University of Twente Student Theses

Constitutional courts compared: how political are constitutional courts? : A qualitative study about the political nature of constitutional courts and the implications for the government reform discussion in the Netherlands.

Heereveld, Y.D. van (2024) Constitutional courts compared: how political are constitutional courts? : A qualitative study about the political nature of constitutional courts and the implications for the government reform discussion in the Netherlands.

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Abstract:	Between 2005 and 2019, Dutch authorities wrongly accused many parents of childcare benefit fraud, reigniting an ongoing debate about government reform. Part of the discussion about government reform is the potential introduction of a constitutional court. In some countries, judges cannot strike down acts of Parliament or Congress because they violate the Constitution; in other systems, this is a normal part of political decision-making. Currently, article 120 of the Dutch Constitution prevents judges from reviewing the constitutionality of acts of parliament, although this is mitigated because Dutch judges can use international law, such as the European Convention on Human Rights. One of the main arguments against introducing a constitutional court is that such a court will become political. To contribute towards the discussion about government reform, this thesis explores the following research question: To what extent do the constitutional courts reflect (elements of) political decision-making, and how can this be explained by characteristics of the courts or characteristics of the issues they deal with? The main hypothesis of my literature review is that political polarisation and a transparent appointment procedure of the constitutional court contribute to politicising constitutional courts. There are many different constitutional systems around the world. There are significant divergences in how different countries appoint constitutional court judges. To test my hypothesis, I conducted six case studies. I have selected two countries where the executive power is responsible for appointing judges to the constitutional court, two where the legislature power is responsible, and two where the judiciary power is responsible. Per power, one of my selected cases has a high level of political polarisation, and one country has low levels of political polarisation. In India, the Supreme Court is responsible for its appointments. Although the Indian Supreme Court has great power, it has failed to address recent democratic backsliding. In Canada, the governor general appoints Supreme Court judges on the prime minister's advice. The Canadian Supreme Court is an independent institution that regularly rules against the government. Still, judges are sometimes viewed as close to the ruling federal government because of the appointment procedure. In Germany, judges to the Federal Constitutional Court are appointed by a two-thirds majority of parliament. The Federal Constitutional Court enjoys high public trust and receives many constitutional complaints from citizens who think their constitutional rights are infringed and want the court to investigate. The two-thirds majority means that de facto centrist parties rotate nominations. The Polish Constitutional Tribunal used to be an independent court where an ordinary majority in parliament appointed judges. A populist government used political hardball and illegal tactics to bring the court under direct government control. Similar hardball tactics can be seen in the United States, where Supreme Court judges are nominated by the president and confirmed by the Senate. This required a supermajority in the past, but increased polarisation led to the Senate using an ordinary majority nowadays. The Supreme Court has always been a political actor, but the increased polarisation brought it closer to party politics, especially on controversial issues such as abortion and gun laws. A Constitutional Court was introduced in South Africa when it became a democracy in the 1990s. In South Africa, many political and social actors are responsible for appointing judges in the Constitutional Court. The South African Constitutional Court is a strong institution that safeguards democracy and the rule of law when facing social problems such as inequality and crime. In conclusion, constitutional courts can safeguard democracy and the rule of law, but they are not infallible. Non-majoritarian institutions are political because they make decisions but should not be party-political. If political polarisation and/or weak institutions allow the court to be affiliated with or even captured by partisan politics, constitutional courts can threaten democracy. Therefore, a hypothetical Dutch constitutional court should have a clear constitution and a non-majoritarian or supermajority appointment procedure.
Item Type:	Essay (Master)
Faculty:	BMS: Behavioural, Management and Social Sciences
Subject:	88 social and public administration, 89 political science
Programme:	European Studies MSc (69303)
Link to this item:	https://purl.utwente.nl/essays/99641
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