons to be maintained by them shall be determined by an act of the Parliament. Chambers pass the act only with the 2/3 of votes”, but Article 75 of the Republic of Estonia 20 Constitution demands the law to determine both – remuneration to the deputies of the Parliament and limitations to receive extra income, besides the Law may be amended only with regard to the next parliament. In its turn Article 66 of the Belgium Constitution determines the amount of the salary of the deputy.”36 The Constitutional Court has referred to the catalogue of human rights included in constitutions of other countries a number of times. Thus, for example, in 35 36

Judgment of the Constitutional Court of the Republic of Latvia on 22 F­ ebruary 2010 in case No. 2009-45-01, para 9. http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/07/ 2009-45-01_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 22 February 2002 in case No. 2001 – 06 – 03, para 5.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/07/ 2001-06-03_Spriedums_ENG.pdf.

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explaining the content of Article 106 of the Satversme, which provides for the right to “choose freely” one’s workplace, the Court noted: “Several Constitutions of the European States incorporate similar norms, guaranteeing persons the right to freely choose their occupation or profession, like Article 47 of the Republic of Portugal Constitution or Article 12 of the German Federative Republic Basic Law, which among other things establishes that “all Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training”.37 In another case, interpreting the same norm, Court has made reference to the constitutions mentioned above, adding a reference to the Article 35 of the Kingdom of Spain Constitution.38 The Court has also explained differences in legal regulation “In Latvia freedom of assembly as a cohesive whole in difference from the greatest number of democratic states is not constitutionally protected (see Section 47, Paragraph 1 of the Republic of Estonia Constitution, Section 36 of the Republic of Lithuania, Section 57 of the Republic of Poland Constitution, Section 8 of the Federative Republic of Germany Basic Law, Section 17 of the Republic of Italy Constitution etc.).”39 In some cases Constitutional Court has also used regulatory enactments of other countries, although not too frequently. In providing reasoning in the part on findings, the Constitutional Court has made a reference to the Lithuanian Administrative Procedure Law, in the drafting of which the principles of a democratic state governed by the rule of law had been implemented.40 In dealing with matters related to legal proceedings before the Constitutional 37 38 39 40

Judgment of the Constitutional Court of the Republic of Latvia on 4 June 2002 in case No. 2001-16-01, para 2.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/11/2001-16-01_ Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 23 April 2003 in case No. 2002-20-0103, para 3. http://www.satv.tiesa.gov.lv/wp-content/uploads/2002/10/ 2002-20-0103_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 23 November 2006 in case No. 2006-03-0106, para 6.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2006/ 03/2006-03-0106_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 20 June 2002 in case No. 2001-17-0106, para 3. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/12/2001 -17-0106_Spriedums_ENG.pdf.

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Court, references have been made to the Austrian Federal Constitutional Court Law and the German Federal Constitutional Court Law.41 Sometimes experience of foreign countries is referred to, without indicating the precise source of law, but providing a general conclusion that in the respective countries an issue is solved in the following way. It can be presumed that the Constitutional Court has used legal regulation of the respective countries to arrive at such conclusions, but has not made the reference in the judgment. For example, comparative analysis leads to the conclusion that “in those European states, in which persons enjoy the right of submitting constitutional claims at the constitutional courts, the terms for the submission of the claim is 20 days in Spain, one month in Germany and Croatia, 60 days in the Czech Republic, Hungary, Slovenia and Slovakia.”42 Another instance – “Different restrictions, which are connected with activities of persons in the repressive structures of the former regime, in wider or narrower range have been determined in the greatest number of post socialist states: Czechoslovakia, Poland, Hungary, Lithuania etc.”43 Another judgment provides explanation on initiating legal proceedings due to newly discovered circumstances: “In some countries an application regarding newly disclosed circumstances initially is examined by a court (for example, in Austria, the Netherlands, Slovakia), in other countries this application is examined by a prosecutor (for example, in Lithuania) or another independent institution (for example, in Denmark, Norway). In some countries the decision by a prosecutor or another institution may be appealed to a court (for example, in Lithuania, Norway). Moreover, some countries abide by the principle that the official (a prosecutor or a judge), who participated in the initial examination of the criminal case, is not allowed to examine an

41 42 43

Judgment of the Constitutional Court of the Republic of Latvia on 16 December 2005 in case No. 2005-12-0103, para 25. http://www.satv.tiesa.gov.lv/wp-content/uploads/2005/ 05/2005-12-0103_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 26 November 2002 in case No. 2002-09-01, para 2.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2002/ 06/2002-09-01_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 15 June 2006 in case No. 2005-13-0106, para 18.2. http://www.satv.tiesa.gov.lv/wp-content/uploads/2005/ 06/2005-13-0106_Spriedums_ENG.pdf.

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application regarding newly disclosed circumstances (for example, in the Netherlands, Slovenia, Finland).”44 Experience of France, the United Kingdom, Norway, Poland, and Lithuania are mentioned with respect to possibilities to collect maintenance payments.45 A general conclusion is made in another case: “Legal systems of other countries also envisage a board member’s liability for late tax payments of a legal person, for example, of Austria, Bulgaria, Cyprus, Finland, France, Germany, Ireland, Lithuania, Malta, the Netherlands, Slovenia, Sweden and the United Kingdom.”46 In explaining the principle that “sale does not terminate lease”, the Constitutional Court concludes that the rental contracts are binding upon the new owner in Austria, Belgium, Denmark, Estonia, France, Germany, Greece, Hungary, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia and Switzerland. Whereas in England, Sweden, Italy, Scotland and Lithuania the rental contract is not binding upon the new owner.47 Finally, experience of the Czech Republic, Lithuania and Estonia is mentioned in explaining that it is possible to regulate the matter of issuing repeatedly a special permit in a way that is less restrictive upon a person’s rights.48 3.2 References to Foreign Court Judgments In view of the principle that the fundamental human rights enshrined in the Satversme and the international human rights should be in harmony, one might almost assert that when dealing with issues of restricted human rights, 44 45 46 47 48

Judgment of the Constitutional Court of the Republic of Latvia on 29 April 2016 in case No. 2015-19-01, para 13. http://www.satv.tiesa.gov.lv/wp-content/uploads/2015/08/2015-19-01_ Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 16 June 2016 in case No. 2015-18-01, para 17. http://www.satv.tiesa.gov.lv/wp-content/uploads/2015/07/2015-18-01_ Spriedums.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 15 November 2016 in case No. 2015-25-01, para 11.3.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2015/12/2015-25-01_Spriedums.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 7 July 2014 in case No. 2013-17-01, para 22. http://www.satv.tiesa.gov.lv/wp-content/uploads/2013/10/2013-17-01_ Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 10 February 2017 in case No. 2016-06-01, para 26. http://www.satv.tiesa.gov.lv/wp-content/uploads/2016/04/ 2016-06-01_Spriedums.pdf.

Foreign Materials in the Judgments

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a reference to rulings by the European Court of Human Rights can be found in almost all judgment. As regards courts of other countries, the judgment of which have been used in judgments by the Latvian Constitutional Court, the Federal Constitutional Court of Germany, the judgments of which have been used in most diverse aspects, clearly dominates. This prevailing practice of using the case law of the German Federal Constitutional Court may be substantiated by a number of considerations. First of all already on 18 November 1918 Latvia was established as an independent and democratic state governed by the rule of law, with a legal system belonging to continental (European) system. After independence of the State was restored on 4 May 1990, transformation of the national legal system was directed towards the continental system.49 The constitutional system of Germany has always been a source of inspiration for the creators of the Latvian constitutional order. For example, in drafting of the Satversme of 15 February 1922, the Weimar Constitution was taken into consideration.50 In establishing the Constitutional Court, in turn, the model of the German Federal Constitutional Court was studied. Likewise, in creating the catalogue of fundamental human rights, the Basic Law for the Federal Republic of Germany was assessed. Undoubtedly, the case law of the German Federal Constitutional Court has served as the basis for creating methodology for assessing restrictions upon fundamental human rights, recognising that a restriction may be established only by law or on the basis of law.51 In explaining the references, included before, to the constitutional provisions, later judgments by the German Federal Constitutional Court, which explain the particular human right, are (organically) used. For example, in interpreting the concept of vocation, the Constitutional Court has used also the case law of the German Constitutional Court. “The German Federal Constitutional Court has acknowledged that the above norm protects the freedom of the citizen of the up-to-date division of labour society in the especially important sector: it guarantees the individual the right to apply for any occupation if he/she considers

49 50 51

Levits E. Pārdomas par Latvijas tiesību sistēmas transformācijas problēmām. [On Transformation of Latvian legal system] In Mūsdienu tiesību teorijas atziņas [Contemporary legal thoughts]. E.Meļķiša redakcijā. Rīga: tna, 1999, p. 5. Pleps J. About the Constitution of the Republic of Latvia: History and Modern Days. In The Constitution of the Republic of Latvia. Riga: Latvijas Vēstnesis, 2012, p. 306. Judgment of the Constitutional Court of the Republic of Latvia on 19 December 2001 in case No. 2001-05-03, para 6. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/07/ 2001-05-03_Spriedums_ENG.pdf.

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himself/herself qualified for it, that is, it guarantees the right to make the employment serve as the basis of his/her life (see BVerfGE 7,377,397).”52 Its case law has been used in shaping the content of the right to assembly,53 concept of inmates’ professional integration into society.54 Similarly, in interpreting the content of the right to property and, whether the right to property comprises also the right to decide on property related matters, the Constitutional Court has made a reference to a judgment by the German Federal Constitutional Court, as well as a judgment by the Austrian Constitutional Court. “The German Federal Constitutional Court has indicated that the law that established the right of representatives of employees to participate in decision-making regarding certain issues in bodies of capital companies should be assessed as a restriction of the property right (see: Judgment of 1 March 1979 by the German Federal Constitutional Court in the joined cases No. 1BVR 532, 533/77, 419/78 and 1 BvL 21/78 BVerfGE, 50, 290). The Constitutional Court of the Republic of Austria has concluded that the possibility to push out shareholders out of a company should be regarded a property right restriction that needed justification due to interests of the society and appropriateness and proportionality of the restriction (see: Judgment of 16 June 2005 by the Constitutional Court of the Republic of Austria in the case No. G129/04 http://www.ris.bka .gv.at).”55 The German Federal Constitutional Court has played a significant role in the development of legal proceedings before the Constitutional Court. Its case law 52

53 54 55

Judgment of the Constitutional Court of the Republic of Latvia on 4 June 2002 in case No. 2001-16-01, para 2.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/11/2001-16-01_ Spriedums_ENG.pdf; see also Judgment of the Constitutional Court of the Republic of Latvia on 21 December 2015 in case No. 2015-03-01, para 14.2. http://www.satv.tiesa.gov.lv/ wp-content/uploads/2015/01/2015-03-01_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 23 November 2006  in case No. 2006-03-0106, para 30.2. http://www.satv.tiesa.gov.lv/wp-content/uploads/ 2006/03/2006-03-0106_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 14 June 2007 in case No. 2006-31-01, para 14.2. http://www.satv.tiesa.gov.lv/wp-content/uploads/2006/11/2006 -31-01_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 19 October 2011 in case No. 2010-71-0, para 13.2. http://www.satv.tiesa.gov.lv/wp-content/uploads/2010/11/2010-71-01_ Spriedums_ENG.pdf.

Foreign Materials in the Judgments

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has influenced the shaping of the content of a constitutional complaint. For example, in substantiating the right of the Constitutional Court to review a case in an instance of potential infringement, a reference has been made to the German Federal Constitutional Court: “The German Federal Constitutional Court has reviewed a similar case – the constitutional claim by the former landtag (Parliament of the state) deputy, who also happens to be a potential deputy in future, on the conformity of a legal norm, regulating the compensation to be reimbursed to the landtag deputies with the first part of Article 3 of the Fundamental Law of the German Federative Republic (see November 5, 1975 Federal Constitutional Court of Germany Judgment in case No. 2 BvR 193/74; published: BVerfGE 40, 296).”56 On the basis of case law by the German Constitutional Court, the Latvian Constitutional Court has explained its right to determine the regulation to be applied till the next activities of the legislator,57 rights to decide on the issue, which has been adjudicated if the circumstances of the matter have changed.58 Alongside rulings by the German Federal Constitutional Court, also the case law of the Austrian Constitutional Court and the Slovenian Constitutional Court has been used to decide on Court procedural issues.59 Quite often the Constitutional Court uses the formula that also “in the case law of other countries”, but proves only one example – experience of Germany: “it has been recognised in the case law of constitutional courts of other countries that the principle of a state governed by the rule of law comprises both justice and legal stability. […] Breaking the principle of legal stability is admissible in favour of justice (see judgment of 8 November 56 57 58 59

Judgment of the Constitutional Court of the Republic of Latvia on 22 February 2002  in case No. 2001 – 06 – 03, para 2.4. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/ 07/2001-06-03_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 16 D ­ ecember 2005 in case No. 2005-12-0103, para 25. http://www.satv.tiesa.gov.lv/wp-content/uploads/2005/ 05/2005-12-0103_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 15 June 2006  in case No. 2005-13-0106, para 10.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2005/ 06/2005-13-0106_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 16 December  2005 in case No. 2005-12-0103, para 25. http://www.satv.tiesa.gov.lv/wp-content/uploads/ 2005/05/2005-12-0103_Spriedums_ENG.pdf.

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1967 by the German Federal Constitutional Court in Case No. 1BvR60/66 and of 7 September 1994 in Case No. 2BvR 2093/93).”60 The second most frequently quoted court is the Constitutional Court of the Republic of Lithuanian. The use of judgments by this court can be substantiated by the fact that legal systems of Lithuania and Latvia are in similar situations. Both countries had to deal with essential issues influencing the life of the State and society. Analysis of judgments shows that Latvia has often sought inspiration from the solution to a particular issue in the case law of the Lithuanian Constitutional Court. For example, in explaining significance of the Latvian language, the Constitutional Court concluded that “The Constitutional Court of Lithuania has also declared that the state language maintains the identity of the nation, unites it and ensures manifestation of the national sovereignty and indivisibility of the nation (see the Judgment in case No. 14/98 ”On writing of names and family names in passports of citizens of the Republic of Lithuania”/1999/).”61 When analysing consequences of transformation of the socialist order, it noted, “Similar situation can be found in other Eastern European States as well. For example, the Republic of Lithuania Constitutional Court has concluded that neither the Supreme Council of the Republic of Lithuania, elected by the people in 1990 nor the executive authorities, formed by it, were responsible for the consequences of occupation of Lithuania, which took place half a century ago.”62 Likewise, upon establishing that the Lithuanian Constitutional Court has also examined a similar case, its case law was used to reach the conclusion that “rights cannot be derived from unlawful actions (see judgment of 30 October

60 61 62

Judgment of the Constitutional Court of the Republic of Latvia on 5 March  2002  in case No.  2001-10-01, para 8. http://www.satv.tiesa.gov.lv/wp-content/uploads/2016/02/ 2001-10-01_Spriedums.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 21 December 2001 in case No. 2001-04-0103, para 3. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/06/ 2001-04-0103_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 25 March 2003 in case No.  2002-12-01, para 1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2002/07/ 2002-12-01_Spriedums_ENG.pdf.

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2008 by the Lithuanian Constitutional Court in Case No. 16/06-69/06-10/07, Para 3.3 and 4.3, available: http://www.lrkt.lt/)”.63 In the initial stage of its activities, the Constitutional Court searched for solutions to similar issues in countries that also had undergone significant transformation of the legal system and referred to experience of other post-socialist countries. “Constitutional Courts of several states acknowledge that appeal against the decision in an administrative violation case shall be guaranteed. After receiving several claims by its citizens, in its May 28, 1999 Judgment in administrative violation cases the Constitutional Court of the Russian Federation declared as unconformable with the Constitution norms, prohibiting to revise court decisions on administrative violation cases, to examine the lawfulness and validity of the court decision at least at another court instance. By its July 8, 1999 Judgment the Republic of Azerbaijan Constitutional Court declared the norms, prohibiting appeal against a court decision in administrative violation cases as null and void. The Constitutional Courts of both countries evaluated and declared norms of equivalent content, prohibiting appeal against the decision in an administrative violation case at the higher instance court, as unconformable with the norms of higher legal force. The legal norms challenged at the Constitutional Court are analogous. Besides, unconformity is equal to the norms, guaranteeing the right of a person to the protection of the court, which are included also in the Constitutions of the Russian Federation and the Republic of Azerbaijan. Our Constitutional Court also has to evaluate the compliance of the challenged legal norms with the norms, incorporating the same right, of the Satversme”64 Eastern European Constitutional Court practice was used to decide on the electoral threshold, making references to the Constitutional Court of the Czech Republic and Slovenia.65 To find a balance between the rights of the tenants 63 64 65

Judgment of the Constitutional Court of the Republic of Latvia on 8 March 2017  in case No 2016-07-01, para 25.2. http://www.satv.tiesa.gov.lv/wp-content/uploads/2016/ 05/2016-07-01_Spriedums-1.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 20 June 2002  in case No. 2001-17-0106, para 3. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/ 12/2001-17-0106_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 23 September 2002 in case No. 2002 – 08 – 01. http://www.satv.tiesa.gov.lv/wp-content/uploads/2002/06/2002 -08-01_Spriedums_ENG.pdf.

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and the lessors Court used practice of the Polish Constitutional Tribunal and also Constitutional Court of the Czech Republic, the Republic of Estonia Supreme Court.66 Also deciding on very sensitive issue regarding remuneration of judges, Constitutional Court made references on the cases decided in the Constitutional Tribunal of Poland, Constitutional Court of Lithuania and Slovenia, Czech Republic.67 Although rarely, but also references made by the Constitutional Court to the judgment of the Supreme Court of Canada,68 the Supreme Curt of the usa,69 the Belgium Constitutional Court70 can be found. 3.3 References to the Doctrine (Foreign Scholars) In recent years legal science in Latvia has significantly developed, bringing along appropriate range of doctrine. Research reveals that references to works by Latvian scholars prevail in judgments by the Constitutional Court. References to foreign scholars’ work appear seldom. The range of analysed materials shows that the Constitutional Court has made references to works of German authors, for example, commentaries to the Law on the Constitutional Court,71 which can be explained by the need to develop new proceedings – proceedings before the Constitutional Court, by looking for “inspiration” in the doctrine of the German Federal Constitutional Court. In view of the fact that administrative law in Latvia has been created on the basis of German school, in examining legal norms that regulate respective administrative rights or administrative procedure references to the German doctrine can be found in

66 67 68 69 70 71

Judgment of the Constitutional Court of the Republic of Latvia on 8 March 2006 in the case No. 2005-16-01 para 15, 17.5. http://www.satv.tiesa.gov.lv/wp-content/­ uploads/2005/07/2005-16-01_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 18 January, 2010 in case No. 2009-11-01, para 21, 25. http://www.satv.tiesa.gov.lv/wp-content/uploads/2009 /05/2009-11-01_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 18 January 2010 in case No. 2009-11-01, para 9. http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/05/2009-11-01_ Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 18 January 2010 in case No. 2009-11-01, para 10.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2009/05/ 2009-11-01_Spriedums_ENG.pdf. Judgment of the Constitutional Court of the Republic of Latvia on 6 December 2010 in case No. 2010-25-01, para 10. http://www.satv.tiesa.gov.lv/wp-content/uploads/2010/04/ 2010-25-01_Spriedums_ENG.pdf. Bundesverfassungsgerichtsgesetz: Mitarbeiterkommentar und Handbuch. Heidelberg, C.F. Műller Juristischer Verlag, 1992; Judgment of the Constitutional Court of the Republic of Latvia on February 22, 2002 in case No. 2001 – 06 – 03, para 2.4. http://www.satv.tiesa.gov .lv/wp-content/uploads/2001/07/2001-06-03_Spriedums_ENG.pdf.

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judgments.72 73 The same applies to private law: civil law, commercial law are created in Latvia on the basis of German law, therefore German sources are used to reinforce quality of judgments.74 Analysis of judgments reveals that the Constitutional Court has referred to works by foreign authors also if in the particular case it had to deal with issues that had an international dimension and that had not been fully analysed in the Latvian legal doctrine, for example, with complex financial issues;75 system of environmental taxes;76 arbitration issues,77 environmental impact assessment.78 4

Methodology and Aim of Use of Comparative Method

Comparison today is inevitable, because it is almost impossible to be a wellinformed judge without being aware of law in other countries.79 Comparison 72

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Maurer H. Allgemeines Verwaltungsrecht. 14. Aufl. München: Beck, 2002; Graf S. Das Sonderstatusverhältnis. Juristische Arbeitsblätter, Jg. 44, H.12/2012. Judgment of the Constitutional Court of the Republic of Latvia on 10 June 2014 in case No. 2013-18-01, para 11.1. http://www .satv.tiesa.gov.lv/wp-content/uploads/2013/11/2013-18-01_Spriedums_ENG.pdf. Paine F.J. General Administrative Law of Germany. Administrative Procedure Law of Germany. Riga: The Agency of Court Buildings, 2002; Judgment of the Constitutional Court of the Republic of Latvia on 23 November 2006 in case No. 2006-03-0106, para 16. http:// www.satv.tiesa.gov.lv/wp-content/uploads/2006/03/2006-03-0106_Spriedums_ENG.pdf. Luig K. Kauf bricht nicht Miete. In: Handwörterbuch zur deutschen Rechtsgeschichte. 2. Aufl. Schmidt: Berlin, 2012; Jüttner B., Zur Geschichte des Grundsatzes “Kauf bricht nicht Miete”. Düsseldorf: Triltsch, 1960; Judgment of the Constitutional Court of the Republic of Latvia on 7 July 2014 in case No. 2013-17-01, para 27. http://www.satv.tiesa.gov.lv/wpcontent/uploads/2013/10/2013-17-01_Spriedums_ENG.pdf. Wood P.R. Regulation of International Finance. London: Sweet & Maxwell, 2007; Judgment of the Constitutional Court of the Republic of Latvia on 13 June 2014 in case No. 201402-01, para 13. http://www.satv.tiesa.gov.lv/wp-content/uploads/2014/01/2014-02-01_Spriedums_ENG.pdf. Milne J.E., Andersen M.S. [editors]. Handbook of Research on Environmental Taxation. [B.v.]: Edward Elgar Publishing, 2012; Judgment of the Constitutional Court of the Republic of Latvia on 25 March 2015 in case No. 2014–11–0103, para 19. http://www.satv.tiesa.gov .lv/wp-content/uploads/2014/04/2014-11-0103_Spriedums_ENG.pdf. Fouchard Gaillard Goldman. On International Commercial Arbitration. Gaillard E., Savage J. (Eds.) The Hague: Kluwer Law International, 1999; Judgment of the Constitutional Court of the Republic of Latvia on 28 November 2014 in case No. 2014-09-01, para 15.2. http:// www.satv.tiesa.gov.lv/wp-content/uploads/2014/03/2014-09-01_Spriedums_ENG.pdf. Dalal-Clayton B., Sadler B. Strategic Environmental Assessment: A Sourcebook and Reference Guide to International Experience. London: Earthscan, 2004; Judgment of the Constitutional Court of the Republic of Latvia on 9 October 2014 in Case No. 2013-19-03, para 18.4. http://www.satv.tiesa.gov.lv/wp-content/uploads/2016/02/2013-19-03_Spriedums.pdf. Vicki C.J. Constitutional Comparisons: Convergence, Resistance, Engagement. Harvard Law Review, 2005. Vol. 119, p. 119.

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is well known in international courts80 and it is well known by the justices of the Latvian Constitutional Court, as it can help expand judicial thinking about legal argumentation, legal trends, decision-making.81 References to foreign legal sources are not found in every judgment of the Constitutional Court. Reference to foreign sources is not a perquisite for the judgment. It is in the hands of a court to decide to use foreign sources in the judgment or not. It would not be correct to claim that only the reporting justice decides on the use of foreign sources and reflection thereof in the judgment. The Court (Panel of the Court) is the one that makes the final decision on whether and what foreign experience is reflected in the judgment. It may also happen that materials from another state are reviewed; however, they are not seen as having as decisive influence upon content of the judgment as to be included in the text of the judgment. Experience of other countries is used and can be used if it can serve a reason. References have no place in the judicial reasoning if they are just for a judge’s pleasure. First of all comparative method brings knowledge.82 Comparative method gives the chance for a court to compare judgments with judgments made by other courts. As noted by A. Barak, it can help to realize the “role as a judge”, to find the right path to follow, and to expand “the horizon and the interpretive field of vision”.83 No doubts, that foreign material gives ideas on how to find a solution in a case.84 Comparative interpretation at the Constitutional Court is used to find the meaning of a norm by making references or using arguments based on materials or information from other countries. Analysis of the judgments of the Constitutional Court proves that comparative analysis supports a certain line of reasoning in a case. It is obvious that some of concepts in national law have been developed, taking into consideration foreign materials. The Constitutional Court has used comparative method also in those cases where legal regulation was very new and rich case law was absent. In those situations it is acceptable and even 80 81 82 83 84

Rozakis Ch.L. The European Judge as Comparatist. Tulane Law Review, 2005, Vol. 80, pp. 257–279. Barak A. Response to The Judge as Comparatist. Comparison in Public Law. Tulane Law Review, 2005, Vol. 80, p. 197. Zweigert K., Kötz H. An Introduction to Comparative Law. Oxford: Clarendon Press, 1998. p. 15. Barak A. Response to The Judge as Comparatist. Comparison in Public Law. Tulane Law Review, 2005, Vol. 80, pp. 195–196. Smits J.M. Comparative law and its influence on national legal systems. In The Oxford Handbook of Comparative Law. Edd. Reimann M., Zimmermann R. Oxford, Oxford University Press, 2006, p. 525.

Foreign Materials in the Judgments

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necessary to find the best and the most recent ideas regarding the same problem. It is also useful to compare a solution reached “at home” with the experience of other country. In general, the favour shown by the Constitutional Court to the comparative method can be explained also by the need to develop or to return the Latvian legal system to the circle of the Western law, at the same time taking over the best practice of other countries.85 After the collapse of communism and reestablishment of the independence, the law that existed in Latvia before occupation was reinstated; e.g., the Satversme of 1922, the Civil Law of 1937, and new legal regulation was passed. It also became necessary to apply legal norms in the light of the principles of the state ruled by law.86 Therefore comparative method was applied due to practical needs to learn and to follow the Western legal theory and thinking. “Latvia shall not only approximate the texts of its normative acts with the texts of legal norms of the European Union, but also adopt the Western legal theory, namely, the legal thinking. Only then the legislation, approximated on the content level, will function in the same way as in the European Union. Unified legal understanding in the European tradition and legal manner is one of the preconditions of functioning of the European Union.”87 In other words, references to foreign materials were used to keep up with evolving national and international standards, as those standards are common for democratic countries. In the period of transformation of legal system, it was also important to draw inspiration from courts that had dealt with the same problem. Therefore as a source of inspiration in specific cases that involved typical post-soviet issues references can be found to the court practice of Eastern European Constitutional Courts. Comparative method was used as “an experienced friend”.88 85 86 87 88

Zweigert K., Kötz H. An Introduction to Comparative Law. Oxford: Clarendon Press, 1998. p. 16. Kuhn Z. Development of Comparative Law in Central and Eastern Europe. In The Oxford Handbook of Comparative Law. Edd. Reimann M., Zimmermann R. Oxford, Oxford University Press, 2006, p. 217. Dissenting opinions of the Constitutional Court justices Aivars Endziņš, Juris Jelāgins and Anita Ušacka in case No.2000 – 03 – 01, para 5. http://www.satv.tiesa.gov.lv/wp-content/ uploads/2000/03/2000-03-01_Atseviskas_domas_ENG.pdf. Barak A. Response to The Judge as Comparatist. Comparison in Public Law. Tulane Law Review, 2005, Vol. 80, p. 196.

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References to experience of European states have been used also in cases, where it had been necessary to draw the legislator’s attention to the need to develop a certain legal institution in the light of most recent developments. For example, in examining constitutionality of a criminal sanction – confiscation of property, the Constitutional Court noted that “a part of European states have given up confiscation of property as type of punishment in criminal law and have preferred broader confiscation of illegally acquired assets or of property related to a criminal offence. This points to evolving purposes of punishment and change of values within the European legal space. Therefore the Saeima should regularly review the need of retaining confiscation of property as a type of punishment, taking into account the change of values that are occurring in the legal consciousness of Latvian society, as well as international commitments of the State in the field of human rights.”89 As the analysis of the case law of the Constitutional Court shows, foreign sources of law are used for various purposes (see above). At the same time the Constitutional Court has made clear (critical) rules on application of foreign norms, rejecting automatic application of foreign materials, stating that “in the analysis of comparative rights, one has to take into account the functional context.”90 It means that in the application of comparative method, different legal, social, political, historical and systematic contexts must be taken into account. In other words: it is necessary to keep in mind uniqueness of each legal system. For example, in a case where legal norms of the state pension were reviewed, the Constitutional Court provided a specific explanation that “the Latvian legislator, when elaborating and passing the Pension Law has not adopted the experience of those states, in which the right of receiving the granted pension for the employed pensioners is limited. It exists in many states, for example in Lithuania and Germany (see Article 23 of the July 18, 1994 Republic of Lithuania Law ”On the State Social Insurance Pensions”). However, when evaluating the pension systems of the developed 89

90

Judgment of the Constitutional Court of the Republic of Latvia on 8 April 2015 in case No. 2014-34-01, para 20. https://likumi.lv/ta/id/273343-par-kriminallikuma-36-pantaotras-dalas-1-punkta-42-panta-un-177-panta-tresas-dalas-vardu-konfiscejot-mantu-vaibez-mantas. Judgment of the Constitutional Court of the Republic of Latvia on 8 June 2007 in case No. 2007-01-01, para 24.1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2007/01/2007 -01-01_Spriedums_ENG.pdf.

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state with regard to limitation of pension payment to the employed pensioners, one has to take into consideration the fact, that first of all both – the pension systems and the above limitations of different states are different.”91 In another case the Constitutional Court refused to take into account a decision by a US court in the case “Robinson v. California” , as the challenged legal norm to be assessed by the Constitutional Court and the practice of its application differed from the legal norm assessed by the usa Supreme Court.92 It is true that even similar legal norms in different states may have different content. Legal norms establishing jurisdiction, authority and procedures for decision-making of constitutional institutions are the most difficult to be incorporated into legal systems of other states.93 It is clear that decisions by the constitutional courts must be consistent with traditions and values of the national legal systems. Due to this a reference to comparative constitutional law may be subject to well-founded criticism, if legal regulation of another country has been attributed to Latvia without proper assessment. For example, a Justice of the Constitutional Court has critically assessed a reference made in a judgment by the Constitutional Court to German sources of law, pointing out that the German environmental law regulation on the constitutional level differed significantly from the Latvian constitutional regulation on environment law, therefore more elaborate and critical approach to the use of legal regulation and judicature of another country had been necessary.94 Likewise, it has been noted also in another dissenting opinion that: “Reference to the practice of the Federal Constitutional Court of gfr in the Judgment has been made without going into the heart of the matter and in an isolated from the context manner. The quotation “He, who has spied on and oppressed his own people, who has deceived, betrayed and 91

Judgment of the Constitutional Court of the Republic of Latvia on 19 March 2002 in case No. 2001-12-01, para 1. http://www.satv.tiesa.gov.lv/wp-content/uploads/2001/09/2001-12-01_ Spriedums_ENG.pdf. 92 Judgment of the Constitutional Court of the Republic of Latvia on 26 January 2005 in case No. 2004-17-01, para 14.2. http://www.satv.tiesa.gov.lv/wp-content/uploads/2004/07/2004-17-01_Spriedums_ENG.pdf. 93 Judgment of the Constitutional Court of the Republic of Latvia on 14 March 2011 case No. 2010-51-01, para 17. http://www.satv.tiesa.gov.lv/wp-content/uploads/2010/07/2010-51-01_ Spriedums_ENG.pdf. 94 Dissenting opinion of the Constitutional Court Justice Kristīne Krūma in case No 200803-03, para 6. http://www.satv.tiesa.gov.lv/wp-content/uploads/2016/02/2008-03-03_Atseviskas_domas.pdf.

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cheated or who is responsible for it all, shall have no place in the Bundestag even if one cannot deprive him of his mandate” is not the viewpoint of the Court but just a fragment from the speech of the Bundestag deputy Wiefelspütz, which was included in the Decision to illustrate the objective of the respective norm- self-purification of the Parliament.”95 The Constitutional Court has referred to foreign legal sources most frequently in the initial stage of its activities (1996–200096) for the simple reason that the case law was not developed.97 A study found that the year 2007 marked a decrease in references.98 Examination of judgments made in 2016 and 2015 shows that out of 26 judgments, references to foreign sources can be found in 7 judgments, which is sufficient to conclude that the comparative method is still used and, if needed, can be used in drafting a reasoned and well-considered judgment by the Court, at the same time outlining the development of Latvian law in the common European space. Acknowledgements The paper is supported by the National Research Program 5.2. “Economic Transformation, Smart Growth, Governance and Legal Framework for the State and Society for Sustainable Development – a New Approach to the Creation of a Sustainable Learning Community (ekosoc-lv)”. The author would like to thank students: A. Abramčika, A. Ustinova, L. Kaluga, M. Druziks, M. Jākobsons, R. Koržuka for technical work in compiling judgment of the Constitutional Court. 95

Dissenting opinions of the Constitutional Court Justices Aivars Endziņš, Juris Jelāgins and Anita Ušacka in case No.2000–03–01, para 5.2. http://www.satv.tiesa.gov.lv/wp-content/ uploads/2000/03/2000-03-01_Atseviskas_domas_ENG.pdf. 96 Ķinis U. Role of the Constitutional Court of the Republic of Latvia against the backdrop of economic recession. Constitutional Law Review, 2012, v, p. 193. 97 Pleps J. Ārvalstu precendenti konstitucionālajā tiesvedībā: Latvijas prakse [Foreign Precedents in the Constitutional Adjudication: Practice in Latvia]. Jurista vārds, Nr. 32 (834), 19.08.2014. 98 Ibid.

The Use of Foreign Law by Estonian Supreme Court Madis Ernits 1 Introduction Estonian Constitution consists of three acts. Eesti Vabariigi põhiseadus [The Constitution of the Republic of Estonia] (Constitution),1 as the main act was adopted via a referendum on 28 June 1992 and came into force on the following day, as prescribed by §1(1) of the Eesti Vabariigi põhiseaduse rakendamise seadus [The Constitution of the Republic of Estonia Implementation Act] (cia).2 cia was adopted together with the Constitution by a referendum on the same day. On 1 May 2004 Estonia, together with nine other European countries, joined the European Union (EU). Before the accession the Constitution of the Republic of Estonia was amended via a referendum on 14 September 2003. The Eesti Vabariigi põhiseaduse täiendamise seadus [The Constitution of the Republic of Estonia Amendment Act] (caa)3 was added to the Constitution. This act provides for that Estonia may belong to the European Union, provided the fundamental principles of the Constitution of the Republic of Estonia are respected and that when Estonia has acceded to the European Union, the Constitution of the Republic of Estonia is applied without prejudice to the rights and obligations arising from the Accession Treaty. The Estonian constitutional order is determined by five fundamental constitutional principles: human dignity,4 democracy,5 rule of law,6 social state7 1 Riigi Teataja [State Gazette] (RT) 1992, 26, 349; 15.05.2015, 1. For the English translation of the Constitution, see: . All electronic resources accessed on 27.05.2019. The links are to the English translations unless indicated otherwise. 2 RT i 1992, 26, 350: . 3 RT i 2003, 64, 429; RT i 2007, 43, 313: . 4 Judgment of the crcsc (CRCSCj) 21.01.2004, 3-4-1-7-03, No. 14; 05.05.2014, 3-4-1-67-13, No. 49; ruling of the Administrative Law Chamber of the Supreme Court (ALCSCr) 04.05.2011, 3-3-1-11-11, No. 10. Selected Constitutional Review judgments and selected judgments of the Administrative Law Chamber are available in English under: and . 5 Supreme Court en banc judgment (SCebj) 01.07.2010, 3-4-1-33-09, No. 52, 67; ALCSCr 16.01.2003, 3-3-1-2-03, No. 11; 27.01.2003, 3-3-1-6-03, No. 11. 6 CRCSCr 07.11.2014, 3-4-1-32-14, No. 28. Cf. CRCSCj 19.03.2009, 3-4-1-17-08, No. 26; 06.01.2015, 3-4-1-34-14, No. 33; ALCSCr 16.01.2003, 3-3-1-2-03, No. 11; 27.01.2003, 3-3-1-6-03, No. 11. 7 CRCSCj 21.01.2004, 3-4-1-7-03, No. 14; 05.05.2014, 3-4-1-67-13, No. 49. © koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_021

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and Estonian identity.8,9 The Estonian legal order is a part of continental legal culture with a strict hierarchy of norms, with the principle of reservation of law provided for by §3(1)110 of the Constitution, according to which the Constitution requires a specific enactment of a statute for every specific exercise of the state power, and with the fundamental division of the legal order in public and private law. According to the Constitution, Estonia is a parliamentary republic, with governments being subject to the confidence of the directly and proportionally elected Parliament. The 2nd Chapter of the Constitution provides for a rather detailed catalogue of 48 provisions of enforceable constitutional rights. Five general rights can be identified: general liberty right in §19(1),11 general equality right in §12(1),12 general right to state protection in §13(1),13 general right to organization and procedure in §1414 and general social right in §28(2)1.15,16 The chapter on constitutional rights is otherwise also

8 9

10 11 12 13 14 15 16

CRCSCj 04.11.1998, 3-4-1-7-98, No. iii. To the debate about fundamental principles of the Constitution see: W. Drechsler, T. Annus, ‘Die Verfassungsentwicklung in Estland von 1992 bis 2001’, (2002) 50 Jahrbuch des öffentlichen Rechts der Gegenwart, p. 473 ff.; M. Ernits, ‘20 Jahre Menschenwürde, Demokratie, Rechtsstaat, Sozialstaat’, in S. Hülshörster, D. Mirow (eds.), Deutsche Beratung bei Rechts- und Justizreformen im Ausland: 20 Jahre Deutsche Stiftung für Internationale Rechtliche Zusammenarbeit (irz), Berlin 2012, p. 126 ff.; R. Maruste, ‘The Role of the Constitutional Court in Democratic Society’, (2007) 13 Juridica International, p. 8 ff.; R. Maruste, ‘Democracy and the Rule of Law in Estonia’, (2000) 26 Review of Central and East European Law, p. 311 ff.; J. Laffranque, ‘A Glance at the Estonian Legal Landscape in View of the Constitution Amendment Act’, (2007) 12 Juridica International, p. 55 ff.; R. Narits, ‘About the Principles of the Constitution of the Republic of Estonia from the Perspective of Independent Statehood in Estonia’, (2009) 16 Juridica International, p. 56 ff. See compilation of the sources in Estonian and presentation of the debate: M. Ernits, Põhiõigused, demokraatia, õigusriik, Tartu 2011, p. 5 fn. 9, p. 6 ff., 23 f. “Governmental authority is exercised solely pursuant to the Constitution and laws which are in conformity therewith.” “Everyone has the right to free self-realisation.” “Everyone is equal before the law. No one shall be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds.” “Everyone has the right to the protection of the state and of the law. The Estonian state shall also protect its citizens abroad.” “The guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers, and of local governments.” “An Estonian citizen has the right to state assistance in the case of old age, incapacity for work, loss of a provider, or need.” This division was first introduced by Robert Alexy in the first systematic monograph concerning fundamental rights in the Estonian Constitution: R. Alexy, Põhiõigused Eesti põhiseaduses, Juridica eriväljaanne 2001, p. 51 ff., 56 ff., 68 ff., 73 f., 76 f.

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r­ather comprehensive and detailed.17 In addition, §1018 opens the constitutional rights catalogue towards human rights and constitutes a constitutional rights development clause.19 All constitutional rights are procedurally guaranteed by the general right to address a court in case of an alleged violation of a right in §15(1).20 Therefore, the Estonian Constitution is a typical example of a constitution adopted after the fall of an authoritarian regime – it is fully binding and enforceable in courts. The highest appeal court is the Estonian Supreme Court (SC), which unifies the functions of the final appellate instance of civil, criminal, and administrative jurisdictions, alongside constitutional review.21 The power of constitutional review can be exercised either by the Constitutional Review Chamber (crcsc) or, alternatively, by the SC en banc. The first public hearing of the SC took place on 27 May 1993 and the crcsc rendered its first judgment on 22 June 1993. The constitutional procedural law is regulated by the Constitutional Review Court Procedure Act (crcpa)22 which provides for 14 different types of proceedings. The most important type of proceedings is the concrete norm control which may be initiated by any court that concludes that a law, on whose validity its decision depends, is unconstitutional. However, the crcpa does not provide for explicitly an individual constitutional complaint. In spite of that, there has been one successful precedent23 and the SC has in several 17

18

19

20

21 22 23

It contains classic rights and liberties like the right to privacy in §26, freedom to choose an occupation in §29(1), property right in §32, inviolability of the home in §33, right to free movement in §34, freedom of religion in §40, secrecy of correspondence in §43, freedom of expression in §45, freedom of assembly in §47 etc. as well as special social rights like e.g. the right to education in §37. “The rights, freedoms and duties set out in this chapter do not preclude other rights, freedoms and duties which arise from the spirit of the Constitution or are in accordance therewith, and which are in conformity with the principles of human dignity, social justice and democratic government founded on the rule of law.” P. Häberle, ‘Dokumentation von Verfassungsentwürfen und Verfassungen ehemals sozialistischer Staaten’, (1995) 43 Jahrbuch des öffentlichen Rechts der Gegenwart, p. 177; R. Alexy, Põhiõigused Eesti põhiseaduses, Juridica eriväljaanne 2001, p. 87 f.; M. Ernits, Põhiõigused, demokraatia, õigusriik, Tartu 2011, p. 140. “Everyone whose rights and freedoms have been violated has the right of recourse to the courts. Everyone is entitled to petition the court that hears his or her case to declare unconstitutional any law, other legislative instrument or measure which is relevant in the case.” §149(3) “The Supreme Court is the highest court in the state and shall review court judgments by way of cassation proceedings. The Supreme Court is also the court of constitutional review.” Põhiseaduslikkuse järelevalve kohtumenetluse seadus. – RT i 2002, 29, 174; RT i, 23.12.2013, 57. SCebj 17.03.2003, 3-1-3-10-02 (Brusilov), especially No. 17. Cf. ALCSCr 22.12.2003 and SCebj 30.04.2004, 3-3-1-77-03.

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decisions stressed the possibility of the individual constitutional complaint deriving directly from §15(1) of the Constitution.24 Nevertheless, it remains disputable in Estonian constitutional law theory whether the Constitution establishes a right to individual constitutional complaint to the SC or do all courts have the obligation to enforce constitutional rights and there remains no room for a direct complaint to the SC.25 The following analysis will not include numerous references of the SC on judgments of the European Court of Human Rights. Already in travaux preparatoirs of the Constitution the prominent role of the European Convention on Human Rights (echr) was underlined26 and the echr was one of the main models for the constitutional rights chapter of the Constitution. Later on the SC pointed out “that proceeding from the aforesaid the European Convention for the Protection of Human Rights and Fundamental Freedoms constitutes an inseparable part of Estonian legal order and the guarantee of the rights and freedoms of the Convention is, under §14 of the Constitution, also the duty the judicial power.”27 The SC used the echr as an interpretation 24 25

26 27

CRCSCj 09.06.2009, 3-4-1-2-09, No. 36; CRCSCr 23.03.2005, 3-4-1-6-05, No. 4; 09.05.2006, 3-4-1-4-06, No. 8 f.; 20.05.2009, 3-4-1-11-09, No. 5 ff.; 07.12.2009, 3-4-1-22-09, No. 7; 10.06.2010, 3-4-1-3-10, No. 13 f.; 23.01.2014, 3-4-1-43-13, No. 9; 27.01.2017, 3-4-1-14-16, No. 22. See e.g. the materials of the 2013 conference on the Brusilov case (SCebj 01.01.2009, 3-1-310-02), (available in Estonian) . In 2017 the controversy sparked again, cf. I. Pilving, ‘Kas Eestis on vaja individuaalkaebust?’, (2016) Kohtute aastaraamat, p. 81 ff.; E. Kerganberg, ‘Individuaalkaebus kui riigisaladus’, (2016) Kohtute aastaraamat, p. 91 ff. There was also a passionate debate in the press: L. Velsker, ‘Reinsalu plaanitav seaduseelnõu on õiguskantsleri hinnangul arusaamatu ja ohustab demokraatiat’, (10.03.2017) Postimees Online; R. Maruste, ‘Õiguskantsler püüab eksitada seadusandjat ja avalikkust’, (14.03.2017) Postimees Online; K. Kangro, ‘Rask näeb otsekaebuste lubamise plaanis katset õiguskantsler tasalülitada’, (15.03.2017) Postimees Online; Ü. Madise, ‘Otsekaebuse petukaup ehk kuidas rohkem on tegelikult vähem’, (16.03.2017) Postimees Online; H. Mihelson, ‘Riigikohus ei toeta otsekaebuste lubamise plaani, kuid soovib arutelu jätkata’, (29.03.2017) Postimees Online; I. Pilving, ‘Põhiõiguste kaitset tuleb alustada õigest otsast’, (02.04.2017) Postimees Online (all available at: ); U. Lõhmus, ‘Võimalus pöörduda otse riigikohtusse väärib arutelu’, (16.03.2017) ERR (available at: ). The starting point of the debate was a plan of the Minister of Justice to introduce the individual constitutional complaint to the crcpa that triggered exceptionally harsh critique especially from the Chancellor of Justice Ülle Madise. The strong reaction is somewhat surprising and regrettable because the central task of the Chancellor of Justice is to protect constitutional rights and the individual constitutional complaint is their procedural guarantee of the last resort. V. Rumessen, in Põhiseadus ja Põhiseaduse Assamblee, Tallinn 1997, p. 172. SCebj 06.01.2004, 3-1-3-13-03, No. 31; cf. CRCSCj 04.04.2011, 3-4-1-9-10, No. 54.

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a­ rgument even before Estonian accession to the echr28 and has repeatedly done this after the accession.29 Except some early references to the Charter of Fundamental Rights of the European Union, the following analysis will not deal with links to the EU Law.30 The following analysis concentrates on the use of comparative national and international law beyond the echr and the case law of the ECtHR in judgments of constitutional review and judgments of the SC en banc. References to the judgments of the Administrative Law Chamber are also used where appropriate. Some of the judgments of the SC en banc are also formally constitutional review cases but often they are formally criminal, civil or administrative law cases which despite that essentially deal with the constitutional matters.

28 29 30

CRCSCj 12.01.1994, III-4/1-1/94; cf. judgment of the Criminal Law Chamber of the SC (CLCSCj) 12.12.1995, III-1/3-47/95. Some of the most important cases: SCebj 06.01.2004, 3-1-3-13-03; 06.01.2004, 3-3-2-1-04; 18.03.2005, 3-2-1-59-04; 14.04.2009, 3-3-1-59-07, No. 32; 12.04.2011, 3-2-1-62-10, No. 48.4, 57.3, 62.2; CRCSCj 04.04.2011, 3-4-1-9-10. 2005 the SC formulated its first version of the relationship between EU Law and domestic law: “The European Union law has indeed supremacy over Estonian law, but taking into account the case-law of the European Court of Justice, this means the supremacy upon application. The supremacy of application means that the national act which is in conflict with the European Union law should be set aside in a concrete dispute […]” (SCebj 19.04.2005, 3-4-1-1-05, No. 49. To this judgment: U. Lõhmus, ‘Euroopa Liidu õigussüsteem ja põhiseaduslikkuse kontroll pärast 1. maid 2004’, (2006) Juridica, p. 4 f.; 2006 the SC went significantly further and suspended large parts of the Constitution: “[…] the Constitution of the Republic of Estonia must be read together with the Constitution of the Republic of Estonia Amendment Act, applying only the part of the Constitution that is not amended by the caa. […] In the substantive sense this amounted to a material amendment of the entirety of the Constitution to the extent that it is not compatible with the European Union law. To find out, which part of the Constitution is applicable, it has to be interpreted in conjunction with the European Union law, which became binding for Estonia through the Accession Treaty. At that, only that part of the Constitution is applicable, which is in conformity with the European Union law or which regulates the relationships that are not regulated by the European Union law. The effect of those provisions of the Constitution that are not compatible with the European Union law and thus inapplicable is suspended.” (Opinion of the crcsc 11.05.2006, 3-4-1-3-06, No. 14, 16.) This statement of the SC has been heavily criticized in the literature as too far going. (L. Mälksoo, ‘Eesti suveräänsus 1988–2008’, in H. Kalmo, M. Luts-Sootak (eds.). Iganenud või igavene? Tekste kaasaegsest suveräänsusest, Tartu 2010, p. 147 f.; U. Lõhmus, ‘Põhiseaduse muutmine ja muutused põhiseaduses’, (2011) Juridica, p. 24 f.; M. Ernits, Põhiõigused, demokraatia, õigusriik, Tartu 2011, p. 37 ff., 63 ff.; cf. B. Aaviksoo, ‘Konstitutsiooniline identiteet: kild moodsa konstitutsionalismi kaleidoskoobis’, (2010) Juridica, p. 335 ff.).

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2 Comparative National and International Law in the Case Law of the Supreme Court Historically bound to the German legal culture, after regaining the independence in 1991 Estonia took again mainly an example of the German legal doctrine. The most influential model for reconstruction of vast parts of the ­Estonian legal order was modern German law. In first order this applies to the central parts of private law but also for criminal law and general administrative law. However, often the introduced rules were radically simplified. In this way Estonia gained a young and dynamic legal order where some of the principles and tenets that have become natural in more settled legal systems must still develop. In Estonian public law literature comparative law arguments are widespread.31 However, probably due to limited academic capacity there has been no serious academic controversy about the use of foreign law arguments in constitutional law or specifically in the case law of the SC.32 The possibility to use comparative law arguments in constitutional review judgments can therefore be regarded as the dominant opinion. 2.1 General Principles of Law Already in 1994, the Supreme Court declared that general principles of law developed by European institutions are incorporated into the Estonian legal system. The facts of the case were, in short, that the Farm Act introduced a five-year income tax exemption for interest on loans granted to farmers, which was subsequently repealed when the coalition changed. In this connection, 31

32

E.g. K. Merusk, I. Koolmeister, Haldusõigus, Tallinn 1995; K. Merusk, Administratsiooni diskretsioon ja selle kohtulik kontroll, Tallinn 1997: R. Alexy, Põhiõigused Eesti põhiseaduses, Juridica eriväljaanne 2001; A. Aedmaa, E. Lopman, N. Parrest, I. Pilving, E. Vene, Haldusmenetluse käsiraamat, Tartu 2004; R. Maruste, Konstitutsionalism ning põhiõiguste ja -vabaduste kaitse, Tallinn 2004; P.K. Tupay, Verfassung und Verfassungsänderung in Estland, Berlin 2015. Cf. Dissenting opinion of the justice Uno Lõhmus on the CRCSCj 05.10.2000, 3-4-1-8-00, No. ii; Dissenting Opinion of Justice Eerik Kergandberg, joined by Justices Jaak Luik and Hele-Kai Remmel to the SCebj 17.03.2003, 3-1-3-10-02, No. 9 f.; ­Dissenting opinion of justice Julia Laffranque, joined by justices Tõnu Anton, Peeter Jerofejev, Hannes Kiris, Indrek Koolmeister and Harri Salmann to the SCebj 19.04.2005, 3-4-11-05, No. 10; Dissenting opinion of the justices Villu Kõve, Peeter Jerofejev and Henn Jõks on the SCebj 21.06.2011, 3-4-1-16-10, No. 5; Dissenting opinion of the justices Henn Jõks, Ott Järvesaar, Eerik Kergandberg, Lea Kivi, Ants Kull and Lea Laarmaa on the SCebj 12.07.2012, 3-4-1-6-12, No. 3. Cf. M. Ernits, Põhiõigused, demokraatia, õigusriik, Tartu 2011, p. 119 ff.

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the question arose as to whether the tax advantage can be repealed before the end of the five-year period granted. The SC held such drawback for a violation of the principle of legitimate expectations. However, the crcsc spiced the reasons of the judgment with one of its best known obiter dictums in Estonia: In democratic states the laws and general principles of law developed in the course of history are observed in law-making as well as in implementation of law, including in the administration of justice. When creating the general principles of Estonian law the general principles of law developed by the institutions of the Council of Europe and the European Union should be taken into consideration alongside the Constitution. These principles have their origin in the general principles of law of the highly developed legal cultures of the member states. […] The validity of the principles of a state based on democracy, social justice and the rule of law means that in Estonia the general principles of law recognised within the European legal space are in force. Pursuant to the Preamble of the Constitution, the Estonian state is founded on liberty, justice and law. In a state founded on liberty, justice and law the general principles of law are in force. Consequently, an Act which is in conflict with these principles is also in conflict with the Constitution.33 The general principles of law referred by the SC have the following characteristics cumulatively – they: – are developed in the course of history; – are developed by the institutions of the Council of Europe and the European Union (recognised within the European legal space); – have their origin in the general principles of law of the highly developed legal cultures of the member states; – are based on democracy, social justice and the rule of law; – are founded on liberty, justice and law. The SC stresses that a law which is in conflict with the general principles is also in conflict with the Constitution. From these observations arises the question why did the SC need the general principles in its reasoning if the Constitution already introduces constitutional rights, democracy and the rule of law? If the Constitution includes all important principles there is no logical need to invent external principles and to declare afterwards that a breach of the latter would lead to a breach of 33

CRCSCj 30.09.1994, III-4/A-5/94. Cf. CRCSCj 17.02.2003, 3-4-1-1-03.

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the Constitution. Later the SC has declared repeatedly that the case deciding principle, i.e. the principle of legitimate expectations derives from the Constitution itself, more precisely from §10.34 Consequently, the general principles of law were strictly speaking superfluous. However, the SC did not commit a mistake by declaring the general principles of law to be an important part of Estonian legal system. In the early phase of the constitutional review the interpretative skills such as understanding of the fundamental principles of a constitutional democracy were halfbaked. With the introduction of the general principles of law the SC paved the way for faster integration of those doctrines and structures into Estonian legal system that have been developed by states with advanced legal culture. Essentially it was a comparative argument. With the help of the catalyst of the general principles of law the crcsc stimulated the development of particularly the following principles in Estonian constitutional review: legality,35 prohibition on retroactivity,36 legitimate expectations37 and the even broader legal certainty.38 The Administrative Law Chamber of the SC also elaborated in its early judgments on general principles of administrative law, especially on proportionality,39 legitimate expectations40 and the principle of equal treatment.41 According to the model from 1994, the Administrative Law Chamber derived those principles also directly from the Constitution. Although not explicitly connected to the general principles of law by the crcsc, the principle of proportionality may also be considered to be a general principle of law deriving from legal systems of constitutional democracies with highly developed legal culture. The crcsc introduced it in 1997, without connecting it with any constitutional provision, holding a restriction of freedom of movement for justifiable “if it is proportional with the desired goal and it is impossible to achieve the desired goal by other means”.42 It therefore was first introduced essentially as a general principle of law. In 1998 the SC 34 35

36 37 38 39 40 41 42

CRCSCj 17.03.1999, 3-4-1-2-99, No. ii; 02.12.2004, 3-4-1-20-04, No. 11. CRCSCj 12.01.1994, III-4/1-1/94: „According to the principle of legality, which is a generally recognised principle of (international) law and is established in §3 of the Constitution of the Republic of Estonia, fundamental rights and freedoms may be restricted solely on the basis of law.“ CRCSCj 30.09.1994, III-4/A-5/94. CRCSCj 30.09.1994, III-4/A-5/94; 30.09.1998, 3-4-1-6-98, No. ii. CRCSCj 30.09.1998, 3-4-1-6-98, No. ii. ALCSCr 13.04.1998, 3-3-1-14-98, No. 3; ALCSCj 17.06.2002, 3-3-1-32-02, No. 21; 26.11.2002, 3-31-64-02, No. 10. ALCSCj 27.03.2002, 3-3-1-17-02, No. 18. ALCSCr 24.03.1997, 3-3-1-5-97, No. 4. CRCSCj 06.10.1997, 3-4-1-3-97, No. i.

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r­ eformulated the core of the principle of proportionality deducing it from the rule of law: “Pursuant to the principle of proportionality, valid in a state based on the rule of law, the measures taken must be proportional to the objectives to be achieved”43 and delivered the following justification: “It is a principle of constitutional jurisdiction that when assessing the conflicting rights or competencies a solution has to be found that does not damage constitutional stability, that would restrict rights as little as possible, and would maintain the constitutional nature of law, and guarantee a justified and constitutional exercise of rights.”44 The next milestone was judgment of the crcsc from 2000, where the SC for the first time clearly applied the scheme of infringement and limits as well as all three levels of the principle of proportionality and stated: “Restrictions must not prejudice legally protected interests or rights more than is justifiable by the legitimate aim of the provision. The means must be proportional to the desired aim […]. The legislators, as well as those who apply law, must take the proportionality principle into consideration.”45 In this judgment the SC also connected for the first time the principle of proportionality with §11 of the Constitution.46 From 2002 on the SC has applied the fully developed three level principle of proportionality: The principle of proportionality arises from the second sentence of §11 of the Constitution, pursuant to which the restrictions on rights and freedoms must be necessary in a democratic society. The compliance with the principle of proportionality is reviewed by the courts on three consecutive levels – first the suitability of a measure, then the necessity of the measure and, if necessary, also the proportionality of the measure in the narrower sense, i.e. the reasonableness thereof. If a measure is manifestly unsuitable, it is needless to review the necessity and reasonableness of the measure. A measure that fosters the achievement of a goal is suitable. For the purposes of suitability a measure, which in no way fosters the achievement of a goal, is undisputedly disproportional. The requirement of suitability is meant to protect a person against unnecessary interference of public power. A measure is necessary if it is not possible to achieve the goal by some other measure which is less burdening on a person but is at least as effective as the former measure. In order 43 44 45 46

CRCSCj 30.09.1998, 3-4-1-6-98, No. iii. CRCSCj 14.04.1998, 3-4-1-3-98, No. iv. CRCSCj 28.04.2000, 3-4-1-6-00, No. 13. “Rights and freedoms may only be circumscribed in accordance with the Constitution. Such circumscription must be necessary in a democratic society and may not distort the nature of the rights and freedoms circumscribed.”

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to determine the reasonableness of a measure the extent and intensity of the interference with a fundamental right on the one hand and the importance of the aim on the other hand have to be weighed. The more intensive the infringement of a fundamental right the weightier the reasons justifying it have to be.47 The use of general principles of law in reasons of early SC judgments represents a willingness to integrate the Estonian legal system that was for long time locked behind the iron curtain to the (continental) European legal culture and to open it up to human rights based values and to speed up the transformation of the legal system. The SC has essentially succeeded in reaching this aim. Furthermore, the SC has deduced from “general principles of law of a democratic rule of law state” the right to self-regulation, i.e. “that the branches of state power and constitutional institutions must have autonomy in the exercise of the competencies given to them by the Constitution”.48 This is essentially a concretization of the checks and balances principle. Later on the SC added the autonomy of local governments as “a general constitutional principle”.49 The autonomy is set out as the principle of local self-government in xiv Chapter of the Constitution and it is structurally similar to the autonomy of universities and research institutions (§38(2)) and the partial autonomy of the Bank of Estonia (§111 and §112) – all three are guarantees of lower level public law legal persons to decide some issues on its own responsibility. These two principles differ from the principles above because they belong rather to the law relating to the organisation of the state and they do not concern the relationship between the state and individuals. However, they have become important principles of Estonian constitutional law as well. 2.2 International Law §123 of the Constitution provides for: “The Republic of Estonia may not enter into international treaties which are in conflict with the Constitution. When laws or other legislation of Estonia are in conflict with an international treaty ratified by the Riigikogu,50 provisions of the international treaty apply.” This 47

48 49 50

Formulation from CRCSCj 17.07.2009, 3-4-1-6-09, No. 21 and 15.12.2009, 3-4-1-25-09, No. 24. Beginning with CRCSCj 06.03.2002, 3-4-1-1-02, No. 15; cf. CRCSCj 12.06.2002, 3-4-1-6-02, No. 12; 30.04.2004, 3-4-1-3-04, No. 31; SCebj 17.03.2003, 3-1-3-10-02, No. 30; 17.06.2004, 3-2-1-14303, No. 20 ff.; 03.01.2008, 3-3-1-101-06, No. 27; 07.12.2009, 3-3-1-5-09, No. 37; 21.01.2014, 3-4-117-13, No. 32 ff. CRCSCj 14.04.1998, 3-4-1-3-98, No. iv. SCebj 19.04.2005, 3-4-1-1-05, No. 24. The Estonian Parliament, see: .

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means that any international treaty has to be in conformity with the Constitution. If the SC discovers a contradiction between the Constitution and a treaty after the treaty has entered into force and the SC cannot eliminate the contradiction by interpretation, the state organ which entered into the treaty is obliged to withdraw from it or initiate its denunciation or amendment. The §123(2) introduces a primacy of applicability of treaties in relation to acts of the parliament which is similar to the primacy of the EU Law. However, §158(4) of the Code of Administrative Court Procedure51 does not provide for any competence of administrative courts to set aside a valid act of parliament if it contravenes any international treaty as it does for contradictions with the Constitution or the EU Law. Thus, although §123(2) of the Constitution introduces by wording a primacy of application of any international treaty, a contradiction of an act of parliament and an international treaty is considered by the SC as an argument for unconstitutionality of the corresponding act of parliament.52 Thus, the application of the international law in the case law of the SC is twofold. In some cases the SC confirms the interpretation indicated above and refers to the possibility of disapplication of the contradicting national norm.53 In other cases the SC does not use the international law in the sense of §123 of the Constitution but uses it instead as a comparative argument in order to interpret a constitutional provision. In this way the international law gains a double function – first, as a binding norm below the Constitution and above parliamentary law and second, as a guideline in the framework of interpretation. Hereby the SC uses references to hard54 as well as to soft law.55 In 1996 the President of the Republic initiated an abstract norm control of the Non-profit Associations Act passed by the Riigikogu but not yet promulgated and contested inter alia the conformity with the UN Convention on the 51

52 53

54 55

“When deciding a matter, the court sets aside any Act of Parliament or other legislative act if that Act of Parliament or legislative act contravenes the Constitution of the Republic of Estonia or the law of the European Union.” (). CRCSCj 10.05.1996, 3-4-1-1-96, No. ii; 21.01.2004, 3-4-1-7-03, No. 20; SCebj 14.04.2009, 3-3-159-07, No. 33 f. ALCSCj 02.10.2014, 3-3-1-47-14, No. 17: “The Chamber notes that direct application of provisions of an international treaty on the basis of §123 of the Constitution does not provide for the initiation of constitutional review proceedings in relation to the domestic norm. The court dealing with the matter has in case of identification of a contradiction pursuant to §123(2) the right to disapply the domestic norm and to rely on the provision of the international treaty.” E.g. CRCSCj 10.05.1996, 3-4-1-1-96, No. ii; 26.03.1998, 3-4-1-4-98, No. iii, iv; 21.01.2004, 3-4-17-03, No. 20. E.g. CRCSCj 01.09.2005, 3-4-1-13-05, No. 17; SCebj 14.04.2009, 3-3-1-59-07, No. 33.

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Rights of the Child. The Act provided for that only persons with active legal capacity may set up and belong to the leadership of non-profit associations. As ­according to the General Part of the Civil Code Act a person with active legal capacity is, as a rule, a person who has attained 18 years of age, the Act excluded children’s right to found associations and participate in the leadership thereof. First, the SC established that the Convention has become binding for Estonia and then subsumed: Article 15(1) of the Convention on the Rights of the Child provides for that States Parties recognise the rights of the child to freedom of association, which embraces the freedom to form associations, and freedom of peaceful assembly. According to Article 1 of the Convention a child means every human being below the age of 18 years. According to Article 3 of the Convention in all actions concerning children, whether undertaken by courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. With the accession to the Convention Estonia has recognised the rights of the child to freedom of association, and the obligation of the state authority to establish pertinent legal mechanisms in national legislation. On the basis of the aforesaid, §5 of the Non-profit Associations Act is in conflict with Article 15(1) of the Convention.56 In the resolution the SC declared the whole Non-profit Associations Act unconstitutional. It was legally possible because the Act was not valid law yet and the §123 of the Constitution was not applicable. In this way the international law argument became supportive constitutional argument in a comparative role. Another case from 1998 concerned a professional foreign seafarer who was refused to leave Estonia because he was not entered into the crew list of a ship flying Estonian flag although he had the seafarer’s discharge book provided for by the Convention No. 108 of the International Labour Organisation57 that enabled him to leave Estonia. According to the Convention No. 108 the seafarer’s discharge book was an employment document proving the identity of a professional seafarer and enabled the holder thereof to leave the country on a ship and arrive from a ship which was located abroad; also to leave and arrive on a ship to the crew list of which he or she had been entered. The A ­ dministrative 56 CRCSCj 10.05.1996, 3-4-1-1-96, No. ii. 57 Available at: .

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Court satisfied the complaint of the seafarer and initiated a concrete norm control of the corresponding government regulation that imposed the ­additional requirement of the entry into the crew list of a ship flying Estonian flag. Before the SC managed to render the judgment, the government abolished the regulation because it lacked a legal basis. However, the SC held it for necessary to examine the merits of the application. Thereby the SC found: The unequal treatment of aliens and Estonian citizens is not in conformity […] with Article 5 of Convention No. 108, pursuant to which any seafarer who holds a valid seafarer’s identity document issued by the competent authority of a territory for which this Convention is in force, shall be readmitted to that territory, irrespective of whether he or she has been or has not been entered in the crew list of a ship flying Estonian flag. Pursuant to Article 6 of the Convention each member state shall permit the entry into a territory for which this Convention is in force of a seafarer holding a valid seafarer’s identity document, when entry is requested for temporary shore leave while ship is in port. The Convention does not regulate the issues of leaving the territory of a state. This right, especially if related to going on board of one’s ship, is self-evident and proceeds from the purpose of the Convention, namely to simplify the formalities related to seafarer’s travel to or from ships. As the referred Regulation of the Government of the Republic is in conflict with Convention No. 108, the implementation of the Regulation is in conflict with §123 of the Constitution. If Estonian laws or other legislation are in conflict with international agreements ratified by the Riigikogu, then, pursuant to second indent of §123 of the Constitution, the provisions of the international agreement shall apply. […] Pursuant to Article 1 of Convention No. 108 it was decided to unify seafarers’ national identity documents, so that every seafarer could freely and without any restrictions work on a ship of a country, member to the convention, other than a ship of war, if the ship is registered in a territory for which the convention is in force. Under this principle it is unjustified and contrary to the spirit of the Convention to issue to seafarers identity documents on nationality grounds, pursuant to which an Estonian citizen can, on the basis of a seafarer’s service record book, enjoy wider rights upon arrival in Estonia and leave from Estonia than an alien who has been issued a certificate of record of service on Estonian ships.58 58

CRCSCj 26.03.1998, 3-4-1-4-98, No. iii, iv.

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The whole judgment of the SC should be considered as an obiter dictum because since the government had abolished its restricting regulation there was no constitutional need to render any review judgment anymore. Therefore, the actual message of the judgment is that international obligations should be taken seriously by the legislator and that international law may be used as a supportive tool for constitutional interpretation. The extensive quotes of the Convention No. 108 witness the eagerness of the SC to demonstrate its international and comparative law friendliness. A further example derives from one of the view landmark judgments of the crcsc. The judgment that was rendered 2004 was based on joined cases of a concrete norm control and abstract norm control initiated by the Chancellor of Justice59 and concerned a provision in the Social Welfare Act which deprived persons who were using dwellings on the bases different from those established in that provision of the possibility to get subsistence benefits. According the SC: 59

The monocratic institution of the Chancellor of Justice is an exceptional one (see: ). Heiki Loot, the current justice at the SC, was the first to propose a tripartite division of the functions of the Chancellor of Justice (protocol of the meeting of the Commission for the Legal Expertise of the Constitution from 14–15. November 1997, not yet published). The first function of the Chancellor of Justice is to exercise supervision over the constitutionality and legality of the proceedings of the legislative and executive power. To perform this function the Chancellor of Justice has four wide-reaching competences. The Chancellor of Justice has the right to speak before the Riigikogu and during the sessions of the Government (§141(2) of the Constitution), to lodge a complaint against any state organ, to submit a direction to the Riigikogu to bring forward an Act within 20 days in accordance with the Constitution (§142(1)) and also to appeal to the SC, if his request was not fulfilled (§142(2)). The second function is the ombudsman function (§139(1) and (2)). This function includes the right to receive individual complaints, and to analyse and make suggestions to improve administrative governance. His third function is that of State Prosecutor (§139(3)). The Chancellor of Justice has the right to decide whether to bring a question of removal of immunity before the Parliament. According to the Constitution, this immunity is granted to members of the Parliament (§76), the President (§85), the Ministers (§101), the Auditor General (§138), and to all the judges (§153). In addition, the Chancellor of Justice has an immunity, which can be waived in cases where the right to decide over his immunity belongs to the Riigikogu and the President has the right to propose removal. A fourth important function of the Chancellor of Justice derives not from the Constitution but from the crcpa and consists in acting as amicus curiae in most of the constitutional proceedings. This function reminds to the function of Advocate General at the Court of Justice. Finally, the Chancellor of Justice Act adds to Chancellor of Justice several further functions like e.g. the Children’s Ombudsman or the national preventive mechanism provided for in Article 3 of the Optional Protocol of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

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The Constitution does not specify when a person is needy, that is when the satisfaction of his or her primary needs is not guaranteed, and that is why, to interpret the Constitution, it is necessary to examine international agreements to which the Republic of Estonia has acceded. Article 11 of the International Covenant on Economic, Social and Cultural Rights […] recognises “the right of everyone to an adequate standard of living for himself and his family”. According to Article 13(1) of the European Social Charter (revised) […] a state must “ensure that any person who is without adequate resources and who is unable to secure such resources whether by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance […]”. The Social Charter requires that the states establish systems of social security (Article 12(1)) that guarantee benefits in certain situations (sickness, incapacity for work, maternity, unemployment, family, old age, death, widowhood, industrial accidents, occupational diseases). Social insurance systems require the contribution of people themselves into the accumulation of funds out of which the payments shall be made. The Constitution does not expressly speak of the state’s duty to create social insurance systems. The application practice of the Social Charter, in assessing the need, proceeds from the minimum means of subsistence, established by state, which means that those persons are needy whose resources do not guarantee the minimum means of subsistence. That is why the amount of assistance given to such a person must not be in manifest inconformity with the minimum means of subsistence of the state.60 Furthermore, the SC made a reference to the Charter of Fundamental Rights of the European Union.61 Finally the SC declared the provision of the Social Welfare Act for unconstitutional to the extent that expenses connected with dwelling of needy people and families who were using dwellings not referred to in the corresponding provision were not taken into account and were not compensated for upon the grant of subsistence benefits. This judgment demonstrates once again the use of international law as comparative arguments by the SC. The outstanding importance of this judgment arises mainly from the facts that the SC declared the right to receive state assistance in the case of need to a subjective constitutional right and the principles of a state based on social justice and human dignity to ­fundamental

60 61

CRCSCj 21.01.2004, 3-4-1-7-03, No. 20. See next section.

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­constitutional principles.62 Ten years later, in a judgment of 2014 the SC referred in an obiter dictum to the European Committee of Social Rights ­Conclusions 2013 according to which Estonian practice of granting social assistance to a single needy person is inadequate and not in conformity with article 13(1) of the European Social Charter.63 The further judgment from 2005 dealt with e-voting issues. In 2002 the Riigikogu passed the Local Government Council Election Act that enabled the voters holding a certificate for giving a digital signature to vote from 2005 on in local government council elections electronically on the webpage of the National Electoral Committee. In 2005, before the election, the Riigikogu amended the aforementioned election law. The President of the Republic held the amendment for unconstitutional and appealed the amendment act to the SC. In its argumentation the SC referred inter alia to a recommendation of the Council of Europe Committee of Ministers: Pursuant to Recommendation Rec(2004)11 of the Council of Europe Committee of Ministers to member states on legal, operational and technical standards of e-voting […] the principle of uniform suffrage in the context of e-voting means four requirements. Firstly, it should be guaranteed that a voter shall be prevented from inserting more than one ballot into the electronic ballot box, and that a voter shall be authorised to vote only if it has been established that his/her ballot has not yet been inserted into the ballot box (§5). Secondly, the e-voting system shall prevent any voter from casting a final vote by more than one voting channel (§6). Thirdly, every vote deposited in an electronic ballot box shall be counted, and each vote cast in the election or referendum shall be counted only once (§7). Fourthly, where electronic and non-electronic voting channels are used in the same election or referendum, there shall be a secure and reliable method to aggregate all votes and to calculate the correct result (§8). All the requirements are aimed at guaranteeing that only one vote per voter is taken into account upon electronic voting. Although the Recommendation of the Council of Europe is not a legally binding document, it summarises the understanding of the democratic states of Europe of the 62 63

CRCSCj 21.01.2004, 3-4-1-7-03, No. 16, 14. CRCSCj 05.05.2014, 3-4-1-67-13, No. 50. The European Committee of Social Rights concluded (European Committee of Social Rights. Activity Report 2013. Council of Europe, 2014, p. 84. Available at: ): “The Committee concludes that the situation in Estonia is not in conformity with Article 13§1 of the Charter on the ground that the amount of social assistance granted to a single person without resources is inadequate.”

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conformity of electronic voting with the election principles inherent to democratic states, and it is thus an appropriate tool for interpreting the Constitution.64 Finally the SC dismissed the claim of the President. However, the introduction of these comparative arguments to the reasoning conveys the notion of elegance. A further landmark judgment of the SC en banc from 2009 addressed the constitutionally necessary extent of legislative safeguards for the independence of judges. A judge under criminal investigation was suspended from the office and the Minister of Justice suspended by his decision also his salary payments. However, despite the suspension of the public service relationship the judge’s status was retained and pursuant to law he could not be employed other than in the office of judge, except for teaching or research. The judge filed an action before the administrative court against the decision of the Minister of Justice. As the case reached the SC, the Administrative Law Chamber referred the matter to the SC en banc for adjudication. The SC en banc referred inter alia to the European Charter on the Statute for Judges: Nevertheless, in Article 6.1 of the European Charter on the Statute for Judges, adopted at a multilateral meeting organised by the Council of Europe […] it is considered to be universally recognised that remuneration is one of the guarantees for the independence of judges. The referred Article establishes the following: “Judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behaviour within their jurisdiction, thereby impairing their independence and impartiality.” In regard to the referred provision the following is pointed out in the Explanatory Memorandum to the Charter: “The Charter provides that the level of the remuneration to which judges are entitled for performing their professional judicial duties must be set so as to shield them from pressures intended to influence their decisions or judicial conduct in general, impairing their independence and impartiality.” […] On the basis of the aforesaid the Supreme Court en banc holds that salary as a guarantee for the independence of judges is within the sphere of protection of §§15, 146 and 147(4) of the Constitution. Sufficient income guaranteed by the state to the judges while they hold the office of judge allows them to perform the 64

CRCSCj 01.09.2005, 3-4-1-13-05, No. 17.

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role of judge as expected and, at the same time, constitutes a guarantee to participants in proceedings that their cases are heard by an independent and impartial tribunal. The Constitution does not allow for the conclusion that the guarantees for the independence of judges are not applicable to a judge during certain periods of time while he or she holds the office of judge, e.g. during the suspension of a service relationship. Also, for the duration of suspension of a service relationship […] an income must be guaranteed to a judge in order to guarantee his or her independence as a judge after his or her authority is restored.65 As we have seen, the SC used the European Charter on the Statute for Judges as the crucial argument to interpret constitutional provisions. As a result, the SC declared the failure to pass such legislation that would allow paying a salary or other equivalent compensation to a judge whose service relationship is suspended for the duration of a criminal proceeding for unconstitutional. The SC has also made references to other treaties,66 especially numerous references the European Charter of Local Self-Government67 but the aforementioned examples shall suffice here. 2.3 Charter of Fundamental Rights of the European Union It is common knowledge that the Charter of Fundamental Rights of the European Union (Charter) was solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission but it became legally binding on the EU institutions and on national governments with the entry into force of the Treaty of Lisbon on 1 December 2009, which amended Article 6 of the Treaty on European Union.68 However, the SC referred to the Charter even before Estonia’s accession to the EU on 1 May 2004. 65 66 67

68

SCebj 14.04.2009, 3-3-1-59-07, No. 33 f. E.g. SCebj 17.03.2003, 3-1-3-10-02, No. 21: „The Constitution was worded on the model of Article 15(1) of the UN International Covenant on Civil and Political Rights, the wording of which coincides with that of §23 of the Constitution.“ CRCSCj 05.02.1998, 3-4-1-1-98, No. iv; 09.02.2000, 3-4-1-2-00, No. 17; 15.07.2002, 3-4-1-7-02, No. 20; 16.01.2007, 3-4-1-9-06, No. 29; 19.03.2009, 3-4-1-17-08, No. 38, 50 f.; 09.06.2009, 3-4-12-09, No. 41 f.; 26.06.2009, 3-4-1-4-09, No. 16; 30.09.2009, 3-4-1-9-09, No. 27; 15.10.2013, 3-4-147-13, No. 21; 20.12.2016, 3-4-1-3-16, No. 89, 136; SCebj 19.04.2005, 3-4-1-1-05, No. 17; 16.03.2010, 3-4-1-8-09, No. 50 f., 55, 57 f., 65, 68, 71, 83. 2016/C 202/02, OJ C 202, 07.06.2016, p. 389–405. Earlier versions of the Charter: 2000/C 364/01, OJ C 364, 18.12.2000, p. 1–22; 2007/C 303/01, OJ C 303, 14.12.2007, p. 1–16; 2010/C 83/02, OJ C 83, 30.03.2010, p. 389–403; 2012/C 326/02, OJ C 326, 26.10.2012, p. 391–407.

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Already in February 2003 the SC consulted first time the Charter.69 The case concerned the constitutionality of a government regulation that provided for in case of a satisfaction of any protest by a public tender the obligation to organise a new auction. The plaintiff of the underlying administrative proceedings was a company that gave the highest bid but had thereby breached some minor formalities. The plaintiff was therefore first excluded from the tender but after the satisfaction of his protest his bid was approved again. However, the plaintiff did not win the auction in spite of the highest bid because the government regulation did not allow simply awarding the highest bidder but prescribed the announcement of a new auction. The SC made in the reasons first a reference to the general principles of law and repeated essentially what it had said in 1994.70 Then the SC introduced general principles of administrative law: Principles of administrative law constitute a generalisation of rules valid in different branches of administrative law, which are expressed in different sources of law in different countries (e.g. in codified codes of administrative procedure, specific laws, judicial practice). In the European legal space the following principles are recognised as principles of administrative law: legal certainty, legitimate expectation, proportionality, non-discrimination, right to be heard in administrative procedure, right to procedure within a reasonable time, effectiveness and efficiency.71 After that the SC referred to Article 41 of the Charter: Article 41 of one of the most recent international documents on fundamental rights – the European Union Charter of Fundamental Rights – directly refers to the right to good administration. The Charter puts an obligation on the European Union institutions and bodies to handle the affairs of persons impartially, fairly and within reasonable time. Pursuant to the Charter the right to good administration includes, inter alia, the right to have access to a person’s file, right to be heard, the obligation of the administration to give reasons for its decisions and the right to compensation for damage caused by an administrative agency.72

69 70 71 72

CRCSCj 17.02.2003, 3-4-1-1-03. CRCSCj 30.09.1994, III-4/A-5/94. CRCSCj 17.02.2003, 3-4-1-1-03, No. 14. CRCSCj 17.02.2003, 3-4-1-1-03, No. 15. Cf. ALCSCj 19.12.2007, 3-3-1-80-06, No. 20.

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The SC justified the reliance on the Charter essentially in two steps. First, the SC argued that constitutions of some European countries include some of the relevant principles. In step two the SC jumped to the Charter, presuming that the Charter is a certain concentrate of these principles. The Charter was not yet legally binding and Estonia was not yet a member state of the EU, but the SC decided to integrate the Charter as a comparative law argument into its argumentation. This witnesses obviously the EU friendliness of the SC. Furthermore, the actual trick of this argumentation was to make use of the constitutional rights development clause of §10 of the Constitution in order to introduce a new constitutional right – the right to good administration: Pursuant to §10 of the Constitution the principles of a state based on democracy and rule of law are valid in Estonia. […] The analysis of the principles recognised in the European legal space leads to the conclusion that §14 of the Constitution gives rise to a person’s right to good administration, which is one of the fundamental rights.73 It was a simple case because the government had obviously misused its discretion allowed by law. But, instead of simply examining the use of discretion, the SC chose to bring in many different principles. Thus, this judgment witnesses above the EU friendliness of the SC also the open mindedness and creativity of the SC. The SC referred before the accession to the EU in two further judgments to the Charter. In the landmark judgment from March 2003 that was initiated by the individual constitutional complaint the SC en banc referred to the Charter deducing that it “establishes a principle that if, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable”.74 In the above mentioned subsistence minimum case from January 2004 the SC referred inter alia to clauses in Charter that recognise the right to social and housing assistance and that ensure a decent existence for all those who lack sufficient resources as additional arguments to the European Social Charter (revised).75 After Estonia’s accession to the EU in Mai 2004 the Charter continued to be a source for supportive arguments until it became fully binding. For instance in 2005 the SC referred, as an example, to Article 17 of the Charter to s­ upport

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CRCSCj 17.02.2003, 3-4-1-1-03, No.14, 16. SCebj 17.03.2003, 3-1-3-10-02, No. 21 (see a more detailed presentation of the case below). CRCSCj 21.01.2004, 3-4-1-7-03, No. 20.

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the existence of the constitutional right to bequeath one’s property.76 In 2006 the Administrative Law Chamber of the SC made a reference to Article 1 of the Charter to support its argument that human dignity is inviolable, a basis for all constitutional rights of a person and the goal of protection of constitutional rights and freedoms.77 After the Charter became binding, the SC used it a couple of times clearly outside of its field of application.78 All in this section mentioned references to the Charter can be considered as comparative law references. 2.4 Constitutions of Other Countries In the context of its general principles case law the SC en banc pointed 2003 to different Constitutions of EU member states as sources of general principles of law: The principles of good administration have been inserted in black and white into several constitutions. For example, pursuant to §21(2) of the Constitution of Finland provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as other guarantees of a fair trial and good governance shall be laid down by an Act. §31(2) of the Spanish Constitution requires efficient and economical use of public resources.79 Later in this judgment the SC added that “the Basic Law of the Federal Republic of Germany does not establish a principle that a law providing for a lesser punishment shall have retroactive force.”80 These have remained the clearest comparative references to constitutional provisions of other countries. In 2009 the SC held it for necessary to significantly restrict the possibility to use comparative argumentation in the reasoning of the judgments: As regards the statement of the Tallinn City Council that the request should be admissible also arising from the source of §7 of the crcpa in the Constitution of the Federal Republic of Germany and the practice of the German Federal Constitutional Court which has been developed 76 77 78 79 80

SCebj 22.02.2005, 3-2-1-73-04, No. 17. ALCSCj 28.03.2006, 3-3-1-14-06, No. 11. ALCSCj 10.12.2010, 3-3-1-72-10, No. 14; ALCSCr 21.06.2010, 3-3-1-85-09, No. 19. CRCSCj 17.02.2003, 3-4-1-1-03, No. 14. SCebj 17.03.2003, 3-1-3-10-02, No. 24 (see next section of this article).

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on the basis of the Constitution of the Federal Republic of Germany, the Chamber notes that the Supreme Court of the Republic of Estonia can only make its judgments on the basis of the Constitution of the Republic of Estonia. The comparative law arguments may have weight upon determining the content of the provisions of the Constitution of the Republic of Estonia but they cannot be used to constitute binding instructions for Estonian courts.81 However, the statement of the SC is at least misleading. The case was initiated by Tallinn City Council as a municipal constitutional complaint against some provisions of Local Government Council Election Act. The main issue of the case was the admissibility of the complaint. In the statement of claim the Tallinn City Council supported his interpretation of admissibility with some comparative arguments from German system.82 The Chancellor of Justice acting as amicus curiae expressed his scepticism towards this interpretation.83 The statement of the SC went even beyond the scepticism of the Chancellor of Justice and could be misinterpreted as a rejection of comparative law arguments. This is detrimental. 2.5 Other Comparative Law Arguments The comparative law arguments below the constitutional level are relatively rare. However, there are a few good examples. They occur in judgments of the SC en banc which require in vast majority of cases also an interpretation of statutory law. The best known example is the already mentioned landmark judgment from 2003. In this case the complainant whose name was Brusilov was convicted in 1997 for theft of other person’s property on a large scale and punished for that by six years’ imprisonment. On September 1 2002 a new Penal Code entered into force and replaced the old Criminal Code that had been a modification of the Soviet Criminal Code. The new Penal Code was prepared taking into account constitutional rights and fundamental principles of the Constitution and it – generally speaking – raised the sanctions for crimes against the person and reduced the sanctions for crimes against property. According to the new Penal Code, the maximum rate of punishment for the complainant’s crime would have been five years’ imprisonment. After entering into force of

81 82 83

CRCSCr 22.12.2009, 3-4-1-16-09, No. 42. CRCSCr 22.12.2009, 3-4-1-16-09, No. 11. CRCSCr 22.12.2009, 3-4-1-16-09, No. 23.

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the new Penal Code the complainant wished to get released from further serving the sentence but the Penal Code Implementation Act did not provide for any legal basis for his release. The main substantial constitutional issue of the case was whether §23(2)2 of the Constitution84 had to be extended to persons who were serving their sentences pursuant to judgments which had entered into force or not. In this judgment the SC made also long references to penal codes of other countries: Some countries have further specified or established the principle of retroactive force of a lesser punishment in their Penal Codes. For example, the 1997 Criminal Code of Poland establishes that if for an offence, for which a new law establishes a maximum punishment which is lower than the sentence already passed, a judgment has already been rendered, then length of the sentence shall be decreased up to the maximum punishment established by the new law (§4(2)). The 1995 Penal Code of Spain stipulates that a law which alleviates the situation of a person shall have retroactive force, even if a sentence has been pronounced and enforced (§282)). The same principle has been adopted in the 1999 Criminal Code of Latvia (§5(2)) and 1996 Criminal Code of the Russian Federation (§10(5)). These examples allow to draw a conclusion that the Penal Codes of several European countries extend the effect of criminal laws alleviating the situation of a person also to the time of serving the sentence. […] The discussions during the legislative proceeding of the Penal Code Implementation Act in the Riigikogu shed light on the formation of the will of the legislator. […] At the second reading of the draft the chairman of the Legal Affairs Committee gave the following explanation to the Riigikogu: “[…] We also studied how these issues have been solved abroad. We found that in many respects the penal law of Germany has served as a model for drafting our Penal Code. The commentary of the German Penal Code concerning penal law states clearly that the principle of retroactive force of a law applying lesser punishment shall not mean the obligation to render a new judgment retroactively. […] Thus, we can assert that neither international law nor our Constitution give rise to a general obligation to review punishments imposed by court judgments that have entered into force.” […] The Supreme Court en banc is of the opinion that although German penal law has essentially influenced the wording of our Penal Code, it cannot be used to interpret the second sentence of §23(2) 84

“If, subsequent to the commission of the offence, the law makes provision for a lighter penalty, the lighter penalty applies.”

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of the Constitution. Firstly, the Basic Law of the Federal Republic of Germany does not establish a principle that a law providing for a lesser punishment shall have retroactive force. Secondly, the German Penal Code establishes clearly that if the statute as it appeared at the completion of the crime is amended prior to the judgment in the case, the most lenient statute shall be applied (§2(3)).85 As a result, the SC declared the Penal Code Implementation Act to be in conflict with the §23(2)2 of the Constitution in conjunction with the principle of equality to the extent that the Act did not provide for a possibility to mitigate the punishment of a person serving imprisonment, imposed under the Criminal Code, up to the maximum rate of imprisonment established by a corresponding section of the Special Part of Penal Code. In this case the SC combined genuine comparative arguments with the will of the legislator who had also used comparative arguments. The comparative arguments played a crucial role to substantiate the wide scope of protection of the §23(2)2 of the Constitution which influenced the result of weighing the competing constitutional principles. The second example concerns too high court fees. Due to the outbreak of the economic crisis the legislator raised significantly and in several steps all court fees. From 2008 on the minimum court fee for general courts was rapidly raised from 15.98 to 75 Euro and the maximum court fee from 47 933.74 to 131 955.82 Euro for every level of jurisdiction. The SC en banc argued in 2011: Concerning the Estonian state fee rates it is important to note that at least in case of financial claims, legal costs, including fees, in Estonia are proportionally the highest compared to other European Union Member States, forming ca. 12.3% of the claim compared to, for example, France’s 2.7%, Finland’s 3.06%, Lithuania’s 6% or Latvia’s 6.4% of the claim (The World Bank’s report Doing Business 2011, based on countries’ reports; http://www.doingbusiness.org/). The legislator has also not pointed out a reasonable and significant justification for establishing extraordinary state fees on the scale of Europe.86 In the underlying case the plaintiff was originally obliged to pay 60 396.51 Euro court fee but the SC found that this was too high. Since the SC dealt with every single table entry of the court fee table separately, there are more than 50 85 86

SCebj 17.03.2003, 3-1-3-10-02, No. 22 ff. SCebj 12.04.2011, 3-2-1-62-10, No. 48.3; cf. SCebj 22.11.2011, 3-3-1-33-11, p. 29.3.

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judgments of the SC dealing with the constitutionality of the court fees. The main result of this painful process was the reduction of higher court fees, e.g. the maximum court fee is since July 2012 fixed to 10 500 Euro. By reaching this result some role was played by the cited comparative argument. The third example concerns the question of constitutionality of a prohibition for persons in custody to receive long-term visits from wife or husband in contrast to convicted prisoners who were allowed to receive long-term visits. The crcsc used comparative law arguments while assessing the proportionality of the prohibition: To the knowledge of the Chamber, similarly to Estonia, Croatia, Lithuania and the Czech Republic, the Grand Duchy of Luxembourg, several cantons in the Swiss Confederation and Georgia permit persons in custody to receive only short-term visits, duration of which is almost the same as in Estonia (about one hour in a week on the average). The Constitutional Court of Latvia also found, based mostly on the opinion of the European Court of Human Rights and, among other, also directly on the regulatory framework in Estonia and Lithuania, that the Constitution of Latvia does not require enabling persons in custody to receive long-term visits (judgment of 23 April 2009 no. 2008-42-01). Unlike the aforementioned, for example, Canada, the Kingdom of Norway and the Federal Republic of Germany have provided persons in custody with the right to long-term visits.87 The SC weighed the aims of preventing evasion from criminal proceedings and continuous commission of criminal offences, including destruction, alteration and falsification of evidence and influencing of witnesses, against the interests of family life and found no violation of the latter. The comparative argument was in this case not decisive but rather illustrative. 3

Concluding Remarks

Estonian legal system has since beginning of the nineties performed a turn from a post-communist country to a modern Western European type of constitutional democracy. I have called this development elsewhere a constitutional

87

CRCSCj 04.04.2011, 3-4-1-9-10, No. 56.

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tiger leap.88 Comparative national and international law arguments have played a significant role in this development, mainly as a catalyst to help to boost the Estonian constitutional law doctrine to a contemporary one. The general principles of law doctrine, especially the principle of proportionality have similarities with many other developed European legal systems, e.g. to Germany. The links to other legal systems, especially links to the Constitutions of other European states, witness the openness of the system. However, the sceptical statement of the SC from 2009 towards the German Constitution89 remains a rather disputable step into other direction. Hopefully the SC finds a way to clarify it. Gábor Halmai has divided constitutional jurisdictions into three categories: those who do not use foreign law, those who do use foreign law implicitly, i.e. without any references to foreign constitutional review judgments, and those who do so explicitly.90 As we have seen, the SC uses foreign case law but mostly does not do so explicitly. Only very few references to constitutional review judgments of foreign constitutional courts exist.91 It belongs therefore somewhere in between the second and the third category. The use of references to foreign constitutional review judgments of the SC stands still in sharp contrast e.g. to the South African Constitutional Court.92 There is some room for improvement in this area. Michael Rosenfeld and András Sajó have drawn the link of the comparative constitutional law to the enlightenment and the early developments in the United States and France.93 In these times not only the confirmation of the 88 89 90 91

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M. Ernits, ‘20 Jahre Menschenwürde, Demokratie, Rechtsstaat, Sozialstaat’, in S. Hülshörster, D. Mirow (eds.), Deutsche Beratung bei Rechts- und Justizreformen im Ausland, Berlin 2012, p. 123. CRCSCr 22.12.2009, 3-4-1-16-09, No. 42 (see above). G. Halmai, ‘The Use of Foreign Law in Constitutional Interpretation’, in M. Rosenfeld, A. Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford 2012, p. 1329. Reference to the judgment of 23 April 2009 (2008-42-01) of the Constitutional Court of Latvia in CRCSCj 04.04.2011, 3-4-1-9-10, No. 56. Furthermore, there have been some references to judgments of the German Constitutional Court in dissenting opinions: reference to the judgment of 4 May 2011 (2 BvR 2365/09) in the dissenting opinion of the judges Villu Kõve, Peeter Jerofejev and Henn Jõks to the SCebj 21.06.2011, 3-4-1-16-10, No. 5; reference to the judgment of 19 June 2012 (2 BvE 4/11) in the dissenting opinion of the justices Henn Jõks, Ott Järvesaar, Eerik Kergandberg, Lea Kivi, Ants Kull and Lea Laarmaa to the SCebj 12.07.2012, 3-4-1-6-12, No. 3. Cf. J. Fedtke, Die Rezeption von Verfassungsrecht. Südafrika 1993-1996, Baden-Baden 2000 to the beginnings and N. Petersen, Proportionality and Judicial Activism. Fundamental Rights Adjudication in Canada, Germany and South Africa, Cambridge et al. 2017 to some more recent developments. M. Rosenfeld, A. Sajó, ‘Introduction’, in M. Rosenfeld, A. Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford 2012, p. 3 ff.

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new ideas was a reason for comparative arguments but also the immanent universality and open-mindedness of the great doctrines of human rights, democracy and rule of law. The fall of the iron curtain in the end of the 20th century reminds a little to upheaval of enlightenment and could perhaps be called the small enlightenment – the great ideas were not invented but (re)implemented in a large area of Central and Eastern Europe. The Estonian Constitution is a child of these times. And therefore the comparison is immanent to Estonian constitutional doctrine. Acknowledgements The author is grateful to Ms. Andra Laurand for editorial help, and for suggestions and advice on matters of English style.

Part 4 Eastern Europe

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The Russian Constitutional Court and the Judicial Use of Comparative Law: A Problematic Relationship Mauro Mazza 1

Introduction: Preliminary Remarks on the Judicial Control of Constitutionality in Russian Legal History

The creation of the Russian Constitutional Court was one of the great innovations of the post-Soviet order.1 In the (classical) socialist legal systems, in fact, the principle of the unity of state power is accepted, not that of the separation of powers, with the result that the control of constitutionality is political and not jurisdictional.2 The legal comparison both synchronic and diachronic, or spatial and temporal, confirms this point, as evidenced by the fact that the judicial control of the constitutionality of laws is so far not envisaged in the People’s Republic of China.3 It is true that the law on the Constitutional Court of the Soviet Socialist Republic of Russia of 1991 had set up for the first time an organ of constitutional justice;4 however, there certainly appears not irrelevant the fact that 1 Also recently, on 8 December 2014, the President of the Federation of Russia, Putin, during a meeting with the judges of the Constitutional Court, has highlighted the central role of the latter in the creation of the so-called living Constitution. Cf. Caterina Filippini, ‘Cronache costituzionali dall’estero (dicembre 2014–febbraio 2015). Federazione di Russia’, Quaderni costituzionali, 2015, 554–557, at 555. 2 On the control of the constitutionality of laws in the socialist states see, most recently, L­ ucio Pegoraro, Giustizia costituzionale comparata. Dai modelli ai sistemi, Giappichelli, Torino 2015, especially 42–44; Ćarna Pištan, Tra democrazia e autoritarismo. Esperienze di giustizia costituzionale nell’Europa centro-orientale e nell’area post-sovietica, Presentation by Giuseppe de Vergottini, Giuffrè, Milano 2015, 87–145, and before Arianna Vedaschi, ‘La giustizia costituzionale’, in Paolo Carrozza, Alfonso Di Giovine and Giuseppe Franco Ferrari (eds.), Diritto costituzionale comparato, vol. ii, 2nd edn, Laterza, Roma-Bari 2014, 1087, at 1105–1107. 3 See, in Italy, Mauro Mazza, Lineamenti di diritto costituzionale cinese, Giuffrè, Milano 2006, at 137–156; Angelo Rinella, Cina, Il Mulino, Bologna 2006, at 129–140. 4 See, for example, the historical reconstruction of Nikolaji T. Wedernikov, ‘Die Entwicklung des Verfassungsgerichts in Russland: Geschichte und Gegenwart’, in Wladimir I. Fadeev and Carola Schulze (eds.), Verfassungsgerichtsbarkeit in der Russischen Föderation und in der Bundesrepublik Deutschland. Rundtischgespräch an der Moskauer Staatlichen Juristischen Kutafin-Universität am 9. und 10. Oktober 2012, Forewords by Carola Schulze and Wladimir I. Fadeev, Universitätsverlag Potsdam, Potsdam 2013, 1; Natașa Danelciuc-Colodrovschi,

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the Court was asked to control the constitutionality of normative legal acts with reference to the ‘old’ Soviet Constitution of 1977, which had suffered over four hundred amendments, coming for this way so deeply modified and ‘distraught’ as regards its original plan that its updated and sufficiently reliable version was not in Russia even easy to find. In addition, the same powers of the Constitutional Court have been extended by the Constitution of 1993, including in particular the power to adopt opinions about the interpretation of constitutional provisions, as determined by the fifth paragraph of Art. 125 of the Constitution of 1993.5 Although only a few institutional subjects can apply ‘L’apparition et l’évolution du concept de contrôle juridictionnel des lois dans l’espace de l’ex-urss comme forme de garantie des droits fondamentaux’, in Problèmes actuels dans le domaine de la protection des droits de l’homme, Actes du Colloque international dédié à la Journée internationale des droits de l’homme, éd. Pontos, Chișinău 2008, 252; Nikolay V. Vitruk, Konstitutucionnoe pravosudie v. Rossii (1991–2001): očerki teorii i praktiki [La justice constitutionnelle en Russie (1991–2001): essai de théorie et de pratique], Gorodec-Izdat, Moscou 2001 (in Russian). 5 For comments to the current Russian Constitution, see: Gordon Smith and Robert Sharlet (eds.), Russia and its Constitution. Promise and Political Reality, Nijhoff, Leiden-Boston 2008 (Law in Eastern Europe, no. 58); Jane Henderson, The Constitution of the Russia Federation. A Contextual Analysis, Hart, Oxford 2011; Irina Bogdanovskaia and Tatiana Vassilieva, Constitutional Law in Russia, Kluwer Law International, Alphen aan den Rijn 2012; Elena A. Kremyanskaya, Tamara O. Kuznetsova and Inna A. Rakitskaya, Russian Constitutional Law, Foreword by Vladimir Pligin, Cambridge Scholars Publishing, Newcastle upon Tyne 2014; Sergey Shakhray, ‘Basic Law as an Instrument for Legal and Socio-Political Transformations (Towards the 20th Anniversary of the Constitution of the Russian Federation)’, Russian Law Journal, Vol. 2, No. 1, 2014, 29–40; Peter B. Maggs, Olga Schwartz and William Burnham, Law and Legal System of the Russian Federation, 6th edn, Juris, Huntington (NY) 2015; Jean.-Pierre Massias, Droit constitutionnel des États d’Europe de l’Est, puf, Paris 1999, 257–402 (Le Droit constitutionnell de la Russie); Hans Janus (ed.), Russland. Verfassung, Recht und Realität. Festschrift für Prof. Dr. Luchterhandt aus Anlass seines 70. Geburtstags, Forewords by Tilamnn Repgen and Andreas Steininger, Berliner Wissenschafts-Verlag, Berlin 2014; Manuel Becerra Ramírez, Constitución rusa de 1993, unam, México 1995 (Cuadernos Constitucionales México-Centroamérica, no. 15); Mario Ganino, Angela Di Gregorio and Caterina Filippini (eds.), La Costituzione della Russia a dieci anni dalla sua adozione, Giuffrè, Milano 2005; Mario Ganino, Russia, Il Mulino, Bologna 2010; Mario Ganino, ‘La Costituzione della Russia (1993)’, in M. Ganino (ed.), Codice della Costituzioni, Vol. iii, Cedam, Padova 2013, 441; Suren A. Avak’ian, Konstitutsia Rossii. Priroda, Evolutsia, Sovremennost [Russian Constitution. Nature, Evolution, Modernity], Rossiiskii juridicheskii izdatel’skii dom, Moskva 1997 (in Russian); Veniamin Evgen′evič Čirkin, Konstitucionnoe pravo Rossii [Constitutional Law of Russia], Jurist, Moskva 2004 (in Russian); Suren A. Avak’ian, Konstitucionnoe pravo Rossii [Constitutional Law of Russia], vol. i–ii, 4th edn, Norma, Moskva 2010 (in Russian), on the Constitution of the Socialist Federative Soviet Republic of Russia of 1978, and with examination of many constitutional projects; Vladimir V. Lazarev (ed.), Kommentaryi k Konstitutsii Rossiskoi Federatsii [Commentary to the Constitution of the Russian Federation], 2nd edn, Novaya pravovya kultura, Moskva 2009 (in Russian). On proposals for reform of the Russian Federal Constitution, see Andrei Medushevskii,

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for this interpretation, namely the Federal President, the Federation Council, the State Duma, the Federal Government and the Legislative of the subjects (territorial authorities)6 of the Federation, it is still an important element for the viva vox constitutionis recognition, so to be free from the strict adherence to the Constitution that had instead characterized the jurisprudence of the Constitutional Court created in 1991. We have to consider, also, that the Constitutional Court of 1991 exercised the constitutional jurisdiction in the presence of a Constitutional that was established on the (Soviet) principle of the unitary state power,7 although obviously recognizing the functional articulation of state bodies, whereas the Constitutional Court created after the approval of the 1993 Constitution must fulfill its institutional functions in a constitutional context which it is based on the principle of separation of powers.8 There was, however, the early precedent set by Art. 43, letter c), of the Soviet Constitution of 1924, which attributed to the Supreme Court of the ussr (Verhovnyi Sud sssr) the power to adopt conclusions on the constitutionality of normative/legal acts issued by the organs of the Union Republics.9 However,

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‘Problems of Modernizing the Constitutional Order. Is It Necessary to Revise Russia’s Basic Law?’, Russian Politics and Law, Vol. 52, No. 2, 2014, 44–59, where also the results of researches conducted at the Institute of Law and Public Policy of Moscow; Angela Di Gregorio, ‘Costituzione e costituzionalismo a vent’anni dall’approvazione della Costituzione della Russia’, on the website dipeo (Diritto pubblico dei Paesi dell’Europa Centro-Orientale), available at www. dipeo.unimi.it (doc. dated December 1, 2013), and here we can find, in particular, the opinion expressed by the director of the chair of public law and municipal law at the Faculty of Law of the University Lomonosov in Moscow, professor Suren Adibekovich Avak’ian (favorable to introduce significant amendments to the Constitution). See Caterina Filippini, Dall’Impero russo alla Federazione di Russia. Elementi di continuità e di rottura nell’evoluzione dei rapporti centro-periferia, Giuffrè, Milano 2004; Raphaëlle Lirou, La Russie entre fédération et empire. Contribution à la définition constitutionnelle de l’État russe, Foreword by Stéphane Pierré-Caps, lgdj, Paris 2009. See above, in this paragraph (in the text accompanying note 2). According to the model that is characteristic of the Western legal tradition (but certainly not without problems! Cf, e multis, William A. Clark, ‘Boxing Russia Executive–Legislative Powers and the Categorization of Russia’s Regime Type’, Demokratizatsiya: The Journal of Post-Soviet Democratization, Vol. 19, No. 1, 2011, 5–22. The text of Art. 43 was the following: “In order to maintain revolutionary legality within the territory of the u.s.s.r., a Supreme Court under the jurisdiction of the c.e.c. of the u.s.s.r. is established, competent: a) to give the Supreme Courts of the member Republics the authentic interpretations on questions of federal legislation; b) to examine, on the request of the Prosecutor of the Supreme Court of the u.s.s.r., the decrees, decisions, and verdicts of the Supreme Courts of the member Republics, with the view of discovering any infraction of the federal laws, or harming the interests of other Republics, and if such be discovered to bring them before the c.e.c. of the u.s.s.r.; c) to render opinions on the request of the c.e.c. of the u.s.s.r. as to the constitutionality of laws passed by the member Republics; d) to settle legal

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this constitutional review was, first, optional, since the Supreme Court adopted the conclusions only after a request from the Presidium of the Central Executive Committee of the ussr (i.e. the supreme legislative, executive and administrative body during the interval between the two annual sessions of the Central Executive Committee – in full: All-Russian Central Executive Committee, Vserossiysky Centralny Ispolniteli Komitet -, according to the provisions in Art. 29 of the Federal Constitution of 1924),10 which was in any case not obliged to request an opinion to the Supreme Court; second, the conclusions of the Supreme Court had character not mandatory but only consultative, because they could be rejected by the Central Executive Committee; thirdly, there was a material restriction, since only the decisions of the Union Republics were subject to constitutional control. This system of constitutional supervision was suppressed in 1933, with the simultaneous assignment to the (reorganized) Prokuratura of the ussr (Prokuratura sssr, i.e., the federal public prosecutor’s office)11 of high surveillance task on the exact execution of the laws throughout the national territory, and finally repealed by the Soviet Constitution of 1936.12

disputes between the member Republics; e) to examine the accusations brought before it of high officials against whom charges have been made relative to their performance of duties”. 10 The Central Executive Committee was elected by the Congress of Soviets (in full: All-­ Russian Congress of Soviets, Vserossiyskiy s’yezd Sovetov) of the Soviet Union. See Vladimir Il’ič Ul’janov Lenin, ‘First All-Russia Congress of Soviets of Workers and Soldiers’ Deputies, June 3–24 (June 6–July 7), 1917’, in Vladimir Il’ič Ul’janov Lenin, Collected Works, Vol. 25, 4th English edn, Progress, Moscow 1974, 15–42. 11 See, si vis, Mauro Mazza, Funzioni e poteri processuali della Prokuratura nel sistema sovietico, paper c.n.r. (Consiglio Nazionale delle Ricerche, Comitato Nazionale per le Scienze Giuridiche e Politiche), research unit of the Faculty of Law of the University of Pavia, 1988, and, more recently, Angela Di Gregorio, ‘Un ombudsman sui generis?: la protezione dei diritti dei cittadini ad opera della Prokuratura in Russia, tra permanenza del modello sovietico ed elementi di originalità’, Diritto pubblico comparato ed europeo, 2010, 1411–1438. In Italy, a (short) classic essay is that of Tomaso Napolitano, ‘Prokuratura’, Novissimo Digesto Italiano, Vol. xiv, utet, Torino 1968, 66–69. In English, cf. Glenn G. Morgan, Soviet Administrative Legality. The Role of the Attorney General’s Office, Stanford University Press, Stanford 1962; Gordon B. Smith, ‘The Soviet Procurator: Ombudsman or Monitor?’, The Soviet and Post-Soviet Review, Vol. 6, No. 1, 1979, 186–202. In Russian, see Baskov V. Korobejnikov, Prokurorskyi nadzor v. RF [The surveillance of the Prokuratura in the Federation of Russia], Moskva, Jurist, 2006. The Prokuratura was initially governed by the Russian Regulation of 28 May 1922. It was then established in 1923 at the ussr Supreme Court. In 1933, the autonomous Soviet Prokuratura was created. 12 See Jean-Pierre Massias, ‘La Cour suprême de l’URSS et le contrôle de constitutionnalité: contribution á l’étude du droit soviétique’, in Gérard Marcou and Patrice Gélard (eds.), L’État et le droit d’est en ouest. Mélanges offerts au professeur Michel Lesage, Société de legislation comparée, Paris 2006, 227.

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On the other hand, the powers of the Supreme Court in relation to the control of the constitutionality, provided for by Art. 43 of the Federal Constitution of 1924, had been clarified and extended by the Decree of 23 November 1923,13 adopted after the Federal Constitution ratified by the Second Congress of Soviets of January 31, 1924 but approved by the Second Session of the First Legislature of the Central Executive Committee on 6 July 1923.14 The mentioned Decree of 1923 on the ussr Supreme Court established, in fact, that the opinions of the supreme Court may relate to the legal acts approved not only by the organs of the Union republics, but also the decisions and orders issued by the central institutions as well as the People’s Commissariats of the ussr and the Council of People’s Commissariats. Is to be shared, in addition, the thesis for which the Supreme Court, in force of the Federal Constitution of 1924, could also issue opinions ex ante (or a priori), in addition to those ex post (or a posteriori) of the Art. 43 of the ussr Constitution, regarding the constitutionality of normative legal acts of the Union Republics.15 The ussr Supreme Court issued opinions of unconstitutionality transmitted to the Central Executive Committee; for example, 10 in 1924 (of which 7 confirmed by the Central Executive Committee) and 20 in 1925 (of which 17 confirmed). The number of legislative acts examined in terms of constitutionality by the ussr Supreme Court was conspicuous; they were, for example, 2197 in 1924 and 6272 in 1928.16 The Constitutional Court Established in 1991: Some Controversial Aspects of Its Jurisdiction. The Suspension of the Constitutional Court in 1993 Although the Constitutional Court created in 1991, therefore during the validity of the Constitution of 197717 (amended in many points), has issued only twentynine decisions, it has had to deal with quite highly controversial issues. First, it 1.1

13

The Russian text of the Decree of 1923 may be consulted in Sovetskaja prokuratura [The Soviet Prokuratura], Gosudarstvennoe Izdatel’stvo Iuridiceskom Literatury [State Publishing House of Legal Literature, in Cyrillic Государственное издательство Юридическом Литературы] Moskva 1956, 288. 14 Cf. Archivio di Diritto e Storia Costituzionali of the University of Turin, Department of Legal Sciences (www.dircost.unito.it). 15 See Massias, ‘La Cour suprême de l’URSS et le contrôle de constitutionnalité: contribution á l’étude du droit soviétique’, quoted supra note 12, at 230–231. 16 On statistical data, see Gabriele Crespi Reghizzi, ‘La Corte Suprema dell’URSS: spunti da una recente modifica al suo regolamento’, L’est. Rivista trimestrale di studi sui paesi dell’est, No 4, 1967, 198–214, especially at 202, note 7. 17 For a thorough analysis of the third federal constitution of the Soviet Union, after those of 1924 and 1936, see Paolo Biscaretti di Ruffìa and Gabriele Crespi Reghizzi, La Costituzione

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appears the power granted to that Constitutional Court to control not only the conformity of laws with the Constitution, but also to evaluate in the light of the Constitution the ‘consolidated application’ of the law. This competence generated a heated conflict between the Supreme Court of the then Soviet Union and the Constitutional Court. Secondly, if it is true that the law on the Constitutional Court of 1991 prevented the Court itself to decide on political issues, it must immediately add that the Constitution was amended in December 1992 to allow the Constitutional Court to exercise the control on the constitutionality of political parties, with the result that the Constitutional Court was asked to decide issues of great importance, such as in particular the constitutionality of the Communist Party of the Soviet Union, the ban established by decree of President Yeltsin18 for the Communist Party to exercise political activities,19 as well as the measures to seize the assets of the Communist Party. The constitutional ruling on the Communist Party Case established that the prohibition of activities ordered by the President Yeltsin was valid for the superior organs of the party (the party leadership), not instead for the local organizations that are open to the political competition in a regime of pluralism. On the other side, the confiscation of property of the party is to be considered legitimate according to the Constitutional Court, since these goods actually belong to the state. However – adds the Constitutional Court – irregularities in the procedure for confiscation may be invoked before the ordinary courts of civil jurisdiction.20

18

19

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sovietica del 1977. Un sessantennio di evoluzione costituzionale nell’URSS, Giuffrè, Milano 1979. On the (constitutional) decree-making power and its use by Russian presidents Yeltsin, Medvedev and Putin, see recently Thomas F. Remington, Presidential Decrees in Russia. A Comparative Perspective, Cambridge University Press, New York 2014, who analyses the problem of the so-called presidential government (in light of the presidential prerogative powers), and before Scott Parrish, ‘Presidential Decree Authority in Russia, 1991–95’, in John M. Carey and Matthew Soberg Shugart (eds.), Executive Decree Authority, Cambridge University Press, New York 1998, 62. In Italy, cf. Mario Ganino, Dallo Zar al Presidente. Ricostruzione del modello di governo della Russia fra trasformazioni costituzionali e continuità, cuesp, Milano 1999. The Communist Party of the Soviet Union was accused by Yeltsin to have supported the (failed) anti-democratic coup d’état of 1991; see. Maggs, Schwartz and Burnham, Law and Legal System of the Russian Federation, quoted supra note 5, at 245 (here is an analytical examination of the decision adopted by the Russian Constitutional Court on November 30, 1992 in the so-called Communist Party Case). On the attempted putsch, organized by eight high-ranking soviet officials, see Victoria E. Bonnell, Ann Cooper and Gregory Freidin (eds.), Russia at the Barricades. Eyewitness Accounts of the August 1991 Coup, Sharpe, Armonk (NY) 1994. Cf. Mauro Mazza, La giustizia costituzionale in Europa orientale, cedam, Padova 1999, particularly 221–227. On the leadership of Yeltsin (so-called Yeltsin era), see Romano Bettini (ed.), La transizione russa nell’età di El’cin, Angeli, Milano 1998; Lynn D. Nelson and Irina Y. Kuzes, Radical Reform in Yeltsin’s Russia. Political, Economic, and Social D ­ imensions,

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The Constitutional Court of 1991, however, was involved in the growing conflict between the federal legislative authority and the federal presidency, a charge the latter in that time held by Yeltsin. This led to the decision, adopted in September 1993 by President Yeltsin, to suspend the Constitutional Court, using the same arguments previously advanced, but certainly not with the intention to suspend the Constitutional Court, by the Chairman (Chief Justice) of the Federal Constitutional Court, Zorkin,21 who observed that the provisions of the Constitution of 1977, continuously modified, were certainly not the most appropriate to ensure an efficient judicial review of the constitutionality of laws. Ultimately, the position of Yeltsin was one in which, if the Constitution then in force was no longer in any way adapted to the times, the Constitutional Court must be suspended and the resumption of the same to work must be allowed only after approval of a new Constitution that reflect the changed political situation of post-Soviet Russia. The Constitutional Court Created by the Federal Constitutional Law of 1994, With a Brief Discussion of Additional Problematic Profiles Appointed by President Yeltsin to draft the text of a new federal law on the Constitutional Court, the justices of the Constitutional Court began to work and, after the elaboration of some preliminary drafts, it came to the adoption, in July 1994, of the new Federal Constitutional Law on the Constitutional Court of the Russian Federation.22 The latter law was amended lastly by the federal constitutional law of 8 June 2015, entered into force on 1 August of the same year.23 The amendments concern, on the one hand, the presentation of constitutional complaints electronically24 and, on the other hand, the webcasting of public sessions (not, therefore, of those in closed hearings) of the Court. 1.2

21

22 23 24

Sharpe, Armonk (NY) 1995; Gordon B. Smith, State-Building in Russia. The Yeltsin Legacy and the Challenge of the Future, Sharpe, Armonk (NY) 1999; Roy Medvedev, Post-Soviet Russia. A Journey Through the Yeltsin Era, Columbia University Press, New York 2000 (translation from the Russian original manuscript of 1998). Valery Zorkin, inter alia, has had occasion to criticize the classical liberal doctrine of law (see Valery Zorkin, ‘Global Crisis, Law and Human Rights’, Russia in Global Affairs, 7 June 2009), as well as the limitations of sovereignty, because he believes that state sovereignty is still now the basis of the constitutional system, at least in the majority of countries (cf. Valery Zorkin, ‘An Apologia of the Westphalian System’, Russia in Global Affairs, 10 August 2004). See Herbert Hausmaninger, ‘Towards a ‘New’ Russian Constitutional Court’, Cornell Int’l L.J., Vol. 28, No. 2, 1995, 349–386. The text (in English) of the Federal Constitutional Law on the Constitutional Court of the Federation of Russia is available on the Internet at www.ksrf.ru. From 1 August 2015 came into force the amendments to the Rules of the Russian Constitutional Court on appeals in electronic format. In this case, it is not required to submit the application in paper format. There are detailed rules both for individuals and for legal

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The federal body of constitutional justice must give effect to the provisions of Art. 125 of the Federal Constitution of 1993, relating specifically to the Constitutional Court.25 The functions of the latter primarily concern the abstract

25

persons. The appeal is to be sent electronically to the email address [email protected]. About this innovation, see Angela Di Gregorio, ‘La giurisprudenza costituzionale della Russia nel biennio 2014–2015’, Giurisprudenza costituzionale, 2016, 2021–2044, at 2013–2014. See Mazza, La giustizia costituzionale in Europa orientale, quoted supra note 20, at. 175– 250; Mario Ganino, ‘La Corte costituzionale della Russia, tra modelli, poteri e diritti’, in Giuseppe de Vergottini (ed.), Giustizia costituzionale e sviluppo democratico nei Paesi dell’Europa centro-orientale, Giappichelli, Torino 2000, 51; Angela Di Gregorio, ‘Il ruolo della Corte costituzionale russa nella tutela dei diritti e delle libertà dei cittadini’, ibid., 69; Fabio Fede, La giurisdizione costituzionale nelle repubbliche della ex Unione sovietica, Cedam, Padova 2001, 143–194; Angela Di Gregorio, La giustizia costituzionale in Russia. Origini, modelli, giurisprudenza, Giuffrè, Milano 2004; Angela Di Gregorio, ‘La Corte costituzionale della Russia’, in Luca Mezzetti (Ed.), Sistemi e modelli di giustizia costituzionale, cedam, Padova 2009, 445; Angela Di Gregorio, ‘The Evolution of Constitutional Justice in Russia: Normative Imprecision and the Conflicting Positions of Legal Doctrine and Case-Law in Light of the Constitutional Court Decision of 16 June 1998’, Review of Central and East European Law, Vol. 24, No. 5–6, 1998, 387–419; Alexei Trochev, ‘Less Democracy, More Courts: The Puzzle of Judicial Review in Russia’, Law & Soc’y Rev., Vol. 38, No. 3, 2004, 513–548; Alexei Trochev, Judging Russia: The Role of the Constitutional Court in Russian Politics, 1990–2006, Cambridge University Press, New York 2008; Jane Henderson, ‘The Constitutional Court of the Russian Federation: the Establishment and Evolution of Constitutional Supervision in Russia’, in Andrew Harding and Peter Leyland (eds.), Constitutional Courts: A Comparative Study, Wildy, Simmonds & Hill Publishing, London 2009, 148; Carla L. Thorson, Politics, Judicial Review and the Russian Constitutional Court, Palgrave Macmillan, Basingstoke 2012; Johannes C. Traut (ed.), Föderalismus und Verfassungsgerichtsbarkeit in Rußland, Nomos, Baden-Baden 1997; Boris Strachoune, ‘Les décisions de la Cour constitutionnelle de la Fédération de Russie comme sources du droit’, Est Europa. Revue d’etudes politiques et constitutionnelles, 2003, No. 3, 131–139; Boris N. Topornine, ‘La Cour constitutionnelle de la Fédération de Russie et l’évolution du fédéralisme russe’, Est Europa. Revue d’etudes politiques et constitutionnelles, 2003, No. 3, 127–130; Marie-Élisabeth Baudoin, Justice constitutionnelle et État post-soviétique, Forewords by Anatoly Kovler, Michel Lesage and Jean-Pierre Massias, Presses Universitaires de la Faculté de Droit de Clermont-Ferrand and L.G.D.J., Clermont-Ferrand – Paris 2005; Natașa Danelciuc-Colodrovschi, La justice constitutionnelle dans les pays de la cei: évolutions et perspectives, lgdj, Paris 2012; Natașa Danelciuc-Colodrovschi, ‘La justice constitutionnelle postsoviétique: entre évolutions et dysfonctionnements’, Les annales de l’Université de Bucarest – Série Droit (Faculté de Droit, Université de Bucarest, Roumanie), juillet-décembre 2012, 311–324; Vassili Tokarev, ‘Les cadres politiques de la justice constitutionnelle russe’, in Geoffrey Grandjean and Jonathan Wlidemeersch (eds.), Les juges: décideurs politiques? Essais sur le pouvoir politique des juges dans l’exercice de leur function, Bruylant, Bruxelles 2016, 219; Angela Di Gregorio, ‘Sud’ba rossijskoj konstitucionnoj justicii: sravnitel’nyj analiz’ [Il destino della giustizia costituzionale della Russia: analisi comparata], Žurnal konstitucionnogo pravosudija [Rivista di giurisprudenza costituzionale], No. 4, 2008, 5–8 (in Russian); Angela Di Gregorio, ‘Sudebnaja praktika Konstitucionnogo Suda Rossii- tendencii razvitija i aktual’nye problemy’ [La prassi giurisprudenziale della Corte costituzionale della

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control of constitutionality. At the request of the institutional subjects mentioned in the second paragraph of Art. 125 of the Constitution, in fact, the control of the constitutionality of federal laws, legislative measures adopted by the Federal President, and also of acts, decisions and resolutions pertaining to the Federation Council, the State Duma and the Federal Government is exercised. Constitutions and laws of the subjects of the Federation, the latter when both are in the fields assigned to the exclusive jurisdiction of the federal authorities as well as in the areas of joint26 competence of the Federation and the subjects of the Federation, are likewise subject to the control of constitutionality. Finally, with regard to international treaties, both the treaties concluded by the federal authorities and the authorities of the subjects of the Federation, as well as the treaties concluded between the Government of the subjects of the Federation, are subject to the abstract supervision of constitutionality, whereas the international treaties of the Russian Federation are subject to constitutional control only prior to their entry into force. Compared to the powers granted to the Constitutional Court by the 1991 law, the 1994 law has made certain restrictions, both relative to the object of the control that to the persons entitled to apply to the Court for an abstract control of constitutionality. While, in fact, the international treaties concluded by the Russian Federation were subject to the control of the Constitutional Court according to the law of 1991 even after their entry into force, this is no longer possible in the light of the provisions of Art. 125 of the Constitution of 1993, since now the constitutional control is exercised over international treaties of the Federation only prior – as just mentioned27 – of their entry into force. In addition, the abstract control of constitutionality could be activated, according to the law of 1991, also at the initiative of each deputy, while currently this is only

26 27

Russia: tendenze di sviluppo e problemi attuali], Konstitucionnyj Vestnik, Vol. 19, No. 1, 2008, 192–206 (in Russian). On the important role played by the Russian Constitutional Court in the post-Soviet transition, see very recently Bakhtiyar Tuzmukhamedov, ‘The Russian Constitutional Court in international legal dialogues’, in Martin Scheinin, Helle Krunke and Marina Aksenova (eds.), Judges as Guardians of Constitutionalism and Human Rights, Elgar, Cheltenham (UK) – Northampton (MA, usa) 2016, 224. Comprehensive reviews of the Russian Federal Constitutional Court decisions can be found in Sravnitel’noe konstitutsionnoe obozrenie [Comparative Constitutional Review] Journal, published in Moscow by the Institute for Law and Public Policy. In Italy, see the reviews by Angela di Gregorio on the Journal Giurisprudenza costituzionale. A further extensive analysis of the case law of the Russian Constitutional Court is in the manual Bernd Wieser (ed.), Handbuch der russischen Verfassung, Verlag Österreich, Wien 2014. Or concurrent. Above, in this paragraph.

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possible by at least a fifth of the members of the Federation Council (upper house), or the Duma State (lower house).28 The jurisdictional disputes between state powers, i.e. among the federal bodies, the federal bodies and those of the subjects of the federation, or even between organs of the subjects of the Federation are also decided by the Federal Constitutional Court, as established by the third paragraph Art. 125 of the 1993 Constitution. Most important is, then, the prediction of the fourth paragraph of Art. 125 of the Constitution, which states that the constitutional review is done by the Federal Constitutional Court also incidentally and concretely, then in relation to a controversial issue to be decided, both if there is a pending case and at the request of those who believe that his/her fundamental rights and freedoms enshrined in the Constitution has been infringed (direct constitutional complaint).29 There were, also in relation to the Constitutional Court created in 1994, some problematic profiles. On the one hand, the Court has the power to initiate legislation. This seems not well aligned with the principle of separation of powers, since the Constitutional Court can actually develop draft law that, if approved by the Federal Parliament, are also subject to the constitutional review by the Federal Constitutional Court itself. In addition, it should be noted that the incidental control of constitutionality of laws was the occasion of a bitter conflict between the Federal Constitutional Court and the Supreme Court of the Russian Federation, as the latter claims the purely discretionary remission by the judge a quo to the Federal Constitutional Court, and the federal judges of the constitutional legality are of the opinion that such referral is required. The conflict between the Constitutional Court and the Supreme Court stems from the combination – or, better, from the (possible) different interpretation – of Art. 101 of the law on the Federal Constitutional Court of 1994 and Art. 5, par. 3, of the Federal Constitutional Law on the judicial system of 1996; in particular, based on the latter provision, the Plenum of the Supreme Court of the Russian Federation ruled in 1995 that the reference to the Federal Constitutional Court is not compulsory by the courts of general jurisdiction. 28 29

The two chambers form the Federal Parliament of Russia, called the Federal Assembly. Cf. Francesco Randone, ‘Il ricorso diretto di costituzionalità nella Federazione Russa’, in R. Tarchi (ed.), Patrimonio costituzionale europeo e tutela dei diritti fondamentali. Il ricorso diretto di costituzionalità, Giappichelli, Torino 2012, 439; Carmen Schmidt, ‘Die Verfassungsbeschwerde in Russland’, Osteuropa-Recht, Vol. 60, No. 3, 2014, 339–348. In comparative perspective, see also Vladimir S. Kukhlivskiy, ‘Model of Individual Constitutional Complaint Subject to Commonwealth of Independent States Members’ Legislation: a ­Comparative Legal Analysis’, available at www.vestnik.mgimo.ru (consulted August 28, 2017).

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Despite the fact that the Federal Constitutional Court has adopted in 1998 a resolution which clearly states that there is an obligation of the judges to turn to the Constitutional Court, it should be noted that there were until now thousands of cases in which the organs of ordinary justice decided in the sense of the non-mandatory referral to the Federal Constitutional Court. The Federal Constitutional Court, on the other hand, seems to have at least since 2000 accepted that situation, probably also in view of the fact that, if really all the ordinary judges refer the constitutional questions to the Constitutional Court, the latter would be ‘submerged’ by a large number of requests, which the Constitutional Court could hardly cope within adequate time trial. There is no doubt, however, that the ‘war’ between the courts – that is to say between the Constitutional Court and the Supreme Court – and therefore the conflict that has given rise to a harsh dispute over the demarcation of competences (and responsibilities),30 on one hand undermines the judicial system as a whole and, on the other hand, does not help to strengthen the protection of fundamental rights and freedoms of citizens, and the maintenance of the highest good represented by the legal certainty. Ordinary Judges, Constitutional Judges and (Mandatory) Sources of Law. The Institute of the Separate Opinions of Constitutional Judges Following what I have said on a previous occasion,31 the use of the comparative argument – whether it is represented by a reference to legislation or case law (of foreign states or international organizations) – is not frequent in the judicial context of post-Soviet Russia, and this also applies in particular with regard to the side of the federal constitutional jurisdiction. 1.3

30

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See Peter Krug, ‘Departure from the Centralized Model: The Russian Supreme Court and Constitutional Control of Legislation’, Va. J. Int’l L., Vol. 37, No. 3, 1997, 725–787; Peter Krug, ‘The Russian Federation Supreme Court and Constitutional Practice in the Courts of General Jurisdiction: Recent Developments’, Review of Central and East European Law, Vol. 26, No. 2, 2000, 129–146; William Burnham and Alexei Trochev, ‘Russia’s War between the Courts: The Struggle over the Jurisdictional Boundary between the Constitutional Court and Regional Courts’, Am. J. Comp. L., Vol. 55, No. 3, 2007, 381–452; Kirill Koroteev, ‘Judicial Review in the Russian Supreme Court and Constitutional Court: Struggling for Jurisdictional Powers Instead of Protecting Human Rights’, in William B. Simons (ed.), East European Faces of Law and Society: Values and Practices, Brill, Leiden-Boston, 2014, 221. See Mauro Mazza, ‘Alcune tracce sull’uso (occulto) del diritto comparato nella giurisprudenza della Corte costituzionale della Federazione di Russia’, in Giuseppe Franco Ferrari and Antonio Gambaro (eds.), Corti nazionali e comparazione giuridica, esi, Napoli 2006, 261. Recently, rightly draws attention to the need to bring out what can lie under the officially recognized legal system, Arturo Maniaci, ‘I formanti “occulti”’, Rivista critica del diritto privato, 2017, 97–108, also in Un giurista di successo. Studi in onore di Antonio Gambaro, i, Giuffrè, Milano 2017, 239.

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The attitude, the mentality of Russian courts is (still) strongly imbued with formalism. The judges cite, in support of judicial decisions, the only binding sources of law, and so only the rules of Russian law. The reasoning behind such an established procedure (and stylus iudicandi) is the one for which the control of higher judges (on appeal) will focus on the correctness of the grounds of the judgment under appeal, and this judgment is unassailable if it correctly has applied the mandatory rules, which are only the provisions of Russian law. It follows, finally, that while the Russian legal doctrine looks with some interest to foreign institutions,32 the same is not definitely the case for the courts, which even when face the historical aspects of Russian law,33 do not consider (or, rather, conceal) the influences that come from foreign experience. One can therefore speak of an ‘isolationist’ position of the Russian judiciary, or of a true ‘jurisprudential patriotism’. The Russian case law ‘style’ above outlined seems especially important to understand the jurisprudence of the Federal Constitutional Court itself, and 32

33

Cf., for example, Akmal′ Kholmatovich Saidov, Comparative Law (1st Russian edn, 2000), William E. Butler trans., Wildy, Simmonds & Hill Publishing, London 2003; Djalil I. Kiekbaev, ‘Comparative Law: Method, Science or Educational Discipline?’, Electronic Journal of Comparative Law, Vol. 7.3, 2003 (www.ejcl.org). Intense is the study of comparative law in the whole East European area already subject to the influence of the Soviet Union: see Bronisław Sitek, Jakub J. Szczerbowski and Aleksander W. Bauknecht (eds.), Comparative Law in Eastern and Central Europe, Cambridge Scholars Publishing, Newcastle upon Tyne 2013. For the Soviet era, see Vladimir A. Toumanov (ed.), Ocherki Sravnitelnogo Prava, Izdatelstvo ‘Progress’, Moskva 1981. During the Soviet period, foreign law rather than comparative law was studied in Russia. This is because the Soviet jurists started from the assumption that the Soviet/socialist law was ideologically different and higher than the bourgeois law, i.e. the law of Western countries. Rather, the comparison of laws was carried out in the Soviet space, that is, among the legal systems of the fifteen republics that formed the Soviet Union. The situation, of course, is now deeply changed, but – as it has been said (cf. Alexander Vereshchagin, Judicial Law-Making in Post-Soviet Russia, New York, Routledge-Cavendish, 2007, 7) – ‘Comparative legal studies in Russia are just emerging’. Currently, one of the largest university centers of comparative legal research in Russia is the Laboratory of Legal Sociology and Comparative Legal Studies, created at the Faculty of Law (in addition to sixteen departments and two other laboratories) of the Lomonosov Moscow State University (msu). Within the Government of the Russian Federation, the Institute of Legislation and Comparative Law has also been established. From 2014 the ‘Russian Journal of Comparative Law’ is published, with articles in English and Russian. For scholars of comparative constitutional law, the leading Russian publication is the ‘Comparative Constitutional Review Journal/Сравнительное Конституционное Обозрение’ (which publishes – on the initiative of the Institute of Law and Public Policy/Институт права и публичной политики in Moscow – essays in Russian, along with English summaries). In relation to issues of application of the existing rules.

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also sometimes its nationalistic stiffening.34 The judges of the Constitutional Court, in fact, share the approach so widespread among ordinary judges, who ultimately oppose to any ‘penetration’ or ‘intrusion’ of comparative and foreign law in the courts’ decisions that they have adopted. The reason for the ‘closing’ of the judges of the constitutional legitimacy to the judgments and foreign laws is not unlike what drives to similar behavior also the judges of the general jurisdiction. It is that the foreign materials – legal or judicial – cannot be binding in the legal (and judicial) space of the Russia, so that any reference to such materials not only does not contribute to strengthening the authority 34

Whit regard to the decisions of the European Court of Human Rights, see Andrea Caligiuri, ‘La recente giurisprudenza costituzionale russa sui rapporti tra Convenzione europea dei diritti umani e ordinamento interno’, Diritti umani e diritto internazionale, 2016, 703–711; Caterina Filippini, ‘La Russia e la cedu: l’obiezione della Corte costituzionale all’esecuzione delle sentenze di Strasburgo’, Quaderni costituzionali, 2016, 386–389; Andrea Guazzarotti, ‘La Russia e la cedu: i controlimiti visti da Mosca’, Quaderni costituzionali, 2016, 383–386; Angela Di Gregorio, ‘Russia. Il confronto tra la Corte costituzionale e la Corte europea per i diritti dell’uomo tra chiusure e segnali di distensione’, available at www.federalismi.it (doc. dated July 27, 2016); Caterina Filippini, ‘Russia: l’influenza del concetto di “democrazia sovrana” sul dialogo tra la Corte di Strasburgo e la Corte costituzionale della Federazione Russa’, available at www.forumcostituzionale.it (doc. dated May 14, 2016); Angela Di Gregorio, ‘(ancora) Sulla contrapposizione tra le decisioni della Corte di Strasburgo e la Costituzione e la Corte costituzionale della Russia’, dipeo (Diritto pubblico dei Paesi dell’Europa Centro-Orientale), available at www.dipeo.unimi.it (doc. dated January 1, 2016); Angela Di Gregorio, ‘(Ancora) sull’esecuzione delle sentenze della Corte europea per i diritti umani in Russia. I contrasti tra i due ordinamenti e il ruolo della Corte costituzionale della FdR’, dipeo (Diritto pubblico dei Paesi dell’Europa Centro-Orientale), available at www.dipeo.unimi.it (doc. dated July 30, 2015), where the European court is defined (from the Russian point of view) as an interstate subsidiary court. As stated (on 14 July 2015) by the judge (and Vice-President) of the Constitutional Court Sergey Mavrin, “The European Convention for the Protection of Human Rights and Fundamental Freedoms as well as legal positions of the echr that are based on it cannot cancel the priority of the Constitution. All decisions of the echr must be executed only with consideration to the Russian Constitution’s supremacy. As an exception, Russia can refuse to fulfill the imposed obligations when such a refusal is the only way to prevent the violation of the basic law” (cf. Constitutional Court rules Russian law above European HR Court decisions, available at www.rt.com). And, in fact, “The amendment to the law on the Constitutional Court of the Russian Federation which came into force on 14 December 2015 gave the Constitutional Court the power to declare ‘impossible to implement’ judgments of a human rights body on the ground that its interpretation of the international treaty provisions at the basis of the judgment is inconsistent with the Constitution of the Russian Federation” (see Natalia Chaeva, ‘The Russian Constitutional Court and its Actual Control over the ECtHR Judgment in Anchugov and Gladkov’, Blog of the European Journal of International Law, available at www.ejiltalk.org, doc dated April 26, 2016, who notes that “No equivalent powers exist under the national jurisdiction of any other Council of Europe (CoE) member state)”.

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of judicial decision (ordinary or constitutional), but rather it is a source of weakness, of stickiness in terms of consistency, even when the decision is not appealable, as with the decisions handed down by the Federal Constitutional Court. At this point, you could even close the present contribution, saying that ultimately there are not judgments of the Federal Constitutional Court of the Russia who use foreign and comparative law. But this would not be complete. In fact, a space, albeit reduced, for the use of comparative law in the constitutional case law exists in Russia. We must, in this respect, make some preliminary remarks about the Russian constitutional procedural law, especially relating to adoption of judgments. Decisions are taken in the secrecy of the chamber. The judges who participated in the trial express their vote; the last to vote is the President of the Constitutional Court. Together with the decision of the Court, separate opinions35 (if any) of the constitutional judges are also subject to publication. This means that the separate opinions are not read in the courtroom at the time of the release of the verdict, but they are published later. Such opinions are not divided into the separate types of dissenting and concurring opinions. This creates, in truth, an additional difficulty in that it is necessary to examine the separate opinion to see if the judge has intended to express a dissenting or a concurring opinion. In any case, since the separated opinion is elaborated to highlight a lack of agreement with the judges of the majority as regards the decision, it occurs by way of the fact that the above opinions are all classified as dissenting (rather than concurring). What is more important, for the purposes of this analysis, is that the constitutional judges feel as they were free to operate comparisons with foreign legal materials and jurisprudence precisely in the context of the separate opinions. This is because, as seen above,36 the judges – including constitutional judges – do not usually make references to foreign laws and judgments since the latter are not binding sources of law. But, it should be added here, as part of the separate opinions, which therefore do not represent the base, i.e. the process of argumentation and motivation of the judgment, the judges who prepare such opinions may well open up to the size of the comparison, making comparisons with the foreign solutions. This is the only way through which the constitutional judges made use – albeit very rarely – the comparative argument. 35

36

In Russian, osoboe mnenie. For a recent comparative study of the subject, see Alessandra Di Martino, Le opinioni dissenzienti dei giudici costituzionali. Uno studio comparativo, Jovene, Napoli 2016, also with reference to aspects of constitutional theory and the history of legal culture. In this paragraph.

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The Explicit References to Foreign Judgments: Examining the Constitutional Case Law, From Both a Chronological and Thematic Point of View

In the light of the above observed, may not seem surprising finding that from the creation of the Constitutional Court in 1991, then moving to the Constitutional Court established in 1994 until to 2015 (last year for which complete statistics are available on the website of the Russian Constitutional Court37), on a total of more than eleven thousand decisions issued by the Russian Constitutional Court, only six references to decisions by foreign courts are found. Such references to foreign law only appear in separate opinions. The judge Kononov of the Constitutional Court appears, from this point of view, the most ‘prolific’, being the author of three of the total of six separate opinions written by judges of the Constitutional Court and containing references to foreign jurisprudence. It must be remembered, on the other hand, that Kononov is the judge of the Constitutional Court who is the author of the largest number of dissenting opinions, over fifty. The same judge has resigned from the Court in January 2010 after releasing an interview to an opposition newspaper in which he expressed strong criticism on the work of the Russian Constitutional Court, which he considered too obsequious respect to political power.38 Let us now briefly examine the cases in which the reference to foreign judgments was made by the judges of the Constitutional Court, using both a chronological and a thematic method of analysis. The first time was in 2001, when the constitutional judge Kononov has prepared a separate opinion with respect to the decision no. 6-P issued on April 25, 2001 by the Federal Constitutional Court. The case concerned the immunity from jurisdiction recognized to some subjects. Kononov has made references – in the opinion in question – to several foreign constitutional decisions,39 particularly to the jurisprudence of the Supreme Court of Canada. Subsequently, in connection with the electoral law and, especially, to the discipline of electoral 37 38

39

See the website at http://www.ksrf.ru. Sergey Belov, ‘Using of foreign constitutional precedents by the Russian Constitutional Court: explicit citations and implicit influence’ (www.juridicas.unam.mx/ wccl/ponencias/12/195.pdf), paper presented at the viii World Congress of the International Association of Constitutional Law (iacl), Mexico City, 6–10 December 2010. On political interference in the administration of justice in Russia, see Kathryn Hendley, “Telephone Law’ and the ‘Rule of Law’: The Russian Case’, Hague Journal on the Rule of Law, Vol. 1, No. 2, 2009, 241–262; Alena V. Ledeneva, ‘Telephone Justice in Russia’, Post-Soviet Affairs, Vol. 24, No. 4, 324–350. Adopted by the Constitutional Courts of South Korea, Spain and Germany.

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campaigns and freedom of information and or propaganda during the same campaigns, three dissenting opinions were developed, each of which contains references to judgments of foreign courts. The triptych consists, first of all, of separate opinion prepared by judge Kononov regarding the decision of the Constitutional Court no. 15-P of 30 October 2003, and the further separate opinion, also prepared by Judge Kononov, with regard to the decision no. 7-P pronounced on June 16, 2006 Federal organ of constitutional litigation. In both separate opinions the judge Kononov referred to the Slovak Constitutional Court, and also addressed the US and the British legislations, as well as the jurisprudence of the European Court of Human Rights. In the field of electoral legislation, a separate opinion has been prepared also by the judge Gadgiev40 in relation to the ruling no. 10-P adopted on 14 November 2005 by the Federal Constitutional Court. On this occasion, the judge Gadgiev drew the American jurisprudence, especially that of the US Supreme Court. The judge Gadgiev again, in relation to the decision no. 9-P issued on 14 July 2005 by the Russian Constitutional Court in matters of fairness in the tax law, has prepared a separate opinion that contains references to the German Constitutional Court. This separate opinion presents even references to the experiences of the Countries of common law; also these foreign materials are indicated by the dissenting constitutional judge in support of the thesis that he endorses in the opinion but by developing an argument a contrario, that is, in order to highlight that the setting of the Anglo-American law cannot be used41 in that case. Finally, the judge Kazantsev of the Constitutional Court has prepared a separate opinion with respect to the decision no. 6-P adopted by the Constitutional Court on May 16, 2007, in which the judge himself has inserted references to the Spanish constitutional case law concerning the acquittals and the possibility of their being subject to the revision process. On the other hand – as was exactly noted42 – the references made by the judges of the Russian Constitutional Court to foreign judgments are not only contained in separate opinions, but they are also often incomplete. This is because the judges sometimes in these opinions indicate only the year of issuing of the foreign judgment to which they refer, or do not care to specify the details of the dispute to which reference is made. Moreover, it does not seem 40 41 42

Also transliterated Gadjiev. In contrast to the approach adopted by the German Constitutional Court, which is also cited by the judge Kononov (as is said in the text). See Sergey Belov, ‘Russia: Foreign Transplants in the Russian Constitution and Invisible Foreign Precedents in Decisions of the Russian Constitutional Court’, in Tania Groppi and Marie-Claire Ponthoreau (eds.), The Use of Foreign Precedents by Constitutional Judges, Hart, Oxford 2014, 347, at 369.

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possible to identify a preference by the Russian constitutional judges to refer to decisions handed down by the organs of constitutional justice that most frequently are the subject of the jurisprudential use of comparative law; just think, for example, that the judgments of the Slovak Constitutional Court are more frequently cited that the decisions issued by the Supreme Court of the United States of America. 2.1 (Follows) The Problem of the Identification of Implicit References The influences of the foreign case law on the decisions of the Federal Constitutional Court of Russia, however, go beyond what can it be deduced from the reduced expressed references to foreign judgments contained in the (only) six separate opinions of the Constitutional Court first examined.43 There is, in fact, the size of the implicit or hidden reference to the foreign legal materials. On an important case44 is to be done here a brief reference,45 to remember that the ruling by the Russian Constitutional Court issued in 1995 stated that it is not competent to judge in order the decrees adopted by the then Federal President Yeltsin to deal with the war in the secessionist Republic of Chechnya, since the Court met in this case the limit of the ‘political question’, plays considerations that are easily found in American jurisprudence, especially with regard to the conduct of the war in Vietnam.46 This occurs not randomly. Within the organizational structure of the Federal Constitutional Court of Russia was set up a special Department, which deals with both international relations and to carry out research on judicial practice of other countries. Despite having as main task the Russian translation of judgments taken by the Constitutional Courts and the Supreme Courts (when they scrutinize the constitutionality of laws) of foreign states, the mentioned Department review also deals with the translation into Russian of foreign Constitutions, as well of laws that in other states govern the organization and functioning of the organs of constitutional litigation. In addition, States that are part of the Commonwealth

43 44 45 46

See what was said in the previous paragraph. So-called high-profile case. See, extensively, Mazza, ‘Alcune tracce sull’uso (occulto) del diritto comparato nella giurisprudenza della Corte costituzionale della Federazione di Russia’, quoted supra note 31, at 271. Even taking into account, of course, that the rebellion in Chechnya took place within the Russian Federation and the armed conflict in Vietnam was outside the territory of the United States of America.

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of Independent States (cis),47 i.e. all the former Soviet republics except Estonia, Latvia and Lithuania, have also set up their organs of constitutional justice. The Department for international relations and the foreign judicial practice, created at the Russian Federal Constitutional Court, also deals with the systematic collection of constitutional judgments of the cis States. On the other hand, the same Department cares the collection of documents prepared by the European Commission for Democracy through Law (usually known as Venice Commission), created by the Council of Europe. The features of this Department are quite similar, ultimately, to those of the Comparative Constitutional Law Section, which had been created in 1984 in the Studies Service of the Italian Constitutional Court, with the scientific coordination (2001–2007) of professor Paolo Ridola of the Rome University “La Sapienza”, then reorganized in 2011, still within the Studies Service, in a specific Area of Comparative Law, of which is currently responsible professor Paolo Passaglia48 of the University of Pisa.49 47

See: Mario Ganino and Caterina Filippini, Dall’URSS alla Comunità di Stati Indipendenti (csi), cuesp, Milano 1992; Barbara Cozzarini (ed.), La Comunità di Stati Indipendenti, Giappichelli, Torino 1996; Caterina Filippini, ‘Elementi presidenziali e parlamentari nelle Repubbliche della Comunità di Stati Indipendenti’, in Lucio Pegoraro and Nino Olivetti Rason (eds.), Semipresidenzialismi, cedam, Padova 1997, 203; Caterina Filippini, ‘Le riforme costituzionali nelle Repubbliche della csi successive all’adozione delle prime costituzioni postsovietiche: una democratizzazione impossibile?’, in Alfonso Di Giovine and Stefano Sicardi (eds.), Democrazie imperfette, Giappichelli, Torino 2005, 307; Caterina Filippini (ed.), La Comunità di Stati indipendenti a più di venti anni dalla dissoluzione dell’Urss, Maggioli, Rimini 2014. 48 Author, inter alia, of investigations on the use of comparative law (i.e. lex alii loci) by the Italian constitutional judges; see Paolo Passaglia, ‘La Cour constitutionnelle italienne et le dialogue jurisprudentiel transnational’, La Lettre d’Italie. Droit et vie politique italienne, No. 8, March 2016, 3–5; Paolo Passaglia, ‘L’argomentazione comparatistica: l’incidenza delle altre Corti costituzionali’, paper presented at the 12th annual meeting of the Società Italiana degli Studiosi del Diritto Civile-SISDiC, held 12 to 13 May 2017 in Naples (Italy), on the general topic I rapporti civilistici nell’interpretazione della Corte costituzionale nel decennio 2006–2016; Paolo Passaglia, ‘Il diritto comparato nella giurisprudenza della Corte costituzionale: un’indagine relative al period gennaio 2005–giugno 2015’, Consulta online. Periodico telematico, July 13, 2015, 589–611, available at www.giurcost.it., who writes: “Le indagini sulle corti che citano ‘poco’, o ‘pochissimo’, sono molteplici e, solitamente, molto stimolanti, perché in questi casi la ricerca perde, sì, l’atout della verificabilità, ma diventa inevitabilmente più intrigante, nella misura in cui cerca di cogliere dal non-detto conclusioni che possano spiegare quello che è sovente solo immaginabile da parte dell’osservatore” (cf. 590–591). 49 Cf. Emanuele Rossi, ‘Le vicende e le attività del Servizio studi della Corte costituzionale (in ricordo di Giustino D’Orazio)’, Nomos – Le attualità nel diritto. Quadrimestrale di teoria generale, diritto pubblico comparato e storia costituzionale, 1-2017, available at www. nomos-leattualitaneldiritto.it; Paolo Passaglia, ‘L’“Area di diritto comparato” della Corte

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The judges of the Russian Constitutional Court have frequently requested the assistance of the Department of international relations and foreign judicial practice. In particular, this happened at the initiative of the President of the Constitutional Court or of the judge rapporteur, the second of which leads the investigation on cases then submitted to the decision of the Plenum of the Constitutional Court. Taking into account that over a hundred reports on foreign law have been requested to the Department, it is clear that the Russian constitutional judges have a significant interest in the decisions taken by their foreign counterparts and in the foreign laws, far beyond what might appear from the just six cases of an express reference to pronunciations and legal materials of foreign States, contained in the separate opinions discussed in the present essay.50 Ultimately, the Russian judges of the constitutional litigation know the comparative and foreign law much more than it appears from the wording of the judgments pronounced by them, but covertly, in a hidden manner, this knowledge indirectly emerges. 3

The Obstacles that Remain Regarding the Use of Comparative Law by the Russian Constitutional Court, With Some Observations about Transnational Constitutionalism and the Taxonomy of Methods/Techniques of Reference to Foreign Legal Documents

The use of comparative and foreign law by the Russian Constitutional Court (as, indeed, by the courts of general jurisdiction) is still severely limited, mainly for two reasons. First, the decisions of judges of the constitutionality are binding in their entirety, and therefore the Court refers in its motivational passages only with Russian norms, which are obviously of necessary application by the courts of Russia. As was observed, ‘While these decisions are interpreted as binding in all

50

Costituzionale italiana come laboratorio e risorsa per corsi di diritto comparato’, paper presented at the xxiii Bi-Annual Colloquium of the Italian Association of Comparative Law (Palermo, 11/13 June 2015). Very important, however, is the role played in the Italian context by the “Assistenti di studio” of the constitutional judges: see Adele Anzon, ‘Gli Assistenti di studio dei Giudici costituzionali’, in Pasquale Costanzo (ed.), L’organizzazione e il funzionamento della Corte costituzionale, Giappichelli, Torino, 1996, 215; Barbara Randazzo, ‘Dietro le quinte della Corte costituzionale: gli assistenti di studio’, in Pasquale Pasquino and Barbara Randazzo (eds.), La giustizia costituzionale ed i suoi utenti, Giuffrè, Milano 2006, 163; Teresa Grieco, ‘Il ruolo degli assistenti nella Corte costituzionale italiana’, paper presented at the International Conference “The role of Assistant – Magistrates in the jurisdiction of constitutional courts” Bucarest, 31 May/1 June 2016. See above, in paragraph 5.

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their parts, legal formalism does not allow referring to foreign law, which is not obligatory in Russia’.51 In a word, the typical formalism of the legal tradition of Russia has a decisive influence on the style of the constitutional sentences (not otherwise, in this respect, of the decisions issued by the ordinary courts). We could, in fact, speak of a kind of Russian exceptionalism,52 which comes from the ‘constitutional patriotism’, is expressed in the ‘national style’ and is in addition to the traditional French and American exceptionalisms, as well as to the Chinese, Indian, Islamic, African and also European exceptionalisms.53 So, we understand that ‘legal patriotism’ and formalism ‘render citations of foreign cases by the Russian Constitutional Court nearly non-existent’.54 However, the apparent constitutional judicial ‘misoneism’ in the post-Soviet Russia is mitigated by the fact – first examined55 – of the ‘occult’ use of the comparison by the Russian Constitutional Court. Second, even using the data contained in the collections of jurisprudence of foreign states prepared by the Department for international relations and 51 52

53

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Cf. Belov, ‘Using of foreign constitutional precedents by the Russian Constitutional Court: explicit citations and implicit influence’, quoted supra note 38. On the topic, see Andreas Umland, ‘Varieties of Russian Exceptionalism in Putin’s Russia’, Russian Politics and Law, Vol. 50, No. 6, 2012, 3–6. The exceptionalism or ‘special path’ of the Russia includes trends towards radical anti-westernism and paratotalitarian newauthoritarianism. Cf. Andreas Umland, ‘The Claim of Russian Distinctiveness as Justification for Putin’s Neo-Authoritarian Regime’, Russian Politics and Law, Vol. 50, No. 5, 2012, 3–6; and see also Lev Gudkov, ‘The Nature of ‘Putinism”, Russian Politics and Law, Vol. 49, No. 2, 2011, 7–33; Jonathan Becker, ‘Russia and the New Authoritarians’, Demokratizatsiya: The Journal of Post-Soviet Democratization, Vol. 22, No. 2, 2014, 191–206; Giovanni Salvini, ‘Putin e il pensiero euroasiatico’, Il Politico, 2014, No. 3, 78–87. For an overview of the postSoviet countries (and their exceptionalism), see Vladimir Gel’man, Authoritarian Russia. Analysing post-Soviet regime changes, University of Pittsburgh Press, Pittsburgh, 2015; Christian von Soest and Julia Grauvogel, How Do Non-Democratic Regimes Claim Legitimacy? Comparative Insights from Post-Soviet Countries, giga (German Institute of Global and Area Studies) Working Paper, No. 277, August 2015. According to Vladimir Gel’man, ‘Authoritarian Modernization in Russia’, Demokratizatsiya: The Journal of Post-Soviet Democratization, Vol. 22, No. 4, 2014, 499–501, at 499, “The idea of achieving major economic and social advances in Russia without free and fair political competition formed the essence of the post-Soviet modernization project”. But not everyone agrees…; see, on opposition and civil society in Russia, Samuel A. Greene, ‘Moscow in Movement. Power and Opposition in Putin’s Russia’, Stanford University Press, Stanford (Cal.), 2014. With regard to the constitutional justice, see Tania Groppi, ‘Le “dialogue” des juges constitutionnels: entre déclin des exceptionnalismes et légitimation de la justice constitutionnelle’, in Marthe Fatin-Rouge Stéfanini and Guy Scoffoni (eds.), Liberté et exceptionnalismes nationaux, Foreword by Xavier Philippe, Bruylant, Bruxelles 2015, 295. See Ran Hirschl, Comparative Matters. The Renaissance of Comparative Constitutional Law, Oxford University Press, New York 2014, at 39 (text and note 64). In the previous paragraph.

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the foreign judicial practice established at the Federal Constitutional Court of Russia,56 the Court itself has made references to foreign legal materials. It appears, however, clear that references to foreign laws and judgments are not only very few – six in all since 1991 – but, also, they are not necessarily oriented toward the Constitutional Courts and Supreme Courts of Western countries. Suffice it to say that particularly cited in the separate opinions of the judges of the Constitutional Court is the Slovak Constitutional Court, and also that the opinions contain references to the jurisprudence of the Constitutional Courts of Asia.57 Ultimately, the use of foreign law by the Constitutional Court of the Russian Federation is certainly not open nor large; at most, it can be said that “you do it, but without admitting”.58 It will also be true that the ‘dialogue’ among constitutional judges, including the judges of the courts of justice exercising the constitutional review,59 is more and more intense, and that on the one hand it is the consequence of globalization and on the other side, it contributes to the socalled constitutional cross-fertilization. It will also be true that the judges who perform the duties of the constitutional review cite with increasing frequency judgments and laws of foreign countries, and that this trend contributes to the formation of a-national and standardized constitutionalism.60 However, this conclusion in the case of Russia does not appear adequate. Certainly, the so-called migration of constitutional ideas that takes place through the horizontal communication between the constitutional systems, and therefore also through the ‘dialogue’ between the judges of the constitutional legitimacy, is a prerequisite for the success of transnational constitutionalism. It remains, however, yet to be seen (at least, so it seems to me) if indeed there is this global 56 Cf. ante, in paragraph 6. 57 Consider, for example, that the judgments of the South Korean Constitutional Court are more mentioned in the separate opinions written by the judges of the Russian Constitutional Court than is the case for the rulings of the Supreme Court of the United States of America. More attention is found, in the separate opinions of the judges of the Russian Constitutional Court containing references to the constitutional case law of Western states, for the constitutional decisions adopted in Germany and Spain. 58 About the typologies of the jurisprudential use of comparative and foreign law, see Basil Markesinis and Jorg Fedtke (eds.), Judicial Recourse to Foreign Law: A New Source of Inspiration?, ucl Press, London 2006 (Italian translation, Giudici e diritto straniero. La pratica del diritto comparato, il Mulino, Bologna 2009). 59 See most recently, widely, Mads Andenas and Duncan Fairgrieve (eds.), Courts and Comparative Law, Oxford University Press, Oxford 2015. 60 See Gábor Halmai, ‘The Use of Foreign Law in Constitutional Interpretation’, in Michel Rosenfeld and András Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford 2012, 1328.

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convergence, particularly between the national constitutional courts. And, also, one might wonder whether such convergence not only is feasible, but also whether it is desirable. In any case, the experience of the Russian constitutional justice does not seem to militate in favor of that convergence, and indeed tends to remind to the international community that for the Russian legal culture (and the judicial practice) the constitutionalism remains mainly a national concept. Hence, in terms of taxonomy, modeling and methods/techniques of use of foreign case law and/or legal materials,61 the Russian case is highly unusual in comparative view. There are, in fact, only sporadic references to ‘not native’ normative or jurisprudential documents,62 and only in dissenting opinions. Sometimes cryptic or hidden comparison serves to support the thesis elaborated on the basis of domestic law. There is not, however, true and proper comparison, that occurs in the presence of a conscious choice of one of the (foreign) parameters used. 4

Some Final Thoughts, on the Possible Future Use of Foreign and Comparative Law by the Russian Constitutional Judges

To sum up, the use of foreign law, as mentioned earlier,63 is very rare until now in the Russian Constitutional Court case law. The fact, then, that it is made by the dissenting judges, sometimes later fallen into political disgrace,64 is extremely indicative of the reluctance of the constitutional judges who form the majority in the decisions of the Court to pay great attention to foreign laws. But the survey plans must properly be manifold, if they want to be not only strictly justified from a scientific point of view but realistic, i.e. empirically realized. This is true with regard to ‘non-overt’ but ‘covert’ circulation of legal models, including the tendencies of (constitutional) case law. In particular, the ‘occult’ circulation/reception of foreign models, which corresponds to a tradition dating back both in the Eastern European countries and (especially) in 61 62

63 64

On which see, even for some criticism of the typological classification proposed by Markesinis, Giuseppe Franco Ferrari and Antonio Gambaro, ‘Le Corti nazionali ed il diritto comparato. Una premessa’, in Ferrari and Gambaro, quoted supra note 31, vii. While there are no references to the foreign doctrine [on the general theme, see widely Bagni, Silvia, Nicolini, Matteo, Palici di Suni, Elisabetta, Pegoraro, Lucio, Procida Mirabelli di Lauro, Antonino, and Serio, Mario. (eds.), Giureconsulti e giudici. L’influsso dei professori sulle sentenze, i–ii, Giappichelli, Torino 2016. See paragraphs 2 and 3. See paragraph 2.1.

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Russia,65 may be surprising in the future, as concerns the (more or less explicit, but anyway undeniable) use, made also by the majority judges of the Russian Constitutional Court, of foreign judgments, statutes, legal scholarship or administrative acts. The tendency to recourse to foreign law will thus be able to progress not only on the explicit plan of the use of foreign legal materials from the Eastern European countries or from non-European contexts, in particular from Asia, but also on the ‘occult’ plan of the ‘underground’ use of Western judgments and doctrines, so far rarely made the subject of explicit references (due mainly to the so-called jurisprudential patriotism of the Russian Federal Constitutional Court, of which the uneasy relationship with European law is a direct expression66). Only proceeding along this road the post-Soviet Russia could participate to the ‘judicial globalization’, understood as a global judicial network characterized by references to the foreign judgments, exchange of arguments, common training, dialogue between jurisdictions.67 65

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Cf. Gianmaria Ajani, Le fonti non scritte nel diritto dei paesi socialisti, Giuffrè, Milano 1985; Gianmaria Ajani, Fonti e modelli nel diritto dell’Europa orientale, University of Trento Department of Legal Science, Trento 1993; Gianmaria Ajani, ‘Imperio, prestigio e caso nella circolazione di modelli nell’Europa orientale’, in Paolo Cendon (ed.), Scritti in onore di Rodolfo Sacco. La comparazione giuridica alle soglie del 3° millennio, Vol. i, Giuffrè, Milano 1994, 1; Gianmaria Ajani, Il modello post-socialista, 3rd edn, Giappichelli, Torino 2008; Gianmaria Ajani, ‘By Chance and Prestige: Legal Transplants in Russia and Eastern Europe’, Am. J. Comp. L., Vol. 43, No. 1, 1995, 93–117, who talks of post-socialist Russia, as well as the Central and East-European countries, as “large-scale borrower of Western models”. Add, if you want, Mauro Mazza, ‘Il diritto est-europeo nella circolazione dei modelli giuridici’, in Annalisa Cosentino (ed.), L’identità culturale europea nella tradizione e nella contemporaneità, Forum (Editrice Universitaria Udinese), Udine 2004, 55. See the bibliography indicated above, note 34, and also Natașa Danelciuc-Colodrovschi, ‘Quelle politique jurisprudentielle pour sauver le “dialogue” des juges? Interrogation(s) autour de la lecture de l’arrêt de la Cour constitutionnelle russe du 14 juillet 2015, Revue française de droit constitutionnel, No. 105, 2016, 229–240, who refers significantly to the “officialisation d’une lecture souverainiste des rapports entre les ordres juridiques russe et européen”, wondering about the “possible renouveau du “dialogue” ou le début de la “guerre” des juges”. The judgment of the Constitutional Court concerned the so-called case Ioukos (English: Yukos, Russian ЮКОС), the former Russian oil company; on it, see ‘Affaire Ioukos: la Russie n’appliquera pas les décisions de la cedh. A la suite d’une condamnation par la Cour européenne des droits de l’homme dans l’affaire Ioukos, la Cour constitutionnelle russe a fait valoir la primauté de la Constitution sur le texte européen’, Le Monde, 14-7-2015. See Vincenzo Tondi della Mura, ‘I rischi della competizione regolativa e valoriale fra i diversi poteri dello Stato (riflessioni a margine del “caso Englaro”)’, available at http:// archivio.rivistaaic.it, 2012, 1–32, who writes: “si considerino gli effetti prodotti in ambito giurisdizionale dal fenomeno della “globalizzazione”. L’interscambio generalizzato degli spazi commerciali, sociali e culturali ha incoraggiato l’avvio di una rete giudiziaria globale, in cui il raccordo fra giudici ha assunto forme diverse: richiamo alle sentenze straniere,

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One final point concerns, in particular, the possible future use of the foreign doctrine by Russian constitutional judges. This is because most of the members of the Russian Federal Constitutional Court are academic lawyers.68 And in fact, if we consider the composition of the Russian Constitutional Court at the time of its creation, we find eleven on the total of twelve judges who have had university teaching experience. That is because Marat Baglaï69 (Chairman/Chief Justice of the Constitutional Court) is professor of constitutional law; Tamara Morchtchakova is professor of criminal law; Vladimir Strekozov is professor of constitutional law; Nikolaï Vedernikov is professor of criminal law and criminal procedure; Anatoly Kononov is professor of constitutional law and of theory of law and State; Viktor Loutchine is professor of constitutional law and of theory of law and State; Anatoly Sliva is professor of administrative law and local government; Oleg Tiunov is professor of international law; Ernest Ametistov is professor of international law; Nikolaï Vitrouk is professor of constitutional law and human rights; Vladimir Toumanov is (recte: was70) professor of constitutional law. .

scambio di argomentazioni, formazione comune, dialogo tra giurisdizioni, creazione di associazioni transnazionali e di circoli giudiziari. Ne è derivato un intenso “traffico” o “commercio” di modelli interpretativi e di soluzioni giurisprudenziali, che dal campo degli scambi commerciali si è esteso al registro dei diritti fondamentali. La ‘mondializzazione giudiziaria’, di conseguenza, si è posta come una sorta di cassetta degli attrezzi senza fondo, a disposizione dei giudici per risolvere casi soggetti ad una diversa valutazione secondo i tradizionali parametri dei paesi di provenienza” (cf. 4, italics original). 68 See Natașa Danelciuc-Colodrovschi, ‘Juges constitutionnels et doctrine. Fédération de Russie’, Annuaire international de justice constitutionnelle, Vol. xxx, 2014, 327–343. 69 Author, inter alia, of Конституционное право Российской Федерации [Constitutional Law of the Russian Federation], 3rd edn, Norma, Moskva 2002 (in Russian); Дорога к свободе [Road to freedom], Mezhdunar. Otnosheniia, Moskva 1994 (in Russian), on the relationship between socialism and freedom from the Marxist critique perspective (the fundamental thesis of the book is, in short, that freedom and socialism are identical concepts, as opposed to capitalism); Капитализм и социалистическая демократия [Capitalism and Socialist Democracy], Profizdat, Moskva 1970 (in Russian). His best-known work on the international level (probably because written in English) is Trade Unions in Socialist Society, Progress, Moscow 1984 (5th edn, 1988.). 70 Prof. Toumanov died June 9, 2011, at the age of eighty-four years. Among the writings of Toumanov, who was one of the most prominent jurist both in Soviet and post-Soviet Russia, see for example, after the fall of the Berlin Wall and the disappearance of the ussr, the essays titled ‘Quelques aspects des relations entre le droit international et la justice constitutionnelle en Russie’, in Patrick Fraisseix (ed.), Mélanges Patrice Gélard. Droit constitutionnel, Forewords by Louis Favoreu and Gilles Lebreton, Montchrestien, Paris 1999, 329; ‘Sur les caractéristiques de la Constitution russe’, in Marcou and Gélard (eds.), L’État et le droit d’est en oust. Mélanges offerts au professeur Michel Lesage, quoted supra, note 12, 117. Toumanov was Chairman (Chief Justice) of the Russian Constitutional Court (1995–1997) and judge at the European Court of Human Rights, first Russian judge to be

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The situation is no different if you look at the composition of the current Russian Federal Constitutional Court, also formed for over ninety percent of university law professors. We find, in fact, that seventeen of the nineteen constitutional judges are academic lawyers. They are: Valery Zorkin (current Chairman/Chief Justice of the Constitutional Court),71 who has the title of professor of constitutional law, theory of law and State and human rights; Konstantine Aranovskij, professor of international law and administrative law; Gadis Gadjiev, professor of constitutional law; Ghenadij Jiline, professor of constitutional law; Sergheï Knjazev, professor of administrative law; Nikolaï Melnikov, professor of human rights; Vladimir Yaroslavtsev, professor of constitutional law; Olga Khokhriakova, professor of labour law; Alexandr Bojtsov, professor of criminal law; Sergheï Kazantsev, professor of criminal law; Alexandr Kokotov, professor of constitutional law; Youri Roudkine, professor of theory of law and State; Sergheï Mavrine, professor of labour law; Nikolaï Bondari, professor of administrative law; Mikhaïl Kleandrov, professor of international law; Larisa Krasavtchikova, professor of civil law and labour law; Nikolaï Seleznev, professor of constitutional law.

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appointed (in 1998, after he left his position as Constitutional Court Chairman) to the Strasbourg Court. He was, also, full member of the International Academy of Comparative Law (iacl), professor of the International Faculty of Comparative Law (Strasbourg), Vice-President of the International Political Science Association (ipsa), President of the International Association of Legal Science (ials), representative of Russia in the European Commission for Democracy through Law (Venice Commission) of the Council of Europe, member of the International Bioethics Committee (ibc) of the United Nations Educational, Scientific and Cultural Organization (unesco), etc. Toumanov had been one of the greatest exponents, very well known abroad (also because he wrote fluently in French and German, a little less in English), of the Marxist-Leninist (legal) theory (see, inter alia, his monographs titled Pensee juridique bourgeoise contemporaine. Appreciation marxiste des conceptions fondamentales, Editions du Progrès, Moscou 1974; Bürgerliche Rechtsideologie, Staatsverlag der Deutschen Demokratischen Republik, Berlin 1975). Of Valery Zorkin, jurist known internationally, see (in Western languages) ‘La décision de la Cour constitutionnelle de Russie sur la constitutionnalité de l’intervention militaire en Tchétchénie (Conférence et débat)’, Est Europa. Revue d’etudes politiques et constitutionnelles, 2002, No. 3, 281–299; ‘Precedent-setting value of rulings of the Constitutional court of the Russian Federation’, Est Europa. Revue d’etudes politiques et constitutionnelles, 2004, No. 3, 135–143. See also supra, the bibliographic references in note 21. President Zorkin, in particular, is not a supporter of the theory (or ideology) of gender; see Robert Coalson, ‘Top Russian Judge Wants Legal System To Embrace Gender ‘Differences”, on the website of RadioFreeEurope/RadioLiberty, at www.rferl.org (doc. dated 2 November, 2016), where is written that “Russian Constitutional Court head Valery Zorkin sharply criticized unspecified Western laws that ‘declare untraditional models of behavior of sexual and gender minorities as being within the law, trying to equate men and women while ignoring their natural biological differences’”.

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It follows that they know, often very well, the constitutional doctrine and case law of foreign countries as well as the international and public comparative studies, so that they are in the best condition, naturally if they wish, to transpose – perhaps in a ‘covert’ manner72 – foreign solutions73 in the future decisions of the Russian Constitutional Court, both through the use of comparative law argument (confirming an already existing demonstration) that by the use of comparative legal method (as an element for the reasoning of the decision).74 References Ajani, Gianmaria, Le fonti non scritte nel diritto dei paesi socialisti, Giuffrè, Milano 1985. Ajani, Gianmaria, Fonti e modelli nel diritto dell’Europa orientale, University of Trento Department of Legal Science, Trento 1993. Ajani, Gianmaria, ‘Imperio, prestigio e caso nella circolazione di modelli nell’Europa orientale’, in Paolo Cendon (ed.), Scritti in onore di Rodolfo Sacco. La comparazione giuridica alle soglie del 3° millennio, Vol. i, Giuffrè, Milano 1994, 1 Ajani, Gianmaria, ‘By Chance and Prestige: Legal Transplants in Russia and Eastern Europe’, Am. J. Comp. L., Vol. 43, No. 1, 1995, 93–117. Ajani, Gianmaria. Il modello post-socialista, 3rd edn, Giappichelli, Torino 2008. Andenas, Mads and Fairgrieve, Duncan. (eds.), Courts and Comparative Law, Oxford University Press, Oxford 2015.

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Thorson, Carla L. , Politics, Judicial Review and the Russian Constitutional Court, Palgrave Macmillan, Basingstoke 2012. Tokarev, Vassili, ‘Les cadres politiques de la justice constitutionnelle russe’, in Geoffrey Grandjean and Jonathan Wlidemeersch (eds.), Les juges: décideurs politiques? Essais sur le pouvoir politique des juges dans l’exercice de leur function, Bruylant, Bruxelles 2016, 219. Tondi della Mura, Vincenzo, ‘I rischi della competizione regolativa e valoriale fra i diversi poteri dello Stato (riflessioni a margine del “caso Englaro”)’, available at http:// archivio.rivistaaic.it, 2012, 1–32. Topornine, Boris N., ‘La Cour constitutionnelle de la Fédération de Russie et l’évolution du fédéralisme russe’, Est Europa. Revue d’etudes politiques et constitutionnelles, 2003, No. 3, 127–130. Traut, Johannes C. (ed.), Föderalismus und Verfassungsgerichtsbarkeit in Rußland, Nomos, Baden-Baden 1997. Trochev, Alexei, ‘Less Democracy, More Courts: The Puzzle of Judicial Review in Russia’, Law & Soc’y Rev., Vol. 38, No. 3, 2004, 513–548. Toumanov, Vladimir A., Pensee juridique bourgeoise contemporaine. Appreciation marxiste des conceptions fondamentales, Editions du Progrès, Moscou 1974. Toumanov, Vladimir A., Bürgerliche Rechtsideologie, Staatsverlag der Deutschen Demokratischen Republik, Berlin 1975. Vladimir A. Toumanov. Toumanov, Vladimir A. (ed.), Ocherki Sravnitelnogo Prava, Izdatelstvo ‘Progress’, Moskva 1981. Toumanov, Vladimir A., ‘Quelques aspects des relations entre le droit international et la justice constitutionnelle en Russie’, in Patrick Fraisseix (ed.), Mélanges Patrice Gélard. Droit constitutionnel, Forewords by Louis Favoreu and Gilles Lebreton, Montchrestien, Paris 1999, 329. Toumanov, Vladimir A., ‘Sur les caractéristiques de la Constitution russe’, in Marcou and Gélard (eds.), L’État et le droit d’est en oust. Mélanges offerts au professeur Michel Lesage, Société de legislation comparée, Paris 2006, 117. Tuzmukhamedov, Bakhtiyar, ‘The Russian Constitutional Court in international legal dialogues’, in Martin Scheinin, Helle Krunke and Marina Aksenova (eds.), Judges as Guardians of Constitutionalism and Human Rights, Elgar, Cheltenham (UK) – Northampton (MA, USA) 2016, 224. Umland, Andreas, ‘The Claim of Russian Distinctiveness as Justification for Putin’s Neo-Authoritarian Regime’, Russian Politics and Law, Vol. 50, No. 5, 2012, 3–6. Umland, Andreas, ‘Varieties of Russian Exceptionalism in Putin’s Russia’, Russian Politics and Law, Vol. 50, No. 6, 2012, 3–6. Vedaschi, Arianna, ‘La giustizia costituzionale’, in Paolo Carrozza, Alfonso Di Giovine and Giuseppe Franco Ferrari (eds.), Diritto costituzionale comparato, vol. II, 2nd edn, Laterza, Roma-Bari 2014, 1087.

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Vereshchagin, Alexander, Judicial Law-Making in Post-Soviet Russia, New York, Routledge-Cavendish, 2007. Vitruk, Nikolay V. Konstitutucionnoe pravosudie v. Rossii (1991–2001): očerki teorii i praktiki [La justice constitutionnelle en Russie (1991–2001): essai de théorie et de pratique], Gorodec-Izdat, Moscou 2001 (in Russian). Wedernikov, Nikolaji T., ‘Die Entwicklung des Verfassungsgerichts in Russland: Geschichte und Gegenwart’, in Wladimir I. Fadeev and Carola Schulze (eds.), Verfassungsgerichtsbarkeit in der Russischen Föderation und in der Bundesrepublik Deutschland. Rundtischgespräch an der Moskauer Staatlichen Juristischen KutafinUniversität am 9. und 10. Oktober 2012, Forewords by Carola Schulze and Wladimir I. Fadeev, Universitätsverlag Potsdam, Potsdam 2013, 1. Wieser, Bernd (ed.), Handbuch der russischen Verfassung, Verlag Österreich, Wien 2014. Zorkin, Valery, ‘La décision de la Cour constitutionnelle de Russie sur la constitutionnalité de l’intervention militaire en Tchétchénie (Conférence et débat)’, Est Europa. Revue d’etudes politiques et constitutionnelles, 2002, No. 3, 281–299. Zorkin, Valery, ‘Precedent-setting value of rulings of the Constitutional court of the Russian Federation’, Est Europa. Revue d’etudes politiques et constitutionnelles, 2004, No. 3, 135–143. Zorkin, Valery, ‘An Apologia of the Westphalian System’, Russia in Global Affairs, 10 August 2004. Zorkin, Valery, ‘Global Crisis, Law and Human Rights’, Russia in Global Affairs, 7 June 2009.

Comparative Analysis in the Case Law of the Constitutional Tribunal of Poland Miroslaw Granat The issue of comparative analysis in the case law of the constitutional court of a member state of the European Union and the Council of Europe, such as Poland, is more than complex. For this reason, it is only possible to present a general outline of the subject matter. First of all, the ongoing globalization process forces us to consider whether a border still exists between constitutional law and international law. The borderline between these branches is thin and according to some researchers it has already been obliterated.1 Secondly, similar doubts can be raised with regard to the boundary between the national constitution of some state and supranational legal orders.2 In general, both contain provisions of similar content which are interpreted with the same interpretative techniques. As a result, the case law of different courts becomes increasingly similar to one another. It is sometimes said that the processes of “internationalization of constitutional law” and “constitutionalization of international law” have taken place. These processes have particularly affected the sphere of individual rights, which are frequently subject to judicial review by constitutional courts. Hence the issue of comparative analysis in constitutional case law of the globalization period seems to have a different significance than in the ‘traditional’ constitutional law (of the Enlightenment). It would be a truism to point out that contemporary constitutionalism has become “multi-level”, “pluralistic” or “multicentric”. After all, these terms can only be multiplied and developed. Therefore, I would like to examine the issue of comparative analysis in the case law of the Constitutional Tribunal from several points of view.3 Firstly, 1 Cf. L. Garlicki, Ochrona praw jednostki w xxi wieku [The protection of individual rights in the 21st century], in E. Gdulewicz, W. Orłowski and S. Patyra (eds.) 25 lat transformacji ustrojowej w Polsce i w Europie Środkowo-Wschodniej [25 years of political transformation in Poland and in Central-Eastern Europe], Lublin 2015, p. 163. 2 Ibid. 3 By ‘comparative analysis’ I mean invoking provisions of the constitutions and laws of different states, their legal doctrine and case law in the case law of the Constitutional Tribunal. This term does not refer to the European Union law and the Council of Europe law as they form part of the national legal order.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_023

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this kind of analysis influenced the understanding of constitutional principles of law, in particular the principle of a democratic state ruled by law. Secondly, it was of crucial importance in resolving the conflict which arose in the process of Poland’s integration with the European Union between the key principle of the Constitution of Poland, i.e. the principle of the supremacy of the constitution, and the principle of the primacy of the European Union law. Thirdly, an example will be provided of the use of comparative analysis in the statement of reasons of a particular case settled by the Constitutional Tribunal. The case in question is the Tribunal’s judgment concerning RENEGADE airplane which involved such important principles of the Polish constitution as the principle of human dignity, the principle of legal protection of an individual’s life and the principle of the common good. What all these examples have in common is the fact that they reveal, at least partly, the techniques used by the Constitutional Tribunal with regard to comparative analysis. The article begins with an outline of the origin and status of the constitutional court in Poland. 1

Introductory Remarks

The Specificity of the Development of Constitutional Judiciary in Poland The development of constitutional judiciary in Poland may be divided into three stages. The first one concerns the origins of the Constitutional Tribunal (Section 1). The second one is characterized by the development of judicial review (Section 2). The third one, which began in 2015, is unfortunately related to the crisis of constitutional judiciary in Poland (Section 3). 1.1

1.1.1 Judicial review of the constitutionality of the law in Poland was established in the 1980s, still in the period of the so-called real socialism. The Constitutional Tribunal was introduced into the Constitution of the People’s Republic of P ­ oland in March 1982 during martial law. Establishing such a complex institution as a constitutional court in such circumstances is one of many paradoxes in the origins of constitutional judiciary in Poland. Its gradual introduction was a kind of a controlled concession from the government, which, however, proved to have profound consequences. The communist authorities accepted the situation (at least formally) that the law must be consistent with the Constitution but at the same time they introduced numerous ‘fuses’ in the Tribunal’s ­activity, e.g. manifested in the fact that initially its decisions on the

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­ nconstitutionality of statutes were not final. The Tribunal was able to gain an u independent position only as a result of the political situation after 1989, when the Solidarity came into being and mass protests against the communist rule began. The Constitutional Tribunal, introduced into the Constitution in 1982, started its activity on 1 January 1986 and issued its first judgment in May 1986. The establishment of the Tribunal and its functioning (initially limited) were ‘achievements’ of the period of liberalization of political relations in the People’s Republic of Poland. The idea originated in Kelsen’s theory and the institutional model seemed to be relatively close to the solutions adopted in Austria. The Tribunal was incorporated into an undemocratic system of power, which is why it was handicapped. Despite this unusual configuration, the ­Tribunal, even before 1989, demonstrated what is the core of constitutionalism, i.e. the supremacy of the Constitution and the importance of human rights. At the same time, we can see that history played a significant role in shaping constitutional judiciary in Poland. The year 2015 marked the 30th anniversary of the first ruling issued by the Constitutional Tribunal. In the political atmosphere that emerged after the parliamentary elections in October 2015, the anniversary was not celebrated nor even noticed. 1.1.2 Between 1985 and 1997, the Tribunal’s position was characterized by the fact that its judgments on the unconstitutionality of laws were not final. They were subject to consideration by the Sejm,4 which could override the Tribunal’s ruling by a two-thirds majority, acting as the supreme body of the state power. Obviously, the construction where the Sejm gave legal force to unconstitutional laws cannot be regarded as axiologically neutral. It is impossible to legally express the situation where a provision is unconstitutional, but a judgment declaring this fact is rejected by a majority. In the period under discussion, the Tribunal was also subject to other restrictions (concerning e.g. time and subject matter), but it is not worth recalling them today. The paradoxes involved in the establishment of judicial review in Poland were finally resolved in the 1997 Constitution of the Republic of Poland. The legislator provided for the independent Constitutional Tribunal and centralized judicial review of the constitutionality of the law. The Tribunal obtained the status of a constitutional court par excellence, i.e. it became an independent judicial body. Its rulings became final and universally binding. 4 Cf. Article 33(1) of the Constitution of the People’s Republic of Poland.

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The Constitutional Tribunal, by virtue of the powers conferred by the 1997 Constitution as well as by its jurisprudence, has developed a significant position in the political system of Poland. It was the only unquestioned institution in the field of constitutional review. No one questioned either the role of the Tribunal or its judgments. By reviewing the constitutionality of the law, the Tribunal co-decided on key issues of national and social life (e.g. treaties integrating Poland with the EU, the pension system or punishment for felling trees). This institution was a kind of a fuse preventing the adoption of unconstitutional laws. Securing the constitutionality of the law is of great value, as shown by the laws of July 2017 on the Supreme Court and the National Council of Judiciary. It prevents faults of the judiciary or errors in the functioning of its bodies. 1.1.3 In 2015, after the presidential (May 2015) and parliamentary elections (­October 2015), some politicians began to question the fundamental role of the Constitutional Tribunal in upholding the principle of constitutionalism. They ­emphasized the role of the Sejm and the sovereign (the nation) as subjects deciding on the shape of the legal system. The Constitutional Tribunal was accused of exercising ‘the judges’ rule’, among others. In October 2015, there was a conflict on the staffing of vacancies in the Tribunal, which I refer to below. From the perspective of constitutional principles, what was much more important than this conflict was that the executive assumed the competence to decide whether the rulings of the Tribunal are valid judgments. Challenging by the executive the finality of the Tribunal’s decisions by refusing to publish some of them is the key to undermining the position of the constitutional court in general. 1.1.3.1 In the years 2015–2016 the Sejm adopted a series of the so-called remedy laws on the Tribunal5 which limited its significance and, above all, shifted its position in the system of tripartite power. Remedy laws were not incidental activities of the legislator, but they essentially sought to introduce constitutional changes by means of ordinary laws. As a result of the adoption of these laws as well as political changes, the position of the Tribunal in the judiciary was marginalized. Since the role of the Tribunal with regard to reviewing the constitutionality of the law as well as guaranteeing citizens’ rights was undermined, a 5 Most of them were amendments to the law on the Constitutional Tribunal of June 2015. However, on 22 July 2016, the Sejm passed a new law on the Constitutional Tribunal.

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lively debate began in Poland on the importance of dispersed judicial review, i.e. transferring this review, to some extent, to common courts and administrative courts. Even opponents of this kind of review began to appreciate its potential significance. The state of uncertainty in the law facilitates discussion on whether constitutional review can be exercised, to some degree, by common courts and administrative courts. This issue is, however, beyond the scope of the present paper. 1.1.3.2 I have already mentioned the conflict concerning the election of judges to the Constitutional Tribunal. In October 2015, at the turn of the 7th and 8th term of the Sejm, there was a conflict between the parliamentary majority and the opposition on the staffing of vacancies in the Tribunal which appeared as terms of office of individual judges expired. The outgoing Sejm of the 7th term elected five judges, including two in advance, i.e. to fill the vacancies that would appear in December 2015. The President of the Republic did not swear them in. The newly-elected Sejm of the 8th term stated that the resolutions of the previous parliament on the election of these judges were not legally binding. Then, it elected five judges, but did not indicate who they were supposed to replace. These judges were sworn in by the President on 3 December 2015. In 2017, the situation was as follows: three judges validly elected by the Sejm of the 7th term in October 2015 were not sworn in by the President and other three judges were sworn in despite being elected to replace the former judges. I am referring to the category of ‘validity’ in accordance with the judgment of the Constitutional Tribunal of 3 December 2015.6 Despite the gravity of the conflict over the election of judges, in my opinion, what was more significant for the position of constitutional judiciary was questioning the final character of the Tribunal’s judgments by the Prime Minister’s refusal to publish some of the Tribunal’s rulings issued in 2016. It appeared that the recognition of the Tribunal as a judicial body may depend on the assessment of its judgments by the executive. General Characteristics of the Constitutional Tribunal and Its Powers The 1997 Constitution of the Republic of Poland includes the Constitutional Tribunal in the judiciary (Article 10(2)), specifies its powers as well as the 1.2

6 Cf. the judgment of the Constitutional Tribunal of 3 December 2015, no. K 34/15, otk ZU 2015, no. 11A, item 185.

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e­ lection and the number of judges.7 On the other hand, the Constitution stipulates that the organization and the mode of proceedings before the Constitutional Tribunal should be regulated by ordinary statutes. In the state of law holding in 2017, the following statutes regulate the position and activity of the Constitutional Tribunal as well as the status of its judges: – the law of 30 November 2016 on the organization and mode of proceedings before the Constitutional Tribunal,8 – the law of 30 November 2016 on the status of judges of the Constitutional Tribunal,9 – the law of 13 December 2016 containing provisions implementing the abovementioned laws.10 1.2.1 According to the Constitution, the Tribunal is composed of 15 judges, elected individually by the Sejm for a term of nine years, without the possibility of re-election. Judges are selected from among “persons distinguished by their knowledge of the law” (Article 194(1) of the Constitution). The Sejm adopts a resolution on the election of a judge by an absolute majority of votes, in the presence of at least half of the total number of deputies. The President of the Republic is obliged to take an oath from a judge elected by the Sejm immediately. The model of election of judges by the Sejm introduced in the 1980s was upheld in the 1997 Constitution. For thirty years, until October 2015, it ensured undisturbed selection of judges and staffing of vacancies. One of its advantages was that it was not conducive to the election of politicians to the Tribunal. The Sejm usually elected legal professionals, which was based on the conviction that the Tribunal was a court of law. The head of the Tribunal is the President, who is elected by the judges and then appointed by the President of the Republic. The term of office of the President of the Tribunal is currently 6 years. 1.2.2 First and foremost, the Tribunal exercises posterior review of the constitutionality of the law. The subject of review are therefore provisions that have already been enacted and have entered into force, or are in the period of vacatio legis. 7 8 9 10

Cf. Chapter viii of the Constitution of Poland. Journal of Laws 2016, item 2072. Journal of Laws 2016, item 2073. Journal of Laws 2016, item 2074.

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The forms of this kind of review include applications made to the Tribunal by the competent authorities (Article 191 of the Constitution), a constitutional complaint (Article 79(1) of the Constitution) and a question of law from a court (Article 193 of the Constitution). An exception to posterior review is preventive review, which is exercised before a legal act enters into force. This form of review was introduced in 1989. In the 1997 Constitution, however, it was substantially reformed. The only subject entitled to initiate such review is the President of the Republic. Preventive ­review is restricted to laws before they are signed by the President and to international agreements before their ratification by the President. It should be added that a provision examined in the mode of preventive review may also be the subject of posterior review in each of its forms. Judicial review exercised by the Tribunal can be divided into abstract and concrete review. Abstract review includes examination of laws and international agreements before signing by the President. Concrete review includes a question of law and a constitutional complaint. 1.2.3 The Constitutional Tribunal issues judgments either after a public hearing or after a meeting in camera. Judgments are “of universally binding application” and “final” (Article 190(1) of the Constitution). They are made by a majority of votes (Article 190(5) of the Constitution). A constitutional judge may present a dissenting opinion to the judgment, to the statement of reasons or to both. The practice of dissenting opinions is very rich and varied at the same time. Some judgments of the Constitutional Tribunal state the inadequacy of the invoked constitutional benchmark for review. This means that the challenged provision is neither consistent nor inconsistent with the indicated benchmark. It may therefore be challenged once again in the future. Next, we distinguish between judgments that state the compatibility or incompatibility with the Constitution of the challenged provision. These rulings are informally referred to as simple judgments. On the one hand, a pair of judgments “compatible” vs. “incompatible” is very Kelsenian, but on the other hand, since the 1990s, it has turned out to be too crude to express the specifics of reviewing the constitutionality of the law. Since the Tribunal carries out pro-constitutional interpretation of the examined law, new types of judgments have emerged, such as interpretative judgments and limited judgments. These are new, supra-Kelsenian instruments of adjudication. They may be generally called complex judgments. They are distinguished by the fact that in the operative part of the judgment the Tribunal gives the interpretation of the examined provision, one from among those functioning in legal proceedings. Due to the

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fact that these judgments have a strong law-making character, issuing them by the Tribunal is criticized, mainly by the Supreme Court. Therefore, the Tribunal treats making such judgments as a kind of ultima ratio in its case law. A special kind of rulings are applicative judgments. They are distinguished by a particular effect they are to produce (or not to produce). The effect is specified by the Tribunal in the operative part of the judgment. Some constitutional principles of law of great practical importance have been specified in the Tribunal’s case law with the use of foreign law and doctrine. A characteristic example in this regard is the development of substantive and particularly formal understanding of the principle of a democratic state ruled by law. The idea of Rechstaat, typical of German law and doctrine, influenced not only the Polish system. 2

Substantive Remarks

The Development of the Substance of the Principle of a Democratic State Ruled by Law The principle of a democratic state ruled by law which implements the principles of social justice is one of the most important principles of the current Constitution of Poland. It was included in Article 1 of the Constitution of the People’s Republic of Poland through the amendment of 29 December 1989. This provision expressed the essence of the political change taking place at that time, i.e. the departure from a communist system to a democratic system. 2.1

2.1.1 In Poland there was a consensus that the concept of the rule of law should become the supreme principle of the system. However, the specific shape of this principle was an open issue. Although the idea of Rechstaat, a specific concept of German legal culture, was valuable, it could only serve as a guideline for the Polish legislator.11 What also mattered in supplying the principle of a democratic state ruled by law with a specific content was the Polish experience gained from the struggle for human rights in the 1980s carried out by the Solidarity movement and the democratic opposition. It was the interaction of

11

Cf. P. Tuleja, Zastane pojęcie państwa prawnego [The established notion of the rule of law], in S. Wronkowska (ed.) Zasada demokratycznego państwa prawnego w Konstytucji RP [The principle of the democratic state ruled by law in the Constitution of the Republic of Poland], Wydawnictwo Sejmowe, Warsaw 2006, p. 49 onwards.

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both these factors, i.e. foreign legal doctrine and domestic struggle for human rights, that contributed to the understanding of the principle under discussion. Polish lawyers still referred to German jurisprudence in the course of work on amending the Constitution of December 1989. A characteristic feature of German doctrine was that the substance of ‘the rule of law’ was made very specific in the ordinary law. In the Basic Law of 1949, the substance of the rule of law concept was shaped to a large extent by the criticism of the Weimar Constitution and the Third Reich as a state of lawlessness. Based on this criticism, the doctrine in question formulated the understanding of the rule of law.12 The significance of comparative analysis in the case law of the Constitutional Tribunal can be illustrated with the judgment no. K 45/07 (concerning the supervision of the Minister of Justice over administrative activities of common courts) and the judgment no. SK 22/02 (concerning the understanding of the principle of the specificity of legal provisions). In my view, the first judgment has an influence on the substantive understanding of the principle of the rule of law, whereas the other one on its formal understanding. In Poland, one of sensitive issues concerning the judiciary is the Minister of Justice’s supervision over administrative activities of common courts. Likewise, the scope of this supervision is controversial. Under Article 173 of the Constitution, courts and judges are independent, but that does not mean that the Minister of Justice should not have any influence on administrative activities of courts. The junction of the judiciary and the executive (the Minister of Justice) is important from the perspective of the shape of a democratic state ruled by law. The issue of supervision exercised by the Minister of Justice was investigated by the Constitutional Tribunal twice.13 In both judgments, this ­supervision was pronounced to be legitimate in terms of the principle of a democratic state ruled by law, the principle of separation and balance of powers and other ­specific rules of court functioning. At the same time, however, the Tribunal formulated the conditions of exercising such supervision. In the statement of reasons of the judgment no. K 45/07, the Tribunal referred to German legal doctrine, which significantly influenced the shape of the ruling. Employing comparative arguments was quite far reaching. The argumentation of the Tribunal was as follows: (a) The Tribunal invoked Article 97(1) of the Basic Law which states that “[j]udges shall be independent and subject only to the law”. The Tribunal 12 13

Ibid., p. 55. These were judgments no. K 45/07 of 15 January 2009 (otk ZU 2009, no. 1A, item 3) and no. K 31/12 of 7 November 2013 (otk ZU 2013, no. 8A, item 12).

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emphasized that this regulation is repeated in the law on the German judiciary (Deutsches Richtergesetz of 1 April 1972, BGB1, p. 713) and in the law on the functioning and structure of the judiciary (Gerichttsverfasssungsgesetz of 9 May 1975, BGB1, p. 1077). (b) Under German law, the Minister of Justice exercises supervision of court activities at the federal level. The Minister has the power to address individual courts with regard to irregularities in the distribution of cases which result in delays in their handling. (c) Under the aforementioned laws, certain matters fall within the scope of “administration of justice”. There are four main areas of activity within the judicial administration related to personnel, infrastructure, procedure and budget respectively. (d) Referring to the case law of the Federal Constitutional Court (with Federal Disciplinary Court examining disciplinary cases), the Tribunal noted that the concept of supervision received a wide interpretation. This concept may also include informal activities undertaken by the supervising entity. However, the essential feature of such an activity must be a specific reference to the manner in which a judge performs his or her duties. (e) The Tribunal concluded that German case law distinguishes between the so-called ‘core’ and ‘periphery’ in judicial activity. The supervising entity’s guidance may only refer to the latter. To sum up, the Tribunal’s method of analysis was as follows: first, it referred to relevant constitutional provisions of the Basic Law which served as ‘counterparts’ of the benchmark provision in the case before the Constitutional Tribunal. Next, it carried out an analysis of statutory provisions, doctrine and case law. Finally, based on this material, it formulated the conclusion concerning various areas of judges’ activities. 2.1.2 In the statement of reasons of the judgment under discussion, the Tribunal also referred to certain legal solutions and case law of Austria, Hungary and France, but these references were rather informational.14 What is important is the Tribunal’s conclusion based on the summary of comparative analysis, which reads as follows: “The legal solutions invoked, in spite of different political contexts in which they function, indicate that in a contemporary democratic state the judiciary does not need to be separated from other branches of power in an absolute manner”.15 Especially German and Austrian solutions 14 15

Cf. Part iii Section 2.4. of the statement of reasons of the judgment no. K 45/09. Cf. the statement of reasons of the judgment no. K 45/09, p. 40.

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demonstrate that, having met constitutional and statutory conditions, organs of the executive branch may supervise administrative activities of courts.16 Interference in activities of courts cannot affect the area in which judges are independent. Referring to French solutions, the Tribunal argued that administrative supervision exercised by the Minister of Justice is regulated in a different way. It can interfere in judicial activity to a greater extent than in Austria or Germany without violating the principle of judicial independence. The case under discussion ended with a judgment of 15 January 2009 which stated that the Minister of Justice’s supervision over administrative activities of common courts was constitutional. The Tribunal distinguished between ‘external supervision’ and ‘internal supervision’. As a result of this judgment, the Sejm introduced changes in the law on the system of common courts. ‘Internal supervision’ is performed by the president of a particular court, whereas ‘external supervision’ by the Minister of Justice. It can therefore be argued that comparative analysis was relevant to the Tribunal’s reasoning in case no. K 45/07. The abovementioned settlement of the supervision issue by the Tribunal and then by the Sejm, however, gave rise to the dissatisfaction of judicial circles. For years, they have postulated that supervision over administrative activities of courts should be the sole responsibility of the presidents of courts. 2.1.3 In Poland, the formal understanding of the principle of a democratic state ruled by law includes a number of further detailed principles and rules of law. Altogether they comprise the formal understanding of this principle. These principles and rules were interpreted in detail by the Constitutional Tribunal through interpretation of Article 1 of constitutional provisions (still before the 1997 Constitution was adopted). One of the key principles in this respect is the principle of the specificity of legal provisions. The significance of comparative analysis in developing the understanding of the principle of the specificity of legal provisions can be illustrated with the Tribunal’s judgment no. SK 22/02 of 23 November 2003.17 The Tribunal reconstructed the position of German doctrine under Article 103 of the Basic Law. This provision obliges the legislator to describe the conditions for the criminality of an act in the manner sufficiently specified for it to be possible to identify. Moreover, it must be possible to determine the extent and range of the attributes of that offence through interpretation of such a provision. With regard to the requirement of the specificity of legal provisions, the Tribunal adopted the 16 Ibid. 17 Cf. otk ZU 2003, no. 9A, item 97.

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following position. On the one hand, the entity to which a norm refers must be protected, i.e. everyone should be able to predict what behaviour is prohibited and subject to punishment. On the other hand, a standard of law should be guaranteed in which the legislator itself (and not a lower order legal act) decides on the criminality of the act. Thus, the requirement of the specificity of legal provisions implies “that the conditions of the criminality as well as the nature and the scope of punishment must emerge from the law itself”.18 2.1.4 It should be explained that after the 1997 Constitution entered into force, many principles of law that functioned only in the Tribunal’s case law as derived from the principle of a democratic state ruled by law were separately expressed in various provisions of the 1997 Constitution. These were, for example, nullum crimen sine lege (Article 42), the right to court (Article 45) or the right to privacy (Article 47). After 1997, the principle of a democratic state ruled by law has remained an important principle of the Polish system, but it has acquired a different, more ‘practical’ significance in the case law of the Constitutional Tribunal. It plays an auxiliary role in the Tribunal’s reasoning with respect to specific principles, such as the principle of the specificity of legal provisions or nullum crimen sine lege. The principle of a democratic state ruled by law serves as an ‘interpretative guideline’ in the examination of a challenged provision in terms of a specific principle.19 It has already been mentioned that the principle of a democratic state ruled by law in Polish legal doctrine has a substantive and formal meaning. To sum up, however, I would like to emphasize that Article 2 of the Constitution of Poland constitutes a uniform normative structure. Its substance cannot be divided into parts, for example, “Poland is a state ruled by law”, “Poland is a democratic state” or “Poland implements the principles of social justice”. The Constitutional Tribunal does not ‘extract’ one part of this provision at the expense of another. This is because the principle of a democratic state ruled by law is not simply a sum of meanings of the concepts used in the relevant provision. In Article 2 democracy and law are interdependent in that one value limits the other. History and present times show that the separation of law and democracy has negative consequences. 18 Cf. otk ZU 2003, no. 9A, item 97, p. 1120. In the statement of reasons of the case under discussion, the Tribunal also examined the principle of the specificity of the definition of a criminal act in Swiss law. 19 Cf. the judgment of the Constitutional Tribunal of 9 June 1998 no. K 28/97, otk 1998, no. 4, item 50.

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Comparative Analysis in Resolving Conflicts between Constitutional Principles A special case of applying comparative analysis by the Constitutional Tribunal was the resolution of a conflict between the principle of the supremacy of the Constitution and the principle of the primacy of the European Union law. The Tribunal adjudicated that the Constitution prevails but not in every kind of conflict of law or that there are different kinds of priority. A relevant case is the primacy of the application of the EU law, which is not tantamount to the supremacy of this law over the Constitution. It is the principle of constitutionalism that decides on the hierarchy, even if it gives way to primary legislation. The Constitution retains the initiative in deciding on the conferral of competences and, consequently, on the changes in the system of sources of law. Before 2004, the principles of sovereignty and constitutionalism functioned quite independently of one another. Sovereignty as the supreme state authority belonging to the nation as a community of all citizens was an ‘either-or’ concept. The formalism of this approach was expressed in the belief that ‘if something is given, something is lost’ and did not provide for a possibility of a different solution (e.g. two winners at a time). The understanding of sovereignty did not affect the understanding of constitutionalism20 (although, obviously, there is a connection between them). There were also attempts to explain sovereignty as a ‘scalar’ phenomenon (a nation may remain sovereign to some extent), but such an approach was of limited significance to the issues of sovereignty and conferral of competences. The change of reasoning in this respect is reflected in the judgments on the constitutionality of the Treaty of Accession (no. K 18/04) and the Treaty of Lisbon (no. K 32/09). 2.2

2.2.1 In the judgment of 11 May 2005 no. K 18/04, the Constitutional Tribunal adjudicated that the Treaty of Accession of Poland to the European Union is consistent with the preamble and the key provisions of the 1997 Constitution. It ­stated that the relevant provisions of the Constitution, i.e. Article 90(1) and ­Article 91(3), cannot provide the basis for the conferral to an international organization or an international institution of the competences to issue legal acts or decisions that would be inconsistent with the Constitution of the R ­ epublic

20

Cf. the statement of reasons of the judgment of 31 May 2004 no. K 15/04, otk ZU no. 5A(67), item 47.

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Granat

of Poland.21 They cannot serve as the basis for the conferral of competence to the extent in which Poland “could not function as a sovereign and democratic state”. The Tribunal expressed the convergence of its reasoning with the position adopted by the Federal Constitutional Court of Germany in the judgment of 12 October 1993 (case 2BvR 2134, 2159/92 Maastricht) and by the Supreme Court of the Kingdom of Denmark in the judgment of 6 April 1998 (case i 361/1997 Carlsen against the Prime Minister of Denmark). In the case concerning the constitutionality of the Treaty of Accession, it was particularly important to refute the claim made by the applicants that Poland would lose its sovereignty, freshly regained after the collapse of the communist regime. The Constitutional Tribunal responded to this claim arguing that the mode of ratification of international treaties under which the conferral of competence from the Polish state organs to “an international organization” or “an international institution” takes place (under Article 90(1) of the Constitution) exceeds the requirements for amending the Constitution in the manner specified in this act (Article 235 of the Constitution). If the ratification of the Treaty of Accession meets the requirements of Article 90(1) of the Constitution, the set of these requirements (e.g. a two-thirds majority of votes for the ratification of the Treaty in each chamber of the parliament, a prohibition on introducing amendments by the Senate to the ratification act, etc.) brings the parliament’s declaration made on the basis of this provision closer to the declaration of the sovereign itself. Given the satisfaction of the relevant formal conditions, no one can argue that the ratification of the European Treaty is due to specific parliamentary majority or a particular government. This is because the sovereign itself speaks through Article 90 of the Constitution. In my opinion, Article 90(1) of the Constitution belongs to the sphere of pouvoir constituant to a greater degree than Article 235 (this is a provision that lays down the requirements for amending the Constitution). This is because it is difficult to find in the Constitution stricter formal requirements than those in Article 90.22 In the judgment no. K 18/04 (concerning the Treaty of Accession of Poland to the EU) and subsequently in the judgment no. K 32/09 (concerning the

21

22

It should be clarified that the Constitution of Poland does not contain the term ‘European Union’, ‘European communities’ or other related to European integration. The terms used in Article 90(1) of the Constitution, i.e. ‘international organization’ and ‘international institution”, include also European structures. Cf. M. Granat, Rozumienie zmiany Konstytucji RP a tożsamość konstytucyjna [Understanding change of the Constitution of Poland versus constitutional identity], in R. Chruściak (ed.) Problemy zmiany Konstytucji [Issues of constitutional change], Wydawnictwo Sejmowe, Warsaw 2017, p. 265.

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Treaty of Lisbon),23 the Constitutional Tribunal defined the relationship between the principle of the supremacy of the Constitution (i.e. the principle of constitutionalism) and the principle of sovereignty of Poland. This is a reasoning which refers to the jurisprudence of other constitutional courts. The Tribunal stated that Poland’s accession to the EU “changes the perspective on the principle of the supremacy of the Constitution, but it does not undermine this principle”.24 It follows therefore that after the accession of Poland to the EU, the principle of sovereignty and the principle of constitutionalism were upheld but their substance underwent modification. The change in question will be illustrated with an example which shows the importance of comparative analysis in the Tribunal’s reasoning. 2.2.1.1 In the judgment concerning the European Arrest Warrant, the Constitutional Tribunal adjudicated on the unconstitutionality of Article 607t(1) of the Code of Criminal Procedure and recommended amending the Constitution in order to resolve the issue of the unconstitutionality of the relevant provision (and to uphold the eaw).25 The principle of the compliance with the binding international law implied the necessity of changing the current law in order to implement the framework directive of the European Council in conformity with the Constitution.26 According to the Tribunal, amending the Constitution has been used for years as an indispensable means of ensuring the effectiveness of the EU law in domestic legal systems of the member states.27 The necessity of constitutional amendment resulting from the recognition of the unconstitutionality of the implementing provision was supported by the example of those EU member states that amended the constitution prior to the European law.28 The principle of the supremacy of the Constitution had to be taken into account in the action of the legislator in the sphere of pouvoir constituant. In the judgment concerning the eaw, the Constitutional Tribunal cited an example of an amendment to the German Basic Law introduced by the law of 27 October 2000. The law was adopted in order to implement the European Council directive 76/207EEC of 9 February 1976 which established the principle of equality of women and men in access to employment and working 23 Cf. otk ZU 2010, no. 9A, item 108, Section 1.3. 24 Ibidem. 25 Cf. the judgment no. P 1/05, otk ZU 2005, no. 4A, item 42. 26 Cf. Section 5.7 of the statement of reasons of the judgment no. P 1/05, otk ZU 2005, no. 4A, item 42. 27 Ibidem. 28 Ibidem.

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c­ onditions. The amendment to the Basic Law was a direct result of the case before the European Court of Justice Tanja Kriel vs. the German State (case C-285/98), which ended with a judgment of 11 January 2000. Following this judgment, Article 12a(4) of the Basic Law was amended. 2.2.1.2 In the judgment no. K 18/04 the issue of conferral of competence of state authorities was resolved by defining the relationship between the principles of sovereignty and constitutionalism in order to provide the legitimacy of Poland’s membership in the EU without pointing to the necessity of amending the Constitution. According to the Tribunal, the perspective on the principle of constitutionalism from the point of view of sovereignty has changed. In the Tribunal’s view, the hierarchy of these principles “has changed the perspective on the principle of the supremacy of the Constitution”. Emphasizing its superiority can endanger “the uniform binding force and application of the EU law (…)”.29 According to the Tribunal, it is possible to resolve the conflict of the constitutional principles under discussion in such a way that the Constitution is superior by itself. Thus, after the accession of Poland to the European Union, the change in the understanding of the principle of constitutionalism was reflected in the adoption of the principle of pro-EU interpretation of the law. This means that the European law has an impact on shaping constitutional concepts. Before the accession, as stated by the Tribunal, the situation was different. The concepts of the Constitution were autonomous in relation to other sources of law. The meaning of particular terms adopted in them could not crucially determine the interpretation of constitutional provisions.30 With regard to pro-EU interpretation of the Constitution, the limits of change in the understanding of constitutional norms are imposed by their “explicit wording” and the possibility of an interpretation ensuring “the minimum of the guaranteeing function” of the Constitution. Before 2004, i.e. before the accession of Poland to the EU, the ‘competition’ between domestic and foreign law was not at stake. According to the reconstruction of the then current state of the law by the Tribunal, the Sejm exercised control over the whole of domestic law. It enacted laws and indirectly, through guidelines, influenced issuing executive acts to statutes. At the top of the sources of law system there was always the Constitution and the provisions

29 30

Cf. the judgment of 24 November 2010, K 32/09, Section 1.3. of the statement of reasons. Cf. the judgment of 27 April 2005, no. P 1/05, otk ZU 2005, no. 4A, item 42.

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of every statute ‘gave way’ to the primacy of the basic law. By contrast, after the accession the system of law under Chapter iii of the Constitution was defined by the Tribunal as “multi-faceted”. The ‘new situation’ consists in the fact that there are two ‘autonomous orders’ which cannot be described using traditional concepts of monism and dualism. Given that legal systems coming from different legislative centres are in force (the statement of reasons of the judgment no. K 18/04), the principle of constitutionalism has taken the form according to which “emphasis on the primacy of the Constitution may not endanger the uniform binding force and application of the EU law, and harmonious performance of duties by Poland as a Member State”.31 Comparative Analysis in Constitutional Review of the Provisions on RENEGADE Aircraft At first glance, the reasoning contained in the judgment of the Constitutional Tribunal seems to refer to a judgment of another court or tribunal. In fact, however, a similar constitutional problem may be examined in a more thorough way. A relevant example may be the judgment of the Constitutional Tribunal of 30 September 2008 (in case no. K 44/07) concerning the RENEGADE aircraft.32 According to Polish law this is a “civil aircraft used for unlawful acts, in particular as a means of aerial terrorist attack”. Under Article 122a of the 2002 Aviation Law, it could be destroyed in accordance with the provisions of this law. 2.3

2.3.1 In Germany, following the terrorist attack in New York on 11 September 2011, the Aviation Security Act of 11 January 2005 was adopted (BGB1, p. 78 Luftsicherheitsgesetz). The purpose of this law was to increase air transport security and to introduce measures of protection against new terrorist threats.33 The most far-reaching provision of this law was Section 14(3), according to which “[t]he direct use of armed force shall only be permissible in the event that circumstances suggest that the aircraft is intended to be used against human life and this is the only means to defend this human life against the current threat”.

31

Cf. the judgment of 11 May 2005, no. K 18/04 and the judgment no. K 32/09 (Section 2.3 of the statement of reasons). 32 Cf. otk ZU 2008, no. 7A, item 126. 33 Cited from References in the case law of the Constitutional Tribunal to the German Basic Law, the case law of the Federal Constitutional Court, German legislation and doctrinal views concerning German law, the Office of the Constitutional Tribunal, the Judicial and Academic Unit, Warsaw 2009, p. 17.

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Granat

This provision was challenged before the Federal Constitutional Court in the mode of constitutional complaint by 6 individuals (including members of the Bundestag). In the judgment of 15 February 2006 no. 1 BvR 357/05, the Federal Constitutional Court adjudicated that this provision is inconsistent with Article 2(2) sentence 1 read in conjunction with Article 87a(2), Article 35(2) and Article 35(3) read in conjunction with Article 1(1) of the Basic Law. The judgment was based on three arguments. Firstly, on the violation of the principle of federalism and the constitutionally defined scope of competence of the Länder. Secondly, on the violation of the scope of action of the German Armed Forces. Thirdly, on the violation of the right to life and the protection of the dignity of the people on board the aircraft (passengers and crew). The Federal Constitutional Court ruled that shooting down a civil aircraft would be constitutionally authorized only if there were only terrorists on board.34 2.3.2 The judgment of the Constitutional Tribunal of 30 September 2008 concerning Article 122a of the Aviation Law recognized the unconstitutionality of this provision and in this respect it resembled the judgment of the Federal Constitutional Court. At the same time, it should be emphasized that it was issued on the basis of different constitutional benchmarks, i.e. the principle of human dignity, the principle of the protection of human life and the principle of the common good. 2.3.2.1 In the statement of reasons, the Constitutional Tribunal carried out a comparative analysis aimed at developing “assessment standards” to be applied to anti-terrorist provisions for the purpose of the judgment. According to the Tribunal, the legal classification of ‘new’ global terrorism in the doctrine of European countries, the United States or Israel is not uniform,35 suggesting the need for this analysis. The analysis was conducted prior to the examination of domestic legislation on the fight against terrorism. The statement of reasons of the judgment no. K 44/07 is an example of one of the widest comparative analyses in the Constitutional Tribunal case law in recent years. The Tribunal examined: (a) the impact of the events of 11 September 2001 on American theory of law. According to the Tribunal, a novelty in this doctrine was that in the state of “war on terror” the administration has the right and the obligation to 34 Ibidem. 35 Cf. otk ZU 2008, no. 7a, item 126, p. 12.

Comparative Analysis

(b) (c) (d) (e) (f) (g)

585

adopt appropriate defensive measures even beyond the limits prescribed by law for ordinary situations, the assessment standard of anti-terrorist provisions in UN documents, the assessment standard of anti-terrorist provisions in the Council of Europe documents, the judgment of the German Federal Constitutional Court of 15 February 2006, regulations of international law, regulations of the European Union law, legal regulations of the Council of Europe system.36

2.3.2.2 The Tribunal treated the examination of the constitutionality of Article 122a of the Aviation Law as a dispute over whose life is more important: people on board an aircraft or people in the vicinity of a potential terrorist attack. Obviously, it can be argued that the Tribunal could decide on the constitutionality of Article 122a of the Aviation Law solely on the basis of Article 2 of the Constitution, i.e. in connection with the claim of the First President of the Supreme Court that the provision is indeterminate. What is the meaning of “a civil aircraft used for unlawful acts” or “if it is required by state security considerations”? In my opinion, the benchmark of Article 2 of the Constitution applied in this way would not provide a sufficient basis for resolving the constitutional problem in question. The ‘life for life’ dispute that emerged on the basis of the norm in question seemed unresolvable. It may also concern more ‘ordinary’ regulations, for example, resolving the question whether a paramedic should help victims of a road accident in a specific order, guided by his or her preference in assessing the chances of survivors. A question therefore arises why in case no. K 44/07 the Tribunal gave priority to the protection of the life of people on board the plane (including the life of terrorists) over the protection of the life of inhabitants of, say, Warsaw or other city? In my opinion, the Tribunal acknowledged that the ‘life for life’ dilemma (and this is how the constitutional problem was defined) cannot be resolved on the basis of only one principle, the principle of human dignity. The value of life was present on both sides and the principle of human dignity could not resolve such a dilemma. The people on board the plane have dignity and the right to save their life just as the city inhabitants. Human dignity does not divide people into ‘guilty ones’ (on board the aircraft which can be shot down) and ‘innocent ones’ (who will be saved 36

Ibidem.

586

Granat

by the commander of the action – nota bene the commander is not on board the aircraft and beyond the potential attack area). Besides, a terrorist also has the right to preserve life.37 As a result, which human beings should be saved? 2.3.3 In the case under discussion, the Tribunal employed the principle of the common good in addition to the principle of human dignity. Under Article 1 of the Constitution “[t]he Republic of Poland shall be the common good of all its citizens”. The Tribunal attributed the common good to a smaller group (people on board the plane). It was assigned to what is individualized here, not to the majority. The value of the common good was manifested in this ruling by ordering the legislator to respect every life, including a group of innocent passengers. A conscious destruction of their lives would undermine the common good. Breaking the rule which prohibits shooting innocent people (even if there are very few of them) would destroy the principle of common good. The common good prevented an ‘economical’ approach to the protection of human life, i.e. if you shoot down some (a small group), then you save others. It also prevented a consideration whether the value of some people’s lives may be subordinated to saving others. The Tribunal stated that the principle of the common good implies that the lives of the minority cannot be sacrificed to save the lives of the majority. In this particular situation, the principle in question specified the meaning of the principle of human dignity and the principle of the protection of life. These principles must act in conjunction with some other principle, e.g. the common good. According to the judgment no. K 44/07, the principle of the common good allows killing a terrorist, but it does not allow killing the passengers. Therefore, the Tribunal gave priority to the protection of the life of the passengers on board the airplane and stated that this protection is a manifestation of the common good. The value of the common good was attributed to their lives. 3 Conclusions The Constitutional Tribunal employs comparative analysis in the statements of reasons of its judgments to a fairly broad extent. Referring to comparative 37

It seems that the Tribunal assumed that if there were only terrorists on board the aircraft used for an unlawful act, it would be legitimate to destroy that aircraft. Earlier, the same assumption was adopted by the Federal Constitutional Court in the judgment of 15 February 2006.

Comparative Analysis

587

arguments in constitutional adjudication seems so established that it raises no objections of legal scholars, including critics of constitutional judiciary. It seems a natural way of judging by a constitutional court. This is because, given the multifaceted character of the legal order in Poland (or in some other country), a constitutional judge faces several systems of norms. When examining a case, he or she must take into account each of these legal systems. At the same time, individual provisions of the substantive law are applied in parallel by several judicial authorities, e.g. by the European Court of Human Rights and by domestic courts. There is no clearly structured hierarchy of these bodies, which facilitates reference to comparative arguments.38 The actual practice of employing comparative analysis by the Constitutional Tribunal is varied. It is difficult to make decisive generalizations based on the current state of research. Even analysts of constitutional jurisprudence admit it.39 It seems that in Polish science of law there is scarcity of more thorough research on the role played by comparative analysis in the interpretation of the provisions of the Constitution (i.e. constitutional benchmarks) or other examined provisions. The same can be said about research on the statements of reasons and dissenting opinions. To a great degree, science of law failed to keep pace with the development of constitutional case law in Poland which took place until 2015. Perhaps, it was the price to pay for the rapid development of contemporary constitutionalism. The use of comparative analysis depends on the specific circumstances of a particular case. As a result, there is no ‘regularity’ in employing the comparative method. Such a judicial practice does not build a model for justifying judgments on the basis of an a priori assumption concerning the i­mportance of comparative arguments.40 Therefore, it might be concluded that the Tribunal’s reference to comparative analysis seems to have an incidental, or even informational, character. However, the majority of these references are thorough and influence the content of the judgment (e.g. the judgments on the supervision over administrative activities of courts or the RENEGADE aircraft). The purpose of conducting a comparative analysis by the Tribunal is to embed its judgments not only in domestic law, but also in a certain legal culture that goes beyond one state. The ruling is thus placed in the supra-­national 38 39 40

Cf. L. Garlicki, op. cit., p. 177. Cf. A. Paprocka, Argument komparatystyczny w orzecznictwie Trybunału Konstytucyjnego [Comparative argument in the case law of the Constitutional Tribunal], Państwo i Prawo, 2017, no. 7, p. 37 onwards. Ibid.

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constitutional order, in the ‘multi-level constitutionalism’ or otherwise named ­contemporary legal space. In this way, the judgment may also acquire a ­universal dimension. Thus, undoubtedly, the use of the comparative method serves to provide a judgment with stronger legitimacy.41 41

Ibid.

The Use of Foreign Legal Materials by the Constitutional Court of the Czech Republic Jana Ondřejková, Kristina Blažková and Jan Chmel 1

Composition, Historical Development, Position Within the Legal System and Type of Judicial Decision

The Constitutional Court of the Czech Republic (hereinafter “the Constitutional Court”) was founded in 1993. With little exaggeration one can say that the comparative inspiration had a significant influence on the institutional design of the Constitutional Court. Following the model of the US Supreme Court, candidates for constitutional judgeships are nominated by the President of the Republic and must obtain the assent of the Senate – the second chamber of the Czech Parliament. The nomination procedure thus diverged from the Constitutional Court’s historical predecessors1 and other Central and Eastern European constitutional courts.2 The powers and competences of the Czech Constitutional Court are similar to those of its German counterpart. A constitutional review in the Czech Republic is based on the centralised model.3 While the ordinary courts may engage in a judicial review of delegated legislation (such as administrative regulations) and refuse to apply them in case of their incompatibility with the statutes or constitutional order, the power to derogate these regulations, as well as to derogate statutes and other general normative acts,4 because of their incompatibility with the constitutional order, is vested solely to the Plenum of the Constitutional Court. Decisions on constitutional complaints, claiming a violation of constitutionally protected fundamental rights of individuals, belong to the Court’s panels, which are composed of three judges. Motions for a constitutional review and 1 Constitutional Court of the Czechoslovak Republic in 1920–1939, Constitutional Court of the Czech and Slovak Federative Republic in 1991–1992. The constitutional court foreseen by the constitutional act No. 143/1968, Coll., on the Czechoslovak federation, was never established. 2 See e.g. Zdeněk Kühn and Jan Kysela, Nomination of Constitutional Justices in Postcommunist Countries: Trial, Error, Conflict in the Czech Republic 2 European Constitutional Law Review 183 (2006). 3 See Víctor Ferreres Comella, Constitutional Courts and Democratic Values: A European Perspective 5–9 (Yale University Press 2009). 4 Such as ordinances, by-laws of local authorities or international treaties prior to their ratification by the Czech Republic.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_024

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constitutional complaints give rise to practically all the decision-making activity of the Constitutional Court. Other proceedings, very rarely used, include the constitutional review of international treaties before their ratification by the Czech Republic, selected types of complaints related to parliamentary elections, competence disputes among the highest state bodies, as well as the impeachment procedure against the President of the Republic upon the request of the Senate.5 Access to the Court is rather open with regard to the varieties of actors entitled to initiate proceedings before the Court. The motion for an abstract constitutional review can be submitted by a group of at least one fifth of the members of the house of Parliament (41 Deputies or 17 Senators), the Head of State, the Government or by the Public Defender of rights (ombudsman). A concrete constitutional review can be initiated by the ordinary court having doubts about the constitutionality of the statute that should be applied in the proceedings before this court. Every individual can file a constitutional complaint against the final decision of ordinary courts. It is important to note that the Constitutional Court does not have any discretion to choose which cases it will hear. However, in less than 10% of cases does it render a judgment on the merits. In the rest of the cases, the Court ends the proceedings with a procedural decision, mostly by refusing the motion as manifestly ill-founded. The Constitutional Court is composed of 15 judges who must be respected legal professionals with at least ten years of practice in law. They come from various professional backgrounds, i.e. ordinary courts and academia, legal practice or politics. For example, the current President of the Court, Pavel Rychetský, served as Minister of Justice prior to his nomination. The Court uses a wide range of arguments, including arguments that are not strictly limited to the text of the Constitution and statutes. The accent on discursiveness and value-oriented adjudication played a role in the struggle of the Constitutional Court with the deep-rooted formalism and textualism of ordinary courts in the 1990s.6 In its case-law it continuously reminds the courts that human rights are values which radiate throughout the whole legal system and all courts must take them into consideration even when applying statutory law.7 5 For a detailed list in English, see http://www.usoud.cz/en/competences/. 6 See Zdeněk Kühn, Význam proměny soudcovské ideologie aplikace práva ve světle ústavní judikatury let 1993–2003, 12 Právní rozhledy 123, 123–129 (2004), Zdeněk Kühn, Aplikace práva soudcem v éře středoevropského komunismu a transformace: analýza příčin postkomunistické právní krize 117–146 (C.H. Beck 2005). 7 The Constitutional Court, 24th Sept. 1998, iii. ÚS 139/98.

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The structure of the Constitutional Court’s decision usually includes headnotes that give a brief overview of the case, reasoning and judgment. The decision itself starts with the ruling (operative part) followed first by the reasoning in which the Court first summarises the statements or the main arguments of the parties involved in a case giving rise to the proceedings. Then, in the second part, the Court gives its own legal opinion on the case and arguments for its ruling. Dissenting and concurring opinions are allowed in all cases. Nevertheless, the judges use this possibility quite rarely: they attach a concurring or dissenting opinion to less than 1% of Constitutional Court’s decisions. In plenary decisions, dissenting is, however, more common, at least one dissenting opinion is attached to 17% of decisions.8 The important role of the Constitutional Court is reinforced by the fact that it interprets the legal effects of its decisions very broadly.9 The Court claims that its decisions are generally binding on all state bodies, including the legislature, whether or not they were directly involved in the concrete proceedings, even in the case of those decisions rendered by the three-judge panels in the proceedings of constitutional complaints. Also, the Constitutional Court couples this binding effect not only with the operative part of the judgment, but with the reasoning as well. In some cases, the Constitutional Court stated that disobedience of its rulings by other public bodies gives rise to claims for damages according to the Act on the liability of the state for damages incurred by an unlawful decision or an incorrect official procedure or even to the state liability for legislative damage.10 8 9

10

Jan Grinc, Odlišná stanoviska soudců Ústavního soudu České republiky in Jan Kysela et al., Jak se píše o soudech a soudcích: soudní moc v mezioborové perspektivě 69–88 (Leges 2012). Art. 89 para. 2 of the Czech Constitution “Enforceable decisions of the Constitutional Court are binding on all authorities and persons.” has two different doctrinal readings: The commentary written by the authors connected to the Constitutional Court claims that so called “decisive reasons” pronounced by the Court in all types of meritory decisions of the Court are generally binding (see Pavel Rychetský et al., Ústava České republiky. Ústavní zákon o bezpečnosti České republiky. Komentář 929 (Wolters Kluwer 2015). The other leading commentaries distinguish among legal force, binding effect and precedential effect with regard to different public authorities and ordinary courts, and also differentiate between the Constitutional Court decisions rendered in constitutional review and decisions in constitutional complaints. See e.g. Vladimír Sládeček et al., Ústava České republiky. Komentář 1018–1027 (C.H. Beck 2016). Act No. 82/1998 Coll., on Liability for Damage Caused by an Unlawful Decision or ­Incorrect Administrative Proceedings. See also Pavel Holländer, Die Staatshaftung fiir „Legislatives Unrecht“ oder eine postmoderne Verwechslung der rechtlichen und politischen Verantwortlichkeit, in Luboš Tichý et al., Odpovědnost státu za legislativní újmu. Staatshaftung für legislative Unrecht 67–76 (Univerzita Karlova 2012).

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Last, but not least, the Analytic Department of the Constitutional Court enjoys a very strong reputation11 for providing comparative analyses for the Court’s judges upon their request. The Analytic Department12 was set up in 2007 and the analysis of foreign law is among its main tasks, together with the indexing of the Court’s decisions for the web database of the Constitutional Court. From the 2007 through today, the department has provided the judges with about 250 materials concerning foreign law. Most of those are comparative analyses requested by the judges for the purposes of the Court’s decision making, while several materials were intended for judge’s meetings or speeches or they were concerned only with domestic law.13 To acquire information needed for analyzing foreign law, the Analytic Department makes good use of its bilateral contacts with other European constitutional courts – chiefly the German Federal Constitutional Court, and the Constitutional Courts of Slovakia, Slovenia, Austria, Hungary and Poland. Valuable information can also be obtained through the platform provided by the Joint Council on Constitutional Justice of the Venice Commission, which enables the Analytic Department to ask other members of the council for detailed information about their law. Seeking to enable inter-judicial dialogue, the Constitutional Court publishes, in an English translation, those decisions considered to be the most important. 2

Use of the International Law and Foreign Legal Materials by the Czech Constitutional Court: An Empirical Analysis

2.1 Methodology In this text, we shall focus in detail on the use of foreign legal materials by the Constitutional Court and we will include only a few remarks on the use of international law. We believe that the non-mandatory use of foreign legal materials is very informative by itself regarding the nature of the Court’s legal argumentation. By foreign legal materials we mean any foreign states’ legislation, decisions of foreign states’ courts or foreign legal scholarship. In order to achieve a thorough image of the use of foreign legal materials by the Constitutional Court, we attempted to find and analyse most of the cases, in 11 12 13

Interview with the serving constitutional judge Kateřina Šimáčková, 25th Mar. 2017, Brno. Interview with the Secretary General of the Constitutional Court Ivo Pospíšil, 19th Apr. 2017 and information provided by Ľubomír Majerčík, head of the Analytic Department of the Constitutional Court, via e-mail, 19th Apr. 2017. Interview with the Secretary General of the Constitutional Court Ivo Pospíšil, 19th Apr. 2017.

The Use of Foreign Legal Materials

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which the Court explicitly referred to such materials (excluding the references to the European Convention on Human Rights and the case law of the European Court of Human Rights, which would significantly multiply this number – see Section 2.2 below). Using relevant keywords we identified and analysed 376 Constitutional Court decisions, issued from 15th July 1993, when the Court began its work, to 31st December 2016, that contain one or more references to foreign legislative materials, case law or scholarship referring to foreign laws or practices. In addition to that, we interviewed several constitutional judges and the Secretary General of the Court about these issues in order to find out when and under what circumstances judges consider the references to foreign legal materials as fruitful and how they use them.14 Our methodology combines a quantitative and qualitative approach: We include some rough statistics based on the analysis of the identified 376 decisions in the text. However, we are aware of the limits of the statistical method: It may have happened that using the keywords search we missed out on some of the decisions, especially those referring to foreign legal scholarship, if it was cited only to illuminate an abstract concept or legal institute, but without the explicit reference to a concrete foreign law or judicial decision. This fact, together with a relatively low number of the analysed decisions, results in a limited statistical relevance of our findings. That is why we rely more on the qualitative method. Thus, most of the text is based on our observations that came out of reading the decisions that refer to foreign sources, on our knowledge of the Czech legal environment and scholarship and last, but not least, on the results of the above mentioned interviews. 2.2 Use of the International Law The application of the sources of international law binding for the Czech Republic forms the standard part of the Constitutional Court’s case law. Already in 1991, during the former Czecho-Slovak Federative Republic, the legislature diverged from the previous dualistic approach to international law in favour of a monistic one with regard to the international human rights treaties, ratified with the previous consent of the Parliament. These were incorporated into the national legal system and awarded primacy in application over conflicting statutory provisions of national law. In 2002, the key provision of the Czech 14

For general remarks on the use of foreign sources by the constitutional courts see also Gábor Halmai, The Use of Foreign Law in Constitutional Interpretation, in Michel Rosenfeld and András Sajó (eds.) Oxford Handbook of Comparative Constitutional Law 1328–48 (Oxford University Press, 2000) G. Halmai mentions, for example, the pedagogical impulses (learning from the established democracies), filling the vacuum in domestic case law or jurisprudence or epistemic alliances based on close legal traditions.

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Constitution with regard to international law, Art. 10, extended this status to all binding international treaties ratified with the previous approval by the Parliament. Other sources of international law must also be given due regard by the Constitutional Court, since Art. 1 para. 2 of the Constitution states that the Czech Republic complies with its obligations under international law, which includes also the international customary law, international treaties falling outside the above mentioned Art. 10 of the Czech Constitution, the decisions of the international courts as well as binding decisions of the international organisations. These sources, however, do not form part of the legal order of the Czech Republic and do not enjoy precedence over conflicting national law, according to the Czech Constitution. They can nevertheless be important in the process of the so-called interpretation in conformity with the international obligations of the Czech Republic. By far the most cited international law sources are the European Convention on Human Rights and the European Court of Human Rights’ case law – there are thousands of references to those two sources in the decisions of the Constitutional Court.15 Also, other international human rights treaties, such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the European Social Charter, the European Charter of Local Self-Government or the Convention on the Rights of the Child are often cited. In 2001 the Constitutional Court even stated that the international human rights treaties form part of the Czech constitutional order. This means that they are considered to be a part of the Czech polylegal constitution. Thus the Constitutional Court assesses the constitutionality of legislation with regard to these human rights treaties with any possible derogative consequences for conflicting national provisions.16 The Constitutional Court therefore considers application of the human rights treaties to be its constitutional duty. Other references to the international law can, of course, be found in cases concerning private international law issues. 2.3 General Remarks on the Use of Foreign Legal Materials Going through the above-mentioned statistics in more detail, we found 376 Constitutional Court decisions referring to foreign legal sources, which is 15

16

The information was obtained from Nalus database – the database of judgments and other decisions of the Constitutional Court. Available at http://nalus.usoud.cz. See also Ladislav Vyhnánek, Judikatura v ústavním právu, in Michal Bobek and Zdeněk Kühn, Judikatura a právní argumentace 350–351 (2d ed. Auditorium, 2013). The Constitutional Court, Pl. ÚS 36/01, 25th June 2002, “Bankruptcy Trustee”, available in English at: http://www.usoud.cz/en/decisions/20020625-pl-us-3601-bankruptcy-trustee-1/.

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0,57% of the decisions issued by the Constitutional Court through the 31st of December, 2016, in total. However, when assessing these statistics, it is necessary to remind the fact, that only a minority (6,8%)17 of the Constitutional Court’s decisions are the decisions on the merits that contain a thorough reasoning. Most of the decisions only reject constitutional complaints as manifestly ill-founded or due to procedural reasons. Compared to other Czech high courts, the Constitutional Court seems to be quite active in using foreign legal materials and especially foreign case law. For example, M. Bobek found, in his detailed study of comparative reasoning by the European supreme courts, that in the years 2001–2005 the Constitutional Court referred to foreign law approximately twice as often as the Czech Supreme Administrative Court. The Czech Supreme Court almost never uses foreign legal materials in the reasoning of its decisions.18 According to M. Bobek, the reason for this difference between the Czech courts lies in the fact that the Supreme Court is a more traditional institution, composed of career judges rooted in the positivistic and textualistic tradition. The Constitutional Court and Czech Supreme Administrative Court, on the other hand, are much newer institutions, founded after the Velvet revolution in 1989, composed partly of academics and, as such, are more open to a wider scale of arguments and to a discursive style of reasoning in their decisions.19 At the same time, it must be noted that, in an international comparison, the Czech Constitutional Court is not among the most active users of foreign law. Especially in the common law area there are high courts that make reference to foreign law in more than half of their decisions, such as the Namibian Supreme Court, the South African Constitutional Court or the High Court of Australia. On the other hand, it is not so ‘common’ to refer to foreign law amongst the European constitutional courts that belong to the civil law tradition.20 The frequency of the use of foreign law by the Constitutional Court thus fits this tradition well. 17 18 19

20

Calculated on the basis of data contained in the database of the Constitutional Court’s case-law, http://nalus.usoud.cz/. See Michal Bobek, Comparative Reasoning in European Supreme Courts 157–168 (Oxford University Press 2013). Ibid, p. 172. The Supreme Administrative Court of the Czech Republic was foreseen already in the 1993 Constitution, but was not established until 2003, after the previous legislation concerning the judicial review of administrative acts was declared unconstitutional and abolished by the Constitutional Court (decision Pl. ÚS 16/99 of 27th June 2001, the effects of which were delayed until 31st Dec. 2002), which forced the legislature to enact new legislation and to establish the Supreme Administrative Court. See Tania Groppi and Marie-Claire Ponthoreau (eds.) The Use of Foreign Precedents by Constitutional Judges 411–416 (Hart Publishing 2013).

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Our analysis of the Constitutional Court’s decisions, as well as our interviews, showed that there are notable differences between the individual judges of the Constitutional Court in their approach to the usefulness of foreign law, especially when drafting the decisions of the Court as judge rapporteur. About one quarter of the judges who served as Constitutional Court judges since 1993 have never referred to foreign sources or have done so only in one or two cases at most. On the other hand, most of the judges sometimes look for foreign inspiration and two of the judges (Kateřina Šimáčková and Eliška Wagnerová) refer to foreign sources in more than 2% of their decisions. Several of the judges who were interviewed claimed that they actively kept an overview of the current development in the field of constitutional law abroad and therefore found it easy and desirable to use foreign law in the Court’s decision-making.21 It may be that some other judges do not generally consider foreign law (other than the above mentioned international law) to be especially relevant for the national legal discourse. Their reserved approach may also be based on the fact that an argument by a foreign legal source, standing alone, can never be decisive. 2.4 Development Over Time First, it is important to highlight the fact that referencing to foreign legal materials can be considered a rising trend in the Constitutional Court’s decisionmaking. In the 1990’s it was extremely rare for the Czech Constitutional Court to explicitly mention any foreign legal materials – the Court did so approximately one or two times a year. Nowadays, however, such references are quite frequently used in the Court’s reasoning in more difficult or controversial cases.22 For example, in 2016 there were 45 decisions that included a reference to foreign legal materials. Still, it must be noted that out of 4.349 decisions issued by the Court in 2016, the number remains very low (around 1%). Although the references to foreign legal materials by courts are sometimes seen as one of the tools of a democratic transition,23 the Constitutional Court did not seem to have openly used this tool very much during the first years of its existence. Thus, during the first eight years of its operation, between 1993 and 21

Interview with the former constitutional judge Eliška Wagnerová, 26th Jan. 2017, Prague, interview with the serving constitutional judge Kateřina Šimáčková, 25th Mar. 2017, Brno. Eliška Wagnerová, (constitutional judge 2002–2012) stated that the Czech Republic needs foreign inspiration in constitutional adjudication, because other countries have more genuine experience that led them to enshrine basic human rights into their constitution, as well as more experience with human rights adjudication. 22 See Section 2.6 below for the different types of the use of foreign law. 23 Bobek, supra note 18, at 224.

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2000, it explicitly referred to foreign materials only 17 times in total (in 0,16% of its decisions). The Court repeatedly did so in high profile cases, such as in its very first decision dealing with a law declaring the illegality of the communist regime,24 decisions concerning political parties financing25 or the criminalization of repeated refusals of military service.26 National scholarship in regard to foreign law was scarce during the 1990s and thus it was less often taken into account as a relevant legal argument. Regard must be also given to the fact that the Court did not initially possess the necessary technical equipment27 nor the personnel and network of contacts that would facilitate the easy and efficient access to foreign materials. Also the decisions of the Constitutional Court were shorter and less reasoned, which could lead to tacit inspiration from abroad. Over the following years, from 2001 to 2004, the Constitutional Court started to use foreign legal materials more frequently. Statistically speaking, it did so in roughly 8 cases a year on average (0.39% of decisions). There are several reasons to this. In 2001 and 2002, years that were politically charged due to a previous controversial agreement between the minority government and the opposition, the Court decided several high-profile cases with a strong political impact. It circumscribed some of the efforts of the government of the then prime minister, Miloš Zeman, to extend its powers. For example, the Court annulled a controversial reform of the electoral system carried through by the government28 and a law enabling the state to control the establishment of ecclesiastical organisations.29 Along these same lines, it upheld the positions of the Senate and the President of the Republic, Václav Havel, in their disputes with the Chamber of Deputies and the Government.30 These decisions were based on a thorough reasoning, including comparative arguments. 24 25 26 27 28 29 30

The Constitutional Court, 21st Dec. 1993, Pl.ÚS 19/93, Lawlessness, available in English at: https://www.usoud.cz/en/decisions/19931221-pl-us-1993-lawlessness-1/. The Constitutional Court, 18th Oct. 1995, Pl.ÚS 26/94, or 13th Oct. 1999, Pl.ÚS 30/98, Election Contribution, available in English at: https://www.usoud.cz/en/decisions/19991013-pl-us -3098-election-contribution-1/. The Constitutional Court, 2nd June 1999, Pl. ÚS 18/98. Interview with Eliška Wagnerová, 26th Jan. 2017, Prague, interview with the former constitutional judge Miloslav Výborný, 22nd Mar. 2017, Brno. The Constitutional Court, 21st Jan. 2001, Pl.ÚS 42/00, Elections Act, available in English at: https://www.usoud.cz/en/decisions/20010124-pl-us-4200-elections-act-1/. The Constitutional Court, 27th Nov. 2002, Pl.ÚS 6/02, Religious Freedom, available in English at: https://www.usoud.cz/en/decisions/20021127-pl-us-602-religious-freedom-1/. The Constitutional Court, 20th June 2001, Pl.ÚS 14/01, Czech National Bank, available in English at: https://www.usoud.cz/en/decisions/20010620-pl-us-1401-czech-nationalbank-1/, or 12th Feb. 2002, Pl.ÚS 21/01, Budget Case, available in English at: https://www .usoud.cz/en/decisions/20020212-pl-us-2101-budget-case-1/.

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Another reason for the expansion of comparative reasoning in the Constitutional Court’s case law lies in the fact that the Czech Republic had been preparing for the accession to the EU, which took place on 1st May 2004. In 2001, the Czech Constitution was amended, opening the Czech legal system to international law. The amendment, as well as the accession procedure, also served as a catalyst for a more profound interest as well as debates on “international” topics in the years 2001–2004 in the Czech legal community. This led to the questioning of long-observed values and paradigms by the new system of European norms,31 and so gradually it became much more common to “look abroad”. Also, the Constitutional Court had to decide more often in cases with a EU or international dimension, where the referencing to foreign law might have not been strictly necessary, but was considered appropriate.32 In 2005, after the accession of the Czech Republic to the EU, the Constitutional Court began to refer to foreign legal materials even more frequently. During the years from 2005 to 2016, it did so in 27 decisions a year on average (in 0,71% of its decisions, twice as often as in the previous period). The membership in the EU might have influenced the Court in using foreign legal materials, but the influence was probably both direct and indirect. There were several dozen cases concerning the EU law or other problems with some kind of international element, in which the Court used foreign legal materials. This includes cases concerning the institutional position of the Court with regard to the EU law,33 the constitutionality of the European Arrest Warrant,34 the question of the accordance of national legal norms with the EU law,35 or the ­connection of the court’s duty to refer a question for a preliminary ruling to the Court of 31 32

33 34 35

Zdeněk Kühn, Comparative Law in Central and Eastern Europe, in Reinhard Zimmerman and Mathias Reimann (eds.), The Oxford Handbook of Comparative Law 226 (Oxford University Press 2006). See for example the Constitutional Court, 16th Oct.2001, Pl.ÚS 5/01, Milk Quota Regulation, available in English at: https://www.usoud.cz/en/decisions/20011016-pl-us-501-milk -quota-regulation-1/, the Constitutional Court, 11th June 2003, Pl.ÚS 40/02, Collective­ Bargaining Agreement, available in English at: https://www.usoud.cz/en/decisions/ 20030611-pl-us-4002-collective-bargaining-agreement-1/, or the Constitutional Court, 18th Aug. 2004, Pl. ÚS 7/03, Employer’s Obligatory Insurance. The Constitutional Court, 8th Mar. 2006, Pl.ÚS 50/04, Sugar Quotas iii, available in English at: https://www.usoud.cz/en/decisions/20060308-pl-us-5004-sugar-quotas-iii-1/. The Constitutional Court, 3rd May 2006, Pl.ÚS 66/04, European Arrest Warrant, available in English at: https://www.usoud.cz/en/decisions/20060503-pl-us-6604-european-arrest -warrant-1/. The Constitutional Court, 2nd Dec. 2008, Pl.ÚS 12/08, Non-Applicability of Contested Provision, available in English at: https://www.usoud.cz/en/decisions/20081202-pl-us -1208-non-applicability-of-contested-provision-1/.

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Justice of the European Union and the right to a lawful judge.36 Nevertheless, most of the cases citing foreign law do not have these EU dimensions. A connection can therefore be seen between the gradual opening up of the Czech legal discourse to foreign law and the frequency of the Constitutional Court’s explicit reference to these materials in its case law. Equally important seems to be the technological development, as well as the strengthening of the network of international contacts of the Court and the establishment of the Analytic Department of the Constitutional Court mentioned above, which facilitated a reliable access to foreign legal materials. 2.5 Types of Foreign Legal Materials According to our research, with regard to the particular types of foreign sources cited by the Constitutional Court, the most cited type is foreign case law (it is cited in about 60% of the cases in the above described sample of decisions found with the help of keywords), followed by statutory and constitutional law and scholarship (both approximately 45% of the cases in the sample). Foreign administrative regulations are cited only very exceptionally. There is also a great difference among the countries of origin of the foreign sources used. By far the most often cited by the Constitutional Court are German legal materials (they appear in approximately 60% of the cases in the sample), followed by Austrian (approximately 20%), the US, Slovak, French, Polish and UK materials (each around 10%). Other countries whose legal materials were cited multiple times are Belgium, Denmark, Finland, Italy, Latvia, the Netherlands, Norway, Portugal, Slovenia, Spain and Sweden. It is apparent that, with the notable exception of the US materials, the Constitutional Court focuses on materials from the European and mostly West-European countries. Only in rare individual cases has the Constitutional Court cited non-European legal materials from Australia, Argentina, Canada, Russia and South Africa. It should be noted that the clear dominance of the German sources in the comparative reasoning of the Constitutional Court led some Czech scholars to ask (with a little exaggeration), whether the Czech Republic was not becoming a “German legal colony”.37 2.5.1 Case Law Case law of the foreign constitutional (but very seldom ordinary) courts can be considered to be a “favourite” foreign source for the Constitutional Court. 36 37

The Constitutional Court, 30th June 2008, IV.ÚS 154/08, the Constitutional Court, 11th Sept. 2012, II.ÚS 2504/10 and others. See Bobek, supra note 18, at 197.

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Nevertheless, it is quite rare for the Constitutional Court to discuss foreign decisions in great detail. References to foreign case law usually take a simple form: the Constitutional Court usually states a particular legal opinion and after that only mentions the case number of an individual decision by a foreign court in brackets. This way, the foreign case law seems to be used in a similar manner to the case law of the European Court of Human Rights or previous decisions of the Constitutional Court itself: at first sight it seems as if the foreign decision had a binding authority over the respective matter or as if it even was used as a source of law. Nevertheless, the described manner of using foreign case law can also result from the fact that judges sometimes use foreign case law in an “ornamental” way:38 to make their legal opinion look better, simply stated. Only in quite exceptional cases does the Constitutional Court discuss the opinion of a foreign court in greater length. However, even in cases where the Constitutional Court seems (to the eyes of an external observer) to have relied strongly on an inspiration from foreign case law, the source is usually mentioned only as a brief reference. For example, this is the case with decision Pl.ÚS 50/04, where the Constitutional Court first had to establish its attitude to EU law and came to some conclusions similar to the decision of the German Federal Constitutional Court known as “Solange ii”,39 which is, however, mentioned only in the above described “by-the-way” manner together with other most famous national courts decisions dealing with the principle of primacy of European law. Recourse to foreign case-law usually consists of a reference to one case for one argument. It is extremely rare that the Court would carry out a comparison of several cases concerning one topic. In the few instances when the Constitutional Court did compare an approach of more courts to one topic, it usually did so in order to show that a domestic practice is somehow problematic or to achieve a change in such a practice: for example, in decision i. ÚS 85/04 the Court argued for a controversial conclusion whereby a domestic law regarding compensation of pecuniary damages should be applied also to compensation of non-pecuniary damages in some cases. To substitute for a lack of support in domestic sources, the Court referred to German, Greek, Dutch and Danish case law (see further about the problem of “cherry-picking”). One of the very few examples where the Constitutional Court discussed the case law of more than one foreign court, and described the foreign court’s 38 39

Ulrich Drobnig and Sjef van Erp, (eds.). The Use of Comparative Law by Courts 18 (Kluwer Law International 1999). The Federal Constitutional Court of Germany, 22nd Oct. 1986, 2 BvR 197/83. In fact the Czech Constitutional Court also named its decision “Solange” in Czech.

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opinions in a more detailed way, was probably the most legally and politically controversial case Pl. ÚS 27/09, where the Czech Constitutional Court derogated a constitutional act shortening the election term of the Chamber of Deputies adopted by the Parliament as unconstitutional (as it failed to meet the conditions for constitutional amendments in the view of the Constitutional Court).40 A variety of foreign sources were used in connection with two points of the reasoning. First, for an unamendable core of the constitution, the comparison with German and Austrian constitutions and constitutional doctrines was made. In both cases this was followed by the quotation of the decisions of the German and Austrian constitutional courts. However, missing from this analysis was the fact that the German Federal Constitutional Court had never actually struck down a constitutional act, and the situation in Austria was slightly different, because this Czech one-purpose constitutional act was considered to be a solution to a political deadlock, by summoning up new parliamentary elections, and not an attempt to circumvent the constitutional review.41 Similarly, when reasoning against the ad hoc constitutional act, the Constitutional Court outlined the history of the German doctrinal debate in the early 20th century merely to finish with a statement that the ad hoc (one purpose) constitutional acts that neither amend nor supplement the Constitution are forbidden in other European democracies as well. And without any further explanations, a reference is then made to the book “Der Verfassungskern: Gesamtänderung und Durchbrechung der Verfassung im Lichte der Theorie, Rechtsprechung und europäischen Verfassungskultur” by P. Pernthaler. Most citations of foreign case law refer to German cases (to quantify: two thirds of the citations of case law), and of these, most often to the Federal Constitutional Court of Germany, which seems to be by far the most significant foreign authority for the Constitutional Court.42 For example, judge Eliška Wagnerová stated that she regarded the German Federal Constitutional Court’s case law the most suitable source of inspiration, since it is considered

40 41

42

The decision had the effect of postponing the already announced elections to the Chamber of Deputies until the original regular term approximately eight months later, which contributed to the change in the Czech political party system. Jan Grinc, Přezkum ústavních zákonů v Německu a Rakousku, xix Jurisprudence 31–37 (2010). Also the dissenting opinion of judge Jan Musil to the Constitutional Court decision of 10th Sept. 2009, Pl. ÚS 27/09, available in English at: https://www.usoud.cz/en/ decisions/20090910-pl-us-2709-constitutional-act-on-shortening-the-term-of-office-ofthe-chamber-of-de-1/. See also Ladislav Vyhnánek, Judikatura v ústavním právu, in Michal Bobek and Zdeněk Kühn, Judikatura a právní argumentace 349 (2d ed. Auditorium, 2013).

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to be “top-class” in the field of constitutional law.43 Also the case-law of the Constitutional Court of Austria and the Supreme Court of the United States were mentioned more than ten times by the Constitutional Court. References to other courts appear much more rarely in the Constitutional Court’s decisions. For example, only several times has the Court referred to Slovakian, French, British or Dutch courts. The case law of the German Federal Constitutional Court plays an important inspirational role, not only for the judges of the Czech Constitutional Court, but also for the applicants who refer to the German case law hoping for obtaining a similar outcome in their cases as well. It is then very interesting to compare whether the Czech Constitutional Court deals with these foreign decisions in its own reasoning when it is heading to a different outcome than its German counterpart. In the case of a constitutional review of the 5% threshold in the European Parliament elections,44 the Supreme Administrative Court, the petitioner in the case, pointed out that the German Federal Constitutional Court had found both the 5% threshold and the 3% threshold unconstitutional.45 The Constitutional Court, however, found the threshold constitutional and only mentioned the decisions in a summary fashion in the paragraph including a comparative overview. The Court did not explain why it reached a different conclusion from the German Federal Constitutional Court. Without claiming that the Court has to explain in each case why it does not follow a certain judgment of a foreign court, we believe that, in this specific case, the lack of a thorough reference to the mentioned judgments significantly reduces the persuasiveness of the decision. The Czech Constitutional Court also missed an exceptional opportunity to engage in a very interesting inter institutional dialogue about basic constitutional concepts, such as the equality of voting power and proportionality.46 2.5.2 Statutory Law and Administrative Acts References to foreign statutory law (or very exceptionally administrative acts) are slightly less common in the Constitutional Court’s decisions, compared to 43 44 45 46

Interview with Eliška Wagnerová, 26th Jan. 2017, Prague. The Constitutional Court, 19th May 2015, Pl. ÚS 14/14, Constitutionality of 5 per cent Threshold Clause, available in English at: https://www.usoud.cz/en/decisions/ 20150519-pl-us-1414-constitutionality-of-5-per-cent-threshold-clause-1/. See the Federal Constitutional Court of Germany, 9th Nov. 2011, 2 BvC 4/10, and 26th Feb. 2014, 2 BvE 2/13. Hubert Smekal and Ladislav Vyhnánek, Equal voting power under scrutiny: Czech Constitutional Court on the 5% threshold in the 2014 European Parliament Elections, 12 European Constitutional Law Review 149 (2016).

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references to foreign case law. However, the form of the references differs significantly: when the Court refers to foreign statutory law, it quite often carries out a real comparative analysis, or at least mentions the law of more than only one foreign country (at least two countries are mentioned in about half of the references to foreign statutory law). When referring to statutory law of only one particular country, again, the Constitutional Court usually cites German statutes as well as German Basic Law. Nevertheless, the sources for a comparative analysis are naturally much richer: in several cases, the court compared German and Austrian statutory law. Also Slovakian and Polish legislation is often referred to. In more than twenty cases – usually controversial or difficult ones – the Court included a relatively rich comparative analysis of statutory law containing at least five countries. In such cases, the Court most often includes EU countries in its analysis; several times also the US law was included in such an analysis. On rare occasions, the Constitutional Court seeks inspiration from other more distant countries, like Canada, South Africa, or South American countries. If the judge rapporteur – or exceptionally the whole panel or Plenum – ­decides to use a more complex comparative analysis, they usually ask the Analytic Department of the Constitutional Court to find out how the relevant countries deal with a certain institute. The Analytic Department bases its analysis on the statutory law of the countries examined, but also provides judges with information about the relevant case law, if such there is.47 However, only a smaller part of the analyses provided by the Analytic Department is in the end directly used in the text of the Constitutional Court’s reasoning of its decisions.48 Some serve as an inspiration for the judge rapporteur only, others are dropped during the plenary discussions as unnecessary. For example, when the Court dealt with the case of adoption by same sex partners living in a civil partnership,49 a comparative analysis was prepared by the Analytic Department, but in the end it was taken out of the final draft of the decision – allegedly because the judges considered the analysis to be unimportant.50 47 48 49

50

Information provided by Ivo Pospíšil, the Secretary General of the Constitutional Court, on 19th Apr. 2017. Ivo Pospíšil, the Secretary General of the court and former head of the Analytic Department, estimates, that only about one fifth of the materials of the Analytic Department is directly used in the reasoning. The Constitutional Court, 14th June 2016, Pl.ÚS 7/15, Civil Partnership as Preclusion to Individual Adoption of a Child, available in English at: https://www.usoud.cz/en/ decisions/20160614-pl-us-715-civil-partnership-as-preclusion-to-individual-adoption-ofa-child/. Interview with the serving constitutional judge Vojtěch Šimíček, 27th Jan. 2017.

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Its importance in the drafting of the decision can be indirectly deduced only from the concurring and dissenting opinions. The influence of the foreign statutory law on the Constitutional Court’s decision-making thus may be more significant than it appears from the Court’s reasoning alone. Study of the foreign statutory law, as with case law, can serve as an inspiration or as a strong argumentative tool. Another interesting difference can be observed: while the choice of a foreign judicial decision seems to be influenced by the most influential courts, whose reasoning could add weight to the arguments of the Czech Constitutional Court as well, foreign statutory law is cited either because of similar legislative solutions to a problem or due to similar legal and political history. Therefore, the comparative analyses of statutory law also play another role: they are used to assess whether the domestic legislation or legal practice can be considered as unexceptional when compared with other countries. Foreign statutory law and administrative regulations can also play an explicit role in the Constitutional Court reasoning, when the Court assesses the existence of less restrictive means in the second step of the proportionality test. For example, an analysis of foreign statutory law had a significant impact on the final ruling in a case decided in 1998 concerning financing of the political parties. The Constitutional Court abolished the statutory provision that required the political parties to gain at least 3% of valid votes in the parliamentary election in order to be eligible for state financial contribution on electoral costs.51 In its decision, the Court referred to the practice of other European countries and concluded that the use of a percentage threshold for obtaining a financial contribution does not constitute an exceptional measure. However, this threshold should be assessed in the context of other limits and requirements that the (small) political parties face in an electoral system regulation, such as a duty to pay non-returnable election deposits or a 5% election threshold.52 Overall, the Constitutional Court concluded that in the Czech Republic there is the accumulation of economic barriers to the development of the participation of small parties in elections, which has no analogy in any of the European Union countries with a proportional representation election system. 51 52

The Constitutional Court, 13th Oct. 1999, Pl. ÚS 30/98, Election Contribution, available in English at: http://www.usoud.cz/en/decisions/19991013-pl-us-3098-election-contribution/. Here, the Constitutional Court also quoted extensively from the decisions of the Federal Constitutional Court of Germany and mentioned a decision of the Conseil Constitutional that also abolished the then threshold required for obtaining state contribution as being too demanding and detrimental to small political parties.

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This fact constituted one of the key arguments for the Constitutional Court’s annulment decision. On the other hand, when the Constitutional Court was asked about the constitutionality of a statutory provision enabling wide access to the archives of the former Czechoslovak communist security services, in the light of personal data protection, the Court devoted, in its decision of 2016,53 approximately three pages to the description of the approach of other European states with a totalitarian historical experience (Germany, Poland, Austria, Slovakia, Slovenia, Hungary, Spain and the Ukraine) and observed that the Czech legislation offers the most open access to these materials. However, the Court concluded that the acontextual statutory comparison disregarding the nature and duration of the use of instruments of persecution of the totalitarian regime opponents can be misleading and subsequently the majority of the judges did not explicitly refer to this comparison in their reasoning. The existence of more considerate legislation in other countries was nevertheless one of the arguments of the concurring judges why the proportionality analysis should have been carried out more elaborately in the decision of the Court. 2.5.3 Legal Scholarship The Constitutional Court uses the references to legal scholarship as a common component in the reasoning of its decisions.54 However, the Court seems to strongly prefer domestic scholarly texts: while Czech publications – most often legal commentaries, frequently also articles from domestic legal journals – are cited in more than one thousand decisions,55 we found slightly more than one hundred decisions containing references to foreign language publications. Even then, they fulfil only subsidiary functions in the Court’s reasoning. This does not mean that the judges are not familiar with foreign literature or that they do not consider it in the process of decision making. Many judges come from an academic background, and they show thorough knowledge of foreign literature in their own scholarly works. Some others explicitly stated, 53

54 55

The Constitutional Court, 20th Dec. 2016, Pl.ÚS 3/14, Access to Archival Records of the Former Security Services and Protection of Personal Data, available in English at: https://www.usoud.cz/en/decisions/20161220-pl-us-314-access-to-archival-records-ofthe-former-security-services-and-protecti/. There is no statutory regulation in the Czech law regarding materials (e.g. scholarship literature) that cannot be referred to in the judicial reasoning. Ladislav Vyhnánek found about 1 700 such references to domestic scholarly works using a keyword search for names of Czech legal publishing houses in 2013. See Ladislav Vyhnánek, Judikatura v ústavním právu, in Michal Bobek and Zdeněk Kühn, Judikatura a právní argumentace 349 (2d ed. Auditorium, 2013).

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in interviews, that they try to maintain an active overview of foreign legal literature and case law.56 The Constitutional Court also possesses a rich library, containing several thousand foreign publications, mostly in English and German, and, to a lesser extent, in French. Several basic types of foreign doctrine citations can be identified: first, the Court sometimes refers to a scholarly comparative analysis of statutory or constitutional law regarding the question in hand. If there is such a “ready-made” analysis, it naturally makes it much easier to use it for its decision making without having to carry out a thorough research. For example, in a thorough decision concerning the duty of the Czech state to provide information about the membership of judges in the former communist party57 the Court referred to a scholarly analysis of Freedom of Expression and the Criticism of Judges in the European Countries edited by M.K. Addo, without carrying out its own analysis. Similarly, in decision I.ÚS 425/16,58 the Court argued that it is not unusual in other European states to admit using new arguments in an appeal in re asylum procedures, and instead of researching the relevant statutes and case law it simply referred to some material developed by the UN Refugee Agency. Second, the Court sometimes refers to foreign legal scholarship to show that there is a shared set of values among liberal democracies or a shared problem, already thoroughly discussed in foreign literature, such as the issue of the authority of the Constitutional Courts to declare a constitutional amendment unconstitutional in the Pl. ÚS 27/09 case (see Section 2.5.1). The Constitutional judges also employ quotations from foreign literature to enlighten abstract concepts such as human dignity.59 In other cases, abundant legal scholarship references are clearly driven by detailed and comparatively reasoned constitutional complaints, which are then addressed by the Court in its own reasoning.60

56 57 58 59

60

Ondřej Kundra, We have the world which we deserve. Interview with Kateřina Šimáčková, Respekt, 5th Aug. 2017, No. 32/2017; Interview with Eliška Wagnerová, 26th Jan. 2017, Prague. The Constitutional Court, 15th Nov. 2010, I.ÚS 517/10, Provision of information on judges’ membership in the Communist Party. The Constitutional Court, 12th Apr. 2016, I.ÚS 425/16. See e.g. references to R. Dworkin’s Justice for Hedgehogs and A. Barak’s Human Dignity in the Constitutional Court, 1st Aug. 2016, II.ÚS 46/16, to H.S. Greve’s What’s in a Name? The Human Right to a Recognized Individual Identity in the Constitutional Court, 7th June 2009, I.ÚS 2477/08. See especially the Constitutional Court, 27th Mar. 2008, Pl.ÚS 56/05, the squeeze-out case, available in English at: https://www.usoud.cz/en/decisions/20080327-plus-5605-squeezeout-1/.

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However, there are also cases where citations of foreign literature play more or less a rhetorical role, as we can see e.g. in references to the more philosophical works of J. Rawls, F.A. Hayek or L. Fuller, which indirectly reveals the preferred authors of different judges-rapporteurs. 2.6 Typology of the Use of Foreign Law Legal scholarship identifies different, but overlapping, instances of the nonmandatory use of foreign law. According to M. Bobek, comparative arguments are most often used by courts for the closing of gaps in the law and in carrying out societal updates.61 U. Drobnig adds the instance of overruling, either of current practice or of legal texts.62 Both authors also observe that the use of foreign law is frequently only ornamental, in other words superfluous and without any real added value to the judicial decision.63 A specific type of the use of foreign law characteristic for legal systems in transition is the transplanting of constitutional doctrines into the legal order,64 since it helps the courts to avoid “reinventing the wheel”65 or, as H. Baňouch puts it, to profit from their backwardness.66 Based on the analysis of the case-law, interviews with judges and theoretical works, we have formulated six different categories (excluding the ornamental use which, although quite frequent, will not be addressed specifically here) of the use of foreign legal materials (which are of course not mutually exclusive). The Constitutional Court most often resorts to foreign law when it comes across a difficult legal question (2.6.1), a socially sensitive question (2.6.2) or a novel constitutional question (2.6.3). It also uses foreign legal materials when it wants to carry out a societal update (2.6.4) or to overrule the legislative text or current practice of ordinary courts (2.6.5). A specific use of foreign law is the transplanting of whole constitutional doctrines (2.6.6.). 2.6.1 Difficult Legal Questions Cases involving difficult legal questions (hard cases) stem mainly from gaps in law or from instances of opposing values or principles. An example of a 61 Bobek, supra note 18, at 207. 62 Drobnig and van Erp, (eds.), supra note 38, at 16. 63 Id. at 16. 64 Kühn, supra note 31, at 216. 65 Id. at 232. 66 Hynek Baňouch, Ústavní soudkyně Eliška Wagnerová a některé inovace v českém právu, in Marian Kokeš and Ivo Pospíšil (eds.), In dubio pro libertate: Úvahy nad ústavními hodnotami a právem: Pocta Elišce Wagnerové u příležitosti životního jubilea 46 (Masarykova univerzita 2009).

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difficult legal question is the line of case-law dealing with the issue of the transfer of ownership rights to immovable property (land or buildings) from a person who legally was not the owner, e.g. due to the invalidity of a sales contract or other circumstances, if the acquirer is in good faith.67 The Constitutional Court had to balance between the ownership rights of the last legal owner on the one hand and the protection of good faith, according to the Court one of the basic principles of a legal system based on the rule of law, on the other. The Old Civil Codex did not provide an explicit basis for acquiring ownership from a non-owner. The Czech Constitutional Court was in fierce disagreement with the Supreme Court, which insisted on the sole protection of the last legal owner based on the classical principle “nemo dat quod non habet”. When drawing the right balance between the opposing principles, the Constitutional Court analysed the law of Germany, Austria and the Netherlands and stated that the practice in developed democracies takes much more into consideration that it would be highly unjust not to provide protection to the rights acquired in good faith in the situation of an ownership acquisition from a non-owner.68 The Constitutional Court thus created a possibility, notwithstanding the text of the legal provision, for acquiring ownership from a non-owner based on the principle of the protection of rights gained in good faith. 2.6.2 Socially Sensitive Questions Socially sensitive questions are issues which arouse a lot of emotions, interest and debate within society. This may be due to historical, ideological or moral reasons. One of the most problematic questions to be dealt with by the postcommunist societies is the lustration legislation, which bans people who were strongly connected to the communist regime and its repressive bodies, from certain public offices. The Constitutional Court used recourse to foreign law when it reviewed the constitutionality of the legislation, in what is considered to be one of its most important decisions.69

67

68 69

The Constitutional Court, 23rd Jan. 2001, ii. ÚS 77/2000, 16th Oct. 2007, Pl. ÚS 78/06, 25th Feb. 2009, i. ÚS 143/07, 11th May 2011, ii. ÚS 165/11, 13th Aug. 2012, i. ÚS 3061/11, 28th Nov. 2012, ii. ÚS 800/12,10th June 2013, iv. ÚS 4905/12, 20th Nov. 2013, iv. ÚS 4684/12, 17th Apr. 2014, i. ÚS 2219/12, 28th Jan. 2016, iii. ÚS 247/14. The Constitutional Court, 17th Apr. 2014, i. ÚS 2219/12. The Constitutional Court, 5th Dec. 2001, Pl. ÚS 9/01, Lustration ii, available in English at: https://www.usoud.cz/en/decisions/20011205-pl-us-901-lustration.

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The Czech Constitutional Court pronounced that the laws conform to the Constitution, based mainly on the principle of militant (defensive) democracy and the principle of the loyalty of civil servants to the state. It based its argumentation on the case-law of the European Court of Human Rights and the Supreme Court of the United States, and on a comparative analysis with other post-communist countries, i.e. Germany, Bulgaria, Hungary, Albania, Poland and Romania, although both comparative methods were strongly criticised by academia.70 In this case, the use of foreign law did not manage to neutralise the case sensitivity. On the other hand, the wrongful methodology made the decision seem arbitrary and unconvincing. Another example of a socially sensitive question is the case of the access to materials produced by former Czechoslovak communist security services Pl.ÚS 3/14 (see above). 2.6.3 Novel Constitutional Questions A novel question involves problems which are not governed by statutory law and they have not been solved or even considered by the Court in its previous case-law. These rare instances are usually due to technological, legal or societal development. In a recent case, the Constitutional Court had to deal with the indemnity of the members of Parliament in relation to their expressions on the Internet.71 The case concerned an MP who commented on his Facebook profile on an attack by a group of Roma people. He stated, in brief, that the reaction of the father of one of the defendants was unacceptable, that society has long suffered thefts, aggression and benefits pumping, and that the people have had enough. The argumentation in the case was very thorough since the case was exceptional, as it concerned one of the rare instances of a direct interpretation of the Constitution.72 The Court needed to find a balance between the protection of the democratic debate in Parliament and the principle of equality which also consists of avoiding the abuse of privileges. The Court cited the case-law of the European Court on Human Rights. It then observed that, according to the comparative analysis, there is no consensus between the member states of the Council of Europe on the scope of parliamentary immunities. It thus referred to a Venice Commission report on the scope and lifting of parliamentary immunities and Czech and foreign constitutional scholarship. 70 71 72

Zdeněk Kühn, České lustrační rozhodnutí – role srovnávacího práva a nedostatky v soudcovské argumentaci, in Oto Novotný (ed.), Pocta V. Mikulemu 361–381 (aspi Publishing, 2002). The Constitutional Court, 16th June 2015, i. ÚS 3018/14, Scope of Parliamentary Immunity, available in English at: https://www.usoud.cz/en/decisions/20150616-1-us-301814scope-of-parliamentary-immunity/. Interview with Kateřina Šimáčková, 25th Mar., Brno.

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The decision shows that, when the constitutional question is new and important, the Constitutional Court uses all available arguments and methods of constitutional interpretation of which the comparative method clearly forms an important part. 2.6.4 Societal Updates In some cases, the Court needs or desires to carry out a change in the attitude of society towards certain issues. An example of a societal change is the long saga of cases concerning conscientious objectors to military service.73 After the fall of the communist regime, based on the law on judicial rehabilitations,74 the Minister of Justice filed complaints to the Supreme Court against judgments rendered during the communist regime which sentenced people to imprisonment for refusing to carry out military service based on their religious beliefs and conscience. The Constitutional Court referred to the law on judicial rehabilitations, which states that prosecution of acts based on the fundamental rights of individuals guaranteed by the Universal Declaration of Human Rights and the subsequent international covenants on civil and political rights violated international law. The criminal sentence of the conscientious objector was thus in violation of the basic principles of a democratic society and the universal protection of fundamental rights. In the judgment Pl. ÚS 42/02, the Constitutional Court had to deal with the decision of the Grand Chamber of the Supreme Court, which refused to follow its previous case-law. The Court invoked the case-law of the European Court of Human Rights to insist that law enacted during the previous political regime must be interpreted and applied in line with the current democratic principles based on the rule of law. In its powerful argumentation, it reminded the Supreme Court of its duty towards society to protect and build current democratic values. The Constitutional Court also had to distinguish between objecting to military service based on religious beliefs and based on conscience. It thus turned to the case-law of the German Federal Constitutional Court and stated that a decision based on conscience is a serious, moral, in the category of good and evil oriented decision, which the individual experiences as a binding duty or an unconditional command to act in a particular way 73 74

See above else the Constitutional Court, 7th Oct. 1998, ii. ÚS 285/97, 12th Mar. 2001, ii. ÚS 187/00 and 26th Mar. 2003, Pl. ÚS 42/02, Freedom of Conscience, available in English at: https://www.usoud.cz/en/decisions/20030326-pl-us-4202-freedom-of-conscience-1/. Act. No. 119/1990 Coll.

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Recourse to foreign law, as well as to international law, thus served to justify a change in the interpretation of a previously enacted law and its adaptation to the new political and societal values. 2.6.5 Overruling This category involves cases in which the Court rules against a statutory text, a settled practice of state organs or another court. As we already mentioned, different motives for the use of foreign legal materials by the Constitutional Court cannot be mutually exclusive, and sometimes they can equally fall into two or more categories. Such is also the case-law dealing with acquiring an ownership right from a non-owner, where the Court used foreign inspiration not only to solve a difficult legal question but also to overrule the explicit text of the old Civil Codex and the practice of the Supreme Court. Connected to the above-mentioned issue of conscientious objectors to military service is the decision in which the Court dealt with the issue of compensation for non-pecuniary damages due to the unlawful imprisonment of these persons.75 The Constitutional Court came to the conclusion that, notwithstanding the national legislation, the case-law of both ordinary courts and the Constitutional Court and the national private law scholarship, the term “compensation” in Art. 5 (5) of the European Convention on Human Rights must be interpreted to include reparation of non-pecuniary damages. It overruled both the national legislation, which it called anachronic, and the settled practice of the courts (including the Constitutional Court) based primarily on comparative law arguments. The Constitutional Court observed that, according to the comparison, the courts which were analysed all allow for the reparation of non-pecuniary damages, due to unlawful imprisonment, by applying Art. 5 (5) of the Convention, without regard to its national legislation. It then stated that the right to reparation of non-pecuniary damages also follows from the case-law of the European Court of Human Rights. The decision was criticised for its incorrect use of both foreign law and case-law of the European Court of Human Rights which highlighted the activist nature of the decision.76 Another example of overruling and legal change is the decision i. ÚS 554/04, in which the Constitutional Court stated that delays in criminal proceedings and its length should be reflected in the criminal sentence. 75 76

The Constitutional Court, 13th July 2006, i. ÚS 85/04, Non-Pecuniary Damage Compensation, available in English at: https://www.usoud.cz/en/decisions/20060713-i-us8504-non-pecuniary-damage-compensation-1/. Michal Bobek, Má argumentace srovnávacím právem přednost před českým zákonodárcem, judikaturou i doktrínou anebo je císař nahý? 11 Soudní rozhledy 415, 418–419 (2006).

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2.6.6 Legal Transplants Legal transplants consist of transferring legal rules and concepts from one legal system to another.77 Typical examples of the transplanting of constitutional doctrines are the reception by the Constitutional Court of the German doctrine of ‘radiation’ of constitutional law throughout the legal order (‘Ausstrahlungswirkung’)78 and the development of the proportionality test.79 Similar to the pronouncement of the German Federal Constitutional Court in the case Lüth,80 the Czech Constitutional Court stated that “one of the functions of the Constitution, and especially of the constitutional system of basic rights and freedoms, is its ‘radiation’ throughout the legal order” and it directed ordinary courts “to interpret and apply law while considering the protection of basic rights and freedoms”. In a case concerning the constitutionality of an anonymous witness in criminal proceedings, the Czech Constitutional Court came up with the three-step test of appropriateness, necessity and proportionality in the strict sense, which was developed by the German Federal Constitutional Court in the case Apothekenurteil.81 What is significant is that the Czech Constitutional Court in neither of the cases, openly acknowledged that it was borrowing a foreign constitutional doctrine. Another example is the Court’s dealing with the question of the so-called legislative wild riders and (this time) an explicit reference to the US requirement of the germaneness rule.82 3

Methods and Techniques

3.1 Quality of the Methodology Although the Czech Constitutional Court has carried out comparative analysis from the very first years of its functioning, the analysis was often done, as was pointed out by Z. Kühn, in an amateurish manner.83 The Constitutional Court’s judges used foreign law not in any systematic way, but randomly, based 77

Sujit Choudhry, Migration as a new metaphor in comparative constitutional law in Sujit Choudhry (ed.) The Migration of Constitutional Ideas 1–35 (Cambridge University Press 2006). 78 The Constitutional Court, 24th Sept. 1998, iii ÚS 139/98. 79 The Constitutional Court, 12th Oct. 1994, Pl. ÚS 4/94, Anonymous Witness, available in English at: https://www.usoud.cz/en/decisions/19941012-pl-us-494-anonymous-witness-1/. 80 The Federal Constitutional Court of Germany, 15th Jan. 1958, BvR 400/51. 81 The Federal Constitutional Court of Germany, 11th June 1958, 1 BvR 596/56. 82 The Constitutional Court, 15th Feb. 2007, Pl. ÚS 77/06, Legislative Limpets (Wild Riders) and their Constitutionality, available in English at: https://www.usoud.cz/en/decisions/3130/, 9th Jan. 2013, Pl. ÚS 6/12, 30th June 2015, Pl. ÚS 21/14. 83 Kühn, supra note 70, at 380.

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on what they came across, their previous experience with foreign legal systems and their personal knowledge of foreign legal literature and case law. This can be demonstrated by the decision concerning the constitutionality of a time limit to refuse to carry out military service coupled with the possibility to carry out civil service instead.84 Although the analysis was thorough, taking into account the limited technological resources of the period, the choice of the countries used for the comparison (comparators) was selective85 and lacked any explanation. The decision which was probably criticised the most by legal scholars for its use of foreign and international legal materials was the case of a constitutional review of lustration laws.86 Firstly, the use of case-law of the European Court of Human Rights was selective and the conclusions drawn from it by the Czech Constitutional Court were manipulated. Secondly, the case of the Supreme Court of the United States, Adler vs. Board of Education,87 on which the Court strongly based its decision was at the time already overruled thirty years earlier. Lastly, although the Court carried out a comparative analysis into the lustration laws of countries with similar historical experience, the conclusions drawn from it did not respond to the claims of the petitioners. The Court did not deal with the fact that the Czech laws were much stricter, broader in scope and had unlimited duration. Due to a less frequent use of comparative arguments in the first decade of the functioning of the Czech Constitutional Court, the influence of individual judges can be observed. A significant figure during the first decade of the functioning of the Constitutional Court is Judge Vladimír Klokočka who spent more than ten years in exile in Germany and was considered one of the leading Czechoslovak constitutional comparatists from the 1970s on. For example, the case concerning the constitutionality of control over the financing of political parties,88 where he was judge rapporteur, is intertwined by comparative constitutional law. The case first deals with the nature of political parties, pointing to the French and German constitution and the constitutionalization of their status after the Second World War, throughout Europe. Further on, it states 84 85 86 87 88

The Constitutional Court, 2nd June 1999, Pl. ÚS 18/98. The Constitutional Court included in its analysis Austria, Belgium, Denmark, France, Italy, Germany and Slovakia and mentioned the case-law of the German, Italian and Slovak Constitutional Court. The Constitutional Court, 5th Dec. 2001, Pl. ÚS 9/01, Lustration ii, available in English at: https://www.usoud.cz/en/decisions/20011205-pl-us-901-lustration-ii-1/. The United States Supreme Court, Adler v. Board of Education of City of New York, 342 U.S. 485 (1952). The Constitutional Court, 18th Oct. 1995, Pl. ÚS 26/94.

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that the obligation of political parties to publish financial reports is stipulated in most countries of the European Union, as well as in Poland and Hungary. Another leading scholar, and later Judge, Pavel Holländer, prior to his appointment, also spent two years performing research during his stay in Kiel, Germany, where Robert Alexy taught, which could have influenced the use of the proportionality test by the Constitutional Court. However, when the Constitutional Court first introduced the proportionality principle into its case law,89 it didn’t make any foreign inspiration explicit. A continuous problem, which pertains also to the second decade of the Constitutional Court’s existence, is the problem of the selective use of foreign legal materials. A prime example of cherry-picking is the use of foreign legal materials in the case concerning compensation for non-pecuniary damages due to unlawful imprisonment of persons,90 where the methodology was strongly criticized by the legal scholarship.91 According to the critique, the Constitutional Court unorthodoxly first carried out a comparison of different decisions of national high courts from different countries and only afterwards looked at the case-law of the European Court of Human Rights, while the usual approach is the other way round. Secondly, the Constitutional Court chose the comparators very selectively. It analysed the decisions of the German Federal Constitutional Court, the Greek Supreme Court, the Dutch Hoge Raad, the German Federal Court of Justice and the Danish West Court of First Instance without explaining why it chose these courts specifically, nor why it did not comment on other European courts. Another example of the arbitrary use of foreign law is the decision Pl. ÚS 13/99, which is part of a long saga concerning the review and subsequent declaration of unconstitutionality of several decreases in judges’ remuneration. Without any explanation or analysis of other countries, the court pointed to the Constitution of the United States, which stipulates that the judge’s salary may not be decreased during his or her term of office, and concluded that the change in legislation violates this right of judges. The conclusion of unconstitutionality was thus heavily influenced by the violation of a right guaranteed by a foreign constitution. It is important to highlight that the quality of comparative methodology has improved. One of the factors for the improvement of comparative 89

The Constitutional Court, 12th Oct. 1994, Pl. ÚS 4/94 (Pavel Holländer was the judge rapporteur), Anonymous Witness, available in English at: https://www.usoud.cz/en/ decisions/19941012-pl-us-494-anonymous-witness-1/. 90 The Constitutional Court, 13th July 2006, i. ÚS 85/04, Non-Pecuniary Damage Compensation, available in English at: https://www.usoud.cz/en/decisions/20060713-i-us-8504 -non-pecuniary-damage-compensation-1/. 91 Bobek, supra note 76, at 418–419.

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methodology is that the judges who use comparative analysis usually come from, or take part in, academia, so they are better methodologically trained in carrying out comparisons.92 Another factor is that, ever since its founding in 2007, the Analytic Department has expanded, and it currently has enough staff and resources (books, databases, international networks) to carry out very good quality comparative analyses.93 The judges are thus more inclined to use them. They usually want to know how foreign legal systems work with a specific legal institute, most often requesting a comparison with the neighbouring countries. The Analytic Department then compiles statutory law, case-law and legal scholarship and adds an overview of the case-law of the local constitutional court.94 For example, in a case dealing with the invalidity of legal actions due to psychological illness,95 the judge rapporteur wanted to know what was the standard of proof in such cases. She asked the Analytic Department for a comparative study, which included France, Spain, Germany, Austria, the common law countries (Ireland, Great Britain, the United States and the South African Republic), Poland and Slovakia. The Constitutional Court thus now works with comparative analyses which include a large number of comparators, both legislation, case-law and legal scholarship and, most importantly, the comparators evenly represent the main legal families. Another example of good comparative methodology is the case dealing with the recognition of foreign legal titles, in order to become a Czech legal attorney.96 The Constitutional Court stated that, in order to gain a deeper understanding of the problem, it asked the Analytic Department for a comparative analysis. The analysis contained eleven countries, with a special focus on states similar to the Czech Republic, i.e. Slovakia, Poland, Slovenia, Lithuania, Latvia and Croatia. To summarise, the quality of comparative methodology of the Constitutional Court has improved greatly, due to better resources, a good Analytic Department and the general rise of interest in comparative law in Czech legal scholarship, which is then channelled to the judges either through their own previous academic work or through their assistants. However, the Court still very seldom gives reasons for its selection of the different comparators, nor does it frequently use a representative of each legal family, as would be scientifically desirable. In contrast, it usually chooses to compare with states which are somehow useful for the case, i.e. that are geographically close to the Czech Republic or that have a similar historical experience. As M. Bobek points out, 92 93 94 95 96

Interview with Kateřina Šimáčková, 25th Mar., Brno. Interview with Eliška Wagnerová, 26th Jan. 2017, Prague. Information provided by Ivo Pospíšil, the Secretary General of the Constitutional Court, on 19th April 2017. The Constitutional Court, 20th Aug. 2014, i. ÚS 173/13. The Constitutional Court, 25th Oct. 2016, II.ÚS 443/16.

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this is not necessarily a bad thing. Judges are not scholars, they have different reasons for using comparative analysis: “judges need (in fact, a quite shallow) inspiration or argumentative support, not deep-level contextualized scientific truth”.97 3.2 Significant Aspects of the Use of Foreign Legal Materials According to our analysis, foreign law is mostly used by the Czech Constitutional Court as an authority rather than as a source for further discussion. This may create an impression that the solution reached by the Court was inevitable, as it was already reached by another court, most frequently the German Federal Constitutional Court. This manner of use of foreign law allows judges to conceal the fact that they are introducing into the legal system new rules and principles which were not elaborated by the legislature.98 Comparative constitutional law scholarship draws a distinction between comparative law as borrowing and as dialogue. While borrowing consists of transferring legal rules, ideas or doctrines from one legal system to another, comparative dialogue is more reflective. It consists of exploring the factual and normative assumptions of one’s own constitutional order and thinking about why different courts have arrived at different solutions.99 Our empirical analysis has shown (and the interviews have confirmed100) that the Czech Constitutional Court does not engage in dialogue with other legal systems very often. When the solution offered by a foreign legal system contradicts with what is going to become the final decision, it is usually not mentioned.101 Another interesting aspect of the use of foreign law by the Constitutional Court is that the judges are generally less inclined to acknowledge foreign inspiration in respect to method or principle than they are about concrete solutions of substantive or procedural law.102 This is due to both pragmatic and psychological reasons. Pragmatically, the method is less easy to cite, inasmuch as it usually appears spread over several judgments. On the other hand, this was not the case with the proportionality test as it is clearly inspired by the Apothekenurteil, so it would not be difficult to cite it. Psychologically, a judge is less likely to acknowledge drawing inspiration in how to apply the law.

97 See Bobek, supra note 18, at 242–243. 98 Kühn, supra note 31, at 232. 99 Choudhry, supra note 77, at 1–35. 100 Interview with Vojtěch Šimíček, 27th January 2017. 101 There are of course some exceptions, for example the case concerning access to files of the former security services dealt with above. 102 Bobek, supra note 18, at 239.

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4 Conclusion Comparative analysis is a common part of the Czech Constitutional Court’s adjudication. Both its use and quality has increased over time. Overall, comparative arguments are found in important cases which are significant for their novelty, contentiousness or social sensitivity. Comparative law thus comes into play when other methods of interpretation of the law (grammatical, historical, systematic, teleological) are not sufficient or when the question is politically or socially sensitive and the solution does not unambiguously follow from the text of the legal provision. In its formative years, the Czech Constitutional Court used foreign law in order to transplant into the Czech legal system important constitutional doctrines from the West European states and the United States. This has helped to speed up the transformation of the legal system and its core values. The Court still looks into the case-law of West European Constitutional Courts, the German Federal Constitutional Court, in particular, for inspiration. On the other hand, when it wants to compare Czech legislation with other countries, it often focuses on countries which are similar to the Czech Republic, either by geographic location or history. A significant aspect of the use of foreign law by the Czech Constitutional Court is that, unlike some Western Constitutional Courts,103 it does not engage in a comparative dialogue. When the solution is useful, it borrows it from the foreign legal system, when it is not useful, it does not mention it. Having passed through the period of transition, the Czech Constitutional Court now faces, in respect of use of foreign law, the same challenges as other European countries. A comparative analysis is very tempting, inasmuch as it helps the Court to find a solution to a difficult case and it provides both argumentative and authoritative support to the decision. However, with the variety of possible sources of inspiration, the use of foreign law is often selective and may even be arbitrary and misleading. It then becomes the task of legal scholarship to monitor and question the use of foreign law in specific cases. Acknowledgements Our research was supported by the Grant Agency of the Czech Republic project NO 17-08176S 103 For example, the Supreme Court of Canada. See Sarah K. Harding, Comparative Reasoning and Judicial Review, 28 Yale J. Int’l L. 409 (2003).

Use of Foreign Law in the Practice of the Hungarian Constitutional Court – With Special Regard to the Period between 2012 and 2016 Csaba Erdős and Fanni Tanács-Mandák 1

The Hungarian Constitutional Court

In most of the Western European countries, constitutional courts were established after the Second World War, while in Central and Eastern Europe, these organs were founded only after the fall of communism.1 The distinctive and esteemed Austrian, German, Italian, French and Spanish Constitutional Courts were examples of good practice for the Central and Eastern European courts. The Hungarian Constitutional Court was established only by Act xxxii of 1989, and the organ started its work at the beginning of 1990. But we may notice some traces and certain kinds of predecessors of the organ also during the 20th century: Hans Kelsen’s concept on the necessity of a constitutional court published in the 1920s appeared and was discussed in several Hungarian academic articles in the first half of the 20th century,2 then during the communist period, from the 1970s more and more publications were dedicated to the concept of a supreme organ which may practice constitutional review.3 In 1984, the Constitutional Law Council was established, while its functions and procedures were not comparable to the later Hungarian Constitutional Court’s functions and procedures, as it had the right to pronounce on the constitutionality of legal norms, but the number of its cases was very low.4 In 1989 and 1990, it was not a completely new constitutional system that was introduced but Hungary applied the democratic constitutional framework used in Western Europe. Both this link and the fact that the history of the Hungarian Constitutional Court is much shorter than that of its European counterparts, render it significant to quote foreign Constitutional Courts’ decisions in the jurisprudence of the Hungarian Constitutional Court.5 1 Except in Poland, where the Constitutional Court was established in 1986. 2 See: László Feketekuti Mankovics, A törvények alkotmányszerűsége [Constitutionality of Laws] (Attila Nyomda 1937). 3 Basically, in the research findings published by the has Office of Research on State. 4 Act i of 1984. 5 The influence of the German Federal Constitutional Court is the most significant one in the jurisprudence of the Hungarian Constitutional Court. After the democratic transition, it was

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1.1 Competences of the Constitutional Court Regarding the tasks and competences of the Hungarian Constitutional Court, we may distinguish two different periods, the first one lasted from the foundation of the organ till the entry into force of the new Constitution, while we can count the second period from 2012 till today. In the first period, the Hungarian Constitutional Court had concrete and abstract procedures, both preliminary6 and posterior constitutional reviews of all kinds of legislation and other normative acts which do not belong to legislation. Furthermore, anyone had the possibility to turn to the Constitutional Court with a constitutional complaint after having unsuccessfully tried all other means to receive legal remedy when they considered that their rights had been violated by the application of an unconstitutional legal provision. This constitutional complaint referred to the review of an unconstitutional item of legislation applied in a concrete case but it was not possible to request a review of the judicial decision in a concrete case.7 The most significant decisions of the Court were made in the framework of ex-post norm control in this period. One of the most important proceedings and strategic competences of the court was actio popularis.8 In the second and still ongoing period, the Hungarian Constitutional Court acquired the following competences: preliminary and ex-post norm control, norm control in concrete cases, constitutional complaints, examination of conflicts with international treaties, examination of parliamentary resolutions related to ordering referendum, opinions on the dissolution of a local representative body operating contrary to the Fundamental Law, opinion on the withdrawal of the recognition of a church operating contrary to the Fundamental Law, removal of the President of the Republic from office, resolving conflicts of competence, examination of local government decrees, normative decisions and orders, and decisions on the uniform application of the law, interpretation of the Fundamental Law and elimination of legislative defaults. typical that whole legal concepts were adopted either from Germany or from the United States of America. Later the references were not always visible. 6 The most typical form of preliminary constitutional review was the procedure initiated by the President of the Republic on adopted but not yet promulgated acts. 7 The reason for it was that the Hungarian public law system contained a strict separation between the charges of norm control and reviews of concrete judicial decisions. The first one belonged to the competence of the Constitutional Court, while the second one belonged to that of ordinary courts. 8 Everybody had the right to submit a request for posterior review without demonstrating a personal injury. The procedure was exempt from charges and taxes. In this form, actio popularis was an exception among the European constitutional courts, especially because a posterior abstract norm control might have referred to all kinds of legal provisions.

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In 2011–2012, the structure of the Constitutional Court’s competences and types of procedures was changed radically.9 On the one hand, the previous institution of actio popularis was terminated, and a posterior abstract constitutional review may only be requested by an authorised person, on the other hand, the institution of a “genuine” constitutional complaint was introduced. The abolishment of actio popularis may not be assessed as a reduction of Constitutional Court competences because this reform was proposed by the Constitutional Court itself in the constitutional process, with reference to the huge number of reviews requested by actio popularis in the first two decades of the Court. According to the first experiences, the institution of posterior constitutionality review requested by the commissioner for fundamental rights10 and a “genuine” constitutional complaint11 properly substitute the previous procedure. The Constitutional Court may examine and annul by posterior abstract constitutional review all kinds of legal regulations including normative decisions and orders and decisions on the uniform application of the law but it may examine the compliance of local government decrees only if the concrete decree is not exclusively compliant with the Fundamental Law and is not contrary to any other legal provisions. If the local government decree is in conflict with other legal regulations, the Curia and its Council of Local Governments have competence in the procedure.12 This reform doubled the norm control of the local government decrees.13 According to the regulation on the institution of the new and genuine constitutional complaint, a person or an organisation may submit a constitutional complaint not only if the legal act applied in the concrete case is considered

9

10 11 12 13

There are three levels of regulations on the Constitutional Court: the Fundamental Law of Hungary, the Act on Constitutional Court (Act of cli of 2011) and the Rules of Procedure of the Constitutional Court. These legal norms are available at the website of the Constitutional Court: https://hunconcourt.hu/. The aim of the reform is to render the Commissioner for Fundamental Rights a mediator, as his standpoint on the existence of the unconstitutionality of the concrete legislation is a basic and necessary condition to start the procedure. A posterior constitutional review can be requested only by the government, one fourth of the members of the Parliament and the Commissioner for Fundamental Rights. But if the local government decree is in direct conflict with the Fundamental Law, the Constitutional Court has competence in the procedure. Although we note that at the practice of this norm control the practice of reference to foreign law is not usual.

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unconstitutional but also in order to review the decision of an ordinary judiciary in the concrete case and the Constitutional Court may annul the judicial decision. The new regulation extended the possibilities for submitting a constitutional complaint, as it extends to the examination of constitutionality of both the legislation and the application of the law. This is the most significant change regarding the status of the organ, as this procedure shift moved the Constitutional Court towards jurisdiction. The focus was transferred from posterior abstract constitutionality reviews to constitutional complaints. It is another significant change that the Constitutional Court may examine the constitutionality of adopted but not yet promulgated acts at the request of the President of the Republic or the Parliament. This new institution is important because previously the President of the Republic did not have the possibility to perform a double veto, i.e. both the political – sending back the unpromulgated act to the Parliament – and the constitutional one, requesting a preventive norm control from the Constitutional Court. 1.2 The Decisions of the Constitutional Court: Structures and Sanctions The Constitutional Court adopts decisions on the merit of cases and in any issues which come up in the course of the proceedings, it adopts orders. The decisions of the Constitutional Court are binding for everyone and there is no remedy against the decisions of the Constitutional Court. The force of the Constitutional Court’s decisions depends on the type of the decision. Annulling decisions enter into force on the day of the annulment. If the Constitutional Court annuls a legislative act with retrospective effect, then the relevant date in the past will be the day when the decision of the Constitutional Court enters into force. In the case of a constitutional complaint, the Constitutional Court may annul the concrete judicial decision and the judicial decisions and decisions made by public authorities which were reviewed by the specific judicial decision. The annulled legal regulation or provision will cease to have effect on the day after the publication of the Constitutional Court’s decision on annulment in the Hungarian Official Gazette and may not be applicable from that day, the annulled legal regulation which has been promulgated but has not yet entered into force shall not enter into force. The Constitutional Court may annul the Fundamental Law or its amendments with retroactive effect as of the date of its promulgation. The annulment of the legal regulation does not affect those legal relations which originate on the day or before the decision and the rights and obligations resulting from them were issued.

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1.2.1 The Structure of the Constitutional Court’s Decisions A Constitutional Court’s decision consists of an introduction, the holdings of the decision and the reasoning. The introductive part, in addition to other administrative information, presents the references to any dissenting or concurring opinions and the names of the judges of the Constitutional Court who present it. The holdings of the decision contain the Constitutional Court’s decision in the merits of the case, the provision on the publication in the Hungarian Official Gazette, in the case of annulling a rule of law or an individual judicial decision, the provision on the annulment, in the case of annulling a rule of law, the provision on the scope of annulment and the date of losing force. In the case of a partial annulment of a rule of law, the holdings of the decision shall establish the text of the rule of law remaining in force. The reasoning contains the short presentation of the petition, refers to the Fundamental Law and to the rules of law, as well as to the constitutional reasons and arguments that the decision of the Constitutional Court is based upon. The Constitutional Court’s plenary session is the main organ which may perform the tasks and exercise the competences that are referred to the Court by the acc and the Rules of Procedure and in several procedures – anterior norm control, removal of the President of the Republic from office, interpretation of the Fundamental Law and annulment of legislative norms – the Plenary session is the only organ which may practice them. The other decision-making level (forum) of the Constitutional Court is the level of panels, councils, chambers. At the Court, there are three permanent panels, each of which consists of five members. The panels adopt the decisions of the Court in every case, except the cases referred to the competence of the Plenary Session or a single judge. The panels examine the admissibility of the presented constitutional complaints, admit them and decide on the merits of the complaints. The judges of the Constitutional Court have the right to formulate a dissenting opinion or a concurring opinion on the Court’s decisions.14 The judges who remain in minority in voting for the decision have the right to present a dissenting opinion that contains their position, which is different from the one found in the holdings of the decision and their written reasoning. 14

See more on concurring and dissenting opinions: Zoltán Szente ’Az alkotmánybírák politikai orientációi Magyarországon 2010–2014’ [‘Constitutional Court Judges’ Political Orientation in Hungary between 2010–2014’] (2015) 1 Politikatudományi Szemle [Review of Political Sciences] 31.

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The judges of the court who agree with the substance of the Court’s decision but have different reasoning from the one found in the official decision have the right to present a concurring opinion on the decision but it cannot be longer than the reasoning of the decision. The dissenting opinions and concurring opinions are part of the decisions and they are public. 1.2.2

The Role of the Constitutional Court’s Decisions in Hungarian Legal Culture In 1990, the Hungarian Constitutional Court received the competence to annul legal acts which are contrary to the Constitution. Ordinary courts did not have similar competencies, they only had the right to submit a request to the Constitutional Court for reviewing constitutionality in case of doubt. The annulment of legal acts could be realized only by the Constitutional Court, this rendered the Hungarian norm control system a significantly centralized one. There was a slight decentralization only in 2011 when the Curia received partial competences regarding the norm control of local governments’ decrees. The Constitutional Court has a reputation in the Hungarian political system which derives not only from its central position but it was acquired through its extreme activism. It has a prominent position in the Hungarian constitutional order partially due to its broad jurisdictional remit.15 The Court was regarded both in Hungary and abroad as “the most active and the most powerful constitutional court in the world”.16 The most important decisions of the Court (abolition of death penalty, decisions on compensation and transitional judicial acts, drawing the line between the competences of the president and the executive body) often generated strong political reactions, sometimes even anger. The functioning of the Constitutional Court was characterized by constant conflicts with the government. After serious internal debates, the Constitutional Court defined its role as a genuine counterbalance of the parliamentary majority.17 By the reforms introduced after 2011 and in some cases the previous competences of the Constitutional Court were restricted, the Court has significant 15 16

17

See Fruzsina Gárdos-Orosz, ‘Alkotmánybíróság 2010–2015’ [‘Constitutional Court 2010– 2015’] in András Jakab, György Gajduschek (eds), A magyar jogrendszer állapota. [‘Status of the Hungarian Legal System’] (mta TK jti 2016) 442–480. See Georg Brunner ‘Development of a Constitutional Judiciary in Eastern Europe’ (1992) 6 Review of Central and Eastern European Law 539. Cited by István Stumpf ‘The Hungarian Constitutional Court’s Place in the Constitutional System of Hungary’ (2017) 13 Polgári Szemle [Civic Review] 239. ibid 239.

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formal competences and it is an independent constitutional body also today. The above described changes and reforms hampered the preservation of the independency and autonomy of the Court but it would be difficult to verify that its independence was de facto reduced.18 2

Methodological Remarks

In the practice of the Constitutional Court, one should distinguish between two forms of the representation of foreign national law and legal practice: on the one hand, the Constitutional Court may quote, expressis verbis, a foreign precedent, law or constitution (explicit reference), while on the other hand, it may follow the decision adopted by another constitutional or supreme court without any specific reference but using the same way of argumentation (latent, implicit effect). It means a great challenge to identify the latter and it is impossible to exclude latency in this area.19 We have only presented the latent, implicit foreign impacts on the practice of the Hungarian Constitutional Court by relying on the available literature. We have been searching for decisions that contain explicit references by relying on the decision search engine20 on the publicly and freely available homepage of the Constitutional Court, which allows so-called free word searches in the operative parts and reasoning parts of the decisions, as well as in the concurring opinions and dissenting opinions. This basically follows the example of the well-known search engines. Besides these, a keyword search engine is also available for the decisions adopted after January 1, 2012. In the first phase, we applied the keyword search engine for reviewing the decisions adopted after 2012. From among the keywords provided by the 18

19

20

Gárdos-Orosz (n 15) 475. More views on the evolution of the role of the Constitution Court see Péter Paczolay, ’The First Experiences of the New Jurisdiction of the Hungarian Constitutional Court – A View from Inside’ in Zoltán Szente, Fanni Mandák, Zsuzsanna Fejes (eds), Challenges and Pitfalls in the Recent Hungarian Constitutional Development. Discussing the New Fundamental Law of Hungary. (L’Harmattan 2015) 169–184 and Zoltán Szente, ’The Decline of constitutional Review in Hungary – Towards a Partisan Constitutional Court?’ in Zoltán Szente, Fanni Mandák, Zsuzsanna Fejes (eds), Challenges and Pitfalls in the Recent Hungarian Constitutional Development. Discussing the New Fundamental Law of Hungary. (L’Harmattan 2015) 185–210. Latency could only be fully excluded if one were familiar with the positive sources of law and legal practice of all the national legal systems, which is even beyond the capacity of computer-based searches (e.g. due to the lack of the digitalization and disclosure of the decisions adopted by the legal practitioners, as well as language barriers). The decision search engine is available at http://alkotmanybirosag.hu/ugykereso/.

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­ omepage, “application of foreign law” and “necessity test in a democratic h state” were related to the topic of the paper, so we only used these two. We need to make two comments on the keyword search engine. On the one hand, the keyword “application of foreign law” encompasses the international and ­European Union sources of law in addition to foreign national law and legal practice, so in order to be able to filter the references to international and ­European Union sources of law, it was inevitable to review the contents of these decisions as well. On the other hand, we should draw attention to the inaccuracy of identifying the decisions by keywords.21 Taking this into account (as well), we ran the free word search as a test for the following keywords regarding the decisions adopted after January 1, 2012: “German”, “BVerfGE”, “U.S.”, “American”, “­Austrian”, “French”, “Constitutional Council”, “Italian”, “Polish”, “Czech”, “Slovakian”, “United Kingdom”, “Canada” “s.c.r.”, “South Africa”. We defined the keywords after having reviewed the relevant literature first, by taking into account those countries which are examples for the Hungarian legal system, more precisely, constitutional law, as well as those states which have similar public law traditions and which struggle with similar public law and social challenges. We then subjected the cases thus received to a content (qualitative) examination, to find out whether they in fact contain foreign law imports. This method is not fully reliable but it keeps the error rate of the hits within reasonable limits. In references made to foreign positive law and precedents, the decisions and documents of the international and EU legal forums (especially those of the Strasbourg Court, the Venice Commission, or osce) are used much more frequently by the Hungarian Constitutional Court but these cases were excluded both from the scope of our qualitative and quantitative examinations, in line with the editing principles of the volume. However, we examined both the positive and legal practice aspects of foreign (national) law. We disregarded those decisions of the Constitutional Court in the reasoning of which a reference to foreign law was exclusively made in the context of the presentation of the motion. This means that the proponent may have referred to positive foreign law or legal practice, the judicial body still disregarded this part of his or her argumentation.22

21 22

For example, Constitutional Court decision No. 1/2013. (i. 7.) that defines the function of the comparison of laws was not found by searching for the keyword “application of foreign law”. See for example: Constitutional Court orders No. 3037/2015. (II.20.), 3148/2015. (VII.24.), 3149/2015. (VII.24.).

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We have defined the phases of Hungarian Constitutional Court activity according to the peculiar features of the development of Hungarian public law, so we have distinguished between three periods: – the period between 1990 and 1998: the era of the presidency of László Sólyom, the main characteristics of which were orientation, the consolidation of the activity of the Constitutional Court, as well as increased activism; – the period between 1998 and 2011: the era of a “consolidated” Constitutional Court, in the last six months of which the increased tension between the Constitutional Court and the National Assembly was clearly visible (the indicator of which was the limitation of the Constitutional Court’s competence regarding public funds), – the period after 2012: the entry into force of the Fundamental Law of Hungary and the new law on the Constitutional Court brought about a high number of significant changes, of which the termination of abstract ex-post norm control and the extension of the institution of Constitutional Court complaints can be highlighted. We have directed the focus of our study towards the practices after 2012, the reason for which, on the one hand, is that the earlier practice of the Court has already been studied and described in detail,23 and on the other hand, that a more precise filter for the decisions of the Constitutional Court (keyword search) is only available for the Constitutional Court decisions adopted after 2012. 3

The Analysis of the Practice of the Constitutional Court in View of Using Foreign Law

3.1 Quantitative Analysis The frequency of using foreign laws can be most simply calculated by comparing the number of those decisions in which there is a reference to a foreign legal norm or legal practice with the total number of Constitutional Court decisions. We have only performed this survey for the period between 2012 and 2016.

23

Catherine Dupré, Importing the Law in Post-Communist Transitions. The Hungarian Constitutional Court and the Right to Human Dignity (Hart Publishing 2003) and Zoltán Szente ‘A nemzetközi és külföldi bíróságok ítéleteinek felhasználása a magyar Alkotmánybíróság gyakorlatában 1999 és 2008 között’ [‘Use of Decisions of Foreign and International Courts in the Jurisprudence of the Hungarian Constitutional Court’] (2010) 2 Jog-Állam-Politika [Law-State-Politics] 47.

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It becomes obvious from comparing tables 1 and 2 that in the 6 years under review, 1.72% of the total 2,147 cases assessed by the Constitutional Court contained references to foreign law (including positive legal norms and legal practices). If one only considers the decisions of substance, this indicator is somewhat more favorable, i.e. 7.38%. It is a peculiar feature of the decisions that the motions are basically not examined by the Constitutional Court, so it is understandable that there is no comparison of law that has involved a thorough examination in this case. However, if one only compares those decisions the majority reasoning of which contains references to foreign law with the total number of decisions, the rate will change to 4.77%. Thus, one third of the references to foreign law appear in concurring opinions and dissenting opinions. However, in the period under review, we have only found 14 such decisions in the majority reasoning of which the Hungarian Constitutional Court quoted a decision of a foreign constitutional court or another court. If one projects this figure to the 461 decisions of the five-year period, this will make up 3.03%, as consequence of which one third of the Constitutional Court decisions quoting foreign law exclusively refer to a positive source of law. The overwhelming majority of the decisions that contain references to positive law review regulations on the level of laws or decrees, there is a total of three decisions in which there is a reference to the requirements of foreign national constitutions, the Table 1

year

2016a 2015b 2014c 2013d 2012e total

Activity of the constitutional court between 2012 and 2016

total number number of number of of decisions ­decisions concurring (excl. orders) opinions 355 364 426 367 635 2.147

78 80 84 84 135 461

71 47 75 47 29 269

number of dissenting opinions 116 116 149 159 51 591

a See the official website of the Constitutional Court. http://alkotmanybirosag.hu/uploads/ 2017/08/ab_ugyforgalom_2016_12_31_vegleges.pdf. b http://alkotmanybirosag.hu/uploads/2017/08/ab_ugyforgalom_2015_12_31.pdf. c http://alkotmanybirosag.hu/uploads/2017/08/ab_ugyforgalom_2014_12_31.pdf. d http://alkotmanybirosag.hu/uploads/2017/08/ab_ugyforgalom_2013_december_31_jav_2014 .pdf. e http://alkotmanybirosag.hu/uploads/2017/08/ugyforgalom_2012_december_31.pdf.

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Table 2

Use of foreign law by the constitutional court between 2012 and 2016a

year

total number of decision using foreign law

number of ­decisions using foreign law (excl. orders)

number of decisions’ whose reasoning contains reference to foreign law

number of concurring opinions using ­foreign law

number of dissenting opinions using ­foreign law

2016 2015 2014 2013 2012 total

11 5 8 11 2 37

9 4 8 11 2 34

4 1 6 10 1 22

6 1 2 3 0 12

3 3 1 3 2 12

a See Appendix.

Constitutional Court mentions the US Constitution on two occasions, while it refers to the German Grundgesetz (the German Fundamental Law) three times, and once it quotes the Slovenian Constitution as well. As regards the pre-2012 era, we only relied on the available literature in the quantitative analysis as well. In the period between 1999 and 2008, by taking the currently existing Constitutional Court competences into account, the rate of Constitutional Court decisions using the decisions of foreign courts or constitutional courts was estimated by Zoltán Szente at 22.32%.24 This significantly exceeds the 3.03% rate of the period between 2012 and 2016. The explanation for the significant difference lies in that in the quoted work, the foreign precedents were also included in addition to the decisions adopted by international courts. As has been indicated earlier, the references to the sources of international law (especially the decisions made by the Strasbourg echr and the Luxembourg cjeu) are much more frequent in the Constitutional Court practice after 2012, our estimate suggests that the 20% rate may be regarded as one that also has governing effect now.

24

Szente, ‘A nemzetközi és külföldi bíróságok ítéleteinek felhasználása a magyar Alkotmánybíróság gyakorlatában 1999 és 2008 között’ (n 23) 56.

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4.46% of concurring opinions, as well as 2.03% of the dissenting opinions contain references to foreign law, i.e. those parts that contain dissenting argumentations (jointly 2.79%), references to foreign law are much more frequent than in the majority reasonings (1.72%). There are great differences between the judges with regard to their references to foreign law. Although this question cannot entirely be separated from their active participation in the preparation of dissenting and concurring opinions, it is a telling sign that all the dissenting and concurring opinions that refer to foreign law come from 11 specific judges in the period between 2012 and 2016. In this respect, the most active constitutional judges were László Kiss and István Stumpf, who published as many as seven dissenting and concurring opinions quoting foreign law, each. Béla Pokol adopted 3, while Egon Dienes-Ohm and Tamás Sulyok made 2 such decisions, although it is true that Béla Pokol voiced his very criticism of such references to foreign law in one of his decisions. Ágnes Czine, Elemér Balogh, Péter Kovács, Miklós Lévay, Barnabás Lenkovics and Mária Szívós have adopted one decision each that contains references to foreign law in their dissenting / concurring opinions. The dissenting and concurring opinions show considerable differences in the depth and thoroughness of their reference to foreign law: they range from short references through highlighting a certain decision to detailed analyses. Qualitative Analysis The Functions of Comparative Law in the Practice of the Constitutional Court The method of reference to foreign law most frequently applied by the Constitutional Court is the comparison of laws, whose role and the reasons for its application were defined by the judicial body as follows: “In the examinations, the Constitutional Court typically endeavored to study the factors contributing to the introduction of the legal institutions in question, during which it was trying to find the common elements and the conflicts too; often concluding that legislation on the subject shows considerable variety, not only in the relations of overseas and European states but also, between the European countries.”25 In the relevant literature, attention is called to that the Constitutional Court is often very selective in the foreign examples for regulation or precedents and it primarily quotes those which support their decisions.26 This mostly happens 3.2 3.2.1

25 26

See Constitutional Court decision No. 1/2013. (i. 7.), reasoning [30]. Zoltán Szente, Érvelés és értelmezés az alkotmányjogban [Reasoning and Interpretation in the Constitutional Law] (Dialóg-Campus, 2013) 236.

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in such matters where moral choices have to be made, like on the subjects of euthanasia27 or same-sex marriages.28 The Constitutional Court especially highlighted such a fundamental correlation in comparative constitutional law methodology as the threat posed by mechanically adopting the decisions of foreign courts: “judging the constitutionality of a legal institution in another country may be different depending on the constitution of the state in question, the harmony of the regulation with the legal system, as well as the historical and political backgrounds. This is why, acknowledging that taking the foreign experience into account may prove to be useful for the assessment of a regulatory solution, the Constitutional Court may not regard the example of one of the foreign countries as critical in the examining compliance with the Constitution (the Fundamental Law of Hungary).”29 Furthermore, it was also emphasized by the judicial body that the Hungarian Constitutional Court is not subject to any of the foreign regulatory solutions or precedents: “the fact in itself that a legal institution or a regulatory solution exists in one or more foreign countries (including democratic ­European states), is not critical for assessing compliance with the Fundamental Law of Hungary, so it cannot serve as an adequate reason for restricting a right ensured in the Fundamental Law of Hungary either.”30 In another decision, the Constitutional Court considered, that despite the lack of binding power, the comparison of laws in itself “enriches the legal practice of the Constitutional Court”, to this extent, it was considered a value in itself.31 Furthermore, the Constitutional Court assigned special significance to the constitutional dialog expressis verbis as well. This came up in the context of anti-constitutional amendments of the Constitution,32 as well as the issues concerning the freedom of assembly33 and the balance of constitutional identity and the exercise of EU competences.34 27 28 29 30

31 32

33 34

See Constitutional Court decision No. 22/2003. (iv. 28.). See Constitutional Court decision No. 65/2007. (x. 18.). See Constitutional Court decision No. 1/2013. (i. 7.), reasoning [31]. Constitutional Court decision No. 1/2013 (i. 7.), reasoning [32] It should be noted that this argumentation of the Constitutional Court was later adopted by subsequent decisions as well, as the introduction to sections on comparative law, Constitutional Court decision No. 1/2013 (i. 7.) qualifies as a fundamental decision with regard to comparative law. See Constitutional Court decision No. 24/2013. (x. 4.). Constitutional Court decision No. 61/2011. (VII.13.). Although this expression is not used by this decision, it was the very judicial body that declared in Constitutional Court decision No. 22/2016. (XII.15.) that Constitutional Court decision No. 61/2011. (VII.13.) can also be listed in the category of constitutional dialog. See Constitutional Court decision No. 30/2015. (X.15.). See Constitutional Court decision No. 22/2016. (XII.15.).

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Although it was not explained by the Constitutional Court why it regards participation in the constitutional dialog as a matter of special importance, we may regard the explanation provided in the relevant literature as one that has governing effect. According to the latter, a constitutional dialog is aimed at “establishing the right constitutional meaning”,35 to this extent, it is a “means of legal self-reflection”,36 whose outcome may be getting familiar with one’s own (national) constitutional values,37 just as well as “establishing a “joint” ­European human rights practice”,38 thus the acknowledgment of and respect for a multilevel constitutionalism. Constitutional judge Béla Pokol considers comparative law an expressly harmful practice rather than a value in itself. In his concurring opinion on Constitutional Court decision No. 33/2013. (xi. 22.), he argues that the exaggerated application of the comparison of laws may create the illusion that the Constitutional Court decisions do not rest on the Fundamental Law of Hungary. He thinks that in those cases when a case can be decided on the basis of the provisions set out in the Fundamental Law of Hungary, no comparison of laws will become necessary, as on the one hand, it will make the reasoning of the decision unnecessarily complicated, on the other hand, “it symbolically raises doubts about founding a decision on the Fundamental Law”. Based on these logics, foreign regulations and decisions should only be analyzed in the process of the non-public constitutional court decision-making and discussions, and the references made to them should not be incorporated in the decisions.39 Although no other judges expressed their agreement with these concurring opinions, the very existence of these well shows that the application of the method of comparative law is not without response or criticism even within the Constitutional Court. The above concurring opinion provided by Béla Pokol actually represents the so-called resistance model of reference to foreign law, which stigmatizes comparative law as one that has a destructive effect on the authority of the Constitution and one that refrains from the application of the Constitution and constitutional law exactly because of their national nature.40 The resistance theory is well-suited for the textualist method of interpreting the Constitution, as well as such perception of the role of the constitutional judge. 35

Tímea Drinóczi, Az alkotmányos párbeszéd [The Constitutional Dialogue] (mta TK jti 2017) 34. 36 Szente, Érvelés és értelmezés az alkotmányjogban (n 32) 51. 37 ibid 51. 38 Drinóczi (n 42) 34. 39 See Constitutional Court decision No. 33/2013. (xi. 22.), concurring opinion of Béla Pokol. 40 Szente, Érvelés és értelmezés az alkotmányjogban (n 32) 51.

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This American interpretation of the constitution, except for the exception that generated major disputes,41 means a mainstream school of the American interpretation of the constitution.42 However, we do not think that Hungary is in a position which is comparable to the United States in this respect, which is on the one hand the consequence of the young age of Hungarian democracy, i.e. the lack of century-long traditions of constitutional court activities, and on the other hand, it arises from the existence of a European integration in a broader sense (EU, Council of Europe). The cautious openness of the Hungarian Constitutional Court to a constitutional dialog, which does not renounce the primary importance of the Fundamental Law of Hungary, most probably stems from such characteristics and considerations. The disputes on the limits of “importing” foreign precedents are well illustrated by the concurring opinion provided by István Stumpf on Constitutional Court decision No. 22/2016 (xii. 5.). The majority reasoning took a sentence from the practice of the German constitutional court, which was also quoted in the decision, and incorporated it in its own argumentation. However this incorporation was done by the majority reasoning without having linked the practice of the German constitutional court to the Fundamental Law of Hungary. Judge Stumpf thinks that such practice may jeopardize the dependence of the activities of the Constitutional Court on the Constitution: “This approach would basically detach Hungary’s constitutional identity from the text of the Fundamental Law, it would create a kind of invisible Fundamental Law, which should be safeguarded by the Constitutional Court, independently from the Fundamental Law, interpreted according to an uncertain methodology, even with a content filled with foreign legal imports. This would breach the Fundamental Law. I strongly believe that the Constitutional Court should enforce Hungary’s constitutional identity starting out from the Fundamental Law, by adhering to it, and in the frameworks defined therein.”43 3.2.2 The Most Important Decisions Applying the Comparison of Law As we cannot aim to present all those decisions and reasonings of the Hungarian Constitutional Court which apply the comparison of law in the framework of this publication, we have described two decisions in which the Court

41 42 43

Roper v. Simmons 125 S. Ct. 1183 (2005). See in Szente, ‘A nemzetközi és külföldi bíróságok ítéleteinek felhasználása a magyar Alkotmánybíróság gyakorlatában 1999 és 2008 között’ (n 23) 49. Nóra Chronowski ‘Globális vagy lokális alkotmányosság?’ [‘Global or Local Constitutionalism?’] (2015) 4 Jogelméleti Szemle [Review of Legal Theory] 29. See Constitutional Court decision No. 22/2016. (xii. 5.), concurring opinion of István Stumpf.

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assigned unusually great importance and role to foreign legal norms and legal practice. The first one is decision No. 61/2011. (vii. 12.) on the constitutional review of constitutional amendments, in which the Hungarian Constitutional Court demonstrated its reluctance to substantially analyze the constitutional amendments by relying on its previous practice and foreign examples. Among the examples used by the reasoning, there are legal norms and practices from Algeria, Cambodia or Kyrgyzstan but the focus is on the European practices on the basis of which the Court stated that in lack of concrete competences, only the federal states and the constitutional courts of those countries extended their competences to the substantial analysis of constitutional amendments the constitutions of which contain an eternity clause. The Court set aside countries like Peru, Kyrgyzstan, Sri Lanka, Bangladesh, Nepal, Turkey and above all, India, whose constitutional courts examined substantially the constitutional amendments without having competences and explicit eternity clauses. For this reason, it is difficult to defend against the suspicion of selective sorting, as the Hungarian Court did not name several examples which go against the conclusions of the decision. It is so outstanding that László Kiss, the judge who attached a dissenting opinion to the decision, cited the Indian case law several times in it. We have to note another and even more interesting fact, i.e. that in the following years, the decisions on unconstitutional amendments of the Constitution contained fewer references to foreign law: in decision No. 45/2012. (xii. 29.), it only appears in the dissenting opinion and several judges voiced their displeasure because the decisions followed the German practice. The last decision on the issue, i.e. decision No. 12/2013. (v. 24.) does not cite any foreign laws. The most significant public law problem of the past few years has been the relationship between the national law and the EU law, in particular, constitutional identity and the delegation of powers to the EU. It was especially visible in the immigrant crisis which reached the European continent and the responses that the EU gave to it, that is, the resettlement quota. As it affects all the EU member states, the analysis of the practice of foreign constitutional courts would be useful indeed. Decision No. 22/2016. (xii. 15.) regarding the issue examined the Czech, Danish, Estonian, French, Irish, Polish, German, Italian and Spanish legal practices. According to Tímea Drinóczi, “the Constitutional Court makes the incorrect impression that Hungary corresponds to Denmark regarding the procedure of power delegation (modification of EU treaties and referendum), or in other contexts (right to vote, protection of ­fundamental rights), to Germany or Poland.”44 As other critics, we may add 44

Drinóczi (n 42) 142.

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the import of the decision on identity control from the German Constitutional Court without mentioning it explicitly, furthermore, the Hungarian Constitutional Court misunderstood the subject of identity control, as it listed questions concerning those parts of the identity which were named in the German decision regarding the practice of sovereignty.45 Decision No. 22/2016. (xii. 15.) represents a rather unsuccessful import of foreign law. The Hungarian Constitutional Court applies the comparison of law in numerous and various matters but the import of foreign law is more frequent in some issues like the rights to fair trial, property, assembly and the right to free expression. As we may note, the Hungarian Constitutional Court uses the comparative method on issues regarding fundamental rights. In the past few years, the Court has started to apply law comparison regarding the criteria of admission of constitutional complaints. As the constitutional complaints became the most important instrument of the Constitutional Court’s legal protection, it is logical that the German Constitutional Court’s interpretation had governing effect, especially because the Hungarian reform took the German solution as an example in the evolution of the new institution of constitutional complaints. Despite the above-mentioned relationship, it is worth noting that legal comparison appeared primarily only in concurring and dissenting opinions. 3.2.3 The Impacts of the Latent Transposition of Foreign Law The other method for applying foreign law is the previously mentioned latent transposition of law, when the court imports a foreign law or argumentation used by another constitutional court but without any specific references. Actually, this is what is acceptable for the resistance model of making references to foreign law but it is also true that in the presence of this practice, it is the most difficult to reveal the parallelisms between the practice of constitutional courts. In this part, we have presented the practice of the Hungarian Constitutional Court through two fundamental rights, i.e. the right to human dignity and the freedom of expression. The two most important matters for the latent import of foreign law and practice are the right to human dignity and the freedom of expression. This unique acceptance was of critical importance in the first era of the Hungarian Constitutional Court, at the time of László Sólyom’s presidency, when the Court imported whole legal constructions from other states’ constitutional courts, especially from the German Constitutional Court.46 These applied legal constructions as the “living law”, “general right relating to personality”, 45 ibid 142. 46 Szente, Érvelés és értelmezés az alkotmányjogban (n 32) 235–236.

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“concept of individual autonomy, which is untouchable for legislation” and the monist approach of right to human life and dignity (their inseparability) is related more or less to human dignity. “The source of acceptance was not always signaled either in the first years of the Hungarian Constitutional Court, while foreign and especially German constitutional dogmatism admittedly had a significant influence on the Hungarian interpretation of the Constitution.”,47,48 Zoltán Szente notes, based on interviews made with judges, that in several cases, the Hungarian Court imported certain parts of the decisions of the German Constitutional Court word for word.49 On the other hand, the concept of living law was imported from the practice of the Italian Constitutional Court, as the previous president of the Hungarian Court explained it in his book.50 The Hungarian Constitutional Court has imported legal practices from the Supreme Court of the United States of America on issues regarding the freedom of expression. In the first years, the Hungarian Court applied the American test of clear and present danger, although from the 2000s, it started to follow a new interpretation, as it determined new values to be protected constitutionally, and for their protection, it used the instrument of restriction of fundamental rights when special reasons existed.51 We may also note that the basic element of the consideration of constitutionality taken by the Hungarian Constitutional Court is that the restrictions on the right to freedom of expression should be content-neutral. In the reasoning of its decisions, this problem appears emphatically and it imports more from the American concept than other European constitutional courts do, or even the Strasbourg Court does. This does not mean that the Hungarian Court fully imports the American concept on the right to freedom of expression but it is evident that the Hungarian reasoning introduced and consolidated the

47 48

49 50 51

Szente, ‘A nemzetközi és külföldi bíróságok ítéleteinek felhasználása a magyar Alkotmánybíróság gyakorlatában 1999 és 2008 között’ (n 23) 67. About the reception of the German BVerGE’s practice on the human dignity see: Catherine Dupré,’Importing Human Dignity from German Constitutional Case Law’ In ­Gábor Halmai (ed), The Constitution Found? The First Nine Years of the Hungarian Constitutional Review on Fundamental Rights (indok 2000) and Dupré, Importing the Law in ­Post-­Communist Transitions. The Hungarian Constitutional Court and the Right to Human Dignity (n 23). Szente, ‘A nemzetközi és külföldi bíróságok ítéleteinek felhasználása a magyar Alkotmánybíróság gyakorlatában 1999 és 2008 között’ (n 23) 67. László Sólyom, Az alkotmánybíráskodás kezdetei Magyarországon [The Beginnings of the Activity of the Constitutional Court in Hungary] (Osiris 2001) 189. Szente, ‘A nemzetközi és külföldi bíróságok ítéleteinek felhasználása a magyar Alkotmánybíróság gyakorlatában 1999 és 2008 között’ (n 23) 65.

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content-based analysis founded in the US in a more evident way than the rest of the European countries.52 A decade after the beginning of the activity of the Constitutional Court – along with the consolidation of constitutional dogmatism – the complete acceptance of legal constructions, latent import of foreign law disappeared. 4

Conclusions and Further Possibilities

Hungarian academic literature has a basically common standpoint on the evolution of the Constitutional Court’s practice in terms of using foreign laws and the relation of the Constitutional Court to foreign law: “the first decade was characterised by an extensive and reasoned comparative method, while in the second decade, reference to international and foreign law was ’often inconsequent, illustrative and having legitimating purposes’”.53 In general, we may note that “the Hungarian Constitutional Court belongs to the more open constitutional courts, which relatively often make references to the decisions and solutions of foreign courts.”54 However, it is an interesting fact that the Hungarian Constitutional Court does not use foreign practice as the basis of its reasoning, except in very few cases, when it applies a concrete comparison. The comparison of law only remains a colourful element of the Court’s practice. On the other hand, a latent acceptance reveals the import and copy of complete legal constructions and reasoning modes. The relative openness of the Constitutional Court towards foreign law has raised several problems. The major part of these threatens all those constitutional courts which apply the practice of law comparison. Problems like the selective presentation of foreign legal norms and practices, as well as their misinterpretation are known in academic literature but they are also mentioned in concurring opinions and dissenting opinions. It is forward-looking that the genuine latent transposition of laws was reconsidered and the application of foreign law appears in a more transparent way. Another positive change is that the Constitutional Court determined the role of law comparison and that the 52 53

54

András Koltay, Bernát Török (eds), Sajtószabadság és médiajog a 21. század elején [Freedom of Press and Media Law in the Beginning of the 21st Century] (Complex 2014). Nóra Chronowski quotes Gábor Halmai. (Gábor Halmai: Alkotmányjog – Emberi Jogok – Globalizáció. Az alkotmányos eszmék migrációja [Constitutional Law – Human Rights – Globalisation. Migration of Principles of Constitutionalism] (L’Harmattan 2013) 124–132, 162) Chronowski (n 48) 30. Szente, ‘A nemzetközi és külföldi bíróságok ítéleteinek felhasználása a magyar Alkotmánybíróság gyakorlatában 1999 és 2008 között’ (n 23) 70.

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skepticism regarding the citation of foreign precedents appeared not only in academic literature but also in the practice of the Court in a demonstrable way. This may maintain such a discourse that could contribute to clarifying the role of law comparison. We may observe that the Hungarian Constitutional Court has applied the import of foreign law, both the latent and explicit forms, primarily in the cases concerning fundamental rights first but it also started to use them in cases regarding other issues. Concerning this trend, we may note numerous citations of foreign law in the reasoning of decisions on anti-constitutional amendments of the Constitution and on the relations between national law and EU law. Taking into consideration the literature and the tendencies of the Court’s practice, including the increasing role of constitutional discourse, we expect that there will be a more intensive trend of references to foreign law, especially because there are matters in case of which the Hungarian Constitutional Court has not used, or has not used an appropriate level of details, the opportunities offered by the comparison of law. This is the case of the interpretation of the institution of referendums, where the legal practices of the German Lands, some states of the usa and the Central and Eastern European countries could make a significant contribution.55 55

The use of foreign law in the field of referendum is emphasized by László Komáromi, ‘Az országos népszavazás és az Alkotmánybíróság – reflexiók az elmúlt negyedszázad gyakorlatára’ [‘National referendum and the Constitutional Court – reflections on the practice of the last 25 years’] (2015) 2 Alkotmánybírósági Szemle [Constitutional Court Review] 79.

rigth to property

3024/2016. (ii. 23.)

right to fair trial

3090/2016. (v. 12.)

dec.

rigth to property, right to own (horizontal effect)

5/2016. (iii. dec. 1.)

dec.

subject

The decision’s

number (and type date)

Appendix

German (GG-Constitution)

in the reasoning

Tamás Sulyok’s: German

László Kiss’s: ­Bulgarian, Irish, ­Italian, Turkish, British

in the concurring opinion(s)

Use of foreign law

István Stumpf’s: German

in the dissenting opinion(s)

case law

statute law

general remarks

case law

statute law

general remarks

case law

statute law

general remarks

Type of the used foreign law

638 Erdős and Tanács-Mandák

dec.

order

dec.

dec.

3091/2016. (v. 12.)

3095/2016. (v. 12.)

13/2016. (vii. 18.)

14/2016. (vii. 18.)

right to assembly

right to assembly

competences of Constitutional Court

rigth to property (legal subjectivity of fundamental rights, horizontal effect of fundamental rights, admissibility of constitutional complaint)

American (usa)

American (usa)

case law

Ágnes Czine’s: German, Canadian, American (usa)István Stumpf and Egon Dienes-Ohm’s joint: German

case law

statute law

general remarks

case law

statute law

general remarks

Béla Pokol’s: general case law practice of American and European Supreme and Const. Courts

statute law

general remarks

statute law

Ágnes Czine’s: German

general remarks

Use of Foreign Law in the Practice of the Hungarian CC

639

defamation (admissibility of constitutional complaint)

order

order

dec.

dec.

3147/2016. (vii. 22.)

3179/2016. (ix. 26.)

3195/2016. (x. 11.)

22/2016. (xii. 15.)

in the reasoning

constitutional identity, constitutional disdelegation of powers to course in the EU the EU

consumer protection (admissibility of constitutional complaint)

mining easement (admissibility of constitutional complaint)

subject

number (and type date)

The decision’s

István Stumpf’s: critics regarding the import without any examination of the practice of German Cons. Court

István Stumpf’s: German

István Stumpf’s: German

in the concurring opinion(s)

Use of foreign law

István Stumpf’s: German

in the dissenting opinion(s)

general remarks

case law

statute law

general remarks

case law

statute law

general remarks

case law

statute law

general remarks

Type of the used foreign law

640 Erdős and Tanács-Mandák

dec.

dec.

order

1/2015. (i. 16.)

2/2015. (ii. 2.)

3099/2015. (v. 26.)

right to assembly

rigth to property, separation of powers

freedom of expression

Danish, Estonian, French, Irish, Italian, Polish, Spanish,Czech, British, German

István Stumpf’s: German

László Kiss’s: German

László Kiss’s: usa (doctrine of checks and balances)

case law

statute law

general remarks

case law

statute law

general remarks

case law

statute law

general remarks

case law

statute law

Use of Foreign Law in the Practice of the Hungarian CC

641

right to assembly

rigth to property

30/2015. (x. dec. 15.)

32/2015. (xi. 19.)

freedom of expression (public players’ criticizability)

13/2014. (iv. 18.)

dec.

freedom of expression (public players’ criticizability)

7/2014. (iii. dec. 7.)

dec.

subject

number (and type date)

The decision’s

American (US)

American (US)

German

in the reasoning

in the concurring opinion(s)

Use of foreign law

general remarks

case law

statute law

general remarks

case law

statute law

general remarks

case law

statute law

general remarks

case law

Barnabás Lenkovstatute law ics’s: roman law (lex Rhodia), Austrian and South-African

in the dissenting opinion(s)

Type of the used foreign law

642 Erdős and Tanács-Mandák

dec.

dec.

dec.

dec.

16/2014. (v. 22.)

23/2014. (vii. 15.)

24/2014. (vii. 22.)

28/2014. (ix. 29.)

personal rights

euthanasia

constitutionality of punishment

time-barring, rule of law

American (US), European (in general)

case law

American (US)

case law

statute law

general remarks

case law

statute law

general remarks

staute law

general remarks

case law

American (US), Slovakian (penal codes)

Elemér Balogh’s Austrian, German, Swiss

Miklós Lévay’s: German

statute law

general remarks

Use of Foreign Law in the Practice of the Hungarian CC

643

type

dec.

dec.

number (and date)

3206/2013. (xi. 18.)

34/2014. (xi. 14.)

in the reasoning

equality before law, freedom to conduct business (horizontal effect) French, Austrian, German (Civil Codes)

right to fair trial (right to legal remedy), depu- German (constituties’ right to speek tion, GG)

subject

The decision’s

general remarks

case law

statute law

general remarks

László Kiss’s: Roman statute law law (lex Rhodia), German

László Kiss’s: German (constitution, GG)

in the dissenting opinion(s)

Type of the used foreign law

Tamás Sulyok’s: German László Kiss’s: South- case law African (Civil Code)

in the concurring opinion(s)

Use of foreign law

644 Erdős and Tanács-Mandák

dec.

dec.

36/2014. (xii. 18.)

1/2013. (i. 7.)

electoral registration

right to fair trial, immunity of State

Péter Kovács’s: French, Belgian, British, usa, Canadian, australian, Portuguese, New

Béla Pokol’s: usa and European (in general)

case law

statute law

general remarks

case law

Belgian, English, Naples, American (usa), European (in general), German, French, Italian the aim and f­ unction of ­comparison of law is to differentiate the international and foreign law in the practice of the Hungarian Cons. Court

statute law

American (usa) (level László Kiss’s: Polish of laws)

general remarks

Use of Foreign Law in the Practice of the Hungarian CC

645

freedom of expression (penalisability of symbols of despotism)

right to fair trial, rights of defence

dec.

4/2013. (ii. 21.)

8/2013. (iii. dec. 1.)

right to assembly, right to fair trial (right to access the court)

dec.

3/2013. (ii. 14.)

subject

type

number (and date)

The decision’s

American (usa)

case law

German, Italian, Polish

case law

statute law

general remarks

statute law

case law

statute law

general remarks

German, Austrian, Italian, Slovakian, Lithuanian, Latvian, Rumanian, Polish laws and Ukrainian local and regional laws

in the dissenting opinion(s)

general remarks

in the concurring opinion(s)

Type of the used foreign law

limits of import of foreign law

American (usa)

in the reasoning

Use of foreign law

646 Erdős and Tanács-Mandák

freedom of expression (Auschwitz-Lüge)

invalidity laws (quasi amnesty) – rule of law, separation of powers, fair trial

dec.

16/2013. (vi. 20.)

24/2013. (x. dec. 4.)

unconstitutional amendments of the Constitution, separation of powers

dec.

12/2013. (v. 24.)

statute law

French, Italian, German, usa level of laws and decrees

case law

general remarks

case law

statute law

general remarks

case law

function of comparison of law (on the decision No. 1/2013. but ”it enriches the practice of the Cons. Court”)

German, Swiss, British, Belgian, Czech, French, Polish, Rumanian, Slovakian, Portuguese, Lithuanian criminal law

László Kiss’s: usa (doctrine of checks and balances)

statute law

general remarks

Use of Foreign Law in the Practice of the Hungarian CC

647

type

dec.

dec.

number (and date)

33/2013. (xi. 22.)

34/2013. (xi. 22.)

right to fair trial (judge’s impartiality)

right to fair trial (ne bis in idem)

subject

The decision’s

statute law

case law

American (usa), Belgian, French, Italian, German, Austrian and Swiss laws Canadian

general remarks

case law

general remarks

American (usa)

in the dissenting opinion(s)

statute law

Béla Pokol’s: the excessive reference to foreign law undermines that the decisions be built on the Fundamental Law (at the examination foreign law can be taken into consideration but the reference to them need to be eliminated in the decision)

in the concurring opinion(s)

Type of the used foreign law

German, Slovanian, usa Constitution, Swiss Criminal Law

in the reasoning

Use of foreign law

648 Erdős and Tanács-Mandák

dec.

dec.

dec.

36/2013. (xii. 5.)

33/2012. (vii. 17.)

45/2012. (xii. 29.)

rule of law, review of constitutional amendments jogállamiság,

rule of law (judges’ compulsory retirement)

right to fair trial (relocation of cases between courts)

Slovakian, Polish, Rumanian, Czech, Spanish, British, American (usa), EU memberstates (without concrete nominations)usa Constitution

French, Danish, Dutch, British laws

statute law Egon Dienes Ohm’s: case law German

Mária Szívós’s: German

general remarks

case law

statute law

general remarks

case law

statute law

general remarks

Use of Foreign Law in the Practice of the Hungarian CC

649

Constitutional Adjudication and Comparative Law in the Republic of Croatia Carna Pistan 1 Introduction This chapter focuses on the use of comparative law by the Croatian ­Constitutional Court in shaping and interpreting the existing Croatian constitutional  order. In particular, it explores whether the use of comparative law by the constitutional adjudication body could be perceived as exceptional or it became more regular over the time in accordance with the events that have marked the democratic development of the country. Over the past two and a half decades Croatia experienced several challenges: from the fall of communism and the 1990 adoption of its first democratic Constitution, which was followed by the 1991 declaration of independence and the violent break-up of the Yugoslav federation to the subsequent process of a failed democratic transition in the 1990s, the accession to the European Convention on Human Rights (hereinafter: the echr or the Convention) in 1997, and the parallel processes of the postponed democratic consolidation and European Union integration, which ultimately culminated in the country’s 2013 European Union (hereinafter: EU) membership.1 The aim of the chapter is to demonstrate how and in which ways the practical use of comparative law has undergone variations in the Croatian case law within the events which have strongly influenced the country’s road to democracy. The main argument of the contribution is that the use of comparative law has intensified considerably in conformity with the specific evolution of the Constitutional Court’s case law to the extent that it could be considered today as an essential reference in its judicial decision-making. To this end the chapter is structured as follows. First, it examines the establishment of the Croatian Constitutional Court and the role that constitutional borrowing occupied in shaping the current system of constitutional justice. Second, it explores some justifications, which can lead, at least theoretically, 1 The peculiarities of the events which accompanied Croatian democratic transition are usually defined by scholars engaged in comparative analysis of democratization as variables that are not easy to control in comparative empirical research. See G. Čular, Political Development in Croatia 1990–2000: Fast Transition – Postponed Consolidation, in Politička misao, 2000, 5, p. 30.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_026

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the Constitutional Court to use comparative law in its case law. Third, it examines the variations in the practical use of comparative law in accordance to the evolution of the Croatian case law. In this sense, the case law under consideration comprehends the most relevant cases decided by the Constitutional Court from its establishment until today. The reasons for taking into the account the overall evolution of the Constitutional Court’s case law are two. On the one hand, the Constitutional Court has been operating under the democratic Constitution (and its further amendments) for approximately twenty-six years, which is a short period of time. On the other hand, there is the necessity to examine the variations in the practical use of comparative law by distinguishing the Constitutional Court’s case law in two different temporal periods, which were strongly marked by the democratic development of the country. Further, the chapter explores the sources of comparative law used by the Croatian case law by distinguishing between international (and supranational) sources of law and foreign (national) law. This is not only because the comparative legal research has expanded its focus to include international law, but especially for the great influence that international law and in particular supranational law have assumed in Croatia in human rights protection and the acceptance of European legal standards. Then, the chapter analyses the comparative law methodology adopted by the Constitutional Court, as well as the overall impact of the Court’s use of comparative law in interpreting and shaping the Croatian constitutional order. Finally, some critics to the use of comparative law are addressed, as well as the response given to these critics by the Constitutional Court itself. 2

The Role of Constitutional Borrowing in the Establishment of the Croatian Constitutional Court

The current Croatian Constitutional Court has been formally established by the first country’s democratic Constitution of 22 December 1990 although its institutional life begun on 7 December 1991, when the Court started to perform its activities. Its introduction into the present Croatian constitutional order could be only partly explained in terms of a wider trend, which saw the proliferation of Constitutional Courts all over Central and Eastern European countries (hereinafter: ceecs) after the fall of communism and during the initial phase of a democratic transition. This is because contrary to other ceecs the creation of a Constitutional Court in the post-communist Croatia did not represent a radical innovation. As Croatian legal scholars often underline, the constitutional review has a long tradition in the country as it dates back to the

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pre-democratic era.2 In fact, the former Yugoslavia established a complex system of constitutional justice, which provided for Constitutional Courts both on the federal and the republican levels. As one of the Yugoslav constituent republics, Croatia introduced its first Constitutional Court in the 1963 Constitution and retained it in the later 1974 Constitution. This first experiment of constitutional adjudication represented, however, a limited form of judicial review. Due to the basic principles of communist constitutional ideology, the Constitutional Court’s decisions were not final, and more generally during the entire communist period the primarily activities of the Constitutional Court were mainly focused on the review of legality of sub-legislative acts and not on the review of constitutionality of legislation.3 The 1990 democratic Constitution then replaced the old Court with a new constitutional adjudication body, officially denominated the Constitutional Court of the Republic of Croatia (hereinafter: ccrc or the Court). Today the ccrc is regulated by the 1990 Constitution (as amended in 1997, 2000, 2001, 2010, and 2013), the 1999 Constitutional Act on the Constitutional Court (as amended in 2002), and the 2003 Rules of Procedure. The constitutional framework, in particular, denotes a prominent role that constitutional borrowing occupied in creating the current system of constitutional justice. In designing the ccrc, Croatia generally followed the European (or Continental) model of constitutional review, and more particularly it was strongly influenced by the Austrian and German systems of constitutional adjudication.4 Accordingly, the ccrc is designed as a specialized body, separate and apart from the regular judicial system, composed of thirteen judges elected for eight years by the national Parliament.5 The most important ccrc’s power is that of the review of constitutionality of legislation, which comprehends both the ex post abstract review and the concrete norm control. In addition, the ccrc is empowered to decide on constitutional complaints against individual decisions of governmental bodies, bodies of local and regional self-government and legal entities with public authority, when these decisions violate fundamental rights and freedoms. Further, it performs a number of other powers, such as deciding on jurisdictional disputes between the legislative, executive and judicial branches, the impeachment of the President of the Republic, the 2 See for example J. Omejec, Fundamental Rights in Croatia, in D. Merten, H-J. Papier, R. Arnold (eds.), Manual of Fundamental Rights in Germany and Europe, Heilderberg, 2016, p. 8. 3 See Čarna Pištan, Tra democrazia e autoritarismo. Esperienze di giustizia costituzionale nell’Europa centro-orientale e nell’area post-sovietica, Bologna, 2015, p. 131. 4 B. Smerdel, Ustavno uređenje europske Hrvatske, Zagreb, 2013, p. 149. 5 Article 126 of the Constitution of the Republic of Croatia.

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constitutionality of the programs and activities of political parties, and the constitutionality of elections and national referenda.6 Besides these competences, which have been all derived from the European model, the ccrc also performs some additional powers. For example, it not only exercises the review of constitutionality of legislation, but also the review of constitutionality and legality of other regulations in both abstract and concrete proceedings. Moreover, it can monitor the realization of constitutionality and legality, and notify the national Parliament on detected violations (added in 2000); it may proceed ex officio if it considers this necessary to examine a particular piece of legislation or regulation, and it can decide on actio ­popularis – the process of abstract, de-individualized constitutional complaint, according to which everybody (even foreigners) can appeal to the Court to declare laws invalid on grounds that they violate the Constitution.7 In all of these latter cases the Croatian system of constitutional justice has nothing to do with constitutional borrowing, but it reflects the continuity with historical traditions as the same competences were exercised by the old Constitutional Court, which was created under communism. It thus means that some elements of the historical system of constitutional justice still form an important part of the current system of constitutional review. Nowadays, however, the ccrc’s decisions are final, enforceable and obligatory.8 All decisions should contain an introduction, a dictum and reasons, and are published in the Official Gazette Narodne novine.9 Additionally, Croatia allows its constitutional judges to issue separate opinions whenever they do not agree with the Court’s judgment. Such opinions express the reasoned views of the minority judges (dissenting opinions), or of those judges who, while agreeing with the Court’s final decision, disagree with its reasoning (concurring opinions).10 As for the effects of the decisions, the Court can repeal a law, or its part, if it finds it to be unconstitutional. The repealed law, or repealed legal provision, becomes ineffective ex nunc, i.e. from the decision’s publication in the Official Gazette. In the case of the review of constitutionality and legality of sub-legislative acts, the Court may either repeal (ex nunc) or annul (ex tunc) the unconstitutional/illegal act.11 In the twenty-six years of its institutional life under the democratic Constitution, a total of 100.66 cases arrived at the ccrc of which 97.312 have been already decided. Approximately, 12.5% of decisions 6 7 8 9 10 11

Article 129 of the Constitution of the Republic of Croatia. Ibid. Article 31 Constitutional Act on the Constitutional Court. Article 28 Constitutional Act on the Constitutional Court. Article 27 Constitutional Act on the Constitutional Court. Article 131 of the Constitution of the Republic of Croatia.

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were rendered in proceedings of abstract review of legislation (or other regulations); 86.5% in relation to constitutional complaints, and 1.8% in exercising other competences which are prescribed by the Constitution. In more than 700 cases the ccrc repealed the legislation under consideration, while in almost 2.800 cases it found violations of human rights mostly deciding on constitutional complaints.12 2.1 Theoretical Justifications for the Use of Comparative Law The general overview of the ccrc’s constitutional design clearly shows that the Court has been empowered with a broad jurisdiction. This jurisdiction, however, does not comprehend powers directly related to the use of comparative law. Contrary to other ceecs (such as Albania, Bulgaria, Latvia, Slovenia or Slovakia), Croatia does not formally allow its Court to perform neither an abstract review of international treaties prior to their ratification, nor the review of conformity of national laws and regulations with ratified international agreements. From the theoretical perspective, it thus seems that the only justification for the ccrc to use comparative law in its case law might be indirectly derived from the prominent role that constitutional borrowing occupies in the 1990 Constitution. As in other ceecs, which adopted new Constitutions during the initial phase of a democratic transition, the Croatian constitutional document has been modeled by imitating Constitutions belonging to the Western legal tradition.13 It follows that constitutional borrowing did not only influence the current system of constitutional justice, but also many other segments of the existing Croatian constitutional order. For example, the Spanish Constitution has influenced constitutional provisions defining Croatian fundamental values, as well as provisions dedicated to the status of international treaties in the domestic legal order. The French, Italian and especially German Constitutions have influenced provisions on the unity and indivisibility of the Republic and those proclaiming the popular sovereignty and the democratic character of the State.14 On the contrary, the part of the Croatian Constitution, which is dedicated to fundamental rights and freedoms was strongly inspired by the most relevant international (or supranational) treaties, such as the 12 13 14

https://www.usud.hr/hr/statistika (Accessed October 2017). See generally W. Osiatynsky, Paradoxes of constitutional borrowing, in International Journal of Constitutional Law 2003, 1, pp. 244–268. See S. Barić, M. Miloš, Foreign precedents in constitutional litigation. National Report: Croatia, in M. Schauer, B. Verschraegen (eds.), Foreign Precedents in Constitutional Litigation. A Comparative Law Study, in General Reports of the xixth Congress of the International Academy of Comparative Law, Dordrecht, 2017, p. 5 ff.

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International Covenant on Civil and Political Rights and the echr, and only occasionally by other foreign Constitutions. Moreover, constitutional borrowing has taken place not only at the time of constitution making but also during the adoption of further constitutional changes. For example, the 2000 constitutional amendments changed the Croatian form of government from the semi-presidential system, originally influenced by the French experience, to a more balanced form of parliamentary system by taking into the account other democratic countries in Europe and the world, with special regard to the experience of other ceecs undergoing democratic transition.15 In addition, the Hungarian Constitution was specifically used as a suitable model for changing provisions dealing with armed forces. Similarly, the experience of other ceecs that underwent the democratic transition has informed the 2010 constitutional amendments, which were adopted in relation to the Croatia’s EU membership.16 The similarities between the Croatian system of constitutional review and the Austrian and German systems of constitutional justice, as well as the correspondence between the Croatian and foreign national Constitutions can lead the ccrc, at least theoretically, to invoke foreign national law in its case law. Such assumption has been occasionally accepted even by the ccrc itself. For example, in the Agricultural Law case (2011), the Court dealt with issues related to private property and the right to ownership by underlying the similarities between the Article 48 of the Croatian Constitution and the Article 14 of the German Basic Law.17 Nothing should prevent the ccrc to follow the same path in relation to international agreements, especially human rights treaties, which influenced the Croatian Constitution. However, the situation with international sources of law is quite different. One the one hand, the Croatian Constitution accepts the monist approach to the relationship between Croatian national law and international law. According to the Article 141 of the Constitution, all concluded, ratified and published international treaties form a part of Croatia’s legal order and have legal force superior to national laws. It follows that ratified and published international agreements are automatically incorporated into the national legal sphere and are directly applicable. From a formal perspective, all ratified international treaties thus enjoy a 15 16 17

See V. Mratović et al., Stručne osnove za izradu prijedloga promjene Ustava Republike Hrvatske, in Zbornik Pravnog fakulteta u Zagrebu, 2000, 3, p. 374. See B. Smerdel, Ustav RH nakon ustavnih promjena iz 2010., in Hrvatska pravna revija, 2010, 9, p. 4. Constitutional Court of the Republic of Croatia, decision U-I-763/2009 of 30 October 2011, §4.

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supra-legislative status, but in relation to the national Constitution they retained a sub-constitutional status.18 One the other hand, some Croatian scholars suggested that the ccrc is implicitly empowered to perform the ex ante abstract review of international treaties. The justification for enabling the ccrc to exercise this competence has been derived from the doctrine of implied powers, according to which the Court can exercize not only competences specifically enumerated in the Constitution but also those that are necessary for performing its function of the guardian of the Constitution.19 However, the latter suggestion has not been accepted by the ccrc, which in the Holy See Treaties case (2004) clearly stated that it is not competent to review the constitutionality of treaties prior to their ratification.20 On the contrary, by relying on the hierarchy of legal sources as established by the Constitution, in the Expropriation Act case (2000), the ccrc proclaimed itself competent to review the conformity of national acts against international treaties, even though the Constitution does not expressly empowered the Court with such competence.21 More precisely, the Court took as the basis for establishing this competence the Article 129 of the Constitution, which prescribes the basic power of the ccrc that is the review of constitutionality of legislation and the review of constitutionality and legality of other sublegislative acts. Further, the Court stated that the Article 129 of the C ­ onstitution should be read in conjunction to the Article 5 of the Constitution, which establishes the principles of constitutionality and legality by requiring that all laws should be in conformity with the Constitution and all other regulations in conformity with the Constitution and laws. Since the hierarchy of legal norms in Croatia consists of the Constitution, ratified and published international treaties, laws and other regulations, the ccrc concluded that it is not only ­entitled but also obliged to perform the review of conformity of national legislation and regulations with ratified international agreements. In the view of 18

19 20

21

See J. Omejec, Legal framework and case-law of the Constitutional Court of Croatia in deciding on the conformity of Laws with international treaties, Report: CDL-JU(2009)035 in http:// www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-JU(2009)035-e (Accessed September 2017). See S. Rodin, The Constitutional Court of the Republic of Croatia and International Law, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1995, 3, p. 790. Constitutional Court of the Republic of Croatia, decision U-I-825/2001of 14 January 2004. See also Constitutional Court of the Republic of Croatia, decision U-I-672/2001 of 25 February 2004. Some Croatian academics have therefore suggested that the ex ante abstract review of international treaties should be added to the Croatian legal system in order to improve it. See B. Smerdel, S. Sokol, Ustavno pravo, Zagreb, 2009, p. 172. Constitutional Court of the Republic of Croatia, decision U-I-745/1999 of 8 November 2000.

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the Court, this conclusion is the only logical consequence that emerged from the Article 141 of the Constitution which prescribes that ratified and published international treaties have a legal force higher than domestic laws. The approach adopted by the ccrc greatly impacted on its powers as it paved the way for introducing both the abstract and concrete review of conformity of national legislation and regulations with international treaties. Furthermore, in later decisions, the ccrc stated that it supervises also the conformity of national legal norms with international treaties in proceedings instituted by constitutional complaints.22 In this sense, the Court affirmed on several occasions that human rights and fundamental freedoms guaranteed by the Constitution may be violated in cases when adjudicating courts in their judgments do not comply with international obligations that Croatia assumed through ratification of international agreements. The ccrc’s intervention in defining the legal status of international treaties in the domestic legal order has allowed it to develop a practice of using international treaties as benchmarks for monitoring domestic legislation. The development of this practice occurred, however, according to a specific evolution of the Croatian case law. 3

The Role of Comparative Law in the Evolution of the Constitutional Court’s Case Law

The evolution of the ccrc’s case law can be described as a process of gradual change, which generally followed the development of the constitutional democracy in the country. As such, it could be distinguished in two different temporal periods. The first one goes back to the 1990 and ended in 2000, when the second period started and is still ongoing. In the first period, the constitutional adjudication focused almost entirely on what has been described as the necessity to preserve the very essence of the Constitution. The second phase is instead known as the European-integrative role of the ccrc.23 The Period of Necessity to Preserve the Very Essence of the Constitution (1990–2000) During the first period of the ccrc’s activities (1990–2000) Croatia underwent a troubled democratic transition, which was partly influenced by the Yugoslav dissolution and the subsequent wars of the 1990s. The process of 3.1

22 23

Constitutional Court of the Republic of Croatia, decision U-III-1801/2006 of 20 May 2009. See J. Omejec, Fundamental Rights in Croatia, supra n. 8, 18 ff.

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d­ emocratization quickly stalled and went into reverse, which resulted in the establishment of a political system that formally incorporated the main features of a semi-presidential system, but in terms of its substance it shared many features of an authoritarian regime.24 It follows that in this first period the ccrc cannot be considered as a really independent body. Although there were some attempts to prevent the autocracy of the State by preserving the very core of the 1990 Constitution, the Court exercised a considerable selfrestraint toward the executive power. At the same time, it did not deal with the issue of developing constitutional judicial argumentation or constitutional standards in human rights protection.25 As a result, during the first decade of its institutional life the ccrc continued to function without really performing constitutional adjudication. Its role remained very similar to that of the old constitutional adjudication body created under communism. In fact, the ccrc acted almost as a regular court of an appellate level performing mostly the review of legality of regulations rather than the review of constitutionality of legislation.26 Although the form of its decisions followed the standard judicial scheme, the judgments were short and often terse, with condensed factual descriptions, and ritualized stylistic forms. Under such circumstances, references to comparative law in the ccrc’s case law were practically inexistent. What can be found is only an example of “hidden influence” of foreign national law. In an early 1990 decision, the Court accepted the concept of a “legally inexistent act”, although such concept was unknown to the Croatian legal order. The concept was clearly borrowed from the French legal order, but the ccrc’s decision did not expressly mention the French case law or the French doctrine.27 Similarly, in this first period, the ccrc very rarely invoked international agreements and when this occurred it referred to them only in declaratory manner without directly applying them. The only remarkable example is given by some decisions in which the Court attempted to explain the legal position of the echr before its ratification. Croatia became a full member state of the Council of Europe on 6 November 1996, and it ratified the echr on 22 October 1997. The echr entered into force on 5 November 1997 (together with Protocols Nos. 1, 4, 6, 7 and 11, while Protocols Nos. 12, 13 and 14 entered into force, respectively, in 2005, 2003 and 24 25 26 27

Croatian scholars consider that the most appropriate term for the type of Croatian regime between 1990 and 2000 would be authoritarian democracy. See G. Čular, Political Development in Croatia 1990–2000: Fast Transition – Postponed Consolidation, supra n. 1, 31. J. Omejec, Fundamental Rights in Croatia, supra n. 8, 16. S. Barić, M. Miloš, Foreign precedents in constitutional litigation. National Report: Croatia, supra n. 14, 31. Ibid.

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2010). In the period prior to the ratification, the echr was explicitly invoked by the 1992 Constitutional Act on Human Rights, which practically made possible the indirect application of the Convention before it became part of the Croatian legal order. In the Croatian Citizenship Act case (1993), the ccrc had the initial opportunity to clarify the significance of invoking the echr by the 1992 Constitutional Act, and it simply declared that by an explicit reference to the echr, the Constitutional Act incorporated the Convention in the Croatian legislation, thus becoming part of the internal legal order with a force superior to ordinary laws.28 It is quite clear that prior to the ratification, which is requested by the Article 141 of the Constitution, there were no constitutional basis for the application of the echr as part of Croatia’s legal order. For this reason, the ccrc’s decision was heavily criticized by several Croatian scholars who argued that in this way the Court re-wrote the Constitution and introduced a new method of incorporating international treaties into the national legal system in a way that does not have any explicit constitutional basis.29 This early position was then corrected in the Istria County case (1995), in which the ccrc simply repeated the wording of the Article 141 of the Constitution and declared that only ratified international treaties can have legal effect in the national legal order. The Court also resorted to an interpretation of Croatian law in accordance with the echr, but it clarified that the adherence to principles contained in international treaties does not amount to ratification.30 Finally, in the Tenancy Act case (1995), the ccrc further specified that the echr deserve constitutional protection as invoked by the 1992 Constitutional Act on Human Rights.31 The Period of the European-Integrative Role of the Constitutional Court ( from 2000) The beginning of the second period of the ccrc’s activities was marked by the adoption of the 2000 and 2001 constitutional amendments, which have changed the originally established form of government to a more balanced parliamentary system by reducing the executive powers. At the same time, the  2000/01 constitutional reform launched the parallel processes of the 3.2

28 29

30 31

Constitutional Court of the Republic of Croatia, decision U-I-206/1992 of 24 May 1993. See for example S. Sokol, Ustavnopravne osnove i primjena Europske konvencije za zaštitu ljudskih prava i temeljnih sloboda u ostvarivanju nadležnosti Ustavnog suda Republike Hrvatske, in M. Vujošević (ed.), in Položaj i uloga Ustavnog suda u primjeni Europske konvencije o ljudskim pravima, Cetinje, 2007, p. 12. Constitutional Court of the Republic of Croatia, decision U-II-433/1994 of 2 February 1995. Constitutional Court of the Republic of Croatia, decision U-I-130/1995 of 20 February 1995.

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­ ostponed democratic consolidation and the EU integration, which ended p with Croatia’s accession to the EU on 1 July 2013. In this new sphere of reality, the role of the ccrc has completely changed. It gradually moved from a previous judicial restraint toward performing judicial activism by accepting and integrating the European constitutional standards into the domestic legal system. However, the harmonization of the Croatian constitutional law with the European legal standards was not an easy task. According to Croatian legal scholars, the ccrc firstly needed to learn and understand the European and modern comparative constitutional law, and at the same time it needed to interpret the Constitution in light of the former as well as simultaneously prepare and render many important decisions.32 The first step in this direction was undoubtedly taken by the afore-mentioned 2000 Expropriation Act Case. In its milestone decision on the relationship between ­national law and international law, the ccrc not only established its competence to review the compliance of national legislation with ratified international agreements, but it had also the opportunity to define the legal position of the echr after its ratification. In fact, it was the first time that the ccrc reviewed the conformity of a domestic law directly with the echr, not with the Constitution, and repealed some provisions of the Expropriation Act on the basis of their non-conformity with the Article 6 of the Convention. In that occasion, the ccrc held that any non-compliance of a national law with the echr simultaneously means the non-compliance of that legal act with the rule of law, the principle of constitutionality and legality, and the principle of legal monism (Articles 3, 5 and 141 of the Constitution). By replacing the constitutional review with a review of the consistency of domestic legislation with the echr, the ccrc secured de facto a quasi-constitutional status for the Convention and the Strasbourg case law even though the echr has f­ormally a sub-constitutional status in the Croatian legal order.33 The same quasi-­ constitutional status was granted also to all ratified international treaties as in the case of constitutional review their role is the same of the Constitution; in fact, they all serve as standards for reviewing national legislation.34 Following the Expropriation Act case, the ccrc started to heavily rely on the echr as interpreted by the European Court of Human Rights (hereinafter: ECtHR) and to a lesser extent on other sources of international law. At the 32 33 34

J. Omejec, Odgovornost ustavnog sudstva za ustavne norme, in A. Bačić (ed.), Ustavna demokracija i odgovornost, Zagreb, 2013, p. 82 ff. J. Omejec, Legal framework and case-law of the Constitutional Court of Croatia in deciding on the conformity of Laws with international treaties, supra n. 18. Ibid.

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same time, it started to greatly rely on foreign national law. The road for a more frequent use of comparative law has been thus definitely opened. 4

The Sources of Comparative Law

As of 2000, the ccrc has referred numerous time in the reasoning of its decisions to several sources of comparative law, including: (a) the echr and the case law of the ECtHR; (b) the EU law and the case law of the European Court of Justice (hereinafter: ecj); (c) other sources of international and supranational law; (d) foreign national law, and (e) foreign academic writings. What follows is a presentation of selected landmark decisions, in which the ccrc relied upon different sources of comparative law. The case law presented below is neither exhausting, nor the only possible selection, but it clearly reveals that the use of comparative law had (and is still having) a great influence in shaping the existing Croatian constitutional order, and especially its democratic consolidation and Europeanisation. 4.1 The echr and the Implementation of Strasbourg Standards Starting from the concept of legal monism, the quasi-constitutional status of the echr in the Croatian legal order and the constitutional demand for a direct application of the Convention, the ccrc has so far referred to the echr and the ECtHR case law in more than 1.200 decisions.35 Among the ECtHR case law to which the crcc has referred in its rulings, approximately 90% was passed in relation to other States Parties to the Convention. It follows that the ccrc has accepted the binding interpretative authority of all judgments of the ECtHR, irrespective of the States in relation to which they were passed if these decisions could have implications for the Croatian domestic law (i.e. the erga omnes effect of the ECtHR case law).36 In the view of Croatian legal scholars, this special position of the echr and the ECtHR case law is primarily the result of the ccrc’s specific approach to the Convention and its particular understanding of the obligations that emerge from it. This approach is built on following issues: (a) n ­ ational Constitutional Courts and the ECtHR perform similar tasks at different 35 36

S. Barić, The Transformative Role of the Constitutional Court of the Republic of Croatia: From the ex-Yu to the EU, Analitika Working paper 2016, 6, p. 28. Constitutional Court of the Republic of Croatia, National Report for the xvith Congress of the Conference of European Constitutional Courts (Vienna, 12–14 May 2014), Zagreb, 2013, p. 19.

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levels; (b) Article 1 of the echr, as a normative framework for the most important aspects of the entire echr system including the principle of subsidiarity, is paramount in determining Croatia’s obligations under the echr; (c) the ECtHR’s judgments transcend the boundaries of a particular case, and (d) the echr is the “constitutional instrument of European public order” and the ECtHR is the creator of “European constitutional standards”.37 As a consequence, the echr and the ECtHR case law are invoked in almost all ccrc’s decisions concerning human rights.38 This includes especially the abstract proceedings and individual complaints, and more rarely other proceedings that the ccrc implements within its jurisdiction. More specifically, the ccrc has so far used the echr as well as the ECtHR case law, in several ways. First, references to the echr and the ECtHR case law have been used to affirm principles not explicitly established by the Croatian Constitution. In this sense, the most famous decision is given by the Tobacco case (2000). In that decision, the ccrc repealed a provision of the 1999 Act of Limitations of the Use of Tobacco Products, which established the prohibition of the sale of tobacco products from vending machines from 1 January 2000.39 In analyzing the case, the ccrc firstly verified the existence of legitimate aim and then applied the proportionality test. Accordingly, the legislative prohibition, which established a restriction of entrepreneurial freedoms and ownership rights was deemed to have legitimate aim that is the protection of health. This is because its main goal was to make possible to check whether tobacco products were sold to minors. The ccrc claimed, however, that the legislative restriction violated constitutional rights because of the lack of reasonable proportionality between the aim and the manner and extent of the restriction of individual rights and freedoms. In fact, the law left only 25 days for entrepreneurs to adjust their activities in accordance to the legislative prohibition, without prescribing a reasonable period of time long enough for them to prepare themesleves for the new business conditions, or alternatively a right for compensation. The most distinctive feature of the ruling is that the ccrc pronounced the principle of proportionality to be an essential 37

38 39

See K. Turković, J. Omejec, Croatia – Commitment to Reform: Assessing the Impact of the ECtHR’s Case Law on Reinforcing Democratization Efforts in Croatian Legal Order, in I. Motoc, I. Ziemele (eds), The Impact of the echr on Democratic Change in Central and Eastern Europe: Judicial Perspectives, Cambridge, 2016, p. 110. Ž. Potočnjak, M. Stresec, Europski sud za ljudska prava i Ustavni sud Republike Hrvatske u zaštititi ljudskih prava, in J. Barbić (ed.), Hrvatsko ustavno sudovanje: de lege lata i de lege ferenda, Zagreb, 2009, p. 132. Constitutional Court of the Republic of Croatia, decision U-I-1156/2000 of 26 January 2000.

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principle of the Croatian constitutional order even though this principle was not explicitly contained in constitutional provisions. At that time, it was only the Article 17 of the Constitution that dealt indirectly with the principle of proportionality by stating that “during the state of war or an immediate threat to the independence and unity of the State, or in the event of severe natural disasters, individual freedoms and rights guaranteed by the Constitution may be restricted, but the extent of such restrictions shall be appropriate to the nature of the danger.” The Court held that if the Constitution requires the implementation of the principle of proportionality under extraordinary circumstances, then this principle should be even more valid in the country under ordinary circumstances. According to Croatian scholars, such assumption reflects a teleological interpretation of the Constitution which was influenced by Strasbourg.40 As a result, some months later, in November 2000, the Article 16 of the Constitution was supplemented with a new § 2: “Any restriction of freedoms or rights shall be proportionate to the nature of the need to do so in each individual case.” Moreover, in the past 16 years, proportionality has become one of the standards test in the Court’s adjudication. Its various steps were definitely elaborated in the Act on Public Assembly case (2011), which represents a sort of text book in which the ccrc analyzes step by step on 40 pages every aspect of proportionality in the wide and narrow sense.41 Second, references to the echr and the ECtHR case law have been used to support the ccrc’s rulings. In this sense, the ECtHR case law is used as an auxiliary instrument to bolster the Court’s decisions or as an interpretative tool in determining the content and scope of fundamental rights and principles of the national Constitution. For example, in the State Judicial Council Act case, the Constitutional Court interpreted the rule of law envisaged by Article 3 of the Constitution by relying on the ECtHR decision in the case of Sunday Times v. United Kingdom (1979) and Malone v. United Kingdom (1984).42 Third, the ECtHR case law has served as a tool for the ccrc to ensure human rights protection beyond the guarantees that were at that time established by the ECtHR. In this sense, in the Retirement Insurance Act case (2007), the Court struck down specific provisions of the Retirement Insurance Act, which established a higher retirement age for men than for women despite the 40

41 42

Additionally, the ccrc established the violation of the Article 1 of Protocol n. 1 to the echr, which represented also a violation of the rule of law, one of the highest constitutional values listed in the Article 3 of the Constitution. See S. Barić, The Transformative Role of the Constitutional Court of the Republic of Croatia: From the ex-Yu to the EU, supra n. 36, 16. Constitutional Court of the Republic of Croatia, decision U-I-295/2006 et al. of 6 July 2011. Constitutional Court of the Republic of Croatia, decision U-I-659/1994 of 15 March 2000.

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ECtHR decision in Stec v. United Kingdom (2006) – and concluded that the difference in retirement age was reasonably and objectively justified since it was intended to correct the disadvantaged economic position of women.43 Finally, the ccrc occasionally changed its own established case law in order to comply with ECtHR case law. For example, inspired by ECtHR case law on Article 6(1) of the echr, which established the right to a fair trial within reasonable time, in its decision U-III-4885/2005, the Court reversed its previous standing – according to which it dismissed constitutional complaints referring to the reasonable length of preliminary administrative proceedings in administrative disputes and only examined the reasonable length of the action pending before the Administrative Court, without accounting for the length of the preliminary proceedings.44 Following this decision, Article 29(1) of the Croatian Constitution on the right to a fair trial within reasonable time started to be applied to preliminary administrative proceedings. More generally, the vast majority of ccrc’s cases invoking the Convention concern the right to trial within a reasonable time protected by the Article 6 of the echr,45 while in other cases the ccrc mostly quoted the Article 3 (prohibition of torture),46 Article 5 (right to liberty and security),47 Article 8 (right to respect for private and family life)48 and Article 14 (prohibition of discrimination)49 of the echr. In its case law the ccrc has adopted several ways of integrating in its decisions the ECtHR case law. Most often this occurs in the following ways: (a) describing the principle adopted by the ECtHR in its approach to a specific echr rule (e.g. taxation) and referring to the relevant case law; (b) directly citing in their entirety the legal opinions of the ECtHR from a particular judgment decision; (c) describing in detail the whole case before the ECtHR and directly citing the relevant legal opinions of the ECtHR in the respective decision; (d) showing the development of a particular legal institute in the case law of the 43 44 45 46 47 48 49

Constitutional Court of the Republic of Croatia, decision U-I-1152/2000 of 18 April 2007. Constitutional Court of the Republic of Croatia, decision U-III-4885/2005 of 20 June 2007. See for example Constitutional Court of the Republic of Croatia, decision U-III-3304/2011 of 23 January 2013. See for example Constitutional Court of the Republic of Croatia, decision U-III-2501/2008 of 16 October 2008. See for example Constitutional Court of the Republic of Croatia, decision U-III-3797/2008 of 17 September 2008. See for example Constitutional Court of the Republic of Croatia, decision U-III-980/2007 of 14 May 2009. See for example Constitutional Court of the Republic of Croatia, decision U-I-4170/2004 of 29 September 2010.

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ECtHR as the ECtHR itself showed it (for example the development of legitimate expectations in the light of Article 1 of Protocol No. 1 to the echr); (e) showing a legal opinion of the ECtHR by listing several cases from its case law in which it applied that opinion; (f) showing the legal opinions of the ECtHR in connection with the positive obligations of States Parties; (g) expressing legal opinion of the ccrc and at the same time referring to a relevant judgment or decision of the echr expressing an identical opinion, and (h) interpreting the structure of the relevant provisions of the Constitution in conformity with the interpretation of comparable echr provisions provided by the ECtHR.50 4.2 The eu Law and ecj Case Law Contrary to the echr and the ECtHR case law, the EU law and the ecj case law have been invoked in a small number of the ccrc’s decisions. The reason is given by the relatively recent Croatia’s accession to the EU. Nonetheless, some references to the EU law and ecj’s decisions can be found in the ccrc case law even in the pre-accession period as this period requested a gradual harmonization of the Croatian legal order with the accumulated body of the EU law, the acquis communautaire. The process of aligning the Croatian national legislation with the EU law started with the 2005 Stabilization and Association Agreement (hereinafter: saa), which Croatia concluded with the EU as a first step toward the EU integration. The saa represents the new generation of agreements for the implementation of the EU accession process in relation to the Western Balkans countries. Subsequently, the ccrc developed a relatively small but important body of case law concerning the saa. For example, it established the necessity to interpret national law in accordance with the purpose and the spirit of the EU law.51 Additionally, the ecj case law influenced the ccrc in elaborating in the national legal sphere some concepts, already developed in the practice of the ecj, such as legitimate expectations.52 50 51

52

See Constitutional Court of the Republic of Croatia, National Report for the xvith Congress of the Conference of European Constitutional Courts (Vienna, 12–14 May 2014), supra n. 38, 19. Constitutional Court of the Republic of Croatia, decision U-III-1410/2007 of 13 February 2008. See B. Stanić, The interpretative effect of European law in the judgment of the Croatian Constitutional Court No U-III-1410/2007, in Croatian Yearbook of European Law and Policy, 2008, 4, 247. See Constitutional Court of the Republic of Croatia, Upitnik za Konferenciju ustavnih sudova: Kriteriji ograničavanja ljudskih prava u ustavnosudskoj praksi, CDL-JU(2004)035, in https://www.usud.hr/sites/default/files/dokumenti/Upitnik_i_tema_XIII._Konferencije _europskih_ustavnih_sudova_odrzane_u_Nikoziji_Cipar_od_15._do_19._svibnja_2005_0. PDF. (Accessed October 2017).

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The accession of Croatia to the EU profoundly affected its national legal framework as it requested (and continues to request) the direct applicability and the unconditional primacy of the EU law over Croatian national legislation. In order to introduce the legal basis for the EU membership, Croatia approved the 2010 constitutional amendments, which introduced a separate chapter on the EU into the Constitution. The status of the EU law within the domestic legal sphere is today regulated by the Article 145 of the Constitution, which expressly accepted the supremacy of the acquis communautaire over the Croatian domestic law, except for the national Constitution. Accordingly, all state authorities, especially domestic courts, ccrc included, have an express mandate to directly apply the EU law, including the ecj case law, and to ensure its supremacy over conflicting national legal rules. The provision on the legal status of EU law in the national sphere is likely inspired by the Article 141 of the Constitution, which provides that ratified international treaties, which are part of the Croatian legal order have primacy over domestic law, but not over the Constitution. Obviously, from the EU’s perspective, this provision contravenes the principle of the unconditional primacy of EU law, which is generally considered to be absolute and which takes precedence over all provisions of national law, including national constitutional norms. Nonetheless, in establishing the relationship between national law and EU law Croatia followed the example of other EU member states, which have not accepted the absolute primacy of the EU law over their national Constitutions. By far the ccrc had not the opportunity to interpret the Article 145 of the Constitution, but it is reasonable to presume that in the new EU context, the Court will encounter the same challenges already faced by the Constitutional Courts in the old EU member states and ceecs, related to the absolute supremacy of EU law over national Constitution. An another issue which derives from the Article 145 of the Constitution is related to the fact that the ccrc is the only body with the power to declare national laws unconstitutional, therefore it is not clear currently if national courts must initiate a concrete review before the Constitutional Court in cases of violation of EU law, but the solution will certainly be established through judicial practice. Although today the ccrc is obliged to consider the EU law in the performance of its competences it should be noted that almost four years after Croatia’s EU accession, the Court’s case law in relation to the EU law remains still very modest as it comprehends a small number of cases. For example, in the Act on Value Added Tax case (2013), the ccrc expressed the intention to analyze the case law of the ecj and Directive 2006-112-EC in order to review the constitutionality of the Act on Value Added Tax as well as to determine whether the EU Charter of Fundamental Rights was applicable to the case it was

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deciding.53 However, the disputed Act was amended by the legislature before the Court adopted its decision, therefore the analysis of the EU law did not take place. Subsequently, the ccrc had not the opportunity to make an important step towards the application of ecj case law as a source of law directly relevant for the resolution of its cases.54 Then, in the decision U-III-351/2014 the ccrcc dismissed the constitutional complaint related to the dispute on whether the preliminary reference procedure under Article 267 of the Treaty on the Functioning of the European Union should be addressed to Luxemburg on the basis that it does not have the jurisdiction to decide on the legality of decisions of ordinary courts, but only to assess whether constitutional rights has been violated.55 However, in that case the ccrc took the opportunity to explain the legal context in which the European Arrest Warrant operates by citing the ecj judgments in case C-105/03 (Pupino) and in case C-396/11 (Radu) even though the official translation of the two judgments was at that time not available in Croatian. According to some Croatian scholars, the example shows that the ccrc pays attention to the ecj case law. So far, however, the case law of the ecj has not been applied as a source of law; it is merely quoted as part of the explanation of the legal background of the case, but it is still not relevant for the outcome of the national case.56 4.3 Other Sources of International Law Although the cases of invoking the echr and the ECtHR case law predominate in the ccrc’s case law, there are several examples in which the Court directly applied or quoted other instruments of supranational/international law, especially human rights treaties. This is because all ratified international agreements can be used in the ccrc’s practice as benchmarks for monitoring national laws, thus enjoying as the echr the quasi-constitutional status. A good example of direct application of an international treaty by the ccrc can be found in the decision U-III-1337/2008, concerning the registration of a subsidiary of a foreign law office, for the provision of consulting services regarding the national law of the foreign service provider and foreign and

53 54 55 56

Constitutional Court of the Republic of Croatia, decision U-I-3861/2013 of 16 July 2013. See I. Božac, M. Carević, Judicial Application of International and EU Law in Croatia, in S. Rodin, T. Peršin, Judicial Application of International Law in Southeast Europe, Heidelberg, 2015, 147. Constitutional Court of the Republic of Croatia, decision U-III-351/2014 of 24 January 2014. See for example Constitutional Court of the Republic of Croatia, decisions U-I-2403/2009 of 25 February 2014 and U-III-2521/2015 of 13 December 2016.

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­international law.57 The Croatian Bar Association complained against the approval of the registration, and in dismissing the constitutional complaint the ccrc expressly stated that the basis for the registration of the subsidiary of a foreign law in question is not provided by Croatian law, but the Marrakesh Agreement that is an international agreement with all the consequences which this fact produces in the internal legal order. Therefore, no special approval or permit was required for the registration of the subsidiary because the basis for the registration are provided by an is an international agreement, which explicitly states that a foreign founder can found subsidiary for the provision of certain services in the Croatian territory. Other cases of invoking international and supranational sources of law included the UN Convention against Corruption,58 the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights,59 the UN Convention on the Rights of Persons with Disabilities,60 Hague Convention on the Civil Aspects of International Child Abduction,61 UN Convention on the Rights of the Child,62 International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,63 the European Charter on Local-Self-Government,64 the Council of Europe’s 2006 European Prison Rules,65 the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages,66 etc. 4.4 Foreign (National) Law If compared to different sources of international law and supranational law, the sources of foreign law are used by the ccrc more occasionally and 57 58 59 60 61 62 63 64 65 66

Constitutional Court of the Republic of Croatia, decision U-III-1337/2008 of 20 May 2009. Constitutional Court of the Republic of Croatia, decision U-I-2414/2011 of 7 December 2012. Constitutional Court of the Republic of Croatia, decision U-I-295/2006 of 6 July 2011. Constitutional Court of the Republic of Croatia, decision U-I-4170/2004 of 29 September 2010. Constitutional Court of the Republic of Croatia, decision U-III-1801/2006 of 20 May 2009. Constitutional Court of the Republic of Croatia, decision U-III-388/2012 6 March 2012. Constitutional Court of the Republic of Croatia, decision U-III-3138/2002 of 7 February 2007. Constitutional Court of the Republic of Croatia, decision U-I-4633/2010 of 6 March 2012. Constitutional Court of the Republic of Croatia, decision U-III-64744/2009 of 3 October 2010. Constitutional Court of the Republic of Croatia, decision U-III-3138/2002 of 7 February 2007.

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unpredictably.67 When foreign law is invoked the ccrc most often cites the jurisdiction of the continental legal tradition.68 This is hardly surprising as the Croatian constitutional order belong to the same civil law tradition. However, there are some cases in which the ccrc had the opportunity to invoke legal solutions of countries which belong to the common law tradition. The foreign sources of law which are most frequently cited comprehend both the foreign legislation and the foreign case law. An example of invoking the foreign legislation is given by the Takeover of Joint Stock Companies Act case (2013), in which the ccrc examined the protection of the right to invest capital as regulated in other countries, in particular the French law and English law, but then it clearly stated that the Croatian legal system is closed to the so called German legal cycle, which includes, within the EU, Germany, Austria and Slovenia. It then examined constitutional provisions and legislation on the right to invest capital in the Austrian and German legal systems.69 In other cases, such as the Criminal Procedure Act case (2012) the ccrc referred to the 1986 US Money Laundering Act,70 while in the Public Assembly Act case (2011) references were made to the 2005 UK Serious Organized Crime and Police Act.71 By contrast, legislative solutions adopted by ceecs are very rarely invoked even though Croatia experienced the same large-scale structural reform related to the democratic transition and its legal, political and social transformation. The only relevant example of invoking legal solutions adopted in ceecs is given by the Compensation Act case (2001), in which the ccrc had the opportunity to deal with some transitional issues. Contrary to other ceecs, Croatia did not enact laws related to transitional justice, such as the legislation on lustration or the punishment of past political crimes. There are, however, some ccrc’s decisions related to other typical aspects of transitional justice, such as the denationalization process. In the Compensation Act case the ccrc repealed some provisions of the Act on Compensation for Property Confiscated during the Yugoslav Communist Regime, which limited the right on compensation only to Croatian citizens, but not also provisions, which did not fully re-establish the rights of former owners over property by arguing that it is the legislator that has to determine which property shall be returned and what kind of compensation shall be given 67 68 69 70 71

See S. Barić, The Transformative Role of the Constitutional Court of the Republic of Croatia: From the ex-Yu to the EU, supra n. 36, 28. Ibidem. Constitutional Court of the Republic of Croatia, decision U-I-4469/2008 of 8 July 2013. Constitutional Court of the Republic of Croatia, decision U-I-448/2009 at al. of 19 July 2012. Constitutional Court of the Republic of Croatia, decision U-I-295/2006 at al. of 6 July 2011.

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because no constitutional provision deals expressly with restitution of property or compensation. The latter position was supported by invoking comparative experiences: “none of the transitional countries that regulate denationalization has economic power to restitute or compensate for all of the confiscated property [...]. All these laws are founded on the basic assumption that remedying old injustices may not inflict new, harder ones [...]. Therefore, there cannot be absolute justice and equality among subjects entitled to restitution or compensation.”72 As far as the foreign case law is concerned, the ccrc referred to the rulings of both European and non-European Constitutional Courts (or Supreme Courts) if they case law was relevant to the specific case under consideration. In addition, in cases in which it is important to establish the existence of “common ground” in the legal orders of the States Parties of the echr, the ccrc usually uses a comparative overview of the case law of their Constitutional Courts. This means that the ccrc has accepted the doctrine of margin of appreciation as elaborated by the ECtHR. For example, in the 2011 Public Assembly Act case the ccrc examined in the annex of the decision the case law of some member states of the Council of Europe. In particular, the annex stated that the legislation and case law of others members of the Council of Europe are taken into the account when the level of consensus among its member states has to be determined, because the agreed “common grounds” between member states can limit the legislator when regulating certain areas. On the basis of this assumption, the ccrc has determined in its decision that so far “common ground” between member states had not been reached regarding the issue at hand.73 The same decision then quoted the case law of the ECtHR and the Convention itself, along with the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. 4.4.1 The Exceptional Influence of the German Case Law Among its European and non-European counterparts, the German Federal Constitutional Court (Bundesverfassungsgericht – hereinafter: BVerfG) exercises, without any doubt, a driving role in guiding the ccrc. The great impact of the BVerfG is not only evident in shaping the structure of the Croatian Court, but especially in orienting its case law. The most important areas of this

72 73

Constitutional Court of the Republic of Croatia, decision U-I-673/1996 at al. of 28 March 2001, § 2.5. Constitutional Court of the Republic of Croatia, decision U-I-295/2006 at al. of 6 July 2011, § 22.

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influence are two: (a) the rules of interpretation of the Constitution and (b) the language of judicial balancing.74 As far as the first area is concerned, the Croatian case law firmly accepts the German concept of the “unity of the Constitution as a logical-teleological entity” (die Einheit der Verfassung als eines logisch-teleologischen Sinngebildes).75 In particular, it is since 2010 that the ccrc follows the famous Southwest State case, decided by the BVerfG in 1951. In its first major decision, the BVerfG laid down the general principles of constitutional interpretation by conceptualizing the “internal coherence and structural unity” of the Basic Law and emphasizing that “the single constitutional provision must be interpreted in such a way that it is compatible with the fundamental principles of the Constitution.” Starting from the Election of Members of the Croatian Parliament Act case (2010), the ccrc largely accepted this rule of interpretation by arguing that: “The Constitution is a single whole. It cannot be approached by pulling one provision out from the entirety of the relations that it constitutes and then interpreting it isolated [...] independently of all the other values that are enshrined in the Constitution. If it is viewed as unity, the Constitution reflects some all-encompassing principles and basic decisions in connection with which all its individual provisions must be interpreted. Thus no constitutional provision may by pulled out of context and interpreted isolated. [...] each particular constitutional provision must always be interpreted in accordance with the highest values of the constitutional order which are the grounds for interpreting the Constitution itself”.76 As for the second area, the ccrc strongly relayed on the Lüth case, one of the landmarks of the German constitutional law, decided by the BVerG in 1958.77 The Lüth decision stands at the origin of the German doctrine on the horizontal effect of constitutional rights among private citizens (Theorie der mittelbaren/indirekte Drittwirkung), and elaborates an original balancing 74

See J. Omejec, Veliki njemački ustav i nepromjenjiva ustavna načela u praksi Saveznog ustavnog suda, in Zbornik “Pravo i pravda 2015” Pravnog fakulteta Univerziteta u Beogradu, 2016, p. 32. 75 See Church Construction Tax case, 19 BVerGE 206, 220 (1965). 76 Constitutional Court of the Republic of Croatia, decision U-I-3789/2003 et al. of 8 December 2010 § 8.2. Compare to 1 BVerGE 14, 32 (1951): “An individual constitutional provision cannot be considered as an isolated clause and interpreted alone. A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions. Taken as a unit, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate. [...] any constitutional provision must be interpreted in such a way that it is compatible with those elementary principles and with the basic decisions of the framers of the Constitution.” 77 See BVerGE 26, 302 (1951).

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language, according to which “balancing [...] does not have to be about policy choices, compromises or ad hocery, but can be about interpreting constitutional rights within a pyramidal, ‘objective’ system of values”.78 The concept of an “objective order of values” (Lehre von der Grundrechten als System Objektiver Wertent Scheidungen) that the Constitution erects in its section on basic rights, which expresses and reinforces the validity of basic rights, forms today the fundamental element of Croatian case law.79 It was firstly introduced by the ccrc in the Rights of National Minorities case (2011). In that decision, the Court examined the conformity with the Constitution of a mechanism which provided voters/national minority members with a supplementary vote at Croatian parliamentary elections by starting from the structural unity of the constitutional text, from which results the objective order of values which the Court has the duty to protect and promote.80 In the view of the ccrc, this objective order of values, centered on the freedom of the human being to deveop in society, should be applied as a constitutional axiom through the whole legal system. In particular, it should direct and inform legislation, administration and judicial decisions.81 In both areas, however, the ccrc did not expressly cite in the text of its judgments the relevant German case law. Such omission does not seem to be an example of “hidden foreign precedent”. Most probably, the need to directly invoke the relevant German case law appeared unnecessary due to the notoriety of the accepted concepts and doctrines and the prestige that enjoys their author. After all, the same trend could be derived in the practice of other Constitutional Courts of ceecs. For example, the Hungarian Constitutional Court recently applied the German concept of “structural unity of the Constitution” to annul certain parts of the Transitional Provisions to the 2012 Fundamental Law without quoting directly its author.82 In addition, the former President of the ccrc, Jasna Omejec, clearly underlines in its writings the great impact of the German case law on the Croatian case law, and in particular the exceptional influence of the Southwest State case, the Lüth case and the Church Construction Tax case in the above mentioned ccrc’s decisions.83 78 79 80 81 82 83

See J. Bomhoff, Lüth’s 50th Anniversary: Some Comparative Observations on the German Foundations of Judicial Balancing, in German Law Journal, 2008, 2, p. 121. See J. Omejec, Fundamental Rights in Croatia, supra n. 8, 20. See Constitutional Court of the Republic of Croatia, decision U-I-3597/2010 at al. of 29 July 2011, § 30. See J. Omejec, Fundamental Rights in Croatia, supra n. 8, 19. See Constitutional Court of Hungary, decision 45/2012. (xii. 29.). See J. Omejec, Veliki njemački ustav i nepromjenjiva ustavna načela u praksi Saveznog ustavnog suda, supra n. 71, 32.

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In other decisions, however, the ccrc directly referred to the relevant German case law and even if not so frequently to the case law of other Constitutional/Supreme Courts of Western liberal democracies, such as the US Supreme Court and the Austrian Constitutional Court. This occurred, in particular, in the spheres of human rights protection and constitutional values interpretation. For example, in the Free Legal Aid case (2011) the German case law was used to interpret some fundamental principles of the Croatian legal order. In addition, the ccrc considered the relevant case law of the US Supreme Court. However, the German case law is cited in more detail especially in order to strengthen and specify the principle of legal certainty. More precisely, by invoking the BVerG, the ccrc affirmed that: “The requirement for a definite and precise legal norm is one of the basic elements of the principle of the rule of law and is crucial for the creation and preservation of the legitimacy of the legal order. It ensures that the democratically legitimate legislator can independently elaborate the basic rights and freedoms in laws, that the executive and administrative powers can draw on clear statutory and regulatory standards for their decisions and that the judicial powers and courts can control the legality of the legal order. When this requirement is not met, indefinite and imprecise laws delegate some of the powers of legislation to subjective administrative and judicial decision-making, which is impermissible in constitutional law.”84 Moreover, the German case law was further quoted in order to sustain that: “The requirement for the definiteness and precision of the legal norm has both a positive and a negative meaning. In the positive meaning, the definiteness and precision of the legal norm means that its wording must allow citizens to know their real and specific rights and obligations so that they can behave accordingly. If two or more legal norms regulate their behaviour, the bodies that bring them must ensure that they are clear and predictable both in content and in their effect in interrelationship. There are various ways in which the legislator can prevent the indefiniteness and imprecision of the legal norm, including by giving special statutory definitions to determine the content of particular statutory concepts. However, in doing so it is always necessary for the facts/conditions in the hypothesis of the legal norm to contain 84

Constitutional Court of the Republic of Croatia, decision U-I-722/2009 of 6 April 2011, § 5.1. Compare to: 1 BvR 370/07 (2008), 209: “The principle of determinedness finds its basis in the principle of the rule of law (…). It is to ensure that the democratically legitimized parliamentary legislature itself takes the essential decisions on encroachments on fundamental rights and the extent of the encroachments, that the Government and the administration find steering and restricting action standards in the statute, and that the courts can carry out judicial review.”

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elements foreseeing that the legal subjects will behave in accordance with its constitutionally acceptable aim.”85 Similar logic inspired the 2012 Criminal Procedure Act case, in which the ccrc was asked to review the constitutionality of several provisions related to the criminal procedure, and in particular the one which established that the dignity of a person may be limited in the process of acquiring evidence for pending criminal proceedings. The Croatian Constitution does not define the concept of human dignity, although several constitutional provisions contain some references to it. For example, Article 25(1) of the Constitution establishes that the dignity of an arrested or sentenced individual must be observed. Thus, in its decision the Court had to define firstly what human dignity means, and in defining this concept it strongly relied on the interpretation developed by the BVerG in the Lebach case, decided in 1973. Accordingly, the ccrc accepts the legal position of the BVerG “that human dignity is a central point that must be used as a starting point for balancing all other constitutional values. This position was expressed in the judgment Lebach (1 BvR 637).”86 The Court then specified that human dignity is protected in absolute terms, is non-derogable and is an incomparable value. As such, no individual right and freedom or public interest may take precedence over the right to human dignity.87 Interestingly enough, in this case the ccrc attempted to create the bridge between  the  German and the Croatian legal orders through the Protocol 13 to the echr as well as to relevant ECtHR case law (in particular, Refah Partisi v. Turkey).88 The great influence of the German case law is further confirmed in the Agricultural Land Act case (2011), in which the ccrc firstly affirms “the comparability in substantive law between Article 48 of the (Croatian) Constitution and Article 14 of the Basic Law of the Federal Republic of Germany [...] of legal principles concerning the constitutional guarantee of the right of ownership”, and then expressly invokes more than ten relevant decisions of the BVerG by 85 86

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Constitutional Court of the Republic of Croatia, decision U-I-722/2009 of 6 April 2011, § 5.2. See also the conclusion of the BVerGe 1 BvF 3/92 (2004) 107, 113. Compare to BVerfGE 35, 202 (1973): “In the case of conflict, both constitutional values must be balanced, as far as possible; if this cannot be achieved, then it must be decided, on the basis of the special characteristics and circumstances of the individual case, which of the interests must be abandoned. In such a case, both constitutional values must be observed in relation to their relationship towards human dignity as a central point in the value structure of the Constitution.” See Constitutional Court of the Republic of Croatia, decision U-I-448/2009 at al. of 19 July 2012, § 44.4. See S. Barić, M. Miloš, Foreign precedents in constitutional litigation. National Report: Croatia, supra n. 15, 10.

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arguing that the German case law has “universal significance in clarifying issues connected with ownership in a social state, i.e. in clarifying the issue of the social function of ownership”.89 However, the heaviest reliance on German case law is undoubtedly present in the Special Tax Act case (2009). In fact, in that case the ccrc firstly stated that the Special Tax Act may be approached by using the legal opinion of the BVerG in the Allphasenumsatzsteuer case,90 that it is in practice impossible, in the case of a tax that is all-encompassing, to find a formulation delimiting the unchallenged part from the challenged part of the act, i.e. that delimitation is possible “only on the theoretical level.”91 Second, the ccrc explained that in solving the case under consideration it “used the relevant case law of the BVerG, which is of universal importance for illuminating tax-policy issues in a social state, i.e., for illuminating the legislator’s obligations in the application of the principles of equality and equity in taxation.”92 It then extensively quoted the BVerG’s Einkommensteuergesetz case93 by arguing that the long-lasting and standard case law of the BVerG – which is applicable in the Croatian constitutional order because of comparative constitutional foundations – indicates the meaning and scope of the principle of tax equality and equity in relation to legislative activities. It also indicates the boundaries of a Court’s powers in the control of these activities through the legal stands of BVerG by stating that it is in principle the legislator who decides which elements are relevant for regulating the real life situations that are to be treated equally or not equally, and in introducing tax bases it has a broad margin of appreciation. This ends only at the point when the equal or unequal treatment of the factual conditions being regulated can no longer be connected with the view that includes an idea of justice, when, therefore, there is no obvious reason for the equal or unequal treatment. It is the task of Constitutional Courts to examine the respect of these external boundaries of the legislator’s freedom (the prohibition of arbitrariness), but not also whether in some specific case the legislator applied the most appropriate, most rational and most equitable solution.94

89 90 91 92 93 94

See Constitutional Court of the Republic of Croatia, decision U-I-763/2009 et al. of 30 March 2011, § 4. BVerfGE 21, 12 (1966) – 1 BvR 320/57, 70/63. See Constitutional Court of the Republic of Croatia, decision U-IP-3820/2009 et al. of 17 November 2009, § 8. Ibidem, § 3.4. See BVerGE 26, 302. Constitutional Court of the Republic of Croatia, decision U-IP-3820/2009 et al. of 17 November 2009, § 15.1. See also BVerfGE 26, 302.

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Finally, in the same decision the ccrc used the German case law to interpret the principles of social state and social justice. In particular, it started from the assumption that these principles “are expressed in a special way in the control of legislative activities by Constitutional Courts, which raises the question on how to determine the borderline on which the constitutionalization of social rights clashes with democracy.” The ccrc explained that this is a problem located on the very crossroads of two basic questions of political philosophy that are also important for contemporary constitutional policy: the question of democracy and of the question of distributive justice. In the work of Constitutional Courts this problem is particularly present in the control of the constitutionality of laws that deal with public policies, especially social policy. The borderline mentioned above is also the line up to which Constitutional Courts may control the work of the legislature from the aspect of the social state (Article 1 of the Constitution) and social justice (Article 3 of the Constitution). The standards for determining this borderline in Constitutional Court’s case law, formulated by the BVerG, are today considered the ruling guidelines for the work of European Constitutional Courts. By referring to the BVerG’s Freie Mitarbeit case, the ccrc stated that: “The principle of the social state may surface in the interpretation of fundamental rights and in the interpretation and assessment by Constitutional Courts – according to the criteria of the kinds of restrictions permitted by law – of laws that restrict fundamental rights. However, this principle is not suitable for directly restricting fundamental rights without closer specification by the legislator. It lays down the state’s obligation to ensure an equitable social order (compare e.g. BVerfGE 5, 85 [198]; 22, 180 [204]; 27, 253 [283]; 35, 202 [235 ff.]); in the fulfilment of this obligation the legislator has a wide margin of free decision-making (BVerfGE 18, 257 [273]; 29, 221 [235]). The principle of the social state, therefore, places an obligation before the state but does not give the details as to how this obligation should be fulfilled – were it otherwise, the principle of the social state would contradict the principle of democracy: the democratic order of the Basic Law, as an order of a free political process, would be fundamentally restricted and deprived if a prior constitutional obligation of a particular and no other solution was imposed on the formation of political will. Because of this openness the principle of the social state cannot directly impose boundaries on fundamental rights.”95 4.5 The Court and Academia Contrary to the foreign law, the ccrc never invokes, at least directly, in its case law the foreign legal scholarship. There are, however, several ways in which 95

Ibidem, § 13.3 See also BVerfGE 59, 231 (1982).

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foreign legal scholars can indirectly enter into the Croatian case law. First, the ccrc refers in its most sensitive decisions on the opinions of the European Commission for Democracy Through Law (the Venice Commission), which are written by foreign law scholars. For instance, in the Marriage Referendum case (2013), related to the introduction in the Constitution of a definition of marriage as a life union between woman and man, the ccrc referred to the Venice Commission Opinion on the Fourth Amendment to the Fundamental Law of Hungary of 17 June 2013, in order to warn against “systematic constitutionalization” that would violate the principle of separation of powers, as well as the system of check and balances.96 Again, in the 2011 National Minorities case, related to the Constitutional Act on Amendments to the Constitutional Act on the Rights of National Minorities the ccrc cited the Venice Commission Report on electoral rules and affirmative action for national minorities participation in decision-making process in European countries of 11–12 March 2005. Similarly, in the 2011 Free Legal Aid case, the ccrc noted that it made use of the European Commission for the Efficiency of Justice’s (cepej) report on legal aid. Second, constitutional judges are the core component of the ccrc and the large majority of them is well informed on matters concerning comparative law. In fact, the majority of constitutional judges is always chosen from the ranks of academia. Although the Croatian Law Schools do not still provide for specific courses in comparative law, the large percentage of the Court’s members is active in teaching and many of them have performed research activities in foreign Universities, therefore they had probably dealt at a certain point with issues related to comparative law. In this sense, there is a possibility that their reasoning would be influenced by examples of foreign law. In addition, constitutional judges participate in a wide range of activities organized by the ccrc, such as scientific conferences, visits of foreign constitutional judges and the Court’s membership in the Venice Commission. In this way, judges have the opportunity to exchange information with other Constitutional Courts and foreign scholars. In addition, some former constitutional judges are also members of the Venice Commission. Moreover, a very successful cooperation with Constitutional Courts of other European and non-European countries is achieved through the Venice Forum. For example, the ccrc established cooperation with other Constitutional Courts through the Venice Forum in the 2009 Special Tax Act case.97 96 97

Constitutional Court of the Republic of Croatia, Warning SuS-1/2013 of 14 November 2013. See Constitutional Court of the Republic of Croatia U-IP-3820/2009 of 17 November 2009, § 3.3: “In these proceedings the Constitutional Court availed itself of the Venice Forum, a special programme of the Commission for Democracy Through Law of the Council of

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Third, the ccrc itself is structured in the way that may support judges in finding and using comparative law material, including foreign case law. Although the organizational structure of the Court did not provide for a Department of international relations and research, it maintains the Advisor’s Service within its organizational structure, which is regulated by the Court’s Rules of procedure. Accordingly, advisers to the Court exercise all non-judicial functions, which include correspondence with the parties in the proceedings and participation in preparing decisions of the Court. As the Advisor’s Service formally includes the Court’s library, it is reasonable to conclude that the advisors may perform research in comparative law. Further, besides the fact that many constitutional judges are also legal scholars, Croatian legal scholarship in general can have an impact on the Court’s decisions. In this sense, legal scholars may participate on advisory debates, which could be organized by the Court before deciding the case. Most importantly, the ccrc can also request written opinions of scholars on particular issues, which are then often used and even expressly cited by the Court when it is called to decide on particularly sensitive issues. In this case, the inspiration to invoke particular foreign case law comes not from the Court itself, but from legal scholars who have submitted their opinions as requested by the Court. An example is given by the 2009 Special Tax Act case, in which the Court extensively used foreign case law extrapolated from the opinion of the Croatian constitutional law professor, Arsen Bačić. Additionally, the ccrc on its own initiative can use scientific works of domestic scholars that deal with particular issues. Finally, it should be noted that although Croatian legal scholars are familiar with comparative law issues, the topic on the use of comparative law by the ccrc is not frequently discussed in academic writings. The most important contributions are given by a number of articles, which have been written by the former President of the ccrc,98 and few other reports, which have been written by some other Croatian authors.99

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Europe (the Venice Commission), through which it requested data on the corresponding measures that the Council of Europe member states took because of the global economic and financial crisis, and which are comparable with the legal measure whose constitutionality is being challenged in these proceedings. By 10 November 2009 the Constitutional Court received the declarations of 21 member states of the Council of Europe (Austria, Bulgaria, Czech Republic, Estonia, France, Georgia, Germany, Ireland, Latvia, Lithuania, Luxemburg, Macedonia, Monaco, Netherlands, Poland, Portugal, Rumania, Slovakia, Slovenia, Spain and Turkey) and also of Belarus, Brazil and the Republic of South Africa.” See for example J. Omejec, Veliki njemački ustav i nepromjenjiva ustavna načela u praksi Saveznog ustavnog suda, supra n. 71. See for example S. Barić, M. Miloš, Foreign precedents in constitutional litigation. National Report: Croatia, supra n. 15.

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The Comparative Law Method

According to Croatian legal scholars, in relation to the approach and methodology which is used by the ccrc in deciding the cases, as well as in the quality of the decisions, the Court’s leading cases may be generally compared to the rulings of the best Constitutional Courts in Europe, such as the BVerG or the Constitutional Court of Austria.100 Undoubtedly, the use of comparative law greatly changed the form and the structure of the ccrc’s decisions. As of 2000, the rulings became much longer with numerous paragraphs of reasoning. An advancement is visible also in the Court’s interpretative techniques as well as in the depth of argumentation. Moreover, the ccrc’s leading decisions indicate that although the comparative law method is differently used, it follows some general rules. First, comparative law is applied by the ccrc especially in the abstract review of constitutionality of laws and in individual complaints, and more rarely in other proceedings that the Court implements within its jurisdiction. Both the international sources of law and foreign precedents citations are usually contained in the reasoning of the Court’s decisions by following two techniques. In some cases, the Court dedicates several paragraphs of the decision to the exam of international or supranational law and foreign precedents. Sections dedicated to the analysis of comparative law are usually entitled “Comparative German and Austrian Law,” “National Law and Practice of the Council of Europe Member States,” “Relevant Provisions of International Charters,” and “Relevant Constitutional and Convention Law.” In these cases, the Court usually cites whole paragraphs of international/foreign law. As in the practice the ccrc has most frequently referred to the ECtHR case law and German case law, it is usually given in Croatian. In the case of the BVerG’s legal opinions, the ccrc also quotes in parentheses the original text in German. A good example is given by the 2009 Special Tax Act case, in which the Court extensively draws upon the description of fundamental principles of the social state as defined by the BVerG. An another example is given by the Execution of ECtHR decisions case (2013), where the Court noted the position of the BVerG on the supremacy of the ECtHR in national constitutional law issues.101 On the contrary, in cases in which the ECtHR case law is quoted, besides the E ­ CtHR’s legal opinion given in Croatian, the ccrc uses the following techniques: 100 See J. Omejec, O važnosti jurisprudencije njemačkog Saveznog ustavnog suda za hrvatsko ustavno sudovanje, in Informator, 5763, 2009, p. 1. 101 Constitutional Court of the Republic of Croatia, decision U-III-3304/2011 of 23 January 2013.

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(a) the original text of the opinion is also given in parentheses in English;102 (b) the key concepts or some sentences or its most important parts are given in parenthesis in English,103 and (c) the key concepts are given in parenthesis in English and in French.104 In other cases, however, the ccrc makes only a mere reference to foreign legislation or foreign case law. This occurs, for example, when the Court has to deal with well-known concepts, such as human dignity, and a mere reference to only one famous foreign case in the area is probably considered sufficient. In some other cases, such as for example the 2011 Agricultural Land Act case, references are made to a series of foreign cases, but it remains unclear how they affect the Court’s decision. For example, in the 2011 Free Legal Aid case, the ccrc referred to the US Supreme Court case law, but it did not explain in which way it has influenced its ruling. Second, when the Court uses comparative law it always appears in the opinion voted by the majority of judges. This means that although Croatia allows its constitutional judges to adopt separate opinions, foreign precedents are never invoked by concurring or dissenting judges to support their arguments. On the contrary, what could be found in some separate opinions is a sort of criticism against the use of foreign law in the majority opinion. An example can be derived from the 2009 Special Tax Act case, in which the Court had to decide on the constitutionality of a temporary emergency tax introduced by the government with the aim to alleviate the effects of the country’s economic breakdown. In deciding that the measure was in conformity with the Constitution, the majority opinion invoked the case law of the BVerG, but two dissenting judges pointed out the flaws in the decision by noting that the point should be whether the tax is in line with the national Constitution and not with the best practices from abroad. Consequently, the two dissenting opinions did not invoke any foreign precedents to counter the majority opinion. Third, the ccrc rarely justifies the use of comparative law in its case law. In the cases in which the Court provides for some justifications, it explicitly or implicitly refers to the universality of a particular interpretation. Discussions on why a particular solution may be considered as universal do not exists as the ccrc usually makes those claims in cases where it is clear that a particular legal norm or principle has been adopted by liberal democracies at large. It thus appears that a particular solution, which is considered of universal character 102 Constitutional Court of the Republic of Croatia, decision U-I 988/1998 et al. of 17 March 2010. 103 Constitutional Court of the Republic of Croatia, decision U-III-282/2008 of 2 June 2010. 104 Constitutional Court of the Republic of Croatia, decision U-I-659/1994 et al. of 15 March 2000.

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justifies the use of foreign law.105 For example, the Court referred to the nulla poena sine lege as a generally accepted principle.106 The same occurred with the single vote system in relation to parliamentary elections,107 and the principles of environmental protection.108 Additionally, the ccrc never explains why particular cases and not also other represent the most adequate cases on which rely in its decisions. Other justifications based, for example, on the role of constitutional borrowing in designing the Croatian Constitution, and the consequent similarities between the Croatian constitutional document and other foreign Constitutions are very rarely invoked. It thus means that there is a little connection in the Croatian case law between the use of comparative law and the constitutional interpretation based on foreign constitutional provisions, which have originally inspired the Croatian Constitution. Nonetheless, the regular use of the Convention and ECtHR case law by the ccrc can be explained by an overlap of the constitutional protection of fundamental rights with that granted by the echr. The great majority of decisions does not contain, however, any justifications of invoking foreign precedents. In that cases, it appears that the Court uses predominately foreign case law to create additional credibility of its conclusions by showing that they are not an act of judicial activism or judicial restraint toward political branches of government, but a measured and reasonable performance of the role that a Constitutional Court should maintain. Similarly, the ccrc never justified the great impact of the BVerG on its case law. Although this influence can be generally related to the prestige of the German case law, some other justifications can be extrapolated from academic writings of the ccrc’s former President, Jasna Omejec. These writings discuss, in particular, the laudable characteristics of both the German Basic Law and the German case law, such as the value-based undertow of the German Constitution and the BVerG’s concept of an objective order of constitutional law created by balancing values. Moreover, the same writings stress that the BVerG has developed a solid doctrine, which creates a good balance between judicial activism and self-restraint, an area still undeveloped in Croatia. It is then noted that the German case law has an impact beyond Germany because of the BVerG’s relationship with the ecj, namely the refusal of the BVerG to apply the EU law 105 See S. Barić, M. Miloš, Foreign precedents in constitutional litigation. National Report: Croatia, supra n. 15, 15. 106 Constitutional Court of the Republic of Croatia, decision U-I-38/2000 of 15 November 2000, § 11. 107 Constitutional Court of the Republic of Croatia, decision U-I-1681/2003 of 17 September 2003, § 4. 108 Constitutional Court of the Republic of Croatia, decision U-II-37/2006 of 5 July 2011, § 13.3.

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unless it meets the satisfactory level of human rights protection.109 Thus the human rights guarantees established by the BVerG are perceived in Croatia as the minimum standard for protection of individuals on a European level. As a result, the ccrc often uses the consistent interpretation technique to derive a European standard from the case law of both the ECtHR and BVerG. Finally, international sources of law can be observed in almost all decisions related to human rights protection, while the use of foreign case law is most likely to occur in the ccrc’s landmark cases. In some of these cases, the Court had to decide on particularly unpopular acts, such as the Special Tax Act. In others, the Court uses foreign law in order to show that that its own interpretation of the Constitution is in line with the decisions of other European (and sometimes non-European) Constitutional Courts and should therefore be considered more acceptable. Additionally, foreign case law appears in cases where the Court expands the interpretation of a particular constitutional concept, such as for example human dignity in a 2009 Criminal Procedure Act case. 6

The Impact of Comparative Law on the Development of Croatian Constitutional Order

Starting from 2000, the ccrc’s landmark decisions undoubtedly show an important advancement of Croatian case law especially if compared to decisions pronounced in the first decade of the Court’s activities (1990–2000). By using its constitutional tasks and powers, the ccrc not only promoted the realisation of constitutional values, but also European legal values. In doing this, it has developed an extensive case law based on comparative law, which certainly introduced a new dimension in the Croatian case law. On the one hand, the ccrc became an important actor in promoting the direct application of human rights treaties and especially the echr. In particular, the use of the ECtHR case law represents today the most preferred ccrc’s method of argumentation as it is used regularly in cases concerning human rights issues. Moreover, the ECtHR case law played a crucial role in pronouncing the principle of proportionality to be an essential principle of the Croatian constitutional order, regardless of non-existence of such an explicit constitutional provisions. The fact that the ccrc takes into consideration in its decisions the ECtHR case law is definitely transformative because the Court’s decisions gradually fill the legal framework of the country with constitutional 109 J. Omejec, O važnosti jurisprudencije njemačkog Saveznog ustavnog suda za hrvatsko ustavno sudovanje, supra n. 102, 2.

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contests aligned with the requirements of the Convention. Moreover, the ccrc’s case law represents a useful instrument for the formation of relevant public awareness on constitutional and Convention requirements, which is perceived as one of the most important tasks of the Croatian system of constitutional justice.110 On the other hand, the ccrc strongly relied upon foreign precedents, especially the German case law. This occurred, in particular, in dealing with human rights issues, such as the right to ownership, where the BVerG legal opinions are often invoked together with the ECtHR case law, as well as in defining fundamental constitutional values, such as human dignity, rule of law and legal certainty, social state and social justice. 7

Concluding Remarks: Critics and Counter-Critics to the Use of Comparative Law in the Croatian Case Law

The complex journey of the ccrc has seen a gradual transformation of the constitutional adjudication body from exercising judicial restraint (1990–2000) to a more recent new European-integrative role (from 2000), which it is still performing. In the past sixteen years, the ccrc has adopted numerous landmark decisions, in which comparative law not only progressively appeared, but also significantly contributed in shaping the present landscape of the Croatian constitutional order. In particular, the ECtHR case law and the BVerG legal opinions became important sources, which provided for legitimacy for the ccrc in its European integrative based judicial decision-making.111 However, the use of comparative law by the ccrc has been also subjected to several critics, according to which the ccrc has turned into a mere repository of someone else’s legal positions. As far as the use of the echr is concerned, the ccrc has been described as a “sophisticated interpreter of fundamental rights and a national leader in the applications of the echr,” but some concerns are expressed in relation to its human rights case law, which is described as formalistic, not systematic and of a troubleshooting nature. According to this view, it did not genuinely contribute to strengthening of human rights guarantees. In this sense, it has been suggested that the ccrc does not use the ECtHR case law as a persuasive authority in argumentation, but that it quoted de-contextualized normative parts as a 110 Constitutional Court of the Republic of Croatia, National Report for the xvith Congress of the Conference of European Constitutional Courts (Vienna, 12–14 May 2014), supra n. 38, 23. 111 See J. Omejec, Fundamental Rights in Croatia, supra n. 8, 22.

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justification of decisions in individual national cases. These concerns are based on the ccrc’s use of principles of proportionality,112 indirect discrimination,113 as well as on its selective reading of the ECtHR case law as in its practice the ccrc follows cases that correspond to its own perception of equality, public policy or judicial independence.114 With respect to the use of foreign precedents, the major concerns have been expressed in relation to the extensive use of foreign precedents, especially the German case law, which created a situation in which the prominent Constitutional Court, most frequently the BVerG, speaks and the ccrc listens trying to adapt the information it receives to the situation at home, without establishing why a particular solution and not others represent the prevalent trend the cccrc seeks to bring into the Croatian legal system. According to this view, this denotes a clear symptom of the lack of self-confidence, which overshadowes also the undoubtedly laudable ccrc’s decisions.115 Finally, the excessive use of comparative law has been criticized as it anchored the ccrc to interpretations of the ECtHR and BVerG, which did not allow the ccrc to open the door for the elaboration of its own doctrines.116 A clear answer to the above-mentioned critics has been given by the former President of the ccrc, Jasna Omejec, who rejected all the expressed concerns. In her view, critics of the ccrc in relation to the use of comparative law should be dismissed for as long as the ccrc introduces into the national legal order only the case law of European Constitutional Courts that falls into the scope of Croatian Constitution, and for as long as the ccrc’s case law, which refers to comparative law, contributes to the strengthening of constitutional democracy in practice. In fact, the comparison with the legal standpoints of the most prominent European Constitutional Courts, those in Strasburg and Karlsruhe, in order to find answers to human rights and rule of law issues and which best corresponds to the national constitutional order represent a sign that the ccrc is trying to remain responsible for the Croatian constitutional order.117

112 Constitutional Court of the Republic of Croatia, decision U-III-4584/2005 of 14 November 2007. 113 Constitutional Court of the Republic of Croatia, decision U-III-3138/2002 of 07 February 2007. 114 S. Rodin, Developing Judicial Culture of Fundamental Rights, in Opatija Inter-University Centre of Excellence Working Paper, E2/2011, p. 2. 115 See S. Barić, The Transformative Role of the Constitutional Court of the Republic of Croatia: From the ex-Yu to the EU, supra n. 36, 37. 116 Ibidem. 117 See J. Omejec, Fundamental Rights in Croatia, supra n. 8, 22.

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At the end of the day, as has been stressed by the former President of the BVerG, Jutta Limbach, “the Federal Constitutional Court has given the Basic Law splendor and radiance while strongly polishing it as well. But the road to a democratic constitutional state has not been easy. Rather, the Germans learned how to read their Basic Law very slowly. They probably never would have succeeded if the Federal Constitutional Court had not tirelessly exercised the constitutional alphabet with them.118” When it comes to the ccrc, its former President added: “the reading of the national Constitution [in Croatia] undoubtely started. What follows now in the legal, political and social life of the country is a long and difficult period of tirelessly exercising the constitutional alphabet.”119 At least, Croatia has the opportunity to learn from the most prestigious Constitutional Court in the world, the one which the most obvious characteristic is its “truly extraordinary power120”, and this Court belongs to the same European continental tradition, which Croatian law also belongs. Acknowledgements This chapter is partially the result of research carried out at the Center for Constitutional Studies and Democratic Development (ccsdd) and funded, among others, by the George Lawrence Abernethy Endowment. 118 J. Limbach, The Role of the Federal Constitutional Court, in smu Law Review, 2000, 54, p. 429. 119 J. Omejec, Veliki njemački ustav i nepromjenjiva ustavna načela u praksi Saveznog ustavnog suda, supra n. 71, 36. 120 M. Borowski, The Beginnings of Germany’s Federal Constitutional Court, in Ratio Juris, 2003, 16, p. 155.

The Use of Foreign and Comparative Law by the Constitutional Court and the High Court of Cassation of Romania Camelia Toader 1

Comparative Law in the Romanian Legal Landscape

By taking a look at the Romanian doctrine and legal literature one can easily identify an interest for the comparative approach. Antonie Iorgovan, jurist and professor, one of the “founding fathers” of the Constitution from 1991, dedicates whole chapters of his Handbook of administrative law to the importance of comparative law for the historical development and present application of Romanian law.1 For example, one of these chapters concerns the notion of administrative appeal procedures and allocates many pages to the analysis of the different systems chosen by European states. Other authors stress the role of the cooperation between the constitutional courts in different states. Tudorel Toader, former judge at the Constitutional Court of Romania, and Marieta Safta describe the importance of this cooperation for the evolution of the constitutionality control and of the institutions themselves in their work The dialogue of constitutional judges. They refer to different forms of “dialog” between constitutional courts or institutions with similar vocation in the context of international organisms (such as the European Constitutional Courts Conference, the Association of Constitutional Courts using the French language and the Venice Commission), but also bilateral meetings, symposiums and finally the practice of using the precedent of foreign constitutional courts in their own decisions. Through these various mechanisms, the different Constitutional jurisdictions evolve in a more coherent way and develop similar structures. The Romanian legal system in general has been a recipient of legal transplants throughout its development in the xix century, during the communist regime and even after the fall of the latter, when the efforts to modernize the system and align it to that of other European countries began. The ground on which the Romanian civil and commercial law is built is largely influenced by the French system, as well as partly by the Italian, Belgian and German one. It is therefore no surprise that most references in doctrine and decisions which 1 Antonie Iorgovan, Tratat de drept administrati, Vol. i–ii (4th edition, published by All Beck 2005). © koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_027

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concern foreign law will be to these systems that served as an inspiration and transplant source. Given this mix of foreign inspiration and original solution, studying foreign law and the solutions it proposes can be of great use for scholars as well as judges in order to identify the original intent and signification of a piece of legislation or of a principle that might originate from such a transplant.2 The Constitutional Court of Romania (ccr) and the High Court of Cassation and Justice (hccr) have also acknowledged the importance of references to foreign law to enrich their argumentative structure. Still, the rates of usage of such references in the decisions are rather low, with only 26 and 19 respectively identified decisions containing such references from 2009 until September 2017. While the references are rather short in the decisions of the hccj, the ccr tends to allocate longer paragraphs to foreign law and international treaties. Most of the references concern the national law of other European states, especially France, Belgium and Germany, with some rare references to US and Canada law. 2

Structure and Functions of the Romanian Supreme Courts

2.1 The Constitutional Court of Romania Created in 1992, the ccr has been called a “curious cross-breeding of the Italian and the traditional French model”.3 The German model of constitutional jurisdiction also had an important influence on the majority of young democracies after the fall of the Iron Curtain. For the ccr this can be seen especially in the possibility of publishing concurring and dissenting opinions, introduced by a legislative reform in 2002. The ccr purpose and function is to rule over the constitutionality of the laws, decrees and other bills enacted by the Romanian authorities. It consists of nine members, three each appointed by the President, the Senate and the Chamber of Deputies, serving a nonrenewable nine years mandate. It is not considered as part of the judiciary, yet it ensures the observance of the rule of law. Institutions of proceedings can be made before the Constitutional Court only for the cases expressly provided under Article 146 of the Constitution or under its organic Law no.47/1992.4 2 See also Camelia Toader: Contract Law in Romania, in: Private Law in Eastern Europe Autonomous Developments or Legal Transplants? p. 109, edited by Christa Jessel-Holst and others (Mohr Siebeck, 2010). 3 Katalin Kelemen, Dissenting Opinions in Constitutional Courts, in: German Law Journal Vol. 14 No. 08, p. 1350. 4 See also on article 147 of the Constitution, I. Muraru, in Constitutia Romậniei- Comentariu pe articole, coord. I. Muraru, E.S. Tӑnӑsescu (Ed. C.H. Beck, Bucureṣti, 2008) p. 1418.

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Firstly, there is the possibility of an a priori control before the enactment of the law, following notice from the President, the presidents of the two chambers of the Parliament, the Government, the High Court of Cassation and Justice, the Ombudsman, a number of 50 members of the Chamber of Deputies or a number of 25 senators, or ex officio, with respect to the Constitution revision initiatives. Before the ratification of treaties or other international agreements by the Parliament, it rules on the constitutionality thereof, following notice from one of the presidents of the two Chambers, a number of at least 50 members of the Chambers of Deputies or at least 25 senators. Secondly, there is also the possibility of an a posteriori control – after the enactment of the law, by decision adopted subsequent to a notice sent to the Constitutional Court by any interested person or directly raised by the O ­ mbudsman with regard to an unconstitutionality exception. 2.2 The High Court of Cassation and Justice The Supreme Court in the hierarchy of Romanian law is the heir of the former High Court of Cassation, which was inspired by the French Cour de Cassation. It is provided for in article 126 of the Romanian Constitution and the organization and competences are governed by the Law no. 304/2004. According to the description on its own website, the High Court of Cassation and Justice “is the Supreme Court in the hierarchy of Romanian courts of law and has, in principal, jurisdiction to rule on actions for annulment, and to ensure a consistent interpretation and implementation of the law by all other courts of law.” The hccj is therefore competent for appeals against tribunals’ judgments, for the appeal in interest of the law and for other situations if expressly provided for by the law. It will only exceptionally reassess the grounds of the judgment of the lower jurisdiction. The appeal in interest of the law is usually handled by a formation of Joint Sections of the hccj. Its principal role is to ensure the consistent and coherent application of the law by national jurisdictions and it is considered the guardian of the law. The Court is organized in four sections (civil and intellectual property, criminal, commercial, administrative and fiscal). The decisions are usually rendered in chambers of three judges from one of the sections. But if one section sees a necessity to deviate from the existing case law, the procedure is suspended and the Joined Sections of the Court are seized in order to decide upon the change in jurisprudence. This is a mechanism meant to guarantee the coherence of the Courts’ decisions. The Joint Sections of the hccj is also the formation that can notify the Constitutional Court to examine the constitutionality of laws prior to enactment. For this reason, Ion Deleanu describes the relation between the hccj and the

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ccr as a “partnership” in matters of constitutional control.5 Other than this the hccj can also, like any other jurisdiction, refer to the ccr if a claim of unconstitutionality is made by an appellant. 3

Style and Structure of the Judgments

Both the ccr and the hccj tend to pronounce decisions and judgments with a vast argumentation and presentation of the reasoning of the Court. While the ccr judges can, since 2004, publish concurring and dissenting opinions, this possibility does not exist for the judges of the hccj. The vast space allocated for the reasoning of the courts in their judgments allows for a better comprehension of the decision and also makes the observation of the use of comparative law within the reasoning for the purpose of this article traceable. 4

Beginnings of the Constitutional Review of Laws in Romania: Influences of the Comparatist Approach and Foreign Law

Originally, the constitutional review of laws in Romania was exercised by the Supreme Court of Romania, today the High Court of Cassation and Justice, which rendered its first judgment concerning the constitutional review of a law in 1912, the famous “Case of the trams”. This first case of constitutional review exercised by the hccj reminds us, in style and reasoning, of the judgment of the US Supreme Court in the case of Marbury v. Madison from 1803. This judgment, where a tribunal had claimed the right to verify the constitutionality of a Parliament law, has stirred a lively controversy in the Romanian doctrine of the time. One of the arguments used in the debate is interesting for our topic, as it involves a comparatist approach. The Romanian Constitution from 1866, which was in force at the time of the judgment, was inspired from the Belgian Constitution. Article 107 of the Belgian Constitution contained an obligation for tribunals to apply administrative decisions and regulations, if they were conform to the law. In this case a constitutional review was considered by the Belgian doctrine as forbidden. But this provision had not been incorporated by the Romanian Constitution. This omission was the object of different interpretations by the Romanian doctrine. Most of the scholars concluded that, due to the omission, a constitutional review should be possible in 5 Ion Deleanu, Tratat de procedură civilă, Volumul i, (All Beck 2005) p. 212.

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Romanian law. But others, like the Professor George Alexianu, considered that the same criterion has to apply in Belgian as well as in Romanian law: in lack of an express provision that would allow a constitutional review, such review is not possible in either case.6 This controversy shows that the comparatist approach was a part of the reasoning of the Romanian scholars as early as 1912. 5

Comparative Law Today: A Study of the Jurisprudence of the Two Courts

Comparative law in the jurisprudence of High Courts around the globe and especially in Europe traditionally has a mainly functional use: its role is to fill gaps in national legislation, to ease and provide arguments for a certain interpretation of unclear national provisions or even to discard an unsatisfactory domestic solution. The limit is where the judge could produce the suspicion that he/she is applying foreign law rather than the national one.7 The same reasoning applies for both the ccr and the hccr. In order to better understand the Courts’ approach it is more convenient to treat the jurisprudence of the two Courts separately. Comparative Law in the Jurisprudence of the Constitutional Court of Romania One category of the use of foreign law is the reference to the importance awarded by other states to a certain subject, as well as the choice of treatment of that particular subject, in order to better sustain their own arguments originating from Romanian Law. An example is a judgment of the ccr concerning stray dogs in a case where a group of deputies introduced a notice of unconstitutionality of a law concerning stray dogs’ euthanasia.8 In its reasoning, the ccr comes to the conclusion that the challenged law is partly unconstitutional on the grounds of national law, and only at the end references International Treaties and foreign law to give even more weight to the previous conclusion. It quotes UK legislation such as the Dogs Act from 1995 and the Environmental Protection Act from 1990 as well as the Portuguese legislation from 1995 5.1

6 See Mircea Criste, Începuturile controlului de constituționalitate în Romania. Procesul Societății Tramvaielor, http://revcurentjur.ro/old/arhiva/attachments_200434/recjurid043_42F.pdf. 7 See also Esin Örükü, The Courts and the Legislator in: Comparative Law: A handbook, edited by Esin Örükü and David Nelken (Hart Publishing 2007) p. 413. 8 Decision no.1 from 11.01.2012, published in the Official Monitor (OM) no.53 from 23.01.2012.

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concerning animal protection to stress the fact that most states consider the subject matter of stray dogs as an important one and choose to deal with their elimination in an individual rather than a collective way. Other than this foreign law references, it also takes into account relevant International Treaties, as it is obliged to by Article 11 of the Constitution, especially the European Convention for the Protection of Pet Animals. As for other international instruments, like the Universal Declaration of Animal Rights, adopted by the International Society for Animal Rights and Affiliated National Societies in September 1977 in London, the Court considered that it is not an International Treaty in the sense of Article 11 of the Constitution and therefore doesn’t take it into account. 5.1.1 Evaluating Conditions – Too Much or Too Little? Another category of use of foreign law by the ccr is when determining if a certain condition imposed on the exercise of a certain right is legitimate or proportional. This was for example the case in a judgment on an exception of unconstitutionality introduced by a citizen concerning the conditions for participation in local elections.9 The claimant argued that the conditions imposed by the Romanian law were too restrictive of the rights of independent candidates, comparing them to those of other EU Member States. In appreciating the challenged conditions, the Court refers to “other Member States’ legislation” and quotes a decision of the European Court of Human Rights (echr) concerning similar conditions and especially the margin of appreciation in Belgium. It takes into account the Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report adopted by the Venice Commission at 52nd plenary session (Venice, 18–19 October 2002) invoked by the claimant but argues that this is not a compulsory legal act of the European Union and does not provide for sanction in case of non-compliance of the signatory states, thus leaving them a wide margin of appreciation. A more specific reference to other states conditions of being elected to public representative offices can be found in another similar decision of the Court, in which the same provisions were challenged by a small emerging Romanian party.10 In this case, the Court explicitly quotes the legislation imposing the payment of a fixed sum of deposit for the inscription on electoral lists in the Czech Republic and Slovenia, while also mentioning the Code of Good Practice in Electoral Matters as a point of reference.

9 10

Decision no. 503 from 20.04.2010, published in the OM no. 353 from 28.05.2010. Decision no. 954 from 13.10.2012, published in the OM no. 26 from 12.012013.

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Similar to those cases of appreciation of the election legislation is a case where the challenged provision concerned the right of Romanian magistrates to associate and form unions.11 The claimant, the Union of the Magistrates seeking recognition as a legal person, invoked the Romanian Constitution which only prohibits magistrates to associate to form political parties, and referred to the situation in France, where a union of magistrates has existed for 40 years. But here the Court considered this comparative law argument as being irrelevant. While it agrees that magistrate unions are permitted in France, it points to two other Member States, Spain and Belgium, where such unions are either explicitly prohibited by law or their statute is not that of a legal person, but of an association or foundation. This is an interesting example of how an argument drawn from comparative law by the claimant by “cherry picking” the state that is convenient for his thesis can be easily turned around by the Court in order to claim the exact opposite. However, the conclusion to which the Court comes in this kind of cases is rather the large margin of appreciation that such heterogeneity in the legal treatment of a certain matter by the states community leaves to each Member State in regulating the subject in question. This technique is also used and probably inspired by the echr. Especially in sensitive matters, the echr first analyses the legislation of signatory States in order to appreciate the level of consensus, and, if the latter cannot be identified, assigns a rather large margin of appreciation to the signatory States.12 5.1.2 Dissenting Opinions A special case of use of comparative law is the one of the dissenting opinions, which are permitted at the ccr ever since the legislative reform in 2004. In arguing to differ, the judges often include in their arguments wide references to other legal systems and their solutions, in order to make their case. The structure of such a differing opinion leaves them more space and liberty to evoke and go into the detail of foreign law, than a classical judgment would. A representative example is the joint dissenting opinion of three judges to a judgment concerning the constitutionality of a provision of the Romanian Code of Criminal Procedure which regulates the conditions for a waiver of already initiated criminal proceedings in certain cases.13 In question was Article 318 from the Criminal Procedure Code, which provides for certain situations where, inter alia, the “public interest” allows a waiver of the commenced criminal procedure. The claimant raised the exception of unconstitutionality concerning this 11 12 13

Decision no. 1364 from 27.10.2009, published in the OM no.836 from 04.12.2009. See, for one of many examples, the Perincek v. Switzerland judgment from 15 October 2015. Decision no. 23 from 20.01.2016, published in the OM no. 240 from 31.03.2016.

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provision by claiming that the notion of public interest is too vast and uncertain, allowing for arbitrary application. It therefore invoked a violation of the principles of legality and due process. The Court, following its majority rule, followed this reasoning by judging that the provision under examination was unconstitutional. The three dissenting opinions disagreed and focused most of their arguing structure on foreign and comparative law, giving a schoolbook example of its potential use in national law reasoning. It is interesting to analyze the approach of these opinions. They introduce the comparative approach by describing the principle of opportunity that is the source of this possibility of the authority to waiver a procedure that has already started. This principle has, according to them, been introduced by the lawmaker as a form of modernization of the criminal procedure system, originates in the common law traditions and has been over time absorbed by the continental systems. Then they proceed to arguing that the possibility to waiver the procedure can be found, under the same conditions, in several other States in Europe and beyond. For the United States of America they refer to the US Attorney’s Manual, which provides for the criteria that must be taken under consideration by the prosecutor in order to exercise the right to waiver criminal proceedings on the grounds of lack of substantial federal interest. After naming the conditions listed there (such as nature and seriousness of the crime, the dissuasive effect of the criminal proceedings, guilt, criminal record, readiness to cooperate towards the investigation of the crime, foreseeable sentence and other consequences of the sentencing), the dissenting opinions stressed the fact that this list of criteria is not limitative and that it cannot be demanded that all of them are fulfilled in a certain situation, but that there should be a global appreciation on the grounds of these criteria. After the US they turn to Canada, the UK, France, Belgium, Germany, Sweden, the Netherlands and Austria, analyzing how the principle of opportunity has been implemented in each of these national systems. In a second part of the dissenting opinion, they turn again to these same States and show how, in each of them, the notion of public interest, or similar concepts, are used to the same purpose (such as the substantial federal interest in the US). Adding several arguments based on national law, the three judges come to the conclusion that the challenged article of the Criminal Procedure Code is constitutional. It is obvious and, for what we have seen until now in the caselaw, surprising, that more than half of the points made by these judges in their dissenting opinion is based on foreign law and the comparatist approach. Another similar example is the concurring opinion of a constitutional judge in a Decision of the ccr concerning the Amendment of the Constitution from 2014.14 By its decision the Court had judged that a certain part of 14

Decision no. 80 from 16.02.2014, published in the OM no. 246 from 07.04.2014.

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the amendment concerning territorial autonomy for regions with large ethnic minorities represents a threat to the inviolability of the unity of the state territory. The concurring opinion uses foreign law in two different contexts. Firstly, it refers to the French concept of bloc de consitutionalité and in this context also to the decision of the Constitutional Court of the Republic of Moldova, in order to appreciate the constitutional value of the Alba Iulia Declaration from 1918 concerning the different ethnic groups cohabiting in the region of Transylvania in Romania. Referring to other aspects of the constitutional amendment, it dedicates a vast passage of his argument to comparative law and International Treaties that are to be taken into consideration. Regarding an aspect of treatment of the ethnic minorities and territorial autonomy, it describes the legislation of Italy, Spain and Serbia and concludes that there are several ways of preserving the identity of national minorities, either by the creation of autonomous territorial units or by other measures. But in any way, there is the obligation of the State to assure this preservation through active action. If it fails to do so there are negative consequences to fear. In this regard it gives the example of the Ukraine, where the law protecting regional languages of the minorities had been repealed, causing much criticism from other states, including Romania itself. In the same context, the concurring opinion also refers to International Treaties that deal with the protection of minorities, such as the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and The European Charter for Regional or Minority Languages and their provisions concerning the protection of different minorities. All these arguments based on other states’s law and the international instruments are used to stress the importance of the protection of minorities, and show that this can also be done by assuring a certain amount of territorial autonomy, without it being a threat to the unity of the territory guaranteed by the Constitution. In another dissenting opinion to the same decision but concerning another topic of the amendment project, another judge addresses the question of the amendment concerning the “People’s Lawyer”, the Romanian institution equivalent to an Ombudsman. This judge refers to equivalent institutions in France, Spain, the Netherlands, Greece, Portugal, Poland and Hungary and then concludes that in all of those States the Ombudsman has the same functions and is defined in the same manner. This shows how comparative law can serve as a method to better understand home institutions by comparing them to foreign, similar in structure and functions, and also as a reference point to measure the appreciation of amendments and developments.

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This allows the conclusion that the judges themselves are more and more open to include comparative law in their reasoning, and they take the opportunity to do so through the form of dissenting opinions. Unfortunately, the structure and requirements of a judgment still seem to oblige the judges to use firstly and mostly only national law, while the foreign law, that can be helpful for a better comprehension and higher convincing effect, is rather an additional argument, added close to the end of the judgment so as not to seem too principal. This can of course be explained by the fear of the judiciary of being criticized of applying foreign law rather than national law for functional reasons. 5.1.3 International Treaties The ccr often takes into consideration International Treaties, even if they are not binding for the signatory parties and even if they don’t foresee any sanctions for the non-compliance. However, if the ccr considers that the applicable Treaty does not fulfill the conditions of Article 11 of the Constitution, it will consider it has a large margin of appreciation. Therefore, it might use the provisions of such Treaties in order to reinforce the arguments it has already drawn based on national law or it may discard them on the grounds of the margin of appreciation and the lack of large consensus among the state community. Another example is the case of the stray dogs’ legislation, mentioned earlier in this article. There, it considered that, as the Universal Declaration of Animal Rights must not be taken into account, as it is not a Treaty in the sense of Article 11 of the Constitution and is not of compulsory nature. In another procedure, again concerning the electoral legislation and introduced by the emerging Pirate Party of Romania, the ccr had a more benevolent approach as to the influence of various international instruments in the appreciation of the constitutionality of this legislation.15 In this decision, the Court refers to the Recommendations of the European Commission for Democracy through Law (Venice Commission) and the Guidelines on Political Party Regulation in order to appreciate if the obligation to register political parties is a violation of the European Convention of Human Rights and especially Articles 10 and 11 thereof. It acknowledges the fact that the obligation for registration is not, per se, a violation of the right to form political parties, but holds that the conditions imposed by the State for the registration can be under certain circumstances too restrictive and thus turn into a violation. The ccr then notes that the conditions imposed by different States vary and that there is a certain margin of appreciation. In this context it also refers to the 15

Decision no. 75 from 26.02.2015, published in the OM no. 265 from 21.04.2015.

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Report on the participation of political parties in election adopted in 2006 and the Joint opinion on the Draft law amending the electoral legislation of the Republic of Moldova adopted in 2007 by the Venice Commission and de osce. For the latter it refers to the situation in Moldova, where these two organizations considered that the conditions that had to be met in order to be able to register a new party were too restrictive and therefore exceeded the margin of appreciation. Under these circumstances it analyses the conditions challenged by the Pirate Party and comes to the conclusion that those are partly too restrictive and constitute a violation of the constitutional rights of the parties as well as Article 11 of the echr. 5.1.4 echr as a Source for Comparative Studies Even if the echr is not the subject of this article, there is one way in which its findings are important from a comparative law point of view, independent from the reception in national law of the decisions themselves. As the echr often determines the contents of a legal notion by comparing the approach of all or most of the signatory States, its decisions are often an unneglectable source of comparative law. Some might even contain schoolbook analysis of different legal understandings of a notion. The ccr might choose to use not only the arguments and conclusion developed by the echr itself, but also just the elements of comparative law that have already been carved out by the echr in its preliminary work preparing the ruling. A good example can be found in a ccr decision concerning the notion of continued offense.16 The ccr refers to the “extensive analysis of comparative law” undertaken by the echr in its judgment Rohlena v. Czech Republic from 2015. Then it dedicates a paragraph to summarize the national concepts of this notion from the echr judgment. It describes the two different conceptions of the notions- the subjective one, developed especially in Italy, and an objective one, developed in Germany. The objective conception had then spread to most European countries, but some have taken restrictive measures in order to not overly benefit repeat offenders. From the information gathered by the echr from all 47 signatory States, the existence of a consensus concerning this subject can be observed. Starting from this consensus the ccr can draw its own conclusion but is always likely to stay within the limits of interpretation acceptable in the context of this consensus. Comparative law has also been used for the purpose of determining whether there is a consensus in the International community in a case concerning the challenge of a legislation concerning the possibility of a third person to contest 16

Decision no. 368 from 30.05.2017, published in the OM no. 566 from 17.07.2017.

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the paternity of a child.17 Concerning this subject there are relevant judgments of the echr regarding paternity contestation and Article 8 of the European Convention on Human Rights. Again the ccr refers to the comparative work done by the echr in its judgments and, this time in a short paragraph, describes the legal situation of this matter in different states and concludes that there is not a consensus between the states in question. Therefore, the echr had not pronounced itself on the in abstracto conventionality of a certain legislation, but had just verified if a just balance of interests had been assured in the specific case. The ccr judges the exception of unconstitutionality as being inadmissible on the grounds that the legislation in force is meant to protect the interests of the child, and that an annulment of such legislation would not benefit its interests, as the ccr is no legislator and could not take appropriate measures in this direction. 5.1.5 Better Understanding of Institutions Another interesting context for the use of comparative law is for understanding and determining the relations between different national institutions. In a procedure introduced by the President of Romania regarding a law that regulates the cooperation between Government and Parliament in European Affairs,18 the ccr refers to other EU Member States in the matter of determining what powers the National Parliament should have regarding the European Council. The President had challenged the legislation in question on the grounds that it excessively restricts his representative powers to the European Council, as the Government is given the competence to propose the mandate and the Parliament has to amend it by voting on it. In order to appreciate the situation in the other Member States, the ccr refers to the study “Democratic control in the Member States of the European Council and the Euro zone summits” from 2013 of the European Commission, Directorate General Internal policy; the Commission delivers a complete analysis of the role of the Parliament in all Member States. Thereafter, in Belgium, Bulgaria, Czech Republic, Denmark, Finland, Germany, Hungary, Italy, Latvia, Lithuania, Luxemburg, Malta, Poland, Portugal, Slovakia, Spain and Sweden the Parliament has a right to be informed in matters of the European Council, either by access to documents or by oral explanation. Moreover, in Estonia, Latvia, Lithuania, Slovenia, Slovakia and Sweden the Government is able or even obliged to consult the Parliament and ask for its opinion. It then goes on to describe the process of parliamentary debate with the participation of members of the Government 17 18

Decision no. 495 from 5 December 2013, published in the OM no. 134 from 24.02.2014. Decision no. 449 from 06.11.2013, published in the OM from 14.12.2013.

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and the national rules concerning the review of the activities of government representatives in the European Council. It also uses the classification made by the European Commission of seven categories of parliamentary control by its intensity and four intermediate models. From this analysis it appears that there are different ways of parliamentary participation but that the parliament cannot be completely excluded from the affairs concerning the European Council. The ccr concludes that the semi-presidential governance system in Romania cannot exclude a parliamentary control. Hence the challenged legislation is constitutional. This is a good example of how an in-depth comparison of the function of institutions in other States can serve as a precious basis to better understand the own, national institutions. This can both be done by comparison to similar foreign institutions or by a contrario analysis to very different systems. The particularity of this case is, however, that the debate was held on a topic related to European Representation. That is why a comparison to other Member States was expected and the already available overview of the Member States legislation by the Commission was a handy instrument that made the comparative work of the ccr much easier and manageable. 5.1.6 Better Definition of a Certain Notion Sometimes procedures before the ccr can basically be reduced to a disagreement on how a certain legal notion has to be interpreted, what exactly is its content and how is it to be applied in appreciating the constitutionality of a certain piece of legislation. There is where comparative law is of great use. A wide number of the legal notions used today in Europe and even in the world share a common history and can be traced back to similar origins. The way they have developed in each individual state is, of course, largely influenced by the cultural, social and legal environment of the very state. But when there is internal disagreement on how a notion should be interpreted and what exactly it does mean, looking over the frontiers to see how other legal systems use and interpret it can be very practical. The ccr acknowledges this in some of its decisions, such as one regarding limitation periods of punishment in criminal law and the principle of non-­retroactivity of laws in criminal law.19 At the origin of the exception of unconstitutionality that was raised by the claimant is a law that changes the methods of calculation of the limitation of punishment in certain cases of criminal offenses involving, inter alia, attempted murder. While the claimant had already 19

Decision no. 511 from 12 December 2013, published in the OM no. 75 from 30.01.2014.

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begun serving his prison sentence, he was temporarily released and didn’t go back into custody when he should have. According to the old Romanian legislation concerning limitation his punishment would have been barred on the 4th august 2012. But the new law, excluding the possibility of limitation for the offences in cause, entered into force before this date and, according to its content, applied to every sentence that had not been barred at the time of the entering into force. The claimant considers that this law is in violation of the principle of non-retroactivity of criminal laws, which is a part of the principle of legality of the punishment as guaranteed by the Constitution. In order to determine if this is the case, the ccr chooses an approach that takes into account, over several pages of the decision, the comprehension of limitation and retroactivity in some other legal systems, more specifically in Germany, France, Switzerland, Sweden and Belgium. Especially for Germany and France it takes a rather in depth look at the history and development of the notion of prescription in the national legislation. For all of the mentioned countries it looks at the legislation in force or at the interpretation by national courts regarding the incidence of a law modifying the statute of limitations on sentences which have not yet reached the limitation term and are thus still running at the moment of the modification. These national provisions allow the immediate application of such legislation for the sentences that have not yet been barred at the moment of the entry into force of said legislation, none of them considering this as being a form of forbidden retroactivity. After this first analysis, it goes on to identify if, on the grounds of foreign law, the statute of limitations is rather of procedural or substantial nature. In order to determine this, it is interesting to note that the ccr refers to the legal literature in the mentioned States and categorizes the views held by it. A first category considers that the nature is procedural, with the consequence that a new law that enters into force has immediate effects. The arguments invoked concern the fact that the exemption from judgment or execution of the sentence is not an earned right of the accused or convicted, respectively, and that he has no legitimate expectation to limitation on a certain date. Another opinion is held by the legal literature in Member States like Spain and Italy, where the limitation is considered of substantial nature. Their main argument is that it is depending on the limitation if the State has the right to apply a punishment or not. Finally there is a third category, advocating a mixed character, substantial and procedural at the same time. After presenting these different approaches, the ccr concludes that all three of them are represented in the Romanian legal literature. Then it proceeds to describe the treatment of this question in the jurisprudence of the echr and the opinion issued by the Venice Commission. Finally it dedicates a large paragraph to the jurisprudence of the

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Federal Constitutional Court of Germany. This is understandable as this Court had developed a very complex interpretation of the concept of retroactivity of the law, which allows for a differentiated application of law that entered into force in the scenario where a certain process has commenced before the entering into force but had not yet been concluded. In this case the German theory talks about a non-authentic retroactivity, which is permitted under less harsh conditions than an authentic retroactivity (the situation where the new law would affect a process that has already been concluded before its entering into force.) The decision must be made by taking into account aspects such as the legal security and equity. In a situation concerning the modification of statute of limitations the Federal Court judged that this modification is not an illegal retroactivity and is therefore constitutional.20 This decision of the ccr shows a great example of a complex examination of foreign law and the benefits such an examination brings to the quality of the reasoning. The ruling that the legislation under examination does not violate the principle of non-retroactivity is much more convincing after the broad references to other countries’ legislation, legal literature and jurisprudence. 5.1.7 Conclusion Use of the comparative law is not foreign to the ccr. Depending of the subject matter, it might just make short references to other systems or it might dedicate entire pages of the reasoning to it and make it a central part of the decision. It is also interesting to notice the importance of comparative law for the dissenting opinions published by judges in certain cases. Comparative Law in the Jurisprudence of the High Court of Cassation and Justice (hccj) Before analyzing the judgments of the hccj which are of interest for our topic, it must first be emphasized that the hccj is a very different court from the ccr. While it is true that it was the original court to claim the competence of exercising the judicial review and verifying the constitutionality of other laws and authority acts, today this competence is only exercised by the ccr. The hccj is part of the judiciary and is competent of assuring that the Romanian law is correctly and homogenously applied by tribunals and courts all over the country. Keeping this in mind, one will better understand why the references to foreign law, while they are still there, are kept short and take much less space in the argument and general reasoning. 5.2

20

See decision from 26 February 1969, Bundesverfassungsgericht, 25, 269.

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5.2.1 Import of a Certain Procedure or Concept A specific case is the situation where there is a type of procedure that has been recently introduced in Romanian law21 and has been inspired by the Article 267 tfeu. The procedure in question is a form of preliminary ruling on a legal question that had arisen in a judgment and follows the purpose of creating a new mechanism for reinforcing the uniformity of the interpretation of application of the law by all courts and, by that, the predictability and legal security in Romania. When presenting this procedure, the hccj mentions the fact that it has been imported from French law.22 But then it proceeds to verify if the conditions for the admissibility of such a process are fulfilled and finds that there needs to be a lack of uniform interpretation of a certain legal question, condition which was not fulfilled in that case. For this reason, it dismisses the application as inadmissible and does not add any other reflections on foreign law. However, it can be expected that in a case where the fulfillment or the interpretation of the conditions of this procedure would be more controversial, the hccj would refer to the French counterpart of this procedure, which may offer important elements for the Romanian application. On a more substantial basis, the hccj might also refer to foreign systems if a certain notion was imported into national law by the legislator and there is need to interpret this notion. As the origins of the notion lies in a foreign law, it is useful to verify how the foreign legislator, judge or legal literature interpreted the notion in question. This is for example the case in a judgment concerning the definition of the criminal offense of rape in the Criminal Code.23 The hccj recalls that the current Romanian legislation had been changed and had adopted the French model. The French had, however, soon abandoned their model as it was considered to be too imprecise. It concludes that the Romanian import of the definition is itself too confusing and that it is the task of the judge to give a more concrete definition and to thereby ensure the respect of legal security and predictability. 5.2.2 Applicable Legal Regime The hccj sometimes uses brief references to foreign law to explain the legal regime of a certain notion. In one case for example it needed to determine the legal regime of musical work communicated to the public.24 It acknowledges that the legislation in force regarding the rights of the owner of such 21 22 23 24

Articles 519–521 Civil Procedure Code modified by Law no 134/2010 concerning the New Civil Procedure Code, republished in the OM n° 545 from 3 August 2012. Decision no. 6/2017, published in the OM Part i no. 144 from 24/02/2017. Decision no. 1093/2013 from 29.03.2013. Decision no. 1344/2016 from 10.06.2016.

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i­ntellectual property is very strict in Romanian law and refers to the French legislation, where there are only three specific cases of compulsory collective management. Still, it concludes, the intention of the Romanian legislator is clear and cannot be ignored. The reference to French law is very brief, introduced in a single line between brackets and not further developed. 5.2.3 Giving Historical Background Another situation where the hccj might use references to comparative law is when it’s explaining the historical background of a certain law or principle. Like in constitutional law, Romanian civil and criminal law is mostly inspired by French and other European systems and developments. Thus, giving such background might make the interpretation of a concept easier and more convincing. For example, in a decision concerning a criminal case where the hccj was called to judge over the justification of an act based on national law that allows or imposes the commitment of a certain action that is otherwise considered a crime, the hccj referenced the origins of this particular case of justification.25 The judgment concerns events that had happened during the violent Romanian Revolution from 1989. It quotes the original provision dating from Roman law, juris executia non habet injuriam, which was afterwards taken over by Germanic and Canonic law and inspired modern legislation from the French Revolution and Napoleons Criminal Code. All this is done to the purpose of explaining how deep this principle is encrusted in the European legal tradition. The hccj then continues to describe several different cases where this kind of justification is legitimate, such as the situation in which a police officer has to use firearms to prevent a suspect from fleeing. Then it goes on to analyze if a similar situation was given in the current case and would be able to justify the crimes committed by the accused. Similar are two judgments where the hccj had to appreciate the criminal responsibility for abuse in office committed by a military who had acted in accordance to a command of his superior.26 These are among the few judgments where the hccj dedicates a longer paragraph to comparative law. It refers to the French Criminal Code, where acting in accordance to the orders given by the legitimate authority is considered to be a ground for exclusion of reasonability, with the exception of cases in which the order is obviously illegal. Then it also refers to the Italian, German, Spanish, Belgian, Swiss, Russian and Hungarian Criminal Code. It is a rather particular approach for the fact that it puts 25 26

Decision no. 582/2015 from 25.02.2015. Decision no. 253/2012 from 18.05.2012 and Decision no. 125/2013 from 27.05.2013; see also Sentences 731/2012 and 732/2012.

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the entire section where it refers to foreign law in brackets. This might indicate a certain reticence in using extensive foreign law in its arguments and expose itself to the criticism of emitting judgments on foreign law rather than its own national law. The hccj might also use the historical background found in another law to better understand and explain European Law and its principles, which are directly applicable in Romania.27 But even here, where there would be a lot more space and justification for references to foreign law as it is the basis and inspiration for European legislation in general, the hccj keeps the reference very short. It merely evokes the French law as the source of the principle that the grounds of invalidity for a commercial company are to be determined exclusively by law and not extended by the judge and indicates that this principle was taken over by European commercial law. So even here the reference is kept very short and not used as one of the main arguments. A similar use of the source in foreign law can be found in a decision in which the hccj quotes decisions of the echr and acknowledges the source in English law of the principle according to which it is not enough that justice has been rendered, but there must also be the appearance that it has been correctly rendered.28 5.2.4 Legitimacy of an Applicable Rule It may occasionally occur that the applicants claim that a certain applicable law or its enforcement is unfair or somehow contradictory to the Constitution or other higher principles. In order to argue to the legitimacy of the contested provision, the hccj can use references to foreign law to show that the solution and the application are the same in other countries respecting the rule of law and therefore legitimate. This was the case in the a decision concerning the applicable law in a criminal law trial,29 a decision that reminds us of a similar one of the Constitutional Court, where the ccr had also used comparative law to determine the validity of a law that modifies the regime of the limitation of penalties.30 In this case before the hccj the situation was similar, the contested provision being on that concerns the activity and retroactivity of certain criminal laws. The hccj referred to the French and German systems which also codified these principles, but does not develop anymore into these systems and their content. It is interesting to compare the different approach 27 28 29 30

Decision no. 1328/2015 from 13 mai 2015. Decision no. 2434/2015 from 30.10.2015 Decision no. 234/A/2016 from 27.05.2014. Decision of the ccr 511 from 12 December 2013, published in the OM no. 75 from 30.01.2014, see above.

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by the two Courts: What strikes is how little the hccj goes into detailed analysis of foreign law compared to the ccr, which allocates vast paragraphs to its description. Other examples can be found in the field of intellectual property.31 The references are very short as well, just a quick quote of the articles of the French and Belgian civil codes to show that the principle in question also exists under the same form in these legislations. 5.2.5 Defining a Legal Concept Similar to what we have seen in the judgments of the ccr, the hccj refers to foreign law when defining and explaining a legal concept of national law which is common in other countries as well.32 In this case the concept that needed interpretation was the one of a pre-contract of sale. The Court establishes that this institution is not codified in Romanian law, as opposed to the French law, where it is provided for in article 1589 of the Code civil. It quotes the definition and legal treatment as it is provided for in the French law and that can be helpful for understanding the uncodified concept in Romanian law. This example shows again how the Romanian Courts feel that referencing the French system is always a good idea, as the Romanian Civil Code was very much inspired by the French one, as well as the legal literature, education and thinking in general. Still, even here, the reference is kept very brief, only taking up a couple of lines in the argument of the hccj. So even if the French system is usually a safe reference, the Court does not choose to give it too much space and importance in the ensemble of the decision. Another example, where again, the French law was used, is for the definition of the characteristics of the so called “letters of comfort”,33 which are generally understood as communication from a party to a contract to the other party to indicate an initial willingness to enter into a contractual obligation. The hccj evokes the French definition of the term, according to which these letters can create a legal obligation to act accordingly. After this short (and only) reference, the Court goes on to emphasize the fact that it is “absolutely necessary to take into consideration the characteristics of these instruments, as they have been developed on an international level”. This might lead readers to expect that more references on comparative law might follow, especially regarding the way the instrument has been “developed on an international level”,

31 32 33

Decision no. 4080 from 5.06.2012, Decision no. 5431/2013 from 22.11.2013. Decision no. 1235 from 10.04.2014. Decision no. 2041/2014 from 04.06.2014.

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but, surprisingly, the Court avoids any other reference and goes on to define the conditions and consequences of such instruments. There is however in this category one rare example of a rather extended use of comparative law to develop the interpretation of a legal term. This was a decision concerning the notion of “importer”, again in the field of intellectual property.34 In a decision that is not very long itself (8 pages) the hccj allocates an unusually high number of paragraphs to comparative law under a subtitle “Comparative law arguments for the interpretation of the notion of importer.” It is interesting how this subsection is introduced: “To answer to all of the appellants claims, and in spite of the fact that the above argument is already sufficient to motivate this judgment, it can be added that observation of the provisions of other EU Member States and their case law confirm this result.” It is obvious that the Court feels the need to stress the fact that the decision is already fully justified by national law and that the relatively long reference to comparative law only serves to confirm it. Most of the subsection is dedicated to the Court of Justice of the European Union and its interpretation of the notion, but also to the legislation of the Netherlands and France. While France is, as we had seen, a rather recurrent country of reference for the Romanian Courts, not the same can be said about the Netherlands. The explanation in this particular case seems to be that the Dutch law on this matter is very similar to the Romanian one, so it is very helpful to use it to strengthen the interpretation chosen by the hccj. 5.2.6 A Dispute Originating in Foreign Law A different case is the situation where a dispute originates in another country and is originally governed by the local law. If then the hccj is called to deal with an issue related to this dispute it will necessarily need to reflect on the system the dispute originates from. While this is not necessarily a use of comparative law, there can be examples where, while doing so, the hccj is using the comparative technique. In a decision on intellectual property again, the Court analyses the rights given by a certain derivate work. It finds that the rights allocated by French legislation did not have an equivalent in Romanian law, so it rejected the demand as unfounded.35 5.2.7 International Private Law Finally, one can find references to international treaties and even foreign law in decisions regarding matters of international private law. In a decision 34 35

Decision no. 8695/2011 from 12.12.2011. Decision no. 7103/2012 from 20.09.2012.

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c­ oncerning the disputed recognition and enforcement of a decision rendered by the Arbitration Court in Paris, the hccj makes reference to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), which was the legal basis for the demand, as well as the bilateral Convention between Romania and France concerning legal assistance in private and commercial matters from 1974.36 In cases where international private law is at stake, references to foreign law seem to be unavoidable, especially if the applicable law is that of another country. In such cases for example, the competent court needs to assess the content of the notion of international public policy. But here the applicable law was the Romanian law, so there was no need to refer to other foreign system. Generally, in decisions on private international law, the hccj applies the international, multi- or bilateral treaties that are in force and rules on the dispute in accordance to these. There are also situations in which the hccj has to verify if certain conditions of a foreign law are fulfilled, as it is that foreign law that is applicable according to the rules private international law. In one decision, for example, it referred to the German law in order to determine the existence of a valid testament established in Germany that can have effects under Romanian jurisdiction.37 6 Conclusions From this analysis of rather recent case law of the ccr and hccr we can conclude that, while it is certain that comparative law now plays a role in the reasoning and solutions sought by the two Courts, it is still rather far from becoming a central point in the argumentative structure of these Courts. The ccr is vaster in its comparative law argument and the possibility of publishing dissenting opinions also grants an opportunity to use arguments drawn from foreign law. On the other hand, the hccj seems to be less exhaustive in its comparative law references, mostly reducing them to a few lines and presenting them as a supplement to an already made point. These references to foreign law are seen as necessary mostly when it is well known that a certain provision has been important from another legal system, or when the interpretation of a rather universal or well spread legal concept is being disputed. Finally, a preponderance of references to the French and Belgian law can be observed, which is a consequence of the fact that the Romanian civil and

36 37

Decision no. 3181/2009 from 02.12.2009. Decision no. 5225/2004 from 21.09.2004.

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­ artly the constitutional law have been under strong influence of the French p and Belgian law. The reluctance to use more foreign law as argumentative basis can be explained by the fear of judges of being criticized for overstepping their competences and ruling on foreign rather than national law. But due to the increasing influence of transnational law such as the EU law, the echr and other International Organizations and the increasing exchange rates between States in trade, education, labor force and culture we could expect that the importance of comparative law will not cease to grow. This is a very beneficial effect, as comparative law helps enrich and further develop the national legal system and can create more coherence and faster improvement of the national law and the international cooperation. Acknowledgements The author wishes to thank to Anca Rusu, llm (King’s College, London), for her help. References Iorgovan Antonie, Tratat de drept administrativ Vol. i–ii, (4th edition All Beck 2005). Toader Camelia, Contract Law in Romania, in : Private Law in Eastern Europe Autonomous Developments or Legal Transplants? p. 109, edited by Christa Jessel-Holst, Rainer Kulms, Alexander Trunk (Mohr Siebeck, 2010). Örükü Esin, The Courts and the Legislator, in: Comparative Law: A handbook, edited by Esin Örükü and David Nelken, p. 413 (Hart Publishing 2007). Deleanu Ion, Tratat de procedură civilă, Volumul i (All Beck 2005). Guțan Manuel, Transplant constituțional și consituționalism în România moderna 1802– 1866 (Hamangiu 2013). Criste Mircea, Începuturile controlului de constituționalitate în România. Procesul Societății Tramvaielor, http://revcurentjur.ro/old/arhiva/attachments_200434/recju rid043_42F.pdf 31 January 2009, last accessed June 2019. Toader Tudorel, Safta Marieta, Dialogul judecătorilor constituționali (Universul Juridic, 2015).

The Use of Comparative and International Law by the Constitutional Court of Bosnia and Herzegovina Laura Montanari 1

Introduction: The Complex Constitutional System Created by the Dayton Agreement

Any piece of research on Bosnia and Herzegovina must be introduced by a brief overview that highlights the peculiar features of a legal system that was designed in the aftermath of the dramatic events that followed the dissolution of the Socialist Federal Republic of Yugoslavia. Unlike any other Eastern European Country where constitutional transitions were implemented peacefully, in the Western Balkans – and specifically in Bosnia and Herzegovina – such shift provoked armed conflicts between the various Republics that were born as a result of the dissolution of the Federal Republic of Yugoslavia, which is to say, between the different nations that coexisted in the area.1 In the Republic of Bosnia and Herzegovina, none of the major ethnic groups – Muslim Bosnians (Bosniaks), Serbs and Croats – outnumbered the others and this led to a civil war that also involved the so-called “Kin States” (Serbia and Croatia), ravaged the Country from 1992, the year of the independence referendum, to 1995, when the Dayton Agreement was signed thanks to the efforts of the international community.2

1 There are numerous bibliographic references on the dissolution of the Socialist Federal Republic of Yugoslavia, among them: Edgard Hösch, Storia dei paesi balcanici, Torino Einaudi, 2005 and Jože Pirjevec, Le guerre jugoslave 1991–1999, Torino, Einaudi, 2001. For a constitutional analysis, see Marina Calamo Specchia, Maddalena Carli, Giampiero Di Plinio, Roberto Toniatti (Eds.), I Balcani occidentali. Le Costituzioni della transizione, Torino, Giappichelli, 2008 and Laura Montanari, Roberto Toniatti, Jens Woelk (Eds.), Il pluralismo nella transizione costituzionale dei Balcani: diritti e garanzie, Trento, Università degli studi di Trento, 2010. 2 It is worth pointing out that, at the time of the dissolution of the Republic of Yugoslavia, the ethnic composition of the Republic of Bosnia and Herzegovina was as follows: 43,7% Muslims, 32,4% Serbs, 17,3% Croats and 7,6% other ethnicities; these data were extracted from Pavle Nikolic, I sistemi costituzionali dei nuovi Sati dell’ex-Jugoslavia, Torino, Giappichelli, 2002, especially. p. 188. For a legal history of the events that concerned Bosnia and Herzegovina see Jens Woelk, La transizione costituzionale della Bosnia ed Erzegovina. Dall’ordinamento imposto allo Stato multinazionale sostenibile?, Padova, Cedam, 2008 and, for a more recent

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004297593_028

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The Constitution, as it is well known, was written in such a context and is a perfect example of an “Internationalised Constitution” by being Annex iv to the peace treaty.3 Here, we are witnessing a peculiar experiment of “constitutional engineering” which indeed offers a lot of food for thought but that, in practice, has not been able to deliver on its promises and has caused a stalemate that hinders the functioning of State institutions. In fact, over twenty years after its adoption and despite numerous attempts, the implementation of a successful constitutional reform4 has not yet been possible, despite such reform being much needed to overcome the critical issues affecting the legal system and, even more importantly, to finally make the Constitution an expression of the will of people of Bosnia and Herzegovina and not just the result of international negotiations.5 The peculiar features of the constitutional solution adopted in Dayton can be grouped into two categories. On the one hand, those aimed at guaranteeing formal parity in State institutions among the three “Constituent Peoples” – Serbs, Croats and Bosniaks; on the other, those that introduced special forms of interaction between the international and domestic legal orders. It is important to delve further into these two points since understanding the reference framework is essential before moving on to the analysis of the case law of the Constitutional Court of Bosnia and Herzegovina.

contribution, see Id., La lunga transizione della Bosnia ed Erzegovina “da Dayton a Bruxelles”, in Studi sull’integrazione europea, 2010, 508 ff. 3 It must be remembered that the Dayton peace agreement was signed in Paris in December 1995 by the representatives of the countries that had intervened to stop the conflict (i.e. the international community), the President of Bosnia and Herzegovina, but also by the presidents of the Federal Republic of Yugoslavia (which was comprised of Serbia and Montenegro at the time) and of Croatia, both Kin States not officially involved in the conflict. As previously stated, Annex iv of such agreement is the Constitution of Bosnia and Herzegovina, whose official version is in English. On “Internationalised Constitutions” see, among others, Nicolas Maziau, Le costituzioni internazionalizzate. Aspetti teorici e tentativi di classificazione, in Diritto pubblico comparato ed europeo, 2002, 1389. 4 Actually, an amendment to the Constitution – new art. iv (4) regarding the district of Brcko – was adopted on 26 March 2009 (Official Gazette of BiH No. 25/09). 5 For an analysis of the complexities that still characterise Bosnia and Herzegovina after over twenty years from the adoption of the Dayton Agreement see Enrico Milano, La Bosnia-­ Erzegovina a venti anni da Dayton: un sintetico bilancio, in La Comunità internazionale, 2015, 509 ff.; Soeren Keil, Valery Perry, State-Building and Democratization in Bosnia and Herzegovina, New York, Routledge, 2015; Christopher Bennett, Bosnia’s Paralyzed Peace, New York, oup, 2016 and Ludovica Benedizione, Valentina Rita Scotti (Eds.), Proceedings of the Conference: Twenty years after Dayton. The Constitutional Transition of Bosnia and Herzegovina, Luiss University Press, 2016.

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In order to avoid its dissolution, the Bosnia and Herzegovina has been organised as an atypical federal system made of two Entities that formalise the territorial and ethnical borders. The latter had been determined as a result of the conflict between the Federation of Bosnia and Herzegovina, mainly inhabited by Bosniaks and Croatians, and the Republika Srpska, mainly inhabited by Serbs. These two Entities coexist within a Central State with limited powers – known as (the State of) Bosnia and Herzegovina – which is recognised as the successor of the Republic of Bosnia and Herzegovina that had been created following the dissolution of the socialist Yugoslavia.6 As Jens Woelk effectively summarises: “The Dayton Agreement has created an asymmetric federal State with an extremely weak centre that relies on the two Entities and institutions whose territorial representation (of the Entities) serves mostly the ethnic representation (of the three Constituent Peoples)”.7 The determination to guarantee equality among the three Constituent Peoples deemed paramount to attain the pacification of the Country, has been translated into the establishment of an extremely weak central federal government whose functioning is subject to the veto power of the three Constituent Peoples.8 6 Even before the EU-backed Bosnia-Herzegovina referendum on independence took place on 29 February/1 March 1992, the Serbian population (that did not take part in the referendum) had declared the independence of the Republic of the Serb People of Bosnia and Herzegovina (Republika Srpska, January 1992). Furthermore, also the Croatian population was looking at an independent solution, which was attempted with the creation of the Croatian Republic of Herzeg-Bosnia (August 1993); the latter, however, was then merged, thanks to the international intervention, into the Federation of Bosnia and Herzegovina, which, in turn, had been created by the Washington Agreement between Croats and Bosniaks in March 1994. As a result of this process, and with the subsequent adoption of the respective Constitutions, the two Entities that at the end of the war would form Bosnia and Herzegovina were born. For a more detailed description of these events, see Jens Woelk, La transizione costituzionale della Bosnia ed Erzegovina. Dall’ordinamento imposto allo Stato multinazionale sostenibile?, cit. 7 See Jens Woelk, La transizione costituzionale della Bosnia ed Erzegovina. Dall’ordinamento imposto allo Stato multinazionale sostenibile?, cit., especially 96; on this see also the report by Timoslav Marsić, Josef Marko, The Constitutional Reform Process in Bosnia and Herzegovina, written for the European Parliament’s Committee on Foreign Affairs, 2007, especially 2 ff., available at www.swp-berlin.org/fileadmin/contents/products/fachpublikationen/Briefing_ Paper_KS.pdf; Gustavo Gozzi, Democrazia e nazionalismi. La Bosnia-Erzegovina una democrazia impossibile?, in Gustavo Gozzi, Fabio Martelli (Eds.), Guerre e minoranze, Bologna, il Mulino, 2004, 157 ff. and Jean-Manuel Larralde, La République de Bosnie-Herzégovine: État fédéral atypique et fragile, in Rev. belge dr. const., 1997, 221 ff. 8 After all, the Venice Commission itself has recognised that “Its main purpose [of the Constitution] was to end the bloody conflict in the country and not to establish a functional state”: European Commission for Democracy through Law (Venice Commission), Preliminary opinion on the draft amendments to the Constitution of Bosnia and Herzegovina, 7 April 2006, cdl (2006)027, p.t 6.

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Without going into detail, some of the most meaningful examples of this choice can be outlined. Regarding the Parliamentary Assembly, it is revealing that the MPs of both Houses are chosen at the Entity level, two thirds by the Federation of Bosnia and Herzegovina and one third by the Republika Srpska, with a further provision stating that the House of Peoples is composed of fifteen members, of whom five Bosniaks and five Croats coming from the Federation of Bosnia and Herzegovina and five Serbs coming from the Republika Srpska (Article iv, para. 1). The three main ethnicities are also represented in the Presidency, which following the socialist tradition, is a collegial body composed of three members: a Bosniak and a Croatian elected in the territory of the Federation of Bosnia and Herzegovina and a Serb elected in the territory of the Republika Srpska (Article v). As a result of these rules, those that do not identify themselves as part of any of the Constituent Peoples – the “Others” – are excluded from the most important elective offices. This solution has been condemned by the European Court of Human Rights in the well-known Sejdić and Finci decision adopted on 22 December 2009; however, no reform has been adopted yet.9 Regarding the law-making process, it should be noted that the Constitution confers a veto power upon the Constituent Peoples in order to protect their “vital interest” and also states that, whenever an agreements cannot be reached in such instances, the parties can refer the matter to the Constitutional Court (Article iv, para. 3, f). And in fact, as we will see, the role of Constituent Peoples has been the object of one of the most important decisions of the Constitutional Court – U-5/98 iii – whose reasoning is relevant for the research undertaken in this paper. Moving on to the forms of integration between the international and the domestic legal orders, three relevant examples can be mentioned. The best known is the High Representative for Bosnia and Herzegovina – that, since 2002, also serves as the European Union Special Representative10 – which is in charge of overseeing the implementation of the civilian aspects of the peace 9

10

This decision was taken by the Grand Chamber following the application of two citizens, a Jew and a Romani, who due to their ethnic background were not allowed to become President nor MP: Applications no. 27996/06 and no. 34836/06; the same conclusion was reached by the Court in its decision Zornić on 24 July 2014 concerning an applicant who refused to state its belonging to any ethnic group: Application no. 3681/06, and more recently in the decision Pilav on 9 June 2016, following an application by a Bosniak residing in the Republika Srpska and, for this reason, barred from becoming President as a representative of its ethnicity: Application no. 41939/07. These decisions are available on the website of the European Court of Human Rights: . About this “double hatting” see Jens Woelk, La lunga transizione della Bosnia ed Erzegovina “da Dayton a Bruxelles”, cit., 523.

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settlement. However, since the implementation of the new constitutional system has been met with resistance, the powers of the High Representative have been greatly strengthened. In particular, thanks to the so-called Bonn Powers introduced in 1997, in some instances, it proved to be the real driving force of the Country by undertaking to adopt the main legal reforms and to decide on the destitution of the civil servants who hindered the implementation of the Dayton Agreement.11 It is also worth noting the peculiar legislation concerning fundamental rights. In fact, the Constitution does not contain a list of rights similar to the Western tradition, which is also present in Eastern Countries after their democratisation. On the contrary, Article ii on Human Rights and Fundamental Freedoms first states that “Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms […]” (Article. ii.1) and then simply states a number of rights (Article ii.3 Enumeration of Rights) whose regulation is completed by making reference to a variety of international treaties enumerated in Annex i. More precisely, it is stated that “The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex i to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (Article ii.4 Non-Discrimination). By way of this reference, the international rules have been implemented into the national system even before the ratification and execution of the international treaties that contain them.12 Special emphasis is placed on the echr, since Article ii.2 states that “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law”. In this regard, the Human Rights Chamber, 11

12

The High Representative, as regulated by Annex x of the Peace Agreement, is one of the most contentious features of the system designed in Dayton. It is especially after the strengthening of its powers (decided during the Peace Implementation Council, pic, meeting that took place in Bonn in 1997) that it started taking all of the most important decisions for the functioning of the Country, such as the law on property and the one on citizenship. It is worth noting that the Constitution of Bosnia and Herzegovina merely defines the ratification process of international treaties but does not provide any guidance on the validity of such rules within the domestic legal framework. The Constitutional Court seems prone to believe that, as it is for the majority of Eastern-European Countries, the ratification itself is sufficient to proceed to the domestic application of such treaties: see decision U-5/09 delivered on 25 September 2009.

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an ad hoc judicial body mainly composed of “international judges”, was active until 2003 to oversee the respect of the echr during the first years of the Country’s history.13 Lastly, as a third example, it must be reminded that even the composition of the Constitutional Court requires the presence of three foreign judges chosen by the President of the European Court of Human Rights (Article vi.1.a), more on this will follow below. All the features mentioned above can be understood in light of the intricate circumstances in the context of the Constitution’s adoption. These measures aimed at fostering the implementation of the Constitution but, at the same time, they have also played a decisive role in the Constitutional Court’s choice to make extensive use of comparative and international law, a move that has proven to be particularly useful for the interpretation of the Dayton Agreement. 2

The Composition and the Powers of the Constitutional Court: “a just and reliable guardian of the Constitution of Bosnia and Herzegovina, its values and human rights”

The rules governing the operation of the Constitutional Court have been influenced by the peculiar context in which the Constitution was drafted as can been seen by analysing both the Court’s composition and powers. Regarding its constitution, Article vi.1.a of the Constitution states that the Court is composed of nine members: six elected within the two Entities that compose the State of Bosnia and Herzegovina – four from the Federation of Bosnia and Herzegovina and two from the Republika Srpska – as well as three “international judges” who must not be nationals of the State of Bosnia and Herzegovina nor of any neighbouring Country.14 According to Article vi.1.d, 13

14

The Human Rights Chamber formed, together with the Ombudsman, the Human Rights Commission, regulated by Annex 6 of the Peace Agreement. The Human Rights Chamber, that operated along with the Constitutional Court until 2003, was formed of 14 members, 6 from Bosnia and Herzegovina (4 were chosen by the Federation of Bosnia and Herzegovina and 2 by the Republika Srpska), while 8 members were appointed by the Council of Europe Committee of Ministers and were not allowed to be citizens of Bosnia and Herzegovina or of any neighbouring Country. For more details on this, see Laura Montanari, La tutela dei diritti in Bosnia ed Erzegovina: il complesso rapporto tra Camera dei diritti umani, Corte costituzionale e Corte di Strasburgo, in Giuseppe Franco Ferrari (Ed.), Corti nazionali e Corti europee, Napoli, esi, 2006, 159 ff. For simplicity reasons, the expression “international judges” will be used in this paper even though the expression “foreign judges appointed by an international body” better reflects, in my opinion, the solution adopted. For a deeper analysis on the composition

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after a first appointment for a five-year term, the Parliamentary Assembly can pass legislation to change the way international judges are chosen – they are currently appointed by the President of the European Court of Human Rights – however, no changes have been made in this regard. The composition of the Constitutional Court therefore reflects the features of the Constitutional system currently in force in Bosnia and Herzegovina: on the one hand, the close link between the domestic and the international legal orders and, on the other, the determination to guarantee equality among the three Constituent Peoples. As a matter of fact, the Constitution merely states that four judges are to be chosen by the Federation of Bosnia and Herzegovina and two by the Republika Srpska but it does not go into the details concerning their ethnical background. However, the overlap between geographic and ethnic power sharing arises again and, as a result, the Court’s brief history has been characterised by the steady presence of two judges from each constituent group.15 On a side note, it is remarkable that the only eligibility condition for candidates to be appointed to the Constitutional Court is to be “distinguished jurists of high moral standing” (Article vi.1.b). There is therefore no requirement for any specific professional expertise other than being legal experts and as a result, the nominees are likely to be chosen among legal professionals and legal scholars but also among those with a background in economics or in the public sector. Nonetheless, the majority of the current “national members” of the Constitutional Court have held public offices in the framework of the Entities or of the State of Bosnia and Herzegovina and, in some cases, have even played a significant role in domestic political parties. By contrast, international judges

15

of the Constitutional Court, see Laura Montanari, La composizione della Corte costituzionale della Bosnia ed Erzegovina tra influenza del fattore etnico e garanzie internazionali, in Marina Calamo Specchia (Ed.), Le Corti costituzionali: composizione, indipendenza, legittimazione, Torino, Giappichelli, 2011, 113 ff. See on this Joseph Marko, Foreign judges: a European perspective, in Simon N.M. Young, Yash Gahi, Hong Kong’s Court of Final Appeal, Cambridge University Press, Cambridge, 2013, 637 ff. and specifically 642. It must be noted that, initially, even the internal regulation of the Court seemed to uphold this interpretation by stating that “A session of the plenary Court shall be adjourned if no judges from one of the constituent peoples are present” (art. 42 of the 2005 version); following some modifications, the current version states that “The session of the Constitutional Court sitting as a plenary Court not attended by a minimum of three judges elected by the House of Representatives of the Federation of Bosnia and Herzegovina and by a minimum of one judge elected by the National Assembly of the Republika Srpska shall be adjourned” (art. 39 of the 2014 version), thereby deleting the explicit reference to the Constituent Peoples. Similarly, the rules on the election of the President and the vicepresident have been modified with the introduction of a wider expression that makes reference to the Constituent Peoples and the “Other” peoples (see Articles 83 and 86).

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have a completely different background since they are either university professors or former judges of the European Court of Human Rights.16 Against this background, national judges might depend on the interests of their own ethnicity, or even on their own party. It is worth mentioning the well-known case of judge Krstan Simić, who was removed from the Court for having infringed the obligations imposed by Article 91 (former Article 94) of the Court’s Regulation, which states that “1. The judges shall perform the function of a judge conscientiously. 2. The judges shall uphold the reputation and dignity of the Constitutional Court and the reputation and dignity of a judge”.17 In its decision, the Court examined some of the episodes that highlight the links that bound together judge Simić and the Independent Social Democratic Party, of which he had been vice-President just before being appointed to the Constitutional Court. In his correspondence with the Party’s leader – who was also the Prime Minister of the Republika Srpska at the time – judge Simić not only shared his views on the work of the Court and his peers but also claimed that “In any event, I am always at your disposal but in the hassle and bustle that surrounds you I am afraid that you do not use my experience and opportunities sufficiently enough. My attitude is not to impose as I am aware of the problems you are in […] (page 2, paragraph 7) ”.18 In light of this the Court, by recalling the case law of the ECtHR, reaffirmed the requirement of independence and impartiality that judges must fulfil by not answering to anyone, by not accepting instructions by anyone and also by showing an “appearance of independence”.19 Later on, the judgment that led to the removal of judge Simić ended up before the European Court of Human Rights but the case was rejected as inadmissible.20

16 17

18 19 20

A brief CV of each judge is published on the website of the Court, http://www.ccbh.ba/. See decision K-I-15/10, 8/05/2010. Such obligation is confirmed in the oath of office found in Article 82: “I solemnly declare that in exercising my functions as a judge of the Constitutional Court of Bosnia and Herzegovina, I will uphold the Constitution and laws of Bosnia and Herzegovina and that I will exercise my functions as a judge conscientiously and impartially” (a slightly different version be found in the previous version of the regulation: “I solemnly declare that in the performance of my function as Judge of the Constitutional Court of Bosnia and Herzegovina, I will uphold the Constitution and Laws of Bosnia and Herzegovina and that I will exercise my functions as a judge honorably and impartially and that I will keep secret all deliberations”: art. 85). The judgments, often available in English, can be found on the website of the Constitutional Court, http://www.ccbh.ba/. Quotations cited in decision n. K-I-15/10, cit., para. 18. Ibidem, para. 37. See the ECtHR, v Section, 8 December 2016, Krstan v. Bosnia and Herzegovina, Application no. 75255/10.

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Apart from this extreme example, the analysis of the case law shows that, on several occasions, dissenting opinions have been used by judges as a tool to defend the interests of the Constituent People to which they belong.21 On a side note, it must also be pointed out that, as will be seen below, the position of the international judges has been decisive to solve some of the most controversial issues.22 Moving on to the analysis of the powers of the Court, Bosnia and Herzegovina is in line with the trend that characterises Eastern European Countries, which allows the Constitutional Courts to play a key role in the transition towards democracy.23 Article vi.3 of the Constitution, after having reaffirmed that the Court “shall uphold [this] Constitution”, identifies a series of powers that are characterised by a broadness and a peculiarity that can only be explained by the unique circumstances that led to the drafting of the Constitution.24 The Constitutional Court acts as an appellate court judge with regard to 21

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These considerations have been developed by Josef Marko, Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A first Balance, eurac research, European Diversity and Autonomy Papers 7/2004, available online at www.eurac.edu/edap, especially 30. In truth, there are cases where all dissenting judges belong to a specific ethnic group which, as a whole, has a different view on the topic reviewed by the Court. See, for example, case U-10/05, 22/07/2005, concerning the Law on Public Broadcasting System of Bosnia and Herzegovina, which dealt with the issue of the purportedly insufficient protection of the use of the Croatian language which, in turn, would violate the equalitarian position of the Constituent Peoples. The Court’s judgment, which dismissed the case, was met with the dissenting opinion of the two Croatian judges. Similar considerations can be made for case U-15/08, 3/07/2009, which rejected the application concerning a series of provisions aiming at developing the international activity of the Republika Srpska, which was met by the dissenting opinion of the two Bosniak judges. Lastly, the decision of the National Day of the Republika Srpska, which was deemed discriminatory by the Court in case U-3/13, 26/11/2015, and was met with the dissenting opinion by the two Serb judges. In fact, art. vi, 2, (a) of the Constitution states that for the Court’s decision “A majority of all members of the Court shall constitute a quorum”, consequently – as will be seen in some cases analysed in this paper – the international judges’ vote together with the vote of one of the Constituent Peoples can determine the majority. The analysis on these issues is very rich, see, for instance, Francesco Biagi, Corti costituzionali e transizioni democratiche, Bologna, il Mulino, 2016 and, with a specific focus on the Countries of Eastern Europe, Carna Pistan, Tra democrazia e autoritarismo: sistemi di giustizia costituzionale nell’Europa centro orientale e nell’area post-sovietica, Bologna, Bononia University Press, 2015. Specifically on the Constitutional Court of Bosnia and Herzegovina see Nedim Kulenović, Court as a Policy-Maker?: The Role and Effects of the Constitutional Court of Bosnia and Herzegovina in Democratic Transition and Consolidation, Analitika, Working Paper 5/2016. For a detailed analysis of the powers of the Court, see Christian Steiner, Nedim Ademović (Eds.), Constitution of Bosnia and Herzegovina Commentary, Konrad Adenauer Stiftung e.V., Rule of Law Program South East Europe, Sarajevo, 2010, 681 ff.

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constitutional matters (“over issues under this constitution”) against all judgments by the Courts in Bosnia and Herzegovina (it is here that we can see its role as a judge of the rights, a role that has become particularly important after the dissolution of the Human Rights Chamber). Then, it is responsible for the so-called incidenter procedure for the review of constitutionality (also with regard to the compliance with the echr). It also does the constitutional control in the direct procedure – according to an interpretation of the Constitution delivered by the Court itself as it is not expressly provided.25 On top of that, it solves, again as an incidental question, the issues regarding the existence and the extension of a general rule of international public law that is relevant for the decision of a lower Court. Upon request of those identified by the Constitution (a member of the Presidency, the Chair of the Council of Ministers, the President or the Vice-President of one of the Houses, a fourth of the members of the Houses or of the Governments of the Entities) the Court decides on the conflicts between: (i) the State and the Entities; (ii) the two Entities and (iii) the institutions of Bosnia and Herzegovina. Among the potential conflicts, the Constitution lists a few examples (“including but not limited”), such as the compliance with the Constitution of the treaties signed between the Entities and the neighbouring Countries, of the Entities’ Constitutions and their statutes; the Court also intervenes when, during the legislative process, art. iv, par. 3, f of the Constitution is invoked because of a potential violation of a vital interest of a Constituent People.26 Court has therefore the power to take decisions that can have a crucial impact on the features of a system that is precariously balanced between the interests of the different ethnicities and the need to overcome the consequences of the armed conflict in order to recreate the conditions for a peaceful cohabitation

25

Even though an explicit provision is lacking, the Court believes that its role and the non-exclusive exemplary list found in art. vi, par. 3, (a) justifies its power to perform an abstract constitutional review on federal law: see the references in decision U-16/06, 30/3/2010, para. 18, but see also decision U-1/99, 14/8/1999. 26 Art. iv, 3 of the Constitution states that, if the members of the House of Peoples believe that a violation of the vital interests of one of the Constituent Peoples has taken place, a Joint Commission has to be set up to find a solution and if the issue is not resolved in five days, “the matter will be referred to the Constitutional Court which shall in an expedited process review it for procedural regularity”. The issue of the powers of the Court was immediately raised since from its first decision on this matter the Court has reviewed the content of the draft legislation with regard to the supposed violation of a vital interest: see decisions U-2/04, 28/05/2004 and U-8/04, 25/06/2004, see also Nedim Kulenović, Court as a Policy-Maker?: The Role and Effects of the Constitutional Court of Bosnia and Herzegovina in Democratic Transition and Consolidation, cit., 31.

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(i.e. by fostering the return of refugees).27 It is worth noting that the Court has interpreted its jurisdiction very broadly based both on the expression “including but not limited” and, more generally, on its role of guardian of human rights. For instance, in judgment U-4/05, the Court stated that The Constitutional Court is one of the most responsible institutions of the system, which represents an additional protection mechanism and ensures a consistent respect of the human rights pursuant to the international conventions and other international agreements. The Constitutional Court must be a just and reliable guardian of the Constitution of Bosnia and Herzegovina, its values and human rights. There are many issues under the Constitution of Bosnia and Herzegovina that need to be clarified and, in this respect, the Constitutional Court is the only body competent and qualified to provide interpretations (para. 14).28 3

The Judicial Activity of the Constitutional Court: A General Overview

In order to proceed further with the analysis of its case law, some features of the Constitutional Court of Bosnia and Herzegovina need to be highlighted. Firstly, the Court has worked in two distinct formations: pursuant to Article vi, 1, c, the first judges, who were appointed in 1997, would serve a five-year mandate,29 while those appointed later would remain in office until they turn 27

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In this respect, Nicolas Maziau has claimed that “la Cour constitutionnelle a la responsabilité d’assurer le respect des équilibres constitutionnels imposés à Dayton et constitue, à ce titre, l’une des institutions les plus importantes de l’Etat” in Bilan de jurisprudence de la Cour constitutionnelle de Bosnie-Herzégovine de 1997 à 2005, in Rev. fr. dr. const., 2006, 413 ff., especially 414; see also Rebecca Everly, Alexis Hupin, The Constitutional Court of Bosnia and Herzegovina, the High Representative and the Right to return, in Giuseppe de Vergottini, Robert H. Evans (Eds.), Strategies for the Future of Bosnia-Herzegovina and Croatia, Torino, Giappichelli, 2001, 43 ff. See decision U-4/05, 22/04/2005. In this decision, which dealt with the disposition of the Regulation City of Sarajevo concerning the composition of the City Council, the Court recalls various decisions in which it interpreted extensively its jurisdiction, concluding that “In line with the arguments concerning human rights, the Constitutional Court holds that it must, whenever this is feasible, interpret its jurisdiction in such way as to allow the broadest possibility of removing the consequences of violation of human rights” (para. 16). The Court has been the last institution to be established and its first judgment, U-1/96, was rendered on 16 October 1997. See the presentation, prepared by the Court itself, that analyses the historical evolution from the socialist times onwards: Constitutional Court of Bosnia and Herzegovina, 1964–2014, Sarajevo, 2014.

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seventy. Such rules, until the Parliament decides otherwise, apply to international judges too. As outlined above, thanks to its many powers, the Court plays a paramount role for the functioning of the institutional system of Bosnia and Herzegovina and for the protection of fundamental rights. This was particularly true in the first mandate, which coincided with the initial phase of the application of the Dayton Agreement and was characterised by the resistance of the political forces and the resulting activism of the High Representative. Therefore, the Court, as stressed by judge Valerija Galić, “operates in the post-war period and period of transition of State and society”.30 The peculiarity of this situation is necessarily reflected in the case law. For instance, in the judgment U-7/97 of 22/12/1997, the Court asked to decide on the relation between the Constitution and the Peace Agreement and ­stated that the former “forms Annex iv of the General Framework Agreement” and that the “General Framework Agreement cannot, therefore, possibly contradict the Constitution of Bosnia and Herzegovina”. Moreover, the Court ruled out the possibility that the constitutionality of the General Framework Agreement could be reviewed because “the Constitutional Court has in fact been established under the Constitution of Bosnia and Herzegovina in order to uphold [this] Constitution”. Moreover, it is again in this first phase that the paramount “Decision on Constituent Peoples” (U-5/98 iii) is adopted, a judgment that allows the Court to clarify the purposes of the new constitutional system, which consist not only in the pacification but also in the reconstruction of a multi-ethnic society.31 International judges have played a crucial role in this case as the majority was formed by the three international judges together with the two Bosniak judges, whereas the two Croatian and the two Serbian judges voted against. The judgment will be analysed in depth below with an emphasis on the use of comparative law.32 30

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See Valerija Galić (at the time vice-president of the Court), Report: Bosnia and Herzegovina, at the second congress of the World Conference on Constitutional Justice, on Separation of Powers and Independence of Constitutional Courts and Equivalent Bodies, Rio de Janeiro, 16/18 January 2011, 9. Decision U-5/98 iii, 1/07/2000. The reasoning of the Court goes like this “…it is an overall objective of the Dayton Peace Agreement to provide for the return of refugees and displaced persons to their homes of origin and thereby, to re-establish the multi-ethnic society that had existed prior to the war without any territorial separation that would bear ethnic inclination…” (para. 73). It is a very complex case, for which the Court has adopted four partial decisions and the one dealing with the position of the Constituent Peoples is the iii. See, infra, Section 4.1.

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Apart from the hardship caused by the intricate domestic equilibrium, the Court has also had to face the complex relationship between domestic and international institutions. Firstly, it had to clarify its role with regard to the Human Rights Chamber, which ceased its activity in 2003 and was defined by Manfred Novak as “a judicial body sui generis, having a legal basis in both constitutional and international law, but being neither a constitutional nor an international court”.33 The Court adopted a position of self-restraint (just like the Chamber did), ruling out the possibility of reviewing the decisions of the Chamber.34 This solution has determined a twin-track approach to the protection of human rights: both institutions, in fact, were called upon to safeguard the application of echr and people had to choose which one to address. It cannot be denied that the Chamber had played a key role in the years immediately following the end of the war, however, the convergence of all these powers upon the Constitutional Court has made the functioning of the system smoother.35 That being said, the Court also had to face the decisions taken by the High Representative. In fact, in the first years after the entry into force of the Constitution, facing the inactivity and the obstructionism of the authorities of Bosnia and Herzegovina, the High Representative adopted many measures aimed at ensuring the implementation of the civilian aspects of the peace settlement.36 The Court, called upon to validate the legitimacy of such interventions, has 33 34

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See Manfred Novak, Introduction, p. ix, in Human Rights Chamber for Bosnia and Herzegovina, Digest. Decision on Admissibility and Merits 1996–2002, Sarajevo, 2003, which can be found on the official website of the Chamber at www.hrc.ba. Following a few decisions of inadmissibility based on different reasons (see decision U-3/98, 5/06/1998), the Court explicitly referred to this point, stating that – since the regulations of the two institutions have been adopted at the same time – “the correct interpretation must be that the authors did not intend to give either one of these institutions the competence to review the decisions of the other, but rather considered that, in regard to human rights issues, the Constitutional Court and the Human Rights Chamber should function as parallel institutions, neither of them being competent to interfere in the work of the other and it being left in some cases to the discretion of applicants to make a choice between these alternative remedies”: see decision U-7/98, 26/02/1999 (see also U-11/98 rendered on the same day). We cannot analyse here the role played by the Human Rights Chamber and its relation with the Constitutional Court, on this see Laura Montanari, La tutela dei diritti in Bosnia ed Erzegovina: il complesso rapporto tra Camera dei diritti umani, Corte costituzionale e Corte di Strasburgo, cit., 159 ff. See the references in footnote 11; over the years, it has always been difficult to find the balance between too much interventionism and the need to guarantee the implementation of the civilian aspects of the peace agreement. Some interesting considerations can be found in the Opinion on the Constitutional Situation in Bosnia and Herzegovina and Powers of the High Representative, adopted by the Venice Commission (11–12 March 2005).

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developed the “functional duality approach”. In essence, according to the “functional duality approach” the acts of the High Representative are divided into two types: the first one includes normative provisions – meaning that they are assimilated to laws passed by the Parliament and are subject to its control powers.37 The second one, in turn, is not normative, in which case the international nature of the High Representative prevails and thus the Court lacks the jurisdiction to validate its acts.38 In light of this interpretation, the limitation to the protection of the individuals’ rights is self-evident; in fact, this solution might initially has been regarded as a temporary compromise between the overlap of the domestic and the international levels;39 however, as we will see, a solution to this problem has yet to be found. We have briefly recalled some of the issues faced by the Court in its first composition to show the complexity of its role in the years immediately following the end of the war. Nonetheless, if we look at the number of cases brought to the Court, it was relatively low – between 1997 and 2001 the Court dealt with 212 cases (which resulted in 148 decisions).40 However one should not lose sight of the fact that a significant part of the disputes pertaining to the protection of rights was dealt with by the Human Rights Chamber. The second phase of the Court’s functioning began in 2002 with the appointment of the new judges who were progressively appointed until all the positions were filled in 2003. In 2003 the mandate of the Human Rights Chamber expired with the resulting strengthening of the role of the Constitutional Court.41 As a Court of Appeal (Article vi.3.b), the Constitutional Court protects 37

38

39 40 41

See decisions U-9/00, U-16/00, U-25/00 – also mentioned by the Court in the well-known case on the law adopted by the High Representative to introduce a Federal Court – that make it clear that “However, in so far as the High Representative intervenes into the legal system of Bosnia and Herzegovina, substituting the domestic authorities, he acts as an authority of Bosnia and Herzegovina, and the laws enacted by him are, by their nature, domestic laws of Bosnia and Herzegovina, whose conformity with the Constitution of Bosnia and Herzegovina can be examined by the Constitutional Court” (decision U-26/01, 28/09/2001, para. 13). The Court has put forward different reasons: the provision of the High Representative is not a decision that can be appealed against in light of Article vi.3.(b) (U-37/01) or the internal remedies have not been exhausted (AP-777/04). In decision AP-953/05, 8/06/2006, the Court expressly recognises the lack of an effective remedy as required by Article 12 echr, but on this see infra Section 4.3. On this see Joseph Marko, Foreign judges: a European perspective, cit., especially 654 ff. Data till 2015 are available on the Digest of the Case Law of the Constitutional Court of Bosnia and Herzegovina, published by the Court, Sarajevo, 2016. Once the Human Rights Chamber stopped its activities in 2003, and due to the lack of a direct appeal to the Constitutional Court, the only way left to individuals to challenge the violations to their rights is the appeal provided by Article ii.3.b “over issues under this

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the rights of the individuals, even though its control is limited to constitutional matters and excluded on the substantial matters.42 According to the Digest published by the Court in 2016, the increase in the number of cases brought to the Court is substantial: from 2002 and 2015 the Court dealt with 47.728 cases (which resulted in 26.029 decisions).43 Against this background, the Court also reviewed its internal regulation,44 with the introduction of the Chambers to reduce the workload. Thanks to the changes made in 2003 (which were published in 2004 and then subjected to further adjustments), other than the Plenary Session of the Court, there are now a Grand Chamber composed of five judges and a Chamber composed of three judges. International judges only take part in the Plenary Sessions of the Court. Appeals are normally discussed before the Grand Chamber, which was initially supposed to take unanimous decisions, and, in case of internal dissent, submit the case to Plenary Session. However, following the 2014 reform of the regulation, the Grand Chamber is composed of all the national judges and can take a majority vote based on the number of all the judges of the Court (a minimum of five judges); if a decision cannot be reached, the case is submitted to the Plenary Session. This new organisational layout can be understood in light of the substantial increase in the workload of the Court. The Plenary Session that comprises international judges too, deals with all cases that can be brought directly to the Court as well as the most complex Appeals that the Grand Chamber is not able to decide by a majority vote. According to the data from the Digest published by the Court in 2016, even though the “abstract jurisdiction” cases are relatively

42

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Constitution arising out of a judgment of any court in Bosnia and Herzegovina”. There was a transitional period – from January 2004 to December 2006 – during which the Human Rights Commission within Constitutional Court has worked to deal with the over 9000 cases which had been brought before the Human Rights Chamber and were still cases awaiting judgment when the Chamber was shut down: see the references to this in the volume published by the Court to celebrate 50 years of Constitutional justice in Bosnia and Herzegovina from the socialist period onwards: Constitutional Court of Bosnia and Herzegovina 1964–2014, cit., especially 104 ff. When acting as an appellate court, the Constitutional Court is not a fourth instance but “its basic task is to uphold the Constitution of Bosnia and Herzegovina and the rights contained therein”: see decision U-148/03, 28/11/2003, para. 50; see also U-63/03, 27/02/2004, para. 29 and AP-661/04, 22/04/2005, para. 29. See the references in footnote 40. The regulation is adopted by the Court by absolute majority, pursuant to Article VI.2.b of the Constitution; the Court has qualified it as constitutional source of law, therefore increasing its own independence from the Executive and the Legislative powers: see decision U-6/06, 29/03/2008, especially para. 22.

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few – 125 from day one to 2015 – they have been used to bring to the Court a number of key issues for the functioning of the constitutional system.45 Pursuant to Article 67 of the Court’s regulation, the most relevant judgments translated into English can be found on the website of the Court. The analysis of some carefully selected case law will mainly focus on the judgments of the Plenary Session, which will also allow to see the role played by international judges. The following analysis will take into consideration two main aspects: on the one hand, the use of comparative and international law made by the Court in its reasoning and, on the other, the stance adopted by the Court on the interpretation of the system created by Dayton, and therefore on its own role. The Plenary Session decides by a majority of its members and thus the votes of the international judges may become decisive when the national judges clash in trying to put forward the reasons of their own ethnicity.46 As mentioned above, the Court’s regulation has allowed for dissenting opinions since its first version. Such tool has been often criticized as it can be easily used by judges to show loyalty to the Constituent People they belong to.47 In fact, considering that the composition of the Court is characterised by an ethnical equilibrium, if the individual opinions of the judges were not known, the Court would appear more united and its role as guardian of the Constitution and of the institutional framework of the State of Bosnia and Herzegovina would be strengthened. This being said, however, thanks to the dissenting opinions, both national and international judges have had the chance to develop interesting points of view on some problematic aspects of the legal system.48 However, we

45 46

47 48

See the references in footnote 40. As seen above in Section 2, there is no express law stating that the total number of judges sitting in the Court must be evenly distributed among the Constituent Peoples, however, this has been routine since the beginning. On this see the recent work by Alex Schwartz, Melanie Janelle Murchison, Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia-Herzegovina, in Law & Society Review, 2016, Vol. 50, 4, 822 ff. which analyses the internal splits when it comes to solving the disputes brought before the Court; see also Stefan Graziadei, Power Sharing Courts, in Contemporary Southeastern Europe, 2016, 3(1), 66 ff. See the case law and the scholarly works mentioned above, footnote 21; see also the points made by Luis Favoreu in his interview published in Cahiers du Conseil constitutionel, 2001, no. 11, Entretien avec M. le doyen Louis Favoreu. See, for instance, judge Joseph Marko’s dissenting opinion on the protection of workers concerning the war (decision U-19/01, 2/11/2001); or the one by judge Constance Grewe, joined by judge Seada Palavrić, concerning the relation between the echr and the Constitution (decison U-13/05, 26/05/2006, which also saw a concurring opinion by judge David Feldman); or by judges David Feldman and Tudor Pantiru on the relations with international treaty law (decision U-5/09, 25/10/2009) or by judges Constance Grewe and

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will focus more on this in the last part of this paper, following the analysis of the case law of the Court. 4

The Constitutional Case Law: Between the Implementation of a Multi-Ethnic State and the Protection of Fundamental Rights

The analysis of the case law will focus on four main subjects. The first is the definition of the multi-ethnic State, developed in the decision on the Constituent Peoples issued in 2000 (infra 4.1). Then we will address the abundant case law on the protection of fundamental rights, mainly based on the application of the echr (infra 4.2). Starting from the case law on the echr, we will then try to analyse in broader terms the relationship of the Court with international law, including the powers of the High Representative (infra 4.3). Lastly, this paper analyzes the most complex issue nowadays of the relationship between the domestic and the international legal orders and, more generally, the equilibrium of the Dayton system, that is to say the rules regulating the right to vote which still discriminate against the so called “Others” notwithstanding the conviction of the ECtHR mentioned above. The recent judgment by the Constitutional Court rendered on 26 March 2015 (U-14/12), which seems to open up a revirement, has caused an internal split within the Court: on the one side, the international and Bosniak judges and, on the other, the Croatian and Serbian judges. Hence, similarly to what had occurred in case U-5/98 iii on the Constituent Peoples, this case shows that the critical aspects of the system have not been resolved yet (infra 4.4). The Judgment on the Constituent Peoples Rendered in 2002 and the Safeguarding of Bosnia and Herzegovina as a “democratic multiethnic State” Decision U-5/98 is definitely one of the most important and well-known among those issued by the Constitutional Court of Bosnia and Herzegovina. The case was brought by Alija Izetbegović who at that time was a member of the collegiate Presidency but also served as the President of the Republic of Bosnia and Herzegovina during the war. The application was aimed at challenging the constitutionality of many provisions of the two Entities’ Constitutions. It was indeed a complex case since the Court was called upon to express its views on some critical features of the Dayton system. As a result of this complexity, the 4.1

Margarita Tsatsa-Nikolovska concerning the discrimination of the “Others” (decisions U-25/14 and U-26/14, 9/07/2015).

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Court rendered four partial judgments: the third, which is analysed here, is the one that has become known as the Constituent Peoples judgment.49 Such decision has been identified as the most relevant example of the activism of the Court which, in this instance, has stated that one of the fundamental aims of the Constitution is the protection of Bosnia and Herzegovina as a “democratic multi-ethnic State” (para. 53).50 Under these premises, the Court develops a complex reasoning along two main lines. On the one hand, it undertakes an analysis of the collective rights of the ethnic groups in order to reaffirm the equality among the three Constituent Peoples, even within the Entities. On the other side, by taking into account numerical data, it takes into consideration the protection of minorities and analyses in depth the discrimination that still takes place in the two Entities; a phenomenon that patently breaches the commitment to facilitate and promote the return of refugees in their native lands, which is in itself a fundamental step to safeguard the effectiveness of the multi-ethnic State. We will now analyse the basis on which the Court developed its reasoning. As already said, the decision was taken by a majority and the dissenting opinions show the disagreements as to the interpretation of the Constitution. According to the opinion of the judges who did not share the Court’s decision, the Dayton Agreement by formalising the territorial and ethnical division that resulted from the war entails that the two Entities are a direct expression of their Constituent Peoples. Emblematic in this regard is the much contested Article 1 of the Constitution of the Serbian Republic: “The Republika Srpska shall be the State of the Serb people and of all it citizens”. The majority of the Court, however, puts forward a different interpretation of the new Constitution of Bosnia and Herzegovina. The reasoning is based on the Preamble, which states that “Bosniacs, Croats, and Serbs, as constituent people (along with Others), and citizens of Bosnia and Herzegovina hereby determinate that the Constitution of Bosnia and Herzegovina is as follows”. In 49

50

There are many case notes, see for instance: Francesco Palermo, Bosnia ed Erzegovina: la Corte fissa i confini della (nuova) società multietnica, in Diritto pubblico comparato ed europeo, 2000, 1479 ff.; Nicolas Maziau, Le contrôle de constitutionnalité des constitutions de Bosnie-Herzégovine. Commentaire de décisions de la Cour constitutionnelle, Affaire n. 5/98 Alija Izetbegovic, in Rev. fr. dr. const., 2001, 195 ff.; aw well as the analysis by Nedim Kulenović, Court as a Policy-Maker?: The Role and Effects of the Constitutional Court of Bosnia and Herzegovina in Democratic Transition and Consolidation, cit., especially 39 ff. and Joseph Marko, Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A first Balance, cit., especially 25 ff. See the points made by Nedim Kulenović, Court as a Policy-Maker?: The Role and Effects of the Constitutional Court of Bosnia and Herzegovina in Democratic Transition and Consolidation, cit., 39 ff.

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order to justify the normative force of the Preamble, the Court develops two arguments. Firstly, considering that the Constitution is part of the peace treaty, the Court believes that the Vienna Convention on the Law of the Treaties (“vclt”) is applicable. Article 31 of the vclt, “General rule of interpretation”, states that, when interpreting treaties, “the text and including its preamble and annexes” (para. 19) must be taken into consideration. Then, the Court also uses the comparative argument by recalling the case law of the Canadian Supreme Court, and specifically “Reference re Secession of Quebec [1998]” and “Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997]”. Among the paragraphs quoted by the Court, one is very explicit in stating that the principles found in the Preamble “are not merely descriptive, but also invested with a powerful normative force, and are binding upon both courts and governments” (para. 23). In light of these considerations, the Constitutional Court decided that “As any provision of an Entity’s constitution must be consistent with the Constitution of BiH, including its Preamble, the provisions of the Preamble are thus a legal basis for reviewing all normative acts lower in rank in relation to the Constitution of BiH for as long as the aforesaid Preamble contains constitutional principles delineating – in the words of the Canadian Supreme Court – spheres of jurisdiction, the scope of rights or obligations, or the role of the political institutions” (para. 26).51 A comprehensive analysis of the Constitution, including the Preamble, is essential for the Court to fully grasp “how BiH is structured as a democratic multi-ethnic State”. Moreover, the Court considers more broadly the position of ethnic minorities in light of international law. In fact, as a result of Article ii of the Constitution, the relevant treaties have a special importance in the domestic legal order of Bosnia and Herzegovina and are widely quoted in this judgment. Then, a deep analysis of the current situation of the minorities in the two Entities is undertaken and special attention is paid to the Constituent Peoples. The Court concludes that, following the Dayton Agreement, the return of minorities to their homeland has not taken place yet, neither in the Republika Srpska nor in the Federation of Bosnia and Herzegovina; what is more, discriminatory practices are still commonplace and are also perpetrated by the public authorities. 51

On the normative value of Preambles see Win Voermans, Maarten Stremler and Paul Cliteur, Constitutional Preambles. A Comparative Analysis, Elgar, 2017; Justin O. Frosini, Constitutional Preambles. At a Crossroads Between Politics and Law, Bologna, Maggioli editore, 2012, and for an analysis focusing specifically on Bosnia and Herzegovina see Id., Constitutional Preambles: More Than Just a Narration of History, in University of Illinois Law Review, 2017, 603, especially 618 ff.

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The two argumentative routes adopted by the Court are therefore aimed at defining the features of the State of Bosnia and Herzegovina, paying particular attention to the position of the Constituent Peoples. The “Others” not only get little attention at national level, but are even more discriminated at Entity level following the provisions adopted to implement decision U-5/98 iii. The Court acknowledges that “it follows from established constitutional doctrine of democratic states that a democratic government requires – beside effective participation without any form of discrimination – a compromise. It must be concluded that under the circumstances of a multi-ethnic state that representation and participation in governmental structures – not only as a right of individuals belonging to certain ethnic groups, but also of ethnic groups as such in terms of collective rights – does not violate the underlying assumptions of a democratic state” (para. 56). Following this reasoning, the Court points out to the unconstitutionality of the constitutional provisions of the two Entities because “the constitutional principle of collective equality of constituent peoples following from the designation of Bosniacs, Croats and Serbs as constituent peoples prohibits any special privilege for one or two of these peoples, any domination in governmental structures, or any ethnic homogenisation through segregation based on territorial separation” (para. 60). The content of the judgment will not be further analysed in this paper, however, some remarks on the interpretive technique adopted by the Court can be made. The majority, as recalled above, was formed by two Bosniak and three international judges and, among these, prof. Joseph Marko was appointed judge-Rapporteur, an appointment opposed by both the Serb and the Croatian judges.52 Against this background, and considering that the judgment was also fiercely contested by the Entities, the Court decided to strengthen its reasoning by making reference to international and comparative law. It is true that the system created in Dayton holds international law in high regard, however, the Court went even beyond that and used the tools offered by international law, and namely the Vienna Convention to interpret the Constitution itself. The use of comparative law is easy to explain: making references to the Courts of older federal Countries, such as Canada, but also Switzerland and Belgium for the protection of language groups,53 represents a very useful support for a Court that not only needs to deal with extremely complex issues but has only 52

53

The complexity of the decision is also highlighted by the resignation of one of the Serb judges which slowed down the decision because a substitute needed to be appointed: see Joseph Marko, Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A first Balance, cit., especially 32 ff. See especially para. 59 and paras. 119 ff.; the fourth partial decision is specifically devoted to problem related to the use of the language.

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recently been established in a Country that is still deeply divided because of the recent war. The presence of international judges has definitely eased this approach. Moreover, since its first years of activity, the Court was assisted by foreign legal counsellors who, as reminded by Nicolas Maziau, helped both with the preparation of the cases and with the training of local lawyers on comparative constitutional law and the application of the echr.54 It is worth noting that making use of comparative law has not been welcomed by everyone within the Court: in his dissenting opinion, judge Zvonko Miljko stated that: “Also, I also disagree with the examples of Canada, Switzerland and Belgium, which are stated in the Decision. These examples could be used as an argument during a discussion, but by no means as deciding arguments in the reasons adduced for the judgment. Moreover, they all represent specific situations, often incomparable”.55 The Protection of Fundamental Rights and the Role of the ECtHR in Defining the Content “of the Constitution” As mentioned in the introduction, the provisions on fundamental rights represent one of the most significant examples of the integration between the domestic and the international legal systems. Thanks to this link, international treaties, and specifically the echr, represent the guidelines used by the Constitutional Court both in abstract and concrete constitutional reviews. As a result, the interpretation of those sources of law by international courts must be taken into consideration. In fact, the provisions of the echr must be read in conjunction with the case law of the European Court of Human Rights, which therefore plays a key role in the definition of the fundamental rights in Bosnia and Herzegovina. In this regard, the case law of the Constitutional Court is abundant and interestingly; in the already mentioned Digest, the decisions are organised according to the echr’s provisions involved.56 In this section a few examples will be analysed to highlight the role played by the international sources of law in Bosnia and Herzegovina. Incidentally, it is worth mentioning that on the one hand the echr and the other international treaties mentioned in Annex i of the Constitution have been applied even before their ratification. On the other 4.2

54 55

56

See Nicolas Maziau, Présentation de la Cour constitutionnelle de Bosnie-Herzégovine, in Cahiers du Conseil constitutionnel, no. 11/2001, especially 3. See 47; it is also worth mentioning that, in his dissenting opinion, judge Vitomir Popović highlighted that the judge rapporteur had taken part in the drafting of an opinion for the Venice Commission on the harmonisation of the Constitutions of the Entities and of Bosnia and Herzegovina (82). See the references in footnote 40.

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hand, until 2003 the Human Rights Chamber worked to identify potential violations of the echr. Before proceeding with the analysis of the case law, it is interesting to point out that the conditions of admissibility for the appellate procedure of the Constitutional Court are very similar to those that adopted by the echr. In fact, Article 18, “Admissibility of an Appeal”, first requires the applicant to make sure that “all effective remedies available under the law against a judgment or a decision challenged by the appeal have been exhausted”, then lists a number of causes of inadmissibility similar to those envisaged by the echr, and lastly states that the application must be rejected if the applicant “has not suffered a significant damage unless the respect for the human rights, as defined in the Constitution, requires the consideration of an appeal on the merits”. Indeed, the lists of rights found in the new Constitutions of the Eastern European Countries have often been inspired by and sometimes plainly copy-pasted from international treaties on human rights.57 Interestingly, in the case under review, such approach has also been adopted for procedural law by adopting at domestic level rules that were developed for international judges who are called upon to decide on applications coming from 47 Member States of the Council of Europe. It is exactly with respect to the appellate procedure that the case law of the ECtHR is recalled at length to check the prior exhaustion of local remedies. Decision AP-464/04, 17/02/2005 is worthy of note because the Court, “invoking from the case-law of the European Court for Human Rights referring to exhaustion of legal remedies” (para. 21, emphasis added), interprets domestic law by applying a “certain degree of flexibility, without excessive formalism” (para. 21) and requiring that legal remedies be “easily accessible and comprehensible” (para. 23).58 57

58

On this, and with a special attention to the Western Balkans, see Laura Montanari, La tutela dei diritti nelle nuove Costituzioni dei Balcani occidentali, in Marina Calamo Specchia, Maddalena Carli, Gianpiero Di Plinio, Roberto Toniatti (Eds.), I Balcani in Europa. Le Costituzioni della transizione, Torino, Giappichelli, 2008, 161 ff. See also, for instance, decision AP-1307/08, 9/07/2010, in which the Court adopts a similar reasoning: “The Constitutional Court, in view of the case-law of the European Court of Human Rights relating to the exhaustion of remedies, wishes to emphasize that in application of the provisions of Article 16(1), (2) and (4) of the Rules of the Constitutional Court that rule has to be applied with a certain degree of flexibility and without excessive formalism (see the European Court of Human Rights, Cardot v. France, judgment of 19 March 1991, Series A no. 200, paragraph 34). The Constitutional Court highlights that the rule referring to exhaustion of remedies available under the law is neither absolute, nor it may be applied automatically, while in examining whether it had been complied with, it is essential to take into account specific circumstances of every individual case (see the European Court of Human Rights, Van Osterwijek v. Belgium, judgment of 6 December

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The same approach can be found in the decisions on the right to a fair trial. In fact, in the cases brought before the Court, the violation of Article ii.3(e) of the Constitution which provides “The right to a fair hearing in civil and criminal matter, and other rights relating to criminal proceeding” is invoked together with the violation of Article 6 echr. As a result, a deep analysis of the case law of the ECtHR can often be found in the Court’s reasoning and has come to represent an essential reference point to evaluate the cases brought to its attention. Such cases involve, among others, the failure to comply with court orders (U-464/04, 17/02/2005, paras. 27–28 e AP-1307/08, 9/07/2010, paras. 31–35), the right to an explanation of how a court or a decision-making authority has reached its decision (AP-1123/04, 31/03/2006, para.22), the excessive length of proceedings and the issues pertaining the organization of the judicial system (U-15/03, 28/11/2003, para. 26 and AP-2130/09, 28/05/2010, paras. 46–50). In its reasoning, the Court often employs sentences such as “following the practice of the European Court of Human Rights…” (U-15/03, para. 25); “It follows from the case-law of the European Court of Human Rights” (AP-1123/04, para. 22); “Under the jurisprudence of the European Court of Human Rights” (U-148/03, para. 43); “As the European Court of Human Rights pointed out in its numerous decisions” (AP-661/04, para. 30) or “Being led by the criteria established by the case-law of the European Court of Human Rights” (AP-2130/09, para. 51). As is well known, the European Court of Human Rights has interpreted very extensively Article 6 echr and has even drawn implications for the independence of the Judiciary. It is to this extensive interpretation that the Constitutional Court made reference in its decision K-I-15/10, 4/03/2010, concerning the removal of judge Krstan Simić, mentioned in Section 2, in order to identify the minimum conditions needed to safeguard the independence and the impartiality of judges. Concerning the requirement not only to be but also to appear independent, the Court argues that such condition “is subject to an objective test” and recalls the decision Campbell and Fell v. the United Kingdom, issued by the ECtHR in 1984 (para. 37). Another instance in which the Court dealt with the issue of judicial independence is decision U-7/12, 30/01/2013, with regard to the salary of judges and public prosecutors. In this decision, the Court not only recalled Article 6 echr, the other echr provisions as well as the International Covenant on Civil and Political Rights, but also a number of soft

1980; Series A no. 40, paragraph 35). This, inter alia, means that not only the existence of formal remedies in a legal system must be taken into account but also the overall legal and political context as well as the appellant’s personal circumstances” (para. 23).

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law instruments developed at the international (Basic Principles on the Independence of the Judiciary, endorsed in 1985 by the General Assembly of the UN) and European level (Recommendation “on judges: independence, efficiency and responsibilities”, adopted in 2010 by the Committee of Ministers of the Council of Europe).59 These examples point out the special attention paid by the Constitutional Court to the harmonisation processes that are ongoing at the international level, in particular, the definition of a common standard of judicial independence.60 Let us now have a quick look at the decisions on personal freedom. In fact, the Court gives special attention to Article 5 echr when applying ­Article ii.3.(d) of the Constitution on “the right to liberty and security of person”. It is worth mentioning decision AP-921/04, 17/12/2004, in which the Court, even though it rejects the claimant’s request for an interim measure, acknowledges that “from the point of view of the protection of human rights, detention is a delicate measure of deprivation of liberty of a person and as such may be ordered only when all requirements laid down in Article 5 of the European Convention have been met” (para. 15). It then goes on with a detailed analysis of the case law of the ECtHR concluding that “In view of the aforementioned jurisprudence of the European Court of Human Rights upheld by the Constitutional Court, it is evident that a great importance is ascribed to Article 5 para. 3 of the European Convention” (para. 19; emphasis added). This leads the Court to state that considering that pursuant to Article ii.2 the rights provided for by echr and its Protocols “shall apply directly in Bosnia and Herzegovina and have priority over any other laws” judges must directly enforce Article 5.3 echr making sure that the person detained in pre-trial custody be brought before a judge, even though there is no specific law on this.61 59

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Other than the documents mentioned in the text, decision U-7/12 also recalls The Magna Carta of Judges (Fundamental Principles) adopted by the Consultative Council of European Judges, Strasbourg, November 2010 and the 1998 European Charter on the Statute for Judges adopted during the multilateral meeting organised in Strasburg by the Council of Europe on 8–10 July 1998 and devoted to “the statute for judges in Europe”, as well as Opinion No. 648/2011 by the Venice Commission on Legal Certainty and the Independence of the Judiciary in Bosnia and Herzegovina, 15–16 July 2012. On the independence of the Judiciary, see decision AP-4101/09, 30/03/2012, regarding the disciplinary proceedings before the High Judicial and Prosecutorial Council. The Court states that “In view of the aforesaid, the Constitutional Court concludes that the courts should directly apply the provisions of Article 5 para 3 of the European Convention even in cases when the Criminal Procedure Code does not provide for a strict obligation to bring a detained person, i.e. the person who is imposed pre-trial custody before the competent judge who shall make it possible for him to make a statement” (para. 22). There are many decisions based on art. 5, as can be seen on the Digest 2016, cit., 19 ff. and

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Lastly, it should be noted that even for the restrictions on individual rights the case law of the ECtHR is the point of reference. For instance, in decision U-14/09, 30/01/2010, concerning the law on the conflict of interest in electoral matters promulgated by the Federation of Bosnia and Herzegovina, the Court applied Article ii.2 of the Constitution together with Article 3 of the First Protocol of the echr on the right to free elections. To define the scope of the latter provision, the Court recalls the European case law and highlights that Countries are granted a wide margin of appreciation when it comes to electoral matters. Following the case law of the ECtHR, the Court verifies the existence of a legitimate aim and the proportionality of the measure adopted: “In this context, the Constitutional Court underlines that, pursuant to the case-law of the European Court, it is necessary to establish whether the limitation stipulated by the challenged provision is proportionate to the legitimate aim pursued…” (para. 18; emphasis added).62 Over time, the reasoning of the decisions concerning the protection of fundamental rights has become more sophisticated as the Court, even though it keeps recalling the case law of the ECtHR, now also makes reference to its own case law and the one of the Human Rights Chamber. This is in line with the development of a domestic case law that can corroborate the reasoning of the Court but without questioning the role played by the ECtHR in the interpretation of the Constitution. After the ratification of the echr in 2002, the first decisions involving Bosnia and Herzegovina were issued and, as a consequence, the Constitutional Court has started quoting them when faced with similar cases. For instance, when faced with a supposed limitation to a personal freedom based on the Law on Movement and Stay of Aliens and Asylum of BiH (Official Gazette of the BiH no. 36/08), the Court paid special attention to two convictions issued some months before against Bosnia and Herzegovina which were caused by the application of the same provision under review: “Bringing these circumstances into connection with the quoted views of the European Court in the case of Al-Husin and Al-Hamdani, the Constitutional Court concludes that…” (see AP-3153/09, 15/05/2012, para. 52).63 on the Bullettin of the Constitutional Court of the Bosnia and Herzegovina, no. 3, Sarajevo, 2016; decision AP-1381/12, 12/07/2012, states that “In this regard, the Constitutional Court recalls that it has highlighted in a number of its decisions that the right to personal liberty and security is considered to be one of the most important human rights and that Article 5 of the European Convention provides protection so that no one may be arbitrarily deprived of liberty” (para. 38). 62 See also AP-464/04, 17/02/2005, para. 32. 63 See Al-Husin v. Bosnia and Herzegovina, Application no. 3727/10, and Al-Hamdani v. Bosnia and Herzegovina, Application no. 31098/10, both decisions were rendered on 7 February 2012.

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The Relation between the International and the Domestic Legal Orders in the Framework of the Dayton Agreement The above-mentioned case law on the protection of rights reaffirms the fact that the Constitution of Bosnia and Herzegovina is particularly keen to accept the influence of international law. It is therefore useful to analyse some decisions that deal with the relationship among the sources of law. The presentation of the Court published in 2014 states that 4.3

In conclusion, it may therefore be stated that Annex 4 of the Dayton Agreement represents „the” Constitution of Bosnia and Herzegovina in the traditional meaning of one, single document with constitutional rank. In addition, however, the fifteen listed international treaties for the protection of human rights in Annex 1 to Annex 4 – which form directly applicable law – as well as the other Annexes and the General Framework Agreement itself enjoy constitutional rank and thereby form – ­together with Annex 4 – the formal constitutional law of the state of BiH.64 With regard to the echr – as seen above – Article ii.2 clarifies that “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law”, so that a “hard” interpretation might suggest that its role is actually supra-constitutional.65 However, the analysis of the case law of the Constitutional Court brings out a more problematic picture that shows the complexity of the relations with international law. Notwithstanding the wide application of the echr and the frequent references to the case law of the ECtHR, the Constitutional Court, in its well-known decision U-13/05, 26/05/2006, on the contentious issue of the election of the “Others” (infra 4.4), clarifies that “the provision of the European Convention cannot have a superior status in relation to the Constitution of BiH. This is so because the European Convention, as international document, entered into force on the basis of the Constitution of BiH and thereby the ­constitutional powers derive from the Constitution of BiH and not from the

64 See Constitutional Court of Bosnia and Herzegovina 1964–2014, cit., 89–90. 65 See, for instance, Constance Grewe and Michael Riegner, Internazionalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared, in Armin von Bogdandy and Rüdiger Wolfrum (Eds.), Max Planck Yearbook of United Nations Law, vol. 11, 2011, 1 ff., especially 48 ff. and Constance Grewe, Le contrôle de constitutionnalité des lois constitutionnelles en Bosnie−Herzégovine, in Cahiers du Conseil constitutionnel, n° 27, janvier 2010, especially 3 ff.

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European Convention” (para. 9).66 It is worth mentioning the dissenting opinion of the international judge Constance Grewe, whose opinion was joined by judge Seada Palavrić, according to which ““This Constitution” as well as the role of the Constitutional Court to uphold the Constitution, has to be taken in a wide sense. Indeed, the Peace Agreement represents as a whole the “Constitutional Charter” of Bosnia and Herzegovina while Annex 4 and the 15 international agreements on human rights from Annex 1 of the Constitution of BiH which are directly applied in Bosnia and Herzegovina, without need for legal transformation, represent formal “constitutional law” of that state” (para. 6). The presence of international judges at the Constitutional Court has also been justified by the need to apply the echr, with their knowledge of the European system of protection of human rights and its relationship with the internal order. However, international judges sometimes disagree on the relation between the sources of law, which is understandable in light of their different backgrounds.67 In the decision mentioned above, judge David Feldman issued a separate concurring opinion and claimed that, even though he agrees with the Court on the need to preserve the law under review, it would have been better to declare the application admissible and then reject it on the merits. David Feldman issued another dissenting opinion, together with judge Tudor Pantiru, in case U-5/09, 25/09/2009, concerning the Law on the Protection of the Domestic Production under cefta (Central European Free Trade Agreement). Through a direct appeal, the President of the House of the Peoples casted into doubt the legitimacy of the law in respect to Article iii.3.(b) of the Constitution, according to which “[…] The general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities”. More specifically, the law under discussion was deemed to breach the cefta agreement and therefore the principles of “mutual cooperation” and “fulfilment of international obligation accepted in good faith” (para. 11). This case became the perfect occasion for the Court to ponder on the role of international agreements, an issue which is not regulated by the Constitution (except for those concerning human rights). The reasoning of the Court begins with the consideration that “the internationalization is one of the most characteristic general principles of this Constitution” in order to issue a 66

67

It is one of the decisions on the electoral legislation that, implementing the Constitution, excludes the “Others” from some institutional roles. The Court refuses to review these laws in light of the echr since they are an expression of the content of the Constitution itself. For an interesting analysis of the judges’ different cultural backgrounds see Joseph M ­ arko, Foreign judges: a European perspective, cit., especially 649 ff.

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“hard” interpretation of Article iii.3.(b), according to which “In this provision, the supremacy of the Constitution is closely linked either to the general principles of international law either to the competencies of the Constitutional Court, since the latter is charged with the constitutional review of laws and more generally with upholding the Constitution […]” (para. 30). Along these lines, the Court states that it can interpret the relation between international treaties and domestic law on the basis of the principles of international law. As a result, applying the principle pacta sunt servanda, it declares the unconstitutionality of the law under review. The dissenting opinion of judge Feldman focusses on these points and questions the constitutional status of the principle pacta sunt servanda.68 After having recalled international scholarly works to confirm the qualification of the principle, he questions with a thorough reasoning its relevance for the domestic legal system: “We consider that it forms part of the law of Bosnia and Herzegovina, but ranks below the Constitution and is at most equal to the status of Laws”. The different interpretation chosen by the Court might in fact come with several disadvantages, among which “a small but significant shift in the constitutional balance of power away from the democratically accountable legislative bodies towards the judiciary which would be required to give internal effect to the international rule of law”. The abovementioned examples highlight the complexity of the relationship between international and domestic law in Bosnia and Herzegovina due to the specificities of the solution adopted in Dayton. To conclude, it is worthwhile to mention decision AP-953/05, 8/07/2006, on the powers of the High Representative. As mentioned before, the Court has made it immediately clear that it cannot review the measures adopted by the High Representative when they concern individuals as that would interfere with the international nature of such measures. At the same time, the Court has not failed to highlight the problems that this causes to the protection of individual rights. The decision issued in 2006 is particularly interesting because of the reasoning and the conclusions of the Court, which declares the violation of the right to an effective remedy pursuant Article ii.2 of the Constitution together with Article 13 echr. This is due to the lack, within the domestic legal system, of a means of control over the decisions of the High Representative concerning the individuals; according to the Court, such lack shows the inability of Bosnia and 68

It has been highlighted that “the decision of the majority deals with fundamentally important and novel issues concerning the nature of the Constitution, its relationship to international law, and the powers of the Parliamentary Assembly. It is in relation to those matters, rather than the validity or invalidity of this particular Law, that our disagreement relates”.

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Herzegovina to carry out its obligation to provide people with an effective remedy (para. 78). The reasoning shows an interesting analysis of the obligations that stem from of the accession to the Convention; obligations that persist even if some competences were transferred to international organisations, as stated by the ECtHR in its well-known judgment Matthews v. United Kingdom. However, at the same time, the constitutional judges acknowledge the special force of the decisions of the Security Council of the UN, which prevail on the obligations that originate from international treaties, as stated in the case law and in the scholarly works on Article 103 of the UN Charter.69 Lastly, the focus is on the Constitution read from a “domestic perspective”: in fact, in spite of its international origin, “It is as a national, not an international, instrument that the Constitutional Court, as the highest judicial authority within Bosnia and Herzegovina, interprets and gives effect to” (para. 67).70 Consequently, concerning the rights of the individuals, the Court states that: “The rights under Article ii depend on the Constitution and its interpretation. While many of the rights are derived from those formulated in international treaties, the Constitutional Court has drawn extensively on the case-law of the European Commission and Court of Human Rights when interpreting rights derived from the European Convention, so the rights themselves as given effect in Bosnia and Herzegovina owe their authority to the Constitution of Bosnia and Herzegovina as a national constitution, not to the international treaties […] and it also explains why the Constitutional Court is able to make final and conclusive determinations of the scope of constitutional rights when exercising its function of upholding “this Constitution” under Article vi of the Constitution of Bosnia and Herzegovina” (para. 68). To corroborate this conclusion, the Court performs a

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The well-known and controversial case Kadi, rendered by the Court of First Instance of the European Union, is mentioned. Para. 67 is worth mentioning in its entirety: “Thirdly, the commitments of the authorities of Bosnia and Herzegovina and the human rights within the jurisdiction of Bosnia and Herzegovina are clearly enumerated within the Constitution of Bosnia and Herzegovina. While the Constitution had its origin in an international treaty, Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina, it has functioned for over eleven years as a national Constitution, the highest legal act of the state of Bosnia and Herzegovina. It has a dual nature. It has an international aspect as one of the foundations for the existence and international recognition of Bosnia and Herzegovina in the international community of states. Also, it has a purely national aspect when perceived from within the country as the highest source of validity for the laws and institutions of Bosnia and Herzegovina. It is as a national, not an international, instrument that the Constitutional Court, as the highest judicial authority within Bosnia and Herzegovina, interprets and gives effect to”.

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comparative analysis with the solution adopted by the United Kingdom in the Human Rights Act 1998. This complex reasoning is used by the constitutional judges to state the violation by Bosnia and Herzegovina of the obligation to provide for an effective remedy against the decisions of the High Representative concerning individuals, as well as the need to find a remedy. It is interesting to point out that the High Representative warned the authorities not to introduce “any domestic mechanism to review the Decisions of the High Representative issued pursuant to his international mandate” as it would be seen as “an attempt to undermine the implementation of the civilian aspects of the General Framework Agreement for Peace”.71 The issue ended up before the ECtHR but the Court has declared the application inadmissible because the decisions of the High Representative are an expression of a delegation of power pursuant Chapter vii of the Security Council of the UN.72 As a result, the attempt by the constitutional judges to face one of the most critical, and increasingly more inacceptable features of the Dayton system has remained unheard. The Electoral Rights of the “Others” and the Complex Implementation of the ECtHR Case Law The last decisions to be analysed are those concerning the rules that limit the right to stand for the Presidency and the House of Peoples.73 This is another opportunity to carefully think about the features of the Constitution of Bosnia and Herzegovina, the difficulties involved in the constitutional transition and the relation between international and domestic law, which is even more important following the convictions issued by the ECtHR which are still awaiting to be enforced. The Constitutional Court was confronted with a difficult situation because it was asked to review the legitimacy of the solution adopted in Dayton in light 4.4

71 72

73

See Christian Schwarz-Schilling, Order on the Implementation of the Decision of the Constitutional Court of Bosnia and Herzegovina in the Appeal of Milorad Bilbija et al, No. AP953/05, Sarajevo, 23 March 2007. See the case law of the ECtHR: Berić v. Bosnia and Herzegovina, Application no. 36357/04, 16/10/2007, and Kalinić and Bilbija v. Bosnia and Herzegovina, Applications no. 45541/04 and no. 16587/07, 13/05/2008; for an analysis of these cases see Constance Grewe and Michael Riegner, Internazionalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared, cit., especially 54 ff. and Joseph Marko, Foreign judges: a European perspective, cit., especially 654 ff. See Maria Dicosola, Ethnic Federalism and Political Rights of the Others in Bosnia and Herzegovina, in Ludovica Benedizione, Valentina Rita Scotti (Eds.), Proceedings of the Conference: Twenty years after Dayton. The Constitutional Transition of Bosnia and Herzegovina, cit., 97 ff.

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of the rights laid down in the echr, and namely Article 14 on the prohibition of discrimination and Article 3 of the First Protocol concerning electoral rights. In the first few cases, the Court declared the applications inadmissible, as it believed that their goal was to review some provisions of the Constitution itself (decision U-5/04, 31/03/2006) or at least to review domestic statutes that “derive fully from” the Constitution (decision U-13/05, 26/05/2006). However, the merits of these issues were later analysed on the occasion of an appellate procedure concerning the violation of Article 1 of Protocol 12 of the echr on the prohibition of discrimination which was brought by a Bosniak who was residing in the Republika Srpska and who was prevented from standing as President of Bosnia and Herzegovina (Pilav case, AP-2678/06, 29/09/2006). The Constitutional Court, having taken into consideration the peculiar situation of the Country, upheld the domestic rule on the basis of the margin of appreciation that the ECtHR grants to electoral issues (para. 20).74 On this, the international judges held different opinions: David Feldman in his concurring opinion upholds the decision reached by the Court, highlighting that the solution adopted in Dayton, even though it is meant to be temporary, cannot yet be overcome. Judge Constance Grewe in her dissenting opinion, joined by judge Seada Palavrić, states that “the Dayton Agreement architecture is evolving and has to adapt to the different stages of evolution in BiH”. The multi-ethnic character of the State, as stated in decision U-5/98, theoretically implies the equalisation of all Constituent Peoples even within the two Entities.75 The issue also landed at the ECtHR which, in its 2009 decision Sedic and Finci – brought by two “Others”: a Roman and a Jew – stated that the solution adopted violates the echr since it is not proportionate in light of its purpose.76 The rules concerning the form of government adopted in Dayton, as reminded in the introduction, aim at guaranteeing the equalisation among the Constituent Peoples, which is a precondition for the peace process. Over time, however, such justification looks less and less tenable. The different views held by the Government of Bosnia and Herzegovina and by the ECtHR are particularly pronounced: according to the Government, the period of time since 74 75 76

See the decision on the Pilav case, AP-2678/06, 29/09/2006; subsequently, as will be seen below, it will be brought to the ECtHR and the Court will convict Bosnia and Herzegovina. The judges, in their dissenting and concurring opinions, often deal with the issue concerning the relations among the various sources of law and especially the echr, as seen above in Section 4.3. See the references in footnote 9 above; see the analysis by Christopher McCrudden and Brendan O’Leary, Courts and Consociations, or How Human Rights Courts May De-stabilize Power-sharing Settlements, in ejil (2013), Vol. 24, No. 2, 477 ff. and Constance Grewe and Michael Riegner, Internazionalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared, cit., especially 31 ff.

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the adoption of the Dayton Agreement has not been sufficient to allow the socio-political situation to evolve in such a way that the original choices can be overturned: “the time was still not ripe for a political system which would be a simple reflection of majority rule, given, in particular, the prominence of mono-ethnic political parties and the continued international administration of Bosnia and Herzegovina”.77 Conversely, the Court, in order to justify its position according to which the rule under review is in breach of the Convention, highlights that some positive evolutions have taken place in Bosnia and Herzegovina: such as the Entities giving up the right to have their own army and the signature of the Stabilization and Association Agreement with the EU. Notwithstanding the conviction inflicted by the ECtHR and the insistence of the EU amid the process of adhesion, as of now, there has been no reform in this regard. On the contrary, the ECtHR has even had the opportunity to uphold its case law: in 2014, in the Zornić case, brought by a woman who did not express any affiliation and declared to be a citizen of Bosnia and Herzegovina, and in 2016, in the Pilav case, which was brought by a Bosniak as seen above.78 The complexity of the issue is self-evident: not only does it involve those who do not belong to any of the Constituent Peoples, as in the Sejdić and Finci case, and those belonging to such Peoples but whose rights are not protected all over the territory of the State, but also those that, identifying as citizens of Bosnia and Herzegovina, are discriminated against because of their civic rather than ethnic belonging. In its 2014 decision, the ECtHR vehemently reaffirms the need for a change: now, more than eighteen years after the end of the tragic conflict, there could no longer be any reason for the maintenance of the contested constitutional provisions. The Court expects that democratic arrangements will be made without further delay. In view of the need to ensure effective political democracy, the Court considers that the time has come for a political system which will provide every citizen of Bosnia and Herzegovina with the right to stand for elections to the Presidency and the House of Peoples 77

78

The government’s position on this can be found in para. 34; it is worth mentioning that such conclusions are almost entirely shared in his dissenting opinion by judge Bonello who nonetheless highlights that the view hold by the majority of the Court on the situation of Bosnia and Herzegovina does not adequately take into consideration the dramatic conflict that underpins the choices made when drafting the Constitution. See the references in footnote 9 above. In the decision concerning the Pilav case, the Court expressly acknowledges that “the present applicant lives in Bosnia and Herzegovina. In that connection, the Court observes that the Presidency of Bosnia and Herzegovina is a political body of the State and not of the Entities. Its policy and decisions affect all citizens of Bosnia and Herzegovina, whether they live in the Federation, the Republika Srpska or Brčko District” (para. 45).

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of Bosnia and Herzegovina without discrimination based on ethnic affiliation and without granting special rights for constituent people to the exclusion of minorities or citizens of Bosnia and Herzegovina (para. 43). The enforcement of the ECtHR case law is very difficult: the attempts at reforming the Constitution have always failed and – in spite of the fact the institutional solution adopted in Dayton blocks the functioning of the system – at present there is no political will to change the status quo. An important step has been taken by the Constitutional Court with the already quoted decision U-14/12, 26/03/2015, which affirms that the rules regulating the election of the members of the Presidency of the Entities is in breach of Article 1 of Protocol 12 echr and Article ii.4 of the Constitution. Interestingly, since this case dealt with the rules of the Entities rather than those of the whole Country, the Court was able to face the issue without contradicting its own previous case law. To justify the declaration of unconstitutionality, the Court performed a deep analysis of the ECtHR case law, paying special attention to the Sejdić and Finci case.79 As remarked above, however, the decision has been adopted by majority: the international and the Bosniak judges voted in favour, while the Croat and the Serb judges voted against. This is a decision that might be the prelude of a change that could spread at State level but, at the same time, it reaffirms the dramatic division that reigns in Bosnia and Herzegovina, which is reflected within the Constitutional Court itself. Not only: in spite of the establishment of the infringement, the Court has deferred the enforcement until that of Sejdić and Finci decision. It is a solution that seems to promote the dialogue between the Courts, but that has to face all the difficulties mentioned above. 5

Concluding Remarks

The constitutional system of Bosnia and Herzegovina has many peculiarities which, on the one hand, make it difficult to draw a comparison with other more consolidated democracies, but, on the other, allow for some interesting experiments. This is particularly true for the Constitutional Court, taking into

79

Not long after this case, two more have been rejected by the Court on the rights of the “Others” concerning economic organisations: U-25/14 and U-26/14, 9/07/2015 (with a dissenting opinion by judges Constance Grewe and Margarita Tsatsa-Nikolovska).

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account both the presence of international judges and the role played by international human rights law in giving substance to domestic rights. The cases that are included in this study have been chosen having two goals in mind: trying to highlight the complexity of the role played by the Constitutional Court in Bosnia and Herzegovina, and most of all, the comparison with other constitutional experiences and with international law and case law. Article vi.3 of the Constitution of BiH states that the Constitutional Court “shall uphold this Constitution” and it is from this provision that, little by little, the Court has worked towards creating a wide scope for action for constitutional justice. It is well-known that during constitutional transitions Constitutional Courts play a key role in promoting a smooth transition to the new system, even though they cannot (should not) replace politically-driven decisions. In the complex situation that characterises Bosnia and Herzegovina, the decisions that have been analysed in this paper show the effort to find a balance between the protection and the strengthening of the new constitutional system on the one hand, and the respect of the scope of action and the responsibility of the political institutions, on the other.80 The presence of international judges and the role played by international human rights law have played a key role in this process. As the judges themselves confirm, the involvement of international judges in the Constitutional Court has fostered the use of the comparative method: in the first composition of the Court there were a French, an Austrian and a Swedish judge who have contributed both to the process that has defined the role of the Court and to the decision of some fundamental cases for the development of the new constitutional system.81 Moreover, regarding the echr and the other international treaties on human rights, judges coming from States that dealt with the Convention for many years can offer useful insights into the functioning and the case law of the ECtHR.82 However, the most important 80 81

82

See the deep analysis by Nedim Kulenović, Court as a Policy-Maker?: The Role and Effects of the Constitutional Court of Bosnia and Herzegovina in Democratic Transition and Consolidation, cit. Particularly interesting are the points made by judge Joseph Marko in Foreign judges: a European perspective, cit. and in Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A first Balance, cit.; as well as those made by Louis Favoreu, in the abovementioned interview Entretien avec M. le doyen Louis Favoreu. It must not be forgotten that in the second composition of the Court, two of the international judges had also been judges at the ECtHR for their own Country (Tsatsa-Nikolovska for Macedonia and Tudor Pantiru for Moldavia), whereas prof. Constance Grewe, now substituted by prof. Giovanni Grasso, is one of the major European experts on human rights protection.

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part of their contribution is probably their presence which avoids potential contrasts between the domestic judges due to their ethnical belonging. It is true that the crucial vote of the international judges on some key disputes for the functioning of the constitutional system has sometimes run the risk of casting into doubt their activity, considered as an expression “of the agenda” of the international community. However, even in the most difficult situations, they have prevented domestic splits from causing a stalemate within the Constitutional Court.83 It can also be said that the choice to link the protection of human rights to the relevant international agreements and notably the echr, other than simplifying the drafting of the Constitution by bypassing the problem of the content of such protection, has contributed to the strengthening of the protection thanks to the use of the case law of the ECtHR. In fact, apart from the debate on the ranking of the echr with respect to the other sources of law, it is undeniable that the Convention has played a major role in the Court’s decisions and has become the benchmark for the protection of fundamental rights. All of the above is reflected in the decision-making techniques adopted by the Constitutional Court which has been using comparative and international law to justify its reasoning since its first decisions. If one looks at explicit references, the use of horizontal comparison might seem quantitatively limited but nonetheless significant, as seen in the decision on the Constituent Peoples. However, as said above, the comparative law has been certainly used by the Court thanks to the presence of the international judges. In fact, when called upon to independently interpret the Constitution of Bosnia and Herzegovina, they cannot erase their backgrounds and legal training which inevitably push them to make comparisons with their own legal system. This inclination towards comparative law can be seen in the references, sometimes very brief, that can be found in the judgments or in the judges’ opinions – such as the reference to the Human Rights Act of the United Kingdom in the case on the relationship between domestic and international law, or the one on the judicial self-restraint of the US Supreme Court found in the concurring opinion of

83

See the points made on the composition for the Court by Constance Grewe and ­Michael Riegner, Internazionalized Constitutionalism in Ethnically Divided Societies: Bosnia-­ Herzegovina and Kosovo Compared, cit., 41 ff., as well as those made by Nedim Kulenović in Court as a Policy-Maker?: The Role and Effects of the Constitutional Court of Bosnia and Herzegovina in Democratic Transition and Consolidation, cit., especially 14 ff., who recalls the harsh criticism towards international judges expressed by the National Assembly of the Srpska Republic in 2015.

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judge Miodrag Simović and aimed at reminding the Court it should respect the role of the law-maker.84 More common is the use of vertical comparison with reference to human rights treaties and specifically the echr, whose recognised role has led the Court to made constant and wide reference to the ECtHR case law. As it is well known, there is no direct link between the ECtHR and domestic judges and, in any event, the echr has been applied in Bosnia and Herzegovina for many years even before the Country accessed the convention. Thus, the choice of directly mentioning the case law of the ECtHR to delineate the rights makes the analysis of the constitutional case law especially interesting in order to reflect on the Constitutional Court’s contribution to the relation between the various mechanisms that aim at the protection of rights in Europe.85 There are of course some problems; in fact, the circular interaction that should characterise the relations between these Courts is neither obvious nor easy to realise, as seen with the problematic implementation of the Seidjć and Finci case. Similar considerations can be made from the perspective of the international law. For instance, the Hamidović case, in which the ECtHR convicted Bosnia and Herzegovina for the violation of Article 9 of the echr with regard to the conviction for contempt of court of a Muslim citizen who refused to take off his skullcap during a criminal hearing.86 This case had already been faced by the Constitutional Court in its decision AP-3947/12, 9/07/2015, which found that, on the basis of a deep analysis of the ECtHR case law, there was no violation of the defendant’s right to express his faith. Even this case touches on particularly complex issues for a multi-ethnic country such as Bosnia and Herzegovina, as confirmed by the presence of two dissenting opinions, but these are exactly the cases where the integrated system for the protection of rights is tested. In commenting decision U-5/98, Francesco Palermo speculates that the Constitutional Court of Bosnia and Herzegovina might place itself “as the leading proponent of the new, still minor but increasingly common tendency to acknowledge of the increasing integration between various levels of the sources

84

See decision U-16/08, 20/05/2008, concerning a specific issue of the law on the Court of Bosnia and Herzegovina. 85 It is worth noting that the specific inclination towards international law that characterises the Constitution brings the Court to also pay attention to soft law, such as the Opinions of the Venice Commission which are recalled in the decisions. After all, Article 16(3) of its Regulation allows the Court to ask for opinions to a variety of bodies and organisations, with the consequence that the Court has often asked international organisation and the High Representative itself for opinions and then mentioned them in its decisions. 86 ECtHR, Hamidović v. Bosnia and Herzegovina, Application no. 57792/15, 5/12/2017.

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of law and circulation of legal models”.87 At present, I believe, this remains the challenge of a system of constitutional justice that was born in an exceptional context but that, for this very reason, has been allowed to test original ­theoretical approaches and decision-making techniques. This experience can open up interesting opportunities even for the more established Constitutional Courts, which are called upon to face the complex dynamics of a legal world that is increasingly more integrated with regard to the relations between the sources of law and among the judges. 87

See Francesco Palermo, Bosnia ed Erzegovina: la Corte fissa i confini della (nuova) società multietnica, cit., especially 1486.

National Courts and Comparative Law – The States of Former Yugoslavia (Slovenia, Croatia, Serbia, Bosnia-Herzegovina, Macedonia and Montenegro) Gian Antonio Benacchio 1

Methodological Background

I do not think there are other countries in the world where the comparative study of laws by national courts and jurists has been so important and evident as in the states of former Yugoslavia. Yugoslav jurists in general, and especially judges have always been and are still today highly knowledgeable of foreign models, which they study not so much for scientific reasons as for reasons that are deeply rooted in history and that still apply due to new and different needs. The history, religion, culture and geography of these areas are both a cause and an effect of phenomena, such as imposition, imitation, stratification of (even incompatible) legal models, the concurrent effectiveness and application of opposite models, the coexistence of very diverse peoples (of Eastern and Western cultures), conquests, dominations, changes of political systems, revolutions, wars, etc. that are all well known to comparatists, as they frequently characterise the evolution of legislation in a given territory. All of these elements, considered individually, are by no means rare in the landscape of the Old Europe. What strikes us, however, is that they became concentrated in very short time periods or even happened concurrently in the past century, thereby influencing the activity of legal theorists and case law, both of which still bear the signs of that particular and troubled past. In an ever-changing situation marked by the coexistence of social and political scenarios that vary significantly from each other, legal theory and case law have a very important role to play in order to juggle a labyrinth of rules, models and solutions differing from, and often at odds with each other. Without a historical and diachronic interpretation, therefore, it would be impossible to understand the role of contemporary case law in the new States born, or better, reborn after the dissolution of Yugoslavia in 1990, let alone discern the modus operandi and rationale behind a number of court decisions.

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004297593_029

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Describing in a few pages the main characteristics of case law and Constitutional courts in the Balkan territories is extremely difficult, because it does not only imply talking about six autonomous States created after the war of 1991–1992, but also, more importantly, about their previous situation as Republics, when they formed a constituent part of Federal Yugoslavia. An analysis of the Republics, or territories of former Yugoslavia before its dissolution, also means to differentiate the monarchic period from the later socialist period. Indeed, the current characteristics of case law in the new Balkan States stem from the different contexts of these two historical periods.1 1.1 Data Access Before discussing the use of comparison by Supreme and Constitutional Courts, a few clarifications are needed on the availability of documentation and, especially, pronouncements in order to gain a sufficiently plausible picture. It is worth noting that, in socialist Yugoslavia, i.e. until around 1990 to 1992, no case-law digests or computerised databases existed. The (few) rulings that were published could be found here and there in case-law and legal-theory journals2 or publications that exclusively reported court rulings.3 These, however only contained a limited number of decisions, sorted in accordance with undisclosed selection criteria. Those decisions, whether published in journals or in case-law digests, were rarely reported in full, in most cases they only reported a summary or a reference principle, with no opportunity for the reader to verify the disputed subject matter.4 Only after 1990–1992 did the new States slowly start to reorganise the ­publication of laws and decisions in both paper and electronic form; this is

1 For an in-depth look at this theme, see Benacchio, Giannantonio. La circolazione dei modelli giuridici tra gli Slavi del sud (Sloveni, Croati, Serbi). Padova: Cedam, 1995. 2 The most popular and prestigious journals include, Arhiv e Pravni zivot in Serbia; Naša zakonitost and Privreda i Pravo in Croatia; Pravnik in Slovenia; Pravni zbornik in Montenegro, and the prestigious journals published by each of the Faculties of Law in accordance with the Balkan tradition, which is still widely observed today. 3 In particular, Pregled sudska praksa, Zbirka sudskih odluka, since 1955, and Bilten sudske prakse Saveznog suda, since 1975. 4 Research focused on that period is therefore particularly complex and may only lead to credible results if it is conducted on a significant number of journals, documents, collections and the like.

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particularly the case for Croatia,5 Slovenia6 and Serbia.7 In most cases, all decisions are published, none excluded, and in unabridged version (Serbia, Croatia, Slovenia and Macedonia); in other cases, only a selection is available on the web (Montenegro). In other cases still (Slovenia and Croatia and, partially, also in Bosnia-Erzegovina) an summary of a few decisions is also published in English (although the English version is not regularly updated).8 5 In Croatia the decisions of the Croatian Supreme Court (Vrhovni sud) are now published in full in the journal Izbor odluka Vrhovnog suda Republike Hrvatske and can also be found in the Supreme Court website www.vsrh.hr (accessed June 3, 2019). The new journal Hrvatska pravna revija, published in Zagreb, publishes legal theory articles as well as the most important decisions of the Constitutional Court, the Supreme Court and trial courts, in most cases with commentaries. The decisions of the Constitutional Court are published on its official website www.usud.hr (accessed June 3, 2019). 6 In Slovenia, in addition to the historical case-law and legal-theory journal Pravnik, other specialist journals are now available including the Revija za pravno teorijo in prakso, and the Slovenian law review, first published in 2004. The decisions of the Supreme Court (Vrhovno sodišće) can also be accessed on the website www.sodisce.si (accessed June 3, 2019) of the same Court. All decisions of the Constitutional Court are published on www.us-rs.si (accessed June 3, 2019). 7 More recently, Serbia has also renewed its communication and legal documentation systems for the procedures of case-law; in addition to the journal Bilten sudske prakse Vrhovnog suda Srbije, first published in 1993, and the journal Bilten sudske prakse Republike Srbije, founded in 1997, decisions are also available for consultation in the electronic compilation named Sudska praksa, which publishes the rulings of the Constitutional Court, the Supreme Court, the courts of first instance, and the commercial and administrative tribunals (www.sudskapraksa.com, accessed June 3, 2019). All pronouncements (judgments-presuda, orders – rešenja and opinions-stavova) of the Supreme Court are available on the Court website www.vk.sud.rs (accessed June 3, 2019) at no charge or, on www.propisi.com and demo.paragraf.rs against payment of a fee (accessed June 3, 2019). For a more streamlined and simple-to-use organisation, no decisions on absolutely identical or similar cases are published. All decisions of the Constitutional Court (with the only exception of measures with no relevance to Constitutional or human rights protection) are published in full in the Official Journal of the Republic (Službeni glasnik RS); the most significant decisions are also published – often in abridged form – in the journal “Izbor sudske prakse”. They are all available on the official website www. ustavni.sud.rs (accessed June 3, 2019). 8 In Macedonia, decisions are published in Macedonian and with Cyrillic script. As regards Bosnia-Herzegovina, the destructions caused by the war affected many archives and libraries, which makes the retrieval of records even more difficult. Sizeable efforts have been made to archive more recent documents; e.g., the decisions of the Constitutional Court have since 1996 been available in Bosnian, Croatian, Serbian and English languages to meet the needs of a multiethnic State. The peculiarity of the state structure in Bosnia-Herzegovina is also reflected in the composition of its Constitutional Court, which is made up of four judges representing the Parliament of the BiH Federation, two appointed by the Serbian Republic Parliament, and three foreigners appointed by the president of the European Court of

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The Root Causes of Legal Fragmentation (1918–1945)

After centuries of profoundly diverse history, most territories of the Balkan peninsula were joined together by king Karadjordjevic in 1918 to form a new state entity named the “Kingdom of the Serbians, Croatians and Slovenians”, which in 1929 changed its name to “Kingdom of Yugoslavia”. The new Kingdom was characterised by a very high degree of fragmentation in political, cultural, religious, social, economic and legal terms, with subjects speaking four languages (Croatian, Slovenian, Serbian and Macedonian), professing three religions (Catholicism, Orthodoxy and Islam) and using two alphabets (Latin script and Cyrillic script). From a strictly legal standpoint, the new Kingdom grouped together six different legal districts where as many legal systems were in force. Knowing these basic differences is essential in order to understand the behaviour of judges in Trial Courts, Supreme Courts and Constitutional Courts in present days. More specifically, Croatia (excluding Dalmatia and Istria) was ruled by Austrian law, which had been ‘imported’ in the decade from 1851 to 1860 during the Austrian domination, as well as a few laws passed by the Croatian-Hungarian Diet, such as the Hungarian Code of Commerce, and the marriage, testamentary and bankruptcy laws.9 In Slovenia and in the regions of Dalmatia and Istria belonging to Croatia, the Austrian law applied in full with no exception.10 The territories of Vojvodina, Medimurje and Prekomurje (politically included in Serbia) were governed by Hungarian law, but a case-law system was also in force, which relied on the informal doctrine of the judicial precedent, which the Supreme Court, based in Belgrade at that time, had to consider. In the remaining part of Serbia, as well as in Macedonia and in Kosovo, Serbian law was mainly applied. This legislation was based on the Austrian Allgemeines Bürgerliches Gesetzbuch (abgb) – as is the case for the Serbian Civil Code and the Criminal and Civil Procedure Codes – but was also significantly influenced by the Prussian Criminal Code and French legislation (Code of Commerce). Montenegro’s civil law was an autochthonous form of legislation since the origin. It was drafted in 1888 by Valtazar Bogisic, one of the most eminent jurists in the history of the Balkan region; family law and succession law were 9 10

Human Rights. A careful analysis of the peculiarities of this new State was made by Woelk, Jens. La transizione costituzionale della Bosnia ed Erzegovina. Padova: Cedam, 2008. The Supreme Court, which was based in Zagreb, had created a special section for actions brought from those territories. In Slovenia, the Supreme Court was based in Ljubljana.

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both based on customary rules. Commercial law, instead, was based on a code derived from the Serbian Code of Commerce, which was in turn inspired by the French model. Criminal law and criminal procedure law were governed by codes inspired by the respective Austrian models.11 Finally, the Bosnian-Herzegovinian Judges could rely on a large variety of sources of law; i.e. the Austrian abgb, the Criminal and Criminal Procedure Codes, the Turkish Megelle, the rules of Shaariʾa (which only applied to Muslim citizens), the Bosnian Code of Commerce, which was similar to the CroatianHungarian Code, and finally customary rules. The Supreme Court was based in Sarajevo. During this period, the importance of a single legal system to facilitate the integration of different populations brought together for the very first time had encouraged a large number of jurists from Slovenia, Croatia, Serbia, Macedonia, Bosnia, etc. to set aside their commitment to regionalism. Analyses and comparative studies with westerns systems, especially the Austrian, German and French models that had been the building blocks of the respective regional legal systems, were gradually supplemented by internal studies and comparisons conducted between the various legal systems in force within the unitary Kingdom. As a consequence of this, the early bodies of law were drafted not so much for the purpose of encouraging the systematic reorganisation of legal principles as for the more practical and functional purpose of comparing the various solutions envisaged in the Serbian, Croatian and Montenegrin codes or in the original case-law system of Vojvodina, to state only a few. In this way, the legal theory could provide judges with instruments that would favour the harmonisation of rules, to the largest extent possible, through interpretation of legal provisions designed to focus on affinities and reduce diversities. As a result, the legal theory started to take on a Yugoslav character;12 legal journals were no longer the exclusive expression of regionalism; but involved jurists from all the regions of the Yugoslav monarchy as valid contributors; a large number of conventions and congresses were organised that brought together jurists from all over Yugoslavia to discuss and solve common problems. Case law, instead, remained trapped in municipalism, cultural laziness, local pride and a clear focus on legal traditions, categories, and solutions applicable to the respective regions.

11 12

The Supreme Court was based in Podgorica. Quoted from the renowned Serbian comparatist of former Yugoslavia, Blagojević, Borislav T. Bibliographie du droit yougoslave, 1945–1967. Paris-La Haye, 1970, 7–8.

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The cultural background of a large number of judges and the lack of a central and centralising Court13 were the main reasons for case-law failing to contribute to the creation of a unitary legal system for the full federal territory.14 3

How Legal Regionalism was Overcome by the Courts’ Use of Comparative Law in the Socialist Era (1946–1990)

That situation changed radically after the socialist revolution. At the end of World War ii, after defeating the German invaders and with the victory of Tito’s partisans in 1945 the Federative People’s Republic of Yugoslavia came into existence as a federation of 6 Republics (Slovenia, Croatia, Serbia, Bosnia-Herzegovina, Macedonia and Montenegro) and two autonomous Regions (Vojvodina and Kosovo) belonging to the Republic of Serbia. The most significant legal event was the (formal) repeal of the full pre-­ socialist Yugoslav legislation, more precisely the legislation promulgated prior to the beginning of the German invasion on 6 April 1941. However, since a legal system suited to replace the repealed laws was still lacking, and case law was not structured into a consistent body of concepts, values, categories or common rules (owing to the then existing legal and territorial fragmentation), the same law that repealed the legislation, that had been in force up to 1941, provided that those previous laws would continue to apply in courts, not as formal legal acts but rather as “principles”, i.e. simple “rules with no binding effect”.15 From 1946 onwards, therefore, socialist judges did not apply Croatian, Austrian, Montenegrin or Serbian laws, but rather, in each case, a rule laid down in a document that was once a Croatian, Austrian, Montenegrin or Serbian law.16 13 14

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Art. 110 of the 1921 Constitution instituted a single Supreme Court (Kasacioni sud) for the entire Kingdom, based in Zagreb. However, the Court never came into being and each of the six legal territories retained their own Supreme Courts. During the full monarchic period, whenever a judge was transferred to another region, he or she was required to be knowledgeable of the law in force in that territory because the local rule had to be applied. The transferred judge, in particular, had to study not only the positive law of that region, but also its case-law and legal theory. That solution theoretically implied legal discontinuity but, in practical terms, enabled the application of old rules. Although, on the one hand, this meant a departure from the old pre-revolutionary laws, on the other, it favoured the survival of well-known, wellestablished and long applied rules and a system of rules, principles, and relationships that created better certainty of law as opposed to what would have been a chaotic adoption of acts arising from revolutionary impetus and enthusiasm. Therefore, while the legal theorists and lawmakers of the various territories of socialist Yugoslavia were not officially open to cultural exchanges with the West and foreign

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The fundamental law of 1946 was followed by a very famous decision by the Federal Supreme Court of Belgrade of 1956,17 which provides that when positive laws on a given subject matter are lacking, a court shall not limit its research to old provisions that applied before their repeal. Quite the reverse, it shall seek solutions that best meet the principle of the new Yugoslav Constitutional order, even if those solutions do not originate from old legal acts or are contrary to them.18 Hence, as of the late 1950s courts would draft, at least as long as the legislator failed to do so, a corpus of rules compliant with the socialist and revolutionary spirit, i.e. laws that befitted the new social order, and decide whether a Croatian act was more suitable than a Serbian act. In other words, they were entrusted with the task of comparing various solutions and then choose that which was most suited to the new “revolutionary conscience”. After comparing the countless and highly diversified applicable acts, it could happen that a court decided that, e.g. a few provisions contemplated in the amendments to the Austrian abgb that applied in Dalmatia, and also (although not evenly) in Croatia, could also apply, as the case may be, in Montenegro, because they were more suitable than those contemplated by the Montenegrin Civil Code,19 or in Serbia, because they were more suitable than those of the Serbian Civil Code,20 and so forth. After having been authorised to compare the various acts and choose the most appropriate one among them, though originated from a source that was

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l­ egislations, whether enacted in Austria, France, Hungary or elsewhere, on the ground of their ‘bourgeois’ nature (which meant that any laws of this type had to be replaced), in actual fact, courts invariably applied pre-revolutionary acts and, therefore, acts of western and bourgeois origin. On this point, see the analysis of Čulinović, F. “Izgradnja novog jugoslovenskog prava.” Zbornik pravnog fakulteta u Zagrebu, nos. 3–4 (1957): 265 et seq. The Yugoslav Judiciary included nine Supreme Courts and nine Constitutional Courts, one for each of the six Republics and of the two autonomous Provinces and, at federal level, a Federal Supreme Court and a Federal Constitutional Court, whose task was to ensure an even application of the law on the full territory of the Federation, which was not always the case. Savezni vrhovni sud, 18 May 1956, Gz. 37/56, in Zbirka viših sudskih odluka, 1956, i, 2, p. 137. The decision of Belgrade was immediately followed by other Courts; e.g., the Supreme Court of Bosnia-Herzegovina (9 November 1956, in Zbirka viših sudskih odluka, 1956, i, 3, p. 131) declared a contract terminated for breach pursuant to the Dalmatian, rather than Bosnian, law. I.e. the famous Opšti imovinski zakonik, of 1888, a very original code compiled by Valtazar Bogisić, an eminent jurist of world renown. Srpski gradjanski zakonik, of 1844, compiled by the jurist Jovan Hadžić and based on the Austrian abgb.

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no longer in force, a court was free to apply the provisions deriving from any body of law, whether national or foreign,21 with the sole limit of complying with the principles of the socialist spirit and order enshrined in the Constitution. The legislative gap created by the revolutionary laws of 1946 – and spanning over several decades, during which both old and new rules applied, whether codified or not, whether foreign or national, and occasionally deriving from the legal theory or, more often, from case law – suggests that the role of the judge was crucial, even in a socialist country, where the tenets of the supremacy of the law should have known no exceptions whatsoever. Case law in the Balkan States was therefore one of the most active and important factors behind the reception, creation and circulation of (mainly foreign) legal models. The application, in the full territory of the Yugoslav Federation, of the same rules of judicial procedure enabled and even favoured the formation of uniform case law. Indeed, at federal level, when an application or interpretation problem arose in respect of an act, a plenary session of the Belgrade Federal Supreme Court (Federativni Vrhovni sud) could be convened by the Supreme Courts of each of the six Republics and of the two autonomous Provinces, as well as by the Federal Supreme Court. That session was attended by the delegates of the eight Supreme Courts and ended with a decision issued in the form of an “opinion” or a “prima facie opinion” (načelna mišljenja, načelni stavovi) or, in practical terms, an opinion that had a precise binding nature and was actually considered among the most authoritative sources, in both case law and legal theory. In particular, the Federal Supreme Court used comparative law as an essential instrument to fill a number of legislative gaps, or adapt the legal system to new contingent needs. For example, just think of the numerous decisions which, in the early post-revolutionary years, consisted in the transposition of soviet acts on succession law; as well as all those acts which, especially in the 1960s but also beyond, were formulated after a careful analysis of the legislations of other socialist or even western countries. One of these acts, derived from the Swiss Code of Obligations, provided that the termination ‘by mutual dissent’ of a contract that required a written form ad substantiam should not necessarily be made in the same form as that of the contract to be terminated.22 Similarly, other acts derived from western codes governed, e.g.: objective 21 22

A. Goldštajn-J. Barbić-M. Vedriš-Z. Matić, Obvezno pravo, i, Zagreb, 1979, p. 6 and A. Goldštajn, A., “Izvori privrednog prava.” Zbornik pravnog fakulteta u Zagrebu, nos. 1–2 (1959): 15 and judgments therein quoted under note 4. This solution is based on art. 115 of the Swiss Code of Obligations, which was greatly influential in the Yugoslav legal theory and case law. Just consider that no school was so successful in Yugoslavia as the sociological or libertarian movement, which had also

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liability for the performance of a dangerous activity; the spouse’s right to compete with the children to also acquire the remainder interest, and not only the usufruct in the estate of a deceased; the validation of a void transaction by enforcement; and so forth. Whereas, in the early post-revolutionary years, the majority of decisions issued by trial courts and Supreme Courts rarely made reference to the sources of their applied rules, at a later date, i.e. from the 1960s onwards, when revolutionary enthusiasm was not so strong as before, the official legal theory started to revive the past tradition and it was again possible to affirm the substantial ‘technical’ validity of a large part of bourgeois rules. Courts started to openly declare, with no restraint or fear for a ‘Bolshevik’ reprisal, that they were applying, e.g., a rule of the abgb, the Serbian Civil Code, the Montenegrin Code, etc. The revolutionary wind was changing and the so-called “Third Way”, which ultimately cost Tito his expulsion from Cominform, was reaching its maximum expression. That different, new approach gradually extended to all areas of law, including public and Constitutional law. Suffice it to think that Yugoslavia was the first country in the socialist area to introduce, in 1963, the Constitutional review (by nine courts, one for each of the six Republic and of the two autonomous Provinces, and one at federal level). In addition to adopting decisions on conflicts between republican and federal laws, conflicts of jurisdiction between the Federation and the Republics, conflicts of competence between Republican Constitutional Courts and

a­ ppeared as far back as in the 1920s. From the Serb intellectuals Gams and Konstantinovic to the Croat academics Krbek and Goldštajn, almost all of the legal science of the postwar period and beyond uses the sociological method as an indispensable lawmaking and interpretative tool. Socialising the law meant not merely an opportunity to ensure equal rights among citizens, which had been compromised by economic inequality, but also, more importantly, to enhance the creative role of the judge by using the general clauses on good faith, public morality, good commercial practice, abuse of rights and so forth. Among other things, the sociological method allowed the Yugoslav interpreter to bridge the numerous regulatory gaps of the immediate post-revolutionary period; in other words, in utilitarian terms it could serve the same purposes that it served on an ideological level. Indeed, perfectly in line with the needs and requirements of case-law, the Yugoslav legal theory put great emphasis on the wording of art. 1, par. 2 of the Swiss Civil Code of 1907 whereby “in the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would adopt as a legislator”. This wording was perfectly in agreement with the case law of socialist Yugoslavia and gave it scientific legitimacy, especially after the repeal of all laws previously in force, when courts were forced to look for rules in the old codes of the pre-Unity period, or local customs, or even create new rules on the basis of other countries’ experiences.

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Regional Courts, the Constitutional Courts could also issue rulings on the Constitutional compliance. This function, which is the ordinary prerogative of all Constitutional Courts, was not given for granted in a socialist country governed by the primacy of law as an expression of the people’s power. As a proof of this, for a declaration of unconstitutionality against a legal act, a distinction had to be made as to whether that pronouncement concerned a legal act issued by the Legislative Assembly, or rather a measure issued by local and administrative authorities. In the first case, the Court only disclosed to the Assembly the contents of its decision and invited them to remove the Constitutional violation within six months, after which, if no such removal was carried out, the act declared unconstitutional could be repealed by a decision of the same Court. In the second case, instead, it was the same declaration of unconstitutionality that automatically entailed the immediate ineffectiveness of the challenged act.23 Yugoslav jurists have always been very attracted by foreign legal-theories and case law models; this was even more from the 1960s onwards, when the comparative study of western legal models was generalised and unanimously recognised as an indispensible component of jurists’ education and activities. In 1955, the Institute of Comparative Law (Institut za uporedno pravo) was founded in Belgrade as the first reference institution of its kind in a socialist country for the legal theory and case law of the Yugoslav Federation (initially) and the Serbian Republic (later). Since its foundation in 1956, the Institute has supervised the publication of a quarterly journal named Foreign Legal Life (Strani pravni život), which publishes articles on comparative law by Yugoslav and foreign authors. In those years, the Institute also launched a quarterly journal called Pregled zakonodavstva u stranim državama (“A look at the legislation of foreign states”), which reported the main laws adopted in other European countries, some of which with extensive commentaries. Monographs and articles on comparisons with western systems or, more simply, on the analysis of one or more foreign legal systems or legal principles were also countless. In the same years, several translations of the main European codes appeared for the first time, i.e. the Swiss Criminal Code of 1937, the Greek Criminal 23

On the political and legal significance of Constitutional courts in the Yugoslav system, see Trajković, J., “Uloga ustavnog suda u tumačenju i zaštiti ustavnosti i zakonitosti.” Arhiv, no. 4 (1983): 555 et seq., and Zorzi-Giustiniani, Antonio. Norme costituzionali e regolamentari sulla Corte costituzionale jugoslava. Firenze: Cedeur, 1989, 59.

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Code of 1950, the Czechoslovakian Civil Code of 1950 and 1964, the Swiss Code of Obligations of 1911, the Italian Civil Code of 1942, the bgb of 1896, the Italian copyright law of 1941, the French copyright law of 1957, the French Code de Commerce of 1907, the Belgian, West German, Chinese, Cuban, US, Polish, Greek and East German Constitutions and so forth. Monographs, handbooks, articles and legal encyclopaedias were all replete with countless references to foreign legislations, practices and legal theories. In Universities, comparative law courses were not compulsory. However, in the 1970s and beyond, a few faculties started to add elective courses, such as those in comparative Constitutional law, comparative civil law and comparative criminal law. In other faculties, each course involved the use of the comparative method and devoted much of the timetable to the study of foreign models. Most of the handbooks used by students contained references and quotations from foreign case law and legal theory. At the end of each course, a student had a fairly good knowledge of the German, French, Swiss, Austrian, English and Italian systems. Judges educated and trained in this environment were naturally inclined to consider the comparative method as an indispensable tool for the practice of their profession. On an official and formal level however, it was customary to never make reference to the foreign source in question (whether case-law, legal theory, a law, or an author). Courts of all levels only quoted bodies of law and established legal practice from the various territories of Yugoslavia and, only in rare cases, foreign legal sources. As regards local legal theory, although it was invariably considered an essential reference for judges, it was only cited in extremely rare cases, with the only exclusion of Prof. Konstantinović of Belgrade, the author of a famous project for a Code of Obligations (Skica obligacionim odnosima) that would apply to the full territory of the new Federal Yugoslavia. No express mention was made, instead, of foreign authors, not even the most qualified, renowned or read among them. 4

The Origin and Reorganisation of the New Autonomous States

1991 marks the beginning of the break-up of Yugoslavia, a country in which the Karadjordjević dynasty first and Tito later had believed, and which the last generation of the Balkan Slavs had considered an accomplished project. Each of the six federated Republics of Yugoslavia decided to declare independence and go their separate ways; this happened in Slovenia first, then,

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in chronological order, Croatia, Bosnia-Herzegovina, Macedonia and finally, in May 2006, Montenegro.24 Right from the start, Slovenia took a more ‘pro-European’ stance compared to the other new independent States and, after a period of swift adaptation of its legislation to the Community acquis, became part of the European Union in 2004, thus recovering those Central European values from which it had parted for nearly one century.25 In December 1991, it adopted a new Constitution (later amended in 1997, 2000, 2003 and 2004) that was based on the separation of powers, the secularity of the State and human rights protection, although foreign citizens’ right to acquire ownership of real property was only recognised in 1997. The new Constitutional Court can directly repeal an unconstitutional law in full or in part. That repeal can take effect immediately or within the term fixed by the Court.26 Croatia too, after an initial period of heightened nationalism, with a political leadership too remote from the ideals of the signatories to the Treaty of Rome, made its way towards the European Union. After massive institutional and legislative reforms27 that fully reorganised its institutional and legal systems, 24

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For a concise description of the administrative organisation of these new States, see Nikolić, Pavel. I sistemi costituzionali dei nuovi Stati dell’ex-Jugoslavia. Torino: Giappichelli, 2002 (see also the others books in Diritto pubblico contemporaneo, a series edited by N. Olivetti Rason and L. Pegoraro). Also see Calamo Specchia, Carli, Di Plinio, and R. Toniatti (editors), I Balcani occidentali. Le costituzioni in transizione, Torino:Giappichelli, 2008 and Montanari, Toniatti, and Woelk (editors), Il pluralismo nella transizione costituzionale dei Balcani: diritti e garanzie, Trento: University of Trento, 2010. For an extensive overview of the Slovenian situation, see Trstenjak, Verica. “La Slovenia e l’armonizzazione del diritto sloveno con quello dell’Unione europea – Il diritto civile sloveno e il nuovo diritto delle obbligazioni.” Contratto e Impresa/Europa 9, no. 1 (2004): 265–292. Art. 160 of the Slovenian Constitution lists the duties of the Constitutional Court (Ustavno sodišče), which profoundly differ from those of the Yugoslav period; the Court rules on the compliance of acts of primary and secondary legislation with the Constitutional principles, the international treaties and the general principles of international law; assesses whether the local normative acts are compliant with laws and the Constitution; rules on constitutional complaints for violations of human rights and fundamental freedoms by individual acts; on conflicts of jurisdiction between the State and local communities, and between local communities; on conflicts of jurisdiction between courts and other State bodies; on conflicts of jurisdiction between the National Assembly, the President of the Republic and the Government; and on the unconstitutionality of the acts and activities of political parties. It is worth noting that the Association Agreements that the EU Commission signs with the EU candidate countries provide for important pre-conditions for accession to the Union such as: the existence of stable institutions guaranteeing democracy, the rule of law, respect of human rights and protection of minorities; the existence of a functioning market economy; the economic capacity to cope with competitive pressure and market forces

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Croatia became EU member in 2013. It adopted a new Constitution in December 1990, which was amended on several occasions (1997, 2000, 2001, 2010 and 2013) to turn the new State from a semi-presidential to a full parliamentary Republic. In this case too, a strong emphasis was put on human rights protection. In particular, the 2002 reform of the Constitutional Court,28 gave it a function comparable to that of the European Court of Human Rights (ECtHR), where Every citizen may lodge a constitutional complaint with the Constitutional Court if he/she deems that the individual act of a state body, a body of local and regional government, or a legal person with public authority (…) has violated his/her human rights or fundamental freedoms guaranteed by the Constitution (…) (art. 62 of the Constitutional Act on the Constitutional Court of Croatia).29 Belgrade, the capital of the Serbian Republic, which has always been considered a gateway to the East, was long beset by its nightmarish past – ­re-­emerging from time to time with all of its contradictions and causing several years of economic, political and social isolation. However, since 2014, under a new leadership, negotiations for EU membership have started, with a consequent succession of legal, economic and institutional reforms that are slowly approaching the Republic of Serbia to Europe, which makes its future membership likely in the near future. After the disastrous setbacks of the Constitutions of 1990 (when the break-up of Yugoslavia started) and 1992,30 which were

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within the Union; and the ability to assume the obligations of membership, including those related to the Economic and Monetary Union. The Constitutional Court (Ustavni sud), made up of thirteen judges elected by the Parliament by a two-thirds majority, decides, inter alia, on the constitutionality of laws and the compliance of regulations with the Constitution and primary legislation; and settles any conflict of jurisdiction between the legislative, executive, and judicial bodies. On the Croatian constitution and its history, see Motroni, Matteo. “Il ricorso diretto di costituzionalità in Croazia.”, in Patrimonio costituzionale europeo e tutela dei diritti fon­damentali. Il ricorso diretto di costituzionalità, Rolando Tarchi (editor), records from the Pisa Conference of 19–20 September 2008, 395. Torino: Giappichelli, 2012. et seq. On this topic, see the above publication, edited by Rolando Tarchi, Patrimonio costituzionale europeo …, which describes the solutions adopted in former Yugoslavia and many other East European countries. The 1992 Constitution, drafted on the initiative of Milošević and inspired by his anachronistic ambition to retain regional hegemony over what was left of the Balkans and the South Slavs, was mainly driven by the need to entertain relations with the territories of Montenegro, Kosovo and Vojvodina, rather than the intention to introduce democratic changes in the State organisation. On these topics, see, inter alia: Dicosola, Maria. Stati, Nazioni e minoranze, La ex Jugoslavia tra revival etnico e condizionalità europea. Milano: Giuffrè, 2010.

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i­ntroduced as a desperate attempt to keep Serbia united with Montenegro, only in 2006, with the final secession of Montenegro,31 did Serbia manage to introduce a modern Constitution, which was accompanied by an extensive, democratic-minded reform of the State, the recognition of civil rights, the establishment of a stable rule of law, and an express reference made in legislation to the principles of no discrimination, equality of genders, protection of children’s rights, and shared European values.32 The Constitutional Court was also involved in the general 2006 which considerably extended its powers and competences,33 the most significant of which were its control over acts approved by the Parliament but not yet entered into force34 and the power to rule on complaints against the individual acts of state bodies or organisations with public authority that infringe or fail to protect individuals’ and minorities’ rights and freedoms guaranteed by the Constitution.35 Montenegro, an independent Republic since 2006,36 is gradually replacing its previous legislation with provisions that are in line with the conditions required by the European Union (free market, competition, human rights, etc.). Its new Constitution, introduced in 2007,37 puts special emphasis on civil 31 32

33 34 35

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The final ‘divorce’ between Serbia and Montenegro was sanctioned by a citizens’ referendum on 21 May 2006. Ustav Republika Srbija, of 2006 (in Službeni glasnik RS, no. 98/2006). Art. 1 of the Constitution defines Serbia as the state of Serbian people and all citizens who live in it, based on the rule of law and social justice, principles of civil democracy, rights and freedoms of individuals and minorities, and a commitment to European principles and values. See art. 167 of the Serbian Constitution. See art. 169 of the Serbian Constitution: “At the request of at least one third of members, the Constitutional Court is obliged, within seven days, to assess constitutionality of the law which has been approved but not yet enacted”. See art. 170 of the Serbian Constitution. The subsequent reform of the organisation of the judicial system, introduced by the law of 2008 (Zakonu o uređenju sudova, Sl. glasnik RS, no. 116/2008 e 104/09), reinstituted the Courts of Appeal (Apelacioni sudovi) as courts of second instance to assess the decisions of Basic Courts (Osnovni sudovi); this new situation can be considered a return to the past, as no Courts of Appeal existed in Tito’s Yugoslavia, whereas they did exist in monarchic Serbia until World War i (1915/18). The same reform also reintroduced the Supreme Court, currently the Supreme Court of Cassation (Vrhovni kasacioni sud), whose structure and competences have partly been changed; in particular, the reform reinforced the Court’s task of ensuring a uniform application and interpretation of the law (nomophylactic function). As illustrated above, this function was typical of socialist Yugoslavia and took the form of “načelna pravna stavova” (legal positions of principle) pronounced in a plenary session under certain circumstances. Montenegro is considered the youngest European State; it acquired full autonomy and independence after its separation from Serbia following a citizens’ referendum. The Montenegrin Constitution, partially amended in 2013, is available in English in the Constitutional Court’s website: ustavnisud.me/propisi.html (accessed June 3, 2019).

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rights, minorities’ protection, and democracy and secularity of the State, and is clearly inspired by western and EU models. An application for EU membership was also filed by Montenegro in 2008. Like most of the other Balkan countries, Montenegro too has accepted a Continental European model of constitutional justice based on Kelsen’s theory. The Constitutional Court38 is the supreme judicial body guaranteeing the constitutionality of laws and the protection of human rights and fundamental freedoms enshrined in the Constitution and international treaties. In 2002, a Court of Appeal was introduced in Montenegro for the first time in its history. Like the other Balkan states, the Republic of Macedonia filed an application for EU membership in 2004 and obtained a candidate country status in 2005. However, negotiations are now bogged down for a number of gaps in the State organisation. Although Bosnia-Herzegovina is also a candidate EU-Member, it has so far adopted almost none of the reforms requested by Brussels. The country’s successive governments have been reluctant to adapt national legislation accordingly; in particular the Stabilisation and Association Agreement signed in 2005 was initially frozen, following a failed constitutional reform attempting to bring the Bosnian Constitution into line with the European Convention on Human Rights, and only came into force in 2015. Therefore, right after 1991, a period of extensive reforms started in many of the new Balkan States, in an attempt to revive legal principles that had been set aside for almost one century for their ‘bourgeois’ origin and ‘get closer’ to Central Europe and the European Union. This period of transition was characterised by a proud revival of European roots and a return to the continental legal culture and tradition to which most of those countries had belonged for centuries. The new legislations introduced to transpose the full acquis communautaire, following the Association Agreements signed with the EU, were drafted directly in accordance with EU sources of law, the case law of the Luxembourg Court and (more importantly) the national laws of the EU Member States that had transposed community legislation,39 especially those falling in the commercial and civil-law areas.

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The current role and competences of the Montenegrin Constitutional Court are described in Zakon o Ustavnom sudu Crne Gore, of 2015. For the time being, Croatia has not planned to draft a Civil Code. It continues to use the law on obligations (z.o.o. of former Yugoslavia of 1978), with some amendments regarding contracts, especially consumer contracts. Several significant family-law amendments were introduced (2003, 2014, 2015); same-sex cohabitations are also governed. Influences from the International Convention on the Rights of the Child, the European Convention

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Key concepts such as those of limited companies, shares, debentures, stock exchange and credit instruments, which had long been forgotten in former Yugoslavia and were totally unknown by younger generations after their ban from the legal practice and language in the past fifty years of socialism, and the new notions of antitrust laws, rights in the digital age, abuse of a dominant market position, class action, consumer protection, timeshare contracts etc., were all discovered, or rediscovered, by post-socialist jurists as they turned their attention to the legislations, legal theories and practices of other western countries as reference sources. As the legislative experience of the EU and its Member States was an essential reference for the lawmakers of the new States in the drafting of their own legislation, the national courts that had to enforce this new legislation turned their attention to the foreign legal theory and case law to see how those laws were interpreted and applied. Once again, therefore, the judges of the new States formerly belonging to the former Yugoslavia could only do what they had done in the past century, i.e. study and compare foreign models. This time, however, the reference models

on Human Rights and the ECtHR case law are more than evident. With regard to succession legislation, a new law was introduced in 2008 based on the Austrian and Swiss models. Traditionally, the German model has remained the prevailing reference for Croatia; the Austrian model continues to influence legislation on rights in rem and successions (which is also influenced by the Swiss model). Another important reference is the Dutch Civil Code for a number of adopted solutions. Obviously, since 2013 there has been a greater focus on EU provisions and their related interpretative problems; the Croatian judges are now mainly concerned with the application of EU Regulations and are asked to abandon the old principles and tenets, such as the principle of sovereignty and the rule of law. Many regulatory provisions (inspired by the Italian consumer code) were introduced to regulate consumer protection. This process culminated in the enactment of a new law in 2014, later amended in 2015. Although a new law on competition exists, legislation is still evolving. Transport and navigation are governed by a particularly modern code influenced by the EU legislation and international conventions. As for Serbia, the drafting of a Civil Code (started in 2006) has now been completed. In July 2016, a public consultation on the subject matter ended and it is now up to the Ministry of Justice to decide on how to proceed. The project for a new Civil Code consists of 5 books in total (general part, obligations, rights in rem, family and successions). The new Serbian Code is largely based on the Yugoslav law on obligations and contracts, i.e. the z.o.o. of 1978, which was revised and updated following the numerous acts enacted from the 1990s onwards and the case law, with due account taken to the principles and rules of the EU legislation and international conventions. In 2010, the Government of Macedonia appointed a Commission to draft a project for a new Civil Code, whose implementation has however reached a standstill.

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were not limited to Austrian, German or Swiss laws, but also included EU, English, US, Italian and other similar laws.40 Therefore, more than twenty years after that early post-socialist, post-­ federative and post-Yugoslav period, there was great and renewed interest in comparative law. Currently, with this regained interest in the European civil-law tradition and Central European values, in Slovenia, Croatia and even Serbia, foreign models are more than ever studied, compared, taken as an example and used by the legislator to reform the national legislative and constitutional frameworks,41 by courts to bridge the legislator’s gaps, and by the Constitutional Court to approve or disapprove of any lawmaking choices. That a large part of the academic world now moves abroad to study there (mainly to Germany, France, the UK, Italy or the United States) and gain more insight into foreign models that are worth bringing home shows a new, ­Europe-centred focus in the thinking of young jurists. The buzzword – today more than twenty years ago – is the “Europeanisation” of law, the main reference model being the European law. Great influence is now exercised by international conventions on human rights protection, especially the European Convention and, consequently, the case law of the Strasbourg Court, which has a truly prominent role. In Croatia and Slovenia the general, traditional reference model was and still is predominantly German, while the Austrian model continues to influence the legislation governing rights in rem and successions (which in the past was also influenced by the Swiss model). In Serbia, instead, the key reference models have historically been those of France and Russia, and currently also that of Germany. Constant legislation adaptation to EU provisions, to the decisions of the European Court of Justice and to international standards is a cause of overproduction of legislation, which is often characterised by amendments. This 40

41

After the breakup of socialist Yugoslavia, the value of the Italian and English legal systems was revived for their advanced treatment of commercial aspects, and all manuals and journal articles invariably make reference to these systems. Special importance is also attached to the Dutch Civil Code, which has been appreciated for its modern and topical choices. Suffice it to think that many provisions of the Croatian Constitution are clearly inspired by the corresponding Spanish, French, Italian, Portuguese and, chiefly, German models. On this point, see the interesting country report of Sanja Barić and Matija Miloš at the 19th Congress of the iacl (International Academy of Comparative Law) held in Vienna in 2014 and titled Foreign precedents in Constitutional litigation: country report for Croatia, with a quotation from Duška Šarin, p. 6.

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in turn results in fragmentation, confusion and, often, contradictions. The derived courts’ practice is almost inexistent or unreliable because no well-­ established line of cases can develop over time, which prevents an accurate analysis of what, in those countries, is the role of the legal theory and case law as legal Formants. 5

The Current Use of Comparative Law in Constitutional Courts

In this general context of strong legal and institutional renewal, the role of judges in Supreme Courts is more important than ever. The judges of Supreme and Constitutional courts now refer to the legislations, legal theories and case-laws of other States more frequently than they did previously in socialist Yugoslavia, and even more frequently than is expressly stated in their decisions. The use of comparative law is part of the working method of Courts, and especially Constitutional Courts, and its purpose is finding an international ‘justification’ or ‘consensus’ for a specific decision that is particularly complex or arguable.42 In other instances, a reference made to solutions of the European Court of Justice or other Supreme or Constitutional Courts of EU Members States is motivated by a clear intention to ensure a uniform interpretation and application of acts derived from European legislation. A decision ruled by the Croatian Constitutional Court in 2013 is a significant example.43 It is structured into five parts, with the entire part three dedicated to a review of the English, German and Austrian laws to see how those countries transposed the EU takeover bids directive and, therefore, verify whether the national transposition law, duly interpreted in the light of the solutions adopted by each country, violates the constitutional provisions and, in particular, those that ensure the principles of freedom of enterprise and free market (articles 16, 49 and 50 of the Constitution). In another case, the Croatian Constitutional Court rejects a claim of unconstitutionality for a law introducing the vat system. The Court argues that the new system for calculating the tax is common to all countries of the EU, deriving from directive 77/388 eec, and that it is a model for all EU countries with which the Croatian State intends to conform in order to ensure an equal treatment of its businesses with all other EU businesses, since article 49 of the 1990 Constitution provides that free

42 Ibid. 43 Odluka Ustavni Sud, U-I/4469/2008, 8 July 2013.

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enterprise and free markets shall form the foundation of the economic system of Croatia.44 In another decision of 2011,45 the Croatian Constitutional Court dealing with the restriction of the right of ownership and free disposition of agricultural lands, sets forth that Given the comparability in substantive law between Article 48 of the Constitution and Article 14 of the Basic Law of the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland) (…), the Constitutional Court expressly referred to the relevant case-law of the German Federal Constitutional Court which has universal significance in clarifying issues connected with ownership in a social state, i.e. in clarifying the issue of the social function of ownership. This statement is followed by a list of nine decisions of the German Court pronounced between 1962 and 1999. In this case, the analogy between the two constitutional clauses induced the Court to use the solutions found in the case-law of the German Federal Constitutional Court. Similarly, a 2012 decision of the Croatian Constitutional Court in a criminal case was inspired by German legislation.46 The Court had to decide on the constitutionality of a few provisions of the criminal procedure act with regard to the restriction of a person’s “dignity” during the collection of evidence, which dignity, in the Court’s view, should also be guaranteed for an arrested or convicted person. As the concept of dignity was said to be unclear in the Croatian legal system, the Constitutional Court made reference to the very restrictive and rigorous interpretation of the German Constitutional Court, which had been used to declare unconstitutional a large number of the provisions of the law on criminal proceedings.47 Occasionally it is not the prestige of a legal system but rather the origin of a national legislative model to encourage judges to refer to the interpretative solutions of a given country. For instance, the new Croatian bankruptcy act of 1996, Stečajni zakon, used the corresponding German act (Insolvenzordnung) as a reference model, from which it had derived its main provisions. Clear reference to the German solutions is made by a judge of the High Commercial Court of Croatia, who writes that 44 45 46 47

Odluka Ustavni Sud, U-I-607/1996. Odluka Ustavni Sud, U-I-763/2009, of 30 March 2011. Odluka Ustavni sud, U-I-448/2009, of 19 July 2012. The same decision also makes express reference, inter alia, to the US legislation and, more specifically, the US Money Laundering Act of 1986.

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the provisions of the new law are so close to the German bankruptcy law that they should be interpreted by the judges and the competent staff by using the experience and solutions of the German judges.48 The national legal theory, instead, let alone the legal theories of other countries are never cited. A source is only quoted when, pursuant to the Act on the Functioning of the Croatian Constitutional Court of 1999 as subsequently amended, one or more opinions of theorists are requested; but the quotation is limited to a University, with no express reference to the author. In Croatia, rulings shall be motivated; decisions are made by a majority of votes, and dissenting judges are required to write their own motivations, which will also be published.49 With regard to dissenting opinions, that expressed by judges Arlović and Matija in a 2009 proceeding50 on the use of comparative law is particularly interesting. The court’s judgment related to the alleged unconstitutionality of a legal provision of a special tax act on the ground of conflict with article 14 of the Constitution, which provides that every citizen is equal before the law. Without entering into the merits of the issue, in its ruling the Court rejected the argument of an alleged conflict with the Constitution on the basis of a line of interpretative arguments which, the Court said, were “in accordance with world and European practice”, and, as an example, quoted a few decisions of the German and US Supreme Courts. The two dissenting judges argued that, as a matter of fact, what the Court needed to do was to “review the conformity of a law with the Constitution rather with world and European practice”. The problem raised by the dissenting judges is not negligible and would require an-in-depth discussion, which falls outside the scope hereof. In essence, they called the attention to an issue that has not always been sufficiently considered, i.e. the use of comparative law for purposes other than mere fact finding, and the boundaries within which a judicial authority may use interpretative rules deriving from other legal systems to justify its choices. With regard to the content of decisions, in all former Yugoslav countries, with a few exceptions in Croatia (as mentioned above) and Slovenia, there is a widespread (false) belief that a ruling should exclusively be based on a law enforcement process carried out by a court with no interference from the 48

49 50

Lovrić, Viktorija. “Stećaj nad imovinom dužnika pojedinca, published.” www.vtsrh.hr (website of the High Commercial Court, accessed June 3, 2019) and also reported in “50 godina Trgovačkih sudava u Republici Hrvatskoj”, published in Visoki trgovački sud, Zagreb, 2004. Art. 27 of the Act on the Functioning of the Croatian Constitutional Court. Odluka Ustavni sud, U-IP-3820/2009 of 17 November 2009.

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legal theory or judicial precedents; if this is true for the domestic legal theory51 and case-law, it is even more so for the legal theories and case-laws of other countries. For this reason, although both constitutional and trial judges actually use other countries’ legislations, case-laws and legal theories, they find it difficult to formally recognise this use. Only in very few rulings those judges explicitly declare having used the comparative method or the study of foreign models and legal principles, or disclose these as decision-making approaches. Only international conventions and the Strasbourg case-law on human rights are expressly and frequently cited in the decisions of Supreme Courts or Constitutional Courts and, when they are, this is not because judges find a solution for a case in those conventions or rulings, but because their intention is to substantiate the appropriateness of applying a specific legal provision and to support the arguments behind their decision. For example, in a case on children’s rights decided in 2014, the Supreme Court of Belgrade stated that the provisions of articles 6 and 266 of the family law act (whereby each decision concerning a child and, in particular, those on granting custody to one of the two parents, should be made in the exclusive interest of the child) were perfectly in line with article 3 of the UN Convention on the Rights of the Child and, therefore, the application of the national act by the court of second instance was totally correct.52 Still with regard to human rights, the Serbian Supreme Court stated that the decision of the court of second instance was correct in that it had granted a compensation for non-material damage (psychical sufferance) to a person unjustly detained for 228 days and then acquitted. Indeed, a right to personal 51

52

The only exception was a case decided in 2009 by the Commercial Court of Belgrade (Presuda Trgovinskog suda u Beogradu, IV-P.5377/2007 of 30 Nov. 2009) which, in order to define the boundaries of the public order notion, made explicit reference to a definition given by the Belgrade University Prof. Slobodan Perović, who is considered a highly reputed personality among contemporary Serb jurists. Vrhovni kasacioni sud, no. 57/2014 of 6 February 2014. See also, on a similar case, Vrhovni kasacioni sud, Rev. no. 1016/2014 of 1 October 2014; Vrhovni kasacioni sud, Rev 348/2014 of 10 April 2014; Vrhovni sud Srbije, Rev 3338/04 of 9 June 2005. In Croatia, the ruling of the High Commercial Court of 8 January 2002 had to decide on a claim for annulment of an arbitration award, which argued that the counsel of the claimant was not entitled to take part in the arbitration proceeding for failure to pass the bar exam. The supreme judges ruled that the Croatian law on arbitration, which sets forth no specific requirements for the parties’ counsels, was in line with the world trend and, in particular, the trends observed in the usa and Germany legal systems where, even before trial courts the parties in a case can be represented by a person with no specific legal education (Visoki trgovački sud RH, P-3682/2001).

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freedom falls among the fundamental rights protected by article 35 of the Serbian Constitution, as also confirmed by article 3 of the Universal Declaration of Human Rights of 1948, as well as by article 5 of the ECtHR.53 In Croatia, the Constitutional Court of Zagreb ruled on a claim for damages in favour of a citizen for the length of a criminal proceeding and a civil proceeding, in two decisions of 2005 and 2006 respectively. In both cases, the Court analysed and clarified the notion of “reasonable duration of a proceeding” provided for by article 29 of the Croatian Constitution and, to that end, made reference to a few decisions of the Strasbourg European Court of Justice. In the first case,54 the Court rejected the claim “because the reason for the delay is not substantially attributable to the conduct of state authorities, as established in the rulings of the European Court in the cases Monnet v. France of 27 October 1993, and šoć v. Croatia of 9 May 2003”. In the second case,55 the same Court upheld the claim on the ground that the reasonableness of the proceeding duration had to also be assessed in relation to the fact that “for proceedings that are particularly important for a person, as is the case for a compensation in favour of the victim of a road accident, particular diligence and efficiency is required of courts, as set forth by the Strasbourg Court in the decisions Silva Pontes v. Portugal of 1994, Martins Moreira v. Portugal of 1988 and Poje v. Croatia of 2006”. The situation does not differ much in Slovenia. The case-laws of the European Court of Human Rights,56 of the countries traditionally close to Croatia, i.e. Germany,57 and of the European Court of Justice58 are often cited in the Slovenian decisions at all jurisdictional levels, including those of trial courts, on the ground that the harmonisation of Slovenian law with the legislations of the EU and the other Member States is a required step in its current evolution. After all, the Constitutional Court in its rulings expressly sets forth that

53 54 55 56 57 58

Vrhovni kasacioni sud, Rev 617/2013 of 15 May 2014. Ustavni sud, U-IIIA-2864/2005. Ustavni sud, U-IIIA-1150/2005. See, e.g., the decision of the Slovenian Constitutional Court of 29 September 2005, U-I65/05 on the duration of the legal proceeding. See, e.g., the decision of the Constitutional Court of 6 July 2004, U-I-111/04 on religious freedom. See the decision of the Constitutional Court of 25 November 1999, U-I-49/98 on equal treatment between genders with regard to social security. The above Slovenian judgments were delivered a long time before the accession of Slovenia to the European Union and, therefore, the European Court of Justice was an institution belonging to a completely alien legal system, with which a Slovenian judge was absolutely not required to conform; hence, the application of rules from a different legal system was totally spontaneous.

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the national law must be interpreted in light of the Community law, as it also follows from the practice of the ecj.59 Unlike their Serbian and Croatian homologues, the Slovenian constitutional judges are less reluctant to officially and expressly recognise their use of the constitutional case-laws of foreign countries such as, in particular, the decisions of the German Federal Constitutional Court and of the US Supreme Court and, to a lesser degree, the Courts of Austria, France and, more generally, western democracies.60 Their frequent citations of the decisions of German Courts are not only motivated by the prominence of the German model in Slovenia, but also by the fact that, as can also be seen in Croatia, the provisions of the post-socialist Slovenian Constitution are very similar to those of the corresponding Fundamental Act of Germany by which the authors of this Constitution were inspired.61 With regard to the other States of former Yugoslavia, such as Bosnia-­ Herzegovina and Macedonia, it is extremely difficult to quantify the extent to which trial Courts and Constitutional Courts make a comparative analysis of laws. As discussed above, the publication of all decisions in civil and criminal cases is still in progress and no exhaustive survey can be made, as it has been done for Croatia, Serbia and Slovenia. The practice of publishing full texts of decisions only started in recent years and is not yet general. Comparisons with foreign models such as those of Austria, Germany, France, England and the European Union are constantly made not only by the Croatian, Slovenian and Serbian Supreme Courts, but also by the courts of all States of former Yugoslavia. This is clear in the decisions that were examined for this paper and is also perfectly clear in the speeches of judges and court 59

60

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See the Constitutional Court’s decision of 27 May 2004, U-I-321/02, reported by Arne Marjan Mavčić, “The influence of foreign and international case-law of the Courts – The case of Slo­venia.”, a paper presented at the 4th meeting of the joint council on Constitutional justice, Baku, 16–17 Jun. 2005, https://www.venice.coe.int/webforms/documents/default .aspx?pdffile=CDL-JU(2005)018-e (accessed June 3, 2019). Normally, frequent references are made to the concepts of the rule of law, separation between the State and religious communities, religious freedoms, equal rights, protection of personal rights, the principle of equality before the law and so forth; on this point, see Mavčić, The influence of foreign and international case-law of the Courts – The case of Slovenia, op. cit. In Slovenia, the decisions of the Constitutional Court are made by a majority of votes and the dissenting opinions published together with the decision bear the name of the judge and include the motivations of his position. However, unlike the Croatian and Serbian practice, the Slovenian practice is characterised by decisions that are short and easy to read, with only basic references made to the regulatory provisions and judicial precedents.

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presidents delivered in numerous conferences and seminars, in particular during the annual international congress of Kopaonik (Serbia), which in the past thirty years has brought together around one thousand jurists, judges and university professors from all former Yugoslav countries and beyond.62 Even after the acquired independence, the practice of trial courts and Supreme Courts of the new Balkan States has remained unchanged and, although judges make frequent use of foreign legal theories and case-laws, this is very rarely declared in the text of a decision. Only national case-law is frequently and unrestrainedly cited. Today, as it was the past century, comparative law in the States born from the breakup of Yugoslavia is an indispensible instrument available to courts to interpret and apply provisions reviving legal rules and principles that have for several years remained unused and are virtually unknown to the current Slav jurists, as well as those that have introduced new rules and principles originating from a different, non-autonomous, trans-national economic and legal context (most frequently the European Community). 62

The quoted report of Sanja Barić and Matija Miloš, is very useful in this respect.

Part 5 Asia

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The Recourse to Foreign Legal Sources by the Southeast Asian Constitutional and Supreme Courts Serena Baldin 1 Introduction The purpose of the current analysis is to evaluate the relevance that foreign legal sources have in the decisions of the Southeast Asian Constitutional and Supreme Courts (hereafter also simply Courts). The primary aims of this study are to illustrate whether and which models of judicial review have been adopted by Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, Timor-Leste, and Vietnam and, as a consequence, to ascertain how wide the phenomenon of the use of foreign sources is in constitutional adjudication. In case non-domestic sources are cited in the jurisprudence, an additional purpose is to realize where these references come from and which role they play in the context of constitutional interpretation. As a premise, it should be pointed out that the decisions rendered by the Constitutional and the Supreme Courts declaring an act in conformity to the constitution or not are based on the rules of their respective legal systems. As well-known, only the South African Constitution has a provision that explicitly allows judges to look abroad for an integrative interpretation of domestic law. Nonetheless, any court may select foreign formants as a source of inspiration, for the solution to common problems, or to strengthen or support a decision, or as a benchmark to evaluate national law, in such manner also promoting the pluralism of legal ideas and arguments.1 Legal literature shows that the Supreme Courts of the countries subjected in the past to the British Crown or to the United States easily make reference to external sources, to such an extent that scholars have argued there is “an almost perfect correlation” between the courts citing non-domestic sources and the legal traditions that they belong to.2 Moreover, the imposing structure of common law systems has not only 1 See S. Cassese, “Legal Comparison by the Courts”, at http://www.irpa.eu/wp-content/ uploads/2011/05/The_judge_as_a_comparatist.pdf, p. 14; G.F. Ferrari, A. Gambaro, “Le corti nazionali e il diritto comparato. Una premessa”, in Id. (eds.), Corti nazionali e comparazione giuridica (Napoli, esi, 2006), p. xiii. 2 T. Groppi, M.-C. Ponthoreau, “Conclusion. The Use of Foreign precedents by Constitutional Judges: A Limited Practice, An Uncertain Future”, in Id. (eds.), The Use of Foreign Precedents

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enhanced the use of judicial precedents of other countries, but has also favoured the use of foreign legal literature and statute law. This legal propensity has pushed many Supreme Courts into even examining the academic writings, the legislation and the case law of the civil law countries in order to solve a case. On the other side, the civil law tradition is such that resorting to foreign sources is more limited.3 Among many others, two classifications of the motives that lead to resorting to non-domestic law appear more straightforward and convincing. Firstly, the comparative approach may have three different uses: the use with normative character, in cases in which the basic ascertainment that a foreign judgment would be sufficient to justify a national decision in line with that precedent; the dialectical use, aimed at suggesting alternative solutions respect to those offered by national law; and the embellishment use for mere erudition.4 Secondly, in addition to the usefulness of foreign law to fill the gaps of the domestic constitutional order, further motives are found in the fact that nondomestic legal sources are a means to clarify obscure constitutional clauses, or are a way to legitimate recent institutions through the adoption of legal solutions coming from consolidate democracies, or are a vehicle to intensify the international legitimacy of domestic courts, or are an integrative source of jurisprudential interpretation.5 Besides the considerations that will be carried out in the next sections on the motives that might lead the Southeast Asian Courts to resorting to foreign sources, two preliminary and connected questions arise. Firstly, one may wonder whether and to what extent legal heritage might explain the Courts’ potential aptitude towards the use of non-domestic sources. From a historical point of view, Southeast Asia offers a heterogeneous picture of experiences. In the by Constitutional Judges (Oxford, Hart, 2013), p. 412; M. Andenas, D. Fairgrieve, “Intent on making mishief: seven ways of using comparative law”, in P.G. Monateri (ed.), Methods of Comparative Law (Cheltenham-Northampton, Elgar, 2012), p. 25. 3 See L. Pegoraro, La Corte costituzionale italiana e il diritto comparato. Un’analisi comparatistica (Bologna, Clueb, 2006); L. Pegoraro, G. Figueroa Mejía, “Corti costituzionali, Corti ­supreme, Professori: le citazioni dottrinali nella giurisprudenza del mondo (con particolare riferimento all’America latina)”, in S. Bagni, M. Nicolini, E. Palici di Suni, L. Pegoraro, A. Procida Mirabelli di Lauro, M. Serio (eds.), Giureconsulti e giudici. L’influsso dei professori sulle sentenze. I, Le prassi delle Corti e le teorie degli studiosi (Torino, Giappichelli, 2016), pp. 22–75. 4 G. Smorto, “Il giudice e il diritto straniero”, in L. Vacca (ed.), Scienza giuridica e prassi (Napoli, Jovene, 2011), pp. 296–298. 5 M. Calamo Specchia, “Conclusioni. Oltre i confini delle Costituzioni. Constitutional borrowing e judicial transnational fertilization nell’era del costituzionalismo globale”, in P. Martino (ed.), I giudici di common law e la (cross)fertilization: i casi di Stati Uniti d’America, Canada, Unione Indiana e Regno Unito (Rimini, Maggioli, 2014), p. 159.

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past, Siam (now Thailand) remained Southeast Asia’s only independent State;6 the rest of the region had been under colonial domination up until the middle of the 20th century. Brunei, Myanmar, Malaysia and Singapore were British colonies; the Philippines was a Spanish colony subsequently ruled by the United States; Vietnam, Laos and Cambodia were dominated by the French; Indonesia was a Dutch possession; Timor-Leste was a Portuguese colony until it was invaded by Indonesia in 1975 and annexed to it until its independence in 2002. After World War ii, the Marxist-Leninist ideology began to mould the legal systems of Vietnam, Laos, Cambodia and Myanmar. For these reasons, legal hybridity is currently a widespread feature in Southeast Asia, where Western remnants are mixed with elements of Chinese, Islamic and Indian culture. Secondly, one may wonder whether it is possibile to find evidence of the so-called transjudicial communication among the Southeast Asian Courts. This concept refers to a dialogue, which presupposes a dialectical conversation, with different degrees of reciprocal engagement, and not to a monologue, that is a unidirectional path from an external source into the local case law.7 At a first glance, in addition to legal heritage, the variety of the current political trends seems not the finest precondition to promote the judicial circulation of constitutional ideals, institutes and solutions in this region. Indeed, fragile democracies, hybrid and authoritarian regimes coexist in this region.8 Moreover, the Association of Southeast Asian Nations (asean), the regional organization which promotes intergovernmental cooperation and facilitates economic integration in this area, has made little progress towards legal harmonization in recent years,9 and it has not provided itself with a supranational Court and it does not (yet) seem to be a good ground for encouraging a transjudicial 6 Although Siam was under the constant threat of being colonised for half a century; see A. Harding, “The Eclipse of the Astrologers: King Mongkut, His Successors, and the Reformation of Law in Thailand”, in H.J. Nicholson, S. Biddulph (eds.), Examinating Practice, Interrogating Theory: Comparative Legal Studies in Asia (Leiden, Brill/Nijhoff, 2008), p. 307. 7 See A.-M. Slaughter, “A typology of Transjudicial Communication”, University of Richmond Law Review, 29 (1994), p. 101; G. de Vergottini, Oltre il dialogo tra le corti. Giudici, diritto straniero, comparazione (Bologna, il Mulino, 2010), pp. 15–17; D. Maus, “Le recours aux précédents étrangers et le dialogue des cours constitutionnelles”, Rev. française de droit constitutionnel, 80, 2009, pp. 681–682. 8 According to the Economist Intelligence Unit’s Democracy Index 2016, Indonesia, Malaysia, the Philippines, Singapore and Timor-Leste are considered flawed democracy; Cambodia and Thailand are hybrid regimes; and Laos and Vietnam are authoritarian States. Brunei and Myanmar are not considered at all. See at https://infographics.economist.com/2017/ DemocracyIndex/. 9 See J. Wong, “On Legal Harmonisation Within asean”, Juris Illuminae, 5 (2013/14), at http:// www.singaporelawreview.com.

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dialogue among the respective national Courts. The same can be argued with reference to the Association of Asian Constitutional Courts and Equivalent Institutions (aacc).10 This was established in 2010 to promote close cooperation among Courts which carry out constitutional jurisdiction for the development of democracy and the rule of law in Asia. It was expected to be a forum for the exchange of experience related to constitutional practice and jurisprudence; however, to date it has given only a nominal contribution to cross-border judicial contacts.11 From the point of view of a potential judicial monologue, it can be assumed that processes of democratization may encourage a State’s reception of legal formants from consolidate democracies. In this perspective, courts may be well-disposed towards foreign solutions both to strengthen their domestic constitutional order and to legitimate themselves.12 In addition, one might suppose that the Malaysian and Singaporean membership to the Commonwealth and their judicial subordination to the Judicial Committee of the Privy Council until few decades ago, as well as the Philippines’ close link with the United States, play a significant role in the use of foreign sources, facilitated by the judges’ common law background.13 Having briefly outlined these aspects, the chapter unfolds as follows. Section 2 introduces the models of constitutional adjudication adopted and the functions performed by the Southeast Asian Courts. Section 3 provides an account of the use of foreign sources in the Southeast Asian Courts’ decisions, with an in-depth analysis of the recent trends offered by Indonesia, Timor-Leste, the Philippines, Malaysia, and Singapore, for the reasons that will be explained below. Lastly, Section 4 concludes with reflections on the influence of legal traditions in the use of foreign sources in constitutional adjudication.

10

11 12 13

At present, it has sixteen member countries, including Indonesia, Malaysia, the Philippines, Thailand, and Myanmar. The other countries are: Afghanistan, Azerbaijan, Kazakhstan, Korea, Kyrgyzstan, Mongolia, Pakistan, Russian Federation, Tajikistan, Turkey, Uzbekistan. The aacc website is at https://aacc.mahkamahkonstitusi.go.id/. See M. de Visser, “We All Stand Together: The role of the Association of Asian Constitutional Courts and Equivalent Institutions in Promoting Constitutionalism”, Asian Journal of Law and Society, 3 (2016), pp. 105–134. M. Calamo Specchia, op. cit., p. 159. Legal education and the background of judges are important aspects in facilitating the use of comparison or foreign sources; see L. Pegoraro, “Judges and Professors. The Influence of Foreign Scholarship on Constitutional Courts’ Decisions”, in M. Andenas, D. Fairgrieve (eds.), M. Andenas, D. Fairgrieve (eds.), Courts and Comparative Law (Oxford, oup, 2015), p. 330.

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775

The Southeast Asian Courts: A Brief Overview

Over the last decades, constitutional justice has expanded significantly worldwide and has evolved substantially where already established. Nevertheless, there are still some States in which constitutional review is not foreseen. This is the case of the absolute monarchy of Brunei, where the remedy of judicial review has been explicitly rejected (art. 84C Const.). However, it is noteworthy that the Sultan, who is also the Head of the official Islamic religion, has the faculty to refer questions of constitutional interpretation to an Interpretation Tribunal. This is composed of three members chosen by the Sultan among whom one is required to profess the Islamic religion and holds or has held office in Islamic law or is an expert in Islamic law and jurisprudence (art. 86 Const.).14 Concerning the models of constitutional review, a classical distinction made by Mauro Cappelletti is between political review and judicial review systems.15 The former model entrusts the control over the constitutionality of legislation to a political body, while the latter to organs that have the requirements laid down for courts, namely independence from political bodies, autonomy and impartiality of judgment. Historically, a further distinction within the judicial review model is between the American and European ones.16 Vietnam and Laos have adopted the political review system. The constitutional control of legislation has been assigned to the National Assembly and the National Assembly Standing Committee respectively,17 in adherence to the socialist legal tradition these States have embraced. The principle of 14 15 16

17

On judicial review in Islamic legal systems, see N.M. Shaker Al-Omran, T.A.A. Abualhaj, M.Y. Mohd Yusoff, “Historical and Political Background of Judicial Review in the Islamic Legal System”, American Research Journal of History and Culture, 1, 2015, pp. 1–13. See M. Cappelletti, Il controllo giudiziario di costituzionalità delle leggi nel diritto comparato (Milano, Giuffré, 1968). This is a classification influenced by Western vision only; there is also a third original model of constitutional justice, risen in Yucatan and in Mexico to guarantee to everyone the constitutional rights. See E. Palici di Suni, “Tre modelli di giustizia costituzionale”, Rivista aic, 1, 2016, pp. 1–24. Recently, Pegoraro has criticised the classical models of constitutional justice because they are no longer adequate in representing the current reality. Therefore, he has suggested various new criteria of classification, namely based on the political or jurisdictional character of constitutional adjudication, the courts’ structure, the types of functions, the protection of fundamental rights and/or the resolution of conflicts of competence linked to individual direct access to constitutional courts, the extent of the parameter, the object of judicial review, the subjects involved, the modality of access, the typology of decisions and their effects. Amplius, L. Pegoraro, Giustizia costituzionale comparata. Dai modelli ai sistemi (Torino, Giappichelli, 2015), pp. 201–223. W.-C. Chang et al., Constitutionalism in Asia. Cases and Materials (Oxford-Portland, Hart, 2014), p. 309.

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­ nity of state power is a fundamental axiom of the socialist legal theory, from u which the provision that constitutional review cannot be exercised by extra-­ parliamentary bodies has derived. Nevertheless, opposite examples of this approach are well known, such as the Federal Constitutional Court of former Yugoslavia and the Constitutional Tribunal of Poland.18 Even in Vietnam a debate relating to the hypothesis of establishing a Constitutional Court has been launched in recent years, but without success.19 The American model of constitutional review of legislation is built upon the supremacy of the Constitution and the duty of any judge to protect it. Consequently, having to solve a case where an applicable legislative norm conflicts with the Constitution, any judge must disregard the former and apply the latter. The doctrine of stare decisis or binding precedent confers erga omnes effects to the superior courts’ pronouncements. Although theoretically each judge has the authority to scrutinize constitutional issues, as a matter of fact in the United States this control is monopolized by the Supreme Court. The American model is found in the common law judicial systems of the Philippines, Malaysia and Singapore. In the Philippines, the constitutional review of legislation and international treaties is performed by the Supreme Court (art. viii, Sect. 4.2 Const.), which is composed of a Chief Justice and fourteen Associate Justices who hold office, on good behaviour, until they reach the age of seventy.20 More precisely, the Supreme Court exercises appellate jurisdiction over the decisions of the lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question (art. viii, Sect. 5.2, letter a, Const.). Other functions assigned to the Supreme Court are: exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus; review, revise, reverse, modify, or affirm on appeal or certiorari final judgments and orders of lower courts in specific cases; all cases in which the jurisdiction of any lower court is in issue; all criminal cases in which the penalty imposed is reclusion perpetua or higher; all cases in which only an error or question of law is involved; assign temporarily judges of lower courts 18 19 20

See R.R. Ludwikowski, “Judicial Review in the Socialist Legal System: Current Developments”, 37 Int’l & Comp. L. Q. 89 (1988), pp. 94–101. P. Nicholson, “Renovating courts: the role of courts in contemporary Vietnam”, in J.-R. Yeh, W.-C. Chang (eds.), Asian Courts in context (Cambridge, Cambridge Univ. Press, 2014), p. 531. See R.C. Pangalangan, “The Philippines’ post-Marcos judiciary: the institutional turn and the populist backlash”, in J.-R. Yeh, W.-C. Chang (eds.), op. cit., pp. 363–364.

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to other stations; order a change of venue or place of trial to avoid a miscarriage of justice; promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged; appoint all officials and employees of the Judiciary (art. viii, Sect. 5.2, Const.). In Malaysia, when appeals to the Judicial Committee of the Privy Council were abolished, the Federal Court became the final Court of Appeal. It is composed by the Chief Justice, the President of the Court of Appeal, the Chief Judges of the two High Courts, and four (but not exceeding eleven) other judges, who hold office until they attain the age of sixty-six (art. 122 and 125 Const.). Besides appellate jurisdiction, it has original jurisdiction to determine whether a law made by the Federal Parliament or by the Legislature of a State is unconstitutional, and to solve disputes between States or between the Federation and any State (art. 128 Const.). As in other common law countries,21 it also has advisory jurisdiction upon the request of the King over any question as to the effect of any provision of the Constitution which has arisen or appears to him likely to arise (art. 130 Const.).22 In Singapore, the supremacy of the Constitution is affirmed in art. 4 Const. Given that it does not specify which organ of the State is responsible for determining the constitutionality of legislation, the power to do so was implicitly asserted by its courts. The lower courts are confined to issuing declarations as to constitutionality.23 The Supreme Court has two divisions: the High Court and the Court of Appeal. The former exercises original jurisdiction in weighty matters and the latter exercises appellate civil and criminal jurisdiction (art. 3, Supreme Court of Judicature Act). The Justices are appointed by the Head of the State and hold office until they attain the age of sixty-five. It has been noted that Singapore represents a hybrid system having also foreseen a sort of ad hoc Constitutional Tribunal since 1994. This is a specialised section of the 21

22 23

For example India and Canada, where the Supreme Courts can give opinions at the request of the President and of the Cabinet respectively. On the English historical source of inspiration of this Indian constitutional provision, see L.I. Thomas, “Advisory Jurisdiction of the Supreme Court of India”, Journal of the Indian Law Institute, 5(4), 1963, pp. 475–478. Y. Choy Choong, “Courts in Malaysia and judiciary initiated reforms”, in J.-R. Yeh, W.-C. Chang (eds.), op. cit., pp. 381–383. In 2011, the Court of Appeal affirmed that, because the Constitution vests judicial power in the Supreme Court, it has “jurisdiction to adjudicate on every legal dispute on a subject matter in respect of which Parliament has conferred jurisdiction on it, including any constitutional dispute between the State and an individual” (Yong Vui Kong v. AttorneyGeneral [2011] 2 slr 1189); see J. Lee, “Foreign Precedents in Constitutional Adjudication by the Supreme Court of Singapore, 1963–2013”, Washington Int. Law J., 2, 2015, p. 256.

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Supreme Court composed by not less than three judges. Echoing the Malaysian Constitution, it is devoted to issuing advisory opinions upon the request of the Head of the State on any question as to the effect of any constitutional provision which has arisen or appears to the President likely to arise. It is noted that no court has jurisdiction to question the validity of any law, the bill for which has been the subject of a reference under this consultative function (art. 100 Const.). So far, this competence was activated only in 1995, in a case regarding the constitutional scope of the presidential power.24 The European model of judicial review devised by Hans Kelsen is based on the conferral of the constitutional scrutiny to a unique specialized court, which carries out an abstract review of legislation. It was introduced in Austria and Czechoslovakia in 1920 and since then it has circulated in continental Europe and in those countries where the influence of the civil law tradition is traceable. Over time, it gave birth to other variants, namely the so-called tertium genus (as in Germany, Italy, Spain) and even a quartum genus of judicial review (as in Portugal, Greece, some Latin-American countries), that also admit a concrete review as is in the American model, with the involvement of ordinary judges having different degree of incisiveness on the constitutional control of legislation.25 In Thailand, where conscious transplantation of European legal models, especially civil law ones, began in the course of the xix century,26 a Constitutional Court inspired by the German Bundesverfassungsgericht and the French Conseil constitutionnel was regulated in the 1997 Constitution and set up in 1998.27 After the 2006 military coup, it was replaced by an interim Constitutional Tribunal. The 2007 Constitution re-established a renovated Constitutional Court, composed of nine judges appointed by the King for nine years.28 In 2014 24 Case Constitutional Reference No. 1 of 1995 [1995] 2 slr 201. See J.-R. Yeh, W.-C. Chang, “Introduction. Asian courts in context: tradition, transition and globalization”, in Id. (eds.), op. cit., p. 15. 25 See A. Vedaschi, “La giustizia costituzionale”, in P. Carrozza, A. Di Giovine, G.F. Ferrari (eds.), Diritto costituzionale comparato (Roma-Bari, Laterza, 2017), vol. ii, pp. 1111–1117. 26 In 1874, the Council of State was moulded on the Conseil d’état, and the codification was inspired by the civil law tradition; conversely, the British model of personal law was adopted for Islamic observants. See A. Harding, op. cit., pp. 315–318. 27 A. Harding, “The Constitutional Court of Thailand, 1998–2006. A turbulent innovation”, in A. Harding, P. Nicholson (eds.), New Courts in Asia, (London-New York, Routledge, 2010), pp. 123–125; A. Harding, P. Leyland, “The Constitutional Courts of Thailand and Indonesia: Two Case Studies from South East Asia”, in Id. (eds.), Constitutional Courts. A Comparative Study (London, Wildy, Simmonds & Hill Publishers, 2009), pp. 318–320. 28 Under the 2007 Constitution the Constitutional Court had the functions of: reviewing the constitutionality of acts of the Parliament before and after their promulgation; reviewing

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there was another coup d’Etat and the current interim Constitution29 provides that the jurisdiction of the Constitutional Court is to decide whether any law is contrary to, or inconsistent with, the Constitution as well as the jurisdiction conferred thereto by the act on ombusdmen and the act on political party (Sect. 45). The Council of Ministers may request the justices to make a decision concerning treaties (Sect. 23). In addition, crisis powers are conferred to the Constitutional Court under Sect. 5 Const. 2014.30 The Cambodian Constitutional Council, which is member of the Association des Cours Constitutionnelles ayant en Partage l’Usage du Français, was instituted in 1998. It consists of nine judges appointed for a term of nine years (art. 137 Const.). It guarantees the observance of the Constitution, and interprets the Constitution and the acts adopted by the National Assembly and reviewed by the Senate (art. 136 Const.). The legislation can be submitted to the Constitutional Council before and after promulgation (arts. 140–141 Const.). Even administrative acts may be reviewed by the constitutional judges (art. 150.II Const. and art. 19 Law on the Organization and Functioning of the Constitutional Council). In addition, the Constitutional Council decides on disputes concerning the election of members of the National Assembly and the

29

30

the constitutionality of the requisites for the enactment of emergency decrees; ruling on whether or not parliamentary members are involved directly or indirectly in the use of the budgetary appropriations; ruling on disputes regarding the powers and duties among constitutional organs; reviewing resolutions of political parties; ruling on cases concerning the unconstitutional exercise of political rights and liberties by a person or a political party; ruling on the membership or qualifications of members of the National Assembly, Ministers and Election Commissioners; ruling on whether or not a treaty requires prior approval of the National Assembly. On the obstacles to the adoption of a new Constitution, see International Federation for Human Rights, “Roadblock to Democracy. Military repression and Thailand’s draft constitution”, no. 678a, August 2016, at https://www.fidh.org/IMG/pdf/fidh_report_thailand_ roadblock_to_democracy.pdf. That is to say “Whenever no provision under this Constitution is applicable to any case, it shall be done or decided in accordance with the constitutional convention under a democratic regime of government with the King as the Head of State, but such constitutional convention shall not contrary to, or inconsistent with, this Constitution. In the case where the question concerning the decision under paragraph one arises in the affairs of the National Legislative Assembly, it shall be decided by the National Legislative Assembly. If the question does not arise in the affairs of the National Legislative Assembly, the National Council for Peace and Order, the Council of Ministers, the Supreme Court or the Supreme Administrative Court may request the Constitutional Court to make decision thereon …”. See E. Mérieau, “The Constitutional Court in the 2016 constitutional draft: A substitute King for Thailand in the post-Bhumibol era?”, Kyoto Review of Southeast Asia, 18 (2016), at https:// kyotoreview.org/yav/constitutional-court-2016-thailand-post-bhumibol/#note-9559-6.

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Senate (art. 136 Const.), and it may be consulted by the King on all proposals to amend the Constitution (art. 143 Const.).31 In Indonesia, the Constitutional Tribunal, shaped according to the Austrian archetype and the German and South Korean models, was established as a consequence of the 2001 constitutional amendment and it has been active since 2003.32 It is composed of nine judges for a term of five years (art. 1, Constitutional Court Law no. 24/2003). In addition to the constitutional adjudication of legislation, it has the functions to decide in disputes over the authorities of State institutions, the dissolution of political parties, the results of general elections, and to issue a decision over an opinion of the Parliament about alleged violations of the Constitution committed by the President and/or the Vice President (art. 24C Const.). The Portuguese model of constitutional adjudication has been transplanted in the Timor-Leste Constitution of 2002, but with one relevant difference. While in Portugal there is an ad hoc Constitutional Tribunal, in Timor-Leste the corresponding tasks are accomplished by the Supreme Court of Justice, which the Court of Appeal currently covers, in a composition of three judges. This choice may be explained considering the very low number of inhabitants of this State, which makes the establishment of another jurisdiction pointless. As in Portugal, ordinary judges are also allowed to set aside legislation upon their own authority, but their decisions have no general effect.33 The Supreme Court of Justice is the highest court and the guarantor of a uniform enforcement of the law. It administers justice on matters of legal, constitutional and electoral nature (art. 124 Const.). In particular, it has the functions of reviewing and declaring the unconstitutionality and illegality of normative and legislative acts by the organs of the State; of providing an anticipatory verification of the legality and constitutionality of the statutes and referenda; of verifying cases of unconstitutionality by omission; of ruling, as a venue of appeal, on the suppression of norms considered unconstitutional by the courts of instance; of verifying the legality regarding the establishment of political parties and their coalitions and ordering their registration or dissolution; of exercising all other competencies provided for by the Constitution or the law (art. 126 Const.). Myanmar has pursued a deviating path with respect to its legal history. During the military regime, the common law heritage was rejected, although its 31 32 33

C. Rasy, “Le Conseil constitutionnel du Royaume du Cambodge”, Les Nouveaux Cahiers du Conseil Constitutionnel, 44, 2014, pp. 1–12. S. Butt, The Constitutional Court and Democracy in Indonesia (Leiden-Boston, Brill Nijhoff, 2015), p. 18; S. Hendrianto, “Institutional choice and the new Indonesian Constitutional Court”, in A. Harding, P. Nicholson (eds.), op. cit., pp. 158–159. Art. 120 Const.: “The courts shall not apply rules that contravene the Constitution or the principles contained therein”.

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judicial system had been built on the common law model and the 1947 Constitution had allowed the Supreme Court to exercise constitutional review. This approach was confirmed in the 2008 Constitution, having set up a Constitutional Tribunal of nine members chosen for a term of five years (art. 320 and 335 Const.). It performs many functions: “a. interpreting the provisions under the Constitution; b. vetting whether the laws promulgated by the Pyidaungsu Hluttaw [national bicameral parliament], the Region Hluttaw [regional parliament], the State Hluttaw [statal parliament] or the Self-Administered Division Leading Body and the Self-Administered Zone Leading Body are in conformity with the Constitution or not; c. vetting whether the measures of the executive authorities of the Union, the Regions, the States, and the Self-Administered Areas are in conformity with the Constitution or not; d. deciding Constitutional disputes between the Union and a Region, between the Union and a State, between a Region and a State, among the Regions, among the States, between a Region or a State and a Self-Administered Area and among the SelfAdministered Areas; e. deciding disputes arising out of the rights and duties of the Union and a Region, a State or a Self-Administered Area in implementing the Union Law by a Region, State or Self-Administered Area; f. vetting and deciding matters intimated by the President relating to the Union Territory; g. functions and duties conferred by laws enacted by the Pyidaungsu Hluttaw” (art. 322 Const.). Since 2011 it has been active but it is worth noting that, given the Burmese authoritarian regime and the impeachment of all the constitutional judges in 2012, commentators are a little optimistic that this Court will be called upon seriously to assess the constitutionality of legal provisions.34 3

The Recourse to Foreign Legal Sources by the Southeast Asian Courts

A number of Southeast Asian States have been excluded by the research devoted to the recourse to foreign legal sources. Besides Brunei, Laos and Vietnam which are not endowed with a judicial review system as illustrated above, the case law of Myanmar and Thailand has not been analyzed given that their 34

D.J. Nardi, “Finding Justice Scalia in Burma: Constitutional Interpretation and the Impeachment of Myanmar’s Constitutional Tribunal”, Pacific Rim Law & Policy Journal Association, 23(3), 2014, pp. 632–682; M. Zan, “Rule of Law Concepts in Burma’s Constitutions and Actual Practice: No Ground for Optimism”, in A. Harding, K.K. Oo (eds.), Constitutionalism and legal change in Myanmar (Oxford, Hart, 2017), pp. 40–45; W.-C. Chang et al., op. cit., p. 309; N.Y. Kham, “An Introduction to the Law and Judicial System of Myanmar”, Myanmar Law Working Paper Series, no. 001, 2014, at http://law.nus.edu.sg/pdfs/cals/ working_papers/Myanmar/MWPS001.pdf.

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constitutional decisions are not translated in a lingua franca.35 And, concerning the Cambodian Constitutional Court, its activity is not relevant insofar it emulates the French style loyally.36 It applies the so-called vu and considérant technique37 and its decisions are generally 2–4 pages long, without room for an in-depth reasoning or citation of precedents or concurring and dissenting opinions, much less for foreign examples. Having clarified the above, research focuses on the attitude of the Courts of Indonesia, Timor-Leste, the Philippines, Malaysia and Singapore towards the use of non-domestic sources in recent times, in order to identify the “cultural foundations” that nowadays influence their judicial activity. A further purpose is to realize which techniques are applied by the Courts in resorting to external legal sources, between that of citing just one country or that of referring to a number of different legal systems. As argued by Ferrari, while the former technique would indicate a historical link between the “borrower” and the “lender”, or peculiar circumstances concerning the legal institute under scrunity, or an exercise of significant discretion in deciding a case, the latter would be used when there is a turning-point in the jurisprudence or when there is a desire to carry out thorough normative and axiological research.38 Given that the Indonesian Constitutional Court began rendering decisions in 2004 and that most of them are translated in English up to the year 2013, this entire period is considered. With respect to Timor-Leste, all the constitutional cases dealt with by the Supreme Court since its inception are examined, i.e. from 2003 to 2016. In relation to the other Courts, in view of the fact that they deliver hundreds of pronouncements each year and their attitude towards the use of foreign legal sources is well-documented, the analysis focuses on the cases solved in the last years, in order to further specify which formants are cited more frequently and to comprehend which function they perform in the judicial decision-making process. In addition, regarding the jurisprudence 35 36 37

38

Although in their respective English websites there is a part devoted to decisions, only two judgments for each Court have been included and neither of them make references to foreign legal sources. Over a hundred constitutional cases have been solved by the Cambodian Constitutional Council since 2003. The decisions, translated in French and in English, are available at http://www.ccc.gov.kh/index_fr.php. On the French style of the decisions, see G. Gorla, “Lo stile delle sentenze. Ricerca storico-comparativa”, Il Foro italiano, 90(12), 1967, p. 328; H.E.S. Mattila, “Cross-References in Court Decisions: A Study in Comparative Legal Linguistics”, Lapland Law Review, 1, 2011, pp. 99–101. See G.F. Ferrari, The Use of Foreign Law by Constitutional Courts, in Irish Journal of Legal Studies, 4(1), 2014, pp. 35–36.

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of Timor-Leste, the Philippines, Malaysia, and Singapore, only constitutional questions are taken into account; civil and criminal judgments have been excluded for reasons of homogeneity with the decisions rendered by the Indonesian Constitutional Courts and also because “it is constitutional law which imposes specific taxonomies for judicial recourse to foreign law”.39 Before introducing the outcomes on the aforementioned Courts’ jurisprudence, it is worth highlighting that the search of references relating to external legal sources includes citations of different formants, e.g. foreign and international case law, foreign and international statute law, foreign academic writings. Regarding international law, research does not refer to binding rules in these countries. Only examples of voluntary choices by the Courts are considered, representing evidence of the “horizontal” circulation of formants between institutions situated at the same level, without hierarchical bounds. For this reason, in case of ratification, international treaties are not taken into account. Moreover, the Universal Declaration of Human Rights, which does not bind State parties, is not considered in relation to Timor-Leste since it is an interpretative parameter for fundamental rights, as stated in art. 23 Const., and in relation to the Philippines since it has been interpreted by the Supreme Court as part of the generally accepted principles of international law binding the State.40 3.1 Indonesia: A Restrained Use of Foreign Legal Sources The style of the Indonesian Constitutional Court decisions follows a standard pattern recalling the scheme of “whereas” and “considering”. However, in contrast with the French tradition, these texts are repetitive and long or even extremely long, also given the statements made by the counsels or the experts of the petitioner and/or those of the Government which contribute to broaden the number of pages. In detail, after the name of the petitioner, in the part devoted to the facts of the case, the Court discusses whether it has the jurisdiction to hear the issue, whether the petitioner has the qualifications for legal standing and the interest to file the petition, as well as the substance of the petition with the norms petitioned for review. The legal reasoning underpinning the decision, contained in the opinion of the Court, is the core of the case in which the Court declares whether it upholds the arguments presented in their entirety or in part, or whether they lack legal merit, while the last part is

39 40

G.F. Ferrari, op. cit., p. 32. See the case Mary Grace Natividad S. Poe-Llamanzares v. Commission on Elections and Estrella Elamparo, G.R. no. 221697, March 8, 2016.

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represented by the decision. Dissenting and concurring opinions are admitted but their use is very limited.41 Of over 180 decisions rendered in the period 2004–2013 by the Indonesian Constitutional Court, thirty-six resort to foreign sources in which each ruling generally contains more than one non-domestic legal formant, quoted directly in the text (footnotes are not used). When foreign references are made by the related parties (that are not considered in the count), the Court usually quotes external sources in response to those observations. Since there is an apparent difference in the amount of citations provided during the presidency of the Chief Justice Jimly Asshiddiqie (2003–2008) and that of the Chief Justice Mohammad Mahfud (2008–2013), the current analysis is separated into two parts. During the early years of activity of the Court, references to foreign sources were made in twenty-seven decisions. In detail, among them the Court cited foreign legal literature in ten decisions (with a preference for American and Dutch scholars),42 five decisions resorted to foreign statute law (the U.S. Constitution and other legislative acts, namely the U.S. Bankruptcy Code, the Dutch Notary Act, the Dutch General Provisions of Legislation, the Philippine

41 42

The decisions of the Indonesian Constitutional Tribunal are available in English at http:// www.mahkamahkonstitusi.go.id/index.php?page=web.Putusan&id=1&kat=1&cari=. The American legal expert Barry M. Hager, the essay by Helen Fenwick and Gavin Phillipson, and the Mary McClymont and Stephen Golub’s book are quoted in the case 13 december 2004, no. 06/PUU-II/2004. In the case 29 march 2006 024/PUU-III/2005, the American legal scholar Erwin Chemerinsky is cited. In the case 14 january 2008, no. 23/PUU-V/2007, the book “Courts, Law, and Politics in Comparative Perspective” by the scholars Jacob, Blankenburg, Kritzer, Provine, Sanders is quoted. In the case 23 august 2006, no. 005/PUUIV/2006, the former U.S. Justice Sandra Day O’Connor, the American legal scholars John Norton Moore, Craig R. Ducat, Barry M. Hager, the American political scientist Theodore L. Becker (in turn quoted in Herman Schwartz’s book “Struggle for Constitutional Justice”), the Dutch constitutionalist Wim Voermans and the Italian political scientist Carlo Guarnieri are cited. In the case 23 july 2004, no. 013/PUU-I/2003, Hans Kelsen, Gustav Radbruch, the American legal expert Michael Tigar (erroneusly written Tilger in the decision), the book “The Dictionary of Constitutional Law” by Ralph C. Chandler et al., and Bryan A. Garner in the “Black Law’s Dictionary” are quoted. In the case 30 october 2007, no. 2-3/PUUV/2007, the Court quotes Cesare Beccaria and cites an Immanuel Kant’s phrase, in turn quoted by the American scholars Hugo Bedau and Paul Cassell in their book “Debating the Death Penalty”. In the case 17 july 2007, no. 6/PUU-V/2007, the book by J.M.J. Schepper, a Dutch law school professor and Christian missionary in Indonesia, is cited. In the case 25 july 2006, no. 003/PUU-IV/2006, Jan Remmelink, professor and Attorney General of the High Council of the Netherlands, is quoted. In the case 5 august 2008 no. 11/PUU-VI/2008, Carl Schmitt is quoted. In the case 3 march 2005, no. 065/PUU-II/2004, the Austrian international law professor Otto Triffterer and the international law expert Omer Y. Elagab are cited.

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Civil Code, the Japanese Penal Code),43 and two recalled foreign precedents (not directly, but as quoted in books),44 two made reference to international law (the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Eight Protocols, the American Convention on Human Rights, the Universal Declaration of Human Rights, and the Rome Statute of the International Criminal Court),45 and two referred to other international documents.46 In the dissenting opinions, citations of legal literature appeared in twelve decisions (mainly Dutch, American, German and Indian authors),47 other legal materials were cited in five,48 references to foreign constitutional 43 44

45 46

47

48

See the cases: 23 july 2004, no. 013/PUU-I/2003; 13 september 2005, no. 009/PUU-III/2005 and no. 014/PUU-III/2005; 21 october 2004, no. 061/PUU-II/2004; 17 may 2005, no. 071/PUUII/2004 and no. 001-002/PUU-III/2005; 16 december 2006, no. 013-022/PUU-IV/2006. The case of R v. Lord Chancellor ex p Witham (1998), quoted by Helen Fenwick and Gavin Phillipson, is recalled in the decision 13 december 2004, no. 06/PUU-II/2004. In the case 23 august 2006, no. 005/PUU-IV/2006, a passage of Justice Robert in the case of U.S. v. Butler, in turn quoted by Craig R. Ducat in his book “Constitutional Interpretation”, is recalled. See the cases 23 july 2004, no. 013/PUU-I/2003, and 3 march 2005, no. 065/PUU-II/2004. In the case 27 december 2006, no. 006/PUU-IV/2006 a marginal reference to a General Comment and Report of the Secretary General of the United Nations is done. In the case 23 july 2004, no. 013/PUU-I/2003, the United Nations Resolution no. 50/186, of December 22, 1995, and the Paper Position of Human Rights Foundation, no. 1, December 2002. In the case 17 december 2007, no. 20/PUU-V/2007, Tom Ginsburg and Hans Kelsen are cited. In the case 25 january 2006, nr. 001/PUU-IV/2006, Alexander Hamilton and Tom Ginsburg are cited. The Dutch legal scholars B.F. Bellefroid and L.J. van Apeldoorn are quoted in the case 22 march 2006, no. 026/PUU-III/2005. Hans Kelsen, the Dutch legal scholars C. van Vollenhoven and J.H.A. Logemann, and a paper by the German constitutional justice Siegfried Bross are recalled in the case 12 april 2005, no. 066/PUU-II/2004. The German legal scholar Heinrich Scholler is quoted in the case 22 march 2005, no. 073/PUU-II/2004. The American legal scholars Robin C. Trueworthy and James Popple are cited in the case 23 july 2004, no. 013/PUU-I/2003. In the case 25 july 2006, no. 003/PUU-IV/2006, the Dutch legal scholars Derkje Hazewinkel-Suringa and Inge C. van der Vlies are quoted. In the case 16 december 2006, no. 013-022/PUU-IV/2006, the German international law scholar Oppenheim and the Indian jurist Durga Das Basu are quoted. In the case 30 october 2007, no. 2-3/PUU-V/2007, the German legal scholar Gustav Radbruch, the Canadian professor of international law William Schabas, the Nigerian Muslim scholar Mashood Baderin, the Indian jurist Durga Das Basu, and the American jurist Richard A. Posner, are recalled. In the case 1 July 2008, nr. 10/PUU-VI/2008, the American criminologist Jerome H. Scholnick is quoted. In the case 20 february 2008, no. 24/PUU-V/2007, Laurence Baum is cited. In the case 12 april 2007, no. 028-029/PUU-IV/2006, the Indian constitutionalist M.P. Jain is quoted. The Justice Jackson’s opening statement at the Nuremberg Trial of 1945 is recalled in the case 23 july 2004, no. 013/PUU-I/2003. In the case 25 july 2006, no. 003/PUU-IV/2006, the Dutch Rapport Wetgevingstechniek (1948) is cited. In the case 30 october 2007, no. 2-3/PUU-V/2007, the Konstitusi Magazine, no. 17, November-December 2006, page 13, is quoted to illustrate the Mongolian Constitutional Court’s procedure of standing. The

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acts (the U.S. Constitution thrice, the Dutch Constitution, the French Declaration of the Rights of Man of 1789, the French Constitution of 1791, the Australian Bill on Human Rights; the German Grundgesetz and the Indian Constitution) appeared in five decisions,49 and references to statutes appeared in three,50 foreign case law (among which four cases are not directly referred to, but as quoted in literature) appeared in three,51 and in one case the European Convention on Human Rights and the London Charter (i.e. the Charter of the International Military Tribunal of 1945) resorted to.52 During the Mahfud presidency, references to foreign sources were made in nine decisions. Among them, the Court’s quotations concerned foreign legal literature in three decisions (mainly Dutch scholars),53 three cases resorted

49 50

51

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Black’s Law Dictionary (regarding the Latin term ad hoc) is quoted in the case 21 february 2008, no. 18/PUU-V/2007. Also in the case 3 march 2005, no. 065/PUU-II/2004, the Black’s Law Dictionary is cited. See the cases: 28 september 2006, no. 008/PUU-IV/2006; 23 july 2004, no. 013/PUU-I/2003; 3 march 2005, no. 065/PUU-II/2004; 17 may 2005, no. 071/PUU-II/2004 and no. 001-002/PUUIII/2005; 30 october 2007, no. 2-3/PUU-V/2007. In the case 15 may 2008, no. 3/PUU-IV/2008, concerning taxation provisions and procedures, in the dissenting opinion it is affirmed: “… as the practice found in Australia and New Zealand…”, and from page 89 to 96, there are considerations on the best practices known in many countries, in this order: England, United States, Canada, Australia, France, New Zealand, Malaysia, and the Netherlands, citing their respective statutes. In the case 23 july 2004, no. 013/PUU-I/2003, the French criminal code is quoted. In the case 16 december 2006, no. 013-022/PUU-IV/2006, Sect. 90 of the German criminal code is quoted. In the case 30 october 2007, no. 2-3/PUU-V/2007, there are references to: the well known French case Jean Calas, in turn quoted in Cesare Beccaria’s Dei delitti e delle pene; three U.S. decisions (Asakura v. City of Seattle, 265 US 332 (1924); Cabell v. Chavez-Salido, 454 U.S. 432(1982); Salim Ahmed Hamdan v. Donald H. Rumsfeld, Secretary of Defense, 126 S.Ct.2749); the decision of German Bundesverfassungsgericht dated May 22, 2006; the South African justice Chaskalson’s opinion in the case Makwanyane; and a Dominican case (application by Kareem, (1985) lrc (Const)425(428)(Dom)), in turn quoted by the Indian legal scholar Durga Das Basu. In the case 20 february 2008, no. 24/PUU-V/2007, concerning the education system, the case Brown v. Board of education of 1954 is quoted, citing the book by Laurence Baum reporting the fact that it needed ten years before it was implemented effectively. In the case 12 april 2007, no. 028-029/PUU-IV/2006, a reference to the Indian case Olga Tellis v. Bombay Municipal Corp, as cited by Indian constitutionalist M.P. Jain, is made. Case 23 july 2004, no. 013/PUU-I/2003. The Dutch legal scholars Van Kan, Van Apeldoorn, Bellefroid, and Utrecht are quoted in the case 17 february 2012, no. 46/PUU-VIII/2010; the Austrian international law scholar Paul Sieghart is cited in the case 4 june 2012, no. 32/PUU-VIII/2010; and the American legal expert Barry M. Hager is recalled in the case 24 february 2009 no. 32/PUU-VI/2008.

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to foreign statutes,54 a decision quoted a foreign case law,55 and one referred to international law.56 In the dissenting opinions, foreign legal literature was quoted in two decisions57 and one made reference to international law.58 The analysis of the Indonesian case law reveals that the recourse to foreign legal sources is not a frequent practice. Furthermore, it usually does not have a bearing on the result of the cases, since the external formants are cited in a brief and superficial manner, as a mere exercise of erudition or as obiter dicta.59 As an example, in a landmark case of 2011 regarding the unconstitutionality of a law prohibiting ultra petita decisions, to support its reasoning the Court simply recalled the Marbury v. Madison case and the South Korean Constitutional Court Law without providing any effective relevance in the judicial argumentation.60 On the other hand, there are some cases, rendered during the presidency Asshiddiqie, in which non-domestic sources had a meaningful impact on the motivational part of the decisions. For example, in the Bali bombing case rendered in 2004, in which the unconstitutionality of a law was declared, finding that it had breached the applicant’s right not to be prosecuted under a law of retrospective application, the Court offered an in-depth analysis of similar treatments of the retrospectivity issue in international law, European Convention of Human Rights included.61 Moreover, in a dissenting opinion rendered in a case dating back to 2008, concerning taxation provisions and procedures, several pages describe the best practices known in many countries (England, United States, Canada, Australia, France, New Zealand, Malaysia, and the Netherlands), citing their respective statutes.62 54

55 56 57 58 59 60 61 62

The Act of the Constitutional Court of South Korea is cited in the case 18 october 2011, no. 48/PUU-IX/2011. The U.S. Protecting Employees and Retirees in Bankruptcy Act and the proposal for a Council Directive OJ C 135/2 9.6.1978 concerning Protection of Laborers in Insolvent Companies are quoted in the case 23 october 2008, no. 18/PUU-VI/2008; art. 232 of the Penal Code of Japan is cited in the case 15 august 2008, no. 14/PUU-VI/2008. The case Marbury v. Madison is quoted in the decision 18 october 2011, no. 48/PUU-IX/2011. The 1969 Vienna Convention and the 1986 Vienna Convention on the Law of Treaties are quoted in the case 13 november 2012, no. 36/PUU-X/2012. The international legal experts Jacob Rowbotton, Andrew Puddephat, and Toby Mendel are quoted in the case 30 march 2009, no. 9/PUU-VII/2009; the Australian judge Sir Anthony Mason is cited in the case 17 february 2009 no. 56/PUU-VI/2008. The European Convention on Human Rights is cited in the case 30 march 2009, no. 9/PUU-VII/2009. On the weigh and effectiveness of foreign citations, see G.F. Ferrari, op. cit., p. 36. See the case 18 october 2011, no. 48/PUU-IX/2011, and also S. Butt, op. cit., pp. 133–134. Case 23 july 2004, no. 013/PUU-I/2003. See also the case 3 march 2005, no. 065/PUU-II/2004. Case 15 may 2008, no. 3/PUU-IV/2008.

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As most of the decisions are not plainly structured and the issues are often not presented logically,63 the technique used to resort to external sources is also unclear. The different legal systems that can be found cited in the same decision are simply proof of the legal background of the justices, spanning from the Dutch-German culture to the American one, with also few references to Asian experience. Another aspect which emerged in this analysis is the smaller number of citations after the first phase of the Court’s activity, which might depend on at least three factors. Firstly, it may be connected to the issues at stake during the early years of the Court’s activity, when it had to face particular constitutional questions, such as the interpretation of fundamental rights and principles. Secondly, this reduction may be explained by highlighting the fact that the dissenting opinions had almost entirely disappeared during the Mahfud presidency and, as illustrated above, foreign references were resorted to by dissenting justices on several occasions. In this perspective, a change in the Court’s style under the Mahfud presidency has been noted, from a detailed and discursive style to an impoverishment of the quality of legal reasoning, including the end of an encouragement to express differences of opinion on the bench.64 Lastly, this attitude may also have had consequences on the recourse to non-domestic sources in the decisions. 3.2 Timor-Leste: An Irresistible Attraction for the Portuguese Doctrine The Timorese Supreme Court decisions tend to follow a common structure. Firstly, the Court sets out the parties’ applications, the preliminary questions and the factual background. Then it commences the legal considerations, and lastly it renders the final ruling. The decisions, rendered by a three-judge bench, are approximately 10–20 pages long. In general, the length depends on the number of issues at stake in each case.65 Of a total of twenty-four constitutional decisions rendered by the Supreme Court to date, only five do not make any reference to foreign legal sources. The remaining decisions always include academic writings, quite exclusively by authoritative Portuguese legal scholars or, in very rare cases, by Portuguese academics of other disciplines (such as the sociologist António Teixeira Fernandes) or by prominent intellectuals of other countries (such as the Italian legal philosopher Norberto Bobbio, the Brasilian economist Ladislau Dowbor, 63 64 65

See S. Butt, op. cit., p. 60. In this sense, see S. Butt, op. cit., pp. 61–63. The constitutional decisions are available in Portuguese at https://www.tribunais. tl/?q=node/4.

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who taught in Portugal also, and the politician David Capistrano Filho).66 The manner in which the references of academic writings are inserted in the Court’s decisions follows the practice of adding the author’s name in the text, in brackets or not, or in footnote; the quoted literature is included in the text or, more often, inserted in footnote. As regards the weight and the effectiveness of citations, they serve to define legal concepts in brief, such as the meaning of fundamental rights, constitutional statutory limits, equality, where professors Miranda and Gomes Canotilho are the most quoted authors.67 In addition, foreign legal literature represents an active tool in the deliberative process of the Timorese Court. This formant contributes to arguing the ratio decidendi by means of the construction and interpretation of local legal sources and institutes. In almost all the constitutional decisions analyzed, the Court’s judicial reasoning is based on references to several Portuguese scholars in each case. The decision is the result of a process of inclusion of many quotations in the normative part of the text, alternated with Timorese constitutional provisions.68 The justification of this approach is offered by the Court itself, as stated in a passage that sounds like a syllogism: “… given the doctrinal positions mentioned with reference to a constitutional text [that of Portugal] very similar to the Constitution of TimorLeste, this Court can therefore say that, in our constitutional system …”.69 An 66 67

68

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See in particular the decision rendered in 2009 no. 02/const/2009. See the decisions no. 02/const/2003/tr rendered in 2003, no. 03/const/2003 rendered in 2007, no. 02/const/2007/tr rendered in 2007, no. 01/const/2008 rendered in 2008. In a decision concerning the alleged unconstitutionality of a presidential decree, in order to ascertain the existence of the procedural requirements to judge the case, the Antunes Varela’s handbook on civil procedure is cited and his definition of procedural requirements is applied (case no. 02/const/2008 rendered in 2008). Just for example, in the case no. 02/const/2009 rendered in 2009, at p. 8 it is written: “In the sphere of the political function, it is particularly important to define … the public interest, interpreting the purposes of the State and choosing the means that in each moment are adequate to its concrete achievement. See Freitas do Amaral, “Curso de Direito Administrativo”, p. 46, Servulo Correia, “Legalidade e Autonomia Contratual nos Contratos Administrativos”, pp. 280/282 and 768, Vieira de Andrade, “A Justiça Administrativa”, ii ed., p. 14, Marcelo Rebelo de Sousa, “Lições de Direito Administrativo”, Vol. i, p. 9, Jorge Miranda, “A competência do governo na Constituição de 1976”, in “Estudos sobre a Constituição”, Vol. ii, p. 637, and “Órgãos e Actos do Estado”, p. 24, Mario Esteves de Oliveira, “Noções de Direito Administrativo”, p. 29, and Gomes Canotilho, “Direito Constitucional”, 58th ed., pp. 762, 763 and 765”. In the case no. 04/const/2003/tr rendered in 2008, the Court quotes Gomes Canotilho, Marcelo Rebelo de Sousa, Carlos Blanco de Morais, Jorge Miranda, Vital Moreira, Antonio Lobo Xavier, Cardoso da Costa, Sousa Franco, Oliveira Ascensão, Guilherme Moreira; even Montesquieu is cited. Several Portuguese legal scholars are also cited in the case no. 01/const/09/tr rendered in 2009. Case no. 04/const/2003/tr rendered in 2008.

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emblematic case was judged in 2007: referring to Sachs’ theory in the factual part of the decision,70 for several pages of the normative part of the decision (questão de fundo) the Court follows “very closely the teaching of the specialist in Constitutional Law J.J. Gomes Canotilho, full professor at the Faculty of Law of Coimbra and at the University of Lisboa, in his book Direito constitucional e Teoria da Constituição” on the assignment of competences, the principle of separation and interdependence of the constitutional organs, and their functions. For each of these issues, the Court identifies the national constitutional provisions that correspond to Gomes Canotilho’s thought. As of 2011, this constant trend has been enriched by the recourse to few foreign precedents, constitutional texts, international conventions and other sources. In detail, in decision no. 02/const/2011/tr, only nine pages long, in addition to citing Gomes Canotilho, Moreira, Miranda, de Albuquerque, and Blanco de Morais in the footnotes, the Court also quotes a document by the Public Ministry the Brazilian State of Amazonas and the UN Report of the SecretaryGeneral no. S/2004/616 (The rule of law and transitional justice in conflict and post-conflict societies), in footnotes 8 and 9 respectively. This openness to foreign documents, which simply corroborates the judicial argumentation, may be explained with the object of the request. In this anticipatory constitutional review regarding the appointment of the Attorney General, an issue at stake was the alleged violation of the supplementary principle (principio da supletividade) for the recruitment of foreign judges to high judicial offices in Timor-Leste. The subsequent cases are more interesting given that the foreign formants seem to acquire normative force. In decision no. 01/const/2012, the Court cites three Portuguese precedents and an Attorney General’s opinion. The reasoning contained in the foreign sources is summarised in the text as it were a Timorese legal outcome; without reading the footnotes, it is impossible to understand their non local origin. This symbiotic linkage is also apparent in decision no. 02/const/2014, which makes reference to the Portuguese Constitution and to a precedent: “In Portugal, as in Timor-Leste, the Constitution establishes, in the same article 24 of our Constitution, the principle of explicit authorization […]. As written in the Portuguese Constitutional Court decision no. 404/2012 […]. Thus, having fulfilled the requirements of article 24 of the Constitution of the Republic […], it does not seem to us that it [the Parliamentary Decree] can ben considered unconstitutional”.

70

An excerpt of the U.S. economist Jeffrey D. Sachs’s book The End of Poverty about the failures of governance is set out. See the case no. 03/const/2007/tr.

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Decision no. 01/const/2014 concerning the freedom of expression and freedom of enterprise offers plenty of references to different formants. The French Declaration of the Rights of Man and of the Citizen of 1789 is recalled as the ordering matrix of current European legal systems, citing art. 21 Italian Constitution, art. 20 Spanish Constitution, art. 37 and 38 Portuguese Constitution, and also art. 10 of the European Convention of Human Rights; even the U.S. Constitution is mentioned. In addition, the German case Lüth-Urteil is mentioned because quoted in a book written by professor Andrade (current president of the Portuguese Constitutional Tribunal) in turn cited in the decision. These references cannot be considered constituent elements of the Court’s reasoning. They are mere stylistic embellishments or demonstrations of erudition, such as the citation of the German law professor Hans-Heinrich Jescheck and the Spanish philosopher Hugo Aznar whose books are added to the judicial narrative discourse. On the other hand, the quotations of the French media ethicist Claude-Jean Bertrand and the Portuguese PhD in Communication Sciences Martins Fidalgo may be considered exceptions. Indeed, the thoughts of these two intellectuals, together with the considerations offered by Portuguese legal scholars and the correlated decisions of the Constitutional Tribunal quoted in the text,71 seem to permeate the judicial interpretative choice and to validate the argumentative reasoning of the Court. The recourse to the Portuguese doctrine seems to have at least a double meaning: formally, the Timorese Court fully imitates the style of the Portuguese Constitutional Tribunal, which cites its national legal literature;72 substantially, this technique reveals a strong relationship between the “borrower” and the “lender”, which helps to ensure coherence and rational justification in the decisions of this very young Court, which cannot draw inspiration from its precedents or from local scholars in order to guarantee the constitutionality of its legal framework. The Timorese judges establish the legal basis of their constitutional order by resorting to non-domestic writings (and, only in few cases, 71

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In this decision are quoted the writings of professors Miranda, Gomes Canotilho, Pinto, Andrade, Vieira de Andrade, Figueiredo Dias, Taipa de Carvalho, Moreira, Beleza, da Costa Pinto, Correia, Costa, Simas Santos, Lopes de Sousa, Caetano, Leones Dantas, Ferreira Antunes, Gomes Dias, Arons de Carvalho, Monteiro Cardoso, Figueiredo, Medeiros, and the book by judges Oliveira Mendes and Santos Cabral. The Court makes also reference to the Portuguese Constitutional Tribunal decisions no. 632/2008, 158/1992, 263/1994, 269/2003. And sometimes also foreign doctrine; see M.R. Trazzi, “Un Tribunal cerrado (pero no del todo): las citas doctrinales del Tribunal Constitucional portugués”, in L. Pegoraro, G.  Figueroa Mejía (eds.), Profesores y Jueces. Influjos de la doctrina en la jurisprudencia constitucional de Iberoamérica (México, Suprema Corte de la Nación, 2016), pp. 113–119.

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also case law) inasmuch as they are a guide to where a just interpretation way be found and confer authority to the Court’s reasoning. 3.3 The Philippines: Entwined with U.S. Law As regards the style of the Philippine Supreme Court decisions, after the names of the petitioner and the respondent, the text begins with the factual antecedents. The opinion of the Court (or ruling of the Court), containing the procedural and the substantive grounds of the case, preceeds the final decision. Concurring and dissenting opinions are admitted, but their use is limited. Generally, the decisions are short (approximately 8–12 pages long), but in case of constitutional issues the length increases up to around 35–40 pages, enriched by excerpts of precedents and of normative provisions. There are also several footnotes containing references to precedents, academic writings, and normative provisions. Since the database of the Philippine Supreme Court does not provide for an automatic distinction between constitutional cases and other ones, nor is a search for keywords possible, thousands of decisions have been overseen to isolate those useful for this study, solved by the Supreme Court en banc.73 The outcome is that foreign legal sources are quoted in a very large number of rulings. American constitutional jurisprudence is the most cited foreign formant by the Philippine Supreme Court, summoned both in the text and in the footnotes, directly and indirectly as contained in excerpts of other precedents recalled in the decisions.74 U.S. academic writings follow; foreign but not American legal writings are cited to a much lesser extent. Close to the citations of the “classics” of law and of the works of the current most prominent legal scholars, there is a fair number of open access essays that confirm how important this way of publishing is in order to disseminate foreign legal 73 74

The Supreme Court decisions are available at http://sc.judiciary.gov.ph/jurisprudence/. Few decisions cite only one American precedent; see for example: case Southern Luzon Drug Corporation v. The Department of Social Welfare and Development, et al., G.R. no. 199669, April 25, 2017; case Velicaria-Garafil v. Office of the President, G.R. no. 203372, 209138, 212030, June 16, 2015, in which is cited the case Marbury v. Madison; case Rodolfo G. Navarro, et al. v. Executive Secretary Eduardo Ermita, et al., G.R. no. 180050, February 10, 2010; Atty. Evillo C. Pormento v. Joseph “Erap” Ejercito Estrada and comelec, G.R. no. 191988, August 31, 2010. Other decisions contain more citations of American precedents, both of the Federal Supreme Court and of other courts; see, for example, case Ferrer v. Bautista, G.R. no. 210551, June 30, 2015; case Conchita Carpio Morales v. Court of Appeals, G.R. no. 217126-27, November 10, 2015; case Arturo M. De Castro v. Judicial and Bar Council, et al., G.R. no. 191002, 191032, 191057, 191149, 191342, A.M. no. 10-2-5-SC, March 17, 2010; case Louis “Barok” C. Biraogo v. The Philippine Truth Commission of 2010 et al., G.R. no. 192935, 193036, December 7, 2010.

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doctrines. For example, some of the quoted American scholars are Benjamin N. Cardozo, Christopher P. Banks, Thomas Goger, Russell W. Galloway, Marcy Strauss, David M. Treiman, Ryan Black, Lee Epstein, Daniel Egger, R. Chuck Mason, Sonja B. Starr, Dinah L. Shelton. Other cited scholars are the Australian James R. Crawford, the Belgian Philippe Gautier, the English John Woodcliffe, the South African Jeremy Sarkin, and the Dutch scholars Antoine Buyse and Theodoor van Boven.75 In comparison to these formants, other ones are often not taken into account. The recourse to international law, case law, and reports is not very widespread76 and the recourse to foreign statute law77 and to foreign but not American case law is rare. Dissenting and concurring opinions may or may not contain references to foreign sources, irrespective to the recourse to external formants in the decision. In a number of cases, the Court has emphasized that foreign law, when resorted to, only has a persuasive effect in the adjudication of legal issues. This is clearly reaffirmed in a decision of 2014: “… this Court should accentuate that resort to foreign jurisprudence would be proper only if no law or jurisprudence is available locally to settle a controversy and that even in the absence of local statute and case law, foreign jurisprudence are merely persuasive authority at best since they furnish an uncertain guide…. American decisions and authorities are not per se controlling in this jurisdiction…. Indeed, although the 75

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See the cases Conchita Carpio Morales v. Court of Appeals, G.R. no. 217126-27, November 10, 2015; Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al./City Government of Davao Vs. Court of Appeals, et al., G.R. no. 189185, 189305, August 16, 2016; League of Cities of the Phil. Rep. by lcp National President Jerry P. Trenas, et al. v. comelec, et al., G.R. no. 176951, 177499, 178056, August 24, 2010; Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al./Bagong Alyansang Makabayan (bayan), et al. Vs. Department of National Defense (dnd) Secretary Voltaire Gazmin, et al., G.R. no. 212426, 212444, July 26, 2016; dissenting opinion in Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, G.R. no. 225973, 225984, 226097, 226116, 226117, 226120, 226294, November 8, 2016. In the dissenting opinion to the case Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, G.R. no. 225973, 225984, 226097, 226116, 226117, 226120, 226294, November 8, 2016, are cited the case Chorzów Factory heard before the Permanent Court of International Justice in 1927; the separate opinion in the case Bulacio v. Argentina of the InterAmerican Commission of Human Rights; the case Vagrancy v. Belgium of the echr; the American Convention on Human Rights; the European Convention of Human Rights; the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa; the Inter-American Commission of Human Rights’ Report on the Implementation of the Justice and Peace Law. In the case Ang Ladlad lgbt Party v. Commission on Elections, G.R. no. 190582, April 8, 2010, is quoted the U.S. Constitution.

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Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged”.78 Nonetheless, the Supreme Court cites U.S. formants even when it is not necessary to fill a normative gap or to overturn a precedent. In addition to some irrelevant citations without a real impact on the decision, as the mention of the Black’s Law Dictionary (probably most quoted text of all) or the Ballentine’s Law Dictionary with Pronunciations or the Bouvier’s Law Dictionary and Concise Encyclopedia, or quotations for embellishment and erudition, foreign formants may fulfil other tasks. Obviously, they may have relevance as obiter dicta, namely additional information without an effective impact on the decision of the Court. Above all, what is noteworthy is that these formants are often sources of inspiration that affect the motivational part of the ruling and serve as the foundational basis of the Court’s reasoning. In this sense, in some decisions the underlying arguments of American sources are used as guidelines, as clearly stated in a 2010 case where the renowned precedent McCulloch v. State of Maryland was cited.79 In a landmark case, the Supreme Court has also taken into consideration sources from different legal systems in supporting its decision. In Ang Ladlad lgbt Party v. Commission on Elections of 2010, the Court stated that “other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct. European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international text.80 To the extent that there is much to learn from other 78 Case Emilio Ramon “E.R.” P. Ejercito v. Commission on Elections and Edgar “Ega Y” S. San Luis, GR no. 212398, November 25, 2014. 79 See the case Atty. Romulo B. Macalintal v. Presidential Electoral Tribunal, G.R. no. 191618, November 23, 2010. Other examples of American formants useful to influence the Court’s reasoning are found in the case Southern Hemisphere Engagement Network, Inc. etc., et al. v. Anti-Terrorism council, et al., G.R. no. 178552, 178554, 178581, 178890, 179157, 179461, October 5, 2010; case Chamber of Real Estate and Builders’ Associations, Inc. v. The Hon. Executive Secretary Alberto Romulo, et al., G.R. No. 160756, March 9, 2010; case Antonio M. Serrano v. Gallant Maritime Services, Inc., et al., G.R. no. 167614, March 24, 2009. 80 And, in this corresponding part of the text, in footnote 42 it is written: “See Toonen v. Australia, (Comm. No. 488/1992 U.N. gaor Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/ c/50/D/488/1992 (1994)); Dudgeon v. United Kingdom, 45 Eur. H.R. Rep. 52 (1981) (decision by the European Court of Human Rights, construing the European Convention on Human Rights and Fundamental Freedoms); Norris v. Ireland, 13 Eur. Ct. H.R. 186 (1991); Modinos v. Cyprus, 16 Eur. H.R. Rep. 485 (1993). See also, L. and V. v. Austria (2003-I 29; (2003) 36 ehrr 55) and S.L. v. Austria (2003-I 71; (2003) 37 ehrr 39)…”. See the case Ang Ladlad lgbt Party v. Commission on Elections, G.R. no. 190582, April 8, 2010, where are also

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jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis”. This last case demonstrates that, in addition to the recurring practice to quote U.S. law for its persuasive authority, the Supreme Court of the Philippines may also adopt the tecnique of citing several countries when a particular issue is at stake, in order to legitimate its judicial reasoning. Malaysia and Singapore: The “Four Walls” Doctrine and Recent Trends Malaysia and Singapore share a common legal heritage, marked by their subordination to the Privy Council until 1985 and 1994 respectively.81 Singapore was even part of the Federation of Malaysia for a few years (from 1963 to 1965), until it was expelled and became a wholly independent Republic.82 What is noteworthy in relation to this research is that these Judiciaries have usually resisted engaging with foreign law, having adopted the so-called “four walls” doctrine. In 1963, the Chief Justice of the Malaya Federation (then Malaysia) stated that the Malayan Federal Constitution was “primarily to be interpreted within its own four walls and not in light of the analogies drawn from other countries such as Great Britain, the United States of America or Australia”. In truth, three months earlier this assertion had been made by the Privy Council towards Nigeria with the intention to clarify that foreign legal principles should not be applied if they cannot be accommodated by the constitutional text.83 However, since then, in Malaysia and especially in Singapore, 3.4

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cited the ECtHR cases United Macedonian Organisation Ilinden and Others v. Bulgaria, 2006, Baczkowski and Others v. Poland, 2007, Freedom & Democracy Party (ozdep) v. Turkey, 1999, and several U.S. precedents. In Malaysia, appeals in civil matters to the Privy Council were abolished in 1985; appeals on constitutional matters were abolished in 1978 and on criminal matters in 1978. In Singapore, appeals to the Privy Council were abolished with the enactment of the Judicial Committee (Repeal) Act 1994. The expulsion was caused by religious concerns, regarding the role that Islam should have played within the State. See M.R. Milne, “Singapore’s Exit from Malaysia; the Consequences of Ambiguity”, Asian Survey, 3, 1966, pp. 175–184; K. Steiner, “Comparative Law in the Syariah Courts. A Case Study of Singapore, Malaysia, and Brunei”, in M. Andenas, D. Fairgrieve (eds.), Courts and Comparative Law (Oxford, oup, 2015), pp. 597–598. See J.T. Lee, “Interpreting bills of rights: The value of a comparative approach”, Int. J. ­Constitutional Law, 5 (2007), pp. 124–125; L. Thio, “Beyond the ‘Four Walls’ in an Age of Transnational Judicial Conversations: Civil Liberties, Rights Theories and Constitutional Adjudication in Malaysia and Singapore”, Columbia Journal of Asian Law 19 (2006), pp. 430–432.

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this doctrine has been applied in a strict sense, refusing to consider external formants on the basis of the fact that their social or legal conditions differ from those of other countries. This does not mean that foreign sources are not quoted, but that they do not have any actual influence on the Courts’ reasoning, which resists any sort of engagement with the decisions of other common law jurisdictions. Recently, some scholars have argued that the “four walls” doctrine has weakened, while others claim that it is still persistent,84 thus this point needs to be further investigated. With regard to the style of the decisions of the Federal Court of Malaysia, following the names of the appellant and of the respondent, appear the background facts, the submissions of the parties, the decision of the Court containing the judicial reasoning, and the final judgment. On average the length of the decisions is about 20–40 pages.85 Constitutional adjudication is not a frequent activity, much less is the recourse to foreign formants. As a consequence, only eleven rulings rendered in the period 2010–2017 make references to external sources, and they are sometimes cited in response to counsels’ reference to them. In all of these decisions, precedents are always quoted; they may be cited directly or with an indirect reference as contained in an excerpt of another source cited in turn in the text. English and Indian precedents appear more frequently than the citations of other commonwealth countries like Canada, Australia, New Zealand, Ireland, Zimbabwe.86 There are also a few citations from foreign legal writings,87 and only in one case is the Indian Constitution 84

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See J.T. Lee, op. cit., pp. 122–152; L. Thio, op. cit., pp. 428–517; A.K. Thiruvengadam, “The continuing resistance to foreign law in constitutional adjudication in Singapore”, in J.L. Neo (ed.), Constitutional Interpretation in Singapore: Theory and Practice (Routledge, New York, 2016), pp. 318–340. The pronouncements rendered by the Federal Court of Malaysia in the period 2010–2017 have been checked to extrapolate constitutional issues among the other decisions. All the decisions are available in English at http://www.kehakiman.gov.my/en?q=en/node/628. See the cases: Majlis Agama Islam Wilayah Persekutuan v. Victoria Jayaseele Martin, no. 01(F)-10-03/2014(W), 24 march 2016; Dewan Undangan Negeri Selangor et al. v. Mohd Hafarizam Bin Harun, no. 02-83-11/2014 (B), 14 july 2016; Lembaga Minyak Sawit Malaysia v. Arunamari Plantations Sdn Bhd et al., no. 01(F)-4-03-2013(W), 9 july 2015; Public Prosecutor v. Azmi Bin Sharom, no. 06-5-12/2014(W), 6 october 2015, Bird Dominic Jude v. Pendakwa Raya, no. 05-226-09/2013(W), 8 april 2014; Yang Dipertua et al. v. Gobind Singh Deo, no. ­W-01(F)-31-11/2012 (W), 3 november 2014; Dr Koay Cheng Boon v. Majlis Perubatan Malaysia, no. 02-19-2011(W), 5 january 2012; Fathul Bari Bin Mat Jahya et al. v. Majlis Agama Islam Negeri Sembilan et al., no. 3/2010, 30 may 2012; Bato Bagi et al. v. Kerajaan Negeri Sarawak, no. 01-4-2011(Q), 8 september 2011; Datò Seri Anwar Ibrahim v. Tun Dr Mahathir Bin Mohamad, no. 08(F)-319-2009(W), 24 november 2010. In the case Dewan Undangan Negeri Selangor et al. v. Mohd Hafarizam Bin Harun, no. 0283-11/2014 (B), 14 july 2016, the English legal scholar S.A. De Smith is cited. In the case Yang

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quoted.88 No references to Singapore have been found, even though it is known that reciprocal quotations are made.89 Foreign sources are cited as an embellishment, as obiter dicta and sometimes also to support the motivational part of the decision, but without relevant details.90 As the Malaysian Constitution is similar in content and structure to the Indian one and English constitutional cases have persuasive authority,91 it is not surprising that both are taken into consideration when the judicial decision-making process needs to be sustained. With regard to Singapore, the decisions of the Supreme Court open with the names of the plaintiff and of the defendant. After the introduction follow the summary of the parties’ submissions, the reasoning of the Court and the conclusion with the final judgment. The decisions are about 50–70 pages long and may contain footnotes.92 A recent study devoted to commercial and criminal matters reveals a clear increase in the number of foreign citations after 2005.93 Regarding constitutional issues, non-domestic legal sources are quoted in all of the decisions examined. Indeed, English precedents are always cited because contained in excerpts of quoted Singaporean precedents, or because directly cited by the Court or by the parties. Other sources are also cited, such as case law of other foreign jurisdictions (Australia, India, Sri Lanka),94 foreign legal scholars (Daniel Greenberg, William Blackstone, Joseph Chitty, Andrew

Dipertua et al. v. Gobind Singh Deo, no. W-01(F)-31-11/2012 (W), 3 november 2014, a page of Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, is cited. In the case Dr Koay Cheng Boon v. Majlis Perubatan Malaysia, no. 02-19-2011(W), 5 january 2012, the Lord Steyn’s essay The Constitutionalisation of Public Law is cited. In the case Zi Publications Sdn Bhd et al. v. Kerajaan Negeri Selangor, no. 1-12-2012(B), 28 september 2015, the Indian scholar N.S. Bindra is quoted. 88 See the case Public Prosecutor v. Azmi Bin Sharom, no. 06-5-12/2014(W), 6 october 2015. 89 See L. Thio, op. cit., p. 433. 90 For example, foreign sources cited as part of the legal reasoning appear in case Dewan Undangan Negeri Selangor et al. v. Mohd Hafarizam Bin Harun, no. 02-83-11/2014 (B), 14 july 2016, an case Lembaga Minyak Sawit Malaysia v. Arunamari Plantations Sdn Bhd et al., no. 01(F)-4-03-2013(W), 9 july 2015. 91 See A. Harding, The Constitution of Malaysia: A Contextual Analysis (Oxford, Hart, 2012), p. 206. 92 The decisions are available at http://www.singaporelaw.sg/sglaw/laws-of-singapore/ case-law/free-law. 93 Y. Goh, P. Tan, “An Empirical Study on Development of Singapore Law”, Singapore Academy of Law Journal, 23 (2011), pp. 206–208. 94 See the cases Tan Cheng Bock v. Attorney General, [2017] sgca 50, The Comptroller of income tax v. arw & Anor, [2017] sghc 180, Ravi s/o Madasamy v. Attorney-General and other matters [2017] sghc 163.

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Harding, Walter Bagehot),95 statute law (Constitutions of India, Sri Lanka),96 and international law.97 In general, it can be said that the use and relevance of foreign formants may vary. In this perspective, it has been noted that they do not have effectiveness when used to support the counsel’s reasoning, especially in cases concerning individual rights.98 Other times, foreign references are contained in obiter dicta, as in a case solved by the High Court in 2017 in which professor Harding and other Singaporean scholars were cited in relation to the basic structure doctrine.99 At times, foreign sources may be cited to corroborate the Court’s decision, as in Tan Cheng Bock v. Attorney General of 2017, in which the Court extends the interpretation of an English precedent to aspects other than those mentioned by the plaintiff, in order to dismiss his arguments.100 As regards the technique used by the Court to resort to foreign sources, there is a clear preference for English case law, deriving from its common law heritage. Nonetheless, its persuasive authority is limited and not extended to fundamental rights, where domestic sources are preferred to foreign ones aimed at suggesting alternative solutions. 4 Conclusions Legal heritage is meaningful in order to understand the approach of Southeast Asian States in relation to constitutional adjudication and to the recourse to 95

See the cases Tan Cheng Bock v. Attorney General, [2017] sgca 50, The Comptroller of income tax v. arw & Anor, [2017] sghc 180, Ravi s/o Madasamy v. Attorney-General and other matters [2017] sghc 163, Tan Cheng Bock v. Attorney General, [2017] sghc 180. 96 See the cases Yong Vui Kong v. PP., [2010] sgca 20, Ravi s/o Madasamy v. Attorney-General and other matters [2017] sghc 163. 97 In the case Case Yong Vui Kong v. PP., [2010] sgca 20, the Court was of the opinion that rules of customary international law cannot be incorporated into the meaning of the word “law” in Article 9(1) Const. as this is not in accordance with the normal hierarchy of Singapore law, which envisages that customary international law may only be adopted if it is not inconsistent with existing domestic laws. 98 In this sense, see A.K. Thiruvengadam, op. cit., pp. 318–340, and the case Yong Vui Kong v. PP., [2010] sgca 20. 99 The basic structure doctrine postulates that there are certain fundamental features of a Constitution that cannot be amended by Parliament. See the case Ravi s/o Madasamy v. Attorney-General and other matters [2017] sghc 163. See also the case The Comptroller of income tax v. arw & Anor, [2017] sghc 180, in which the Court affirms that the timetested factors set out in the English precedent Ladd v. Marshall of 1954 would be a useful means. 100 See the case Tan Cheng Bock v. Attorney General, [2017] sghc 180.

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foreign sources, which are especially cited in the area of fundamental rights and legal principles. It has actual influence in each of the countries examined as they maintain close ties with their former Western colonizers. Only in the case of Indonesia, Dutch-continental and American influence are quite equivalent. However, if one looks at the more frequently recalled formants in its decisions (bearing in mind that this practice is not often deployed), the civil law roots of Indonesia are evident, since the Constitutional Court prefers to cite the doctrinal formant instead of the case law formant, even though this is not the most suitable choice for constitutional interpretation and cross-fertilisation. In addition, the Indonesian and the Timorese Courts’ practice to resort mainly to academic writings represents an exception to the idea that this formant has an integrative function compared to the case law and legislative formants, and that it is present in those countries where the comparative approach is more advanced.101 Again, it may be argued that this exception is the consequence of the civil law background of these Courts, in which precedents do not have such persuasive authority as they do in common law countries. Moreover, in such manner, these countries try to find inspiration in the law of consolidate democracies with the aim to legitimate their recent institutions and to give foundation to their legal reasoning. As a result of its historical background, the Philippine Court naturally embeds American case law and legal literature in judicial decision making, and the use of these sources is frequent and has a normative character on several occasions. This legal condition also promotes the recourse to international law and to the legal sources of other foreign countries. Even Malaysia and Singapore follow the common law tradition of mostly quoting non-domestic case law, even if, for the reasons explained above, its impact is not as relevant as in other countries. On the whole, it may be affirmed that in Southeast Asia the main leader States, in the sense of borrowers of legal sources, are the United States and England. The influence of other well-established Asian democracies, namely India and South Korea, is very limited or non-existent. Lastly, the initial assumption concerning the barriers to cross-border judicial interactions among the Courts of this area is confirmed. The recourse to foreign sources is only the signal of a judicial monologue; even between Malaysia and Singapore there are no reciprocal legal fluxes, at least in the sphere of constitutional law. 101 See G.F. Ferrari, op. cit., p. 35.

Use of Foreign and Comparative Law by the Supreme Court of Japan Akiko Ejima The purpose of this chapter is to introduce a new trend at the Supreme Court of Japan (hereinafter scj) which started to refer to foreign and international law in some constitutional cases in the 21st century. Previously the author did an empirical research which discovered that the majority opinion of the scj never referred to any specific foreign or comparative law during the period of 1 January 1990 and 31 July 2008 but it frequently consulted some foreign laws, particularly the US and German case law when it dealt with cases containing new and/or controversial constitutional questions although it did not cite nor refer to in its judgments. However, in 2013 the scj for the first time cited the names of the specific foreign laws and specific recommendations by UN treaty organs such as the Human Rights Committee (the Committee of the International Covenant on Civil and Political Rights) and the Committee on the Rights of the Child (hereinafter). The Section 1 explains the background and functions of the scj including characteristics of its case law. The Section 2 overviews the use of foreign and comparative law by the scj since the scj was established in 1947. The Section 3 examines how far the scj will change itself in the future by exploring its recent judgments and decision (2008, 2013 and 2015). 1 Introduction 1.1 Background There were two moments when Japan thoroughly transplanted Western legal systems.1 Firstly it did it as a part of the ‘modernization’ project in order to join the international community in the late 19th century and amend unequal treaties between Japan and Western countries. The latter claimed that there was no rule of law or democracy and it was unthinkable to let Japanese courts adjudicate Western people. Japanese government invited Western scholars and sent Japanese bureaucrats and scholars to Western countries in order to investigate the Western legal system and chose German (Prussian) legal system as a model for Japan. Secondly a complete legal reform took place after World War 1 Japan formerly received strong influences from Chinese law in the 8th century.

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004297593_031

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ii because a new constitution, the present Constitution of Japan (1946) was enacted as a result of the Potsdam Declaration, which required Japan demilitarization, liberalization and democratization.2 Therefore the drafting of the Constitution became a unique opportunity where numerous foreign constitutions were consulted. Particularly the newly introduced judicial review in the present Constitution is modelled on the Supreme Court of the United States (hereinafter scus). 1.2 The Supreme Court of Japan The Supreme Court of Japan (scj) consists of a Chief Judge and 14 judges. The judges, save for the Chief Judge, are appointed by the Cabinet (Article 79 of the Constitution). The Emperor appoints the Chief Judge of the scj as designated by the Cabinet (Article 6). Three major groups from which judges are selected are judges, prosecutors and attorneys (barristers). There is no law to specify the allocation but since the 1970s it has been the case that six judges are selected from judges, four are selected from attorneys and two are selected from prosecutors, based on a custom of filling a vacant post by a person who has the same background of a retiring judge. The scj has also recruited a law professor, an ex-diplomat and an ex-minister in order to secure wider knowledge and experience. A female judge was appointed in 1994 for the first time who was the only female judge at the scj until 2009 when another was appointed. At present there are two female judges. Moreover, it was the first time the scj had a female judge whose background was as a professional judge and law school professor since the previous female judges were all ex-ministers of the Ministry of Labour or the Ministry of Health, Labour and Welfare. The appointment of the judges of the scj must be reviewed by the people at the first general election of members of the House of Representatives following their appointment, and must be reviewed again at the first general election of members of the House of Representatives after a lapse of 10 years, and in the same manner thereafter. In the cases mentioned, when the majority of the voters favours the dismissal of a judge, the judge is dismissed. The judges of the scj must retire at 70 years old. They receive, at regular stated intervals, an adequate salary which must not be decreased during their terms of office (Article 79). The judgment of the scj is given by one of three Benches (each Bench consists of four or five judges) or by the Grand Bench (15 judges). Any of the Benches can transfer a case to the Grand Bench when it finds that the case in ­question includes a possibility of unconstitutionality or change of the precedent of the scj. The opinion of the majority is shown as one opinion. The 2 See in general, Koseki, S., The Birth of Japan’s Postwar Constitution, Westview, 1997.

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names of the judges who agree with the majority opinion are shown. The judges who disagree with the majority opinion, or wish to complement the majority opinion, can write dissenting or concurring opinions. In general the judges are more likely to agree with the majority opinion, without expressing their own view. However, in some controversial cases judges tend to write either dissenting or concurring opinions. Taking into account that the present workload of the scj (it receives around 7,000 cases per year) should be dealt by just 15 judges, the role of law clerks (chosakan) at the scj is important. There are about 40 law clerks at the scj. They are judges of lower courts with the experience as judges of about 15 years and keep their status as judges while they are working as law clerks at the scj. Law clerks read case records and submit reports to the judges in order to help judges screen cases (dismissal, return to the previous court, or acceptance as a Bench case or a Grand Bench case). They also research on foreign and comparative law as a part of their assistance. Their outcome of research can be seen in the case comments on judgments of the scj of which they are in charge.3 There is speculation that law clerks may play a more substantial role in deciding whether an appeal should be accepted or not and in writing a draft of judgments than they are legitimately expected to do.4 2

Overview of the Use of Foreign and Comparative Law

2.1 Early Period of the Supreme Court of Japan The power of judicial review was new to Japanese judges. Therefore, the judges of the scj had to start to define what power the scj has under the 1946 Constitution. The Constitution prescribes that “The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act (Article 81).” Whether the scj has a power of an abstract judicial review is not clear from the Constitution. When the National Police Reserve (npr, Keisatsu Yobitai) was established in 1950 in order to strengthen national security during Korean War (1950–53) as the American occupation army stationed in Japan was relocated to Korean Peninsula, a Member of the Lower House brought a case to the scj by claiming that the npr violated 3 Commentaries on the major important judgments and decisions of the scj are written by law clerk, who are in charge of assistance of a particular case and they are regularly published in Saikou Saibansho Hanrei Kaisetsu [Commentary on Case Law of the Supreme Court of Japan]. 4 Ichikawa, M. et al, Nihon no Saiko Saibansho [the Supreme Court of Japan], Nihon Hyoronsha Publishing, 2015, chap 3.

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Article 9 which prohibits possession of land, sea, and air forces, as well as other war potential.5 The scj denied his claim by holding that the judicial review in Japan needs a concrete case because what is given to the scj is a judicial power (shihou-ken) which is only executed in a concrete case. The same reasoning was first appeared in the previous judgments in 1948, in which the majority opinions of the scj explicitly referred to Marbury v. Madison, the first precedent of the basis of the control of judicial review by the scus.6 They claimed that Article 81 of the Constitution was stipulates the judicial review which was established by the interpretation of the Constitution of the United States by the scus.7 It is clear that the scj considered that the US case law was a persuasive and even authoritative source when they tried to define the extent of the new power of judicial review without thinking of possible criticism that the use of foreign resources is “undemocratic, selective (cherry-picking), and misleading”.8 Actually the scj did not have to face the criticism as it became silent in citing or referring to foreign sources. 2.2 Silent Period of the Supreme Court of Japan After the early period of explicit reference the majority opinion of the scj stopped citing or referring to foreign or comparative law in constitutional cases.9 According to the previous research of the author between the period of 1 January 1990 and 31 July 2008 (almost two decades) there is no case in which the majority opinion cites or refers to foreign or comparative law; one case in which a dissenting opinion refers to foreign case law and six cases in which dissenting opinions refer to foreign law and four cases in which concurring opinions refer to foreign law.10 5 The npr consisted of 75,000 men and was equipped with light infantry weapons. Article 9 prescribes that ‘Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized’. 6 5 U.S. 137 (1803). 7 scj (Grand Chamber, hereinafter GB), judgment of 7 July 1948, 2(8) Saiko Saibansho Keiji Hanreishu (official criminal case law report published by the scj, hereinafter Keishu) 793. 8 Fredman, S., “Foreign Fads or Fashions? The Role of Comparativism in Human Rights Law” (2015) 64 iclq 631. 9 In this article an explicit citation means a full case citation includes the name of the case; the published sources in which it may be found; a parenthetical that indicates the court; and the year of decision or judgment. 10 Ejima, A. “A Gap between the Apparent and Hidden Attitudes of the Supreme Court of Japan towards Foreign Precedents” in Groppi, T. and Ponthoreau. M.-C. (eds.), The Use of Foreign Precedents by Constitutional Judges, Hart Publishing, 2013, 283.

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The quantitative result seems to show that indifferent attitude of the scj towards foreign and comparative law material with very few exceptions. However, the qualitative analysis reveals hidden strong interests of the scj on foreign and comparative law. The characteristic examples of implicit interests can be shown only by comparison between the Japanese case law and foreign case law (See 2.3). 2.3 Hidden Influences There are cases where the majority opinions do not cite or refer to foreign case law or foreign law in an explicit way but where the reasoning and/or test (standard) of constitutionality is so similar to existing foreign case law that it is difficult to deny the existence of influences. In other words, the similarities are so strong that it could have been classified as a direct influence if the Court had added a formal citation. There are three possible sources of hidden influences. First, appellants often cite or refer to foreign case law or foreign law to reinforce their argument although it is not guaranteed that judges will take into account them. Secondly, some judges whose backgrounds are academic tend to recourse to comparative legal knowledge. A good example is Judge Ito who was formerly an AngloAmerican law professor at Tokyo University before he was appointed as a judge of the Supreme Court. Therefore his reasoning, and even tests of constitutionality, is strongly influenced by his study of US case law (see 2.3.4). Lastly, law clerks may prepare some comparative law materials including foreign law and case law which are relevant to the particular case in question. The commentaries on leading judgments of the scj written by law clerks often include comparative law materials (See 2.3.1). 2.3.1 Pharmacies’ Location Regulation Case (30 April 1975) The case concerns legal regulation on locations of pharmacies by the Pharmaceutical Affairs Act. At the beginning of the judgment, the majority opinion emphasized the difference between freedom to choose an occupation and freedom of mental activities (freedom of conscience, religion and expression).11 Therefore, scholars understood that the Court admitted the supremacy of freedom of expression and therefore, when the Court examines the constitutionality of restrictions upon freedom of expression, it does so more carefully by 11

scj (GB), judgment of 30 April 1975, 29(4) Saiko Saibansho Minji Hanreishu (official civil case law report published by the scj, hereinafter Minshu) 572. English translation is available at .

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using stricter tests. Therefore, they claimed that the scj accepted the idea of there being tiers of judicial review or levels of judicial scrutiny depending on the characters of rights as the scus did. However, it is not clear whether the scj was fully aware of footnote four of the judgment of United States v. Carolene Products Company.12 Ironically, the scj has never admitted a violation of Article 21 which guarantees freedom of expression. The level of scrutiny for freedom of expression cases which the Court adopted has been often criticized on the basis that it was not strict enough to protect freedom of expression. On the other hand the case comment of this judgment written by the law clerk reveals that the scj was influenced by the 1948 judgment of the German Federal Constitutional Court.13 2.3.2 Public Safety Ordinance Case (10 September 1975) The case concerns the group parades and demonstrations which violated the Public Safety Ordinance of Tokushima City and the Road Traffic Law.14 The appellants claimed that the legislation violated Article 31 of the Constitutional Law as it was not clearly written. This case showed characteristics of the opinions of the scj which was clarified in 2.2. Firstly, the majority opinion did not refer to or cite any foreign case law. Secondly, one of the concurring opinions showed a strong affinity to the scus case law. Thirdly, the reason Judge Kishi invoked US case law was not for admitting a violation of the Constitution, but to limit the extent of protection of freedom of expression. The same attitude can be observed in other cases. 2.3.3

Separation of Government and Religion Case (13 July 1977): Purpose–Effect Test and Lemon Test The case concerns the constitutionality of a certain activity of the local government which presided over a ceremony in a Shinto style called as jichinsai.15 The ceremony is often performed before the construction of buildings in Japan to pray for safety. The issue is whether the ceremony is a religious activity which the government is prohibited from practicing under the Constitution (Articles 20 and 89) or a social custom which the people expect the local government 12

United States v. Carolene Products Company, 304 US 144 (1938). The case comment cited many references of American case law studies but did not cite Carolene Products case itself. 13 Tomizawa,T., Saiko Saibansho Hanrei Kaisetsu Minjihen [Case Commentary on Case Law of the scj, Civil Case, hereinafter as Kaisetsu Minjihen] 199 (1975). Cf. BVerfG BD.7, S. 377. 14 scj (GB), judgment of 10 September 1975, 29(8) Keishu 489. 15 scj (GB), judgment of 13 July 1977, 31(4) Minshu 533. English translation is available at .

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to carry out to ensure the safety of construction work. The court used a test to decide whether the Act in question was constitutional or not. The stark similarities (using the same words such as purpose and effect) between the above purpose–effect test and the Lemon test of the scus was pointed out by Japanese scholars although the Court did not cite Lemon v. Kurtzman.16 Taking into account the fact that the Court had no previous experience of how to interpret the separation clause, it can easily be imagined that the Court consulted the case law of the scus since some clauses of the Japanese Constitution are largely modelled on the US Bill of Rights and, in particular, ­Article 20 of the Japanese Constitution is considered to be influenced by the First Amendment of the US Constitution. The latter point was raised by the dissenting opinion of Judge Fujibayashi. Moreover, the introduction of the principle of separation of government and religion was one of the principal policies of the occupation period. Japanese judicial review was considered to be modelled on US judicial review. Therefore, it is difficult to say that the Court has not been influenced by the US case law. The law clerk listed names of leading case law of the scus concerning the separation of state and religion in the case commentary without analysis.17 However, if the purpose–effect test and the Lemon test are observed carefully, there are significant differences. Scholars often criticized the Japanese purpose-effect test which allows flexible outcomes. One of advantages of not officially citing foreign case law may be to protect the Court from criticism. The Court did not cite the US case law. Therefore, criticism about the Lemon test is not directly applicable to the Japanese Court. The problem of hidden influences (not disclosing the source) is that there is no clear explanation why the purpose–effect test can draw a line between a prohibited religious act and a permissible religious act. 2.3.4

Prohibition on Leaflet Distribution Case (18 December 1984): “Public Forum” Doctrine The case is concerned with freedom of expression in relation to the distribution of a political leaflet at a railway station run by a private railway company.18 The appellants claimed that criminalizing their act of distribution was unconstitutional. The majority opinion simply denied the appellants’ claim by stating that Article 21 did not guarantee absolute freedom of expression and permitted necessary and reasonable restraint on freedom of expression. It did not show any specific test to judge constitutionality or adopt stricter scrutiny. This is an 16 17 18

Lemon v. Kurtzman, 403 US 602 (1971). Koshiyama, Y, Kaisetsu Minjihen 212 (1977). scj (PB), judgment of 18 December 1984, 38(12) Keishu 3026.

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example of the fact that the Court has not introduced any stricter scrutiny or a stricter test for freedom of expression. The interesting characteristic of this case is the concurring opinion of Judge Ito who was an Anglo-American law professor before he joined the Court. In his opinion, he introduced the concept of a ‘Public Forum’ where freedom of expression has to be guaranteed as carefully as possible in order to secure a place (public forum) where people can communicate their opinion to other people in an effective way. The English words ‘public forum’ were not translated but written as パ ブ リ ッ ク ・ フ ォ ー ラ ム (paburikku fouramu).19 Therefore it is very clear that the concept is imported from outside, that is, from US case law. However, he did not cite any US case law concerning the public forum doctrine. It is interesting to consider why he mentioned the public forum doctrine despite the fact that he joined the majority opinion and stated that the place in question did not have the strong nature of a public forum. 2.3.5 Use of City Hall Case (7 March 1995): Clear and Present Danger Test This case is about the refusal of a permit to use a city hall for a political meeting (a political campaign of the leftist group against a newly planned airport).20 The organizer of the meeting claimed that the refusal by the city council violated the right to freedom of expression and association (Article 21 of the Constitution) and that the refusal was censorship which the Constitution prohibited (Article 21). The Court ruled that the refusal was constitutional (one concurring opinion). The case shows a typical attitude of case-law building by the scj. First, the principal issue of the case is freedom of expression. The Court has never found a violation of the Constitution and it did not in the case in question. Secondly, similarities in the wording of the scrutiny test between Japanese and US case law can be found. The Court required the city council to foresee a clear and present danger in order to refuse the permit of the city hall. Schenk v. United States established the test in 1919 but there is no explicit citation of it by the scj.

19

20

In Japan foreign words are written in Katakana as they sound. Katakana is one of three characters in Japanese language. Therefore, if a word is written in Katakana, the word is likely to be a foreign word. The advantage of this usage is that they don’t need to translate them. The disadvantage is that they accept foreign words as they sound without seriously thinking what they mean in reality. Moreover, it is very likely that how to pronounce a foreign word is greatly influenced by the Japanese language. For example, public forum is pronounced pa-bu-ri-kku fo-u-ra-mu in Japanese (Katakana). scj (PB), judgment of 7 March 1995, 49(3) Minshu 687. English translation is available at .

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The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.21 Thirdly, The concept and principle of the precedent is relatively ambiguous. For example, the scj referred to the judgment of 23 December 1953 which was not ratio decidendi but obiter dictum on the matter in question.22 The scj also referred to the judgment of 11 June 198623 in which the facts and context are different from the case in question. It is an interesting question to ask why the scj started to explicitly refer to foreign and comparative law and international law in the 21st century after such a long period of silence. 3

A New Dimension in the 21st Century

3.1 The 2008 Judgment as a Harbinger In 2008 the scj admitted the violation of Article 14 of the Constitution (equality under the law) in a case concerned with the legal status (nationality) of a child who was born out of wedlock in Japan between a foreign mother and a Japanese father who legally admitted that he was a father of the child.24 The Minister of Justice refused the child’s application for Japanese nationality because the mother and father were not legally married. This requirement was introduced upon the revision to the Nationality Act by Act No. 45 of 1984 for the purpose of supplementing the basic principle of the Nationality, jus sanguinis, by achieving a balance (in treatment) with a child born in wedlock to a Japanese father and a non-Japanese mother who may acquire Japanese nationality by birth. However, the legislator considered that where a child is born to a Japanese citizen as his/her parent by blood, if the child does not acquire 21 22 23 24

Schenck v. United States, 249 US 47 (1919). The judgment of 23 December 1953 dismissed the appeal because it did not find a legal interest to be protected. Therefore what the judgment examined regarding the issue of constitutionality of the refusal of the permit for ‘reference’ cannot be precedent. It concerned an injunction to prevent defamation against an electoral candidate by a journalist. scj (GB), judgment of 4 June 2008, 62(6) Minshu 1367. English translation is available at .

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Japanese nationality by birth, he/she is likely to subsequently develop a close tie with a foreign state which is his/her state of nationality. It is construed that Article 3, para.1 of the Nationality Act, while keeping the basic principle of the Act, the principle of jus sanguinis, provides for certain requirements that can be the indexes by which to measure the closeness of the tie between the child and Japan, in addition to the existence of a legal parent-child relationship with a Japanese citizen. The majority opinion of the 2008 Judgment held that the child is entitled to acquire Japanese nationality by the constitutional interpretation of the Nationality Act (requiring the parent’s legal marriage is against the constitution and it is necessary to invalidate the part of the provision which requires legal marriage of the parent). In order to reach this conclusion the majority opinion referred to ‘foreign laws’ or ‘laws of foreign countries’ twice. First, the scj admitted the reasonable relevance between the purpose of the law and the provision existed when the legal reform was installed in 1984 by referring to the similar situation in other foreign countries; In light of the aforementioned trends in the nationality law systems enforced in foreign states at the time of introduction of the provision of said paragraph, a certain reasonable relevance can be found between the provision that requires legitimation in addition to acknowledgment for granting Japanese nationality, and the legislative purpose mentioned above.25 Then, the scj held that it is no longer reasonable, in relation to the legislative purpose, to regard the fact of legitimation as an indicator to show the child’s tie with Japan because of the changes that have occurred since then, such as changes in views regarding family lifestyles and parent-child relationships, changes in the realities such as the increase in the number of children born out of wedlock, the increase in the number of children born to couples of Japanese citizens and foreign citizens, and the changes in legal systems of foreign countries and international human rights treaties. It seems that other states are moving toward scrapping discriminatory treatment by law against children born out of wedlock, and in fact, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which Japan has ratified, also contain such provisions to the effect that children shall not be subject to discrimination of any kind because of birth. Furthermore, after the provision of 25 Ibid.

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Article 3, para.1 of the Nationality Act was established, many states that had previously required legitimation for granting nationality to children born out of wedlock to fathers who are their citizens have revised their laws in order to grant nationality if, and without any other requirement, it is found that the father-child relationship with their citizens is established as a result of acknowledgement. In light of these changes in social and other circumstances at home and abroad, we should say that it is now difficult to find any reasonable relevance between the policy of maintaining legitimation as a requirement to be satisfied when acquiring Japanese nationality by making a notification after birth, and the aforementioned legislative purpose.26 The process of examining the constitutionality reveals that the majority opinion not only does a comparison between the present situations of Japan and foreign countries but also the situations of Japan and foreign countries when the legal amendment in question was legislated. It should be noted that the problem of the comparison done by the 2008 judgment is that it only refer to ‘foreign countries’ without mentioning specific countries. The dissenting opinion criticized the majority opinion by emphasizing the differences of circumstances between Japan and Western countries that it is inappropriate to directly take into consideration the trends in these foreign states in the process of examining the constitutionality of the provision in Japan. 3.2 The 2013 Decision as a Game Changer? The 2013 Decision is a breakthrough in terms of its use of foreign law and the international human rights treaty.27 In this decision the scj finally admitted unconstitutionality of the proviso to Article 900, item (iv) of the Civil Code, which concludes that the share of inheritance owed to a child born out of wedlock shall be one half of the share of the inheritance owed to a child born in wedlock (hereinafter this shall be referred to as the “Provision”) allowed unequal allocation of inheritance between the “legitimate” and “illegitimate” child. It was one of the few clear legal distinctions that remained in the Civil Code after World War ii. The 1946 Constitution necessitated large-scale legal reforms to make statutes compatible with the Constitution. Parts 4 (Relatives/ 26 Ibid. 27 scj (GB), judgment of 4 September 2013, 67(6) Minshu 1320. English translation is available at . See Ejima, A., “Emerging Transjudicial Dialogue on Human Rights in Japan” 14 MEIJI DAIGAKU HOUKA DIGAKUIN RONSHU [Meiji Law School Law Review] 139 (2014).

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Family) and 5 (Inheritance) of the Civil Code were largely replaced by new clauses, because the former clauses were founded on the traditional family system, which contradicts the new Constitution on the basis of respect for individuals and equality.28 Therefore, unconstitutionality of the Provision had already been discussed at the Diet (the legislature in Japan) when the above complete overhaul of the Civil Code was taken place. Since then, the issue has been fought at court while the Provision remained in the statute book.29 The previous precedent of the scj was the GB decision of 5 July 1995 (hereinafter the 1995 Decision).30 It ruled that the Provision cannot be regarded as going beyond the bounds of reasonable discretion vested in the legislature and that it therefore cannot be deemed to be in violation of Article 14, paragraph (1) of the Constitution. Thereafter, the Petty Bench (hereinafter PB) decisions of the scj followed the 1995 Decision.31 However, the question of constitutionality was not unanimous even in 1995. The 1995 Decision itself contained five dissenting opinions. Moreover, the following PB decisions on the similar cases were always accompanied by dissenting opinions. Why and how did the scj change the conclusion? It is necessary to compare the 1995 Decision and 2013 Decision to examine on what points they differ. Both decisions are based on the same criteria to decide the constitutionality, which was established by the precedent rulings. In short, the Constitution prohibits “discrimination not based upon reasonable grounds”.32 If the 2013 Decision is based on the same criteria but reaches a different conclusion, what accounts for this difference? The 2013 Decision emphasized that the matters to be considered (such as tradition, social conditions, and public sentiments) change with time. Therefore, the reasonableness of the rules should be ­subject 28 29

30 31 32

In the traditional family system, called Ie-seido (a patriarchal household), the eldest son inherits all of the household property and takes care of other members of the household, particularly his parents. An original draft of the present Article 24 of the Constitution of Japan, which protects equality between men and women, and contains some related protections, contained a clause to abolish discrimination against children born out of wedlock. It was drafted by an American woman whose main concern was the unequal and therefore deplorable status of Japanese women that she knew as she lived in Tokyo before wwii as a young girl. However, it was deleted because her boss of the ghq thought that the matter should be written in the Civil Code and that the Constitution should be general and concise. It was ironic that the Civil Code itself kept the discrimination for a long time and the scj could not change according to the Constitution until 2013. scj (GB), decision of 5 July 1995, 49(7) Minshu 1789. When the scj changes its precedent, a Petty Bench transfers the case in question to the GB (plenary court). scj (GB), judgment of 4 April 1973, 27(3) Keishu 265, 266.

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to constant examination and scrutiny in light of the Constitution, which provides individual dignity and equality under the law. What matters, then, does the scj examine? The scj lists eight factors:33 – Factor A: diversification of forms of marriage and family life, and peoples’ perceptions of marriage and family resulting therefrom; – Factor B: the legislative trends of other countries that have had an influence on the process of introducing the Provision in the past; – Factor C: international human rights treaties ratified by Japan, and criticisms raised by committees created under these treaties; – Factor D: changes in the legal system relating to the distinction between children born in and out of wedlock; – Factor E: preparatory legislative attempts to amend the Provision in 1979, 1996, and 2010; – Factor F: none of the factors, namely, wide prevalence of the attitude to respect legal marriage and the actual number of children born out of wedlock (23,000 in 2011) and the percentage of such children in Japan (2.2%) as compared to that in other countries, can be regarded as being directly associated with the reasonableness of the Provision; – Factor G: the existence of five dissenting opinions and concurring opinions each, suggesting a disappearance of reasonableness of the Provision in the 1995 GB Decision, as well as individual opinions to the same effect in the following PB decisions and judgments; and – Factor H: that the necessity to consider consistency with related provisions cannot be the reason for maintaining the Provision automatically. The supplementary nature of the Provision is not a material factor in judging its reasonableness. How does the scj weigh these factors? The scj reveals that none of the changes on various matters (from Factors A to H) associated with the reasonableness of the Provision can be the sole, decisive reason for judging the distinction of the Provision. Instead, the scj declared that by “putting all points mentioned above together, it must be said that even in consideration of the discretionary power vested in the legislative body, the distinction in terms of the statutory share in inheritance between children born in wedlock and children born out of wedlock had lost reasonable grounds by the time when the appellant’s inheritance commenced as of July 2001 at the latest.”34 If Factor A is not a decisive factor, Factors B and C should play a substantial role in reaching the conclusion of unconstitutionality. They are not merely supporting factors. 33 The 2013 Decision, supra note 27. 34 Ibid.

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Moreover, the scj declared that respect for individuals in a family has been recognized more clearly. “Even if the legal marriage system itself is entrenched in Japan, it is now impermissible, as a result of such change in the recognition, to cause prejudice to children by reason of the fact that their mother and father were not in a legal marriage when they were born—a matter that the children themselves had no choice or chance to correct. Rather, it can be said that a notion that all children must be given respect as individuals and that their rights must be protected has been established.”35 It must be noted that the scj does not specify the constitutional source for “respect as individuals” despite the fact that Article 13 of the Constitution clearly stipulates that “All of the people shall be respected as individuals.” It should be noted that instead of exploring and refining the argument based on human dignity and its related human rights, the scj looks to Factors B and C. Their significance is to be explored. As far as the use of foreign law and case law is concerned, the propensity to consult foreign law and case law largely depends on the legal history (or western legal history) of the country. If country X has been a forerunner and developed its laws on its own soil, it is not necessary for the country to consult foreign law. On the contrary, if country Y must introduce a set of laws (and a legal system as a whole) within a short period by urgent necessity due to modernization, independence or country rebuilding after war or civil war, or must completely transform the constitutional system, it is to look to foreign law as a precedent. It is also interesting to note that once country Y imports foreign law, for example, the laws of country X (law X) and its case law maintain influential status even after country Y switches to the laws of country Z (law Z).36 Japan is a good example of country Y. Japan first learned from Continental Europe (particularly France and Germany) from the mid-nineteenth century until World War ii, and then looked to the United States. Hence, comparative legal study about not only the laws of the United States but also European countries such as Germany and France has been active in Japan and continues to be today. It is necessary to point out the difficulty of Japan as an importer of foreign law and an exporter of Japanese law. Reading in English and other foreign languages is an extra burden for Japanese judges who currently face an already heavy workload. Another problem inherent of translation lies in the potential 35 36

Ibid. Emphasis is added by the author. Furthermore, the exporter–importer relationship can be described as “a relationship of subordination between the country borrowing and the country borrowed from, especially in the case of former colonial countries.” Christa Rautenbach, South Africa: Teaching an ‘Old Dog’ New Tricks? An Empirical Study of the Use of Foreign Precedents by the South African Constitutional Court (1995–2010), in Groppi and Ponthoreau, supra note 10, 185, 186.

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to create ambiguity or the danger of producing a different concept, which judges certainly want to avoid. On the other hand, who would read and cite Japanese case law written in Japanese? Recently, the scj started to publish an English translation of leading judgments and decisions on its website.37 This appreciated from the perspective of transjudicial dialogue.38 If obstacles to referencing are substantial for the scj, why does the 2013 Decision refer to specific foreign laws, while not relying on its usual methods? The history of legal transplanting presents a good reason. The 2013 Decision at first points out that during the deliberation of the amendment of the Civil Code at the Diet in 1947, the existence of laws in other countries at that time, which made a distinction in terms of the share in inheritance between children born in wedlock and children born out of wedlock was repeatedly argued as the grounds for supporting the consistency of the Provision with the Constitution. “This suggests that these laws of other countries had an influence on the process of introducing the Provision in the existing Civil Code.”39 Therefore, when the scj examines foreign law, which had an influence on introducing the Provision, legal abolishment in the United States and European countries presents more than a supporting reason to admit a violation of the Constitution. Furthermore, the scj cleverly chooses the examples of Germany and France, which kept discrimination when the scj ruled the 1995 Decision, but later eliminated it, noting that no western country retains a distinction. At the time when the 1995 Grand Bench Decision was rendered, among the major countries where such discrimination still existed, Germany enacted Erbrechtsgleichstellungsgesetz (Act on Equalization of Succession Rights) in 1998, and France enacted Loi n° 2001-1135 du 3 decembre 2001 relative aux droits du conjoint survivant et des enfants adulterins et modernisant diverses dispositions de droit successoral (Law No. 2001-1135 of December 3, 2001 on the Rights of the Surviving Spouse and Children Born out of Wedlock and Modernizing Various Provisions of Inheritance Law) in 2001, thereby eliminating discrimination in terms of the share in inheritance between children born in wedlock and children born out of wedlock. At present, among the United States and European countries, no country maintains a distinction in terms of the share in inheritance

37 (visited 1 June 2019). 38 More and more apex courts of the world provide English translation or summary of leading judgments on the website of their courts. 39 The 2013 Decision, supra note 27, 4.

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between children born in wedlock and children born out of wedlock, as Japan still does. Thus, such treatment can be said as being rare on a global scale.40 It can be safely deduced from the 2013 Decision and 2008 Judgment that if a foreign law influences the making or amending of Japanese law, later changes in that foreign law can provide an opportunity for the scj to reconsider the present Japanese law. Moreover, the scj attributes much importance to the change if a similar change has occurred in most western countries. As to the use of international law and case law, it is necessary to clarify the status of international law in Japan. The Constitution of Japan does not specify the status of international law within the Japanese domestic legal hierarchy. Section 1 of Article 98 prescribes that “This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity.” A treaty is not included in this Section. On the other hand, Section 2 of Article 98 provides that “The treaties concluded by Japan and established laws of nations shall be faithfully observed.”41 Presently, the majority view and Japanese government’s position is that the Constitution is superior to a treaty.42 The scj permits the possibility to review the constitutionality of a treaty.43 It is also an established view that a treaty is superior to a statute, and that international customary law is considered to have the same status as a treaty.44 Therefore, it is theoretically possible to find a statute in violation of a human rights treaty. In reality, the scj has been very reluctant to recourse to the international human rights treaty despite the fact that lawyers often refer to these treaties in court when they find a clearer and more detailed clause that would better support her or his argument. The typical attitude of the scj and of other lower courts with few exceptions is not to examine an international human rights treaty in detail, and to not rule that domestic law is in violation of a human 40 41

42 43 44

Ibid 5. The original draft of this section was proposed by the Ministry of Foreign Affairs, which believed it was important to sweep away past impressions of Japan that it did not observe treaties. See Takayanagi, K. et al., Nihonkoku Kenpou Seitei no Katei ii, Yuhikaku, 1972, 281 and 282. The Japanese government accepts the existence of jus cogens. This is the answer of the head of the International Legal Affairs Bureau, Ministry of Foreign Affairs at the Standing Committee on Foreign Affairs and Defence, 2 June 2009. scj (GB), judgment of 16 December 1959, 13 (13) Keishu 3225 (The Sunagawa Case). Kodera, A et al, Kogi Kokusaihou, Yuhikaku, 2010, 125.

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rights treaty. Instead, it is often declared that the treaty “should be regarded as having the same effect [of the Constitution]” or that “each statute in question cannot be considered as a violation of the treaty’ without reasoning.”45 However, the 2008 Judgment is again a herald for suggesting change at the scj. The scj referred to the International Covenant on Civil and Political Rights (iccpr) and the Convention on the Rights of the Child (crc) in addition to the legislative trends of other countries. The 2013 Decision advances further by referring to not only the names of international human rights treaties such as the iccpr and the crc but also to recommendations made by the Human Rights Committee (Committee of the iccpr, hrc) and the Committee on the Rights of the Child (ComRC), with explicit recommendation in the early concluding observation of the hrc in 1993, and last concluding observation of the ComRC in 2010, both of which call to eliminate the discriminatory legislation.46 It should be appreciated that the scj takes international opinions into account, which are provided periodically by international treaty bodies and which reflect changes in the international community. At present, there are comprehensive resources for international opinions because the Japanese government is obligated to submit reports to the Human Rights Council, Human Rights Committee, Committee on Economic, Social and Cultural Rights, Committee on the Rights of the Child, Committee on the Elimination of Discrimination against Women, Committee on Elimination of Racial Discrimination, Committee against Torture, Committee on Enforced Disappearance, and Committee on the Rights of Persons with Disabilities.47 Moreover, if Japan accepts the individual communication mechanism that some of the aforementioned committees provide, their views as an outcome of individual communications becomes important material for the scj, as they reflect similar judgments as those of international courts such as the European Court of Human Rights (hereinafter ECtHR) in that they are decided based on specific facts about the applicants. Taking into account the 2013 Decision, the scj can refer to the committees’ views even before Japan adopts the individual communication mechanism.

45 E.g., scj (PB), judgment of 3 March 1989, 43(2) Minshu 89 and scj (PB), judgment of 7 September 2000, 199 Shumin 283. 46 The 2013 Decision, supra note 27, 5–6. 47 Reporting status can be searched by country on the website of the Office of the High Commissioner for Human Rights .

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What kind of relationship exists between the aforementioned Factor B (foreign law) and Factor C (recommendation of international organizations) in the 2013 Decision? In the 2013 Decision, Factors B, and C appear rather ­complementary. In a general situation, however, which is more important in the scj’s reasoning, would foreign law or international law take precedence? In a situation where they are incompatible, which would precede? Theoretically, an international human rights treaty that Japan ratifies may take precedence as it binds Japan. On the other hand, foreign law is literally foreign, which does not bind Japan in any sense. However, what happens in reality is somewhat different. After all, the scj in the 2013 Decision picks up Factor B first and then goes to Factor C, instead of finding a violation of iccpr and/or crc. Factor B sounds more influential because of the connection between Japanese law and German and French law. This was confirmed by the 2015a Judgment (see 3.3). It should be noted the 2013 Decision contains an interesting interrelationship between foreign law and international case law. The legal revision of the French law, which the scj relies on as reasoning in the 2013 Decision, occurred because of judgments by the ECtHR, such as Marckx v. Belgium and Mazurek v. France. The ECtHR is a regional human rights court established by the ­European Convention on Human Rights that is comprised of 47 member states of Europe and 800 million people. Marckx v. Belgium is the leading case where the ECtHR found violations of Articles 8 (right to private and family life) and 14 (prohibition of discrimination) of the echr regarding the establishment of the maternal affiliation of a woman whose mother is unmarried, and the consequent weak legal bond to the woman’s inheritance rights and her mother’s family, as well as her mother’s degree of freedom in choosing how to dispose of her property.48 In this case, the ECtHR looked to the legal trends of other European countries.49 When the ECtHR decides whether there is objective and reasonable justification on the side of the respondent state, or rather, whether a wider margin of appreciation should be given to the state, it is useful to survey the general tendency of the law of Contracting States. On this point, another eloquent example is Christine Goodwin v. the United Kingdom concerning the rights of transsexual people. The ECtHR held that there had been a violation of Article 8 of the echr, owing to a clear and continuing international trend (not only in Europe but also Australia and New Zealand) towards increased social acceptance of transsexuals and legal recognition of the new sexual identity of 48 49

Marckx v. Belgium, judgment of 13 June 1979 (Plenary Court), Ser. A, No. 31. Ibid, para 41.

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post-operative transsexuals.50 Consequently, it changed from its previous position that had allowed a wider margin of appreciation to a Contracting State.51 This approach is reinforced in Mazurek v. France.52 The applicant, born of an adulterous relationship, had his entitlement to inherit reduced by half because a legitimated child also had a claim to their mother’s estate, according to the law in effect at that time. The Court noted a clear trend in Europe toward the abolition of discrimination concerning children in this applicant’s situation.53 These cases offer a few examples to illustrate the interrelationship between echr case law and foreign or comparative law. Presently, the judgment of the ECtHR contains not only international documents but also relevant foreign laws that do not necessarily limit the laws of member states of the echr. Particularly, when the ECtHR has to deal with a new issue, it often thoroughly reviews the relevant comparative and international materials. S. and Marper v. the United Kingdom presents an example of a case regarding the indefinite retention of the applicants’ fingerprints, cell samples, and dna profiles in a database after criminal proceedings against them have been terminated by an acquittal in one case and discontinued in another; the ECrHR deemed this a violation of the echr. In this case, the ECtHR includes not only relevant domestic law and materials (e.g., England and Wales, Scotland and Northern Ireland) but also relevant national and international materials covering the Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data, law, and practice in the Council of Europe member states, the directive of the European Union, case law of the Supreme Court of Canada and the crc.54 In other words, the ECtHR compares not only between foreign laws but also between foreign law and international law. The ECtHR’s affinity with comparative law is understandable as a regional human rights court, given that the ECtHR has to interpret an open-ended 50

Christine Goodwin v. the United Kingdom, judgment of July 11, 2002 (Grand Chamber), Reports 2002-VI, para. 84–85 and 93. 51 See Rees v. the United Kingdom, judgment of October 17, 1986, Series A no. 106; Cossey v. the United Kingdom, judgment of September 27, 1990, Series A no. 184; X., Y. and Z. v. the United Kingdom, judgment of April 22, 1997, Reports of Judgments and Decisions 1997II; and Sheffield and Horsham v. the United Kingdom, judgment of July 30, 1998, Reports 1998-V. 52 Mazurek v. France, judgment of February 1, 2000, Reports of Judgments and Decisions 2000-II. 53 Ibid., para 49. The Court requires “very weighty reasons” for different treatment on the grounds of birth out of wedlock. This is comparable to the “strict scrutiny” test in Japan. 54 S. and Marper v. the United Kingdom, judgment of December 4, 2008, Reports of Judgments and Decisions 2008.

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document which is considered a “living instrument” by the ECtHR itself. This is particularly true when the ECtHR addresses a new question such as the appropriate use of a dna database by police when there is no consensus among member states. ECtHR case law, therefore, is potentially influential for Japanese courts. I would like to return to the fact that the French legal revision, which was an scj reasoning (Factor B) in the 2013 Decision, was brought forth by the Mazurek judgment. This denotes an indirect but noteworthy dialogue between the Japanese Court and the ECtHR. Apart from the judicial dialogue, an extra-judicial dialogue can be also identified. Justices of the scj have a regular opportunity to visit the ECtHR and vice versa.55 On one of these occasions, former Justice Izumi visited the ECtHR and met with former President Costa in 2008. They exchanged views on the issue of legal discrimination of the child born out of wedlock, and Justice Izumi was informed of the European situation, wherein the discriminatory legislation had existed in France, Belgium, and Austria, but the national legislature had abolished it because of the judgments of the ­ECtHR.56 One may recall that Justice Izumi wrote a dissenting opinion twice in the scj PB decisions. More recently, Mr. Costa also visited the scj following retirement, meeting with a Justice at the scj. During their discussion the Justice spoke about the 2013 Decision, and mentioned the Mazurek case. Scrutiny of the 2013 Decision with the 2008 Judgment shows that dialogue between a national court and an international body (including a court in an indirect sense) does occur. This dialogue has the potential to create a sphere in which comparative and international considerations are hybridized to address a specific issue, such as the protection of the child born out of wedlock. 3.3 The 2015 Judgments as a Setback? In 2015 the scj had an opportunity to examine the constitutionality of two provisions of the Civil Code in separate cases, on which the UN human rights treaty bodies had expressed concerns and proposed recommendations. One is about the Article 733, paragraph (1) of the Civil Code, which prescribes a six-month period of prohibition of remarriage imposed on women only. The appellant claimed that the Article 733 violates Article 14, paragraph (1) and Article 24, paragraph (2) of the Constitution. The majority opinion of the scj held that the provision prescribing the prohibition of remarriage for a period exceeding 100 days cannot be justified as setting a period necessary 55 56

Wildhaber, L, the then President of the ECtHR visited the scj in 2003. Izumi,T., “Kongaishi Souzokubun Sabetsu Kitei no Iken Kettei to “Kojin no Songen”, (2013) 849 sekai 229, 231.

unconstitutional laws of foreign countries

unconstitutional (changed the conclusion of the 1995 decision)

2008

2013

Germany and France: Erbrechtsgleichstellungsgesetz (Act on Equalization of Succession Rights) in 1998, and Loi n° 20011135 du 3 decembre 2001 relative aux droits du conjoint survivant et des enfants adulterins et modernisant diverses dispositions de droit successoral (Law No. 2001-1135 of December 3, 2001 on the Rights of the Surviving Spouse and Children Born out of Wedlock and Modernizing Various Provisions of Inheritance Law)

n/a

constitutional

1995

foreign law

conclusion

recommendations of iccpr and crc

iccpr, crc

n/a

n/a

laws of foreign countries

European countries

n/a

iccpr, crc

iccpr, crc

foreign law

dissenting opinion

laws of foreign countreis no dissenting opinion

constitutional

unconstitutional laws of foreign countries

international foreign law international conclusion law law

concurring opinion

„„    Please provide in-text citation for Table 1 if needed.

marjority opinion

Use of foreign and international law

Year

Table 1

n/a

iccpr, crc

international law

820 Ejima

n/a

n/a

2015b constitutional

n/a

n/a

2015a partly Germany and France: the Child Law n/a unconstitutional Reform Act (put into effect in 1998) in Germany and the Reform Act of May 26, 2004 on Divorce (put into effect in 2005) in France.

n/a

n/a

refommendations of iccpr and cedaw

unconstitutional laws of foreign recommencountries, dation of particularly Ger- cedaw many, Thailand, Switzerland

fully laws of foreign unconstitutional countries and a judgment of the Constitutional Court of the Republic of Korea in 1997

Use of Foreign & Comparative Law by Supreme Court of Japan

821

822

Ejima

for avoiding confusion over paternity and violates Articles 14 and 24 of the ­Constitution (The 2015a Judgment).57 In order to reach this conclusion the majority opinion used the same reasoning which appeared in the 2008 Judgment and 2013 Decision as well as changes of society (development of medical and scientific technology and changes in family and marriage). They pointed out that when Article 733 of the Civil Code was legislated there were similar laws of foreign countries but the aforementioned foreign countries started to abolish the laws. Even specific German law and French law were named as examples again. On the other hand the majority opinion did not refer to international law or recommendations of human rights treaty bodies despite the cedaw gave recommendations several times. This confirms that the scj judges have more confidence and sympathy towards foreign law rather than international law because of long history of comparative legal study. It is interesting to note that Justice Yamaura who argued that a period of even 100 days was unconstitutional referred to a judgment of the Constitutional Court of the Republic of Korea in 1997 which admitted unconstitutionality of the similar law. Moreover, he also referred to recommendations of the cedaw. The other provision in question is Article 750 of the Civil Code which stipulates that a husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage. The appellant claimed that the Article violates Article 13, Article 14, paragraph (1), and Article 24, paragraphs (1) and (2) of the Constitution. However, the majority opinion held that it was not unconstitutional (2015b Judgment).58 The majority opinion did not referred to foreign law or international law despite that it is a general tendency of foreign countries to establish a system which allows women to keep their maiden name as their surname after their marriage. Moreover, the cedaw gave recommendations to suggest a legal reform in several concluding observations. On the contrary, dissenting opinion referred to foreign law and recommendations of the cedaw. The contrast between the majority opinion and dissenting opinion is exactly the one in the 1995 Decision. It were a clear setback if it was not accompanied by the 2015a Judgment which clearly cites the German and French law.

57 58

scj (GB), judgment of 16 December 2015, 69(8) Minshu 2427. English translation is available at . scj (GB), judgment of 16 December 2015, 69(8) Minshu 2586. English translation is available at .

Use of Foreign & Comparative Law by Supreme Court of Japan

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4 Conclusion Recent judgments and decisions show that the scj is ready to refer to foreign and/or international law when it is useful for the scj to strengthen their conclusion. On the contrary, when it is not, the scj does not refer to foreign or international law even though appellant takes recourse to it or international treaty bodies give clear recommendations. On the other hand dissenting opinions make use of foreign and/or international law in order to strengthen their opposition. It is too early to say the scj returns to the previous attitude (hidden use of foreign and comparative law and ignorance/indifference of international human rights treaties). At least three points can be addressed at present. Firstly, the use of foreign and international law by the scj is far from consistent. The use of international law, particularly international human rights treaties Japan ratified by courts should be more taken seriously as they legally binding the Japanese government including domestic courts. It is necessary for domestic judges and academics to bridge between constitutional norms and international norms in the sphere of human rights protection. Secondly, the present usage of foreign and international law by the scj (majority opinion) can be criticized as “cherry-picking” as it use foreign and/or international law only when they are useful in order to strengthen the conclusion of the majority opinion. Thirdly, taken into account the present worldwide situation (judicial dialogue) it is rather difficult and not wise for the scj to return to the previous attitude. Furthermore, if the scj wants to establish a true dialogue, it is necessary to re-consider a style of writing that can facilitate clear referencing and citation. Even when the scj cites its own case law, it only cites a case number and date. It does not specify which part of the judgment or decision it is concerning. It would greatly improve the clarity and convenience of dialogue if the scj introduced a paragraph number system.

Part 6 Latin America

∵

Foreign Law and Foreign Case Law before Latin American Constitutional and Supreme Courts Francesca Polacchini 1

Introduction. Preliminary Methodological Remarks on the Use of Foreign Law and Comparative Law by Courts

Considering the influence of foreign precedents in constitutional decisions is today one of the most important tools used in Latin American constitutional adjudication. The purpose of this essay is to establish the frequency and the extent to which Supreme Courts and Constitutional Courts in Latin America use foreign law and foreign precedents in constitutional decisions. In Latin America the use of foreign materials by Supreme/Constitutional Courts is a longstanding practice. Latin American constitutional culture is traditionally receptive to the use of foreign law and foreign case law. In this essay, ‘foreign law’ refers solely to legal sources which originate outside the specific national legal system, not to sources of international or supranational law that have acquired the status of national law. In the latter case, in fact, there is a source of law formally binding for the judge, therefore he must take it into account if it is relevant to the specific case. The reference made by judge to foreign law and case law usually encompasses the constitutional or legislative provisions of certain institutions and the foreign jurisprudence relevant to the question at the attention of the judge. Therefore, the foreign law usually includes the domestic legislation of a specific national legal system as well as the relevant case law.1 The concept of foreign law is different from the concept of comparative law and comparative method. A comparison consists in a comparative judgment made between several terms of comparison and not simply based on the law of a foreign legal system.2 With regard to the comparative methods used by constitutional judges, a distinction can be made between the exact reference to the case law of other countries and the implicit reference to consolidated case law, constitutional customs and comparative models that are not confined to a specific

1 Giuseppe de Vergottini, Oltre il dialogo tra le Corti 122 (2010). 2 Id. at 136.

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004297593_032

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legal system.3 The growing tendency among constitutional courts to take into consideration decisions made by other constitutional courts is part of a wider phenomenon, which is based on the use of foreign law by judges4 and which can be inscribed in the context of the increasing globalization of legal culture.5 Although the reference to decisions of other courts or to sources of foreign legal systems does not create any kind of constraints, it represents a powerful tool for the transnational circulation of legal ideas and for the harmonization of the rules of judgment concerning fundamental principles and protection of inviolable rights.6 As the challenges faced by the constitutional law expand beyond national boundaries, the activity carried out by domestic courts responsible for constitutional adjudication is more frequently inspired by the decisions of constitutional courts from other countries.7 In this context, the Latin American Courts represent a significant example of the large use of foreign law and case law in purely domestic disputes. 2

A Few Remarks on the Functions of Constitutional Courts and Supreme Courts in Latin America

Historically, there have been several constitutional adjudication models followed in Latin America. The lasting ties that have united Latin America with European legal culture are the result of the colonial experience and of the influence of liberal North American constitutionalism, and they have facilitated the development of heterogeneous solutions. For example, the development of the Mexican recurso de amparo is the result of the combination of legal tradition of the colonial period (i.e. the colonial amparo and the justicia mayor of the Kingdom of Aragón) and elements of the French constitutional tradition (i.e. political defense of 3 Paolo Ridola, La giurisprudenza costituzionale e la comparazione, in Il giudice e l’uso delle sentenze straniere. Modalità e tecniche della comparazione giuridica (Guido Alpa ed., 2006). 4 Basil Markesinis and Jörg Fedtke, Judicial Recourse to Foreign Law. A New Source of Inspiration? (2006); Guy Canivet, Mads Andenas and Duncan Fairgrieve (eds.), Comparative Law Before the Courts (2004). 5 Michele Taruffo, Precedente e giurisprudenza 34 (2007). With reference to globalization of constitutional law see: Mark Tushnet, The Inevitable Globalization of Constitutional Law, 09-06 Harvard Public Law Working Paper, 2008, https://papers.ssrn.com/sol3/papers .cfm?abstract_id=1317766; Anne Marie Slaughter, Judicial Globalization, 40 Virginia Journal of International Law (2000). 6 Taruffo, supra note 5, at 35. 7 Michel Rosenfeld and András Sajó, Constitutionalism: Foundations for the New Millennium, in New Millennium Constitutionalism: Paradigms of Reality and Challenges 20 (2013).

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the Constitution, responsibility of the elected) as well as of the North American and English traditions (i.e. judicial review and habeas corpus).8 Even presently it is possible to observe a wide variety of constitutional adjudication features existing in the different regions of Latin America.9 The Latin American system of constitutional justice is characterized by the heterogeneity of experiences which make such a system a real constitutional patchwork. Depending on the body that performs centralized constitutional review, the countries can be classified in different groups. There are regions where the constitutional adjudication is carried out by a Constitutional Court. In this context, some Constitutions place the Constitutional Court within the judicial power (Bolivia and Colombia) whereas others qualify the Constitutional Court as a body outside the judiciary (Chile, Ecuador, Guatemala and Peru). In addition, there are countries where a centralized review is carried out exclusively by the Supreme Court (Argentina, Brazil, Honduras, Mexico, Panama and Uruguay) or by the Constitutional Chamber of the Supreme Court (El Salvador, Cosa Rica, Paraguay, Nicaragua, Venezuela).10 The centralised system coexists with a decentralized control of judicial review. Therefore, across the region it is possible to find different mixed systems of constitutional adjudication, which rely on centralized judicial review concurring with judicial review powers in 8

9 10

Giancarlo Rolla, Il processo di ibridazione dei sistemi accentrati di giustizia costituzionale. Note di diritto comparato, in Estado constitucional, derechos humanos, justicia y vida universitaria. Etudios en homenaje a Jorge Carpizo. iii (Miguel Carbonell, Héctor Fix-Fierro, Luis Raul Gonzales Pérez and Diego Valadés eds., 2015). Patricio Navia and Julio Ríos-Figueroa, The Constitutional Adjudication Mosaic of Latin America, 38 Comparative Political Studies 190 (2005). Domingo García Belaunde, Francisco Fernández Segado, and Rubén Hernández Valle, Los Sistemas Constitucionales Iberoamericanos (1992); Francisco Eguiguren Praeli, Los tribunales constitucionales en Latinoamérica: Una Visión Comparativa (2000); Francisco Fernández Segado, La jurisdicción constitucional en America latina (2000); Eduardo Ferrer Mac-Gregor, Los tribunales constitucionales en Iberoamérica 65 (2002); H. Nogueira Alcala, Los Tribunales constitucionales de sudamèrica a principios del siglo xxi, 2 Ius et praxis (2003); Luca Mezzetti, Modelli di giustizia costituzionale e controllo di costituzionalità in America latina, in Corti nazionali e comparazione giuridica (Giuseppe F. Ferrari and Antonio Gambaro eds., 2006); Giancarlo Rolla, La tutela diretta dei diritti fondamentali da parte dei tribunali costituzionali in America latina, in Corti nazionali e comparazione giuridica (Giuseppe F. Ferrari and Antonio Gambaro eds., 2006); Justin O. Frosini and Lucio Pegoraro, Constitutional Courts in Latin America: A Testing Ground for New Parameters of Classification, 2 The Journal of Comparative Law (2009); Humberto Nogueira Alcalá, El Derecho Procesal Constitucional a Inicios del Siglo xxi en América Latina (2010); Luca Mezzetti, L’America latina, in Diritto costituzionale comparato (Paolo Carrozza, Alfonso Di Giovine and Giuseppe F. Ferrari eds., 2014); Raul A. Sanchez Urribarri, Between Power and Submissiveness: Constitutional Adjudication in Latin America, in Comparative Constitutional Law in Latin America 279 (Rosalind Dixon and Tom Ginsburg eds., 2017).

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the hands of the judiciary as a whole.11 In many countries, a mix of centralized and diffuse systems of judicial review has been adopted with the aim that both can function simultaneously.12 In a diachronic perspective, the first model of constitutional adjudication to be transplanted in Latin America was the political review, exported by Continental constitutional tradition.13 In the historical phase immediately following the conquest of independence, the competence of overseeing the observance of constitutional norms was reserved to internal legislative bodies (see, for example, the political Constitution of Bolivia of 1826, of Costa Rica of 1821, of Brazil of 1824, of Peru of 1823 and of Mexico of 1836) or consultative bodies such as the Council of State (for example, the Ecuadorian Constitution of 1851).14 By the mid-19th Century the judicial model of the United States has been imported from country to country.15 Some countries began exclusively with a decentralized system of constitutional review and then later integrated it with a centralized system (Mexico and Brazil), while others from the very beginning adopted a hybrid system (Venezuela, Colombia, Guatemala and Peru).16 Argentina is the only country that has always had and still has a system of judicial review similar to that of the United States. As in the United States, early Latin American Constitutions did not include provisions for judicial review, but the practice of constitutional adjudication evolved from what some judges 11

12 13

14

15 16

Osvaldo A. Gozaini, La justicia constitucional (1994); Allan Brewer-Carias, Instituciones Politicas Y Constitucionales, vi, Justicia Constitucional (1996); Domingo García Belaúnde, Francisco Fernández Segado, La Jurisdicción constitucional en Iberoamérica (1997); Francisco Fernández Segado, La justicia constitucional: una visión de derecho comparado (2009); Héctor Fix Zamudio, Salvador Valencia Carmona, Derecho constitucional mexicano y comparado (2010); Juan M. Lopez Ulla (ed.), La justicia constitucional en Iberoamerica. Chile, Bolivia, Colombia y Cuba (2011); Sanchez Urribarri, supra note 10, at 278. Allan R. Brewer-Carías, La jurisdicción constitucional en América Latina, in La jurisdicción constitucional en Iberoamérica 123 (Domingo García Belaúnde and D. Fernández Salgado eds., 1997). Francisco Fernández Segado, El Control de constitucionalidad en Latinoamérica: del control político a la aparición de los primeros Tribunales Constitucionales, 52 Derecho pucp. Revista de la Facultad de Derecho 409, 1999, http://revistas.pucp.edu.pe/index.php/ derechopucp/article/view/6410. Giancarlo Rolla, Il processo di ibridazione dei sistemi accentrati di giustizia costituzionale. Note di diritto comparato, in Estado constitucional, derechos humanos, justicia y vida universitaria. Etudios en homenaje a Jorge Carpizo. iii (Miguel Carbonell, Héctor Fix-Fierro, Luis Raul Gonzales Pérez and Diego Valadés eds., 2015). Francisco Fernández Segado, La Jurisdicción constitucional en América latina. Evolución y problematica desde la indipendencia hasta 1979, in Derecho procesal constitucional 149– 154 (Eduardo Ferrer Mac-Gregor ed., 2006). Frosini and Pegoraro, supra note 10, at 45.

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c­ onsidered to be implicit in the Constitution, the power of the judiciary to check constitutionality.17 In the context of judicial review, Latin American Courts potentially exercise two basic modes of constitutional control. The first involves judges arbitrating interbranch or intergovernmental disputes; the second involves judges interpreting the scope of individual or human rights and the constitutional adjudication.18 With the exception of Colombia, Dominican Republic and Panama, all the Latin American Constitutional or Supreme Courts also have the power to resolve jurisdictional disputes. In these cases, the Supreme or Constitutional Courts not only act as guardians of the Constitution, but also as super partes arbiters. Some courts have impeachment powers. For example, the Federal Supreme Court of Brazil judges the ordinary crimes of the President, Vice-President, Members of the Congress and Ministers, the Supreme Court of Justice of the Dominican Republic judges crimes committed by the President, Vice-­ President, Deputies, Senators and Secretary of State and, finally, in Venezuela the Supreme Court of Justice judges the impeachment of the President.19 Therefore, the two main functions exercised by Supreme or Constitutional Courts are judicial review and resolution of disputes between powers. 3

Reception of Foreign Law and Horizontal Judicial Dialogue in Latin America

The highest courts in Latin America are faced with significant changes under the effects of globalisation. The evolution of legal systems and the activity carried out by foreign courts are increasingly interconnected. These interconnections have brought an increasing number of cases with international and foreign aspects before the courts.20 In particular, Latin American Supreme/ Constitutional Courts have developed a dual process: a process of ‘reception’ of foreign law and a process of horizontal judicial dialogue. ‘Reception’ describes the unilateral use of foreign law and foreign decisions by a court.21 By contrast, 17 18 19 20 21

Roberto Gargarella, Discutiendo el constitucionalismo hispanoamericano, 9 Política y Gobierno (2002). Gretchen Helmke and Julio Ríos-Figueroa, Introduction: Courts in Latina America, in Courts in Latin America 7 (Gretchen Helmke and Julio Ríos-Figueroa eds., 2011). Frosini and Pegoraro, supra note 10, at 51. Elaine Mak, Judicial Decision-Making in a Globalised World. A Comparative Analysis of the Changing Practices of Western Highest Courts (2013). Alan Watson, Legal Transplants (1993); De Vergottini, supra note 1, at 20.

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‘judicial dialogue’ describes the mutual consideration of case law and legal material by courts. The process of communication and exchange between the different Latin American Supreme/Constitutional Courts may be defined as ‘judicial dialogue’ − as opposed to ‘reception’ − since it occurs in multiple directions and it is characterized by the voluntary embracing of external reasoning patterns.22 In particular, the horizontal dialogue in Latin America is facilitated by cultural, linguistic and legal similarities, and by the ongoing regional processes of political integration. These elements support not only the borrowing of legal provisions but also the constant communication among the courts.23 The reception, on the contrary, is the result of the influence exercised unilaterally by other legal systems and foreign courts. The influence of the Spanish, Portuguese (in the case of Brazil) and US constitutions was particularly important in the development of constitutionalism in Latin America in the first years following the independence in the nineteenth century. In some cases, this influence is still significant. The phenomenon of the reception has its roots in the tendency to use the Constitution of the United States as a model for the early Latin American constitutions. Indeed, the constitutional law of the Latin American countries has been heavily influenced by the US constitutional law (see, for example, essential aspects of the Latin American constitutionalism such as the federal State, the presidential government and, above all, the establishment of a supreme court modelled on the US Supreme Court).24 The influence exercised by the political ideas of the United States in the region can be found in the constitutional preambles, in implanted constitutional rigidity, in the concept of separation of powers, and in experiments with judicial review.25 With regard to the judicial review, the countries of this region tried to duplicate the U.S. experience. As Allan Brewer-Carías wrote: “The constitutional system of the United States influenced many of the Latin American systems to adopt, during the nineteenth century, the diffuse system of judicial review”.26 However, the Latin American doctrine, lacking common law traditions, could not adopt the U.S. decentralized system of judicial ­review in its pure form, namely the one rooted in the concept of stare decisis. 22 23 24 25 26

Michael Freitas Mohallem, Horizontal Judicial Dialogue on Human Rights, in Judicial Dialogue and Human Rights 68 (Amrei Muller ed., 2017). Id. at 68. Marie-Claire Ponthoreau, Foreign Precedents in Constitutional Litigation, in General Reports of the International Academy of Comparative Law (Martin Schauer and Bea Verschraegen eds., 2017). Rett R. Ludwikowski, Latin American Hybrid Constitutionalism: The United States Presidentialism in the Civil Law Melting Pot, 34 Boston University International Law Journal 21, 29 (2003). Allan R. Brewer-Carías, Judicial Review in Comparative Law 156 (1989).

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­ evertheless, rather than attempting to adopt the prevailing European model N of abstract and centralized review, the Latin Americans decided to experiment with a mixed model incorporating elements of decentralized and centralized review blended with the concept of acts being not-applicable, or voidable, but not entirely nullified.27 4

Constitutional Borrowing: The Emblematic Example of Argentina

Latin American constitutional traditions have their roots in the United States constitutional law. The United States Constitution has played a very significant role in the establishment and development of constitutional orders in Latin America, serving as a model in drafting Latin American constitutions.28 At the same time, even United States constitutional commentators and the opinions of United States Supreme Court Justices found their place in the decisions of Latin American Supreme Court judges. As Vicki Jackson has highlighted, constitutions are documents associated with individual national histories and charged with peculiar political and social goals. However, not all constitutions develop insulated from foreign influence. On the contrary, there are constitutions that are explicitly developed with the influence of other constitutional documents.29 Once established, these constitutions may be more receptive to the law and case law construed in the ‘exporter’ state.30 In general, in fact, borrowing of precedents is more frequent when there has been a prior transplantation of constitutional texts.31 Argentine constitutional experience represents an emblematic example of this phenomenon. United States constitutional law can be defined as “talisman” in Argentine history. Remarkably, Argentina offers an example not only of the adoption of a foreign constitutional model, but also of the foreign model quickly becoming an article of faith, thereby increasing the legitimacy of the Argentine Constitution and the stability of Argentine political life.32 27 Ludwikowski, supra note 25, at 49. 28 Matthew C. Mirow, Latin American Law: A History of Private Law and Institutions in Spanish America 108 (2004); Angel R. Oquendo, Latin American Law 130 (2006). 29 Vicky Jackson, Constitutional Engagement in a Transnational Era 20 (2013). 30 Carlos F. Rosenkrantz, Against Borrowings and Other Nonauthoritative uses of foreign law, 1, 2 I.Con 273 (2003). 31 Horacio Spector, Constitutional Transplants and the Mutation Effect, 83 Chicago-Kent Law Review (2008). 32 Jonathan M. Miller, The Authority of a Foreign Talisman: A Study of U.S. Constitutional Practice as Authority in Nineteenth Century Argentina and Argentine Elite’s Leap of Faith, 46 Am. U. L. L. Rev. 1483, 1485 (1997).

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As Sarmiento in Comentarios asserted, Argentina should treat U.S. constitutional case law as controlling authority: “[H]aving adopted the organization of the federal Supreme Court of the United States we must adopt its attributions and its case law.”33 The importance of the U.S. Constitution as a source of authority emerged again and again throughout the nineteenth century. The most important institutional issues at stake, such as federalism, the question of powers of local government and if the federal government could exercise authority within the City of Buenos Aires, all of which were dealt with taking into account the U.S. Constitution.34 At the origin of the constitutional history of the country was the idea that substantive interpretations of the U.S. Constitution should be binding in Argentina. In the lack of institutions already able to offer authoritative interpretations of the constitutional text, some authors insisted that U.S. Constitutional case law should be binding on Argentine courts. Precisely Sarmiento claimed “North American constitutional law, the doctrine of its statesmen, the declarations of its tribunals, the constant practice in analogous or identical points are authority in Argentine Republic and can be alleged in litigation, … and adopted as genuine interpretation of our own Constitution”.35 The Argentine experience in constitutional transplantation started with the drafting of the Constitution, enacted in 1853 and put into full force in 1860. The drafter of the Argentine Constitution, Juan Bautista Alberdi, borrowed extensively from the American Constitution in order to carry out the Pampas Madison’s political and economic program.36 The transplantation of constitutional texts led to the borrowing of constitutional precedents. From the 1880s to the mid-1890s, the Argentine Supreme Court used American precedents as authoritative sources to legitimize its decisions.37 Although Argentina had two constitutions in the early 19th century that were not inspired by the U.S. Constitution, the Constitution of 1853 was explicitly inspired by the American

33

Domingo F. Sarmiento, Comentarios de la Constitución de la Confederación Argentina de 1853 (1929). 34 Rosenkrantz, supra note 30, at 273. 35 Domingo F. Sarmiento, supra note 2, at 59. 36 Horacio Spector, Constitutional Transplants and the Mutation Effect, 83 Chicago-Kent L. Rev. 132 (2008). 37 Jonathan M. Miller, supra note 32, at 1483, 1546; see also Jonathan M. Miller, Judicial Review and Constitutional Stability: A Sociology of the U.S. Model and its Collapse in Argentina, 21 Hastings Int’l & Comp. L. Rev. 77, 79 (1997).

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model in hopes that the constitutional system would create the same kind of political and economic success that the Americans had.38 5

The Use of Foreign and Comparative Law by Latin American Constitutional and Supreme Courts

Comparative law has a crucial role in Latin America. Despite the legal culture of Latin America being based on the Roman-Germanic tradition, Supreme courts and Constitutional courts present an established practice of explicit foreign case law citation. In this perspective, Latin America could be qualified as a ‘comparativist’s dream’.39 In Latin America there is a long-standing tradition of reference to foreign constitutional provisions, case law and doctrine. Although the influence of the United States has prevailed for a long time, especially by virtue of the strong influence of its constitutional model on the origins of Latina American constitutionalism, European constitutional law and case law are increasingly invoked. More recently, German constitutionalism, in particular, has exerted significant influence.40 In detail, the reception of foreign legal materials may play two distinct roles in legal argumentation of Latin American courts. On the one hand, courts borrow from foreign material an obiter dictum, an incidental remark, which is not essential to the ruling and plays an accessory or ornamental role in legal argumentation. In this hypothesis, references to foreign constitutional provisions, case law and doctrine are an expression of erudition, without relevant links to the merit of the case in question. On the other hand, sometimes the courts use foreign material as it were a compelling argument.41 Judges can use these borrowings as inspiration for a ruling, which is the conclusion of a legal argument, or as ratio decidendi, which is the reasoning that provides justification for an original solution.42 In the following paragraphs, key decisions of several Latin American Supreme and Constitutional courts will be analyzed. This examination will testify 38 39 40 41 42

Carlos F. Rosenkrantz, supra note 30, at 270, 273 (2003). Keith S. Rosenn, Teaching Latin American Law, 19 The American Journal of Comparative Law (1971). Marcelo Neves, Transconstitutionalism (2013). Basil Markesinis and Jorg Fedtke, The Judge as Comparatist 16–17 (2005). Tim Koopmans, Comparative Laws and the Courts, 45 The International and Comparative Law Quarterly (1996).

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the large use of comparative law and foreign case law by the main courts of the region. More specifically, the experience of Argentina, Brazil, Mexico and Chile will be taken into consideration, as the courts of these countries are the ones that most frequently refer to extra-domestic legal sources and case law. Comparative and Foreign Law in Action: The Supreme Court of Argentina In spite of the fact that the Argentine legal system is a Romano-Germanic one, its Supreme Court frequently cites foreign precedents and, more specifically, U.S. case law. Because the Argentine Constitution followed the constitutional model of the United States, the influence of U.S. Supreme Court precedents is strongest in the field of constitutional relations. In civil and commercial cases, the courts consult rulings of French, German and Italian courts more often because these countries have impacted the codification of Argentine legislation.43 Since its establishment, in 1863, the Supreme Court has felt obliged to make references, in an argumentative key, to the United States Supreme Court decisions, in consideration of the strong similarity of the Argentine Constitution to the Constitution of the United States.44 The use of foreign law by the Supreme Court has been quite frequent, especially in constitutional issues, because the 1853 Argentina’s Constitution was inspired and modelled after the United States Constitution.45 Until the 1930s, the Supreme Court of Argentina applied U.S. precedent as one of the means of constitutional interpretation, especially in cases involving freedom of the press, freedom to engage in commercial activity and property rights.46 According to Professor Jonathan Miller, “The nineteenth century experience of Argentina with the U.S. Constitution shows that not only may rules from transplanted constitutional models take root, but that such rules may enjoy extra authority because of the prestige of the foreign model”.47 Indeed, it is possible to identify three stages in the use of foreign precedents by the Supreme Court of Argentina: between 1863 and 1903, the Court made 5.1

43

Peter Roudik, Comparative Summary, in The Impact of Foreign Law in Domestic Judgments, 2010, https://www.loc.gov/law/help/domestic-judgment/index.php. 44 Jorge A. Amaya, El diálogo inter-jurisdiccional entre tribunales extranjeros e internos como nueva construcción de las decisiones judiciales, in Diálogo entre Cortes 67 (Luca Mezzetti and Luiz G. Arcaro Conci eds., 2015). 45 Graciela Rodriguez-Ferrand, Argentina, in The Impact of Foreign Law in Domestic Judgments, 2010, https://www.loc.gov/law/help/domestic-judgment/index.php. 46 Jonathan M. Miller, Judicial Review and Constitutional Stability: A Sociology of the U.S. Model and its Collapse in Argentina, 21 Hastings Int’l & Comp. L. Rev. 77, 79 (1997). 47 Miller, supra note 37, at 1483.

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extensive use of American precedents, which had binding force; between 1903 and 1994, American precedents had only a persuasive value but were used extensively; from 1994 to date, the use of foreign (and particularly American) precedents has been in decline, with an increase in the use of international human rights treaties to which the Constitution – as emended in 1994 – conferred constitutional value.48 Today, the observation of citations of foreign court decisions by the Argentine Supreme Court as an additional argument of the judge’s decision is still quite frequent. It is a way of strengthening the conviction in the interpretation offered by the domestic judge. This encompasses a comparative analysis between Argentine and foreign law which demonstrates that such a reception by the court is possible.49 5.1.1

The Reference to Comparative Law and Foreign Case Law in the Argentine Supreme Court Jurisprudence The Argentine constitutional tradition was founded on the model of the U.S. Constitution and on its interpretations by the U.S. Supreme Court, which historically had a high authority degree on Argentine constitutional law.50 From the outset, Argentina’s Supreme Court has systematically referred to United States Supreme Court case law and United States legal doctrine when interpreting the Argentine Constitution, a tradition that continues today.51 In a chronological perspective, the cases De la Torte, Acevedo, and Sojo, all concerning habeas corpus actions brought before the Supreme Court by journalists detained by order of the Congress, must be mentioned. In case De la Torre (1877), the Supreme Court addressed the power of Congress to imprison a journalist for having reported on a secret session. The Court asserted that “the system of government which rules us is not of our own creation. We found it after it had long years of practice, and we appropriated it. Rightfully it has been said that one of the main advantages of this appropriation has been the vast body of doctrine, practice and jurisprudence which illustrate and complement the fundamental rules that we can and ought to use in everything which we have not decided to change with specific constitutional provisions”. The 48 49 50 51

Marie-Claire Ponthoreau, Foreign Precedents in Constitutional Litigation, in General Reports of the International Academy of Comparative Law (Martin Schauer and Bea Verschraegen eds., 2017). Patricia Marcela Casal, Recepción Del Derecho Extranjero Como Argumento: Derecho Comparado (1997). Ganesh Sitaraman, The Use and Abuse of Foreign Law in Constitutional Interpretation, Harvard Law School Faculty Scholarship Series, Paper 23 (2008). Jan Kleinheisterkamp, Comparative Law in Latin America, in The Oxford Handbook of Comparative Law 269 (Mathias Reimann and Reinhard Zimmermann eds., 2006).

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Argentine Supreme Court took its decision on the basis of U.S. law. The Argentine Court noted that in the U.S. case of Anderson v. Dunn (1821), the Supreme Court held that Congress could imprison or fine an individual on the basis of its contempt powers. Therefore, following U.S. Supreme Court case law meant the creation of a new Argentine practice-detentions ordered by a House of Congress. In the case Acevedo (1885), the Argentine Supreme Court ruled that Congress could not hold a journalist in contempt for defaming a member of ­Congress, because such defamation was penalized under federal criminal law. The existence of a criminal statute penalizing defamation of a member of Congress meant that Congress had granted jurisdiction over defamation to the courts. Therefore, the Congress could not exercise jurisdiction itself. Unlike in de la Torre, the Court in Acevedo did not explicitly focus on U.S. practice. The Argentine Supreme Court, however, was aware that its opinion was at least generally consistent with the most recent trends in U.S. law that took a restrictive view of Congress’ contempt power. Therefore, a comparative silent practice was adopted. In case Sojo (1887), the Supreme Court annulled Article 20 of Law 48, which granted original jurisdiction to the Supreme Court to hear habeas corpus cases. The Court affirmed that the Constitution prevented such expansion of its original jurisdiction, citing U.S. precedent. However, the Argentine Constitution does not prohibit the expansion by the Congress of the original jurisdiction of the Supreme Court. In addition, the decision is not consistent with the Supreme Court’s precedents (de la Torre, Acevedo). The only explanation for the decision in Sojo case was, as Miller suggested, that the Court followed Marbury vs Madison, in which the Supreme Court affirmed that the original jurisdiction cannot be exercised when not explicitly authorized by the U.S. Constitution.52 The decisions made in de la Torre, Acevedo, and Sojo not only illustrate the Argentine Court’s willingness to follow U.S. case law, but also, in Sojo, to put its own precedents aside in order to follow U.S. law.53 The judicial borrowing of the US economic emergency doctrine represents a further significant example of the influence of U.S. case law on the Argentine Supreme Court. During the 1920s and 30s, the Argentine Supreme Court transplanted the doctrine of economic emergency from the U.S. Supreme Court as a tool for the interpretation of the Argentine Constitution.54 In the landmark 52 Miller, supra note 37, at 1547. 53 Miller, supra note 37, at 1559. 54 Narciso J. Lugones, Alberto F. Garay, Sergio O. Dugo and Santiago H. Corcuera, Leyes de emergencia: decretos de necesidad y urgencia (1992); William C. Banks and Alejandro D. Carrió, Presidential Systems in Stress: Emergency Powers in Argentina and the United States, 15 MICH. J. INT’L L. 1 (1993); Alberto F. Garay, Federalism, the Judiciary, and Consti-

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decision Avico v. de la Pesa (7 December 1934), the Court upheld the constitutionality of a law passed in 1933 that established a three-year moratorium on mortgage payments and foreclosures, and capped the interest rate at six percent. This decision transplanted the U.S. doctrines in Nebbia v. New York and Home Building & Loan Ass’n v. Blaisdell. As it is known, in Blaisdell a Minnesota statute imposed a limited moratorium on the fore closure of mortgages. In Avico, Attorney General Horacio L. Larreta created a constitutionality test using the requirements imposed in Blaisdell. The test is based on four conditions: an emergency situation; the fundamental purpose of the measure must be the safeguard of the public interest and the promotion of general welfare to the people; the postponement of mortgage foreclosure sales must be reasonable; and, finally, the change in legislation must have been provided in a temporary manner.55 In this context, it is interesting to note how the Argentine Supreme Court defended the borrowing of U.S. precedents in Avico: “Our Constitution, in adopting to a great extent the principles of the Constitution of the United States of America, has given us the great advantage, among others, of putting at our disposal the wise interpretation of their Supreme Court with respect to the principles that we have adopted. The guarantee to property established in Article 17 of the National Constitution has its antecedent in the Amendments to the American Constitution. It is then of the utmost interest to study how the American Supreme Court has construed the nature, extension and limits of this guarantee, with the purpose of also adopting it, if its foundations are reasonable, as the most authentic and wise interpretation of the principle that we have adopted in our own Constitution”. The Avico Court’s borrowing of the emergency paradigm was subsequently used as a support to uphold the constitutionality of emergency decrees in financial crisis of 1989. Before implementing the Convertibility Plan, President Menem issued Decree 36/90, which converted time deposits into public bonds. The clear aim of the measure was to reduce the burden of the increasing internal public debt. In the famous Peralta v. Nación Argentina decision (27 December 1990), the Supreme Court acknowledged the constitutional validity of Decree 36/90 by invoking the doctrine used by the U.S. Supreme Court in Blaisdell, which had been transplanted into Argentine law various decades earlier in Avico.56

tutional Adjudication in Argentina: A Comparison with the U.S. Constitutional Model, 22 U. Miami Inter-Am. L. Rev. 161, 162 (1991); Carlos F. Rosenkrantz, supra note 30, at 269 (2003); Horacio Spector, Constitutional Transplants and the Mutation Effect, 83 Chicago-Kent Law Review (2008). 55 Spector, supra note 54. 56 Spector, supra note 54.

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As the aforementioned case law has shown, the Supreme Court of Argentina frequently turned to constitutional doctrine and case law from the United States to interpret its own Constitution, and still regularly does so today.57 U.S. law is not the only persuasive authority from abroad. A significant example is offered by decision 15 October 1998, in which the Supreme Court makes a reference to Colombian, Brazilian and German constitutional law, in addition to that of the United States.58 On the question of whether someone condemned in absentia could be extradited, the judges also, apart from U.S. law, referred in some detail to English, Italian, French and German law, as well as to the case law of the European Court of Human Rights.59 In a recent decision (7 July 2015), the Supreme Court referenced the Italian Court of Cassation (case Englaro), Indian Supreme Court (case Aruna Ramchandra Shanbaug v. Union of India & Ors.) and French Council of State (case Mme. F.I. et autres), in order to qualify the hydration and nutrition as a medical treatment that can be refused by the patient. In a case concerning internet search engine responsibility, the Supreme Court relied on the directive 2000/31 of the European Community, the legislation of Chile, Brazil, Spain and the U.S. Communications Decency Act in order to support the exclusion of the responsibility of Google and Yahoo for having not monitored the contents entered by thirds parties (Decision 28 October 2014). 5.1.2 Argentine Supreme Court Comparative Law Research Division The relevance that foreign law and foreign case law has for the Supreme Court is testified by the creation in 1922 of the Comparative Law Research Division (Secretaría de Investigación de Derecho Comparado). This Division was created within the Supreme Court Library to provide to the Supreme Court research services on foreign and comparative court decisions, scholarly works, and legislation. The mission of the division aims to provide not only reference, but also research in foreign and comparative law. To this end, the court renamed it the Instituto de Investigaciones y de Referencia Extranjera (Foreign Research and Reference Institute) in 2009. The Institute provides translations, reference services and publications of relevant foreign courts decisions, the acquisition and cataloguing of foreign legal periodicals, the issuance of a semi-annual 57 Kleinheisterkamp, supra note 51. 58 Urteaga, Facundo Raúl vs Estado Nacional – Estado Mayor Conjunto de las FF.AA (1998). 59 Nardelli, Pietro Antonio s/ extradición (1996).

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­ ublication and offering these materials in a digital format or online platform p as widely as possible.60 Some Brief Remarks on the Influence of the United States Constitution on Brazilian Constitutional Context The degree of authority of foreign law is certainly a striking feature of Latin American Courts in general, and of the Brazilian Federal Supreme Court in particular.61 The cosmopolitan attitude of Brazil’s Supreme Court has its roots in a long history. To some extent, the nature and origins of the overall legal and constitutional system has played a part. Brazil’s legal system is rooted in the Roman civil law tradition of Portugal, with significant borrowings mainly from European sources. In particular, the content and form of Brazil’s numerous legal codes is similar to that of various European countries in the civil law tradition; the current Civil Code of 2002, and the 1916 Code which it replaced, owes much to the French Code Civil, while the current penal code has been strongly influenced by its German counterpart, the Strafgesetzbuch.62 Brazilian constitutional law and practice are also rooted in the Western tradition, albeit more American than European. The Imperial Constitution of 1824 is said to have been largely influenced by European constitutional law, including but not limited to the Cadiz Constitution of 1812, the French Constitution of 1814 and English constitutional laws and mores.63 With the advent of a republican state in 1889, the framers of the 1891 Constitution firmly “hitched Brazil’s political wagon to the stars and stripes”, and United States constitutional law and practice became the dominant influence.64 This is particularly evident from the structure of the federal state and the organs of state, with a U.S.-style separation of powers comprising the executive, legislative (Congress) and judicial branches. 5.2

60 61 62

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Graciela Rodriguez-Ferrand, Argentina, The Impact of Foreign Law in Domestic Judgments, 2010, https://www.loc.gov/law/help/domestic-judgment/index.php. Kleinheisterkamp, supra note 51. James G. Apple and Robert P. Deyling, A Primer on the Civil-Law System (1995); Tom Gerald Daly, The Differential Openness of Brazil’s Supreme Federal Court to External ­Jurisprudence, http://www.academia.edu/7019451/The_Differential_Openness_of_Brazils_­Supreme_ Federal_Court_to_External_Jurisprudence_International_Association_of_Constitutional _Law_IACL_World_Congress_Oslo_17_June_2014. Lyra Tavares, Aspects de l’acclimatation du ‘Judicial Review’ au droit brésilien, Revue Internationale de Droit Comparé (1986); Celso Campilongo, History and Sources of Brazilian Law, in Introduction to Brazilian Law 6–7 (Fabiano Deffenti and Welber Oliveira Barral eds., 2011). Jacob Dolinger, The Influence of American Constitutional Law on the Brazilian Legal ­System, 38 American Journal of Comparative Law 806 (1990).

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From the late 19th century, the strong U.S. influence on the 1891 Constitution, and the fact that the Supreme Federal Court was expressly modelled on the United States Supreme Court, made U.S. case law the brightest lodestar for the Brazilian courts. 5.2.1

The Comparative Attitude of the Federal Supreme Court of Brazil: Some Key Cases Taking the Supreme Court’s key decisions from 1988 onward, the influence of distinct foreign law and case law can be discerned. The United States Supreme Court holds a central influence. In the European context, the case law of the Constitutional courts of Germany, Italy, Spain and Portugal have also had considerable influence.65 Indeed, in a study of 138 decisions of the Supreme Court by the Brazilian scholar Virgilio Afonsa da Silva, no less than 80 references are found to decisions of the U.S. Supreme Court, and 58 citations of German Constitutional Court decisions.66 In more recent Brazilian experience, foreign constitutional jurisprudence is cited not only in the opinion of individual justices, but also as a part of the ratio decidendi. In the Ellwanger case (Habeas Corpus, 17 November 2003), concerning the prosecution of author Siegfried Ellwanger for publishing and selling anti-­ Semitic material, references to foreign constitutional jurisprudence played a fundamental role. Specifically, paragraph 9, headed ‘Comparative law’, contains this thought: “The law in modern democratic constitutional states such as Brazil call for the punishment of offences that encourage and promote racial segregation. Manifestations of the United States Supreme Court, the United Kingdom House of Lords and the California Courts of Appeal in the U.S. have stablished the understanding that those who infringe the rules of peaceful social coexistence among human groups by practicing racism should be punished”. In addition, the Constitutional Court of Germany, the Constitutional Tribunal of Spain and, notably, the European Court of Human Rights (Justice Gilmar Mendes citing the Court’s decision in Jersild v. Denmark) are cited. Taking into consideration the European legal experience, the judges recognized that free speech is not absolute and that publishing books with ­discriminatory ideologies constitutes racism which lies beyond the scope the 65 66

Tom Gerald Daly, supra note 62. Gustavo Ferreira Santos, Treaties X Human Rights Treaties. A Critical Analysis of the Dual Stance on Treaties in the Brazilian Legal System, 15 European Journal of Law Reform 26, 27 (2013).

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freedom of expression. In particular, in the opinions of Justices Mendes and Aurélio the use of the German derivation principle of proportionality in the solution of the conflict between principles of human dignity and equality on the one hand, and free speech on the other, is clearly visible.67 The justices conducted a detailed discussion of jurisprudential precedents, constitutional provisions and legislation of foreign States. In the decision on the criminalization of abortion (12 April 2012), the Supreme Court declared the penalty of abortion unconstitutional in the hypothesis of anencephaly. Criminal sanctions for abortion of anencephalic is, in fact, contrary to the constitutional rights of women. Justice Marco Aurélio, the Judge-Rapporteur, reasoned that the rights of an anencephalic fetus could not prevail over the woman’s constitutional right to dignity, autonomy, privacy, and physical, psychological and moral integrity. It is notable that the justices made reference in their votes to a very wide range of foreign case law to support interpretation of the domestic constitutional provisions at issue. Precisely, case-law of the Constitutional courts of Germany, Italy, and Spain, U.S. Supreme Court decisions including Roe v. Wade, Griswold v. Connecticut and Gonzalez v. Carhart, the European Court of Human Rights decision in Lautsi v. Italy, a decision of the United Nations Human Rights Committee, K.L. v. Peru and even the decision of the Inter-American Commission of Human Rights in the ‘Baby Boy’ case against the United States were taken into account. In a more recent judgment, the Supreme Court has faced the penalty of first-trimester abortion (decision 29 November 2016). In the decision there is a paragraph headed “comparative experience”, in which the judge Rosa Weber highlighted the importance of the consideration of the comparative law in order to develop a legal argumentation on the issue. Precisely, the judge analyzed and evaluated the U.S. Supreme Court decisions Roe v. Wade, Griswold vs. Connecticut, Whole Woman’s Health v. Hellerstedt, the EctHR decisions Paton vs. Reino Unido, Vo v. França, Evans vs. Reino Unido, A, B, and C v. Irlanda. In matter of prescription of the criminal sanction, in decision 10 December 2014 an analytical consideration of the foreign legislation is made by the JudgeRapporteur. The German, Italian, Spanish, Portuguese, Argentine, Colombian, Chilean, Mexican criminal code were considered. From this analysis, the Judge-Rapporteur inferred that in all foreign criminal systems the ­prescription 67

Alonso Freire, Employment of Balancing “Method” by Brazilian Supreme Court in Judicial Review, http://www.academia.edu/8306512/Evolution_of_Constitutional_Interpretation_ in_Brazil_and_the_Employment_of_Balancing_Method_by_Brazilian_Supreme_Court_ in_Judicial_Review.

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of the punishment referred to the maximum sanction established by law and not to the sanction in concreto enforced. This insight led the Judge-Rapporteur to recognize that the choice to refer the prescription to the sanction in abstracto or to the sanction in concreto belong to legislator, because it is a question of criminal politics. A trajectory of increasing openness to external jurisprudence can be observed in the period since 1988, with the Supreme Court referring to an expanding cohort of courts for inspiration in the resolution of difficult constitutional questions. Comparative reasoning is a strong feature in its jurisprudence. The Court cites much more often the case law of a relatively small circle of courts, all based in long-established democracies, as well as the European Court. While references to foreign sources sometimes serves as a mere decoration of the judge’s opinion, serious comparative arguments are quite frequent.68 5.3 The Silent Comparative Attitude of the Mexican Supreme Court Historically, the origin of the Mexican comparative tradition could be traced to Ignacio L. Vallarta’s judicial opinions. He served as President of the Supreme Court of Mexico from 1878 to 1882. In his opinions, he showed a deep legal knowledge and familiarity with American constitutional law. Indeed, the United States Constitution of 1787 was the principal source for the drafters of the Mexican Constitution of 1824. In turn, the Constitution of 1824 served as a model for the Constitution of 1857, which influenced many of the provisions of the Constitution of 1917.69 The knowledge of American constitutional law and the use of the same is emblematically represented by an opinion of Vallarta concerning an amparo put forward by a textile factory against the government for taxes. In his opinion, Vallarta quoted some American precedents established by Chief Justice John Marshall,70 arguing their applicability in the following way: “Lacking doctrines, precedents and court rulings, these serious issues are both novel and indisputably important. Given the delicacy and difficulty of this case and wishing to trust more than just my own reasoning, I have consulted sources of our constitutional law, specifically US case law, to find doctrines that

68 Kleinheisterkamp, supra note 51. 69 Emilio 0. Rabasa, Historia De Las Constituciones Mexicanas 78 (1994); Stephen Zamora Et Al., Mexican Law 233 (2004). 70 McCulloch v. Maryland, 1819; Providence Bank v. Billings, 1830.

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help illustrate my judicial opinion and provide grounds for the vote I am about to cast.”71 Nowadays, in general Mexican courts seldom explicitly cite foreign precedents. Adhering to an orthodox civil law approach, the Supreme Court has usually avoided explicit citation of foreign laws and precedents. For this reason, it is difficult to assess when (and how) the Supreme Court grounds its decisions on foreign law. In part, this derives from the silent “comparative practice” of the Mexican Supreme Court.72 Nevertheless, it is possible to note some cases in which the Court has been clearly influenced by foreign legal materials. Very significant constitutional practices coming from other countries have been followed by the Mexican Supreme Court. The use of the principle of proportionality, stemming from the European legal culture and theorized by the German Constitutional Court, represents a clear example of the European influence on the Supreme Court. The proportionality test was adopted for the very first time in a case regarding tax equity. As applied by the German Constitutional Court, proportionality balancing involves a triple test in order to evaluate if a State action constitutes a violation of an individual right. The test consists of three checks: (a) suitability: the legislative measure or State action must be coherent with the legitimate and desired aim; (b) necessity: the aim of the State cannot be achieved through the use of other means less burdensome for the individual, i.e. the least restrictive means test; (c) proportionality stricto sensu or balancing: in light of the respective importance of the ­values in tension, given the facts, the judge weighs the benefits of the act against the costs incurred by infringement of the right, in order to determine which “constitutional value” shall prevail. The Mexican Supreme Court adopted the use of the proportionality test (juicio de equilibrio), as organized in the three aforementioned phases, especially in matter of access to justice, tax equity and limitations of freedom of labour. In 2007, the Court laid dawn that the three steps of the proportionality test must be used by the constitutional judge in the setting of fundamental rights’ ranges and limits. Moreover, the Court highlighted that the proportionality test has its textual support in Article 16 of the Constitution and it grounds on the prohibition of arbitrariness.73 Although the  Supreme Court issued rulings that established the “proportionality” and “balancing” 71 72 73

Eduardo F. Mac-Gregor and Rubén Sánchez Gil, Foreign Precedents in Mexican Constitutional Adjudication, iv 2 Mexican Law Review 297 (2012). Id. at 294. Eduardo F. Mac-Gregor and Rubén Sánchez Gil, Mexico: Struggling for an Open View in Constitutional Adjudication, in The Use of Foreign Precedents by Constitutional Judges (Tania Groppi and Marie-Claire Ponthoreau eds., 2013).

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tests, it rarely cited foreign law specifically. Nevertheless, it is clear that it was influenced by European (in particular, German and Spanish) concepts concerning the doctrine of proportionality and balancing. There are other foreign judicial doctrines adopted by the Supreme Court that demonstrate the comparative influence on constitutional adjudication and the tendency of the Constitutional jugdes to take into account the international profile of the issues they have to face in their judgments. An emblematic example is offered by the use of “heightened equal protection scrutiny”, which originates from American constitutional doctrine and was adopted by Mexican Supreme Court to affirm the need for a “strict” analysis of the legal classifications of explicit discrimination prohibitions based on the Constitution, using higher standards to test their validity. From Spanish and German constitutional literature, the Mexican Supreme Court has instead drawn the doctrine of vital minimum. The criterion of the minimo vital prevents the legislator from taxing individuals who earn minimum wages because it would cause the loss of the capacity to provide for their own “elementary needs” and, as a result, the loss of their capacity to effectively participate in the democratic system. The parameter on which to assess the minimo vital is represented by human dignity, used by the German Constitutional Court. In addition, it is important to mention the use of political question doctrine, derived from the American Supreme Court case law. The reference to this doctrine appears to be one of the few cases in which the Mexican Supreme Court expressly cites a foreign decision.74 In the decision 15 August 2007, the Court rejected the suit brought forward by the Governor of the Mexican state of Oaxaca, whom the Chamber of Representatives asked to resign, on the assumption that merely political questions could not be judicially reviewed. As it is possible to infer from this rapid analysis, the comparative approach has been used rather infrequently by the Supreme Court of Mexico. 5.4 The Recent Comparative Practice of the Constitutional Court of Chile Until 2006, the Constitutional Court of Chile had seldom used references to comparative or foreign case law. Indeed, in 2006 it was possible to find a citation of foreign precedents, but solely in individual opinions.75 In decision no. 480/2006, judges Marcelo Venegas Palacios and Enrique Navarro Beltrán, in their individual opinions and in order to enforce their legal reasoning, 74 75

Baker v. Carr (1962). Liliana Galdámez Zelada, El uso del derecho y jurisprudencia extranjera en los fallos del tribunal constitucional de Chile: 2006–2010, 39 Revista Chilena De Derecho 189 (2012).

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made use of the insights of the Spanish Constitutional Court in matter of legal predetermination of conducts and sanctions in criminal and administrative areas. In addition, judge Jorge Correa Sutil valorised the comparative method in order to highlight the differences between the Chilean Constitution and the Spanish Constitution on administrative sanctions. In decision 546/2006, five judges analyzed the institution solve et repete as it works in several legal systems and taking into account the jurisprudence of the Constitutional Courts of Italy, Spain, Colombia and Argentina. In 2007, a more openminded approach by the Chilean Constitutional Court to the international human rights law and to the constitutional law and case law of other countries was observed.76 In decisions 718, 759 and 773 the Court referenced the norms of the Constitutions of the United States, Germany, Spain, France and Italy. More recently, the Constitutional Tribunal of Chile was asked to evaluate the conformity with Constitution of Article 365 of the Chilean Criminal Code, which punishes consensual male homosexual relationships when involving a minor (decision 11 January 2011). The majority of the Court found no violation of the Chilean Constitution and upheld the prohibition. The point to be underlined in this decision is that both the majority and the minority of the Court attentively considered the legislation and the case law of several foreign states. The majority referred to the application of the international principle of the best interests of the child as recognised by Colombian Constitutional Court case law (decision 24 April 2003). Regarding the right to privacy, the Court referred to the Brazilian Supreme Court’s view that “the inviolability of intimacy is not an absolute right to be used as a guarantee for the practice of sexual crimes” (decision 31 August 1999). Further, it discussed the European Human Rights Court case X and Y v. the Netherlands (decision 23 March 1985), citing the ECtHR’s conclusion that the respondent State was in violation of the ­European Convention on Human Rights because the Dutch Criminal Code did not provide practical and effective protection to the claimant. The core of the minority opinion is placed in a paragraph entitled “International standards”. In this paragraph it is possible to read the following sentence: “The examination of comparative law and international instruments on the matter allows us to conclude that today the criminalisation of consented sodomy has been declared unconstitutional in many states, as have the rules establishing the age of consent in relation to sexual relations among persons of the same 76

Humber to Nogueira Alcalá, El uso del derecho y jurisprudencia constitucional extranjera y de tribunales internacionales no vinculantes por el Tribunal Constitucional chileno en el periodo 2006–2011, 11 Estudios constitucionales (2013).

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sex.” The minority opinion arrived at its conclusion of unconstitutionality after ­considering case law of the South African Constitutional Court, the Austrian Constitutional Tribunal, the US Supreme Court, the Indian High Court and the ECtHR. With regard to legislative practices, it mentioned a “tendency not to consider sexual identity as criterion for defining punishment regarding specific sexual practices” as seen in the laws of Argentina, Brazil, Ecuador, Honduras, Mexico, Paraguay, Peru and Uruguay. The decision 10 September 2013, concerning the requirements for the entry and stay of foreigners in the country, contains a paragraph (paragraph iv) dedicated to constitutional experiences that distinguish between foreigner and citizen for the purpose of recognition of the right of movement and residence. About this, the Court made a recognition of the relevant constitutional norms in the issue of the legal treatment of foreigners provided for by the German, Argentine, Brazilian, Canadian, Colombian, Spanish, Italian and Portuguese Constitutions. After having cited this foreign material, the Court wondered if the Chilean Constitution followed the same tendency. The answer is in the negative, because the Constitution does not set any distinction between foreigner and citizen with regard to the recognition of freedom of movement. In this case, the comparative law is therefore analyzed in order to draw a difference between domestic and foreign legal systems. A significant analysis of comparative law can be traced back to a decision concerning abortion, made by the Constitutional Court on 28 August 2017. Within its 297 pages, the decision de qua, includes a paragraph dedicated to the regulation of abortion within the comparative and foreign case law. In a synchronic perspective, the Court found two different ways of regulating abortion. Firstly, there are foreign legal systems that allow abortions without the necessity of any justification. Secondly, there are legal systems that consent abortions only under certain conditions. Regarding the comparative constitutional landscape, the Court observed that constitutions do not contain an ­explicit reference to abortion, however, there are some constitutions which provide for the protection of the fetus and the physical and psychological integrity of the woman. Some Latin American constitutions include a reference to the rights of the fetus, as found in the constitutions of Peru, Honduras, Paraguay, Guatemala and Dominican Republic. After having analyzed the comparative law experience, the Court took into consideration the foreign case law. From a chronological perspective, the Court discerned between different historical periods. The first period began with the decisions of the U.S. Supreme Court (1973), as well as the German, Italian and French Constitutional Courts (1975). The second period is characterized by the decisions of the Constitutional Courts of Portugal (1984), Spain (1985) and Canada (1988), and followed

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by the decisions of Constitutional Courts of Hungary (1991), Ireland (1992) and Poland (1996), and succeded by the decisions of Courts of México (2007), Slovakia (2007) and Colombia (2010). 6

Final Remarks

The use of comparative law by both Supreme and Constitutional courts is a fundamental part of the legal tradition and culture of Latin America. Looking at the wider phenomena of legal transplants and circulation of constitutional review models, it is known that the American model has been ­exported – with some adjustments – in many Latin American legal systems and it is likewise known that the U.S. Bill of Rights and the Supreme Court case law with regard to matters of privacy, equal protection, fair trial and freedom of expression have served for a long time as a landmark for the Latin American Constitutional and Supreme Courts. The history of constitutional adjudication in Latin American courts reveals a massive use of foreign law and case law. Judges frequently move beyond the domestic legal system and quote foreign case law, foreign law and legal scholarship in order to support judicial reasoning. The purpose of citations is often one of persuasion and enrichment of legal argumentations – no court would consider itself bound by foreign legal material (with the exception of the Supreme Court of Argentina in its initial stages). Except for the Supreme Court of Mexico, Latin American Courts explicitly use foreign law and foreign case law. Several examples of their use of foreign law can be discerned. Firstly, a mere technique of quotation, serving the purpose of supporting and supplementing the domestic court’s argument, can be identified. From this perspective, the judges quote foreign rulings in order to complement their legal reasoning with additional arguments. It is not a mode of comparative legal reasoning in the narrow sense of the concept. Such a reference concisely shows a conceptual parallel between the domestic and the foreign decision. This approach indicates at least that there is a similarity between the national and foreign legal systems, but neither describes, contextualizes or evaluates the decision referred to in greater detail. In other words, the reference to a foreign adjudication seems to be limited to the statement that there is an external authority whose approach they are similarly following. Secondly, a more elaborate use of comparative law by the judiciary can be observed. Unlike the first category, this type of comparative reasoning entails a descriptive and an analytical element. The decisions of other courts do not

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only serve as a simple point of reference but are described and analyzed in detail. The use of this approach recurs especially in cases of marked political nature or in cases that touch sensitive issues involving fundamental rights. Some examples are offered in cases involving the rights of homosexuals, abortion, freedom of expression, equal protection, etc. The use of comparative law contributes to the enforcement of the legitimation and authority of the Constitutional judges when facing such delicate issues.77 It is possible to trace a further motivation that leads Latin American Courts to rely on foreign legal material: the desire to become part of an international community of courts that share similar views on similar legal questions. Domestic judges search for an international consensus when dealing with universal themes such as human rights.78 Moreover, the presence of a court that takes part in the debate with other Supreme Courts attests to the intention of wishing to belong to a “global community of courts”79 with which to share a patrimony of constitutional principles and values whose acceptance marks the distance of the new form of state and government from the past political and institutional system.80 77 78 79 80

Angioletta Sperti, Il dialogo tra le corti costituzionali ed il ricorso alla comparazione giuridica nella esperienza più recente, Rivista Aic, 2006, http://archivio.rivistaaic.it/materiali/ anticipazioni/comparazione/index.html. Michael Freitas Mohallem, Horizontal Judicial Dialogue on Human Rights: the Practice of Constitutional Courts in South America, in Judicial Dialogue and Human Rights 108 (Amrei Muller and Hege Elisabeth Kjos eds., 2017). Anne-Marie Slaughter, A Global Community of Courts, 44 Harvard International Law ­Journal (2003). Angioletta Sperti, supra note 77.

Part 7 Israel

∵

The Supreme Court of Israel and the Use of Comparative Law Leonardo Pierdominici 1

Introduction: The Functions of the Supreme Court and the Structure and the Style of Its Judgments

The Supreme Court is the apical judicial institution of the Israeli legal system. It is based in Jerusalem. After the Declaration of Independence of 14th May 1948, Israel retained the hierarchical judicial system of the previous British Mandate for Palestine, composed of Magistrates’ Courts, District Courts, and the Supreme Court. This judicial architecture is complemented by a pluralistic system of religious courts.1 The actual Supreme Court came into operation already in 1948, and retained the traditional powers conferred upon it in the previous regime. It thus preserved first of all the powers of an appellate court: the Supreme Court considers cases on appeal (civil, criminal, and military) on judgments and other decisions of the District Courts, and appeals on judicial and quasijudicial ­decisions of various kinds, such as matters relating to the legality of Knesset elections and disciplinary rulings of the Bar Association. Moreover, it preserved the powers of High Court of Justice: in this capacity, the Supreme Court rules as a court of first instance, primarily in matters regarding the legality of decisions of State authorities, such as Government decisions, those of local authorities and other bodies and persons performing public functions under the law, and direct challenges to the constitutionality of laws enacted by the Knesset. In this same capacity, it enjoys a residual competence in matters which are not within the jurisdiction of another court or tribunal. The Court’s judgments are binding according to the principle of stare decisis: Article 20 of the Basic Law: the Judiciary explicitly states that “(a) A rule laid down by a court shall guide any lower court. (b) A rule laid down by the Supreme Court shall bind any court other than the Supreme Court”. Thus, the Court has always performed several different functions: this becomes even clearer in a full diachronic perspective, in the light of the evolution of Israeli constitutionalism and the parallel evolution of the Court’s role. 1 Yaacov S. Zemach, Le système judiciaire israélien (Institut Judiciaire de Formation del Juges d’Israel 2002).

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The Israeli legal order experienced a rather peculiar evolution: this cannot be a surprise since it is “a microcosm of all the conceivable complexities”.2 It is, intrinsically, a “mixed” legal system:3 in its geographic area, the period prior to the formation of the Israeli state was characterized by the coexistence of Islamic law and a heterogeneous complex of civil-law norms of the Ottoman period, in turn based on the Mejelle ethnic pluralistic system and Napoleonic codes translated directly from French to Turkish; the common law was imported during the British mandate; new continental influences came with the new migration waves from Germany and Eastern Europe in the first decades after the birth of the state. To further complicate the situation, the first law schools of the country were opened thanks to the support of the United States, which strengthened the role of Anglo-American legal culture.4 A pluralistic picture of rare complexity (common law, civil law, confessional laws) was thus set up by a process of progressive stratification. The plural nature of the legal system had an influence on the peculiar Israeli constitutional process. It clearly emerges from the foundational acts of the state that the founders favored the idea of a unitary constitution as the fundamental law of the land.5 At the time of the Israeli independence from the protectorate, no one doubted that a constitutional text would have been promptly adotped.6 History, however, took a different turn, departing from widespread expectations and diplomatic obligations. The attempt to draft a constitution was frustrated already in 1949 with the failure to elect a proper Constituent Assembly, which was supplanted by the ordinary legislative body, the First Knesset; different political forces soon started to assert their will to delay the enactment of the ­constitution, on different grounds, ranging from the state of the emergency 2 Giovanni Sartori, Parties and Party Systems. A Framework for Analysis (cup 1976) 151. 3 Aharon Barak, ‘Some Reflections on the Israeli Legal System and Its Judiciary’ (2002) 6 Electronic Journal of Comparative Law; Ignazio Castellucci, ‘How Mixed Must a Mixed System Be?’ (2008) 12 Electronic Journal of Comparative Law, 1, 2 ss.; Eliezer Rivlin, ‘Israel as a Mixed Jurisdiction’ (2012) 57 McGill Law Journal, 781. 4 See Vincenzo Caianiello, Istituzioni e liberalismo (Rubbettino 2005) 100–101 and Menachem Mautner, Law and the Culture of Israel (oup 2011),35 ff. 5 The Declaration of Independence of 1948, coherently with Resolution 181(II) of the UN General Assembly of 1947, read as follows: “We declare that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called ‘Israel’”. 6 According to Giora Goldberg, ‘Religious Zionism and the Framing of a Constitution for Israel’ (1998) 3 Israel Studies, 211, 214, “(T)he constitution was perceived as inevitable”.

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of the country to the “sociological argument” based on the nature of Israel as a land of future migration where early fundamental decisions such as constitutional ones were felt inappropriate,7 from the idea that the already promulgated Declaration of Independence and certain transitional laws from the protectorate regime could already serve as fundamental laws8 to the already apparent problem of social and cultural cohesion, particularly in relation to the relationship between state and religion in a state that was born to be both “Jewish and democratic”.9 This led to the historic Harari Resolution of 1950:10 with it, the initial decision to adopt an organic constitution for the state was deferred and replaced by the process of enacting a constitution chapter by chapter, through so called Basic Laws. But since the first Basic Law was enacted, in 1958, the legal status of the Basic Laws remained unclear; and by 1992, all the enacted Basic Laws dealt with institutional matters and government institutions,11 while the various proposals to pass a Basic Law dealing with human rights were always met with controversy. Only in 1992, through another compromise and by splitting an original project of Basic Law: Human Rights into a number of separate Basic Laws, the first two Basic Laws dealing with human rights were enacted in Israel: the Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation.12 7 8 9

10

11

12

See Ruth Gavison, ‘The Controversy Over Israel’s Bill of Rights’ (1985) 151 Israeli Yearbook on Human Rights, 113 and Joshua Segev, ‘Who Needs a Constitution? In Defense of NonDecision Constitution-Making Tactic in Israel’ (2007) 70 Albany Law Review, 409, 420. See Joshua Segev, ‘Who Needs a Constitution?’ (n 7) 416 ff, and Elyakim Rubinstein, ‘The Declaration of Independence as a Basic Document of the State of Israel’ (1998) 3 Israel Studies, 195. Already since the Resolution 181(II) of the UN General Assembly of 1947 and the subsequent Declaration of Independence of 1948: see on this Giora Goldberg, ‘Religious ­Zionism and the Framing of a Constitution for Israel’ (n 6) 216 and Ilan Peleg, ‘Israel’s Constitutional Order and Kulturkampf: The Role of Ben-Gurion’ (1998) 3 Israel Studies, 230, and in comparative perspective Susanna Mancini, Michel Rosenfeld, ‘The Dilemmas of Identity in a Jewish and Democratic State: A Comparative Constitutionalist Perspective’ in Gideon Sapir, Daphne Barak Erez, Aharon Barak (eds), Israeli Constitutional Law in the Making (oup 2013) 517. It took the name of the proponent Member of Knesset, and read as follows: “The First Knesset charges the Constitution, Law, and Justice Committee with preparing a draft of the State Constitution. The Constitution will consist of separate chapters, each chapter constituting a Basic Law in its own. The chapters will be presented to the Knesset (…) and all of the chapters shall be consolidated into the State Constitution”. Basic Laws “The Knesset” (1958), “State lands” (1960), “The President” (1964), “The Government” (1968, with amendments in 1992 and 2001), “The State economy” (1975), “Israel defense forces” (1976), “Jerusalem” (1980), “The Judiciary” (1984), “The State Controller” (1988). See in this Giora Goldberg, ‘Religious Zionism and the Framing of a Constitution for Israel’ (n 6) 224 and Joshua Segev, ‘Who Needs a Constitution?’ (n 7) 457 ff.

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It is important to situate the role of the Israeli Supreme Court in such a unique constitutional process. In the first years between 1940’s and 1950’s, the Court experienced a primitive phase of self-restraint and formalistic respect of the separation of powers principle, according to the proto-typical British model.13 Already during the 1950’s a new phase began: the Supreme Court addressed its judicial review powers towards “Israel’s quest for a constitution”,14 and started to put together a veritable judicial bill of rights through interpretative means,15 recognizing and protecting many of the fundamental freedoms that are part of constitutional black letter law in other settings. Moreover, between the 1970’s and the 1980’s – in a new phase of more mature awareness of its role vis-à-vis the abstention of political and administrative bodies from ample areas of potential decision making16 – the Court ­intensified and expanded its activism. This happened through technical means by progressively relaxing the standards of locus standi and justiciability so to recognize the possibility of petitions brought by public petitioners, which do not represent their individual interests, as long as the petitions touch upon significant rules of law or constitutional questions, and so to refrain from intervention only in very extreme and hard-pressed circumstances.17 In doing so, the Court established its own broad discretionary authority to rule – sitting as High Court of Justice – on matters in which it considers it necessary to grant relief in the interests of justice, through different means including orders such as injunction, mandamus and Habeas Corpus, as well as through declaratory judgments. In 1995, soon after the enactment of the aforementioned human rights Basic  Laws, the Supreme Court made a historical move: in the crucial case 13

14 15 16 17

This primitive phase is symbolized by cases such as Leon v. Gubernik (Acting District Commissioner of Tel-Aviv) (1948) 1 P.D. 58; 1 S.J. 41; Baron v. Prime Minister and Minister of Defence 1 P.D. 109 (1948); Jabotinsky and Kook v. Weizmann, hcj 65/1951; see on this Menachem Mautner, ‘The Decline of Formalism and the Rise of Values in Israeli Law’ (1983) 17 Tel Aviv University Law Review, 503, Menachem Mautner, Law and the Culture of Israel (oup 2011) 54 ff., David Kretzmer, ‘Forty years of Public Law’ (1990) 24 Israel Law Review, 341. In these terms Melville B. Nimmer, ‘The Uses of Judicial Review in Israel’s Quest for a Constitution’ (1970) 70 Columbia Law Review, 1217. Ivi; see also Daphne Barak Erez, ‘From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective’ (1994) 26 Columbia Human Rights Law Review, 309. Shimon Shetreet, ‘Developments in Constitutional Law: Selected Topics’ (1990) 24 Israel Law Review, 368, 405. Daphne Barak Erez, ‘Broadening the Scope of Judicial Review in Israel: Between Activism and Restraint’ (2009) 8 Indian Journal of Constitutional Law, 118, 119–120.

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­ amizrahi Bank v. Migdal18 – a monumental decision of 367 pages – it declared H that the new constitutional chapters of 1992 had a “revolutionary” meaning and made explicit that Basic Laws in Israel have a proper constitutional status, so that the Court itself is empowered to enforce the limitations they entailed by judicial review of Knesset legislation, even if that power was not specifically mentioned in any Basic Law or elsewhere. Such a bold move has been described by many as an Israeli Marbury v. Madison,19 through which the power of judicial review of legislation has been constructed by interpretative means, and put the Supreme Court once more under the spotlight in the Israeli legal system. The idea that a “constitutional revolution” occurred was suggested by the Court itself.20 In fact Hamizrahi Bank v. Migdal had paramount significance: it transitioned Israel from the tradition of parliamentary sovereignty to a constitutional model and to the concept of judicial review of laws; it consolidated a progressive shift of power from elected politicians to unelected judges. Such a progressive central role of the Court in the Israeli legal system is reflected in the structure and style of its judgments. As said, the functions of the Court are variegated; but all in all, as it has been already pointed out,21 its judgments have always been rather long, articulated, but written with a “seldom technical” language.22 Their length – an average of 69 pages in landmark constitutional cases23 – is due to the typical discussion of the parties’ arguments, the legal reasoning employed that often relies on teleological/purposive arguments and precedents, and the extensive use of scholarly work and foreign law, as we 18

CA 6821/93, 1908/94, 3363/94 United Hamizrahi Bank v. Migdal Cooperative Village [1995] IsrSC 49(4) 221. 19 Zeev Segal, ‘The Israeli Constitutional Revolution: the Canadian Impact in the Midst of a Formative Period’ (1997) 8 Forum Constitutionnel, 53, 54; Malvina Halberstam, ‘Judicial Review, A Comparative Perspective: Israel, Canada, and the United States’ (2010) 31 Cardozo Law Review, 2393, 2424; ‘Yoram Rabin, Arnon Gutfeld, ‘Marbury v. Madison and its Impact on the Israeli Constitutional Law’’ (2000) 15 University of Miami International & Comparative Law Review, 303. 20 CA 6821/93, 1908/94, 3363/94 United Hamizrahi Bank v. Migdal Cooperative Village [1995] IsrSC 49(4) 221, at para 1 and 3: “The constitutional revolution occurred in the Knesset in March 1992. The Knesset endowed the State of Israel with a constitutional bill of rights. This revolution was many years in the making and was the result of a multi-dimensional legislative process”, “The constitutional revolution in the field of human rights is built upon the foundation of judicial precedent. The Knesset has used its constituent authority to endow a number of legally protected human rights with constitutional supra-­legislative status”. 21 Suzie Navot, ‘Constitutional Reasoning in the Israeli Supreme Court’, in András Jakab, Arthur Dyevre,Giulio Itzcovich (eds), Comparative Constitutional Reasoning (cup 2017) 471. 22 Ivi. 23 Ivi.

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will see in detail. It is of course due also to the common presence of dissenting and concurring opinions. It must be already noted that a list of citations of internal and foreign case-law, sorted by country, has appeared at the top of every Court’s decision. The language employed has been described as strategic:24 given its central role, the Court’s judgments are aimed at the parties but also at the general public, the legislative branch and the government, the academic community and the other participants in transnational judicial conversations.25 The Court often translates its judgments in English, collects them by topic (for instance those concerning terrorism, which are of particular comparative interest),26 and makes them available in its recently renovated website. 2

The Use of Foreign and International Law, and the Methods Employed

Understanding the evolving role of the Supreme Court in the Israeli legal system, in its different phases, is important to explain its use of foreign law. This is not to say that the Court has had phases in which it used foreign law and phases in which it did not use it. Quite on the contrary, the first point to stress is that the Israeli Supreme Court has always made abundant use of foreign law in its adjudication. Some important quantitative studies were published, a couple of them dealing with the Court’s overall activity between 1950 and 2004,27 the other recent one dealing with the Court’s constitutional cases between 1994 and 2010:28 they all traced an important use of foreign material, 24 Ivi. 25 See on this now classic definition, among the many, Anne M. Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review, 99, Cristopher McCrudden, ‘Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 Oxford Journal of Legal Studies, 499, and Anne M.  Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law ­Journal, 191. 26 The Supreme Court collected and then published both online and on paper its judgments in the field with the title ‘Judgments of the Israel Supreme Court: Fighting Terrorism within the Law’: they are available at the website http://mfa.gov.il/MFA_Graphics/MFA%20 Gallery/Documents/terrorirm_law.pdf (last access 22nd November 2017). 27 Meron Gross, Ron Haris, Yoram Shachar, ‘References Patterns of the Supreme Court in Israel—Quantitative Analysis’ (1996) 26 Mishpatim 115, Yoram Shachar, ‘The Reference Practices of the Israeli Supreme Court 1950–2004’ (2008) 50 Hapraklit, 42; see also Yoram Shachar, Meron Gross, Chanan Goldsmith, ‘One Hundred Leading Precedents of the Supreme Court—A Quantitative Analysis’ (2004) 7 Mishpat U’mimshal, 243. 28 Suzie Navot, ‘Israel: Creating a Constitution—The Use of Foreign Precedents by the Supreme Court (1994–2010)’, in Tania Groppi, Mari-Claire Ponthoreau (eds), The Use of ­Foreign Precedents by Constitutional Judges (Hart Publishing 2013) 129.

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that has been constant overall the history of the actual Supreme Court in an average ranging from 20 to 30 per cent of its judgments,29 with higher peaks, and with the further connotation of a non-sporadic use but rather with a tendency to multiple comparative references in a same judgment.30 Still, the differentiation of historical periods is important to understand the different use of foreign law made by the Court and the underlying rationales. The Court used foreign law since the very beginning of its activity: the early years of the Israeli State were a transitional period from the British Mandate; the Court itself used to be an apical institution composed of British judges, supervising local tribunals composed of local members; common law was the law of the land,31 and therefore references to English law were customary. This was the case, for instance, in the 1951 case Jabotinsky v. Weizmann,32 one of those early judgments in which the Court, in a primitive exercise of self-restraint, considered a question of separation of powers (the obligation for the President of the State to entrust a member of the Knesset with the task of forming a Government under the Law of Transition, 1949) as non justiciable. It did so by express reference to the English case The Parlement Belge,33 and by comparing the position of the King of England and his immunity from all claims before the courts with that of the Israeli President. It must be noted the reference to such foreign source was not an application of English law as directly applicable law, but a veritable exercise of comparative law through which, actually, the relevance of the British model and of English legal scholarship was excluded.34 Another important aspect to be considered is that already in Jabotinsky v. Weizmann several other foreign references were made, to

29 30 31

32 33 34

Suzie Navot, ‘Israel: Creating a Constitution’ 138 ff. Iddo Porat, ‘The Use of Foreign Law in Israeli Constitutional Decisions’, in Gideon Sapir, Daphne Barak Erez, Aharon Barak (eds), Israeli Constitutional Law in the Making (oup 2013) 151, 153. According to the old Article 46 of the Palestine Order in Council of 1992, then confirmed by the Law and Administration Ordinance No. 1 of 5708-1948 which stated that “The law which existed in Palestine on the 5th Iyar, 5708 (14th May, 1948) shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities”. hcj 65/51 Jabotinsky v. Weizmann, 5 PD 801 (1951). The Parlement Belge; (1879–80), 5 P.D. 197. hcj 65/51 Jabotinsky v. Weizmann, 5 PD 801 (1951): “These arguments moved Mr. Fishelev, counsel for the petitioners, to contend that these principles apply to an absolute monarchy and have no place in the democratic regime of the State of Israel (…) We too are of the opinion that the writings of Blackstone on the position of the King of England have no relevance here”.

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no less than ten A ­ merican cases, used to exclude the relevance of the English comparison and solve the case at hand.35 The same approach can be detected in the criminal case Deutsch v. Attorney General,36 which involved a problem of conceptual interpretation and was solved through the reference to seven English cases and an American one, and in constitutional cases solved by the Court sitting as High Court of Justice such as Sheib v. Minister of Defence37 and Sapoznikov v. The Court of Discipline of the Israel Police,38 where English precedents were the only cited. In this very first phase of the activity of the Court, the purpose of using foreign sources was clear. Israel was a young legal system with no prior case-law, immediately succeeded to the British Mandate, with mandatory application of the common law, and geopolitical, professional and academic ties with the United Kingdom:39 it was therefore natural to turn to English cases to solve judicial controversies.40 The same last rationale explains the subsequent use of US legal sources, in the early 1950’s, with the intensification of the United States-Israel connection. As we have said, in 1953, with the landmark Kol Ha’am v. Minister of the Interior case,41 a new phase in the Court’s jurisprudence began. Kol Ha’am is viewed as the first cornerstone of Israel’s human rights adjudication, where the Supreme Court acknowledged the need to protect human rights even in the absence of a formal constitution, and by creating, through interpretative means, a judicial bill of rights. To do so, the Court turned to foreign case-law and heavily relied on comparative analysis. The specific affair concerned the decision of the Israeli minister of the interior to close a newspaper because it allegedly published inciting 35

36 37 38 39 40 41

Ivi: “An apt answer to this approach was given in the year 1807 by Chief Justice Marshall of the United States in his judgment in the case of United States v. Aaron Burr (2). The question that arose in that case was whether it was possible to summon the President of the United States as a witness for the defence and to order that he appear …. I shall not add any comments of my own to these dicta of the distinguished Chief Justice of the United States. Every one will appreciate that in regard to the question of immunity before the courts, the position in this country is analogous to that in the United States and not to that in England”. CrimA 1/52 Shmuel Deutsch v. the Attorney General, IsrSC 8 456. hcj 144/50, Sheib v. Minister of Defence, 5 P.D. 399 (1951). hcj 268/52, hcj 47/53, Sapoznikov v. The Court of Discipline of the Israel Police (1953). Iddo Porat, ‘The Use of Foreign Law in Israeli Constitutional Decisions’, 163 ff. CrimA 1/52 Shmuel Deutsch v. the Attorney General, IsrSC 8 456: “even if the problem is limited in scope, the solution which the English courts have purported to find is far from clear”. hcj 73/53, hcj 87/53, Kol Ha’am Co. Ltd and Al-Ittihad Newspaper v. Minister of the Interior, 7 P.D. 871 (1953). Pp. 29,62,78 (1953).

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articles that might have harmed public’s safety. This was formally deemed possible since an order dating back to the British Mandate assigned to the government the power to close down a newspaper. The claimants resisted by invoking their freedom of expression: and the Court, with a landmark opinion of its President Agranat, acknowledged “the vital value of the interest involved in the freedom of expression” in Israel,42 and suggested the need of a balancing test between human rights and other social interests, so that only the prevention of an “almost certain” severe violation of public order could justify the infringement on freedom of ­expression. The decision included citations from American legal literature, from political thinkers such as Milton, John Stuart Mill and Blackstone, from seven English cases carefully listed, as usual, in the first part of the judgment; but relied in particular on classic American free speech cases (eight cases listed and cited) including Schenck v. United States (1918), Abrams v. United States (1919), Whitney v. California (1926), U.S. v. Associated Press (1943), and acknowledged their decisive nature in determining the idea of a balancing test and in deciding on the convenience of preventive measures in the field.43 In the case, a test quite similar to the classic American “clear and present danger” test was in fact adopted. Kol Ha’am was the first chapter of the construction of an “unwritten constitution” in form of judicial bill of rights.44 The rights declared and enforced by the court throughout the decades “encompass the classic understanding of the scope of human rights in the international community”,45 and include 42

43

44

45

Ivi: “Israel is a democratic state, and a democratic regime cannot survive if its legal system does not recognize the freedom of expression. Even though it is not possible to judicially review a law that violates the freedom of expression because of the absence of a constitution, the court will prefer an interpretation of the law that is consistent with freedom of expression (…) If no exact definition is made of such a boundary between publications that merely consist of a disclosure of certain thoughts and publications that, in the circumstances surrounding them, may be regarded as of inflammatory content in its aforesaid meaning; if we are not continually on guard against the blurring of that dividing line – the vital value of the interest involved in the freedom of expression is likely to be completely eliminated”. Ivi: “We have dealt at some length with this Anglo-American understanding of the use of preventive measures, because it vividly shows that, from the point of view of protecting the interest of freedom of expression, it is indeed the severest and most powerful means there is”. Pnina Lahav, ‘Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat’s Legacy’ (1990) 24 Israel Law Review, 211; David Kretzmer, ‘The Path to Judicial Review in Human Rights Cases: From Bergman and Kol Ha’am to Mizrachi Bank’ (1997) 28 Mishpatim, 359. Daphne Barak Erez, ‘From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective’ 316.

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­personal liberty,46 freedom of speech,47 freedom of religion and conscience,48 equality,49 and procedural due process.50 From our perspective, it must be noted that all the important chapters of such a construction contained rich references to foreign material, especially to foreign case-law. More specifically, it must be remarked that the use of foreign precedents did not stop with the first decades of activity of the Court, when it had no prior domestic case-law to draw upon. Quite on the contrary, the comparative practice flourished and increased in the subsequent years. A good example in this respect is the famous case Universal City Studios v. Films and Plays Censorship Board of 1989,51 another affair questioning freedom of expression vis-à-vis religious susceptibilities (which is of particular relevance in Israel: the case had to do with the prohibition to screen the movie “The Last Temptation of Christ” not to offend the religious sensitivity of the Christian communities in Israel). The Court solved the case by making reference to its own case-law, by the time stratified (it listed and cited 23 of its cases on freedom of expression, including Kol Ha’am); but this did not prevent the Court from quoting and analyzing, here again, American cases such as Dennis v. United States (1951), New York Times v. Sullivan (1964), Joseph Burstyn Inc. v. Wilson (1952), Superior Films v. Dept. of Education (1954). The same can be said for the case Station Film Co. v. The Film Review Board of 199752 (decided when Basic Law: Human Dignity and Liberty had already been enacted): in this subsequent case, again of freedom of expression, the Israeli Court made reference to 45 of its own previous judgments but also to ten American classic cases, as well as one Irish, one English, two German, three Canadian judicial precedents. Moreover, it must be remarked that the use of foreign case-law became so relevant throughout the years that the Court dealt explicitly with the problem of the value to be recognized to comparative material in judicial decisions. This happened in the 1978 case Israel Electric Corp. v. Ha’aretz,53 which again 46 47 48 49 50 51 52 53

hcj 554/81 Beransa v. Central Commander [1982] IsrSC 36(4) 247. hcj 14/86 Laor v. The Film and Play Review Board, IsrSC 41(1) 421 (1987); hcj 680/88 Shnitzer v. Chief Military Censor, 42(4) P.D. 617 (1988); hcj 399/85 Kahane v. Managing Committee of the Broadcasting Authority 41(3) P.D. 255 (1987). hcj 262/62 Peretz v. Kfar Shmaryahu, 16 P.D. 2101, 2116 (1962). hcj 509/80 Younes v. Director General of the Office of the Prime Minister 35(3)P.D. 589 (1981). hcj 3/58 Berman v. Minister of the Interior, IsrSC 12 1493 (1958). hcj 806/88 Universal City Studios inc v. Films and Plays Censorship Board 43(2) PD 21 (1989). hcj 4804/94 Station Film Co. Inc.v. The Film Review Board 50(5) PD 661 (1996). cfh 9/77 Israel Electric Company Ltd. v. “Ha’aretz” Newspaper Publishing Ltd., IsrSC 32(3) 337, 359 (1978).

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had to do with freedom of expression: the case was decided, as usual, with reference to several American precedents, and in particular to the seminal New York Times v. Sullivan case of the US Supreme Court, so that Justice Shamgar felt the need to issue a dissenting opinion to make explicit that he did not think that foreign cases could constitute binding precedents in Israel.54 During this second creative phase of its evolution, in which an Israeli bill of rights was created through interpretative means, the Court used various “soft legal principles”55 as a base for its quasi-legislative function:56 the principles enshrined in the Declaration of Independence;57 “natural law” principles intended as “suprastatutory principles”;58 British common law and the most liberal excerpts of traditional Jewish law.59 But it was the massive use of foreign judicial precedents to constitute the most evident feature a such a jurisprudence,60 and for evident reasons. “The  unwritten Israeli Constitution was an unwritten constitution following the English model – meaning a judicial protection of human rights without any written constitution”.61 Thus, the Court had to deal with the “non textual” nature of the Israeli constitution,62 and “invent” a human rights discipline of

54

55 56 57 58 59 60

61 62

Ivi: “The judgment in the Sullivan case, as any other foreign precedent, could not have been cited by myself as a binding precedent and the description of its holdings was a presentation of the views and basic tendencies accepted in this field in the United States, which I proposed be adopted because they are consistent with our own written law. In other words, our legal criterion in this matter is exhausted by Sections 15 and 16 of the Law, but it is up to us to decide what content to give to this legislation and what meaning to attribute to it”. David Kretzmer, ‘Basic Laws as Surrogate of Bill of Rights: the Case of Israel’, in Philip Alston, Promoting Human Rights Through Bill of Rights. Comparative Perspectives (oup 1999) 76. An activity of “judicial legislation” according to Amos Shapira, ‘Judicial Review Without a Constitution: the Israeli Paradox’ (1983) 56 Temple Law Quarterly, 405, 417. Schlomo Guberman, ‘Israel’s Supra-Constitution’ (1967) 2 Israel Law Review, 455. Jeffrey M. Albert, ‘Constitutional Adjudication Without a Constitution: the Case of Israel’ (1969) 82 Harvard Law Review, 1245, 1252 ff. Asher Maoz, ‘Defending Liberties Without a Constitution – The Israeli Experience’ (1988) 16 Melbourne University Law Review, 815, 828. See e.g. Pnina Lahav, ‘American Influence on Israel’s Jurisprudence of Free Speech’ (1981) 9 Hastings Constitutional Law Quarterly, 21 and Norman Cantor, ‘On Clear and Present Danger, Clear Probability, and Free Speech Standards in Israel’ (1986) 16 Israel Yearbook on Human Rights, 260. Daphne Barak Erez, ‘From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective’ 317. Ivi, and Iddo Porat, ‘The Use of Foreign Law in Israeli Constitutional Decisions’, 156 ff. in particular.

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its own. As it has been remarked,63 this facilitated the use of foreign law in two senses. Firstly, it set aside one of the main objections to the use of comparative law in adjudication, i.e. the loyalty to an original text and original intent of the framers. Secondly, the reference to the experience of other countries became natural in the project of “building up a corpus of constitutional rights from scratch”,64 and the Court naturally turned its attention to the experience of countries with a developed and longstanding jurisprudence on the matter, in particular the United States of America. Evidence of this can be found in those studies that show how the Supreme Court’s human rights judgments tend to rely on comparative sources more than constitutional cases dealing with institutional matters.65 In our schematic division, the third phase in the life of the Supreme Court is that of the “constitutional revolution” after 1992. It has been a decisive phase for Israeli constitutionalism, the role of the Court, and its use of foreign law as well. As said, the idea that a “constitutional revolution” took place in Israel in 1992, with the enactment of the first Basic Laws on human rights, was a direct product of the Supreme Court with the seminal case Hamizrahi Bank v. Migdal. It consisted in the recognition that Basic Laws in Israel have a constitutional “supra-legislative” status, and that judges are empowered to enforce the limitations they entailed by judicial review of Knesset legislation, even if that power is not specifically provided by black-letter law. Such a Marbury v. Madison-style move has been represented in comparative terms since the very beginning. Hamizrahi Bank v. Migdal is a monumental case full of references to foreign material, in particular judicial precedents66 but also scholarship.67 The majority opinion issued by Aharon Barak opens by stating that “Israel is a constitutional democracy” which finally, in 1992, “joined the community of democratic countries (among them the United States, Canada, Germany, Italy and South Africa) with constitutional bills of rights”, becoming “part of the human rights revolution that characterizes the second 63 64 65 66

67

Iddo Porat, ‘The Use of Foreign Law in Israeli Constitutional Decisions’, 157. Ivi, 158. Suzie Navot, ‘Israel: Creating a Constitution’ 144. The judgments makes references to 116 precedent, 35 of those are foreign, 17 American, five were British, three Australian, three Canadian, two South African, two German, one Indian, two taken from the European Court of Justice and the European Court of Human Rights. Ranging from classic sources such as Dicey and Kelsen to recent English, American, Canadian, Italian, German constitutional law literature (published in English).

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half of the twentieth century”; it goes on by stating that since “the Knesset endowed the State of Israel with a constitutional bill of rights”, judicial review of the constitutionality of laws infringing human rights – which has “become the norm in most countries” – has become a feature of Israeli constitutionalism as well. To do so, the Court goes through a refined analysis of the experience of American constitutionalism, and the theorization in Marbury v. Madison for the creation of judicial review, and then it recognizes that “(T)he American experience with judicial review of constitutionality has spread well beyond that country (…) influenced constitutional thinking throughout the entire world (…) dominated the various constitutional systems established since the Second World War (…) was accepted as the guideline in all of the Eastern Bloc states since the liberation from Soviet control”, so that “express provisions in this regard appear in the constitutions that have been adopted by many states after the Second World War (see, e.g., the constitutions of Germany, Japan, Italy, Ireland, Austria, Cyprus, India, and Turkey)”. The theorization in Hamizrahi Bank v. Migdal moves from the American model to go comparative; and the Court expressly acknowledges the importance of comparative law in its adjudication, by stating that “the experience gathered in other places in the area under discussion here can assist us. We do not reject comparative study and research in any field of law, and generally it proves valuable”.68 In fact, the Israeli Supreme Court programmatically stated its openness to comparative law, and joined the ranks of those transnational judicial conversations based on cross-fertilizations through comparative material which were described by well-known studies of the last decade.69 But there is something more. It must be emphasized that the “constitutional revolution” was based first of all on the valorisation of the 1992 Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. These laws contain so called limitation clauses which are framed after the model of the notwithstanding clauses of the Canadian Charter of Rights and Freedoms. For instance, Section 8 of Basic Law: Human Dignity and Liberty reads as follows: “There shall be no violation of rights under this Basic Law except by a 68

CA 6821/93, 1908/94, 3363/94 United Hamizrahi Bank v. Migdal Cooperative Village [1995] IsrSC 49(4) 221., par. 90. 69 Anne M. Slaughter, ‘A Typology of Transjudicial Communication’ and Cristopher ­McCrudden, ‘Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (n 25); see also, inter alia, the rich reflections by Sujit Choudhry, The ­Migration of Constitutional Ideas (cup 2007) and Ruth Bader Ginsburg, ‘Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication’ (2004) 22 Yale Law & Policy Review, 329.

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law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than is required”. Already in Hamizrahi Bank v. Migdal, the clause has been interpreted as imposing a proportionality test on the interpreter.70 In this sense, the Israeli passage from a “non-textual” to a partly “textual” form of constitutionalism has naturally created the need for the Supreme Court to look in depth at new comparative material. In fact, the influence of Canadian constitutional sources on Israeli new Basic Laws led the Court to consider Canadian jurisprudence intensively:71 according to Navot, Canadian precedents are cited in more than 13% of Israeli constitutional cases, and only American cases are today more influential in quantitative terms.72 Moreover, references to national caselaw of countries using proportionality,73 such as Germany74 – already in Hamizrahi Bank v. Migdal – South Africa75 or India76 became usual.77 Two additional remarks are in order. The first remark. In the international literature there is sometimes some confusion, when dealing with the use of foreign material in adjudication, between the use of comparative law and international law.78 Israel is not the case since, in its programmatic openness towards transnational judicial conversations, the Supreme Court considers international law as well, even when not applicable 70 71 72 73

74 75 76 77 78

CA 6821/93, 1908/94, 3363/94 United Hamizrahi Bank v. Migdal Cooperative Village [1995] IsrSC 49(4) 221., par. 93, as remarked by Iddo Porat, ‘The Use of Foreign Law in Israeli Constitutional Decisions’, 1560-161. See Zeev Segal, ‘The Israeli Constitutional Revolution: the Canadian Impact in the Midst of a Formative Period’ (n 19). Suzie Navot, ‘Israel: Creating a Constitution’ 145–146. A common instrument for many constitutional jurisdictions, which is becoming a source of rich “transnational judicial conversations”, as noted by Alec Stone Sweet, Jud Mathews, ‘Proportionality, Balancing and Global Constitutionalism’ (2009) 47 Columbia Journal of Transnational Law, 72, and Moshe Cohen-Eliya, Iddo Porat, ‘American Balancing and German Proportionality: The Historical Origins’ (2010) 8 International Journal of Constitutional Law, 276. See on this David P. Currie, The Constitution of the Federal Republic of Germany (University of Chicago Press 1994), 30. See George Barrie, ‘The Application of the Doctrine of Proportionality in South African Courts’ (2013) 28 Southern African Public Law, 40. See Chintan Chandrachud, ‘Proportionality, Judicial Reasoning and the Indian Supreme Court’ (2017) 1 Anti-Discrimination Law Review, 87. Iddo Porat, ‘The Use of Foreign Law in Israeli Constitutional Decisions’, 161; Suzie Navot, ‘Israel: Creating a Constitution’ 145–146. See on this point Vicki Jackson, ‘Constitutional Law and Transnational Comparisons: the Youngstown Decision and American Exceptionalism’ (2006) 30 Harvard Journal of Law and Public Policy, 191.

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because the Israeli state is not bound by it. A recent study79 traced references to the Hague Convention (iv) respecting the Laws and Customs of War (1907), the Geneva Convention (iv) Relative to the Protection of Civil Persons in Time of War (1949), the Inter-American Commission on Human Rights, the European Convention for Protection of Human Rights and Fundamental Freedoms (1950), the Universal Declaration on Human Rights (1948), in the Israeli Court’s constitutional adjudication, especially in cases related to terrorism.80 The second remark. Fraught as it was with a comparative afflatus, the “constitutional revolution” took the use of foreign material by the Court at its apex. The aforementioned quantitative studies show that until 1994 almost one third of the Court’s cases addressed foreign precedents, while in 1995, the year of Hamizrahi Bank v. Migdal, foreign citation appeared in more than 50% of the judgments, and for the subsequent years, on average, in over one third of the cases.81 A drop was then reported by the same studies, for the last decade, until 15% of the total; and only recently the average went back to one third circa.82 There are several possible explanations for that. The first is the political backlash suffered by the Court after the “constitutional revolution”, which was not unanimously accepted:83 quite on the contrary, Israel lived in the last twenty years the paradox of judges of the Supreme Court who argued about of Israel’s formal constitution and discussed its details, “while the Chair of the Knesset, the Minister of Justice, or the head of the Israeli Bar Association denied its very existence during the same discussion”.84 Political initiatives to hijack the Court’s self-conferred powers of judicial review have been repeatedly tempted.85 In such a situation, one is tempted to think that the Court shied 79 80

Suzie Navot, ‘Constitutional Reasoning in the Israeli Supreme Court’ (n 21). See for instance hcj 769/02 Public Committee Against Torture in Israel v. Government of Israel, ver72(1), 507 (2006). 81 Suzie Navot, ‘Israel: Creating a Constitution’ 141. 82 Ivi. 83 See inter alia Menachem Hofnung, ‘The Unintended Consequences of the Unplanned Legislative Reform – Constitutional Politics in Israel’ (1996) 44 The American Journal of Comparative Law, 585, and Ruth Gavison, ‘Constitutions and Political Reconstruction? Israel’s Quest for a Constitution’ (2003) 18 International Sociology, 53. 84 R. Weill, ‘Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care’ (2012) 30 Berkeley Journal of International Law, 349, 351. 85 See for instance C. Price, ‘Israel cabinet backs bill restricting Supreme Court review power’, Jurist.org, 7th September 2008, available at the website http://www.jurist.org/ paperchase/2008/09/israel-cabinet-backs-bill-restricting.php (last access 22 November 2017) and A. Bottorff, ‘Israel bill would allow Parliament to overturn Supreme Court  decisions’, Jurist.org, 9th April 2012, available at the website http://www.jurist.org/paperchase/2012/04/israel-bill-would-allow-parliament-to-overturn-supreme-court-decisions .php (last access 22 November 2017). Interesting remarks are today in Daniel Friedmann, The Purse and the Sword: The Trials of Israel’s Legal Revolution (oup 2016).

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away from a discussed practice as the massive use of foreign law. Moreover, it must be reminded that the Court lost in the same period the influential guide of Aharon Barak, whose mandate as President expired in 2006: he was the first inspirer of the “constitutional revolution” and the new openness of the Court, not only with his crucial majority opinion in Hamizrahi Bank v. Migdal but also with his highly influential academic works.86 Of course, in any case, it must be noted that what is considered a minimum point, in quantitative terms, in the use of foreign material by the Israeli Court, is in any case evidence of an ordinary and relevant judicial practice – and we must remember that, normally, all the Court’s cases that use comparative law do so not sporadically but more than once and in an organic fashion.87 But in this respect, it must be also remarked that almost all the Supreme Court’s recent judgments of constitutional relevance, such as, e.g., Doe v. Ministry of Health,88 Eitanit Construction Products v. State,89 Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs,90 Shtanger v. Speaker of the Knesset,91 Adam v. Knesset,92 MK Hanin Zoabi V. The Knesset’s Ethics Committee,93 Desta v. The Knesset94 – which are all out of the scope of the aforementioned studies, since they were decided after 2010 – contain a comparative analysis, always organized in a single paragraph of the judgment with organic reference to both foreign judgments and foreign legal scholarship. In other words, the Supreme Court’s practice of using foreign law is still intense, and indeed is still one of the fundamental characteristics of Israeli judicial review.

86

87 88 89 90 91 92 93 94

Aharon Barak published seminal works on legal and constitutional interpretation in particular, the role of judges, the use of comparative law, the principle of proportionality: English versions of those are Aharon Barak, ‘Hermeneutics and Constitutional Interpretation’, (1993) 14 Cardozo Law Review, 767, Aharon Barak, ‘A Judge on Judging: The Role of a Supreme Court in a Democracy’ (2002) 116 Harvard Law Review, 19, Aharon Barak, Purposive Interpretation in Law (Princeton University Press 2005), Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (cup 2012). Iddo Porat, ‘The Use of Foreign Law in Israeli Constitutional Decisions’, 152 ff. hcj 4077/12 Jane Doe v. Th e Ministry of Health (5.2.2013). hcj 6971/11 Eitanit Construction Products v. State (2.4.2013). hcj 7245/10 Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs (4.6.2013). hcj 2442/11 Shtanger v. Speaker of the Knesset (26.6.2013). hcj 7146/12 Adam v. Knesset (16.9.2013). hcj 6706/14 Zoabi v. Knesset’s Ethics Committee (10.2.2015). hcj 8665/14 Desta v. The Knesset (11.8.2015).

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869

Being a Transnational Judicial Conversationalist: Institutional Aspects

The evolution of the Israeli Supreme Court’s role is a history of success of an institution that has become, more and more, a prominent participant in those transnational judicial conversations described by scholars as a global phenomenon based on comparative law. The Court has always made used of foreign material but has more and more intensified the practice in parallel with the growth in importance of its role. The phenomenon is institutionally relevant, one could say, from both an external and an internal perspective. We already made reference to the external dimension: given its prominent role, the Court’s judgments have different targets, since they are clearly aimed at the parties, the legislative branch and the government, the general public, the academic community (both national and international), and the other judicial institutions participants in transnational judicial conversations.95 This is made evident from the practice of translation and online publication of a selection of judgments. But there is also an internal institutional dimension that is worth highlighting. The Israeli Supreme Court is one of those transnational judicial conversationalists equipped of a special apparatus for the purpose. An Israeli Courts Research Division (“icrd”) was established in December 2010 under the auspices of the Supreme Court of Israel, as an independent judiciary-based applied research unit with the primary mission to assist the Israeli courts’ management and to enhance the efficiency, quality and functioning of the Israeli judicial system by supplying policymakers with the results of objective, empirically-based, analytic research. The icrd reports directly to the President of the Supreme Court of Israel. The body makes explicit in its website that it performs its mission through comparative legal research, together with quantitative and qualitative methodologies; and that its mandate is “to create bases of comparison with other judicial systems, with the view of furthering the exchange of data, ideas and methods, as well as better evaluating and evolving our policy reforms”.96 95 96

Suzie Navot, ‘Constitutional Reasoning in the Israeli Supreme Court’ (n 21). See the Israeli Courts Research Division’s website available at http://elyon1.court.gov.il/ heb/Research%20Division/Research%20Division%20-%20Eng.htm (last access 22nd November 2017).

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What is even more relevant, the Supreme Court has put in place a successful programme of foreign clerkships. Accredited lawyers and law students from other jurisdictions are selected on a regular basis and assigned to a specific Justice of the Court: their specific mandate is to “research comparative legal issues and draft memoranda regarding legal questions”.97 This creation is practically unique and can only be compared to the one of the South African Constitutional Court – another famous participant to transnational judicial conversations, with an explicit constitutional mandate to use comparative law98 – which regularly and officially recruits foreign clerks for its judges.99 Therefore, the Israeli Court’s massive use of foreign material has a clear internal source: and it is the same announcement in its website to make clear that “(U)nlike many common law systems that have a long, rich, and plentiful jurisprudence from which to draw upon, the State of Israel, a relatively young country, has a comparatively small body of jurisprudence. Thus, the Israeli Supreme Court often looks to American and Commonwealth precedent, as well as European countries, for inspiration in rendering its decisions”. In fact, such a programmatic manifesto corresponds to reality: an empirical study on the origin of the recently selected foreign clerks showed that they come in particular from the United States (in a vast majority), Canada, Australia, Germany, United Kingdom;100 not by chance these five jurisdictions, together with South Africa, range in similar proportions among the first six sources of foreign references in the Supreme Court’s judgments.101 97

See the Israeli Supreme Court’s website available at http://elyon1.court.gov.il/eng/Clerking_opportunities/index.html (last access 22nd November 2017). 98 See on this Ursula Bentele, ‘Mining for Gold: the Constitutional Court of South Africa’s Experience with Comparative Constitutional Law’ (2009) 37 Georgia Journal of International and Comparative Law, 219, and Andrea Lollini, ‘The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law’ (2012) 8 Utrecht Law Review, 55. 99 See on both the Israeli and the South African experience Andrea Lollini, ‘La Corte suprema dello Stato d’Israele’, in Luca Mezzetti (ed), Sistemi e modelli di giustizia costituzionale, vol. ii (cedam 2011), 383, 399 in particular. 100 Marie Gren, ‘An Empirical Study of Judicial Fertilization: the Use of Foreign Clerks by the Israeli Supreme Court’, paper presented at the 9th World Congress of the International Association of Constitutional Law, Olso, June 16–20 2014, available at the website https://www.jus.uio.no/english/research/news-and-events/events/conferences/2014/ wccl-cmdc/wccl/papers/ws5/w5-gren.pdf (last access 22nd November 2017). 101 Suzie Navot, ‘Israel: Creating a Constitution’ 145.

Index of Authors Abraham, H.J. 124 Abualhaj T.A.A. 775 Ackerman, B. 7, 112, 131, 139 Ademović, N. 716 Aedmaa, A. 506 Aitken, L.J.W 197 Ajani, G. 553 Akthar, Z. 138 Albers, J. 410 Albert R. Albert, J.M. 138 Albert, R. 140 Alen A. 372 Alexy, R. 4, 382, 502, 503, 506, 614 Alford, R.P. 107, 114, 129, 139, 441 Allan, J. 130, 210, 211 Almaya, J.A. 836 Almeida Ribeiro, G. 426 Alvez Marin, A. 2 Andenas, M. 1, 2, 15, 16, 22, 117, 129, 296, 355, 469, 551, 772, 774, 795, 828 Anderson, K. 111, 131 Andeweg R.B. 339 Annus, T. 502 Anzon, A. 549 Apple, J.G. 841 Araiza, W.D. 129 Arlović, M. 764 Aronchick Solows, S. 133 Aroney, N. 198 Aronson, M. 214 Arvin, S. 108 Aubert J.F. 405 Auer A. 405 Aust, H.P. 133 Avak’ian, S.A. 533 Avbelj, M. 2 Bader Ginsburg, R. 113, 865 Badinter, R. 2 Baglaï, M. 554, 557 Bagni, S. 552, 772 Baker, L.A. 138 Balkin, J.M. 129 Ball, M.S. 205

Banakas S. 346 Banks, W.C. 838 Baňouch H. 607 Baragwanath, D. 210 Barak Erez, D. 115, 448, 855, 856, 859, 861, 863 Barak, A. 58, 87, 142, 144, 168, 448, 496, 497, 606, 854, 855, 864, 868 Baranger D. 290 Barbić, J. 662, 752 Barić, S. 654, 658, 661, 663, 669, 674, 678, 681, 684, 761, 768 Barr, B. 112 Barrie, G. 866 Barsotti V. 449 Bartlett, R.H. 205 Bassols Coma, M. 375 Bassu, C. 194, 196, 199, 202, 210, 213, 214 Baudoin, M.E. 538 Bauknecht, A.W. 542 Baumbach, A. 410 Becerra Ramirez, M. 532 Becker, J. 550 Behrendt C. 373 Bell, J. 35, 36, 120 Belloubet N. 292 Belov, S. 545, 546, 550 Benacchio, G. A. 18, 746 Benedizione, L. 709 Bennett, C. 709 Bentele V. 130 Bentele, U. 870 Berat, L. 222 Bergonzoni G. 456 Berman, P.S. 3 Bernitz, U. 461 Berry iii, W.W. 116 Bertea, D. 120, 121 Besson S. 411 Bettini, R. 536 Bewicke, A. 130 Biagi, F. 716 Bickel, A. 8, 167, 295 Bierschbach, R.A. 116 Biscaretti di Ruffia, P. 357, 535

872 Black, R.C. 102 Blackmun, H.A. 113 Blackshield, A.R. 200 Blagojević, B.T. 749 Bobbio, N. 7, 354, 788 Bobek, M. 2, 35, 36, 67, 296, 299, 302, 318, 324, 594, 595, 596, 599, 601, 605, 607, 611, 614, 615, 616 Bodansky, D. 107 Bogdanovskaia, I 532 Bogisić, V. 748, 751 Bognetti, G. 148 Bolton, J.R. 113 Bomhoff, J. 130, 672 Bonell, V.E. 558 Bongiovanni, G. 4 Bonnet J. 270 Bork, R.H. 23, 113, 131 Born, G. 135 Borowski, M. 685 Božac, I. 667 Bradley, A.W. 195 Bradley, C.A. 107, 135 Bradley, C.M. 129 Brand, D. 218 Brand, O. 16 Brazier, R. 195 Brewer – Carias, A. 830, 832 Briand L. 270 Bröhmer J. 300 Bronitt, S. 208 Brunner, G. 623 Bryan, M. 207 Bryde B.O. 162, 300, 305, 316, 447 Bull, T. 465, 468 Burnham, W. 532, 536, 541, 562 Burrows, A. 67 Bushell A.A. 143, 144 Bushnell I. 145 Butler, A.S. 210, 214 Butt S. 780, 787, 788 Caianiello, V. 854 Calabresi, S.G. 13, 24, 97, 102, 107, 110, 120, 128 Calamo Specchia, M. 708, 756, 772, 774 Caligiuri, A. 543 Campilongo, C. 841 Canivet, G. 1, 273, 290, 556, 828

Index of Authors Cantor, N. 863 Cappelletti, M. 397, 775 Carcassonne G. 270 Cardenas Paulsen, A.M. 300, 303, 304, 319, 324 Carević, M. 667 Carey – Miller, D. 221 Carli, M. 708, 729, 756 Carolan, E. 85 Carpi, F. 410 Carriò, A.D. 838 Carrozza, P.G. 107, 350, 351, 355, 358 Cartabia M. 368, 449 Cartier E. 270 Cascajo Castro, J.L. 378 Casonato C. 144 Cassese S. 335, 771 Castles, A. 200 Ceccherini E. 141, 144, 175 Cendon, P. 553 Cervati, A.A. 4 Chaeva, N. 543 Chandrachud, C. 866 Chang, W.C. 115, 775, 776, 777, 778, 781 Charles, R.B. 179 Chaskalson, M. 220 Chen, V.J. 200 Cheng, E.K. 121 Chi-hye Suk, J. 7 Choundry, S. 1, 4, 7, 139, 319, 320, 321, 322, 386, 397 Chronowski, N. 632, 636 Čirkin, V.E. 532 Claes, M. 2 Clark, D. 132, 209 Clark, D.S. 132 Clark, W. 533 Cliteur, P. 726 Coalson, R. 555 Cohen – Eliya, M. 87, 866 Cohen, G. 116 Colesanti, V. 410 Comanducci, P. 4 Cooper, A. 536 Cooper, D.G. 166 Cooray, A. 191 Corcuera, S.H. 838 Cornes, R. 195

873

Index of Authors Cort, S. 218 Cotterell, R. 3 Cowen, M.P. 199 Cowen, Z. 200 Cowper, D.G. 148 Cozzarini, B. 548 Craig, D. 206 Craig, P. 210 Cram, I 130 Crespi Reghizzi, G. 535, 557 Criste, M. 690 Crock M. 196, 197 Čular G. 650, 658 Čulinović, F. 751 Currie D.P. 866 Curtin J. 208 Dahl, R. 4 Daly, E. 71, 75, 77 Daly T.G. 841, 842 Daly, Y. 74 Damiani P. 355, 372 Danelciuc-Colodrovschi, N. 531, 538, 553, 554 Darbyshire, P. 23 Davies G. L. 199, 203 Davis, D.M. 220 Davis, M.F. 117 Day O’Connor, S. 113, 784 De Franchis F. 145 De Paul Tetang F. 292 De Smith S. 195 De Smith, S.A. 181 De Vergottini, G. 1, 142, 149, 379, 439, 441, 457, 458, 531, 538, 564, 718, 773, 827, 831 De Visscher, P. 357 De Visser, M. 476, 478, 479, 774 De Vos, P. 218 Debré, J.L. 274 Dehousse, F. 364 Del Man, M. 3 Delahuntry, R.J. 110, 111 DeLaquil, M.W. 114, 121 Deleanu, I. 688, 689 Delpérée, F. 350, 352, 356, 357, 360, 364 Demelitner, N.V. 107 Denninger, E. 7

Depré, S. 369 Deyling, R.P. 841 Di Gregorio, A. 532, 533, 534, 538, 539, 543 Di Manno T. 271, 273, 277 Di Martino, A. 544 Di Plinio, G. 708, 729, 756 Di Robilant, A. 121 Dicosola, M. 737, 757 Dìez-Picazo, L.M. 377, 382 Dilcher, H. 410 Disant M. 270 Dixon, O. 198, 199, 200 Dixon, R. 432, 829 Doh, A. 117 Donaghue, S. 203 Doyle, O. 69, 72, 91, 92 Drechsler, W. 502 Drinan, R.R. 137 Drinóczi, T. 631, 633 Drobnig, U. 1, 15, 141, 200, 600, 607 Ducat, C.R. 141, 784, 785 Dudziak, M.L. 125 Duffy-Meunier, A. 277, 293 Dugo, S.O. 838 Duhamel O. 270 Dupic, É. 270 Dupré, C. 626, 635 Dupuis, R. 173 Duranti, F. 20, 209, 213, 214 Dus, M. 117 Dutheillet De Lamothe, O. 268, 283, 285 Dyer, B. 214 Dyzenhaus, D. 210, 211 Eberhard, H. 328, 333 Eberle, E.J. 7, 114, 448 Ejima, A. 803, 810 Ekins, R. 210 Emaus, J.M. 347 Èmeri, C. 267 Endicott, T. 214 Epp, C.R. 2 Epstein, L. 102, 442, 793 Erades, L. 344 Ernits, M. 502, 503, 505, 506, 526 Escarras, J.C. 272, 354 Everly, R. 718 Ewing, K.D. 195, 214

874 Fairgrieve, D. 1, 2, 15, 16, 22, 129, 296, 355, 469, 551, 772, 774, 795, 828 Fatima, S. 1 Favoreu, L. 264, 267, 270, 271, 272, 362, 554, 723, 741 Fede, F. 560 Fedtke J. 1, 11, 112, 130, 141, 142, 162, 273, 301, 313, 355, 446, 526, 551, 562, 828, 835 Feketekuti Mankovics, L. 618 Fellmeth, A. 117, 139 Fenntiman, R. 2 Fernández Segado, F. 405, 830 Ferrari, G.F. 1, 19, 30, 31, 105, 137, 196, 432, 436, 445, 469, 552, 713, 778, 782, 783, 787, 799, 829 Ferreira Santos, G. 842 Ferrer Mac-Gregor E. 2, 829 Ferreres Comella, V. 376, 589 Filippini, C. 531, 532, 533, 534, 548 Finn J. 209, 212 Finn P.D. 201 Fitt, V.A. 122 Fix Zamudio, H. 830 Fleuren, J.W.A. 2 Flyvbjerg, B. 32 Føllesdal, A. 463, 473 Fontana, D. 7, 129, 432 Ford, J. 207 Foxton, D. 121 Frachon, A. 6 Fredman, S. 803 Freedman, W. 218 Freidin, G. 536 Freire, A. 843 Freitas Mohallem, M. 832, 850 Friedman, A. 119 Friedman, L. 117 Friedman, L.M. 123 Friedmann, D. 867 Friedrich, C. 853 Friendly, H.J. 136 Freshman, M. 131 Fromont, M. 263, 272 Frosini, J.O. 726, 829, 830, 831 Frosini, T.E. 196 Frowein, J. 303 Fuchs, C. 327

Index of Authors Gahdoun, P.Y. 270 Galdámez Zelada, L. 846 Galen, A.I. 339 Galić, V. 719 Gallagher, P. 87 Galligan, B. 196, 197 Gambaro, A. 1, 30, 31, 552, 771, 829 Gamper, A. 326, 327, 328, 332 Gams, A. 753 Ganino, M. 357, 532, 536, 538, 548 Garay, A.F. 838 García Belaunde, D. 829, 830 Gardbaum, S. 129 Gárdos-Orosz, F. 623, 624 Gargarella, R. 831 Garlicki, L. 567, 587 Garnett, R. 131 Garrorena Morales, A. 378 Gaudreault-Des Biens, EG. 154 Gavison, R. 855 Gay, L. 270, 273 Geddis, A. 214 Gel’man, V. 550 Gelinas, F. 154 Gelter, M. 433, 444, 445, 556 Gentili, G. 143, 159, 162 Gerards, J.H. 2, 346 Gerber, A. 404, 407 Gerotto, S. 144 Gibbs, H. 198 Giesen, I. 129 Gilmore, G. 96, 123 Gleeson, M. 197 Glensy, R.D. 97, 131, 134, 383, 445 Glenu, H.P. 396 Gobbi, M. 211 Gobbo, M. 142, 147, 194, 196, 213 Godi, M. 121 Goedde, P. 2 Goetz, A.M. 131 Goh, Y. 797 Goldberg, G. 854, 855 Goldsmith, C. 858 Goldsmith, J. 135 Goldštajn, A. 752, 753 Goldsworthy, J. 197, 198 Gordley, J. 114 Gorla, G. 782

875

Index of Authors Gozaini, O.A. 830 Gozzi, G. 710 Grabenwarter, C. 325, 328, 330, 332, 333, 334, 335, 336 Graf von Kielmansegg, S. 299, 495 Granat, M. 580 Graziadei, S. 723 Greene, S.A. 550 Gren, M. 870 Grewe, C. 723, 733, 737, 738, 740, 741, 742 Grieco, T. 549 Grinc, J. 591, 601 Groppi, T. 1, 140, 142, 144, 158, 203, 227, 273, 295, 327, 355, 382, 469, 546, 550, 595, 771, 803, 813, 845, 858 Gross, M. 858 Grossi, P. 3 Grossman Curran, V. 129 Groves, M. 214 Groves, S. 113 Guazzarotti, A. 543 Guberman, S. 863 Gudkov, L. 550 Guggenheim, M. 116 Guillaume, M. 290 Gulati, M. 135 Guțan, M. 707 Gutfeld, A. 857 Gutierrez, N.C. 135 Gutman, K. 16 Gutteridge, H.C. 66 Haberl, S. 298, 303, 321 Haberle, P. 4, 301, 304, 305, 316, 319, 381, 426, 441, 446, 447, 503 Habermas, J. 4, 121 Hadžić, J. 751 Hailbronner, M. 296, 297, 298, 299, 300, 317 Halberstam, D. 138 Halberstam, M. 857 Haldane, R. 196 Halmai, G. 469, 526, 551, 593, 635, 636 Harding, A. 221, 538, 773, 778, 780, 781, 797, 798 Harding, S.K. 484, 617, 131 Harouel, J.L. 7 Harris, H. 139 Harrison, J.C. 135

Harrison, W.N. 200 Hartmann, P. 410 Hassen, E. 217, 220 Hatchard, J. 223 Hathaway, O.A. 133 Hausmaninger, H. 537 Hechinger, S.R. 116 Heidebach, M. 298 Held, D. 3 Helgadòttir, R. 462, 467, 470 Hellegers, D.M. 130 Helmke, G. 831 Henderson, J. 532, 538 Hendley, K. 545 Henkin, L. 121, 133, 134, 167 Herder, J.G. 25 Hernández Valle, R. 829 Herrera García, A. 2 Hickey, T. 71, 77 Hiebert, J.L. 210 Hirschl, R. 1, 23, 115, 121, 386, 441, 446, 448, 462, 469, 473, 550 Hitchcock, W.I. 2 Hochmann, T. 293 Hoeffel, J.C. 116 Hoffman, P.L. 137 Hoffman – Riem, W. 301 Hogan, G. 71, 72, 84, 88 Hogg, P. 88 Hogg, P.W. 141, 143, 144, 166 Holland, T. 346 Höllander, P. 591, 614 Hongju Koh, H. 111 Hoogvelt, A. 126 Horevoets, C. 369 Hösch, E. 708 Hottelier, M. 405 Howell, P.A. 195 Huber, P.M. 296, 333, 335, 336 Hunt, M. 211 Huntington, S.P. 6 Hupin, A. 718 Hurrell, A. 4 Husa, J. 3, 17, 21, 461, 462, 464, 465 Huscroft, G. 130, 209, 211 Ignatieff, M. 125, 126, 128, 129, 131, 139 Iorgovan, A. 686

876 Iriye, A. 2 Izumi,T. 819 Jackson, D.F. 197, 198 Jackson, V. 1, 13, 91, 100, 107, 113, 115, 129, 149, 152, 202, 396, 432, 833, 866 Jackson, V.J. 129 Jacobson, G.J. 131 Jacquelot, F. 282 James, C. 209 Jamieson, N. 212 Jaremba, U. 2 Jenkins, C.D. 171, 205 Jestaedt, M. 295 Johnston, D. 67 Joseph, P. 209, 211, 215 Joseph, R. 215 Kahn, P. 118, 139 Kaiser, A.B. 296, 300, 316, 317 Kalb, J. 121 Kälin, W. 405 Kangro, K. 504 Kau, M. 296 Kavanagh, A. 74 Keil, S. 709 Kelemen, K. 300, 428, 483, 484, 687 Kelsen, H. 384 Kende, M. 130 Kennedy, D. 22 Kenny, D. 87, 88, 89, 90, 91 Kern, C. 23 Kerr, A.J. 121 Kersch, K.I. 8, 114, 131 Kham, N.Y. 781 Kiefel, S. 201 Kiekbaev, D. 542 Kiikeri, M. 2 Kirby, M. 142, 203, 208 Kirchof, P. 113 Kirk, J. 197 Klein, D.G. 220 Kleinheisterkamp, J. 837, 840, 841, 844 Klug, H. 218, 382 Knauff, M. 334 Kodera, A. 815 Kof, H.H. 107 Koltay, A. 636

Index of Authors Komarek, J. 2 Komáromi, L. 637 Kommers, D.P. 113, 301, 305, 317 Konstantinović, M. 753, 755 Koolmeister, I. 506 Koopmans, T. 835 Korobejnikov, B.V. 534 Koroteev, K. 541 Koseki, S. 801 Koshiyama, Y. 806 Kötz, H. 320, 411, 496, 497 Koutnatzis, S.I.G. 129 Kovler, A. 538 Kramer, E.A. 410 Krbek, I. 753 Kremyanskaya, E.A. 532 Kretzmer, D. 856, 861, 863 Krug, P. 541 Ku, J.G. 138 Kühn, Z. 497, 589, 590, 594, 598, 601, 605, 607, 609, 612, 616 Kuhn, T. 25 Kukhlivskiy, V.S. 540 Kulenović, N. 716, 717, 725, 741, 742 Kumm, M. 136 Kundra, O. 606 Kursiša, E. 484 Kuzes, I.Y. 536 Kuznetsova, T.O. 532 Kymlicka, W. 147 Kysela, J. 589 L’Heureux – Dubé, C. 91, 151, 162, 164, 174 La Forest, G.V. 146, 153, 244 Lachmayer, K. 334 Laffranque, J. 502, 506 Lahav, P. 861, 863 Lajoie, A. 176 Lake, D.A. 131 Lane, P.H. 196, 198 Langbein, J. 112, 203 Larkin, P. Jr. 135 Larralde, J.M. 710 Larsen, J. 107 Latouche, S. 7 Lauterbach, W. 410 Lavapuro, J. 466 Lavinbuk, A.N. 97

Index of Authors Lavrysen, L. 373 Law, D.S. 4, 111, 121, 131, 382, 441 Lazarev, V.V. 532 Le Bot, O. 277 Le Quinio A. 273, 293, 556 Ledeneva, A.V. 545 Lee, E. 130 Lee, J.T. 130, 777, 795, 796 Legeais, R. 273 Legrand, P. 1, 121 Lenaerts, K. 16 Lenin, V.I.U. 534 Lerner, C.S. 116 Lesage, M. 538 Levasseur, A.A. 24, 97, 100, 141 Levinson, S. 111, 129 Levits, E. 489 Leyland, P. 1, 538, 778 Limbach, J. 685 Lindblom, P.H. 463 Linder, W. 405 Lipset, S.M. 127 Liptak, A. 385 Lirou, R. 533 Little, L.E. 110 Locke, J. 67 Lõhmus, U. 504, 505, 506 Lollini, A. 217, 218, 431, 432, 870 Long, J.R. 117 López Guerra, L. 379, 395 Lopez Ulla, J.M. 830 Lopman, E. 506 Louvin, R. 350 Lovrić, V. 764 Luchaire, F. 277 Ludwikowski, R.R. 776, 832, 833 Lugones, N.J. 838 Luhmann, N. 7, 446 Lund, N. 107 Lynch, N. 130, 211 Mac Cormaic, R. 74, 79 Machelon, J.P. 277 Madise, Ü. 504 Maggs, P.B. 532, 536 Magnet, J.E. 172 Magnon, X. 270 Mahon, P. 405

877 Mahoney, R. 209 Mak, E. 23, 31, 32, 33, 34, 35, 36, 143 Mälksoo, L. 505 Mance, Lord 67 Mancini, S. 855 Manfredi, C.P. 153 Maniaci, A. 541 Maoz, A. 863 Marani, G. 410 Marcus, P. 208 Markesinis, B. 1, 8, 9, 10, 11, 130, 141, 142, 162, 219, 223, 224, 273, 300, 313, 355, 446, 551, 552, 828, 835 Marko, J. 710, 714, 716, 721, 723, 725, 727, 734, 737, 741 Markovits, R.S. 111 Marshfield, J.L. 121 Marsić, T. 710 Martini, S. 295, 296, 297, 298, 299, 300, 303, 304, 309, 312, 316, 317, 318 Martinico, G. 2 Maruste, R. 502, 504, 506 Mason, A. 197, 201, 202, 203, 216, 787 Massias, J.P. 532, 534, 535, 538 Mastor, W. 272, 290 Mathews, J. 98, 114, 866 Mathieu, B. 277 Matić, Ž. 752 Mattila, H.E.S. 782 Maugüé, C. 270 Maus, D. 264, 273, 285, 773 Mautner, M. 854, 856 Mavčić, M. A. 767 Mayrhofer, M. 333 Maziau, N. 284, 709, 718, 725, 728 Mazingo, J. 108 Mazza, M. 531, 534, 536, 538, 541, 547, 553 Mazzarrese, T. 4 McLachlin, B. 208 McCallum, R. 196, 198 McCornick, P. 151 McCrudden, C. 4, 168, 738, 858, 865 McElroy, S. 133 McGinnis, J.O. 107, 111, 433 McGrew, A. 3 McHugh, M. 198, 200 McIntyre, J. 198 McLean, J. 130, 210

878 McNeil, K. 205 Medushevskii, A. 532 Mélin-Soucramanien, F. 277, 289 Menachem, H. 867 Menachem, M. 854, 856 Mérieau, E. 779 Merusk, K. 506 Meyer, M.J. 7 Meyers, G.D. 206 Mezzetti, L. 538, 829, 836, 870 Michelman, F. 125 Michels, R. 129 Mihelson, H. 504 Milano, E. 709 Miller, J.M. 833, 834, 836, 838 Miller, R.A. 301, 305, 317 Milne, J.E. 495 Milne, M.R. 795 Miloš, M. 654, 658, 674, 678, 681, 757, 761, 762, 768 Milton Colvin, H. 96 Minow, M. 22 Mirkine-Guetzevitch, B. 266 Mirow, M.C. 833 Mitchell, P. 196 Modi, N. 122 Moerman, J.P. 373 Mohd Yusoff, M.Y. 775 Moline ,F. 373 Monateri, P.G. 15, 17, 772 Montanari, L. 708, 713, 714, 720, 729, 756 Moore, J.N. 139, 784 Moravcsik, A. 131 Morgan, G.G. 534 Morton, F.L. 143 Mota, J.L. 1 Motroni, M. 757 Mratović, V. 655 Mui-Watt, H. 5 Mullan, D. 211 Muller, S. 1, 8, 131 Munday, R. 1 Murchison, M.J. 723 Mykyta, S. 205 Napolitano, T. 534 Nardi, D.J. 781 Narits, R. 502

Index of Authors Nash Rojas, C. 2 Navia, P. 829 Navot, S. 857, 858, 859, 864, 866, 867, 869, 870 Ndulo, M. 223 Neergard, U. 2 Nelken, D. 21, 690 Nelson, L.D. 536 Nergelius, J. 462, 468 Nettheim, G. 206 Neudorf, L. 144, 198, 387 Neuman, G.L. 129, 136, 138, 139 Neves, M. 835 Nguyên Duy, I. 463, 464, 466, 467, 468, 472 Nicholson, P. 776, 778, 780 Nicola, F.G. 115, 130 Nicolini, M. 552, 772 Nielsen, R. 2 Nikolić, P. 756 Nogueira Alcala, H. 829, 847 Nottage, L. 215 Novak, M. 720 Nowak, J.E. 136 O’Leary, B. 738 O’Mahony, C. 85 O’Scannlain, D.F. 214 O’Scannlain, D.E. 107 Oberheiden, N. 323 Oestreich, G. 7 Oguamanam, C. 204 Olbrechts-Tyteca, L. 374 Oliver P. 195 Olivetti Rason, N. 144, 158, 548, 756 Omejec, J. 652, 656, 657, 658, 660, 662, 671, 672, 678, 679, 681, 682, 683, 684, 685 Opeskin, B. 196 Optican, S. 209 Oquendo, A.R. 833 Orrù, R. 217, 429 Örükü, E. 16, 21, 690 Osiatynsky, W. 654 Ost, V. 369 Ostberg, C.L. 141 Otero Crespo, M. 379 Palao Moreno, G. 1 Palermo, F. 725, 744

879

Index of Authors Palici di Suni, E. 552, 772, 775 Palmer E. 296, 309 Palmer, G. 210, 211, 212, 214 Pangalangan, R.C. 776 Papadopoulos, Y. 405 Paprocka, A. 587 Parent, W.A. 7 Parodi, J.L. 264 Parrest, N. 506 Parrish, S. 536 Passaglia, P. 267, 282, 288, 450, 454, 457, 548 Patapan, H. 197 Patel, F. 117 Peces-Barba Martinez, G. 7 Pedrioli, C.A. 131 Pegoraro, L. 219, 355, 372, 442, 451, 531, 552, 556, 557, 756, 772, 774, 775, 829, 830, 831 Pellonpää, M. 334 Pengilley, W. 201 Perelman, C. 374 Pérez Tremps, P. 375 Perry, B.A. 124 Perry, J. 206 Perry, V. 709 Peyton, T.A. 114 Philippe, X. 270, 277, 550 Pilving, I. 504, 506 Pino, G. 4 Pirjevec, J. 708 Pištan, C. 531, 652, 716 Pleps, J. 489, 500 Pollicino, O. 2 Pollock, F. 195 Ponthoreau, M.C. 1, 140, 203, 227, 273, 289, 295, 327, 355, 382, 469, 473, 546, 557, 595, 771, 803, 813, 832, 837, 845, 858 Popkin, W.D. 185 Popper, K.R. 20, 25 Porat, I. 87, 859, 860, 863, 864, 866, 868 Posner E.A. 110, 114, 115, 131, 143 Posner, R.A. 102, 110, 114, 441, 444, 785 Potočnjak, Ž. 662 Poudret ,J.F. 411 Pound, R. 96, 97, 284 Pozzolo, S. 4 Prasatik, S. 117 Prebble, R. 211 Prechal, S. 343

Priestley, L. 207 Principe, M. 211 Pringle, J. 213 Procida Mirabelli di Lauro, A. 552, 772 Quint, P.E. 295 Rabasa, E.O. 844 Rabin, Y. 857 Rabkin, J. 139 Ragin, C.C. 23 Rahdert, M.C. 128 Rakitskaya, I.A. 532 Ramsay, M.D. 139 Randazzo, B. 549 Randone, F. 540 Rankin, G. 195 Rasson-Roland, A. 350, 354, 356, 360, 369 Rasy, C. 780 Rautenbach, C. 226, 248, 813 Ravaz, B. 271 Rawlings, R. 1 Redfern, M. 201 Rehnquist, W.H. 113 Reid, C.J. Jr. 103 Reimann, M. 21, 132, 140, 598 Remington, T. 536 Renders, D. 350, 352 Requejo Isidro, M. 379 Resnik, J. 7, 117, 128 Richards, S. 1, 8, 131 Richardson, I. 210 Ridola, P. 355, 451, 548, 828 Riegner, M. 733, 737, 738, 742 Rievlin, E. 115 Riles, A. 129 Rinella, A. 219, 531 Rio J. 273, 276, 278, 286 Ríos-Figueroa , J. 829, 831 Rishworth, P. 209 Rivlin, E. 854 Roach, K. 143, 171 Robert, J. 288 Roberts, A.E. 136 Roberts-Wray, K. 196 Rodiles, A. 133 Rodin, S. 556, 656, 667, 684 Rodiņa, A. 479, 480, 481

880 Rodriguez-Ferrand, G. 836, 841 Rogers, A.J. 198 Rolla, G. 829, 830 Rosenfeld, M. 478, 526, 551, 593, 828, 855 Rosenkrantz, C.F. 833, 834, 835, 839, 444 Rosenkranz, N.Q. 135 Rosenn, K.F. 835 Rossi, E. 548 Rothenberg, L.E. 107 Rotunda, R.D. 136 Roudik, P. 836 Rous, A. 208 Rousseau, D. 270, 272, 277, 284 Rousseau, J.J. 268, 270 Rozakis, C. 142, 496 Ru Zhou, H. 91 Rubenfeld, J. 111 Rubinstein, E. 855 Rubio Llorente, F. 376 Ruggie, J.G. 131 Rumessen, V. 504 Ruskola, T. 115, 131 Russell, P.H. 143, 145, 148, 206 Russell, S.F. 116 Rychetský, P. 590, 591 Rytter, J.E. 462 Sable, S.M. 130 Sacco, R. 20 Sackville, R. 196, 210 Safford, F. 195 Safta, M. 686 Saidov, A.K. 542 Sajó, A. 478, 526, 551, 593, 828 Samar, V.J. 135 Samuel, G. 16, 22 Sanchez, E.J. 134, 444 Sánchez Gil, R. 845 Sanchez Urribarri, R.A. 829, 830 Santana Herrera, M.S. 379 Šarin, D. 761 Sarmiento, D.F. 834 Sarra, C. 120, 121 Sartori, G. 854 Sauer, H. 296, 300, 306, 319 Saunders, C. 130, 162, 197, 199, 203, 206, 444 Sauvé, J.M. 280 Schauer, F. 129, 130, 211 Schaumburg-Müller, S. 468

Index of Authors Schmidlin, B. 410 Schmidt, C. 540 Schmitt, C. 329, 384, 396, 784 Schubarth, M. 405 Schwartz, A. 723 Schwartz, O. 532, 536 Schwarz-Schilling, C. 737 Sciannella, L.G. 351 Scotti, V.R. 709, 737 Secher, U. 204 Sedley, S. 209 Segal, L. 218 Segal, Z. 857, 866 Segev, J. 855 Senden, H. 2 Serio, M. 552 Setear, J.K. 134 Seurin, L. 267 Shabas, W.A. 137 Shachar, Y. 858 Shaker Al-Omran, N.M. 775 Shakhray, S. 532 Shapira, A. 863 Shetreet, S. 856 Shinar, A. 131 Shubhankar, D. 192 Siegler, A. 116 Siems, M. 114, 433, 444, 445, 456 Sikking, K. 130 Silverman, B.G. 97, 120 Simon, S.A. 14, 15, 24, 97, 100, 102, 119 Simonart, H. 369 Simoncini, A. 449 Sitaraman, G. 102, 837 Sitek, B. 542 Sládeček, V. 591 Slagstad, R. 462 Slattery, B. 175 Slaughter, A.M. 3, 23, 113, 131, 143, 380, 469, 773, 828, 850, 858, 865 Slinn, P. 223 Sloss, D. 138 Smekal, H. 602 Smerdel, B. 652, 655, 656 Smith, C. 462, 469 Smith, E. 463, 468 Smith, R. 116 Smith, G. 532, 534, 537 Smiths, J.M. 16

881

Index of Authors Smits, J.M. 140, 346, 496 Smorto, G. 772 Sokol, S. 656, 659 Sólyom, L. 626, 634, 635 Somma, A. 1, 15, 303, 321, 451 Sossin, L. 141, 166 Spale, A. 481 Spector, H. 833, 834, 839 Sperti, A. 355, 451, 850 Spiro P.J. 138 Stahl, J.H. 270 Stanić, B. 665 Starck, C. 3 Staubach, P. 133 Staudinger, J. 410 Steiker, C.S. 129 Stein, E. 198 Steinberger, H. 478 Steiner, C. 716 Steiner, K. 795 Stephan, P.B. 133 Stiglitz, J.E. 3 Stone, A. 203, 208, 266 Stone Sweet, A. 114, 866 Strachoune, B. 538 Street, L. 198 Stremler, M. 726 Stresec M. 662 Stumpf, I. 623, 629, 632, 638, 639, 640 Sullivan, B. 116 Sunstein, C. 114 Sunstein, C.R. 129 Szczerbowski, J.J. 542 Szente, Z. 622, 624, 626, 628, 629, 631, 632, 634, 635, 636 Taggart, M. 211, 214 Takayanagi, K. 815 Tan, P. 797 Tarchi, R. 360, 757 Taruffo, M. 828, 410 Tavares, L. 841 Tebbe, N. 115 Tenorio, P. 379, 382 Terbeek, C.J. 114 Theunis, J. 373 Thio, L. 795, 796, 797 Thiruvengadam, A.K. 193, 796, 798 Thornton, A.A. 143

Thorson, C.L. 538 Thuo Gathii, J. 134 Tichý, L. 591 Toader, C. 687 Tokarev, V. 538 Tomasi, M. 144 Tomes, R.R. 128 Tomizawa,T. 805 Tondi della Mura, V. 553 Toniatti, R. 708, 729, 756 Topornine, B.N. 538 Török, B. 636 Torre, A. 30, 31 Toumanov, V.A. 542, 554, 555 Trajković, J. 754 Traut, J.C. 538 Trazzi, M.R. 791 Trochev, A. 538, 541 Trstenjak, V. 756 Tsai, R.L. 115 Tsan –Ta Lee, J. 130 Tsatsa-Nikolovska, M. 724, 740, 741 Tuleja, P. 574 Tuori, K. 466 Turković, K. 662 Tushnet, M. 7, 23, 113, 114, 118, 119, 127, 129, 144, 149, 152, 155, 211, 386, 394, 397, 398, 441, 828 Tusseau, G. 272 Tuzmukhamedov, B. 539 Tyrrell, H. 2, 35, 36, 66 Umland, A. 550 Valencia Carmona, S. 830 Van Der Vyver, J.D. 111 Van der Walt, A.J. 220 Van Dijk, P. 343 Van Erp, S. 1, 141, 200, 600, 607 Van Hoecke, M. 16 Van Niekerk, G.J. 221 Vanwelkenhuyzen, A. 357, 358 Vassilieva, T. 532 Vazquez, C.M. 133, 136 Vedaschi, A. 531, 778 Vedriš M. 752 Velsker, L. 504 Vene, E. 506 Verdussen, M. 350, 369

882 Vereshchagin, A. 542 Vermeule, A. 110 Vernet, D. 6 Verpeaux, M. 270 Versteeg, M. 4, 121, 128, 131 Viala, A. 284 Villalón, P.C. 353 Vinx, L. 329 Vitruk, N.V. 532 Vizioli, N. 360 Voermans, W. 337, 341, 343, 346, 726, 784 Voeten, E. 3 Volokh, E. 117, 131 Volpe, G. 11 Volterra, S. 144, 146, 149, 157, 175 Von Beyme, K. 353 Von Bogdandy, A. 333, 335, 733 Von Busse, C.D. 297, 303 Von Nessen, P. 199 Vyhnánek, L. 594, 601, 602, 605 Waldron, J. 22, 91, 108, 120 Walker, R. J. 81, 195 Walpola, S. 200, 201

Index of Authors Walt, S.M. 128 Waters, M. 29, 107 Watson, A. 198, 831 Waye, V. 208 Webber, J. 141 Weber, M. 25 Wedernikov, N.T. 531 Weiler, J. 367, 368 Weill, R. 867 Weinrib, L.E. 141, 149 Weisburd, A.M. 135, 138 Wetstein, M.E. 141 Wheeler, G. 195 Woelk, J. 708, 710, 711, 747, 748, 756 Xiol Rìos, J.A. 379 Young, E.A. 12, 102, 112, 136, 138 Zagrebelsky, G. 4, 447 Zimmermann, R. 67, 132, 140, 496, 497, 837 Zorzi-Giustiniani, A. 754 ZuñigaUrbina, F. 2

Index of Cases AUSTRALIA AND NEW ZEALAND Williams v Booth [1910] 10 clr 341, 350 Deatons Pty Ltd v Flew [1949] 79 clr 370 Australian Steel & Mining Corpn Pty Ltd v Corben [1974] 2 nswlr 202 Viro v The Queen [1978] 18 ALR 257 McInnis v R. [1979] 27 Alr 449 Johns v The Queen [1980] hca 3; (1980) 143 clr 108 Miller v The Queen [1980]55 aljr gre Insurance Ltd v Ormsby [1982] 29 sasr 498 Gould v Vaggelas [1984] 157 clr 215 R v Bonython [1984] 38 sasr 45 Dietrich v R. [1992] Alr 385, 426 Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd [1994] 182 clr 51; 126 alr 1 Breen v Williams [1994] 35 NSWLR 522 McAuliffe v The Queen [1995] 183 clr 108 Nelson v Nelson [1995] hca 25 News Ltd v Australian Rugby Football League Ltd [1996] 135 Alr 33 Fitzgerald v F J Leonhardt Pty Ltd [1997] hca 17 Tiep Thi Ho v Australian Associated Motor Insurers Ltd [2001] vsca 48 Gillard v The Queen [2003] 219 clr 1 Al-Kateb v Godwin [2004] 208 Alr 124 Clayton v The Queen [2006] 231 alr 500 Habib v Commonwealth of Australia [2010] fcafc 12 Moti v The Queen [2011] hca 50, 245 clr 456 AUSTRIA Constitutional Court 9138/1981 Constitutional Court 9446/1982 Constitutional Court 10.029/1984 Constitutional Court 10.291/1984 Constitutional Court 11.500/1987 Constitutional Court 11.260/1987 Constitutional Court 11.297/1987 Constitutional Court 12.104/1987 Constitutional Court 13.629/1993 Constitutional Court 15.632/1999 Constitutional Court 17.600/2000

Constitutional Court 17.979/2006 Constitutional Court 18.031/2006 Constitutional Court 18.792/2009 Constitutional Court 18.893/2009 Constitutional Court 19.492/2011 Constitutional Court 19.653/2012 Constitutional Court 19.678/2012 Constitutional Court 19.702/2012 Constitutional Court 19.892/2012 Constitutional Court 19.899/2014 VfGH 05.03.2015, G 107/2013-11 VfGH 15.03.2017, V 162/2015-50 BELGIUM Cour Constitutionnelle decision 15.7.1993, no. 62 Cour Constitutionnelle decision 1.12.1993, no. 83 Cour Constitutionnelle decision 14.7.1994, no. 61 Cour Constitutionnelle decision 2.3.1995, no. 19 Cour Constitutionnelle decision 27.3.1996, no. 24 Cour Constitutionnelle decision 25.3.2003, no. 35 Cour Constitutionnelle decision 30.4.2003, no. 49 Cour Constitutionnelle decision14.5.2003, no. 58 Cour Constitutionnelle decision 26.2.2003, no. 30 Cour Constitutionnelle decision 26.5.2003, no. 73 Cour Constitutionnelle decision 13.7.2005, no. 124 Cour d’Arbitrage decisions 25.10.1985, numbers 4, 5 e 6 Cour d’Arbitrage, decision 26.6.1986, no. 24 Cour d’Arbitrage decision 23.12.1987, no. 44 Cour d’Arbitrage decision 11.2.1988, no. 46 Cour d’Arbitrage decision 27.6.1996, no. 24 Cour d’Arbitrage decision 15.5.1996, no. 32 Cour d’Arbitrage decision 6.11.1997, no. 67 Cour d’Arbitrage decision 17.12.1997, no. 77

884 BOSNIA – HERZEGOVINA Constitutional Court, U-7/97 22/12/1997 Constitutional Court, U-5/98 III Constitutional Court, U-3/98 5/06/1998 Constitutional Court, U-7/98 del 26/02/1999 Constitutional Court, U-11/98 del 26/02/1999 Constitutional Court, U-1/99, 14/8/1999 Constitutional Court, U-9/00 Constitutional Court, U-16/00 Constitutional Court, U-25/00 Constitutional Court, U-5/98 III, 1/07/2000 Constitutional Court, U-37/01 Constitutional Court, U-26/01, 28/09/2001 Constitutional Court, U-19/01, 2/11/2001 Constitutional Court, U-148/03, 28/11/2003 Constitutional Court, U-15/03, 28/11/2003 Constitutional Court, U-148/03 Constitutional Court, U-15/03 Constitutional Court, AP-1123/04 Constitutional Court, AP-661/04 Constitutional Court, U-63/03, 27/02/2004 Constitutional Court, U-2/04 28/05/2004 Constitutional Court, U-8/04 25/06/2004 Constitutional Court, AP-921/04, 17/12/2004 Constitutional Court, AP-464/04, 17/02/2005 Constitutional Court, U-464/04, 17/02/2005 Constitutional Court, AP-661/04, 22/04/2005 Constitutional Court, U-10/05, 22/07/2005 Constitutional Court, U-5/04, 31/03/2006 Constitutional Court, AP-1123/04, 31/03/2006 Constitutional Court, U-13/05, 26/05/2006 Constitutional Court, AP-953/05, 8/06/2006 Constitutional Court, AP-953/05, 8/07/2006 Constitutional Court, AP-2678/06, 29/09/2006 Constitutional Court, AP-953/05, 23/03/2007 Constitutional Court, U-6/06, 29/03/2008 Constitutional Court, U-16/08, 20/05/2008 Constitutional Court, U-15/08, 3/07/2009 Constitutional Court, U-5/09, 25/09/2009 Constitutional Court, U-5/09, 25/10/2009 Constitutional Court, AP-2130/09 Constitutional Court, U-14/09, 30/01/2010 Constitutional Court, U-16/06, 30/3/2010 Constitutional Court, K-I-15/10, 4/03/2010 Constitutional Court, K-I-15/10, 8/05/2010 Constitutional Court, AP-2130/09, 28/05/2010 Constitutional Court, AP-1307/08, 9/07/2010 Constitutional Court, AP-4101/09, 30/03/2012

Index of Cases Constitutional Court, AP-3153/09, 15/05/2012 Constitutional Court, AP-1381/12, 12/07/2012 Constitutional Court, U-7/12, 30/01/2013 Constitutional Court, U-14/12, 26/03/2015 Constitutional Court, U-25/14 and U-26/14, 9/07/2015 Constitutional Court, AP-3947/12, 9/07/2015 Constitutional Court, U-3/13, 26/11/2015 Constitutional Court, U-25/14 and U-26/14, 9/07/2015 CANADA Labatt Breweries of Canada Ltd. v Attorney General of Canada [1980] 1 s.c.t Law Society of Upper Canada v Skapinker [1984] 1 s.c.r R. v Big M Drug Mart Ltd. [1985] 1 s.c.r. Operation Dismantle v The Queen [1985] 1 s.c.r. R. v Oakes [1986] 1 s.c.r. R. v Rahey [1987] 1 s.c.r. R. v Crown Zellerbach Canada Ltd. [1988] 1 s.c.r. Ford v Quebec (Attorney General) [1988] 2 s.c.r. Andrews v Law Society of British Columbia [1989] 1 s.c.r. Schachter v Canada [1992] 2 s.c.r. 679 Hall v Hebert [1993] 2 s.c.r. 159 Rodriquez v Canada, [1993] 3 s.c.c. 519 rjr MacDonald v Canada [1995], 3 s.c.r. 199 R. v Van der Peet [1996] 2 s.c.r. Delgamuukw v British Columbia, [1997] 3 s.c.r. Still v Minister of National Revenue (1997) 154 drl (4th) 229 Vriend v Alberta [1998] 1 s.c.r. R. v Sundown [1999] 1 s.c.r. Corbiere v Canada (Minister of Indian and Northern Affaire) [1999] 2 s.c.r. Kitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture) [2002] 2 s.c.r. Suresh v Canada (Minister of Citizenship and Immigration) [2002] scc 1, [2002] s.c.r Western Australia v Ward (2002), 213 c.l.r. 1 See R. v Powley [2003] 2 s.c.r. Auton (Guardian ad litem of ) v British Columbia (Attorney General) [2004] 3 s.c.r.

Index of Cases British Columbia v Canadian Forest Products Ltd [2004] 2 s.c.r. 74 Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) [2005] 3 s.c.r. Charkaoui v Canada (Citizenship and Immigration), [2007] 1 s.c.r.350 Canada (Attorney General) v. Hislop, [2007] 1 s.c.r. 429, 2007 scc 10 Kingstreet Investments Ltd v New Brunswick (Finance) Ltd [2007] 1 s.c.r. 3 Friends of the Earth v Canada (Governor in Council), 2008 FC 118 Omar Ahmed Khadr v Canada [2008] 2 s.c.r. 125 Turp v Ministry of Justice & Attorney General of Canada 2012 FC 893 Quebec (Attorney General) v A, 2013 scc 5, [2013] 1 s.c.r.. 61 Grassy Narrows First Nation v Ontario (Natural Resources), [2014] 2 s.c.r. 447 Tsilhqot’in Nation v British Columbia, [2014] 2 s.c.r.256 Canada Khadr v The Queen [2014] FC 1001 Kazemi Estate v Islamic Republic of Iran [2014] scc 62; [2014] 3 s.c.r. 176 Carter v Canada, [2015] scc 5 R. v Jordan, [2016] 1 s.c.r. 631 CROATIA Constitutional Court of the Republic of Croatia, decision U-I-206/1992 of 24 May 1993 Constitutional Court of the Republic of Croatia, decision U-II-433/1994 of 2 February 1995 Constitutional Court of the Republic of Croatia, decision U-I-130/1995 of 20 February 1995 Constitutional Court of the Republic of Croatia, decision U-I-1156/2000 of 26 January 2000 Constitutional Court of the Republic of Croatia, decision U-I-659/1994 of 15 March 2000 Constitutional Court of the Republic of Croatia, decision U-I-745/1999 of 8 November 2000

885 Constitutional Court of the Republic of Croatia, decision U-I-38/2000 of 15 November 2000 Constitutional Court of the Republic of Croatia, decision U-I-673/1996 at al. of 28 March 2001 Constitutional Court of the Republic of Croatia, decision U-I-1681/2003 of 17 September 2003 Constitutional Court of the Republic of Croatia, decision U-I-825/2001of 14 January 2004 Constitutional Court of the Republic of Croatia, decision U-I-672/2001 of 25 February 2004 Constitutional Court of the Republic of Croatia, decision U-III-3138/2002 of 7 February 2007 Constitutional Court of the Republic of Croatia, decision U-I-1152/2000 of 18 April 2007 Constitutional Court of the Republic of Croatia, decision U-III-4584/2005 of 14 November 2007 Constitutional Court of the Republic of Croatia, decision U-III-1410/2007 of 13 February 2008 Constitutional Court of the Republic of Croatia, decision U-III-3797/2008 of 17 September 2008 Constitutional Court of the Republic of Croatia, decision U-III-2501/2008 of 16 October 2008 Constitutional Court of the Republic of Croatia, decision U-III-980/2007 of 14 May 2009 Constitutional Court of the Republic of Croatia, decision U-III-1801/2006 of 20 May 2009 Constitutional Court of the Republic of Croatia, decision U-IP-3820/2009 et al. of 17 November 2009 Constitutional Court of the Republic of Croatia, decision U-I 988/1998 et al. of 17 March 2010 Constitutional Court of the Republic of Croatia, decision U-III-282/2008 of 2 June 2010

886 Constitutional Court of the Republic of Croatia, decision U-I-4170/2004 of 29 September 2010 Constitutional Court of the Republic of Croatia, decision U-III-64744/2009 of 3 October 2010 Constitutional Court of the Republic of Croatia, decision U-I-3789/2003 et al. of 8 December 2010 Constitutional Court of the Republic of Croatia, decision U-I-763/2009 et al. of 30 March 2011 Constitutional Court of the Republic of Croatia, decision U-I-722/2009 of 6 April 2011 Constitutional Court of the Republic of Croatia, decision U-II-37/2006 of 5 July 2011 Constitutional Court of the Republic of Croatia, decision U-I-295/2006 et al. of 6 July 2011 Constitutional Court of the Republic of Croatia, decision U-I-3597/2010 at al. of 29 July 2011 Constitutional Court of the Republic of Croatia, decision U-I-763/2009 of 30 October 2011 Constitutional Court of the Republic of Croatia, decision U-I-4633/2010 of 6 March 2012 Constitutional Court of the Republic of Croatia, decision U-I-448/2009 at al. of 19 July 2012 Constitutional Court of the Republic of Croatia, decision U-I-2414/2011 of 7 December 2012 Constitutional Court of the Republic of Croatia, decision U-III-3304/2011 of 23 January 2013 Constitutional Court of the Republic of Croatia, decision U-I-4469/2008 of 8 July 2013 Constitutional Court of the Republic of Croatia, decision U-I-3861/2013 of 16 July 2013 Constitutional Court of the Republic of Croatia, Warning SuS-1/2013 of 14 November 2013

Index of Cases Constitutional Court of the Republic of Croatia, decision U-III-351/2014 of 24 January 2014 Constitutional Court of the Republic of Croatia, decisions U-I-2403/2009 of 25 February 2014 Constitutional Court of the Republic of Croatia, decisions U-III-2521/2015 of 13 December 2016 CZECH REPUBLIC Constitutional Court, 21st Dec. 1993, Pl.ÚS 19/93 Constitutional Court, 12th Oct. 1994, Pl. ÚS 4/94 Constitutional Court, 18th Oct. 1995, Pl.ÚS 26/94 Constitutional Court, 24th Sept. 1998, III ÚS 139/98 Constitutional Court, 7th Oct. 1998, II. ÚS 285/97 Constitutional Court, 2nd June 1999, Pl. ÚS 18/98 Constitutional Court, 13th Oct. 1999, Pl.ÚS 30/98 Constitutional Court, Pl. ÚS 13/99 Constitutional Court, 23rd Jan. 2001, II. ÚS 77/2000 Constitutional Court, 21st Jan. 2001, Pl.ÚS 42/00 Constitutional Court, 12th Mar. 2001, II. ÚS 187/00 Constitutional Court, 20th June 2001, Pl.ÚS 14/01 Constitutional Court, 16th Oct.2001, Pl.ÚS 5/01 Constitutional Court, 5th Dec. 2001, Pl. ÚS 9/01 Constitutional Court, 12th Feb. 2002, Pl.ÚS 21/01 Constitutional Court, 27th Nov. 2002, Pl.ÚS 6/02 Constitutional Court, Pl. ÚS 42/02 Constitutional Court, 26th Mar. 2003, Pl. ÚS 42/02 Constitutional Court, 11th June 2003, Pl.ÚS 40/02 Constitutional Court, 18th Aug. 2004, Pl. ÚS 7/03

887

Index of Cases Constitutional Court, 13th July 2006, I. ÚS 85/04 Constitutional Court, Pl.ÚS 50/04 Constitutional Court, ÚS 85/04 Constitutional Court, ÚS 554/04 Constitutional Court, 8th Mar. 2006, Pl.ÚS 50/04 Constitutional Court, 3rd May 2006, Pl.ÚS 66/04 Constitutional Court, 15th Feb. 2007, Pl. ÚS 77/06 Constitutional Court, 27th Mar. 2008, Pl.ÚS 56/05 Constitutional Court, 30th June 2008, IV. ÚS 154/08 Constitutional Court, 16th Oct. 2007, Pl. ÚS 78/06 Constitutional Court, 2nd Dec. 2008, Pl.ÚS 12/08 Constitutional Court, 25th Feb. 2009, I. ÚS 143/07 Constitutional Court, Pl. ÚS 27/09 Constitutional Court, Pl. ÚS 27/09 Constitutional Court, 10th Sept. 2009, Pl. ÚS 27/09 Constitutional Court, 15th Nov. 2010, I.ÚS 517/10 Constitutional Court, 11th May 2011, II. ÚS 165/11 Constitutional Court, 13th Aug. 2012, I. ÚS 3061/11 Constitutional Court, 11th Sept. 2012, II.ÚS 2504/10 Constitutional Court, 28th Nov. 2012, II. ÚS 800/12 Constitutional Court , 9th Jan. 2013, Pl. ÚS 6/12 Constitutional Court, 17th Apr. 2014, I. ÚS 2219/12 Constitutional Court, 17th Apr. 2014, I. ÚS 2219/12 Constitutional Court, 10th June 2013, IV. ÚS 4905/12 Constitutional Court, 20th Nov. 2013, IV. ÚS 4684/12 Constitutional Court, 20th Aug. 2014, I. ÚS 173/13 Constitutional Court, Pl.ÚS 3/14

Constitutional Court, 19th May 2015, Pl. ÚS 14/14 Constitutional Court , 30th June 2015, Pl. ÚS 21/14 Constitutional Court, 16th June 2015, I. ÚS 3018/14 Constitutional Court, I.ÚS 425/16 Constitutional Court, 28th Jan. 2016, III. ÚS 247/14 Constitutional Court, 12th Apr. 2016, I.ÚS 425/16 Constitutional Court, 14th June 2016, Pl.ÚS 7/15 Constitutional Court, 25th Oct. 2016, II. ÚS 443/16 Constitutional Court, 20th Dec. 2016, Pl.ÚS 3/14 DENMARK UfR.1999.841 H (19 February 1999) UfR. 192 ESTONIA CRCSCj 12.01.1994, III-4/1-1/94 CRCSCj 30.09.1994, III-4/A-5/94 CLCSCj 12.12.1995, III-1/3-47/95 CRCSCj, 10.05.1996, 3-4-1-1-96, No. II ALCSCr 24.03.1997, 3-3-1-5-97, No. 4 CRCSCj 06.10.1997, 3-4-1-3-97, No. I CRCSCj 05.02.1998, 3-4-1-1-98, No. IV CRCSCj, 26.03.1998, 3-4-1-4-98, No. III, IV ALCSCr 13.04.1998, 3-3-1-14-98, No. 3 CRCSCj 14.04.1998, 3-4-1-3-98, No. IV CRCSCj 30.09.1998, 3-4-1-6-98, No. III CRCSCj 30.09.1998, 3-4-1-6-98, No. II CRCSCj 04.11.1998, 3-4-1-7-98, No. III CRCSCj 17.03.1999, 3-4-1-2-99, No. II CRCSCj 09.02.2000, 3-4-1-2-00, No. 17 CRCSCj 05.10.2000, 3-4-1-8-00 CRCSCj, 28.04.2000, 3-4-1-6-00, No. 13 CRCSCj 06.03.2002, 3-4-1-1-02, No. 15 ALCSCj 27.03.2002, 3-3-1-17-02, No. 18 CRCSCj 12.06.2002, 3-4-1-6-02, No. 12 ALCSCj,17.06.2002, 3-3-1-32-02, No. 21 CRCSCj, 15.07.2002, 3-4-1-7-02, No. 20 ALCSCj, 26.11.2002, 3-3-1-64-02, No. 10 ALCSCr, 16.01.2003, 3 3 1 2 03, No. 11 ALCSCr, 27.01.2003, 3 3 1 6 03, No. 11

888 CRCSCj 17.02.2003, 3-4-1-1-03, No. 14. CRCSCj 17.02.2003, 3-4-1-1-03, No. 15 CRCSCj 17.02.2003, 3-4-1-1-03, No. 16 SCebj, 17.03.2003, 3-1-3-10-02 (Brusilov), No. 17 SCebj 17.03.2003, 3-1-3-10-02, No. 22 ff. SCebj 17.03.2003, 3-1-3-10-02, No. 24 SCebj, 17.03.2003, 3-1-3-10-02, No. 30 SCebj 17.03.2003, 3-1-3-10-02, No. 21 SCebj 17.03.2003, 3-1-3-10-02, No. 9 SCebj 06.01.2004, 3-1-3-13-03 SCebj 06.01.2004, 3-3-2-1-04 SCebj 06.01.2004, 3-1-3-13-03, No. 31 CRCSCj 21.01.2004, 3-4-1-7-03, No. 14 CRCSCj 21.01.2004, 3-4-1-7-03, No. 20 CRCSCj 21.01.2004, 3-4-1-7-03, No. 16 CRCSCj, 30.04.2004, 3-4-1-3-04, No. 31 SCebj, 17.06.2004, 3-2-1-143-03, No. 20 ff. CRCSCj 02.12.2004, 3-4-1-20-04, No. 11 CRCSCj 01.09.2005, 3-4-1-13-05, No. 17 SCebj 22.02.2005, 3-2-1-73-04, No. 17 SCebj 18.03.2005, 3 2 1-59-04 CRCSCr 23.03.2005, 3-4-1-6-05, No. 4 SCebj 19.04.2005, 3-4-1-1-05, No. 10 SCebj, 19.04.2005, 3-4-1-1-05, No. 17 SCebj 19.04.2005, 3-4-1-1-05, No. 24 SCebj 19.04.2005, 3-4-1-1-05, No. 49 ALCSCj 28.03.2006, 3-3-1-14-06, No. 11 CRCSCj 09.05.2006, 3-4-1-4-06, No. 8 f. CRCSC 11.05.2006, 3-4-1-3-06, No. 14, 16 CRCSCj,16.01.2007, 3-4-1-9-06, No. 29 ALCSCj 19.12.2007, 3-3-1-80-06, No. 20 SCebj, 03.01.2008, 3-3-1-101-06, No. 27 CRCSCj,19.03.2009, 3-4-1-17-08, No. 26 CRCSCj,19.03.2009, 3-4-1-17-08, No. 38, 50 f. SCebj 14.04.2009, 3-3-1-59-07, No. 32 SCebj, 14.04.2009, 3-3-1-59-07, No. 33 f. CRCSCj 20.05.2009, 3-4-1-11-09, No. 5 CRCSCj 09.06.2009, 3-4-1-2-09, No. 36 CRCSCj,09.06.2009, 3-4-1-2-09, No. 41 f. CRCSCj, 26.06.2009, 3-4-1-4-09, No. 16 CRCSCj 17.07.2009, 3-4-1-6-09, No. 21 CRCSCj,30.09.2009, 3-4-1-9-09, No. 27 CRCSCj 07.12.2009, 3-4-1-22-09, No. 7 SCebj, 07.12.2009, 3-3-1-5-09, No. 37 CRCSCj, 15.12.2009, 3-4-1-25-09, No. 24 CRCSCr 22.12.2009, 3-4-1-16-09, No. 11 CRCSCr 22.12.2009, 3-4-1-16-09, No. 23 CRCSCr 22.12.2009, 3-4-1-16-09, No. 42 SCebj,16.03.2010, 3-4-1-8-09, No. 50 f., 55, 57 f., 65, 68, 71, 83

Index of Cases CRCSCj 10.06.2010, 3-4-1-3-10, No. 13 f. ALCSCr 21.06.2010, 3-3-1-85-09, No. 19. SCebj, 01.07.2010, 3-4-1-33-09, No. 52, 67 ALCSCj 10.12.2010, 3-3-1-72-10, No. 14 CRCSCj 04.04.2011, 3-4-1-9-10 CRCSCj 04.04.2011, 3-4-1-9-10, No. 54 CRCSCj 04.04.2011, 3-4-1-9-10, No. 56. SCebj 12.04.2011, 3-2-1-62-10, No. 48.3 SCebj 12.04.2011, 3-2-1-62-10, No. 48.4, 57.3, 62.2 ALCSCr, 04.05.2011, 3-3-1-11-11, No. 10 SCebj 21.06.2011, 3-4-1-16-10, No. 5 SCebj 22.11.2011, 3-3-1-33-11, p 29.3 SCebj 12.07.2012, 3 4 1 6 12, No. 3 CRCSCj,15.10.2013, 3-4-1-47-13, No. 21 SCebj, 21.01.2014, 3-4-1-17-13, No. 32 ff. CRCSCj 23.01.2014, 3-4-1-43-13, No. 9 CRCSCj, 05.05.2014, 3-4-1-67-13, No. 49 CRCSCj 05.05.2014, 3-4-1-67-13, No. 50 ALCSCj 02.10.2014, 3-3-1-47-14, No. 17 CRCSCr, 07.11.2014, 3-4-1-32-14, No. 28 CRCSCj,06.01.2015, 3-4-1-34-14, No. 33 CRCSCj,20.12.2016, 3-4-1-3-16, No. 89, 136 CRCSCj 27.01.2017, 3-4-1-14-16, No. 22 FRANCE Larrasquitu et l’Etat Espagnol v. Société Cementos Rezola (Cour d’Appel de Poitiers, 20 December 1937), (1938) 8 ilr 196 Société Cementos Rezola v. Larrasquitu et Ētat espanol (Cour d’appel de Poitiers) [1938] Ēpoux Reynolds v. Ministre des Affaires Ētrangères (1965) 47 ilr 53 Epoux Reynolds v. Ministre des Affaires Etrangères (Tribunal de Grande Instance de la Seine, 30 June 1965) (1965) 47 ilr 53 Illich Ramirez Sanchez (Cour de Cassation, 21 February 1995) ECLI:FR:CCASS:1995:CR06093) Constitutional Council Judgment No. 58-1067 DC of 7 November 1958 Constitutional Council Judgment No. 62-20 DC of 6 November 1962 Constitutional Council Judgment no. 71-44 DC of 16 July 1971 Constitutional Council Judgment No. 74-54 DC of 15 January 1975

889

Index of Cases Constitutional Council Judgment No. 83-165 DC of 20 January 1984 Constitutional Council Judgment No. 91-290 DC of 9 May 1991 Constitutional Council Judgment No. 93-325 DC of 13 August 1993 Constitutional Council No. 96-383 DC of 6 November 1996 Constitutional Council Judgment No. 2001446 DC of 27 June 2001 Constitutional Council Judgment No. 2003469 DC of 26 March 2003 Constitutional Council Judgment No. 2003484 DC of 20 November 2003 Constitutional Council Judgment No. 2003489 DC of 29 December 2003 Constitutional Council Judgment No. 2004492 DC of 2 March 2004 Constitutional Council Judgment No. 2005514 DC of 28 April 2005 Constitutional Council Judgment No. 2005530 DC of 29 December 2005 Constitutional Council Judgment No. 2006540 DC of 27 July 2006 Constitutional Council Judgment No. 2007555 DC of 16 August 2007 Constitutional Council Judgment No. 2008562 DC of 21 February 2008 Constitutional Council Judgment No. 2009580 DC of 10 June 2009 Constitutional Council Judgment No. 2013669 DC of 17 May 2013 Constitutional Council Judgment 2012-289 QPC of 17 January 2013 Constitutional Council Judgment No. 2012297 QPC of 21 February 2013 GERMANY BVerfGE 1, 97 (19.12.1951) BVerfGE 1, 372 (29.07.1952) BVerfGE 3, 225 (18.12.1953) BVerfGE 5, 85 (17.08.1956) (BVerfGE 5, 85 (17.08.1956) BVerfGE 7, 198 (15.01.1958) BGHZ 26, 349 (14.02.1958) BVerfGE 9, 73 (07.01.1959) BVerfGE 16, 27 (30.04.1963) BVerfGE 18, 112 (30.06.1964) BVerfGE 20, 162 (05.08.1966 BVerfGE 20, 162 (05.08.1966)

BVerfGE 66, 20 (05.08.1966) BVerfGE 28, 243 (26.05.1970) BVerfGE 30, 173 (24.02.1971) BVerfGE 32, 54 (13.10.1971) BVerfGE 33, 23 (11.4.1972) BVerfGE 34, 269 (14.02.1973) BVerfGE 37, 271 (29.5.1974) BVerfGE 37, 271 (29.5.1974) BVerfGE 39, 1 (25.02.1975) BVerfGE 39, 1 (25.02.1975). BVerfGE 39, 1 (25.02.1975) BVerfGE 45, 187 (259), (21.06.1977) BVerfGE 47, 285 (01.03.1978) BVerfGE 48, 127 (13.04.1978) BVerfGE 49, 286 (11.10.1978) BVerfGE 49, 286 (11.10.1978) BVerfGE 73, 40 (14.7.1986) BVerfGE 73, 40 (14.7.1986) BVerfGE 73, 339 (22.10.1986) BVerfGE 76, 143 (01.07.1987) BVerfGE 85, 264 (09.04.1992) (BVerfGE 85, 264 (09.04.1992) BVerfGE 90, 145 (09.03.1994) BVerfGE 91, 125 (14.07.1994 BVerfGE 93, 266 (10.10.1995) BVerfGE 103, 44 (07.11.2000) BVerfGE 103, 44 (07.11.2000) BVerfGE 113, 273 (18.07.2005) BVerfGE 116, 243 (18.07.2006) BVerfGE 118, 79 (13.03.2007) BVerfGE 118, 277 (04.07.2007) BVerfGE 118, 277 (04.07.2007) BVerfGE 119, 309 (19.12.2007) BVerfGK 13, 336 (25.2.2008) BVerfGE 120, 224 (26.02.2008) BVerfGE 124, 300 (04.09.2009) BVerfGE 125, 260 (02.03.2010) BVerfGE 127, 132 (21.07.2010) BVerfGE 128, 109 (11.01.2011) BVerfGE 128, 226 (22.02.2011) BVerfGE 128, 326 (5.5.2011) BVerfGE 133, 59 (19.02.2013) HUNGARY Constitutional Court decision No. 22/2003 Constitutional Court decision No. 65/2007 Constitutional Court decision No. 61/2011 Constitutional Court decision No. 33/2012 Constitutional Court decision No. 45/2012 Constitutional Court decision No. 1/2013

890 Constitutional Court decision No. 12/2013 Constitutional Court decision No. 3/2013 Constitutional Court decision No. 4/2013 Constitutional Court decision No. 8/2013 Constitutional Court decision No. 12/2013 Constitutional Court decision No. 16/2013 Constitutional Court decision No. 24/2013 Constitutional Court decision No. 33/2013 Constitutional Court decision No. 34/2013 Constitutional Court decision No. 36/2013 Constitutional Court decision No. 3206/2013 Constitutional Court decision No. 7/2014 Constitutional Court decision No. 13/2014 Constitutional Court decision No. 16/2014 Constitutional Court decision No. 23/2014 Constitutional Court decision No. 24/2014 Constitutional Court decision No. 28/2014 Constitutional Court decision No. 34/2014 Constitutional Court decision No. 36/2014 Constitutional Court decision No. 1/2015 Constitutional Court decision No. 2/2015 Constitutional Court decision No. 30/2015 Constitutional Court decision No. 32/2015 Constitutional Court orders No. 3037/2015 Constitutional Court decision No. 3099/2015 Constitutional Court orders No. 3148/2015 Constitutional Court orders No. 3149/2015 Constitutional Court decision No. 5/2016 Constitutional Court decision No. 13/2016 Constitutional Court decision No. 14/2016 Constitutional Court decision No. 22/2016 Constitutional Court decision No. 3024/2016 Constitutional Court decision No. 3090/2016 Constitutional Court decision No. 3091/2016 Constitutional Court decision No. 3095/2016 Constitutional Court decision No. 3147/2016 Constitutional Court decision No. 3179/2016 Constitutional Court decision No. 3195/2016 ICELAND Icelandic Supreme Court, Hrd. 1951, 268 INDIA Durga Shankar Mehta v. Thakur Raghuraj Singh 1954 air 520 West Bengal v. Union of India 1963 air 1241 Shiv Kirpal Singh v. Shri V V Giri 1970 air 2097 Shamsher Singh v. State of Punjab 1974 air 2192

Index of Cases Minerva Mills Ltd v. Union of India 1980 air 1789 Swadeshi Cotton Mills v. Union of India 1981 air 818 S.P. Gupta v. President of India air 1982 SC 149 Hoechst Pharmaceuticals Ltd v. State of Bihar 1983 air 1019 State of Tamil Nadu v. Abu Kavur Bai 1984 air 326 K. Nagaraj v. State of Andhra Pradesh 1985 air 551 T. Venkata Reddy v. State of Andhra Pradesh 1985 air 724 Babu Rao allias PB Samant v. Union of India 1988 air 440 Supreme Court v. Union of India 1993 air 2444 S.R. Bommai and Others v. Union of India and Others air 1994 SC 1918 Ismail Faruqui v. Union of India 1995 air 605 Chandrappa v. State of Karnataka 2007 Insc 142 Sethi Auto Service Station v. Delhi Development Authority 2009 1 scc 180 Vikram Singh v. Union India Criminal Appeal No. 824 of 2013, decided on 21 August 2015 IRELAND People (Attorney General) v O’Brien [1965] I.R. 142 Ryan v Attorney General [1965] I.R. 294 Quinn’s Supermarkets v Attorney General [1972] McGee v Attorney General [1974] I.R 284 The State (Heady) v Donoghue (1976) IR, 350 Murphy v Attorney General [1982] 1 I.R. 241 Heaney v Ireland [1994] 3 I.R. 593 A v Governor of Arbour Hill [2006] 4 I.R. 88 King v Minister for Envi- ronment [2006] i.e.s.c. 61 Blehein v Minister for Health [2008] i.e.s.c. 40 McCann v District judge Monaghan [2009] i.e.h.c. 276 Fleming v Ireland [2013] i.e.h.c. 2 Persona Digital Telephony Ltd v Minister for Public Enterprise [2017] iesc 27 PC v Minister for Social Protection [2017] i.e.s.c. 63.

891

Index of Cases AB v St. Loman’s Hospital [2018] ieca 123 Agha and Osinuga v Minister for Social Protection [2018] ieca 155 ISRAEL Supreme Court, HCJ 65/51 Jabotinsky v. Weizmann, 5 PD 801 (1951) Supreme Court, HCJ 144/50, Sheib v. Minister of Defence, 5 P.D. 399 (1951) Supreme Court, HCJ 268/52, HCJ 47/53, Sapoznikov v. The Court of Discipline of the Israel Police (1953) Supreme Court, HCJ 73/53, HCJ 87/53, Kol Ha’am Co. Ltd and Al-Ittihad Newspaper Supreme Court, HCJ 3/58 Berman v. Minister of the Interior, IsrSC 12 1493 (1958) Minister of the Interior, 7 P.D. 871 (1953) Supreme Court, HCJ 262/62 Peretz v. Kfar Shmaryahu, 16 P.D. 2101, 2116 (1962) Supreme Court, HCJ 509/80 Younes v. Director General of the Office of the Prime Minister 35(3)P.D. 589 (1981) Supreme Court, HCJ 554/81 Beransa v. Central Commander [1982] IsrSC 36(4) 247 Supreme Court, HCJ 14/86Laor v. The Film and Play Review Board, IsrSC 41(1) 421 (1987) Supreme Court, HCJ 399/85 Kahane v. Managing Committee of the Broadcasting Authority 41(3) P.D. 255 (1987) Supreme Court, HCJ 680/88 Shnitzer v. Chief Military Censor, 42(4) P.D. 617 (1988) Supreme Court, HCJ 806/88 Universal City Studios inc v Films and Plays Censorship Board 43(2) PD 21 (1989). Supreme Court, CA 6821/93, 1908/94, 3363/94 United Hamizrahi Bank v. Migdal Cooperative Village [1995] IsrSC 49(4) 221 Supreme Court, HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel, ver72(1), 507 (2006) Supreme Court, HCJ 4077/12 Jane Doe v. Th e Ministry of Health (5.2.2013) Supreme Court, HCJ 6971/11 Eitanit Construction Products v. State (2.4.2013)

Supreme Court, HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs (4.6.2013) Supreme Court, HCJ 2442/11 Shtanger v. Speaker of the Knesset (26.6.2013) Supreme Court, HCJ 7146/12 Adam v. Knesset (16.9.2013) Supreme Court, HCJ 6706/14 Zoabi v. Knesset’s Ethics Committee (10.2.2015) Supreme Court, HCJ 8665/14 Desta v. The Knesset (11.8.2015) ITALY Constitutional Court Decision 14.6.1956, n. 1 Constitutional Court Decision 27.6.1958, n. 40 Constitutional Court Decision 27.1.1959, n. 1 Constitutional Court Decision 27.6.1973, n.91 Constitutional Court Decision 27.3.1975, n. 81 Constitutional Court Decision 20.12.1979, n. 153 Constitutional Court Decision 8.6.1981, n. 96 Constitutional Court Decision 13.7.1988, n. 826 Constitutional Court decisions 24.10.2007, nn. 348 and 349 Constitutional Court Decision 14.4.2010, n. 138 Constitutional Court Decision 8.7.2010, n. 250 Constitutional Court Decision 22.7.2010, n. 270 Constitutional Court Decision 11.6.2014, n. 172 JAPAN SCJ (GB), judgment of 16 December 1959 SCJ (GB), judgment of 4 April 1973, 27 SCJ (GB), judgment of 30 April 1975, 29 SCJ (GB), judgment of 10 September 1975, 29 SCJ (GB), judgment of 13 July 1977, 31 SCJ (PB), judgment of 18 December 1984, 38 SCJ (PB), judgment of 3 March 1989, 43 SCJ (PB), judgment of 7 March 1995, 49 SCJ (GB), Decision of 5 July 1995, 49(7) SCJ (PB), judgment of 7 September 2000, 199 SCJ (GB), judgment of 4 September 2013, 67 SCJ (GB), judgment of 16 December 2015, 69 SCJ (GB), judgment of 16 December 2015, 69 LATIN AMERICA Argentina Supreme Court, 7 December 1934 Supreme Court, 15 October 1998

892 Supreme Court, 28 October 2014 Supreme Court, 7 July 2015 Brasil Supreme Court, 12 April 2012 Supreme Court, 10 December 2014 Supreme Court , 29 November 2016 Mexico Supreme Court, 15 August 2007 Chile Constitutional Court, 23 March 1985 Constitutional Court, 31 August 1999 Constitutional Court, 24 April 2003 Constitutional Court, no. 480/2006 Constitutional Court, no. 546/2006 Constitutional Court, no. 718/2007 Constitutional Court, no. 759/2007 Constitutional Court, no. 773/2007 Constitutional Court , 11 January 2011 Constitutional Court, 10 September 2013 Constitutional Court, 28 August 2017 LATVIA Constitutional Court of the Republic of Latvia on 13 July 1998 in case No. 03 Constitutional Court of the Republic of Latvia on 30 August 2000 in case No. 2000-03-01 Constitutional Court of the Republic of Latvia on 30 August 2000 in case No. 2000-03-01 Constitutional Court of the Republic of Latvia on 17 January 2002 in case No. 2001-08 – 01 Constitutional Court of the Republic of Latvia on February 22, 2002 in case No. 2001 – 06 – 03 Constitutional Court of the Republic of Latvia on 5 March 2002 in case No. 2001-10-01 Constitutional Court of the Republic of Latvia on 19 March 2002 in case No. 2001-12-01 Constitutional Court of the Republic of Latvia on 4 June 2002 in case No. 2001-16-01 Constitutional Court of the Republic of Latvia on 4 June 2002 in case No. 2001-16-01

Index of Cases Constitutional Court of the Republic of Latvia on 20 June 2002 in case No. 2001-17-0106 Constitutional Court of the Republic of Latvia on 20 June 2002 in case No. 2001-17-0106 Constitutional Court of the Republic of Latvia on 23 September 2002 in case No. 2002 – 08 – 01 Constitutional Court of the Republic of Latvia on 25 March 2003 in case No. 2002-12-01 Constitutional Court of the Republic of Latvia on 23 April 2003 in case No. 2002-20-0103 Constitutional Court of the Republic of Latvia on 26 January 2005 in case No. 2004-17-01 Constitutional Court of the Republic of Latvia on 13 May 2005 in case No. 2004-18-0106 Constitutional Court of the Republic of Latvia on 13 May 2005 in case No. 2004-18-0106 Constitutional Court of the Republic of Latvia on 8 March 2006 in the case No. 2005-16-01 Constitutional Court of the Republic of Latvia on 15 June 2006 in case No. 2005-13-0106 Constitutional Court of the Republic of Latvia on 15 June 2006 in case No. 2005-13-0106 Constitutional Court of the Republic of Latvia on 8 June 2007 in case No. 2007-01-01 Constitutional Court of the Republic of Latvia on 14 June 2007 in case No. 2006-31-01 Constitutional Court of the Republic of Latvia on 18 October 2007, in case No 2007-03-01 Constitutional Court of the Republic of Latvia on 7 April 2009 in case No 2008-35-01 Constitutional Court of the Republic of Latvia on 3 June 2009 in case No 2008-43-0106 Constitutional Court of the Republic of Latvia on 18 January 2010 in case No 2009-11-01

893

Index of Cases Constitutional Court of the Republic of Latvia on 18 January 2010 in case No. 2009-11-01 Constitutional Court of the Republic of Latvia on 18 January 2010 in case No. 2009-11-01 Constitutional Court of the Republic of Latvia on 6 December 2010 in case No. 2010-25-01 Constitutional Court of the Republic of Latvia on 14 March 2011 case No. 2010-51-01 Constitutional Court of the Republic of Latvia on 19 October 2011 in case No. 2010-71-0 Constitutional Court of the Republic of Latvia on 3 February 2012 in case No 2011-11-01 Constitutional Court of the Republic of Latvia on 10 June 2014 in case No. 2013-18-01 Constitutional Court of the Republic of Latvia on 13 June 2014 in case No. 2014-02-01 Constitutional Court of the Republic of Latvia on 7 July 2014 in case No. 2013-17-01 Constitutional Court of the Republic of Latvia on 7 July 2014 in case No. 2013-17-01 Constitutional Court of the Republic of Latvia on 9 October 2014 in Case No. 2013-19-03 Constitutional Court of the Republic of Latvia on 25 March 2015 in case No. 2014–11–0103 Constitutional Court of the Republic of Latvia on 8 April 2015 in case No. 2014-34-01 Constitutional Court of the Republic of Latvia on 29 April 2016 in case No. 2015-19-01 Constitutional Court of the Republic of Latvia on 16 June 2016 in case No. 2015-18-01 Constitutional Court of the Republic of Latvia on 8 March 2017 in case No 2016-07-01

Hague, 4 December 1939), (1939) 11 ilr 17 Republic of South Moluccas v. Royal Packet Shipping Co (Amsterdam Court of Appeal, 8 February 1951) (1951) 17 ilr 150.68 30 ilr 28 (Court of Appeal of Amsterdam, 4 June 1959) HR 12 October 1984, NJ 1985 230 HR 14 April 1989, NJ 1989 469 HR 2 November 2004, NJ 2005 80 HR 30 January 1996, NJ 1996 288 Supreme Court 21 March 2003, AB 2004, 39

NETHERLAND Petroservice & Credit Minier FrancoRoumain v. El Aguila (Ct App, The

PORTUGAL Constitutional Court, Ruling no. 287/90, 20/02/1991

NORWAY Norwegian Supreme Court Rt. 1948, 1147 The Shipping Tax case, 12 February 2010 (Rt. 2010, p. 143) Norwegian Church Endowment (OVF) case, 12 May 2010 (Rt. 2010, 535) War Crimes case, 3 December 2010 (Rt. 2010, 1445) POLAND Constitutional Tribunal judgement of 9 June 1998 no. K 28/97, OTK 1998, no. 4, item 50 Constitutional Tribunal judgement of 31 May 2004 no. K 15/04, OTK ZU no. 5A(67), item 47 Constitutional Tribunal judgement no. P 1/05, OTK ZU 2005, no. 4A, item 42 Constitutional Tribunal judgement of 27 April 2005, no. P 1/05, OTK ZU 2005, no. 4A, item 42 Constitutional Tribunal judgement of 11 May 2005, no. K 18/04 Constitutional Tribunal judgements no. K 45/07 of 15 January 2009 (OTK ZU 2009, no. 1A, item 3) Constitutional Tribunal judgement of 24 November 2010, K 32/09 Constitutional Tribunal judgements no. K 31/12 of 7 November 2013 (OTK ZU 2013, no. 8A, item 12) Constitutional Tribunal, 3 December 2015, no. K 34/15, OTK ZU 2015, no. 11A

894 Constitutional Court, Ruling no. 147/1993, 28/01/1993 Constitutional Court, Ruling no.711/95, 06/12/1995 Constitutional Court, Ruling no. 407/97, 18/07/1997 Constitutional Court, Ruling no. 254/98, 05/03/1998 Constitutional Court, Ruling no. 288/98, 17/04/1998 Constitutional Court, Ruling no. 352/98, 12/05/1998 Constitutional Court, Ruling no. 187/01, 02/05/2001 Constitutional Court, Ruling no. 509/02, 19/12/2002 Constitutional Court, Ruling no. 198/04, 24/03/2004 Constitutional Court, Ruling no. 232/04, 31/03/2004 Constitutional Court, Ruling no. 589/04, 06/10/04 Constitutional Court, Ruling no. 589/04, 06/10/04 Constitutional Court, Ruling no. 682/06, 13/12/2006 Constitutional Court, Ruling no. 491/08, 07/10/2008 Constitutional Court, Ruling no. 572/08, 26/11/2008 Constitutional Court, Ruling no. 632/2008, 23/12/2008 Constitutional Court, Ruling no. 101/09, 03/03/2009 Constitutional Court, Ruling no. 101/09, 03/03/2009 Constitutional Court, Ruling no. 359/09, 09/06/2009 Constitutional Court, Ruling no. 359/09, 09/07/2009 Constitutional Court, Ruling no. 421/2009, 13/08/2009 Constitutional Court, Ruling no 121/10, 08/04/2010 Constitutional Court,Ruling no. 121/10, 08/04/2010 Constitutional Court, Ruling no. 185/10, 12/05/2010

Index of Cases Constitutional Court, Ruling no. 594/12, 06/12/2012 Constitutional Court, Ruling no. 75/13, 31/01/2013 Constitutional Court, Ruling no. 413/2014, 30/05/2014 Constitutional Court, Ruling no. 413/14, 30/05/2014 Constitutional Court, Ruling no. 544/14, 15/07/2014 Constitutional Court, Ruling no. 329/2015, 23/06/2015 Constitutional Court, Ruling no. 412/15, 29/09/2015 Constitutional Court, Ruling no. 24/16, 19/01/2016 Constitutional Court, Ruling no 55/16, 02/02/2016 Constitutional Court, Ruling no.55/16, 02/02/2016 Constitutional Court, Ruling no. 106/16, 24/02/2016 Constitutional Court, Ruling no. 176/17, 06/04/2017 Constitutional Court, Ruling no. 219/2017, 03/05/2017 Constitutional Court, Ruling no. 246/17, 17/07/2017 ROMANIA Constitutional Court, Decision no. 1364 from 27.10.2009, published in the OM no.836 from 04.12.2009 Constitutional Court, Decision no. 503 from 20.04.2010, published in the OM no. 353 from 28.05.2010 Constitutional Court, Decision no. 954 from 13.10.2012, published in the OM no. 26 from 12.012013 Constitutional Court, Decision no. 449 from 06.11.2013, published in the OM from 14.12.2013 Constitutional Court, Decision no. 495 from 5 December 2013, published in the OM no. 134 from 24.02.2014 Constitutional Court, Decision no. 511 from 12 December 2013, published in the OM no. 75 from 30.01.2014

895

Index of Cases Constitutional Court, Decision no. 80 from 16.02.2014, published in the OM no. 246 from 07.04.2014 Constitutional Court, Decision no. 75 from 26.02.2015, published in the OM no. 265 from 21.04.2015 Constitutional Court, Decision no. 23 from 20.01.2016, published in the OM no. 240 from 31.03.2016 Constitutional Court, Decision no. 368 from 30.05.2017, published in the OM no. 566 from 17.07.2017 High Court of Cassation and Justice Decision no. 1093/2013 from 29.03.2013 High Court of Cassation and Justice Decision no. 1344/2016 from 10.06.2016 High Court of Cassation and Justice Decision no. 582/2015 from 25.02.2015 High Court of Cassation and Justice Decision no. 253/2012 from 18.05.2012 High Court of Cassation and Justice Decision no. 125/2013 from 27.05.2013 High Court of Cassation and Justice Decision no. 1328/2015 from 13.05.2015 High Court of Cassation and Justice Decision no. 4857/2010 from 16.09.2010 High Court of Cassation and Justice Decision no. 3120/2012 from 8.05.2012 High Court of Cassation and Justice Decision no. 234/A/2016 from 27.05.2014 High Court of Cassation and Justice Decision no. 5431/2013 from 22.11.2013 High Court of Cassation and Justice Decision no. 2041/2014 from 04.06.2014 High Court of Cassation and Justice Decision no. 8695/2011 from 12.12.2011 High Court of Cassation and Justice Decision no. 7103/2012 from 20.09.2012 High Court of Cassation and Justice Decision no. 3181/2009 from 02.12.2009 High Court of Cassation and Justice Decision no. 5225/2004 from 21.09.2004 High Court of Cassation and Justice Decision no. 4080 from 5.06.2012 High Court of Cassation and Justice Decision no. 6/2017, published in the OM Part I no. 144 from 24/02/2017 High Court of Cassation and Justice Decision no. 1235 from 10.04.2014

High Court of Cassation and Justice Decision no. 2434 from 30.10.2015 RUSSIA Decision no. 6-P, 25 April 2001 Decision no. 15-P, 30 October 2003 Decision no. 9-P, 14 July 2005 Decision no. 7-P, 16 June 2006 Decision no. 6-P, 16 May 2007 SOUTH AFRICA Coopers (South Africa) (Pty) Ltd v. Deutsche Gesell- schaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, 371 The State v. Makwanyane [1995] z.a.c.c. CCT/3/94 – The State v Makwanyane and Mchunu CCT/20/94, The State v Williams and Others CCT 5/94 – Zuma and two Others v The State CCT/5/95 – Ferreira and Other v Levin and Others CCT14/96 – Fose v Minister of Safety and Security CCT 51/06 – KwaZulu-Natal and Others v Pillay CCT98/08 – Centre for Child Law v Minister for Justice and constitutional Development and Others CCT 74/14 - H v Fetal Assessment Centre SOUTHEAST ASIA Singapore Constitutional Reference No. 1 of 1995 [1995] 2 SLR 201 Yong Vui Kong v. PP., [2010] SGCA 20 Yong Vui Kong v. Attorney-General [2011] 2 SLR 1189 Ravi s/o Madasamy v Attorney-General and other matters [2017] SGHC 163 Tan Cheng Bock v. Attorney General, [2017] SGCA 50 The Comptroller of income tax v. ARW & Anor, [2017] SGHC 180 Philippines Ang Ladlad LGBT Party v. Commission on Elections, G.R. no. 190582, April 8, 2010

896 Antonio M. Serrano v. Gallant Maritime Services, Inc., et al., G.R. no. 167614, March 24, 2009 Arturo M. De Castro v. Judicial and Bar Council, et al., G.R. no. 191002, 191032, 191057, 191149, 191342, A.M. no. 10-2-5SC, March 17, 2010 Atty. Evillo C. Pormento v. Joseph “Erap” Ejercito Estrada and COMELEC, G.R. no. 191988, August 31, 2010 Chamber of Real Estate and Builders’ Associations, Inc. v. The Hon. Executive Secretary Alberto Romulo, et al., G.R. No. 160756, March 9, 2010 League of Cities of the Phil. Rep. by LCP National President Jerry P. Trenas, et al. v. COMELEC, et al., G.R. no. 176951, 177499, 178056, August 24, 2010 Southern Hemisphere Engagement Network, Inc. etc., et al. v. Anti-Terrorism council, et al., G.R. no. 178552, 178554, 178581, 178890, 179157, 179461, October 5, 2010 Louis “Barok” C. Biraogo v. The Philippine Truth Commission of 2010 et al., G.R. no. 192935, 193036, December 7, 2010 Velicaria-Garafil v. Office of the President, G.R. no. 203372, 209138, 212030, June 16, 2015 Ferrer v. Bautista, G.R. no. 210551, June 30, 2015 Mary Grace Natividad S. Poe-Llamanzares v. Commission on Elections and Estrella Elamparo, G.R. no. 221697, March 8, 2016 Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al./Bagong Alyansang Makabayan (BAYAN), et al. Vs. Department of National Defense (DND) Secretary Voltaire Gazmin, et al., G.R. no. 212426, 212444, July 26, 2016 Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al./City Government of Davao Vs. Court of Appeals, et al., G.R. no. 189185, 189305, August 16, 2016 Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, G.R. no. 225973, 225984, 226097, 226116, 226117, 226120, 226294, November 8, 2016

Index of Cases Southern Luzon Drug Corporation v. The Department of Social Welfare and Development, et al., G.R. no. 199669, April 25, 2017 Malaysia Datò Seri Anwar Ibrahim v. Tun Dr Mahathir Bin Mohamad, no. 08(F)-319-2009(W), 24 november 2010 Bato Bagi et al. v. Kerajaan Negeri Sarawak, no. 01-4-2011(Q), 8 september 2011 Dr Koay Cheng Boon v. Majlis Perubatan Malaysia, no. 02-19-2011(W), 5 january 2012 Fathul Bari Bin Mat Jahya et al. v. Majlis Agama Islam Negeri Sembilan et al., no. 3/2010, 30 may 2012 Bird Dominic Jude v. Pendakwa Raya, no. 05226-09/2013(W), 8 april 2014 Yang Dipertua et al. v. Gobind Singh Deo, no. W-01(F)-31-11/2012 (W), 3 november 2014 Lembaga Minyak Sawit Malaysia v. Arunamari Plantations Sdn Bhd et al., no. 01(F)-4-03-2013(W), 9 july 2015 Zi Publications Sdn Bhd et al. v. Kerajaan Negeri Selangor, no. 1-12-2012(B), 28 september 2015 Public Prosecutor v. Azmi Bin Sharom, no. 06-5-12/2014(W), 6 october 2015 Majlis Agama Islam Wilayah Persekutuan v. Victoria Jayaseele Martin, no. 01(F)-1003/2014(W), 24 march 2016 Dewan Undangan Negeri Selangor et al. v. Mohd Hafarizam Bin Harun, no. 02-8311/2014 (B), 14 july 2016 Indonesia 23 july 2004, no. 013/PUU-I/2003 21 october 2004, no. 061/PUU-II/ 13 december 2004, no. 06/PUU-II/2004 3 march 2005, no. 065/PUU-II/2004 22 march 2005, no. 073/PUU-II/2004 12 april 2005, no. 066/PUU-II/2004 17 may 2005, no. 071/PUU-II/2004 13 september 2005, no. 009/PUU-III/2005 25 january 2006, no. 001/PUU-IV/2006 22 march 2006, no. 026/PUU-III/2005 25 july 2006, no. 003/PUU-IV/2006 25 july 2006, no. 003/PUU-IV/2006

897

Index of Cases 28 september 2006, no. 008/PUU-IV/2006 16 december 2006, no. 013-022/PUU-IV/2006 27 december 2006, no. 006/PUU-IV/2006 12 april 2007, no. 028-029/PUU-IV/2006 30 october 2007, no. 2-3/PUU-V/2007 17 december 2007, no. 20/PUU-V/2007 21 february 2008, no. 18/PUU-V/2007 15 august 2008, no. 14/PUU-VI/2008 23 october 2008, no. 18/PUU-VI/2008 17 february 2009 no. 56/PUU-VI/2008 24 february 2009 no. 32/PUU-VI/2008 30 march 2009, no. 9/PUU-VII/2009 18 october 2011, no. 48/PUU-IX/2011 17 february 2012, no. 46/PUU-VIII/2010 4 june 2012, no. 32/PUU-VIII/2010 13 november 2012, no. 36/PUU-X/2012 17, November-December 2006 Timor – Leste Decisions no. 02/const/2003/tr rendered in 2003 Decision no. 04/const/2003 Decision no. 02/const/2007/tr rendered in 2007 Decision no. 01/const/2008 rendered in 2008 Decision no. 02/const/2008 rendered in 2008 Decision no. 01/const/09/tr rendered in 2009 Decision no. 02/const/2009 rendered in 2009 Decision no. 01/const/2014 SPAIN Constitutional Court 4/1981 Constitutional Court 24/1982 Constitutional Court 36/1982 Constitutional Court 72/1984 Constitutional Court 122/1984 Constitutional Court 32/1985 Constitutional Court 51/1985 Constitutional Court 75/1985 Constitutional Court 94/1985 Constitutional Court 65/1986 Constitutional Court 108/1986 Constitutional Court 180/1986 Constitutional Court 23/1987 Constitutional Court 126/1987 Constitutional Court 19/1988 Constitutional Court 64/1988 Constitutional Court 227/1988 Constitutional Court 45/1989 Constitutional Court 76/1989

Constitutional Court 93/1989 Constitutional Court 137/1989 Constitutional Court 56/1990 Constitutional Court 119/1990 Constitutional Court 150/1990 Constitutional Court 184/1990 Constitutional Court 211/1990 Constitutional Court 60/1991 Constitutional Court 107/1992 Constitutional Court 206/1992 Constitutional Court 282/1993 Constitutional Court 232/1993 Constitutional Court 71/1994 Constitutional Court 127/1994 Constitutional Court 292/1994 Constitutional Court 140/1995 Constitutional Court 225/1998 Constitutional Court 136/1999 Constitutional Court 91/2000 Constitutional Court 92/2000 Constitutional Court 105/2000 Constitutional Court 192/2000 Constitutional Court 163/2001 Constitutional Court 10/2002 Constitutional Court 39/2002 Constitutional Court 3/2003 Constitutional Court 48/2003 Constitutional Court 123/2004 Constitutional Court 237/2005 Constitutional Court 112/2006 Constitutional Court 12/2008 Constitutional Court 89/2009 Constitutional Court 198/2012 Constitutional Court 180/2013 Constitutional Court 199/2013 Constitutional Court 14/2014 Constitutional Court 15/2014 Constitutional Court 16/2014 Constitutional Court 23/2014 Constitutional Court 42/2014 Constitutional Court 92/2014 Constitutional Court 93/2014 Constitutional Court 98/2014 Constitutional Court 124/2014 Constitutional Court 140/2016 Constitutional Court 8/2017 SWEDEN nja 2012, 400 nja 2014, 323

898 SWITZERLAND dtf 121 iii, 125, 137 dtf 123, iii, 24, 26–27 dtf 121, iii, 109, 116–117 dtf 116, iv, 125, 132 dtf 121, iii, 350, 355 dtf 129, iii, 727 dtf 117, iv, 139 dtf 129 iii, 445, 453 dtf 129, iii, 675, 681 dtf 129, iii, 727, 734 dtf 130, iii, 35, 38 dtf 130, iii, 66, 70, 71 dtf 130, iii, 76, 78 dtf 130, iii, 755, 758 dtf 131, iii, 173, 176 dtf 126, iii, 492, 494 dtf 129, iii, 102, 105 dtf 117, iv, 124, 128 dtf 119, Ia, 337, 340 dtf 119, ii, 307, 311 dtf 120, Ib, 276, 283 dtf 120, iv, 256, 259 dtf 122, i, 101, 104 dtf 124, i, 159, 164 dtf 124, ii, 559, 566 dtf 130, iii, 530, 535 dtf 134, iv, 121, 127 dtf 135, iv, 6, 10 dtf 139, v, 263, 282 dtf 140, i, 77, 84 dtf 142, iii, 197, 199 dtf 143, iv, 77, 84 dtf 123, i, 152, 174 dtf 142, v, 192, 197 and 201 dtf 123, i, 152, 174 dtf 125, i, 369, 373 dtf 135, iii, 206, 209 dtf 135, iii, 433, 438 dtf 136, iii, 461, 465 dtf 122, iii, 414, 417 dtf 135, ii, 224, 233 and 237 dtf 116, IA, 252, 263 dtf 119, ii, 386, 391 dtf 120, iv, 319, 322 dtf 139, iii, 232, 235 dtf 137, iii, 261, 266 dtf 125, i, 369, 373 dtf 116, IA, 252, 262-263

Index of Cases dtf 119, Ia, 337, 340 dtf 119, ii, 456, 460 dtf 120, iv, 319, 322 dtf 119, ii, 386 dtf 121, iii, 109 dtf 133, iii, 462 dtf 116, ii, 519, 520 dtf 117, ii, 523, 527 dtf 117, iv, 139, 149 dtf 118, ii, 489, 491 dtf 119, ii, 281, 287 dtf 119, ii, 339, 340 dtf 119, ii, 437, 440, 441 e 442 dtf 120, ii, 197, 201 dtf 121, iii, 109, 114 e 116 dtf 121, iii, 118, 121 dtf 121, ii, 317, 327 dtf 121, iii, 350, 355 dtf 123, iii, 241, 244 dtf 125, iii, 322, 326 dtf 125, iii, 363, 367 dtf 125, iii, 435, 438 dtf 127, iii, 496, 499 dtf 128, iii, 370, 373 dtf 129, iii, 535, 538 dtf 130, iii, 182, 187, 190, 191 e 192 dtf 131, iii, 227, 234 dtf 131, iii, 257, 261, 262 e 263 dtf 131, iii, 345, 355 e 356 dtf 139, iv, 168, 172 dtf 117, ii, 523, 525-526 dtf 118, ii, 489, 490-491 dtf 128, iii, 434, 438 dtf 116, ii, 519, 520 dtf 117, iv, 449, 451 dtf 127, iii, 186, 191 dtf 134 iii 497, 507. dtf 122, v, 230, 239 dtf 124, i, 159, 164-165 dtf 121, iii, 310, 313 dtf 131, iii, 345, 355 dtf 138, v, 206, 211 dtf 124, iii, 155, 163 dtf 116, ii, 651, 655 dtf 141, iii, 229, 237 dtf 142, iv, 175, 195 dtf 143, iv, 91, 95. dtf 120, ii, 197, 202 dtf 130, iii, 113, 120

899

Index of Cases dtf 128, iv, 117, 127 dtf 121, iii, 377, 379 dtf 122, iii, 382, 386 dtf 131, i, 223, 240 dtf 116, iv, 157, 159 dtf 116, iv, 353, 359 dtf 118, ii, 157, 160 dtf 119, ii, 339, 340 dtf 125, iii, 435, 438 dtf 126, iii, 370, 374 dtf 125, iv, 104, 106. dtf 117, Ia, 365, 368. dtf 116, iv, 125, 132. dtf 124, iii, 112, 115 dtf 124, iv, 219, 224 dtf 125, iii, 363, 366-367 dtf 125, iv, 1, 3-4 dtf 128, iii, 50, 55 dtf 128, iii, 434, 438 dtf 119, ii, 456 dtf 120, ii, 65 dtf 120, ii, 65, 68 dtf 120 iv 323, 327 dtf 121, iv, 86, 89 dtf 121, iii, 350, 355 dtf 118, ii, 489, 490-491 dtf 119, Ia, 337, 340 dtf 125, iv, 113, 116-117 dtf 139, iii, 232 dtf 142, iii, 521 dtf 125, i, 369, 373-374 dtf 128, iii, 370 dtf 128, iii, 370, 374 dtf 121, iii, 109, 113 dtf 121, iii, 109, 116 dtf 121, iii, 109, 117 dtf 128, iii, 353 dtf 128, iii, 353, 361 dtf 128, iii, 353, 365. dtf 119, ii, 437, 442. dtf 119, ii, 437, 442 dtf 119, ii, 437, 442 dtf 120, IB, 276, 283 dtf 120, IB, 276, 283 dtf 120, IB, 276, 283-284 dtf 126, iii, 129, 138 dtf 126, iii, 129, 155 dtf iii, 206 dtf 139, iii, 232

dtf 137, v, 210 dtf 120, IB, 276 UNITED KINGDOM Lawrie v Muir (1950) s.c.j. 19 Kuruma v The Queen (1955) A.C. 197 Gipps v Gipps (1978) 1 nswlr 454 Derbyshire Country Council v Times Newspapers Ltd (1992) 3 WLR 28 Aranson v Schroeder (1995) 671 A 2d 1023 Toubia v Schwenke (2002) nswca 34 Fairchild v Glenhaven Funeral Services Ltd. (2003) A (FC) v Secretary of State for the Home Department (2004) R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (2008) ukhl uksc 2014/0147 pms International Group Plc (Respondent) v Mag- matic Limited (Appellant) uksc 2014/0220 MB (Appellant) v Secretary of State for Work and Pensions (Respondent) uksc 2014/0252 Versloot Dredging BV and another (Appellants) v hdi Gerling Industrie Versicherung AG and others (Respondents) uksc 2014/0264 uksc 2015/0002, Rahmatullah (No 2) (Respondent) v Ministry of Defence and another (Ap- pellants) uksc 2015/0057 The Commissioners for Her Majesty’s Revenue and Customs (Appellants) v The Investment Trust Companies (in liquidation) (Respondents) uksc 2016/0006 Nuclear Decommissioning Authority (Appellant) v Energy Solutions EU Ltd (now called atk Energy EU Ltd) UNITED STATES OF AMERICA Marbury v. Madison, 5 U.S. 137 (1803) Johnson v. McIntosh 21 U.S. (8 Wheat.) (1823) Foster v. Neilson, 27 U.S. (2 Pet) 253 (1829) Worcester v. Georgia, 31 U.S. (6 Pet.) (1832) Swift v. Tyson, 41 U.S. 1 (1842) Dred Scott v. Sandford, 60 U.S. 393 (1857)

900 Williams v. Bruffy, 96 U.S. 176 (1877) Reynolds v. United States, 98 U.S. 145 (1878) Claflin v. Commonwealth Insurance Co., 110 U.S. 81 (1884) Hurtado v. California, 110 U.S. 516 (1884) Norton v. Shelby County, 118 U.S. 425 (1886). Fong Yue Ting v. United States, 149 U.S. 698 (1893) Underhill v. Hernandez 168 U.S. 250 (1896) The Lottery Case, 188 U.S. 321, 372 (1903) Twining v. New Jersey, 211 U.S. 78, 113 (1908) Standard Oil Co. v. United States, 221 U.S. 1, 103 (1911) The Pipe Line Case, 234 U.S. 548, 564 (1914) Oetjen v. Central Leather Co., 246 U.S. 297 (1918) Missouri v. Holland, 252 U.S. 416 (1920) Asakura v. City of Seattle, 265 U.S. 332 (1924) Blockburger v. United States, 284 U.S. 299 (1932) Great Northern Railway Company v. Sunburst Oil and Refining Company, 287 U.S. 358 (1932) Administrator v. Sabine Towing Co., Inc., et al, 300 U.S., 342 (1936) Palko v. Connecticut, 302 U.S. 319 (1937) Erie Railroad v. Tompkins, 304 U.S. 64 (1938) United States v. Carolene Products Co., 304 U.S. 144 (1938) Louise Kerr v. Enoch Pratt Free Library, 326 U.S. 721 (1945) 123 East Fifty – Fourth Street Inc v. United States (1946) 157 F 2d 68 New York v. United States, 326 U.S. 572 (1946) Adamson v. California, 332 U.S. 46, 61 (1947) Gitlow v. New York, 268 U.S. 652 (1952) Rockin v. California, 342 U.S. 165, 169 (1952) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) Stein v. New York, 346 U.S. 156, 199 (1953) Brown v. Board of Education, 347 U.S. 483 (1954) Trop v. Dulle, 356 U.S. 86, 100 (1958) McGowan v. Maryland, 366 U.S. 1101 (1961) Poe v. Ullman, 367 U.S. 497 (1961) Baker v. Carr, 369 U.S. (1962) Abington School District v. Schempp, 374 U.S. 203 (1963) Sherbert v. Verner, 374 U.S. 398 (1963)

Index of Cases Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) Griswold v. Connecticut, 381 U.S. 479 (1965) Linkletter v. Walker, 381 U.S. 618 (1965) Evans v. Newton, 382 U.S. 296 (1966) Graham v. Richardson, 403 U.S. 365 (1971) Griggs v. Duke Power Co., 401 U.S. 424 (1971) Eisenstadt v. Baird, 405 U.S. 438 (1972) Roe v. Wade, 410 U.S. 113, 130 (1972) Cabell v. Chavez-Salido, 454 U.S. 432(1982) Long v. Insurance Company of North America, 670 F 2d 930 (1982) Fine v. Bellefonte Underwriters Insurance Co., 725 F 2d 179 (1984) Bowers v. Hardwick, 478 U.S. 186 (1986) Thompson v. Oklahoma, 487 U.S. 815 (1988) Penry v. Lynaugh, 492 U.S. 302 (1989) Stanford v. Kentucky, 492 U.S. 361 (1989) Planned parenthhod v. Casey, 505 U.S. 833, 945, n. 1 (1992) R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992) Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) McIntyre v. Ohio Elections Commission, 514 U.S. 334, 381 (1995) Printz v. United States, 521 U.S. 898 (1997) Washington v. Glucksberg, 521 U.S. 702 (1997) Elledge v. Florida, 525 U.S. 944 (1998) Knight v. Florida, 528 U.S. 990 (1999) Zadvydas v. Davis, 533 U.S. 678 (2001) Atkins v. Virginia, 536 U.S. 304 (2002) Foster v. Florida, 537 U.S. 990, 992 (2002) Eudred v. Ashcroft, 537 U.S. 186 (2003) Lawrence v. Texas, 539 U.S. 558 (2003) Hamdi v. Rumsfeld, 542 U.S. 507 (2004) Rasul v. Bush, 542 U.S. 466 (2004) Ropper v. Simmons, 543 U.S. 551 (2005) Kennedy v. Louisiana, 554 U.S. 407 (2008) Munaf v. Geren, 533 U.S. 674.33 (2008) Graham v. Florida, 560 U.S. 48 (2010) Duryea v. Guarnieri, 564 U.S. 379, 388 (2011) YUGOSLAVIA Savezni vrhovni sud, 18 May 1956, Gz. 37/56 Odluka Ustavni Sud, U-I-607/1996 Constitutional Court decision of 25 November 1999, U-I-49/98 Visoki trgovački sud RH, P-3682/2001

Index of Cases Constitutional Court decision of 27 May 2004, U-I-321/02 Constitutional Court decision of 6 July 2004, U-I-111/04 Vrhovni sud Srbije, Rev 3338/04 of 9 June 2005 Slovenian Constitutional Court of 29 September 2005, U-I-65/05 Ustavni sud, U-IIIA-2864/2005 Ustavni sud, U-IIIA-1150/2005 Odluka Ustavni sud, U-IP-3820/2009 of 17 November 2009

901 Odluka Ustavni Sud, U-I-763/2009, of 30 March 2011Odluka Ustavni sud, U-I448/2009, of 19 July 2012 Odluka Ustavni Sud, U-I/4469/2008, 8 July 2013 Vrhovni kasacioni sud, no. 57/2014 of 6 February 2014 Vrhovni kasacioni sud, Rev 348/2014 of 10 April 2014 Vrhovni kasacioni sud, Rev 617/2013 of 15 May 2014