The Court’s proposals for Constitutional Reform have been sent by the president of the Council of State. The proposals were forwarded to the President of the Republic, the Prime Minister, the Minister of Justice and party leaders, accompanied by a relevant letter.
Read: Constitutional reform: The Prosecutors’ Union proposals for Justice
As announced, the minutes of the Administrative Plenary, along with supporting documentation, will be posted next week on the Court’s website.
The Council of State announcement
The Council of State with a sense of responsibility in the dialogue on constitutional reform
The completion of 50 years since the Constitution was voted would constitute, by itself, for the Court a reason and starting point for reflection, even without the advance notice of an impending start, for the fifth time since its entry into force, of the procedure for its revision.
The initiative and responsibility both for the product of this procedure, as well as for its very initiation, do not belong to the judicial power. The duty and responsibility of the judge is only the faithful observance of the Constitution. That far – and only that far – extends his legitimacy.
Through the Constitution we constitute, as a People, our collective identity, as a sovereign political entity, and we determine, bindingly, the procedures and prerequisites for forming our common will, the issues that are allowed to become subjects of common will (and conversely those that are reserved to the individual will of each one of us) and the limits of the permissible content of this common will. Without these limits, there is no Constitution, nor any constituted political community. There is only arbitrary imposition.
Justice is the guardian of these limits. For this reason, the other side of the limits of the judge’s legitimacy to speak about the revision procedure, is the burden and responsibility to reflect and ascertain, at least regarding the constitutional protection of his mission, and, ultimately, the guarantees for observing the Constitution as a whole. This vigilance and reflection is particularly the responsibility and concern of the Council of State, because, to a greater or lesser extent, major constitutional legality issues arise within the framework of administrative disputes and the Council of State, as the supreme administrative court, is ultimately the one called to resolve constitutional disputes. To the Council of State, through the course of events, has historically fallen the constitutionally sensitive role of functioning as the preeminent Court of constitutional disputes, but with the obligations of sobriety, moderation and self-restraint that accompany its purely judicial nature and its composition exclusively of judges who pursue their careers clothed with guarantees of personal and functional independence. Other persons or bodies with political origin would certainly function differently and would create other balances in the polity.
With this spirit of responsibility, scientific moderation, and respect for tradition, the Court approaches the analysis, study, historical and comparative review, and reflection on constitutional provisions and issues concerning the organization and functioning of justice, insofar as they relate to its own competencies for which it can express valid opinion. It owes this to its nature and mission, it owes it to the spirit of sobriety, moderation, and self-restraint that permeates the work of the 1975 Constitutional Assembly and the constitutional text itself, to the wisdom and balance that ensured its resilience and endurance over time.
The political crises that tormented the country during the “century of extremes,” from the 1915 schism until the fall of the dictatorship in 1974, made us forget the deep roots of constitutional tradition and parliamentarism in our country – among the oldest in Europe – to overemphasize the weaknesses and flaws that accompanied their everyday life, and, at the same time, perhaps to undervalue the robustness of the reformist spirit of the 1911 Constitution. But no constitutional text can protect either from generalized contempt for institutions, nor from violence. The Constitution was not to blame for the political and constitutional crises the country experienced.
Corresponding, and perhaps even greater wisdom and foresight emerge from the discussions and work of the 1975 constitutional assembly.
The constitutional provisions were measured, weighed, and were not found wanting even during the difficult circumstances of the recent economic crisis. The management of crises (but also their prevention or deterrence to the extent possible) and, even more so, adaptation to a simultaneously highly changeable and violently changing external (and therefore uncontrollable, even when predictable) environment is the work of politics and not of the Constitution. But insofar as the stability and effectiveness of institutions also depend on the constitutional framework, the Constitution was not found lightweight.
This resilience of the Constitution cannot be separated from the solid and cohesive web of rule-of-law guarantees it secures and from the deep, but sober and disciplined judicial review that ensures its continuous relevance and effectiveness. At the core of these rule-of-law guarantees are the equality of the three constituted powers, the personal and functional guarantees of judicial independence, and the organization of administrative justice and constitutional review of laws, as secured in our time-honored constitutional tradition. This system of organization and functioning of justice has been proven over time and only targeted improvements are needed.
The required participation of judges in the procedure for selecting presidents and vice-presidents of supreme courts is already secured at the law level, while judicial independence, at least insofar as its protection depends on the Constitution, is already secured in a way that admirably exceeds established international standards, so that any disruption of the harmony of the existing system, as organized autonomously per jurisdiction branch, with the guarantee of the Plenaries of the respective Supreme Courts, would constitute a serious step backward.
The organization of administrative justice, as a network centered on the Council of State, the rational distribution of work between it and the regular courts of substance, their cooperation, enhanced with institutions such as pilot trials and preliminary questions, and the procedural organization of remedies, which are also in harmony with the country’s international obligations, are also effectively regulated at the level of ordinary law.
Regarding the issue of constitutional disputes, their resolution is ensured in a timely manner and with full knowledge, without haste, and in view of the actual consequences of law application, with procedural arrangements that serve the effectiveness of judicial protection, with consideration of actual situations in favor of good-faith citizens (see article 50 par. 2b of pd 18/1989), in combination with the institutions of preliminary questions and pilot trials established by the ordinary legislator. Respect for constitutional tradition is the strongest guarantee that the Constitution, through faithful but visionary observance and interpretation, will remain resilient and relevant.
No human creation is, and need not be, perfect. To endure, it requires – and suffices – to be able to see the big picture, beyond the narrow and immediate circumstance. However, we must not forget that the 1975 circumstances, which imposed prudence and foresight, and allowed the Constitution’s fathers to rise above circumstances, learn from the past and look to the future, were historically unique. And if the wisdom of those circumstances still accompanies and guides us, the conditions that gave birth to it neither can, nor do we wish to be repeated. Therefore, without the historically particular circumstances of 1975, only marginal and targeted improvements are possible for the current constitutional text. Beyond these lurks rather the danger of shaking its balance and cohesion. For this reason, not only respect and observance, but also humility before the current Constitution is, ultimately, a matter of Greek patriotism.
With this spirit of humility, prudence, and moderation, the Council of State, in Plenary, submits the findings of its study and deliberation to public dialogue. Findings that aim to contribute to the sober and thoughtful search for solutions that will enrich the constitutional edifice with sobriety and a sense of responsibility toward the country’s historical past but also the challenges of our time.
With honor
Michalis N. Pikramenos.
