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Does the Constitutional Court "do politics" with its decisions?

2025-10-13 12:11:17Pikëpamje SHKRUAR NGA ARBEN ISARAJ
Arben Isaraj

In a democratic and constitutional order, the Constitutional Court represents one of the fundamental institutions of control over power.

The question of whether it “does politics” is one of the most complicated debates in contemporary constitutional law theory.

This issue touches on the delicate boundary between legal and political functions, as well as how the Constitution is interpreted and implemented in dynamic social and institutional contexts.

• The legal function of the Constitutional Court

In principle, the Constitutional Court exercises a purely judicial function. It is tasked with guaranteeing the supremacy of the Constitution, reviewing the constitutionality of laws and protecting the fundamental rights of the individual. As Hans Kelsen - one of the most influential jurists and philosophers of the 20th century and one of the thinkers who profoundly shaped the modern concept of the Constitutional Court and the review of constitutionality - emphasized, the constitutional court is the “negative legislator”, which does not create laws, but repeals those that conflict with the Constitution.1
Along the same lines, in the Albanian constitutional system “the main function of the Constitutional Court is to guarantee the separation of powers and maintain the constitutional order, without interfering in the field of active politics”.

• Political dimension of consequences
However, the decisions of the Constitutional Court inevitably have political consequences.
When it repeals a law that affects elections, the dissolution of the Assembly or the powers of the highest central or local institutions, it directly affects the political balance of the country. As the American professor and scholar Alec Stone Sweet puts it, constitutional courts “govern through decisions”, because every interpretation of the Constitution has a real impact on policy-making.2 Constitutional courts, he continues, can act as “adjunct legislators”, in areas where the legal process, interpretation and execution are intertwined. This means that constitutional decisions often have a political character in their effect.
So, even when the motivation is legal, the effect is political and this does not delegitimize the role of the court, but makes it a neutral actor in regulating the institutional game.

• Judicial Activism and the Politics of the Constitution
In contemporary constitutional theory, the concept of “judicial activism” has been developed, which means the tendency of courts to interpret the Constitution in an expanded manner, thus influencing the direction of public policies.
John Hart Ely, one of the most important thinkers of constitutional law in the United States, argues that – “the role of the courts is to guarantee the democratic process, not to replace it; the court should intervene only to correct distortions of political representation.”3
Based on Ely’s theory:
The Constitutional Court should not do politics in the sense of representing political party interests, but has a certain political role in the sense that its decisions affect democratic conditions: when the political process is damaged, it intervenes to preserve equality and participation. It should be a guardian of the democratic process, not a political decision-maker who defines new values ??according to personal convictions. When the Constitutional Court overturns laws that obstruct elections, restrict the right to vote, or discriminate against minorities, according to Ely: it “politicizes” in the sense that it uses legal power to ensure democratic conditions, but not to pursue political agendas.
In the Albanian context, a broad interpretation of the Constitutional Court’s powers could lead to “excessive activism,” which “risks shifting the balance of powers and creating a judiciary with unjustified political influence.”

• The essential difference: legal reasoning vs. political stance
The difference that separates a legal decision from a political decision lies in the motivation and method of reasoning.
A decision is legal when it is based on the interpretation of constitutional norms, general principles of law and consolidated jurisprudence; on the contrary, it is political when it is guided by the interests or goals of power.
Ronald Dworkin, the American-British jurist and legal philosopher, known for his great influence on the way the Constitution is interpreted and how courts should act in “hard cases” where the law does not provide a clear answer.. emphasized that - the court's duty is to “take rights seriously”, that is, to protect them beyond the political interests of the moment.
In conclusion: The Constitutional Court does not do politics in the sense of shaping it, but it cannot avoid the political consequences of its decisions.
It is situated on the delicate border between law and politics, and its legitimacy lies in:
- institutional independence,
- clear legal reasoning,
- respect for the separation of powers, and
- public trust that it is the guardian of the Constitution, not a player in the political game.
Reference bibliography:
1.Hans Kelsen, Wer soll der Hüter der Verfassung sein? (Berlin: Franz Deuticke, 1931).
2.Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000).
3.John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).
4.Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).


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