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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]


Norikazu Kawagishi

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 31 October 2020

Judicial review — Judicial independence — Judicial power

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  The judiciary is the department of the governmental organization of a state that is authorized to adjudicate disputes through interpreting and applying law. The role the judiciary and judges are expected to play in a legal regime varies from one legal culture to another.

2.  There are two particularly influential ideal types of modern legal system in the world: the civil law model and the common law model. Judicial power in a civil law system is generally limited to civil and criminal cases, with administrative cases being dealt with by special institutions, such as administrative courts, under the power of the executive (administrative dispute in civil law jurisdictions). Judges in this model are usually recruited, selected, trained, and promoted within the judicial bureaucratic circle. They generally regard themselves as interpreters of abstract legal codes, not lawmakers. The distinction between adjudication and legislation is inclined to be excessively emphasized in this model. While parliament, as a place where national representatives gather, makes statutes expressing the general will of society, judges are apolitical civil servants committed to faithfully implementing the statutes established by parliament. The judicial independence of the political branches is more frequently emphasized than their being part of a complex and dynamic system of checks and balances.

3.  Because common law is fundamentally judge-made law, in contrast, judges tend to find law on the basis of custom and morality, while being controlled by an accumulation of precedents. Stare decisis is one of the most important principles in this model. Common law judges are supposed to have much greater law-making power than their civil law counterparts. In this model, administrative cases are not treated separately but are included in ordinary judicial cases as civil and criminal cases. Common law judges are recruited from those who have been members of the bar, usually after considerable years of legal practice. Judges here are not promoted from a lower to a higher position in a hierarchical order of judgeship. American constitutionalism, in particular, created a more dynamic complex system of checks and balances, in which independent courts with judicial review power were supposed to play a significant role in the governmental process (Kommers).

4.  However, the two principal models should be understood only as ideal types. While even common law countries now have established more or less comprehensive codes, civil law judges usually pay due attention to relevant precedents. Comprehensive codes tend to be so abstract that civil law judges may have a fairly high degree of leeway interpreting them. In the civil law system, thus, the judicial creation of law may occasionally occur as well as in the common law world. A hybrid of the two systems is observed, for example, in Japan—in the post-World War II era, an American-influenced Supreme Court was added to bases that derived from the civil law tradition. Because constitutional review of law has been a worldwide phenomenon, furthermore, constitutional lawmaking by judges through interpreting the constitution has been inevitable and as its outcome, legal order as a whole has become constitutionally coherent, which has gradually rendered more or less obsolete the traditional image in the civil law model that judges should not create law through interpretation.

5.  In modern constitutionalism, the protection of fundamental rights and freedoms has been one of the most significant tasks of a state. A judiciary that is designed to determine whether and how rights should be protected is, therefore, assigned to perform a pivotal role in a constitutional democracy. With constitutional review of statutes prevailing almost all over the world, courts tend to have a greater influence on the political process. The roles that the judiciary had been expected to play have gradually expanded through practices of constitutional interpretation. As a result, politics has unavoidably been to a considerable degree judicialized. This is why the characteristics of the judiciary must once again be considered in contemporary constitutionalism. This article will discuss, first, basics about the judiciary such as the nature and process of adjudication, court systems, and judicial interpretation. Then judicial power and its limits will be examined, and the organization of the judiciary will be explored from the viewpoint of judicial independence and accountability. Finally, the article will discuss the recent worldwide tendency towards the judicialization of politics.

B.  Basic Structure of the Judiciary

1.  General Meaning

6.  The judiciary is a branch of government that is vested with the authority to adjudicate legal disputes. As governmental functions are distributed among different institutions, the legislature makes law, the executive implements law, and the judiciary interprets and applies law. To solve legal disputes, courts need rules for procedure and substance, both of which are legally established before litigation in a liberal democracy. The concept of the rule of law, which is a central element of contemporary constitutionalism, requires that such rules must be general, clear, stable, publicly announced, and not contradictory to one another. In the dispute resolution process, the judiciary through interpretation clarifies the meanings of legal rules, which makes it the bulwark of the rule of law.

2.  Characteristics of Adjudication

7.  In the adjudication process, a court must determine rules to solve and reconcile legal disputes in social relations between two conflicting parties. A court here is a legally authorized third party that should remain neutral and impartial during the dispute it deals with (impartiality of the judiciary). Legal disputes are generally conflicts over rights, status, or economic interests. They are divided into the different categories of civil, criminal, administrative, and constitutional cases, according to the subjects and parties involved (civil: conflicts concerning private interests between citizens; criminal: conflicts concerning crimes and personal freedom between citizen and society; administrative: conflicts concerning the legality of the exercise of public power between citizen and state; constitutional: conflicts between governmental bodies or citizen and state concerning the fundamental legal order, such as fundamental human rights and the rule of law). As a matter of function of a state’s sovereignty, the parties involved are theoretically by nature and beforehand bound to obey the judgment rendered by the third party, the court. Agreement by the two parties involved to obey a judgment by a third party is not a necessary component of adjudication by the judiciary, although there are examples in which consent on the part of the disputants is pivotal in resolution, such as arbitration and mediation. Examples include dispute resolutions by the International Court of Justice (ICJ) and the Court of Arbitration for Sports.

3.  The Process of Adjudication

8.  In a prevalent prototype of the judiciary, ‘(1) independent judges apply (2) pre-existing legal norms after (3) adversary proceedings in order to achieve (4) a dichotomous decision in which one of the parties was assigned the legal right and the other found wrong’ (Shapiro 1). Adjudication thus has a tripartite process: plaintiff, defendant, and court, and also two aspects: (1) fact-finding and (2) interpretation of the law and its application to the found facts.

9.  In the adversarial system, a plaintiff and a defendant as opposing parties contend against each other for a result favourable to themselves. They actively engage in presenting their respective arguments and exposing their own facts and evidence to a court. A judge in this system, like a referee in sports, plays a passive role policing proceedings and guaranteeing legal rules. In the inquisitorial or non-adversarial system in some states belonging to the civil law tradition, judges tend to take a more active responsibility for fact-finding.

4.  Organization of Courts

10.  The judiciary usually consists of the highest court and lower courts, the structure of which is most often outlined in a constitution. A detailed design of the courts is then determined by statute and may vary from state to state. Because any kind of final judgment by the judiciary may enormously affect the parties involved and even society as a whole, it is required to treat with the greatest circumspection a case in the dispute resolution process to avoid serious mistakes. A three-tiered court system, in which an unsuccessful party in a litigation case may twice appeal to have the decision reviewed by upper courts, is thus not uncommon in the world, despite there being a variety of detail in terms of specific organization. A court of first instance deals with both factual and legal issues as a trial court. An intermediate court may allow the parties involved to introduce new evidence in addition to the case record made in the court of first instance, or review only the case record, or hold a trial de novo. The highest court generally treats only legal issues. One of the highest court’s most important functions is to unify the interpretation of the laws of the state. In the common law system, precedents by the highest court hold a legally controlling power over similar cases (the doctrine of stare decisis). Although civil law tradition has no such strict doctrine, de facto stare decisis may be recognized because the general principle that alike should be treated alike is also applicable in terms of equality, and lower court judges can reasonably expect that judgments conflicting with the highest court’s precedent will ultimately be reversed. That is why the highest court’s interpretation of law is of the greatest concern to every bench and bar.

11.  It is true that the dichotomy between fact-finding and the interpretation of law is relevant to the process of dispute resolution and the organizing of a court system. It is, however, a sort of ideal type. The facts that are crucial in adjudication are not raw facts but those analysed and constructed from the perspective of legal norms. Because they are not separable from legal evaluation, adjudication in reality contains a more dynamic interaction between facts and law, which is reflected in the organizing of a court system and judicial practices.

5.  Judicial Interpretation

12.  Judges were widely supposed to exercise their assigned power based solely on existing formal legal sources (Montesquieu). However, legal realism revealed this to be a myth and contended that judgment was decided not by machine-like legal syllogism but rather by judges’ personal preferences (Llewellyn, Frank). As empirical studies show, judges may not rely entirely on formal sources of law and may sometimes adopt a strategic attitude instead (Segal and Spaeth, Epstein and Knight).

13.  But empirical analyses of law and its normative theories may not necessarily be mutually exclusive. Because the judiciary is as much a human institution as the executive and legislative branches, the personal characters of judges will inevitably affect the adjudicative process. Judges are confronted with difficult choices over, for example, conceptions of rights. Legal concepts such as justice, fairness, freedom, and equality are highly contested by nature. There may thus be room for judges to make their own interpretation. The permissible scope of this interpretation may depend on an interpretive community of the legal profession as a whole in the historical, social, political, and cultural circumstances of a society. The very personal preferences and motivations of judges that may influence their decision-making are essentially constrained by critical discourse in the interpretive community. Judicial discretion (judicial discretion) may be unavoidable in hard cases (Hart, Dworkin). But it is neither carte blanche nor legislative in nature. Judicial outcomes that are based on invoked discretion have to be a part of the constructive interpretation of existing legal materials and practices and thrown into the process of critical discussion in the interpretive community.

6.  Citizen Participation in the Adjudicative Process

14.  At the level of a trial court, liberal democracy has maintained some degree of citizen participation in the adjudicative process. Some constitutions, indeed, declare the principle of popular engagement in certain judicial activities. While the jury system is an essential part of the common law tradition, some civil law countries have established a system in which citizens and career judges constitute a panel that may hear and decide cases. Japan, which for a long period of its liberal democracy exceptionally denied popular engagement in the judicial process, in May 2009 finally implemented the saiban-in (or lay judge) system, in which three judges and six laypersons (each referred to as a saiban-in) form a panel to hear and decide a serious criminal case and, if it finds a defendant guilty, pass sentence on the accused (Act on Criminal Trials with Participation of Saiban-in, Act No 63 of 28 May 2004 (Japan)).

C.  Judicial Power

1.  General Meaning

15.  According to the principle of the separation of powers, the judiciary as one branch of government is designed to be vested with judicial power (judicial powers). Judicial power is generally understood as the state’s function to adjudicate concrete controversies by interpreting and applying law. The United States (‘US’) Constitution explicitly mentions ‘cases’ or ‘controversies’ (Constitution of the United States of America: 17 September 1787 (US) Art. 3 para. 2). Judicial power undoubtedly extends to legal disputes relating to the existence of concrete rights and duties or legal relations between the parties. Because the common law tradition allows no extraordinary court such as an administrative court, judicial power tends to extend to all legal disputes. In the civil law model, on the other hand, administrative cases are heard by administrative courts, not ordinary judicial courts. Under the Fifth Republic constitutional regime in France, for example, the Conseil d’État is the highest administrative court, coexisting with the Cour de Cassation, the highest judicial court derived from constitutional text (Constitution of the Republic of France: 4 October 1958 (Fr) Art. 65). But legal traditions are not necessarily decisive. In Germany, judicial power is now exercised by the Federal Constitutional Court and federal and state courts (judicial systems in federal systems). Federal courts are comprised of the Federal Court of Justice, the Federal Administrative Court, the Federal Finance Court, the Federal Labour Court, and the Federal Social Court, as supreme courts of ordinary, administrative, financial, labour, and social jurisdiction, respectively (Basic Law for Federal Republic of Germany: 23 May 1949 (Ger) Art. 92, Art. 95 para. 1). The Dutch Constitution provides that the judiciary deals with ‘disputes involving rights under civil law and debts’ and ‘trial of offences’ and makes the question of whether adjudication of other disputes belongs to the judiciary a legislative matter (Constitution of the Kingdom of the Netherlands: 29 March 1814 as Amended to 17 February 1983 (Neth) Arts 112 and 113). Through constitutional change in 1947, Japan has on a civil law basis expanded judicial power to include administrative cases that were once situated outside of a judicial function (Constitution of Japan: 3 November 1946 (Japan) Art. 76 cf Constitution of the Empire of Japan: 11 February 1889, Arts 57 and 61).

16.  The contemporary judiciary has to cope increasingly with a complex of intricate interests in society. Expertise and special skills are more and more necessary for fair and efficient decision-making in the complicated cases that arise. Judges are commonly specialists in legal interpretation but laypersons in substantive matters. A current general trend thus lies in establishing courts with special jurisdictions other than ordinary civil and criminal cases, such as family, juvenile, tax, social security, labour, finance, trade, industry, and intellectual property.

2.  Cases and Controversies

17.  The requirements of concrete cases and controversies make appropriate and effective an exertion of judicial power that is intrinsically different from naked political power. The US Supreme Court has developed the notion of justiciability as a threshold with regard to federal judicial power (eg Muskrat v United States (1911) (US)). Justiciability clarifies the conditions under which the judiciary is able to demonstrate its potential as a matter of law and prudence. It includes there being two adversarial parties in controversy, having real and substantial issues of controversy (the interests at stake must be more than merely generalized and diffuse among the public at large), and the plaintiff having the standing to sue. The timing of litigation is also important in exercising judicial power. The doctrines of both ripeness and non-mootness indicate that legal complaints should be presented at the most appropriate time, neither too early nor too late. These requirements are supposed to secure for courts the most effective exercise of their power. Because the concept of justiciability straightforwardly concerns a question of what role the judiciary should play in a liberal democracy, how to interpret those requirements of justiciability depends on the legal, political, and social environments in which each judiciary finds itself situated. The Israeli Supreme Court has adopted a liberal standing doctrine, which allows citizens’ watchdogs and nongovernmental organizations dealing with human rights to file petitions even in the absence of any clear injury (eg, Ressler v Minister of Defence (1988) (Isr)). The Supreme Court of India has also allowed for public interest standing (eg, SP Gupta v Union of India Case (India)). South Africa has constitutionalized a liberal standing to sue (Constitution of the Republic of South Africa: 18 December 1996 (S Afr) Art. 38). The liberalization of standing is underpinned by a conviction that a judge’s role is ‘to bridge the gap between law and society and to protect democracy’ (Barak 193).

18.  Constitutional courts may review the constitutionality of governmental actions in an abstract way (eg Germany, Italy). While the particular structures and procedures constitutional courts adopt may vary, such courts directly address the question of whether a law is inconsistent with the constitution. The constitutional review of legislation here is different from the judicial review of legislation, in which particular cases must be pending before the courts exert their power to interpret constitutional law.

19.  Judicial courts may refuse to offer an advisory opinion upon the request of political departments of government because it may be unwise for judiciary courts to publicize their opinions over merely hypothetical or abstract questions. Refraining from advisory opinions is related to the avoidance of political involvement on the part of the judiciary. Some countries, however, may vest the highest court with authority to offer such opinions (eg, the reference jurisdiction of the Supreme Court of Canada (Cour suprême du Canada) (Supreme Court Act (RSC, 1985, c S-26) (Can) Art. 53) and the advisory opinion of the Russian Constitutional Court (Constitution of the Russian Federation: 25 December 1993 (Russ) Art. 125, para. 5).

3.  Limits of Judicial Power

20.  Even if there seems to be a legal dispute between two parties, judicial power may sometimes be faced by limits. Two categories of limit are theoretically recognized. The first category is internal: abstract legal issues, and disputes that ultimately cannot be solved by the application of law, such as conflicts over substantially academic, artistic, aesthetic, or religious values. Legislative and administrative free discretionary acts are also outside judicial review unless they were made beyond the bounds of their discretionary power or through an abuse of such power. The second one is external, or more policy-oriented. A constitution may itself provide exceptions to judicial decision-making such as disputes related to the qualifications of members of parliament and the trials of impeached officials. In order to pay due respect to the autonomous judgments of coequal branches of government, the judiciary may refrain from intervening in legal disputes in that area. International customs and treaties may also prevent judiciary courts from exercising their power. Sovereign immunities may be provided for in a constitution, a statute or an established custom. The highest court of a land may recognize the political question doctrine concerning certain politically important acts of government to avoid getting caught up in a political thicket (eg, Coleman v Miller (1939) (US) (the constitutional amendment process); the Sunagawa Case (1959) (Japan) (the Japan–US Security Treaty)). Although it is always difficult to define what is truly political, this doctrine generally assumes that courts should be free from political pressure in order to keep secure important legal rights. But a different court may be reluctant or refuse to resort to this doctrine as far as the law is concerned because the court’s concentration on legality is understood to realize the court’s role and enhance the public confidence in which it is held in a liberal democracy (Barak).

D.  Organization of the Judiciary: Between Independence and Accountability

1.  Judicial Independence

21.  History has witnessed abusive intervention in judicial matters by the political branches of the government in general and the executive in particular because a judiciary with neither force nor purse is regarded as the least dangerous governmental branch (Federalist Paper No 78). Judicial independence indicates that courts and judges in the discharging of the adjudicative function as their core value should not be susceptible to undue influence on the part of political branches of the government and within the judiciary (independence of the judiciary).

22.  The status of special courts is a crucial issue in terms of judicial independence if the highest court in the land cannot have final appellate jurisdiction over such courts. Extraordinary courts in general and military tribunals in particular may be threats to the independence of the judiciary and thus to the rule of law. If such courts are necessary, the most careful structuring of a system for them is required to maintain an autonomous judiciary. The European Court of Human Rights (ECtHR) questioned the character of a United Kingdom court martial (martial law; military courts) as ‘an independent and impartial tribunal’ in the light of the right to a fair trial (ECHR Art. 6 sec. 1) (Morris v United Kingdom (2002) (ECtHR)); right to a fair trial in criminal law cases; right to a fair trial in civil law cases; right to a fair trial in administrative law cases). In the course of engaging in the War on Terrorism, the US Supreme Court also supervised the Bush administration’s establishment of military commissions (Hamdan v Rumsfeld (2006) (US)).

23.  Safeguards for judicial independence may include institutions for the professional appointment of judges, a fixed term of judgeship, no reduction of judicial remuneration, no transfer without the consent of judges, a due disciplinary process by the judiciary itself, and autonomy of judicial administration including budgets (financing of courts), although their concrete requirements vary from constitution to constitution according to the relevant historical, political, and social backgrounds (eg, R v Valente (1985) (Can)).

24.  The appointment of judges (selection of judges) is sometimes political, as the US Constitution shows (Constitution of the United States of America: 17 September 1787 (US) Art. 2 para. 2 sentence 2), but the unilateral exercise of appointment power by the executive may be restrained by parliamentary consent. Half of the German Federal Constitutional Court justices are selected by the House of Representatives (Bundestag) and the Senate (Bundesrat), respectively, with the requirement of a two-thirds majority, which likely leads to a consensus-oriented nomination of candidates for a justiceship (Basic Law for Federal Republic of Germany: 23 May 1949 (Ger) Art. 94 para. 1). The post-World War II constitutions have established less political and more professional devices for recruiting judges. The Italian Constitution, for example, provides for the Superior Council of the Judiciary, which is vested with authority to appoint, assign, move, promote, and discipline judges (Constitution of the Italian Republic: 27 December 1947 (It) Arts 104–105). More or less similar schemes have become prevalent in, for example, France (Constitution of the Republic of France: 4 October 1958 (Fr) Art. 65), Spain (Constitution of the Kingdom of Spain: 27 December 1978 (Spain) Art. 122), post-communist Eastern European countries such as Croatia (Constitution of the Republic of Croatia: 22 December 1990 (Croat) Art. 124), Bulgaria (Constitution of the Republic of Bulgaria: 13 July 1991 (Bulg) Arts 129–130), and Serbia (Constitution of the Republic of Serbia: 8 November 2006 (Serb) Part 8).

25.  In Japan, the cabinet is vested with power to designate a Supreme Court Chief Justice and appoint other Justices (Constitution of Japan: 3 November 1946 (Japan) Art. 6 para. 2, Art. 79). Unlike lower court judges, whom the cabinet appoints from a list of persons nominated by the Supreme Court (Art. 80), there is no textual requirement for ensuring judicial autonomy in case of appointing justices. No legislative confirmation is required, either. Supreme Court Justices undergo popular review after appointment every ten years before their mandatory retirement at the age of 70. Although this may be a plan intended to offset the lack of democratic legitimacy, popular review as recall potentially comes into conflict with performing their adjudicative function independently because a declaration by the Supreme Court of unconstitutionality of a law is more or less counter-majoritarian. If the Supreme Court of Japan (Saikō-Saibansho) were willing to take a more active role in the liberal democratization of society than in the status quo, the current system could become a particularly serious problem for discharging its mission while maintaining independence (Kawagishi).

2.  Judicial Accountability

26.  Because courts, as human institutions, may make grave mistakes, a judiciary with excessive independence may not necessarily be favourable for democracy. It is important accordingly to create a system in which the judiciary in general and judges in particular should be accountable for discharging their assigned role, holding internal integrity in due respect (judicial accountability). The concrete content of the outputs of judicial decision-making should not be cause for any type of sanction against the judiciary and the judges who have rendered them, even if the majority of the people disapprove of them. Reasonable people may disagree with one another in a contemporary diversified society. Public trust in the judiciary is derived from a public perception that the judiciary, without having undue influence, exercises its authority by a principled adherence to law.

27.  Judicial accountability may be quite different from genuinely political institutions. Judges must give the best possible reasons to justify their decisions (Dworkin). Unlike naked political power, the power of reasoning to persuade the relevant parties in particular and people in general is decisive in judicial decision-making. Courts are supposed to be situated in interpretive communities among legal experts and their decisions are scrutinized by the communities concerned. The reason-giving nature of the adjudicative process is maintained and enhanced through such scrutiny. Judicial errors should be self-corrected through discourse including harsh criticisms in the interpretive community.

28.  From the perspective of a particular judgeship, judicial duties should be discharged on the principle of the best understanding of the relevant legal materials in the cases before the court. Judicial virtue is sometimes emphasized (Solum). Through exercising judicial virtue, judges defy political or social pressures from both the outside and the inside, and by acting in accordance with legal principles they demonstrate ethical commitment, which makes them accountable to law and the citizenry.

E.  Judicialization of Politics or Politicization of the Judiciary

1.  Public Interest Litigation

29.  Contemporary judiciaries have been faced with litigation that is very different from what was traditional. As Abram Chayes points out, traditional litigation has the following features: the lawsuit is bipolar; litigation is retrospective; right and remedy are interdependent; the lawsuit is a self-contained episode; the process is party-initiated and party-controlled (Chayes 1282–83). What is at stake in contemporary litigation has gone beyond settlement of disputes over rights and obligations between private citizens. It has been related to structural reform based on public interest of which influence will be not limited to involved parties but reach a large number of people in society. In contemporary litigation, fact-finding is more predictive and legislative, relief is more forward-looking, the judge is more active in realizing an adequate and feasible solution, and the subject matter is more public policy related (Chayes 1302). The Brown v Board of Education of Topeka Case (US) is a well-known example of public interest litigation. The legitimacy of public interest litigation is sometimes challenged from the traditional viewpoint of the judiciary.

2.  Judicialization of Politics

30.  Furthermore, legal institutions all over the world have recently become increasingly influential. Alexis de Tocqueville once pointed out that ‘Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question’ (Tocqueville 280). What he said is now all the more true because the world has witnessed judicialization of politics since the late twentieth century. It means the transfer of not purely legal but more or less political disputes from the political arena to legal institutions, ie national judicial supreme courts, constitutional courts or international courts such as the European Court of Justice, the ECtHR, the Inter-American Court of Human Rights, and the International Criminal Court.

31.  What is striking in this phenomenon is that courts have squarely treated core political disputes with few or no relevant constitutional or legal principles and rules to solve them. The political question doctrine no longer seems like a desirable tool courts adopt with prudence. Courts have bravely tackled decisive electoral processes, supervision over the legislative’s and executive’s various ranges of public policy, confirmation of regime change, reconciliation for transitional justice, collective identity formation, and nation-building. Ran Hirschl has discussed this trend as a transition to juristocracy (Hirschl (2004)).

32.  The judicialization of politics may have complicated origins. First of all, establishment of constitutional review in any mode brings courts into contact with politics, which modern constitutionalism has attempted to control. The constitutional dispute over the New Deal between US President Franklin Roosevelt and the US Supreme Court is one of the most critical events in contemporary judicial history. The Turkey Constitution has established a Constitutional Court that may deal in a judicial capacity with offences related to high officials in government, parliament, the Supreme Court, and the prosecutors’ office, which brings it close to politics. The Court may also review the constitutionality of law and decide on individual applications as constitutional complaints (Constitution of the Republic of Turkey: 7 November 1982 as Amended to 12 September 2010 (Turk) Art. 148).

33.  Further, constitutional courts particularly with the power to control the constitutionality of state acts in an abstract way are more directly and profoundly intermingled with the political process because a power to make petitioners is usually granted to political actors such as governmental officials and certain numbers of legislative members. Through supervising the legislative process from a perspective of constitutional law, they engage themselves in an extra either positive or negative step. The Bonn Basic Law vests the German Federal Constitutional Court with various powers, which renders it one of the most influential courts in the world (Basic Law for Federal Republic of Germany: 23 May 1949 (Ger) Arts 93 and 100). The Constitutional Court is authorized to control not only abstractly the constitutionality of state acts but also concretely the constitutionality of a statute by referral from ordinary courts. In addition, the Constitutional Court may review constitutional complaints mostly against judicial judgments that are submitted by individuals who think their constitutional rights have been violated after all other remedies have been exhausted. In the last two, the Court influences the judiciary in view of constitutional norms, which leads a constitutionalization of the legal order that is derived from constitutional provisions of rights and interactions between constitutional judges and ordinary judges (Sweet (2002)). The Italian Constitutional Court may exercise the power to control the constitutionality of statutes concretely by referral from ordinary courts in some cases (Constitution of the Italian Republic: 27 December 1947 (It) Art. 134). After the collapse of the Franco regime, the Spanish Constitution of 1978 established a powerful Constitutional Court that may exert powers to control constitutionality both abstractly and concretely and review constitutional complaints (recurso de amparo). The rights ombudsman (the Defender of the People or Defensol del Pueblo) may submit to the Court a petition for abstract control of constitutionality and refer cases to the Court (Constitution of the Kingdom of Spain: 27 December 1978 (Spain) Arts 161 and 162). The Portuguese Constitution has created a Constitutional Court vested with the powers of abstract and concrete control of constitutionality, which is coexistent with the ordinary courts that may exercise judicial review (Constitution of the Portuguese Republic: 2 April 1976 as amended 30 September 1982 (Port) Arts 223, 278, 280 and 281).

34.  After World War II, constitutional review gradually spread among states that had experienced political abuses in a previous regime. Since the end of the Cold War particularly, constitutional review has become a common standard for constitutional writing. Hungary and Colombia have introduced popular action by which a citizen may make petition directly to the Constitutional Court for initiating abstract control of the constitutionality of statutes (Constitutional Court Act (Hung) Art. 21 para. 2; Constitution of the Republic of Colombia: 4 July 1991 (Colom) Art. 241).

35.  In effect, the proliferation of constitutional review in former communist countries, the creation and reinvigoration of courts in African and Asian countries (eg South Africa, India, South Korea, Taiwan), and the emergence of international schemes for review are all related directly or indirectly to the judicialization of politics as part of a worldwide tendency.

36.  The constitutionalization of rights and freedoms and fundamental principles such as human dignity, fairness, and equality may provide judges with a clue to the resolution of political but legal disputes through interpreting those concepts in one way or another. Courts as fora of reason may compensate for dysfunction in the majoritarian political process that derives from prejudices against discrete and insular or anonymous and diffuse minorities, undue influence of partial interests, or simply lack of deliberation. It may be highly questionable, however, from the viewpoint of modern constitutionalism to judicialize essentially political disputes (‘mega-politics’ in Hirschl’s terms). With a much less democratic foundation and without persuasive legal instruments available, courts are by no means appropriate fora to deliberate and decide such disputes. It is true that political actors may also endorse some judicialization of politics because by transferring extremely difficult issues to courts they can avoid the hard choices in political predicaments that might make them unpopular among the electorate and saddle them with unwelcome responsibilities. But the judicialization of pure politics inevitably leads to the politicalization of courts, which may transform them into something essentially the same as the political branches. While the principled and reasoned institutions might lose their advantage, the political branches might also undermine their virtue of accountable politics (Hirschl (2006)).

F.  Conclusion

37.  The judiciary plays an indispensable role in a constitutional democracy. Dissolving concrete legal disputes is one of its most fundamental functions. At the same time, the judiciary may also establish a general rule other governmental branches and the later judiciary should pay due respect to when they make their decisions. Constitutional review of state acts, particularly, is a powerful means to control them. Exerting that power leads to founding a framework of constitutional dialogue between the high court and other governmental branches and, if a constitutional court is established, between the constitutional court and ordinary courts. Through constitutionalization of the legal order, politics may be more or less judicialized because constitutional rights and principles are the most important component in liberal democracy. Constitutionalism itself reflects a complex combination of the separation of powers, popular sovereignty, representative democracy, and the rule of law or constitutional review. The role of the judiciary in general and the judicialization of politics in particular should be evaluated in the grand context of contemporary constitutionalism.

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