The Constitutional Court in light of interpretive decisions in normative control proceedings

• Main Author: Stojanović Dragan
• Format: Article
• Language: English
• Published: Faculty of Law, Niš 2016-01-01
• Series: Zbornik Radova Pravnog Fakulteta u Nišu
• Subjects: constitutional court; politicization; constitution; statutory interpretation
• Online Access: http://scindeks-clanci.ceon.rs/data/pdf/0350-8501/2016/0350-85011672037S.pdf
• ISSN: 0350-8501; 2560-3116

In a legal system based on the principle of the separation of powers, constitutional judicature is necessarily (given the nature of its social function) at the intersection of law and politics. Thus, constitutional judiciary is required to preserve political neutrality, particularly in relation to political (legislative and executive) authorities. The paper analyzes the principal issues pertaining to constitutional court interpretation, particularly in light of observing the principle of the separation of powers that the constitutional judiciary is bound to abide by and considering the role of the constitutional court as an institution standing at the intersection of law and politics. Every constitutional court is required to be politically neutral and independent from daily politics, which is the major factor in delineating not only the overall boundaries of the constitutional control of the normative framework but also in ensuring the independent and unbiased activity of the constitutional court in the process of interpreting the Constitution and the laws. The constitutional control function shall not be politicized, and it must be exercised only through legal reasoning. Consequently, in the process of constitutional interpretation, the Constitutional Court of Serbia has to develop and consistently pursue a doctrine of self-restraint, thus refraining from politically-driven assessment which is the exclusive duty of political authorities. A closer examination of the doctrine of self-restraint in recent constitutional practice shows that the most prominent elements of this doctrine are relatively new interpretative constructions and legal formulations of constitutional court, which reinforce not only the political neutrality of the constitutional judiciary but also its role as 'the negative legislator'. Yet, some of these constructions may be challenged because their excessive and often inadequate application has resulted in a kind of 'self-deprivation' in cases where the Constitutional Court may have had to abandon its primary constitutional mission and even 'tolerate' unconstitutional activity. In particular, this refers to the constructs such as 'a matter of legislative policy ' and a highly dubious term 'political acts' which are eo ipso excluded from constitutional control. On the other hand, when it comes to interpretative decisions, which rest on the dogmatic principle of statutory interpretation aimed at establishing the compliance of laws with the Constitution, the interpretation results may 'save' the legal act from being declared unconstitutional and invalid. In that case, the main problem is that the Constitutional Court has a slightly different role of shaping the positive law; thus, the practice of resorting (too frequently) to interpretative decisions does not lead to the optimal exercise of the Constitutional Court mission. Therefore, we can conclude that the constitutional jurisprudence (which includes only a few interpretative decisions) does not seem to entail a 'dangerous' divergence of the Constitutional Court from its constitutional mission, nor does it significantly affect the principal Constitutional Court activities.