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2 E. Eur. Const. Rev. 28 (1993)
The New Courts: An Overview

handle is hein.journals/eeurcr2 and id is 68 raw text is: EAST EuRoPEAN CONSTITUTIONAL REVIEW Eastern Europe's institutions of judicial review have not been shy about tackling controversial issues. THE NEw COURTS: AN OVERVIEW By Herman Schwartz Among the happier surprises in the East Central Euro- pean world since 1989 are the new Constitutional Courts. Every one of the former Soviet-bloc nations has included such a tribunal in its future, and many of these courts have already plunged into some of the most difficult po- litical and social issues facing their people. In many in- stances their decisions have been highly unpopular and predictably so, but that seems to have deterred few of them from ruling as they think they should. Except for Czechoslovakia, none of these countries had ever had such an institution before, and even in Czechoslovakia the interwar tribunal did very little. Moreover, the enormous power given these new courts to overturn actions by the legislature and the highest state officials-the President or the prime minister-is at odds with the traditional conception of thejudicial function in these countries, which limits judges to close textual read- ing and application of legislative codes. This is no place to explore in detail the reasons for the creation of such courts. One obvious reason is that al- though these courts are new to East Central Europe and had virtually no parallel in the Communist world (ex- cept for Yugoslavia and Poland to some extent), the East European nations are following a Western model. Since World War II, almost all West European (and many other) nations have established constitutional tribunals which, though usually quite different from the U.S. Su- preme Court in their approach to judicial review, have a similar function. Perhaps the most significant feature of these courts and their judges is how different they are from the regu- lar judiciaries in their countries. As Mauro Cappelletti has put it, Continental judges are usually 'career judges' who enter the judiciary at a very early age and are pro- moted to the higher courts largely on the basis of senior- ity. Their professional training develops skills in techni- cal application of statutes rather than in making policy judgments (The Judicial Process in Comparative Perspective, p. 43). Ajudgeship is usually ajob without great prestige, and thesejudges have no power to find a statute unconsti- tutional. Constitutional court judges are very different. Un- like the regular judiciary, they are not created to settle conventional disputes of either a private or public nature but to resolve constitutional questions, usually though not always exclusively on behalf of high state officials, members of the legislature or the regular judiciary. The essential characteristics of such courts were summed up by Louis Favoreu in a discussion of the West European Constitutional Courts: 1) 'Concentrated control' in the hands of a unique jurisdiction constituted especially for this purpose and independent of the ordinaryjurisdictional structure; 2) recruitment of nonprofessional judges by political authorities chosen for political purposes, which, far from being a drawback-as one often believes in France-is a necessity because this assures democratic legitimacy for the Constitutional Courts when con- fronting the legislators; 3) abstract control initiated by political authorities, and the ability to issue a decision voiding legislation

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