Béla Pokol: The Juristocratic Form of Government and its Structural Issues. Nr. 2016/9.

Activism is the most widespread criticism over the activities of the constitutional courts. This means partly the exceeding of their authority given by the written provisions of the Constitution and, on the other hand, the downgrading of the democratic parliamentary majority and the will of millions of citizens who elect this majority. However, if we go beyond the widespread and recurring indignation, and we level-headedly look at the provisions of constitutions created in the recent decades, then it can be noted that these constitutions and the laws on the constitutional court themselves raise them to the level of the supreme organs of state power. In this way, the activism of the constitutional courts has partly become legalized and their power is wide ranging in order to limit the legislation and the will of the citizens expressed in the elections. It appears that this new, powerful actor in state power cannot be captured within the old forms of government (presidentialism or parliamentarism) because it bursts these old frameworks. Beyond these old forms, the study therefore proposes to introduce a new form of government based on the wide-ranging power of the constitutional court. As the most important structural issues of this new form of government, four aspects are analyzed: 1) the degree of the monopolized access of the constitutional court to the constitution; 2) the breadth of the constitutional interpretative power given by the general formulas of the constitutional text; 3) the speed of activation of its power when it comes to the annulment of Parliamentary acts; 4) and finally the term of office of the constitutional judges which separates them from being re-elected by the political actors. 

pdfThe working paper is available to download here.

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