Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 192

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judges, especially in terms of the selection and nomination of candidates,
the bodies that shouldelect them, and the qualified majority required for
their election.8
Constitutional court judges arechosen by political authority, either by
the government (in Canada, Japan, Norway, and Denmark), parliament (a
single house in Portugal, two in FR Germany), the executive branch with
the parliament (Austria, France), or the executive, legislative, and judicial
branches (Italy, Spain). Regardless of the nature of the legal precautionary
measures in place (e.g., a two-thirds majority), appointments are always
the result of a political process.
Professor Favoreuargues that the only difference between the saidelection systems is that some openly use Parteinproporz, i.e., proportional or
balanced division of seats amongst political parties (e.g., Austria, Germany,
Italy, Portugal, and Switzerland), while others (USA, France) ensure the
plurality of views in constitutional courts via a switch of power.9
It is generally accepted in the science of constitutional law that theelection of constitutional court judges by political authority on the basis
of political motives is not an error in constitutional adjudication systems.
Quite the contrary, this entails quality and necessity, considering that
constitutional adjudication relies heavily on that democraticelection
technique.
The Parteinproporz system has demonstrated its efficiency in ensuring
various views and tendencies in constitutional courts. In Austria and
Germany, the positions are divided between the two strongest parties (with
the possibility of a seat for a small coalition partner), while in Italy they are
divided among five parties pertaining to the so-called "Republican arch",
and in Portugal and Switzerland all parties are represented in the court.
Favoreu points out that it is important to allocate positions to parties that
are fit to rule, whether they are in power or in opposition. Constitutional
adjudication does not function well if those subject to its control (the ruling
party and the opposition) do not feel that they have a say in the election
of members of the body that controls them. The controlled must feel that
they are connected with theelection of those who control.10
Court judges: from their election to material bases of their work), in Hrvatsko ustavno
sudovanje, HAZU, Zagreb, 2000.
8. The changes to the Constitution of the Republic of Croatia in 2010 stipulated that the
Croatian Constitutional Court judges be elected by the Croatian Parliament by 2/3 majority
votes of the total number of the MP's (see Article 126 of the Constitution of the Republic
of Croatia, Official Gazette No 85/10 - consolidated wording).
9. Favoreu L., La légimité du juge constitutionnel. In: Revue internationale de droit
comparé. Vol. 46 No 2, avril-juin 1994, p. 557-581.
10. V. Favoreu L., La légimitédujugeconstitutionnel, pp. 576-577.

Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ?

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