Content:
- Strength of judicial decisions
- Units of analysis
- Codebook
- Coding scheme
- Short guide to the methodology of the JUDICON project
Strength of judicial decisions
We developed a scale which could serve as a sophisticated tool for measuring (a) the strength of judicial decisions and (b) the proximity of the position of the judge to his/her nominating party. In order to be able to analyse judicial decisions more profoundly we discerned all decisions in 2 components:
A judicial decision consists (A) of a provision (or operative part of a decision), which is the most important part of the decision since it prescribes something by declaring a law or a bill constitutional or unconstitutional. A judicial decision might contain also a (B) remedy when a law/bill has been founded unconstitutional. A remedy declares how unconstitutionality might or should be corrected. It gives directives which should be transformed into a law by the legislatures. Thirdly all decisions will be justified in some way which means that (C) justification (or reasoning) constitutes an important part of the decision.
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A. Provision |
1. Ruling |
(1a) Rejection or refusal |
(1b) unconstitutionality |
(1c) procedural unconstitutionality |
(1d) constitutional requirement |
(1e) substantive unconstitutionality |
(1f) constitutional interpretation in abstracto |
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2. Completeness |
(2a) partial annulment |
(2b) complete annulment |
(2c) total annulment |
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3. Timing |
(3a) pro futuro |
(3b) ex nunc |
(3c) ex tunc |
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B. Remedy |
4. Remedy |
(4a) no remedy |
(4b) minor remedy I. |
(4c) minor remedy II. |
(4d) broad remedy |
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C. Justification |
5. Justification |
(5a) moderate justification |
(5b) maximalist justification |
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(1) RULING: The provision of the constitutional court’s decision might contain several rulings which might differ on the ground the law has been found (un)constitutional: it might declare a refusal or rejection, unconstitutionality by legislative omission, procedural unconstitutionality, interpretation in harmony with the constitution (or constitutional requirements), substantive unconstitutionality or constitutional interpretation in abstracto.
- (1a) REJECTION: Motions might be rejected on the ground that the legal regulation under review is completely in accordance with the constitution. They might be refused, however, also without substantive investigation of the court (due to inadmissibility), or by referring to the political question doctrine. The process of the CC might be suspended which is equal to a refusal except when the CC predetermines some constitutional requirements which should be respected by the legislation.
- (1b) UNCONSTITUTIONALITY BY LEGISLATIVE OMISSION: Unconstitutionality might emerge not only by proactive operation of the legislation but also by legislative omissions. Legislative omissions might be caused not only by total inactivity of legislatures but also by imperfect, insufficient legislation. Declaring unconstitutionality on this ground is, however, a mild ruling since the constitutional court does not annul any acts of the parliaments but only call upon the legislature to regulate something which still hasn’t been regulated at all or only in an imperfect or insufficient manner.
- (1c) PROCEDURAL UNCONSTITUTIONALITY: By procedural unconstitutionality we mean all rulings of a court which does not exclude a repeated adoption of a legal regulation with the same substance since procedural unconstitutionality refers only to the legislative process and not to the substance of legislation. In this case there’s a possibility for the legislature to pass the bill a second time with the same or highly similar substance. Unconstitutionality means in this sense violation of procedural rules but not the violation of the formal principle of rule of law. This category includes cases with inaccurate process of legislation.
- (1d) CONSTITUTIONAL REQUIREMENTS: While formally upholding a law judges might have a large room for manoeuvre in constraining the legislation (and the executive) by two means: first by judicial interpretation in harmony with the constitution and second by determining constitutional requirements either for the courts or for the legislation. Both rulings are apt for taking a particularly weak or strong decision which constrains the other two branches seriously or barely. Since our research project aims to analyse judicial decisions in quantitative way we have simply focused on the presence or absence of constitutional requirements and haven’t evaluated the strength of these requirement one by one. Further qualitative investigation will be needed in order to refine the picture regarding the strength of these constitutional requirements. At this phase of the project we are focusing, however, on formal presence of constitutional requirements.
- (1e) SUBSTANTIVE UNCONSTITUTIONALITY: Substantive unconstitutionality constrains legislations more significantly than any previous forms of decisions since it imposes some substantive barrier on the legislation. Declaring a law unconstitutional based on its content and disharmony with some rulings of the constitution is a very strong decision which implies also high level of constraints on the legislation. The room for manoeuvre of the legislature will be considerably narrowed down.
- (1f) CONSTITUTIONAL INTERPRETATION IN ABSTRACTO: An even stronger way to constrain the legislative branch (and the constituent power) is constitutional interpretation in abstracto. This kind of procedure of the constitutional court might be regarded as equal to a constitution making (or writing) process. Constitutional interpretation in abstracto means that the CC has been asked to explain and expand the text of the constitution in the provision of its decision. Since the provision of a decision usually contains only rulings like rejecting, refusing due to inadmissibility, suspending or annulling, all other forms of rulings which do not rule but explain and thereby extend the text of the constitution are equal to a constitution writing process. CIIA might be extremely constraining but also extremely permissive, i.e. they might extend the room for maneuver of the legislation.
(2) COMPLETENESS: Strength of judicial decisions depends on two additional factors as regards as their provisions: a judicial provision can annul all sections of a legal regulation or only some part of it, but the timing of annulment seems to be also an important means in the hands of the judges. Partial annulment of the norm might be best grasped perhaps as a negative constitutional requirement. While applying a positive constitutional requirement the CC rules basically that the law (or a paragraph/section/some words of a law) is in harmony with the constitution as far as the requirements determined by the court are fulfilled. Positive constitutional requirements rule out some kind of interpretation of the law (or a section of it) which are unconstitutional while giving a more determined meaning/interpretation of the law which are by contrast in harmony with the constitution. By contrast, determining a negative constitutional requirement means that the CC found the law (or a paragraph/section/some words of a law) unconstitutional as far as the norm (or legislative act) might have a aspect/meaning/interpretation which is unconstitutional. However, there might be some other aspects/meanings/interpretation of the same norm (or legislative act) which might be in harmony with the constitution. Consequently, though the CC annulled the norm (law or any part of the law) but the legislation might find a solution by adopting the same law (part of the law) and excluding the unconstitutional aspect/meaning/interpretation at the same time. This is why this kind of ruling is only partial: the ruling of the CC wants only exclude some aspects/kinds of interpretation of the law (or part of the law), some part of the possible meanings of the law but no other aspects/kinds of interpretation of the law. Complete annulment means that the ruling, in contrast to the partial annulment defined above, has completely annulled the norm but only one part (paragraph, section, some words) of the law: complete annulment of the norm but partial annulment of the law. Total annulment, in turn, will be coded if all paragraphs of the law has been annulled.
(3) TIMING: The timing of the annulment is a further element of all judicial provisions which affects the strength of judicial decisions and consequently the room for manoeuvre of the legislation. Since pro futuro judicial provisions may grant a transitional period, in which the goals of the legislative body might have temporarily been effectuated, this type of provisions seems to be a compromise and has less dramatic effect on the legislation. This is not the case in ex nunc decisions and even less in the most radical form of provisions (ex tunc).
(4) REMEDY: As for the remedy suggested or prescribed by the courts, judges have a quite wide range of options: they can formulate recommendations, directives or constitutional requirements, or they can even anticipate what kind of legislative acts might prove to be unconstitutional in the future, but they can also prescribe detailed regulation how unconstitutionality might be remedied. Since remedies might vary according to their legal force (or binding effect) it is reasonable to discern three categories which reflect the variegation of suggested or prescribed remedies. Remedies which are placed in the provision of a judicial decision have a clear-cut, legally binding effect (broad remedy) while remedies in the justification (or reasoning) has a lower status as regards as regards as their legal effect (minor remedy I). Remedies in the headnotes (Leitsatz) of the decision has an ambiguous legal effect they are more constraining than remedies in the justification but less than remedies in the provision (minor remedy II). Furthermore several decisions contain no remedy at all (no remedy).
(5) JUSTIFICATION: This part of the decision might contain highly complex arguments but our research projects focuses rather on the operative part of the decision along with remedy provided by the court. Justificationa are considered prima facie whether they contain any kind of innovative creation of a new right which might heavily constrain the legislation.
A judicial decision might contain several rulings concerning various parts of different legal regulations. Consequently we disaggregated all judicial decisions into several rulings if a decision consisted of various rulings.
- For example, in its Decision 47/2009 (IV.21.) AB the Hungarian Constitutional Court held for example first (Ruling 1) that “in the application of Section 12 para. (3) of the Act XXIII of 1992 on the Legal Status of Public Servants, it is a constitutional requirement based on Article 59 and 60 of the Constitution that the deed of oath should not contain any data referring to the public servant’s conviction of conscience or religion”. As a second ruling (Ruling 2) in the same Decision 47/2009 (IV.21.) AB the HCC rejected “the petitions aimed at establishing the unconstitutionality and the annulment Section 12 and Section 13 para. (2) of Act XXIII of 1992 on the Legal Status of Public Servants”. As a third ruling (Ruling 3) it terminated “the procedure aimed at the posterior review of the unconstitutionality of Sections 31/A-31/F of Act XXIII of 1992 on the Legal Status of Public Servants”, and as a forth ruling (Ruling 4) it refused “the petition aimed at establishing the unconstitutionality and the annulment Section 13 para. (1), Section 65 para. (2) item d) and Section 102 para. (8) of Act XXIII of 1992 on the Legal Status of Public Servants, and it refused other petitions as well”.
In order to be able to determine which rulings and which judges how far constrained the legislatures, the basic units of the analysis needed to be disaggregated on a further level since one ruling might contain various legal regulations which might have imply various voting behavior of the parties in the parliamentary voting procedure.
- Take for example Decision 33/2013 (XI.22) AB which included one ruling (rejection of the petition of a lower court judge) to several legal regulations which should have been found unconstitutional according to the petitioner. To this one ruling of the decision belonged 9 legal regulations, consequently several parliamentary voting with three different type of voting patterns of the parties. Various sections and paragraphs of the law in question (Act XIX. of 1998 on criminal process) had been adopted in the parliament by various coalition of parties. For example Sec. 2 para. (1) and (2) were adopted exclusively by the right wing parties in the parliament on 18th December 2001. Section 6 para. (3) item c) and d) of the same Act, which have been reviewed also by the HCC, have been modified, however, exclusively by the left-wing parties on 13th February 2006. Furthermore Section 416 para (1) item c) of the Act was modified on 2nd April 2007 with a coalition of all parties which means that the parliament adopted this third modification in total consensus. In its Decision 33/2013 (XI.22) AB the HCC reviewed and declared one ruling on these three Sections which had completely different provenience (voting behavior in the parliament).
As one ruling of the constitutional court may concern different parliamentary acts a ruling might be disaggregated into different cases to check the proximity of the position of judges to the position of their nominating parliamentary parties. Since this step of the research presupposes that we are able to identify the nominating party of the judges the research project will be narrowed down to countries where identification of judges with their nominating political party is relatively easy (e.g. Hungary, Germany). Furthermore, this kind of disaggregation is not always necessary since rulings of judicial decisions concern several times only such legal regulations which had been adopted by the same parliamentary majority. Nevertheless we will check always whether legal regulations concerned by one ruling had been adopted by the same or by various coalitions of parliamentary parties. Accordingly we will have cases (units of analysis) reflecting a ruling of the constitutional court on a legal regulation adopted in the parliament by the right wing majority (a), by the left wing majority (b), or in consensus of the left wing and right wing parties. Several irrelevant cases should be excluded from the analysis since we could not connect them to a parliamentary voting behavior. These cases included decrees of the executive, legal regulations of municipalities, decrees of various state organs (National Election Committee, decisions of courts etc.), parliamentary acts adopted before 1990, and some cases in which the HCC declared the unconstitutionality by legislative omission