A. Sakalas. Įžanginis žodis tarptautinėje konferencijoje „Konstitucija XXI amžiuje“ A. Pumputis. Konstitucija kaip simbolis ir kaip priemonė E. Kūris

Prof. Dr. Saulius Katuoka

Law University of Lithuania

CONSTITUTIONAL JUDGES AND OTHER MEANS FOR ENSURING COMPLIANCE WITH THE CONSTITUTION

Professor, dr. Eivind Smith

University of Oslo, Department of public and international law

P.O. Box 6706 St. Olavs plass

N–0130 Oslo, Norway

Phone: +47 – 22 85 94 18

E-mail: eivind.smith@jus.uio.no

Summary

The Constitution is at the same time a legal and a political instrument. The paper insists on the necessary interaction between judicial and non-judicial means for ensuring compliance with the Constitution. In the long run, its strength as a political instrument will diminish if the action of constitutional judges is not supported by a constitutional culture in which constitutional arguments are taken seriously even in the absence of an immediate threat of court action. The importance of the cultural factor increases the more doubtful a constitutional norm appears to be.

In the last sections of the paper, these points are discussed in the light of a recent statement by Andrius Kubilius, former Prime minister of Lithuania. According to the wording of the statement, it may be read as saying that the existence of the Constitutional Court is the only reason why attention is paid to the Constitution in political decision-making. If this were the correct understanding, it would be a strong sign of success for the Constitutional Court but not for the Constitution of Lithuania.

The constitution: law and political instrument

Lawyers tend to regard the constitution first and foremost as a collection of legal norms. „Legal norms“ are currently defined as norms in the last instance subject to being upheld by „courts“.

In such a perspective, the creation of the Constitutional Court of the republic of Lithuania is just one example among many that together have created the recent but indeed far-reaching introduction of constitutional courts and/or other institutional devices for upholding the authority of the constitution as superior law all over Europe. This development makes a legal perspective more legitimate and pertinent than ever before.

The choice of a legal (or better: court-centred) perspective make it too easy, however, to forget that within the European constitutional tradition – not to speak of the so-called socialist one – the constitution had little or no importance as a strictly legal instrument [1]¹. As a matter of fact, the Norwegian systems of judicial review of the constitutionality of legislation that was gradually established throughout the first half of the 19^th Century was the first and for many years the only exception to that tradition. For the rest, the historical point of departure clearly was written constitutions perceived as some sort of political declarations with little or no effect as positive law to be applied by courts [2, p. 289–305].

The absence of a clear-cut status as a legal instrument nevertheless did not stand in the way of more than one constitution gaining considerable importance as measures of the constitutionality of political action. The political branches of government tended to act in conformity with the constitution or at least to avoid openly violating it: More often than not – at least in Western Europe – elections were held according to the provisions laid down by the Constitution, and so on.

Whether they did so because they considered themselves bound, by interest – by fear of criticism, for example – or both is of little importance in the present context. The point is quite simply the one already stated: A constitution may be quite successful in practice even if judicial remedies are inaccessible or of quite marginal importance.

On this background, it is crucial to recall that no constitution may penetrate political life by means of judicial remedies alone. As a matter of fact, a constitution is above all a political instrument. It is a pleonasm to say that it is of political origin. In order to function well it has also to be globally observed in political decision-making. It would be a sign of failure rather than of success if courts were constantly called upon to state the meaning of the Constitution and (if needed) to censure conflicting enactments.

In this sense, constitutional norms share the fate of any legal norm: Sociology of law as well as common-sense observations give sufficient ground for calmly stating that legal norms – even when enacted in the formally most unquestionable manner – risk remaining dead letters unless factors like internalisation by relevant actors, different social mechanisms and self-interest concur in rendering them effective. In the long run, it seems clear (or at least we should hope so) that dictatorship based on fear of sanctions without a minimum of popular support, will quite simply not work.