Original scientific paper
THE MUTUAL RELATIONSHIP BETWEEN THE POSITIVE AND THE NEGATIVE LEGISLATOR IN THE REPUBLIC OF CROATIA
Mato Arlović
; Constitutional Court of the Republic of Croatia
Abstract
This paper considers the mutual relationship between the Constitutional Court of the Republic of Croatia as the negative legislator and the Croatian Parliament as the positive legislator in what is known as the Kelsen’s model of constitutional jurisprudence.
In such a constitutional-law model, it is necessary to establish a special independent and autonomous body to carry out the review of constitutionality and legality. In the Kelsenian model, this is the Constitutional Court.
This is based on the assumption that in such social systems parliaments are delegated with the task of making laws, which they, as bodies representing the citizens, carry out freely and in line with the political aspirations of the governing majority, subject only to constitutional constraints. Therefore, they express themselves as “positive legislators”, as stated by Kelsen. On the other hand, the Constitutional Court, on the basis of its authority, as part of the procedure of reviewing the constitutionality and legality of laws, is restricted to repealing or annulling laws when they conflict with the constitution or with the constitution and the law, and, when establishing that they are not in conformity with the constitution or with the constitution and the law, it removes them from the legal system. Kelsen referred to this role of the Constitutional Court as that of the “negative legislator”.
By reviewing constitutionality and legality and by carrying out all other competences provided within its remit by the Constitution, the Constitutional Court in itself and for itself has been called to be an interpreter, and, on this basis, to interpret the entire Constitution. With this, the Constitutional Court of the Republic of Croatia, in addition to the task of being the protector and guardian of the Constitution, has also been given the task of interpreting the Constitution as a whole in a dynamic and evolving manner, and thus, together with its constitutional-law predecessor, it makes a contribution to the realisation of the modern constitutional state.
By carrying out its task of performing its functions prescribed within its jurisdiction, the Constitutional Court of the Republic of Croatia today must provide an answer, not only to the question of what is in conformity with the law and the Constitution, but also to the more difficult and more complex question of what is according to the law and according to the Constitution, based on their ratio legis which relies on the highest values of the constitutional order. In order to find such answers, by the nature of things, the Constitutional Court must apply an active approach when interpreting the Constitution of the Republic of Croatia, by applying the evolutionary principle with a primarily systematic and teleological method that is applicable to it. Naturally, this leads to the continuous stepping out to a greater or lesser extent of the remit of the Constitutional Court as the negative legislator into the field of action of the positive legislator.
Such an approach leads to the negative legislator intruding in different ways into the field of the positive legislator, from a direct and indirect to a mixed and total performance, albeit only temporarily and for a transitional period, as the positive legislator. Reactions by the positive legislator to such a legal situation as created by the negative legislator are different and generally related to a specific case. Using Sweet’s terminology, we can refer to this as “corrective revision”.
It is interesting to note that both in the jurisprudence of the Constitutional Court as the negative legislator and in the parliamentary practice of the Croatian Parliament we can discern all the forms of their options, which have affected and determined the character of their mutual relationship. I consider that this is not just the consequence of the wish of the positive and negative legislator to behave in this way, but primarily the consequence of their activities in exercising their competences in order to meet the tasks given to them in circumstances of the transition processes which the Republic of Croatia is undergoing on the one hand, and the development role that the constitutional-law order provides for these processes and the institutions established by this order.
It is fortunate that both the positive and negative legislators have until today kept a reasonable, permitted, justified and constitutionally legitimate dose of mutual influence in their mutual relationship.
This, on the one hand, indicates their commitment to the values and goals of the constitutional state, and, on the other hand, their respect for the principles of constitutionality and legality based on the value of the rule of law in interpreting and applying the Constitution. It certainly also shows the wisdom and skill of the actors to find a legal measure in things and a balance in their mutual relations, without overstepping their constitutional authorities and restrictions.
Keywords
positive legislator; negative legislator; constitution; constitutional court; corrective revision; constitutionality and legality
Hrčak ID:
155990
URI
Publication date:
30.12.2015.
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