Buquicchio G.
General Secretary of the Venice Commission

Introducing speech at International Conference on "Role of the Constititional Court in the Maintenance of Stability and Development of the Constitution"

First of all I would like to say how pleased I am to welcome on behalf of the Venice Commission such a distinguished audience here at this conference co-organised by the Constitutional Court of the Russian Federation and the Venice Commission with the valuable assistance of the Moscow Institute of Law and Public Policy. At the initiative of President Zorkin and with the Venice Commission’s support we came here to discuss the role of the Constitutional Courts in the maintenance of the stability and development of Constitutions.

I do not need to explain to anyone in this auditorium how crucial it is to preserve the stability of the ultimate legal text of any nation. We all know that the Constitutions guarantee the separation of powers and the fundamental rights – basic principles which, if respected, guarantee peace and stability. However, we all know too well what can happen if constitutions are manipulated with the political agenda of the moment in mind. That is why the importance of the role played by the Courts "in charge of" Constitutions is difficult to underestimate.

Indeed, the old battle between Kelsen, as inventor of the Constitutional Court, and Carl Schmidt, as his opponent highlighting the role of the Head of State in the Weimar Republic as the one and only guarantor of the Constitution has been surpassed. The Constitutional Court has developed into the referee/adjudicator of conflicting interests, political and social, of greater complexity than Professor Kelsen himself may ever have imagined. How to preserve this valuable acquis is another question that can only be answered by careful choice and by experience. That is why I am delighted to see representatives of so many relevant courts here today: the exchange of experience promises to be rich and rewarding.

Implementing constitutions, turning their abstract provisions into rules that govern the everyday reality of political life, is no doubt a momentous task and by no means the sole responsibility of the legislature. It is also entrusted to other organs, to the judges in particular and first and foremost to the constitutional judges. This is an important development to observe. The idea of a court as the impartial guardian of the constitution has blossomed so that in our days it is rightly described as a major feature of democracy. The reasons for this flowering of constitutional justice are not difficult to see. The highest courts have been able to preserve the Constitutions at times of political conflicts and by doing so they have deserved public confidence by protecting ordinary people against the unconstitutional exercise of any authority, as high as it may be.

As you are aware, the Venice Commission is mostly known by its well-established reputation of giving independent opinions on constitutional and legislative drafts. However, to give the drafts the necessary vitality, the Commission was conscious from the day it was established, that it had to support the courts implementing those laws. That is why, the Venice Commission - which has a number of judges among its members some of whom I am happy to see here today - always regarded constitutional justice along with constitutional assistance as the major fields of its activity that complement each other.

Currently, the Commission takes this co-operation a step further by offering to you, the courts its services acting as an amicus curiae – as a friend of the court. You can request studies in comparative constitutional law from the Venice Commission relating to cases before the Court. In such studies, the Venice Commission will not embark upon the nation question to be answered by the Court, e.g. whether a particular law is in conformity with your Constitution. The Venice Commission would restrict itself to provide information on aspects of comparative law.

Mr Chairman,

Honourable judges,

Ladies and gentlemen!

Our programme foresees two working days. The first one will be devoted to stability, the second one to the development of the Constitution. At first sight, the task of the Constitutional Court may seem to be the guarantee of constitutional stability only, the task of Parliament or a constituent assembly being to develop the Constitution. Strict followers of "judicial restraint" will indeed deny any role for a Constitutional Court in developing the Constitution.

Constitutions, however, are a living species. They shape the life of society and society shapes them in turn. In practice, constitutional courts are often faced with questions to which the Constitution does not give a clear-cut answer. It may be silent – here I only refer to new issues like bioethics, a topic which more and more besieges Constitutional Courts. Or, the Constitution may provide ambiguous answers because its drafters agreed on a compromise formula which pleased all sides but left open issues only seemingly being dealt with. In addition, over time perceptions and attitudes in society may change – as an example I may refer to unions between persons of the same sex. In these cases it falls upon the Constitutional Court to provide an answer. Thus, the Constitutional Court will have to develop the Constitution without being a constituent power, which of course, needs democratic legitimacy.

In assuming its role of developing the Constitution, the Court will in each case have to choose the appropriate method of interpretation be it literal or historical on the one side or systematic or teleological on the other side. According to this choice, the Court may move more or less in the direction of developing the Constitution and its inherent values. The discussions during our Conference may allow us to better discern the limits between constructive interpretation of the Constitution and the area reserved for the constituent power.

No doubt we will see and evaluate in the coming 2 days, how much the role of the Constitutional court and its judges is moving away from the theory of the judge, - allow me to say - passively applying the constitution, to the theory and practice of a judge being a determining actor in the developing of democratic principles.

I believe that the Constitutional Court not only provides for the stability of the Constitution and respect for the rule of law but has, beyond this classical approach, a distinctive role in the strengthening, continuity and development of democracy and of the Constitution as its main pillar.