Judicial Review and Protection of Constitutional Rights

As already stated in Chapter 2, the dominant justification for the robust position of the constitutional courts of post-communist states in CEE is based on the role of those courts in the protection of individual rights — in particular, those explicitly entrenched in the respective constitutions. It has been accepted, virtually without critical scrutiny, that constitutional courts must have strong powers to monitor the constitutionality of legislation if constitutional rights are to be meaningful. It is now time to consider the plausibility of this general claim in more detail. The claim, of course, is not specific to CEE; in fact, it is by far the most popular argument used to support the existence of, or demand for, strong constitutional courts. The argument — presented here in a deliberately simplified form — goes usually like this: democracy is not based on blind respect for unrestrained majority will, and individual and minority rights are among the most important constraints upon the majority. The political majority is capable of looking after its own interests, but can we be sure that it will give sufficient protection to the minority and individual dissidents, whether the dissidence is understood in political, moral, religious or personal lifestyle terms? The majority should not be allowed to always prevail over those who disagree with its preferences and choices, and the values reflected in constitutional rights — the argument goes — reflect this “precommitment” regarding the outer borders of the majority’s reach. As the majority cannot be trusted with observing predetermined limits upon its powers, an independent, non-majoritarian institution is needed to police, monitor and enforce those limits. The specific institutional design of such a body may vary from country to country but the general principle remains the same: if perfecting “constitutional democracy” is our aim, then the parliament corresponds to the noun, and the judicial (or quasi-judicial) body to the adjective in that term.