Patterns of constitutionalism: who has the final word? Judicial-legislative relations in Europe Kálmán Pócza associate professor Department of Political Science Pázmány Péter Catholic University Constitutionalism in the European Union and the constitutional interaction between the West and East of Europe Public Hearing of the Committee on Constitutional Affairs of the European Parliament 7 March 2019 Brusselles

Overview Definition Constitutionalism in Central and Eastern Europe European models of constitutionalism Legal and political constitutionalism The Commonwealth and the Scandinavian model of constitutionalism Popular and participatory models of constitutionalism Models of European constitutionalism

1. Definition Constitution: constituting and constraining political power (who has the final word) coordination of social interactions expression of fundamental values outcome of severe political struggles for power

2. Constitutionalism in Central and Eastern Europe focusing on the constraining element shifting centre of political power: from executive-legislative to judicial-legislative relations strong form of judicial review (final word) (with some exceptions) constitutional courts moved into the focal point of political debates

2. Constitutionalism in Central and Eastern Europe courts have been instrumentalized by politicians but judges’ activism contributed also to judicialization of politics and politicization of courts global spread of judicial review

Legal constitutionalism Political constitutionalism 3. European models of constitutionalism Legal constitutionalism strong form of judicial review individual rights protection counter-majoritarian character unilateral declarations judicial supremacy (juristocracy) Political constitutionalism reasonable disagreement political accountability majority decision compromises parliamentary supremacy

3. European models of constitutionalism Commonwealth model NZ not entitled to declare unconstitutionality: constitutional interpretation in harmony UK can declare incompatibility with the HRA (1998) but not entitled to annul Canada can annul but parliament’ super-majority is entitled to overrule Scandinavian model rights protection by ombudsman self-empowerment of courts self-restraint and deference no judicial activism unwritten conventions prevail over written norms wide room for manoeuvre for both branches constitutional dialogue

Participatory constitutionalism Deliberative constitutionalism 3. European models of constitutionalism Participatory constitutionalism no special role for judges shift from judicial-legislative relations to citizens popular supremacy Deliberative constitutionalism no special role for judges shift from judicial-legislative relations to citizens supremacy of reasonable deliberation

4. Models of European constitutionalism European integration legal model of constitutionalism is the dominant form participatory model: referenda in France and the Netherlands in 2005 role of the ECJ very important judicialization of politics and politicization of courts who will have the final word?