1 Christoph Grabenwarter Separation of Powers and the Independence of Constitutional Courts and Equivalent Bodies Keynote Speech 16 January 2011 2nd Congress of the World Conference on Constitutional Justice, Rio de Janeiro 1. Introduction Separation of Power is one of the basic structural principles of democratic societies. It was already discussed by ancient philosophers, deep analysis can be found in medieval political and philosophical scientific work, and we base our contemporary discussion on legal theory that has been developed in parallel to the emergence of democratic systems in Northern America and in Europe in the 18 th Century. Separation of Powers is not an end in itself, nor is it a simple tool for legal theorists or political scientists. It is a basic principle in every democratic society that serves other purposes such as freedom, legality of state acts – and independence of certain organs which exercise power delegated to them by a specific constitutional rule. When the organisers of this World Conference combine the concept of the separation of powers with the independence of constitutional courts, they address two different aspects. The first aspect has just been mentioned. The independence of constitutional courts is an objective of the separation of powers, independence is its result. This is the first aspect, and perhaps the aspect which first occurs to most of us. The second aspect deals with the reverse relationship: independence of constitutional courts as a precondition for the separation of powers. Independence enables constitutional courts to effectively control the respect for the separation of powers. As a keynote speech is not intended to provide a general report on the results of the national reports, I would like to take this opportunity to discuss certain questions raised in the national reports and to add some thoughts that are not covered by the questionnaire sent out a few months ago, but are still thoughts on the relationship between the constitutional principle and the independence of constitutional judges. 2. Two preliminary remarks on the scope of the topic Before I begin my analysis, I should make two preliminary remarks which are necessary for a proper discussion of the topic. The fist remark deals with the definition of what is a constitutional court. The second remark is directed at the differences in the constitutional system in which a constitutional court develops its case law. a) Constitutional Courts and equivalent bodies The Congress of the World Conference does not only deal with Constitutional Courts, but also with “equivalent bodies”. This wording is clearly aimed against a narrow view on a certain 2 type of constitutional justice, especially against a restriction to the “European type” of constitutional courts. When I say “European type”, I am fully aware of the fact that there is no monopoly of any region of the world to a certain solution in construing constitutional justice. However, for the sake of classification, I make reference to the historical roots of constitutional justice in the Europe of the 20 th Century. After the establishment of a Constitutional Court in Austria, in 1920, which did not exist between 1934 and 1945 and of the Constitutional Court of Czechoslovakia in 1920, which never became effective, European States have established Constitutional Courts in two waves after 1945 and after 1989. These have a number of common features, which distinguish them from other systems, such as the system of the US Supreme Court, which I will call the American type of constitutional justice. For today’s topic, there are fundamental differences in the functions with a view to the Constitution, which have to be mentioned here in order to get an accurate answer to the question of the separation of powers. The European type constitutional courts are judicial organs that were entrusted with ensuring normative superiority of the constitution over the remainder of the legal order. Fundamental rights form an integral part of the legal body of constitutional law. In many European systems, individuals are entitled to file applications in order to enforce their rights. At the same time, international human rights were made effective. They have been increasingly influencing the domestic practice over the last six decades. In Kelsenian constitutional thinking, the ordinary (criminal, civil or administrative) judge had no power at all to decide on the conformity of a law with the constitution. The task of defending the integrity of the hierarchy of norms is in the exclusive competence of the constitutional court. This is called the “monopoly to annul laws” (“Normverwerfungsmonopol”) . On the other hand, constitutional courts are limited to deciding constitutional disputes and constitutional questions in disputes involving various questions. b) "Younger" and "older" democracies It is common ground among all experts on Constitutional Justice as well as insiders, such as the participants in this Conference, that the social contexts in which a particular constitutional court has been instituted and continues to operate, vary to a large extent. A rough division into two groups of constitutional courts proposed also in one of the written contributions to this Conference (Harutyunian, CC of Armenia) takes account of this context: Courts in young democracies and courts in democracies with a longer democratic tradition. In this second group, we find a commitment to functional separation of powers, a certain constitutional culture and especially a high convergence of constitutional law and constitutional practice. Questions to both groups may be the same on an abstract level, but they must be put in different ways. The answers must be different anyway. An overview shows that competences of constitutional courts vary considerably. We still find that a number of courts have a limited scope of jurisdiction. In the long run, a limited scope of the constitutional court will hinder it from becoming an effective guarantor of the supremacy of the constitution. The ex post-control of the conformity of laws with the constitution together with the power to set aside laws found unconstitutional may be seen as the “Archimedean point” for effective constitutional justice. A second point is decisive: the access of the individual to the constitutional court. This right has proven to be the most important ingredient for successful constitutional justice; examples of young democracies show this, as do established democracies such as Germany, which have demonstrated it in the second half of the 20 th Century. 3 3. Separation of Powers – a valid concept in today’s constitutional theory You probably do not expect me to give a lecture on the separation of powers at the beginning of a conference with a limited time budget and in front of an audience that is most acquainted with the separation of powers be it in theory or in practice. Modern legal theory takes due account of what John Locke has formulated in Book II of “Two treatises on Government” and Montesquieu has established in “De l´Esprit des Lois” (“The Spirit of Laws”). However, the ideal of checks and balances and of three equivalent powers had to be adjusted in view of the developments that occurred during the 20 th Century. Separation has always been more than drawing borders, it was the distribution of powers and it was the intertwining or joining of powers. When we talk about the separation of powers, it is also clear that it comprises functional, institutional and personal separation. The degree and the quality of separation of powers in a particular constitutional system can only be measured if one assesses the extent to which functional separation corresponds to institutional separation, i.e. whether different functions are fulfilled by different institutions and persons that are not directly dependent on organs of other institutions. In modern constitutionalism, there is a tendency to consider the complexity of inter-organ- relations within one state power. This tendency takes due account of the contribution of the distribution of competences (powers) within a certain state power to the overall quality of the separation of powers. Such a contribution exists for instance if, in a system of a two chamber parliament, both chambers have the right to elect a certain number of constitutional judges. Above all, it was the judicial power that has given rise to much discussion within the separation of powers doctrine. It was held, by Montesquieu and others, that the judiciary had no limiting function vis-à-vis the legislator. This is true, as far as the ordinary judge is concerned, who is strictly bound by law and who is not empowered to decide on the constitutionality of laws. However, this is not true for the American type supreme courts and for the constitutional courts to the extent that they can effectively limit the power of legislation to the boundaries of the constitution. The separation of powers does not, however, create the independence of courts in general and of the constitutional court in particular. The material requirement of independence is not replaced by an abstract principle. Its function is limited to assisting the material guarantee of independence . We can see this relationship more clearly, if we imagine the following: if there were mixed powers of legislation and executive and both were under the effective control of an independent constitutional court, we would find the power of government limited, although there was no classical separation of powers in the triadic sense of Montesquieu. 4. Independence of Constitutional Courts and the Legislature As constitutional courts are empowered to set aside laws and statutes, legal theory describes them as “negative legislators”. Legal theory has done so since the early 20 th Century. However, this is only one aspect of the influence of constitutional courts on the legislative power: the constitutional judge is inevitably and on a permanent basis close to the powers of the legislator in a “positive” sense as well.