Constitutional Courts as Catalysts of Democratization

Constitutional Courts are generally seen as important facilitators of Central and Eastern European transitions. The existence of an independent and active judiciary is generally perceived as a necessary component of democratic proliferation (Ran Hirschl, Towards Juristocracy (Harvard U.P. 2004), 31; also Victor Ferreres‚ ‘The Consequences of Centralizing Constitutional Review in a Special Court. Some Thoughts on Judicial Activism‘ (2004) SELA. Seminario on Lationoamérica de Teoría Constitutcional y Política). The interconnection between the processes of democratization and constitutionalization was long observed within the Western European countries. Alec Stone Sweet, in his famous work on judicialization of politics, identified constitutional policies as an indirect product of judicialization of politics, comprising the relationship between constitutional (macro-level) and regular decision-making of public officials, mediated by constitutional judges. Post-communist constitutional courts are particularly influential actors, established both as institutions protecting the rights of individuals in majoritarian parliamentary systems, and as a counter-force to legislative power. The output efficiency of constitutional courts, however, differs throughout the CEE rather profoundly, and unfortunately, we know very little about the reasons of this variety. The role of constitutional courts in democratization processes has drawn very limited attention. While there is a vast body of literature on the judicial review and judicialization of policy in the USA, Western Europe and a few semi-democratic regimes, Central and Eastern constitutional courts stay surprisingly under-researched, especially in terms of their role in shaping and re-designing the “democratic essentials”: voting and electoral systems and redistribution of power and competences between elected bodies of new emerging democracies. The proposed paper seeks to breach the gap existing in contemporary research and interpret the influence and the involvement of the constitutional courts in the varying dynamics of transitional justice processes. On the case study of the Czech Republic and Slovakia, the paper aims to answer the question: what was the impact of constitutional courts on the formation of new political system, especially the electoral system and competences of democratically elected bodies? Using an explorative approach, the paper traces the presence of policies and elements typically associated with democratic regime under the characterization of a democracy by Robert Dahl, Philippe C. Schmitter and Terry Lynn Karl (elections, political parties, freedom of political expression, freedom of media, limits and control of competences of the government by the elected bodies) in constitutional courts jurisprudence. Lastly, the paper looks at actors most actively approaching and instigating proceedings before the Constitutional Courts in various electoral terms.