Constitutional Jurisdiction in Asia

3^rd Seminar for Asian Constitutional Court Judges

Ulan Bator, 6-8 September 2005

Presentation of the Venice Commission and Offer to Co-operate

Dr. Schnutz Rudolf Dürr

Head of Constitutional Justice Division,

Venice Commission, Council of Europe

Honourable Chairman of the Constitutional Court,

Honourable Chairmen and Judges,

Ladies and Gentlemen,

I am very honoured to participate in this important event bringing together Asian constitutional courts in order to discuss the sometimes delicate relationship with politics.

However first, I would like to warmly thank the Constitutional Court of Mongolia and the Konrad Adenauer Foundation for organising this seminar and for kindly giving me the occasion to present to you the Venice Commission and possibilities of co-operation between your courts and this Commission.

Established in 1990 and composed of independent members - like constitutional court judges or university professors -, the Venice Commission is an advisory body of the Council of Europe in the field of constitutional law (www.Venice.coe.int). Its real name is European Commission for Democracy through Law but due to its seat in Venice, Italy, where it meets four times a year, it is usually referred to as the Venice Commission. While member states of the Council of Europe - different from the European Union and with 46 member states covering practically all of Western and Eastern Europe - for a long time already co-operated in other fields of law like criminal, civil or administrative law, co-operation in constitutional law was not obvious for the Council. As you know, constitutions also deal with very sensitive questions like the balance between the executive and legislative branches of power. Initially, several states were reluctant to undertake such co-operation and did not want other States to interfere in these issues. Therefore, it was only after the fall of the Berlin wall that the Venice Commission was established in order to remedy the urgent need for co-operation in the field of constitutional law in Central and Eastern Europe. Starting with a membership of 18 countries, soon all member states of the Council of Europe were convinced of the usefulness of this body and joined the Venice Commission. Since a change in the Statute in 2002, also non-European states can become full members. Kyrgyzstan and Chile already have obtained full membership with the Venice Commission.

While the main activity of the Commission is centred on advising states on draft constitutions, constitutional amendments and para-constitutional legislation like laws on constitutional courts or electoral legislation, the Venice Commission was always aware that these texts have to be implemented in practice in order to be of any use. It was only natural that the Commission turned to constitutional courts and equivalent bodies like constitutional councils or supreme courts as the institutions where this implementation can be accompanied best.

In order to complement the activities of the Conference of European Constitutional Courts, which deals in depth with a single topic at its gatherings every three years, the Commission publishes in co-operation with the courts a legal journal and the database CODICES (www.CODICES.coe.int), which informs about the important case-law of about 80 constitutional courts and equivalent bodies in Europe, Asia, Africa and the Americas. CODICES already contains about 5000 judgements. The main purpose of the database is to foster an exchange between the courts and to assist national judges in solving critical questions of law which often arise simultaneously in different countries.

In co-operation with the courts, the Commission also organises seminars and conferences and provides a confidential on-line forum for the courts where they can quickly request and exchange information relating to current questions. This so-called Venice Forum is restricted to courts in member and observer states. Nevertheless, recently I passed on a request from the Constitutional Court of Indonesia asking about the code of ethics for constitutional courts. A number of European courts replied to this request.

Constitutional courts’ decisions striking down laws or decrees are sometimes criticised by parliament or government. While criticism of combined with respect for decisions may be acceptable, when necessary, we support constitutional courts when they are under undue pressure from other state powers. In the past, we supported constitutional courts in budgetary difficulties by organising seminars with the participation of parliament and the executive. At such seminars, speakers from other courts spelled out international standards for constitutional courts’ independent budget. The Commission also directly supported courts having difficulty with the execution of their decisions and in two cases we were even able to contribute to safeguard constitutional courts, which were in danger of being dissolved.

The database CODICES too contributes to the goal of strengthening the courts vis à vis other state powers. In delicate cases, decisions which make reference to similar judgments given by courts in other countries carry more weight and may be a means to better resist criticism.

We have extended the geographical scope of the CODICES database beyond the member and observer states of the Venice Commission by means of co-operating with regional networks of constitutional courts. We already have agreements with the Association of Constitutional Courts using the French Language (ACCPUF), of which the Constitutional Council of Cambodia is a member, and the Southern African Judges’ Commission.

Today, I have the pleasure to propose on behalf of the Venice Commission the integration of your leading case-law in constitutional matters into the database CODICES. Such an arrangement would facilitate the exchange of information, allowing constitutional court judges in Asia, Europe and other parts of the world to gain access to the important case-law of their peers.

The Constitutional Court of South Korea already contributes to CODICES as an observer and the Constitutional Council of Cambodia participates as a member of ACCPUF. We kindly request all the other courts represented today, to nominate one or two liaison officers who would contribute three times a year English summaries (précis) and full texts of important constitutional cases to the Secretariat of the Venice Commission in Strasbourg in view of their integration into CODICES.

Let me end by expressing the hope that this Colloquium will be the starting point for a fruitful exchange of  case-law between courts from Asia, Europe and other parts of the world.

I do look forward to our co-operation.