CONSTITUTIONAL COURT BETWEEN LAW AND POLITICS
Abstract
Political neutrality and impartiality of the Constitutional Court is a fundamental principle of a legal state. It is unacceptable for judiciary to exercise its functions under the direction of a government or with political sympathies and antipathies towards the parliamentary majority or the opposition. In this case, it is impossible to talk about “justice”, because we are dealing not with an independent judicial process, but with pure”politics”.
“Political justice” leads only to bad associations. Therefore, the Constitutional Court attempts to prove that its decisions do not have anything to do with politics. Representatives of political authorities are constantly trying to demonstrate that no one exerts influence on a court. The public also likes judiciary image, which is far from politics. At the same time, the research of regularity between politics and law requires a sober and pragmatic approach in order to be fully protected from relapses/ recidivism of political justice.
Political neutrality of the Constitutional Court cannot be formed only with the help of the “myth”, according to which, “judiciary is a far cry from politics/judiciary is distant from politics”. The more especially as “political” content of justice should not be seen as only the persecution, or vice versa, some kind of “armor” from the protection of legal accountability/liability/responsibility.
A legal state also requires protection. That is why “political justice” is considered as an indispensable, but on the other hand, the “dark side” of the legal state. Liberal democracy also recognizes civilized methods of fighting against its “adversaries” in the form of political justice – the so called “McCarthy” era in the US or anticommunist political justice in Germany.
Each justice has a political character, whether it is admtted (by justice) or not. In such circumstances, the crucial factor is that a judge should be aware of political nature of his activities. Justice, in a sense, is always political due to the fact that a judge cannot be “neutral”. It is hard to imagine that just by throwing a judicial robe on himself, a judge can isolate himself from his world outlook - family and professional social environment, (already established) normative beliefs, religious or ideological (liberal and /or conservative) orientations, scientific views (community of different scientific “schools”) and others. Judges can feel political orientation, at least, “under their skin”.
The study of politics and law has a long tradition and still falls within one of the pressing problems of legal science. To what extent is a constitutional court involved in politics? Is it possible that all the activities of the constitutional court to be constrained within the pure legal categories? How much does a judge’s decision give the possibility of rational verification? Are there any guarantees that judges will be loyal to a constitution and will not abuse their power? How big are the risks of instrumentalization of a constitutional court from politics and what are their neutralization mechanisms? This is an incomplete list of issues, which is still under active discussion in the sphere of contemporary science.
