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Published online by Cambridge University Press: 19 March 2012
Constitutional judicial review in Central and Eastern Europe has become an entrenched and powerful factor in the politics and constitutional life of these countries; indeed, it would be impossible to give even a rough account of these new democracies without bringing constitutional courts into the picture. For all their importance and activism, their introduction had not been preceded by any thorough debate concerning the merits and demerits of the model transplanted from Western Europe—especially, from Germany—and the developing jurisprudence of the courts was strangely silent about the grounds and the limits of the courts ‘legitimacy, especially when replacing parliamentary choices on rights implicating matters with the courts’ own views about the proper articulation of vague rights-provisions. This Article explores some of the reasons and consequences of this silence.
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3 Article 147 of the Romanian Constitution, now repealed.
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5 In Bulgaria, Hungary, Slovakia. In Poland, until the introduction of 1997 Constitution, the Constitutional Tribunal had authority to pronounce binding interpretation of statutes.
6 See also Sadurski, Rights Before Courts, supra note 4, at 33-40.
7 A similar procedure is followed in Bulgaria, where the Constitutional Court is composed of twelve members, one third of which are elected by the National Assembly, one third by the President, and one third are elected during a joint session of the justices of the Supreme Court of Cassation and the Supreme Administrative Court.
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33 Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson J, concurring). It should be noted, however, that Justice Jackson made this remark not in the context of the Supreme Court striking down a congressional act, but in the context of reversing a state court's decision.
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47 On Apr. 27, 2006, the Polish Constitutional Tribunal (Decision P 1/05) found a provision of the code of criminal procedure implementing the European Arrest Warrant (EAW) inconsistent with the constitutional prohibition of extradition of Polish citizens. The Constitution was duly amended on Sept. 8, 2006.
48 The Czech Constitutional Court annulled, in its decision PL US 50/04 of Mar. 8, 2006, governmental regulations on production quotas for sugar producers on the basis that the government has exercised a competence, which had been already transferred to the European Community; for discussion, see Sadurski, supra note 45, at 6-9.
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