COMPARATIVE CONSTITUTIONAL NEGOTIATION: TOWARDS A THEORY OF SUSTAINED JUDICIAL REVIEW

BY MICHAEL K. HANLEY

A senior thesis submitted to the Department of Politics in partial fulfillment of the requirements for the degree of Bachelor of Arts Princeton University Princeton, New Jersey

3 APRIL 2013

Table of Contents
Preface.. iii. Bibliography....... 125 Honor Code Pledge........................ 137

Chapter 1: TOWARDS A THEORY OF SUSTAINED JUDICIAL REVIEW................. 1 The Middle Ground between Activism and Restraint........ 8 Constitutional Negotiation Defined.................................. 15 Chapter 2: CASE STUDIES FOR COMPARATIVE ANALYSIS........................................................ 23 Comparative Cases and Political Issues................ 24 Civil Law vs. Common Law Considerations........ 27 Chapter 3: NEGOTIATION PRACTICES IN COMMON LAW SYSTEMS......................... 33 Dialogue in Theory and Practice The Canadian Experience.................... 36 The New Deference of the US Supreme Court......... 49 Abstracting from Common Law Negotiation....................... 61 Chapter 4: THIRD PARTY NEGOTIATION: LA CORTE COSTITUZIONALE........... 64 Italian Jurisprudence on Berlusconis Immunity...... 67 The Structural Gap in Italian Law........ 77 A New Hope Enter Third Party Negotiation..... 84 The Italian Experience Compared........ 87 Chapter 5: SPLIT AUDIENCE NEGOTIATION: DAS BUNDESVERFASSUNGSGERICHT........ 90 German Jurisprudence on EU Integration........ 92 Evaluating the Courts Position in ESM I........112 Characterizing German Negotiation in Comparative Context............ 115 Chapter 6: CONSTITUITONAL NEGOTIATION AND JUDICIAL REVIEW.. 118 Evaluating Constitutional Negotiation.................................... 120 Questions for Further Research.............. 122 Appendix THE MODEL OF CONSTITUTIONAL NEGOTIATION.......... 124

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Preface
In developing a comparative theory for judicial review, I seek to accomplish much in just over one hundred pages. The first chapter introduces the topic in a theoretical sense, orienting judicial review as a spectrum of possibilities and noting that much of the academic discussion has focused on either extreme. I argue that the discussion must move towards a middle ground, and conceive several ways that the judiciary may be seen as working with other political actors in order to arrive at a more clear elaboration of constitutional provisions. Framing this task in terms of Ronald Dworkins right answer thesis helps ground the discussion in a pointed question is there a way to conceive the varying capacities of institutions as somehow complementing one another over time in order to arrive at an increasingly developed understanding of a constitutional law? The answer, I suggest, is constitutional negotiation, a process in which political actors in exerting their varying capacities to apply, interpret, and implement constitutional provisions gradually develop a moderate position on the ideological and qualified content of such provisions over time. I argue that such negotiation occurs even in cases where all of the political actors disagree over the content of such constitutional laws. Having developed a theoretical formulation of this conception of judicial review, the remainder of the thesis seeks to find and outline this process in the development of very important issues within four constitutional democracies, outlined in the second chapter and explored in detail in the third, fourth, and fifth chapters. The common law case studies, the topic of the third chapter, examine secondary sources that have already developed different theories for sustained judicial review. In examining these theories, I contend that both are reducible to the process of constitutional negotiation. Meanwhile, the civil law case studies focusing on Italy and Germany have not seen a comparative examination of sustained judicial review, likely due to the many differences between

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civil law and common law systems, as well as the foreignness of these systems to most American scholars. Nevertheless, I contend that constitutional negotiation still takes place in these systems, particularly on controversial issues of constitutional import, and the jurisprudences of these two countries constitute the topics of the fourth and fifth chapters. In the same manner that had been previously been done in the common law cases, I walk through a series of case progressions and legislative responses for each country, noting how the constitutional provisions in question have been further elaborated over time, as a result of negotiation between political actors. In a sense, the greatly diverse yet related topics touched upon by this thesis represent an intersection of all of my areas of academic interests, and I have many people to thank for providing the opportunities, resources, and guidance as I sought to expand my knowledge of these topics both in the US and abroad. First, I would like to thank the German and French & Italian Departments of Princeton University for providing me with the language knowledge to make much of this research possible. Having a research proficiency in German and Italian definitely was a requirement in giving both of the civil law case studies a proper examination. Secondly, I would like to thank the Program in Translation and Intercultural Communication, whose courses enabled me to have an informed approach to translating the cases of both Constitutional Courts, some of which appear in this thesis. The department also provided me with knowledge of the issues that come into play when considering similar topics across different legal systems, a factor that largely motivated the section that delves into some of the salient differences between civil law and common law judiciaries, as well as some of institutional structures that make the Italian legal system unique. Further, the department also provided some of the funding needed to conduct summer research abroad, for which I am grateful.

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Related to this previous point, I would also like to thank the Woodrow Wilson School and the Office of the Dean of Undergraduate Students for their generosity in funding my summer thesis research, which was required to grasp a more complete knowledge of the legal systems of Italy and Germany, and to present the civil law case studies in an accurate and informed manner. Related to the summer research project, I would like to thank Matteo Marra, the law student with whom I stayed for a month in Bologna, Italy, who introduced me to the curriculum and resources available at LUniversit di Bologna Facolt di Giurisprudenza. Further, I would like to thank the Center for Constitutional Studies and Democratic Development an organization founded by LUniversit di Bologna for introducing me to the constitutional and legal issues that former Prime Minister Silvio Berlusconi had faced throughout his regime. Such guidance definitely helped in the development of the Italian case study, which focuses on negotiations over parliamentary immunity. On the German side of the research project, I would like to thank the Hochschule Bremen for offering a summer course on German Law, which directly helped me to get a more detailed perspective jurisprudence of the German Court, as well as a German perspective on the EU integration process. Particularly, I would like to thank Herr Mnch, the professor of the section on German Constitutional Law, which specifically addressed some of the issues covered in the case study. I would also like to thank Frau Anja Rose for graciously allowing me to stay with her family while I took the course this past August. I would also like to thank the Program in Law and Public Affairs, which provided me with many avenues to exchange ideas with some of the most researched scholars in related fields. Specifically, I would like to thank former Justice Dieter Grimm of the Federal Constitutional Court for taking the time to discuss both the inner workings of the German Court, as well as the complicated constitutional issues that arose out of the Courts decision on the European Stability Mechanism, the case around with the German case study is framed. I would also like to thank

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Professors Stephen Macedo, Gbor Halmai, Alan Patten, Christopher Eisgruber, Lawrence Sager, and Charles Waldron for the discussions on the Ronald Dworkins right answer theory, a discussion that greatly helped ground the topic of this thesis in theoretical terms. I would also like to thank all of my friends and family that provided morale support, as well as feedback on several ideas as I went through writing various drafts of several sections of the thesis. Writing is never an isolated process, and it is always helpful to get an outside perspective on ideas that sound great in theory, yet are hard to put down on paper. Finally, I would like to thank my thesis advisor, Professor Kim Lane Scheppele. Without her and Professor Halmai having introduced me to comparative constitutional law, I would have no idea what would have been the topic of the following pages. Professor Scheppele was the best advisor I could have asked for, and I thoroughly enjoyed discussing the comparative issues that have emerged in each of these jurisprudences. I would have been completely lost without her guidance throughout the entire process.

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Towards a Theory of Sustained Judicial Review

The justice-seeking view of our constitutional institutions depends upon the belief that ongoing judicial judgment guided only broadly by the text of the Constitution is a reasonably good guide to the most critical requirements of political justice. This is an impossibly complex judgment of institutional competence, and in the end we may have only interpretations of our national experience and the experiences of other modern states and guesses as to how these experiences might otherwise have gone upon which to rely. Lawrence Sager, 2004

When the US Supreme Court decided in 1973 that a right to privacy under the due process clause of the 14th Amendment granted American women the right to have an abortion, critics everywhere decried the ruling as judicial activism. Indeed, in his dissenting opinion, Justice Byron White wrote that, [a]s an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.1 Clearly the implication here is that the Court overstepped its competencies, a fact that, if true, would worry many scholars that denounce judicial review as anti-democratic. On the other hand, the same Court has in many instances been accused of not acting in a case when it should have. For instance, in Minersville School District v. Gobitis, the Court upheld a policy of the Minersville School District that required a compulsory salute of the flag as part of daily school activities, denying a family of Jehovahs Witnesses the right to an accommodation in light of their religious beliefs.2 The opinion, written by Justice Felix Frankfurter, largely turned on affording deference to the legislature on its discretion to determine, as a matter of national security, the bases for promoting national unity, claiming that this interest

1 2

Doe v. Bolton. 410 U.S. (1973), at 222. Minersville School District v. Board of Education. 310 U.S. 586 (1940), at 598.

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outweighs other potential infringements of liberties.3 The dissenting parties steadfastly disagreed with this analysis. Justice Stone particularly attacked Frankfurters policy of deference in noting that legislation which operates to repress the religious freedom of small minorities, which is admittedly within the scope of the protection of the Bill of Rights, must at least be subject to the same judicial scrutiny as legislation which we have recently held to infringe the constitutional liberty of religious and racial minorities.4 Many legal scholars at the time criticized the decision from this angle, noting that the judicial restraint in this case was unwarranted.5 Simply put, the Supreme Court has been attacked on separate occasions of being either excessively activist or excessively restrained. Such perspectives arise from the inclination to study the jurisprudence of courts by examining a laundry list of singular decisions issued in landmark cases, a tendency that is reinforced through the pedagogical practices of law schools. This approach to evaluating the role of the courts, however, misses the larger picture of the roles that political branches and outside parties have in shaping the understanding of a constitutional provision. To illustrate this point, let us return to the two aforementioned cases. While basing an understanding of the right to have an abortion on Roe v. Wade does enable one to understand that abortion can never be criminalized, it completely overlooks how subsequent legislation, in response to the Courts ruling, has successfully drawn numerous prohibitive limitations that render abortions less feasible, both practically and financially.6 The Court actually upheld many

Ibid, at 595, 597-598. Ibid, at 607. 5 Sandmann, Warren. West Virginia State Board of Education v. Barnette. Free Speech on Trial. Ed. Richard Parker. London: Univ. of Alabama Press, 2003, pp. 100-115. Pg. 104. 6 Scheppele, Kim Lane. The New Judicial Deference. Boston University Law Review. Vol. 92(1): Jan. 2012, 89-170. Pg. 157, citing: Vestal, Christine. Abortion Rates Down, Restrictions Up. Stateline. 18 Jan. 2008. Web. <http://www.stateline.org/live/details/story?contentId=272870>; Center for Reproductive Rights. Defending Human Rights: Abortion Providers Facing Threats, Restrictions and Harassment. Center for Reproductive Rights. 2009. Web. <http://reproductiverights.org/sites/ crr.civicactions.net/files/documents/DefendingHumanRights_0.pdf>.; and Guttmacher Institute. Restricting Insurance Coverage of Abortion. Guttmacher Institute. 1 Mar. 2013. Web. <http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf>.
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of these limitations, despite having originally established an unfettered right to an abortion within the first trimester in Roe v. Wade.7 Likewise, the aftermath of the Gobitis decision also saw a response from legislatures. As Warren Sandmann notes, the case seemed to foster an increase in compulsory flag salute practices among school districts within the country.8 One such realization of the Gobitis deferral of the Supreme Court was the policy of the West Virginia Board of Education, which was enacted completely in line with the Gobitis precedent.9 In reaching the Supreme Court, a case that arose from a challenge to the West Virginia law, Barnette v. West Virginia State Board of Education, provided the Supreme Court the opportunity to review the same competing interests faced in Gobitis. Similar to the previous case, Barnette revolved around the rights of a family of Jehovahs Witnesses that had a religiously based objection to participating in the compulsory salutes, resulting in the expulsion of the Barnette children from public schooling in West Virginia.10 The ruling of the Court, in reversing the decision of the previous case, held that the basic values enshrined in the virtue of being a citizen stem from an appreciation of intellectual and cultural diversity believing that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.11 Such a sweeping appraisal of the First Amendment in relation to public education has raised further discussions on the content of accommodations made in the interest of multiculturalism, realized through cases such as Wisconsin v. Yoder.

For an overview of laws that have been passed on the state level and approved by SCOTUS, see: State Policies in Brief: An Overview of Abortion Laws. Guttmacher Institute. 21 Mar. 2013. <http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf>. 8 Sandmann 104. In a rather ironic manner, he cites the Paris Adult Theatre I v. Slaton case of 1973, in which Justice Brennan, dissenting, notes: The problem is that one cannot say with certainty that material is obscene until five members of this Court, applying inevitably obscure standards, have pronounced it so. 9 Ibid 105. 10 Ibid 105-106. 11 West Virginia Board of Education v. Barnette. 319 U.S. 624 (1943), at 641.

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Thus, in considering the role of courts from the perspective of landmark cases, in which a Court is often accused of either being too activist or too restricted, the debate over the role of judicial review in a democracy has largely failed to place the Courts competencies in relation to those of the legislature. As a result, arguments over the validity of judicial review have been concentrated on either extreme legal scholars have either argued that judicial review serves as the last check against majoritarian overrides of fundamental values within a legal system,12 or that review represents an undemocratic competency of the Court that fails to protect rights in a substantially better way than the legislative process left alone.13 Such an approach has closed the door on the possibility of realizing a middle ground, one that recognizes the potential for the different institutional capacities of the legislature, the judiciary, and other actors as being indispensible to one another in narrowing in on the correct realization of a constitutional provision over time, both in theory and practice. The realization of such a middle ground, both empirically and theoretically, represents the topic of this thesis. Theoretically, it may help to rephrase this room for a middle ground on judicial review, using terms of Ronald Dworkins right answer thesis as a metaphor for the combined role of political actors. Dworkin presents this argument in one of his more known works, Taking Rights Seriously. Here, he describes a parable of a unitary judge who if given unlimited access to information about the world, law, and everything else, an unlimited capacity for processing information, and an unlimited amount of time to process that information will always arrive at the correct answer to a problem.14 While this account is intentionally idealistic in nature, it does beg some questions, given the realities of our political system. Why must the judge be a unitary individual with all of the

For a perspective on this view, see: Barak, Aharon. The Role of a Supreme Court in a Democracy. Harvard Law Review. Vol 116(1): Nov. 2002, pp. 19-162. 13 This argument emerges in: Waldron, Jeremy. The Core of the Case Against Judicial Review. Yale Law Journal. Vol. 115(6): Apr. 2006, pp. 1346-1406. 14 Dworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard Univ. Press, 1977. Pp. 105-106.

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required capacities, rather than various individuals with complementary capacities? How do we reconcile the fact that our judicial system turns on reaching a decision and issuing a remedy in a timely manner with the possibility that our judge may require an infinite amount of time to arrive at an answer?15 Parsing this account in light of these questions and attributing certain parts of the theory to various political realities, then, may motivate a reframing of this ideal account that better tracks the nature of our political system. We first encounter one of these ideal assumptions in assuming that this unitary judge has unlimited access and unlimited capacity to evaluate all relevant aspects of an issue. Typical accounts of judicial deference repeatedly note how asymmetric the capacities and knowledge of policy issues actually are among different institutions.16 For example, Courts have little to no access to classified information held by the government when deciding on cases involving national security, and nonetheless are faced with cases in which national security emerges as a competing concern. In these cases, the solution often becomes recognizing the legislature as a delegated decision-maker, and deferring to their knowledge of the issue.17 On the flipside, the legislatures are expected to answer to the constituencies that elected them, and thus may be subject to pressures that cannot touch the courts.18 Thus, it would seem that the Court stands in a position to evaluate constitutional provisions in a more objective manner. On another side of this institutional capacity consideration is the fact that the different government branches are given distinct but complementary roles in the realization of constitutional provisions. While the Court inherently interprets whether a right exists within a

It must be noted that these questions do not represent objections to Dworkins theory. Dworkin never particularly focused his account towards varied institutional capacities. In so far as they have the potential to adjust the theory, these questions remain largely unanswered. 16 Jowell, Jeffrey. Of Vires and Vacuum: The Constitutional Context of Judicial Review. Public Law. 1999, pp. 448-460. Pp. 448, 451-453. 17 Daly, Paul. Deference on Questions of Law. Modern Law Review. Vol. 74(5): 2011, pp. 694-720. Pg. 697. 18 Dworkin, Ronald. A Matter of Principle. Cambridge: Harvard Univ. Press, 1985. Pg. 25.

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provision, the legislature acts as the gatekeeper towards the practical recognition and proper implementation of that provision in law. While common law systems do recognize the rulings of judges as law, as well as the binding nature of stare decisis, the legislature may very well place hurdles in front of the realization of this provision for the sake of other interests. The abortion case progression presented above represents one such example of this competency of the legislature to either block or promote the realization of a right, as had been interpreted within a constitutional provision. In examining the second issue of unlimited time, one runs into the issue that court cases represent a particular time-slice of an interpretation of a constitutional provision and their respective arguments for and against. Prior to the 1800s, politicians would not have even dreamed of discussing suffrage rights for blacks or women, even though a right to suffrage for citizens had been understood in the constitution for some time.19 Before the tragedy of 9/11, policymakers had never worked with legal terms that classified what counted as international terrorism. Presently, we have no conceptions of what new rights classifications may emerge in the future that would require further interpretations of our constitutional provisions. For all we know, a discovery of life outside Earth may very well consider us to completely reconceive notions of human rights. Thus, in contrast to our unitary judge, judges in our political systems must decide cases based on the collection of understandings of provisions that they presently possess. To date, no theory exists that has comprehensively resolved this issue. Many constitutional theories sit close to either end of a spectrum with originalism on one end and the idea of judicial activism on the other. As mentioned above, interpreting cases in this manner fails to recognize that the interpretation of provisions naturally develops and changes over time,

The extent to which citizen was inclusive clearly developed over time. The earliest understood right to vote comes from Article VI, section 3, which states that no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. See: Constitution of the United States. National Archives. 2013. <http://www.archives.gov/exhibits/charters/constitution_transcript.html>.

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and are passed through the different capacities of political actors between the interpretation and implementation processes. Landmark cases rarely settle interpretation of a constitutional provision in its entirety, as new political concerns may very well require the establishment of qualifications or exceptions to such provisions. Together, these separate considerations of a theoretical middle ground for judicial review suggest that the arrival at a right answer requires several components.20 For one, our political institutions, with their given sets of capacities, cannot unilaterally interpret a constitutional provision and realize its fully implemented form, particularly when situated within a system that recognizes the separation of powers. Put another way, while the Court possesses the competency to interpret, the legislature holds the power to implement, with both aspects being prerequisites for the realization of a provision. Secondly, since interpretation and implementation are separate processes that require both coordination and time, it may very well be the case that this process would better be conceived as a continual back and forth interaction between political actors, rather than as a set of discrete cases. Both of these components represent, crudely put, the main tenets of an intermediary role for judicial review. Considering the possibility of this role from a purely empirical standpoint will be a much easier task. The high frequency at which legislatures, judiciaries, and other political actors within constitutional democracies have played off of one anothers competencies in order to elaborate the substance of a constitutional provision over time would show that a middle ground for judicial review does exist, at least in practice. Overviewing this part of the argument will emerge through the presentation of the case studies, a task that will be outlined in the next chapter. For now, let us continue to focus on classifying this middle ground in more theoretical terms, using

As the examination and reframing of Dworkins right answer thesis implies, this theoretical account is necessarily grounded in the realities of a constitutionally democratic order, namely the separation of powers.

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general examples for purposes of illustration and in order to foreshadow the issues that will be explored in the later chapters.

Defining a Middle Ground Between Activism and Restraint

From the theoretical discussion above, reframed from Dworkinian terms, we have arrived at two general characteristics about the role that judicial review should take within a constitutional democracy. On one hand, the judiciary cannot unilaterally determine the interpretation and implementation of constitutional provisions, and must recognize the complementary capacities of different political actors in realizing this goal. Further, the full realization of a constitutional provision is better conceived as an ongoing process that occurs between the legislature, judiciary, executive, and other political actors. Thus, simply looking at the judicial review of discrete cases overlooks the larger picture of the development of such provisions and their associated rights. These two characteristics have taken form in various theories on the role of judicial review. Lawrence Sager, a Professor of Law at the University of Texas, posited a justiceseeking account of the role of judicial review, one that conceives judges in a partnership with democratically elected decision makers, a partnership that develops finer elaborations of constitutional provisions over the course of time.21 Meanwhile Kent Roach, a constitutional scholar from the University of Toronto Faculty of Law, contends that the relationship between political actors over a policy question has more of a dialogic character. He finds that certain structural features of common law systems allow for judicial dialogue to act as something of a

21

Sager, Lawrence. Justice in Plainclothes. New Haven: Yale Univ. Press, 2004. Pp. 8-10.

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half-way house between legislative and judicial supremacy.22 Each of these theories will be briefly explored in this section. In evaluating both theories, it will become apparent that neither theory completely addresses some of the practical realities that occur among the government branches of political systems.23 Particularly, both theories assume some level of cooperation among the government branches, and do not completely account for cases in which the branches are at a complete disagreement over the merits of an issue. Further, neither theory explicitly accounts for the role that periphery political actors can take in shaping the development of a provision over time, particularly in cases where the government branches are failing to fulfill their duties.

Partnership Between Branches?

In approaching the question from a purely theoretical standpoint, Lawrence Sager seeks to give content to the oft-debated role that judicial review should take in a democracy. To do so, he first lays out a spectrum of alternatives, which is reproduced below.24

The extreme alternatives on this spectrum largely represent the ways the Court has typically been conceived as either an activist guardian of abstract principles of justice, or as a restrained body that intervenes only in cases where the Constitution literally enables it to do so. The middle

Roach, Kent. Dialogic Judicial Review and its Critics. Supreme Court Law Review. Vol. 23(2): 2004, pp. 49-104. Pg. 104. 23 Admittedly, it will be noted that Sagers conception of judicial review is purely theoretical, and as such, this examination cannot be a formal objection to his formulation. Rather, the considerations explored will motivate the need for a conception that seeks to be grounded in the present practices of political branches. 24 Sager 23.

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section represents Sagers original contribution to the question. Here, he conceives a partnership between the judiciary and the democratically elected branches, in which the institutions share their complementary duties in order to elaborate upon a provision. Within this category, Sager makes two further distinctions of types of judicial review democratarian review, and a justiceseeking account.25 Working from a perspective based on justice, he largely focuses on the latter, as democratarian review only allows judicial intervention insofar as it improves the operation of democratic processes, a rather restricted prerogative that does not acknowledge the potential benefits of more activist decisions.26 In giving substance to a justice-seeking partnership in judicial review, Sager begins by noting the structural characteristics that give justices the competency to act as objective judges of laws against constitutional principles. Many of these have been discussed at length in arguments for judicial review being appointed for life, having stable job security, and being separated from the pressures faced by the parties that created the law.27 He then notes that these characteristics make judges a suitable vehicle for maintaining consistent principles over time [j]udges are responsible to both past decisions and future possibilities; they must test the principles upon which they are tempted to rely against these other outcomes, real and imagined. The enterprise of adjudication is thus a kind of institutional reflective equilibration.28 Here, Sager importantly ensures that his theory fits one of the requisites of an intermediary position for review the consideration of the meaning of constitutional provisions over time, rather than over discrete cases. From here, Sager outlines his definition of partnership, which conceives judges as not merely or even primarily instruction takers; their independent normative judgment is expected and welcomed. The object of this partnership is the project of bringing our political community

25 26

Ibid 19-22. Ibid 22. 27 Ibid 74. 28 Ibid 75.

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into better conformity with fundamental requirements of political justice.29 Such an account, however, does not give constitutional judges the reins to decide on whatever issue they see fit. This point becomes clear through Sagers outline of judicial underenforcement. Here, he notes that certain principles of political justice are wrapped in complex choices of strategy and responsibility that are properly the responsibility of popular political institutions. When confronting constitutional principles in this way, the judiciary justifiably declines to enforce the Constitution to its outermost margins, and defers at least in first instance to the political branches of the state and federal governments.30 Social welfare and social discrimination reform represent two examples that he claims are subject to this standard. Thus, Sagers account seems to provide a theoretical middle ground for judicial review. On one hand, it values the independent competency of the Court to objectively interpret questions that invoke the fundamental principles of constitutional law. The justice-seeking account does, on the other hand, recognize the need of the Court to occasionally defer to other branches, recognizing the capacity of the legislature or the executive to better tailor specific policy to the will of the people. While Sagers account does paint a clear portrait of how an intermediary position may work in theory, once one takes a step into the actual practices of the government branches, the partnership description of the relationship between the political branches and the Court seems to be too optimistic. Specifically, Sagers account does not account for the situations in which the judiciary and governmental branches are diametrically opposed to one another in terms of the specific policy. When the United States Supreme Court confronted the other political branches over habeas rights for accused terrorists, for example, it found itself facing a legislature and an executive that were repeatedly telling the Court to steer clear of the matter altogether. How does partnership work in those situations? Since Sagers formulation was focused more on an

29 30

Ibid 76. Ibid 87.

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ideological account, it did not focus on the practical considerations that may emerge along the thin boundaries between fundamental rights and state interests when interpreting a constitutional provision. Further, since Sagers account focuses on an ideal interaction between political branches, it does not account for the essential role that outside political actors may take in shaping the interpretation of a provision. For example, if the legislature were to grossly underenforce a decision of the Court, popular opinion of that legislature may diminish to a point that the political parties shift drastically in the following election. Alternatively, NGOs may choose to highlight this underenforcement of the legislature, opening the political system up to international pressures. As the case studies in this thesis will show, both of these scenarios have had a considerable impact on the realization of fundamental constitutional provisions in cases where Sagers conception of inter-branch partnership failed.

Dialogic Judicial Review?

Another developed approach to judicial review in constitutional theory has emerged from Canadian academia. Drawing largely from the Canadian Charter of Rights and Freedoms, Kent Roach argues that structural mechanisms within constitutions or a Bill of Rights for that matter allow for a relationship between the government branches that avoids either judiciary or legislative supremacy.31 Simply defined, Roach defines dialogic judicial review as any constitutional design that allow rights, as contained in a bill of rights and as interpreted by the courts, to be limited or overridden by the ordinary legislation of a democratically enacted legislature.32 The overridden qualification clearly pertains to the experience of the notwithstanding clause, a unique part of Canadian jurisprudence that enables the legislature to

31 32

Roach 54-55. Ibid 55.

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override the ruling of the Supreme Court, enabling the law in question to remain in force for five years before being reconsidered.33 Meanwhile, the limited part, in focusing on rights that seem intentionally to be open to limitations or exceptions, applies to constitutional democracies more generally. As Peter Hogg and Allison Bushell Thorton note, whenever a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent body as a dialogue.34 Roach agrees with this analysis, noting that the key to understanding dialogue under the Charter or other modern bills of rights is that those constitutional documents allow court decisions about rights to be revised or rejected by ordinary legislation.35 Judicial dialogue as a theory will be developed further in the context of its Canadian case study. For now, however, it seems simple to glean enough from this brief presentation of the theory to pose basic objections, which will also be discussed at length in evaluating dialogue as a generalizable theory of judicial review. For one, half of the theory turns on cases in which the legislature can simply override the rulings of Courts. Roach outlines section 33 of the Canadian Charter, the notwithstanding clause, as a main structural device for dialogue, despite it only having been used once on the federal level in Canadian jurisprudence.36 With this in mind, it seems that dialogue may only be generalized to cases in which the legislature limits the rulings of courts. At this point, Roach opens himself up to the objection that, practically speaking, the courts have the final word in most constitutional democracies, a standing that tends to be respected empirically. In response to this issue, Roach only assumes the need for further

The notwithstanding clause will be covered in more detail in chapter three. Its text can be seen in full in: McMahon, Kevin J. Notwithstanding the Notwithstanding Clause: Political Regime and Constitutional Politics in the United States and Canada. Canadian Foreign Policy. Vol. 12(3): Jul. 2005, pp. 45-52, 54. 34 Hogg, Peter, and Allison Bushell. The Charter Dialogue Between Courts and Legislatures. Osgoode Hall Law Journal. V Vol. 35(1): 1997, pp. 75-124. Pg. 79. 35 Roach 56. 36 Roach 60. The details of this case, along with its evaluation, will be explored in further detail in the third chapter.

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empirical and comparative study. Other than that, he assumes that popular perceptions of judicial review may still be rooted in an older version of judicial supremacy and may not have caught up to new understandings of dialogic judicial review.37 Yet such a response simply acknowledges its own irrelevance in addressing cases outside of the Canadian system. Further, while Roach notes that studies of judicial dialogue should focus on how particular bills of rights and judicial decisions influence the process of dialogue between courts and legislatures, and also the influence of other actors in civil society, he delegates this important part of his theory to further studies.38 As this thesis will show, in using a more robust set of case studies and legal systems, dialogic judicial review, while a step in the right direction of describing sustained judicial review, fails to be generalizable to distinct legal systems, and does not sufficiently prescribe a role for other political actors outside of the government. One final issue with judicial dialogue, as posed by Kent Roach, concerns its theoretical placement among other theories of judicial review that acknowledge the potentially beneficial nature of varying institutional capacities. As had been done above, Roach reformulates his theory of judicial dialogue in Dworkinian terms, assigning various political actors their respective roles. The result? Roach maintains that the dialogic structure of the Charter makes it possible to have Dworkins Hercules as a judge, but to harness Hercules by ordinary legislation that revises or reverses his decisions.39 It seems peculiar that Roach would characterize the Court as being restrained, since, as mentioned above, the judiciary often has the final word on a matter that invokes constitutional provisions. It is as if Roach acknowledges that, in practice, the political branches do not agree over issues, yet does not have a robust set of cases so as to determine how the various political actors influence one another in reaching an actual interpretation of a constitutional provision. This conception may seem appropriate to characterize the dynamic

37 38

Ibid 52-53. Ibid 52. 39 Ibid 69.

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between the judiciary and legislature of Canada, yet it remains unclear how the judiciaries of other systems remain constrained when they do not have articles like the notwithstanding clause in their constitutions the devise that the legislature would use to harness the judiciary. This theory of dialogue will be considered in further detail within its Canadian context, foreshadowing the fact that it best remains contained to that case study, and that other conceptions of intermediary judicial review may better describe the practice of other jurisprudences. For now, it seems necessary to develop a different form of this middle ground for judicial review, one that acknowledges these conceptual failings of judicial dialogue. The following section will work to formally develop such a model.

Constitutional Negotiation Defined

Up to this point, we have seen how previous attempts to define an intermediary role for the judiciary have either remained too theoretical, or they have developed standards that were too specific to a particular system. Sagers model of partnership in his justice-seeking account promotes an ideal in that it does not explicitly address how the model would bend when applied to various constitutional democracies, complete with legislatures and judiciaries that may very well have entirely opposing views on a particular constitutional question. Meanwhile, Roachs model of judicial dialogue rests on structures of the Canadian Charter, and thus does not sufficiently address the reality that other judiciaries often have the last word on many issues that invoke constitutional provisions. Is there some conception of a middle ground for judicial review, one that sufficiently addresses these shortcomings? The answer, I suggest, is yes. This section will work to develop constitutional negotiation as a conception within which to orient judicial review. Constitutional negotiation, examined through example and formal terms below, represents a form of judicial review that represents an ongoing relationship with the other political branches, as well as periphery actors,

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as a means to elaborate and compromise over the interpretation of a constitutional provision, as well as qualifications that may serve to legitimately temper the enforcement of such a provision over time. Constitutional negotiation, like judicial dialogue is a process that gradually elaborates and expounds upon provisions over time, using the varying capacities of different political actors as a vital resource. As will be shown, constitutional negotiation is both practicebased and structure-dependent unlike dialogue, which relies entirely upon structural considerations. After having defined this theory in both theoretical and experiential terms, some work in this section will go towards further distinguishing constitutional negotiation from partnership and dialogue. While procedurally similar to judicial dialogue, constitutional negotiation will differ both semantically and substantially from this theory, making it a viable alternative for elaborating upon the role of judicial review within a constitutional order.

A Brief Hungarian Case Study

To give a theory of constitutional negotiation its own development outside of judicial dialogue theory, let us briefly consider its use in the development of the Hungarian Constitutional Court, the first time that the concept had been used in a manner consistent with our purposes. Writing in 2003, Kim Lane Scheppele provides an examination of the jurisprudence of the Hungarian Constitutional Court in its first five years of operation, holding that the examination of newer courts is important not because they are different in kind from what becomes normal politics, but precisely because they reveal in sharper relief the problems buried in what passes for normal in consolidated democracies.40

Scheppele, Kim Lane. Judicial Empowerment and Democracy. International Sociology. Vol. 18(1): Mar. 2003, pp. 225-244. Pg. 226.

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In her examination of Hungary, Scheppele notes that, since the country was launching into its first experiment with democracy, the Constitutional Court had a large latitude in evaluating laws passed by the newly-established parliament, a latitude of which it took advantage nearly one law out of every three passed in Hungary was struck down by the Court during the early 1990s.41 When paired with the wide variety of competencies to review laws via unconstitutional omissions, constitutional complaints, and any constitutional questions raised in lower courts42 the latitude given to the Court afforded it with many opportunities to review laws on constitutional grounds. When the laws that were struck down by the Court returned to the legislature, the parliament nearly always complied with the mandate to redraft the laws in a manner that rendered them constitutional.43 However, in doing so, Scheppele notes how the revised laws were positioned not at the point that the constitutional court said was required, but rather somewhere in between the initial law that the parliament passed and the constitutional courts requirements.44 In examining this phenomenon, Scheppele puts her finger on a concept that she terms constitutional negotiation. Accounting for what happened in these cases, she states that: After the court issued its decisions requiring revision of specific laws, the parliament would rewrite the laws, attending to major things that the court had required, but finding new ways to get at what the MPs had originally wanted. The court would then review the new law, sometimes requiring further changes, sometimes finding that parliaments changes were sufficient. While neither side would call it this, these successive waves of legislation, followed by

Ibid 228. Ibid 228-229. These modes of access to the Constitutional Court, not available in common law systems, will be explored in more detail in the following chapter, in the context of asking whether they are required to facilitate negotiations. For now, it is mainly important to note that the Court had a wide competency to review Hungarian laws. 43 Ibid 299. 44 Ibid 230.
42

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constitutional review, followed by revision of laws and further constitutional review produced something like a negotiation about the proper policy.45 From this account, we arrive at a simple account of the process that constitutes constitutional negotiation. Yet is this account generalizable from the Hungarian experience? Put another way, can the process be put in sufficiently formal terms?

Constitutional Negotiation as an Intermediary Conception of Judicial Review

From this example, it seems possible to glean a general process that would occur through constitutional negotiation. This process can be construed as a general turn-by-turn interaction between the legislature, judiciary, and other political actors, one that generally tends towards an intermediary ground in balancing the interpretation of a constitutional provision with political attempts to qualify such a provision, as well as issues surrounding the implementation of policies related to these provisions in question. Visually, this dynamic has been represented by a figure depicted in the Appendix, and this section will work to elaborate upon the steps presented in this model of constitutional negotiation. At the first stage, an executive or legislature acts in a way that either debatably or blatantly transgresses a provision that is either explicitly or minimally elaborated within the constitution. While this transgression normally takes the form of legislation, it is not required to do so. Executive orders, referenda, or even the habitual practices of government institutions over time may warrant a step to the next stage. The following stage involves the harm caused by the actual or perceived infringement of the constitutional provision by the action. Determining whether the harm is real, sufficient, or widespread enough to strike down the original action will be the work of later stages. For now,

45

Ibid.

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all that matters is that constituents subject to the action in question find it sufficiently harmful so as to invoke the authority of the judiciary. At the third stage of the process, the Court considers the case before deciding. Here, the Court hears the full defense of the original action, and considers whether a qualification on the constitutional provision is warranted by the interests pursued by the original actor. It is at this point that the original terms of negotiation are completely laid out for consideration. The fourth step, one on which the current theories of judicial review continue to focus, turns on the decision of the Court over the issue. Put in the most simple terms possible, the Court may either uphold the action as constitutional,46 or strike down the action as it is currently elaborated. The extent to which the Court elaborates upon the provision that had been considered in the case will determine whether negotiation continues to begin a second iteration in the following stage. At this point, the process thus far has simply described the procedure of bringing a case to a court of last resort and receiving a binding decision on the issue. Most theories of constitutional adjudication evaluate the position of the Court on these terms. Constitutional negotiation, however, sees these stages as one part within an overall process that may contain multiple iterations of these stages over time. With each successive iteration of these stages, the constitutional provisions in question, along with minimum standards of qualifying and implementing these provisions in law, are more clearly and completely defined. Several unique possibilities open up once the issue sees the initiation of another iteration of this four-stage process. Should the original actor decide to respond to the court of last resort, it may do so by revising its action in order to minimally uphold the limits set by the decision. In this case, the state interest becomes framed in constitutional terms, and continues to impose

Of course, tied to this option is the decision to dismiss the case on procedural grounds, which reverts the case back to the decision of a lower court. Yet this option is nevertheless reducible to the two options of either maintaining the status quo of the act, or reversing it entirely.

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qualifications on the provision in accordance with the interest pursued. Figure 2 below depicts this process in general terms.

In the figure, a represents the first stage. The perceived harm constitutes an interpretation of the unelaborated provision, represented by d in the figure. In deciding the case, the Court elaborates upon the provision and, in striking the original action down, establishes more concrete boundaries, depicted as the space bd in the figure, within which a constitutional qualification of the provision must fall.47 The revision on part of the original actor involves changing the policy such that it remains within these boundaries, yet as close to the original policy as possible. This is represented in the figure by the transition from a to a. The idea of constitutional negotiation, then, is that, with each successive iteration, the constitutional boundaries surrounding the elaboration of the provision become narrower over time. In the opposite case, in which the original policy was upheld by the Court, the original actor may gravitate towards the constitutional boundaries of the elaborated provision. This scenario is represented in a similar manner below.

This may even occur in cases where the Court rejects the policy out of hand, and simply reiterates the unqualified right as stated in the Constitution. In this case, the legislature, in devising a revised policy, may interpret the Court as simply having struck policy a down, but not any policy that is not a.

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In this case, the revised policy would move towards the border, blurring its constitutional status and motivating another case on the issue. These two scenarios represent an important point about the position of the original actor to respond in constitutional negotiation. In drawing out an elaboration of the extent to which a provision may be qualified, via the Courts decision, the original actor has maneuvering ground to adjust its interests accordingly, shaping a policy that sits right at the border between constitutionality and unconstitutionality. What happens if the original actor simply ignores the decision handed down by the Court? Alternatively, what if the Court upholds the original action as a matter of deference to the original actor? Has negotiation ended, with the policy of the legislature or executive reigning supreme? At this point, constitutional negotiation acknowledges the role that periphery actors may take in shaping revisions in the original policy. Periphery actors may include any institution or constituent group that takes an indirect role in shaping the policies of the branches of government. Examples that will be considered in later chapters of this thesis will include international organizations, NGOs, and social movements formed by citizens. Periphery actors can shape policy in two ways. In the case of outright deference on part of the Court, they can bring awareness of related concerns that may necessitate a reconsideration of the issue. For example, if a policy or decision runs against international commitments, the international community may step in to remind the national government of these treaties. Such considerations may then become a factor if the policy is reconsidered by the judiciary or the legislature down the road.

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In the cases where the original actor simply ignores a sweeping decision from the Court, periphery actors may mobilize to hold the original actor accountable in implementing the requirements of the decision. For example, social movements or NGOs may move to make the legislatures noncompliance transparent, resulting in a decreased approval of government policy. Such a decreased approval rating may serve to motivate opposing political parties to run on platforms that champion compliance with the courts over these issues in order to attract voters. While these roles of periphery actors may seem speculative when referred to in theory, the case studies that will be explored will detail how both of these scenarios have indeed taken place, a fact that underscores the importance of these actors in constitutional negotiation. Taken together, all of these political actors work within their capacities to negotiate further elaborations and qualifications of constitutional provisions, given the continuation of cases presented to the Court over time. In cases where the negotiation between the branches hits a standstill, periphery actors may intervene to encourage further development of the laws and rights in question. Thus, this model of constitutional negotiation satisfies both of the theoretical requirements for a middle ground of judicial review that were outlined at the outset. Having established these theoretical grounds for constitutional negotiation, it makes sense to determine whether this model robustly applies to the actual practices and structures of constitutional democracies. The next chapter, in reviewing the case studies to be considered, will outline an approach to accomplishing this task.

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Case Studies for Comparative Analysis

The requirements of political justice are themselves a matter of principle and often are best expressed or reflected upon in abstract terms; but the ability or tendency of real-world institutions to make decisions in conformity with those requirements is an exquisitely practical matter. In the end, confidence in this aspect of our constitutional practice may depend upon an assessment of our actual national experience in comparison with the experience of other nations. Lawrence Sager, 2004

Having defined a general theory for sustained judicial review, let us now outline the manner in which this thesis will proceed. In order to test the external validity of this theory, it is necessary to examine the extent to which constitutional negotiation takes place among the political actors of various constitutional democracies. In using a comparative approach, this thesis contends that a negotiative approach to judicial review over time cuts across countries and occurs irrespective of legal traditions. Whether a country practices civil law or common law, Romantic traditions or Germanic traditions, or whether the countrys constitution was enacted fifty years ago or two hundred years ago, constitutional negotiations will take place among political actors as long as the nation in question respects some institutionalized separation of powers and judicial review. Further, the issues and rights in question will show that constitutional negotiation, as a conception of judicial review, is alive and well in addressing the problems presently faced by constitutional democracies throughout the world. All of the case studies that will follow revolve around recent events. Indeed, some of the cases are still being debated between political actors, and this perspective of constitutional negotiation affords us with the opportunity to gain an informed perspective on multiple positions on such issues. The sections that follow will introduce this theory in an empirical manner. First, as a means to illustrate the points made above, I will briefly touch upon the topics of the case studies,

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which will become the subjects of the next three chapters. The next section will address some introductory considerations on the differences between legal systems, a necessary concern to consider before developing the case studies in further detail. Common law and civil law systems operate in vastly different ways, and it would be prudent to examine some of these distinctions in order to remain cognizant of any institutional differences that may make the practice of constitutional negotiations more or less possible. Despite the vastly diverse practices within legal systems, however, I will contend that constitutional negotiation is a practice that cuts across the boundaries between constitutional democracies, an argument that will motivate a careful examination of each case study.

Comparative Cases and Political Issues

To prove that the theoretical model of negotiating rights actually has roots in the practices of political institutions, it is necessary to develop empirical accounts of how constitutional negotiations have been conducted in constitutional democracies. For now, let us briefly run through the countries and issues to be examined, as a means to introduce the topics of the following chapters. The next chapter will focus on an examination of research that has already been done on case progressions within common law systems. Particularly, the chapter will evaluate various theories used to classify the jurisprudences of the Canadian and American Supreme Courts in response to the new legal concerns raised by post-9/11 terrorism. Kent Roach, a proponent of judicial dialogue theory, contends that dialogue aptly describes the mechanisms within the Canadian Charter that allow for the discussion of court cases involving the competency to deport permanent residents due to national security risks. Thus, the account of the Canadian experience will begin with an elaborated discussion of judicial dialogue within Canadian jurisprudence, in order to further contrast constitutional negotiation from dialogue, as well as to

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argue that the semantic and practical differences between dialogue and negotiation actually render the latter as a more apt description of the Canadian case. The jurisprudence of the United States Supreme Court, also a topic of the third chapter, will focus on the development of a new judicial deference on part of the Court in response to interpretations of newly developing rights to habeas corpus. While, with old deference, the Court allowed the executive to unilaterally act in times of crisis, new deference saw a division between interpreting the right and implementing the remedy. In responding to cases involving habeas rights of Guantnamo detainees, the Supreme Court asserted a broad right to habeas trials, while leaving the task of elaborating on the details of such trials to Congress. Taken together, these two case studies for which theories have already been developed provide the opportunity to show constitutional negotiation as a more robust and generalizable theory. Specifically, it will become clear that constitutional negotiation will apply to both common law jurisprudences in a way that judicial dialogue and new judicial deference do not while each of these theories remain apt for describing their respective cases, neither can be generalized to both systems in the way that a negotiative approach to judicial review can. The fourth chapter will move away from common law systems, and into rather uncharted territory. Mainstream legal theories have not to date conducted a substantial examination of the Italian legal system, thus leaving the countrys jurisprudence as something of hole in comparative constitutional studies. Thus, one of the civil law case studies will be on the Italian Corte Costituzionale, focusing on its response to one of the more enduring issues in Italian jurisprudence the parliamentary immunity enjoyed by former Prime Minister Silvio Berlusconi during his regime, particularly amid accusations of tax fraud, bribery, and sex scandals that have been raised over the past couple of decades. Specifically, the account will show that, contrary to popular opinion, the courts been as active as their competencies currently allow in denying Berlusoni the legal mechanisms of immunity that he has continually sought to implement, negotiating that certain duties of office may constitute an impediment to appearing in court, it is

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for the courts to decide whether an actual impediment actually exists. As will be shown, the continued impunity enjoyed by the former Prime Minister on a practical level results from the structural place of the judicial system with relation to the other branches within the legal system. Given that the Court, although it may exert flexibility in reforming its competencies, has remained complacent with its position within the legal system, it is clear that the intervention of other political actors has been necessary to resolve the issue. Thus, this case study will provide the perfect opportunity to study the potential of constitutional negotiations to move to periphery political actors. Specifically, the social movements started in response to the Berlusconi regime, and the changing constituencies of the political parties, will show how outside political actors can course correct a legislature that fails to give adequate respect to the constitutional values espoused by the courts. After Italy, our examination will transition to the Federal German Republic, the civil law system that has perhaps received the most discussion in the discipline of comparative constitutional law. The examination of Germany will focus on the jurisprudence of the Bundesverfassungsgericht with respect to the gradual integration of the European Union. Not only will this examination show how the German Court split the audience of negotiation as the cases progressed, but it will also provide an informed account of the Courts most recent decision on European integration, European Stability Mechanism I. Most constitutional scholars saw this decision as undue deference on part of the Court, particularly since the decision allowed the German government to contribute more than its current 2013 budget to the European Stability Mechanism (ESM), a EU institution designed to act as a financial insurance mechanism to stave off the collapse of the Euro.48 Further, these same scholars contend that, in deferring to the European Union, the Court essentially handed the EU a blank check in deciding what constitutes

For more information about the functioning of the ESM, see: About ESM. European Stability Mechanism. 25 Mar. 2013. <http://www.esm.europa.eu/about/index.htm>. The workings of the institution, and the extent to which German national sovereignty was and still is at stake, will be explored in the fifth chapter.

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national sovereignty for member states within the Eurozone. However, an examination through the lens of constitutional negotiation will show that, in splitting audiences with which it negotiated, the Court was able to uphold its previous case law on the EU integration, while simultaneously empowering the German Bundestag and Bundesrat to define the practical limits of sovereignty. Together, these case studies will show negotiation as a real practice that occurs among political actors within constitutional democracies. The concluding chapter will consolidate these comparative findings, and use them to ponder more theoretical questions about constitutional negotiation. Is an intermediary conception of judicial review better than the alternatives for cases in which it would apply? Does constitutional negotiation, in allowing for the seemingly endless elaboration of a provision, simply reduce itself to skepticism over a right answer? Drawing from the case studies examined, it will be simple work to dispel these concerns, rendering constitutional negotiation as a unique theory for an intermediary form of judicial review.

Civil Law vs. Common Law Considerations

Before launching into an examination of the four countries, it would be prudent to briefly consider any differences between the legal systems that may influence the form that constitutional negotiation may take. First, this section will explore the differences between Supreme Courts and Constitutional Courts, focusing on the distinct means by which citizens can put forth issues to each institution. Next, we will briefly turn through the different uses of stare decisis in each type of jurisprudence, and how this difference could theoretically alter the form of negotiations taken within a constitutional system. To the extent possible, this account will be tailored specifically to the countries that will be examined, as a means to remain succinct while still clarifying procedural differences that will be encountered across the case studies.

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Supreme Courts vs. Constitutional Courts

One of the clearest differences between the case studies that will be considered centers on the types of courts that are relevant to each country. While lower courts will undoubtedly receive some attention throughout this thesis, the bulk of the analysis will center on the courts that are most specifically oriented to constitutional interpretation. For our present purposes, this necessarily limits the analysis to the distinction between a Supreme Court and a Constitutional Court. A Supreme Court is the court of last resort in a common law system. Since constitutional review is decentralized within most common law systems that is, within countries that practice judicial review, all judges have the authority to interpret the constitutionality of a law49 a Supreme Court would necessarily have the final say on a constitutional question should the case reach that level of appeal. As a court that accepts appeals from lower courts,50 Supreme Courts necessarily have discretion in selecting the cases that come before it, with the ability to select as many or as few cases as desired, which essentially leads to a flexibility in arranging a docket of issues to be addressed. By contrast, a Constitutional Court represents an institution that is completely distinct from any common law tradition. Originally devised by Hans Kelsen, a constitutional theorist in 20th century Austria, a Constitutional Court works to centralize the process of constitutional

Some common law systems, such as the United Kingdom, do not practice judicial review, opting for parliamentary supremacy instead. See: Bingham, Thomas. The Rule of Law. London: Penguin Publishers, 2010. Pp. 160-170. Likewise, some common law systems, such as Australia and New Zealand, have Supreme Courts that exercise judicial review only sparingly. See: Gardbaum, Stephen. The New Commonwealth Model of Constitutionalism. American Journal of Comparative Law. Vol. 49: 2001, pp.707-760. Pp. 727-732. 50 Supreme Courts do have narrow jurisdiction over other types of issues. In the United States, for example, Article III of the Constitution states that the judicial power of the Supreme Court extends to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;between a State and Citizens of another State;-between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. See: A Brief Overview of the Supreme Court. Supreme Court of the United States. 30 Mar. 2013. <http://www.supremecourt.gov/about/ briefoverview.aspx>.

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review.51 In consolidating the role of constitutional review, a Constitutional Court generally differs from a Supreme Court in several important ways. First, Constitutional Courts possess a monopoly on the power to invalidate infra-constitutional legal norms, including statutes, as unconstitutional.52 As mentioned above, any judge within a common law system that practices judicial review has that authority hence the term decentralized review. Second, in reviewing only constitutional norms, Constitutional Courts are further detached from the political influences of government branches. This is typically illustrated further through structural aspects within a Constitutional Court that are aimed at avoiding politicization. For example, in both Italy and Germany, the votes cast on part of the judges are not publicized, giving the impression that the institution votes as one.53 Another way the courts differ involves the means of accessing each court. As a separate institution, a Constitutional Court has various means of access that are generally unavailable to Supreme Courts. For example, the Federal Constitutional Court of Germany hears a wide range of case-types, including concrete review of constitutional questions arising from lower court cases, considerations of abstract norms, advisory opinions given to Parliament when it is drafting a law, disputes between federal organs, federal-state conflicts, and constitutional complaints, a last resort remedy in which the petitioner demonstrates a concrete harm caused by a manifest infringement of a right.54 Such diverse means of access ties into another fundamental difference between a Supreme Court and a Constitutional Court. While being limited to questions of constitutional

Sweet, Alec Stone. Constitutional Courts. The Oxford Handbook of Comparative Constitutional Law. Ed. Michel Rosenfeld and Andrs Saj. Oxford: Oxford Univ. Press, 2012. Pp. 816-830. Pg. 817. Citing: Kelsen, Hans. La garantie juridictionelle de la constitution. Revue de Droit Public. Vol. 45(197): 1928. 52 Ibid 818. 53 As Donald Kommers notes, Personalized dissenting opinions on the Federal Constitutional Court were not allowed until 1971 and since then, as now, they are relatively rare. In 2007 and 2008, for example, only 13 percent of the Courts decisions featured dissenting opinions. See: Kommers, Donald. The Constitutional Jurisprudence of the Federal Republic of Germany. Durham: Duke Univ. Press, 2013. 54 Kommers 15-24.

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import seems to lesson the volume of total cases faced by the Court, in reality it gives the institution much less latitude in selecting cases and forming a docket of issues. Since a Constitutional Court must respond to every case put before it, it is clear the Supreme Courts can better tailor their jurisprudence to specific political or social concerns. Constitutional Courts can only do this to a very limited extent.55 Aside from the differences between a Supreme Court and a Constitutional Court, there are also salient differences between forms of the latter institution. In particular, the structure and competencies of the Italian Constitutional Court differ in several important ways from the German Court. As one example the two courts differ in their means of access. While the German Court boasts all of the means elaborated above, the Italian Court exerts competencies that bear some resemblances to a common law Supreme Court. For instance, the average citizen can only access the Italian Court via a posteriori concrete review, often arising from a constitutional question in the case of a lower court.56 The specific aspects that make the Italian Court unique will be further explored within its own case study, but for now it is important to keep in mind the broader differences between the legal systems, and how these differences influence the flexibility of each court in forming a docket over issues.

The Varied Uses of Stare Decisis

One other salient difference between the two legal traditions concerns the manner in which both regard state decisis, known more generally as precedent. A short description of the

As former Justice Dieter Grimm of the Federal Constitutional Court recounts, in practice the FCC could shift a case to the bottom of a long list of pending cases as a means to delay deciding on the issue. Such a tactic, however, only delays what will inevitably become a decision over the issue. I am thankful for having the opportunity to discuss this point with Justice Grimm. 56 Groppi, Tania. The Italian Constitutional Court: Towards a Multilevel System of Constitutional Review? Constitutional Courts: A Comparative Study. Ed. Andrew Harding and Peter Leyland. London: Willy, Simmonds, and Hill, 2009. Pp. 125-147. Pp. 128-129.

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difference between the two systems will be sufficient to glean a more general point about how stare decisis may be a relevant factor in constitutional negotiation. Put as simply as possible, legal reasoning and decisions in common law systems constitute binding precedent for other courts. For this reason, the interpretation of legislation in common law opinions tends to be rather extensive. On the constitutional level, the binding nature of stare decisis tends to be more flexible, allowing for overturns of previous decisions in cases where the development of constitutional provisions over time requires it. As Justice Brandeis once noted, [s]tare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. ... But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. ... This is strikingly true of cases under the due process clause.57 Thus, when ruling on matters of constitutional import, the Supreme Court tends to stick to precedent, unless there has been a compelling development of rights interpretation that warrants giving the case another look down the road. By contrast, the judges of a Constitutional Court are not bound by the same standard. While judges do maintain some affinity to precedent as a practical means to maintain interpretive consistency, they are by no means required to do so. Put another way, judges on a Constitutional Court would face a much lower audience cost of not ruling in accordance with precedent than would justices on a Supreme Court. Put in terms of the model of constitutional negotiation, one may expect that civil law systems would have more flexibility in switching the forms of ruling on part of the Court while going through iterations of the negotiative process.

Burnet v. Coronado Oil & Gas Co. 285 U.S. 393, The Supreme Court of the United States. 11 Apr. 1932. Justia. <http://supreme.justia.com/cases/federal/us/285/393/>, at 406407, 410. Ironically, Justice Brandeis assumes the inability of legislatures to respond to Court rulings, a position that this thesis will argue against.

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The Room for Negotiation in Diverse Legal Systems

Despite the vast differences between various legal traditions, a close examination of the case studies will show that constitutional negotiation takes place across these potentially confounding variables. As we will see in the following chapters, some structural factors grounded in differences between civil and common law, or between German law and Italian law have directly influenced the path and outcome of constitutional negotiations. Yet the presence of constitutional negotiation remains a uniting factor among these distinct countries. Thus, while some differences in legal structure may influence the direction towards which negotiation tends, they do not completely undermine the occurrence of negotiation over issues of constitutional import. With these considerations in mind, let us now turn to the case studies, which will take up the topics of the next three chapters. As will be shown, the theory of constitutional negotiation will cut across the differences of these legal systems, and will serve to represent a conception of judicial review that places the judiciary at a middle ground between activism and restraint, and within an overall process that respects and utilizes the varying capacities of different political institutions.

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Negotiative Practices in Common Law Systems

Judicial review is not a veto over the politics of the nation, but rather the beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole. - Peter Hogg and Allison Bushell, 1997

Because our Nations past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. - Justice Anthony Kennedy, 2008

As mentioned in the previous chapter, the discussion on the practice of judicial review over time in common law systems, to date, has been rather extensive, in both theoretical and practical terms. Thus, it seems sensible to review the previous research as a means to inform our consideration of negotiation in civil law systems. As the introductory chapter noted, the theories of judicial review developed do not explicitly frame the cases in terms of constitutional negotiation. Thus, to the extent possible, this chapter will review the theories of judicial dialogue and new judicial deference, and reframe them to a form of constitutional negotiation that will become comparable to that which occurs in civil law systems. Judicial dialogue was first extensively elaborated within Canadian jurisprudence, and several mechanisms within the legal order have lent themselves to this end. The most glaring example within Canadian law is Section 33 of the Canadian Charter of Rights and Freedoms, also known as the notwithstanding clause. Specifically, this provision "... permits any provincial legislature or the federal Parliament to enact legislation which will operate notwithstanding that it

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may violate certain Charter rights."58 In practice, this legislative override has two limitations. The first restricts the use of the clause as a means to limit democratic rights, while the second requires a legislative reenactment after five years.59 Although the notwithstanding clause has existed since 1982, it has only been implemented once on the federal level, due to the fact that it faces much criticism and public scrutiny. The key point, however, is that the notwithstanding clause poses a streamlined means to force deferral from the Canadian Supreme Court. On surface, this possibility severely impedes the balance of power, as it is commonly understood. Yet more importantly, it motivates theoretical discussion on the characterization of the empirical and normative relationship between the legislature and the courts, particularly in cases that serve to elaborate upon qualified rights.60 This consideration has become the focal point of the intellectual and legal debate among Canadian scholars. Much of the debate has focused on whether such a relationship, as codified within the Canadian Charter, allows for a dialogue between the legislature and the courts over issues of constitutional importance. While some scholars contend that several sections of the Charter promote this relationship, others hold that dialogue has been overused as a term to generalize the politics on the ground. This debate, and whether this interaction can be classified as a form of dialogue among the branches of government, will be discussed at length below. When applied to the practice of the Canadian political branches, it will become simple to note how the theory lends itself to the semantically similar term constitutional negotiation. It will also become apparent that, in examining the use of the notwithstanding clause, and the Canadian experience with international terrorism after 9/11, negotiation becomes a more apt

Text of the Canadian Charter, quoted in: McMahon, Kevin J. Notwithstanding the Notwithstanding Clause: Political Regime and Constitutional Politics in the United States and Canada. Canadian Foreign Policy. Vol. 12(3): Jul. 2005, pp. 45-52, 54. Pg. 46. 59 Ibid. 60 Qualified rights, a term that will be used throughout this paper, are those constitutional provisions that are specifically worded such that they allow modifications or exceptions that are deemed reasonable by the government.

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description of the interaction than does dialogue. Specifically, it will be seen that a dialogic character does not lend itself to a consistent account of the Canadian jurisprudence and political actions regarding post-9/11 terrorism. Rather, as Roach acknowledges, only once the international community entered the picture as a negotiative party do the Supreme Court cases on international terrorism show some semblance of consistency. Meanwhile, south of the Canadian border, the branches of the United States government have been facing similar theoretical concerns over similar issues, yet in a different dynamic among the branches. While the Canadian Supreme Court found itself interacting with the legislature due to the structure of the Charter, the United States Supreme Court found itself at odds with the limits of executive power during emergencies, due to a lack of elaboration of branch competencies in the Constitution. Such tension has existed as far back as the onset of the Civil War, where Lincoln declared his famous and debatably unconstitutional Emancipation Proclamation in 1863. Since that time, deference and negotiation in American jurisprudence has occurred over issues such as presidential power over military tribunals, Japanese-American internment during wartime, and habeas corpus rights for suspected combatants and terrorists. In contrast to the Canadian experience of negotiation, which has largely remained constant due to its elaboration within the Charter, American negotiation over habeas rights has emerged from a history of deference, made obvious when considering the Courts response to executive action over the years. Examination of the American experience reveals a new judicial deference on part of the Supreme Court, in which the Court explicitly condemns executive power, yet fails to elaborate the resulting remedy, meaning that the facts on the ground do not change in light of the ruling.61 This splitting of the difference on part of the Court represents a marked shift in the interpretation of executive powers, and has opened the door to demand corresponding remedies in accordance with the law, and by extension, has further opened the

Scheppele, Kim Lane. The New Judicial Deference. Boston University Law Review. Vol. 92(1): Jan. 2012, 89-170. Pg. 123.

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door to inter-branch negotiations over the issue of remedy once habeas rights were determined to have a constitutional character. This progression with the jurisprudence of the United States Supreme Court will also be further elaborated below. In concluding this review of the existing literature, it will become clear that constitutional negotiation will be a more applicable term to both common law jurisprudences than either judicial dialogue or new judicial deference. Constitutional negotiation, unlike judicial dialogue, assumes the possibility of some level of disagreement among the branches. It also focuses more on the gradual elaboration and implementation of a provision and, unlike new judicial deference, forecasts that the applicable remedy will eventually catch pace with the demands of the elaborated constitutional provision.

Dialogue in Theory and Practice The Canadian Experience

As alluded to above, much of the theoretical discussion on dialogic judicial review has emerged from Canadian jurisprudence. In a simple theoretical sense, many scholars note that, in common law constitutional democracies, both legislators and judges share the role of creating law.62 Judicial review is intended as a means to protect constitutional values against majoritarian reform, and is adequately constrained by checks held by other branches, ensuring that the judges of courts do not simply become political elites.63 Yet in many ways, such a simplistic account only serves to rehash the age-old debate on judicial activism and judicial restraint. Theoretical inquiries from Canadian academia have sought to elaborate a middle ground, in this case judicial dialogue. While of an institutional nature, the checks and balances held against the judicial branch cannot necessarily be construed

Elliot, R. Douglas. Judicial Activism and the Threat to Democracy. University of New Brunswick Law Journal. Vol. 53, 2004, pp. 199-204. Pp. 199, 202. 63 McMahon, 46.

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as democratic dialogue, as these mechanisms abstract too far away from specific policy issues. Could it be the case that various constitutional mechanisms allow for sustained dialogue between the judiciary and the legislature over issues of constitutional importance? This question has been the focus of Canadian legal scholars.

Pinpointing Dialogue in the Canadian Charter

In elaborating on this form of dialogue between institutions, Peter Hogg and Allison Bushell Thornton draw a sophisticated account of this deferential yet dialogic relationship. They first note that, even though the Supreme Court has the last word on what the law means, dialogue between the institutions can nonetheless take place: Where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislative body as a dialogue. In that case, the judicial decision causes a public debate in which the Charter values play a more prominent role than they would if there had been no judicial decision. The legislative body is in a position to devise a response that is properly respectful of the Charter values that have been identified by the Court, but which accomplishes the social or economic objectives that the judicial decision has impeded.64 Important to this account of dialogue is the fact that all political branches, particularly in the Canadian experience, begin engaging in what has been called Charter-speak, justifying their statutes and positions in constitutional terms rather than in the language of political interests.65 Kent Roach, in outlining ways of conceiving forms of democratic dialogue, contends that this more nuanced form of relations represents the way in which the two institutions can be construed

Hogg, Peter W. and Allison A. Bushell. The Charter Dialogue Between Courts and Legislatures. Osgoode Hall Law Journal. Vol. 35(1): 1997, pp. 75-124. Pp. 79-80. 65 Ibid, 101.

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as having distinct yet complementary roles in determining the proper interpretation of a legal issue. Citing Alexander Bickel, he notes that virtually all important decisions of the Supreme Court are the beginnings of conversations between the Court and the people and their representatives. They are never, at the start, conversations between equals. The Court has the edge [but] the effectiveness of the judgment universalized depends consent and administration.66 The question as to whether a dialogue over issues exists, then, can be put in the following way if the Court is seen as having the last word on a matter, as having the ability to arrive at the right answer to a legal question of constitutional importance, how is it that the two branches could be seen as conversing over the right answer? Are mechanisms for dialogue built into the constitutional structure, or is the dialogue based in practice? Is any conception of dialogue simply a misnomer for a courts repeated rejection of an unconstitutional law? Any theory purporting a form of dialogue between the political branches must answer these questions. Indeed, as Hogg and Bushell Thornton argue, the structure of rights in the Canadian Charter requires the Supreme Court to defer to legislature in four general ways: (i) through the infamous notwithstanding clause in section 33, (ii) via section 1, which allows for reasonable limits on guaranteed rights, (iii) qualified rights67 such as sections 7, 8, 9, and 12 which all allow for the legislature to reframe proposed laws in ways that reasonably meet the requirements of rights protection in the Charter, particularly when combined with section 1,68 and (iv) the

Roach, Kent. The Supreme Court on Trial: Judicial Activism or Democratic Dialogue. Toronto: Irwin Law, 2001. Pg. 246. In formulating this account Roach rejects two other understandings of how dialogue operates, one that seek to hold the Court accountable, and one that empowers the branches to interpret and apply the Constitution separately. 67 See supra, at note 59. 68 The text of the Canadian Charter contains the following sections section 7 reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; section 8 reads: Everyone has the right to be secure against unreasonable search or seizure; section 9 reads: Everyone has the right not to be arbitrarily detained or imprisoned; while section 12 reads: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. The qualified sections have been italicized for emphasis. For the text of the

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ability and discretion of the legislature in implementing remedial measures as a way to secure equality rights.69 Drawing from a sample of over eighty-eight cases from as far back as 1983, Hogg and Bushell Thornton note how over fifty-eight of the rulings elicited some legislative response on part of the legislature, a response that used one of the four mechanisms outlined above.70 While the authors concede that a legislative response is not always indicative of a dialogue, it nonetheless points towards cases in which the two branches have succeeded in conducting some form of exchange over an issue. As the introduction to this chapter noted, the notwithstanding clause under section 33 of the Charter represents the most glaring example of the structural sense in which the judiciary must defer to the legislature. Yet, as Hogg and Bushell Thornton point out, section 33 has only been fully invoked once by the Canadian Parliament, in response to the Ford v. Quebec case that struck down a Qubcois law banning the use of languages other than French in commercial signs.71 Despite it being a clear example, however, the notwithstanding clause does not necessarily embody a dialogic character either, as it merely gives the last word to the legislature rather than promoting a conversation with the judiciary.72 As Hogg and Bushell emphasize, the unimportance of the notwithstanding clause when considered practically stems from a political climate of resistance to its use, suggesting that politically informed citizens also see the benefits to dialogue between the branches.73

Charter, see: Constitution Acts, 1867 to 1982. Justice Laws Website. 15 Mar. 2013. <http://lawslois.justice.gc.ca/eng/Const/page-15.html>. 69 Hogg and Bushell, 82. 70 Ibid, 80-81, 96-97, and Hogg, Peter W., Allison A. Bushell, Thornton, and Wade K. Wright. Charter Dialogue Revisited Or Much Ado About Metaphors. Osgoode Hall Law Journal. Vol. 45(1): 2007, pp. 1-65, at pp. 51-52. 71 Hogg and Bushell (1997), 84. 72 Kent Roach calls this more of an in-your-face reply over the issue, where the legislature stubbornly enacts its law anyways, thereby closing discussion on the question, at least for the five-year duration of the enactment. See: Roach, at 265. 73 Hogg and Bushell (1997), 83.

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As proponents of the dialogic character of legal interpretation argue, section 1 of the Canadian Charter, and the qualified rights under sections 7, 8, 9, and 12, provide a much more robust form of dialogue between the two branches. Indeed, as Roach notes in regard to section 1: The limitation clause in the Charter and most other modern bills of rights facilitates a respectful and constructive conversation that allows each institution to learn from the other. By providing for the judicial protection of rights, section 1 of the Charter allows the Court to focus the attention of legislatures, executives, and society on fundamental values and minority rights that might otherwise be neglected or ignored. By allowing a wide range of reasonable limits on rights to be prescribed and justified, it also allows the government to educate both the Court and society about its objectives and the alternatives rejected in pursuing these objectives. Section 1 is a vehicle for an enriching conversation in which both the Court and Parliament expand the horizon of each other while being true to their own distinctive capacities as elected and non-elected institutions.74 In this account, Roach largely points to the theoretical underpinnings of constitutional negotiation presented in the introductory chapter, highlighting how the differences in the institutional capacities of the political branches seem to require some middle form of judicial review as a means of fully understanding all sides of an issue, and in order to arrive at a more informed right answer.

Negotiation and Dialogue The Semantic Difference

Not all scholars have argued in support of the dialogic character of these inter-branch relations. In objecting to this conception of judicial review, Carissima Mathen stresses the

74

Roach, 264.

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dangers of reducing all qualified rights as having potential for dialogue. In her critique of Hogg and Bushell Thorntons formulation of dialogue theory, she draws a distinction between differences in institutional capacity and the parties that are bound under section 1.75 From here, she continues to argue that, A dialogic analysis of section 1 [of the Charter] thus risks confusing the burden imposed on the government respondent to justify a prima facie infringement with a privilege or power on the part of the legislature to determine when rights limits are justified the government is best restricted to the former role, with some latitude granted in cases where evidence is needed or the decision to be made cuts across the normal lines of debate.76 In essence, Mathens objection underscores one of the most fundamental objections to dialogue theory the fact that dialogue does not and should not change the fact that the Court is to be left to have the final word, while the legislature is left with the burden of proof in justifying its compelling interest to the Court. From this view, it would appear that the dialogue remains rather one-sided. One issue with Mathens analysis is that it does not adequately address the competencies of the Parliament under section 33, and how that section of the Charter in fact does enable it to have the final say if so desired. In fact, one could go further to suggest that, in being constrained by section 33 of the Charter, the Supreme Court may actually be more willing to listen to the concerns and compelling interests raised by the legislature on an issue. Mathen is correct, however, in the sense that this playing of cards does not necessarily constitute dialogue, but rather a form of negotiation. One can further generalize this analysis by simply noting that legislative responses to Court decisions do not always constitute dialogue, and that the branches

Mathen, Carissima. Dialogue Theory, Judicial Review, and Judicial Supremacy: A Comment on Charter Dialogue Revisited. Osgoode Hall Law Journal. Vol. 45(1): 2007, pp. 125-146. Pg. 133. 76 Ibid 133-134.

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do not necessarily have to share the same position on an issue in order to come to more of a consensus over it. As touched upon in the introductory chapter, these considerations constitute the semantic and functional differences that allow for constitutional negotiation to better apply to situations in which judicial dialogue does not. The difference between the two theories is slight, yet nonetheless important, as constitutional negotiation assumes that the differences in the positions among branches will still invariably tend towards a more moderate form of review over time, one that lends respect to both the provisions in question as well as any relevant political considerations.

Canadian Negotiation in Practice

The Canadian experience with international terrorism, and its wholly new set of legal questions, has been somewhat mixed. As Kent Roach points out, the impulse towards rights protection subject to justified and proportionate limits and the impulse towards more reflexive deference and concerns about the status of non-citizens and sovereign nations are both entrenched in [the Canadian] constitutional make-up, and that no single direction of development between the Court and the legislature exists.77 In this analysis, Roach focuses largely on the qualifications examined in light of section 7 of the Charter, which states that [e]veryone has the right to life, liberty, and security of the person and the right not to be depraved thereof except in accordance with the principles of fundamental justice.78 This qualification in the latter part of the section makes it amenable with respect to section 1, which guarantees the rights and freedoms set out in

Roach, Kent. Section 7 of the Charter and National Security: Rights Protection and Proportionality versus Deference and Status. Ottawa Law Review. Vol. 42(3): 2011, pp. 337- 367. Pg. 343. 78 Constitution Acts, 1867 to 1982. Justice Laws Website. 15 Mar. 2013. <http://lawslois.justice.gc.ca/eng/Const/page-15.html>. Emphasis added. Notice immediately that the except in accordance with the principles of fundamental justice renders section 7 as a qualified right, with the specifics in certain cases being open to negotiation between the branches.

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[the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.79 Empirically, the right in question in these terrorism cases concerns the right of immigrants and permanent residents to appeal orders of deportation, while the qualifications to this right limit appeals in cases where the individual constitutions a national security risk, or when evidence for the deportation order is classified. To illustrate these issues, he draws six accounts of section 7 jurisprudence, three of which become subject to section 1 exceptions over time, and three that do not. Changes over time only minimally explain a slight shift towards stricter judicial oversight for the sake of rights protection as Roach notes, such increased rights protection often goes hand in hand with a willingness to accept reasonable and justified limits on rights.80 Overall, Roach suggests that international human rights obligations have a role to play and the gravitational force of such obligations is considerable.81 In examining the contrast between these cases, it will be clear that the negotiations between section 7 rights and national security concerns only show consistency once international rights obligations enter the arena as a third party negotiator. Thus, as this analysis suggests, a development of theses cases does lend itself to a form of constitutional negotiation, one that invokes a periphery party of negotiation. To make this point clear, let us first briefly walk through the cases developed by Roach, to the extent that they show an inherently mixed jurisprudence on terrorism. The first set of case progressions, as he argues, have a common basis in landmark decisions made in 1985, in which the Supreme Court established that section 7 protections were not merely limited to issues of procedural fairness.82 This reasoning was central in BC Motor Vehicle Reference, a case that questioned whether the conviction of drivers that were unaware of having a suspended license

79 80

Ibid. Roach 343. 81 Ibid 343, 367. 82 Ibid 344.

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was constitutional.83 In ruling that such convictions were unconstitutional, the Court established that one of the principles of fundamental justice in section 7 rests on the requirement that some element of fault be present in order to allow for a conviction.84 During the ruling, as Roach notes, the Court suggested that violations under section 7 would only be justified under section 1 in exceptional circumstances, such as natural disasters, the outbreak of war, epidemics, and the like.85 In the same year, the Court had an opportunity to apply section 7 rights to the context of national security. Operation Dismantle, a case involving a peace groups challenge of the governments decision to allow the US to test cruise missiles on the northern Canadian territories, saw the Canadian Supreme Court confronted with the question as to whether the issue was justiciable under the Charter.86 While the government argued that powers related to foreign and military affairs were not cognizable by the Court, the majority opinion rejected this view, arguing that the Court has considerable latitude in evaluating when section 1 may be applied to section 7 rights.87 On this view, it seemed that the Court would not defer on questions related to foreign and military policy. During the time that these cases were decided, however, reasonable limits to section 7 rights under section 1 did not include issues related to international terrorism, as a generalized legal classification for this form of terrorism did not exist at the time. Thus, when Suresh v. Canada arrived at the Supreme Court in 2002, the judges were faced with a conflict between precedent particularly the latitude in evaluating foreign and military affairs established in Operation Dismantle and new legal classifications of terrorism and security risk, entered

BC Motor Vehicle Reference, 2 SCR 486 (1985), found at: Re: B.C. Motor Vehicle Act. Judgments of the Supreme Court of Canada. 18 Mar. 2013. < http://scc.lexum.org/decisia-scc-csc/scc-csc/scccsc/en/item/100/index.do >. 84 Ibid. 85 Roach (2011), at 344, citing: 2 SCR 486 (1985). 86 Ibid 348. 87 Ibid, citing: 1 SCR 441 (1985).

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into the legal culture under UN Resolution 1373.88 The case itself involved Suresh, a refugee from Sri Lanka whose application for admission into the country was rejected, without the ability to appeal the decision, on the grounds of being a security risk.89 While the Court denied his petition, deferring to the knowledge of the executive and legislature on what constitutes a security risk,90 it went further to address the potential of being complicit in deporting a refugee back to a place where he may face torture. On this note, the Court added that such brutal treatment might very well be justified in: exceptional circumstances either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1 We may predict that it will rarely be struck in favor of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.91 Thus, in recognizing the capacity of the legislature and executive to determine the content of a security risk, the Court is also implicitly recognizing its complicit violation of other Canadian and international laws.92 The only solution available to the Court, as the excerpt suggests, is to further negotiate the details underlying terrorism and security risk through future cases. Such forced concessions to the other branches on part of the Court also dominate the progression of cases from Singh to the Afghan Detainee Case.93 The unifying trend among these cases, as Roach explains, is that in some instances, the Canadian courts have strayed far from the original vision of rights protections and proportionality that animated early Charter cases such as

Press Release SC/7158. United Nations. 28 Sept. 2001. <http://www.un.org/News/Press/docs/2001/sc7158.doc.htm>. 89 Suresh v. Canada, 1 SCR 3 (2002), found at: Suresh v. Canada. Judgments of the Supreme Court of Canada. 18 Mar. 2013. < http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1937/index.do>. 90 Ibid, at 33. Cited in: Roach (2011), at 345. 91 Roach (2011), at 345, citing: 1 SCR 3 (2002), at 78. 92 Ibid. 93 Ibid 348-354. Here Roach outlines the same trends in these progressions of cases. For our purposes, however, one progression from each category is sufficient to glean his argument that the jurisprudence of Canada has pulled in both directions on various occasions.

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BC Motor Vehicle Reference, or Operation Dismantle.94 Particular to this case, the Court moved away from its competency to adjudicate issues related to foreign and military policy when it was later faced with the Suresh exception. With this background in place, Roach then transitions to the second set of case progressions, which he argues flips the trend. To illustrate this transition of interpretations, he considers the cases Canada v. Chiarelli and Charkaoui v. Canada, among other pairings. The foundational idea of this progression emerged in Chiarelli, a case involving a permanent resident that faced deportation after having pleaded guilty to uttering threats to cause injury and the possession of narcotics. In this case, the Court ruled that the government has a considerable latitude to decide which immigrants may enter or remain in the country, accepting the possibility that Parliament may make a legitimate, non-arbitrary choice to deny an immigrant access or deport a permanent resident, given that permanent residency represented a contractual relationship with the state that may be revoked due to illicit conduct.95 Further, the Supreme Court upheld the use of secret evidence on part of the government as adequate rationale for allowing the deportation, even though such evidence could not be presented to the petitioner or the Court. Abstracting from this notion, the Court underscored the importance of secrecy, even over concerns of rights and proportionality, citing potential dangers mentioned in previous jurisprudence on Cold War secrecy.96 In a sense, the Court is deferring to the political branches in the sense that it would do ten years later in Suresh, even though it had set a contradictory precedent seven years earlier in BC Motor Vehicle Reference. Particularly curious is the fact that the legalized category of terrorism, and its associated legal culture, still did not exist when the Court was reviewing Chiarelli, and thus the same legal argument for what would become a prequel to the Suresh exception was not open to the Court.

94 95

Ibid 354. Ibid 357-358. Citing: 1 SCR 711(1992), at 733-734. 96 Ibid 358.

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Thus, in many ways, Roach notes how the following case, Charkaoui v. Canada, represented something of a return to the BC Motor Vehicle Reference approach of allowing other legal rights in the Charter to inform the content of section 7 rights.97 In this case, Charkaoui, a resident that was arrested based on a security certificate that contained classified information, was set to be deported without the ability to fully review and challenge the charges against him.98 Faced with these charges, the Court ruled that using classified evidence as a means of deportation, without an alternate avenue of reviewing or challenging the case, was unconstitutional.99 Specifically, the Court held that security concerns cannot be permitted to erode the essence of section 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter.100 Thus, the Court returned to holding the two concerns national security and basic rights of due process in light of one another, rather then allowing the former to erode the latter. After outlining this progression of cases, Roach, the proponent of the dialogue theory posited above, ensures to stop and analyze the ways that the Court enabled dialogue by engaging in proportionality analysis in Charkaoui in order to determine a remedy: The Court facilitated dialogue between the Court and Parliament in Charkaoui I by suspending the declaration of invalidity for a year. Parliament responded by enacting a special advocate scheme that has subsequently been upheld as an adequate substitute for full disclosure. Under this scheme, special advocates have assisted in subsequent decisions that have revealed flaws in the secret evidence, including those relating to the reliability of human sources and the use of evidence obtained through torture.101

97 98

Ibid 359. Charkaoui v. Canada. 1 SCR 350 (2007), at 10-11. 99 Roach (2011), at 358. 100 Ibid 359, citing: 1 SCR 350 (2007), at 27. 101 Ibid, citing: Harkat v. Canada. 2012 FCA 122.

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While this undoubtedly does represent an interaction between the branches with a dialogic nature, how does one square the fact that the same apparent dialogue over section 7 qualifications lead towards a realization as extreme as the Suresh exception, particularly given that it violates other sections of the Charter as well as international law?102 In attempting to answer this question, Roach successfully identifies how international influences, in the aftermath of Suresh, cautioned Canada of the absolute nature of its obligations not to be complicit in torture, a complacency that the Suresh exception seemed to imply.103 Indeed, many legislative moves on part of the Canadian Parliament since 9/11 have been focused on externally denouncing torture, despite its narrowly legal stature in Suresh. The government has since created commissions of inquiry into the conduct of Canadian officials in relation to Canadians who were tortured abroad, and adopted amendments to the Immigration and Refugee Protection Act that exclude evidence obtained by cruel and degrading treatment and torture.104 As Roach concludes from these steps taken, The best argument for rights protection and proportionality to prevail over deference and status concerns may be in those cases where the rights claim is supported by Canadas international human rights commitments. In other words, the courts may be reluctant to ever give effect to the Suresh exception because such an exception would violate international human rights law.105 In essence, Roach attempts to square the circle the simultaneous presence of two forms of case progression that pull in either direction by inviting the international community, complete with its human rights obligations, as a third party of dialogue.106 In this sense, he implicitly argues that

See supra, note 90. Ibid 346, citing: Saadi v. Italy, ECHR 179 (2008), 49 EHRR 30 (2009). 104 Ibid. 105 Ibid 367. 106 Roach uses this approach as a means to potentially explain the other case progressions in that set, those that went from rights protection to deference, as well. See: Ibid 367.
103

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dialogue still occurs in both cases, and the Suresh exception may represent a bump in the road towards greater awareness and condemnation of the practice.107 In elaborating the same semantic objection as had been done above, it seems clear that constitutional negotiation seems much more appropriate to describe this overall phenomenon than dialogue. When responding to the cautions of the international community, the Canadian Parliament never directly addressed the dangerous exception posed by Suresh. Indeed, when writing, Roach concedes that the potential of realizing such a case still remains as a type of threat.108 Thus, while some form of dialogue may have been happening, it definitely was not in the spirit of dialogic judicial review. Rather, it more appears that, having reached a snag in the dialogic process, the branches became more interested in negotiating with the international community, enacting laws and establishing standards of evidence that put prohibitive restraints on a potentiality the Suresh exception that had been realized in constitutional law. Constitutional negotiation, while functionally similar to dialogic review, allows for these cases where third party intervention may be required to navigate a problem in the way that interbranch dialogue cannot. As we will see in the Italian case study, constitutional negotiation does bear a unique practicality in applying to these scenarios, while remaining generalizable enough to apply to cases where dialogic relationships within the branches do function properly.

The New Deference of the US Supreme Court

This particular requirement of having a constitutional provision that remains open to interpretation, rather than simply a general assumption of different branch competencies, seems to provide helpful starting point for the examination of the experience of judicial negotiation on part of the US Supreme Court. Indeed, as will be shown below, the new deference of the Supreme

107 108

Ibid 346. Ibid.

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Court better represents a negotiative relationship between the political branches, as it recognizes the different capacities of the political branches in interpreting the right of habeas corpus versus filling in the details regarding the remedy for a violation of that right. Meanwhile, in simply representing deference outright, the old form of judicial deference afforded to the executive actually closed negotiations on the question of rights, as it handed the executive free reign to cut corners on an undefined set of constitutional rights.

Old Versus New Judicial Deference

As Kim Lane Scheppele, who outlines the history of judicial deference in US jurisprudence, highlights, much of the confusion surrounding emergency powers lies in the fact that all three branches have never quite elaborated the extent and means by which the executive may wield unilateral power in response to a crisis. In response to this lack of elaboration, the Court has been highly deferential to the executive throughout the majority of emergencies within American history. The opinion of the Ohio trial court in Ex parte Vallandigham, a Civil War case involving the habeas rights of a congressman charged in a military tribunal due to having expressed sympathetic concerns for the Confederate States, provides a remarkable account of this old judicial deference: It is perhaps not easy to define what acts are properly within this designation [military necessity], but they must undoubtedly be limited to such as are necessary to the protection and preservation of the government and the constitution, which the president has sworn to support and defend. And in deciding what he may rightfully do under this power where there is no express legislative declaration, the president is guided solely by his own judgment and

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discretion, and is only amenable for an abuse of his authority by impeachment, prosecuted according to the requirements of the constitution.109 The Supreme Court opinion on the matter, Ex parte Milligan, which was handed down after the war, moderated the judgment of the trial court, yet nonetheless acquiesced in the matter of interest, the ability of the President to suspend the writ of habeas corpus in response to times of crisis.110 Cases brought before the Court during WWII, as Scheppele notes, saw a codification of old judicial deference at the level of the Supreme Court. Ex parte Quirin is famous in this regard. This case involved the military trials of eight Germans saboteurs who arrived in the US during WWII. After one of the eight Germans turned himself into the FBI and foiled the others plot, Franklin D. Roosevelt opted to use the war as an means to hastily set up a military tribunal under an Executive Order to try the saboteurs. Such a move was done in part to secure a conviction with the potential for a death sentence, despite a meager amount of evidence of actual criminal activity, as the saboteurs were apprehended while in civilian clothing.111 The Executive Order also avoided public criticism for not having been knowledgeable of the conspiracy.112 The saboteurs petitioned the Supreme Court in the form of a habeas petition, not recognizing and challenging the authority of the military tribunal, during which the trial was already in processes.113 In addressing the case, the Supreme Court first issued a per curiam opinion that allowed the military tribunal to go forward. By the time the Court was to issue a fully reasoned judgment, all of the saboteurs were convicted, six of which were executed.114 The full opinion then was

Scheppele 101-102, citing: Ex parte Vallandigham, 28 F. Cas. 874, 920 (1863). Ibid 102. 111 Ibid. 112 Ibid 103, and Fisher, Louis. Military Tribunals: The Quirin Precedent. Congressional Research Service, RL 31340, pp. 3-5. 113 Ibid, and Fisher 11-12. 114 Ibid, and Fisher 15-16, 28.
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necessarily awkward, as it was handed down too late for the petitioners to appreciate why their habeas petitions were rejected.115 While the Court granted old deference to the President and Congress to set up military tribunals in times of war, the Justices were unable to come to a coherent agreement, grounded in the Constitution, as to why military tribunals were necessary to try war crimes, particularly against individuals that could not be clearly pinned as enemy combatants.116 Thus, deference to the other branches seemed to be the only coherent conclusion in this case. An even more explicit statement of old deference during WWII came with Hirabayashi v. United States, in which the Supreme Court upheld the establishment of curfews for JapaneseAmericans residing on the West Coast.117 Specifically, the Court recognized that, on balance, the discriminate application of curfews to certain minorities in this case Japanese-Americans was acceptable in cases that the nation was at war with the country from which that group originated.118 In this case, the Court proceeded to deliver a sweeping deferral to the political branches in noting that, [t]he war power of the national government is the power to wage war successfully It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and the dangers which attend the rise, prosecution, and progress of war Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war-making, it is not for any court to

115 116

Ibid, and Fisher 27-32. Ibid 103-104. 117 Ibid 105. 118 Ibid.

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sit in review of the wisdom of their action and substitute its judgment for theirs.119 With such a deferential treatment of emergency powers to the political branches, the Court had little choice but to refer to this precedent in Hirabayashi in its successor case involving JapaneseAmerican internment, Korematsu v. United States, in which the Court held that internment of Japanese-Americans, despite their actual citizenship, was constitutional during the conduct of war.120 Such a case clearly demonstrates the extent to which this deferential precedent has dominated judicial thought through the WWII period. In many ways, old judicial deference closes the door on negotiations in the sense that the judiciary has continually written the political branches a blank check to act when an emergency is ongoing. As Scheppele notes, [t]he old deference cases drip from an overflowing sense that the courts have a limited place in the constitutional order. Over and over, judges report that they cannot possibly know what the executive knows, that they cannot decide without seeing the security-barred information and that they have no right to know these things in any event.121 In essence, the Court, in not limiting emergency powers with regard to specific rights, closed any possibility for negotiations over which branches should employ which competencies during the course of a crisis, and in what ways these competencies ought to be limited. Thus, when the nature of the crisis changed, the Court found itself in a better position to evaluate new legal understandings of enemy combatant and detention against specific individual liberties, particularly when the Office of Legal Council took the liberty in radically changing the interpretation of existing law to permit an aggressive response to terrorism.122 Such legal justifications lead to the detention of alien enemy combatants at Guantnamo, and

Ibid 105-106, citing: Hirabayashi v. United States, 320 U.S. (1943), at 93. Ibid 106, citing: Korematsu v. United States, 323 U.S. (1944), at 217-218. 121 Ibid 108. 122 Ibid 109-110, citing the OLC interrogation memos, found at: Index of Bush-Era OLC Memoranda Relating to Interrogation, Detention, Rendition and/or Surveillance. American Civil Liberties Union. 5 Mar. 2009. <http://www.aclu.org/pdfs/safefree/olcmemos_2009_0305.pdf>.
120

119

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ultimately lead to the claimed power to detain domestic enemy combatants as well.123 For the latter category of individuals, petitions against detention naturally arrived at the doorstep of the Supreme Court in the form of writs of habeas corpus. Two of the first such cases were Hamdi v. Rumsfeld and Rumsfeld v. Padilla. Both of these cases involved petitions of habeas corpus from individuals that were being detained in Guantnamo Bay by the government, despite being American citizens.124 While the lower courts retreated to old deference,125 the Supreme Court took a strangely different approach. While both cases could have approached the Supreme Court as a question of presidential power to detain U.S. citizens without trial with the only difference being that Hamdi was captured by the military in Afghanistan, while Padilla was arrested in a U.S. airport the Court proceeded to dismiss one case on procedural grounds while deciding Hamdi on its merits.126 While the majority evaded Padilla on procedural grounds Padilla brought the charge to the wrong district court in the first place the dissent still took the opportunity to warn that [a]t stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the peoples rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.127 Meanwhile, the 5-4 majority avoided the deference question altogether. Such a shift in deference policy pales in comparison to the decision handed down in Hamdi. As Scheppele notes, all of the Justices save Justice Thomas ruled against the

Ibid 111, citing: Woolman, Joanna. Enemy Combatants: The Legal Origins of the Term Enemy Combatant Do Not Support Its Present Day Uses. Journal of Law & Social Challenges, Vol. 7(145): 2005, pp. 154-160. 124 Ibid 111. 125 Ibid 112-115. Here, Scheppele runs through the rulings of the lower courts in both cases. 126 Ibid 115. 127 Ibid 116, citing: Padilla v. Rumsfeld, 542 U.S. (2006), at 465.

123

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governments case for indefinite detention with unusually undeferential language.128 Indeed, it was in this case that Justice OConnor, writing for the majority, made her famous claim that we necessarily reject the Governments assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nations citizens.129 Such a strong stand clearly represents a departure from the old deference policy of the Supreme Court, grounded in the rights of citizens rather than a question of branch competencies. However, as Scheppele is quick to add, despite the bold assertions of non-deference handed down in the decisions, the Court never exactly defined of what these rights, those which were due to Hamdi in some form of remedy, consisted. As Scheppele notes, the opinion held that Hamdi had to be notified of the factual basis of his classification and to receive an opportunity to rebut these charges with evidence before a neutral fact-finder. But beyond these absolutes, things were not so clear.130 In the end, however, the Court nonetheless found that the detention was authorized under the Authorization of the Use of Military Force (AUMF) passed by Congress in 2001, which provided enough legislative oversight to allow the detention while the legislative details of the habeas hearing were further defined. Thus, despite the presss claims that the detainee won, in reality the situation for Hamdi hardly changed at all.131 The case was even bleaker for the case of Padilla, who, in the course of submitting another writ of certiorari before the Court, was convicted by the government of an unrelated conspiracy charge, was denied

Ibid 117. Ibid 117, citing: Hamdi v. Rumsfeld, 542 U.S. (2004), at 535-536. 130 Ibid 123. 131 Ibid 118-119. The press article titles are of particular interest, and illustrate the gap between the right to habeas corpus versus the actual remedy that was denied through the AUMF.
129

128

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the writ, and was held in military custody for another four years before facing trial for this second charge.132 The gap between constitutional right and remedy, which Scheppele carefully outlines with each Guantnamo case, constitutes the defining mark of new judicial deference. While the Supreme Court refuses to defer to the Executives claim to suspend habeas corpus rights, it also failed to elaborate on the remedy to the fact that the petitioner in question had been illegally detained, effectively allowing the President to maintain keep the detainees at Guantnamo for years.133 Does this new deference promote a negotiative relationship between the branches in a way that old deference does not? Certainly when examining the OConner decision, one can see the marks of negotiation the Court abstractly defines an absolute right, but on the condition that the legislature uses its competencies to fill in the details that lead to a remedy. While at the time this divide between protecting the right and deferring the remedy that which marks new deference has been more implicit, the cases involving Guantnamo detentions of nonnationals, in that they represented an area of law not defined at the time, were more explicit. With regard to the detention of non-U.S. citizens, British high court judge Lord Johan Steyn famously called Guantnamo a legal black hole, noting that judges should nonetheless take a role in arbitrating these matters.134 Thus, given the need of legal elaboration and Court oversight on potentially unilateral Executive action, an examination of these cases may reveal whether new deference can be construed as more negotiative in nature. Indeed, as the three cases examined in this context Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush will show, new deference does afford the political branches with more room to define a balance between constitutional values and national security.

132 133

Ibid 120-121. Ibid 123. 134 Ibid 125-126.

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As Scheppele recounts the first of these three cases, Rasul v. Bush, she stresses how the majority decided no actual habeas claims; it merely decided that habeas claims could be made.135 From a negotiative perspective, this could be seen as opening the door for the legislature to fill in this legal gap. In a way, this was accomplished through Congresss Detainee Treatment Act of 2005 (DTA 2005), which actually went against the Court opinion in denying all Guantnamo detainees the right to habeas corpus.136 Interestingly, the passage of this Act coincided with the Hamdan v. Rumsfeld case, and thus the majority agreed that the Court could act despite the language of the DTA 2005, holding that the Act did not apply to cases pending at the time the legislation was passed.137 The language of the decision thus continued to show no deference to the President, while not explicitly responding to DTA 2005, the original response of Congress to the Rasul decision.138 It would be Congress that would respond with the Military Commissions Act of 2006 (MCA 2006), which, passed in reaction to the Hamdan decision, overtly permitted the President to make the military commissions different from the ordinary courts martial, taking away the primary objection that the Supreme Court had had to their original structure.139 Thus, when the government charged him with a new crime under MCA 2006, material support for terrorism, Hamdan was again thrown into a maze of trials and delays, all while remaining in detention under conditions of solitary confinement.140 As with the cases involving US citizens detained at Guantnamo, new deference triumphed in these instances.

Ibid 128. Ibid 129-130. 137 Ibid 130, citing: Hamdan v. Rumsfeld, 548 U.S. (2005), at 572-584. 138 Ibid 130-132. 139 Ibid 134, citing: Elsea, Jennifer. The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice. Congressional Research Service, RL 33688, 2007. <http://www.fas.org/sgp/crs/natsec/RL33688.pdf>. 140 Ibid 135, citing: Guantanamo Pairs Charges Dropped, BBC, June 5, 2007, <http://news.bbc.co.uk/ 2/hi/americas/6720315.stm.>; and Declaration of Andrea Prasow, Assistant Detailed Defense Counsel to Salim Hamdan. Military Commission, United States v. Hamdan. 1 Feb. 2008. <http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials- project/testimonies/testimomies-oflawyers/prasow_hamdan_declaration.pdr.pdf.>
136

135

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The Supreme Court posed a response to this changed legal culture established by Congresss DTA 2005 and MCA 2006 in Boumediene v. Bush. As Scheppele notes, the Court was pressed to determine where exactly where the habeas rights of detainees were located in law [i]f habeas rights were based in the habeas statute, then Congress could change its terms and the Court would have to defer. If the rights inhered in the Constitution, however, then there were limits to how fundamentally Congress could alter their parameters.141 In this light, and arguing against a history of the abuse of detention authority, the Court argued that habeas rights do indeed have a constitutional character grounded in the Suspension Clause, which must not be subject to manipulation by those whose power it is designed to restrain.142 Thus, in elaborating a constitutional character for habeas rights, the Court more firmly pushed back against the legal culture developed in response to Rasul. Scheppele stresses how, [f[inally realizing that the detainees have been denied meaningful access to a judicial forum for a period of years and realizing that remanding to the court of appeals would generate further delays, the Court went ahead and finally outlined what, at minimum, a habeas review had to provide.143 Yet in pointing towards a legal structure that would uphold these minimum standards, the Court simply noted that our opinion does not address the content of law that governs petitioners detention. That is a matter yet to be determined.144 Thus, while the Court did indeed respond to the laws raised in Rasul, it left Congress the task of filling in the details, particularly the evidentiary standard by which detention is permissible.145 For the purposes of constitutional negotiation, this process does allow for more elaboration on the habeas rights of aliens over time. Yet for the detainees, a prolonged discussion means a longer sentence, and new deference remains here to stay.

141 142

Ibid 138. Ibid 138-139, citing: Bourmediene v. Bush, 553 U.S. (2008), at 745, 766 for quotation. 143 Ibid 140, citing: 553 U.S. (2008), at 772. 144 Ibid 146, citing: 553 U.S. (2008), at 798. 145 Ibid.

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A Negotiative Character to New Deference

As suggested by the history outlined above, new deference does allow for some negotiation between the branches, particularly when it comes to the Court forcing the other two branches to develop a legal remedy that matches the constitutional nature of habeas rights. It even took inter-branch negotiation to deduce that habeas rights are of a constitutional nature. The Court upheld this negotiative view of developing habeas rights and remedies towards the end of its Bourmediene decision, noting that, Our opinion does not undermine the Executives powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitutions separation-ofpowers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to bear challenges to the authority of the Executive to imprison a person Because our Nations past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.146 Given that this account represents, in Scheppeles words, a lip service to old deference tempered by the new deference hat has come to be the signature of the post-9/11 jurisprudence,147 it seems clear that even the Court saw itself in an ongoing negotiation with the

146 147

Ibid 142, citing: 553 U.S. (2008), at 797-798. Ibid 142.

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President and Congress over how to best ensure habeas rights are protected while maintaining national security. Further, this position of the Court outlines several other ways that new deference has a negotiative character while old deference does not. First, the Court ensures to condition its role to conflicts that surpass a limited duration, suggesting that negotiation may only occur when repeated cases over time point to the emergency powers not responding to a crisis, but rather the changed nature of a political order that requires further definition.148 Second, once the Court saw habeas rights as applicable to alien combatants, the main question shifted from the competencies of the Executive to the extent to which these rights must be elaborated.149 This topic of the negotiation became even more salient after the rights in question were ruled to have a constitutional character. Thus, it could be said that, in accord with the conjectures posed in the introductory chapter, that, in some cases, negotiation focuses on a deferral to different institutional capacities as a means of elaborating the rights in question. While this strand of development also applies to the Guantnamo cases involving citizens in a rather obvious sense constitutional rights that apply to aliens also would apply to citizens it is worth repeating that the same trend developed separately for the habeas rights of citizens, as indicated by the Courts ruling in Hamdi. In leaving the legislature to define the specific process designed to ensure habeas rights, OConnors opinion rather blatantly left the next move to the legislature, resulting in a long, drawn-out process of litigating the specifics, during which time, of course, the petitioner would remain in detention.150

In fact, one could see how the Court views Guantnamo as the latter in saying that there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. See: Ibid 141, citing: 553 U.S. (2008), at 794-795. 149 Of course, some dissents along the way continued to pay lip service to old deference, not acknowledging the right as an issue of importance. 150 Ibid 123.

148

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Abstracting from Common Law Negotiation

With this background and prevalence of judicial negotiation established, it seems appropriate that the scope for this phenomenon be expanded further to show how inter-branch negotiations are common among democratic systems. Before transitioning these cases, however, it seems prudent to condense the lessons from common law cases into a summarized set of considerations that will also be explored in the following chapters, as a means of producing an organized and consistent comparative analysis. First and foremost, both new deference of the US Supreme Court and judicial dialogue of Canadian jurisprudence follow the model outlined by constitutional negotiation. A brief recap of each process will make this clear. In the United States cases involving habeas rights for alien enemy combatants, the Supreme Court established in Rasul that habeas rights for nonresidents could be claimed, but left the specific rights unelaborated. Congress responded with the DTA 2005, stating that those rights did not exist in law. The Court then claimed that DTA 2005 does not apply to Hamdan, since the law was passed as the case was in progress. The legislature then charged Hamdan with a crime created under a newly created law, MCA 2006, guaranteeing that he remained in detention. As a result, the Court responded in Bourmediene decision with the ruling that habeas rights had a constitutional character, meaning that laws could deprive individuals of these rights. Yet the Court also left the legislature with the final word in designing a procedure for the realization of habeas rights, effectively allowing them to detain suspects for longer while such a procedure is codified. Meanwhile, in Canadian jurisprudence, BC Motor Vehicle Reference circumscribed violations to section 7 to situations where fault could be attributed, except in cases of emergencies and crises. That same year, in Operation Dismantle, the Court exerted a competency to judge cases involving foreign aand military affairs against section 7 of the Charter. After 9/11, however, once the legal culture surrounding terrorism had been elaborated, due in large part by

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UN Resolution 1373, the Court deferred to the competency of the government to deport individual security risks in Suresh, a ruling that meant that in narrow cases the Canadian government can deport individuals to home countries that conduct torture, implicitly stating a narrow complicity with torture. The international community then emerged as a third party, reminding Canada of its human rights obligations. In response, the Parliament created commissions of inquiry against torture and amend existing law to exclude evidence obtained by harsh means in order to communicate to the international community that the Court will never have to resort to the Suresh exception, despite its continued existence.151 In both cases, the contending parties go back and forth in order to negotiate the specifics of a certain right and its associated procedural remedy. Further, the two jurisprudences gradually arrive at a moderate version of both extremes, leaving both branches in a win some, lose some position. In the US case, the Courts won the ability to claim habeas as a constitutional right, while the legislature won the ability to design a procedure for habeas trials over time, effectively keeping the suspect in detention. In the Canadian case, the government retained a large margin of discretion over whether to deport a permanent resident or deny an immigrant that constituted a security risk, while the Court was assured in front of the international community that it would not be forced into invoking the Suresh exception. The two cases do differ in an important sense, one that distinguishes constitutional negotiation from judicial dialogue. In the Canadian case, the international community took a prominent role in bringing some consistency to an otherwise mixed jurisprudence over international terrorism. In reminding Canada of its international rights commitments, the community took an active part in becoming a third party in negotiations, at a point when the government had been given deference and the Court was unsure as to whether the Suresh exception would become a reality. In pressing the government to demonstrate a commitment

The easier argument, of course, is made on the other set of cases, but I present BC Motor Vehicle Reference, Operation Dismantle, and Suresh to introduce the usefulness of third parties in negotiations.

151

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against torture, the international community in a sense forced the government to moderate the extent to which it would make the decision to deport permanent residents and immigrants, functionally giving back some of the deference originally granted by the Court. Importantly, this case shows how third-party negotiations may enter the picture, where traditional negotiations between the branches had failed, restoring a balance in the separation of powers over an issue. As will become clear in the next chapter, third-party negotiations represent an important and generalizable part of this theory of constitutional negotiation that allows it to apply to situations to which dialogue does not.

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Third Party Negotiation La Corte Costituzionale

The principle of equal treatment before the courts stands at the origin of the formation of a state governed by the rule of law. - La Corte Costituzionale, 24/2004

Lengthy proceedings and the SoL (statute of limitations) are highly controversial issues in Italy. The analysis found that the current regime shows serious weaknesses. With one in 10 criminal proceedings being dismissed due to SoL the current SoL regime constitutes a significant reason for impunity. - Transparency International, 2010 Report

On October 26, 2012, the Corte Tribunale di Milano found Silvio Berlusconi, the former Prime Minister of Italy, guilty of tax fraud, delivering a sentence that barred him from office and demanded jail time. At the time, newspapers lauded the courts ruling, noting that it was one of the first convictions secured against the many allegations of illicit business activities held against the former Prime Minister.152 Accusations against the former Prime Minister date as far back as the early 1990s, and include charges such as tax fraud, bribery, and child prostitution. While on the surface this sentence may represent a step towards holding Berlusconi accountable for his actions, on the ground it appears that the Prime Minister may not actually serve prison time, despite the highly publicized conviction. Indeed, as the New York Times notes, It is unlikely that he will ever serve jail time. Even if a definitive ruling were reached before the statute of limitations in the case runs out next year, Mr. Berlusconi would enjoy immunity as long as he remained in the Parliament.153 Indeed, to date, the process of appeal is

For example, see the headlines posted that very day by the BBC, Silvio Berlusconi sentenced for tax fraud, and the New York Times, Berlusconi is Found Guilty of Tax Fraud. 153 Donadio, Rachel. Berlusconi is Found Guilty of Tax Fraud. The New York Times, 26 October 2012. <http://www.nytimes.com/2012/10/27/world/europe/berlusconi-convicted-and-sentenced-in-taxfraud.html>.

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still underway, and Berlusconi has yet to see the inside of a cell, despite having stepped down from office. In a way, such a gap between the law and reality comes as one way to characterize the Berlusconi regime as a whole. The Economist published a scathing and controversial article that touched upon the extent to which the Prime Minister has not been subject to the law. Despite numerous allegations, ranging from tax fraud to sex scandals to televised defamation of political opponents, only [s]everal cases have seen convictions, only for them to be set aside because the convoluted proceedings led to trials being timed out by a statute of limitationsat least twice because Mr. Berlusconi himself changed the law.154 Given that these actions represent a formidable threat to the separation of powers, one must question the extent to which other branches have pushed back against Berlusconis perceived lack of accountability. In keeping with the theme of negotiative judicial review, this chapter will examine the responses of the Italian Constitutional Court to Berlusconis repeated attempts to assert a monopoly on parliamentary immunity. As the Court has stated on occasion, laws governing the immunity of political branches have constitutional status.155 Thus, it seems fitting that the judgments of the Constitutional Court, as well as legislative responses, serve as the scope of our analysis, as this Court has the competency to strike down constitutional challenges on immunity laws brought forth by lower courts, while the legislature has the ability to then respond and implement these decisions. Indeed, when examining the jurisprudence of the Court on this issue, it is clear that the Court has actively ruled against attempts by Berlusconi to avoid accountability under the law. In fact, as the progression of the Court jurisprudence will show, the Court has been successively narrowing in on the mechanisms that the Prime Minister has been using to avoid criminal

The man who screwed an entire country. The Economist, 9 June 2011 <http://www.economist.com/node/18805327>. 155 See, for example: Sentenza N. 262 Anno 2009. 262/2009. C Cost. 2009.

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accountability for his extralegal actions. As time has progressed, the decisions of the Court have moved beyond the questions of immunity law into the realms of legitimate impediment and parliamentary function. In this light, it would appear that the Constitutional Court has consistently acted against Berlusconi in his attempts to remain outside the law. Despite this conclusion, however, one must still question the continued impunity of the Prime Minister. If the Constitutional Court has repeatedly struck down any laws or actions oriented towards Berlusconis immunity, how has it been that he has yet to face a certain sentence? Of course one option, as Berlusconi and La Forza argue, is that the political opposition has orchestrated the decisions issued by the courts in order to hurt his reputation in the public eye.156 On the other side, could this lack of results simply be due to a gap between the law as announced and the law as practiced? This dilemma will necessitate an examination of the causal mechanisms behind the inability to secure a conviction. Specifically, I will examine three different aspects of the Italian legal system that are involved in interpreting the immunity of Berlusconi: (i) diritto vivente (living law) as a practice exercised by the Constitutional Court that limits the interpretation of the Court to the specific challenged raised by lower court judges; (ii) the Italian legal system as based in civil law with a Kelsenian Constitutional Court that requires the Court to rule on every constitutional matter brought to it; and (iii) the unique statute of limitations laws detailed in the Italian Penal Code, and how it has been amended over time. When all three of these elements are considered, it becomes clear that a gap in the law allows someone with legislative power to effectively avoid the sentences of the courts, particularly in a manner that allows the Italian statute of limitations to take effect, to which the Constitutional Court chooses to subject itself.

In fact, on the day of the October 26th decision, Berlusconi reportedly called in to one of his privatelyowned news stations in order to downplay the sentence as a political move, saying, Ritengo che questa sia una sentenza politica, come la maggior parte dei processi che mi riguardano Si sono tenute 2666 udienze in questi anni su di me (I think that this is a political decision, as are most of the cases that concern me In all there are 2666 hearings that have been held in recent years in which I am involved). See: E una sentenza politica. Corriere TV. 26 Oct. 2012. Web. 14 Feb. 2013.

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Taken together the judgments of the Constitutional Court and the gap in the Italian legal structure we will see that negotiations are not limited to that which occurs between the political branches. On one hand, the Italian case is not simply a gap between the law in the books and the law in practice the rulings issued by the Constitutional Court do come into full effect when they strike an immunity law unconstitutional. The Court has also worked to negotiate with the legislature over the concept of a legitimate impediment to appearing in trials. Yet at the same time, the structure of the Italian legal system lends itself to rendering the point moot when a decision is finally reached and before a conviction is handed down. As a result, the facts on the ground Berlusconis alleged crimes brought before the court see little change, despite the Courts continued rulings against the norms protecting them. This reality, observable from the back-and-forth interactions between the legislature and the Court and their various competencies, has motivated action from interests groups outside the political branches, such as NGOs and opposing political parties, that have sought to correct this structural gap within Italian law so that Berlusconi may be held accountable for his actions.

Italian Jurisprudence on Berlusconis Immunity

As the picture above illustrates, the Berlusconi regime has been highly known for ducking the law, using both legal means as well as overt delay tactics. Less known, however, is the fact that the Italian Constitutional Court, to the extent possible, has been highly responsive to these attempts by Berlusconi to avoid accountability. In 2004 and 2009, the Court struck down two attempts by Berlusconis center-right coalition to pass blanket immunity laws for the top officials in the Italian government. Two years later, in 2011, the Court then struck an attempt by Berlusconi to streamline a process of delaying trials via a legitimate impediment. Such decisions show that the judicial system in Italy has been successful in making sure Berlusconi does not have a blank check to act as he wills. As a more detailed review of the jurisprudence of

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the Italian Constitutional Court will show, the Court has been successful in narrowing in on and striking down the mechanisms used by Berlusconi to maintain impunity. As implied above, the first set of Constitutional Court cases focus on interpretations of general immunity laws. The first of the landmark decisions was handed down on the 13th of January 2004. This case emerged from a June 2003 criminal proceeding against Berlusconi in the Tribunale di Milano, in which Berlusconi and Cesare Previti were charged with bribing and corrupting judges in previous not guilty rulings stemming as far back as the 1990s.157 In the lowest court proceedings, Berlusconi cited the Law of 20 June 2003, n. 140 also known as the Lodo Schifani which was argued as provisions for the implementation of Art. 68 of the Constitution as well as in the field of criminal cases against senior offices of State.158 The law itself, passed by Berlusconis coalition soon after the start of the lower court proceedings, immediately prevented the top five individuals in the Italian government il Presidente della Repubblica, il Presidente del Senato, il Presidente della Camera dei Deputati, il Presidente del Consiglio dei Ministri, il Presidente della Corte Costituzionale from being subject to criminal proceedings in progress at any stage, state, or for any offense relating to acts committed prior to the assumption of the office.159 Since the implementation of this law necessarily meant that the trial was suspended so long as Berlusconi was in office, the only recourse for the Tribunale di Milano was to attack the constitutionality of the law by submitting a challenge to the Constitutional Court. In the submitted challenge, the lower court judge argued that the Lodo Schifani was unconstitutional in three ways, submitting three connected constitutional challenges. The judge held that it violated Articles 3, 101, 112, of the Constitution by obstructing the obligations of the

For an account of the entire process, see: Gomez, Peter, and Marco Travaglio. E Continuavano a Chiamarlo Impunit. Rome: Editori Riuniti, 2007. While the account does have a clear slant, it nonetheless reviews the trials and alleged corruption in considerable detail. 158 Sentenza di 13-20 Gennaio 2004. 24/2004. C Cost. 2004. 159 Legge 20 giugno 2003, n. 140. Gazzetta Ufficiale n. 142 del 21 Giugno 2003.

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public prosecutor to institute criminal proceedings with equality under the law; Articles 3, 68, 90, and 96 in that it represented an inadequate implementation of parliamentary immunity that violated equality under the law; and Articles 24, 111, and 117 in the sense that the law creates a severe and non-proportional impediment to the exercise of judicial functions, violating the European Convention on Human Rights.160 In response to these claims, Berlusconi demanded that all three challenges be declared unfounded, as the Lodo Schifani represents a suitable implementation of Articles 90 and 96 of the Constitution, which recognize the that the heads of State are only subject to accountability for crimes when authorized by the Senate or the Chamber of Deputies, in conformity with norms of constitutional law.161 In considering the norms of constitutional law, the counsel for Berlusconi also cited Articles 116 and 132, which provide different forms of protection for other provinces due to political concerns. Drawing a parallel to parliamentary immunity, Berlusconi held that political concerns in the functions of parliamentary office necessitate a law that implements the norms contained in Articles 90 and 96 and represent a proportional response to the concerns raised by Article 3 of the Constitution.162 The decision handed down by the Constitutional Court accepted in part the constitutional challenge from the lower court, and tabled another part for later consideration. In considering the merits of the claim that the Lodo Schifani violated Article 3 of the Constitution, the Court considered the effects of the law insofar as it was automatic and applied to an indefinite period.163 In the former sense, the Court noted that the scope of the law, which suspends

24/2004. C Cost. 2004. For an English version of the Italian Constitution, see the copy provided on the Italian Senates website: <http://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf>. The main Articles relevant to this case Articles 3, 90, and 96 are as follows: Art. 3 states that all citizens have equal social dignity and are equal before the law; Art. 90 states that the President of the Republic is not responsible or the actions performed in the exercise of presidential duties, except in the case of high treason or violation of the Constitution; while Art. 96 states that The President of the Council of Ministers and the Ministers, even if they resign from office, are subject to normal justice for crimes committed in the exercise of their duties, provided authorisation is given by the Senate of the Republic or the Chamber of Deputies, in accordance with the norms established by Constitutional Law. 161 Ibid. 162 Ibid. 163 Ibid.

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proceedings for all conceivable crimes committed, and thus steps outside the constitutional prerogatives outlined by Articles 90 and 96 of the Constitution. The Court did, however, stress that Article 51 of the Constitution does permit public officials the time to complete their duties, suggesting the scope of a law that would be in conformity with Articles 90 and 96.164 In further considering the automatic nature of the law, the Court moved outside the scope of the original challenge, a move rarely taken by the Constitutional Court in its jurisprudence.165 The Court, in a somewhat paradoxical interpretation, noted that the automatic nature of the immunity results in a denial of various rights of the accused, including a right to defense (Articles 24 of the Constitution) and a right of the transferal of a case to civil courts (Article 75, para. 3 of the Penal Code).166 These violations related to the right to a defense effectively enabled the Court to conclude that the Lodo Schifani had indeed violated Article 3 of the Constitution. Further, the indefinite nature of the immunity, along with the possibility of subsequent suspensions of trials later on, violated the constitutional right to an effective judicial process (Article 111, para. 2 of the Constitution).167 In the final ruling, the Court declared the law unconstitutional on these grounds. Despite the decision, and the subsequent repeal of the Lodo Schifani, Berlusconi came out of the process unscathed. Due to Berlusconi having repeatedly complained about an inability to attend hearings due to his political commitments, the Tribunale di Milano had already decided to split the trial so that he may be tried separately from the alleged collaborator Cesare Previti,

Ibid. As will be discussed below when considering mechanisms causing impunity, the Italian Court practices the interpretation of living law, and accordingly restricts itself to interpreting and ruling on the scope of the constitutional challenge. See: Groppi, Tania. The Italian Constitutional Court: Towards a Multilevel System of Constitutional Review? Constitutional Courts: A Comparative Study. Ed. Andrew Harding and Peter Leyland. London: Willy, Simmonds, and Hill, 2009. Pp. 125-147. 166 24/2004. C Cost. 2004 167 Ibid.
165

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who was found guilty.168 On Berlusconis end of the trial, twelve years of appeals and delay would occur before the Prime Minister was fully acquitted by the Court of Appeals of Milan on April 27, 2007.169 While having been found innocent on the merits in this instance, the Lodo Schifani case set the stage for the repeated encounters between the Constitutional Court and Berlusconi. In the August of 2008, Berlusconis party passed Law No. 124 of 23 July 2008, also called the Lodo Alfano, which was substantially similar to the Lodo Schifani. According to the first section of the statute, any criminal proceedings against individuals which occupy the offices of President of the Republic, President of the Senate of the Republic, President of the Chamber of Deputies and President of the Council of Ministers shall be suspended from the time when the office or function is taken up until the end of the term in office. The suspension shall also apply to criminal proceedings for conduct prior to taking up the office or function.170 In most respects, the Lodo Alfano was identical to its predecessor. One important difference was that section two of the new law allowed for the accused to waive this right and continue trial. While not explicit, one can assume that this provision comes as a direct response to the ruling of the Constitutional Court in the 24/2004 judgment. With a right to waive the protection, the accused now has the potential to realize the right to defense and the right to an effective judicial

Gomez and Travaglio, 405-406. For coverage on the separation of the trials, see also: Arie, Sophie. Berlusconi Trial Outcome Delayed for Years by Court. The Guardian. 17 May 2003, Web, 16 Feb. 2013. <http://www.guardian.co.uk/media/2003/may/17/citynews.silvioberlusconi>. 169 Gomez and Travaglio, 408-410. 170 Gazetta Ufficiale n. 173 del 25 Luglio, 2008. Also cited in English in: Eliantonio, Mariolina, and Sascha Hardt. Thou Shalt be Saved (from Trial)? The Ruling of the Italian Constitutional Court on Berlusconis Immunity Law in a Comparative Perspective. European Constitutional Law Review. Vol. 7 (2011): pp. 17-39. Pp. 18-19. For the text of the law in Italian, see: Gazzetta Ufficiale N. 173 del 25 Luglio 2008. Aesinet. 2001. Web. <http://gazzette.comune.jesi.an.it/2008/173/1.htm>.

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procedure. Thus, the law mitigated many of the concerns expressed by the Constitutional Court in its previous interpretation of parliamentary immunity. Quite naturally, the law soon found itself subject to interpretation by the Constitutional Court. This referral to the Court came simultaneously from two lower courts, the Tribunale di Milano and the Tribunale di Roma, both of which were trials involving tax fraud and bribery.171 One high-profile case, which had already seen attempts to delay up to this point, involved allegations that Berlusconi had paid David Mills, a British lawyer, $600,000 to withhold incriminating evidence of business dealings during a 1997 trial.172 When the Lodo Alfano came into effect, both trials were suspended and, as before, the two lower courts had only one option to refer the matter to the Constitutional Court. In bringing the constitutional challenges to the Court, the tribunals brought forth two different arguments. According to the Tribunale di Roma, the Lodo Alfano, in that it suspends proceedings at all stages of the process, hampers their preliminary investigations, and thus represents a violation of Articles 3, 111, 112, and 138 of the Constitution.173 The Court quickly found this challenge unfounded, based on the fact that the investigations of the Tribunale di Roma were preliminary in nature, and thus were interpreted to not be subject to the Lodo Alfano at that point.174 Turning to the challenge raised by the Tribunale di Milano, the Court focused on the challenges focused on Articles 3 and 138 of the Constitution. In these questions, the Court reduced the constitutional challenge to two propositions: (i) laws referring to constitutional organs necessarily have constitutional status, and thus must be created by constitutional

262/2009. C Cost. 2009. Reuters. Italy: Berlusconi Trial to Proceed. New York Times. 21 June 2008. Web. 16 Feb. 2013. <http://www.nytimes.com/2008/06/21/world/europe/21briefs-BERLUSCONITR_BRF.html>. 173 262/2009. C Cost. 2009. 174 Ibid. In rejecting this challenge, the Court found that the interpretation of the referring judge contrasts with the literal wording of the provision and leads to results with contrast with the constitutional principle of reasonableness. It follows from this that the questions raised are inadmissible due to a lack of relevance, because the referring judge need not apply the provision, the constitutionality of which is doubted.
172

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processes, since they create exceptions from the principle of equality; and (ii) the contested law provides a privilege aimed towards the functioning of constitutional organs, not the regular process of the criminal trial.175 In deciding the case, the Constitutional Court held that both of these arguments were correct. Citing logic from the Lodo Schifani case, the Court made the following determination: the principle of equal treatment before the courts stands at the origin of the formation of a state governed by the rule of law (judgment No. 24 of 2004) the institutions providing protection mentioned do not only necessarily imply an exception to the said principle, but are also aimed at striking a delicate yet essential balance between the different branches of state, since they may have an impact on the political functioning of the various organs. This overall institutional architecture, inspired by principles of the separation of powers and their equilibrium, means that the legislation governing the privileges contained in the text of the Constitution must be understood as a specific legislative system, which is the fruit of a particular balancing and structuring of constitutional interests; and Parliament is not permitted to change this system either in peius or in melius through ordinary legislation.176 Following this interpretation, the Court decided that a law relating to parliamentary immunity, unless they comes as a strict implementation of current constitutional articles, must be enacted via the amendment process outlined in Article 138.177 Further, the Court held that since the Lodo

Ibid. Ibid. By this point, as Eliantonio and Hardt note, the Court had already responded to specific objections to this interpretation, including examples where ordinary law had in the past granted privileges. One salient example is the objection that the Court had not interpreted the challenge in this matter when deciding on the Lodo Schifani, implying that it was in fact permissible to enact immunity through ordinary legislation. The Court held that the ruling did not address that question due to the point being moot through the Lodo Schifani having already been declared unconstitutional; the fact that the issue did not come up does not imply its constitutional permissibility. See Eliantoni and Hardt, ftn. 9. 177 262/2009. C Cost. 2009.
176

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Alfano was not enacted as a constitutional amendment, it violated Article 3 by legislating an asymmetrical immunity from trials that violates the principle of equality. In violating these two constitutional articles, the Court handily struck down the Lodo Alfano. Despite having been denied immunity under an ordinary law for a second time, Berlusconi nonetheless remained immune from conviction. The Guardian provides a detailed account of the events that transpired following the Courts judgment. After the Lodo Alfano was declared unconstitutional, the trial resumed. Yet the prosecution and defense could not agree on when the alleged bribes would have taken place, causing further delays in a trial that had already been shelved due to the Lodo Alfano. On February 25th, 2012, the judge ruled that the statute of limitations had indeed passed, forcing an acquittal for the Prime Minister.178 Not all was for naught, however. In its judgment on the Lodo Alfano case, the Constitutional Court put forth a significant interpretation that severely limited the maneuvering space for Berlusconi. By deeming that all immunity laws necessarily have a constitutional character, the Court effectively prevented the Parliament from passing immunity laws as a means to delay trials.179 After this ruling, the character of the negotiations between Berlusconi and the Constitutional Court changed. As Berlusconi began to focus more on means of delay rather than securing parliamentary immunity, the Constitutional Court started to interpret the limits of immunity with regard to this changed strategy of Berlusconis. The mechanism for this shift was the invention of the legitimate impediment. As promulgated in Law No. 51 of 7 April 2010, also passed by Berlusconis coalition, the legitimate impediment law enables the Prime Minister to delay appearance in Court for up to six months at a

Kington, Tom. Silvio Berlusconi Case Thrown Out of Court. The Guardian. 25 Feb. 2012. Web. 17 Feb. 2013. <http://www.guardian.co.uk/world/2012/feb/25/silvio-berlusconi-bribery-case-court>. 179 Admittedly, the Italian Parliament still could enact an immunity law, since the Italian legal system follows civil law, and court rulings do not have a binding character. However, by readily establishing a logic that handily rules any such laws unconstitutional, the Constitutional Court expedited the process for striking down any future laws of a similar nature should they be enacted, thereby minimizing the impact of any such delay.

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time.180 The law, as the counsel for Berlusconi argued, represented a supplement to Article 420 of the Italian Code of Criminal Procedure, aimed at recognizing the existence of situations in which the conduct of governmental activity makes it absolutely impossible for the President of the Council of Ministers or for ministers to appear in court, since it would preclude the conduct of institutional activities not amenable to delegation.181 When the law was raised as a constitutional challenge, the Tribunale di Milano, in the midst of several Berlusconi trials involving tax fraud and underage prostitution that were facing delay, argued that the definition of a legitimate impediment contained in the contested legislation is so broad and generic so to amount to an absolute presumption of an impediment, regarded as a situation associated not with a contingent fact but with a permanent status, with the result preclusion of the courts ability to ascertain the actual existence of the impediment.182 Put another way, since the courts had no role in evaluating whether or not an actual impediment to appearing in trial exists, the Tribunale di Milano argued that the legitimate impediment law, as constructed, has similar enough effects to the previous immunity laws so as to be in violation of Article 138 of the Constitution. Other divisions of the Tribunale di Milano asserted that such effects also put the law in violation of Article 3 of the Constitution, in that it grants a favorable prerogative to the holders of government office via ordinary legislation.183 In deciding on this challenge, the Constitutional Court split the difference, yet ultimately declared substantial parts of the contested law unconstitutional. On one hand, the Court agreed that, in some cases, it may be necessary to balance the essential duties of State offices with the need for an effective trial, therefore striking a reasonable balance between the dual

Gazzetta Ufficiale N. 51 del 7 Aprile 2010. For the text of the law in Italian, see: Gazzetta Ufficiale N. 81 del 8 Aprile 2010. Aesinet. 2010. Web. <http://gazzette.comune.jesi.an.it/2010/81/1.htm>. 181 23/2011. C Cost. 2011. 182 Ibid. 183 Ibid.

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requirements of an expedited trial and the functional integrity of Parliament.184 However, when evaluating the fact that the law establishes a blanket impediment, the Court enumerated a substantial role in the courts over the legislature in determining the existence of an actual impediment: it is for the court to assess on the facts not only the actual existence of the impediment but also its absolute and current nature. With reference to the situation under examination, this implies in particular the power of the court to assess, on a case by case basis, whether the specific commitment averred by the President of the Council of Ministers actually gives rise to an absolute inability (including in the light of the necessary balancing operation against the constitutionally significant interest in conducting the trial) to appear in the proceedings185 Since the law, as stated, did not grant the courts this ability to review the existence of an impediment, the Court handily declared Articles 1(3) and 1(4) of the contested law to be in violation of Article 138 of the Constitution. The transition from immunity laws to legitimate impediments is significant, as it opened the door for the Constitutional Court to assert authority of the courts to determine whether or not parliamentary actions and privileges had been appropriately exercised in line with parliamentary functions, and provided the courts with much more power to respond to Berlusconis continued attempts at delaying trials. It also importantly represented a mediation over the issue of parliamentary immunity the Court granted that legitimate impediments to appearing at court may exist, but it would be up to the judge to determine if such an impediment actually exists. This power become especially salient after Berlusconi stepped down as Prime Minister in the November of 2011, meaning that he can no longer claim legitimate impediments as a means

184 185

Ibid, citing 263/2003. Ibid.

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to delay his pending trials. At the time, the remaining trials focused on tax fraud and underage prostitution. The conviction secured last October on the former charges represented a significant step forward, particularly given the continued battles against corruption and immunity brought before the courts. With the sentence on the latter case, a sex scandal termed the Bunga Bunga Scandal, to have been due in February 2013, it appeared that Berlusconis reign of impunity had reached an end. At least, that appeared to be the case, until Berlusconi announced in December of 2012 that he plans to seek re-election.186 One cannot help but to wonder whether this election bid is another ruse to postpone his trials. Indeed, in a controversial ruling, Berlusconis trial on the Bunga Bunga Scandal has been postponed by the Tribunale di Milano until after the election, due to the fact that his political campaign constituted a legitimate impediment to his attendance.187 For the time being, it remains to be seen whether an enforceable conviction remains on the table.

The Structural Gap in Italian Law

To date, Berlusconi has not seen one completed conviction, despite having reportedly attended 2,600 hearings over the past fourteen years. How can one explain the gap between the repeated rulings of the Constitutional Court, and the facts on the ground? The answer, I suggest, comes from a combination of three factors within the Italian legal system that, taken together, create a gap that is easily exploitable by someone with power in the legislature. These three factors are as follows: (i) the unique nature of the Italian statute of limitations, which is prone to

Lyman, Eric. Disgraced Ex-PM Berlusconi Seeks Comeback in Italy. USA Today. 11 Dec. 2012. Web. 17 Feb. 2013. < http://www.usatoday.com/story/news/world/2012/12/10/italy-berlusconimonti/1759417/>. 187 Reuters. Silvio Berlusconi Trial Postponed Until After Italian Election. The Guardian. 11 Feb. 2013. Web. 17 Feb. 2013. < http://www.guardian.co.uk/world/2013/feb/11/silvio-berlusconi-trial-italianelection>.

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abuse by whoever can delay trials for a sufficient time period; (ii) the Italian system being a civil law system, which does not rest on legal precedent and has a court that must respond to all challenges, facts that do not expedite the legal process; and (iii) the use of diritto vivente in Italian Constitutional jurisprudence, which greatly increases the time of a trial when it involves a question of constitutional importance, and represents the extent to which the Constitutional Court has fallen into complacency in maintaining competencies defined by tradition rather than law. While the first factor would require an efficient, streamlined judicial procedure in order to consistently issue convictions, the latter two factors represent means by which a case in the Italian system takes longer than one in other legal systems. I will consider each of these factors in turn, and note that, despite having the competency to change its practice with regard to the statute of limitations, the Court has refused to elaborate on how its rulings against mechanisms of immunity should have affected how the statute of limitations applies to Berlusconis cases. Thus, while the Court may have tailored its competencies to better address the underlying issue, it instead left the issues of implementation and enforcement to the political branches. The legal mechanism most relevant to the trials of Berlusconi is the statute of limitations in the Italian system. Outlined in Article 157 of the Italian Criminal Code, the statute of limitations is different in Italy in that it outlines the time limit within which the trial must be completed at all levels and a sentence handed down, or else the case is dropped.188 In 2005, the law was amended by the Law of 5 December 2005, n. 251, pushed through by Berlusconis coalition. The amended text changed the formula for calculating a maximum statute of limitations, changing the maximum to equal the maximum sentence for the crime as provided by

Osterhaus, Anja. Timed Out: Statutes of Limitation and Prosecuting Corruption in EU Countries. Transparency International. Nov. 2010. Web. 17 Feb. 2013. <http://archive.transparency.org/content/download/57085/912315/Statutes+of+Limitation_web.pdf>.

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law, with a minimum of six years for felonies and four years for misdemeanors.189 While the statute of limitations for most crimes remained unaffected, the new law conveniently lowered the maximum statute of limitations for bribery, the crimes for which Berlusconi faced trial at the time. After the 2005 law, Italy had the lowest maximum duration out of all of the European countries.190 With such a strict statute of limitations, the only effective means for the Italian judicial system to secure consistent convictions is through a streamlined judicial procedure with a low volume of cases. Yet, in reality, the Italian judicial system has neither of these qualities. Not only does the Italian legal system exercise civil law with a Kelsenian Constitutional Court, it also has a Court that employs a time-consuming method of interpretation, diritto vivente. I will briefly address each of these in turn. As mentioned in the second chapter, a civil law system has two major categories of differences from common law systems the non-binding nature of precedent, and the institution of a separate court for the review of constitutional matters. Also previously implied was the fact that both of these differences mean that civil law systems see many more cases than common law systems, particularly on the constitutional level. High case volumes have particularly been a problem for civil law constitutional courts, as these courts do not have the competency such as that enjoyed by the US Supreme Court to select a docket from the cases referred to them.191 Meanwhile, the lower Italian courts also suffer from a high caseload. This is in part due to the non-binding nature of precedent in civil law systems, which means that each case on a

Gazzetta Ufficiale n. 285 del 7 Dicembre 2005. Text of the law in Italian can be found at: Legge 5 dicembre 2005, n. 251. Parliamento Italiano. 5 Dec. 2005. Web. <http://www.camera.it/parlam/leggi/05251l.htm>. 190 Osterhaus 26-27. The data compiled in this report is from Nov. 2010, yet the problem nevertheless remains the same in Italy, particularly given the rate at which charges are being dropped due to having exceeded the statute of limitations. 191 As was mentioned in the previous chapter, the German Court has developed an institutional method of coping with the high volume of cases, and as a result can arrange its docket to focus on important issues or respond to political pressures. Italy, to my knowledge, does not have such an institutional structure, but rather demands through the living law process that the lower court judges argue on the merits of the constitutional challenge.

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separate legal issue must be tried separately. In another way, the high burden of the lower courts is also due to the inability of Italian officials to agree on a means to mitigate the problem. The Decree on mandatory mediation, on such attempt that was enacted on 20 March 2010, would have required mandatory mediation for certain types of disputes, such as insurance claims. However, the Italian Constitutional Court declared this law unconstitutional last October.192 Another attempt to curb this high caseload was through the Law of 5 December 2005, n. 251, the law that amended the statute of limitations. Yet as has been shown above, such a law clearly had other, less noble motives on the part of Berlusconis party. Another factor that contributes to the impunity of Berlusconi, one that is linked to the problems associated with Italy being a civil law system, is the time-intensive and restrictive mode of interpretation of the Italian Constitutional Court that of diritto vivente. Diritto vivente, or living law, most basically represents the view that, of all the interpretations possible of the text of a law, the court must primarily focus on that which has been previously interpreted in case law the law that lives in present legal interpretation.193 In Italian jurisprudence, this norm has been both developed in legal theory and reinforced through the structure and practices of the Constitutional Court when interpreting constitutional challenges. In theory, Italian legal scholars note that diritto vivente represents the present life of the legal norm, legitimated through the processes of institutions that employ legal interpretation in order to turn that norm from mere theoretical exegesis into a more determinate and applicable form.194 Since the institutions of law and the state are changing constantly, the interpretation that gains favor will naturally change over time. Further, since the living law is constantly changing, theorists argue that both jurisprudence and case law serve to justify and legitimate the

Cerasi, Francesco, Bruno Giuffr, and David Maria Marino. Italy: Constitutional Court Rejects Mandatory Mediation. DLA Piper. 24 Oct. 2012. Web. 17 Feb. 2013. < http://www.dlapiper.com/italyconstitutional-court-rejects-mandatory-mediation-10-24-2012/>. 193 Groppi, 132. 194 Resta, Eligio. Diritto Vivente. Diritto Vivente: Il ruolo innovativo della giurisprudenza. Ed. Alarico Mariani Marini and David Cerri. Pisa: Pisa Univ. Press, 2007. Pp. 73-83. Print. Pg. 74.

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interpretation, as it exists in the present. It is also argued that the standard of reasonableness at the level of the Constitutional Court hinges on the use of prior case law: The role of legal interpretation would be, then, that of the mark interpretation and application in which the living law is justified ex post. The same justification steps in with the decisions of the Constitutional Court, in which use is made of the metaphor of reasonableness, that is always read as something else (the principle of equality, for example) and that amounts to a true process of argumentation that can serve to legitimate or delegitimize a law.195 In practice, diritto vivente serves as an integral part of both the judicial structure and the interpretive processes of the Constitutional Court. As Tania Groppi notes, the average citizen can only access the Court via a posteriori review, often arising from a constitutional question in the case of a lower court.196 In accord with the theory of living law, this ensures that the topic of constitutional importance has seen some interpretation in the judicial process, and that a judge with legal training submits the constitutional challenge. Indeed, the challenge submitted to the Constitution must indicate the relevance and plausibility of the question, the law challenged, and the constitutional provision that it allegedly violates.197 To bolster the importance of prior case law on the issue, the Court focuses not on the issue in the abstract, but rather on the interpretation of the lower court constitutional review is limited to the question presented and must be carried out within the limit of the challenge.198 Not only does the Court ground its standard of reasonableness on interpreting the living law, its

Ibid 80. Translated from original: Il ruolo della giurisprudenza sarebbe, allora, quello della nota interpretazione, applicazione in cui il diritto vivente giustificazione ex post. La stessa giustificazione interviene nelle sentenze della Corte Costituzionale in cui si fa ricorso alla metafora della ragionevolezza, che sempre da leggere come qualche altra cosa (il principio duguaglianza, ad esempio) e che configura un vero e proprio procedimento argomentativo che pu servire tanto per legittimare quanto per delegittimare una legge. 196 Groppi 128-129. The Italian Court does have other means of access, but these apply primarily to disputes between regions, or branches of the government. 197 Ibid 128. 198 Ibid 129.

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decisions also focus on the interpretation of lower courts, rather than ruling on the abstract issue. This essentially means that, before the constitutional question has to be well formulated by the lower court, and submitted with a complete argument to the Constitutional Court before the latter body rules on the matter. Taken together, these unique aspects of the Italian legal system place the Italian Constitutional Court in a position that, in this case, limits its negotiative power with the legislature over immunity rights. This is clear when one considers how the Corte Costituzionale subjects itself to the statute of limitations, noting that its rulings of unconstitutionality do not apply, either retroactively or in future cases, to instances in which the statute of limitations has expired.199 Given that, as per the means of access to the Court, the statute of limitations may only be challenged once it is set to expire in a particular case, it seems that the Italian Constitutional Court is powerless to take issue with the very mechanism through which Berlusconis cases have been dropped. Another aspect of living law that is relevant to our consideration is the fact that all of this detailed interpretation necessarily takes time, during which the statute of limitations continues to expire. Each of the three cases on immunity and legitimate impediment presented to Constitutional Court added at least seven months to the duration of the case.200 And since most cases involving immunity are of a constitutional nature as the Court as ruled in the 262/2009 decision the process of diritto vivente, when combined with the problematic statute of limitations, exacerbates the problems faced in holding Berlusconi accountable. Taken together, this placement of the Italian Constitutional Court within the Italian legal system seems to render them powerless to address the problem with the statute of limitations.

The Italian Constitutional Court. Corte Costituzionale. Feb. 2009. <http://www.cortecostituzionale.it/ ActionPagina_324.do#titolo5_8>. 200 The 24/2004 decision took seven months, the 262/2009 decision took over a year, and the 23/2001 decision took nine months for the Constitutional Court to issue a ruling to the lower courts. Let us also not forget that the decision means that the lower case can resume it does not decide the lower case outright. See Groppi 133.

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However, as Tania Groppi notes, these restrictions on the competencies of the Court are largely based on practice: The powers of the Italian Constitutional Court and the process of constitutional review were regulated in the years immediately after the entry in force of the Constitution and have not changed much since then [t]he reason for this flexibility is to the fact that, unlike ordinary courts, the Constitutional Court has a much greater [discretion] in interpreting its procedure and practice thus allowing it to modify the latter in order to achieve a desired goal or to more fully implement constitutional values.201 In exploring this flexibility in changing practices for the sake of implementation, Groppi further notes that various types of judgments arise from the necessity, recognized by the Constitutional Court, to consider the impact its decisions have on the legal system and on other branches of government, in particular Parliament and the judiciary.202 In these immunity cases, then, it would not have been a stretch for the Court to elaborate on how the rulings against Berlusconis immunity and impediment laws would have affected the statute of limitations in his cases given that such an issue has an impact on the practices of the other branches in Berlusconis trials. Yet, as press coverage of the most recent decision shows, such elaboration never occurred.203 Such an account shows that, despite the Court having the flexibility to elaborate on this question in theory, it has instead stuck to its traditional circumscription of competencies, leaving the political branches to address the issue in practice.

Groppi 132. Ibid 133. 203 Povoledo, Elisabetta and Gaia Pianigiani. Automatic Immunity for Berlusconi Revoked. New York Times. 13 Jan. 2011. <http://www.nytimes.com/2011/01/14/world/europe/14italy.html >.
202

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A New Hope Enter Third Party Negotiation

As the current tennis match between the Court and Berlusconi shows, the latter has been winning, due primarily to the Courts refusal to change its position within the Italian legal structure, particularly in relation to Italys statute of limitations. As highlighted above, the competencies of the Court, as they presently stand, make evaluating any legislation related to the statute of limitations very unlikely. Although the Court could in theory adjust its competencies to better address the issue, it has in practice deferred to its perceived place within the overall issue. Given that this mode of legislation has been at the root of Berlusconis continued impunity, it would seem that the legislature has presently had the upper hand as the branches negotiate the issue of parliamentary immunity. However, as I will show below, the fact that the judiciary and legislature have been navigating this issue at length has had the effect of highlighting the statute of limitations, in combination with parliamentary immunity, as a fundamental issue area in Italian law. Nongovernmental organizations, social movements, and members of opposing political parties have caught onto this fundamental problem, and have all taken a role in promoting legislative reform. Given the results of the most recent Italian elections, these combined forces create a promising means of resolving the issue. On one level, the negotiations between the Court and Berlusconi have not gone unnoticed by monitoring organizations. Transparency International, one such group, took the liberty to narrow in on the flawed statute of limitations in Italy. In fact, in its 2010 analysis of comparative statutes of limitations in Europe, Transparency International had only negative conclusions from evaluating the Italian practice: Lengthy proceedings and SoL [statute of limitations] are highly controversial issues in Italy. The analysis found that the current regime shows serious weaknesses. With one in 10 criminal proceedings being dismissed due to SoL

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(no data is available specifically for corruption-related cases), the current SoL regime constitutes a significant reason for impunity The fact that proceedings can prescribe after the first instance, even if an offender has already been found guilty, is particularly striking.204 With Berlusconi having been at the helm of deciding any reforms to the already-problematic statute of limitations, and with the Court not being more flexible with its competencies to better address the issue, it comes as no surprise that many of his cases have been dropped due to the statute of limitations having been exceeded. The reports of NGOs such as Transparency International on the topic, while not themselves the source of further negotiation, seem to have had some influence on an emerging movement against the antics of Berlusconi, aptly called antiberlusconismo. The Purple Movement, a social embodiment of this ideological thread, has been staging rallies against Berlusconi since 2009, in an effort to unite Italians of differing political ideologies against the former Prime Minister.205 The new political landscape following the 2013 election also provides a promising yet extremely precarious balance of political parties that are in opposition to Berlusconis center-right coalition. While Berlusconis party received six percentage points more than expected in the election, his party fell far short of the majority required in both houses to maintain control over the legislature, and thus maintain his scheme of impunity.206 The leading democratic coalition headed by Pier Luigi Bersani, which won a majority in the Chamber of Deputies and a plurality in

Ibid 41-42. Duncan, Kennedy. Purple People Challenge Berlusconi. BBC News. 13 Mar. 2010. <http://news.bbc.co.uk/2/hi/europe/8565265.stm>. For a sociological perspective on the movement, see: Coretti, Lorzeno. The Purple Movement: An Overview of Berlusconis Italy through the lenses of Social Movement Theory. Communication Management Quarterly. Vol. 22: 2012, pp. 5-34. 206 Ungovernability Wins. The Economist. 2 Mar. 2013. <http://www.economist.com/news/europe/21572783-result-has-come-bombshell-italy-and-across-eurozone-ungovernability-wins>.
205

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the Senate,207 immediately took the prospect of a coalition off the table. As CNN reported on March 20th, the platform of Bersanis party included judicial reforms that reverse legislation passed when Berlusconi held office, including expanding statutes of limitations on financial crimes and stripping political leaders of immunity Berlusconi has indicated that he does not agree with Bersani's judicial and criminal reforms and that he would not work with the center-left as long as those items are on the agenda.208 Meanwhile, the President has urged Bersani to look elsewhere to form a majority in the legislature, including the other political parties and other outlets, including social unions.209 Mario Monti, the most recent Prime Minister and the recipient of just over 10% of the vote and 6% of the seats in Senate, had considered the idea of forming a coalition with Bersani prior to the election, suggesting common ties against Berlusconis regime.210 As of today, however, the election, and with it the future of the Italian Parliament, remains uncertain. What seems certain, however, is the role that the shifting coalitions has taken in Berlusconis ability to form a majority. Of the other three parties that hold a significant number of seats, none of them seem to be protesting the continuation of his trials involving tax fraud and sex scandals, and none of them are willing to give him a majority-granting coalition.211 Without a majority in Parliament, there no longer stands a guarantee that Berlusconi will maintain immunity. Thus, it seems that the Italian people have spoken or at least so long as the three other parties form some majority-attaining coalition. Otherwise the people may very well have to speak again in the coming future.

Ibid. Nadeau, Barbie L. Italian Political Leaders Hope to Bring Direction to a Government at Sea. CNN. 20 Mar. 2013. < http://www.cnn.com/2013/03/20/world/europe/italy-government-uncertainty>. 209 MacKenzie, James and Barry Moody. Italy President Asks Bersani to See if Can Form Government. Reuters. 22 Mar. 2013. < http://www.reuters.com/article/2013/03/22/us-italy-voteidUSBRE92L0IG20130322>. 210 Cecci de Rossi, Martina. Elezioni 2013, Mario Monti rassicura Pier Luigi Bersani sull'antiberlusconismo ma rilancia la sfida sui programmi. LHuffington Post. 9 Jan. 2013. <http://www.huffingtonpost.it/2013/01/09/elezioni-2013-mario-monti_n_2441331.html>. 211 Rossi, Sara. Italy center-right lawmakers protest against Berlusconi trial. Reuters. 11 Mar. 2013. < http://www.reuters.com/article/2013/03/11/us-italy-berlusconi-idUSBRE92A0T720130311>.
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The Italian Experience Compared

Before drawing comparisons to other jurisprudences, it would first be beneficial to review the case progression in negotiative terms, both as a means of showing that the Italian case constitutes constitutional negotiation, as well as to summarize the developments presented in this chapter. Parliamentary immunity first became an issue when the center-right coalition passed the Lodo Schifani, which, when presented to the Constitutional Court in the context of one of Berlusconis criminal trials, was summarily struck down by the Court. In response, the legislature enacted the Lodo Alfano, which was largely similar to the previous law, yet allowed the accused to waive his or her right to defense, thus addressing the interpretive concern raised by the Court in the previous case. In being presented with this law in the context of another criminal trial, the Court again struck down the law, and then continued to determine that all rights of immunity have a constitutional character, and thus cannot be implemented through ordinary law. In response to this ruling, Berlusconi shifted gears, and passed laws to implement a new concept, that of the legitimate impediment. The Court split the difference with this new mechanism, acknowledging the potentially legitimate impediment due to the duties of public office while simultaneously empowering the judiciary to decide whether such an impediment exists. Thus, from a constitutional standpoint, the provisions saw a moderation from both sides over time. During this whole process, however, the clock had been ticking on the statute of limitations, which the Berlusconi regime had altered on several occasions in a manner that benefitted the former Prime Minister. However, given that the Constitutional Court subjects itself to the statute of limitations, and has refused to elaborate on how its decisions would affect the statute of limitations in Berlusconis trials, it would appear that the legislature and judiciary were negotiating on an uneven footing all along. It would therefore take the participation of periphery actors in this case NGOs and the mobilization of social movements against the Berlusconi

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regime to motivate opposing political parties to develop platforms that advocate judicial reforms that would hold Berlusconi accountable. When considering the Italian case in terms of constitutional negotiation, it is clear that this example required the intervention of a periphery actor, due primarily to the unique and rather self-enforced placement of the Italian Constitutional Court in relation to other political actors. It was only through a change in Parliament that the needed judicial reforms would ever be achieved, and such a change in the composition of the Parliament required shifts in the attitudes of constituent voters. Both the Italian case and the Suresh exception in Canadian jurisprudence represent the two means by which periphery actors can take an active role in the negotiations over constitutional issues. While the two cases were similar in their use of third parties, these two instances had some differences. With the Suresh exception, the need for periphery actors came about due to the Supreme Courts deference to the executive, a deference that technically transgressed prior commitments to international norms. By contrast, the Italian case saw no deference on part of the Constitutional Court over the issue of parliamentary immunity. Rather, the Court left the question open as to how the unconstitutional ruling would affect the statute of limitations in Berlusonis trials. The legislature, then, at the time controlled by Berlusconis center-right coalition, refused to enact the reforms that would have allowed for the effective implementation of the Courts decisions against Berlusconis immunity. This nuanced form of non-enforcement on part of the legislature required the action of periphery actors in the manner described above. In this sense, the Italian case also bears some resemblance to the negotiations over habeas rights seen in the United States. As Scheppeles account showed, new deference was marked by a gap between right and remedy. While the Supreme Court announced a sweeping notion of rights of habeas corpus, on the ground the situation of the Guantnamo detainees. Likewise, while the Italian Court consistently ruled against rights to immunity enacted by the legislature, it

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refused to elaborate on how the rulings would affect the practical considerations in the trials namely the statute of limitations. Berlusconi was then able to maintain impunity by repeatedly delaying and appealing decisions such that the statute of limitations, reduced by his legislature on several occasions, expired. The Italian case thus presents a similar gap between right and remedy, although in a more nuanced sense of the expression.

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Split Audience Negotiation Das Bundesverfassungsgericht

The citizens claim to democracy, ultimately rooted in human dignity, would collapse if Parliament abandoned core elements of political self-determination and thus permanently deprived citizens of their democratic possibilities of influence. Das Bundesverfassungsgericht, 7 Sept. 2011

With the ESM judgment the Court abandoned its long-established position that there were certain core areas of national sovereignty which required that the Bundestag the German Parliament retained its budgetary autonomy. Now nothing seems non-negotiable. Dr. Gunnar Beck, 22 Sept. 2012

While the Italian courts were determining the culpability of Berlusconi last fall, the German judiciary was addressing a rather different issue. Last September, the Bundesverfassungsgericht, also known as the Federal Constitutional Court of Germany (FCC), struck down an injunction against the ratification of the European Stability Mechanism (ESM), thereby allowing the German government to sign off on contributing a maximum of 190 billion to the Eurozone bailout efforts, with subsequent changes or contributions to be at the discretion of the German Parliament.212 Together, such a total contribution represents over sixty percent of the countrys reported budget for 2013.213 German government officials and economists praised the decision, while the value of the Euro surged to its highest since that previous summer.214 Despite such political praise, however, one must question how this decision squares with the balance of powers within the German constitutional order. Dr. Gunnar Beck, a EU lawyer and legal philosopher, criticizes the decision

Green Light for ESM: German Court OKs Permanent Bailout Fund with Reservations. Das Spiegel. 12 Sept. 2012. Web. 21 Feb. 2013. <http://www.spiegel.de/international/germany/german-high-courtoks-permanent-bailout-fund-with-reservations-a-855338.html>. 213 Bloomberg reports the 2013 German budget to be 303 billion. See: German Parliament Approves 2013 Budget Despite Risk to Deficit. Bloomberg. 23 Nov. 2012. Web. 21 Feb. 2013. <http://www.bloomberg.com/news/2012-11-23/german-parliament-approves-2013-budget-amid-risk-todeficit.html>. 214 Das Spiegel, 12 Sept. 2012.

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on part of the FCC, claiming that the Court has become a compromised tool of the German government.215 Many other constitutional scholars share similar views, and were taken by surprise when the judgment was issued last fall. Has this most recent deference on the part of the FCC been indicative of politicization? Has the Court indeed been politically compromised, as Beck seems to think? Such questions necessitate an examination of the German Constitutional Court, and its complicated relationship with the continued integration of the European Union. In examining this relationship, I will show that if we approach this issue from the lens of judicial negotiation, stepping back from that singular case and assessing the Courts take on the issues overall, one can see that the Court has not become the political tool that many critics think it has. Approaching the topic from this angle will require me to draw from the interpretations offered by the Court from the 1974 Solange I case through this most recent 2012 decision on the ESM. In examining this progression of cases, I will emphasize how the 2011 Greece Bailout decision represents an important transition in the issues over which the Court negotiated the terms of EU integration. While the cases before represented ideological conceptions of Germanys relationship which EU integration, the judgments issued after the Eurozone crisis had started began to take on a more political character as the constitutional issues bordered on political question of sovereignty, as expressed through budgetary autonomy. With this transition in the types of issues faced by EU integration, I will then argue that such a transition provided the FCC with the opportunity to split the parties with which it negotiates. Ideologically, the German Court has consistently negotiated with the ongoing EU integration efforts, as the institutions of the Union actually bolster the most fundamental rights promulgated by the Basic Law. Once faced with the practical, and rather political,

Beck, Gunnar. The German Constitutional Court no longer takes itself seriously, but Germans still believe in the Bundesbank. EUtopia. 22 Sept. 2013. Web. 4 Feb. 2013. <http://eutopialaw.com/2012/09/22/the-german-constitutional-court-no-longer-takes-itself-seriously-butgermans-still-believe-in-the-bundesbank/#more-1477 >.

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implementation of these integration efforts, however, the Court specifically empowered to the German Parliament to further negotiate terms of sovereignty in budgetary terms. Put another way, the German Court has negotiated with two audiences ever since the Greece Bailout decision after this case, it: (i) continued defer to EU integration in theory, while (ii) starting to invoke the Bundestag and Bundesrat as an audience in the negotiations, one that has the power to define the practical boundaries of national sovereignty. Importantly, I will also establish that this decision has roots dating back to the Maastricht decision in 1993, demonstrating the applicability of constitutional negotiation as an evaluative concept in this case. While having an identical effect in practice, this changed audience of judicial negotiation on part of the FCC shows that the German Court is not ready to hand the European Union a blank check to expand its competencies. Rather, the FCC stands against handing sovereignty over to European institutions, yet will expect the German Parliament to fill in the blanks on what exactly handing sovereignty over means in practice.

German Jurisprudence on EU Integration

The tensions between the German Court and EU integration efforts date all the way back to the 1974 Solange I case, where the Constitutional Court ruled on integration before the EU was actually a union. In the context of Costa v. ENEL the 1964 case in which the European Economic Community (EEC) asserted legal supremacy in the context of any conflict between national and European law216 Solange I established a German reservation against this declared

For the text of Costa v. ENEL, see: 6/64, Flaminio Costa v. ENEL, 1964, ECR 585, found at <http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61964CJ0006:EN:PDF>.

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EEC supremacy. Specifically, the decision established German supremacy over any conflicts that may emerge between European and German law.217 As the European Community deepened, and further elaborated a doctrine for the protection of fundamental rights, the FCC moderated its position on legal supremacy. With the Solange II case of 1983, the Court decided that so long as the Community ensured protection of basic rights in accordance with the German constitution, it would no longer exercise its jurisdiction to decide on EEC secondary legislation.218 As Dr. Gunnar Beck points out, this decision necessary implies that the FCC still retains the jurisdiction to evaluate European legislation Solange II therefore did not affect the substance of the FCCs judgment in Solange I, namely that the power of the national government to transfer sovereign rights extends only so far and no further than is compatible with the Basic Law.219 Put another way, the theoretical stance of the Court remained constant, while, in practice, the Court conditionally allowed the practices of the EEC to continue.

The Maastricht Decision

What seemed to be a settled matter exploded once the European Union began to take shape. When the Treaty of Maastricht faced ratification in 1993, several German members of the

BVerfG 73, 339, 29 May 1974. Summary of the decision can be found in German at: Internationales Recht in der Verfassungsbeschwerde und in der Grundrechtsordnung. Universitt Bonn. <http://jura.unibonn.de/fileadmin/Fachbereich_Rechtswissenschaft/Einrichtungen/Lehrstuehle/Oerecht3/Lehrstuhlinhaber/ Die_gemeinschaftsrechtliche_Perspektive_01.pdf>. 218 BVerfGE 73, 339, 22 Oct. 1986. A fully translated version of the case can be found at: Institute for Transnational Law. School of Law, University of Texas at Austin. 1 Dec. 2005. Web. 22 Feb. 2013. <http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=572>. Dr. Gunnar Beck also provides an account of this case progression, beginning with the Solange cases, which can be found at: The German Constitutional Court versus the EU: self-assertion in theory and submission in practice Euro Aid and Financial Guarantees, Part 1. EUtopia Law. 24 Oct. 2011. Web. 12 Jan. 2013. <http://eutopialaw.com/2011/10/24/%E2%80%9Cthe-german-constitutional-court-versus-the-eu-selfassertion-in-theory-and-submission-in-practice-%E2%80%93-euro-aid-and-financial-guarantees-part-1/>. While future blogs cover a similar docket of cases, my account highlights different aspects of each decision as I draw a conclusion less critical than Dr. Beck. For purposes of comparison, however, I will cite the blogs of Dr. Beck where appropriate. 219 Beck, Part 1.

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European Parliament brought the matter of a European Union before the FCC. In their constitutional complaints, the petitioners primarily alleged that a European Union would violate Article 38 of the Basic Law, which guarantees every citizen the right to democratically legitimate representation in the Federal Parliament and protects the right to participate in the exercises of State power.220 Assuming this violation, the petitioners further argued that such a treaty indirectly diminishes the realization of rights contained in Articles 1.1, 2.1, 5.1, and 9.1 in conjunction with Articles 21.1, 12.1, and 14.1.221 One petitioner states that these violations are demonstrated most clearly by the monetary union proposed by the Treaty of Maastricht. In forcing German citizens into a common currency from which it may not withdraw, the treaty, as petitioner contends, renders fiscal policy as no longer subject to constitutional complaint, and a matter on which Germany can be overruled by other European institutions.222 In deciding on the constitutionality of the Maastricht Treaty, the Constitutional Court stressed the uncertain nature of the direction of European integration, given by its prescriptive description of the democratic legitimation that integration must continue to uphold: The important factor is that the democratic foundations upon which the Union is based are extended concurrent with integration, and that a living democracy is maintained in the Member States while integration proceeds. If too many functions and powers were placed in the hands of the European inter-

BVerfG 89, 155, 12 Oct. 1993, at 37. Article 38.1 of the Basic Law reads: Members of the German Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience. For the text of the German Basic Law, see: Basic Law for the Federal Republic of Germany. Deutscher Bundestag. 2010. <https://www.btg-bestellservice.de/pdf/80201000.pdf>. 221 Ibid, at 40-41. Importantly, the petitioners argue that since citizens have a diminished access to the exercise of State powers, they necessarily have a diminished guarantee of protection for the fundamental rights normally protected by the branches of State. Articles 1, 2, 5, and 9 refer to the rights of dignity, development of personality, freedom of expression, and freedom of association, respectively. Articles 12, 14, and 21 refer to the rights of occupational freedom, property, and the formation of political parties, respectively. See: Basic Law for the Federal Republic of Germany, at supra, note 219. 222 Ibid, at 42. The specific constitutional complaints raised other issues. Yet for the sake of conciseness, I will focus on only those considered in detail by the Court, as well as those that become salient with future cases.

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governmental community, democracy on the level of the individual States would no longer be able to convey adequately that legitimation of the sovereign power exercised by the Union All of this leads to the conclusion that the German Federal Parliament must retain functions and powers of substantial import.223 In attempting to define the extent to which an unconstitutional transfer of sovereignty would take place, however, the FCC was only able to cite Article 23.1 of the Basic Law, which permits the realization of a unified Europe.224 Holding Articles 38.1 and 23.1 together, the Court determined that the former is only violated when the transnational organization established, in the continued process of integration, oversteps the legally sufficient and precise limits accorded to it.225 In leaving this possibility that the EU may overstep its bounds in determining some form of selfautonomy open, the Court implied some continued power to evaluate whether the integration of the EU continues the uphold the democratic legitimation through the competencies of sovereign States, a power retain by State institutions under the principle of subsidiary.226 Indeed, the Court mentions that such membership may, however, be terminated by means of an appropriate act

Ibid, at 100. The original text is as follows: Entscheidend ist, da die demokratischen Grundlagen der Union schritthaltend mit der Integration ausgebaut werden und auch im Fortgang der Integration in den Mitgliedstaaten eine lebendige Demokratie erhalten bleibt. Ein bergewicht von Aufgaben und Befugnissen in der Verantwortung des europischen Staatenverbundes wrde die Demokratie auf staatlicher Ebene nachhaltig schwchen, so da die mitgliedstaatlichen Parlamente die Legitimation der von der Union wahrgenommenen Hoheitsgewalt nicht mehr ausreichend vermitteln knnten... Aus alledem folgt, da dem Deutschen Bundestag Aufgaben und Befugnisse von substantiellem Gewicht verbleiben mssen. See: Wegen, Gerhard and Christopher Kuner. Germany: Federal Constitutional Court Decision Concerning the Maastricht Treaty. 33 I.L.M. 388, 1994. 224 Ibid, at 93. The entirety of Article 23.1 of the Basic Law reads: With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To this end the Federation may transfer sovereign powers by a law with the consent of the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law, or make such amendments or supplements possible, shall be subject to paragraphs (2) and (3) of Article 79. Article 79 refers to the process of amending the Basic Law. See: Basic Law for the Federal Republic of Germany, cited at supra, note 219. 225 Ibid, at 106 and 116. 226 Ibid, at 158-161.

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being passed, and continues to leave the Parliament with the opportunity to invoke an exitoption should the EU develop an unconstitutional amount of sovereignty down the road.227 In continuation of its position in the Solange II decision, the Court further asserted a form of ultra vires review on the implementation of EU laws by state institutions. When hypothesizing on the possibility of the EU to extend its competencies in an unconstitutional matter, the FCC warned that laws passed in this situation would be struck down by constitutional review: If, for example, European institutional or governmental entities were to implement or to develop the Maastricht Treaty in a manner no longer covered by the Treaty in the form of it upon which the German Act of Consent is based, any legal instrument arising from such activity would not be binding within German territory. German State institutions would be prevented by reasons of constitutional law from applying such legal instruments in Germany.228 Implicitly, the Court here established itself as the final authority in determining whether the transfer of powers to EU organs had been approved by the Bundestag, adequately respect fundamental rights, and are sufficiently and constitutionally certain.229 Thus, while allowing EU integration efforts to continue with the effect of the decision, the Courts analysis of the Treaty of Maastricht provided an opportunity to bolster domestic competencies in the event that integration overstepped the detailed boundaries outlined in the treaty.

Ibid, at 112. Translated from original, which reads: diese Zugehrigkeit aber letztlich durch einen gegenlufigen Akt auch wieder aufheben knnten. 228 Ibid, at 106 (emphasis added). Translated from original: Wrden etwa europische Einrichtungen oder Organe den Unions-Vertrag in einer Weise handhaben oder fortbilden, die von dem Vertrag, wie er dem deutschen Zustimmungsgesetz zugrunde liegt, nicht mehr gedeckt wre, so wren die daraus hervorgehenden Rechtsakte im deutschen Hoheitsbereich nicht verbindlich. Die deutschen Staatsorgane wren aus verfassungsrechtlichen Grnden gehindert, diese Rechtsakte in Deutschland anzuwenden This analysis is also provided in: Meessen, Karl M. Hedging European Integration: The Maastricht Judgment of the Federal Constitutional Court of Germany. Fordham International Law Review. Vol. 17(3): 1993, pp. 511-530. Pp. 520-524. 229 Dr. Beck also outlines a simple conception of ultra vires review in: Beck, Gunnar. The German Constitutional Court versus the EU: self-assertion in theory and submission in practice Euro Aid and Financial Guarantees, Part 2. EUtopia Law. 25 Oct. 2011. Web. 13 Jan. 2013. <http://eutopialaw.com/2011/10/25/the-german-constitutional-court-versus-the-eu-self-assertion-in-theoryand-submission-in-practice-%E2%80%93-euro-aid-and-financial-guarantees-part-2/>.

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Finally, the FCC, in deciding on the Maastricht Treaty, also entertained the complaints that the establishment of a single monetary union would potentially undermine the protection of rights enumerated by Articles 2.1 and 14 of the Basic Law.230 In considering this issue, the Court held that in ratifying the Maastricht Treaty, the government is simply paving the way for further integration into a community of laws, rather than subjecting itself to an uncontrollable process inevitably tended towards monetary union.231 Further, the FCC concluded by noting the inherently political nature of deciding on the details of a monetary union: The question raised, therefore, is a political one, rather than that of constitutional law. The decision to agree upon monetary union and to implement it without at the same time or immediately thereafter entering into political union is a political decision for which the relevant governmental institutions must assume political responsibility Within the limits of what is permissible under constitutional law, political responsibility must be assumed in turn for this decision.232 Thus, in its addressing of the risks of a monetary union, the Court left the specifics of the process to political institutions, subject to broad limits within constitutional law. As we will see, this will become highly relevant in future decisions once the Eurozone crisis forces the Court to address the practical concerns of financial integration. For now, though, it is clear that the German Constitutional Court, up through its decision on the Maastricht Treaty, both simultaneously allowed European integration and asserted its authority to have the last word on constitutional issues down the road. Such constitutional issues

See supra, note 220. BVerfG 89, 155, 12 Oct. 1993, at 146. 232 Ibid, at 151. Translated from original: Hiermit wird indes keine verfassungsrechtliche sondern eine politische Frage aufgeworfen. Die Whrungsunion ohne eine gleichzeitige oder unmittelbar nachfolgende politische Union zu vereinbaren und ins Werk zu setzen, ist eine politische Entscheidung, die von den dazu berufenen Organen politisch zu verantworten ist... Diese Entscheidung ist dann wiederum - im Rahmen des verfassungsrechtlich Zulssigen - politisch zu verantworten.
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clearly came when the Court was called to examine the next step of EU integration, proposed by the Treaty of Lisbon.

The Lisbon Decision

In substance, the German Court faced largely the same issues as had been confronted in the Maastricht decision. The constitutional complaints in response to the treaty, which sought an injunction to halt the process of ratification, were filed on behalf of professors, academics, and over fifty members of the German Bundestag. In seeking the injunction, the legislators challenged the contents of the treaty itself, as well as an accompanied law, the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Extending Act).233 Regarding the former, the petitioners held that the treaty violates Article 38 the Constitution, which upholds the principle of democratic legitimation.234 Under objections related to the same article, the complainants argue that the Lisbon Treaty transgresses the boundary of what the principle of sovereign statehood permits as regards the transfer of sovereign powers, arguing that Lisbon represents an overstep in the process that had proceeded from the Maastricht Treaty.235 Related to the Extending Act, the parties submitting the complaint claim that the law violates the democratic principle by creating the possibility of a scenario in which the German Bundestag would be forced to bring a subsidiary action against the will of the majority, thereby violating Article 38 of the Constitution.236

BVerfG, 2BvE 2/08, at 99. Ibid, at 100-107. 235 Ibid, at 112. 236 Ibid, at 127. Specifically, the petitioners argue that The German Bundestag would be deprived of its right of opposition pursuant to Article 48.7(3) Lisbon TEU in those cases in which the focus of the European Councils initiative refers to concurrent legislation or in which no clear priority can be ascertained. As in the Maastricht decision, the Court faced many more objections from within the specifics of the constitutional complaints, yet these were either immediately declared unfounded, or stand as subsidiary to the violation of Article 38.
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In a manner similar to the Maastricht decision, the FCC immediately reduced the issue to the principle of democratic legitimation, in light of the openness to European integration established by Article 23.1 of the Constitution. Yet unlike the Maastricht decision, the Court used a much stronger interpretation of both Articles that seemed on first glance to pull the ruling in two directions. On one hand, the Court grounds its interpretation on a very expansive view of Article 23.1, claiming that: The constitutional mandate to realise a united Europe, which follows from Article 23.1 of the Basic Law and its Preamble means in particular for the German constitutional bodies that it is not left to their political discretion whether or not they participate in European integration. The Basic Law calls for European integration and an international peaceful order. Therefore, not only the principle of openness towards international law, but also the principle of openness towards European law applies.237 Between the two decisions, the Court essentially went from claiming that Article 23.1 permits the realization of a unified Europe, to declaring that the same Article requires it. Such an increased amount of approval to EU integration, however, was met with an equally strong set of boundaries to integration, as well as competencies through which German bodies can determine if integration has gone too far. In establishing these mechanisms, the FCC began by stating that [t]he Basic Law does not authorise the German state bodies to transfer sovereign powers in such a way that their exercise can independently establish other competencies for the European Union. It prohibits the transfer of competence to decide on its

Ibid, at 225. The original version reads: Der aus Art. 23 Abs. 1 GG und der Prambel folgende Verfassungsauftrag zur Verwirklichung eines vereinten Europas bedeutet insbesondere fr die deutschen Verfassungsorgane, dass es nicht in ihrem politischen Belieben steht, sich an der europischen Integration zu beteiligen oder nicht. Das Grundgesetz will eine europische Integration und eine internationale Friedensordnung: Es gilt deshalb nicht nur der Grundsatz der Vlkerrechtsfreundlichkeit, sondern auch der Grundsatz der Europarechtsfreundlichkeit.

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own competence.238 In setting this so-called Kompetenz-Kompetenz limit to integration, the Court began to specify certain means through which it can determine if integration efforts had extended into unconstitutional territory ultra vires review on one hand, and identity review on the other. While ultra vires review had first emerged in the Maastricht decision, the concept of identity review was entirely novel.239 In this latter form of review, the Court contends that the Basic Law requires a restriction of the transfer and exercise of sovereign powers to the European Union in a predictable manner, particularly in central political areas of the space of personal development and the shaping of living conditions by social policy.240 Such a requirement creates substantial policy matters into which European policy may not cross, including (i) decisions on criminal law, (ii) the monopoly on the use of force, (iii) fundamental decisions on public revenue and expenditure, (iv) the shaping of living conditions, and (v) policy issues of a cultural interest, such as areas of family law, the education system, and laws on religious communities.241 Barring these restrictions, the FCC decided that the Lisbon Treaty falls into line with Articles 23.1 and 38 of the Constitution. Turning to the Extending Act, the Court agreed with the arguments submitted by the petitioners. Yet in rejecting the law, the German Court focused on the issues of specificity. Arguing that the law violates Article 23.1, the FCC explained that [t]he Extending Act does not comply with these requirements in so far as the Bundestag and the Bundesrat have not yet been accorded sufficient rights of participation in European lawmaking and treaty amendment

Ibid, at 233. The original reads: Das Grundgesetz ermchtigt die deutschen Staatsorgane nicht, Hoheitsrechte derart zu bertragen, dass aus ihrer Ausbung heraus eigenstndig weitere Zustndigkeiten fr die Europische Union begrndet werden knnen. Es untersagt die bertragung der KompetenzKompetenz. 239 Ibid, at 241. See supra, note 227, for the implicit reference in the Maastricht decision. In a way, this statement of the ultra vires review is stronger, as it specifically invokes the authority of the Constitutional Court to intervene, rather than implying that constitutional law would render the unconstitutional European laws as inapplicable to the German system. 240 Ibid, at 251. 241 Ibid, at 252. These legal areas are also listed at: Beck, pt. 2. Beck goes further to contend that these five areas create a sixth area of budget autonomy, yet I would instead consider autonomy over the budget as a prerequisite to maintaining all five of these social spheres. This point is further discussed below in context of the Greece Bailout decision.

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procedures.242 The Court thus postponed the ratification of the Lisbon Treaty until the Parliament re-drafted a more specific Extending Act that better reflects the required rights of participation of the legislative bodies in the process of European integration.243 In some ways, the negotiative decision shown in the Lisbon decision echoes that of Maastricht. Within the four corners of the same decision, the Court simultaneously enabled the continuation of European integration while asserting its continued authority of having the administrative last word on whether integration efforts remain in compliance with the Basic Law. Likewise, in both decisions, the German Court empowered other the legislature to have a role in deciding the politically specific aspects of integration while in Maastricht the political institutions were left to decide the specifics of the monetary union, Lisbon charged them with enumerating, through the Extending Act, the extent to which they would have a role in shaping European institutions. Yet, as aforementioned, the approval afforded to EU integration in Lisbon was much more polarized in that the Court more fervently established a requirement to integration under Article 23.1, while at the same time establishing a wider and more specific set of means through which the FCC or the Bundestag could intervene in European matters if required. The remaining cases that involve EU integration do so in a substantially different way. Rather than questioning whether EU integration is compatible with the German Constitution in theory, the constitutional complaints that follow address the extent to which Germany has been forced to contribute to transnational institutions in the face of practical economic concerns. In response to the financial crisis among countries in the Eurozone, the EU sought to devise several insurance mechanisms aimed towards preventing a collapse of the currency. Naturally, these mechanisms required funds, and thus required some institutional method for raising money from more stable states and dispersing the funds to the nations most harmed by the crisis. Since the

242 243

Ibid, at 409. Ibid, at 410.

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mechanisms were developed as EU institutions, it was required that they were first approved under the domestic constitutions of each member state. In this context, the cases that follow emerged from the attempts to have these mechanisms ratified in Germany. Specifically, the cases revolve around the financial commitments of Germany to the European Financial Stabilization Mechanism (EFSM), a EU institution designed to coordinate relief efforts to those Member State economics that were compromised by the Eurozone crisis, and the European Financial Stability Facility (EFSF), which governs inter-state agreements on loans and credit lines.244 In a sense, these cases question the extent to which Germany remains liable to EU integration once unforeseen circumstances cause deviations from the ideal plan outlined by the Lisbon Treaty. In another sense, these cases approach an exceedingly political facet of sovereignty, questioning the exact point, in practical and financial terms, beyond which Germany can be considered to have relinquished its status as a sovereign entity, and at what point the European Union, particularly the mechanisms that emerged in response to the economic crises, can be considered to exhibit Kompetenz-Kompetenz.

The Greece Bailout Decision

The 2011 Greece Bailout decision represents the first of such cases. The constitutional complaints issued came in direct response to the monetary policy passed through the German Parliament the previous year. Specifically, the German Parliament pledged 22.4 billion to the EFSF, with 8.4 billion payable within the first year,245 and at least a 123 billion contribution to the EFSM, with a possibility of this amount being increased by 20% due to unforeseen and

BVerfG, 2 BvR 987/10, at 14. All citations, unless otherwise noted, refer to the paragraphs within the decisions. 245 Ibid, at 5.

244

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absolute need.246 In their complaints, the petitioners argued that such an extensive financial contribution represents a violation of the all-too-familiar Article 38.1 of the Basic Law. Yet, instead of arguing on theoretical terms, as had been done in Maastricht and Lisbon, the petitions in this case presented highly practical and political means by which the Greece bailout package violated Article 38. On one level, the complainants contended that parliamentary contributions to a bailout fund, in that they leave parliamentary control once they have been given, present an uncontrollable effect on the stability of the European Union currency. Together, the contributions and their unforeseen effects on inflation impact Parliaments right to decide on the budget, which defines democratic parliamentarianism and restricts this right in a way which surrenders existential statehood in an anti-democratic matter.247 In another form of the same alleged violation, the petitioners questioned the extent to which Germany signed up for this commitment when ratifying earlier treaties. In this argument, the stabilization mechanism is alleged to violate Article 125.1 on the Treaty of the Functioning of the European Union (TFEU), which rules out European Union liability for commitments of Member States and liability of the Member States for commitments of other Member States, a measure designed to ensure comprehensive legal responsibility of the Member States for their own public-revenue conduct.248 This angle enters highly political territory, as it rather bluntly assigns the liability for Greeces economic situation on the countrys financial policy. However, it still represents a salient question on the topic of EU sovereignty, pondering to what extent other Member States are responsible for the economic troubles of other members. It further questions when the ultra vires review should emerge, and whether it should when Germany is forced into institutional commitments that are outside of its control.249

246 247

Ibid, at 18. Ibid, at 33-36. 248 Ibid, at 40. 249 Ibid, at 45.

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One final approach on part of the petitioners, one that has intuitive appeal, considers the sheer size of Germanys contribution in relation to its annual budget. With financial commitment of 170 billion to the welfare of other EU Member States, the German government essentially pledged a total amount which is much larger than the largest federal budget item and which greatly exceeds half of the federal budget.250 While the statistics alone do not constitute an argument for the Court, their relation to the functions of Parliament that constitute the central political areas of the space of personal development and the shaping of living conditions by social policy, that were protected by the Lisbon decision, represents a highly salient factor for consideration.251 In evaluating these three political claims, the FCC after having also heard opinions from the Bundestag, the Federal Government, the Bundesbank, and the European Central Bank began by noting the changed nature of these cases in stating the unprecedented nature of the challenged statutes: [I]t is sufficient to submit that the challenged statutes are merely the first steps towards a historically unprecedented automatic liability which is becoming established and altogether is constantly increasing and which does indeed correspond to the shaping or transformation of transferred sovereign powers within the meaning of Article 23.1 of the Basic Law and at all events is designed to be such a shaping or transformation.252 In responding to the petitioners complaints, the Court first noted that the in extent to which the complaints address government policy measures, they are inadmissible insofar as they do not

Ibid, at 51. See supra, note 239. While the statement did not explicitly mention these dimensions from Lisbon, the raising of these figures in conjunction with the principle of parliamentary budget responsibility nonetheless gets at the same issues. See: BVerfG, 2 BvR 987/10, 7 Sept. 2011, at 51, for this implicit connection. 252 Ibid, at 107.
251

250

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substantiate the direct personal burden required of a constitutional complaint.253 The FCC did, however, admit the complaints insofar as they challenged the budgetary autonomy of the German Bundestag and thus threatened a violation of Articles 38.1, 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law.254 In this sense, the Court established the link between budgetary autonomy and the exercise of necessary State functions as measures of sovereignty, a link hinted at in Lisbon through the concept of identity review.255 With this analysis, the Court establishes that the relevant factor for adherence to the principles of democracy is whether the German Bundestag remains the place in which autonomous decisions on revenue and expenditure are made, even with regard to international and European commitments.256 In this context then, the FCC works to establish general guidelines that the Bundestag must follow in order not to transfer an undue and unconstitutional amount of sovereignty. Specifically, the Bundestag may not approve of imprecise budgetary authorisations,257 and permanent mechanisms which are tantamount to accepting liability for the decisions by free will of other states.258 In attempting to specify what constitutes infringements of these restrictions, however, the Court leaves the question open for the legislature, which it claims ought to have latitude of assessment in determining what precise amounts of contributions are acceptable: With regard to the probability of having to pay out on guarantees, the legislature has a latitude of assessment, which the Federal Constitutional Court must respect.

Ibid, at 114-117. BVerfG, 2 BvR 987/10, 7 Sept. 2011, at 93. Article 20 governs the democratic principle, as it relates to the rights of citizens to elect officials to represent them. Article 79.3 prohibits an amendment to the substance of Articles 1 and 20. Together, these provisions represent a more general principle of democracy that has a practical application in Article 38.1. See: Basic Law for the Federal Republic of Germany. 255 Indeed, the Court states that [t]he budget is not merely an economic plan, but at the same time a sovereign act of government in the form of a statute The state functions are presented in the budget as expenses which must be covered by revenue under the principle of compensation. The extent and structure of the budget thus reflect overall government policy. See Ibid, at 123. 256 Ibid, at 124. 257 Ibid, at 125. 258 Ibid, at 128.
254

253

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The same applies to the assessment of the future soundness of the federal budget and the economic performance capacity of the Federal Republic of Germany. In this connection, the Federal Constitutional Court may not with its own expertise usurp the decisions of the legislative body which is the institution first and foremost democratically appointed with this task.259 With this logic, the FCC left the German Bundestag to determine whether the contributions to the European stability efforts in Greece represent an infringement on budgetary autonomy. Given that the Parliament had recently voted in favor of these efforts, the Court moved to cautiously declare the bailout institutions constitutional, given that they remained sufficiency precise and impermanent in nature. For our purposes, the changed audience of the Courts approval represents the most important shift in this decision, as compared with previous cases on EU integration. While allowing the process of European integration to continue when considered in theoretical and institutional terms, in practice the FCC would rather empower domestic institutions to consider hard restrictions on budgetary contributions. In a sense, this case represents a dividing line in the role that the FCC has attributed to Parliament in EU integration efforts. While in Maastricht and Lisbon the Court has empowered Parliament to more clearly define its role particularly through its rejection of the Extending Act in the latter case, in this most recent decision the Court specifically left the legislature to decide an important limit on integration, implying that it has developed a competency to evaluate Germanys relation to EU integration.260 Although deferring

Ibid, at 132. It is at this point that I depart with Dr. Becks analysis of German deference to EU integration. While he acknowledges that the Court did defer to the legislature on the specifics, he argues that overall the Court continues to defer directly to EU integration in that it shies away from challenging the political judgements of the democratic decision-maker and grants the Federal Government and Bundestag a substantial margin of discretion in evaluating the likely financial and political effects of further steps towards greater integration and more far-reaching financial commitments to the EU and other Member States. See: Beck, Gunnar. The German Constitutional Court versus the EU: self assertion in theory and submission in practice Euro Aid and Financial Guarantees. Part 3. EUtopia Law. 26 Oct. 2011. Web.
260

259

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to these different parties has not tangible effect in the present, it may very well change by parliamentary discretion in the future, or if the Court determines that the Parliament overstepped the definite, albeit limited, boundaries set forth in the Greece Bailout decision.

The European Stability Mechanism I Decision

Indeed, many of the objections presented in this most recent case the constitutional complaints that seek an injunction on the implementation of the ESM revolve around these very issues. The petitioners in this case held that several structural issues and vague provisions of the Treaty Establishing the European Stability Mechanism infringed upon these limits set forth by the FCC in the Greece Bailout decision, and thus violated the same constitutional articles invoked in that case Articles 38.1, 20.1, and 20.2 in conjunction with Article 79.3.261 Specifically, the complainants had issue with: (i) Article 136.3 of the Treaty on the Functioning of the European Union, which they argue fundamentally changes the nature of European integration;262 (ii) the penalties for non-payment, which include removal of voting rights and thus completely remove Parliament from the decision-making process;263 (iii) the unclear inviolability granted to the members of the ESM Board of Directors and ESM documents, and whether this inviolability excluded national parliaments from having access to necessary information;264 (iv) the lack of elaboration on the part of the Bundestag and the Bundesrat in participating within the structure of

22 Feb 2013. <http://eutopialaw.com/2011/10/26/the-german-constitutional-court-versus-the-eu-selfassertion-in-theory-and-submission-in-practice-%E2%80%93-euro-aid-and-financial-guarantees-part-3/>. Yet if the Court is not in a position to immediately determine the consequences of such contributions, is it not in its interest to leave that question to the legislature, at least in the interest of remaining outside of politics? Given the uncertainties at the time, the Court did lay down some constitutional limits on the transfer of budget autonomy that the Parliament may not cross. Whether or not the FCC holds Parliament to these conditions remains the subject of future cases, which is elaborated in the discussion of the European Stability Mechanism decision below. 261 BVerfG, 2 Bvr 1390/12, 12 Sept. 2012, at 146. See supra, note 253 for the topic areas of these cited Articles. All citations in this decision are with reference to the paragraph numbers of German original, as the English translation contains only excerpts from the decision. 262 Ibid, at 149. 263 Ibid, at 156. 264 Ibid, at 157.

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the ESM;265 and (v) the seemingly permanent nature of the institution, and by extension the lack of an exit-option or termination of the agreement.266 Given that the constitutional complaint was posed as an injunction, the petitioners highly recommended that the Court seriously consider its evaluation of the complaints, given that, should the FCC later find the statutes unconstitutional after the ESM Treaty is ratified, it would necessarily be in violation of international law in disregarding the binding effect of the treaty.267 In deciding on this difficult case, the Court first addressed the issue of the injunction, and how this form of constitutional complaint posed a challenge. Since issues for temporary injunctions require relatively immediate responses, the Court did not have its typical measures for delaying the decision in order to thoroughly evaluate the structure of the ESM.268 Either the FCC had to immediately declare the ESM Treaty unconstitutional in response to the injunction, or deny the injunction, ruling on the constitutionality of the treaty at a later date. In the introduction to the decision, the Court noted that it would proceed with the latter option, setting a final decision on the ESM treaty for a later date, and ruling the merits of the injunction as unfounded unless in the case that the consequences of not adopting the injunction manifestly outweigh the alternative.269 Regarding the specific complaints in the petition, then, the FCC would consider each concern in turn and determine whether an interpretation or understanding exists that keeps the challenged provision consistent with the constitution, reserving a more systematic ruling on the specifics of the complaints for a later time.270

Ibid, at 160. Ibid, at 165. 267 Ibid, at 166. 268 Recall from the second chapter, Justice Dieter Grimm accounts for how the FCC normally puts a case on the bottom of its docket as a means to delay deciding on the issue, either due to the complexity of the issue or the political climate of the time. 269 Ibid, at 191. 270 Ibid, at 191, 240. The follow-up decision was expected in early 2013. However, to date, such a decision has not yet been made.
266

265

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In addressing whether the principle of democracy sets a justiciable limit of the assumptions of payment obligations, the FCC again left the Parliament to evaluate these boundaries, as it had done in the Greece Bailout decision.271 In restating this position of negotiating with the Parliament, the Court echoes the opinions of its previous ruling, while orienting them towards the riskier nature of the ESM commitments: When examining whether the amount of payment obligations and commitments to accept liability will result in the Bundestag relinquishing its budget autonomy, the legislature has broad latitude of assessment, in particular with regard to the risk of payment obligations and commitments to accept liability being called upon and with regard to the consequences them to be expected for the budget legislatures freedom to act; the Federal Constitutional Court must in principle respect this latitude.272 In essence, the German Court reaffirmed its earlier position. It also, more implicitly, brought to light the hard lines it had established in the earlier decision prohibitions against imprecise budgetary authorisations,273 and permanent mechanisms which are tantamount to accepting liability for the decisions by free will of other states274 that would represent a manifest overstepping of extreme limits for which the Court would intervene.275 Having establishing this scope of interpretation for this summary ruling, the FCC proceeded to address the specific complaints on the structure of the ESM, noting whether there was an interpretation of these provisions that was consistent with the constitution. In regarding the allegations that the ESM treaty changes the nature parliaments participation in EU integration, and thus violates Art. 79(3) of the Basic Law, the Court cited the Maastricht decision

271 272

Ibid, at 216. Ibid, at 217. 273 See supra, note 256. 274 See supra, note 257. 275 BVerfG, 2 Bvr 1390/12, 12 Sept. 2012, at 216.

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in order to argue that the conception of a monetary union is the product of necessarily political decisions over time.276 From here, the Court noted that [i]t is for the legislature to decide how possible weaknesses of the monetary union are to be counteracted by amending European Union law.277 So long as these decisions and corresponding structural changes maintain parliamentary representation, and by extension the democratic process, they are not in violation of Art. 79(3). The Court further pressed upon the allegations that the treaty changes the nature of EU integration by addressing the relationship between the European Central Bank (ECB) and the ESM. A worry raised by the petitioners concerned the potential of the ECB to begin buying bonds from the ESM, or the secondary market, and thus crossing into the territory of KompetenzKompetenz prohibited by earlier FCC decisions.278 In response to these concerns, the Court made an understanding that the Treaty can only be taken to mean that it does not permit such borrowing obligations.279 However, since the treaty brings forth many new questions concerning the ECBs role in the financial crisis, this topic will likely see much further discussion in the Courts main decision.280 In addressing the seemingly permanent nature of the institution through the treaty, the German Court was forced to make its first understanding in the decision. Since the Greece Bailout decision established any permanent institutions as one of the extreme limits over which Parliament cannot cross, the Court was forced to interpret that the completion of all predetermined payments represented the entirety of Germanys commitment arising from the

Ibid, at 222, where the Court cites: BVerfG 89, 155, at 205. Ibid. 278 Dr. Gunnar Beck presents a developed analysis of the issue. While the post has a slant, and he remains skeptical that the FCC would call the ECB out should they cross that line, the outline of the issue is nonetheless compelling, and will likely emerge in the main ruling on the ESM. See supra, note 214, for citation of the article. For an outline of the ECB bond-buying program, see also: Lombardi, Domenico. IMF + ECB = OMT. Brookings Institute. Nov. 2012. Web. <http://www.brookings.edu/research/articles/2012/11/imf-ecb-lombardi>. 279 BVerfG, 2 Bvr 1390/12, 12 Sept. 2012, at 276. 280 Dr. Beck argues this point, as well as the coverage of the decision authored by The Guardian. See: Connolly, Kate. Angela Merkel hails German courts ruling on Eurozone rescue fund. The Guardian. 12 Sept. 2012. Web. 2 Mar. 2013. < http://www.guardian.co.uk/world/2012/sep/12/merkel-court-eurozonerescue-fund>.
277

276

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treaty.281 Specifically, to maintain Parliaments role in any changes to the ESM commitments, the Court held that the ESM Treaty may only be interpreted or applied in such as way that no higher payment obligations are established for the Federal Republic of Germany. The Federal Republic of Germany must clearly express that it cannot by bound by the Treaty in its entirety if the reservation made by it should prove to be ineffective.282 Should any further arrangements be necessary, the Bundestag would need to fully approve of any proposed increase in Germanys contribution, a measure designed to mitigate the unclear relationship between the Bundestag and the ESM raised by the complainants.283 With regard to the unclear inviolability afforded to the ESM Board and its documents under Articles 32(5), 34, and 35(1) of the treaty, the FCC was forced to make another understanding. While these sections of the treaty did not include national parliaments as parties to receive full information regarding the operations of the ESM, the Court pointed out that the articles do not explicitly exclude them either.284 In rendering an interpretation consistent with the constitution, the Court then established an understanding on this topic that assumes that these provisions would not exclude national parliaments from attaining full information necessary in order to make informed decisions regarding its commitments to the ESM.285 To decide on the proposed voting ban in the ESM Treaty, the FCC made a rather simple interpretation of the issue. While acknowledging that a ban Germanys representation in the ESM would run contrary to the Basic Law, the Court also argued that such a ban would be a nonissue if the Bundestag fulfills its commitments.286 In this sense, the Court leaving the issue up to the Parliaments assessment of its ability to make necessary payments in a timely manner. Even in the event that capital calls under Articles 8(2) and 9 of the ESM Treaty puts the German

281 282

BVerfG, 2 Bvr 1390/12, 12 Sept. 2012, at 244. Ibid, at 253. 283 Ibid. 284 Ibid, at 257. 285 Ibid, at 259. 286 Ibid, at 261-263.

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payment schedule ahead of par,287 or in the case that unforeseen domestic commitments alter the national budget, the Court nonetheless notes that [i]f necessary, the Federal Government and the Bundestag have to make arrangements in a timely manner to avoid a suspension of voting rights.288 In summation of these understandings, the Court rejected the injunction, subject to three stipulations. First, the specific merits of the constitutional complains and the constitutionality of the ESM Treaty were to be decided in a main proceeding, with the decision to be issue in the early months of 2013. Secondly, Article 8(5) of the treaty limits the payment obligations to the amount of 190,024,800,000 euros, and that no higher obligations may be established without full consent of the Bundestag. Finally, the provisions on the inviolability of the ESM Board or its documents are not to be interpreted to prevent the Bundestag and Bundesrat from having full information on ESM operations.289

Evaluating the Courts Position in European Stability Mechanism I

As alluded to in the introduction, the evaluation of this judgment on the part of the Court has been decisively split. While German politicians and economists from Angela Merkels CDU and the party leader for the SPD all praise the decision as demonstrating Germanys commitment to Europe, several smaller parties and many legal scholars still retain their concerns.290 All

As the Court outlines in its understanding of the Treaty, Articles 8(2) and 9 of the treaty, capital calls may push the payment schedule above par in the event that other members cannot make their obligations in a timely manner, or become insolvent. Such measures are meant to maintain the creditworthiness of the ESM. See Ibid, 42 and 45-49. In a sense, the Court is deferring to Parliaments assessment to pay any portion of the lump sum on demand, given that capital calls do not exceed the 190 billion maximum. 288 Ibid, at 270 289 These conditions can be found under the Urteil of the decision, or within any news coverage of the judgment. See, for example: Beck, 22 Sept. 2012; Connelly, 12 Sept. 2012; or see supra, note 211. 290 Many reactions to and opinions regarding the ESM decision can be seen on the to-the-minute coverage of the decision, found at: Wearden, Graeme. German court approves bailout fund, with conditions eurozone crisis as it happened. The Guardian. 12 Sept. 2012. Web. 30 Jan. 2013. <http://www.guardian.co.uk/business/2012/sep/12/eurozone-crisis-german-court-bailout-fund >.

287

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parties involve agree that the decision represents one of the most important rulings in the history of the Bundesverfassungsgericht. Many critics of the decision claim that the Court wrote a blank check to EU integration, or that it succumbed to the political pressures ushered in by the urgency of the injunction. With a framework having been evaluated the Courts jurisprudence from the lens of constitutional negotiations, I argue that neither of these accusations are true, and that the ESM decision falls in line with the German Constitution, as developed by previous jurisprudence on the integration of the European Union. In the context of the ruling, this point is demonstrated by the parties to which the Constitutional Court opens negotiations, which is indicative of consistency towards previous judgments on the issue. In European Stability Mechanism I, the Constitutional Court maintained two forms of negotiation. By splitting the decision into two stages, and holding a high standard for the granting of an injunction to ratification of the ESM Treaty, the Court was certainly giving an ideological approval to the process of European integration. Favoring the establishment of institutions to promote European stability, in the face of uncertainty, carries vestiges of the same conflicts faced in Maastricht and Lisbon. Indeed, the acceptance of some uncertainties regarding the political organization, which had first emerged as a key concern in Maastricht, informed the Court when ruling on aspects of the constitutional complaints against the ESM.291 In the face of the urgency of an injunction, the Court essentially appeared ready to accept the financial uncertainties and risks that come with contributing to the ESM, just as the Court seemed to embrace the uncertainties of a monetary union in the first place. Such a continuation of a commitment to European integration does not represent a succumbing to political pressure. Rather, it represents a continued commitment to European integration under Article 23.1 of the Basic Law, first cited in Maastricht and then later strengthened in Lisbon.

291

See supra, note 275, where the Court even cites Maastricht in this regard.

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On the other hand, given the level of specificity and development that European institutions and treaties have attained, the Court was not ready to write a blank check allowing unconditional transfers of sovereignty. In fact, as the Greece Bailout decision showed, when the more practical question of whether further transfers of sovereignty serve to violate national autonomy, the Court chose to specifically allow the Bundestag and Bundesrat to fill in the blanks on that issue.292 The FCC intentionally called Parliament out to determine at what specific point contributions to Eurozone undermine budgetary autonomy. At the same time, the Court ensured to establish hard lines past which the legislature may not cross, such as the need for bailout institutions to be sufficiency precise and temporary.293 As the presentation of the ESM decision shows, the Court allowed for each of these aspects in its striking down of the injunction it simultaneously left Parliament to answer the question regarding the specific concerns of transferring sovereignty, and ensured that the ESM treaty could be interpreted to be sufficiently precise and temporary, all while confirming the ideological commitment to European integration under Article 23.1 of the Basic Law. In mitigating the concerns of the amount committed to the ESM, the Court cited the same consideration that it had left to the Parliament that it had in Greece Bailout. When responding to complaints concentrating on the vagueness of various provision in the ESM Treaty, the FCC supplemented the challenged sections with understandings that were compatible with the constitution, making the treaty sufficiently precise. To dispel concerns that an institution such as the ESM represents a commitment of a permanent nature, the Court made certain that, barring parliamentary approval, Germanys commitment to the ESM was to end once the agreed amount

One can argue, and indeed Gunnar Beck does argue, that deferring to Parliament effectively means the same as deferring to EU integration (see supra, note 259). As the ESM decision showed, the FCC does indeed defer to both parties. Yet in also deferring to Parliament, the Court was also charged with ensuring that the ESM followed the hard limitations set in Greece Bailout, a task that the Court accomplished with its reservations and understandings. If deferring to Parliament were completely the same as deferring to EU integration, the judgment would have necessarily lacked these limitations. 293 See supra, notes 256-257.

292

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had been fully provided. All of these steps were made under an ideological commitment to integration, established in Article 23.1 of the Basic Law and developed in Lisbon and Maastricht. Thus, an account that fully acknowledges both the jurisprudence of the German Court and the parties with which the Court has negotiated over time cannot see this controversial decision as the product of political pressures, but rather the continuation of a commitment to the constitution, and its simultaneous protection of both national sovereignty and European integration.

Characterizing German Deference in Comparative Context

Given this account of the Courts ongoing relationship with EU integration, it is clear that the progression represented a negotiation over the rights contained in Articles 23.1 and Article 38.1 of the Basic Law. Indeed, as Dr. Gunnar Beck notes, the Courts attitude to date has been that, with each further step towards the surrender of additional national powers and budgetary resources, the concentric circles of national sovereignty have drawn ever closer to the indispensable core of inalienable national sovereignty and identity which the FCC has eloquently invoked but imprecisely defined.294 The process of negotiation in the German case is perhaps the most simple of the case studies examined since, as had been argued though the course of the chapter, the FCC maintained a rather consistent position with regard to EU integration, treading a delicate balance between demands Articles 23.1 and 38.1 of the Basic Law, with the policies of the other branches of government in EU integration seeming to be at odds with the concerns of citizens. When faced with the constitutional complaints over the theoretical concerns of the Maastricht Treaty, the German Court responded in an equally theoretical manner, allowing for the treaty while noting generally that the Bundestag and Bundesrat must have input of substantial import. As

294

Beck, Pt. 3.

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integration furthered under the proposed Lisbon Treaty, the Court reaffirmed a stronger, now required, commitment to EU integration, while simultaneously granting more elaborated means of monitoring the process through ultra vires and identity review. As integration of the EU turned to more practical terms, so did the rulings of the FCC. When the case over the bailout of Greece questioned sovereignty in monetary terms, via the consideration of budgetary autonomy, the Court split the audience with which it negotiated. While empowering the legislature to determine a specific limit, the Court set hard lines on commitments to Eurozone stability institutions. In a sense, the Court, in ruling on this case, used its last word on the issue to empower the German Parliament to, in using its capacity to know and shape the budget, negotiate the specific limits of financial contribution to EU institutions. The Court continued down this path in the ESM I decision, as evidenced by the understandings made on the ESM Treaty that echo the ruling on the Greece Bailout case. The more straightforward development of German jurisprudence on EU integration distinguishes it from the Italian and Canadian cases, which have on occasion required the intervention of peripheral actors in order to resume negotiations on the relevant issues. This distinguishing factor may very well change when the German Court gives consideration to the ECB bond-buying program that became an implicit possibility under ESM Treaty, yet was understood as unconstitutional by the FCC. This topic will likely be one of the main focuses of the upcoming ESM II decision. To date, there is no official record of the ECB having engaged in bond-buying within the secondary market, yet accounts note that German opposition to the idea would not deter the ECB from implementing these Outright Monetary Transactions (OMTs).295 These same accounts note that the OMT program is currently in a standby mode, and the ECB has thus not exhibited a

Carrel, Paul and Sarah Webb. Analysis: ECB bond-buying may be moving from deterrence to standby. Reuters. 15 Mar. 2013. <http://www.reuters.com/article/2013/03/15/us-ecb-bondsidUSBRE92E0IF20130315>.

295

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form of Kompetenz-Kompetenz that would be unconstitutional in Germany.296 Should the program be implemented in response to Eurozone crises, it would appear that the Courts decision in ESM I would retroactively develop a comparison to the American experience, in which the Court decided its unconstitutional character in the abstract, yet allowed the ESM Treaty to remain insufficiently defined so as to allow the practice to occur on the ground. Whether this situation should come about, however, is necessarily speculation.

296

Ibid.

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Constitutional Negotiation and Judicial Review

Good constitutions are formed upon a comparison of the liberty of the individual with the strength of government: If the tone of either be too high, the other will be weakened too much. It is the happiest possible mode of conciliating these objects, to institute one branch peculiarly endowed with sensibility, another with knowledge and firmness. Through the opposition and mutual control of these bodies, the government will reach, in its regular operations, the perfect balance between liberty and power. Alexander Hamilton, 25 June 1788

To put this comparative examination into perspective, perhaps it would be beneficial to return to some of the cases examined at the very beginning of this inquiry. Recall that, despite many critics claiming Roe v. Wade as having been an activist move on part of the Supreme Court, in reality the state legislatures subsequently exerted their monopoly over implementation in enacting regulations that set prohibitive requirements on a right that, according to the Court, could never be criminalized. As this thesis has argued, such instances show that viewing judicial review as either activist or restrained misses the negotiation that occurs between the courts and other political actors. Rather than being seen as unequivocally deciding the final interpretation of a constitutional provision, judicial review on the part of courts is better conceived as part of an ongoing process, one which has elaborated, and will continue to elaborate, how a constitutional provision is to be interpreted, and how these provisions relate to and may be open to other compelling government interests. Rather than centering on singular decisions of courts, debates over the power of high courts should recognize that complex constitutional matters are often developed over a sequence of cases, often interspersed with the actions of other political actors. As the case studies have shown, this example with Roe v. Wade is far from an anomaly. This phenomenon has occurred over important constitutional issues in various constitutional democracies. The examination of secondary research into common law systems has shown that existing theories on sustained judicial review, judicial dialogue in Canadian jurisprudence and

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new deference of the US Supreme Court, lend themselves to being reducible to constitutional negotiation as a more generalized conception of these jurisprudences. Meanwhile, the Italian Court has wrestled with the concept of parliamentary immunity, realized in theory under Articles 90 and 96 of the Italian Constitution, while being unconstitutionally implemented by the Berlusconi regime. Negotiation over this issue occurred on two levels. On one level, the Court, having struck down immunity laws passed by the centerright coalition, acknowledged the existence of possible legitimate impediments to appearing in trial due to the duties involved in holding office, yet empowered the judiciary to determine whether an actual impediment actually exists. On a practical level though, the Courts failure to shift its competencies to address the underlying problem, Italys unique statute of limitations, has resulted in Berlusconi not having seen a single binding conviction. However, with the emergence of social movements and NGO inquiries into Italys statute of limitations, opposing political parties have championed platforms focusing on judicial reform, resulting in a potential end to Berlusconis control over the legislature. In the German context, the Federal Constitutional Court, in its continued jurisprudence on European integration, has treaded a thin line between two interests that were both compatible with the Constitution. On one hand, Article 23.1 creates a mandate for the realization of a unified Europe that has pressed government policy towards greater EU integration. Yet citizen concerns over the democratic character of Parliament under Article 38.1 has caused the Court to focus on whether each step of the integration process would constitute an undue transfer of national sovereignty. Over time, this question become specifically tied to the budgetary autonomy of the German legislature, and thus the Court began to empower Parliament to act as a party of negotiation over what constitutes national sovereignty in the European context.

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Evaluating Constitutional Negotiation

As this sustained examination over four constitutional democracies has shown, constitutional negotiation is a way of conceiving judicial review such that the Courts competencies complement those of other political actors in order to gradually develop and elaborate a constitutional provision, along with its potential qualifications and modes of implementation. Such a phenomenon occurs across legal traditions, and over provisions related to important political issues. To evaluate the soundness of constitutional negotiation as a theory, it would be prudent to consider some possible objections that could be posed against this formulation of judicial review. Doing so would render the theory much more robust, and would serve to motivate further study into the phenomenon. One potential objection may accuse constitutional negotiations as implicitly harboring some from of skepticism over the ability to reach a clearly defined, final version of a constitutional provision. Such a notion would be supported by the fact that the framework for negotiations seems to allow an infinite amount of interactions between the legislature and judiciary, as well as with periphery actors should that apply. While the framework for constitutional negotiation does allow an undefined number of elaborations over time, it must be noted that these elaborations occur with respect to concrete interpretations of the provision and concrete qualifications that may potentially serve to limit said provision. While the final policy may not be clear, the possible forms that the constitutional provision complete with its qualifications may take with each Court decision is a set of discrete alternatives. In some cases, further negotiation may be continually working towards a single policy, as with the German case. Successive cases on EU integration, as Dr. Beck noted, gradually drew the concentric circles of national sovereignty to a set of core considerations. On

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that note, it would seem that negotiation works to define discrete answers, not move away from them. Another potential line of argument that would work against constitutional negotiation would focus on whether it is a morally desired alternative. In particular, one could note the length of time it took the US Supreme Court to develop a constitutional right to habeas corpus, or for the periphery actors in the Italian system to mobilize and shift the other political parties against the Berlusconi regime. As these negotiations occurred, basic principles of justice were being continually infringed upon. While Guantnamo detainees remained in solitary confinement as the government branches hammered out the details of habeas rights, Berlusconi still maintains impunity while judicial and social actors strive to reform the flawed statute of limitations. In allowing these things to occur, could one call constitutional negotiation a better alternative? In responding to this objection, it is first necessary to note that the exploration of constitutional negotiation was largely descriptive, focusing on matching characteristics of each countrys jurisprudence to the process outlined in the introductory chapter. With few exceptions, the thesis remained outside the realm of what constitutes justice, being more focused on what constituted practice. Nevertheless, a simple way of responding to this objection is to enter constitutional negotiation as an alternative to the extremes judicial activism and judicial restraint and their respective concerns. Do the minor, yet potentially consistent, infringements of provisions that occur in practice while the content of constitutional provisions is being negotiated outweigh the gross injustices that could occur under a tyranny of the majority or a rule by judges system? That question may be one that is best left to the moral philosophers. Perhaps another way to phrase this approach involves considering the extent to which constitutional negotiation renders constitutional jurisprudence as either more or less democratic. As a moderate position in between judicial activism and judicial restraint, this conception of judicial review as a step in constitutional negotiation definitely recognizes the merits of democratic legitimation. In recognizing that subsequent legislation can temper even the

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most sweeping of high court decisions, the process of constitutional negotiation values the extent to which democratic institutions possess the capacity to invoke deliberative processes in order to arrive at informed policy. On the other side, however, negotiation also recognizes that democracy as a value is subject to limitation. In allowing for judicial review of legislation, constitutional negotiation also values the extent to which judiciaries possess the capacity to maintain a consistent respect for constitutional laws, ensuring that democratic governance does not reduce itself to a tyranny of the majority. Thus, constitutional negotiation sees jurisprudence and democratic governance as in a symbiotic even if not completely cooperative relationship, in that both sets of institutional capacities are required in order to best realize the fullest interpretation and implementation of a constitutional provision.

Questions for Further Research

In formulating another way of conceiving judicial review, one of the more implicit goals of this thesis was to motivate further research on the constitutional negotiations that take place between political actors within democratic orders. Does constitutional negotiation as a conception of judicial review apply to other constitutional democracies? This question remains the most obvious means for further research. While further case studies would most likely start out within common law or civil law systems, it would be interesting to see if this dynamic applies to systems outside of these traditions that still honor a separation of powers. Does constitutional negotiation require a constitution? Related to the last point, it would be interesting to see if constitutional negotiation could be simply reduced to rights negotiation. Such an examination would clearly start with the United Kingdom, as the country does not have an official constitution, and studies have already confirmed some dynamics

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similar to those seen in this thesis.297 Though such approaches should necessarily venture outside of traditional systems, to see if this practice applies to different systems of governance. What role has the growth of trans-judicialism played in securing a convergence over this process? This question would be particularly interesting to take up in more detail. The scope of this exploration only concerned how international actors may act as periphery agents within the process of constitutional negotiation. A more pointed approach to examining this inquiry would be to question the extent to which the growth of trans-national judicial networks has caused national judges to continually rule on the more active side of the negotiative process, and to be less willing to allow qualifications of fundamental rights.

Specifically, Scheppele notes how the UK practiced a comparable form of new deference in response to concerns arising from terrorism and national security. See: Scheppele (2012), at 89.

297

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Appendix The Model of Constitutional Negotiation

This figure depicts the model of constitutional negotiation outlined in the introductory chapter. The dashed arrows represent actions that may occur, yet are not required for negotiation to have taken place.

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HONOR CODE PLEDGE

________________________________________________________________________ This paper represents my own work in accordance with University regulations.

Signed,

________________________________________ Michael K. Hanley

________________________ 3 April 2013

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