Judicial review, separation of powers and democracy: the problem of activist constitutional tribunals in postcomunist Central Europe

摘要

It has become a commonplace belief that the constitutionalization of rights implies the introduction of strongly counter-majoritarian devices into the political system. Conventional wisdom in the current constitutional discourse in the postcommunist countries of Eastern and Central Europe has it that constitutional rights, in order to be meaningful, require a system of constitutional review of political branches performed by non-elected branches of the government, and in particular, by the judiciary. The rise of constitutional tribunals in almost all the countries of the region - though in some countries they achieve higher prominence, independence, and power than in others - is a testimony to the force of this conventional wisdom.