Is the Constitutional Court essential?

In its constitutional design, Spain opted for a concentrated control of constitutionality that it deposited in a court detached from the judicial power and in which ordinary judges do not hear constitutional issues.

Thomas Osborne
Thomas Osborne
22 December 2022 Thursday 02:34
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Is the Constitutional Court essential?

In its constitutional design, Spain opted for a concentrated control of constitutionality that it deposited in a court detached from the judicial power and in which ordinary judges do not hear constitutional issues. The aim was to consolidate a univocal criterion and reinforce legal certainty (which does not necessarily guarantee justice or equity). Thus, the "European" or "Austrian" model was imposed, which is distinguished both from "diffuse control" - judicial review - used mainly by common law countries, led by the United States, and from "mixed control" or integration that has spread, above all, in Latin America.

The "American model" always starts from a specific case so that the decision that is adopted only has effects for the parties involved in the process and the law remains in force for other cases. The uncertainty is clearly greater because there is less uniformity in judicial decisions, although it is corrected, to a large extent, with the rule of precedent. Let's say that equity is won and legal certainty is lost.

In the "mixed control" the two models coexist and operate in parallel. All judges and courts are allowed to analyze the constitutionality of the norms, on a case-by-case basis, and there is a specific body that exercises constitutional control. That body can be a Constitutional Court integrated into the judiciary (Colombia), outside the judiciary (Peru), a Supreme Court (Mexico) or a chamber of the Supreme Court (Costa Rica).

Regardless of the historical or sociological reasons that explain the option for one path or the other, I believe that the latter is the most advantageous. The possibility that all judges can hear constitutional issues offers more guaranteed, dynamic and adapted results, and allows activating “sleeping” constitutional clauses, unapplied in perpetuity for fundamentally ideological reasons. Furthermore, when there is concentrated control, neither homogeneity nor legal certainty is renounced. In other words, the application of the Constitution is more complete and the interpretative margins, always controlled, are broader. It is clear that this "democratization" of the constitutional process has its risks, but they are not greater than those entailed by its conservative and elitist management.

For the rest, this constitutional profusion is usually accompanied by an extension of the active legitimacy of citizenship and opens the door to the defense in court of collective interests and common goods that, otherwise, may remain unprotected: popular action, public hearings in complex litigation, citizen actions of unconstitutionality, non-compliance action (violation of rights by omission) or informal mechanisms of citizen participation and constitutional control. Instruments practically unknown in our constitutional tradition that oxygenate the judicial space, encourage the fidelity of judges to the democratic spirit, their connection with the needs and demands of the people and a more realistic approach to the society in which they live.

Replacing some politicized judges with others does not usually help much and, although improving the selection processes is always an advance, the institutional frameworks condition the results. Those frameworks are not harmless and we should not take them for granted. In the judicial sphere, as in politics, the question is whether to fear more the government of the few or the government of the many.