The influence of the constitutional jurisdictions on the basic laws

• Author: Valentina Barbateanu
• Position: Ph.D. candidate, Faculty of Law, 'Nicolae Titulescu' University
• Pages: 137-148

Valentina B?rb?̲eanu

137

LESIJ NO. XIX, VOL. 2/2012

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THE INFLUENCE OF THE CONSTITUTIONAL JURISDICTIONS

ON THE BASIC LAWS

Valentina B;RB;XEANU∗

Abstract

This paper intends to reveal the role played by the constitutional courts or other bodies

entitled to perform the constitutional review of normative acts in enhancing the significance of the

National Basic Laws and in developing their content. The research will try to show that the case-law

created by the constitutional jurisdictions can shape the perception of the society on the Basic Law,

offering a different perspective over its meaning. This is the effect o f the interpretation of the Basic

Law provisions, which is an inherent part of the constitutional jurisdictions’ activity.

Keywords: basic Law, supremacy, constitutional review, constitutional courts, amending of

the Constitution

1. Introduction

Constitutional jurisdictions are entitled to perform the constitutional review of normative acts.

In order to do that, the constitutional judge has to evaluate the wording of the contested legal

provision and, in the same time, the significance of the constitutional rules co mprised in the Basic

Laws which serve as benchmarks for the comparison. So, the interpretation of the Constitution is an

inherent operation of the constitutional review. It has the potential to enhance its significance and to

offer the efficiency required by the supreme character of the Basic Law. Due to the legal binding

force of this interpretation, the content of the Basic Law is sometimes expanded and magnified. The

constitutional jurisdictions case-law is taken into consideration especially by the legislative bodies

that have the legitimacy to amend the Constitutions. The paper will study how different constitutional

jurisdictions are involved in the process of supplementing the provisions of the national Basic Laws,

with a special look to France, Germany, Italy and Spain. The comparative study includes Romania,

as well, and analyzes to what extent the Constitutional Court has the possibility to improve the

Romanian Basic Law and to make its provisions more protective for the citizens, for their

fundamental rights and liberties.

The present study has been inspired by the recent idea that the traditional concept of “negative

legislator” established by Hans Kelsen regarding the impossibility of constitutional jurisdictions to

modify the reviewed normative act has to be reconsidered. This affirmation is proved by the

increasing activism of various Constitutional courts. One of the most incis ive study has been

accomplished by Christian Behrendt1. It has been drafted from the point of view of the reviewed

normative acts which can be supplemented this way. The present study tries to highlight the

influence of the constitutional case-law on the Basic Law itself.

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∗ Ph.D. candidate, Faculty of Law, “Nicolae Titulescu” University (e-ma il:

valentina_barbateanu@yahoo.com).

1 Christian Behrendt, Le juge constitutionnel, un legislateur-cadre positif – Une analyse comparative en droit

francais, belge et allemand, (Bruxelles, Editura Bruylant, Paris, L.G.D.J.), 2006.