SYNTHESIS REPORT: CONSTITUTIONAL COURTS AS POSITIVE LEGISLATORS IN COMPARATIVE LAW

PRELIMINARY REMARKS The Subordination of Constitutional Courts to the Constitution In all democratic countries, constitutional courts have the same role of interpreting and applying the Constitution to preserve its supremacy by testing the constitutionality or conventionality of statutes, and to ensure the prevalence of the democratic principle and of fundamental rights, they even have the role of adapting the Constitution when societal changes and time impose such a task. This is true in all systems of constitutional judicial review, where a progressive convergence of principles and solutions has consolidated over the past decades. Today it is difficult even to draw clearly the classic distinction between the concentrated and the diffuse systems of judicial review, which were so commonly used during many decades. In all the systems, the basic principle that can be identified is that constitutional courts, in accomplishing their roles, must always be subordinated to the Constitution, not allowed to invade the field of the Legislator or of the constituent power. The contrary would be, as asserted by Sandra Morelli in the Colombia National Report, to develop an “irresponsible judicial totalitarianism,” which of course is part of the pathology of judicial review. That is, constitutional courts can assist the legislators in accomplishing their functions, but they cannot substitute for the Legislators and enact legislation – nor do they have any discretionary political basis for creating legal norms or provisions that cannot be deducted from the Constitution itself.